S. HRG. 108–135, PT. 4

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JULY 22, JULY 30, SEPTEMBER 3, SEPTEMBER 17, AND OCTOBER 1, 2003

Serial No. J–108–1

PART 4

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

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92–637 DTP 2004

S. HRG. 108–135, PT. 4

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JULY 22, JULY 30, SEPTEMBER 3, SEPTEMBER 17, AND OCTOBER 1, 2003

Serial No. J–108–1

PART 4

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 

TUESDAY, JULY 22, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

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

statement .............................................................................................................. 267

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

statement .............................................................................................................. 269

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 6

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 1

PRESENTERS 

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

Steven M. Colloton, Nominee to be Circuit Judge for the Eighth Circuit ....... 3

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

M. Colloton, Nominee to be Circuit Judge for the Eighth Communications ... 4

Leach, Hon. Jim, a Representative in Congress from the State of Iowa, 

presenting Steven M. Colloton, Nominee to be Circuit Judge for the Eighth 

Communications ................................................................................................... 5

Myrick, Hon. Sue, a Representative in Congress from the State of North 

Carolina, presenting H. Brent McKnight, Nominee to be District Judge 

for the Western District of North Carolina ........................................................ 5

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

R. David Proctor, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 9

Shelby, Hon. Richard, a U.S. Senator from the State of Alabama presenting 

R. David Proctor, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 2

STATEMENTS OF THE NOMINEES 

Castel, P. Kevin, Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 49

Questionnaire .................................................................................................... 50

Colloton, Steven M., Nominee to be Circuit Judge for the Eighth Circuit ......... 11

Questionnaire .................................................................................................... 12

Feuerstein, Sandra J., Nominee to be District Judge for the Eastern District 

of New York .......................................................................................................... 68

Questionnaire .................................................................................................... 69

Holwell, Richard J., Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 84

Questionnaire .................................................................................................... 85

McKnight, H. Brent, Nominee to be District Judge for the Western District 

of North Carolina ................................................................................................. 112

Questionnaire .................................................................................................... 113

Proctor, R. David, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 178

Questionnaire .................................................................................................... 179

Robinson, Stephen, Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 215

Questionnaire .................................................................................................... 216

Page

IV

QUESTIONS AND ANSWERS 

Responses of Steven M. Colloton to questions submitted by Senator Leahy ...... 241

Responses of R. David Proctor to questions submitted by Senator Kennedy ..... 245

Responses of R. David Proctor to questions submitted by Senator Leahy ......... 252

Responses of R. David Proctor to questions submitted by Senator Sessions ...... 258

WEDNESDAY, JULY 30, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois, prepared 

statement .............................................................................................................. 569

Edwards, Hon. a U.S. Senator from the State of North Carolina, prepared 

statement .............................................................................................................. 571

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 290

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 282

prepared statement .......................................................................................... 582

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 285

prepared statement .......................................................................................... 588

PRESENTERS 

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

Glen E. Conrad, Nominee to be District Judge for the Western District 

of Virginia ............................................................................................................. 280

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Larry Alan Burns and Dana Makoto Sabraw, Nominees to be 

District Judges for the Southern District of California .................................... 272

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

presenting Henry F. Floyd, Nominee to be District Judge for the District 

of South Carolina ................................................................................................. 277

Hollings, Hon. Fritz, a U.S. Senator from the State of South Carolina presenting Henry F. Floyd, Nominee to be District Judge for the District 

of South Carolina ................................................................................................. 274

Rogers, Hon. Michael, a Representative in Congress from the State of Michigan presenting Henry W. Saad, Nominee to be Circuit Judge for the Sixth 

Circuit ................................................................................................................... 298

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

District of Pennsylvania ...................................................................................... 281

Smith, Hon. Gordon, a U.S. Senator from the State of Oregon presenting 

Michael W. Mosman, Nominee to be District Judge for the District of 

Oregon ................................................................................................................... 279

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

District of Pennsylvania ...................................................................................... 276

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

Glen E. Conrad, Nominee to be District Judge for the Western District 

of Virginia ............................................................................................................. 275

Wyden, Hon. Ron, a U.S. Senator from the State of Oregon presenting Michael W. Mosman, Nominee to be District Judge for the District of Oregon .. 278

WITNESSES 

Levin, Hon. Carl, a U.S. Senator from the State of Michigan ............................. 292

Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan .................. 296

STATEMENTS OF THE NOMINEES 

Burns, Larry Alan, Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 375

Questionnaire .................................................................................................... 376

Conrad, Glen E., Nominee to be District Judge for the Western District 

of Virginia ............................................................................................................. 397

Questionnaire .................................................................................................... 398

Page

V

Floyd, Honry F., Nominee to be District Judge for the District of South 

Carolina ................................................................................................................ 423

Questionnaire .................................................................................................... 424

Gibson, Kim R., Nominee to be District Judge for the Western District of 

Pennsylvania ........................................................................................................ 457

Questionnaire .................................................................................................... 458

Mosman, Michael W., Nominee to be District Judge for the District of Oregon 499

Questionnaire .................................................................................................... 500

Saad, Henry W., Nominee to be Circuit Judge for the Sixth Circuit .................. 309

Questionnaire .................................................................................................... 311

Sabraw, Dana Makoto, Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 520

Questionnaire .................................................................................................... 521

QUESTIONS AND ANSWERS 

Responses of Henry Saad to questions submitted by Senator Durbin ................ 550

Responses of Henry Saad to questions submitted by Senator Kennedy ............. 552

Responses of Henry Saad to questions submitted by Senator Leahy .................. 560

SUBMISSIONS FOR THE RECORD 

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

letter to the White House .................................................................................... 567

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, statement in support of Larry Alan Burns, Nominee to be District Judge for 

the Southern District of California and Dana Makoto Sabraw, Nominee 

to be District Judge for the Southern District of California ............................. 574

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

concerning Michigan judicial nominees .............................................................. 594

The State, Columbia, South Carolina, October 24, 1994, article and attachment ...................................................................................................................... 601

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

in support of Glen E. Conrad, Nominee to be District Judge for the Western 

District of Virginia ............................................................................................... 603

WEDNESDAY, SEPTEMBER 3, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 607

prepared statements ......................................................................................... 817

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

statement .............................................................................................................. 821

PRESENTERS 

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado presenting 

Phillip S. Figa, Nominee to be District Judge for the District of Colorado ..... 616

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

Carlos T. Bea, Nominee to be Circuit Judge for the Ninth Circuit, William 

Q. Hayes, Nominee to be District Judge for the Southern District of California and John A. Houston, Nominee to be District Judge for the Southern 

District of California ............................................................................................ 610

Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of Colorado 

presenting Phillip S. Figa, Nominee to be District Judge for the District 

of Colorado ............................................................................................................ 613

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

A. Crone, Nominee to be District Judge for the Eastern District of Texas ..... 779

Ensign, Hon. John, a U.S. Senator from the State of Nevada presenting 

Robert Clive Jones, Nominee to be District Judge for the District of Nevada ....................................................................................................................... 609

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Marcia A. Crone, Nominee to be District Judge for the Eastern 

District of Texas ................................................................................................... 615

Page

VI

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma presenting 

Ronald A. White, Nominee to be District Judge for the Eastern District 

of Oklahoma ......................................................................................................... 608

Reid, Hon. Harry, a U.S. Senator from the State of Nevada presenting Robert 

Clive Jones, Nominee to be District Judge for the District of Nevada ............ 612

STATEMENTS OF THE NOMINEES 

Bea, Carlos T., Nominee to be Circuit Judge for the Ninth Circuit .................... 618

Questionnaire .................................................................................................... 619

Crone, Marcia A., Nominee to be District Judge for the Eastern District 

of Texas ................................................................................................................. 648

Questionnaire .................................................................................................... 649

Figa, Phillip S., Nominee to be District Judge for the District of Colorado ....... 668

Questionnaire .................................................................................................... 669

Hayes, William Q., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 689

Questionnaire .................................................................................................... 690

Houston, John A., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 718

Questionnaire .................................................................................................... 719

Jones, Robert Clive, Nominee to be District Judge for the District of Nevada .. 748

Questionnaire .................................................................................................... 749

White, Ronald A., Nominee to be District Judge for the Eastern District 

of Oklahoma ......................................................................................................... 761

Questionnaire .................................................................................................... 762

QUESTIONS AND ANSWERS 

Responses of Carlos Bea to questions submitted by Senator Leahy ................... 782

SUBMISSIONS FOR THE RECORD 

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado, statement 

in support of Phillip S. Figa, Nominee to be District Judge for the District 

of Colorado ............................................................................................................ 786

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

in support of Carlos T. Bea, Nominee to be Circuit Judge for the Ninth 

Circuit, William Q. Hayes, Nominee to be District Judge for the Southern 

District of California and John A. Houston, Nominee to be District Judge 

for the Southern District of California ............................................................... 787

Brown, Willie L., Jr., Mayor, San Francisco, California, letter ........................... 791

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

support of Marcia A. Crone, Nominee to be District Judge for the Eastern 

District of Texas ................................................................................................... 792

DenverPost.com Denver, Colorado, June 12, 2002, article ................................... 793

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, statement in support of William Q. Hayes, Nominee to be District Judge for 

the Southern District of California and John A. Houston, Nominee to be 

District Judge for the Southern District of California ...................................... 795

German, G. Michael, San Francisco, California, letter ........................................ 802

Goldsmith, Ernest H., Judge of the Superior Court of Claifornia, City and 

County of San Francisco, San Francisco, California, letter and attachments 803

Hall, Tony, Supervisor, 7th District, San Francisco, California, letter ............... 815

Hardeman, Michael E., Business Representative, Sign Display & Allied Crafts 

Local Union 510, San Francisco, California, letter ........................................... 816

Mahoney, Patrick J., Judge, Superiror Court of California, San Francisco, 

California, letter and attachments ..................................................................... 823

Mexican American Legal Defense and Educational Fund, press release ............ 824

Migden, Carole, Chairwoman, State Board of Equalization, Sacramento, California, letter .......................................................................................................... 825

Moreno, Carlos R., Associate Justice, Supreme Court of California, San Francisco, California, letter ......................................................................................... 826

Reid, Hon. Harry, a U.S. Senator from the State of Nevada, statement in 

support of Robert Clive Jones, Nominee to be District Judge for the District 

of Nevada .............................................................................................................. 827

San Francisco Labor Council, AFL-CIO, Walter L. Johnson, Secretary-Treasurer, San Francisco, California, letter ................................................................ 828

Page

VII

San Francisco La Raza Lawyers Association, Suzanne G. Rames, Chairperson, 

Judiciary Committee, San Francisco, California, letter .................................... 829

San Francisco Police Officers Association, Chris Cunnie, President, San Francisco, California, letter ......................................................................................... 831

SEIU, Local 790, Latino Caucus, Ricardo Lopez, Chair, Oakland, California, 

letter ...................................................................................................................... 832

WEDNESDAY, SEPTEMBER 17, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 833

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

statement .............................................................................................................. 984

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

statement .............................................................................................................. 986

PRESENTERS 

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

George W. Miller, Nominee to be Judge for the U.S. Court of Federal 

Claims ................................................................................................................... 834

Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland presenting 

Roger W. Titus, Nominee to be District Judge for the District of Maryland .. 835

Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland presenting Roger W. Titus, Nominee to be District Judge for the District 

of Maryland .......................................................................................................... 837

Nelson, Hon. Bill, a U.S. Senator from the State of Florida presenting Margaret Catharine Rodgers, Nominee to be District Judge for the Northern 

District of Florida ................................................................................................. 838

STATEMENTS OF THE NOMINEES 

Miller, George W., Nominee to be U.S. Court of Federal Claims ........................ 911

Questionnaire .................................................................................................... 912

Rodgers, Margaret Catharine, Nominee to be District Judge for the Northern 

District of Florida ................................................................................................. 839

Questionnaire .................................................................................................... 841

Titus, Roger W., Nominee to be District Judge for the District of Maryland ..... 874

Questionnaire .................................................................................................... 876

QUESTIONS AND ANSWERS 

Responses of George W. Miller to questions submitted by Senator Leahy ......... 963

Responses of George W. Miller to questions submitted by Senator Durbin ....... 974

WEDNESDAY, OCTOBER 1, 2003

STATEMENTS OF COMMITTEE MEMBERS 

Page

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

statement .............................................................................................................. 1082

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 989

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

statement .............................................................................................................. 1095

PRESENTER 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York 

presenting Dora L. Irizarry, Nominee to be District Judge for the Eastern 

District of New York ............................................................................................ 990

STATEMENT OF THE NOMINEE 

Irizarry, Dora L., Nominee to be District Judge for the Eastern District 

of New York .......................................................................................................... 993

Page

VIII

Irizarry, Dora L., Nominee to be District Judge for the Eastern District 

of New York—Continued

Questionnaire .................................................................................................... 994

WITNESSES 

Castro-Blanco, James F., Immediate Past President, Puerto Rican Bar Association, New York New York ............................................................................... 1052

Douglass, Lewis L., Justice, New York State Supreme Court, and Chair, 

New York State Commission on Minorities ....................................................... 1053

