S. HRG. 108–135, PT. 6

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JANUARY 22, JANUARY 28, FEBRUARY 5, FEBRUARY 11, FEBRUARY 25, 

AND MARCH 10, 2004

Serial No. J–108–1

PART 6

Printed for the use of the Committee on the Judiciary

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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95–617 DTP 2004

S. HRG. 108–135, PT. 6

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JANUARY 22, JANUARY 28, FEBRUARY 5, FEBRUARY 11, FEBRUARY 25, 

AND MARCH 10, 2004

Serial No. J–108–1

PART 6

Printed for the use of the Committee on the Judiciary

(

(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 

THURSDAY, JANUARY 22, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Page

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

statement .............................................................................................................. 219

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 1

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

statement .............................................................................................................. 221

PRESENTERS 

Bond, Hon. Christopher, a U.S. Senator from the State of Missouri presenting 

Raymond W. Gruender, Nominee to be Circuit Judge for the Eighth Circuit 6

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona presenting Neil 

Vincent Wake, Mominee to be District Judge for the District of Arizona ....... 5

Murray, Hon. Patty, a U.S. Senator from the State of Washington presenting 

Ricardo S. Martinez, Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 4

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting Gene E.K. Pratter, Nominee to be District Judge for the Eastern 

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

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting Gene E.K. Pratter, Nominee to be District Judge for the Eastern 

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

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

Raymond W. Gruender, Nominee to be Circuit Judge for the Eighth Circuit 58

STATEMENTS OF THE NOMINEES 

Gruender, Raymond W., Nominee to be Circuit Judge for the Eighth Circuit ... 8

Questionnaire .................................................................................................... 9

Martinez, Ricardo S., Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 29

Questionnaire .................................................................................................... 30

Pratter, Gene E.K., Nominee to be District Judge for the Eastern District 

of Pennsylvania .................................................................................................... 59

Questionnaire .................................................................................................... 60

Wake, Neil Vincent, Nominee to be District Judge for the District of Arizona .. 110

Questionnaire .................................................................................................... 111

QUESTIONS AND ANSWERS 

Responses of Raymond W. Gruender to questions submitted by Senators 

Leahy and Durbin ................................................................................................ 180

Responses of Ricardo S. Martinez to questions submitted by Senator Durbin .. 200

Responses of Gene E.K. Pratter to questions submitted by Senator Durbin ..... 203

Responses of Gene E.K. Pratter to questions submitted by Senator Leahy ....... 206

Responses of Neil Vincent Wake to questions submitted by Senator Durbin .... 211

Responses of Neil Vincent Wake to questions submitted by Senator Leahy ...... 215

Page

IV

SUBMISSION FOR THE RECORD 

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington, statement in support of Richardo S. Martinez, Nominee to be District Judge 

for the Western District of Washington ............................................................. 218

WEDNESDAY, JANUARY 28, 2004

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 265

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

statement .............................................................................................................. 266

PRESENTERS 

Santorum, Hon. Rick, a U.S. Senator from the State of Pennsylvania presenting Franklin S. Van Antwerpen, Nominee to be Circuit Judge for the 

Third Circuit ......................................................................................................... 228

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania presenting Franklin S. Van Antwerpen, Nominee to be Circuit Judge for the 

Third Circuit ......................................................................................................... 227

STATEMENT OF THE NOMINEE 

Van Antwerpen, Franklin S., Nominee to be Circuit Judge for the Third 

Circuit ................................................................................................................... 229

Questionnaire .................................................................................................... 230

QUESTIONS AND ANSWERS 

Responses of Franklin S. Van Antwerpen to questions submitted by Senator 

Durbin ................................................................................................................... 262

THURSDAY, FEBRUARY 5, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho ............................ 269

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

statement .............................................................................................................. 532

Leahy, Patrick J., a U.S. Senator from the State of Vermont ............................. 275

prepared statement and attachment .............................................................. 548

PRESENTERS 

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

William S. Duffey, Jr., Nominee to be District Judge for the Northern 

District of Georgia ................................................................................................ 272

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho presenting 

William Gerry Myers III, Nominee to be Circuit Judge for the Ninth Circuit ......................................................................................................................... 278

Crapo, Hon. Michael, a U.S. Senator from the State of Idaho presenting 

William Gerry Myers III, Nominee to be Circuit Judge for the Ninth Circuit ......................................................................................................................... 274

Miller, Hon. Zell, a U.S. Senator from the State of Georgia presenting William 

S. Duffey, Jr., Nominee to be District Judge for the Northern District 

of Georgia .............................................................................................................. 273

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

District of Pennsylvania ...................................................................................... 271

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

District of Pennsylvania ...................................................................................... 270

Page

V

STATEMENTS OF THE NOMINEES 

Duffey, William S., Jr., Nominee to be District Judge for the Northern District of Georgia ..................................................................................................... 364

Questionnaire .................................................................................................... 365

Myers, William Gerry, III, Nominee to be Circuit Judge for the Ninth Circuit . 280

Questionnaire .................................................................................................... 281

Stengel, Hon. Lawrence F., Nominee to be District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 405

Questionnaire .................................................................................................... 406

QUESTIONS AND ANSWERS 

Responses of William S. Duffey, Jr. to questions submitted by Senator Durbin .......................................................................................................................... 443

Responses of Lawrence F. Stengel to questions submitted by Senator Durbin . 447

Responses of William S. Duffey, Jr. to questions submitted by Senators Leahy 

and Kennedy ......................................................................................................... 451

Responses of William Gerry Myers III to questions submitted by Senator 

Feinstein ............................................................................................................... 460

Responses of William Gerry Myers III to questions submitted by Senators 

Leahy, Kennedy, Feingold and Durbin .............................................................. 468

Responses of William Gerry Myers III to questions submitted by Senator 

Kennedy ................................................................................................................ 502

SUBMISSIONS FOR THE RECORD 

Advocates for the West, American Rivers, Americans for Democratic Action, 

Alliance for Justice, Clean Water Action, Committee for Judicial Independence, Community Rights Counsel, Defenders of Wildlife, Earthjustice, 

Endgagered Species Coalition, Friends of the Earth, Leadership Conference 

on Civil Rights, Mineral Policy Center, Naral Pro-Choice American, National Abortion Federation, National Environmental Trust, National Organization for Women, Natural Resources Defense Council, The Ocean Conservancy, Public Employees for Environmental Responsibility, People for 

the American Way, Sierra Club, The Wilderness Society, joint letter ............ 506

Alliance for Justice, American Association of University Women, Catholics 

for a Free Choice, Feminist Majority, Human Rights Campaign, Naral 

Pro-Choice American, National Abortion Federation, National Council of 

Jewish Women, National Family Planning and Reproductive Health Association, Now Legal Defense and Education Fund, National Partnership 

for Women and Families, National Women’s Law Center, Planned Parenthood Federation of America, Religious Coalition for Reproductive Choice, 

Sexuality Information and Education Council of the United States, joint 

letter ...................................................................................................................... 511

Bear River Band of Rohnerville Rancheria Tribe, Janice McGinnis, ViceChairperson, Loleta, California, letter ............................................................... 514

Cabazon Band of Mission Indians, John A. James, Tribal Chairman, Indio, 

California, letter ................................................................................................... 516

Cachil DeHe Band of Wintun Indians, Wayne R. Mitchum, Colusa, California, 

letter ...................................................................................................................... 518

California Nations Indian Gaming Association, Sacramento, California, letter 520

Civil rights, disability rights, senior citizens, women’s rights, human rights, 

Native American, planning and environmental organizations, joint letter ..... 523

Elko Band Council, Hugh Stevens, Vice Chairman, Elko, Nevada, letter .......... 530

Hopland Band of Pomo Indians, Sandra C. Sigala, Tribal Chairperson, 

Hopland, California, letter .................................................................................. 535

Inter Tribal Council of Arizona, Nora McDowell, President, Phoenix, Arizona, 

letter ...................................................................................................................... 537

Justice for All Project, Susan Learner, Los Angeles, California, letter .............. 539

Kalispel Tribe of Indians, Glen Nenema, Chairman, Usk, Washington, letter .. 544

Leadership Conference on Civil Rights, Wade Henderson, Executive Director 

and Nancy Zirkin, Deputy Director, Washington, D.C., letter ......................... 546

Mooretown Rancheria, Melvin Jackson, Vice Chairman, Oroville, California, 

letter ...................................................................................................................... 554

National Congress of American Indians, Tex G. Hall, President, Washington, 

D.C., letter and attachments ............................................................................... 556

Page

VI

Paskenta Band of Nomlaki Indians, Everett Freeman, Tribal Chairperson, 

Orland, California, letter ..................................................................................... 561

Public Employees for Environmental Responsibility, Jeffrey Ruch, Executive 

Director, Washington, D.C., letter ...................................................................... 563

Pueblo of Laguna, Roland E. Johnson, Governor, Laguna, New Mexico, letter . 565

Quechan Indian Tribe, Mike Jackson Sr., President, Yuma, Arizona, letter ..... 567

Redding Rancheria, Tracy Edwards, Tribal Chair, Redding, California, letter . 569

San Pasqual Band of Mission Indians, Allen E. Lawson, Tribal Chairman, 

Valley Center, California, letter ......................................................................... 571

Santa Ysabel Band of Diegueno Indians, Johnny M. Hernandez, Spokesman, 

Santa Ysabel, California, letter .......................................................................... 573

Seminole Nation of Oklahoma, Ken Chambers, Principal Chief, Wewoka, 

Oklahoma, letter .................................................................................................. 575

Winnebago Tribe of Nebraska, John Blackhawk, Chairman, Winnebago, Nebraska, letter ........................................................................................................ 577

Van Hyning & Associates, Inc., Dyrek Van Hying, Great Falls, Montana, 

letter ...................................................................................................................... 578

WEDNESDAY, FEBRUARY 11, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 723

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 579

prepared statement .......................................................................................... 727

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

statement .............................................................................................................. 729

PRESENTERS 

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington presenting James L. Robart, Nominee to be District Judge for the Western 

District of Washington ......................................................................................... 586

Feingold, Hon. Russell, a U.S. Senator from the State of Wisconsin presenting 

Diane S. Sykes, Nominee to be Circuit Judge for the Seventh Circuit ........... 582

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin presenting 

Diane S. Sykes, Nominee to be Circuit Judge for the Seventh Circuit ........... 581

Murray, Hon. Patty, a U.S. Senator from the State of Washington presenting 

James L. Robart, Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 585

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

District of Pennsylvania ...................................................................................... 580

Sensenbrenner, Hon. F. James, a Representative in Congress from the State 

of Wisconsin presenting Diane S. Sykes, Nominee to be Circuit Judge 

for the Seventh Circuit ........................................................................................ 584

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

District of Pennsylvania ...................................................................................... 580

STATEMENTS OF THE NOMINEES 

Robart, James L., Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 617

Questionnaire .................................................................................................... 618

Sanchez, Juan R., Nominee to be District Judge for the Eastern District 

of Pennsylvania .................................................................................................... 657

Questionnaire .................................................................................................... 658

Sykes, Diane S., Nominee to be Circuit Judge for the Seventh Circuit .............. 587

Questionnaire .................................................................................................... 589

QUESTIONS AND ANSWERS 

Responses of Diane S. Sykes to questions submitted by Senator Durbin ........... 694

Responses of James L. Robart to questions submitted by Senator Durbin ........ 717

Page

VII

Responses of Juan R. Sanchez to questions submitted by Senator Durbin ........ 720

SUBMISSIONS FOR THE RECORD 

Fiedler, Patrick J., Judge, Dane County Circuit Court, Branch 8, Madison, 

Wisconsin, letter ................................................................................................... 725

Lundsten, Paul, Judge, Wisconsin Court of Appeals, Madison, Wisconsin, 

letter ...................................................................................................................... 731

Santorum, Hon. Rick , a U.S. Senator from the State of Pennsylvania, letter 

in support of Juan R. Sanchez, Nominee to be District Judge for the 

Eastern District of Pennsylvania ........................................................................ 732

WEDNESDAY, FEBRUARY 25, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 735

prepared statement .......................................................................................... 796

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

statement .............................................................................................................. 817

PRESENTER 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Roger T. Benitez, Nominee to be District Judge for the Southern 

District of California ............................................................................................ 733

WITNESSES 

Hayward, Thomas Z., Jr., Chair, American Bar Association Standing Committee on Federal Judiciary, and Richard M. Macias, Circuit Investigator, 

Washington, D.C. ................................................................................................. 765

Huff, Marilyn L., Chief Judge, U.S. District Court for the Southern District 

of California .......................................................................................................... 773

STATEMENT OF THE NOMINEE 

Benitez, Roger T., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 738

Questionnaire .................................................................................................... 739

QUESTIONS AND ANSWERS 

Responses of Roger T. Benitez to questions submitted by Senator Durbin ........ 777

Responses of Richard Macias to questions submitted by Senator Durbin .......... 783

SUBMISSIONS FOR THE RECORD 

Carter, Harold D., Sheriff-Coroner-Marshal, El Centro, California, statement . 787

Contreras, Matias R., Judge of the Superior Court, California, statement ........ 788

Cortez, Ezekiel E., Federal Criminal Defense Attorney, San Diego, California, 

statement .............................................................................................................. 789

Cota, Raymond Ayala, Presiding Judge of the Superior Court, Imperial, California, statement .................................................................................................. 791

Donnelly, Donal B., Judge of the Superior Court, Imperial, California, statement ...................................................................................................................... 793

Flores, Poli, Jr., Attorney at Law, El Centro, California, statement .................. 794

Fox, Oren R., Reitred Sheriff-Coroner-Marshal, Brawley, California, statement ...................................................................................................................... 795

Hayward, Thomas A., Jr., and Richard M. Macias, on behalf of the Standing 

Committee on Federal Judiciary, American Bar Association, Washington, 

D.C., prepared statement .................................................................................... 799

Houston, John A., District Judge, Southern District of California, statement .. 810

Huff, Marilyn L., Chief Judge, U.S. District Court for the Southern District 

of California .......................................................................................................... 811

Jones, Jeffrey B., Judge of the Superior Court of the State of California, 

El Centro, California, statement ......................................................................... 816

Page

VIII

Keesal, Samuel A., Jr., Keesal, Young & Logan, Long Beach, California, 

letter ...................................................................................................................... 820

McDonough, Gregg L., Chief Public Defender, County of Imperial, El Centro, 

California, letter ................................................................................................... 821

Porter, Louisa S., Magistrate Judge, Southern District, California, statement . 823

Rivera, Eduardo A., Attorney at Law, California, statement .............................. 826

Rutten, Randy J., President, Imperial County Bar Association, El Centro, 

California, letter and attachment ....................................................................... 828

Terrazas, Jack, Mayor, City of El Centro, California, letter ................................ 830

Walker, Steven M., Attorney at Law, El Centro, California, letter ..................... 832

Wyatt, Gary, Chairman, Board of Supervisors, El Centro, California, statement and resolution ............................................................................................. 833

Yeager, Christopher W., Judge, Superior Court of California, El Centro, California, letter .......................................................................................................... 837

THURSDAY, MARCH 10, 2004

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 839

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

statement .............................................................................................................. 1044

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

statement .............................................................................................................. 1050

PRESENTERS 

Allen Hon. George, a U.S. Senator from the State of Virginia presenting 

Walter D. Kelley, Jr., Nominee to be District Judge for the Eastern District 

of Virginia ............................................................................................................. 841

Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Jane 

J. Boyle, Nominee to be District Judge for the Northern District of Texas .... 847

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Jane J. Boyle, Nominee to be District Judge for the Northern 

District of Texas ................................................................................................... 846

Jeffords, Hon. Jim, a U.S. Senator from the State of Vermont presenting 

Peter W. Hall, Nominee to be Circuit Judge for the Second Circuit ............... 843

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

Peter W. Hall, Nominee to be Circuit Judge for the Second Circuit ............... 844

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

G. Cooke, Nominee to be District Judge for the Southern District of Florida 846

Warner, Hon. John, a U.S. Senator from the State of Virginia presenting 

Walter D. Kelley, Jr., Nominee to be District Judge for the Eastern District 

of Virginia ............................................................................................................. 840

STATEMENTS OF THE NOMINEES 

Boyle, Jane J., of Texas, Nominee to be District Judge for the Northern 

District of Texas ................................................................................................... 985

Questionnaire .................................................................................................... 986

Cooke, Marcia G., of Florida, Nominee to be District Judge for the Southern 

District of Florida ................................................................................................. 935

Questionnaire .................................................................................................... 936

Hall, Peter W., of Vermont, Nominee to be Circuit Judge for the Second 

Circuit ................................................................................................................... 848

Questionnaire .................................................................................................... 850

Kelley, Walter D., Jr., of Virginia, Nominee to be District Judge for the 

Eastern District of Virginia ................................................................................. 887

Questionnaire .................................................................................................... 888

QUESTIONS AND ANSWERS 

Responses of Jane J. Boyle to questions submitted by Senator Leahy ............... 1036

Responses of Walter D. Kelley to questions submitted by Senator Leahy ......... 1039

Page

IX

SUBMISSIONS FOR THE RECORD 

Burlington Free Press, March 10, 2004, article .................................................... 1042

Douglas, James H., Governor, State of Vermont, Montpelier, Vermont, letter .. 1043

Hays, Susan, Chair, Dallas County Democratic Party, Appellate Lawyer, Waters & Kraus, LLP, and Marc Stanley, Dallas, Texas, letter ........................... 1047

Jeffords, Hon. Jim, a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 1049

Molberg, Kenneth H., Wilson, Williams & Molberg, P.C., Dallas, Texas, letter 1052

National Employment Lawyers Association, Terisa E. Chaw, Executive Director, San Francisco, California, letter .................................................................. 1054

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

support of Marcia Cooke, Nominee to be District Judge for the Southern 

District of Florida ................................................................................................. 1055

Texas Employment Lawyers Association, Katherine L. Butler, Chair of the 

Judicial Oversight Committee, Dallas, Texas, letter ........................................ 1057

Tillou, Kenneth B., Parr Waddoups Brown, Gee & Loveless, Salt Lake City, 

Utah, letter ........................................................................................................... 1058

United States Senate, August 1, 2003, news release and attachments .............. 1059

Walton, Kenneth E., II, President, Wilkie D. Ferguson, Jr., Bar Association, 

Miami, Florida, letter .......................................................................................... 1071

ALPHABETICAL LIST OF NOMINEES 

Benitez, Roger T., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 738

Boyle, Jane J., of Texas, Nominee to be District Judge for the Northern 

District of Texas ................................................................................................... 985

Cooke, Marcia G., of Florida, Nominee to be District Judge for the Southern 

District of Florida ................................................................................................. 935

Duffey, William S., Jr., Nominee to be District Judge for the Northern District of Georgia ..................................................................................................... 364

Gruender, Raymond W., Nominee to be Circuit Judge for the Eighth Circuit ... 8

Hall, Peter W., of Vermont, Nominee to be Circuit Judge for the Second 

Circuit ................................................................................................................... 848

Kelley, Walter D., Jr., of Virginia, Nominee to be District Judge for the 

Eastern District of Virginia ................................................................................. 887

Martinez, Ricardo S., Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 29

Myers, William Gerry, III, Nominee to be Circuit Judge for the Ninth Circuit . 280

Pratter, Gene E.K., Nominee to be District Judge for the Eastern District 

of Pennsylvania .................................................................................................... 59

Robart, James L., Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 617

Sanchez, Juan R., Nominee to be District Judge for the Eastern District 

of Pennsylvania .................................................................................................... 657

Stengel, Hon. Lawrence F., Nominee to be District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 405

Sykes, Diane S., Nominee to be Circuit Judge for the Seventh Circuit .............. 587

Van Antwerpen, Franklin S., Nominee to be Circuit Judge for the Third 

Circuit ................................................................................................................... 229

Wake, Neil Vincent, Nominee to be District Judge for the District of Arizona .. 110

(1)

NOMINATIONS OF RAYMOND W. GRUENDER, 

OF MISSOURI, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE EIGHTH CIRCUIT; RICARDO S. MARTINEZ, OF WASHINGTON, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF WASHINGTON; 

GENE E.K. PRATTER, OF PENNSYLVANIA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA; 

AND NEIL VINCENT WAKE, OF ARIZONA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF ARIZONA 

THURSDAY, JANUARY 22, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:00 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jon Kyl, presiding. 

Present: Senators Kyl, Specter, Craig, and Durbin. 

OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR 

FROM THE STATE OF ARIZONA 

Senator KYL. Let me call this meeting of the Senate Judiciary 

Committee to order just one or two minutes early, and if there are 

members of the dais here who come at 10 o’clock, then I will afford 

each of them an opportunity to speak. But let me just tell you generally that I am very pleased to have all of you here. We are going 

to consider the nominations of three candidates nominated by the 

President for Federal district court and one for the Circuit Court 

of Appeals. 

We will begin with introductory statements from Senators or 

Representatives who wish to introduce candidates from their State. 

Following all of those introductions, we will then call the panelists 

en banc, if there is no objection, to the table for their opening statements and then questioning from members. 

We will also, I want to make clear, afford everyone an opportunity to introduce friends and family who may be here today. This 

is an important event, and I think that every one of the nominees 

here should be very, very proud to be here, and the family and 

friends who are here I am sure are equally proud to be here today 

2

in support of their family or friend who has the important distinction of being nominated by the President of the United States to 

serve on the Federal judiciary. And that is why I think it is especially appropriate and it is the custom of the Committee to recognize those who are here in the audience to share in the hearing 

today. 

I want to make one preliminary comment, too. The hearing for 

nominees almost always is not the kind of formal affairs that you 

sometimes see on television or you perhaps have seen in a case of 

a very controversial nominee. And that is because most of the 

nominees are not very controversial. The reason for that is that 

there is an extensive vetting process, and those of you who have 

been nominated know exactly of what I speak. You have got to fill 

out so many forms. You have got to have so many interviews. You 

have got to be considered by the White House Office of Legal Counsel, the Attorney General, the American Bar Association. 

This Committee and its staff have already engaged in an extensive investigation, and basically when the Committee staff and 

Committee members conclude that the nominee is well qualified 

and does not need to undergo a great deal of public scrutiny in this 

hearing, then the hearing can go very well. 

But I do not want you in the audience to assume that because 

this hearing is likely to fall into that category that members do not 

care, or that the fact that there are not other Senators here is a 

sign that they do not care. What you should be appreciative of is 

the fact that there has been a great deal of preliminary work that 

has gone into the vetting of these nominees, all of whom have been 

found very qualified. And that is the reason why you are not likely 

to see a lot of fireworks here today and it may seem to be a little 

bit more pro forma. But you should not take from that a lack of 

interest but, rather, be very proud of the people who have been 

nominated because they have been found to be very qualified and 

without significant controversy. At least I hope that is the way the 

hearing here will go today. 

Now, let me begin by calling on those Senators or Representatives who are here to make introductions, and our colleague, a 

member of the Senate leadership, Senator Rick Santorum of Pennsylvania, is the first to arrive. Therefore, Senator Santorum, the 

floor is yours. 

PRESENTATION OF GENE E.K. PRATTER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Senator Kyl, and I want to echo 

your remarks about the fine work that this Committee does in reviewing candidates and making recommendations, and I am confident that the person I am going to introduce will be one such noncontroversial nominee. 

Gene Pratter is a lawyer’s lawyer. She is someone who has come 

with the highest recommendations from all of the bar associations 

in southeastern Pennsylvania and from lawyers from the left to the 

right. She is someone who has really invested her career in the law 

and has contributed greatly to it and to the bar in Philadelphia. 

3

She has also done, as you would expect of someone who is very 

proficient, she has lent her abilities to numerous non-profit organizations and has contributed greatly to the community, greatly to 

her law school, which is the University of Pennsylvania, one of the 

finest law schools in the country, which we are very proud of. 

This is the first chance, I just want you to know, to be able to 

introduce a nominee from Pennsylvania first, and I want to thank 

you for starting early because this is truly an honor for me, because Senator Specter, as my senior Senator, always goes first, as 

he should. But it is a pleasure for me to be the first to comment 

on Gene Pratter, and she is an exceptional individual. She will be 

an exceptional judge and someone who I have gotten to know over 

the years from the outstanding work that she has done, not just 

legally but for the community. And I am honored to be here today 

to recommend her to the Committee. 

With that, I will defer to my colleague to give all the particulars, 

which he is very good at doing, and to make whatever comments 

that he would like to make. 

Senator KYL. Thank you, Senator Santorum, and let me call on 

Senator Specter, a member of this Committee, in just one moment. 

I was remiss in not doing one thing, and then I would also like to 

do another. 

The scorecard, since we do not pass it out, I will give to you now, 

and that is that, again, without objection, we will consider all of 

the nominees on one panel. First on the panel will be Raymond W. 

Gruender, to be United States Circuit Judge for the Eighth Circuit. 

And then the other three nominees for Federal district courts are: 

Ricardo S. Martinez, to be United States District Judge for the 

Western District of Washington; Gene E.K. Pratter, to be United 

States District Judge for the Eastern District of Pennsylvania—just 

introduced by Senator Santorum; and Neil Vincent Wake, to be 

United States District Judge for the District of Arizona. And I will 

have some comments about Neil Wake in just a moment. 

Secondly, I would like to, without objection, submit a statement 

by the Ranking Member of the Committee, Senator Leahy, for the 

record. Without objection, it is submitted. 

Senator Specter, the floor is yours. 

PRESENTATION OF GENE E.K. PRATTER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chairman. I am delighted to be here with my distinguished colleague, Senator 

Santorum, to formally introduce Ms. Gene Pratter to this Committee. I regret being a trifle late. I compliment you, Mr. Chairman, on opening on time—practically a violation of the rule of the 

Committee on the Judiciary to open on time. But I am chairing a 

hearing of the Subcommittee on Labor, Health, Human Services, 

and Education, so I will be brief. 

Gene Pratter brings very extraordinary credentials to this position. She is a graduate of Stanford University with honors, 1971; 

a J.D., University of Pennsylvania, 1975. She practices as a general 

partner with the distinguished law firm of Duane, Morris and 

4

Heckscher in Philadelphia, where she has taken on the role of 

being a lawyer’s lawyer in handling matters of unique complexity. 

She is a member of all the appropriate bar associations. She has 

very extensive contributions to the community and brings really extraordinary qualifications to the United States District Court for 

the Eastern District of Pennsylvania. 

Senator Santorum and I have continued the tradition which Senator Heinz had begun many years ago of a bipartisan nominating 

panel so that the people who come forward have credentials over 

and above what may customarily be involved in the selection of a 

Federal judge. 

I see Senator Murray waiting, so I will be brief so that I can return to my other commitments. But I think it is a bright day for 

the Federal bench to have someone of Ms. Pratter’s qualifications 

ascend to this position. 

Thank you, Mr. Chairman. 

Senator KYL. Thank you very much, Senator Specter. And it 

should be obvious that we are on multiple assignments this morning, and I appreciate, Senator Specter, your ability to be here to 

make that introduction. 

Since Senator Murray is here, Senator Murray, let me call upon 

you next for the purpose of an introduction. 

PRESENTATION OF RICARDO S. MARTINEZ, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A U.S. SENATOR FROM 

THE STATE OF WASHINGTON 

Senator MURRAY. Well, thank you very much, Mr. Chairman. I 

really appreciate your willingness to do that and your accommodation this morning, and also to the other members of the Committee. 

Mr. Chairman, 48 years ago, a young boy was picking strawberries on a Washington State farm for 75 cents an hour. Today, 

that man stands before the United States Senate after more than 

20 years of distinguished legal service, ready to be confirmed as the 

next U.S. District Court Judge for the Western District of Washington State. His name is Ricardo Martinez, and I am here today 

to offer my full support for his speedy confirmation. He will be the 

first Latino to serve as a district court judge in Washington State’s 

history. 

Senator Cantwell and I worked with President Bush to select 

Judge Martinez from a list of very qualified candidates, and today 

I am proud to be here to introduce him before the Senate Judiciary 

Committee. I want to especially welcome his family to the Senate 

today: his wife, Margaret, and their three daughters, Lela, Jessica, 

and Gabriela. I know they are very proud of their dad today. And 

I know that back in Washington State there are many people who 

have worked with him over the years who share their pride. 

Mr. Chairman, I have met with Judge Martinez, and I have been 

very impressed by his professionalism, his decency, and his experience. It is no wonder that he has the strong support of a wide 

group of attorneys and community leaders throughout Washington 

State. 

There are many things I could say today about Judge Martinez. 

I could tell you about his education, that he was first in his family 

5

to go to high school, and that he earned undergraduate and law degrees from the University of Washington. I could tell you about his 

distinguished legal career, his 10 years as a prosecutor for King 

County or more than 8 years as King County superior court judge. 

And I could tell you about his current work as magistrate judge for 

the Western District of Washington, a position he has held for 5 

years. 

Or I could tell you about his innovative and thoughtful work 

helping people break their addiction to drugs and crime. Judge 

Martinez, in fact, helped create the first drug diversion court in the 

State of Washington and served as one of its first judges. This innovative court gives drug-addicted defendants an alternative to incarceration and has helped graduates kick their habits and lead 

productive lives. For years, Judge Martinez worked tirelessly to ensure the success of this treatment option. 

Or I could tell you about his generous sense of community service, from his work on the Washington State Sentencing Guidelines 

Commission, the Minority and Justice Commission, to coaching soccer and basketball for the Redmond-Kirkland Boys and Girls Club. 

I could tell you all of those things, but instead I would like to 

share with you and this Committee something that Judge Martinez 

himself said to the Seattle Times in August. He told the newspaper, ‘‘I’ve always considered myself extremely lucky. I was driving through Snohomish County the other day, and I saw some migrant farm workers along the road. And I said to myself, ‘You 

know, I’m not far removed from them.’’’ 

Judge Martinez has been lucky, but he has also made his own 

luck by working hard and giving back to our State. He has earned 

everything that has come his way, and I believe he has earned a 

seat as our next district court judge. His fairness, thoughtfulness, 

and compassion set a great example for so many people in our 

State, and I am proud to support his confirmation before the Senate Judiciary Committee. 

Mr. Chairman, Senator Cantwell could not be with us this morning. She asked that I submit her statement for the record as well. 

Thank you very much. 

Senator KYL. Thank you, Senator Murray. It will be submitted, 

and thank you for that excellent opening statement. 

Senator Larry Craig has joined us. If you do not have an opening 

statement, I will— 

Senator CRAIG. I do not. 

PRESENTATION OF NEIL VINCENT WAKE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA, BY HON. 

JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA 

Senator KYL. Okay. Senator Bond from Missouri is allegedly on 

his way, and I think he has an introduction. So in the meantime, 

to keep the hearing moving, let me give you an introduction, which 

is of one of the nominees from the State of Arizona, which I represent. And Senator McCain joins me in expressing appreciation to 

President Bush for nominating Neil Wake for the Federal District 

Court in Arizona. 

Neil is an Arizona native. He practiced law for 29 years in Phoenix as a partner in several law firms and recently a sole proprietor 

6

of his firm. He received a bachelor’s degree with honors from Arizona State University and a law degree cum laude from Harvard 

University, where he was a member of the Harvard Civil Rights 

and Civil Liberties Law Review. 

His practice has focused primarily on civil matters and appellate 

work. He practiced exclusively in Federal and State courts, including the United States Supreme Court, and has been involved in a 

variety of continuing legal education programs and publications, including articles in the fields of administrative law and appellate 

procedure. 

He has received a great deal of recognition from his peers. Since 

1989, he has been listed in the Best Lawyers of America for Business and Appellate Litigation. That is from recommendation of 

other lawyers, and about 1 percent of the lawyers are recognized 

in that fashion. Since 1993, he has been a fellow of the American 

Academy of Appellate Lawyers, a society of fewer than 300 members nationwide who are admitted by invitation only and after 

careful investigation. 

Senator Bond, please take the dais, and I will call on your in just 

a moment. I was just completing the introduction of a candidate 

from Arizona. 

Neil Vincent Wake was honored by the American Bar Association’s Standing Committee on the Federal Judiciary by unanimously giving him the highest evaluation of well qualified for the 

appointment as judge of the United States District Court. He has 

a variety of civic activities and bar associations achievements, including being a founding member and current Chairman of the 

State Bar’s Indian Law Section and Appellate Practice Section, 

served five times as judge pro tem of the Arizona Court of Appeals. 

He and his wife, Shari, and other parents founded the ICU Care 

Parents, a support group for parents of critically ill newborns. And 

knowing Neil and Shari very well, I can attest to a variety of other 

important community contributions that they have made. 

They are the parents of three sons, and I know that Neil Wake 

will be proud to introduce his family in a moment as well. 

As I said, Senator McCain joins me in expressing appreciation to 

the President for his nomination of Neil Vincent Wake. 

Now we are joined by Senator Chris Bond of the State of Missouri. Senator Bond, the floor is yours. 

PRESENTATION OF RAYMOND W. GRUENDER, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. CHRISTOPHER BOND, A U.S. SENATOR FROM THE STATE OF MISSOURI 

Senator BOND. Thank you very much, Mr. Chairman, Senator 

Craig, members of the Committee. It is a real pleasure for me to 

be here today to introduce to you and present to you a good friend, 

fellow Missourian, Ray Gruender, who has been nominated to serve 

on the Eighth United States Circuit Court of Appeals. 

I have known Ray both personally and professionally for many 

years. He is an excellent lawyer. I am just delighted that the President nominated him for this position. I am confident that the Committee, after you review his credentials and listen to his responses, 

7

will conclude that Ray is not only well qualified for the bench but 

he will be a tremendous addition to the Federal judiciary. 

I do not need to tell you the United States Courts of Appeals are 

extremely important, and the decisions that come before these 

courts have impacts on every aspect of society. And I think that we 

should have only the finest, most qualified jurists serving on these 

bodies. And certainly Ray fits that qualification. 

Ray enjoys the respect of the Missouri legal community. Many 

have told me, in recommending his nomination, that Ray’s demeanor, his willingness to listen, and his very clear intellect are 

great qualifications. 

He has an abundance of many other qualities that elevate him 

as one who is not only qualified through experience, but his work 

ethic and humility. I believe, as I think most Missouri lawyers do, 

that Ray will be a judge who is thoughtful, careful, approachable, 

and one who will respect the role of a judge and the restraint imposed upon the judiciary by the Constitution. 

Ray currently serves as the United States Attorney for the Eastern District. He has been there since May of 2001. He supervises 

60 attorneys in a jurisdiction that is both urban, suburban, and 

rural, with all the challenges that come with such a demographic 

makeup. 

As U.S. Attorney, he has embarked on a campaign of aggressive 

prosecution of Federal gun violations. The largest city in his jurisdiction, St. Louis, has an unfortunate legacy of violent crime. But 

I believe in no small part due to the aggressive efforts of the U.S. 

Attorney’s Office under Ray Gruender’s jurisdiction, there has been 

a tremendous reduction in the number of murders, the number of 

homicides in St. Louis. Ray is taking the gun-toting felons off of the 

street, and it is a very clear remedy, and he has applied it very 

well. 

But Ray has also practiced law for 17 years. He has great experience as a private attorney. He worked as a partner in a well-respected Missouri firm, spent many hours in Federal court and 

State court representing clients on criminal and civil matters, including admiralty, antitrust, contracts, employment, securities 

fraud, banking, and a number of tort claims. 

But just to give you a snapshot of his personal qualities, as a 

graduate of Washington University in St. Louis, Ray earned his degree and an MBA and a law degree in only 6 years, finishing 

strongly in all, while working and putting his way through school. 

He rose from humble beginnings to become U.S. Attorney, and I 

think that he would make a great addition to the United States 

Court of Appeals for the Eighth Circuit. 

I thank you, Mr. Chairman, members of the Committee, for 

scheduling this hearing. I hope that you will be able to move this 

nomination quickly and that we can get him confirmed yet this 

year. 

Senator KYL. Thank you very much, Senator Bond. I think it is 

important that we have had people introduce these candidates who 

know them personally, and that is a very important contribution to 

the hearing record. So thank you very, very much, Senator Bond. 

Now, unless there are any other introductory statements—and I 

know all of the Senators who have made introductory statements 

8

will have to go to other duties here, so we will allow Senator Bond 

to exit, and then I will call each of the nominees forward. And, 

again, without objection, we will consider all of the nominees as 

one panel. 

Hearing none, then let me ask the following people to come to 

the dais, and would the staff please get the proper name tags here 

for us? Raymond Gruender, Ricardo Martinez, Gene E.K. Pratter, 

and Neil Vincent Wake. 

Actually, before you sit, would you all stand and let me swear 

you in, if I could. Do you all swear to tell the truth, the whole 

truth, and nothing but the truth, so help you God? 

Mr. GRUENDER. Yes. 

Judge MARTINEZ. Yes. 

Ms. PRATTER. Yes. 

Mr. WAKE. Yes. 

Senator KYL. Thank you. Now, that includes with regard to your 

family members here. 

[Laughter.] 

Senator KYL. I am going to ask each of you to take an opportunity to make an opening statement, if you would like, and certainly to introduce friends and family who are here. And, Raymond 

Gruender, let me begin with you and welcome you to this hearing. 

I would ask you to make any statement you would like to make, 

and make those introductions at this time, if you would like. 

STATEMENT OF RAYMOND W. GRUENDER, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT 

Mr. GRUENDER. Thank you, Mr. Chairman. 

Very briefly, I’d like to thank the Committee for arranging this 

hearing today. I’d also like to thank President Bush, both for allowing me to serve and nominating me to serve as the United States 

Attorney for the Eastern District of Missouri, as well as this nomination pending today. 

I’d also like to thank Senator Bond for his kind remarks on my 

behalf, and, finally, I’d like to introduce my family members that 

have come. 

Senator KYL. Please. 

Mr. GRUENDER. My wonderful wife, Judy, is behind me to my 

left. 

Senator KYL. Please stand as he introduces you. That is good, 

and remain standing so we can give you a round of applause here 

at the end. 

Mr. GRUENDER. And her mother, Jeannette Calhoun; and to my 

right is my mother, Sharon Gruender; and my good friend, Sharon 

Lentin, who recently got married. Thank you. 

Senator KYL. Well, thank you all very much, and I would like to 

give these people who are obviously good supporters of Mr. 

Gruender a round of applause for your being here today. Thank 

you. 

[Applause.] 

Senator KYL. The role of those in support of the nominees is appreciated by us all, I can assure you. 

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Senator KYL. Judge Martinez, we are delighted to have you here. 

It was a wonderful introduction that you received, and now is your 

opportunity to make any opening statement you would like and introduce members of your family or friends who are here today. 

STATEMENT OF RICARDO S. MARTINEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON 

Judge MARTINEZ. Mr. Chairman, thank you so very much. I have 

no opening statement. However, I would love to introduce my family. 

Senator Murray already told you about my wife and children, but 

let me have you meet them. First of all, my wife, Margaret; my oldest daughter, Lela, who is a student at Howard University right 

here in D.C.; my daughter, Jessica, graduating from high school 

this year and getting ready to play Division I soccer next year for 

Washington State University. 

Senator KYL. Getting a plug in there for you, I can see. 

[Laughter.] 

Judge MARTINEZ. And my youngest daughter, Gabriela. 

Also present today, my brother and sister-in-law, Walter and 

Cynthia Morris; their son, Walter Morris III; my other sister-in-law 

who flew in this morning from San Francisco, Alice Morris; and a 

friend and classmate of my daughter here at Howard University, 

Mr. Omar Raheem. 

And, finally, in the back, the woman who makes my presence 

here possible because she is a friend, a colleague, and one of my 

mentors from out of my court. When she took the job as Director 

of the Federal Judicial Center, that is when this vacancy opened 

up. Judge Barbara Jacobs Rothstein. 

Senator KYL. Great. Well, thank you all very much for being here 

in support of Judge Martinez. 

[Applause.] 

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Senator KYL. I am going to interrupt just briefly, if we could, because Senator Jim Talent from Missouri is here, and I think he will 

want to follow the kind introduction that Senator Bond made for 

Mr. Gruender. And then I am going to turn the gavel over to Larry 

Craig for just a moment here while I have to take a call. So if we 

could just interrupt the process here and, Senator Talent, the floor 

is yours. 

PRESENTATION OF RAYMOND W. GRUENDER, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. JAMES 

TALENT, A U.S. SENATOR FROM THE STATE OF MISSOURI 

Senator TALENT. Well, I thank you, Mr. Chairman, and I am 

grateful to the witnesses for allowing me to—well, let’s just say it—

interrupt here for a minute or two and to have an opportunity to 

say a few words about a good friend and a good man whom the 

President has nominated to the court of appeals. 

I know Senator Bond wanted to—he and I kind of fought over 

who would get to say the most about Ray, and he went on, I know, 

at some length in going through Mr. Gruender’s qualifications and 

his background, his beginnings, the way he worked his way 

through Washington University, through the law school there, his 

outstanding performance as a private attorney, his work as the 

United States Attorney, his faithful adherence to the law, and his 

faithful enforcement of the law for a number of years. I do not 

know a person who is more honest and who has more integrity in 

his private dealings as well as his public dealings. He is a man of 

great compassion. 

One of the reasons I got to know Ray was his involvement in an 

issue that I have also been involved with over the years, at least 

marginally, in private life but also in public life, his work as the 

board president of ALIVE, which is a group that promotes alternatives to living in violent environments for people who have been 

the victims of domestic abuse. He is a well-rounded person, a great 

lawyer, a person who I am convinced, Mr. Chairman, and I hope 

the Committee and the Senate come to believe will render unbiased 

and unprejudiced judgments in the cases that come before him, according to his lights, who will be consistent in application of his jurisprudence without regard to outcome, and who will be faithful in 

interpreting the Constitution and the laws. 

I just think he is a great nomination, and I hope that the Committee will proceed expeditiously to approve him. 

Senator KYL. Thank you very much, Senator Talent. 

Incidentally, Judge Martinez, you had indicated you had a statement, and you introduced your family first. If you want to make 

any other remarks, you are certainly welcome to do so at this time. 

Judge MARTINEZ. No, thank you, Mr. Chairman. What I said was 

I had no opening statement. 

Senator KYL. Oh, I am sorry. 

Judge MARTINEZ. And it is a tremendous honor and privilege to 

be here today. 

Senator KYL. Okay. Thank you. 

Gene Pratter, welcome, and likewise you can make an opening 

statement and introduce friends and family, if you would like. 

59

STATEMENT OF GENE E.K. PRATTER, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Ms. PRATTER. Thank you, Mr. Chairman. While I do not have an 

opening statement, I would like to take the opportunity to thank 

you for having the hearing. I am thrilled to be here, and I am even 

more thrilled to introduce to you my family and two of my colleagues. 

First, my husband, Bob Pratter, Robert Pratter; our daughter, 

Paige Pratter, who works here in Washington, D.C., clerking for a 

district court judge on the Federal court here; and our son, Matthew Pratter, a freshman at Duquesne University. He is particularly happy to be here in his brand-new shoes. My partner, Sheila 

Hollis, who practices at Duane Morris’ Washington, D.C., office. 

Sheila, will you stand? There she is. And my long-time legal assistant, Rose Barber, who took the train early this morning to be here, 

and I can’t tell you how important Rose has been to me and to my 

family over the last decade. 

Senator KYL. We thank you all for being here. 

[Applause.] 

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Senator KYL. As I said, that is a testament. We understand that 

none of us are here without the support of a lot of other folks, and 

it is nice to be able to recognize them. 

Neil Vincent Wake, opening statement and/or introduce members 

of your contingent here. 

STATEMENT OF NEIL VINCENT WAKE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA 

Mr. WAKE. Thank you, Mr. Chairman. I have no opening statement, but I, too, want to thank President Bush for submitting my 

name, and I want to thank this Committee and the Senate for their 

consideration of my nomination. 

I also want to express my thanks to Senator McCain and to you, 

Mr. Chairman, for your support as well. 

I’d like to introduce my family. I’ve got a pretty good contingency 

here because I have eight brothers and sisters, and a fair number 

of them are here. 

First let me start with my wife, Shari Capra. And my brother, 

Dan Wake. Dan is the other lawyer in the family, from Denver. 

And my sister, Joy Wake. And another brother, Ward Wake. And 

also Ward’s family, his wife, Syllvette Wake, and—she may have 

stepped out. She stepped out. Oh, well. The reason she probably 

stepped out is because of the children that she brought: Chantall, 

who is perhaps not here either, and Aiden, who is only 1 year old. 

So that probably— 

Senator KYL. She is excused. 

[Laughter.] 

Mr. WAKE. And I also have some very dear friends that I’d like 

to introduce: Dr. Karen Rigamonti and her daughter, Eva 

Rigamonti. They are very dear friends of ours from Phoenix, who 

have lived in Baltimore for quite a while, and they have come 

down. I want to express my thanks to all of them for being here. 

Senator KYL. Thank you all very much for your attendance here 

today. 

[Applause.] 

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Senator KYL. Now, before we begin questioning, I note the presence of Senator Durbin of Illinois. And, Senator Durbin, if you have 

any statement to make, you are certainly welcome to do so. 

Senator DURBIN. No, Mr. Chairman. I will waive an opening 

statement. 

Senator KYL. Thank you very much. 

Well, then, the floor is open for questions, and I will begin by 

calling on Senator Craig. 

Senator CRAIG. Thank you very much, Mr. Chairman. Let me ask 

this question of all of you, and you can, obviously, we will start 

over here with you and move across. 

If the Supreme Court reached a decision that you believe was 

fundamentally erroneous, would you follow that precedent or apply 

your own judgment to the issues of the law placed before you? 

Mr. GRUENDER. Senator, thank you for the question. 

The answer to that is crystal clear. Despite any beliefs that I 

might have, I would be required, as an inferior court judge, to 

apply the precedent of the Supreme Court, and I would in fact do 

so. 

Judge MARTINEZ. Thank you, Senator. 

As a judge now for the last 14.5 years or so, I have always done 

exactly that. My own personal beliefs play no part in how I apply 

the law that has been decided by the superior courts. 

Ms. PRATTER. Senator, if I am fortunate enough to be confirmed, 

it would be my obligation, and an obligation I would follow, to follow the Supreme Court precedent. 

Mr. WAKE. Senator, thank you for the question. 

It is essential to the system that lower court judges following the 

controlling authority from higher courts. So, of course, if I were 

confirmed as a judge, I would follow the letter and the spirit of the 

precedents that are laid down, regardless of my own views. 

Senator CRAIG. Well, thank you all. There are some on this Committee who struggle with the idea that you must give the exact, 

correct answer to their philosophy or attitude on a given issue to 

be, by their decision, a judge. I do not approach reviewing nominees that way and never have. I have always felt what is important 

is the intellect, the experience and the temperament. 