Hayward, Thomas Z., Jr., Chair Standing Committee on Federal Judiciary, 

American Bar Association, Washington, D.C., and Patricia M. Hynes, 

Former Chair, Standing Committee on Federal Judiciary, American Bar 

Association, Washington, D.C. ............................................................................ 1046

Pesce, Michael L., Presiding Justice, Appellate Term, New York State Supreme Court, Second and Eleventh Districts ..................................................... 1054

QUESTIONS AND ANSWERS 

Responses of Dora L. Irizarry to questions submitted by Senator Durbin ......... 1059

Responses of Patricia Hynes and Thomas Hayward, Jr. to questions submitted by Senator Durbin ................................................................................... 1067

SUBMISSIONS FOR THE RECORD 

Brennan, Bridget G., Special Narcotics Prosecutor, City of New York, New 

York, New York, letter ......................................................................................... 1072

Castro-Blanco, James F., Immediate Past President, Puerto Rican Bar Association, New York New York: 

prepared statement .......................................................................................... 1074

letter, September 28, 2003 ............................................................................... 1077

Douglass, Lewis L., Justice, New York State Supreme Court, and Chair, 

New York State Commission on Minorities, prepared statement .................... 1079

Hayward, Thomas Z., Jr., Chair Standing Committee on Federal Judiciary, 

American Bar Association, Washington, D.C., and Patricia M. Hynes, 

Former Chair, Standing Committee on Federal Judiciary, American Bar 

Association, Washington, D.C., prepared statement ......................................... 1085

Johnson, Sterling, Jr., Senior District Judge, Eastern District of New York, 

Brooklyn, New York, letter ................................................................................. 1099

Pesce, Michael L., Presiding Justice, Appellate Term, New York State Supreme Court, Second and Eleventh Districts, letter ......................................... 1101

ALPHABETICAL LIST OF NOMINEES 

Bea, Carlos T., Nominee to be Circuit Judge for the Ninth Circuit .................... 618

Burns, Larry Alan, Nominee to be District Judge for the Souther District 

of California .......................................................................................................... 375

Castel, P. Kevin, Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 49

Colloton, Steven M., Nominee to be Circuit Judge for the Eighth Circuit ......... 11

Conrad, Glen E., Nominee to be District Judge for the Western District 

of Virginia ............................................................................................................. 397

Crone, Marcia A., Nominee to be District Judge for the Eastern District 

of Texas ................................................................................................................. 648

Feuerstein, Sandra J., Nominee to be District Judge for the Eastern District 

of New York .......................................................................................................... 68

Figa, Phillip S., Nominee to be District Judge for the District of Colorado ....... 668

Floyd, Honry F., Nominee to be District Judge for the District of South 

Carolina ................................................................................................................ 423

Gibson, Kim R., Nominee to be District Judge for the Western District of 

Pennsylvania ........................................................................................................ 457

Hayes, William Q., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 689

Holwell, Richard J., Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 84

Page

IX

Houston, John A., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 718

Irizarry, Dora L., Nominee to be District Judge for the Eastern District 

of New York .......................................................................................................... 993

Jones, Robert Clive, Nominee to be District Judge for the District of Nevada .. 748

McKnight, H. Brent, Nominee to be District Judge for the Western District 

of North Carolina ................................................................................................. 112

Miller, George W., Nominee to be U.S. Court of Federal Claims ........................ 911

Mosman, Michael W., Nominee to be District Judge for the District of Oregon 499

Proctor, R. David, Nominee to be District Judge for the Northern District 

of Alabama ............................................................................................................ 178

Robinson, Stephen, Nominee to be District Judge for the Southern District 

of New York .......................................................................................................... 215

Rodgers, Margaret Catharine, Nominee to be District Judge for the Northern 

District of Florida ................................................................................................. 839

Saad, Henry W., Nominee to be circuit Judge for the Sixth Circuit ................... 309

Sabraw, Dana Makoto, Nominee to be District Judge for the Sothern District 

of California .......................................................................................................... 520

Titus, Roger W., Nominee to be District Judge for the District of Maryland ..... 874

White, Ronald A., Nominee to be District Judge for the Eastern District 

of Oklahoma ......................................................................................................... 761

(1)

NOMINATIONS OF STEVEN M. COLLOTON, OF 

IOWA, NOMINEE TO BE CIRCUIT JUDGE 

FOR THE EIGHTH CIRCUIT; P. KEVIN CASTEL, OF NEW YORK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; SANDRA J. 

FEUERSTEIN, OF NEW YORK, NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF NEW YORK; RICHARD J. 

HOLWELL, OF NEW YORK, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK; H. BRENT MCKNIGHT, 

OF NORTH CAROLINA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT 

OF NORTH CAROLINA; R. DAVID PROCTOR, 

OF ALABAMA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

ALABAMA; AND STEPHEN C. ROBINSON, OF 

NEW YORK, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

NEW YORK 

TUESDAY, JULY 22, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions presiding. 

Present: Senators Sessions, Grassley, and Schumer. 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Good morning. We are delighted you are here 

today, and we have a nice agenda of nominees. I am glad to have 

as Ranking Member for this Committee today Senator Chuck Schumer with us. He is the Ranking Member of the Courts SubVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92637PT4.001 SJUD4 PsN: CMORC
2

committee also, on which we have worked together on a number of 

issues. 

Our tradition, since we have Members of Congress here, would 

be to start with the Senate Members, and I see Senator Shelby, my 

colleague from Alabama, here and I know that you have some remarks to make about the nominee for the district court in Alabama. So I would recognize my colleague, Senator Richard Shelby. 

PRESENTATION OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, 

BY HON. RICHARD SHELBY, A U.S. SENATOR FROM THE 

STATE OF ALABAMA 

Senator SHELBY. Chairman, Senator Schumer, I will be very 

brief, but I think this is very important. I want to commend you, 

Mr. Chairman, for getting this hearing together. 

I appreciate the opportunity to appear before the Committee 

today to introduce David Proctor, the President’s nominee for the 

United States District Court for the Northern District of Alabama. 

Concentrating in labor and employment law, David is an experienced and skilled attorney with an impressive record of trying 

cases in both the Federal and State courts. He has served a broad 

range of individual and corporate clients while also representing 

the State of Alabama, my State, in various matters. 

David is also active in the community, having served on the 

board of Alabama Goodwill Industries for a dozen years, while also 

remaining active in his church and the lives of his wife, Teresa, 

who is here with him today, and his three children. Luke is here; 

he is 12 years old. Jake is 8. And Shelly Grace is 5, but tomorrow, 

Mr. Chairman, will be her birthday; she will be 6 years old tomorrow. 

I and all who know David Proctor have high regard for his intellect and integrity, and I believe that he will make a fine addition 

to the Federal bench. Most importantly, Mr. Chairman, David 

Proctor is a man of the law. He understands and respects the constitutional role of the judiciary and specifically the role of the Federal courts in our legal system. I am confident that he would serve 

honorably and apply the law with impartiality and fairness and, 

thus, I support his confirmation without any reservation. 

Again, Mr. Chairman, I thank you for holding today’s hearing on 

David Proctor’s nomination. I urge the Committee to expeditiously 

report this nomination to the full Senate where we can hopefully 

move it. And, Mr. Chairman, I have some other meetings, and if 

I could leave at this time, I appreciate the time of both of you. 

Thanks. 

Senator SESSIONS. Thank you, Senator Shelby. 

Senator Grassley, would you like to make comments on the Iowa 

nominee? 

Senator GRASSLEY. Yes, I sure do, obviously. 

Senator SESSIONS. You are sitting at that table. You could be sitting up here on my right where you normally sit on this Judiciary 

panel. 

Senator GRASSLEY. Don’t take it personally. 

Senator SESSIONS. All in all, it is better on this side than down 

there, normally. Trust me. 

3

PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. 

CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE 

OF IOWA 

Senator GRASSLEY. Thank you, Mr. Chairman, Senator Schumer. 

I am pleased to be here today to introduce Steve Colloton, who has 

been nominated by President Bush to be a Federal judge on the 

U.S. Circuit Court of Appeals for the Eighth Circuit. He is an outstanding individual with an extensive record of public service and 

an impressive legal career. Steve Colloton will make an excellent 

Federal judge, and I am happy to support his nomination. He is 

here with family members and friends who are extremely proud of 

the work that he has done throughout his lifetime in the law and 

in community service, and they are here to support him. 

I have known some of the family for a long, long period of time, 

and he comes from a sound background that is also probably as 

much to do with his capabilities of being a good judge as his understanding of the law. 

He hails from Iowa City, Iowa, a graduate of Princeton and Yale 

Law School. I have never held that against him. 

[Laughter.] 

Senator GRASSLEY. He went on to serve as a law clerk to Judge 

Laurence Silberman, U.S. Court of Appeals, D.C., and then as a 

law clerk to Hon. William Rehnquist, Chief Justice. After that, he 

worked as an attorney with the Office of Legal Counsel at the Justice Department, and then as Assistant U.S. Attorney in the Northern District of Iowa 8 years, with a brief detail as an associate 

independent counsel in the Office of Independent Counsel. He went 

on to become a partner in a prominent law firm in Des Moines 

where he managed a wide range of civil litigation. 

Steve Colloton returned to Government service right after the 9/

11 terrorist attacks when he was unanimously confirmed by the 

Senate to the position of U.S. Attorney in the Southern District of 

Iowa. In that job, he has focused on making sure that we get the 

bad guys, but at the same time, he has made sure to protect the 

civil liberties that are so dear to us. 

In addition to fighting terrorism, Steve has focused his efforts on 

combating crime and enforcing drug laws. Specifically, under Steve 

Colloton’s direction, the Iowa U.S. Attorney’s office has worked 

hard to implement the Project Safe Neighborhood Program to reduce gun violence and has conducted extensive training for prosecutors and local law enforcement regarding the prohibition of firearms possession by domestic abusers. Steve Colloton has also made 

child support enforcement a top priority, forming a task force with 

State and Federal child support recovery workers and investigators. 

In addition to his stellar legal experience and remarkable public 

service, Steve Colloton has many strong supporters. Let me give 

you some examples of the support he has received from fellow 

Iowans. 

Twenty-seven past presidents of the Iowa State Bar wrote, ‘‘The 

exceptional quality of Mr. Colloton’s experience, together with its 

relevance to this position, uniquely qualifies him to represent Iowa 

on the United States Court of Appeals.’’ 

4

A member of the Polk County Chiefs of Police and Sheriffs Association wrote, and I quote, ‘‘Steve Colloton is the right choice for 

the Eighth Circuit judge position, and we fully endorse President 

Bush’s nomination.’’ 

The interim president of the University of Iowa wrote, and I 

quote, ‘‘Mr. Colloton is a person of highest ethical standards and 

integrity and would be’’—and I continue to quote then—‘‘a superb 

member of the Court of Appeals for the Eighth Circuit.’’ 

Drake University Professor of Law Gregory Sisk wrote, ‘‘Steve 

Colloton is one of the brightest and most thoughtful, hardworking, 

scholarly, and yet simultaneously practically minded attorneys 

likely to be nominated for any judicial position in this State.’’ 

Even people who have worked on the other side of Steve Colloton 

think highly of him. For example, the attorney for Jim Guy Tucker, 

George Collins, wrote the Judiciary Committee, and I quote, ‘‘I am 

convinced Steve Colloton is an honorable man and that when cases 

come before him, he will call them as he sees them. I do not think 

that a conservative litigant demonstrably as such will have any 

better chance before him than any other litigant. I believe that his 

cases will be decided on the law and, to the extent applicable, the 

facts. I respect Steve Colloton and hope that your Committee will 

also respect him and approve the appointment.’’ 

These letters of support show how much confidence people have 

that Steve Colloton will make a great Federal judge. 

As I have said on many occasions in the past, there are a number 

of things that I look for when I assess whether an individual 

should be a Federal judge. I asked whether the judicial nominee 

has the requisite intellect, knowledge, integrity, and judicial temperament to serve on the Federal bench. In addition, I ask whether 

a particular judicial nominee will follow the law. That is the text 

and intent of the Constitution and the statutes ratified and enacted. I believe that Steve Colloton has all of these qualifications. 

I believe that he will follow the law and have a healthy respect for 

case precedent. And I also believe that he understands the role of 

a judge is to interpret the law rather than create it. 

In sum, I strongly believe that Steve Colloton will make an excellent judge of the Eighth Circuit. I urge my colleagues to join me 

in supporting this excellent candidate for the Federal bench. 

Senator SESSIONS. Thank you, Senator Grassley. 

Senator Harkin? 

PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. TOM 

HARKIN, A U.S. SENATOR FROM THE STATE OF IOWA 

Senator HARKIN. Thank you very much, Mr. Chairman, for holding this hearing, and I am pleased to be here with my Iowa colleagues to introduce Steve Colloton, who has been nominated to 

serve on the Eighth Circuit Court of Appeals. 

Steve Colloton, as my colleague has said, is a Yale Law School 

graduate, has been Iowa’s U.S. Attorney in Des Moines since November of 2001. Before then, he practiced law for Belin, Lamson, 

McCormick, Zumbach, and Flynn in Des Moines. He has also 

served as an Assistant U.S. Attorney in Cedar Rapids for 6 years. 

5

Early in his legal career, he clerked for Supreme Court Chief Justice William Rehnquist. 

As Senator Grassley has said, I have known his family in Iowa 

City for a number of years. Mr. Chairman, I supported Steve 

Colloton’s nomination to be U.S. Attorney in 2001, and I urge the 

Committee to give his nomination to the Eighth Circuit Court of 

Appeals full and fair and expedient consideration. And I hope and 

I trust, Mr. Chairman, that this Committee and the United States 

Senate will treat Mr. Colloton more fairly and judiciously than it 

did the last nominee from the State of Iowa to the Eighth Circuit 

Court of Appeals, Bonnie Campbell, who was not even given the 

privilege of a vote on the Senate floor. I hope this nominee will be 

treated more fairly. 

This concludes my statement, and I want to again thank the 

Chairman for holding this hearing. 

Senator SESSIONS. Thank you, Senator Harkin. 

Congressman Leach? 

PRESENTATION OF STEVEN M. COLLOTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT, BY HON. JIM 

LEACH, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF IOWA 

Representative LEACH. Well, thank you, Mr. Chairman, Mr. 

Schumer. Let me just say I am honored to be with my two colleagues from Iowa. I will be very brief. 

I come before the Committee not only as not a member of the 

body but not a member of the Judiciary Committee and not trained 

in the field of law. But I do want to give a sense of community support for Steve Colloton. Steve and I come from the same home 

town, myself more recently than he, but I have known Steve for 

some 20 years. He comes from one of the most respected families 

in Iowa. He as an individual has an exceedingly high intellect, 

great integrity, decency of judgment, fair-mindedness, common 

sense, respect for the law, and I am truly impressed with, in my 

knowledge of Steve, what a natural judicious temperament he has. 

I personally believe he is one of the strongest court nominees in 

memory and will embellish the court, and I would hope the Committee gives Steve every benefit of the doubt. 

Thank you all. 

Senator SESSIONS. Thank you, Congressman Leach, for those 

good words, and we appreciate your service to the country, and we 

are glad that you could join us today. 

Representative Myrick, it is a delight to have you with us. I 

know you want to share your thoughts about the nominee. 

PRESENTATION OF H. BRENT MCKNIGHT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 

CAROLINA, BY HON. SUE MYRICK, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF NORTH CAROLINA 

Representative MYRICK. Yes, thank you very much, Chairman 

and Senator Schumer. I appreciate the opportunity to be here. Both 

of our North Carolina Senators are out of town today, and so I have 

the honor of introducing to you Brent McKnight and his family and 

6

his friends. He has been nominated for a Federal judgeship in 

North Carolina from the Charlotte area. 

Brent has a very impressive resume, which I am sure you have 

seen and I will not go into detail, but I will just simply say to you 

he was a Rhodes Scholar, which I found very, very helpful for what 

he does right now. He is a friend in the sense that I have known 

Brent for a long time. He is one of those people that you would be 

very hard pressed to find anybody in our community who has bad 

things to say about him. He is extremely well respected throughout 

the community, not just the judicial community, because he currently serves as a judge, but the community as a whole. And he 

has impeccable character, and he has a very strong intellect. But 

the thing that impresses me about him is he has common sense as 

well, and he gets along very well with people. Brent relates well 

with people, which is very important with what he does as a judge. 

He also very carefully evaluates his opinions, and you will find 

again in our community that the people who work in the judicial 

system will tell you he is impartial in his decisions. He does what 

is best. 

So North Carolina would be very fortunate to have him as a Federal judge, and I hope this Committee will see its way able to send 

the nomination forward to the full Senate. And, again, I appreciate 

the opportunity to be here today, and I am going to take leave, if 

that is permissible with you. 

Senator SESSIONS. That will be fine, Representative Myrick. And 

I would note, I wonder if you would agree with Senator Elizabeth 

Dole, likewise highly complimentary of Mr. McKnight, and she submitted a statement for the record noting that, yes, he was a Rhodes 

Scholar, but perhaps even impressive to those in North Carolina, 

a Morehead Scholar at the University of North Carolina, Chapel 

Hill, which is quite a prestigious event, too. 

Representative MYRICK. Very, very important in our State and 

nationally. Thank you for mentioning that. 

Senator SESSIONS. Thank you very much. I will offer to put her 

statement in the record. 

Senator Schumer, would you like to make any opening comments? 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I want to thank 

all of our colleagues in the House and Senate and you, Mr. Chairman, for holding these hearings. 

Before I begin, Senator Edwards could not be here to introduce 

Brent McKnight, and he expresses his regrets. And I would ask 

unanimous consent that his statement in favor of Mr. McKnight be 

put in the record. 

Senator SESSIONS. Without objection, yes. 

Senator SCHUMER. And also Senator Leahy’s statement on the 

nominees be put in the record. 

Senator SESSIONS. Without objection, they will be made a part of 

the record. 

Senator SCHUMER. Thank you, Mr. Chairman. And now I want 

to thank you for holding this hearing today and agreeing to put the 

7

four New York nominees on the agenda. This is a fine day for New 

York. Normally we abide by a rule that requires a week from completion of paperwork to a nominee being eligible for a hearing. But 

you and Senator Leahy were willing to waive the rule so that these 

four outstanding nominees could appear before us today. 

The rule could be waived because these four nominees are not 

only excellent and moderate and diverse—those are my three 

standards for choosing judges—but because they have broad bipartisan support, including, most importantly, support from their two 

Senators, myself and Senator Clinton, the White House, and our 

Governor, Governor Pataki. So this is a bipartisan day, and that 

is how it ought to be when we choose judges. It is a stark contrast 

between the pitched battles we are fighting over nominees from 

other parts of the country. 

Stephen Robinson, Kevin Castel, Richard Holwell, and Sandra 

Feuerstein are very moderates. When you look at these four nominees’ records, you have a hard time identifying even one remark 

that looks like it comes from an ideologue or an extremist. 

As I said, I do not believe ideologues, whether from the far left 

or the far right, are good fits for the bench. Ideologues tend to want 

to make the law, not interpret the law, as the Founding Fathers 

in their—I think this is a statement usually used in reference to 

the deity, but in their infinite wisdom. I am so impressing with the 

Founding Fathers the more I am around that it comes close. 

Anyway, that is what they wanted judges to do, interpret the 

law, not make law. And when you have people at the extremes, 

they feel with passion, God bless them, that is part of America. But 

they do not tend to make good judges because they want to impose 

their views on what the law should be. These judges meet my three 

criteria for the judges that I am involved in selecting: excellence, 

legal excellence, all four have it. Moderation, as I said, none are 

at the extremes. And diversity, they are not—each individual is not 

diverse, but as a group of four, they are quite diverse, Mr. Chairman. And so this gang of four gets high marks on all categories. 

Mr. Chairman, over the past several weeks, Governor Pataki, 

Counsel Gonzales, and I have been able to put the finishing touches on an agreement that ensures that all of New York’s current 

and immediately forthcoming vacancies will be quickly filled and 

with judges who will do justice for all New Yorkers. If you compare 

our agreement to a trade between baseball teams, it is one of those 

deals where everyone wins, most particularly and most importantly, the people of New York. 

These four fine candidates will be followed by two more who have 

already been nominated, two we have all already agreed upon, and 

a fifth judge to be named later. And every one of them will be great 

additions to New York’s Federal bench. 

Now, first I want to mention that Senator Clinton had a scheduling conflict that prevents her from being here today, but I have 

talked to her and I know she joins me in thanking the White House 

and Governor Pataki for not playing politics with New York’s 

bench. And I am proud to have played a role in putting these four 

candidates on the court. 

Mr. Chairman, I would note that the Senate has now confirmed 

138 of President Bush’s judicial nominees. By the end of the week, 

8

it could add up to 145. And before the August recess, if we are 

lucky, all four of these New Yorkers will be confirmed, and our 

total for President Bush will be over 150. So for those keeping 

score back home, we have confirmed 150; we have blocked two. We 

may block a few more, but even so, Yankee fans would be envious 

of that kind of win-loss record. And we are doing pretty good this 

year, except for those Atlanta Braves. I don’t know if you root for 

them from the State next door. 

Senator SESSIONS. Yes, I do. 

Senator SCHUMER. We have the next best record in baseball. 

Anyway, when you look at those numbers and you look at the 

quality of the nominees we have produced in New York, you have 

got proof positive there is no obstruction going on from our side of 

the aisle. We are working hard to fill the Federal judiciary with the 

best judges out there, but we have to draw the line at nominees 

who want to make law, not interpret it. 

These four nominees are the best evidence of what happens when 

a bipartisan process works right. Let me introduce each of them 

briefly and present their credentials to the Committee. 

Richard J. Holwell, 56, has practiced for over three decades as 

a litigation attorney with White and Case in New York, where he 

acts as the executive partner in charge of the firm’s global litigation practice. Mr. Holwell is a 1967 graduate of Villanova University and a 1970 cum laude graduate of the Columbia Law School. 

After law school, he studied at Cambridge University on the Columbia–Cambridge fellowship in criminology, and he received a diploma in criminology from Cambridge University in 1971. He is 

currently a member of the American Bar Association, the New 

York State Bar Association, and the Law Society in London. He 

currently serves as chairperson of a panel of the New York State 

Supreme Court Departmental Disciplinary Committee. He is married, his wife is here, and he has two daughters. 

P. Kevin Castel celebrates his 53rd birthday in 2 weeks and was 

born in Jamaica, New York. That means Queens. He received his 

B.S. and J.D. both from St. John’s, also in Queens. He began his 

professional career as a law clerk to Hon. Kevin Duffy in the 

Southern District of New York, before joining the law firm of 

Cahill, Gordon and Reindel, where he has been a partner since 

1983, serving for several years as the firm’s administrative partner. 

Over the years, Mr. Castel has been involved in an array of civic 

activities, including service on the Legal Aid Board of Directors. He 

and his wife, Patricia, have been married for 26 years, and they 

have two lovely daughters who we are fortunate to have with us 

here today. 

Stephen C. Robinson, 46, was born in Brooklyn—that is a very 

good credential, as far as I am concerned—and received both his 

B.A. and J.D. from Cornell. After spending several years in private 

practice, he joined the U.S. Attorney’s Office for the Southern District of New York. Mr. Robinson went on to spend a few years as 

managing director and associate general counsel of Kroll Associates 

before being tapped to be principal deputy counsel and special assistant to the Director of the FBI. From 1995 to 1998, he was counsel and chief compliance officer at Aetna Insurance. With the support from Senators Dodd and Lieberman, President Clinton then 

9

made this great New Yorker the U.S. Attorney for the District of 

Connecticut, where he served from 1998 to 2001. Mr. Robinson’s 

wife, Kathleen Sullivan, was a professor at Yale Law School, and 

she passed away a few years ago. He has done—and I know this 

because I have talked with him personally about it—a wonderful 

job raising their daughter as a single dad, and I know that Kathleen would be tremendously proud of the job Stephen has done as 

a father and that she is smiling down on us today. 

And, finally, Sandra J. Feuerstein has spent 15 years as a judge 

in the courts of New York State. She has a distinguished record of 

judicial service in New York. Since 1999, Judge Feuerstein has 

served as an Associate Justice of the New York State Supreme 

Court Appellate Division. From 1994 to 1999, she served as a Justice of the New York State Supreme Court, and from 1987 to 1993 

as a judge in the Nassau County District Court. Since 1998, Justice 

Feuerstein has served as an adjunct professor of law at Hofstra 

University School of Law. Prior to joining the State bench, Justice 

Feuerstein served for 2 years as a law clerk to Hon. Leo H. 

McGinity. He is administrative judge of the State Supreme Court 

in Nassau County. 

In addition to all that legal experience, she was a public school 

teacher in the New York State Public Schools from 1966 to 1971. 

She attended the University of Vermont and Benjamin N. Cardozo 

School of Law, where she graduated cum laude. 

Justice Feuerstein has a distinguished record of service as a 

judge beyond her work on the bench. In addition to her other major 

roles, she has served as the president of the Nassau County Women’s Bar Association and vice president of the New York State 

Women’s Judges Association. Among other honors, she has been 

named Judge of the Year by the Long Beach Lawyers Association 

and Woman of the Year by the Merrick Chamber of Commerce. 

All four of the nominees—Stephen Robinson, Kevin Castel, Richard Holwell, and Sandra Feuerstein—are here with their families 

and friends. I want them all to know how proud we all are of their 

accomplishments and how honored I am to have played a role in 

their ascending to New York’s Federal bench. 

Thank you, Mr. Chairman. 

PRESENTATION OF R. DAVID PROCTOR, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, 

BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 

OF ALABAMA 

Senator SESSIONS. Thank you, Chuck, and those were good words 

indeed. And I know that the New York bench will benefit from having four new judges there. You have a lot of important cases in 

that district, and always have over the years, and it is always 

maintained a reputation of legal excellence. 

I hope that my colleague does not believe that an advocate who 

has fought for truth and justice is not a moderate and, therefore, 

cannot be a judge. But the nominee— 

Senator SCHUMER. Any particular names in mind? 

Senator SESSIONS. Well, I have one in mind who I believe has 

stood firm for truth and justice, and I do not think he is in any 

way an ideologue or unqualified for the bench. 