So let me ask one more question of all of you. What do you think 

is the most important attribute of a judge? 

Mr. GRUENDER. Senator, I believe there are several attributes 

that are very important. I think a level of academic ability and integrity are very important, a broad exposure to the law and an understanding of the law and, probably even more importantly, a willingness to do the hard work that is required to understand the 

facts underlying a case and then to get a clear understanding of 

the applicable law and apply it, and then, in addition, demeanor, 

the willingness to come into it with an open mind, to listen to both 

sides, and to fairly and honestly assess and apply the law. 

Senator CRAIG. Thank you. 

Judge Martinez? 

Judge MARTINEZ. Thank you, Senator. 

It is very difficult for me to add anything to the list of attributes 

that he has just indicated. I would say that, in my experience, both 

as a litigator and as a judge, I have always believed, sir, that it 

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is absolutely critical that anyone who puts on a black robe understand how important their demeanor is. Courteousness is critical. 

You must listen. You must be patient, never embarrass anyone; 

that is, is the lawyers, the litigants, witnesses, jurors, court staff, 

anybody else in there. I have always tried to live my life exactly 

in that fashion. I can promise you I would do the very same thing 

in the future if I was lucky enough to be confirmed. 

Ms. PRATTER. Thank you, Senator, for the opportunity to add to 

that fine list of attributes we have listened to so far, to which I 

would only add the importance, I believe, of the role of having a 

good sense of humility that a judge, I believe, should have. 

Senator CRAIG. Thank you. 

Mr. WAKE. Thank you, Senator. 

I must accept and agree with everything that has been said by 

the others, and it is a little difficult to add to what has been said 

so well. Let me say only two things: 

Obviously, there are a group of essential qualities, and the failure of any one of those qualities can diminish the quality of justice. 

If I were to point to one in particular, it would be patience and 

open-mindedness in one’s work and private and in one’s dealings 

with litigants and lawyers before the Court, and that patience and 

open-mindedness is what can leave people with the sense that 

whether they won or lost, they were treated fairly and that the system works, and that is very much within the control of the judge, 

more than anyone else. 

Thank you. 

Senator CRAIG. Well, I thank you all very much. 

One last comment, and it is to you, Judge Martinez. To have a 

daughter at Washington State University is a bit of a frustration 

to me. I am a Vandal from the University of Idaho, eight miles 

away. 

[Laughter.] 

Senator CRAIG. Mr. Chairman, there is a tradition between those 

two schools that has frustrated me for some time, and as a result 

of that I just do not care for cougars. 

[Laughter.] 

Senator CRAIG. And that is that when those two universities 

played, the losing university student body president had to walk 

the eight miles and wash the feet of the victor. I have walked that 

eight miles. 

[Laughter.] 

Senator CRAIG. Good luck on your soccer program at Washington 

State. 

Thank you, Mr. Chairman. 

Senator KYL. Thank you, Senator Craig. 

Senator Durbin? 

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

thanks to all who have gathered here today. 

Senator Craig has asked a number of questions which I think are 

very important, having been a lowly attorney practicing before Federal judges in my life, I like to, at least I hope that the plea for 

humility is one that is felt on that side of the table, as well as on 

this side of the table. I think it is very important in public service. 

169

Mr. Gruender, I would like to ask you a few questions, if I can, 

about an incident which occurred after you were designated as the 

United States Attorney, involving a resolution passed by the University City, Missouri, City Council concerning the PATRIOT Act. 

You responded, if I am not mistaken, in an open letter critical of 

this City Council action. It is my understanding that about 200 

communities in 34 different States have expressed their concern 

and take an exception to the PATRIOT Act. I have had conversations with my U.S. Attorney in Chicago, Pat Fitzgerald, about this 

act, and he has testified before this Committee. 

But I am concerned about some of the rhetoric which was contained in your letter, and I would like you to explain it. You were 

quoted as saying in that letter that ‘‘resolutions that are grounded 

in misinformation, such as the one adopted by the University City 

Council, accomplish little to protect civil liberties and can jeopardize public safety.’’ You went on to say, ‘‘The Council’s action, 

which appears to have been made without the benefit of facts,’’ has 

potentially grave consequences. And you wrote that the resolution 

put ‘‘lives in jeopardy, puts all citizens at risk and might cause a 

‘catastrophic’ loss of life.’’ These were your words. 

We have really jealously guarded the right of dissent and disagreement in America. And even when popular Presidents have 

said and done things, we have said that it is the right of American 

citizens to disagree publicly with that policy. 

Not that long ago Attorney General Ashcroft came and testified 

before this Committee relative to his critics, and basically said, and 

I quote from the Judiciary Committee testimony as follows. This is 

Attorney General Ashcroft. ‘‘To those who scare peace-loving people 

with phantoms of lost liberty, my message is this: Your tactics only 

aid terrorists, for they erode our National unity and diminish our 

resolve. They give ammunition to America’s enemies and pause to 

America’s friends. They encourage people of good will to remain silent in the face of evil.’’ 

The tenor of your letter, seems to me, to be very close to the message of General Ashcroft, which is that the critics of this Government, and the critics of the PATRIOT Act, are, in fact, aiding and 

abetting terrorism. Do you believe that? 

Mr. GRUENDER. Senator, with respect to the University City resolution, I felt the need to respond to that, based on the fact that the 

University City Council never sought any input from any other 

sources, apparently—no one on behalf of the Government. My office, the U.S. Attorney’s Office, was never contacted to provide information about the PATRIOT Act. The resolution, on its face, was 

based upon what I believe to be wrong statements about the PATRIOT Act that, as you know, was overwhelmingly passed. 

I do not mean to suggest, by any means, that people are not allowed to criticize the Government or the PATRIOT Act or anything 

else. But as an example, the sort of statements that were made 

during that debate were that the Government now had the right 

to obtain a search warrant without judicial approval, which is simply untrue; that we had the right to or the ability to obtain wiretaps without court approval, again, simply not true. 

It was based on those sort of statements that I thought needed 

to be corrected. And then the University City Council went the adVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00181 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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ditional step of telling its Police Department not to cooperate with 

Federal authorities, and they did qualify that by saying, if they 

thought that there were constitutional violations happening as a 

result. That troubled me because, clearly, the preamble, the sections above that were inaccurate about the PATRIOT Act would 

lead a police chief or a line officer, perhaps, to believe that we were 

violating constitutional rights, which simply was not true or that 

the PATRIOT Act, on its face, did that. 

So I felt the need to correct that, and had the additional concern, 

as, Senator, I am sure you remember the hearings with respect to 

September 11th and the issues of connecting the dots, after September 11th the U.S. Attorneys, amongst others, were given the 

tremendous responsibility of preventing and disrupting terrorism. 

And I thought it was very important that we have a coordinated 

effort at all levels of law enforcement—State, local and Federal—

work together to share information. 

You may also know that a part of the letter that I wrote acknowledged the importance of civil rights and civil liberties and, indeed, I think I pointed out in that letter that, as Federal law enforcement officers, we were sworn to uphold and protect civil rights 

and civil liberties and, in fact, took that very seriously. 

Senator DURBIN. Mr. Gruender, I could understand if your public 

comment was that the University City, City Council was wrong 

and did not understand the PATRIOT Act and misinterpreted it, 

but your language went a step beyond that and said that their action put lives in jeopardy. That, to me, suggests that you have gone 

beyond disagreeing with them. 

Do you really believe that that City Council ordinance was in any 

way aiding or abetting terrorism, putting lives in jeopardy in Missouri or any other place? 

Mr. GRUENDER. Senator, by no means do I mean to suggest that 

it purposefully was done with that purpose, absolutely not. However, I do think that if a police officer in University City obtained 

information about a potential cell that was operating in its jurisdiction, and for some reason hesitated to share that information with 

the FBI, with the Joint Terrorism Task Force, I think there are 

some potential dangers there, and I do believe that it could result 

in catastrophic, I mean, hopefully not along the lines of what we 

saw on September 11th, but I certainly do not want to be the U.S. 

Attorney in Eastern Missouri and have something like that happen 

in St. Louis, for instance. 

Senator DURBIN. Would you feel that, if your nomination is approved to the Circuit Bench, that it would be appropriate for you 

to recuse yourself in cases involving interpretation of the PATRIOT 

Act? 

Senator DURBIN. Senator, I do not think that I have reached any 

opinions or conclusions about the constitutionality of any particular 

provision of the PATRIOT Act. Of course, what I would do is look 

at the statute applicable. I believe it is 28 U.S.C. 455. I would also 

look at the Code of Judicial Ethics and see if there are any grounds 

upon which I should recuse myself, but as I sit here today, I do not 

think that there would be. 

Senator DURBIN. Mr. Chairman, I do not want to go—I have a 

few other questions relative to the PATRIOT Act, but I want to cerVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00182 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
171

tainly give other members or yourself a chance to question, and I 

can do it in a second round, if it would be appropriate. 

Senator KYL. I appreciate that. We have tried to proceed here a 

little bit in variance with our traditional procedures, simply to give 

everybody a chance to introduce folks and move forward. I have 

just some general questions, and therefore I would be pleased if 

you want to just continue and not be concerned about the time constraints, at least at this point. 

Senator DURBIN. Thank you. I do not want to abuse the Committee, and I thank you for your kindness in allowing me. 

Mr. Gruender, let me go a little bit further then in these questions involving the PATRIOT Act. In a commentary submitted to 

the St. Louis Post Dispatch on February 14th last year, you asserted that the U.S. PATRIOT Act did not permit new, warrantless 

searches, seizures and wiretaps, and I think you have said as much 

this morning. 

Further, you stated that ‘‘judicially issued independent determinations of probable cause remain the necessary legal standard.’’ 

Under Section 505 of the USA PATRIOT Act, national security 

letters, which are issued by FBI officials without a court order, can 

now be used to compel production of business records if the Court 

certifies they are ‘‘sought for a terrorism or national security investigation. Records demanded can include any record pertaining to 

the customer’s relationship with the institution.’’ 

Now, before the PATRIOT Act, the FBI had to have reason to believe that the records being sought pertained to a suspected spy or 

terrorist. Further, under the fiscal year 2004 intelligence authorization bill, signed by the President, the list of entities to whom 

NSLs can be issued now include nearly all types of businesses. 

In addition, under Section 215 of the PATRIOT Act, if the Federal Government seeks an order to obtain any tangible thing from 

any business, including book-borrowing records from a library, 

there is no evidentiary showing required. The judge shall, under 

the words of the PATRIOT Act, shall issue the order if the Government simply states that the records are sought for an authorized 

investigation 

Further, the Government need not show that the person targeted 

by the order is himself or herself engaged in anything illegal. 

Now, how do you reconcile this clear statement of the law, of the 

PATRIOT Act, with the statement that you made to the St. Louis 

Post Dispatch, in which you said, ‘‘Judicially issued independent 

determinations of probable cause remain the necessary legal standard’’? 

Mr. GRUENDER. Well, Senator, I believe I was referring to—and 

I do not have a copy of what I wrote back in February in front of 

me—but I believe what I was referring to were wiretaps, and it did 

not refer—oh, and search warrants—it did not refer to the issuance 

of national security letters. 

However, from what you have just read, both require, I believe, 

judicial approval. And also, if I may, it has always been the case 

that in a criminal investigation, which generally are not opened 

unless the FBI or the U.S. Attorney’s Office has reason to believe 

that a crime has been committed, that those sort of records were 

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obtainable, initially, without judicial review through the use of 

grand jury subpoenas. 

Senator DURBIN. I put you at a disadvantage because you do not 

have your letter in front of you. And I want to be fair, and I am 

going to send you written questions so you can give me a full explanation. But I would suggest to you that our reading of the PATRIOT Act is the opposite of what you just said, that there is no 

Court approval necessary for national security letters. In fact, it is 

mandatory. It says, ‘‘The judge shall issue the order.’’ And, frankly, 

I think that what you have just said is inconsistent with the language of the act, which has caused many, on both sides of the aisle 

here in the Senate and the House, to raise questions about whether 

we went too far with the PATRIOT Act. 

I am not going to dwell on this, Mr. Chairman, because I do not 

want to put the witness at a disadvantage, having raised this line 

of questioning when he did not have a chance to review his letter 

beforehand. But if you would not mind, I would like to send you 

some specific questions. 

I would like to ask all of the witnesses here about the concern 

expressed to me by Federal judges who have been in contact with 

me since action by Congress last year, and it relates to mandatory 

minimum sentences. There are many judges who believe that we 

have gone too far; that we have taken away the discretionary authority of judges to mete out sentences which they think are fair 

to individual criminal defendants, that we have created a formula 

for judges to impose sentences which is inconsistent with common 

sense and inconsistent with the goal of justice, in many instances. 

One anecdotal case which I can relate to you is, in Pekin, Illinois, 

where we have a Federal correctional institution for women who 

have been convicted of felonies, I have visited this institution to 

find many middle-aged and elderly women who are knitting afghans in prison for 10 to 20 years because a drug-dealing boyfriend 

ratted them out in an effort to win favor with the prosecutor. And 

the judge, with no recourse, other than the mandatory minimum 

sentence, had to send many of these now older ladies to prison for 

lengthy periods of time. 

I would like to have your response, and this will be my last question, Mr. Chairman, of each of the panel members about this concept of mandatory minimum sentences and the concern expressed 

by many Federal judges that Congress should re-examine whether 

we have gone too far. 

Mr. Wake, would you like to start? 

Mr. WAKE. Certainly, Senator. Thank you very much for the 

question. 

Senator that certainly is a very important question and issue. In 

my practice, which I have been favored to have a wide-ranging civil 

litigation practice over the years, I have not had occasion to practice at all in the field of criminal law. Therefore, I lack the handson experience on how things really work to make refined judgments about that subject. 

Now, I look forward, if I am confirmed, and if I am given the opportunity to serve as a judge, to learning that field of law, just as 

I have, over the years, learned other fields of law. And when that 

time comes, and if I should come to judgments that are considered 

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and worth sharing with the Congress, I think it would be appropriate for judges to do that. But at this moment, I am at a disadvantage from that lack of hands-on experience, and I would just 

give my commitment that, as in all things, I would study everything carefully and take advantage of my opportunity to share with 

the Congress my observations on the improvement of the justice 

system. 

Senator DURBIN. Ms. Pratter? 

Ms. PRATTER. Thank you, Senator. 

Obviously, I am aware of the professional and popular subject, 

that this is a subject of some discussion and concern. Because my 

practice has been primarily in the civil area, I have not had the 

opportunity or need to work with the minimum sentencing legislation directly. It is something that I will have to learn about. I think 

that what you have described, in terms of your visit to the prison, 

is part of the legislative process that is so important, in terms of 

evaluating what is appropriate for our country, and that is where, 

at the legislative level, where I think, in the first instance, the citizens have to look. 

In terms of the role of the judiciary in meting out and using the 

minimum sentencing legislation, it is very important for judges to 

commit to following the legislative pronouncements that they are 

presented with, and that is what I would do, if confirmed. 

But beyond that, having no personal or professional information 

to add to your wealth of knowledge, there is nothing more I could 

really say at this time. 

Senator DURBIN. Judge Martinez? 

Judge MARTINEZ. Thank you, Senator. 

Senator unlike my fellow nominees over here for the District 

Court, I have had years of experience with sentencing guidelines. 

I worked on the Sentencing Guideline Commission for the State of 

Washington as a judge. 

I can tell you, from personal knowledge, that, in my opinion, sentencing is one of the most difficult things for any judge to engage 

in, no matter what the case, no matter who the individual is. It has 

always been, for me, one of the hardest aspects of my job. 

I have lived under sentencing guidelines for most of my career. 

Washington State passed the Sentencing Reform Act in 1984, I believe, the same time the Federal guidelines went into effect. As a 

magistrate judge, one of the few cases that we are not allowed to 

handle are, of course, felony sentences. We cannot do that aspect 

of it, so I have not had very much experience with the Federal Sentencing Guidelines. 

I think the concern you mentioned of Federal judges—and not 

just Federal judges, but also State judges—when it comes to the 

issue of mandatory minimums has merit. Many judges have raised 

that particular concern. And I believe, Senator, that it is always 

important to continue to review what is occurring, and I know 

there are many commissions, the United States Sentencing Commission, for example, and many committees that will not only gather information, but continually look and see if there is a better 

mechanism that we can use, if there are other things that we can 

do. 

174

I can tell you this; that I think the vast majority of sentences fall 

within the range, within the guidelines, and it is those rare ones 

that stand out, but sometimes those are the ones that are the most 

troubling. 

Senator DURBIN. Mr. Gruender? 

Mr. GRUENDER. Like Judge Martinez, I have had some experience, as the U.S. Attorney, and want to note that I am here as a 

candidate for the Eighth Circuit Court of Appeals and not really as 

a representative of the Department of Justice. 

It is certainly a matter of significant debate amongst many 

judges, and it is something that I believe is, without passing on the 

constitutionality of guidelines, which I think has been dealt with 

in the Mistretta case, or of mandatory minimums, I think that the 

definition of a crime, as well as the appropriate sentencing, has always been a function of Congress, not really of the judiciary. 

That having been said, there are, in mandatory minimums, there 

are certainly provisions that do allow, in appropriate cases, for 

those to be gone around, the so-called relief values and cooperationtype matters. But, primarily, I would be reluctant to advise you, 

from this particular role. I think it is a matter that Congress 

should take up, not a judicial matter. 

Senator DURBIN. Mr. Chairman, I would just add I think Mr. 

Gruender is correct. I think it is our responsibility, but I believe, 

in all honesty, that the passage of the Feeney amendment has restricted a lot of judges who, when they deviate from certain minimum mandatory sentences, have to make reports to the Department of Justice, so it creates more pressure for them not to make 

exceptions, where even they legally can. So that is our responsibility, and I thank the panel for their replies. 

Senator KYL. Thank you, Senator Durbin. 

I would just note one opportunity, though, that those reports afford is for the judge to explain why it is necessary to do this and 

perhaps better inform us to even possibly get us to change some 

of the laws. So it can have that salutary effect, too, I would just 

offer. 

I have a different question to ask each of you, and one is somewhat along the lines that Senator Durbin asked Mr. Gruender. 

You have been United States Attorney, and obviously you had a 

role to play there. You had to act as the Government’s lawyer and 

to prosecute people when that was called for, and so on. And one 

of the questions I think is, obviously, that is very good experience 

for being a judge, but the other question is will that experience, in 

any way, detract from your ability to perform your functions properly? And I would just like to get your comment, generally, on how 

you view your experience as the Government’s lawyer prior to now 

going on the bench, if you are confirmed. 

Mr. GRUENDER. Thank you, Mr. Chairman. That is a very good 

question. 

On the positive side, being the United States Attorney gave me 

a broad exposure to many issues. Every significant issue within the 

office usually bubbles up to the United States Attorney. So every 

day my day is filled with a series of legal issues and problems to 

respond to and to try to answer as best I can. Therefore, it gives 

me the ability to look at the law practice almost from a manageVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00186 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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ment standpoint. It also gives me a broad range—all sorts of criminal exposure of every type, from violent crime to white collar crime, 

to major corporate crime, to civil rights prosecutions—but also exposure to the civil practice. We have about a dozen lawyers who 

represent the Government in civil practice. 

That having been said, I can see where someone might say, 

‘‘Well, is that the only viewpoint that he has?’’ No, to the contrary. 

I have also spent almost an equal amount of time as a defense lawyer. I have represented criminal defendants, I have represented 

targets who were never charged, I have represented witnesses in 

criminal cases and victims, and also, in private practice, I have had 

a broad exposure to civil matters, both representing plaintiffs, 

claimants and defendants. 

Senator KYL. Well, thank you. I think that is helpful. 

The general question I want to ask each of the District Court 

nominees has to do with the qualifications that some of you alluded 

to that give confidence to our citizenry that the judges understand 

life and understand their problems and will mete out justice not 

just in strict accordance with the law—obviously, you will do it in 

strict accordance with the law—but informed also by your life experiences. 

And in that regard, I was impressed by several of the things in 

your resumes about things you have done. Gene Pratter, I just happened to turn to the note that I made about your Nurturing Network program, which I understand assists pregnant women. 

And I just wonder if each of you would discuss, briefly, something that you have done either in association with law activities 

or perhaps even totally outside the law that you think will help 

make you a better judge because it is a life experience that you 

have had. 

And if any of you would like to mention one of my primary interests—victims’ rights—I would like you to do that. Because one 

thing we have found, and one reason that many of us here are proponents of a constitutional amendment to guarantee victims’ rights, 

is that notwithstanding the fact that we have State law, statutory 

and even constitutional provisions allegedly guaranteeing rights of 

crime victims, that, as a Justice Department report noted, they are 

more honored in the breach than the observance, that, for one reason or another, prosecutors, other lawyers, judges sometimes are 

lax in enforcing these crime victims’ rights. 

We are not only dealing with the interests of the State and the 

Government and the defendant who may be on trial or the parties 

in civil litigation, but also, of course, we are interested in ensuring 

that victims do not suffer a second time when they have to go 

through the judicial process. 

So I certainly do not limit my question to that, but anything that 

might bear on making them more comfortable, that if you are a 

trial judge you will consider their views as well, I think is an important one. 

Let me start with you, Ms. Pratter, and then go to Judge Martinez and then finish with Neil Wake. 

Ms. PRATTER. Thank you, Mr. Chairman, and I’m sure the folks 

at Nurturing network would thank you for your reference to them. 

It is a national program that assists pregnant women, unmarried 

176

pregnant women who need to perhaps relocate to other parts of the 

country, and the network assists them in finding jobs and places 

to live and health care. And the folks in my firm have played a 

small role in providing employment opportunities for women who 

avail themselves of that. And it’s been a pleasure to participate in 

that and many other programs such as assisting in the gathering 

of business clothing for women re-entering the workforce. And 

goodness knows those of us in law firms have been very fortunate 

in terms of both the work opportunities we’ve had and the compensation, and we’ve gathered a number of clothes and shared 

them with others who want to meet the challenges of their present 

lives by going back to work, and they may need some help in that 

respect. So I thank you for the reference to those kinds of programs. 

With respect to the experiences I’ve had for 28, almost 29 years 

as an active lawyer, certainly in civil work sometimes lawyers are 

given to think of clients as being a faceless corporation, when, in 

fact, our clients are real people. They’re worried about many 

things. They may, in fact, be most worried about the court procedures. It’s sad to hear a client say when the worst thing that could 

happen to them is to have to go to court. Being sensitive to that 

and the sensitivity to the delays that can often occur in the litigation process I believe will be with me always. I believe that it’s part 

of—an important part of a judge’s job to move matters expeditiously and as economically as possible for all of the people involved 

in the process. 

With respect to the criminal side, I think that a judge’s role and 

job is to treat with great respect and sensitivity the role of the jurors, for example. The victims, absolutely, their fears and concerns 

and their families need to be given the opportunity to be heard, to 

be respected, to show that the system is concerned for them. And, 

without question, the defendants, of course, their rights and concerns need to be protected, and we need to be mindful of that. 

And, frankly, the advocates for the government and for the defendant, the lawyers need to be respected. I have unbelievable respect for the hard work that lawyers put in day in and day out and 

carrying the mantle of their clients with them. 

All of those people, all of those folks in the role of the legal system need to be respected. 

Senator KYL. Judge Martinez? 

Judge MARTINEZ. Thank you, Mr. Chairman, and thank you for 

giving me the opportunity to address this issue regarding victims’ 

rights. I spent 10 years as a prosecutor. One of the things that 

drove me to do the absolute best job that I could in every single 

case was knowing that in a majority of cases that I was handling, 

there was usually a victim, a family member, someone that was 

completely devastated by what had occurred to them or their family. In every sentencing hearing where I stood, I made sure that 

they were there and that the court allowed them the opportunity 

to speak and to be heard. 

When I became a superior court judge in 1990, having that sensitivity made me very aware of how critical that is to allow that to 

occur. As you know full well, victims feel re-victimized again by the 

system. They feel that they have no constitutional rights at all, 

177

that everything goes towards the defendant’s side. And I think our 

understanding as a judge of that, that pain, that grief, that frustration, can go a long ways towards making the process, if not better—because I don’t think it ever goes away for them—at least 

more understandable and they feel they’ve had a part to play in 

that entire process. 

There was a second part to your question, and that had to do 

about our involvement with the community. I’ve always believed—

and I think you can tell by looking at my background—that a judge 

can’t cloister himself or herself away from the rest of society. You 

have to stay involved. That’s really the only way people understand 

that you do understand what is going on in everybody else’s lives. 

And that’s why it is important to be involved with feeding the 

homeless or, in my case, one of the things that I’m very dedicated 

to is coaching young children at many different levels. 

And since I’m here before this Committee and under oath, I have 

to confess to you that I think I’ve received more fun and joy out 

of coaching than all the kids that I ever coached put together. 

Thank you. 

Senator KYL. Thank you very much. As I said, I think it is important for people to have confidence in our system, and one way 

they can have confidence in our system is to know that the judges 

up there are real people and not just automatons. And that is why 

I kind of ask this question, so that if anybody is paying attention, 

they will know that we have people who are not only highly qualified in the law, greatly experienced, but also real people who have 

actually helped in their local bar associations or community in 

some capacity. 

Neil Wake? 

Mr. WAKE. Thank you, Mr. Chairman. That’s a big question for 

which we could give long answers, but let me focus on a few things 

that strike me personally. 

The process of judging requires many skills, technical skills, education, academic skills, administrative skills, but one of the qualities that I think is most important here is a wisdom about life and 

people—the wisdom that can only come from experiencing the 

hardships or the difficulties that people have in life and in the litigation system. 

You had asked about some activities that we might have been 

through, and let me point out two for me and my wife. Long ago, 

my wife became involved—more than me, but I was also involved—

in an organization in Phoenix called the Sojourner Center, which 

is a shelter for battered women and children. Shari was one of the 

first directors, founding directors, and I did legal work for them, including defending them in a lawsuit over a construction matter 

without compensation, which, if we had lost the case, it would have 

been put out of business. 

Sojourner Center now is a great success. It is one of the largest 

private shelters for battered women and children in the country. 

But we had an enriching experience dealing with other volunteers 

setting that up, getting it going, working with the people who benefited from that. 

We also had another experience some 20 years ago where Shari 

and other parents founded a group, ICU Care Parents, which is a 

178

parents’ support group for parents of critically ill newborns. And 

we made arrangements with the three tertiary-care-level hospitals 

in the Phoenix area that dealt with critically ill newborns for referrals, and we organized a network of parents who could be called 

upon to talk and provide other support for parents experiencing 

that. 

That group was a self-sustaining group that people participated 

and other people came in for about 10 years, and then it merged 

with another group in Phoenix, the group called Pilot Parents, 

which is a broader organization for handicapped children and the 

parents of handicapped children. 

Through those activities, we have been able to share many things 

with many people in our community that I hope would give me, if 

I am given the opportunity to serve as a judge, to bring that wisdom to bear. 

Like Ms. Pratter, I have a particular sensitivity to the effect on 

litigants of the cost of litigation. As an attorney representing everyone from individuals to business entities, I’ve seen too many cases 

where my clients simply elected not to pursue a just claim or not 

to defend against what I thought was an unjust claim because of 

the ability of opposing parties to make the costs of that increase. 

Judges cannot prevent that entirely, but they can play a major 

role in administration of cases and getting them to a quick and economical resolution. So that is a second area of particular concern 

to me. 

And, lastly, I would note a concern about the fear that regular 

folks have about being involved in the court system. This can often 

be witnesses and often litigants, and a judge has a particular ability to be sensitive to that, to make that easier and less stressful 

for people. So I think all of those respond in one way or another 

to the very important values that you are pointing to. 

Senator KYL. Well, I thank all of you for your answers. It shows 

a breadth of experience and approach and a common thread of concern for litigants in our system of justice, but bring obviously different enriching experiences to the position. And I think as I said, 

it is important for us to stress those things when we explain to our 

constituents that we are confirming people who are not only well 

schooled in the law but also in life’s experiences. 

This is, I think, an extraordinary panel, and I am very pleased 

to have presided over this hearing to hear from each of you and 

give each of you an opportunity to share your views and also, of 

course, to introduce those who mean a great deal to you and who 

have supported you in your careers. 

The next stage in the process will be that the full Judiciary Committee will review this testimony and, incidentally, have an opportunity to submit written questions to you, to which, obviously, you 

should respond as quickly as you can. There will be time afforded 

for additional statements to be put into the record of this hearing 

by the members of the Committee. And then after that, the full 

Committee will hold what we call a markup, which is really a business session, at which the nominees will be considered by the Committee and either voted up or voted down—voted up, sent to the 

full Senate for its consideration. And we hope that we can do this 

in a fairly quick fashion. 

179

Obviously, if you have any questions about the process, you can 

be in touch with the Committee staff here, and they can help work 

through that. 

If there is nothing else from any member of the Committee or 

any member of the panel, hearing nothing then I am going to declare this meeting adjourned. But I again thank all of you for being 

here today and I thank our participants on the panel. 

This meeting is now adjourned. 

[Whereupon, at 11:13 a.m., the Committee was adjourned.] 

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

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NOMINATION OF FRANKLIN S. VAN 

ANTWERPEN, OF PENNSYLVANIA, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE THIRD 

CIRCUIT 

WEDNESDAY, JANUARY 28, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in room 

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

Present: Senator Specter. 

Senator SPECTER. Good morning, ladies and gentlemen. The 

Committee on the Judiciary will now proceed with the President’s 

nomination of Hon. Franklin S. Van Antwerpen to be United States 

Circuit Judge for the Third Circuit. 

My distinguished colleague, Senator Santorum, is present and I 

will call on him first before making any comments as Chairman to 

minimize his time and make a presentation. 

Senator SANTORUM. I appreciate that. I usually yield to my senior colleague, so I will, in turn, reverse back to you, Senator, and 

certainly always enjoy listening to any comments that you have on 

matters dealing with Pennsylvania, in particular. 

PRESENTATION OF FRANKLIN S. VAN ANTWERPEN, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. 

ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF 

PENNSYLVANIA 

Senator SPECTER. Well, we have a very talented jurist who has 

been nominated for promotion from the United States District 

Court to the Court of Appeals for the Third Circuit. 

Judge Van Antwerpen has is bachelor’s degree from the University of Maine, his law degree from Temple. He was a corporate lawyer for a time. He worked with the Northampton County Legal Aid 

Society. He was a partner in a law firm. He was on the Common 

Pleas Court from 1979 to 1987, and from 1987 to the present time 

he has been on the United States District Court for the Eastern 

District of Pennsylvania. 

I have come to know Judge Van Antwerpen very well. He is a 

highly respected jurist. He has been very active in his community 

and he brings the combination of education, academic skills, practical experience. Very important, his work on the Legal Aid Society, 

and he has done an outstanding job on the Federal district court. 

228

It is a relative rarity to be promoted to the Court of Appeals for 

the Third Circuit, but when the vacancy arose Senator Santorum 

and I conferred. We have made a practice of having a bipartisan 

nominating panel. We have worked very hard on the selection of 

Federal judges because of the importance of the position. 

Since Marbury v. Madison, the Federal courts control the ultimate questions in our society, and the Supreme Court of the 

United States makes the decisions on all of the cutting-edge issues. 

And the Supreme Court, of course, can only reach so many cases, 

which means that the courts of appeals are the final arbiters of 

many, many very vital issues for our country. 

The proposed constitutional amendment which I have had in 

mind has not gone very far when I have suggested that Federal 

judges run every 6 years and Senators serve for life. So we have 

the situation where the lifetime appointments are of such great importance. So Senator Santorum and I were really delighted when 

the President followed our recommendation and submitted Judge 

Van Antwerpen’s name to the Judiciary Committee. 

Senator Santorum. 

PRESENTATION OF FRANKLIN S. VAN ANTWERPEN, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT, BY HON. 

RICK SANTORUM, A U.S. SENATOR FROM THE STATE OF 

PENNSYLVANIA 

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

to thank the President for following our recommendation and selecting Judge Van Antwerpen for this position. He has been rated 

unanimously well-qualified by the ABA, which is not necessarily 

my gold standard, but I think reflects at least some body of thought 

that he has done an outstanding job in his role as a judge in the 

Eastern District of Pennsylvania. As you mentioned, he was unanimously confirmed by the United States Senate for that position and 

has served with great distinction. 

I know the judge is sitting back there saying, where is everybody? And I would just suggest that the fewer, the better, and that 

the relationship of the number of people sitting with Senator Specter to the likelihood of confirmation is an inverse relationship. 

And so the fact that you don’t see anybody out there lining up 

to question all but guarantees your confirmation as far as I am 

concerned. But it is so because of your outstanding work on the 

bench. 

This is a nominee that I know Senator Specter and I are very, 

very excited about, comfortable with, and I think would be a great 

addition to the Third Circuit. Senator Specter went through his 

qualifications, so I don’t need to do so. I just want to thank him 

for his willingness to serve in the judiciary, and particularly for his 

name being placed in nomination. 

This has been a rough road for many, but I am hopeful that because of your outstanding service and your distinguished record 

that you will have much success here, not only in Committee but 

when it gets to the floor. 

I want to commend my colleague, in particular, who if Republicans stay in control is scheduled to be the next Chairman of this 

229

Committee, for the work that he has done in working, as he mentioned, in a bipartisan fashion. 

We have had 15 nominees since President Bush took office and 

we are 15-for-15 in getting our nominees confirmed. I think that 

shows that we have worked together in a good spirit and put very 

qualified people here before the Committee. 

That is to your credit, Senator Specter, and your leadership on 

that particular issue. 

Thank you, Mr. Chairman. 

Senator SPECTER. Well, thank you very much, Senator Santorum. 

I think the comment you made about 15-for-15 is a very important 

comment. The Constitution provides, beyond consent, confirmation 

by the Senate, advise and consent. The President has listened to 

our recommendations and we have put forward nominees who have 

met with universal approval. So that is what we intend to keep 

doing. 

Thank you very much, Senator Santorum. 

Judge Van Antwerpen, if you would step forward and raise your 

right hand? 

Do you swear that the testimony that you are about to give before this Committee will be the truth, the whole truth and nothing 

but the truth, so help you God? 

Judge VAN ANTWERPEN. Yes, Senator, I do. 

Senator SPECTER. As a United States District Judge for the Eastern District of Pennsylvania, you have had extensive experience as 

a Federal judge. How has that experience shaped your views on the 

proper role of a Federal judge within our legal, judicial, political 

system? 

STATEMENT OF FRANKLIN S. VAN ANTWERPEN, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT 

Judge VAN ANTWERPEN. Senator, I believe that the proper role 

of a judge is to interpret the law and to apply the law. The role 

of the other branches, the Congress, in particular, of course, is to 

formulate policy in the law. Sometimes, the executive branch promulgates administrative rules and regulations. 

We in the judiciary take that law and take those regulations and 

apply them to given fact situations. I also believe that the role of 

a judge is to take very seriously his oath in doing equal justice to 

everyone, rich and poor, and to try to have judicial temperament 

and preside fairly in all matters. 

[The biographical information of Judge Van Antwerpen follows:]

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Senator SPECTER. What has been your most challenging case 

while serving on the Federal district court? 

Judge VAN ANTWERPEN. I think I would have to say that the 

most challenging case took place shortly after I went on the bench, 

Senator. I was the judge that tried the entire Philadelphia Mafia, 

all 18 of them at once, in a four- or five-month trial. It was an extended proceeding. It was ultimately affirmed on appeal. That took 

a great toll in terms of the effort, the time involved, the judicial 

rulings that had to be made, the research that went into it. 

Senator SPECTER. Do you think it is tougher to be a prosecutor 

who investigates and prosecutes organized crime than to be a judge 

who sits on the bench and tries the defendants? 

Judge VAN ANTWERPEN. I think they are all tough jobs, Senator. 

I couldn’t really speak for one or the other, but— 

Senator SPECTER. You haven’t been a prosecutor. 

Judge VAN ANTWERPEN. Not really. I prosecuted—when I was in 

private practice, I prosecuted on behalf of the municipalities I represented, but those were only summary offenses. 

Senator SPECTER. You never prosecuted organized crime? 

Judge VAN ANTWERPEN. No, sir, but I— 

Senator SPECTER. Well, I have never judged organized crime, so 

we are even, Judge Van Antwerpen. 

Judge VAN ANTWERPEN. Thank you, sir. You certainly have a distinguished record in prosecuting, sir. 

Senator SPECTER. Your ability to constructively interact with 

your fellow judges on the Third Circuit will be an important element of your work. How will that be different from your work as 

a district judge, where you made the decision yourself? What role 

do you think collegiality plays in the Federal bench, contrasting the 

circuit to the district court? 

Judge VAN ANTWERPEN. Collegiality, I believe, does play a very 

important role. Quite obviously, a district judge can act on his or 

her own. A circuit judge cannot really do anything without getting 

at least one other circuit judge to go along with you. 

Senator SPECTER. Do you think that is harder or easier than getting 50 other Senators to do along? 

Judge VAN ANTWERPEN. Senator, again, I wouldn’t presume to 

comment on the difficulties of your job, but you work very hard, I 

am certain. 

Senator SPECTER. You served as chief counsel for what is now 

known as North Penn Legal Services. In our society, Judge, how 

important do you think it is that legal services be available for 

those who cannot afford it? 

Judge VAN ANTWERPEN. I think it is extremely important, Senator. That is why I left a higher-paying job in New York City to 

go to Northampton County and become the chief counsel of the 

Legal Aid Society. That is why, even after I went into private practice, I continued to do volunteer work for them. 

Senator SPECTER. Without objection, the full statement of Senator Leahy will appear in the record, and I think the last paragraph is worth reading. Senator Leahy says, ‘‘I look forward to the 

testimony of Judge Franklin Van Antwerpen, who has been nominated for the Third Circuit. I know of Senator Specter’s strong support for this nomination. In contrast to many of President Bush’s 

257

nominees, Judge Van Antwerpen comes to us with a distinguished 

career on the bench both on the State and Federal levels. I welcome him to the Committee,’’ close quote. 

That is a good statement to have from the ranking Democrat, 

Judge Van Antwerpen. 

Judge VAN ANTWERPEN. Yes, sir. 

Senator SPECTER. I am going to ask you all the standard questions that the Committee asks because it isn’t really unusual for 

someone presiding at a confirmation hearing, as I am today, to be 

the sponsor of the nominee. 

At first blush, it might appear that there would be a conflict of 

interest or pre-judgment, but that is the way our system works. 

But to touch all the bases, I am asking all the questions which the 

staff has prepared. All the questions I have asked are staff-prepared and I am going to ask you the balance of them, as is the regular practice of the Committee. 

Under what circumstances do you believe it appropriate for a 

Federal court to declare a statute enacted by Congress unconstitutional? 

Judge VAN ANTWERPEN. Well, we know that a statute enacted by 

Congress has a presumption of validity. Obviously, if it is shown 

to be unconstitutional and improper, then it would be appropriate 

to do so, but the burden is on the person asserting its unconstitutionality. It is not something that happens very often, quite 

frankly. 

Senator SPECTER. Have you ever declared an act of Congress unconstitutional? 

Judge VAN ANTWERPEN. I have not, sir. 

Senator SPECTER. The Supreme Court precedents are obviously 

binding on all the Federal courts. Are you committed to following 

the precedents of higher courts faithfully and giving them full force 

and effect even if you personally disagree with such precedents? 

Judge VAN ANTWERPEN. That is my obligation, Senator. 

Senator SPECTER. What would you do if you believed the Supreme Court had seriously erred in rendering a decision? Would 

you nevertheless apply that decision or your own best judgment on 

the merits? 

Judge VAN ANTWERPEN. Mr. Chairman, I would follow that 

precedent. That is my obligation. 

Senator SPECTER. These questions aren’t too hard to answer, are 

they, Judge Van Antwerpen? 

If there was no controlling precedent dispositively concluding an 

issue with which you were presented in your circuit, what sources 

would you turn to to make your decision? 

Judge VAN ANTWERPEN. Well, of course, you still look at precedent. You may not have something exactly on point, but you look 

at the closest thing that you can find and you look at what other 

courts have said with regard to that issue. If you are dealing with 

an enactment by the Congress, there are many things that you 

could look at in interpreting that Congressional enactment. You 

could look at the records of the floor debate. You would look at all 

the usual sources. 

258

Senator SPECTER. Under what circumstances, if any, do you believe an appellate court judge should overturn precedent within his 

or her own circuit? 

Judge VAN ANTWERPEN. Well, in the Third Circuit there is an internal working procedure whereby one panel does not overturn the 

legal holding of another panel. Now, there can be circumstances 

under which a different result would be reached. 

For instance, if the precedent or legislation which had prompted 

the first panel to rule changes—if there is a change in the law, that 

can happen. In addition, you are often faced with a similar but nevertheless different factual situation. But other than that, the panels in the Third Circuit generally follow this internal procedure. 

Senator SPECTER. The Supreme Court of the United States—this 

is my question—has cut back considerably on Congressional authority. Since Lopez was overturned under the Commerce Clause, 

the Supreme Court has adopted a doctrine of declaring acts of Congress unconstitutional if they haven’t been, quote, ‘‘thought 

through,’’ unquote. 

I will not press you for an answer, but if you care to offer an 

opinion as to the propriety of the Supreme Court saying Congress 

hasn’t thought it through. Who is the Supreme Court to think it 

through, saying the Congress hasn’t thought it through? 

Judge VAN ANTWERPEN. That is a difficult question to answer, 

Senator. As a district court judge, I don’t really feel it proper for 

me to comment on the actions of the Supreme Court. 

Senator SPECTER. You wouldn’t want to criticize the Supreme 

Court? 

Judge VAN ANTWERPEN. I am a district judge, sir. 

Senator SPECTER. And you probably wouldn’t want to criticize 

Congress. 

Judge VAN ANTWERPEN. No, sir. 

Senator SPECTER. So don’t answer the question. 

[Laughter.] 

Judge VAN ANTWERPEN. Yes, sir. 

Senator SPECTER. If, as and when I become Chairman of this 

Committee, I am going to go into that issue in some considerable 

depth because I challenge the Court on that determination of unconstitutionality. 

If the Court says that a given clause of the Constitution is violated by the Congress, as a district court in California did yesterday on the PATRIOT Act, that is a judicial function—vagueness, 

unconstitutionality. But on this ‘‘thought through’’ doctrine, I have 

grave reservations. 

Back to the books, Judge Van Antwerpen. 

Judge VAN ANTWERPEN. Yes, sir. 

Senator SPECTER. You have stated that you will be bound by Supreme Court and, where applicable, the rulings of the Federal 

court. There may be times when you will be faced with cases of 

first impression. Well, I think you have already answered that. 

With respect to case management, if confirmed, how do you intend to manage your caseload? 

Judge VAN ANTWERPEN. Well, it is a somewhat different system 

on the circuit court. As you know, a district judge has to engage 

in case management as a big part of his or her job—scheduling, 

259

moving cases, keeping track of them, making sure they don’t fall 

through the cracks. 

On the circuit court, a lot more of that is done for you by the 

clerk of the court, as you well know, Senator. And I think that, 

nevertheless, you have to maintain internal controls in your office 

to see to it that you get your opinions done and out on a timely 

basis. I think my experience as a district judge has taught me how 

to do that. 

Senator SPECTER. With respect to judicial temperament, when I 

was on this Committee for a very short time, there were two Pennsylvania judges up for Federal appointment. This was 1982 and 

Senator Thurmond was presiding, sitting in this chair. 

He said to the two judges, two judicial nominees, if you confirmed, do you promise to be courteous, which, translated from 

South Carolina, is, if confirmed, do you promise to be courteous. 

And when I heard him ask that question, I thought it wasn’t exactly a penetrating question; what was the nominee going to say 

but yes? And both said yes. 

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

more courteous the person should be; translated, the more power 

a person has, the more courteous the person should be. And I have 

come to regard that as a very profound statement, perhaps the 

most profound statement which has been uttered from a Senator 

during my tenure here, not that there is very heavy competition for 

being profound. 

I always ask that question, knowing what the answer will be, as 

I haven’t been surprised by any of your other answers, Judge Van 

Antwerpen. Judges have commented to me with some frequency 

over the years that they remember that question. 

I have a lot of confidence in your judicial temperament. I have 

seen you in action. But there is a quality—when a person puts on 

that black robe, all the power that that person has, and life tenure, 

there is a tendency to become impatient with lawyers or litigants, 

witnesses. Very frequently, there is good cause to be impatient and 

to be disgruntled. It is a very high calling to maintain that level 

of courtesy. 

So how would you answer Senator Thurmond’s question? 

Judge VAN ANTWERPEN. Senator, I agree with you completely, 

Mr. Chairman. It is a very important attribute, judicial temperament. Judicial temperament is difficult to define, but you know it 

when you see it, and one of the key factors in that is being courteous and polite and respectful, listening to lawyers, listening to 

witnesses, hearing them out. 

There are times that as a district judge things can be harried, 

as you noted, but I have always done my very best to be polite to 

people and to be respectful. 

Senator SPECTER. Well, I have great confidence in you on that 

score, as all the other attributes, Judge Van Antwerpen. 

I have made inquiries and I believe that your appointment to the 

Court of Appeals for the Third Circuit will be the first from the Lehigh Valley. Senator Santorum and I try to have geographical distribution. You take the seat of a very, very distinguished Federal 

judge, Edward R. Becker, who got the Devitt Award last year as 

260

the outstanding Federal judge, a man I have known for many 

years. 

We rode the elevated PTC, Philadelphia Transportation System, 

together to Penn many years ago. I will not cite the year because 

I would not want to disclose Judge Becker’s age. Before that, Judge 

Max Rosen held the seat. We came back to a different area when 

Judge Hutchinson was on the Third Circuit. 

We rotate the district court judgeships and have a bipartisan 

panel which makes recommendations, and then we turn to the 

counties to give us their recommendations. We do not make the selection in most cases, but turn to the counties to tell us whom they 

would like to have, as we did in Lancaster County for Judge 

Stengel, and to other counties, and recently to Somerset County. 

But I believe you will be the first circuit judge from the Lehigh 

Valley. You have had very distinguished Federal judges—Judge 

Kahn, who was chief judge. 

Judge VAN ANTWERPEN. Yes. 

Senator SPECTER. Judge Gainey. Did you know Judge Gainey? 

Judge VAN ANTWERPEN. I came to the bar just as we he was closing out his career. He died around 1969 or 1970. 

Senator SPECTER. Judge Gainey was from Easton and was a very 

impressive judge, handed down some very major decisions on the 

antitrust electrical cases going back into the 1950’s. As I recollect 

it, he sent a lot of big-wheel executives to jail for antitrust violations, something we ought to do with the people who violate the 

antitrust laws on OPEC—another subject which I hope to get into 

in some detail if, as and when I become Chairman of this Committee. 