10

But the nominee that I would like to call our attention to today 

and speak of highly is, maybe more in your style, not someone that 

has been involved politically or active in any way of that kind, but 

he has all the necessary traits to make an outstanding jurist on the 

Federal bench. I have known David Proctor for a number of years, 

and I have followed his career. He is one of the more respected lawyers in the Birmingham legal community and throughout the 

State, really, on all sides of the bar. He is a working, practicing 

lawyer. This is undoubtedly attributed to his excellent work ethic, 

honesty, and dedication to the rule of law. 

Attorneys that I have personally spoken with describe him as 

level-headed, fair-minded, trustworthy, and highly intelligent. He 

will prove to be an invaluable asset to the very busy Northern District of Alabama and to our country. 

David’s past offers strong evidence of his future promise. He received his bachelor’s degree from Carson–Newman. In 1986, he 

graduated with honors from the University of Tennessee School of 

Law, where he was a member of the Law Review. Immediately 

after graduating from school, he clerked for Hon. H. Emory Widener, Jr., on the Fourth Circuit Court of Appeals. So, in addition 

to practicing in the Federal district courts, he has learned from 

firsthand experience the role a Federal judge must play in the appellate level and in maintaining a docket. This experience cannot 

be gleaned from any other source. 

After his clerkship, he spent 6 years with one of Alabama’s finest 

law firms, Sirote and Permutt. Thereafter, he began his own firm, 

Lahr, Middlebrooks, Price and Proctor. For almost 20 years, David 

has served numerous clients and handled a wide range of challenging civil issues. David understands the Federal courtroom, having litigated approximately 300 cases in Federal court alone, some 

of which proceeded to verdict after full trial. 

From all these experiences, he has learned how lawyers and litigants should be treated at trial, and this is important to me. This 

conclusion is confirmed by the broad support David has earned for 

his nomination. 

I would like to quote from a letter submitted to me by one of the 

State’s most successful trial lawyers, a strong Democrat, Jerry 

Beasley, a leading trial lawyer in the State and one of the most 

successful in the Nation. Although Mr. Proctor is a defense lawyer 

and was generally arguing in positions in opposition to Mr. 

Beasley, Mr. Beasley had this to say about David Proctor: ‘‘I have 

known David Proctor for several years, and he will make an outstanding addition to the Federal bench. He is a man of high moral 

character and unquestioned integrity. His evenhanded temperament and keen knowledge of the law make him well suited for the 

position.’’ 

The praise does not end there. Andrew Allen, a prominent civil 

rights lawyer in Birmingham, offered the following support: ‘‘Although I am a lifelong Democrat and though I have litigated 

against David Proctor and his firm for almost 15 years, I write this 

letter on behalf of David in support of his nomination to serve as 

United States District Judge for the Northern District of Alabama. 

I strongly support his nomination because he is a man of high 

11

moral character, unquestioned integrity, keen intellect, even temperament, and superior work ethic.’’ 

Those are good qualities in a judge. In sum, I believe he will 

make an outstanding addition to the Federal bench and that he 

will ensure an even playing field for all who come before him. He 

has deep roots in the community, which from 1989 to 2000 he 

served on the board of the Alabama Goodwill Industries, which provides employment opportunities for persons with disabilities. He 

has also volunteered countless pro bono hours for A Baby’s Place, 

a home for HIV-positive children. Still other charitable organization have benefited from his dedication, and he is a deacon at 

Briarwood Presbyterian Church. His involvement in the community 

demonstrates a commitment to public welfare, a trait that will 

serve him well as a judge. He has a reputation for integrity, and 

I believe he will be a welcome addition to a bench that needs some 

additional support at this time. And I think he is a professional, 

is experienced, he works well with people. He can manage a caseload, as all of you judges are going to be called upon to do, and that 

strong work ethic. 

At one time, Mr. Chairman, you know, people thought you could 

be a Federal judge and maybe ease off into retirement. But it is 

a busy, tough job today. If you are not prepared to work, you do 

not need the job. 

All right. Anything else we need to do? I would call up—well, no. 

First, U.S. Attorney Steve Colloton, since he is the court of appeals 

nominee, we will start with you first, if you will raise your right 

hand and take this oath. Do you swear or affirm that the testimony 

you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God? 

Mr. COLLOTON. I do. 

Senator SESSIONS. All right. You may take a seat. 

If you would like to make an opening statement or introduce 

your family, we would be pleased to hear from you at this time. 

STATEMENT OF STEVEN M. COLLOTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT 

Mr. COLLOTON. Thank you, Mr. Chairman. I have no formal 

statement, but I do want to thank the Committee for convening 

this hearing. I would like to thank Senator Grassley and Senator 

Harkin and Congressman Leach for introducing me here this morning. 

I would, if I may, like to introduce my family. I am joined today 

by my wife, Deborah, my sisters, Laura and Ann. My parents came 

out from Iowa, John and Mary Ann Colloton, and my brother-inlaw, Chip and my sister-in-law Wendy are here. 

Senator SESSIONS. Maybe they will stand for us. We just want 

to see you all. 

Senator SCHUMER. Very nice. 

Senator SESSIONS. We are glad you are here from Iowa, and 

other places I assume. 

Anything else? 

Mr. COLLOTON. No, that is all. Thank you for that opportunity, 

Mr. Chairman. 

[The biographical information of Mr. Colloton follows:]

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Senator SESSIONS. Mr. Colloton, I appreciate the fact that you 

are a United States Attorney, having had that job myself for a 

number of years. Do you think that is a good experience for you 

for the office that you are seeking, the Court of Appeals? 

Mr. COLLOTON. I do, Senator. I thank you for the question and 

appreciate your comments about the United States Attorney job. It 

has been for me a fine experience in which I have been able to continue my contribution to public service. I have been privy, of 

course, to a wide range of litigation in both criminal and civil areas 

in that capacity, and I have also had a better chance to really understand the administration of justice from a management level in 

that capacity, so I think in all those ways it has been a helpful preparatory experience. 

Senator SESSIONS. Were you an Assistant United States Attorney 

in Iowa, there? 

Mr. COLLOTON. I was, Senator. 

Senator SESSIONS. How long? 

Mr. COLLOTON. From about 1991 to 1999, so about 8 years in the 

Northern District of Iowa, and now I am the United States Attorney in the Southern District, the partner district in the State. 

Senator SESSIONS. Of course, all of your practice as an Assistant 

United States Attorney was in Federal Court before Federal 

Judges, or virtually all of it. Tell me about any observations you 

have about things you would like to do that you think could make 

the legal system better? Do you have any insights that you have 

gained over the years? 

Mr. COLLOTON. Well, Senator, I think particularly in Iowa where 

we are fortunate to have a strong Federal bench and a good solid 

bar, I believe civility among attorneys, civility among the bar is an 

issue that’s always important to lawyers, and I think that we have 

an opportunity to grow in that area through bar relationships, 

bench/bar relationships. So that is one area that I would focus on 

and suggest would be an important area. 

Senator SESSIONS. You were the appellate coordinator in the 

United States Attorney’s Office in the Northern District when you 

were an assistant; is that correct, the appellate coordinator and 

handled appellate work while you were there? What court was that 

in, and do you think that experience would be beneficial to you in 

this job? 

Mr. COLLOTON. Yes, Senator, I do. During my service as an Assistant United States Attorney I ultimately was asked to serve in 

that capacity as the coordinator of appellate litigation for the U.S. 

Attorney in the Northern District of Iowa. This was toward the end 

of my service in the late 1990’s, and that gave me an opportunity 

to manage a range of litigation within the office to appear with 

some regularity before the United States Court of Appeals for the 

Eighth Circuit, which is the court to which I’ve been nominated, 

and I think that among other experiences I’ve had was a very useful and germane experience in preparing me for this potential service if I’m so fortunate to be approved. 

Senator SESSIONS. You have been a litigator. Do you think bringing that experience to the Court of Appeals might be helpful in 

some instances? Do you think in your experience, have there been 

48

times when you think the appellate court might not have quite captured the essence of what was occurring in the courtroom? 

Mr. COLLOTON. Well, far be it from me to say that about a court 

of appeals, Senator Sessions, but I do think that experience as a 

member of the practicing bar and for judges sometimes that come 

from the practicing bar can be an advantage for a court. I have 

been a practicing lawyer for several years now, and my focus has 

been on practicing law. It’s been sort of a case-by-case incremental 

law practice, and I’ve been in the trenches, so to speak, in the District Courts practicing both in the Federal and to some extent in 

the State courts during my time in the private practice, but particularly in the Federal Courts, and I do hope that if I am fortunate 

enough to be approved that my recent experience as a member of 

the practicing bar would bring some insight to the Court of Appeals, yes. 

Senator SESSIONS. The Court of Appeals academic grade points 

are not always determinative in my view, but I think a lawyer who 

shows an aptitude and an interest and is able to handle written 

work as well as litigate, that is an asset to you on the Court of Appeals, and your background as an honors graduate from Princeton, 

and a Yale graduate, having clerked for Judge Silberman on the 

D.C. Circuit, having clerked for the Chief Justice of the United 

States, now Chief Justice Rehnquist. Your experience as an appellate lawyer in the U.S. Attorney’s Office is a really special background for it, and I think from the reputation you have garnered 

as a man of integrity and character and good judgment, those combinations make you a really highly-qualified nominee. We are glad 

to have you. 

Mr. COLLOTON. Thank you, Mr. Chairman, for those kind words. 

I appreciate them. 

Senator SESSIONS. I congratulate Senator Grassley and Harkin 

and the President. 

Senator SCHUMER. Mr. Chairman, since I have to leave soon, in 

the interest of getting on to our next panel, I will just ask consent 

that I be allowed to submit some questions in writing. 

I congratulate the family on their pride in Mr. Colloton getting 

this far. 

Senator SESSIONS. It is a great honor, and one step below the Supreme Court. You will handle a lot of important cases and so far 

you have received extraordinary support and congratulations. 

The good news it here are no more questions, and I thank you 

very much. 

Mr. COLLOTON. Thank you very much. Thank you, Senator. 

Senator SESSIONS. Now we will have the next panel. I think we 

will have room for everybody, do we not? 

Senator SCHUMER. We do. 

Senator SESSIONS. If you will step up, all the district nominees. 

You have taken your seats. I now have to ask you to stand and 

take your oath. If you would raise your right hand and take this 

oath. 

Do you swear or affirm that the testimony you are about to give 

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

help you God? 

Mr. CASTEL. I do. 

49

Judge FEUERSTEIN. I do. 

Mr. HOLWELL. I do. 

Judge MCKNIGHT. I do. 

Mr. PROCTOR. I do. 

Mr. ROBINSON. I do. 

Senator SESSIONS. Thank you very much. 

Senator Schumer, I know you have got some nominees here, people you care about, and I will yield to you at this time. 

Senator SCHUMER. Thank you, Mr. Chairman. I will not ask long 

questions of the nominees. I will reserve the right to submit other 

questions in writing, but obviously, I am very familiar with four of 

the six and have heard good things about the other two. So I have 

one question for every nominee, and unfortunately, you have to answer it first— 

Senator SESSIONS. I normally ask them to tell about their families or if you need to go first— 

Senator SCHUMER. No, no. One of the joys I get is seeing the families, so I would like that. 

Senator SESSIONS. I guess we can start over here with Mr. Castel. If you want to give a brief opening statement or any comments, 

then introduce your family, that would be fine. 

STATEMENT OF P. KEVIN CASTEL, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

Mr. CASTEL. Thank you very much, Mr. Chairman. 

I am delighted that at this moment my wife, Patricia, and my 

daughter, Jeanne, are in New York following this on 

capitalhearings.org, and my young daughter, Allison is at camp. So 

I am here today on my own, and very happy to be here. 

I have no opening statement. 

[The biographical information of Mr. Castel follows:]

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Senator SESSIONS. Judge Feuerstein? 

STATEMENT OF SANDRA J. FEUERSTEIN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK 

Judge FEUERSTEIN. Good morning, Mr. Chairman. Good morning, 

Senator Schumer. 

I have no formal opening statement, but I would like to welcome 

family and friends here today. First of all my mother, Judge Annette Elstein, who is an Immigration Judge; my husband, Albert, 

who was born in Brooklyn, Senator Schumer. That’s good, right? 

[Laughter.] 

Judge FEUERSTEIN. My terrific sons, Adam Feuerstein, who is 

here with his wife, Karen and my granddaughter, Arielle; my wonderful son, Seth, who’s here with his wife Sharon and my 

grandsons. I think they’re watching on closed circuit TV which is 

why it’s quiet here. My grandsons Jacob and Joshua. My dear 

friends, Joan Katz, Phil and Joyce Glickman, Nan Weiner, Dale 

Twillis and Arlene Zalayet, have also accompanied me here today. 

Senator SESSIONS. Outstanding. We are glad that you are all 

here. 

Senator SCHUMER. If they are in the room, could we have them 

stand? I just like to see them. It is nice. 

Judge FEUERSTEIN. Well, I would like you to see Arielle’s dress 

because it’s quite spectacular, but perhaps afterwards. 

Senator SCHUMER. Welcome. 

Senator SESSIONS. Thank you. 

Judge FEUERSTEIN. Thank you. 

[The biographical information of Judge Feuerstein follows:]

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Senator SESSIONS. Mr. Holwell? 

STATEMENT OF RICHARD J. HOLWELL, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

Mr. HOLWELL. Thank you, Senators. I too have no prepared remarks, but I would like to introduce my beautiful wife of 32 years, 

Nancy; my two wonderful daughters, Ana and Eve; my sister-inlaw Barbara; and my good friend, Hon. Paul Friedman, a District 

Court Judge here in the District of Columbia. 

Senator SESSIONS. Very good. If you would stand. We are delighted to have you with us. 

[The biographical information of Mr. Holwell follows:]

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Senator SESSIONS. Judge McKnight? 

STATEMENT OF H. BRENT MCKNIGHT, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 

CAROLINA 

Judge MCKNIGHT. Thank you very much. I have no formal opening statement. I am honored to be here. I would like to thank Senators Edwards and Dole for their support, and Congressman 

Myrick for coming and speaking today. 

In addition, my wife, Beth, I would like to introduce, and my 

sons, Brent, Matthew and Stephen. This is their first introduction 

really to Washington, and they are learning a lot. I’m so proud and 

happy to have them here. 

In addition, my father-in-law and mother-in-law, Charles and 

Sherry Herion are here, as well as some friends. Howie and Debbie 

Donahoe and their sons Chris and C.J.; John and Carol Sittema; 

and Larry and Barbara Gregory. I hope I’ve got them all, and if 

we could— 

Senator SESSIONS. Yes, if you would stand, we would appreciate 

it. It is good to see the boys there. I got to meet them earlier. Very 

good, thank you. 

[The biographical information of Judge McKnight follows:]

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Senator SESSIONS. David Proctor. 

STATEMENT OF R. DAVID PROCTOR, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA 

Mr. PROCTOR. Yes, sir. Thank you, Mr. Chairman, and thank 

you, Senator Schumer. 

My lovely wife, you’ve heard the line my better half, she’s my 

better nine-tenths. Teresa is here, along with our children, Luke, 

Jake and Shelly Grace. And Senator Shelby was nice enough to 

mention Shelly’s birthday is tomorrow. We are very pleased that 

she could be here for that. 

Also I have—my mother is unable to travel. She’s in a retirement 

community in St. Petersburg, Florida, but her brother and sister, 

David Ames and Tootie Brown are here, along with David’s wife, 

Carol, and Tootie’s children Alec Brown and Liz Repass, who are 

my cousins, and Liz’s son, John Thomas. They’ve traveled up from 

Salem, Virginia to be with us today. 

I would like to thank you. It’s an honor and privilege to be here 

before you. 

Senator SESSIONS. Thank you. If you would please stand. Happy 

birthday, Shelly Grace. Since it is not today, I will not sing, not 

that I could. 

Senator SCHUMER. He would not sing tomorrow either, Shelly 

Grace. [Laughter.] 

[The biographical information of Mr. Proctor follows:]

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Senator SESSIONS. Mr. Robinson. 

STATEMENT OF STEPHEN C. ROBINSON, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

Mr. ROBINSON. Thank you, Mr. Chair. Senator Schumer, thank 

you so much for your kind remarks. In particular, thank you for 

mentioning my wife, who I hope is watching and would be proud, 

not so much that I’m here today, but mostly proud of our daughter, 

who has grown to be a fine young lady, and she is here with us 

today, Victoria. 

Unfortunately, my mother, Yvonne Robinson, and my two brothers, Guy and Chester, are not here today, but they are back at 

Brooklyn anxiously awaiting word on the events of today. 

I also would like to thank Senator Clinton and Senators Dodd 

and Lieberman for their long-term friendship and support that I’ve 

enjoyed over the years. Thank you very much and I’m very happy 

to be here. 

Senator SESSIONS. Very good. 

Mr. ROBINSON. If Victoria could just stand for a moment. 

Senator SESSIONS. Yes, excuse me. Hello. 

[The biographical information of Mr. Robinson follows:]

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Senator SESSIONS. Senator Schumer? 

Senator SCHUMER. Thank you. I always enjoy seeing the families. 

It is a nice day. And to see the family’s pride in their loved one 

before us is a wonderful thing. 

I just have one question. Before I do that, I do want to ask you 

something, Mr. Castel. I have a daughter, Allison, a young daughter, who is also in camp right now, so we share something in common. My daughter is 14. 

Mr. CASTEL. Mine is going to be 13 on September 7th, and she 

also plays CYO basketball, as I know your daughter does. 

Senator SCHUMER. Yes, she does. My daughter is a—I loved 

sports, but I was not—our team’s motto in high school was: ‘‘We 

may be small, but we are slow.’’ 

[Laughter.] 

Senator SCHUMER. My daughter has a gift from God. She is just 

a great athlete, and she loves sports, and she is at sports camp actually up in the Catskills, Kutcher Sports Academy. 

Anyway, my one question for all the nominees is this, and unfortunately you have to answer it first, Mr. Castel. Can you name for 

me a judge, could be at your local level, could be at the national 

level, but a judge you admire and would hope to—we all have role 

models we look up to as we move forward. That is what I would 

ask each of you. 

Mr. CASTEL. Well, I may be criticized for being someone who is 

trying to influence a future colleague, but Chief Judge Mike 

Mukasey in the Southern District is somebody who I do admire 

greatly. He has a terrific temperament. He has shown backbone 

and courage, and I have a very high regard for him, and I have 

a very high regard for him, and I have to quickly mention before—

not to take Senators’ time—but my own personal mentor, Hon. 

Kevin Thomas Duffy for whom I clerked and who is still sitting on 

the Southern District Bench. He has been a great influence on me. 

I thank you for the question, Senator. So I don’t get into trouble, 

I want to mention that my brother-in-law, Kevin McLernon, has arrived in the Senate room and is here. Thank you. 

Senator SCHUMER. Thank you. 

Judge Feuerstein? 

Judge FEUERSTEIN. I actually can’t think of one person in particular, but there are certainly— 

Senator SCHUMER. Name a few. 

Judge FEUERSTEIN. There are attributes that I think go into 

making a good judge, and beyond being a good judge, a good person, and as far as judges go, I would have to say Judge Arthur 

Spatt, who sits in the Court which hopefully I will someday sit in; 

and Judge Leo McGinity, with whom I worked for many years, and 

who is now a colleague of mine on the appellate division. Judge 

Marie Santagata, and of course, as a role model for women, Justice 

Sandra Day O’Connor in the Supreme Court. 

Senator SCHUMER. Mr. Holwell? 

Mr. HOLWELL. Thank you for the question, Senator. The two that 

stand out in my mind of the judges I’ve practiced before, I would 

have to mention Judge Gagliarti from the Southern District, who 

was a man of great demeanor and great measure, and Judge 

235

Weinfeld, also of the Southern District, who was a man of great intelligence and brilliance. 

Senator SCHUMER. Thank you. 

Judge McKnight? 

Judge MCKNIGHT. Thank you, Senator. If I could name a few as 

well? 

Senator SCHUMER. Please. 

Judge MCKNIGHT. In terms of a judge that’s known nationally, 

someone I greatly admire, is Learned Hand, for his fidelity to the 

law and to the facts, his precision of analysis and language, his 

courage in his defense of liberty. 

At the local level, I’ve been a judge on the State Court as well 

as the Federal Court, and four come to mind. The Honorable Sam 

Ervin of the Fourth Circuit Court of Appeals, again for his courage 

and fidelity to the law, and understanding of trials and how they 

work; James B. McMillan for his courage in the Charlotte–Mecklenburg integration; Graham Mullen, my chief, for his attention to 

the details of the Court as well as to the ideals of the Court; and 

Frank W. Snepp, who is now deceased, but on the North Carolina 

State Superior Court, who taught me much. 

Senator SCHUMER. Thank you. 

Mr. Proctor? 

Mr. PROCTOR. Yes. Senator Schumer, thank you for the question. 

I would have to start with Judge Widener, who I had the privilege 

of clerking for and who really introduced me to the Federal Court 

system. We’ve had two very high-quality chief judges, one retired 

now, Sam Pointer, who works at the Birmingham firm of Lightfoot, 

Franklin and White, and I look forward to hopefully, if I’m fortunate to be confirmed, to serve under Judge Clemon, who I’ve gotten 

to know quite well over the years in both a legal and a personal 

way. 

Senator SCHUMER. Mr. Robinson? 

Mr. ROBINSON. Thank you for the question, Senator Schumer. If 

I am fortunate enough to be confirmed, I would have the great 

honor of serving with several judges whom I have practiced before 

and have gotten to know and admire and respect greatly. One has 

been mentioned by Mr. Castel, Chief Judge Mike Mukasey. He’s a 

judge who has shown great integrity, great courage in the work 

that he’s done, and also a sense of humor and a good rapport with 

both colleagues on the bench and the practitioners before him. 

Secondly, I would mention Judge Keenan. As a young Assistant 

United States Attorney I was fortunate enough to try three cases 

before Judge Keenan, and admired the way he conducted his courtroom, and treated even a very green, young Assistant United 

States Attorney, and did one of the most impressive things that 

ever happened to me in my career. He actually asked me to bring 

my mother in so that he could talk to her in chambers without me 

present. And to this day I’ve never found out the content of that 

conversation, but at least I am happy to say my mother did not disown me. But I’ve always respected him, and the way he worked a 

courtroom, the way he treated counsel, and then both of their 

knowledge and fidelity to the law. 

And the last I’ll mention is Judge Lynch, who was the Chief of 

the Criminal Division when I was an Assistant United States AtVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00247 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\92637PT4.001 SJUD4 PsN: CMORC
236

torney, and has been a person who has been very influential to me 

and very supportive of me. He’s a giant intellect, a person of great 

integrity, and someone I admire greatly. 

Senator SCHUMER. Thank you. I want to thank you all. I apologize to the Chair and all of you that I have to be gone, but I congratulate all of you on your nominations and look forward to your 

confirmations. 

Mr. CASTEL. Thank you, Senator. 

Judge FEUERSTEIN. Thank you, Senator. 

Mr. HOLWELL. Thank you, Senator. 

Mr. PROCTOR. Thank you, Senator. 

Mr. ROBINSON. Thank you, Senator. 

Senator SESSIONS. I just have a few questions I would ask you. 

One of the questions that is important is understanding the role of 

courts. This is the last opportunity the people just about, except 

when the matter is on the floor and then there are no questions 

to be asked, this is really the only chance in which the people get 

to ask you, will you be true to the constitutional framework? Because when a judge declares that the Constitution says something, 

you have a lifetime appointment, and it is difficult to deal with if 

that is not accurate. 

So we would like to know, do you understand the role of the 

court, what do you understand with regard to the role of the court 

and your responsibility to follow the law as it is existing, as exposed to expansive interpretations of the law? 

Mr. CASTEL. Thank you for the question, Mr. Chairman. 

I think an affection for the rule of law in our constitutional system means a tremendous respect for the separation of powers. The 

role of the legislature, the executive, and the judiciary have to be 

confined to their respective domains if our system is going to work. 

I would view my job, if I were confirmed, as not only following the 

precedent handed down from the Supreme Court and the Court of 

Appeals, but also at the same time, respecting the boundaries, not 

trying to play amateur legislator in any respect. I appreciate the 

question. It’s a very important question, and I believe in the separation of powers doctrine down to my toes. 

Thank you very much. 

Senator SESSIONS. Thank you very much. 

Judge

Judge Feuerstein. Thank you for the question, Mr. Chairman. I 

agree with Mr. Castel as far as the separation of powers and following precedent. I presently sit on an appellate court, so I am 

really in favor of this. 

[Laughter.] 

Judge FEUERSTEIN. I view a judge’s role as interpreting and not 

creating law. That is the job of the legislature, and I believe that 

my career on the bench has demonstrated my execution of my duties with respect for separation of powers and precedent. And that 

would be the end of my statement. Thank you. 

Senator SESSIONS. Thank you. 

Mr. Holwell? 

Mr. HOLWELL. Thank you, Mr. Chairman. I agree with Mr. Castel and Judge Feuerstein. Judicial restraint surely ha to be the 

touchstone of the court system, particularly at the District Court 

237

level. No one elects a District Court Judge, and yet he sits or she 

sits for a lifetime, and it’s particularly imperative for judges to understand that great power cannot be abused, and the deference 

must be paid to the other branches of the Government. 

Senator SESSIONS. Judge McKnight? 

Judge MCKNIGHT. Thank you, Mr. Chairman. If I am so fortunate as to be confirmed, it is my deep-seated belief, one that I’ve 

acted on in 14 years now as a judge, that the role of the judge is 

precisely to interpret the law as it is given to him or her, not to 

make law, not to expand beyond the law, not to play legislator, but 

to follow precedent, honestly, fairly, with integrity, to respect precedent that is established, to follow the statutes and give a precise 

and fair interpretation of the statutes, and do my best with what 

is given to me, to apply it to specific fact situations accurately and 

justly. Thank you. 

Senator SESSIONS. Thank you. 

Mr. Proctor? 