Well, Judge Van Antwerpen, the paucity of Senators in attendance here is a tribute to their confidence in you. Had they had 

doubts, they would have been here to express them. We have expedited your hearing, and I thank Senator Hatch for that because it 

is going to be harder to confirm Federal judges as we get closer to 

November, in an election year, and especially harder to confirm circuit judges. 

But we got Judge Fisher through in record time, and we got 

Judge Brooks through, who was the only contested circuit judge in 

2002. And I am optimistic that we will be in your home district on 

an induction ceremony in the fairly near future. 

Judge would you introduce those who are with you? 

Judge VAN ANTWERPEN. Senator, thank you. I have brought with 

me, first of all, my deputy clerk—they have all taken the day off 

from work and they will put in for this time appropriately so the 

Government won’t be paying. 

Anthony Tumminello is my deputy clerk. Next to him is Amanda 

Kastello, one of my law clerks. Next to her is Tara LaMorte, one 

of my law clerks. And the third law clerk is Renee Sewchand, who 

is seated there. 

Senator SPECTER. Does a man of your background and erudition 

need three law clerks? 

Judge VAN ANTWERPEN. Well, Senator, it certainly helps with the 

workload. 

Senator SPECTER. Congratulations. 

That concludes the hearing. 

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[Whereupon, at 10:32 a.m., the Committee was adjourned.] 

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

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NOMINATIONS OF WILLIAM GERRY MYERS III, 

OF VIRGINIA, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT; WILLIAM 

S. DUFFEY, JR., OF GEORGIA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE NORTHERN 

DISTRICT OF GEORGIA; AND LAWRENCE F. 

STENGEL, OF PENNSYLVANIA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF PENNSYLVANIA 

THURSDAY, FEBRUARY 5, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

2141, Rayburn House Office Building, Hon. Larry E. Craig presiding. 

Present: Senators Craig, Hatch, Chambliss, Specter, Leahy, Kennedy, Durbin, Feingold, Schumer, and Feinstein. 

OPENING STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR 

FROM THE STATE OF IDAHO 

Senator CRAIG. We would ask everyone to please take their seats. 

Well, let me thank you all for finding your way to the House Judiciary Committee room this morning and a very special thanks to 

the House Judiciary staff and Chairman Sensenbrenner for allowing us to hold these judicial nomination hearings here in the House 

chamber. I understand we are making a bit of history this morning. 

To the staff’s knowledge, this is the first time that judicial nominees that are the responsibility of the United States Senate have 

been heard in the House chambers. So we are always pleased to 

make a little history, and we might be doing that this morning. 

This morning, we will hear testimony from three nominees; one 

for the Ninth Circuit Court, William Myers III. He will be the first 

panel. 

The second panel will be made up of two District judges: William 

Duffey for the Northern District of Georgia and William Stengel for 

the Eastern District of Pennsylvania. 

Because so many of our colleagues have joined us this morning, 

let us get opening statements on behalf of these nominees from all 

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ward, I will administer to them their oath, and we will proceed in 

that manner. 

With that, let me turn, first, to the Ranking Member of the Committee, Senator Pat Leahy of Vermont. 

Senator. 

Senator LEAHY. Thank you, Mr. Chairman. Thank you for your 

usual courtesy of holding up while I tried to find my way around 

here. Those of our colleagues who have served in the other body 

know their way around here better. I did not have that privilege 

of serving in the House, and I still get lost. 

But I noticed we have several members here who have an interest, of course, the two Senators from Pennsylvania, the two Senators from Georgia, and I understand we are going to be joined by 

the other Senator from Idaho. I will withhold my opening statement, Mr. Chairman, so as not to hold them up. 

Senator CRAIG. Well, then, with that, let me turn to certainly a 

distinguished member of this Committee, the senior Senator from 

the State of Pennsylvania, Arlen Specter. 

Senator. 

PRESENTATION OF LAWRENCE F. STENGEL, NOMINEE TO BE 

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

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chair, and good 

morning, ladies and gentlemen. 

It is unique to have the Judiciary Committee of the Senate on 

the House side, and I, for one, feel honored to be able to sit on this 

dais. I have been in this room on a number of occasions, but always 

as a witness. So it is nice to be a member over here on the House 

side. 

I have the honor and pleasure of presenting to this Committee 

Hon. Lawrence F. Stengel, of Lancaster, for confirmation for the 

United States District Court for the Eastern District of Pennsylvania. Judge Stengel now serves as a Common Pleas judge in Lancaster and has served with great distinction for more than 13 

years. He is a graduate of St. Joseph’s University, Philadelphia, the 

University of Pittsburgh Law School. So he represents all factions, 

all geographical areas of Pennsylvania. 

Those were not the qualities which Senator Santorum and I 

looked for when we made our recommendation to the President 

that he be appointed to the bench. What we were looking for was 

an outstanding academic record and professional record. He practiced law in Pittsburgh for 5 years and came back to his native 

Lancaster for 5 years until he was appointed to the Common Pleas 

bench. 

Senator Santorum and I have established a bipartisan—really, a 

nonpartisan—Judicial Selection Panel to screen candidates, and we 

rotate among the counties to give representation, and once qualifications are established, and they are outstanding with Judge 

Stengel, it is up to the county to make the selection. We look to 

the county to tell us whom they want for judge, and no litmus test, 

no ideology, just the outstanding candidate and then a local selection. 

271

We have established a station in Lancaster, which is not had a 

judge recently, but I am pleased to confirm that Judge Stengel has 

committed to sit in Lancaster. Senator Santorum and I are interested in giving the litigants and the lawyers the opportunity not 

to have to travel long distances to Philadelphia or Pittsburgh or 

Wilkes-Barre or Scranton, so that it is an added plus that Judge 

Stengel will be there to facilitate the business of the court. 

So I am delighted to be here this morning, Mr. Chairman, and 

might I yield, at this point, to my distinguished colleague, Senator 

Santorum? 

Senator CRAIG. Thank you very much. 

Let me turn to Senator Rick Santorum of the State of Pennsylvania, please. 

PRESENTATION OF LAWRENCE F. STENGEL, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK SANTORUM, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Mr. Chairman. 

I was just whispering to Senator Crapo that one of the great advantages of coming from Pennsylvania is having the senior member 

of the Judiciary, which means you always go first, and so I appreciate Senator Specter for many things, but one is the ability to go 

first at these panels, where you usually have very long lines here. 

I appreciate your seniority. 

Let me also say I appreciate the fact that Senator Specter has 

carried on now, for the many years he has been in the United 

States Senate this concept of a nonpartisan Judicial Selection Committee. And when we went through this process for openings in the 

Eastern District, Senator Specter and I made it known that one of 

the areas that we wanted to get nominees from was from Lancaster 

County because Lancaster County, which is a large county in the 

Eastern District, has a place for a Federal judge to sit, but has not 

had a Federal judge recently. And several names came forward 

from the panel but, without question, the legal community in Lancaster came forward to us and clearly stated their preference, on 

a bipartisan basis, for a sitting Common Pleas judge in Lancaster, 

and that was Judge Stengel. 

We have rarely seen situations where the community has come 

forward in such strong terms to recommend someone among their 

ranks, and I think that just goes to show that the quality of this 

man not just on the bench, but his community service, his outstanding work as a husband and father, and this is someone who 

I am very pleased to be here to introduce to this body. 

Senator Specter has reviewed his record. I will not repeat it, but 

it is the qualities that have made this man a good to date that I 

assure the members of the Judiciary he will be an excellent judge 

on the Eastern District. 

Senator CRAIG. Thank you both very much. 

I see we have been joined by Senator Kennedy and Senator Durbin. 

Senator Durbin, we are proceeding with open statements by the 

Senators who are here to endorse their candidates. Do you wish to 

make any statement prior? 

272

Senator DURBIN. I will waive an opening statement. 

Thank you very much. 

Senator CRAIG. Now, let me turn to those who are here to speak 

on behalf of William Duffey for the Northern District of Georgia, 

Saxby Chambliss, a member of this Committee. 

Saxby? Senator Chambliss? 

PRESENTATION OF WILLIAM S. DUFFEY, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE 

STATE OF GEORGIA 

Senator CHAMBLISS. Thank you very much, Mr. Chairman. 

Senator Leahy, you mentioned those of us who served in the 

House have an easier way maybe of finding our way over here. I 

am reminded again this morning by some of my House colleagues 

or former House colleagues that I have to come over here to get a 

dose of reality every now and then. So they never forget to remind 

me of that. 

I am very pleased to be with my colleague, Senator Zell Miller, 

here this morning to recommend to this panel the confirmation of 

Bill Duffey, who is currently the U.S. attorney for the Northern 

District of Georgia, for a judgeship position on the bench of the 

Northern District of Georgia. 

Bill Duffey has been a long-time good friend of mine but, more 

importantly, I have known Bill Duffey as just one of the more outstanding lawyers in our great State, and I am very pleased to say 

that we are blessed with a number of great lawyers, and Bill ranks 

up at the top. That is why he is in the position that he is in today 

as U.S. attorney for the Northern District. 

Bill has long and distinguished legal career, beginning when he 

joined the Air Force back in 1978. He was a member of the JAG 

corps then and served his country in a very valiant way. Bill continued in private practice for many years in South Carolina and 

then moved to Atlanta, practiced with the very prestigious law firm 

of King & Spalding in Atlanta, which is now one of his partners, 

former U.S. Attorney General Griffin Bell, among many other distinguished individuals. 

Bill is certainly recognized by his peers as being an outstanding 

lawyer. He was given the ABA rating, unanimous rating, of wellqualified. So the gold standard certainly has been met in Bill’s 

case. 

Bill has the support of his family who I would like to take just 

a minute to introduce—his wife Betsy, his sons Charles and Scott, 

who are with him today. And Bill will be quick to tell you that his 

success is due, in large part, to the great support that he has had 

from his family. 

I could not be more proud of an individual being nominated by 

my nonpartisan Committee that selects nominees. Senator Miller 

has a representative on that committee, and it was the unanimous 

recommendation of that Committee that Bill Duffey be recommended for this position. 

So I am very pleased to be here this morning to support my good 

friend, an outstanding lawyer and an outstanding American, Bill 

Duffey, for this confirmation. 

273

Thank you. 

Senator CRAIG. Senator, thank you very much. Now, let me turn 

to Senator Zell Miller of the State of Georgia. 

PRESENTATION OF WILLIAM S. DUFFEY, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA, BY HON. ZELL MILLER, A U.S. SENATOR FROM THE 

STATE OF GEORGIA 

Senator MILLER. Thank you, Mr. Chairman. I too am honored to 

be here with my good friend and colleague, Senator Chambliss, to 

present to you William S. Duffey, who has been nominated by 

President Bush to be the United States District Judge for Georgia’s 

Northern District, where I live. And we present him today as a fellow Georgian who has impeccable credentials and who has strong 

support from all corners of the State of Georgia. 

Mr. Duffey is no stranger to this esteemed Committee. On September the 4th, 2001, President Bush made an outstanding choice 

by nominating Mr. Duffey to serve as United States attorney for 

the Northern District of Georgia, and the Senate confirmed his 

nomination unanimously. President Bush has done well again by 

now nominating Mr Duffey to serve as United States District Judge 

for Georgia’s Northern District. 

When I look at William Duffey and look at his career, I am reminded of what Booker T. Washington once said, that ‘‘nothing 

ever comes to one that is worth having, except as a result of hard 

work.’’ William Duffey is a man who has worked very, very hard 

indeed and who has served our State and our Nation well. I know 

that he will do the same outstanding job for our country as District 

Judge. 

Senator Chambliss has already mentioned to you some of his 

background, a member of the very prestigious King & Spalding law 

firm in Atlanta, and he also talked about his experience before 

that. But while at King & Spalding, Mr. Duffey was involved in 

two very high-profile internal investigations, one for EF Hutton, 

after the investment firm pleaded guilty to fraud charges, and the 

other for Exxon, after the Valdez disaster. 

And then from 1994 to 1995, he served as deputy independent 

counsel in charge of the Arkansas fees of the Whitewater investigation. I mention this because you can see Mr. Duffey is no stranger 

when it comes to handling and being involved in tough issues and 

tough cases. 

I would also like to note that Mr. Duffey has served as chair of 

the Paul Coverdell Leadership Institute. The institute was started 

by predecessor, the great Senator Paul Coverdell, in 1996, as a way 

to find good leaders for elective office. 

Mr. Duffey comes before you today not only highly recommended 

by me and by Senator Chambliss, but also by many, many others. 

I have heard some of his peers describe him as very fair. I have 

heard him described as a straight shooter. I have heard him described as a man of extraordinary ethics. 

I know Mr. Duffey well, and I know that he has the skill and 

the ability to serve ably in this judicial position. I hope that this 

Committee and the full United States Senate will give their vote 

274

of approval to William Duffey today, just as they did, so wisely, 

back in 2001. 

Thank you, Mr. Chairman. 

Senator CRAIG. Zell, thank you very much for that opening statement. 

Now, let me turn to my colleague and partner from Idaho, Senator Mike Crapo, to speak on behalf of William Myers for the Ninth 

Circuit. 

PRESENTATION OF WILLIAM GERRY MYERS III, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. MICHAEL CRAPO, A U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAPO. Thank you very much, Mr. Chairman, Senator 

Craig. 

I appreciate the opportunity to be with you here today to recommend the confirmation of William G. Myers, III, to the Ninth 

Circuit Court of Appeals. I have visited with many of the members 

of the Committee personally and appreciate this opportunity to 

meet with the Committee in its open session. 

On May 15th, President Bush nominated Bill Myers to serve as 

a judge on the Ninth Circuit Court of Appeals, the same court 

where I clerked following my law school experience. Bill would 

serve the vacancy created on the Circuit Court last year when 

Judge Thomas Nelson, one of the two Idaho-based judges on the 

Ninth Circuit, became a senior judge on the court. 

The entire Idaho delegation supports this nomination, and we appreciate your leadership, Senator Craig, in moving this nomination 

through the Judiciary Committee. 

Bill has the experience and the temperament which will allow 

him to serve with distinction on the Ninth Circuit. As legislative 

counsel to our former colleague, Senator Alan Simpson, of Wyoming, Bill gained firsthand experience with the very nominations 

process he is now going through. 

Bill’s experience as assistant to the Attorney General during the 

first Bush administration will serve him well also. I understand 

that his boss at that time, former Attorney General Dick 

Thornberg, has endorsed Bill’s nomination. 

From there, Bill continued in the Executive Branch, serving as 

deputy general counsel for programs at the Department of Energy. 

Bill returned to the private sector in 1993, serving as an advocate 

for Federal lands issues and also as a member of a Boise law firm, 

where he handled litigation, legislative advocacy and transactional 

work. 

As an attorney, he has handled cases from the State Court level 

to the U.S. District Court level, as well as at the United States Supreme Court. Most recently, Bill served as solicitor for the U.S. Department of Interior, a position for which Senate confirmation was 

required and achieved. 

Bill is also a past vice Chairman of the Public Lands and Land 

Use Committee of the American Bar Association Section on Environment, Energy and Resources. As those of us from the Western 

States that make up the Ninth Circuit know, this knowledge and 

firsthand experience with energy, agriculture and public lands 

issues is certainly an asset, if not a requirement, for a judge sitting 

275

on the Ninth Circuit Court of Appeals. The public lands expertise 

is particularly key for a State like Idaho, where 64 percent of the 

almost 34 million acres is now owned by the Federal Government. 

I am pleased to recognize the broad bipartisan support we are 

seeing for this nomination from people who have worked with Bill 

and know him well. This includes support from President Bush, 

many members of Congress, former Senator Alan Simpson, former 

U.S. Attorneys General Thornberg and Barr, President Jimmy 

Carter’s Interior Secretary and four-term Idaho Governor, Democrat Cecil Andrus, and President Clinton’s ambassador to Ireland 

and two-term Wyoming Governor, Democrat Mike Sullivan. 

I am also aware that there are certain special interest groups 

that are expressing some criticism over this nomination. It is important to note that this criticism is largely over the policies advocated by the administrations or the clients that Bill served as a requirement of his job. Such criticism has no bearing on the experience, temperament or overall qualification of Bill Myers himself to 

capably serve on the Ninth Circuit. 

The size and caseload of the Ninth Circuit makes it even more 

critical that vacancies are filled immediately. The Ninth Circuit 

serves a population well over a third larger than the next-largest 

circuit. The Ninth Circuit has the largest caseload of any circuit. 

The median time for completing a case decision in the Ninth Circuit is 14.4 months. The same appeal would take 9.9 months in the 

Fifth Circuit or 8.5 months in the Second Circuit. I have the fullest 

confidence that Bill Myers possesses the qualities necessary to capably serve the citizens of the Ninth Circuit, and I join my colleague, Senator Craig, in urging this Committee to vote favorably 

on this nomination. 

Thank you very much, Mr. Chairman. 

Senator CRAIG. Mike, thank you very much for that testimony. 

We have been joined by our colleague, Senator Feingold. Do you 

wish to make any opening comment prior? 

Senator FEINGOLD. Mr. Chairman, I will defer and ask questions. 

Senator CRAIG. Thank you, Mike. 

We will proceed then with our first panel. Let me then, prior to 

calling any of our nominees forward, turn to the senior Ranking 

Member on this Committee, Senator Pat Leahy. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. As I said, I know the 

other Senators have to come and go. You and I have to stay, so I 

waived my opening statement earlier. 

This is interesting what is happening. I recall, after the attacks 

of September 11th, and the anthrax letters in October 2001, we 

continued to work. I held hearings, even though I had received one 

of those letters, we held hearings in the Capitol. One of the nominees actually had to drive here because the flights were cancelled, 

and we are now under major inconvenience in the Senate with office buildings closed. One will open in a few hours, the others not 

until later this week or next week. 

276

So I commend all of the Senators on both sides of the aisle who 

have worked hard to make sure we can go forward with this, and 

I commend you, Mr. Chairman, for doing it. 

I look forward to the testimony of William Myers to the Ninth 

Circuit Court of Appeals, and I think that it is extremely important 

that this Committee in the Senate realize what is involved with 

our advise and consent. It is important to recognize the Senate has 

already confirmed 171 of President Bush’s judicial nominees. In the 

17 months, when the Democrats were in the majority, I was Chairman, we confirmed 100 of President Bush’s nominees. In the other 

20 months that the Republicans have been in charge, another 71 

were confirmed. So we have confirmed them in record number. 

That is in sharp contrast to the way President Clinton’s nominees 

were held up, usually, if one or two people objected. 

Every one of the judges, no matter what level they are, they have 

lifetime appointments. They are going to have a major impact on 

our Nation. William Myers has been nominated to the Circuit 

Court with an expansive reach. The Ninth Circuit, as the Chairman knows better than anybody else sitting here right now, encompasses Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. 

In addition to the tens of millions of people within those States, 

there are hundreds of millions of acres of public land. It plays an 

enormous role—the court does—in interpreting and applying a 

broad range of environmental rules and protections. Now, those 

rules are important not just to us today, but to millions of Americans yet to be born and have come under increasing attack, I believe, during this administration. We want to know if Mr. Myers’ 

nomination fits into the pattern of actions by the President to roll 

back our environmental laws. 

What are at stake are environmental protections which can be 

struck down. Taxpayers do not pay polluters, according to the extreme expanse of the Takings Clause that some judges have begun 

to adopt. we would want to know what Mr. Myers’ understanding 

of the Takings Clause is and whether he intends to force taxpayers 

to pay whenever a regulation affects land use in some ways and 

what standards will he use in deciding these matters. 

We want to know whether he endorses an interpretation of the 

Constitution that prevents citizens from suing their States if there 

are environmental violations. What is at stake, of course, is whether citizens can sue for environmental protection. 

In the era of ballooning Government deficits and cuts in environmental enforcement budgets, there is much at stake if courts eliminate or minimize the critical role of private attorneys general, who 

are needed to ensure that polluters are complying with Federal 

mandates. 

A judge has a duty to enforce protections imposed by environmental laws. The Senate has a duty to make sure that we do not 

put judges on the bench whose activism and personal ideology will 

prevent fair and impartial adjudication. 

The President has sent the Senate an unusually large number, 

and I have been here for 30 years, both Republican and Democratic 

Presidents, and I have never seen such a large number of judicial 

nominees who seem to be ends oriented in their approach to the 

277

law. Some appear to be too extreme, and they have not gone 

through. 

Now, we are seeing nominees who many feel are being awarded 

lifetime appointments to the Federal Courts as part of a spoil system for those who are well-connected, and I am sad to report that 

many of my concerns about the President’s nominees have already 

been borne out in the short time they have been on the bench. 

They have shown them selves to be judicial activists and ends oriented, issuing troubling opinions on civil rights, constitutional liberties and environmental protections. It was a Bush-appointed 

judge who dissented from the Circuit Court’s decision to enjoin logging while a lawsuit by environmental groups challenged the implementation of a U.S. Forest Service restoration project involving 

timber sales in the Sierra Nevada Mountains. 

So I look at his record. I want to explore his time at the Department of Interior. I notice that his hometown newspaper, his hometown newspaper, where they know him best, opined that the solicitor at the Department of Interior, ‘‘Myers sounds less like an attorney and more like an apologist for his old friends in the cattle 

industry.’’ These are matters that we have to explore. 

Now, there are those who have supported him. There are also 

letters of opposition from more than 90 groups or advocates for civil 

rights, disability rights, senior citizens, women’s rights, human 

rights, Native Americans and the environment, actually, the unprecedented step of the National Congress of American Indians, 

representing more than 250 Tribal Governments has come out in 

opposition to the nominee. 

I know that Mr. Myers has never tried a jury case, never served 

as counsel in any criminal litigation, as far as I know, and that is 

probably why the American Bar Association gave him its lowest 

passing grade. We have to think about that. 

So, to go back to something that the Chairman said, we are operating under unusual circumstances, and I do not think we have 

held a hearing in this hearing room before. The Senate has. I think 

Chairman Sensenbrenner, and Mr. Conyers, and the members of 

the House Judiciary deserve a lot of thanks for their hospitality 

and also the staff, both the Republican and Democratic staff, of the 

House who suddenly have these interlopers, I appreciate what they 

have done. 

So thank you, Mr. Chairman. 

Senator CRAIG. Thank you, Senator, for that opening statement. 

Senator Kennedy has now joined us. Do you wish to make an 

opening statement? 

Senator KENNEDY. No. Thank you very much. 

Senator CRAIG. Well, then let me ask our nominee for the Ninth 

Circuit, William Myers, to please come forward. 

Mr. Myers, while you are standing, let me administer the oath. 

Would you please raise your right hand. 

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

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

truth, so help you God? 

Mr. MYERS. I do. 

278

PRESENTATION OF WILLIAM GERRY MYERS III, NOMINEE TO 

BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. 

LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAIG. Please be seated. 

Before I ask you to make any opening comments you would wish 

to make and to introduce your family, I will make my opening comment in your behalf. 

To my colleagues, and to those of you assembled, I have the 

honor and the pleasure this morning of chairing a Committee while 

it considers the nomination of my good friend, William G. Myers, 

III, to be a Circuit Judge on the Ninth Circuit. 

Bill, welcome to the Committee. I trust you will find it friendly, 

but probably very probative. I look forward to hearing your testimony. I would also like to welcome another good friend who has 

already given his testimony, Mike Crapo, who has joined us this 

morning, and he expressed on behalf of all of the Idaho Congressional delegation its unanimity of support on behalf of Bill Myers. 

Bill Myers was nominated by the President on May 15th, 2003, 

for this extraordinary opportunity to serve the United States as a 

Circuit Judge. As you know, our State of Idaho, as Senator Leahy 

mentioned, resides within the Ninth Circuit. Bill’s chambers will be 

in Boise, Idaho. Once confirmed, Bill will fill the vacancy created 

by Judge Thomas Nelson. Senator Crapo has already spoken to the 

senior judge and his taking senior status. Judge Nelson has served 

our country and the Ninth Circuit very honorably. 

I feel Bill’s experience in the three branches of Government will 

serve him well as a judge. 

First, he served this body—by that I mean the Senate—when he 

was lured to Washington, D.C., by Senator Alan Simpson. One of 

Bill’s key responsibilities was to staff Senator Simpson as a member of this Committee, including nominations to the very court to 

which Bill now aspires. Bill staffed the nomination of Judge Stephen Trott of the Ninth Circuit, whose chambers are also in Idaho. 

And Al Simpson endorses the nomination of Bill, and I ask that his 

letter become a part of the record. 

Second, after working in the Senate, Bill began his first tour of 

duty in the Executive Branch, first, as an assistant to Attorney 

General of the United States Dick Thornberg. Senator Crapo has 

already mentioned that, and later, as deputy general counsel for 

Programs at the Department of Energy. Former Attorneys General 

Dick Thornberg and William Barr endorse Bill’s nomination, and I 

will make their letters a part of the record. 

Recently, Bill completed another appointment to the Executive 

Branch as solicitor at the Department of Interior, where he was the 

third-ranking official in the Department and in charge of over 300 

attorneys. President Carter’s Secretary of Interior and of course 

Governor of Idaho, Cecil Andrus, endorses Bill’s nomination, and 

his letter will become a part of the record. 

Let me also add to that record letters from Quapaw Tribe of 

Oklahoma, the Chickasaw Nation, bipartisan letters from 15 attorneys general, the Governor of our State, Governor Dirk Kempthorne, and Michael Dennis, director of Conservation, Real Estate 

and Private Lands for the Nature Conservancy. I believe those letVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00290 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
279

ters demonstrate a phenomenally broad base of support that William Myers received. 

Third, as a private practitioner, Bill has represented clients before the justice of the peace and the Justices of the Supreme Court 

in a wide variety of litigation and transactional matters. This diversity of practice is important. It has imbued Bill with one of the 

fundamental precepts of our constitutional system of Government, 

separation of powers. Perhaps nowhere is the importance of this 

bedrock principle more important than in the judiciary. Because 

judges are not elected and serve for life, they have the greatest opportunity to usurp the authority of the other branches. I am convinced that Bill understands and respects, from years of firsthand 

experience, the constitutional role given to each branch. 

As Thomas Jefferson said, I had rather ask an enlargement of 

power from the Nation, where it is found necessary, than to assume it by judicial construction which would make our powers 

boundless. 

Now, let me tell you a little bit about Bill Myers, as I know him 

personally. I came to know Bill well when he represented the 

cattlemen and women in the early 1990’s. He was a reasonable and 

effective voice for his clients who comprise the single-largest sector 

of America’s agricultural economy, but the call of the West became 

too strong to ignore, and Bill and his family moved to Idaho. 

Returning to private practice in one of the country’s preeminent 

law firms, Bill continued to dutifully represent his clients, as all 

lawyers must. When the Bush-Cheney administration took office, 

Bill told me he was willing to again serve the public, and I prevailed upon him to seek and become the solicitor at the Department of Interior. The President nominated Bill for that post, with 

the advice and the consent of the Senate. He took office on July of 

2001. 

A few critics of this administration’s natural resource policies 

would have you believe that Bill should not be confirmed. They 

bandy about perceived wrongs, in my opinion, but all they have 

demonstrated, with certainty, is two truths; that, first, the solicitor 

is the chief legal officer in a department that is controversial in 

every administration by the very nature of its mission and, second, 

these critics desire to capture the judiciary by opposing nominees 

who do not display activist tendencies that might work to their advantage. 

The second point I wish to remind these critics of the sage advice 

of a Founding Father by the name of Alexander Hamilton, when 

he wrote that ‘‘Considered men of every description ought to prize 

whatever will tend to beget or fortify integrity and moderation in 

the courts, as no man can be sure that he may not be tomorrow 

the victim of a spirit of justice by which he may be a gainer today.’’ 

Critics of the nomination purposely confuse the appropriate role 

of the lawyer and the judge by suggesting that Bill Myers has been 

a strong advocate of his clients. He will continue to advocate from 

the bench, they would suggest. Of course, they offer nothing but 

supposition in support of this logic. 

If their theory were correct, no practitioner would be qualified to 

serve the judiciary, and their fears are allayed by a fair review of 

Bill’s public service. His record as solicitor shows balance and 

280

mainstream decisionmaking; for example, opposition to trespass to 

innholders in the National Parks of Alaska, empowerment of trespass livestock on the Federal lands of Nevada, expansion of a national monument in New York, support for reinternment of Native 

American remains, recognition of tribal boundary rights in New 

Mexico, record penalties for failure of companies to pay gas royalties, support of settlements of trial water rights claims, enhanced 

payments of royalties on the outer continental shelf. 

Bill brought to the Office of the Solicitor the skills he honed in 

the private practice and in public service. He displayed the integrity, intelligence and temperament essential in good governing and 

absolutely critical in good judging. 

The President recognized these qualities again by nominating 

Bill Myers to this judgeship. Leaders in the field of law have written to the Committee supporting Bill’s qualifications to be a circuit 

judge. I ask that their letters become a part of the record. They include Congressman Henry Hyde, Wyoming Supreme Justice 

Marilyn Kite, attorney general of the State of Idaho, Lawrence 

Wasden, Chairman Carol Dinkins, for the ABA Committee of the 

Federal Judiciary. 

I thank you. I am proud to bear witness on behalf of Bill Myers 

to be the next Ninth Circuit judge in Idaho. Presidents, Attorneys 

General, Cabinet Secretaries, Senators and enumerable clients 

have all reposed special trust and confidence in Bill’s integrity, his 

intelligence and his temperament. These qualities are the standards the Senate has used to measure the worth of judicial nominees since the founding of this great Republic. I wholeheartedly 

recommend that we consent to this nomination, and I offer this testimony to all of my colleagues and to the entire Senate. 

With that, Mr. Myers, let us turn to you for any opening comments you would like to make, and I would trust that you might 

want to introduce that marvelous family of yours. 

STATEMENT OF WILLIAM GERRY MYERS III, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Mr. MYERS. Thank you, Senator. I appreciate that opportunity, 

and I want to thank the Committee for holding this hearing. It is 

an inconvenience for you to come to the House side, given current 

events. I know it is extraordinary, and I appreciate that. 

I would take advantage of the chance to introduce my family, if 

I might. Behind me, I have my mother and father, Ruby and Gerry 

Myers, and seated next them are my wife, Sue Myers, my daughters Kate and Molly, and then next to Kate is my mother-in-law 

Pat Benzer, and behind her, my sister-in-law, Linda Benzer. 

Senator CRAIG. Thank you. We welcome you to the Committee. 

Please proceed. 

Mr. MYERS. I have no opening statement, Senator. I stand for 

questions. 

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Senator CRAIG. Well, thank you very much for consenting to be 

nominated, first, Bill, to the Ninth Circuit. It is a controversial 

court. In fact, some judges on the Supreme Court would suggest 

that it has become the most dysfunctional Circuit Court in the Nation. I guess they measure that on the number of cases brought 

from the Circuit to the Supreme Court that they have overturned. 

You have heard, by opening statements of my colleague, Senator 

Leahy, that there are questions of your record brought by a variety 

of groups from across the country. So, in my first 10 minutes of 

questioning, let me touch on a couple of areas that I would like you 

to respond to. 

Too often we hear various interest groups, opposed to particular 

judicial nominees, issue sound-bite attacks that are backed up by 

nothing more than probably the shrillness of their rhetoric. Such 

is the case, I think, with you, Mr. Myers, as being viewed by some 

as anti-environmental. So let me proceed with questions in that 

area in my first round. 

For example, Mr. Myers, have you not worked as a volunteer in 

seven different national parks, probably logging more hours of total 

volunteerism than any nominee we have ever had before this Committee? 

Mr. MYERS. Well, I certainly don’t know about the other nominees, but, yes, you are correct, Senator. I have spent a fair amount 

of time volunteering for both the National Park Service and occasionally for the national forest in the U.S. Forest Service System. 

I think, as I looked back in preparation for this hearing, at the 

time, I was surprised myself as to the amount of time I have put 

in. Over the last 15 years, I have averaged about 12 days a year 

in volunteer work on such things as campground cleanups, trail 

maintenance, visitor services and information, back country patrols 

and the like. It has been a wonderful opportunity to get outside 

and enjoy the grandeur of our National park system and do a little 

bit for the Park Service. 

Senator CRAIG. I hope you took your daughters with you. 

Mr. MYERS. Most of that was before children, when I had the 

time to go. 

[Laughter.] 

Senator CRAIG. All right. As Interior Department solicitor, you 

successfully settled numerous cases brought by environmental 

groups against the Federal Government. 

Can you tell us about a few of the high-profile disputes that you 

settled in favor of environmental groups, such as the Penobscot—

I can usually handle Western Indian names, but not always—Penobscot River matter in Maine, that $49-million settlement with 

Shell Oil based on its activities in the Gulf and the expansion of 

Governor’s Island National Monument in New York Harbor. Touch 

on those different cases, if you would, please, for the record. 

Mr. MYERS. The first one that you mentioned, Senator, involved 

the Lower Penobscot River, which is home to the Penobscot Indian 

Nation. It also happens to be the location of eight power projects, 

hydropower projects, and three dams. It also would have been, historically, the run for Atlantic salmon and some fish that are perhaps not as charismatic, such as the Atlantic eel and the Atlantic 

327

shad. Because of the dams, those passages were blocked to the migrating salmon. 

A deal was worked out, while I was at the Department of Interior as solicitor, with the involvement within the Department of the 

Park Service, the Bureau of Indian Affairs, the Fish and Wildlife 

Service, and the Indian Nation, the hydro interests that were 

present on the river and the State of Maine. We were able to reach 

an accord and establish a system of going forward whereby those 

three dams will either be removed or significantly altered to allow 

for fish passage. 

We also provided for compensation and mitigation to the Indian 

Nations for any impact that might have on them, and I think it 

was a good example of a project which, by virtue of collaboration 

and a lot of time around the table, hammered out quite an extraordinary deal to bring about an expansion of that fish passage. 

The other one I believe you mentioned was the Shell Oil matter 

in the Gulf of Mexico. It came to light that the company had been 

flaring gas from one of its off-shore platforms without permission 

of the Federal Government and without keeping adequate records 

of that flaring. Once that was discovered, we obviously were quite 

concerned at the Department of Interior, worked with the Department of Justice, and as a result of that, we were able to reach a 

settlement which involved a record payment in the history of the 

Minerals Management Service by a company for these types of violations. It was $49 million in payment for the illegal activity, for 

the loss of the natural gas, for the failure to maintain adequate 

records. In addition, the company agreed going forward to get its 

recordkeeping in order and to no longer flare that gas illegally. The 

coffers of the Treasury were enhanced by $49 million. 

The final example that you raised was Governor’s Island National Monument, which is in New York Harbor. It is a wonderful 

island that most people only see perhaps as tourists when they 

travel between the mainland or Manhattan Island and Ellis Island 

and the Statue of Liberty. It was originally a fortress built for the 

protection of the harbor and the river, and includes Castle Williams and Fort Jay that date back to the early 1800’s. 

It has been in Federal hands for some 200 years, but the decision 

was made by President Clinton to place a portion of the island in 

National Monument status. When this administration came in, we 

supported that designation, but we discovered that because of a 

statute that was on the books, the statute required, in spite of the 

monument designation, that the island be sold with a right of first 

refusal to either the City or State of New York. We were able to 

work with the City and State of New York, arrange for the transfer 

in order to meet the legalities of the statute, in essentially a simultaneous transfer back that not only maintained the original monument, but actually increased the acreage to obtain some additional 

property that was crucial for the monument’s protection. 

Senator CRAIG. Well, thank you very much. 

Let me point out that in the Colvin v. Snow, and several other 

similar cases, you specifically authorized the regional solicitor in 

Nevada to seek enforcement actions against ranchers who refused 

to pay applicable grazing fees for their use of public lands, and you 

did not support the Government’s pursuit of a preliminary injuncVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00339 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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tion against a farmer that had destroyed Marble Creek, one of the 

last natural streams flowing out of the National Forest System 

lands in California’s White Mountains, by entering onto public 

lands with a bulldozer and replacing the sediments in the creek 

with a pipeline. 

Would you speak to those examples of actions you took as solicitor. 

Mr. MYERS. Certainly, Senator. I appreciate that question. Both 

of them deal with ranching on BLM lands. 

The first one was a standard trespass action, if you will. Occasionally—rarely, thankfully—ranchers who utilize Federal lands 

will allow their livestock to trespass off of the area that is designated for them by the Bureau of Land Management or the U.S. 

Forest Service. When that happens, it is a trespass because those 

livestock are grazing where they should not be. 

In the Colvin matter, that came to our attention. It was brought 

to my attention, and I said, certainly, let’s prosecute this. It is important I think to establish that so that other ranchers who might 

consider similar trespass actions know that that is not permitted. 

The second example is a little more dramatic, frankly. That was 

entitled, a case, of Harris v. United States in which a rancher, 

while administrative litigation and settlement discussions were 

pending, decided to exercise self-help and took a bulldozer to a 

creek, approximately a quarter-mile stretch of the creek, wiping out 

obviously the riparian habitat, destroying the creek, and he then 

went on to install a pipeline to divert the water for his livestock 

use. In order to access the creek, he took out about—oh, I don’t remember the exact reach—but a 15-year-old fence that was between 

his bulldozer and the creek. 

When BLM personnel discovered this, they immediately came to 

us. We went to the Department of Justice, requested that a motion 

for a preliminary injunction be filed in the Federal Court to enjoin 

Rancher Harris from further such activity to prohibit him from approaching that creek with anything more than a shovel, in order 

to maintain a ditch right that he had, to give the BLM a day’s notice before he would go to his allotment and to be prepared to pay 

the damages. The Court has entered that injunction. 

Senator CRAIG. Well, my time is almost up, so I am going to 

move on to our other colleagues. We are using 10 minutes so that 

we can move through those of you who have assembled. So let me 

first turn to Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

Mr. Myers, I think, as you know, of course, you are being considered for this position as a Federal judge, one whose job it is to interpret our Federal statutes and apply Federal laws, and you made 

some pretty significant statements about the role of the Federal 

Government with regard to protecting the environment, and they 

do trouble me. 

You wrote, for example, that the Government’s ‘‘endless promulgation of statutes and regulations harm the very environment it 

purports to protect.’’ 

You have also compared the Federal management of public lands 

to King George’s tyrannical reign over the 13 Colonies, asserting 

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that public land safeguards the fueling of a modern-day revolution 

in the American West. 

Which statutes and regulations were you referring to? 

Mr. MYERS. Senator, those comments, that was approximately 

1995, I believe. 

Senator LEAHY. It was 1995. 

Mr. MYERS. And at that time, I was representing Federal Lands’ 

livestock interest and writing on their behalf. I was not referring 

to a specific statute or regulation. It was more of a tenor that a 

certain element of the industry believed was the case and that they 

were concerned on the assumption—and I think correct assumption 

that the vast majority are law-abiding citizens—that they were 

concerned that regulations intended to properly punish wrongdoers 

were having an adverse impact on their ability to lawfully ranch 

on Federal lands and, as a result, was making it more difficult for 

them to— 

Senator LEAHY. Mr. Myers, that is not really answering the question. 

I look at this statement, and having been born in part of the area 

that was originally part of one of the 13 Colonies, and we still 

think of history as being recent where I come from, I still want to 

know, I mean, there must be something in here if you are going 

to compare our Government, and its regulations, and its statutes 

to King George’s reign over the 13 Colonies. I mean, you just cannot say, well, generally. You know, you would not accept that if you 

were in a court. You would not accept that from a lawyer. 

This is a pretty explosive statement. Can you give me even one, 

even one statute or regulation you were referring to that equates 

the U.S. Government to King George’s tyrannical reign over the 13 

Colonies? 

Mr. MYERS. Putting that article in the context of the time, that 

was the year that the regulations came out from the Department 

of Interior significantly changing the way that ranchers would operate on Federal lands, and it was in the context of that setting 

that ranchers were concerned about the impact of those particular 

regulations. 

When I said or made the statement that there was concern about 

the tyranny of the regulations, it was not in reference to Government employees or— 

Senator LEAHY. I am not suggesting that. I mean, we are talking 

about our Government. 

Mr. MYERS. Right. It was— 

Senator LEAHY. I love our Government. I respect our country, 

and to have our Government referred to as being like King 

George’s time, it sort of strikes this Vermonter, well, with some apprehension. I am not suggesting you are nailing the loyal, hardworking employees and all. All I want to know is, I mean, tell us 

which statutes and regulations you believe are so harmful and 

unneeded that they make us like King George. I mean, words have 

meaning, Mr. Myers, and you are a very intelligent man, and when 

somebody goes and makes a statement that goes that far, I mean, 

you must have something that you are basing it on. 

330

Mr. MYERS. Other phrases which were not of my authorship, but 

had been used in that time, were ‘‘Sage Brush Rebellion,’’ ‘‘War on 

the West,’’ and it was all— 

Senator LEAHY. Mr. Myers, these are not the people who were up 

here for—I really wish you would answer my question. I do not 

care what other people said. What statutes and regulations were 

so harmful or unneeded? 

Mr. MYERS. It was in the context of the regulations of Secretary 

Babbitt regarding rangeland reform. It was called ‘‘Rangeland Reform 1994,’’ and this was 1995. 

Senator LEAHY. So that was unneeded? 

Mr. MYERS. No, Senator, my point was that the overall approach 

of the regulations was having an adverse impact on the vast majority of the people that I was representing, at least in their perception. That is what they told me, and that was the message that 

they asked me to carry forward. 

Senator LEAHY. So this was not your thought. I mean, which is 

it? 

Mr. MYERS. I was writing— 

Senator LEAHY. So you are not prepared to identify any statutes 

or regulations that you felt were totally unneeded and may still be 

on the books. 

Mr. MYERS. It was in the context of the rangeland reform regulations that I wrote that. 

Senator LEAHY. So you felt those were unneeded, harmful. I am 

not trying to put words in your mouth. I am trying to figure out 

what you were meaning. 

Mr. MYERS. I was advocating on behalf of my clients who believed that they were harmful to their business. 

Senator LEAHY. Well, let’s go to another point. How are we on 

time, Mr. Chairman? 

Senator CRAIG. You have got about four left. 

Senator LEAHY. Mr. Myers, you made a statement in a Hastings 

Law Review article about special interest groups working on environmental issues. Let me quote what you said. You said, ‘‘Like 

water searching for the path of least resistance, interest groups 

will seek the path of least governmental resistance. If the organizations are unable to fulfill their agenda through legislation and the 

executive branch, then they will focus their efforts on litigation 

that may provide a favorable judgment. The conventional wisdom 

of lobbyists holds that chances of obtaining a favorable judgment 

increase when judicial nominees are confirmed who are sympathetic, either through judicial philosophy or political philosophy, to 

the causes of that group.’’ 

Now, you spent most of your career as a lobbyist or activist in 

anti-environmental efforts. I mean, it seems to me you are writing 

about yourself in there. 

Now, having said that, why should we feel that you are going to 

stand and be objective and not be the person you are advocating 

for who would be in sympathy with interest groups you have represented for so long? 

Mr. MYERS. I believe it is the great strength of our judicial system that, while the conventional wisdom is that you look for a 

friendly judge, quite often that effort is disappointed because 

331

judges who are on the bench do an excellent job of disregarding 

public appeal or personal opinion and apply the law to the facts. 

So while I do think that that conventional wisdom holds within 

advocacy groups, it is my belief that it is often disappointed. And 

I can assure you that if I am so fortunate as to be confirmed, it 

will not play a role in my decisionmaking. 

Senator LEAHY. Well, I will have other questions that I will submit for the record, but I have the same test, and I have used this 

for 29 years here with judicial nominees. And I have voted for and 

against nominees of both Republican and Democratic Presidents. I 

do not give an automatic pass even if it is a President of my own 

party. 

I ask for a judge, if a litigant walks into that courtroom that—

it doesn’t make any difference whether that litigant looks at the 

judge and thinks, well, gee, I am the wrong political party, I have 

the wrong political philosophy, I am the plaintiff or I am the defendant, or I am rich or I am poor, black, white, whatever. I think 

they look at the judge and say I want to get a fair hearing. Win, 

lose, or draw, it is going to be a fair hearing. And to get my vote, 

you are going to have to convince me that everybody, both those 

who advocated for and those you advocated against—it is basically 

very clear who you advocated for. But a lot of people come to the 

courts from the side you advocated against, that they are going to 

get a fair hearing from you. 

Thank you, Mr. Chairman. 

Senator CRAIG. Thank you, Senator. 

Now let me turn to Senator Ted Kennedy. Ted? 

Senator KENNEDY. Thank you, Mr. Chairman. 

Welcome, Mr. Myers. We are going to try and get over the fact 

that you work for Al Simpson. 

Mr. MYERS. Thank you, Senator. 

Senator KENNEDY. That is a big, big burden. 

Actually, as you know, he has been a good friend and someone 

all of us have a good deal of admiration and respect for. 

Senator CRAIG. Then we are trusting that all of you will take Al’s 

advice in this matter? 

Senator KENNEDY. We are always glad to listen. 

[Laughter.] 

Senator LEAHY. If he had nominated Al, it may be a different 

thing. 

Senator KENNEDY. Thank you. 

In 2001, as the Solicitor General of the Interior Department, you 

issued a formal opinion that undercut the Interior Department’s 

ability to limit mining that harmed public lands, and that opinion 

paved the way for a foreign company to erect a 1,650-acre open-pit 

gold mine in the heart of a California desert conservation area in 

America’s most culturally and ecologically sensitive areas. The previous administration had decided not to permit the mine, known as 

the Glamis Imperial Gold Mine, because as described by the Advisory Council on Historic Preservation, allowing the mine to be built 

would mean that the Quechan Tribe’s ability to practice their sacred traditions as a living part of their community life and development would be lost. 

332

As a result, under the previous administration, the Interior Department concluded that the mine would violate the Federal Land 

Policy Management Act, which prohibits mining that causes unnecessary or undue degradation of Federal lands. And under the 

FLPMA, the Interior Department has a duty to protect the public 

lands from mining that cause either unnecessary or undue degradation. However, your opinion as the Solicitor General concluded 

that the words ‘‘unnecessary or undue’’ actually meant their exact 

opposite, ‘‘unnecessary and undue.’’ 

And in the case of the Glamis Gold Mine, your interpretation 

meant that although the open-pit mine would have caused undue 

degradation of America’s public lands, it was legal because it was 

necessary to the foreign mining interests. 

A Federal court recently concluded that your opinion misconstrued the clear mandate of the FLPMA, which by its plain 

terms vests the Secretary of the Interior with the authority, indeed 

the obligation to disapprove of an otherwise permissible mining operation because the operation, though necessary for mining, would 

unduly harm or degrade the public land. The court also held that 

you ignored well-established canons of statutory construction. 