Mr. PROCTOR. Thank you, Mr. Chairman. When I clerked for 

Judge Widener, that was ingrained in my from the beginning of my 

legal career, that we should respect the rule of law; we should decide cases and controversies from the meaning of the Constitution 

and not try to legislate, and that we should seek the narrowest 

holding possible and not overwrite from the bench. And I’m committed to virtually all the things I’ve heard my co-panelists say, 

but I think you know from our conversations before, I am committed deeply to the rule of law and the fact that a judge has an 

inherently limited Federal judicial power invested in him by the 

Constitution, and I would uphold that duty if I was so fortunate 

to be confirmed. 

Senator SESSIONS. Very good. 

Mr. Robinson? 

Mr. ROBINSON. Thank you, Mr. Chair, for that question. I think 

it is an important one, and let me start briefly by saying I agree 

with my colleagues. I have a deep and abiding respect for the rule 

of law. I have tried to show that and live that as an Assistant U.S. 

Attorney, as Deputy General Counsel of the FBI, and again as a 

U.S. Attorney. 

I believe that the way this system works well is for judges to follow the precedent that has been set before them and to rule narrowly, as narrowly as possible, with an eye towards the law as it 

has been set forth. We are not legislators. We have not been elected. We have not chosen that path in life. But we have chosen to 

participate in an executive—I mean in a judicial, in a co-equal 

branch of the Government, and that’s important, but it’s also important for us to understand our role in that process, and that is 

not to legislate, but to interpret and follow the law. 

Senator SESSIONS. I think you have answered that well. There 

will be temptations. There will be times when somebody would 

want you to rule in a way that you think would really be good public policy perhaps, but it is not supported by the law, and the more 

I look at the strength of the United States, the more I am convinced that this Nation’s fundamental power and ability to grow 

and progress is based on the rule of law. You look at the countries 

like Hong Kong, that have a legal system, how they flourish when 

238

other countries around them are not doing well. New York, for example, has these complex commercial cases affecting the whole 

world a lot of times, and plus we are having those all over the 

country now, in Alabama and everywhere else. 

But people invest here. They believe in doing business with 

Americans. We are able to be competitive in the world marketplace 

because people think they can get justice in our courts, and they 

are not worried about an investment. You think about the idea of 

an average citizen can borrow $150,000 to buy a house and pay it 

back at less than 6 percent interest over 30 years, this is a tribute 

to our legal system. It has really been a source of our strength, and 

I do believe that some opinions in recent years have gone beyond 

a legitimate interpretation of our law, and I think it undermines 

public respect for law, and if the public ever believes that judges 

are nothing more than politicians too like us, then I think that 

great respect and reservoir of respect that exists could be undermined. 

Let me ask you this, now briefly, each one of you. The challenge 

of a Federal District Judge is great. There are a lot of pressures 

and a lot of intensity, a lot of deadlines that have to be met. Frequently there are injunctions and things that require weekends 

and nights. The backlog is there. Clients have large amounts of 

money at stake. Are you willing to see yourself as a servant to the 

system, and if need be, put in extraordinary hours and manage 

your docket effectively? It is certainly not an easy job. 

Do you have any thoughts about that, Mr. Castel? 

Mr. CASTEL. Thank you, Mr. Chairman. I do have some thoughts. 

First of all, I think, and I probably can say this about my co-panelists, you don’t get to this table unless you have an incredible work 

ethic, and I think you really particularly—my familiarity tends to 

be more with the Federal Courts in New York. It is a crushing 

load. It is hard work. I’ve told my family, because they’ve asked the 

question, you know, will I be working harder or less hard than I 

am now, a partner in a law firm. My answer is probably over at 

least the next 3 years until I get my sea legs, I anticipate probably 

working harder, but it’s responsibility that I eagerly embrace. 

Thank you, Senator. 

Senator SESSIONS. Thank you. 

Judge Feuerstein? 

Judge FEUERSTEIN. Thank you for the question, Mr. Chairman. 

I presently sit in what I believe is the busiest appellate court in 

the country, and so I am used to work, and as Mr. Castel has said, 

I believe everyone on this panel probably is. I have never shirked 

it. I look forward to the challenges if I am fortunate enough to be 

confirmed. And frankly, when you love what you do, it’s not a hardship. 

Senator SESSIONS. Well said. 

Mr. Holwell? 

Mr. HOLWELL. Mr. Chairman, I agree with a statement you made 

earlier, that if it were ever true, it certainly is not the case that 

one can retire to the bench. The extraordinary demands on the judiciary can only be met by people continuing to put their shoulder 

to the wheel of labor. I think what Mr. Castel said is correct, we’ve 

239

all done that to get this far, and should we be so lucky as to be 

confirmed by the Senate, we will continue in that vein. 

Senator SESSIONS. Good. 

Judge McKnight? 

Judge MCKNIGHT. Mr. Chairman, thank you for the question. In 

my time on the bench I have seen the importance of it over and 

over again. When I was a State judge we have a very overburdened 

court system in Charlotte, and I worked hard to manage the docket 

there and did so. Likewise on the Federal bench as a Magistrate 

Judge, we have one of the highest weighted caseloads in the country, and I have, I believe, effectively manage the cases. 

But let me just say this. My commitment is to work hard, to put 

in the hours and give each case the time and thought it deserves, 

and I will do so. 

Senator SESSIONS. Judge McKnight, do you have any comments 

on the role of the magistrate for your fellow judges to be? I know 

in the Southern District of Alabama, where I practiced for a number of years, the magistrates were given a lot of work and they responded very well. It is a prestigious position, and you got quality 

nominees and they did quality work. Do you think some judges, 

district judges around the country could use magistrates more effectively? 

Judge MCKNIGHT. Thank you, sir. I believe so. I have been very 

fortunate in the Western District, that the District Judges who reviewed and supervised my work, have allowed me to work to the 

full extent of the statute, which has been expanded in terms of the 

responsibility of the magistrate judge several times since 1980, and 

I would encourage judges to make full use of it. It, of course, takes 

loads off of them and gives them time to focus on their role, what 

is important. And yes, sir, I would underscore their role as strongly 

as I could. 

Senator SESSIONS. Mr. Proctor? 

Mr. PROCTOR. Thank you, Mr. Chairman. I think the reason that 

I have sought this position is a call to service, a call to service of 

my country, the people of Alabama and my colleagues in the bar. 

I plan to bring the diligence and work ethic I’ve demonstrated as 

a lawyer and that I’ve been taught by my partners, such as Richard Lehr and David Middlebrooks, and from some of my former 

partners at my old firm, like Steve Brickman and Brad Sklar. I 

hope to bring that diligence and work ethic to the bench. And I certainly agree with your comment that you’ve shared with me before, 

that this is not a retirement job, this a roll-your-sleeves-up-and-getto-work job. 

Senator SESSIONS. You have that reputation as a worker. 

Mr. Robinson? 

Mr. ROBINSON. Thank you, Mr. Chairman. I agree with my colleagues again. I have always been a person who has worked extremely hard, in large part because I enjoy that, and that’s what 

the jobs that I’ve been in require. And should I be fortunate enough 

to be confirmed, I would pledge that the question for me will not 

be am I putting in the hours that I will work diligently so that everyone who appears before the bench has the confidence that their 

case has been heard, that their voice has been not only listened to 

but heard by the Court, and that a careful and thoughtful process 

240

has been engaged in and a decision reached. And I think that 

that’s important, not only for myself going forward in the job, but 

for the confidence that litigants and parties have before the Court. 

So I think that’s extremely important that we all do that, and have 

tremendous faith, having gotten to know my colleagues at the table 

recently, that we will all do that. 

Senator SESSIONS. I agree. This is a first rate panel. We are glad 

you are here. There are litigants that have filed motions that ought 

to be granted, and the sooner they are granted, the better things 

happen in the legal system. I know you will do that. Your backgrounds have held up. You have been investigated by your bar association and by the President and by the FBI, by the staff of the 

U.S. Senate, and you have passed a whole lot of hurdles to get 

here. I think each one of you represent the best of the legal system 

of America. I look forward to your confirmations. 

If there is nothing else at this point, we will be adjourned. But 

I will note that the record will be open for further questions that 

you may receive in the form of written questions. Anything else? 

If not, we are adjourned. 

[Whereupon, at 11:11 a.m., the Committee was adjourned.] 

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

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NOMINATIONS OF HENRY W. SAAD, OF MICHIGAN, NOMINEE TO BE CIRCUIT JUDGE FOR 

THE SIXTH CIRCUIT; LARRY ALAN BURNS, 

OF CALIFORNIA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA; GLEN E. CONRAD, OF VIRGINIA, NOMINEE TO BE DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF VIRGINIA; 

HENRY F. FLOYD, OF SOUTH CAROLINA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF SOUTH CAROLINA; KIM R. GIBSON, OF PENNSYLVANIA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; MICHAEL W. 

MOSMAN, OF OREGON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF 

OREGON; AND DANA MAKOTO SABRAW, OF 

CALIFORNIA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA 

WEDNESDAY, JULY 30, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:17 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch presiding. 

Present: Senators Hatch, Specter, Sessions, Graham, Leahy, 

Feinstein, Feingold, Durbin, and Edwards. 

Chairman HATCH. I apologize for being a little bit late. I have 

been in since 6:00 and I am still having trouble keeping up with 

it all, and I apologize to my colleagues who have had to wait. I 

apologize to my colleagues on this Committee. 

Senator LEAHY. I can vouch for the fact that he was here at 6:00. 

I looked out the window and I saw him coming in. 

[Laughter.] 

272

Chairman HATCH. Leahy does not even get out of bed at 6:00, I 

have to tell you. I have been around him. I cannot blame him. 

I am going to forego, or at least hold off on my statement. Should 

we hold off on our statements so that we can accommodate our fellow Senators? If you do not mind, we will start from your right and 

go to the left, and start with you, Fritz. Senator Hollings, we will 

call on you to speak first, then John Warner. Excuse me. We are 

going to have Senator Feinstein go first because she has an amendment on the floor and has asked to speak first. 

Senators Levin and Stabenow have asked for 45 minutes to 

speak and have agreed to follow all of the other Senators. I will ask 

them and Congressman Rogers to come to the witness table. You 

are due on the floor too and you want to speak. 

So we will go with Senator Feinstein, then with Senator Specter, 

and then we will go to Senator Hollings. 

PRESENTATION OF LARRY ALAN BURNS AND DANA MAKOTO 

SABRAW, NOMINEES TO BE DISTRICT JUDGES FOR THE 

SOUTHERN DISTRICT OF CALIFORNIA, BY HON. DIANNE 

FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Mr. Chairman, let me thank you very much 

for this courtesy. I really do appreciate it, and I will try to be very 

brief. 

I am very pleased to introduce to the Committee two Southern 

District of California nominees, Larry Burns and Dana Sabraw. 

These nominees will fill two of the five new Southern District 

judgeships created by the Department of Justice reauthorization 

legislation enacted last year. The screening committee submitted 

their names to the President in March, who then nominated them 

in May. I think their presence here really represents a very successful conclusion to what was a multi-year effort to address a tremendous caseload crisis in the San Diego area. 

I would very much like to thank the Chairman and the Ranking 

Member without whom these judgeships would not have been created, so thank you very, very much. 

Until these judgeships were authorized, the Southern District of 

California had a weighted caseload average of approximately a 

thousand cases per judge. This is the highest in the country and 

more than twice the national average. I hope we can confirm Judge 

Sabraw and Judge Burns as quickly as possible because the District truly needs them. They have a very heavy caseload of complex 

and heavy cases including some large narcotics cases. 

I am pleased to report that both judges come unanimously endorsed by the California Bipartisan Judicial Selection Committee. 

They are two more examples of how well this process can work if 

Democrats and Republicans approach the issue collaboratively. 

Judge Burns is joined at today’s hearing by his wife Kristi and 

his two sons, Andrew, 17 and Adam, 15. Could you all stand up so 

the Committee could acknowledge your presence? We are delighted 

to have you here. Thank you very much. 

Judge Burns is a lifetime California resident, graduated from the 

University of San Diego Law School in 1979. The American Bar Association unanimously rated him well qualified, its highest rating. 

273

Since 1997 he served as a magistrate in the Southern District 

where he has garnered rave reviews. Notably, he received the 

Judge of the Year award from the Consumer Trial Lawyers of San 

Diego. 

Prior to his service on the bench, Judge Burns worked as an Assistant U.S. Attorney in the Southern District of California from 

1985 to 1997 and as a Deputy District Attorney from 1979 to 1985. 

He has tried over 150 criminal cases to verdict. 

During his time in the U.S. Attorney’s Office, he enjoyed one of 

the most distinguished careers of any U.S. Attorney in the Southern District’s history. His career reflects increasing levels of responsibility including positions as Chief of the Violent Crimes Sections and Deputy U.S. Attorney, the third-ranking position in the 

office. He had received superior performance awards from the Department of Justice in 1989, 1990, 1991 and 1992. He was only the 

second prosecutor from San Diego to be inducted into the American 

Academy of Trial Lawyers, which is an invitational organization 

limited to the best trial lawyers on both the criminal and civil defense side of the United States. A number of his professionals give 

him their highest marks, but in the interest of time I will just, if 

I may, enter those comments into the record. 

Chairman HATCH. Without objection. 

Senator FEINSTEIN. Thank you. 