Those are the two observations, including the basic rules that 

Congressional language should be given its ordinary meaning and 

every word should be given effect whenever possible. The court concluded that in enacting the FLPMA, Congress’ intent was clear. Interior is to prevent not only unnecessary degradation but also degradation that, while necessary to mining, is undue or excessive. 

I am troubled by the implication of your view that under the 

FLPMA the Interior Department could prevent only mining that is 

both unnecessary and undue. Under your reading of the law, the 

Act wouldn’t not prevent even the most environmentally devastating mining efforts unless those efforts were completely unnecessary to the mining operation. 

Since we can expect that mining companies will act in their own 

self-interest and will not engage in unnecessary efforts, it is hard 

to see how your view of the law would prohibit any mining efforts 

at all. 

So doesn’t your interpretation of the FLPMA pull the rug out 

from under the requirements that the Interior Department protect 

the Federal lands? 

Mr. MYERS. Thank you, Senator, for the question. Let me address 

that. 

The decision that you refer to, a recent decision by Judge Kennedy in the district court, looked at a facial challenge to the regulations that were promulgated by the Department of the Interior in 

2001 dealing with this kind of mining activity. The judge ruled in 

favor of the Department, finding that the regulations were valid because they would not allow undue or unnecessary impairment of 

the public lands. And the Department’s regulations were promulgated in some part because of my opinion that preceded them. So 

the Department, my client, felt vindicated by the judge’s decision. 

With regard to the specifics of the issue, in my opinion, I did find 

some ambiguity in that key phrase. The first administration to define that phrase was the Carter administration in 1980 when it 

promulgated the regulations after the passage of FLPMA, or the 

333

Federal Lands Policy Management Act, in 1976. That regulatory 

definition for unnecessary or undue impairment withstood the test 

of time for some two decades and never received a Federal court 

challenge. 

In the year 2000, that Carter administration definition was 

changed with the addition of a standard known as the substantial 

irreparable harm standard. And in my opinion, that was the focus. 

Was the addition of the substantial irreparable harm standard in 

faithful compliance with the underlying statute? In my opinion it 

was not, and the Department of the Interior removed that standard 

and the court approved that decision. 

Senator KENNEDY. Well, the court said, with regard to your opinion, ‘‘misconstrued the clear mandate, which by its plain terms’’—

that is about as tough a comment about a position, in terms of the 

court. And then, to continue, the court also held that you ignored 

the well-establish canons of statutory construction. 

You might have had your own kind of thinking that there has 

been some change. Those are two observations that are about as 

tough a criticism as one could have. 

Let me continue. I am troubled by the implications of your view 

the Interior could prevent only the mining that is both unnecessary 

and undue. Under your reading of the law, the FLPMA wouldn’t 

prevent even the most environmentally devastating mining efforts 

unless those efforts were completely unnecessary to mining operations. Since we can expect that mining companies will act in their 

own self-interest, will not engage in unnecessary efforts, it is hard 

to see how your views of the law would prohibit any mining efforts. 

I would like to ask you about another aspect of the involvement 

of the Glamis Mine matter. As you know, the Quechan Tribe was 

directly affected by the Interior’s decision to permit the mining interests from outside this country to create an open-pit mine near 

cities that were crucial to the tribe’s religious and cultural life. 

Your opinion in the Glamis matter is disturbing not only because 

it misinterpreted the Federal law, but also because you and the 

Secretary made a decision in this matter without any governmentto-government consultation with the members of the Native American tribe, whose religious liberty and cultural heritage was at 

stake. Yet the Department of Interior met with the representatives 

of the foreign mining company, seeking to build a gold mine in the 

California desert conservation area. 

Because of your position in the Glamis Mine matter and other 

matters affecting Native Americans, the National Congress of 

American Indians, which to my knowledge has not taken a position 

on any other of President Bush’s judicial nominees, has written to 

this Committee opposing your nomination. And could that letter be 

a part of the record, Mr. Chairman? 

Senator CRAIG. Without objection. 

Senator KENNEDY. So why did the Interior decide not to consult 

with the tribe before making a decision that so clearly affected the 

tribe’s religious freedom and culture? 

Mr. MYERS. The Department of the Interior, through the Bureau 

of Land Management, which was the agency with the primary authority over this mine site, consulted with the tribe about their concerns. 

334

Senator KENNEDY. But did you ever talk with them at all? 

Mr. MYERS. No, I did not, Senator. I proceeded to look at this 

issue when I first arrived at the Department. When I got there, the 

regulation that was underlying this decisionmaking had been suspended by the Department. In addition, there were four Federal 

pieces of litigation pending. So when I got into the Department, I 

was handed a notebook with a number of hot issues, and one of 

those was this particular mine site because of the litigation and the 

suspension of the regulations. 

So I turned to it immediately to determine on a fairly narrow 

point of law whether there was a problem with the underlying legal 

decisionmaking. 

Senator KENNEDY. Well, the Department met with the mining 

company, but you did not feel that it was necessary to meet with 

the tribe. 

Mr. MYERS. It wasn’t, Senator, that I felt it was unnecessary— 

Senator KENNEDY. Well, did you ever make a recommendation 

that you should meet with the tribe? 

Mr. MYERS. That I should meet with them? 

Senator KENNEDY. Yes, or you or someone else, did you ever 

make that recommendation? 

Mr. MYERS. Well, I was informed that the Bureau of Land Management was consulting with them, and I thought that was appropriate. 

Senator KENNEDY. Did you know whether they had talked to, 

met with them on this case? 

Mr. MYERS. Yes, I was told— 

Senator KENNEDY. But you did not feel as the person that was 

involved—did you ever meet with the other side? 

Mr. MYERS. I did, but not upon invitation. My door was open, 

and they called for a meeting. 

Senator KENNEDY. Well, your door is open. I am asking, it is 

open to one side and not open to the other? Did you ever feel— 

Mr. MYERS. No. 

Senator KENNEDY. —that when one side came in, the other side 

ought to be invited in? 

Mr. MYERS. It was, Senator, open to both sides and— 

Senator KENNEDY. But one—just so I have it straight. It was 

open. 

Mr. MYERS. Yes, sir. 

Senator KENNEDY. But one side came in, and then when you saw 

the one side, did it ever occur to you that you probably ought to 

see the other side, too? Or are you going to leave it up to the Indians? 

Mr. MYERS. It didn’t really, Senator, because I had already started my opinion, and— 

Senator KENNEDY. You started your opinion? 

Mr. MYERS. I had started it prior— 

Senator KENNEDY. When? After you talked to the gold mine? 

Mr. MYERS. No, sir. Before. 

Senator KENNEDY. Before. Before you even gave consideration to 

seeing—well, you know, even if your job is to interpret the law, the 

legal standard has to be assessed in light of the facts. And I think 

335

it would have been helpful to learn the facts, the view, the tribe’s 

view of the facts. 

Is my time up? 

Senator CRAIG. Your time is up. 

Senator KENNEDY. I have other questions, if I could. 

Senator CRAIG. Surely. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Senator CRAIG. We will do another round. 

I am going to take my colleagues in order of their arrival. Let 

me turn to Senator Durbin. 

Senator DURBIN. Thank you, Mr. Chairman. 

Mr. Myers, thank you for joining us. You may be aware from 

press accounts that we are in the midst of an investigation of this 

Committee and computer theft of documents from Democratic Senators and their staff. And the question I am about to ask you does 

not relate to you in any personal way, but it is going to be a standard question which I will ask of all the candidates who come before 

this Committee. 

In preparation for your testimony today before the Judiciary 

Committee of the Senate, did you meet with any staffers on the 

Senate Judiciary Committee staff? 

Mr. MYERS. Yes, sir. 

Senator DURBIN. And did you also meet with any representatives 

of the Department of Justice? 

Mr. MYERS. Yes, I did. 

Senator DURBIN. And any other Federal agencies, the White 

House or any other agencies in preparation for today’s testimony? 

Mr. MYERS. Yes. 

Senator DURBIN. And could you tell me if during the course of 

preparing for this testimony you were given any documents or information which would lead you to believe that they were from 

Democratic Senate staff members or Democratic Senators? 

Mr. MYERS. Not at all. 

Senator DURBIN. I thank you for that very much. We do not 

know the nature and extent of this theft and burglary of the computer documents. I know my office was one of the offices that was 

targeted for the theft of these documents. And once we have established that, I will just say for the record, Mr. Chairman, I am going 

to ask this Committee to ask of all of the nominees who have come 

before us during that period of time basically the same questions 

I have asked of you. But I am very happy that you have responded 

as you have today. 

Let me ask you just a few questions relative to your background 

and the position which you are seeking. Do you feel that you are 

in the mainstream of thinking when it comes to environmental protection? 

Mr. MYERS. Yes, Senator. The only reason I pause is because my 

statements and my writings have been on behalf of clients, whether 

that’s in public service or in the private sector. And I would submit 

to you that those individuals are in the mainstream, by and large. 

Some may not be. 

Senator DURBIN. I know that the role of an attorney is an advocate. I want to ask you: Is there anything that you have written 

on behalf of your clients that you do not personally believe? 

336

Mr. MYERS. I have advocated in some cases where I told the clients I frankly did not think it was a winnable case, that I thought 

my reading of the law and the precedents suggested that it was 

going to be difficult. Certainly there was a colorable argument and 

a fair argument to be made on their behalf, but I gave them advice 

that it would likely be difficult to win going in, and yet I carried 

their argument forward. 

Senator DURBIN. But you have taken that to a different level. 

What you have said to me is you have said to a client someone else, 

some court, may not agree with what I am about to write here. 

Mr. MYERS. Right. 

Senator DURBIN. I want to ask you personally, the things that 

you have written, the legal statements that you have made on behalf of your clients, did you believe them? 

Mr. MYERS. To the extent that as an attorney I believed it was 

important to believe in my clients, and my standard, Senator, essentially, in a nutshell, if you will, is that the client deserves the 

representation as long as they are not asking me to do something 

that’s unethical, immoral, or illegal. And if they pass that bar, then 

I am willing to absorb their cause as my own because I believe it 

makes me a better advocate. 

Senator DURBIN. Well, let me then get into some specific things 

that you have written, and you can tell us now whether you agree 

with them or believe them today or whether they were merely what 

you considered to be a lawyer’s responsibility when you did these 

things. 

You have said some things relative to the Commerce Clause, and, 

of course, that is an important issue for us because for 70 years 

that has been settled law, that the Commerce Clause was basically 

the hook by which the Federal Government had authority to extend 

the rights, liberties, and even restrict some activity by entities, 

businesses, and individuals. And yet what I find I your writings, 

for instance, in a case in my own home State, Solid Waste Agency 

of Northern Cook County v. U.S. Army Corps of Engineers, you argued that Federal regulation of land use is beyond Congress’ Commerce Clause power because that area is traditionally regulated by 

State and local governments. 

Since the Commerce Clause, Mr. Myers, is the authority upon 

which many of our most essential health, safety, environmental, 

and anti-discrimination laws are based, I would like to ask you: 

Are you arguing with that school of—or are you supporting that 

school of thought which rejects the use of the Commerce Clause to 

give the Federal Government its power over issues involving 

health, safety, environment, and discrimination? 

Mr. MYERS. Clearly, the Commerce Clause has an important role 

to play, and the Congress’ interpretation of that clause in exercise 

of its duties to pass legislation is key. There are many examples 

on our statutory code books of the proper exercise of that for environmental, for health, safety, and welfare type of standards. 

In the argument that I was making in the SWANCC case, there 

was a question that the clients had about the applicability of the 

Commerce Clause to this particular municipal land waste site in 

this abandoned strip mine and whether that was a correct extenVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00348 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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sion. So I made that argument on their behalf, along with the 

Clean Water Act arguments. 

Senator DURBIN. Did you believe it? Is that your point of view? 

Is that the view you will take to the bench if you are, in fact, confirmed? 

Mr. MYERS. Well, the Supreme Court didn’t reach that issue in 

its decision. It stuck with the Clean Water Act— 

Senator DURBIN. No, no. I want to know what is in your mind. 

I want to know what you believe. Is that what you believe and is 

that the philosophy you will take to this lifetime appointment? 

Mr. MYERS. I think the best answer to that, Senator, is that I 

would like to follow the Supreme Court’s decisions on that. If I, 

frankly, were to sit here and opine on a personal belief on this or 

that, then litigants who might come before the Ninth Circuit on 

which I would sit, if I am so fortunate to be confirmed, would be 

combing through this transcript to discern my personal views. And 

I, frankly, would not want litigants to think they needed to even 

go there, that they should believe that I would follow the precedents of the Ninth Circuit and of the Supreme Court. 

Senator DURBIN. Mr. Myers, that is what all nominees say. All 

we can go on is what you have done and what you have written 

and what we apparently can conclude that you believe. 

Let me go to a second issue, the issue of property rights, which 

has been central to your life as a lobbyist and your life as a member of the Bush administration and the Department of Interior. 

The case is Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, and you argued that the constitutional right of a 

rancher to put his property to beneficial use is as fundamental as 

his right to freedom of speech or freedom from unreasonable search 

and seizure. That statement, Mr. Myers, runs in direct conflict 

with Supreme Court precedent, which says that there are certain 

rights, certain fundamental rights which are really elevated when 

it comes to our Government. And they have identified the right of 

free speech and the right of freedom from unreasonable search and 

seizure. 

Are you arguing and do you believe that the right to private 

property is at the same level, as you say here, ‘‘is as fundamental 

as the right to free speech’’? Do you believe that when it comes to 

assessing the Government’s activity relative to property rights, 

that it should be subject to the strict scrutiny test which is reserved for the most precious and guarded rights in our Constitution? 

Mr. MYERS. I think probably the best answer to your question, 

Senator, is to refer to the brief from which you are citing, and in 

that passage to which you refer—I did not write the brief, but it 

was a reference to the Supreme Court’s decision in 1994 in the 

property case of Dolan v. City of Tigard. And in that decision of 

the Supreme Court, the Supreme Court said that the Fifth Amendment, which contains, as you know, the Takings Clause, is as much 

a part of the Bill of Rights as any other amendments in the Bill 

of Rights and that it should not be, to use the Court’s words, ‘‘relegated to the status of a poor relation.’’ And using that precedent 

from the Supreme Court, that was the point that we were trying 

to make in that— 

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Senator DURBIN. So you don’t back off? This is what you believe? 

When it comes to strict scrutiny and the most guarded rights under 

the Constitution, the right to property is equal to freedom of 

speech, freedom of religion, freedom from unreasonable search and 

seizure? That is your belief? 

Mr. MYERS. My use of the analysis of strict scrutiny would be, 

I think, primarily in the context of equal protection and due process. But I would stand on the Supreme Court’s decision in Dolan

v. City of Tigard as a statement of the Supreme Court, which is 

binding upon the Ninth Circuit. 

Senator DURBIN. All right. Let me move to another area. In the 

Sweet Home case, you also—excuse me, I have that—yes, I believe 

it was in that same case. You praised what you called the Supreme 

Court’s ‘‘retreat from the protection of privacy.’’ Do you believe that 

though it is not enunciated in the Constitution that we have a fundamental right to privacy as citizens in this country? 

Mr. MYERS. Well, the Supreme Court has been crystal clear on 

that, and the answer is yes. 

Senator DURBIN. Why would you then celebrate what you called 

the Supreme Court’s ‘‘retreat from the protection of privacy’’? 

Mr. MYERS. Frankly, Senator, I’m not sure of the context of that 

quote, but it may have been a reference to the decision of the Supreme Court that was recent to the time of that writing in the case 

of Bowers v. Hardwick, which was universally seen as a retreat 

from some of the Supreme Court’s previous precedents on privacy. 

My statement was merely a reflection of general knowledge to that 

extent. It was not a unique thought to me. 

Senator DURBIN. May I ask you, when it comes to your legal experience, you have indicated that you have had no criminal litigation experience. How many civil cases have you taken to verdict, 

either with or without a jury? 

Mr. MYERS. I would guess a dozen. 

Senator DURBIN. A dozen cases to verdict? 

Mr. MYERS. Yes. 

Senator DURBIN. All right. 

Senator CRAIG. Senator, your time has expired. 

Senator DURBIN. Thank you very much. 

Senator CRAIG. Let me turn to my colleague, Senator Feingold. 

Russ? 

Senator FEINGOLD. Thank you very much, Mr. Chairman. 

Congratulations, Mr. Myers. Welcome to your family. 

Mr. MYERS. Thank you. 

Senator FEINGOLD. Environmental issues are of greater concern 

to me and the people of the State of Wisconsin and, of course, many 

important environmental issues come up before the Ninth Circuit. 

So I would like to focus my questions on those types of issues. 

I would like to first follow on a matter that Senator Durbin just 

brought up. You authored a Supreme Court amicus brief on behalf 

of the National Cattlemen’s Beef Association and others in the socalled SWANCC case. That case involved a challenge to the Federal 

Government’s authority to prevent waste disposal facilities from 

harming waters and wetlands that serve as vital habitats for migratory birds, and as was indicated, you argued in your brief that 

the Commerce Clause does not grant the Federal Government auVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00350 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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thority to prevent the destruction and pollution of isolated interstate waters and wetlands. 

For 30 years, the Clean Water Act has protected our Nation’s waterways, including lakes, ponds, and streams, and so I also am interested in your views on the Commerce Clause and the Clean 

Water Act in general. 

Let me follow up on what Senator Durbin asked you in a little 

different way. Is it your view that the Commerce Clause is the only 

possible constitutional authority for passing the Clean Water Act? 

Might one also find Congressional authority over protection of wetlands in not just the Commerce Clause but the Property Clause, 

the Treaty Clause, or the Necessary and Proper Clause? 

Mr. MYERS. Well, I would hesitate at this moment to speculate 

on other bases for the Clean Water Act. Clearly, it is constitutional. 

Whether a particular clause is the basis for that or not, I refrain 

from speculating on simply because that may be the basis of an argument that might come before me. 

It might be helpful, Senator, for me to put in context for you the 

brief that I did file. 

I was representing, as you said, landowners, large landowners in 

the form of cattle ranchers, who were concerned that the Corps of 

Engineers’ interpretation of the Clean Water Act might impinge 

upon a Congressional exemption that those farmers and ranchers 

enjoyed. Under the Clean Water Act Section 404(f), there is an exemption for ordinary farming and ranching activities. And the concern was that if the Corps of Engineers were to require a permit 

for an alteration of a stock pond, that that would have a fairly dramatic impact on that statutory exemption. And that’s why I filed 

that brief on their behalf. 

Senator FEINGOLD. So you would not exclude the possibility of 

those other provisions in the Constitution being a basis for the constitutionality of the Clean Water Act? 

Mr. MYERS. Well, I can fairly say I wouldn’t exclude them, yes. 

Senator FEINGOLD. Is it your view that Congress exceeded its 

constitutional authority in passing the Clean Water Act? 

Mr. MYERS. No. 

Senator FEINGOLD. The Department of Justice on behalf of the 

Army Corps and EPA has filed approximately two dozen briefs in 

Federal court since this SWANCC decision. In these briefs, the 

DOJ has consistently argued that the Clean Water Act does not 

limit coverage of the Clean Water Act to navigable in fact waters. 

For example, in one brief, DOJ argued, ‘‘SWANCC does not limit 

the coverage of the CWA to navigable in fact waters and wetlands 

adjacent thereto.’’ The brief continues: ‘‘To exclude non-navigable 

tributaries and their adjacent wetlands from the coverage of the 

Act would disserve the recognized policies underlying the Act since 

pollution of non-navigable tributaries and their adjacent wetlands 

can have deleterious effects on traditionally navigable waters.’’ 

That is the end of the quote. 

Do you agree with the administration’s consistent interpretation 

of the SWANCC case? 

Mr. MYERS. Well, let me speak to my interpretation because I 

don’t know which cases those are that you might be referring to, 

340

and I don’t want to speculate when I don’t have that level of familiarity. 

Senator FEINGOLD. One would be the brief in United States v. 

Rapanos in the United States Circuit Court of Appeals for the 

Sixth Circuit. 

Mr. MYERS. Okay. The Supreme Court ruled in favor of the solid 

waste agencies, and I suppose you could say by reference to my 

amicus party, since we were on the side of the petitioners, and determined that the Clean Water Act did not extend to isolated, 

intrastate, non-navigable wetlands. 

Senator FEINGOLD. You disagree with the administration’s approach? 

Mr. MYERS. If their approach is consistent with my understanding as just announced, I would not disagree with it. That’s my 

understanding of the ruling in SWANCC. 

Senator FEINGOLD. Senator Durbin asked you—let me just ask 

you directly again. How do you read the Supreme Court’s SWANCC 

decision? What waters, if any, do you believe should not receive 

Federal Clean Water Act protection post-SWANCC? 

Mr. MYERS. Well, I don’t want to sound flippant, but obviously 

the particular abandoned mine site that was the subject of the litigation we could safely state is exempt. Then the question is what 

other types of water bodies might be like that abandoned mine sit 

that would be used for landfill. And the core principles that I understood from the decision—and, frankly, I haven’t reread it in 

many years, but it was that if you have an isolated, intrastate, 

non-navigable wetland, that is not subject to Clean Water Act jurisdiction. 

Senator FEINGOLD. Now, let me ask you about another— 

Mr. MYERS. For purposes, Senator, of a 404 permit. 

Senator FEINGOLD. In the Headwaters Inc. case, the Ninth Circuit has ruled that the SWANCC decision should be read narrowly 

and that wetlands, streams, and other small waters remain protected by the statute, and implicitly that the rules protecting those 

waters are constitutional. 

Would you follow the circuit’s precedent if confirmed, or would 

you try to change it? 

Mr. MYERS. I would follow it, Senator. 

Senator FEINGOLD. Let me ask you about a different matter then. 

This year marks the 40th anniversary of the Wilderness Act, and 

I had the pleasure of being involved in creating a Senate Wilderness Caucus, and wilderness issues are very important to me and 

my constituents in Wisconsin. 

During your time at the Interior Department were you involved 

in discussions regarding possible changes of the interpretation of 

FLPMA, wilderness inventory power and the ability to designate 

wilderness study areas to the planning process prior to 2003? 

Mr. MYERS. The matter that I think you’re referring to, Senator, 

was the settlement of a piece of Federal litigation in the District 

Court in Utah brought by the State of Utah and others against the 

Federal Government, and the settlement that was reached was essentially to suggest that the authority of FLPMA, the Federal 

Lands Policy Management Act, was very clear on the ability to establish wilderness areas under Section 603 of that Act. 

341

Senator FEINGOLD. Right. But were you involved in discussions 

regarding possible changes to the interpretation? 

Mr. MYERS. Yes, I was. 

Senator FEINGOLD. And what were the nature of those discussions and what was your role? 

Mr. MYERS. Well, the discussions were should we settle this case, 

and if so, what would be the parameters of that settlement? So I 

was a participant in that to discuss whether under the Wilderness 

Act and under FLPMA the settlement was appropriate. It was filed 

and the District Court accepted it. 

Senator FEINGOLD. As Solicitor General for the Interior Department, as you indicated, you approved the filing of a settlement with 

the State of Utah last April that will remove the possibility of administrative protection for millions of acres of potential wilderness 

on BLM lands outside of Alaska. This approval came despite the 

fact that every Interior Secretary in the previous 26 years, including James Watt, affirmed and used BLM’s authority to administratively protect lands as wilderness study areas. Would you please 

explain how you reached the decision to undertake this dramatic 

policy reversal in litigation? 

Mr. MYERS. I think I need to clarify, Senator, that the settlement 

that was reached in the negotiations between the State and the Department of Justice continued to protect designated wilderness and 

designated wilderness study areas under FLPMA Section 603. 

Senator FEINGOLD. Did you conclude that you would not have 

prevailed on the question of the ability of BLM to carry out wilderness inventories in the State of Utah v. Norton? 

Mr. MYERS. We decided that under the authority that Congress 

had clearly set out under Section 603, that the inventorying for wilderness and the designation of wilderness was, under the Act, subject to a 15-year expiration date, which seemed fairly clear from 

the reading of the Act, and that was the context from within which 

the settlement was reached. 

Senator FEINGOLD. Did you arrive at the conclusion, when the 

Tenth Circuit had already held that the State of Utah—excuse me 

one second. How did you arrive at the conclusion, when the Tenth 

Circuit had already held that the State of Utah did not have standing to challenge BLM’s wilderness inventory authority and therefore Utah could not have possibly much less prevailed on that 

issue? 

Mr. MYERS. There were two separate authorities in the context 

of the litigation for wilderness study area designation. Clearly 

under Section 603 under the mandate of FLPMA, the administration was given 15 years in which to designate proposed wilderness 

and to forward that by the Secretary of the Interior, Former Secretary Andrews, to the President, and from the President to Congress for designation. And that included wilderness study areas as 

well as proposals for specific wilderness. 

Those proposals went forward and those wilderness areas and 

wilderness study areas exist today. The disconnect was whether 

there were other provisions outside of Section 603 that provided 

that authority, and I didn’t think there was. 

Senator FEINGOLD. Well, I want to pursue this some more, and 

this will be important to me as we go forward. I am concerned that 

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this has the appearance of a case of utilizing closed door negotiation of a settlement to make a controversial policy reversal without 

public input and with no accountability to Congress. As I understand it, this has a binding effect on the future. But in fairness to 

you, I will follow up on the arguments you have made with regard 

to the ability to do something with regard to wilderness for 26 

years. I think this has very serious implication. But I do thank you 

and I will pursue this with you further. 

Thank you, Mr. Chairman. 

Mr. MYERS. Thank you, Senator. 

Senator CRAIG. Your timing is excellent. Thank you. 

Let me at least opine for the record that my colleagues who have 

asked questions today are from states where limited if hardly any 

Federal land exists. For those of us from the West who work with 

our Federal public policy on occasion, if not all the time, sometimes 

we find it in conflict, sometimes we find it balanced, but I would 

guess that most westerners are oftentimes frustrated by the authority the Federal Government holds over them both in individual 

and collective acts. I say that not to you, Mr. Myers, but for the 

record, as a westerner who grew up in a public lands State, often 

frustrated by the Federal Government, and probably one of the 

driving motives that made me a U.S. Senator. 

But as a Senator, both myself and my colleagues make public 

statements, and every 6 years we are held accountable for those. 

You have obviously made public utterances or at least made statements for a public record. I understand in 1988 you were writing 

about the nominee, Judge Bork, at the time, and you opined that 

whether some of the opinions herein may 1 day come back to haunt 

you. I suspect you have not been ‘‘Borked’’ and neither have any 

of us, but I think oftentimes, as we move ahead with our careers 

and our lives, that those of us who make public statements find a 

need to adjust, modify, or openly stand by that which we make. 

Let me go back to a couple of items that have been brought up 

by our colleagues as it relates to mining and grazing, very important issues for public land management, very important issues for 

States and private interests, depending on your point of view and 

the law itself. 

You have been criticized for your involvement in permitting the 

process for a proposed gold mine in Southern California. My colleague from Massachusetts mentioned it, the Klamath Gold Mine. 

But in fact, you were not involved, I understand, in the permitting 

process at all, but rather you simply issues a solicitor opinion regarding the proper scope of the Interior Department’s authority 

under the Federal Land Policy Management Act, that we call 

FLPMA, which allowed Klamath Gold, the owner of several claims 

in the area, to proceed with a pre-existing mining proposal. Is that 

not correct? 

Mr. MYERS. That’s correct, Senator. 

Senator CRAIG. So on what basis if any could someone assert 

that you handled this Klamath Gold Mine claim? 

Mr. MYERS. Well, I certainly had no involvement in consideration 

of the proposed plan of operation. That is the authority and expertise of the Bureau of Land Management. As you suggested, my role 

in that matter was looking at a fairly narrow point and deterVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00354 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
343

mining whether the Department had the Congressional authority 

that it needed to make certain interpretations. 

Senator CRAIG. I am going to pursue this line of questioning, but 

my colleague from California has just arrived, and of course this 

particular decision and action took place in her State. 

Senator Feinstein, we are talking about the Klamath Gold Mine 

Claim and that decision. Let me proceed. 

Had not the Babbitt Interior Department approved this same 

proposal supported by two draft environmental impact statements 

in 1996 and 1997, and two separate Native American Tribal Cultural Resource studies in 1991 and 1995? Up until the last week 

of the Clinton administration, was that not the position? 

Mr. MYERS. Yes, Senator, that is correct. 

Senator CRAIG. Then I understand that Former Secretary 

Babbitt’s denial of Klamath’s mining claim was based on a 1999 solicitor opinion which in turn was based upon a novel interpretation 

of Federal law. Your opinion rescinded that interpretation. Did you 

draft your opinion based on Klamath lobbyists, had exclusive insider access to the Department of the Interior? How did you arrive 

at your opinion in that case? 

Mr. MYERS. Well, as I mentioned earlier, when I arrived at the 

Department this issue was alive and well. The department had already put on hold the regulations that were the basis for the decision, and they were in suspension mode basically, and I had four, 

by some counts, five pieces of Federal litigation pending. So it was 

an issue that I needed to turn to, and I relied on my colleagues in 

the Solicitor’s Office to give me the history of the mine site, the history of Solicitor Leshy’s opinion, and we coordinated obviously to 

discuss whether or not that was a fair reading of FLPMA. 

Senator CRAIG. In fact, as I followed that case and saw your decision, I felt you had little choice but to rescind the prior opinion because it simply could not be defended in the courts. Is that correct? 

Mr. MYERS. My concern specifically was with the key phrase that 

was the basis for the previous decision, and it’s known as ‘‘undue 

impairment’’ and that is within the Federal Land Policy and Management Act. That portion of the Act deals with the California 

Desert Conservation Area and is rather specific. The Act, as passed 

in 1976, gave Congress—excuse me—gave authority to the Secretary to promulgate regulations if he or she so chose, and that if 

those regulations were promulgated, they should consider undue 

impairment of the area. No Secretary, since the passage of the Act 

in 1976, had taken the opportunity that Congress had provided to 

promulgate the regulations. It was simply my thinking that before 

the Department should try to apply the standard, that it should 

take the initial step of promulgating regulations under the Administrative Procedures Act with notice and comment to the public, so 

that that process would be followed according to the statutory mandate. 

Senator CRAIG. Thank you. 

For the balance of my time let me turn to the issue of grazing, 

one of the legal and appropriate utilizations of public land resource 

in the opinion of many westerners and I would hope most Americans. It was referenced earlier by one of my colleagues that to compare the Federal Government’s management of public lands to 

344

King George’s tyrannical rule over American colonies and claim 

that public land safeguards are fueling a modern-day revolution in 

the American West. 

Since I have served on this Committee, Mr. Myers, I have become familiar with but not more tolerant of the practice of hard left 

groups deliberately taking nominees’ quotations out of context and/

or misrepresenting what the nominees said or wrote, then trying 

to smear the nominees’ basis on their misrepresentation. It is even 

less proper for Senators I think to give credence to those who play 

that game. Here is one against Mr. Myers that does not stand up 

to even 5 minutes worth of research. So what I am going to do now 

is read the quote. ‘‘So wrote our Founding Fathers in the Declaration of Independence’’—I believe this is these words—‘‘describing 

the tyrannical actions of King George in levying taxes and turning 

even the simplest enterprise into exercises in bureaucratic and regulatory entanglement. A modern-day revolution has been brewing 

in America’s West, and it is founded on a similar set of grievances. 

In the late 1970’s and early 1980’s it was called the Sagebrush Rebellion. For the past several years it has been known as the War 

on the West. This has become a rallying cry amongst many westerners who object to the Government over-regulation and efforts to 

limit their access to Federal range lands, revoke their property 

rights and generally eliminate their ability to make a living on the 

land.’’ 

I believe that is the fullness of the context. And I think that 

what I sense you are reacting to—and you can certainly put it in 

your own words—but what I have reacted to when using phrases 

like ‘‘the War on the West’’ or the ‘‘Sagebrush Rebellion’’—and 

when I was elected to Congress in the early 1980’s it was brewing 

might loudly—was an attitude or a frustration that there is reasonable regulation and appropriate regulation, and then there is excessive regulation that denies or limits so dramatically the ability of 

certain legal and historic uses of our public lands. I will stop there. 

I will not put words in your mouth. I will turn to you for any response to those comments. 

Mr. MYERS. Well, let me pick up where you left off, Senator. Certainly there are appropriate regulations for use of Federal lands, 

and specific to grazing. In fact, the Taylor Grazing Act of 1934 was 

passed in large measure because ranching interests wanted to regulate the use of the western lands against cattle barons who were 

coming out from the railheads and unloading livestock by the cattle 

car and running rampant over all of the lands that these ranchers 

had already established. So I think there is a clear history of the 

importance of environmental regulations on ranching. 

I would like to point out as well, within the context of the article 

that you just mentioned, that my statement at the beginning about 

the War on the West and the Sagebrush Rebellion was to put in 

historical context where we found ourselves. The theme or thesis 

of the article was that it would be much better if the Federal Government would work with environmental stewards to enhance the 

environment, and in fact, other quotes from that article are specific, where I say that environmental stewardship is both good 

business and good citizenship. 

345

Senator CRAIG. Most westerners would agree with that statement. 

A little time left, but we have had new colleagues—I should not 

say new colleagues—but colleagues join us, and let me turn to 

them in the order in which they have come for their first round if 

they choose. 

I believe, Senator Schumer, you arrived ahead of Senator Feinstein, so we will start with you. 

Senator SCHUMER. Thank you, Mr. Chairman. First let me say 

I am glad to be back in this room. I want to thank my House colleagues for their courtesy. As many know, I served for 16 years on 

this Committee. I was in this seat for several years till seniority 

moved up. I think I may have been—no, I think I was a little further over. 

Senator CRAIG. Chuck, before you arrived this morning, I am told 

by our staffs that we are making history here, that nomination 

hearings have never been held here by the Senate. So you are possibly making double history today. 

Senator SCHUMER. Well, I did make history when I sat here because I was the only person to serve on the impeachment proceedings in both the House and the Senate. From my point of view, 

it had a happier outcome in the Senate than in the House, but I 

am still glad to be here. 

I might note that having served under a bunch of these Chairs, 

Henry Hyde and Peter Rodino and Jack Brooks, and not Manny 

Seller, but he held the seat I held in the House and was Chairman 

of Judiciary for decades. So I am glad to be here. 

Second, I just wanted to note, as others have, we are at a little 

bit of a disadvantage today because of the ricin attack. Our staff’s 

access to all of our computers, which I presume are now secure— 

Senator CRAIG. Made secure by the Chairman of the full Committee, Senator Hatch, correct. 

Senator SCHUMER. We thank him for that, very much so, but we 

are at a little bit of a disadvantage. Whether we need—we may, 

Mr. Chairman, I would just like the record to show, may need another hearing to flesh out the record here if we find—and I hope 

the Chairman—he has always been good this way—would understand that. 

Senator CRAIG. The record will remain open and you can certainly submit questions and the nominees will respond appropriately. 

Senator SCHUMER. Maybe they can have the record remain open 

for a little extra period of time, because we are not getting back 

to our office in the Hart Building until tomorrow, and the Dirksen 

Building, where my Judiciary staffers are, is not going to open I 

think till Monday. 

Mr. Myers, first I want to welcome you and thank you for being 

here. 

Mr. MYERS. Thank you, Senator. 

Senator SCHUMER. You and I disagree on a whole lot of things, 

and I am going to ask some pretty sharp questions, but that does 

not mean that I do not hold you personally in high regard, and I 

do not want particularly your children—I have two daughters. Are 

those your two daughters? 

346

Mr. MYERS. They are. 

Senator SCHUMER. So I have two daughters a little older than 

yours, and I know if they were sitting here they would be a little 

puzzled why people are asking such tough questions of their nice 

Dad. 

Senator CRAIG. So, Dad, behave yourself, okay? 

Senator SCHUMER. Yes, exactly. So I just wanted to tell them, 

your dad is a good man, and he is seeking public service and we 

admire that. 

Now, as you probably know, Mr. Myers, I have three standards 

when I choose and vote on judges. They are excellence, they should 

be legally excellent, not somebody’s brother-in-law or some political 

hack. A Federal Judge, particularly a Court of Appeals Judge has 

enormous power. The second standard is moderation. I do not like 

Judges too far right or too far left. Judges who are idealogues tend 

to want to make law, not interpret the law. And the third is diversity. I do not think the bench should just be white males. That 

third category has to be taken as you look at a whole school of 

nominees, so it is not really relevant. 

And I do not have much doubt on your excellence provision part 

of you, but I do have doubts on the moderation part, and that is 

where I will ask my questions. 

You have had a long and distinguished record of passionate advocacy for private mining and ranchers’ interests, and I respect that, 

respect the work you have done in the private sector, and respect 

the fact that when it comes to environmental policies you clearly 

have had deeply-held beliefs which you have worked hard to make 

the law of the land, and those deeply-held beliefs are represented 

in part by some of the comments you have made regarding environmental protection laws and those who support them. 

Now, I know my good friend from Idaho has said, ‘‘Well, these 

quotes should not matter.’’ I think they matter very much. We do 

not know of Mr. Myers’ record as a judge or as a law professor because I guess you have never served as either of those. So it is not 

only the cases he litigates, because we have had lots of people come 

before us and say, ‘‘I didn’t agree with the case I litigated, but I 

was being a good lawyer.’’ So the comments that people make are 

all we have and I think they are extremely relevant and I think 

I would be not doing my obligation to the 19 million people of New 

York, or for that matter the 280 million people of America if I did 

not ask about them, because they do come off as hardly moderate. 

Here are some of them. 

In one article—this was not rhetoric in the courtroom, it was an 

article—you said, ‘‘Environmentalists are mountain biking to the 

courthouse as never before, bent on stopping human activity wherever it may promote health, safety and welfare.’’ I do not think 

most people in this country would think environmentalists are trying to stop health and safety. You may think they go too far in promoting health and safety, but to say they are stopping it, wow. The 

cases you were discussing include suits to halt the racially discriminatory placement of waste treatment facilities, to protect irrigation canals from toxic chemicals, and to halt logging in protected 

national forests. 

347

Some of my democratic colleagues will tell you that much to their 

chagrin, I agree that there are abuses in our litigation system, and 

that frequently Americans resort to courts all too quickly when no 

one is at fault, there is no appropriate remedy or the matter could 

better be handled legislatively or extrajudicially. That said, the 

cases you were discussing hardly seem to be the examples of wildeyed litigation run amuck, and your comment is hardly reflective 

of the moderation and temperament we look for from judicial nominees. It is not just one quote we are plucking out of here. There 

is a whole long series. Let me read you a few others. 

You compared the Government’s management of public lands to 

King George’s tyrannical rule over the American colonies. I have 

heard that before I came in Senator Leahy asked you a little about 

that one. But here are some others that I am going to ask you to 

respond to. You wrote that the Federal Government’s ‘‘endless promulgation of statutes and regulations harms the very environment 

it purports to protect.’’ 

And specifically regarding the Endangered Species Act and the 

Clean Water Act, you said that they have ‘‘the unintended consequences of actually harming the environment.’’ I do not think 

most people think that of the Endangered Species Act and particularly the Clean Water Act. 

You claimed that it’s ‘‘fallacious to believe that centralized government can promote environmentalism.’’ Well, that seems to be a 

view that was more appropriate 100 years ago, and discounts all 

the advances and changes and progress that we have made in this 

country. There is a broad consensus in America, Democrats, Republicans, liberals, conservatives, economists, that there are 

externalities, that if I run a power plant, it may be in my 

business’s interest to send noxious fumes and smog into the air, 

and it may not even hurt my State. We have this problem in the 

Northeast. Because the winds blow the stuff over, away from my 

State and into the Adirondack Mountains. The only resort is the 

central government, and you seem to just dismiss it. 

So I want to ask you about those quotes. I will get back to them. 

You argued that the Federal public land safeguards are fueling, 

‘‘a modern-day revolution in the American West,’’ that our environmental regulations are ‘‘designed to turn the West into little more 

than a theme park.’’ 

Well, you may not agree, but there are tens of thousands, millions of citizens who want to enjoy the environment as is. And to 

say that our forests or our lakes or our rivers or our deserts are 

a theme park? 

You called the Migratory Bird Rule, ‘‘an unwarranted and despotic intrusion by the Federal Government over every brook, creek, 

cattle tank, mud puddle, slough damp spot in every owner’s backyard.’’ How do you say that? Slew. I am from Brooklyn. I do not 

know too many sloughs. 

You called the California Desert Protection Act, one of Senator 

Feinstein’s most—we all respected her for the job she did getting 

it passed. I am not going to ask you about it. I imagine she will, 

but you called it an example of legislative hubris. And the list goes 

on and on, not one quote, not two, but it seems these are your 

deeply-held beliefs. I respect those beliefs. I even respect the right 

348

to go to court and litigate those beliefs, or for you to defend those 

who are litigated against. 

The question is, when you become a judge on the Ninth Circuit, 

when you have had such deeply-held beliefs, how can we be assured that you will simply impose the law? That when a company 

is violating the Clean Air or Clean Water Act, that you will not 

think that these are harsh despotic regulations and try to undo 

them, because they are the law of the land supported by Democrats 

and Republicans alike? 

My fear, to be honest with you, sir, is that when it comes to environmental protection we will be putting the fox in charge of the 

hen house, that you will do your mightiest from the bench not to 

interpret the law, but to write it in a way that you like because 

you feel so passionately that the law has gone amuck. So you do 

not strike me as a moderate. You strike me, at least on environmental issues, as someone quite extreme, that if you had to put all 

Americans and rate them from 100 who are the most liberal to 1 

being the most conservative, you would not even be a 10, you would 

be a 1 or a 2. The question is whether 1’s or 2’s or for that matter, 

99’s or 100’s—because I feel I like moderate judges—should be on 

the bench. And— 

Senator CRAIG. Senator, you have now taken 11 minutes of the 

10-minute time. 

Senator SCHUMER. I have more to say here, and I apologize. 

Senator CRAIG. We will get back to you on the next round. 

Senator SCHUMER. I would ask that my entire statement be read 

in the record, but let me just add— 

Senator CRAIG. Without objection. 

Senator SCHUMER. Let me just ask Mr. Myers to please put in 

whatever context he chooses, the quotes that I outlined, the three, 

that endless promulgation of statutes and regulations the very environment it purports to protect, that the Clean Air Act—Clean 

Water Act and the Endangered Species Act—but I am particularly 

interested in Clean Water—have the unintended consequences of 

harming the environment, and, ‘‘that it is fallacious to believe that 

centralized government can promote environmentalism.’’ 

Thank you, Mr. Chairman. 

Senator CRAIG. Mr. Myers? 

Mr. MYERS. Thank you, Senator. I will do my best to respond to 

my comments. I think my starting point is perhaps your starting 

point, and that is the question of moderation, which you defined as 

essentially a desire to confirm non-activist judges. I agree with that 

completely. I think one of the strengths that I bring to this table 

today is the fact that I have had an opportunity to work in the 

three branches of Government, not as a judge of course, but as a 

litigator, as a member of the Senate staff, and in three cabinetlevel agencies at various times and in various positions. 

In that context I’ve had an opportunity to see firsthand the importance of separation of powers. The reason I raise this is because 

it’s important in the context of moderation. Every court, every 

judge, should respect the appropriate role of the Executive Branch, 

and the Legislative Branch and not try to do those jobs. 

But as soon as I say that, I want to follow along with the statement that if the case or controversy before that judge raises conVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00360 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
349

stitutional issues or statutory errors, then the judge has to follow 

the law, and if it takes the judge into the Executive Branch to say, 

‘‘You, Department, violated the law,’’ then that is appropriate. If it 

takes the judge to the Congress because Congress passed a statute 

which that court believed to be unconstitutional, that’s appropriate. 

But within that context is the separation of powers that is important, and that a judge should not don robes, and then at the bench 

attempt to legislate. That is the role of Congress, and I respect 

that. 

In the context of the quotes that you raised, there is a theme 

there because when I made those statements, I was an advocate for 

the Federal lands livestock industry. That was who I was talking 

for. That industry is spread over some 270 million acres of primarily western land, a very diverse geographic range, obviously. 

It is an industry which I think has a strong record of environmental protection and stewardship, for the simple, self-serving reason that the rancher who destroys his Federal grazing land is going 

to have no place to go next year with his livestock because he has 

just destroyed the very environment that he relies upon for his 

business. 

So when the regulations came out in the mid-’90’s to regulate 

that industry, in a fair attempt, I think, to get at a few bad actors, 

I believe that the unintended consequence was that while trying to 

get at the few bad actors, it was having a consequence on the 90 

percent-plus good actors who were taking care of the land, and that 

if the result was to run those ranchers out of business, then it was 

having the effect of taking good stewards off the land and that that 

was not a good consequence. 

That is basically the answer to all of the quotes you mentioned. 

Senator SCHUMER. Let me ask about a few specifics with—oh, 

okay, I have been told that Senator Feinstein has another appointment. I am just going to ask, then, one. 

Do you really believe it is fallacious to believe that centralized 

government can promote environmentalism? 

Mr. MYERS. No, Senator. A centralized government—i.e. Congress—has an important role to play in environmental protection. 

And the Clean Water Act, the Clean Air Act—there are probably 

70 environmental statutes that give evidence to that truth. 

Senator SCHUMER. So what did you mean when you said that? 

Mr. MYERS. I was talking about the regulations that were being 

applied to the ranchers, who I believed at the time were environmental stewards, and my concern about the impact of those regulations on good ranching operations. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Senator CRAIG. Thank you, Chuck. 

Now, let me turn to Senator Dianne Feinstein. She, like I, resides within the Ninth Circuit. She is a distinguished member of 

this Committee. 

I turn the next ten minutes over to you, Senator. 

Senator FEINSTEIN. Thank you very much, Senator. 

Mr. Myers, my dilemma with you after reading some of your 

writings, which are to some extent bombastic and engage in substantial hyperbole, is to try to determine whether these are your 

350

true feelings and whether they will infiltrate your performance as 

an appellate judge and the decisions you will make. 

A former official has written me a letter and I would like to just 

read part of it, if I might. It is a former Interior Department official. ‘‘Myers has advocated a very narrow reading of the Commerce 

Clause that would take Congress out of the picture when it comes 

to protecting the environment. He doesn’t think that the Federal 

Government has much of a role in addressing environmental issues 

at all. This is a radical agenda that is clearly at odds with prevailing law. Nonetheless, if Myers is confirmed on the Ninth Circuit, he would likely seek to undercut Congressional action on environmental and public lands management issues.’’ 

Would you respond to that, beyond what you just said to Senator 

Schumer about obviously the Congress having the right to legislate? 

Mr. MYERS. Yes, Senator. Let me also respond, if I might, to your 

first comment about occasionally being bombastic. That is true. 

There are times when I have written things which, looking back on 

them in time, were probably a poor choice of words, but at the time 

seemed like the advocacy that I was being asked to advance. 