I am equally pleased to introduce Southern District of California 

nominee, Dana Sabraw, to the Judiciary Committee. He is joined 

by his wife, Summer Stephan, his son, Jack, age 12, and his twin 

daughters, Stephanie and Kimberly, age 10. I am very partial to 

girls, age 10. I would like to ask the family to stand so that we 

might see them as well. Thank you very much for being here. We 

really appreciate it. 

I also understand that John Yang, the President of the National 

Asia–Pacific American Bar Association, is in attendance as well. 

Could you please rise, Mr. Yang, so that we could see you. Thank 

you very much. 

Chairman HATCH. We are happy to welcome all of you here. 

Senator FEINSTEIN. Judge Sabraw is another exemplary candidate. Like Judge Burns, he received a unanimous well-qualified 

rating from the ABA. He, again, similarly, earned his undergraduate degree from San Diego State University, and his law degree from the University of the Pacific in 1985. He was a member 

of the Law Review and the school honor society, graduating in the 

top 10 percent of his class. 

After law school he worked for the oldest law firm in Santa Barbara called Price, Postel and Parma. He then became associate and 

partner in the firm of Baker and McKenzie, one of the largest law 

firms in the world. 

Judge Sabraw was appointed by California Governor Pete Wilson 

to the Municipal Court in 1995 and then to the Superior Court in 

1998. As a judge he has tried nearly 200 cases ranging from serious felonies to multi-party complex civil litigation. 

He has remained active in the community despite his daunting 

workload. He is past president of the Oliver Wendell Holmes Inn 

of Court. He has also been on the Board of Directors of the Asian 

Business Association, the Falcons Youth Baseball, the San Diego 

274

County Judges Association and the Pan–Asian Lawyers. Judge 

Sabraw founded the Positive Impact Program in 1998, and through 

this program, it is kind of interesting, judges, attorneys and community volunteers have educated over 6,000 fifth graders about the 

justice system. He has the endorsement of the Mayor of San Diego, 

Dick Murphy, who says that his skill, judgment and integrity 

would bring honor to the Federal bench. 

I would like to end on that note. I think we have two very distinguished nominees. Again, an evenly-divided bipartisan screening 

panel found them eminently qualified, and unanimously presented 

them to the President of the United States. 

Thank you for the courtesy, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. We will turn to Senator 

Specter. 

Senator SPECTER. Well, thank you, Mr. Chairman. I too am about 

to offer an amendment on the Energy bill, but I think Senator 

Cantwell will be there for a little bit longer, and I know two of my 

senior colleagues here, so I would defer to Senator Hollings and 

Senator Warner, and then ask for recognition to introduce a Pennsylvania nominee. 

Chairman HATCH. That would be fine, but I think what I am 

going to do is let both South Carolina Senators go if I can. Is that 

okay with you, because Senator Graham is here, so we can keep 

it consistent? 

Senator SPECTER. That is acceptable, Mr. Chairman. 

Chairman HATCH. Senator Hollings, we will turn to you now. 

Glad to have you here. 

PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY 

HON. FRITZ HOLLINGS, A U.S. SENATOR FROM THE STATE 

OF SOUTH CAROLINA 

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

distinguished members of the Committee. In deference to all of us 

here who have business on the floor, let me ask that my full statement be included in the record as if delivered. 

Chairman HATCH. Without objection. 

Senator HOLLINGS. I would ask Judge Henry Floyd and his wife 

to stand. Also we are honored to have the Chief Justice of our State 

Supreme Court Jean Toal. 

Chairman HATCH. Welcome. We are so happy to have you all 

here. 

Senator HOLLINGS. We welcome you to the Committee. 

Chief Justice Toal says Henry Floyd is the ‘‘go to guy.’’ Any time 

they have a problem at the Supreme Court level, they have been 

going to him at the Circuit bench level for the past 12 years. Specifically, he has the unanimous well-qualified American Bar Association rating. He is a three-term State House Representative. I 

could go down on and on, on all the different experiences he has 

had in the 20 years at the bar. 

Specifically he has balanced judicial temperament, Mr. Chairman. He does not go around harassing people about religion. He 

has a professional work ethic and a sharp legal mind. He does not 

go around publicly campaigning on controversial Supreme Court 

275

decisions. This is the kind of judge that you have got to commend 

Senator Lindsey Graham for having. I can tell you right now, with 

all the rhubarb and the headlines and the controversy about judicial confirmations here in the U.S. Senate, this one will go through 

unanimously because he is just totally of a judicial temperament, 

and that sharp legal mind, and well-balanced judgment, and depth 

of experience and everything else like that, he has got glowing bipartisan support all over the State. 

Chairman HATCH. Senator Hollings, do you think that we might 

even be able to avoid one of these time-consuming votes? 

Senator HOLLINGS. You have got to give credit to Senator 

Lindsey Graham. I had a lot of letters recommending him, and I 

was sort of looking forward to it, but you know, the Supreme Court 

and that funny decision they made in Florida, so I never got the 

chance. 

Chairman HATCH. The reason I raise that issue is because we 

are now voting on judgeship nominees we really never had to have 

roll call votes on, taking a lot of the time of the Senate, where we 

never did that before. 

Senator HOLLINGS. I want to thank the Committee and you, Mr. 

Chairman, for your fine consideration. 

Senator SPECTER. Senator Hollings, when you mention religion 

and campaigning on controversial decisions, when are you going to 

go for the jugular? 

[Laughter.] 

Senator HOLLINGS. When am I going to vote for who? 

Senator SPECTER. The jugular. You are the master of the Senate 

at going for the jugular except possibly for Senator Warner. 

Senator HOLLINGS. Let my lawyer, Warner, answer that. 

[Laughter.] 

Senator WARNER. I will stand by the old first captain. He still 

walks down the halls with the record he has had, World War II. 

Chairman HATCH. Thank you. We are happy to have you here, 

Senator Hollings. 

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

PRESENTATION OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA, 

BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE 

OF VIRGINIA 

Senator WARNER. I will be very brief, and like Senator Hollings, 

I will ask that my statement be included in the record. 

We have one of these magnificent public servants, who has for 

27 years been a Magistrate Judge in the Western District of Virginia in the Federal Court system, and the highlight of this hearing 

would be asking the Judge to introduce his lovely wife, Mary Ann. 

Would you stand, please, Mary Ann? That is the full reason why 

this wonderful man I think has received this nomination. 

I say to my colleagues, Glen Conrad has been nominated by the 

President to serve as a judge on the United States District Court 

for the Western District of Virginia, nominated to fill the vacancy 

of James Turk, who began service in 1972 and recently took senior 

status, a remarkable jurist in the annals of Virginia history. 

276

Senator Allen was to have joined me here today, and I will unanimous consent that his statement be placed in the record together 

with mine. 

I just simply say to my colleagues, in putting this statement in, 

that the background of this nominee makes him highly qualified for 

this position. Both Senator Allen and I extensively interviewed a 

wide range of individuals, and this nominee came to the forefront. 

His experience with the law is extensive. He has a record 27 

years. That coupled with his temperament, his integrity and judicial demeanor is consistent with the high standards of the Federal 

bench and bar, and I urge his rapid confirmation by the United 

States Senate. 

I thank my colleagues. 

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

Chairman HATCH. Thank you, Senator. We appreciate having 

you here. 

Let us turn to Senator Specter. 

PRESENTATION OF KIM R. GIBSON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY 

HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF 

PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I have the pleasure of introducing a very distinguished Pennsylvanian, Judge Kim Richard Gibson for nomination to the United 

States District Court for the Western District of Pennsylvania. 

Judge Gibson is a State Court judge now, has been for the past 

5 years, has an outstanding record, a graduate of West Point in 

1970, magna cum laude on his JD degree from the Dickinson 

School of Law in 1975. 

While in the military service, has extensive experience in the 

Judge Advocate General’s Office, and returning to the practice of 

law in Somerset County, Pennsylvania, which in the past 2 years 

has become a very famous county where one of the 9/11 flights 

went down, and then the mine disaster last year. It is good to have 

something very positive for Somerset County and I think Judge 

Gibson’s nomination to the Federal bench is just that. He had practiced law in Somerset County as a sole practitioner for 20 years, 

from 1978 to 1998, in a wide variety, and I think that kind of diversity is something which is very, very positive. 

Judge Gibson has been recommended by the bipartisan nominating panel, which Senator Santorum and I have established, and 

with all of the big firm lawyers having come to the bench in so 

many parts of our State as well as the country, it is good to see 

a sole practitioner from a small county come to the Federal bench. 

In the interest of brevity, Mr. Chairman, I would ask that a resume be included in the record with a detailed statement of Judge 

Gibson’s legal background, and in conclusion the two most popular 

words of any statement, I would ask Judge Gibson to introduce his 

lovely wife, and as television had it, their three sons. 

Judge GIBSON. Thank you, Senator Specter. With me today is my 

wife, Rebecca, my son, Connor, my son, Sean, my son, Matthew, 

277

and also accompanying me today is my law clerk, John Egers, and 

my secretary, Kimberly Talarovich. 

Chairman HATCH. We welcome all of you to the Committee. 

Senator SPECTER. Thank you very much, Mr. Chairman. As I 

said, I would like to excuse myself. I am due on the floor shortly. 

Chairman HATCH. Thanks, Senator. 

We will turn to Senator Graham now, and then go across the 

table. 

PRESENTATION OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH CAROLINA, BY 

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

OF SOUTH CAROLINA 

Senator GRAHAM. Thank you, Mr. Chairman. 

I would like to associate myself with at least some of Senator 

Hollings’ remarks, not all. That part about me being a good guy, 

I really want to associate myself with that. 

But Senator Hollings and I do agree on this, that Judge Henry 

Floyd, Mr. Chairman, will be a great addition to the Federal bench. 

He has been serving, as Senator Hollings indicated, for over a decade at the State level. I can tell you firsthand, I have appeared before him as a judge, before I was elected to Congress. I think I lost. 

It probably had nothing to do with him, a lot to do with me. But 

Judge Floyd was rated in the top three judges of our entire state. 

Justice Toal is a big fan, and I certainly admire her, but we have 

Senator Larry Martin from Pickens County, Judge Floyd’s home 

county, my home county. Larry has been in politics a long time, 

and anyone who has been around Judge Floyd would tell you that 

he is a quality person, he wears the robe well, and if you go into 

his court you are going to be treated fairly no matter where you 

come from, no matter what station in life you have, and I think he 

will be a great addition to the Federal bench. His colleagues and 

those who practice before him, rate him very highly in all the areas 

that matter to me. 

We have a lot of politics in our judicial process. That is sort of 

the way it was meant to be. I think we have way too much. I do 

not associate myself with some of the things that Senator Hollings 

said, but we are here today trying to do some good, and South 

Carolina will be better off if we can get Judge Floyd nominated. I 

want to recommend to my colleagues on the Republican and Democratic side of the aisle, that if you vote for Judge Floyd you will 

have done a good thing for the State of South Carolina and the 

United States. 

At this time, Judge Floyd, I think you would be honored to introduce your family, if you would do that. 

Judge FLOYD. Thank you, Senator. This is my wife, Libba, and 

my daughter, Betts here. My good friend, Scott Dover is with us 

in addition to the two people that Senator Hollings mentioned. 

Chairman HATCH. We are happy to welcome all of you here. 

Senator GRAHAM. Welcome to Washington, and God bless in your 

new endeavors. I am very proud of you, Henry. You will make a 

great judge for us. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

278

We will turn to Senator Wyden and then Senator Smith. 

PRESENTATION OF MICHAEL W. MOSMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF OREGON, BY HON. 

RON WYDEN, A U.S. SENATOR FROM THE STATE OF OREGON 

Senator WYDEN. Thank you, Mr. Chairman. Let me begin, Mr. 

Chairman, by thanking you for all of your courtesies. You have 

been so kind to me on so many matters, and we very much appreciate your handling this priority nomination for Oregon. 

As you know, I feel very strongly about working in a bipartisan 

way. When I came to the Senate, Senator Hatfield was enormously 

helpful to me, and Senator Smith has just been so gracious and so 

thoughtful. We have done all of our judicial nominations together, 

and I am very proud to be here today, Mr. Chairman, and colleagues, to support the fine choice that Senator Smith has made for 

this particular nomination, Mike Mosman, to be of service on the 

United States District Court for the District of Oregon. 

He has an outstanding record as a tough prosecutor. I believe his 

law enforcement background will be a significant asset to the Federal bench in Oregon. 

He has such an interesting background, Mr. Chairman. Many 

may know, it has been reported in our newspapers, that at one 

time he wanted to be a marriage counselor. This strikes me as 

ideal training for the kind of position that he will be serving in. 

But I support Mike Mosman for three major reasons. The first 

is I am convinced that he is committed to equal rights for all Americans, and I would also like to praise his listening skills. A number 

of organizations in Oregon raised questions, for example, with respect to Mr. Mosman’s positions on a variety of social issues, and 

Mr. Mosman really reached out and listened, and showed his concern, and I credit him for that. His commitment to equal rights for 

all Americans and his willingness to listen has been especially important to me. 

Second, I believe he is going to be fair, and that is a prerequisite 

for anyone serving in this position. He showed that as a prosecutor. 

He will show that as a U.S. District Judge. 

Third, I think he understands the role of a judge in this position. 