Having said that, the concern that you are expressing as related 

to you by a former Interior official of some sort, I think, is, shall 

I say, not completely informed because he or she has not recognized 

in that writing that you have just quoted the efforts that I have 

made while in public service to take a balanced approach. 

Prior to your arrival here today, I talked, for instance, about a 

case in California where the BLM had to take action against a 

rancher to prohibit that rancher from taking a bulldozer to a 

stream, installing a pipeline, destroying the riparian habitat and 

the fence that stood between him and the stream. 

That case came to me as Solicitor. I quickly said, yes, we have 

got to get on top of this. The Department of the Interior, through 

the Department of Justice, filed a motion for preliminary injunction. The court thankfully granted that injunction and we stopped 

that rancher. That is, in my opinion, the kind of example that you 

need to consider as you are deliberating whether I would disregard 

statutory mandates or Congressional authority, and I am here to 

tell you that I would not. 

Senator FEINSTEIN. See, that is my dilemma to figure that out 

because I could not vote for you to be judge based on the views you 

have expressed in your writings. I, in some, have found that people 

who have been advocates can put that aside and can be a fair 

judge, and in others I have drawn the conclusion that I don’t believe they can. 

You have a very mild manner. I expected to see a 300-pound, 

huge, muscled man after I read your writings. 

Senator CRAIG. Now, Senator, you know me better than that. 

Senator FEINSTEIN. No, you are not 300 pounds, and I won’t comment on the muscles. 

Senator CRAIG. No, no. I am talking about those whom I might 

be an advocate of in relation to the Ninth Circuit. 

Senator FEINSTEIN. One thing that I have been very proud 

about—and Senator Schumer alluded to it—was the Desert Protection Act. It protected 7.7 million acres of pristine California wilderVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00362 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
351

ness, 5.5 million as a national park preserve; provided habitat for 

over 760 wildlife species. It created the Joshua Tree National Park, 

the Death Valley National Park, the Mojave Preserve; provided 

recreation for 2.2 million people and more than $237 million in 

sales, $21 million in tax revenue, and thousands of new jobs. Yet, 

you call it an act of legislative hubris. 

Could you explain what you mean by that? 

Mr. MYERS. That was bombastic. 

Senator FEINSTEIN. Correct. 

Mr. MYERS. And I frankly am thinking of that phrase when I 

said that I used words that were probably a poor choice. So accept 

that apology, please. 

With regard to the specific issue, at the time that I wrote that 

article the concern that was being expressed to me from ranchers 

in the California desert area was that after, as you well know, 100 

years of stewardship of the land, that by taking their grazing permits and placing them under the authority of the Park Service, 

which does not have extensive authority regulating ranching, that 

they would find that they would be no longer to economically ranch 

in that area. 

Senator FEINSTEIN. Let me stop you here. Were you aware at the 

time that I had specifically crafted that bill so that grazing could 

continue at the present level? 

Mr. MYERS. Senator, yes. I, to your credit, I believe, know that 

you worked, I believe, quite long and hard with ranchers to try to 

protect their interests in that area, and that was told to me by 

those ranchers. 

The specific point that I was making on their behalf was that if 

they were, in fact, unable to continue ranching for economic purposes that they would take with them their water development for 

the livestock, and that that water development and those water 

sites they had developed for livestock were redounding to the benefit of a lot of desert animals that needed the water as well as the 

livestock did. 

So the point that I was making in the context of that writing was 

that it would perhaps have resulted in some unintended consequences once that water dried up, once the ranchers left, and 

that, in fact, would have had an environmental impact on the animals that used them, the non-domestic animals. 

Senator FEINSTEIN. I don’t understand that. 

Mr. MYERS. Okay. It was explained—and I have never ranched 

in the California desert, but obviously— 

Senator FEINSTEIN. You should go sometime. It is quite beautiful. 

Mr. MYERS. Ranchers develop water sites for their livestock 

throughout that desert region because it is obviously a desert. 

Other animals, such as big-horn, sheep, deer, and the like, birds, 

would use those watering sites for their nourishment. 

If the ranchers were no longer able to economically ranch, they 

would leave the area. They would let the water sites either fall into 

disrepair or they would remove them outright, thus removing not 

only water for the livestock, but water for the big-horn sheep, the 

deer, the birds, et cetera. 

Senator FEINSTEIN. Which is not quite true, not to debate this 

because it is not relevant. But they call them guzzlers and there 

352

are a whole series that volunteers place throughout the desert for 

big-horn sheep and burros and other animals. The bill provided for 

a willing seller, willing buyer. In fact, some of the ranchers have 

decided to sell out to the Park Service. 

I think the bill was put together in a very sensitive way and I 

was rather dismayed that you called it legislative hubris, but that 

is fine because you have used a lot of hyperbole. My concern is that 

you will take these views into the chamber as a judge, and that, 

in fact, what they do is show a very restrictive view of the Commerce Clause. And that is a very important clause in terms of giving the Congress the ability to determine law. 

So therefore, in the Ninth Circuit, I would be concerned that that 

restricted view would prevail and that you would be willing under 

that view to strike down many good things that this Congress does. 

Mr. MYERS. If I may respond, Senator, I would ask you also to 

look at the comment where I used the unfortunate phrase ‘‘legislative hubris.’’ I did use a few other phrases that I think were good, 

one being that environmental stewardship is good business, that 

environmental stewardship is good citizenship. 

And I quoted the famous early 20th century conservationist Aldo 

Leopold for his statement that conservation means harmony between people and the land. I believe he said something to the effect 

that when land does well for the land and the people do well by 

the land—when, by reason of that partnership, both are better off, 

that is conservation. And that was theme I was trying to run 

throughout that article. 

Senator FEINSTEIN. I would like to ask you a question about 

property rights. You were counsel of record in the case of Babbitt

v. Sweet Home Chapter Communities for a Greater Oregon, and 

your brief argued that private property deserves the same level of 

constitutional protection as speech. Specifically, you wrote that, 

quote, ‘‘Every bit as much as a regulation that restricts speech, the 

regulation of private property must be held up under the strong 

light of constitutional scrutiny.’’ 

Is it your view of the Takings Clause that environmental regulations deserve the same level of scrutiny as the regulation of 

speech? 

Mr. MYERS. Senator, within that brief—and perhaps a little context will be helpful. That brief was filed on behalf of farmers and 

ranchers who were concerned that the Corps of Engineers’ interpretation of the Clean Water Act would impact an exemption that 

Congress gave farmers and ranchers to proceed with normal farming and ranching activities, and thus not require a 404 permit. 

Now, within that context, the quote that you are referring to was 

a reference to a Supreme Court decision in 1994, Dolan v. City of 

Tigard. In that decision, the Supreme Court said that the Fifth 

Amendment, and referring specifically to the Takings Clause, was 

as much a part of the Bill of Rights as the First Amendment and 

the Fourth Amendment. And the Court went on to say that the 

Fifth Amendment should not be, to use its words, relegated to the 

status of a poor relation. 

Senator CRAIG. Senator, your time is up. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

Mr. MYERS. Thank you. 

353

Senator CRAIG. Let me turn to our colleague from Georgia. 

Senator Chambliss, do you have any questions of the nominee? 

Senator CHAMBLISS. Thank you, Mr. Chairman. 

Before we leave this particular Sweet Home case, Mr. Myers, I 

want to go back and let’s make sure we get on the record a real 

clarification of what you just said because it appears that you 

stand accused of expressing the radical opinion in an advocacy brief 

that you filed in 1995 that the Takings Clause in the Fifth Amendment means what it says, namely that private property shall not 

be taken for public use without just compensation. 

Now, the brief I am talking about which you submitted in the 

Supreme Court is an amicus on behalf of the National Cattlemen’s 

Association. It did not argue that the Endangered Species Act itself 

was unconstitutional. 

Is that correct? 

Mr. MYERS. That is correct. 

Senator CHAMBLISS. Hadn’t the U.S. Supreme Court—and I believe you just stated this, but let me again clarify it—hadn’t the 

Supreme Court at the time of this amicus brief recently decided the 

Dolan case which stated, and I quote, ‘‘We see no reason why the 

Takings Clause of the Fifth Amendment, as much a part of the Bill 

of Rights as the First Amendment or the Fourth Amendment, 

should be relegated to the status of a poor relation in these comparable circumstances?’’ 

Mr. MYERS. That is the quote to which I referred in the brief. 

Senator CHAMBLISS. Right. Let me also note that the Supreme 

Court stated in the 1972 case Lynch v. Household Finance that, 

‘‘The dichotomy between personal liberties and property rights is a 

fake one. In fact, a fundamental interdependence exists between 

the personal right to liberty and the personal right in property. 

Neither could have meaning without the other. That rights and 

property are basic civil rights has long been recognized,’’ end of 

quote. 

The point is that the fundamentality of property rights in our 

constitutional system is neither new nor radical. If there is a legitimate effort underway to amend the Constitution to remove the 

Takings Clause, I am not aware of it. But it is not up to judges 

to remove it. Until it is legitimately removed, it ought to be respected. 

Would you care to comment further on that, please, sir? 

Mr. MYERS. Well, Senator, I would not try to draw any hierarchy 

among the amendments, or for that matter any particular clause 

of the Constitution. The Constitution speaks for itself and has the 

status in our Nation and in our democracy that it deserves. 

In that brief, I was referring to a statement by the Supreme 

Court, I think, a year or two prior to the filing of the brief that was 

specific to a takings issue which did have, I thought, some fair argument to be expressed in the Sweet Home litigation which the 

Court was considering. 

Senator CHAMBLISS. The problem your clients had with the Endangered Species Act was that the Babbitt Interior Department 

regulations defined the term ‘‘harm’’ in the statute in a way that 

essentially precluded any private landowner’s use of property on 

which an endangered species might find habitat, and, importantly, 

354

that the Government had no intention of compensating affected 

landowners. 

Is that correct? 

Mr. MYERS. Well, Senator, thank you for that. 

And, Senator Feinstein, I need to correct a statement I made to 

you in response to the same question. I think I referred to an exemption under 404(f) of the Clean Water Act. The Sweet Home case 

was an ESA case dealing with habitat modification and I was confusing that with the SWANCC. I apologize. 

Back to your question, yes, the issue there was whether habitat 

modification, as suggested in the regulations that were under review in the case, would have an impact on normal farming and 

ranching activities such that if a rancher went out and modified 

the habitat, which, of course, is what ranchers and farmers do, 

whether that would expose them to fairly significant criminal liability. That is why they were interested in filing an opinion in 

that case. 

Senator CHAMBLISS. Those provisions of the statute are, of 

course, in addition to the Takings Clause of the Fifth Amendment. 

And I understand that the Supreme Court ruled against your client’s position in this case, but it seems to me that the argument 

is well-grounded in the plain language of the Constitution and the 

statute at issue that acknowledged the basic validity of the statute 

cannot be credibly tarred with the empty moniker of ‘‘extreme,’’ 

just as a comment. 

Lastly, I notice in your biographical information that you are an 

outdoorsman, that you enjoy visiting our National parks, and I am 

sure State parks in the western part of the country. And above and 

beyond taking vacations in State parks, you give a lot of time, a 

lot of volunteer time to making sure that our State parks are environmentally safe and clean. 

Is that correct, and would you have any comment about your love 

for the outdoors as it might apply to the way you might form your 

basis of opinions? 

Mr. MYERS. Yes, Senator. I appreciate the question. My love for 

the out-of-doors was instilled early in me by my father and mother, 

who are sitting behind me. My father was an assistant scout master, and I soon found myself in Cub Scouts and then Boy Scouts, 

and progressed to the rank of Eagle Scout. 

We as a family would often go camping for our family vacations 

in State parks, occasionally in national parks. Hunting and fishing 

are a part of my life today, although not as much as I would like. 

And I have been fortunate as an adult to continue that. My family 

and I still camp in national parks and in State parks. I still get 

out and, in fact, almost on a weekly basis we venture up into the 

foothills behind Boise, Idaho, into the national forest to recreate. 

And as I calculated it, looking at this hearing and what I had 

done in environmental matters, for the last 15 years I have averaged about 12 days a year volunteering in national parks—Yosemite, Yellowstone, the Smoky Mountains, Rock Creek, Manassas 

Battlefield Park—doing such things as back-country patrols; visitor 

interaction; minor first aid; minor law enforcement, like put your 

dog on a leash; campsite clean-up; trail-clearing and the like. 

355

Senator CHAMBLISS. Well, I commend you for your public service 

that is over and above what most of us do. 

Thank you very much, Mr. Chairman. 

Senator CRAIG. Senator Chambliss, thank you very much. 

We have been joined by the Chairman of the full Senate Committee and I now turn to Hon. Orrin Hatch. 

Orrin? 

Chairman HATCH. Well, I welcome all three of you to the Committee, and we are very grateful to the House of Representatives, 

and specifically the chairman, Jim Sensenbrenner, and the ranking 

member, Mr. Conyers, for making this room available to us. It is 

very nice of them under the circumstances, although it looks like 

later today we should be able to get back to somewhat normal in 

the United States Senate. 

I welcome you all here. Mr. Stengel, I am happy to note that you 

are a fellow University of Pittsburgh law graduate and worked for 

Dickie, McCamey, Chilcote, and Robinson. They offered me a job 

right out of the University of Pittsburgh Law School, and one of the 

great defense firms in the country. I won’t be able to stay for yours 

and Mr. Duffey’s hearing, but I just want to welcome both of you 

here. 

Let me take a few minutes with Mr. Myers. 

Mr. Myers, you stated in response to an unfavorable newspaper 

editorial in November of 2002, quote, ‘‘I serve at the pleasure of the 

President. I will continue to provide the President and Secretary 

Norton with legal advice in support of their policy goals, just as 

any lawyer should advocate his or her client’s goals within the 

bounds of professional responsibility and ethical conduct,’’ unquote. 

I think I quoted that accurately, and correct me if I am wrong 

here. The Solicitor’s job is not really policymaking, but rather to 

defend the laws and the policies of the Department which either already exist or are established above your then pay grade. Is that 

right? 

Mr. MYERS. Yes, Mr. Chairman, that is correct. There are different ways to approach the office of the Solicitor. Some, I think, 

have approached it more as a policy office, and that, I assume, was 

with the consent of the Secretary for whom he or she served. That 

was not my approach coming in, and as I was interviewed for the 

position by the Secretary, I told her that that would not be my desire to come in and make policy, that there were other assistant 

secretaries in the building who would have that obligation and 

duty; that my job would be to give her and the constituent organizations within the Department legal advice. She seemed quite satisfied with that and I was hired. 

Chairman HATCH. Well, it never ceases to amaze me how some 

in the media and others whom we could mention seem to think 

that an advocate should only advocate what they believe rather 

than what the law says or what the advocate believes the law says, 

or what the advocate’s client believes the law says. 

My gosh, we put through 377 Clinton administration judges, and 

if we took the position that whenever they disagreed with us they 

shouldn’t sit on the bench, my gosh, none of them would have sat 

on the bench. So it is amazing to me. 

356

Now, you probably wouldn’t have accepted the Solicitor’s job unless you generally agreed with the policies that you thought President Bush and Secretary Norton would support. I presume that is 

correct. 

Mr. MYERS. Well, probably more accurately, I would have never 

been offered the job. 

Chairman HATCH. Well, probably so. 

Now, you spoke to this in the same November 2002 letter to the 

editor, quote, ‘‘I hope it does not come as a surprise that the Bush 

administration has a different policy from the Clinton administration on innumerable issues, including livestock grazing on Federal 

lands and the importance of working landscapes and rural communities,’’ unquote. 

Now, the question is whether doing your job as Solicitor to defend policies that diverge from the Clinton-Babbitt regime makes 

you an extremist and an ideologue, unfit for service on the Federal 

bench. Of course, the answer has to be an emphatic no. 

For example, I wonder if the Committee is aware or whether 

your opponents care that according to the National Journal, quote, 

‘‘President Clinton filled some of his top environmental jobs with 

environmental activists,’’ unquote, including Bruce Babbitt himself, 

the former president of the League of Conservation Voters. 

Now, given your record of trying to cooperate with environmentalists, in your words—let me see if I can find those words—

quote, ‘‘working with all sides to reach a locally-supported consensus and rejecting the scheming of those engaged in the environmental conflict industry,’’ unquote, do you think that former officials from the Babbitt years at Interior ought to be disqualified 

from Federal judgeships because of their association with Clinton 

administration policies? 

Mr. MYERS. No, I don’t. In fact, a friend in the environmental advocacy arena said of me that, had he been President, he may not 

have nominated me, but that didn’t mean I wouldn’t make a good 

Federal judge. I think that was a fair comment and I would hope— 

Chairman HATCH. Well, I think it is a fair comment and it is an 

accurate comment. I mean, my goodness, if we all have to agree on 

one politically-correct way of thinking, my gosh, we are going to 

have very few judges that are worth a doggone in this country. 

Even some environmentalists agree that their political disagreements with a nominee don’t disqualify him or her from the Federal 

bench. For instance, the Casper Star Tribune, a newspaper normally inclined to criticize the Bush administration, reported in May 

2003 that the director of the Northern Rockies office of the National Wildlife Federation said the following about Mr. Myers—basically, what you said—quote, ‘‘He has different opinions on policies 

than I do, but I don’t think that makes him unfit to serve on the 

Federal bench,’’ unquote. 

Are you aware of that quote? 

Mr. MYERS. I am. 

Chairman HATCH. Okay. I agree with that and I would hope that 

the Committee agrees, especially given all the rhetoric I have 

heard about how the judiciary ought not to be politicized. 

Let me ask one more question along these lines. Among your 

critics is the National Parks Conservation Association, whose senVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00368 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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ior director commented as follows on your nomination, quote, ‘‘His 

history has been in defending commodity uses, not public uses of 

Federal lands. His confirmation would be another nail in the administration’s attempt to hand over public lands to private industry,’’ unquote. 

Now, this incoherent conclusory statement assumes several 

things, first that the clients you have represented in your career 

are as rigidly ideological as the speaker, who clearly believes that 

public lands have only one valid use, and that is as scenery; second, that President Bush nominated you to advance a particular 

policy agenda as a Federal judge. 

Would you care to respond to these types of, I think, incompetent 

attacks? 

Mr. MYERS. I wasn’t aware of the comments by the National 

Parks Conservation Association, but I guess with respect to that 

particular organization, I would stand on my personal record that 

I cited a moment ago that I have spent my free time in serving national parks, such as picking cigarette butts out of fire pits. I have 

a great love for the national parks. That is where we recreate and 

that is where we go for sustenance, for spiritual refreshment, and 

that is a personally-held view. 

The larger view, though, and the one that is really important for 

this Committee is whether I would carry into a judicial position, if 

I were so lucky as to be confirmed, an ideology that would result 

in a bias against or for any litigant. 

And I think it should be noted that every nominee, I suspect, 

that comes before you has both proponents and opponents, and 

some of those people may hope that once that person becomes a 

judge that they can either count on them to do the right thing or 

cower in fear that they will do the wrong thing. 

I hope that both of those groups, the proponents and the opponents, are disappointed; that when a person takes on those robes, 

takes the oath of office, swears to uphold the Constitution, that 

that means that they will follow the law and the facts, wherever 

the law and the facts take them, without regard to personal opinion, public opinion, friends, or foes. 

Chairman HATCH. My time is just about up, but you do understand the difference between the role of being an advocate and 

being a judge? 

Mr. MYERS. Oh, absolutely. I have been the advocate at the bar 

pleading my case to the judge. Sometimes I win, sometimes I lose. 

Chairman HATCH. And sometimes you are considered right, 

sometimes you are considered wrong, but you are doing the best 

you can to advocate for your particular client. 

Mr. MYERS. Right. 

Chairman HATCH. Now, you understand that your personal beliefs are irrelevant when it comes to deciding what the law really 

means? 

Mr. MYERS. Well, as I mentioned earlier, Senator, Mr. Chairman, 

if my client wishes me to pursue a colorable argument and does not 

ask me to act unethically, immorally, or illegally, and that argument has a foundation in the law and is not sanctionable, frankly, 

under Rule 11, then that person deserves to be heard before the 

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court, and I will take the best argument that I can muster within 

those confines. 

Chairman HATCH. But as a judge? 

Mr. MYERS. As a judge, the judge has a duty to hear both sides, 

and obviously that is why we have the advocacy system so that 

there is a balance of views presented to the judge. And then the 

judge, looking at precedent and with respect for the judicial process 

and the decisions of the court that has gone before, must determine 

what the law and the facts say. 

Chairman HATCH. Well, I know your reputation. It is an excellent reputation. 

Mr. MYERS. Thank you. 

Chairman HATCH. I know of your intellectual capacities, and 

your intellectual capacities are excellent. I know of your honesty; 

that is excellent. I look at your family behind you and they don’t 

seem to be too odd to me. 

Mr. MYERS. Well, I didn’t put that in the record. 

Chairman HATCH. They look downright good to me, is all I can 

say. And I suspect that anybody who is fair will judge you on the 

basis of your reputation, which is a good one, a great one; your 

family, the honesty that you exhibit, and the abilities that you 

have. And if they do that, you will be unanimously approved by the 

U.S. Senate, and that is what I intend to see happen and I hope 

that it does. 

Mr. MYERS. Thank you, Mr. Chairman. 

Chairman HATCH. Thank you so much. We are glad to have you 

here, and the other nominees as well. 

Senator CRAIG. Thank you very much, Mr. Chairman. 

Let me again turn to my colleague from Illinois, Senator Durbin. 

Senator DURBIN. Thank you very much, Mr. Chairman. I have 

two or three questions that I would like to follow up on. 

Mr. Myers, all of us in public life, whether appointed or elected, 

are naked to our enemies and are the object of accusations, valid 

and invalid. And I preface my remarks by acknowledging that fact, 

but asking you if you would for the record, speak to the two investigations by the Inspector General of the Department of the Interior into your conduct at that department. 

If you would tell us what the status of each of those investigations is, whether they have been completed, I would appreciate it. 

You don’t have to go into long detail on these. We have them before 

us, but if you would tell us your side of the story for the record, 

I would appreciate it. 

Mr. MYERS. Well, certainly, I would be happy to. You mentioned 

two investigations into my conduct. Actually, there was only one 

into my conduct. The other was with regard to conduct of attorneys 

in my office and I was interviewed as part of that process. That 

dealt with an issue as to whether a settlement reached in some administrative litigation was legal or not. 

Senator DURBIN. The Frank Robbins— 

Mr. MYERS. That is correct, yes, sir. I was not involved in the negotiations or discussions of that settlement, other than to tell a 

subordinate attorney that he had authority to try to settle that 

case. 

Senator DURBIN. Did you approve the settlement? 

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Mr. MYERS. No, I did not. 

Senator DURBIN. Were you aware of the terms of the settlement? 

Mr. MYERS. No. 

Senator DURBIN. So it went from your subordinate’s decision to 

what level before it was policy of the Department? 

Mr. MYERS. Well, the subordinate attorney worked with the Bureau of Land Management, which was the party on behalf of the 

Department of the Interior to the settlement. Some 6 months after 

the settlement was signed, press reports came out with statements 

that it was perhaps illegal. Obviously, I saw those press reports. 

I asked for a copy of the agreement. 

I then dispatched different attorneys in my office to look into the 

allegations, together with employees from the assistant secretary’s 

office who has authority over BLM. So I initiated in my own right 

an inquiry into the statements to determine whether or not they 

were correct. 

Senator DURBIN. Excuse me, but in the initial settlement negotiations you played no role? 

Mr. MYERS. That is correct. 

Senator DURBIN. And did not review them once they were agreed 

to? 

Mr. MYERS. Right. 

Senator DURBIN. And you are saying that is standard procedure? 

Mr. MYERS. Well, it was in that case for me, Senator, because I 

only knew it as an administrative piece of litigation, which is to 

say it was wholly contained within the Department of the Interior 

as a dispute between the BLM and the rancher. That is how it was 

presented to me, so it did not seem particularly remarkable and if 

this attorney wanted to try to settle that, then fine. 

Senator DURBIN. On the first instance, the Inspector General’s 

investigation of your relationship with your previous and now current law firm— 

Mr. MYERS. Yes, right. 

Senator DURBIN. —would you speak to that? 

Mr. MYERS. I will. August of last year, I actually received a call 

from a reporter from the Washington Post asking me to respond to 

some statements. Rather than respond with complete lack of understanding, I instead went about finding what this was and determined that a couple of groups had looked at my entries on my 

planning calendar, and based on those entries in the planning calendar they raised concerns that I was violating my ethical obligations under relevant statutory and regulatory provisions, as well as 

an agreement that I entered into prior to entering the Department. 

When I saw the seriousness of the allegations, I went to the Secretary of the Interior, I told her, and I asked her in writing to initiate an investigation, which she did by contacting the Inspector 

General. Simultaneously, those allegations had been forwarded to 

the Office of Government Ethics. They also asked the IG to look 

into it. 

The IG undertook a, I think, three-month review, looking not 

only at the meetings that were on the planning calendar, but essentially at everything I had done over the last two-and-a-half 

years. The IG produced his report and gave it to the Office of Government Ethics, who had requested it officially. 

360

The Office of Government Ethics wrote back to the two groups 

and stated, in summary, basically that Mr. Myers showed a strong 

intention to comply with the statutes, regulations, and obligations 

that he had ethically, and that, in fact, he did so. 

Senator DURBIN. I would ask you to clarify two things. In the Inspector General’s report, they indicate that they initiated their inquiry not on the basis of your request, but rather a complaint received on August 5 from Public Employees for Environmental Responsibility and Friends of the Earth. 

And the second part—and I don’t know the answer to this; perhaps you have just given me the answer—they say the Office of 

Governmental Ethics therefore requested that an investigation ascertain the specifics of the discussions that took place during each 

of the 27 meetings in order to determine if Myers had actually violated the terms of his ethics agreement or the criminal conflict of 

interest law. 

I took it from that that even though this was issued November 

24 of last year that it is still ongoing; there are still aspects of this 

investigation ongoing. Is that true? 

Mr. MYERS. No, sir. It is closed. 

Senator DURBIN. It is closed. 

Mr. MYERS. The Office of Government Ethics issued its written 

opinion on the 5th of December. And with regard to how this matter came to the IG’s attention, I guess I frankly don’t know whether the two groups forwarded their concerns on August 5 directly to 

the IG. I know they did forward them directly to the Office of Government Ethics by a letter, and when I heard about it I just—before the OGE asked for an inquiry, I went to the Secretary and 

said please get to the bottom of this. 

Senator DURBIN. Now, when you went to work for the Department of the Interior, you, I think—tell me if this is true—represented that you would not get involved with your former law firm 

or clients for a period of time in the Department of the Interior. 

Is that correct? 

Mr. MYERS. That is basically correct. There are a series of regulations that apply to that. 

Senator DURBIN. Now, do you feel then that it would be appropriate if you are successful in this nomination to recuse yourself 

from cases involving your former law firm or former clients? 

Mr. MYERS. Well, what I would do—and what this episode was 

useful for was providing me with an excellent reminder of the importance of the rules of conduct that are applicable to any Federal 

official, including judges. So if I am fortunate enough to be confirmed, the first order of business will be to crack the Code of Judicial Conduct and put it on my desk, understand it thoroughly, and 

find out how a judge goes about dealing with recusal issues. Frankly, sitting here, I don’t know the answers to those questions. 

Senator DURBIN. Well, I want to give you some time to look at 

that code and then respond to the question I just asked. I will send 

that to you in writing with a few other questions, if you don’t mind, 

Mr. Chairman. 

Let me ask you about this property rights debate that we have 

been involved in here and your reference to the Dolan decision. I 

want to make sure I can put this in the context of other issues that 

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might present themselves or have presented themselves to the 

courts. 

If you believe, if it is your point of view that Dolan says that 

property rights are equal to rights of free speech and other rights 

guaranteed under the Bill of Rights, I would like to ask you how 

then you think we should have resolved issues like civil rights, 

where we said that the fact that you own the restaurant and the 

fact that you own the hotel and it is your property is not enough 

for you to discriminate against Americans based on their race. 

Clearly, we decided—at least the courts decided that property 

rights were trumped, overruled by more important rights. How do 

you resolve that? 

Mr. MYERS. I think the answer is in the Supreme Court’s decisions, Senator. The Supreme Court, in interpreting the Takings 

Clause and the Fifth Amendment, has never interpreted it as an 

absolute. The Court, since the landmark case of Pennsylvania Coal

v. Maine in, I think, the 1920’s basically said that property rights 

are subject to reasonable regulation by government entities. 

And we, of course, have that everyday. Where I live, where you 

live, we are all subject, and our property rights are subject to city, 

county governments, as they should be. So it becomes a matter of 

degree and a matter of context. If there is a physical invasion by 

the government of one’s property, you are likely to have a better 

chance of making out a case for a takings. If it is a, quote, ‘‘invasion’’ of your property rights by economic regulation, you have a 

less chance of making out a takings. And the court has over the 

years tried to structure a format and a context in which to make 

that analysis. It has done so through the Dolan case and others. 

Senator DURBIN. Let me ask you, following up on your analogy 

here, was not the passage of the Americans With Disabilities Act, 

in fact, a physical invasion of the property rights of individuals, a 

requirement that certain entities—businesses, localities and such—

change the property that they own to accommodate Americans with 

disabilities? And would you view this as an improper takings? 

Mr. MYERS. On that one, I am going to hesitate because I don’t 

know whether that particular question has been litigated or is in 

litigation or may come before me if I were to become a judge. I 

think it is fairly obvious that accommodations for persons with disabilities impacts one’s property. Whether that rises again to the 

level of a takings, I don’t know. 

Senator DURBIN. Let me just close, if I might, Mr. Chairman, 

by—you have written two stirring defenses of Robert Bork’s nomination to the Supreme Court and said in one of them, the Denver 

Law Review, ‘‘Judge Bork’s judicial philosophy was well within the 

parameters of acceptable constitutional theory, worthy of representation on the Supreme Court.’’ Judge Bork stated and believed that 

Griswold v. Connecticut, which established the right to privacy, 

was an unprincipled decision. Do you share that view? 

Mr. MYERS. No, Senator. Griswold is probably the bedrock decision in the right of privacy string of cases that the Supreme Court 

has decided. It is regularly cited in subsequent Supreme Court decisions such as Planned Parenthood of Southwest Pennsylvania v. 

Casey and Roe v. Wade and other decisions. So I think that is wellsettled. 

362

Senator DURBIN. Do you think Bork’s position, then, was in the 

mainstream and should have been represented on the Supreme 

Court? 

Mr. MYERS. My comment in that regard was, I think, back in 

1988, maybe 1990, when I was fairly fresh out of this Committee’s 

chambers, having been Senator Simpson’s staffer on the Bork nomination. And the point that I was making was that it was not particularly my personally-held view of his status within the mainstream, but with reference to others whose opinions were worthy 

of consideration. 

Specifically, Justice Stevens said that he was very well qualified 

and would be a welcomed addition to the Court. Former Chief Justice Burger said that it would shock him to think that Judge Bork 

was any more of an extremist than he himself was. The ABA had 

given Judge Bork its highest rating. Based on that, it seemed to 

this lowly staffer’s opinion that that was somewhere in the mainstream. 

Senator DURBIN. Thank you, Mr. Myers, for your patience and 

cooperation. 

Mr. Chairman, thank you, and I would like to ask on behalf of 

Senator Leahy that this letter from professors in the Ninth Circuit 

be entered into the record at this point. 

Senator CRAIG. Without objection. 

Senator DURBIN. I would also like to express my apologies to the 

other nominees and their families, who have waited with varying 

degrees of success—Mr. Duffey and Mr. Stengel—for their opportunity to come before the Committee. Thank you very much. 

Senator CRAIG. Thank you. 

Let me turn to my colleague from Georgia for any further questions he might have of nominee Myers. 

Senator CHAMBLISS. Mr. Chairman, just very quickly—Mr. 

Myers, I want to go back to this Robbins settlement issue just to 

make sure that we are very clear as to the status of that. 

Do you recall the first time you actually reviewed the settlement 

that was executed in December of 2002 and January of 2003 between the BLM office in Wyoming and Frank Robbins, who was a 

Wyoming rancher? 

Mr. MYERS. It was approximately a half year after it was entered 

into. 

Senator CHAMBLISS. And what evidence did the various environmental activist groups cite in support of their contention that you, 

quote, ‘‘specifically authorized the settlement,’’ close quote? 

Mr. MYERS. I think there is some confusion there. What I specifically authorized was a subordinate attorney’s attempt to try to 

reach a settlement between two parties. 

Senator CHAMBLISS. We understand the Department of the Interior IG report that has already been referred to is currently investigating one field solicitor and perhaps others who were directly involved in negotiating this Robbins settlement. 

Didn’t you have a role in appointing the investigative team which 

was chosen specifically because they had no connection with the 

Robbins matter? 

Mr. MYERS. That is correct. I asked the Associate Solicitor for 

Lands and Minerals Management to work with an appointee choVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00374 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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sen by the assistant secretary with authority over that area and for 

the two of them to see if they could get to the bottom of it. 

Senator CHAMBLISS. Is there any conceivable reason why you 

would be a target of the Robbins investigation? 

Mr. MYERS. Well, no, and as far as I understand, I am not. 

Senator CHAMBLISS. In fact, I would like to state for the record 

that I have received information that the IG in charge of the Robbins settlement, Mr. Chairman, will provide written confirmation 

to the Committee that, in fact, Mr. Myers was not a target of this 

investigation. Such a letter will simply clarify the obvious that 

there is complete absence of evidence that the Robbins settlement, 

assuming there is something improper about it, reflects poorly on 

Mr. Myers’ conduct while he served as Solicitor. 

Thank you, Mr. Chairman. 

Senator CRAIG. I thank you, Senator, and when that is available, 

we will make that a part of the record. 

Let me close so that we can move to our other nominees, and I 

appreciate everyone’s patience. I think you can see that we here on 

the Judiciary Committee take all nominations very seriously, for 

the obvious reason that those of you who are successful will wield 

a great deal of power in a lifetime appointment over the citizens 

of our country. It is critically important that we understand your 

judicial temperament, your background, your capabilities, and try 

to ascertain from that your sense of the law and your responsibilities in it. 

In my opinion, the Ninth Circuit needs Bill Myers. Of the circuit’s 26 active judges, 17 were appointed by Democrat Presidents. 

Only nine judges are Republican appointees. A remarkable 14 of 

the 26 judges—that is 54 percent of the court—were appointed by 

President Clinton. In 2000 alone, a presidential election year, 

President Clinton appointed four judges to the court. 

Let me also note—and I wish my colleague, Senator Schumer, 

were here, but I will dutifully note his absence, noting that I am 

not speaking behind his back. I do want to note what Senator 

Schumer said about Bush’s nominee to the Ninth Circuit, Judge 

Jay Bybee, before voting to confirm him to that court. 

Here is what Chuck Schumer said: ‘‘Jay Bybee, make no mistake 

about it, is a very conservative nominee. It is fair to put him in a 

similar category with many of the more conservative nominees we 

have had. If Mr. Bybee were nominated to another court that is 

hanging in the balance or where most of the nominees were conservative, I would probably vote against him. If he were nominated 

to the Supreme Court, for example, there would be a difficult calculus. But Mr. Bybee is nominated to the Ninth Circuit Court. The 

Ninth Circuit is by far the most liberal court in the country.’’ Most 

of the nominees are Democrats, from Democrat Presidents, as I 

have quoted the record. ‘‘It is the court that gives us the pledge of 

allegiance case, which is way out of the mainstream on the left 

side. Therefore, I think Jay Bybee will provide some balance.’’ 

Similarly, confirming—and these are now my words—similarly, I 

believe that confirming the nominee that is before us today, Bill 

Myers, will take another step in restoring what is important, a 

measurement of balance, to the Ninth Circuit. 

364

I thank you very much for being before us, Bill. I think you have 

represented your case and your presence admirably. And we will 

look forward, I hope, to speedy completion and confirmation of you. 

Thank you very much. 

Mr. MYERS. Thank you, Senator. 

Senator CRAIG. Well, let me again state, as the Chairman did, 

how much we appreciate everyone else’s patience and tolerance 

today. I have watched your faces go from those of bright and alert 

to sometimes a rather dull glaze. So let’s get bright and alert 

again, if you will, because we will not detain any of you very long. 

It is obvious by the exit from the room at this moment that while 

many of you may have thought the audience had gathered in your 

behalf, that is probably not the case. So I would ask William 

Duffey and Lawrence Stengel to please come forward. 

While you are standing, will you please raise your right hand 

and repeat after me? I do swear that the testimony that you are 

about to give before the Committee will be the truth, the whole 

truth and nothing but the truth, so help you God. 

Mr. DUFFEY. I do. 

Judge STENGEL. I do. 

Senator CRAIG. Please be seated. Some of you have had your 

families introduced, but let me give both of you that opportunity. 

I think we all recognize the privilege that you have been—the nomination is a privilege, certainly, and I think you all respect that 

highly. 

Mr. Duffey, let me again turn to you for the purpose of introduction of your family, if you would. 

STATEMENT OF WILLIAM S. DUFFEY, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA 

Mr. DUFFEY. Thank you, Mr. Chairman. It is indeed a privilege 

to be afforded this opportunity to be considered by the United 

States Senate for confirmation, as it has been a privilege to be 

nominated by the President of the United States to this post. But 

I would not be here without my family: Betsy, who is my wife of 

almost 27 years, and my two sons, Charles and Scott, who have 

been instrumental in supporting me throughout this process. 

[The biographical information of Mr. Duffey follows:]

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Senator CRAIG. Mr. Duffey, thank you, and thank your family for 

being here. I must tell you that a friend of Paul Coverdell’s is, 

without question, a friend of mine. 

Mr. DUFFEY. Thank you, Mr. Chairman. 

Senator CRAIG. Now, let me turn to Lawrence Stengel. 

Judge STENGEL. Stengel. 

Senator CRAIG. Stengel, okay. I wrote down ‘‘Casey.’’ 

Judge STENGEL. Same pronunciation, no relation. 

Senator CRAIG. All right, thank you very much. Would you please 

introduce your family? 

STATEMENT OF LAWRENCE F. STENGEL, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Judge STENGEL. I would be glad to. Thank you, Senator. It is a 

privilege for me and for my family to be here. My wife, Theresa; 

my children, Tim, Emily, Peter, Julia, and the speaker of our 

house, Joseph, who is on the floor. 

[The biographical information of Judge Stengel follows:]

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Senator CRAIG. I have been watching Joseph. He has demonstrated phenomenal tolerance. And I thank you for that, Joseph, 

and welcome before the Committee. 

Let me turn, if I can, to my colleague, Senator Chambliss, for 

any questions you might have of either of these nominees. 

Senator CHAMBLISS. Just very quickly, Mr. Chairman, I have already made comments relative to my knowledge of Mr. Duffey’s 

background. Obviously, I am extremely supportive of the confirmation of both of these gentlemen. 

Mr. Duffey, let me just ask you one or two things, though, for 

the record relative to your particular practice before the Federal 

bench, as well as the State bench. I understand you have had extensive trial experience, both obviously post being named United 

States Attorney, but as well as previous to that time. 

Would you just generally give us a history of your background 

relative to your trial experience? 

Mr. DUFFEY. Yes, Senator Chambliss. I have been a lawyer since 

1977, and in every assignment that I have had in those now almost 

26 years my responsibilities have been in the courtroom. 

I began my career as a Judge Advocate in the Judge Advocate 

General’s Corps, in the United States Air Force. I had the unusual 

opportunity my second 2 years on active duty to be assigned as 

what was known as the circuit trial counsel, which gave me responsibility with one other lawyer for trying all the Air Force’s felony 

cases throughout the Southeast United States. I was responsible 

for 44 cases, and 22 of those I tried to verdict. 

In private practice at King and Spalding, which I have had two 

terms with, I was either in commercial litigation or the special 

matters group of King and Spalding, and all of that work was involved in litigation generally of complex civil and criminal matters. 

When I was with the independent counsel’s office, I was responsible for three parts of the Whitewater investigation, made grand 

jury appearances, and was responsible for one case that actually 

was prosecuted and concluded. 

And since being the United States Attorney, I have been actively 

involved in all of our litigated matters and have had the privilege 

of representing the United States in two arguments before the 

Eleventh Circuit Court of Appeals. And I have tried two cases 

while United States Attorney, which is not the norm for United 

States Attorneys. 

Senator CHAMBLISS. Let me ask both of you a question I ask all 

of our nominees, and that is obviously as a lawyer you have the 

obligation to represent your client as a strong advocate. And we all 

as lawyers, I hope—I was in that same category with the two of 

you of working very diligently for my clients over the years that I 

practiced law. 

When you become a judge, obviously, and you put on the robe, 

you step into a different atmosphere, and that atmosphere is one 

of paying close attention to precedents that have been established 

and getting away from the personal feelings that you have to make 

sure that we follow those precedents that are established by all of 

our courts, from the Supreme Court on down. 

Do each of you know and understand the difference between following precedents and legislating from the bench, and are you preVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00451 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
440

pared to accept the new responsibility that you would have to make 

sure that you do not legislate from the bench? 

Bill? 

Mr. DUFFEY. Senator, I think that that is the principal responsibility of a judge, is to follow precedent and to apply the law as it 

has been announced by the Supreme Court or the circuit which I 

am in, the Eleventh Circuit. It is a wholly different discipline from 

being an advocate, in that it is my responsibility, should I be confirmed, to make sure that I follow the precedent, follow the law, as 

it has been announced by the courts. 

Senator CHAMBLISS. Thank you. 

Mr. Stengel? 

Judge STENGEL. Well, Senator, I have been sitting as a State 

court trial judge since October of 1990 and have had the obligation 

and the privilege over that time to consider many criminal and 

civil cases. I have tried at this point probably several hundred 

criminal and civil cases, and have attempted in each case to diligently apply the law of our commonwealth and of the Federal 

courts, where applicable, to the cases I have been handling. So, yes, 

I think that is central to the role of an effective judge. 

Senator CHAMBLISS. Thank you. Thank you, Mr. Chairman. 

Senator CRAIG. Saxby, thank you very much for those questions. 

Senator Chambliss has asked the question of precedent that I 

think is critical to ask judges as it relates, certainly, to the district 

court in relation to the circuit court, in relation to the Supreme 

Court. Let me ask, then, I think, a follow-up question. It is something that the Committee attempts to seek of those who are before 

them as nominees, and so I ask this of both of you. 

Given your background and prior experience, could you speak for 

a moment about the role and significance of judicial temperament 

and indicate what element of judicial temperament you consider to 

be the most important? 

Mr. Duffey? 

Mr. DUFFEY. I think judicial temperament is one of the most important qualities that this Committee or anybody evaluating judges 

has to take into account. Everybody who is in a courtroom—sometimes the only encounter that they have with the judicial system 

is that particular trial or that particular hearing. And they will 

leave that courtroom, whether they are a litigant or they are an observer or they are a member of a jury, with an impression of the 

court system based upon that experience. 

Therefore, I think it is incumbent upon the judge to allow everybody to leave that hearing with the belief that they have treated 

the parties fairly, that they have allowed the litigation to proceed 

and for the advocates to perform their jobs to the utmost of their 

ability, that they have treated all people with dignity, and that ultimately through the conduct of the trial, the hearing or the proceeding that it was done with objectivity and fairness, and that 

people left feeling as if justice has been done. And that can only 

be done, I believe, Mr. Chairman, by somebody who sits on the 

bench that creates that atmosphere. 

Senator CRAIG. Thank you. 

Mr. Stengel? 

441

Judge STENGEL. Senator, I think that temperament involves elements of courtesy. I think it is essential that the judge who is in 

charge of the courtroom exhibit an attitude of courtesy to everyone 

who participates, from witnesses to litigants, to uncooperative witnesses, to pro se defendants. I think that to listen courteously and 

to consider the position of that person in that case is critical. 

Much of temperament from the bench has to do with listening. 

We are not great speakers necessarily or people who have a lot to 

say during a proceeding. Ours is, I think, to listen carefully, listen 

critically, and make sure that the situation in the courtroom leads 

to a fair hearing both in how it appears and how it actually is. 

In a State court trial practice, I have litigants—1 day, you may 

have a world-famous forensic pathologist in a case. The next day, 

you may have a seriously mentally ill pro se criminal defendant. 

And I think that the message is the same and the procedure is the 

same, and that each person who comes in there deserves to be 

heard, deserves to be treated fairly. And I think a lot of that comes 

from the attitude and the conduct and the temperament of the person in charge. 

Senator CRAIG. Mr. Stengel, you have served 14 years as a judge. 

Judge STENGEL. Nearly 14, sir, yes. 

Senator CRAIG. I think you have already spoken to this, but 

maybe you could take another moment to tell us why that experience prepares you obviously now for the Federal bench. 

Judge STENGEL. I view the roles in a very similar way. I view 

the move to the Federal court as a way of continuing a career 

which has been a very satisfying career to me in public service at 

another level and in another framework. 

I think certainly in a state court courtroom, there is a great volume of cases. I would look to the Federal courts perhaps as involving cases of greater complexity, but perhaps less volume. But the 

volume that I have managed over nearly 14 years, I think, has 

given me skills and a sensitivity to the importance of case management and in not only conducting full and fair hearings, but doing 

so in an expeditious way so that people who are waiting for a result, people who are waiting for a hearing, get in the courtroom 

and get the decision. And I think it is a question of administration 

most that I think would have prepared me in my State court work 

for a position on the Federal bench. 

Senator CRAIG. Mr. Duffey, you have spent over 25 years practicing law and have served both as a prosecutor and as a defense 

counsel. What do you think is the biggest challenge you will face 

in your new role if you are confirmed as a district judge? 

Mr. DUFFEY. Well, thank you, Mr. Chairman. I feel as if my 

background has maybe uniquely prepared me for this opportunity. 

As you mentioned, I have the blessing of having served in almost 

any role that you could serve in a trial court, save for presiding 

over the proceeding. Not only was I a prosecutor, but I did, as you 

observed, defend a lot of criminal cases. 

A significant portion of my practice in my old law firm was in 

plaintiff’s work, albeit on the commercial side. But I not only saw 

the litigation process from the needs of somebody instituting the 

action, but also then defended a number of companies and individuals in litigation in the civil side. 

442

I have thought a lot about this transition and I believe that all 

of those things that have been in my background have prepared 

me, and I look forward to moving toward a place where I can apply 

those skills that I have developed and apply the experience that I 

have had. In managing a courtroom and a docket so that the people 

that are in the position that I am in now and I have been in the 

past have the opportunity to adequately represent their clients and 

move cases toward resolution. 

Senator CRAIG. Obviously, that experience is extremely valuable, 

I would trust. I am not an attorney. I have never stood before a 

judge in that regard. 

Mr. DUFFEY. I believe it is invaluable. 

Senator CRAIG. Yes. Well, gentlemen, to both of you thank you 

very much for your time, your patience, and your responses. I 

would trust this Committee will move you expeditiously from the 

Committee to the floor for confirmation, and I would hope that that 

would happen sooner rather than later. Obviously, you are needed 

on the bench, as caseload in most States is sizable, and I am sure 

you would be needed at work. So I thank you both for your testimony and for your patience and the patience of your families. 

We will keep the record of this Committee open. We will hold the 

record open for written questions until 5:00 p.m. on Friday, February 13. Otherwise, we will get into a recess. The staff has hopefully been able to access computers and draft statements, and all 

that can happen in a timely fashion. 

Based on your record, you two may be subject to written questions asked of you, and so we would hope that you would respond 

to those as quickly and timely as possible. 

With that, I don’t know of anything else to come before the Committee and the Committee will stand in adjournment. 

[Whereupon, at 1:03 p.m., the Committee was adjourned.] 

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

[Additional material is being retained in the Committee files.]

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(579)

NOMINATIONS OF DIANE S. SYKES, OF WISCONSIN, NOMINEE TO BE CIRCUIT JUDGE 

FOR THE SEVENTH CIRCUIT; JAMES L. 

ROBART, OF WASHINGTON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON; AND JUAN R. 

SANCHEZ, OF PENNSYLVANIA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF PENNSYLVANIA 

WEDNESDAY, FEBRUARY 11, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Specter, Craig, Kohl, and Feingold. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. I apologize for being a little bit late. I just 

could not get away from where I was. 

We are pleased to welcome to the Committee this afternoon three 

outstanding nominees, one for the Federal appeals court bench and 

two for the district court bench. And I will speak about each of 

them in just a minute, and can we hold our remarks until our colleagues are able to say theirs? Is that okay with you? 

Senator SPECTER. I am one of your colleagues. 

Chairman HATCH. Well, I think that is a good idea. 

Senator SPECTER. Both ways: on the Committee and introducing 

one of the nominees. 

Chairman HATCH. That is great. Well, then, we will start with 

Hon. Arlen Specter. Then we will go to Hon. Rick Santorum, then 

Hon. Herb Kohl, if he is here. Well, since it is Wisconsin, I think 

we will honor the Chairman of the House Judiciary Committee and 

go to him. and then if Senator Feingold shows up, then we will do 

him. 

Senator SPECTER. He is here. 

[Laughter.] 

Chairman HATCH. You can say, ‘‘I am late.’’ Okay. Senator Feingold will be next, then Hon. Senator Patty Murray, and then finally 

580

Hon. Maria Cantwell. So we go in that order. We will put, Congressman Sensenbrenner, right after Senators Kohl and Feingold, 

if that would be all right. So we can keep that all together. 

We will start with you, Senator Specter. 

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

THE STATE OF PENNSYLVANIA 

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

thank you for convening these hearings and the prompt listing of 

the judicial nominees. With the many problems facing the Federal 

courts, it is very important to keep the nominees going, and you 

have done an outstanding job under difficult circumstances. 

Senator Santorum and I have the honor to introduce State Common Pleas Court Judge Juan Sanchez for the United States District Court for the Eastern District of Pennsylvania. Judge Sanchez 

comes to this position with an excellent academic, professional, and 

judicial background. He was born in Puerto Rico, came to the 

United States, and attended the City College of New York, graduating in 1978 cum laude; a law degree from the University of 

Pennsylvania; and since that time, has had a diversified practice 

in the civil practice with the Public Defender’s Office, with the 

Legal Aid Society, the sole proprietor of a law firm, and more recently for 6 years being a very distinguished judge of the State 

court, the Common Pleas Court of Chester County. 

Judge Sanchez has moved through the process on the bipartisan 

nominating panel which Senator Santorum and I have established. 

The President has submitted his name to the Senate because of his 

outstanding qualifications and also in the interest of diversity. 

A very large group of proud Chester County officials have come 

here today: William H. Lamb, a former Associate Justice of the Supreme Court of Pennsylvania, his most prominent position when he 

was a fellow district attorney with Arlen Specter in the good old 

days in Philadelphia; James McErlane; Skip Brion, the Chairman 

of the Chester County Republican Group; three of the judges, fellow 

judges from the Court of Common Pleas—President Judge Riley, 

Judge Ott, and Judge Mann. And I would go on and list everybody 

here, but there are a lot of people waiting to make their presentations. But it is a great pleasure to introduce Judge Sanchez to 

this panel and to urge his speedy confirmation. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Specter. 

We will go to Senator Santorum, then Senator Kohl, and then 

Senator Feingold. 

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

THE STATE OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Mr. Chairman. It is an honor for 

me to be here to introduce to the Committee Judge Juan Sanchez. 

And even though he is a native Puerto Rican and grew up in New 

York, he was wise enough to begin to practice law in Chester CounVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00592 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
581

ty, Pennsylvania, and has a distinguished record that Senator 

Specter outlined. And I just want to add the tremendous amount 

of work that he has done in community service. Chester County 

has a large migrant worker population, largely Hispanic population, and Judge Sanchez has done a lot in the area of bilingual 

education at the YMCA and a lot of other things to really help integrate that community and has really been an outstanding role 

model for many members of that community in Chester County. 

And he has a distinguished legal record that Senator Specter—academic and legal record. He was unanimously well qualified by the 

American Bar Association. He has a distinguished time as a trial 

court judge in a large suburban county, Chester County. And as 

Senator Specter said, he has tremendous support—Republican, 

Democrat, across the board. When we asked for a suggestion for 

judge in Chester County—it was sort of their time as a large suburban county to have one of these vacancies—there was unanimous 

support for Judge Sanchez because of not just his great legal ability and his excellent record but, candidly, because of the tremendous community service that he has provided and the great model 

that he is in that county. 

And so it is a pleasure for me to be here to support his nomination. 

Chairman HATCH. Thank you, Senator Santorum. That is heady 

praise for our nominee, and I appreciate both of you being here and 

appreciate your busy schedules. 

We will turn to Senator Kohl at this time. 

PRESENTATION OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT 

COURT JUDGE FOR THE SEVENTH CIRCUIT, BY HON. HERB 

KOHL, A U.S. SENATOR FROM THE STATE OF WISCONSIN 

Senator KOHL. Thank you, Mr. Chairman. Along with Senator 

Feingold and Chairman Sensenbrenner, it is my pleasure to introduce Wisconsin Supreme Court Justice Diane Sykes to the Senate 

Judiciary Committee today. She has been nominated to fill one of 

the Wisconsin seats on the Seventh Circuit Court of Appeals to replace retiring Judge John Coffey. 

Justice Sykes brings an impressive background to this important 

position. She is a lifelong resident of Wisconsin. She was born in 

Milwaukee, attended Marquette University Law School, clerked for 

Federal Judge Terry Evans in Milwaukee, and practiced law for a 

Wisconsin law firm at the very top rank. 

Justice Sykes left private practice in 1992 to serve as a Milwaukee County circuit judge, a position she held until 1999. She 

was then appointed to the Wisconsin Supreme Court in 1999, and 

she won re-election to a 10-year term in the year 2000. She is to 

be commended for her devotion to public service and praised for 

her qualifications for the Seventh Circuit Court of Appeals. 

We are not the only ones who recognize her abilities today. The 

bipartisan Wisconsin Federal Nominating Commission, which has 

been screening judicial candidates for Wisconsin Senators of both 

parties for 25 years, selected Justice Sykes and three others from 

a very impressive list of applicants for this position. All four finalists were very well qualified, and all deserved to have their names 

forwarded to the President for his selection. Wisconsin’s process 

582

should be a model, Mr. Chairman, because it finds qualified applicants and takes much of the politics out of judicial selection. 

The American Bar Association agrees with our evaluation as 

well. A substantial majority of the Committee rated her well qualified. Mr. Chairman, we expect Justice Sykes to not only be a credit 

to Wisconsin, but also to administer fair justice for all who come 

before her. We look forward to Justice Sykes’ hearing today and ultimately her support by the full Senate. 

I thank you and I ask unanimous consent that Senator Leahy’s 

statement be recorded. 

Chairman HATCH. Thank you so much. We will put that in the 

record and record it. 

Senator Feingold, and then Congressman Sensenbrenner. 

PRESENTATION OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT 

COURT JUDGE FOR THE SEVENTH CIRCUIT, BY HON. RUSSELL FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. It is also my privilege to welcome Justice Diane Sykes to this hearing and to introduce her to the Committee. 

Justice Sykes is a true product of Wisconsin. She was born in 

Milwaukee and attended Brown Deer High School. She left our 

State to go to college at Northwestern University only, but then 

she returned to work as a reporter for the Milwaukee Journal and 

then to attend Marquette University Law School where she was a 

member of the law review. 

After law school, she clerked for Judge Terry Evans, then a U.S. 

District Judge for the Eastern District of Wisconsin. So if Justice 

Sykes is confirmed to the Seventh Circuit, Judge Evans will be her 

colleague on that court. 

After clerking, Justice Sykes practiced law for 7 years with the 

Milwaukee firm of Whyte and Hirschboeck. In 1992, as Senator 

Kohl indicated, she was elected to a circuit court judgeship in Milwaukee County, and then in September 1999 then-Governor 

Tommy Thompson named her to a vacancy on the Wisconsin Supreme Court. She was re-elected in the year 2000 and she continues to serve on the highest court in our State. 

Mr. Chairman, I think it is important to note, as Senator Kohl 

noted, that Justice Sykes’ nomination is the result of a collaborative, bipartisan process of judicial selection in our State. The 

Wisconsin Federal Nominating Commission was first formed nearly 

a quarter century ago by former Senators William Proxmire and 

Gaylord Nelson. It has been used continuously since that time by 

Democratic and Republican Senators under both Democratic and 

Republican Presidents. The Wisconsin Federal Nominating Commission is an independent panel selected by Wisconsin elected officials and the State Bar of Wisconsin. The commission charter provides that it will review applications for Federal district court and 

court of appeals vacancies in Wisconsin, as well as United States 

Attorney vacancies. 

Senator Kohl and I have worked very hard to maintain and 

strengthen the commission throughout our time in the Senate. The 

composition of the commission assures that selections for these imVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00594 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
583

portant positions will be made based on merit, not politics. Over 

the past 25 years, the commission process has yielded very high 

quality nominees and has served to depoliticize the nomination 

process in our State. Despite some initial resistance, the Bush administration ultimately agreed to have candidates for the Seventh 

Circuit vacancy go through the commission process. 

Under the joint leadership of Dean Joseph Kearney of the Marquette University Law School and Professor Frank Tuerkheimer of 

the University of Wisconsin Law School, the commission worked 

extremely hard under a very tight deadline. As Senator Kohl indicated, they recommended four highly qualified candidates, including Justice Sykes. Senator Kohl and I, working with Representative Sensenbrenner, the senior Republican officer holder in the 

State, decided to forward all four names to the White House, and 

then President Bush selected Justice Sykes from the four. 

I have always maintained that with cooperation and consultation 

between the President and home State Senators, the judicial nomination process can be far less contentious and, frankly, far less 

frustrating than it has been over the past several years. Recognizing that ideological differences are inevitable in the process, as 

control in the Senate and the White House changes hands, it would 

serve those who choose and confirm Federal judicial nominees well 

to follow this example of the Wisconsin Federal Nominating Commission. 

I met with Justice Sykes last summer as a part of the commission process. I had a chance to question her closely about her background, her qualifications, and her judicial philosophy. Certainly 

there are a number of topics on which we do not see eye to eye. 

But I found Justice Sykes to be candid and forthcoming, and I believe she is well qualified to fill this seat on the Seventh Circuit. 

I have great respect for Justice Sykes’ commitment to public service. Talented young lawyers have many more options that they 

could pursue for far more compensation. But Justice Sykes is one 

of this group who have chosen public service. I also have great respect for the commission process, and I fully support Justice Sykes’ 

nomination. 

Mr. Chairman, it is my hope that the work of the Wisconsin Federal Nominating Commission, the nomination of Justice Sykes, and 

her smooth confirmation will send a signal to the White House and 

to my colleagues on both sides of the aisle and to the country that 

we can, in fact, work together in a bipartisan way to fill these judicial vacancies. And I want to again welcome Justice Sykes and her 

family to the Committee, and I look forward to her taking the Federal bench in the Seventh Circuit. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator. We appreciate that. 

I would note for the record that Justice Sykes received more 

votes in Wisconsin than either Kerry or Dean did. 

[Laughter.] 

Chairman HATCH. I thought that was pretty good. But I appreciate this bipartisan approach towards your nomination. 

We are always honored to have any meeting with the distinguished Chairman of the House Judiciary Committee, but to come 

584

over all the way from the House to testify here today, we are grateful to have you here, and we will recognize you at this time. 

PRESENTATION OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT 

COURT JUDGE FOR THE SEVENTH CIRCUIT BY HON. F. 

JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN 

Representative SENSENBRENNER. Thank you very much, Mr. 

Chairman. I will not repeat the biographical information that Senators Kohl and Feingold have given relative to the nomination of 

Justice Diane Sykes to the Seventh Circuit bench. Let me say that 

I probably have known Diane and known of her longer than either 

of my two Senate colleagues because her father, Jerry Schwerm, 

was the village manager in a community in my district as I was 

elected to the State legislature. Every once in a while he brought 

his teenage daughter along to some of the functions that we were 

at, and she has always struck me as someone who has a great deal 

of intellect, a good temperament, and unimpeachable integrity. And 

as she has progressed through law school and into private practice 

and then on to both the trial court bench and the State Supreme 

Court bench, she has certainly been able to develop and hone those 

skills and will be an outstanding representative as a judge on the 

Seventh Judicial Circuit. What the two Senators have not said is 

that the ABA has rated her well qualified for the position that she 

has been nominated to. 

I would like to say a few words about the commission process as 

well. There is a tradition in Wisconsin that the commission is used 

to try to take as much of the politics out of judicial nominations 

as possible. And that will only work if the commission members 

themselves rise above politics and approve names for sending on to 

the White House that would be acceptable to whatever President 

is in office at the time. And I think that all 12 members of the commission—the two deans, the two State bar representatives, the 

members that Senators Kohl and Feingold have appointed to the 

Commission, as well as the four members that I have appointed to 

the commission—all took that charge very seriously. And the four 

names that were approved by the commission and sent to the 

White House all would have met the White House’s political and 

ideological tests for approval by the White House, this White 

House, to be sent to the United States Senate. 

I have talked with Justice Sykes as well, and I am convinced 

that she will impartially administer justice to all that come before 

the appeals court, as she has done on the appeals court on Wisconsin and as a trial judge in Milwaukee County. She obviously 

has got strong support by the voters. When she ran in the statewide election for her full 10-year term in April 2000, she won a 

contested election with 65.52 percent of the vote, and I think that 

is a tremendous endorsement of the people of Wisconsin in her judicial abilities. 

So I would urge her speedy confirmation, and thank you for the 

time. 

Chairman HATCH. Thank you, Mr. Chairman. We are delighted 

to have you here, and we know how busy you are, and we certainly 

585

expect you to head back to the House. And that is certainly good 

praise for the nominee, and we are very grateful for that. 

Now we will turn to Senator Murray. We are delighted to have 

you and Senator Cantwell here, and we appreciate your taking 

time out of your busy schedules to be here to testify. Senator Murray? 

PRESENTATION OF JAMES L. ROBART, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A U.S. SENATOR FROM 

THE STATE OF WASHINGTON 

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

members of the Committee. I am honored to be here today to introduce Jim Robart to this Committee. For more than 30 years, he has 

been a respected and important part of the Seattle legal community. Senator Cantwell and I worked with President Bush to select 

him from a list of very qualified candidates, and today I am proud 

to offer my full support for his speedy confirmation. 

I especially want to welcome his wife and friends. His wife, Mari 

Jalbing; his long-time friend, Doug Adkins; and Mr. Adkins’ daughter, Blakeley, are all Washington State residents, and they are 

here with him today. 

Jim and Mari have been foster parents to six children, and while 

they could not all join us in person today, I know they share the 

pride that so many in my State feel on Jim’s nomination. 

Mr. Chairman, I met with Jim Robart, and I am impressed by 

his professionalism, his decency, and his experience. After more 

than 30 years of distinguished legal service, he is ready to be confirmed as the next U.S. District Judge for the Western District of 

Washington State. And I can tell you that he has the strong support of a wide group of attorneys and community leaders throughout Washington State. 

There are many things to say about Jim Robart. He earned an 

undergraduate degree at Whitman College, graduating magna cum 

laude, and he got his law degree at Georgetown University. He has 

30-plus years of experience in private practice, and he is currently 

the managing partner at Lane, Powell, Spears, Lubersky, and is an 

expert in complex litigation. He was the lead counsel in a constitutional challenge on a Washington initiative that would have required all State residents to vote on all tax increases. The Washington State Supreme Court found the initiative unconstitutional. 

And he has also handled several other important cases in my home 

State, including many energy cases and disputes regarding intellectual property. He has received a unanimous well qualified rating 

by the American Bar Association. 

Jim Robart also has a generous sense of community service 

through his work with at-risk and special needs youth. He has 

done extensive work with the Seattle Children’s Home, which offers 

mental health services and special education for Seattle’s most atrisk youth, and is associated with the Children’s Home Society of 

Washington, which is renowned for providing parenting skills 

statewide to many troubled families. And, of course, I should mention that Jim and Mari’s dedication is evident as foster parents to 

six children. 

586

Those things are all important, but they only provide glimpses 

into a man whose professionalism, fairness, thoughtfulness, and 

compassion set a great example for many people in my State. Mr. 

Chairman, I am proud to be here today to introduce Jim Robart to 

this Committee, and I urge his speedy confirmation. 

Thank you. 

Chairman HATCH. Thank you, Senator Murray. We appreciate 

your taking the time to be here. It is great praise for this nominee, 

and we are grateful to you. And we know how busy you are. If you 

need to leave, we would be happy to excuse you. 

Senator Cantwell, you are last but not least. I want you to know 

that. 

PRESENTATION OF JAMES L. ROBART, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. MARIA CANTWELL, A U.S. SENATOR FROM 

THE STATE OF WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. I appreciate that. 

As a former member of the Committee, it is good to be back with 

my colleagues here. 

Mr. Chairman, I join with my colleague Senator Murray in introducing this incredibly talented nominee for the vacancy of the District Court of the Western District of Washington, James Robart. 

And Senator Murray has already introduced his family who is here 

to support him as well. 

In one sense, today’s hearing is a homecoming for Mr. Robart. 

Early in his career, he served as an aide to former Senator Scoop 

Jackson and to Senator Mark Hatfield, so I am sure that they 

would both be very proud of his accomplishments during his long 

legal and productive career and that he is before this Committee 

for this nomination today. 

Following his public service as a staff member in both Houses, 

Mr. Robart returned to Washington State—as Senator Murray 

said, is a second-generation native graduate of Whitman College 

and Georgetown Law School—where Mr. Robart has worked as an 

attorney for the past three decades. And during this time, as Senator Murray outlined, he has earned a reputation for fairness and 

integrity that is well known. That is why his evenhanded and thoroughness I think is very appropriate, the fact that we selected him 

by our bipartisan Committee and recommended him for this vacancy. 

Members of the Washington State legal community and the 

White House and my colleagues have all worked together to review 

these nominees in a process that I think has worked well. I would 

add that this approach I think has helped produce a very high 

quality group of nominees, and I believe it should be a model for 

many other States in our country. 

Together, we all agree that James Robart is the right person for 

this job and that the people of the Western District of Washington 

will be well served by his presence on the bench. I will not go over 

some of his legal accomplishments that Senator Murray articulated, but I think that his many years in the managing partner position and practice there at Lane Powell have served him well, and 

587

you will be very impressed by this nominee’s answering of questions today before this Committee. And I urge your support. 

Thank you. 

Chairman HATCH. Well, thank you, Senators. We appreciate both 

of you. For you to take time out to come here means a lot to us, 

but it also means a lot to the nominee, and we are grateful to you. 

If we can have the three nominees come to the table, I am going 

to put all three of you up there even though sometimes we split 

them. But we will put you all up here and save a little bit of time 

here. 

If you will all stand and just raise your right hands, do you 

swear that the testimony you are about to give before this Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Justice SYKES. I do. 

Mr. ROBART. I do. 

Judge SANCHEZ. I do. 

Chairman HATCH. Thank you. Well, we are delighted to have all 

three of you here. We are trying to do our best job on this Committee, and we are working hard to try and do a bipartisan job on 

this Committee and get as many judges on the bench as we can 

possibly get so that the people of this country are not bereft of justice. So we are grateful to have you all three here. 

Now, what I would like to do is take a few moments and let you 

speak and say whatever you would care to. I would like you to introduce your families to us. We welcome all members of the respective families, and we will go from there. 

So, Justice Sykes, we will begin with you. 

STATEMENT OF DIANE S. SYKES, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SEVENTH CIRCUIT 

Justice SYKES. Thank you. And, Mr. Chairman, I thank you and 

the members of the Committee for the honor of this hearing, and 

I would like to thank the President for the honor of this nomination. I am very grateful to Senator Kohl and Senator Feingold for 

their generous support of my nomination and for their very kind 

words of introduction. I am also grateful to Congressman Sensenbrenner, Chairman Sensenbrenner, for his presence here today in 

support of my nomination and for his friendship. 

I have no opening statement, but I would like to introduce the 

members of my family who are here with me today. My older son, 

Jay, is a freshman in high school, and he had two tests and a biology presentation. And so he— 

Chairman HATCH. Well, that is not an excuse. 

[Laughter.] 

Chairman HATCH. That is as good an excuse as I can think of. 

Justice SYKES. Well, I told him that if am fortunate enough to 

be confirmed that he is not getting out of the investiture. However, 

he did stay home to go to class. But my younger son, Alex, is here. 

Chairman HATCH. Please stand. 

Justice SYKES. He is in sixth grade, and he very generously 

agreed to skip school and come. 

Chairman HATCH. He looks like he could pass just about anything. 

588

Justice SYKES. I am very glad that he is here to participate in 

this important moment for our family. 

Chairman HATCH. Good to have him here. 

Justice SYKES. My father, Gerald Schwerm, and my stepmother, 

Judy Schwerm, are here as well. 

Chairman HATCH. We are so grateful to have you here. We welcome you and you have to be very proud. 

Justice SYKES. You have heard about his career in public service 

as well. 

My sister, Kathryn Lynden, and her husband, Jim Lynden, are 

here. My stepbrother, David Stegeman, is here. I am very grateful 

for their support here with me today. And also my administrative 

assistant at the Wisconsin Supreme Court, Joyce Dohse, and her 

husband, Bob, are here in support of me as well. 

Chairman HATCH. We welcome all of you. We are grateful to 

have you here. It does help to have friends here in the Judiciary 

Committee from time to time. 

[Laughter.] 

Justice SYKES. Thank you. I welcome your questions. 

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Chairman HATCH. Thank you. 

Mr. Robart, we will turn to you. 

STATEMENT OF JAMES L. ROBART, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON 

Mr. ROBART. Mr. Chairman, thank you very much. I greatly appreciate the opportunity to have my hearing today. I am very 

thankful for Senators Murray and Cantwell for taking time to 

come. I know that’s a special honor, and I very much appreciate it. 

Joining me today is my spouse, Mari Jalbing. 

Chairman HATCH. So delighted to have you here. Thank you for 

coming. 

Mr. ROBART. Our daughter, Blakeley Adkins. 

Chairman HATCH. Good to have you with us. 

Mr. ROBART. And my long-time friend, Douglas Adkins. 

Chairman HATCH. Douglas, happy to have you here. 

Mr. ROBART. Thank you very much, Senator. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you. 

Judge Sanchez, we will turn to you. 

STATEMENT OF JUAN R. SANCHEZ, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Judge SANCHEZ. Thank you, Chairman Hatch. I do not have any 

prepared remarks, but I would like to take the opportunity to 

thank you and thank Senator Leahy for the invitation to appear 

before the Senate Judiciary Committee. And I would like to take 

this opportunity to thank Senator Specter and Senator Santorum 

for their kind words and the support they have given me throughout this process, and also to the President for the tremendous 

honor he has bestowed upon me, my family, my friends, and my 

colleagues and the Chester County community. 

I have some guests here that have traveled from Chester County 

to support me this afternoon, and it is with tremendous honor that 

I introduce some of my friends and some are the best lawyers in 

Chester County: former Justice of the Supreme Court of Pennsylvania, William H. Lamb, who is in the back. 

Chairman HATCH. Happy to have you here, Mr. Justice. 

Judge SANCHEZ. My mentor and good friend, Mr. James 

McErlane, a senior partner with the law firm of Lamb and 

McErlane, who is in the back. 

Chairman HATCH. Grateful to have you here, Mr. McErlane. 

Judge SANCHEZ. My staunch supporter and good friend, Skip 

Brion, who is the Chairman of the Chester County Republican 

Party. 

I have with me the honor of introducing my friend and colleague, 

Paula Francesco Ott, who was the first woman to be elected as a 

trial judge in Chester County. 

Chairman HATCH. We are honored to have you here. 

Judge SANCHEZ. We have our President Judge Howard F. Riley. 

I have the honor also of having with me a good friend, Hon. William Mann. 

Chairman HATCH. We are happy to have both you judges here. 

Just great. 

Judge SANCHEZ. Damaris Acevedo, my fiancee. 

Chairman HATCH. Happy to have you here. 

Judge SANCHEZ. And some special guests that have traveled from 

Chester County: John Stanzione, Debbie and Steven Long, and 

Peter Hart. 

Chairman HATCH. Happy to have you all here. 

Well, thank you so much. This is great. 

Judge SANCHEZ. Thank you. 

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Chairman HATCH. We are grateful to have all of you here, and 

we look forward to moving your confirmations as quickly as possible. And from what I see, there should be no real difficulty in 

moving those confirmations. 

I think what I will do is turn to my colleagues and see what 

questions you would care to ask, if any, of these nominees. 

Senator KOHL. Thank you very much. I will ask Justice Sykes a 

couple of questions. 

Justice Sykes, you are still in the early stages of a 10-year term 

on the Wisconsin Supreme Court. Could you tell us why you want 

to leave that position for the Seventh Circuit? 

Justice SYKES. Yes, Senator. I absolutely love my job. It is a 

great privilege and an honor to serve the people of the State of 

Wisconsin as a member of the Wisconsin Supreme Court, and it 

was a privilege to serve as a trial court judge in Milwaukee County 

for 7 years prior to that. 

I view this opportunity as an opportunity to do the work of an 

appellate judge that I have been doing on the Supreme Court for 

the last 4 and a half years for the people of three States: my own 

home State of Wisconsin as well as the States of Illinois and Indiana within the jurisdiction of the Seventh Circuit Court of Appeals. 

And that is the reason that I pursued this appointment. I absolutely enjoy the work that I’m doing now. It is challenging and rewarding, and I have tried to make a contribution to my current 

court for the last 4 and a half years, and I see this as an opportunity to do the same sort of work at a different level in our judicial system and serve the people of three States. 

Senator KOHL. For many years, conservatives have criticized liberal judges for being activist, and now we hear much about conservative activism as the current Supreme Court has struck down 

parts of more statutes in the past few years than at almost any 

time in our history. How would you define ‘‘judicial activism’’? And 

do you agree that it is to be avoided? 

Justice SYKES. I agree that it is to be avoided. The judicial philosophy that I abide by in my work as a judge, both as an appellate 

court judge in the State’s highest court and as a trial court judge, 

is a philosophy of judicial restraint. I do not believe in legislating 

from the bench. I believe in deference to the legislative branch of 

government and the policy choices that the legislative branch of 

government makes in enacting statutes. 

And so my approach to judicial decisionmaking is one of deference to the legislation branch and one of judicial restraint. 

Senator KOHL. Thank you. And, finally, the Governor of Wisconsin has indicated that he is rather pleased that you are being 

elevated to this position. Why does he have that position? Do you 

know why he feels that way? 

[Laughter.] 

Justice SYKES. That is by virtue of the Wisconsin Constitution. 

We have an elected judiciary, as you know, in the State of Wisconsin, a non-partisan elected judiciary. In the event of a midterm 

vacancy, the sitting Governor replaces judges of the lower courts or 

justices of the State Supreme Court for an interim period until the 

next election cycle when that appointed justice runs for election on 

the statewide ballot. 

690

Senator KOHL. Thank you. 

Chairman HATCH. We will turn to the Senator from Idaho. 

Senator CRAIG. Well, Mr. Chairman, I have no questions of any 

of the three. I congratulate all of you on your nominations. I trust 

that your experience—and I have reviewed some of your record—

will serve us well in your future endeavor, and I congratulate you 

all. 

Judge SANCHEZ. Thank you, Senator. 

Justice SYKES. Thank you, Senator. 

Mr. ROBART. Thank you, Senator. 

Chairman HATCH. Senator Feingold? 

Senator FEINGOLD. Mr. Chairman, I have no questions. Thank 

you. 

Chairman HATCH. Well, thank you. 

Let me just ask a few. Frankly, I know your backgrounds, have 

studied them. I know quite a bit about each of you, and I am very 

pleased with your nominations. I think you are good people who 

will do a good job on the bench. And I agree with Senator Kohl; 

there should not be judicial activism from the left or from the right. 

And it particularly rankles me when it comes from the right. But 

it rankles me both ways. I want you to know that. At least one circuit court in this country is considered the activist poster child for 

all activist judges, and it has hurt that court tremendously. So we 

hope in your case, Justice Sykes, that you will add a lot of dignity 

to whatever court you are on, but in particular this court. 

Now, your ability to constructively interact with your fellow 

judges on the Seventh Circuit is going to be a very important element of your work. Could you speak for a moment about the role 

of collegiality? And please indicate how you plan to contribute to 

it once you join the Federal bench. 

Justice SYKES. Yes, thank you, Mr. Chairman. I believe that 

collegiality is a very important component of operating as an appellate court judge. And I have attempted to keep that in mind in 

every decision on every case that I participate in with my colleagues on the Wisconsin Supreme Court. 

I think that involves a process of keeping focused on the legal 

issues and the facts of the cases that are before the court instead 

of personality differences or differences of opinion that members of 

the court have had in the past. 

I think it also involves setting aside slights and really checking 

your ego at the door, if that’s at all possible in a conference room 

that has a lot of intellectual give and take. It’s very important to 

set aside those personal differences, set aside any differences, any 

power struggles, anything that’s extraneous to the facts and the 

law in the case at hand, and keep focused on the facts and the law 

in the case at hand in order to reach a collegial decision with the 

other members of the court. And when we disagree, we attempt to 

do it agreeably. And when we are in dissent or in opposition to one 

another, we attempt to do that respectfully. 

Chairman HATCH. So we don’t expect any biting dissents from 

you? 

[Laughter.] 

Justice SYKES. Well, biting, no. But strong and forceful perhaps. 

691

Chairman HATCH. But we have biting dissents from time to time. 

It is just good for the judiciary. No, I am just kidding. 

I understand that you teach several times a year in the Challenges and Possibilities Program at the Green Bay Correctional Institution, a rehabilitative program for inmates at the prison. Could 

you just tell the Committee a little bit about your work there? 

Justice SYKES. Yes. It’s a rehabilitative program at the Green 

Bay Correctional Institution, which is a maximum security institution in the State of Wisconsin. It houses mostly younger offenders, 

and the program attempts to get these prison inmates ready for reintegration into society by working on concepts such as acceptance 

of personal responsibility for their acts, developing victim empathy, 

and also learning more about the legal system and the process that 

their cases were adjudicated by. Many of these inmates believe that 

the system is out to get them and that they have been unjustly 

convicted, and so the purpose of this program is to sort of break 

down some of those barriers so that there is a greater chance at 

real internal rehabilitation for these inmates. And my role in this 

program has been to, three or four times a year, teach a session 

on sentencing law in Wisconsin so that the inmates in the prison 

understand why it is that the sentence that was imposed in their 

case was, in fact, imposed according to the law of the State of Wisconsin. 

Chairman HATCH. Well, I appreciate your doing that. I think you 

do a lot of good in doing that type of service. Personally, I think 

you are a wonderful nominee, and we look forward to having you 

confirmed. If we could get all the Senators to agree, I would put 

her on—I would put all three of these on tomorrow’s markup if we 

could agree to it. Would you mention it to your colleagues? I will 

mention it to mine and see if we can do that. I think Senator Leahy 

would agree. Now, if he does not, then we would have to wait until 

after the recess. But I would try to move you as quickly as I possibly can. 

Justice SYKES. Thank you. 

Chairman HATCH. All three of you. 

Mr. Robart, you come before us highly recommended. I notice 

that you worked with the Evergreen Legal Services in the State of 

Washington. How has that experience affected you as an attorney? 

And, also, how will it affect you as a judge? 

Mr. ROBART. Thank you, Senator. The opportunity of working in 

a large law firm is a special one, but one of the things that it does 

is it tends to select out a particular group of clients that come for 

the very specialized services that large law firms tend to offer. 

I think my time at Evergreen Legal Services had two very important functions for me. One was I was introduced to people who in 

many times felt that the legal system was stacked against them or 

was unfair. And one of the things, I think, that my time there 

helped accomplish was to show them that the legal system was set 

up for their benefit and that it could be, if properly used, an opportunity for them to seek redress if they had been wronged. 

And the second part of it is that working with people who have 

an immediate need and an immediate problem that you are able 

to help with is the most satisfying aspect of the practice of law. I 

think in terms of—if I am fortunate enough to be confirmed by the 

692

Senate, I will take that experience to the courtroom with me, recognize that you need to treat everyone with dignity and with respect, 

and to engage them so that when they leave the courtroom they 

feel like they had a fair trial and that they were treated as a participant in the system. 

Chairman HATCH. Well, thank you. That is a great answer. 

Let me go to you, Judge Sanchez. You know, in your questionnaire you mentioned that you taught at Westchester University, 

Immaculata University, and Villanova University School of Law. 

Now, how, if at all, do you think that your teaching experience 

made you in your job as a Federal district court judge? 

Judge SANCHEZ. I enjoy teaching because I firmly believe that 

teaching people about the law teaches them to respect our institutions and become better citizens. So I have a real passion for teaching, especially youngsters at college, high schools, and intermediate 

schools, and I make myself available to do that as much as possible 

because it is important for citizens to understand and respect the 

law and our public institutions. And I think that that will make 

me a good district judge because I have utmost respect for the law 

and work to improve it. And I think those qualities and the appreciation I have and love for people will allow me to serve with honor 

and distinction on the Eastern District Court. 

Chairman HATCH. Well, thank you. I think that an important 

element of our judiciary is that all persons have equal access to the 

law. Now, you have had extensive pro bono experience as a public 

defender, and that ought to really help you to serve— 

Judge SANCHEZ. It’s a humbling experience. 

Chairman HATCH. Yes, it is a humbling experience, but it will 

really help you to serve well in the impartial administration of justice. So I commend you for that, and I am proud of what you have 

done there. And I think all three of you are excellent nominees, 

and I will personally do everything I can to see that you are put 

through the Judiciary Committee as fast as we can. Maybe we 

can—I don’t want to get your hopes up. We may not be able to get 

you on tomorrow’s markup, but if we can, I would like to do so because I don’t see any reason to delay at all in any of these judges, 

but particularly in your cases. 

So we will see what we can do. If we can’t, don’t be disappointed, 

because as soon as we get back from the recess, you will be on that 

list, if you are not on tomorrow. But I just want to compliment 

each of you for the excellent people you are, the excellent reputations that you have, and the excellent service that you have given. 

And I think your families and friends and fiancee ought to be pretty impressed, is all I can say. 

Did you want to say something else? 

Judge SANCHEZ. I just wanted to say thank you, Chairman 

Hatch, for the opportunity. 

Chairman HATCH. That is okay. You can add that. I wouldn’t try 

answering anything else. 

[Laughter.] 

Chairman HATCH. You never know. 

Well, with that, I am proud of all of you. I have extensively 

looked at your records. I find them to be exemplary and the highest 

caliber in all three cases, and I think my colleagues will as well. 

693

So we will move ahead on that basis and wish you all well. And 

when you get there, just remember one thing. The closest thing to 

godhood in this life is being a Federal judge—at least a lot of Federal judges believe that. 

[Laughter.] 

Chairman HATCH. And one of the worst things about some of 

them is they get on the Federal bench and they really do believe 

they are gods. And all of a sudden they don’t seem to have the humility that they have otherwise. Now, I am not saying all of them. 

Naturally I am proud of our Federal judiciary. But occasionally, the 

ones occasionally who violate these principles generally turn out to 

not do justice nearly as well as those who don’t violate them. 

So just remember everybody who comes before you has problems. 

Everyone that comes before you has different abilities. Some of 

these young lawyers don’t know the Rules of Evidence as well as 

others know it. Some of them will need a little help and assistance 

and maybe a little forbearance from time to time. Some of the big 

shots are so good that sometimes they become a little overbearing, 

and it isn’t a bit bad to set them down every once in a while and 

tell them they are getting overbearing. 

But I think it is good to let people try their own cases and not 

have the judges trying the cases for them. On an appellate basis, 

it is difficult for you not to try and try their cases for them because 

you have got to ask very intelligent questions so that you can get 

to the bottom of whatever you think is important in that particular 

case that appears before you. 

But my experience is that the Federal judiciary consists of a wide 

variety of people of the highest caliber, and we are so fortunate in 

this country. In my viewpoint, it is the judiciary that has saved the 

Constitution through all these years. It has not been the Congress 

of the United States. We pass unconstitutional legislation all the 

time—maybe not knowingly, but sometimes even knowingly, I 

think. I don’t want to name names, but don’t think I can’t. 

[Laughter.] 

Chairman HATCH. And then, you know, the Presidents sometimes put up legislation or put up suggestions or act in executive 

ways that sometimes are unconstitutional. So it is important to 

have an honest, decent judiciary to correct those ills. And I am 

counting on all three of you to be humble, good, honorable, intelligent judges who will help us to have the best, continue to maintain the best judiciary in the history of the world. 

So, with that, we are grateful to have you all here and your families, we welcome all of you, and we praise all of you for the good 

people you are, and we will recess until further notice. 

[Whereupon, at 2:59 p.m., the Committee was adjourned.] 

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

[Additional material is being retained in the Committee files.]

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NOMINATION OF ROGER T. BENITEZ, OF 

CALIFORNIA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA 

WEDNESDAY, FEBRUARY 25, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:15 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch and Feinstein. 

Chairman HATCH. I apologize for being a little bit late. I got detained on a District of Columbia matter of great importance, and 

so I apologize to you. 

We are going to start this morning by turning to my distinguished colleague from California, Senator Feinstein, for any comments that she would care to make, and then we will begin with 

our first panel, which would be Roger T. Benitez, the nominee to 

the U.S. District Court for the Southern District of California. 

PRESENTATION OF ROGER T. BENITEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 

THE STATE CALIFORNIA 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. I would 

like to thank you for holding this hearing on the nomination of 

Roger Benitez for the district court. 

Magistrate Benitez is being considered for the last of the five 

new judgeships that you helped us with and which were created by 

Congress in 2002 for the Southern District of California. I would 

like to tell you a little bit about his life story because it is impressive. 

He was born in Cuba. When he was 10, his family fled to America after losing everything when Castro came to power. Pursuing 

the opportunities that education afforded him, Judge Benitez obtained his undergraduate degree at San Diego State University and 

his law degree at Western State University. 

After law school, he practiced as a private attorney for 19 years 

in a general civil practice and then was appointed to the State Superior Court by Pete Wilson in 1997. He served on the Superior 

Court bench for 4 years before he joined the Federal bench as a 

magistrate. 

734

Judge Benitez’s selection was historic because he is the first ever 

magistrate judge in El Centro, California. As Judge Marilyn Huff 

indicated in her written testimony—and I would like to enter that 

testimony into the record, and I would like to make a point that 

that testimony is concurred in by all of the Federal judges in the 

Southern District. 

Chairman HATCH. Without objection, it will be entered into the 

record. 

Senator FEINSTEIN. Thank you. 

As Judge Huff indicated, Judge Benitez’s role in setting up the 

court in El Centro reflects really a significant accomplishment. In 

2003, he handled more initial appearances in criminal cases, 1,494, 

than all 10 magistrates combined from the Northern District of 

California. He is getting a special hearing because he has received 

a poor rating from the ABA Standing Committee on the Judiciary. 

And given this rating, I think it is important to put his nomination 

into context. 

Like the previous district court nominees from California considered during the Bush administration, Judge Benitez is the product 

of our State’s bipartisan Judicial Advisory Committee. The Committee consists of three members selected by Senator Boxer and 

myself and three members selected by the Bush administration. A 

nominee is only forwarded to the President if he or she garners the 

support of a majority of the committee. This process is designed to 

produce moderate, bipartisan nominees, and it is a model I hope 

the administration can more frequently emulate. 

The Committee unanimously recommended Magistrate Benitez to 

the President. Given this strong endorsement, I was surprised by 

the negative ABA rating, and because I had never voted for anyone 

with a negative ABA rating, I thought I ought to look into it. So 

I directed a representative on my committee, Mr. David Casey, who 

is the new president of the American Trial Lawyers Association, to 

reinvestigate Judge Benitez. Mr. Casey contacted dozens of lawyers 

and made more than 30 phone calls, came back to Washington to 

report to me, and he confirmed the committee’s commitment to its 

original recommendation in favor of Judge Benitez. 

I find this compelling and give it great weight. I am also impressed by the many testimonials in support, in favor of Judge 

Benitez. As I mentioned, the entire Federal bench of the Southern 

District has written to the Committee endorsing him. And, additionally, a number of community leaders, the mayor of El Centro, 

the Board of Supervisors, the chief public defender of the county, 

the president of the Imperial—I beg your pardon? Oh, the president of the Imperial County Bar Association. It said ‘‘president of 

Imperial County,’’ and I thought, you know, I know they can be difficult, but I didn’t know they had seceded. 

[Laughter.] 

Senator FEINSTEIN. The sheriff and coroner of Imperial County, 

and I just want to read a couple of excerpts of what his supporters 

say. They say he is a man of the highest ethical standard, that he 

has superb demeanor, intelligence, pragmatism, and fairness. And 

the chief public defender notes that he has good judicial temperament and is courteous to his employees and the attorneys who appear before him. 

735

I would like to note that he has served as a member of the 

DeAnza Rescue Unit for over 15 years. That is a volunteer search 

and rescue organization that operates in Imperial, San Diego, and 

Riverside counties. 

I am very eager to hear the American Bar Association’s testimony because, as we tried to go back over the accusations of temperament, ill-advised temperament and that kind of thing, it 

turned out that it all revolved around one incident, which involved 

the calendaring of a case on Christmas Eve. My staff got the case 

transcript, and the attorney in the case said, ‘‘My goodness, you 

know, this shouldn’t prevent his consideration as a judge.’’ 

So after more than 30 additional phone calls and talking to dozens of lawyers, Mr. Casey was not able to come up with anything 

that he felt should disqualify Judge Benitez. 

Chairman HATCH. Well, thank you, Senator. That is very good 

testimony. 

I happen to have a very high regard for David Casey and know 

how serious he takes appointments to the Federal bench. Plus he 

is a very good leader of the American Trial Lawyers Association, 

and I have a lot of respect for his integrity. And, Judge Benitez, 

Mr. Benitez, you come very highly recommended by others. 

I think what we are going to do is have you come to the table, 

and please stand and we will swear you in. Do you swear to tell 

the truth, the whole truth, and nothing but the truth, so help you 

God? 

Judge BENITEZ. I do. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Please take a seat. Let me just say a few 

words here myself. 

Senator Feinstein takes this job very seriously on the Judiciary 

Committee. She is one of our better members as far as I am concerned, and I am pleased with her recommendation here this morning. And I am pleased also to welcome to the Committee this morning Judge Roger Benitez, whom President Bush has nominated to 

fill a vacancy on the United States District Court for the Southern 

District of California. 

Judge Benitez comes before us today as a highly regarded Federal magistrate, with an impressive record of judicial service. Born 

in Havana, Cuba, Judge Benitez’s life embodies the spirit and the 

strength of this Nation. After coming to this country, he overcame 

numerous obstacles to put himself through college at San Diego 

State University and then obtained his law degree at Wester State 

University College of Law in 1978, and then has distinguished himself in a diverse and successful law practice in Imperial County, 

California. 

Judge Benitez, as I reviewed the impressive list of groups and individuals whom you have represented, I wonder if there is anyone 

in El Centro that you didn’t represent. You were appointed to the 

Imperial County Superior Court in 1997 and re-elected in 1998. I 

believe you have served with distinction until 2001, and since then 

you have served as a Federal magistrate judge in the Southern District of California. 

736

Now, I would note that the bipartisan Committee selected Judge 

benitez for his current position after a thorough review of his 

record and experience. Another bipartisan nominating commission 

found Judge Benitez to be highly qualified and recommended that 

he be appointed a district judge. 

Despite these accomplishments and endorsements, a majority of 

the American Bar Association Standing Committee on the Federal 

Judiciary returned a rating of ‘‘Not Qualified’’ for Judge Benitez. In 

such instances, it has been the practice of this Committee to invite 

representatives of the ABA to explain their basis for this rating. 

Later in this hearing, we will hear from Tom Hayward, who is 

Chair of the ABA Standing Committee, and Richard Macias, a 

former member of the Committee and circuit member who conducted the evaluation that led to Judge Benitez’s rating. And I welcome them on behalf of the Committee. 

Finally, we will also hear from Judge Benitez’s current supervisor, the Chief Judge of the Southern District of California, Judge 

Marilyn L. Huff. We welcome you, Judge Huff, to the Committee, 

and we understand you will attest to Judge Benitez’s fitness for the 

Federal bench, also his legal aptitude and experience, his integrity, 

and, most notably, his judicial temperament. It is my understanding that concerns pertaining to temperament served as the 

basis for the ABA’s rating, but I expect that Judge Huff’s testimony 

today should satisfactorily address any lingering questions about 

Judge Benitez’s temperament. I understand that Judge Huff is in 

the middle of a very important trial, and it is, I think, great testament to you, Judge Benitez, that despite her extremely busy schedule, she was eager to come to Washington on relatively short notice 

to testify on your behalf. 

I would note that Judge Huff’s testimony is endorsed by all 11 

active judges of the Southern District of California. Now, these are 

the people with whom Judge Benitez has worked closely for the 

past 3 years. They all support the nomination of Judge Benitez. 

They have put the weight of their admirable reputations behind 

Judge Benitez’s nomination. 

In addition to this testimony, the Committee has received written testimony and letters which strongly support Judge Benitez’s 

nomination. So without objection, I will submit all of these for the 

record. Since we will not hear from these witnesses in person, I 

would like to take a moment just to share some of their views on 

Judge Benitez. 

U.S. District Court Judge John Houston got to know Judge 

benitez both professionally and personally when they worked together as magistrates in the Southern District. Judge Houston 

writes that he has ‘‘observed his good character, integrity and temperament along with his dedication to public service to be 

invariant. In addition, Judge Benitez’s experience as a lawyer and 

State court trial judge will make him an invaluable member of our 

bench and a source of pride for the citizens in this district for many 

years to come.’’ 

Now, the presiding judge of the Superior Court of Imperial County, Raymond Cota, was extremely surprised to learn of the ABA’s 

rating. He was born and raised in Imperial County and has worked 

closely with Judge Benitez. He wrote that he has ‘‘never, in 25 

737

years as an attorney and judge in Imperial County, heard any unflattering remarks or criticism of Roger Benitez of any sort.’’ 

Randy J. Rutten, the president of the Imperial County Bar Association, submitted this testimony: ‘‘I am the current president of 

the Imperial County Bar Association. On August 6, 2003, the Board 

of Directors of the Imperial County Bar Association unanimously 

and enthusiastically voted to endorse and support the nomination 

of Roger T. Benitez as an Article III judge for the Southern District 

of California. Our decision was based on Judge Benitez’s reputation 

in the legal community as well as in the community in general.’’ 

Gary Wyatt, Chairman of the Board of Supervisors, the County 

of Imperial, offered this testimony regarding Judge Benitez: ‘‘In 

1997 he was appointed to the Superior Court by the then Governor 

of the State of California. Before he was appointed, he was vetted 

by the Judicial Nominations Evaluation Committee of the State of 

California. As part of that evaluation, confidential questionnaires 

were sent out to over 150 lawyers and judges asking for information concerning his legal ability, ethics, work ethics and temperament....During his tenure on the Superior Court, Judge Benitez 

proved himself to be a capable jurist who was valued and respected 

by the bar and his fellow judges. He had a reputation for being able 

to handle difficult legal tasks, exhibiting good judicial temperament 

and always being more than willing to assist his fellow judges, 

even if it meant asking other judges if he could help them with 

their calendars....Because of his excellent reputation in the legal 

community and the community in general, our board of supervisors 

has unanimously adopted a resolution...endorsing and recommending the confirmation of Hon. Roger T. Benitez to the position 

of district judge for the Southern District of California.’’ 

Eduardo A. Rivera, former Democratic mayor of the City of 

Calexico and an attorney, wrote: ‘‘Judge Benitez is fair, rational, 

intelligent, and just. I have been treated with respect in all of my 

private practice dealings with Judge Benitez before he assumed the 

bench and have been treated fairly and equitably in his courtroom. 

Judge Benitez is compassionate and fair. It is therefore with dismay that I find some attorneys who have deemed his courtroom demeanor and temperament as improper. At no time in the last 25 

years have I ever seen Judge Benitez exercise bad judgment or be 

discourteous with any person he has dealt with in either his capacity as a private attorney or as a State or Federal judge.’’ 

Neil Gerber, an attorney in the municipality of El Centro, stated, 

‘‘As a State court judge, and then as a Federal magistrate, Magistrate Benitez was always well prepared, engaging, and fair. His 

judicial temperament was excellent in all respects. He himself displayed the highest respect for the courts, and inspired the same 

feeling in those who entered his courtrooms. Both as a State court 

judge and as a Federal magistrate, Magistrate Benitez enjoyed the 

highest reputation for ability and integrity among the local bar.’’ 

Now, these and other statements of support indicate clearly that 

Judge Benitez has the legal experience, ability, aptitude, character, 

integrity and temperament to serve as a Federal district judge. So 

I am looking forward to hearing and reviewing the testimony today 

as we consider this nomination, and I will look forward to chatting 

with you, Judge Benitez, and then with our American Bar AssociaVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00749 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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tion, which, really, we owe a debt of gratitude to for the work that 

they do in general with regard to Federal judges. I have a lot of 

respect for the current Standing Committee, and it is upsetting to 

find that they did come up with this type of rating. But we will listen to them and give every respect to them that we can, but we 

are also going to listen to you, Judge Benitez, and go from there. 

Now, I also am pleased to announce that this hearing is the first 

of a pilot program to provide closed-captioning, and I am pleased 

Senator Leahy and I, with the Secretary of the Senate, were able 

to come to these arrangements. So we are very pleased to start 

closed-captioning, and you are the first one to be subjected to that. 

But that will be a good thing, I think. 

Well, let me ask you, Judge Benitez, do you have any opening 

statement you would care to make before we ask some questions? 

You might press that button. 

STATEMENT OF ROGER T. BENITEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge BENITEZ. Thank you, Mr. Chairman, Senator Feinstein, ladies and gentlemen, staff members, and ladies and gentlemen of 

the public. I don’t have an opening statement, but if I could, I 

would like to take a moment to introduce my family and some of 

my friends. 

Chairman HATCH. We would love you to do that. 

Judge BENITEZ. Thank you. 

I would like to commence with the chief judge our district, Chief 

Judge Marilyn Huff. 

Chairman HATCH. We are very honored you would take time to 

come and help us with this matter. 

Judge BENITEZ. My wife, Kitty Benitez; my mother, Elsa Hegan. 

Starting from the left, my son, Dr. Benitez; his close friend, Dr. 

Shannon Thyne; my daughter, Mary Benitez; and her close friend, 

Zack Friesland. 

Chairman HATCH. Well, we are delighted to have all of you here. 

We welcome you to the Committee, and we hope it will be a nice 

experience for you. We will have to see. 

Judge BENITEZ. Mr. Chairman, I thank you and I thank the 

Committee and I thank the President for giving me the opportunity 

to be here today. I will certainly answer any questions that you or 

Senator Feinstein may have, or any other Senator may have. 

Chairman HATCH. Well, thank you so much. 

Judge BENITEZ. Thank you. 

[The biographical information follows:]

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Chairman HATCH. Let me start off by saying that we have a vote, 

so we will see how far we can go for the next 7 or 8 minutes, and 

then Senator Feinstein and I—maybe you should go vote, and if 

you come back, you can ask questions until I get back. How will 

that be? 

Senator FEINSTEIN. I will not be able to come back. 

Chairman HATCH. Oh, you will not be able to come back? Well, 

then, why don’t I let you begin with your questions. If you can’t 

come back, I would rather give you this opportunity, if you would 

like. 

Senator FEINSTEIN. Thank you very much. I appreciate that. 

Critics, Judge, have asserted that you tried to punish a lawyer 

by scheduling a hearing on Christmas Eve. We read the transcript 

of the incident, which occurred on December 10, 2002. On that day 

you considered three requests for continuances. Two of the requests 

you scheduled for December 19th; the third you scheduled for December 24th. I did not detect any animosity or hostile exchanges 

from the transcript. The lawyer who had the hearing rescheduled 

for the 24th did not object to the proposed date and actually said 

that day would be fine. 

Can you describe the event for us in that it seems to circulate 

around about all of these sort of objections to you? Can you explain 

how you determined the date when a hearing slot is open on the 

court calendar? 

Judge BENITEZ. Thank you, Senator. Yes, I will do my best to be 

brief. 

We try to schedule our hearings so that we have—we do not have 

a cluttered calendar 1 day and a light calendar another day. It is 

the practice in our court, because of the volume that we handle, to 

have the attorneys as they come into the courtroom to come to our 

courtroom deputy, who is my assistant, and to discuss with the 

courtroom deputy what dates, if any, they are going to continue 

any matters to. 

Unfortunately, on that particular date, my normal or usual 

courtroom deputy was out. It was her first week of maternity leave, 

and we had a courtroom deputy who was filling in from San Diego. 

We do things a little differently in El Centro because, again, of 

the geographic location and because of the volume that we have. 

She talked to the attorney that was making the special appearance, 

and she noted on my calendar, which is customary for them to do, 

the dates that the matters would be continued to. Two of those 

matters were scheduled for December 19th and one was scheduled 

for December 24th. 

As I call the matters, I always ask the attorneys whether or not 

that is a date that is agreeable with them, and, of course, I then 

confirm it with the client. I did that in that case. On all three occasions, the attorney that was appearing specially indicated that, yes, 

the date that I had chosen was okay. 

Subsequently—and I can imagine and understand why—the attorney who was supposed to specially appear discovered or learned, 

because we normally call them to advise them of the new dates, 

that we had scheduled him to come out to El Centro on two different dates, and it did not make sense for us to do that. And, 

frankly, I wished I would have caught it when I was on the bench 

759

but I didn’t. And so what we did was that very next day, once we 

discovered the mistake, I issued a minute order rescheduling the 

matter that had been scheduled for the 24th to the 19th so that 

that lawyer would only have to make one trip to El Centro. 

Senator FEINSTEIN. The argument against— 

Chairman HATCH. Senator, I think I will run over and vote. 

Senator FEINSTEIN. All right. 

Chairman HATCH. You have about 10 more minutes before you 

need to leave, and then I will try and hurry back so that we will 

not detain this hearing longer than it should be. 

Senator FEINSTEIN. Fine. 

Judge BENITEZ. Thank you, Mr. Chairman. 

Chairman HATCH. So I will just leave you. 

Senator FEINSTEIN. Thank you. 

The argument circulating around your candidacy or your nomination seems to be one of temperament. Do you have a sense of from 

whence that cometh? And how do you look at your temperament 

as a magistrate judge as it would be as a full Federal judge? 

Judge BENITEZ. Thank you, Senator, for asking that question. We 

have a high-volume court that we operate in El Centro. Consequently, sometimes we don’t have the liberty to perhaps be as relaxed or as—I don’t want to say ‘‘friendly,’’ but as accommodating 

as we might be if we had a lighter calendar. It’s important that we 

keep our calendar moving. And, consequently, although I certainly 

strive to be fair and I strive to be courteous, but we have to move 

our cases along. And so what we do is we have a system which is 

what allows us to keep the cases moving. 

And so perhaps sometimes because of the fact that we are trying 

to work with the numbers that we work with and may be perceived 

by attorneys—perhaps those who don’t know me, they may perceive 

the fact that I’m trying to move the calendar along as a sign of bad 

temper. 

Another thing that’s very important in our area, Senator, is this: 

An awful lot of the people that appear before us are not familiar 

with the system. And an awful lot of them have a belief, not wellfounded but they have a belief that perhaps the prosecutors, the 

defense lawyers, and the judges are all part of the same team. And 

so, therefore, I think it is important for them to understand that 

I’m not part of the team and that I have to maintain a certain distance. And the courtroom is not the place for me to engage in 

familiarities. Although I have made it a practice to welcome lawyers when they come to El Centro and I make it a practice to wish 

them a good trip home, generally we try to stick to the business 

at hand. It is serious business. I take it seriously. And I generally 

ask for people that appear in my courtroom to do likewise. 

Senator FEINSTEIN. I would like to ask you a question about 

choice and the right to privacy, and this has to do with the 1973 

Supreme Court decision Roe v. Wade. At that time the Court held 

that the Constitution’s right to privacy did encompass a woman’s 

right to choose. It established a trimester system of when the 

woman would have the absolute right, first trimester, when the 

State could enter the picture, et cetera. 

Do you believe that the Constitution encompasses a right to privacy? 

760

Judge BENITEZ. Well, thank you, Senator. Let me add that if I’m 

fortunate enough to be confirmed, my job as a district judge is to 

follow precedent, to take a look at what the law is and to apply the 

law to the facts of the case before me and to make a decision based 

on the law and based on the facts. 

I believe that the right to privacy is well established in our jurisprudence. It has been considered by the Supreme Court on several 

occasions, and certainly if I am confirmed, I will more than follow 

the precedent that has been set. 

Senator FEINSTEIN. Then do you believe that that right to privacy exists or encompasses the right of individuals then to make 

that decision as laid out by Roe v. Wade? 

Judge BENITEZ. I believe that Roe v. Wade is, in fact, the law of 

the land, and I will definitely follow Roe v. Wade. 

Senator FEINSTEIN. Thank you. 

Here is another one. In a September 2001 case, U.S. v. AlvarezTexta, you issued an order for the defense attorney to show cause 

why he shouldn’t be held in contempt of the court after he failed 

to appear for two criminal court cases. Can you tell us why you believe this order was necessary? And can you describe your views on 

using the court’s contempt powers? Should they be used often or 

sparingly? 

Judge BENITEZ. Thank you, Senator. I am glad you asked that 

question because in six and a half years on the bench, I have never 

held a lawyer in contempt. I have threatened to hold a lawyer in 

contempt once, and that was the case. 

What happened in that case, Senator, was that at the initial preliminary hearing, the lawyer who had been appointed to the case 

was not able to attend. We did not know why, but he was not able 

to attend. He asked a second lawyer to appear on his behalf. It was 

going to be a relatively routine matter, but what happened was 

that when I asked the defendant whether he would agree to the 

continuance, he contradicted the lawyer that had been sent to appear for the first attorney. And he said that, no, he did not want 

his preliminary hearing continued. 

And, Senator, as you know, the preliminary hearing, the right to 

a preliminary hearing is the right of the defendant and not of the 

attorney. And so at that point in time, I was faced with a situation 

where I had a lawyer who was saying that he wanted to continue 

the preliminary hearing, but the client did not. 

Over his objection, I went ahead and continued it anyway because the Government was not ready to proceed and, frankly, neither was the court because we had not allotted time for an evidentiary hearing. 

At the second hearing, when I continued the case, a different 

lawyer, that is, a third lawyer showed up for that hearing. Again, 

that lawyer was not prepared to go forward with the preliminary 

hearing. 

Now, Senator, very important and valuable rights are at stake. 

A defendant is in custody. Time is marching on, and that defendant 

has a right to have a preliminary hearing. In addition, in the 

Southern District it is customary for a disposition, if it going to be 

agreed upon, to be agreed upon prior to an indictment being issued. 

761

Generally once an indictment is issued, the disposition is going to 

change considerably. 

I felt that it was important that this defendant have the attorney 

that had been appointed to represent him to be there. So what I 

did is I indicated that I would issue an order to show cause for the 

attorney to be there the next day or show cause why he should not 

be held in contempt. 

Now, Senator, subsequent to that, I received a phone call from 

the attorney. The attorney gave me a perfectly valid explanation 

why he could not be there. He apologized for not being able to be 

there. He told me that the problem was going to be resolved in a 

particular way. In fact, we did have that hearing the third time. 

That would be the third hearing in the case. A fourth lawyer 

showed up specially appearing for the attorney that had originally 

been appointed. We did, in fact, resolve the problem. The case was 

dismissed and refiled. 

And, Senator, perhaps as a footnote, I should state that when I 

appointed a lawyer to the new case that was filed, I reappointed 

that same lawyer that I had previously ordered to show cause. 

So as I said, in six and a half years, I have never held a lawyer 

in contempt, and this is the only time that I can recall ever threatening to hold a lawyer in contempt. 

Senator FEINSTEIN. Thank you. I think that sets the record 

straight. 

Do you have any sense of why the Bar Association came up with 

the finding they did? 

Judge BENITEZ. Senator, I know that the American Bar Association has a difficult task at hand, and I know that they do investigations and they come up with their conclusions. And I’m really not 

in a position to speculate or to second-guess. 

Perhaps it may be that some of the attorneys that were contacted 

were not attorneys that regularly appear in my court. Maybe they 

don’t really know me as well. It may be a geographic factor. I really 

don’t know, Senator. It would be sheer speculation on my part. 

Senator FEINSTEIN. Well, that really—well, let me ask one other 

question, because with a district court it is always a question of 

dockets and handling dockets. And you have handled so many preliminary hearings at one time, nearly 1,500 in a short period of 

time. How do you do that? And would you continue that same process as a district court judge? 

Judge BENITEZ. Well, Senator, thank you for asking that question. We have established in El Centro what I think is a fairly efficient, cooperative effort on the part of everyone—the attorneys, the 

agencies that we work with, and the court staff, of course. And that 

allows us to be able to move through cases pretty quickly while yet 

allowing time for the parties to express their issues and to fully 

brief them and argue them if they feel like it’s something that they 

need to do. But it is more of a system that we have set up, again, 

partly because of the unique geographic location that we have and 

partly because of the number of cases that we have and the nature 

of the cases that we have. 

I think that in the past when I was on the Superior Court bench, 

I think, I hope, that I had a reputation for being able to manage 

my calendar efficiently and quickly. And as was pointed out, it was 

762

not unusual for me when I was on the Superior Court bench, if I 

finished my calendar, to ask another judge if perhaps I could help 

him or her with the calendar. 

Senator FEINSTEIN. Thank you very much. 

I have just received a note that there is about 60 seconds left on 

the vote, so I am going to enter into the record a statement by the 

ranking member, Senator Leahy, and recess the Committee for a 

short time. And Senator Hatch, the Chairman, will be back very 

shortly. 

Judge BENITEZ. Thank you, Senator. 

Senator FEINSTEIN. Thank you very much. 

[Recess 10:45 to 10:56 a.m.] 

Chairman HATCH. Well, if we can resume the hearing. 

Judge Benitez, before I begin with my questions for you, I would 

like to make a note of sentiment. I expressed during a hearing on 

Judge Alexander Williams—he was a Clinton district court nominee who received a rating of ‘‘Not Qualified’’ from a substantial majority of the ABA Standing Committee and who we nevertheless 

confirmed as a district court judge for the District of Maryland. 

Now, during the hearing I told Judge Williams, ‘‘I am aware of 

the letter from the ABA, and I just want to assure you that I do 

not treat the ABA’s findings on nominees as the last word, although I have to say that I think they are trying to do the best 

job they can.’’ 

Now, I feel the same way today as I did back in 1994. And Judge 

Williams has proven to be an adequate and good judge, even 

though there was some strong feeling that maybe he would not be. 

In your case, I do have strong disagreements, at least from what 

I know today, with the ABA’s vote based on my review of your 

record. 

Now, is it correct that you were selected by a bipartisan Committee to serve as U.S. magistrate judge? This is a position which 

you have held since the year 2001. 

Judge BENITEZ. That is true, Senator. Before I was selected, I 

was screened by a bipartisan selection merit Committee that is established pursuant to Federal law. 

Chairman HATCH. Is it also correct that you were found highly 

qualified by a bipartisan nominating Committee and unanimously 

recommended by that commission to be appointed to the U.S. District Court for the Southern District of California? 

Judge BENITEZ. Thank you, Senator. I believe that is true. 

Chairman HATCH. Do you have any thoughts of whether or not 

either of these two commissions could have found you not qualified 

and still nominated you to these prestigious positions? 

Judge BENITEZ. Senator, that would probably call for some speculation on my part, but I would think probably not. 

Chairman HATCH. Okay. Now, your home town paper, the Imperial Valley Press, said this about your nomination: ‘‘It would be 

hard for even the ABA to dispute that Benitez has a fine legal career. He flourished in private practice in El Centro, was appointed 

to an Imperial County Superior Court judgeship where he did well, 

and in recent years excelled as a Federal magistrate in Imperial 

County, handling a tremendous workload. To us and many, many 

others, Benitez seems more than qualified for a Federal judgeship.’’ 

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Now, from what I see I agree with that assessment, Judge 

Benitez. You overcame significant obstacles to work your way 

through school, establishing a thriving legal practice, and you have 

significant experience in the judiciary. Would you please tell the 

Committee how your background has prepared you to be a Federal 

trial judge? 

Judge BENITEZ. Thank you, Senator. I started out as a private 

practitioner. I practiced law in a broad spectrum of cases. I practiced law in numerous counties, several States over the years, and 

I have experienced an awful lot of proceedings and cases and sat 

before many, many, many judges. And I have had an opportunity 

to observe them and how they work. 

I was appointed to the Superior Court bench in 1997. There I 

presided over a significant State calendar, including assisting in 

setting up a domestic violence calendar for Imperial County. I tried 

several major felonies. I presided over what we used to call the jail 

court, which was a really hectic calendar where we handled preliminary hearings, pleas, probation violations, and we did it all in 

1 day. 

As I said, I tried several major felonies, and I’m pleased to say, 

Senator, that none of the cases that I ever tried were ever reversed, 

nor was there a writ of habeas corpus granted on any of those 

cases. 

Subsequently, I was appointed to be the magistrate judge. Again, 

I have seen the Federal court system from I guess what you would 

say the inception of the case. I’ve seen how the cases move along 

the system. 

Personally, Senator, as you know, I was born in Cuba. I came to 

the United States in 1961. When I arrived in the United States, 

I could not speak English. I worked my way through school, and 

I believe that as an immigrant, someone who came to this country, 

I have a certain degree of empathy for people who have had similar 

backgrounds. 

I think all of that assists me in being able to reach what I hope 

are good judgments about people and good judgments about cases 

and to determine what the law is and to determine what the issues 

are and to be able to sort through all of that in order to come up 

with a fair and just decision. 

Chairman HATCH. Well, you have been active in community and 

civic affairs throughout your career. Would you care to highlight 

some of your contributions in the area of assisting disadvantaged 

youth, for instance? 

Judge BENITEZ. Well, thank you, Senator. I have been very active 

in the community. I have long been a believer that you have to give 

back more than you have taken. And so I started out—shortly after 

getting out of law school, I became very involved in youth soccer 

associations. I put together a traveling team. I put together kids 

who tried out for the Olympic development program. Many, if not 

most, of those kids were disadvantaged kids, mostly Hispanic kids. 

I was very involved in youth swimming over the years. I was 

president of the swim club. Again, many of the kids in that program were disadvantaged kids. 

I was very much involved in the high school mock trial program 

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volved in that program, in fact, I just finished a weekend of involvement in that program just last weekend. Again, many of those 

kids are kids that come from disadvantaged homes. They get quite 

an exposure to the legal system, to how our justice system works, 

and I think it’s a terrific opportunity for them to learn about our 

system. 

Not necessarily involved with youth, but I was appointed to the 

Planning Commission of our city and sat as the Chairman of that 

Planning Commission for one term, served on the commission for 

two terms. I was appointed by the board of supervisors of the county to serve on the board of directors of the Private Industry Council, which is an organization that administers and oversees funding 

under the Job Training Partnership Act, which is an act enacted 

by the Congress of the United States. 

I was a member of the Bioethics Committee of the local community hospital and served in that position for many, many years, and 

as was stated earlier, I was a member of the DeAnza Search and 

Rescue Unit, which is a volunteer organization that essentially 

calls upon us to spend numerous hours, whether it be hot or cold 

outside, searching for and rescuing people that are distressed in 

Imperial County, Riverside, and in Mexico. 

Chairman HATCH. Well, thank you. You know, there have been 

some criticisms of your temperament. Do you have any comments 

about that? 

Judge BENITEZ. Well, Senator, I—I try, I try my best to be the 

best person that I can be, and sometimes that may not be good 

enough. And there are people who may misinterpret or misconstrue 

something that I say or something that I do. But I assure you, I 

have always been a believer in the Golden Rule. I believe that people are entitled to be treated the way you would want to be treated. 

And I have adhered to that rule. Being face to face with people that 

have been charged with the most horrible crimes—murder, rape, 

child molestation—notwithstanding their position or their situation 

in life, I believe that it is important that people be treated with respect and with dignity. And I hope to be able to do that if I’m fortunate enough to be confirmed. 

Chairman HATCH. Well, you know, some people worry because, 

having tried a lot of cases in Federal court myself, I spent a lot of 

time there myself, the closest thing to godhood in this life is a Federal district court judge, as you know. And some really believe it. 

And Utah has had a very checkered reputation from time to time 

with Willis Ritter and a few others who have been pretty tough 

when it comes to temperament, although I always got along well 

with him. But to make a long story short, Judge Benitez, I believe 

that the Committee is going to confirm you and send you to the 

floor and confirm you on the floor. But I suggest to you that should 

that happen, it is very, very important not to try the attorneys’ 

cases for them, to help younger lawyers if they are having difficulty 

with evidentiary rules or other problems in the courthouse, and to 

basically have a good judicial temperament so that people who try 

these very difficult cases at least do not have to contend with an 

officious judge. And all I can say is, from what I know about you, 

you should be able to do that going away. 

765

So we are grateful to have you here, and with that, it has been 

a pretty easy set of questions for you. I don’t know what Senator 

Feinstein asked you, but I think she feels along the same lines as 

I do. So we will just let you take your seat, and then we will turn 

to the ABA and hear what they have to say. 

Judge BENITEZ. Thank you, Mr. Chairman. 

Chairman HATCH. Now, if at any time you feel that you would 

like to respond to the ABA, I would be happy to recall you as a 

witness. Is that okay? 

Judge BENITEZ. That’s fine. Thank you, Mr. Chairman. 

Chairman HATCH. Okay. Thank you. 

Chairman HATCH. Let me call the ABA, Tom Hayward, who is 

the Chair of the ABA Standing Committee on the Federal Judiciary, and Richard Macias, who is the ABA Standing Committee circuit investigator. So we are happy and honored to have both of you 

here. 

If you will, we will turn to you, Mr. Hayward, and then we will 

turn to you, Mr. Macias, and go from there. 

STATEMENTS OF THOMAS Z. HAYWARD, JR., CHAIR, AMERICAN 

BAR ASSOCIATION STANDING COMMITTEE ON FEDERAL JUDICIARY, AND RICHARD M. MACIAS, CIRCUIT INVESTIGATOR 

Mr. HAYWARD. Thank you, Mr. Chairman and members of the 

Committee. My name is Thomas Z. Hayward, Jr. I am a practicing 

lawyer in Chicago, and I am the Chair of the American Bar Association’s Standing Committee on the Federal Judiciary. With me 

today is Richard M. Macias, a former member of our committee, 

and circuit member for this investigation. We appear here to 

present the views of the association on the nomination of Roger T. 

Benitez to be a United States District Court Judge for the Southern District of California. After careful investigation and consideration of his professional qualifications, a substantial majority of our 

Committee is of the opinion that the nominee is ‘‘Not Qualified’’ for 

the appointment. A minority found him to be ‘‘Qualified.’’ 

Before discussing the specifics of this case, I would like to review 

briefly the committee’s procedures so that you have a clear understanding of the process the Committee followed in this investigation. A more detailed description of the committee’s procedures is 

contained in the committee’s booklet entitled ‘‘Standing Committee 

on Federal Judiciary: What It is and How It Works.’’ 

The ABA Standing Committee investigates and considers only 

the professional qualifications of a nominee—his or her competence, integrity, and judicial temperament. Ideology or political 

considerations are not taken into account. Our processes and procedures are carefully structured to produce a fair, thorough, and objective peer evaluation of each nominee. A number of factors are investigated, including intellectual capacity, judgment, writing and 

analytical ability, industry, knowledge of the law, breadth of professional experience, character, integrity, compassion, courtesy, 

open-mindedness, patience, freedom from bias, commitment to 

equal justice under the law, and general reputation in the legal 

community. 

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though it may be conducted by another member or former member. 

In the current case, Mr. Macias, in his capacity as a former member for the Ninth Circuit, was asked to undertake this investigation 

because the current Committee member from the Ninth Circuit 

was already undertaking another investigation. 

The investigator starts his investigation by reviewing the candidate’s responses to the public portion of the Senate Judiciary 

Committee questionnaire. These responses provide the opportunity 

for the nominee to set forth his or her qualification, such as professional experience, significant cases handled, and major writings. 

The circuit member makes extensive use of this questionnaire during the course of the investigation. In addition, the circuit member 

examines the legal writings of the nominee and personally conducts 

extensive confidential interviews with those likely to have information regarding the integrity, professional competence, and judicial 

temperament of the nominee, including, where pertinent, Federal 

and State judges, practicing lawyers in both private and Government service, legal services and public interest lawyers, representatives of professional legal organizations, and others who are in a 

position to evaluate the nominee’s professional qualifications. This 

process provides a unique ‘‘peer review’’ aspect to our investigation. 

Interviews are conducted under an assurance of confidentiality. 

If information adverse to the nominee is uncovered, the circuit 

member will advise the nominee of such information if he or she 

can do without breaching the promise of confidentiality. During the 

personal interview with the nominee, the nominee is given a full 

opportunity to rebut the adverse information and provide any additional information bearing on it. If the nominee does not have the 

opportunity to rebut certain adverse information because it cannot 

be disclosed without breaching the confidentiality, the investigator 

will not use that information in writing the formal report and the 

committee, therefore, will not consider those facts in its evaluation. 

Sometimes a clear pattern emerges during the interviews, and 

the investigation can be briskly concluded. In other cases, conflicting evaluations over some aspect of the nominee’s professional 

qualifications may arise. In those instances, the circuit member 

takes whatever additional steps are necessary to reach a fair and 

accurate assessment of the nominee. 

Upon completion of the investigation, the circuit member submits 

an informal report on the nominee to the Chair, who reviews it for 

thoroughness. Once the Chair determines that the investigation is 

thorough and complete, the circuit member then prepares the formal investigative report, containing a description of the candidate’s 

background, summaries of all interviews conducted—including the 

interview with the nominee—and an evaluation of the candidate’s 

professional qualifications. This formal report, together with the 

public portions of the nominee’s completed Senate Judiciary Committee questionnaire and copies of any other relevant materials, is 

circulated to the entire 15-person committee. After carefully considering the formal report and its attachments, each member submits 

his or her vote to the Chair, rating the nominee ‘‘Well Qualified,’’ 

‘‘Qualified,’’ or ‘‘Not Qualified.’’ 

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mittee seeks information on a confidential basis and assures its 

sources that their identities and the information they provide will 

not be revealed outside of the committee, unless they consent to 

disclosure or the information is so well known to the community 

that it has been repeated to the Committee members by multiple 

sources. It is the committee’s experience that only by assuring and 

maintaining such confidentiality can sources be persuaded to provide full and candid information. However, we are also alert to the 

potential for abuse of confidentiality. The substance of adverse information is shared with the nominee, who is given full opportunity 

to explain the matter and to provide any additional information 

bearing on it. If the information cannot be shared with the nominee, the information is not included in the formal report and, I repeat, is not considered by the Committee in reaching its evaluation. 

Now, turning to the investigation of Judge Benitez, Magistrate 

Judge Benitez was nominated on May 1, 2003. Carol Dinkins of 

Houston, Texas, who was then Chair of the Standing Committee, 

assigned Mr. Macias to the investigation, as I previously explained. 

He began his investigation shortly after receiving the nominee’s 

May 21, 2003, responses to the public portion of the Senate Judiciary Committee questionnaire. The investigation took longer to complete than most investigations because negative information about 

the nominee’s professional qualifications was uncovered. 

On July 22, 2003, Mr. Macias submitted to Chair Dinkins an informal report of the results of his investigation, including summaries of all of his confidential interviews and a description of his 

interview with the nominee. Because the report contained information adverse to the nominee, Chair Dinkins asked Mr. Macias to 

conduct additional interviews with both lawyers and judges to assure that the concerns expressed in the report were reflective of the 

views of a very broad spectrum of individuals who had knowledge 

of the professional qualifications of the nominee. On October 10, 

2003, Mr. Macias’ formal report was transmitted to all members of 

the committee. Those who had questions were encouraged to contact Mr. Macias directly. After all of the Committee members had 

an opportunity to study the report and all the attachments, each 

member reported his or her vote regarding the rating of the nominee to the Chair. A substantial majority of the Committee found 

the nominee ‘‘Not Qualified’’ and a minority found him ‘‘Qualified.’’ 

This vote was reported to you, Mr. Chairman, on October 21, 2003. 

I would now ask my colleague, Mr. Macias, to describe the investigation of the nominee. 

Mr. MACIAS. Mr. Chairman, my name is Richard M. Macias. I am 

an attorney from California and, as Mr. Hayward indicated, I am 

a former member of the committee. I served a full term on the 

Committee starting in 1994 and have provided frequent assistance 

on an as-needed basis since then. I have personally conducted approximately 60 investigations for the Committee and have reviewed 

many more reports prepared by other Committee members. 

In 2003, I was asked to undertake the investigation of the qualifications of Roger T. Benitez to serve as a United States district 

judge. My investigation was conducted in the same manner all investigations by the Standing Committee are conducted, as Thomas 

Hayward just explained. 

768

My investigation took place during the summer of 2003. In addition to carefully reviewing pertinent materials, such as the nominee’s responses to the questionnaire, his legal writings, and other 

documents that he sent me to review, my investigation of the professional qualifications of Judge Benitez included approximately 67 

confidential interviews with members of his legal community, including 23 judges and 44 lawyers. During each conversation, I 

asked how the person knew the nominee and what the person 

knew about the nominee’s professional competence, judicial temperament, and integrity that would bear on his competence to a be 

a United States district judge. I interviewed almost all—if not all—

of the district court judges and magistrate judges of the Southern 

District of California and the Imperial County Superior Court 

judges. I also made a particular effort to locate and speak with attorneys who had made court appearances before the nominee. 

I also met privately with the nominee in his office in El Centro 

on two separate occasions. During our meetings, each of the many 

concerns over Judge Benitez’s qualifications that had been raised 

during my investigation was discussed, and the nominee was given 

a full opportunity to respond to and rebut the adverse information 

and to provide any other additional data, information, or materials 

that he wished me to consider. Because I received more negative 

comments concerning this nominee than I had ever received about 

any other person I have investigated, I met with Judge Benitez 

twice and spent considerably longer conferring with him than what 

is normally required. 

A substantial number of the judges and lawyers I interviewed 

raised significant concerns about Judge Benitez’s judicial temperament and his courtroom demeanor. Many of the interviewees were 

initially reluctant to discuss the nominee until I assured them that 

everything they told me would be held in the strictest confidence. 

Over the past 10 years, I have conducted many investigations for 

the Southern District of California and, fortunately, I have established a reputation as someone who keeps his word and can be 

trusted to keep matters confidential when asked to do so. 

The lawyers with whom I spoke were civil and criminal practitioners, both prosecutors and defense lawyers, from San Diego and 

Imperial County, where Judge Benitez practiced law from 1979 to 

1997, sat as an Imperial County Superior Court judge from 1997 

to 2001, and has served as a Federal magistrate judge for the 

Southern District of California from 2001 to the present. 

Over and over I received negative comments regarding Judge 

Benitez’s judicial temperament. Interviewees repeatedly told me 

that Judge Benitez displays inappropriate judicial temperament 

with lawyers, litigants, and judicial colleagues, that all too frequently, while on the bench, Judge Benitez is arrogant, pompous, 

condescending, impatient, short-tempered, rude, insulting, bullying, 

unnecessarily mean, and altogether lacking in people skills. 

Interestingly, a significant number of judges and lawyers with 

whom I spoke specifically reported that Judge Benitez would often 

become irrationally upset and outraged if an attorney who had 

been appointed to represent a defendant had a scheduling conflict 

and asked another equally competent and prepared attorney to appear before the nominee on behalf of the defendant. Scheduling 

769

conflicts are a fact of life for litigators; they are a common, everyday occurrence. The people who specifically mentioned this behavior as one example of the nominee’s injudicious temperament assured me that almost no other magistrate judge in California or 

Arizona would be the least bit perturbed under similar circumstances. 

A number of people with whom I spoke expressed grave doubts 

over Judge Benitez’s ability to competently handle the more demanding docket caseload of a Federal district judge and efficiently 

manage a district courtroom, based on their perception of his very 

slow and rigid manner of handling his current court calendar in El 

Centro. 

Based on their exposure to the nominee’s mode of relating professionally to others in his official capacity as a judge, interviewees 

expressed doubt over Judge Benitez’s ability to become an accommodating and collegial member of the Federal district court. 

Many of the interviewees further expressed the sentiment that 

the nominee’s temperament problems are compounded by the fact 

that Judge Benitez fails to appreciate the depth of concern by the 

bench and bar regarding his temperament and has not demonstrated that he is willing or able to address these concerns. 

I discussed each of the negative comments I received with Judge 

Benitez when I interviewed him in person. His response was to 

consistently deny the accuracy of what I had been told. He was unable to explain why so many people would make incorrect, negative 

comments about him. Frankly, in light of the substantial number 

of negative comments brought to Judge Benitez’s attention, we 

would have hoped he might have responded that he had not fully 

appreciated how he was perceived by others and that he would 

strive to markedly improve his temperament and demeanor. No 

such conciliatory comments were forthcoming from the nominee. 

Our Committee members, after reviewing my report on the nominee, were particularly concerned about the clear, consistent pattern 

to the criticisms that emerged from the interviews. A substantial 

number of Judge Benitez’s professional peers that I interviewed 

complained about his lack of interpersonal skills and were deeply 

concerned that he lacked the judicial temperament essential for a 

district court judge. My colleagues on the Committee were not dissuaded over the seriousness of these allegations by the fact that I 

reported that I interviewed some lawyers who told me that they 

had not encountered any problems when they had appeared before 

Judge Benitez. 

After careful consideration of my report, a substantial majority 

of the Committee was of the view that Judge Benitez is ‘‘Not Qualified’’ for a life-tenured appointment to the district court. A minority 

of the Committee found him to be ‘‘Qualified.’’ 

Our Committee takes most seriously its responsibility to conduct 

an independent peer evaluation of the professional qualifications of 

judicial nominees. There is no simple formula that we can apply to 

determine if a nominee is ‘‘Well Qualified,’’ ‘‘Qualified,’’ or ‘‘Not 

Qualified.’’ Our recommendation is not the result of tallying the 

positive and negative comments we receive about a particular 

nominee or giving an assigned weight to other factors that bear 

upon professional competence. Rather, in making our evaluation, 

770

we draw upon our own professional experience, the cumulative experience of the Standing Committee as a whole, the information 

and knowledge we gain about the nominee during the course of the 

investigation, and our independent judgment. We do our utmost to 

impartially apply the same standards and criteria to every nominee, and we take our job very seriously, especially when, like today, 

we have negative information to report about the professional 

qualifications of a nominee for a lifetime appointment to the Federal bench. 

Thank you for the opportunity to appear before you today. Tom 

Hayward and I stand ready to respond to any questions you might 

have. 

Chairman HATCH. Well, thank you so much. I appreciate the 

hard work that the Standing Committee does and that the investigators do. It is a lot of work, it is a lot of effort, and we appreciate 

the work that you put in. 

We have to weigh these things and balance them, and like I say, 

we have a lot of letters, a lot of information from people who know 

the judge very well who think he is terrific for this position. So it 

is no reflection on the ABA if we decide to ignore your recommendations. And it is no reflection sometimes on the nominee 

if we decide to accept your recommendations. So it is a tough decision sometimes, 

Mr. Hayward, I particularly appreciate you and the work that 

you do. I know it is a lot of work. I know it takes a lot of time. 

Sometimes there is not much thanks for doing what you do, and 

many times you are a political football kicked around by this Committee. We know that has been the case in the past, and we hope 

that somehow or other I think we have come a long way from those 

days when there really was, in my opinion, some politics on the 

Committee. 

Mr. HAYWARD. Thank you, Mr. Chairman, and I agree with that 

observation. 

Chairman HATCH. And I think you have done an excellent job, 

and I appreciate your presence today to answer questions from the 

Committee regarding the ABA’s evaluation of Judge Benitez’s nomination. But let me just ask some basic questions so we all understand this a little bit better regarding procedures followed by the 

Standing Committee. 

Now, it is my understanding that one investigator is initially assigned to a particular nomination. 

Mr. HAYWARD. Yes. 

Chairman HATCH. However, there may be cases where a second 

investigator joins the case. For example, a second investigator may 

be appointed where it appears at any time during the evaluation 

process that the nominee may receive a ‘‘Not Qualified’’ rating. I 

think that is correct. 

Mr. HAYWARD. Yes. 

Chairman HATCH. What was the thinking regarding a second investigator in this case? 

Mr. HAYWARD. My judgment as Chair when I received the first 

informal report and we asked Mr. Macias to do additional investigation, that if it had been a close call, Mr. Chairman, in terms 

of review of the report, I most certainly—and always do, as my 

771

predecessors have—appoint a second investigator. In this case, the 

finding as recommended to your Committee, sir, was a substantial 

majority found the nominee not qualified. It was on that basis that 

we asked, after Mr. Macias had gone back a second time, done additional interviews, talked with the nominee, that I reviewed his 

report, made the judgment that the trend in the report was so 

strong in terms of our finding that a second investigator would not 

change that report and, accordingly, authorized the formal report 

to go forward to our Committee and for the Committee to make its 

recommendation on the basis of that report. 

Chairman HATCH. In the case of Judge Benitez, that was a split 

report, as you say. You say a substantial majority of the committee. 

Mr. HAYWARD. Right. 

Chairman HATCH. Is there a way of quantifying that? 

Mr. HAYWARD. Yes, sir. As you know, including myself, there are 

15 persons on the committee. A substantial majority is more than 

10, and in this particular case, the Chair does not vote unless there 

is a tie. I did not vote, so 14 members of the Committee voted and 

10 or more found the nominee not qualified. 

Chairman HATCH. Now, it is clear that Judge Benitez enjoys 

widespread support from his colleagues and peers from what has 

come to us. 

Mr. HAYWARD. Right. 

Chairman HATCH. And as you know, in 1997 he was appointed 

to the Superior Court of Imperial County by the then Governor of 

the State of California. 

Now, prior to his nomination, he was vetted by the Judicial Nomination Evaluation Committee of the State of California, and as 

part of that evaluation, confidential questionnaires were sent out 

to 150 lawyers and judges asking for information concerning his 

legal ability, ethics, and temperament. Now, that Committee found 

him to be qualified to be a judge, and in his present nomination, 

Judge Benitez was also found to be highly qualified by a bipartisan 

nominating commission tasked with selecting exemplary candidates 

for service on the Federal bench. 

Now, that Committee unanimously recommended Judge Benitez 

for this position, and 3 years previous to that recommendation, he 

was selected by another bipartisan commission to serve as a magistrate judge after a thorough review of his record and experience. 

Now, Judge Benitez’s nomination is unanimously supported by 

the board of directors of the Imperial County Bar Association. He 

has the support of all 12 active judges of the Southern District of 

California and the support of the presiding judge of Imperial County, Mr. Raymond Cota, Judge Raymond Cota. And they all agree 

he is qualified. The only evidence we have that he is not qualified 

are the anonymous comments of his detractors as reported by your 

Committee without specifics. 

Now, I think naturally a question that needs to be asked is: Do 

you have any real explanation why the ABA rating is so inconsistent with other commission findings and the endorsements in 

favor of Judge Benitez? 

Mr. HAYWARD. I think my answer, Mr. Chair, in all due respect 

to the individuals who have sent those recommendations to the 

Committee directly or those findings, is that the job that the AmerVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00783 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
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ican Bar Association’s Standing Committee undertakes on behalf of 

this Committee is to provide this Committee with a peer review. 

The peer review consists of three legs: temperament, professional 

competence, and temperament—integrity, temperament, and professional competence. 

We had no problem in evaluating this nominee with respect to 

two of those criteria—integrity and professional competence. We 

provide this Committee with our independent review. Remember, 

except for the investigator, all of the members of our Committee 

are distinguished practicing lawyers from around the country representing each of the circuits who have read hundreds of evaluations, undertaken hundreds of evaluations, that we provide this 

Committee and you, Mr. Chairman, with our best judgment, our 

best call. And you are right, Mr. Chairman, there are many other 

considerations that go into your nomination and confirmation of a 

nominee. 

What we try to do as a Committee advising the Senate Judiciary 

Committee is make the call as I have described in my testimony, 

as Mr. Macias has described in his testimony, and, unfortunately, 

in this particular case, it does not comport with the many recommendations that you have from distinguished Chief Judge 

Marilyn Huff through other members of the bar. But I give this 

Committee and the Chair my assurance as Chair, having carefully 

reviewed Mr. Macias’ report, that it was balanced, that it was not 

a close call in this particular incidence, and the best explanation 

I can give you, Mr. Chairman, is over the years that we have been 

doing this, since early in the Eisenhower administration, but certainly as the Chair indicated, over the last few years, we enjoy the 

confidence of the people that we are dealing with that they may 

open up to us in a manner that they may not open up to others 

that are more local, that are doing the investigation. And with the 

assurance of confidentiality, we call them as we see them. 

Chairman HATCH. I understand that and I appreciate it. And I 

have no doubt, Mr. Macias, that you are a well-informed, decent investigation who is just trying to do the best you can. And if people 

report this to you, you have got to report it back. 

I am also aware that there are a lot of—in some of these instances, there could be enemies and there could be people who can 

cause troubles to a nominee who aren’t as honest as they should 

be. So it is something we have to weigh, but it is a matter of great 

concern to me. It is tough to do your job, and I respect people like 

yourself who have to do this job. 

Well, we want to thank both of you for being here. 

Mr. HAYWARD. I would just like to underline, Mr. Chairman, 

along your last comments, if I could, with all due respect, that if 

we do receive an adverse comment, I just want to re-emphasize 

that unless we can tell the nominee about it in general so the 

nominee has an ability to respond to our investigator, we reject it, 

we discount it. So if there is any incident where somebody just is 

trying to poison the well, so to speak, we pick that out. 

Chairman HATCH. I believe that. 

Mr. HAYWARD. And if it is a one-off type criticism, such as Senator Feinstein indicated, we also look into that, and that doesn’t 

sway our recommendation one way or another. 

773

Chairman HATCH. Well, as you know, we on this Committee 

sometimes have done lousy decisionmaking with regard to judges. 

So we are not going to blame you guys for doing the best you possibly can, and you are one element of this consideration. And you 

have been honest in admitting that we have many other elements 

we have to consider. And should we confirm Judge Benitez, we 

don’t want the ABA to think that we are just rejecting your recommendations, but that we have taken them into consideration, 

and we certainly will. I mean, we respect you and we respect what 

you are doing, and we will do our best on the Committee. 

Mr. HAYWARD. Mr. Chairman, thank you for those comments, 

and on behalf of the American Bar Association and my committee, 

I would say to you, Mr. Chairman, that all the members of the Judiciary Committee thank you for the confidence that you place in 

us each time a nomination comes forward, that we will do the peer 

review and provide you with our best advice concerning that particular nomination. 

Chairman HATCH. Well, thank you, Mr. Hayward. Thank you, 

Mr. Macias. 

Mr. MACIAS. Thank you, Mr. Chairman. 

Chairman HATCH. We appreciate having your input. 

Chairman HATCH. Now we are going to call on Judge Huff at this 

point for any comments that she would care to make one way or 

the other, and then we will—unless, Judge Benitez, do you need to 

make any further comments? We would be happy to—let the judge 

sit in the middle, and you can use this one over here. 

Judge BENITEZ. Mr. Chairman, let me just say this: I, too, think 

that the ABA has a difficult task at hand. I appreciate the work 

that they have put into their investigation. I wish that the outcome 

would have been different. I wish I could definitively find out how 

we can have the two conflicting versions of who I am, but I can’t. 

And anything that I would say would be speculation. 

All I can say is this: Obviously there is a problem, or at least it 

is a perceived problem. And if given the opportunity to serve as a 

district judge, I will certainly attempt to address those issues that 

have been raised by the ABA. 

Chairman HATCH. Well, thank you. I appreciate that. 

Judge BENITEZ. Thank you, Mr. Chairman. 

Chairman HATCH. Judge Huff, we will take your statement. We 

are honored that you would take time to come back here, and I 

think it is a tribute to Judge Benitez that you would take the time 

to be with us. 

STATEMENT OF HON. MARILYN L. HUFF, CHIEF JUDGE, U.S. 

DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge HUFF. Thank you. I had to recess a death penalty case to 

come here, but I did believe that it was important. 

I favor the confirmation of Roger Benitez as a district judge, as 

do significantly all of my active district judge colleagues on the 

bench, as we believe that he does have the skills and judicial temperament to help us with our heavy caseload. My written testimony 

has been submitted for the record. 

Chairman HATCH. We will put it in the record. 

774

Judge HUFF. So I will summarize, then, my comments with respect to Magistrate Judge Benitez. 

I think it is significant to know and thank Senator Feinstein for 

setting up the bipartisan merit selection committee. That committee, after significant investigation at the local level, with knowledge of the lawyers and judges who were speaking, unanimously 

recommended Roger Benitez for one of these positions to help us 

with our heavy caseload. 

At the same time, we as district judges of the court had appointed Magistrate Judge Benitez as a magistrate judge for Imperial County. Significantly, he was the first full-time magistrate 

judge in Imperial County, and the best way that I can reconcile the 

comments of the ABA with our different perceptions of Judge 

Benitez is I do attribute some of the criticism to the natural growing pains in setting up a new, functioning, and very busy court in 

a geographically distant community approximately 2 hours away 

from San Diego. 

Magistrate Judge Benitez came to our attention based on the recommendations of a merit screening panel that consists of lawyers 

and community representatives. They forwarded his name as one 

of the five finalists for magistrate judge. We district judges then 

undertook our own due diligence, and significant to us was what 

kind of judicial temperament did Superior Court Judge Benitez 

possess. We learned that he possessed the attributes to be an excellent magistrate judge. He was diligent, resourceful, efficient, 

knowledgeable, and, most significantly for your consideration here 

today, compassionate, fair, and considerate. 

Based on his excellent reputation, our interview, and the favorable results of his FBI and IRS background investigations, we appointed him as United States magistrate judge in January 2001. 

As I said, we set up a new court. Previously, we had all defendants transferred to San Diego and didn’t appoint counsel until, 

some days, 3 days later. When we took a look at the numbers, we 

realized that approximately 30 percent of the initial appearances 

were happening in Imperial County. Our Acting United States 

Marshal estimates that for the 3 years that Magistrate Judge 

Benitez has been on the bench, he has saved approximately $5.2 

million for the United States Marshals Service over this 3-year period because they were able to house the prisoners in Imperial 

County rather than in the more expensive San Diego contract facilities. 

We believe that Magistrate Judge Benitez has actually improved 

the quality of justice for indigent defendants in Imperial County. 

He set up a system that is functioning and works well, and, significantly, unquestionably he has been a diligent judge. His 4,524 initial appearances as of February 13 in Imperial County saved the 

court the repetition of these appearances in San Diego. 

We have reviewed his work, and beyond his work ethic, he has 

demonstrated an ability to set up a functioning and successful divisional court. For example, in 2003, he handled 1,494 initial appearances for criminal cases. To put this in context, I took a look at the 

Northern District of California. They have ten magistrate judges. 

We have ten magistrate judges. Their ten magistrate judges collectively only handled 1,341 initial appearances, and Magistrate 

775

Judge Benitez handled more than all ten of the district judges in 

the Northern District of California. And Judge Benitez took a look 

at the statistics and said that out of all of the districts in the 

United States that, except for five districts, he singlehandedly handled more initial appearances than any of them, the whole court 

combined. So he has been a very diligent worker. 

He has, in the court’s view, been an asset to the Federal bench. 

We have taken a look at the ABA criticism and taken a look at that 

significantly. I have attempted to parse through the information to 

try to find out if there are trends here. As chief judge, I would be 

concerned if there was a concern about judicial temperament. 

As required by law, until the law recently changed, we were required to review transcripts of all guilty pleas taken by Magistrate 

Judge Benitez. So over the life that he has been there, for 3 years, 

we have had no criticism based on our review of the actual transcripts of his judicial temperament or compassionate quality. Indeed, to the opposite, we have found him to be a very wonderful 

and diligent Federal magistrate. 

In sum, we do believe that he will make a positive contribution 

to the administration of justice in the Southern District of California and help us to reduce our heavy caseload. We believe he possesses the intellect, experience, and temperament to be an excellent 

district court judge. We also have the ability to broaden the diversity on our court because, as you have heard, he has a wonderful 

life story. He is the embodiment of the American dream. As an immigrant, he came to the United States with very little, and he has 

risen to become a very respected judge. 

We were surprised and disappointed to learn that the ABA has 

a different view of his qualifications. While I deeply respect the 

ABA and its judicial evaluations process, in this case I am more 

persuaded by the unanimous recommendation of the bipartisan 

merit selection committee, the additional investigation done by 

David Casey at the request of Senator Feinstein—he is the president of the American Trial Lawyers Association—and the views of 

my fellow district court colleagues, the active judges, who collectively believe and support that Magistrate Judge Benitez will be an 

excellent district judge. 

I am open to any questions you have. 

Chairman HATCH. Well, thank you so much. I think it is a tremendous honor for Judge Benitez to have you take the time to 

come back and be with us and give what I consider to be very, very 

excellent testimony. It is a real tribute to you, Judge Benitez. And, 

look, I give weight to the ABA findings, but they are not always 

right, and I mentioned the Williams case just as a perfect illustration, an African-American nominee who was found not qualified by, 

I think everybody on that Standing Committee, and we just overruled them, and we find that he is doing an excellent job today. 

In the case of Judge Benitez, I think you have come through a 

lot in your life, and I think that will redound very well to the benefit of those who appear before you. The only thing I can say is if 

there is any truth to any lack of temperament—and let me tell you, 

being a magistrate judge is not a walk in the park. You sometimes 

have to be firm. Just being a district court judge, you have to be 

firm. You cannot let lawyers walk all over you. And in this day and 

776

age, lawyers tend to think they can do that to judges, even. And 

any time a judge settles them down, they take offense to it. 

In my day, when I started out, we were very respectful in all 

ways to judges, and especially those who might not have temperament. But the fact of the matter is we know that there is a different segment of the whole Bar Association in various communities that doesn’t always abide by the rules of decorum, and then 

they blame the judges for getting tough with them in the courtroom. 

And, frankly, we understand that. We have become such a litigation-minded community throughout America that it has also become a community that is less reasonable than it should be. And 

I know that, Judge, you have experienced that as a district court 

judge, and nobody minds an advocate doing the very best he or she 

can in front of the court and raising very strong positions. But you 

do mind people who go way beyond where they should be, abuse 

the rules of evidence, and do other things that literally cause a 

judge, whether magistrate or district or even a circuit judge, to 

come down pretty hard on them. And we expect judges to come 

down hard from time to time. 

So I would say, Judge Huff, that your testimony is the most significant testimony here today outside of Judge Benitez’s, and it is 

very persuasive to me, as is Judge Benitez’s testimony. And I am 

certainly going to recommend confirmation, and I believe this Committee will do so in spite of some of the tough times we have on 

this Committee from time to time. So we will do our very best to 

get you confirmed, and I would just suggest you be the very best 

judge you possibly can because you will bring credit to a lot of people outside of your family and your own immediate circumstances 

if you do a great job as a Federal district court judge. And I am 

going to count on your doing that. 

Judge Huff, we are just very honored to have you here, and we 

respect you and respect the work that you do. 

Judge HUFF. Thank you, and thank you so much for getting us 

the positions. We really do appreciate it. 

Chairman HATCH. Thank you. We will do our best in the future, 

too. 

[The prepared statement of Judge Huff appears as a submissions 

for the record.] 

Chairman HATCH. Well, with that, we are going to recess until 

further notice. 

[Whereupon, at 11:50 a.m., the Committee was adjourned.] 

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

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(839)

NOMINATIONS OF PETER W. HALL, OF 

VERMONT, NOMINEE TO BE CIRCUIT JUDGE 

FOR THE SECOND CIRCUIT; JANE J. BOYLE, 

OF TEXAS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

TEXAS; MARCIA G. COOKE, OF FLORIDA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

SOUTHERN DISTRICT OF FLORIDA; AND 

WALTER D. KELLEY, JR., OF VIRGINIA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF VIRGINIA 

WEDNESDAY, MARCH 10, 2004 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:33 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. 

Present: Senators Cornyn and Leahy. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. This hearing of the Senate Judiciary Committee will come to order. I appreciate Senator Hatch, the Chairman of the Committee, for allowing me to chair this hearing as the 

list of four distinguished nominees includes one from Texas as well 

as those from Vermont, Virginia, and Florida. It is an honor to welcome each of you here today as well as your families and friends 

and guests to the Committee. 

I note that all four nominees—one for the Federal appeals court 

bench and three for the district court bench, are distinguished lawyers, each having received a ‘‘well qualified’’ rating from the American Bar Association. Peter Hall is the nominee to be U.S. circuit 

judge for the Second Circuit. In addition, we have three nominees 

to the Federal district courts: Jane Boyle, the nominee for the 

Northern District of my home State of Texas; Marcia Gail Cooke 

is the nominee for the Southern District of Florida; Walter Kelley, 

Jr., is nominee for the Eastern District of Virginia. I commend 

President Bush for nominating each of you, and I look forward to 

your testimony. 

840

Now, we have a number of Senators who want to naturally introduce their nominees from their State, and out of deference to them, 

I will proceed to your introductions, and then follow accordingly as 

Senators arrive, and I know they have got to balance a variety of 

different responsibilities so we will try to accommodate each of the 

introducers as much as we possibly can. 

But first let me turn, of course, to the distinguished ranking 

member, Senator Leahy, for his opening statement. 

Senator LEAHY. Mr. Chairman, I am going to be here for a while, 

and I see the distinguished senior Senator from Virginia, my Senator when I am away from home, and the distinguished Senator 

from Vermont, my Senator when I am home, and I would be happy 

to withhold as a courtesy to the two of them, if they would like to 

go first. 

Senator CORNYN. Very well. 

We would be delighted to hear from you, Senator Warner, any 

comments you would care to make. 

PRESENTATION OF WALTER D. KELLEY, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, 

BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE 

OF VIRGINIA 

Senator WARNER. Thank you, Mr. Chairman. And I thank my 

good friend Senator Leahy, who is recognized in this institution as 

setting the decorum and standards which all of us aspire to. 

Colleagues and other distinguished guests here in this important 

hearing of the U.S. Senate, I am privileged to introduce Walt 

Kelley and his family. I am going to ask Walt, since my voice is 

a little raspy and I have got to preserve it for a tumultuous speech 

I am going to give on the floor shortly, would you introduce your 

family? 

Mr. KELLEY. Certainly. I am delighted to have with me today my 

three children, Collier Kelley, Catherine Kelley, and Thurman 

Kelley. 

Senator WARNER. Stand up there, young man. 

[Laughter.] 

Mr. KELLEY. And also my wife, Jennifer Kelley, and my mother, 

Frances Kelley, and a couple of dear friends who are adopted family, Roy and Bev Graeber. They all came up from Norfolk today. 

Senator CORNYN. Excellent. Welcome to each of you. Thank you 

for being here. 

Senator WARNER. I thank the Chair and the members for welcoming this family. As we all know, these are arduous tasks that 

are taken on by jurists, and the family support is essential to the 

discharge of their responsibilities. 

Now, this fine individual fills the vacancy of Judge Henry Morgan, and sort of like you, Senator Leahy, you and I have been here 

long enough, we are down on the third rung of judges that we are 

reporting. When we first came, those that we first put in are gone, 

and the second are retiring, and here you and I are on the third 

round in filling this particular post. 

Senator LEAHY. We are like the old war horses. 

Senator WARNER. Yes, we are the old war horses. 

841

Judge Morgan informed Senator Allen and me about his intent 

to take senior status, so we began our usual very thorough search, 

and it is interesting. I approach these things very pragmatically because I was privileged at one time to be in the profession of law. 

And this fine individual came to the forefront in each of our meetings, when we talked about various persons that we consult with 

in connection with judicial appointments. And it was clear to the 

good Senator Allen and myself that this man was eminently qualified. 

He graduated from Washington and Lee where I was privileged 

to graduate from, and then after working for years as press secretary to a Member of the United States House of Representatives, 

he returned to Washington and Lee and earned his law degree 

magna cum laude. Subsequent to law school, Mr. Kelley served as 

law clerk to a judge on the United States Court of Appeals for the 

Second Circuit in New York City, and we are fortunate that after 

his 1-year clerkship was completed, he returned to his home town 

in Norfolk to practice law. 

Since then, for 22 years, he has practiced law for two of Virginia’s best law firms, Wilcox and Savage, and Troutman Sanders. 

And during these two decades-plus of his legal career, his practice 

has focused primarily on complex business litigation before the 

Federal courts. 

I am going to ask unanimous consent to place the balance of my 

remarks into the record, Mr. Chairman. 

Senator CORNYN. Without objection. 

Senator WARNER. I have to join the members of the Intelligence 

Committee. We have got an emergency meeting at this point in 

time. So I am going to ask that the Chair allow my distinguished 

colleague and dear friend, Senator Allen, to complete my remarks 

on my behalf. 

I thank you for the courtesies. 

[The prepared statement of Senator Warner appears as a submissions for the record.] 

Senator CORNYN. Thank you, Senator Warner. 

Senator Allen, we would be pleased to hear any remarks you 

would like to make by way of introduction. 

PRESENTATION OF WALTER D. KELLEY, JR., OF VIRGINIA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA, BY HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator ALLEN. I will. Thank you, Mr. Chairman and Senator 

Leahy, and I thank my colleague Senator Warner. I will put the 

rest of his statement in the record. 

Senator CORNYN. Without objection. 

Senator ALLEN. I was crossing through some of my remarks, so 

I will try not to repeat. 

I am very happy to be here and pleased and honored to support 

Walter DeKalb Kelley, Jr.—we know him as ‘‘Walt’’—to serve as 

judge in the Eastern District of Virginia, U.S. District Court. 

I have known Walt for a long period of time now, and I am always impressed by him. I will get into some of his background. But 

I have found him to always be even-tempered. No matter the situaVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00853 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
842

tion, no matter how fractious things might be, he always had a 

good, steady demeanor, which I think is an important aspect for 

being a trial judge. Where things can get a bit hectic, does someone 

keep their cool? Are they evenhanded? Are they fair-minded? 

Senator Warner and I interviewed many outstanding nominees 

for this judgeship in the Eastern District of Virginia. The things I 

care about are experience, to the extent you can determine someone’s experience as a judge, and also their judicial philosophy. On 

the latter point of judicial philosophy, Walt Kelley as a judge is one 

who understands the proper role of the judiciary, to adjudicate disputes based on the evidence before them and not make the law. 

This is something I know, Mr. Chairman, that you care a great 

deal about, as I do, and my colleague Senator Warner. It is important. And I feel very safe in saying that as a judge, Walt Kelley 

would understand the proper role of the judiciary. 

As far as experience, while not a judge having judicial experience, he has a tremendous amount of experience in the courtroom, 

arguing and taking to final adjudication 25 cases in various Federal courts. That is an impressive number. He has been supported 

and endorsed by the Virginia Association of Defense Attorneys, the 

Virginia State Bar. The American Bar Association has given Walt 

Kelley a unanimous opinion of ‘‘well qualified.’’ He is rated ‘‘AV’’ by 

Martindale-Hubbell. The Virginia Bar Association supports his 

nomination as well as the Virginia Women Attorneys Association. 

It is no wonder he has been listed since 1997 as one of the best 

lawyers in America for business litigation, and it may not sound all 

that great all the time, but in Virginia Business Magazine, they 

call him the ‘‘legal elite,’’ and he is amongst the legal elite, according to Virginia Business Magazine for civil litigation. 

Senator Warner went through all his education, and other matters that I think are important are what he does in the community. 

He is the Chairman or Rector of the Board of Visitors at Old Dominion University in Norfolk. He is a trustee at Norfolk Collegiate 

School, where he attended and where his three children currently 

attend school. He is an adjunct professor in antitrust law at the 

law school at Regent University. He served on the Virginia Attorney General’s Task Force on Higher Education. He also is the director of the Hampton Roads Salvation Army Adult Rehab Center 

Advisory Board, making sure that folks are rehabilitated from 

being addicted to drugs or using drugs, and to become more productive citizens. 

Senator Warner has introduced his wife and twin sons and 

daughter and his mother, Frances. I know there are friends—Bev 

Graeber is back there, and he has a lot of support—that have come 

all the way up from Norfolk here. 

I will just sum it up, Mr. Chairman and Senator Leahy. Walt 

Kelley is an outstanding individual. He has the experience, he has 

the temperament, and I think he will be an outstanding judge for 

many decades to come in the Norfolk division in the Eastern District of Virginia. He has the qualifications, he has the temperament, and he is a quality individual whom we will all be proud to 

support and watch as a judge. 

843

I thank you for your time and your care, and I hope you will 

promptly move this nomination forward so he can get to work in 

handling the caseload there as soon as possible. 

Senator CORNYN. Thank you, Senator Allen, for those glowing remarks, and we appreciate your time here very much. 

At this time we would be delighted to recognize Senator Jeffords 

for any introductory remarks he may care to make. 

Senator LEAHY. Incidentally, I might mention, Mr. Kelley may 

want to save a transcript of what you and Senator Warner said. 

Those are glowing tributes from two Senators I respect greatly, and 

I have a feeling if his career is like anybody else’s career in the judiciary or anything else, there may be occasions when some, probably as he sentences them to prison or something, may have less 

flattering things to say. So this will give him something to look at. 

[Laughter.] 

Senator ALLEN. Thank you, Senator Leahy. Appreciate it. 

PRESENTATION OF PETER W. HALL, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT, BY HON. JIM JEFFORDS, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Senator JEFFORDS. Well, thank you. I am very pleased to be here. 

I know Senator Leahy agrees with me wholeheartedly in what I 

will say, and I will agree wholeheartedly with whatever he says. 

I just want to let you know that we believe that Peter W. Hall for 

a seat on the United States Second Circuit Court of Appeals is a 

most qualified individual and are delighted to recommend him. 

But I am also a bit melancholy because the nomination is for the 

seat that was held by my very close friend, the late Fred Parker. 

The loss of Judge Parker created a tremendous void in the legal 

community of Vermont and the Second Circuit. Judge Parker left 

some big shoes to fill, both literally and figuratively. But Peter is 

the ideal candidate to accomplish this task. 

Peter and I both live in the Rutland area of Vermont. This has 

permitted me to know him and closely follow his career for over 20 

years. The insight and knowledge allowed me to confidently nominate Peter in 2001 to serve as the U.S. Attorney for Vermont, and 

now enthusiastically support his nomination for a position on the 

Second Circuit Court of Appeals. 

I have the utmost faith in his ability to continue the line of excellent judges from Vermont in the Second Circuit Court of Appeals. 

The nomination comes from a Committee with strong support of a 

large bipartisan group of Vermonters. Jim Douglas, the Governor 

of Vermont, offered Peter’s name to the President as the nominee 

for this seat, and both Senator Leahy and I supported this nomination. In addition, my constituents believe Peter will be an outstanding judge on the Second Circuit Court of Appeals, and I know 

from so many members of the bar letting me know how they feel 

that he will certainly be welcomed by the Vermont Bar Association 

and their members. 

Peter will come to the Second Circuit with an extensive and wide 

knowledge of the law. Following law school, he clerked for Hon. Albert W. Coffrin, a U.S. District Court Judge for Vermont. Peter has 

also worked for a prestigious law firm in Rutland and held a variety of positions in the United States Attorney’s Office, most reVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00855 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
844

cently as a U.S. Attorney for Vermont, a position for which the 

Senate unanimously confirmed him in 2001. 

In all these positions, Peter has excelled and done extraordinary 

work. I have heard nothing except praise from his colleagues and 

firmly believe he will continue this record of excellence on the Second Circuit. 

Peter has also exhibited a proper temperament to be an exceptional jurist. I believe this comes naturally to Peter through his upbringing in Vermont, and I know that Peter will serve in the 

Vermont tradition of prudence and fairness. 

I appreciate this opportunity to introduce Peter Hall to you for 

a seat in the Second Circuit Court of Appeals. I believe you will see 

in him what I have seen in many years, an individual who has 

strong values and exceptional judgment. I hope the Senate will 

swiftly confirm him to the seat, thus extending the line of excellent 

Vermont judges on the Second Circuit. 

Thank you. 

Senator CORNYN. Thank you, Senator Jeffords. 

Senator Leahy? 

PRESENTATION OF PETER W. HALL, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT, BY HON. PATRICK LEAHY 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Senator LEAHY. Well, thank you, Mr. Chairman, and like Senator 

Jeffords, I am very pleased to introduce and recommend Peter Hall 

to the Committee. We have been saying such nice things about 

him. I wonder, Peter, if you might just stand up so we can see who 

it is we are talking about. In a few minutes, you will get a chance 

to introduce everybody else who is with you, and I might mention 

that I see with Mr. Hall one of his predecessors as U.S. Attorney, 

Charlie Tetzlaff, who was also a superb U.S. Attorney, and both 

long-time friends. 

In this position, the President, as has been said, has nominated 

Mr. Hall for a seat on the Second Circuit. By tradition, Vermont 

has had one of the seats on the Second Circuit. And in mentioning 

that, I should say, as Senator Jeffords has, there is a reason this 

seat is vacant. There was a superb Second Circuit judge, Fred 

Parker, who was there. Fred was a close friend of mine, of Senator 

Jeffords, of Mr. Hall, Mr. Tetzlaff, and so many others. He died 

tragically of a heart attack this past summer. And Judge Parker 

had been appointed to the U.S. District Court for Vermont back in 

1990 by the first President Bush and the strong recommendation 

of Senator Jeffords and with my support. He was a well-known Republican and the deputy attorney general, and later he was appointed to the Second Circuit by President Clinton, again on my 

recommendation and Senator Jeffords’ recommendation. It was 

maintaining the sense that we have tried to stay out of partisan 

politics in our judges. Fred was a good man, a good lawyer, and a 

good judge. I was a schoolmate of his at Georgetown. I knew him 

from that time on as a man of integrity and intelligence, and he 

is missed. 

Now, I mention all these things because it is fitting that we have 

Peter Hall, our current U.S. Attorney, again carrying on this tradition of bipartisanly supported, nonpartisan judges. He was apVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00856 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
845

pointed U.S. Attorney by President Bush. He has the strong support of Governor Jim Douglas, a Republican Governor of Vermont, 

of Senator Jeffords, Independent Senator from Vermont, and of this 

Democratic Senator from Vermont. And I think he is up to the job. 

Now, he did have certain problems, I should point out, to be honest, Mr. Chairman. He had the nerve to be born in Connecticut. If 

only someone had spoken to him in time. He went all the way to 

North Carolina for college. He attended law school in New York. 

But he did finally come to his senses as he graduated from law 

school. He came back and worked as a clerk for Judge Albert 

Coffrin, actually a man who had been appointed by President 

Nixon to the court, and both Mr. Tetzlaff and I had worked in the 

law firm that Mr. Coffrin had been in before. 

After he completed that clerkship, he joined the United States 

Attorney’s Office in Vermont. He was a Federal prosecutor for the 

next 18 years, becoming first assistant, later named U.S. Attorney. 

During those years, he gained invaluable trial experience, which 

is so beneficial for any judge. He also learned about the Federal 

criminal law. So Mr. Hall’s experience is not just Government service. In 1986, he began a 15-year career in the private practice of 

law, in civil practice, with a particular emphasis on mediation. But 

he also used that time to serve the State Bar Association. He provided ethics training to Vermont State prosecutors. He held the Office of the President of the Vermont Bar Association where he advocated funding for public defenders and equal access to justice. 

And he also found time for pro bono work, something I think is so 

important for those who are going to be considered as judges, getting involved in the Vermont family court system, serving as 

guardian ad litem for children caught up in disputes between their 

parents. 

He has been a tough but fair prosecutor. His Republican credentials—and I will put all that in the record—are very clear: a member of the National Republican Party and so on. He also held one 

of the most important offices a citizen can hold in Vermont—he 

was a member of the Select Board of the Town of Chittenden, 

which is in Rutland County, not Chittenden County. Mr. Hall has 

proven—I think everybody who has been involved with him as a 

prosecutor would agree that, there has never been any indication 

in his work as a prosecutor that anybody is treated differently because of their political affiliation. They are all treated fairly. They 

are all treated honestly. The public has been served. 

So I will put the rest of my statement in, but I also wanted to 

put in, Mr. Chairman, a letter from our Governor, Governor Douglas, addressed to both Senator Hatch and myself, strongly supporting him. 

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

Senator CORNYN. Thank you, Senator Leahy, for those remarks. 

At this time it is my pleasure to recognize the other Senator from 

Texas, Senator Hutchison, for any introductory remarks you care 

to make. 

846

PRESENTATION OF JANE J. BOYLE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF TEXAS, BY HON. 

KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE 

OF TEXAS 

Senator HUTCHISON. Well, thank you very much, Mr. Chairman. 

I am very pleased to have the opportunity to introduce our candidate, our joint candidate for U.S. District Judge for the Northern 

District of Texas. It sits in Dallas. Jane Boyle is the current U.S. 

Attorney for the Northern District of Texas. Previously, she served 

for 12 years as the U.S. Magistrate Judge for the Northern District 

of Texas and gained significant judicial experience in the region. 

She earned her undergraduate degree with honors from my alma 

mater, the University of Texas at Austin, and she earned her law 

degree from SMU, Southern Methodist University, School of Law. 

She has received outstanding reviews of her job as U.S. Attorney. 

She took this job at a fairly tough time, and I have talked to lawyers throughout the region who believe that she has done a wonderful job of being totally fair and balanced, and everyone has 

great confidence in the job that she is doing. 

She is married to John Boyle, also an attorney, and has two children: her son, Joe, 15, who just became an Eagle Scout, and her 

daughter, Casey, is 12. 

I would like to ask her to stand and then introduce her family 

as well. Judge Boyle? And her father—well, let’s see. Start with her 

husband, John Boyle, who is with her. Her father is Raymond 

Patvel, and her sister, Katie; her mother, Catherine Jackson; and 

her father, Richard Jackson. And I am sorry, that was her brotherin-law. I am very sorry. That is very nice of you to be here. 

So we really are so pleased that all of you are here, and we welcome you. 

Mr. Chairman, I know that you join me in giving our highest recommendation to Jane Boyle, and since she is the sitting U.S. Attorney, I would ask for as much of an expedited review of her as possible because we would like to not only fill the judgeship but also 

fill the U.S. Attorney position so that there is a seamless transition 

there. 

I thank you. 

Senator CORNYN. Thank you, Senator Hutchison, and I certainly 

concur in all of your remarks. 

I know Senator Nelson is here, and I am going to defer any introductory remarks I might make so that he can speak, and then I 

will continue with a few remarks about this excellent nominee for 

the Northern District of Texas. Senator Nelson? 

PRESENTATION OF MARCIA G. COOKE, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, 

BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF 

FLORIDA 

Senator NELSON. Mr. Chairman, that is very kind of you. Thank 

you. 

I am supposed to be going to Mars this afternoon. We have a 

hearing on Mars, so thank you for allowing me to go ahead. And 

I am here on behalf of Marcia Cooke to the United States District 

Court for the Southern District of Florida, and I am speaking on 

847

behalf of Bob Graham and myself. And if Ms. Cooke would stand 

up, and her family as well, the members of her family. Thank you 

all. 

Senator CORNYN. Thank you all for being here. 

Senator NELSON. Well, Mr. Chairman, our nominee comes to us 

originally from Michigan, then went to Georgetown University and 

the Wayne State University Law School. She has been a prosecutor, and at one point, as well as a public defender, plaintiff’s attorney, and a defense attorney. She has been in private practice 

and Government service. She has represented all kinds of clients, 

the poor and the wealthy. And she was 8 years as a U.S. magistrate judge in Michigan. 

She came to Florida and ended up in a legal position for our Governor and became quite familiar then with all of this wonderful diversity that we have in our State. Interestingly, if the Senate confirms the nomination, she will be the first female African-American 

Federal judge in Florida, and again, an important point to note because of Florida’s considerable diversity. 

She has been an instructor with the National Institute of Trial 

Advocacy. She has been an adjunct professor with Wayne State and 

the University of Miami Law School. And so I will submit this 

statement for the record, Mr. Chairman, but you can see that we 

have an extremely qualified candidate that is the nominee, and 

Senator Graham and I give her our wholehearted endorsement. 

[The prepared statement of Senator Nelson appears as a submissions for the record.] 

Senator CORNYN. Thank you, Senator Nelson, for those remarks, 

and of course your written statement, as well as those of the other 

Senators here today will be made part of the record without objection. 

Senator NELSON. Thank you. 

PRESENTATION OF JANE J. BOYLE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF TEXAS, BY HON. 

JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. At this time I would like to make a few remarks in addition to those highly glowing remarks that Senator 

Hutchison has already made about Jane Boyle. She has had a long 

and distinguished career of public service, and rather than repeat 

some of the nice things that Senator Hutchison has already said 

about her, I know particularly if you are Ms. Boyle’s family, you 

cannot hear enough nice things about here, and you agree with all 

of them. 

Let me just read a couple of excerpts from letters that the Committee has received on her behalf. Susan Hayes, Chair of the Dallas County Democratic Party, said, ‘‘Having worked on both sides 

of the bar, I can attest that both sides view Judge Boyle as a respected jurist who will follow the law regardless of any political 

pressures.’’ And she continued, ‘‘If any nominee is deserving of an 

election year confirmation, it is Judge Boyle.’’ I would also note 

that a prominent Dallas Democratic Party activist and fund raiser, 

Mark Stanley, signed on to this letter as well. 

I would also like to read excerpts of a letter from Congressman 

Martin Frost, Democrat from the 24th District of Texas. He noted, 

848

‘‘I believe that she is an extraordinarily qualified candidate who 

should be confirmed by the Senate with ease. She has a strong 

legal background and commitment to service in the community, 

and I believe she will serve on the Federal Bench with honor and 

distinction.’’ 

Finally, I would like to read a few words from Ken Mulberg, the 

Senior Member of the Texas State Democratic Executive Committee and the former Dallas County Democratic Chair. He said, 

‘‘It is seldom that I have written in support of a judicial nominee, 

particularly one submitted by the opposition party. It is more likely 

you have heard from me in opposition to various nominees. The 

nomination of Jane Boyle, however, merits different comment.’’ He 

went on to add, ‘‘Judge Boyle possesses an ability to be firm and 

fair in the adjudicatory process. She was always well studied and 

prepared in her intellect. Preparedness and perception are top 

notch.’’ He closed, ‘‘I urge a speedy confirmation of this excellent 

nominee.’’ 

Judge Boyle, I just want to add that there were Republicans who 

said nice things about you too. 

[Laughter.] 

Senator CORNYN. Without objection, I will submit these letters 

and another letter from the Texas Employment Lawyers Association to be made a part of the record, without objection. 

Would each of the nominees please step forward so I can administer the oath, please? Raise your right hands, please. 

Do each of you swear the testimony you are about to give before 

the Committee is the truth, the whole truth and nothing but the 

truth, so help you, God? 

Judge COOKE. I do. 

Mr. HALL. I do. 

Mr. KELLEY. I do. 

Ms. BOYLE. I do. 

Senator CORNYN. Thank you. Please have a seat. 

Mr. Hall, we would be glad to hear any opening statements or 

comments you would care to make. 

STATEMENT OF PETER W. HALL, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT 

Mr. HALL. Thank you, Mr. Chairman. I do not have any specific 

opening comments, but I would like, if I may, to take this opportunity to thank the President of the United States for placing my 

name in nomination, to thank you as Chair for convening this 

hearing to hear the nomination. 

If I may, may I introduce the three persons who are here from 

Vermont, who have been kind enough to show up to watch this 

process go forward? 

Senator CORNYN. You mean other than the Ranking Member, 

who I know has already spoken glowingly on your behalf? But 

please go ahead and do so. 

Mr. HALL. Thank you. I would like to introduce Lilly Sojourner 

and Elizabeth Woodcock, if they would stand up. Ms. Sojourner is 

a close friend of my daughter’s and is here at college at Georgetown, graduating this year. Ms. Woodcock is an Assistant U.S. AtVerDate 0ct 09 2002 12:19 Sep 20, 2004 Jkt 095617 PO 00000 Frm 00860 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\95617.TXT SJUD4 PsN: CMORC
849

torney, and has lived here in Washington, came up to Vermont to 

be an Assistant U.S. Attorney in the Office. 

Then the third person here has already been mentioned by Senator Leahy as Charles Tetzlaff, who was my predecessor as U.S. 

Attorney and a close friend. 

Senator CORNYN. Welcome. 

Thank you very much for introducing them. 

Mr. HALL. Thank you, Mr. Chairman. 

[The biographical information of Mr. Hall follows:]

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Senator CORNYN. Professor Kelley, we would be glad to hear any 

opening comments or statement you care to make. 

STATEMENT OF WALTER D. KELLEY, JR., NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

Mr. KELLEY. I do not have any opening statement, Senator. I too 

would like to thank President Bush and this Committee, President 

Bush for the nomination, this Committee for affording me the opportunity to have a hearing, and look forward to answering your 

questions. 

[The biographical information of Mr. Kelley follows:]

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Senator CORNYN. Thank you. 

Judge Cooke, we would be glad to hear your opening. 

STATEMENT OF MARCIA G. COOKE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA 

Judge COOKE. Good afternoon. I do not have an opening, but I 

would of course like to thank President Bush for the nomination, 

the cooperation of my two State Senators, Senators Nelson and 

Graham, and to introduce my friends who managed to make it here 

from Florida today, Cynthia Johnson-Stacks; Cynthia Everett; my 

colleague from the Georgetown University Board of Directors, Jack 

Cassidy; Karl Pilger, a fellow teacher of mine with the National Institute of Trial Advocacy; my college roommate, who proves that I 

still have long-serving friends, Gwendolyn Baylor and her daughter 

Samantha. 

Senator CORNYN. Welcome to all of you. Thank you for being 

here today. 

[The biographical information of Judge Cooke follows:]

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Senator CORNYN. Ms. Boyle, I would be glad to hear any opening 

comments you would care to make. 

STATEMENT OF JANE J. BOYLE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF TEXAS 

Ms. BOYLE. Chairman Cornyn, I do not have an opening either, 

but I would like to thank you for your kind remarks, and also than 

Senator Leahy and the rest of the Committee for having this hearing and including me on the panel. I appreciate that very much. 

I also would like to thank Senator Hutchison for her kind remarks as well. 

You have met my family, so I will not reintroduce them, but it 

is a tremendous honor to be here today. Thank you. 

[The biographical information of Ms. Boyle follows:]

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Senator CORNYN. Thank you very much. 

Of course, each of you have been through some investigation and 

background check before you had gotten here today, so this is not 

meant to be a reiteration of that, but I know Senator Leahy and 

I will probably have a few questions for each of you. 

Let me just start with Mr. Hall, and ask each of you to comment 

on this. I know we frequently hear reference to judicial activism in 

the media and sometimes I wonder if we all mean the same thing 

when we talk about judicial activism, but I think what most people 

mean, whether they approach it from the left or the right, is a 

judge who takes some liberty with either a statute or precedents 

that state what the common law is, or with a constitutional interpretation and an attempt to perhaps pursue some agenda other 

than faithfully interpreting the law. 

I wonder if, starting with you, Mr. Hall, if you could comment 

on that and what you consider to be illegitimate judicial law making from the bench. 

Mr. HALL. Thank you, Mr. Chairman. That is obviously an important issue as one considers and hopes that one will become a 

judge, a Federal judge. If I may, let me answer by way of giving 

you my philosophy on that, and that really is that it is up to Congress essentially to pass the laws of this country. It is up to the 

Supreme Court of the United States ultimately to interpret the 

Constitution and to provide final interpretation on the laws. 

It would be my intention as a judge, if I am confirmed, to follow 

the laws as closely as I could to divine Congress’s intention from 

the written text of those laws and from the legislative history if 

there were a question around them, and to be bound by those laws 

and to be bound by the interpretation of the U.S. Supreme Court. 

Senator CORNYN. I noticed you used the word ‘‘divine’’ and that 

may be an appropriate word in some instances, to try to figure out 

what Congress did mean by a statute, not always an easy task. 

Mr. Kelley, would you care to comment, please? 

Mr. KELLEY. I concur with everything my colleague just said I 

would add from the perspective of a District Court Judge, the constraints within which we operate would be even more narrow than 

those that an Appeals Court Judge would operate. Again, looking 

at it from the practical, trying to get the cases moved and get them 

done right in a manner that is fair to the litigants, if you end up 

taking a judicial activist view, one that seeks to achieve present results as opposed to following the law, you are going to end up with 

a wide variety of decisions on very similar facts which is going to 

have the effect of encouraging more litigation because it destroys 

the notions of predictability upon which our legal system is based. 

So from a would-be District Court Judge perspective, precedent and 

stare decisis, and the words that Congress have used are really everything that we need in our jobs. 

Senator CORNYN. I certainly agree with you that predictability is 

a very important function of the rule of law, so people know what 

the rules are and can order their personal and business and other 

affairs accordingly. If they do not like the way the law is, then certainly we in this country recognize the right of every citizen to petition for a change of that law, and to work to see the law changed. 

So thank you for those comments. 

1032

Judge Cooke, would you care to comment on that issue? 

Judge COOKE. Thank you, Senator. I support my colleagues in 

that. I think that it is important for a judge, a United States District Judge, to follow precedent and stare decisis, and if confirmed, 

I plan to do that. I plan to respect the three branches of Government and to respect the role that a United States District Court 

Judge should play, and that is to decide the matter before him or 

her, and to proceed from well-recognized stare decisis and precedent. 

Senator CORNYN. Thank you very much. 

Ms. Boyle. 

Ms. BOYLE. Senator Cornyn, I think that my colleagues have 

stated very eloquently my views on the issue of judicial activism. 

Just to say that it is a basic premise of our Founding Fathers and 

the whole idea of separation of powers as the Judicial Branch interprets the law, and that is what we do. We do not make the law. 

Senator CORNYN. Thank you, Ms. Boyle. Your comments remind 

me of something I have learned since I have come here to the Senate, that is, the saying that everything has been said but not everyone has said it yet. 

[Laughter.] 

Senator CORNYN. Which seems to be a commonly observed proposition here in Congress. But in all seriousness, thanks to each of 

you for your answers, and I will be glad to recognize Senator Leahy 

for any questions he may have at this time. 

Senator LEAHY. Thank you, Mr. Chairman. I might say, in the 

time that Senator Cornyn has been here, he has obviously learned 

all about the right of unlimited debate in the Senate, when you 

have 100 who want to say something. 

I ask this question both of Mr. Hall and Ms. Boyle. Obviously, 

in Vermont, between the papers of the various cases or at least a 

lot of the cases that go through the U.S. Attorney’s Office, and I 

realize there are a lot of prosecutors there, but you are responsible 

for all of the cases being brought or dismissed or prosecuted. 

It has been in my experience as a prosecutor that if somebody 

gets convicted and gets any period of time, you know they are going 

to appeal if they possibly can. Some of those appeals will circulate 

up to the Second Circuit. If you are confirmed, what would be your 

practice if a case came to the Second Circuit that had been in the 

U.S. Attorney’s Office when you were there, even if you were not 

the attorney handling that particular case? 

Mr. HALL. I would recuse myself, Senator. That is an excellent 

question. It is certainly a matter that I have thought about and 

that I have had to think about as I transitioned from private practice to becoming United States Attorney. But I think Section 455 

of Title 28, if I am recalling the section correctly, quite clearly 

would mandate that I be recused—that I recuse myself from any 

matter that had been in the office while I was there. And as head 

of the office, it is really assumed under the Code of Professional Responsibility, that I have knowledge of that case, so that is my answer. 

Senator LEAHY. I would expect in the Second Circuit, considering 

the jurisdiction of all of New York State and Connecticut, as well 

1033

as Vermont, that the Chief Judge would probably be able to find 

enough other cases to assign to than just those from Vermont. 

Ms. Boyle, let me ask the same question. A case you have been 

involved as a prosecutor, is now, for whatever reason, now percolating to the District Court. What do you do? 

Ms. BOYLE. Absolutely, Senator, and I really appreciate the question because I think the issue of fairness—both fairness and fact 

and the appearance of fairness is crucially and critically important 

to a sound judiciary. 

What I would do—and I have thought about this ahead of time, 

is I do not plan to be involved in any cases that were in any way 

in my office, either as an investigative matter or as an indicted 

matter once I am on the bench. So I will talk to the Clerk of Court, 

as well as the General Counsel’s Office at the Administrative Office 

of U.S. Courts for guidance on how we determine and ferret those 

out as to which ones they are. But I would not preside over any 

case that was in the office in any capacity since I have been U.S. 

Attorney. 

Senator LEAHY. Thank you. 

Judge Cooke, you have seen—I am not asking you for a listing 

of it—but you have seen good judges and bad judges in your career. 

And I am going to ask the same question of Mr. Kelley. The glories 

of our system, and also it can be a real problem in our system of 

Federal judges, is the lifetime tenure. Obviously, the Founders 

wanted to give as much independence as possible. I happen to 

agree with that. But I have seen judges who take on themselves 

the idea that now they are so much different than the rest of the 

world, and they will take it out on lawyers. They will treat lawyers 

in such a way. The question has often been asked, I mean it is a 

question of judicial temperament, something that we normally see. 

What is your view? You are going to have plaintiffs, defendants, 

rich, poor, every other kind coming in. Are you prepared from your 

past experience at all to keep telling yourself, okay, we have to be 

even-handed on this? 

Judge COOKE. Thank you, Senator Leahy, that is a very important question. Yes, that is, if confirmed, what I plan to do. I think 

it is important to remember that every person that approaches the 

bar in any capacity is a person that should be treated politely, 

courteously, and always with respect. 

Senator LEAHY. Professor Kelley, in your work you have been in 

and out of courts enough you know what I am saying about the, 

‘‘Oh, my God, not him or her as a judge,’’ as compared to, ‘‘We are 

going to get a fair shake here.’’ 

Mr. KELLEY. Through 23 years of private practice, I have been 

on the receiving end. 

Senator LEAHY. Of the ‘‘Oh, my God, not him.’’ 

Mr. KELLEY. Of an imperious judge here or there, so I understand well what you are saying. One of the things about those 

kinds of experiences is the effect to me that it has on the litigants. 

We lawyers are somewhat hardened to it. You know, it is just another day at the battle, and some days you get the bear and some 

days the bear gets you. 

To the litigant whose case it is, to encounter a judge who comes 

into a hearing or a trial with his mind made up, and acts in an 

1034

imperious fashion that does not allow people really the opportunity 

to state their case, is very destructive of the public respect for the 

judicial system, and while not everyone ends up in Federal Court, 

people who do have friends. They talk at the neighborhood picnic, 

and pretty soon there is a notion that somehow the game is rigged 

and you are not really able to say your case. 

One of the most important things to me is not only being courteous, but having the patience to allow people to state their position. Whether you ultimately agree or disagree with that position, 

if the litigants feel like they have had their day in court, they will 

respect to result that comes out of it. 

Senator LEAHY. Thank you. What you say about the litigants, 

this may be their one time ever in the court. We have to remind 

ourselves of that here in the Senate. We sort of take it for granted. 

You come in, park your car and go up to your office and get on with 

the day, and walk by the monuments and go into the hearings and 

all, and it is sometimes probably more routine than it should be, 

but I am brought up short every so often when I have somebody, 

a constituent from home, never been here before, and what they 

thought about it in seeing it, or somebody who is testifying before 

a Committee for just a few minutes, and this is a major event in 

their life, and may be one of 20 we will see that day. You have to 

stop and remind yourself that we do have a responsibility. 

Our Federal Courts—and I will stop with this, Mr. Chairman, I 

do not mean to give everybody a lecture—but our Federal Courts, 

their independence, their standards, the fact that we see people of 

the quality of the four of you, this is something, this is a glory in 

our country that we have this, and we have to constantly, all of us, 

do our best for this. 

I say to the families and friends who are here with all of you, 

you should be very proud to have this opportunity. 

And with that, because some of you may want to go other places, 

Mr. Chairman, I will stop, and thank you very much. 

Senator CORNYN. Thank you, Senator Leahy for those questions, 

and thanks to each of you for your comments. 

I am tempted to philosophize some about the role about the Federal Judiciary, but in the interest of time, I will not. 

I will just tell you that each of these very bright young men and 

women who sit behind us, help us go through each of your records, 

and we have excellent staff. So please do not assume because we 

are not asking you by cross-examining you or grilling you today, 

that we are not very interested in your record and your attitude 

and your thoughts about how you will perform on the Federal 

Bench, because I agree with Senator Leahy. Once you get on the 

Federal Bench, you are virtually untouchable, some would say unaccountable, but I would say even untouchable. But I appreciate 

the comments that you made, Mr. Kelley, and others about your responsibility because even though as a judge you are interpreting 

precedent or a statute or the Constitution, it is a tremendous responsibility, and it is one that gives you tremendous power over the 

lives of the individuals that come before your court. 

It is also important—and I will stop with this bit of preaching—

to keep the public trust and confidence. When people see judges 

making it up, or perhaps pursuing some agenda that is not readily 

1035

apparent in anything the legislature has written, or the Founding 

Fathers wrote, or any precedent written by the superior court, then 

they begin to wonder about the very legitimacy of the rule of law 

itself. So it is a very important work that you are undertaking, and 

I know each of you take that very seriously, and I trust you will 

discharge your responsibilities to the very best of your duty. 

We will keep the record open for a week until Wednesday the 

17th, in case there are any additional written questions that either 

Senator Leahy or I or any other member of the Committee would 

like to send to you, and we would of course like you to answer 

those. 

I have also submitted a written statement from Chairman Hatch 

for the record, which will be made, without objection, a part of the 

record. 

Senator LEAHY. I would, if I might submit also for the record, an 

editorial in the Burlington Free Press today, our State’s largest 

newspaper, very supportive of Mr. Hall. 

Senator CORNYN. Very good. With that, we will conclude this 

hearing, and thanks to all of you and good luck to you as well. 

[Whereupon, at 3:23 p.m., the Committee was adjourned.] 

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

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