He understands he is not a legislator. He is not out there writing 

bills and pushing legislation, but he is to serve as a judge on a 

whole host of concerns that come up throughout the west. He is a 

westerner. He understands our issues, and I am convinced that he 

would be an excellent nominee if confirmed. 

I am glad once again to be able to join my good friend and colleague, Mr. Chairman, in sending to you another nominee that has 

the bipartisan support of both of Oregon’s Senators, Michael 

Mosman. 

Chairman HATCH. Thank you, Senator Wyden. We appreciate 

having you here, and we appreciate the good bipartisan way you 

and Senator Smith work on these judges. 

Senator Smith, we will turn to you, and then we will go to Senator Allen, then Senator Santorum. 

279

PRESENTATION OF MICHAEL W. MOSMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF OREGON, BY HON. 

GORDON SMITH, A U.S. SENATOR FROM THE STATE OF OREGON 

Senator SMITH. Thank you, Chairman Hatch, Senator Leahy, 

Senator Durbin. I appreciate very much your consideration of Michael Mosman today, and it is also a privilege of mine to be here 

with my colleague, Ron Wyden, again in a bipartisan way in recommending a judge for the United States of America. 

Recently the ABA rated Michael Mosman well-qualified. There is 

a reason for that. He is actually supremely qualified. He was the 

number one student at Utah State University, its valedictorian. He 

was the editor-in-chief of the Brigham Young University Law Review. He went on to clerkships with Malcolm Wilkey of the D.C. 

Circuit and Lewis Powell of the United States Supreme Court. He 

has had a distinguished career in private practice with the law 

firm of Miller and Nash. But he felt a calling, if you will, to public 

service and sought a position with the U.S. Attorney’s Office. 

I did not know Michael Mosman prior to our looking for a United 

States Attorney for Oregon. I believe I had met him, but could not 

say that I knew him. I knew of him. Senator Wyden and I established a bipartisan commission, and he surfaced as the number one 

recommendation of this bipartisan panel. He has been an outstanding United States Attorney for Oregon in the war on terrorism and in keeping the people of Oregon safe from those who 

would harm them. 

In addition to that, in going forward for this position, again from 

a bipartisan panel the number one recommendation was for Michael Mosman to fill this vacancy. 

I think it is a high tribute to him that in the audience today are 

two sitting judges of the United States District Court in Oregon, 

Judge Hogan and Judge Haggerty. Those gentlemen are here. If 

they could stand up, I would like to acknowledge them. They are 

here because they recognize, having seen him advocate before the 

bar of the Federal Courts in Oregon, his professionalism and would 

not be here as a Democrat and as a Republican if they did not 

think so highly of him. 

Chairman HATCH. Happy to have both of you here. We are honored to have you here. 

Senator SMITH. Mr. Chairman, I could go on, but I think his 

record speaks for itself. I will conclude with an incident having 

nothing to do with the law. 

Recently, my wife and I were having dinner at a nice place in 

Oregon. We were attended by a lovely young woman who was our 

waitress. She was bright and very well-mannered. And, after the 

meal she introduced herself as Mike Mosman’s daughter. I thought 

what man would not be proud to have a young woman like that as 

his daughter. I think it speaks well of her parents, but particularly 

of the man who will be judged by you today, Michael Mosman. I, 

without reservation, recommend him for confirmation to the United 

States District Court of Oregon. 

Thank you, sir. 

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Chairman HATCH. Thank you. We appreciate both of you being 

here. We appreciate the good testimony, and we will put all statements in the record. 

Senator Graham asked me to have articles in support of Judge 

Floyd be included in the record at the appropriate place following 

his remarks. 

We will turn now to Senator Allen, then Senator Santorum. 

PRESENTATION OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA, 

BY HON. GEORGE ALLEN, A U.S. SENATOR FROM THE STATE 

OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman, Senator Leahy, Senator Durbin. It is my pleasure to join with my colleague, Senator 

Warner, in strongly supporting the nomination of Glen Conrad, a 

fellow Virginian, to serve on the United States District Court for 

the Western District of Virginia. 

I am glad that he is joined by his wonderful wife, Mary Ann 

Conrad, who I thought so much of in the days I was Governor that 

I appointed her to serve on the Community College Board for the 

State of Virginia. They are a wonderful team in service in a variety 

of ways to Virginia and to their communities. 

It is a great pleasure to advocate strongly for Glen Conrad. I 

have known Glen Conrad since 1977. I consider the Western District of Virginia my home. When I graduated from law school at 

UVA, I went down and was a law clerk for then U.S. District Court 

Judge Glen Williams in Abingdon, Virginia, and there was a magistrate judge there, Glen Conrad. So as a pup coming out of law 

school, you are always learning as much as you can as far as how 

tough decisions are made, and how you handle a very voluminous 

docket. In fact, we had the highest caseload per district in the 

country, and it is still a high caseload. I got to know Glen Conrad 

then, and have watched him over the years. He ended up moving 

up to Roanoke. I have followed him over the years, and when this 

opportunity arose and you are thinking of who would best know 

this Western District of Virginia, which covers the Piedmont with 

courtrooms in Danville, Lynchburg and Charlottesville, and the 

Shenandoah Valley Harrisonburg, Roanoke, Abingdon, and Big 

Stone Gap in southwest Virginia. Glen Conrad’s name certainly 

was on the top of the list. 

Here is a person who knows the judges, knows the operation of 

the court, has been tested for decades, and been examined by lawyers who have had cases before him, and litigants before him. 

Judge Conrad was found to be not only experienced and knowledgeable in the law with a ripe judicial philosophy, but also understands how to mete out justice in a fair, equitable way, and in a 

way that does not deny the litigants proper recourse and quick, efficient justice, so that justice is not delayed because of unnecessary 

procedures. He is a person who is just outstandingly qualified. 

He is a product of Virginia’s education system. He received both 

his undergraduate and law degrees from the College of William 

and Mary. I think it is appropriate you are having this hearing on 

him today because today, in 1619 in Jamestown, was the first 

meeting of the first legislative body in the new world. For Mr. 

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Leahy, who is near Massachusetts, that is 1 year before the Pilgrims landed for history. 

Senator LEAHY. We think of Massachusetts as a Southern State 

where I come from. 

[Laughter.] 

Senator ALLEN. If you read the Mayflower Compact, they 

thought they were landing in Northern Virginia. 

[Laughter.] 

Regardless, I think it is appropriate that a gentleman from William & Mary is being considered today. He does have the knowledge, the experience, and the qualifications. 

The Virginia Bar Association, the Roanoke Bar Association, the 

Virginia Association of Defense Attorneys have endorsed him, and 

Judge Conrad received a highly recommended rating from the Virginia Women’s Attorney’s Association. 

So, Mr. Chairman and members of the Committee, Judge Conrad 

is genuinely deserving of this honor. He has devoted his life to the 

law, to the bench, and I know he will do a tremendous job, and I 

recommend him with my highest recommendation and ask for your 

prompt consideration of Judge Conrad, so he can get to work as 

soon as possible because this judgeship has been declared a judicial 

emergency by the National Judicial Conference. I thank you, Mr. 

Chairman, and members of the Committee, and look forward to 

voting for Judge Conrad on the floor as soon as possible. 

Chairman HATCH. Well, thank you, Senator Allen. We appreciate 

having you here, as all of our colleagues, and it was a great statement. You and Senator Warner are to be complimented, helping 

this good man to have this opportunity. 

Senator ALLEN. Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator Santorum? 

PRESENTATION OF KIM R. GIBSON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY 

HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE 

OF PENNSYLVANIA 

Senator SANTORUM. Thank you, Mr. Chairman. I appreciate the 

opportunity to be here and testify. I want to thank all of the members of the Committee for their indulgence. I am here to testify on 

behalf of Judge Gibson for the U.S. District Court of the Western 

District of Pennsylvania. Judge Gibson is a Common Pleas Court 

Judge in Somerset County, which is a rural county that became 

somewhat, well, it became very famous as a result of the events of 

9/11. That is where Flight 93 crashed, and actually Judge Gibson 

has been involved in some of the follow-up work that has been done 

on that, in his role as a judge and a leader in the community. 

I did not know Judge Gibson prior to his name surfacing as a result of the Committee that Senator Specter and I have put together 

to go through the qualifications of applicants who would like to be 

judges in the Western District. We recommended Judge Gibson to 

the President because of his just outstanding credentials. 

He stood head and shoulders above a very qualified field, and 

this is a man who not only is he a judge and served as a solicitor 

for Somerset County and was a solo practitioner and worked at the 

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Public Defender’s Office, but he has a very distinguished career as 

a graduate of West Point, having served 8 years on active duty in 

the JAG Corps, 15 years as a reservist, a commander of a unit, was 

deployed during Desert Storm in 1991. 

So he has served this country already in a very distinguished capacity, and very, very well, and has a tremendous record. He is just 

universally,f from left to right, Democrat to Republican, admired in 

Somerset County, and came with the full and hearty recommendation of everybody that I have run into, and I have run into a lot 

as a result of this nomination. They have been contacting me in 

support of Judge Gibson. 

So it is a real pleasure to be here today to recommend him to 

this Committee, and I want to thank the President for making the 

nomination, and I certainly hope that he is acted upon favorably 

by this Committee. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Santorum. We appreciate 

you and Senator Specter appearing for the judge, and we are grateful to have you here. 

Senator SANTORUM. Thank you very much. 

Chairman HATCH. Thanks for your good testimony. 

We are going to have the statements of the Chairman and the 

ranking member, and then we are going to turn to the two Senators from Michigan and Hon. Michael Rogers, who we will ask to 

take their chairs up here. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Let me say, today, the Committee has the 

privilege of considering the nominations of seven outstanding lawyers to be Federal judges. I commend President Bush for nominating each of them, and I look forward to their testimony. 

The first nominee from whom we will hear is Henry W. Saad, 

who has been nominated for a position on the United States Court 

of Appeals for the Sixth Circuit. This is an historic appointment. 

Upon his confirmation, Judge Saad will become the first Arab 

American to sit on the Sixth Circuit, which covers the States of 

Kentucky, Ohio, Tennessee and Michigan. It is long past time for 

this Committee to consider Judge Saad’s nomination. 

He was first nominated to fill a Federal judgeship in 1992, when 

the first President Bush nominated him for a seat on the United 

States District Court for the Eastern District of Michigan. The fact 

that he did not get a hearing may have worked to his benefit, since 

he was appointed, in 1994, by Governor Engler to a seat on the 

Michigan Court of Appeals. He was elected to retain his seat in 

1996 and again in 2002, receiving broad bipartisan support in each 

election. 

On November 8th, 2001, President Bush nominated Judge Saad 

for a seat on the Sixth Circuit, the position for which we are considering him today. When no action was taken on his nomination 

during the 107th Congress, President Bush renominated him to the 

Sixth Circuit on January 7th, 2003. All told, Judge Saad has been 

nominated for a seat on the Federal bench three separate times. I 

think it is high time this Committee considered his nomination. 

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Judge Saad’s credentials for this position are impeccable. He 

graduated with distinction from Wayne State University in 1971 

and magna cum laude from Wayne State University Law School in 

1974. He then spent 20 years in the private practice of law, with 

one of Michigan’s leading firms, Dickinson, Wright, specializing in 

product liability, commercial litigation, employment law, labor law, 

school law and libel law. 

In addition, he has served as adjunct professor at both the University of Detroit Mercy School of Law and at Wayne State University School of Law. 

Judge Saad is active in legal and community affairs. Some of the 

organizations he has been involved with include educational television, where he serves as the trustee, the American Heart Association, Mothers Against Drunk Driving and other nonprofit organizations that serve the elderly and the impaired. 

As a leader in the Arab American Community, Judge Saad has 

worked with a variety of organizations in promoting, understanding and good relations throughout all ethnic, racial and religious communities. He is an outstanding role model. 

Judge Saad enjoys broad bipartisan support throughout his 

State, as evidenced by endorsements in his last election by the 

Michigan State AFL–CIO and the United Auto Workers of Michigan. He has received dozens of letters of support from leading political figures, fellow judges, law professors, private attorneys, the 

Michigan Chamber of Commerce and a variety of other groups. 

Let me quote from just a few of the letters received in support 

of Judge Saad’s nomination. 

Maura D. Corrigan, chief justice of the Michigan Supreme Court 

wrote, ‘‘Henry Saad has distinguished himself as a fair-minded and 

independent jurist who respects the rule of law, the independence 

of the judiciary and the constitutional role of the judiciary in our 

tripartite form of Government. Judge Saad is a public servant of 

exceptional intelligence and integrity. He has the respect of the 

bench and the bar.’’ 

Other judges have written that he is ‘‘a hardworking and honorable individual’’ and that he is ‘‘an outstanding appellate jurist 

with a strong work ethic.’’ 

Roman Gribbs, a lifelong Democrat and retired judge wrote, 

‘‘Henry Saad is a man of personal and professional integrity, is 

fair-minded, very conscientious and is, above all, an outstanding jurist.’’ 

Judge Saad has clearly earned the respect and admiration of his 

colleagues on the Michigan State court bench. His nomination does 

deserve consideration by this Committee. I hope that our consideration of Judge Saad’s nomination is not overshadowed by collateral 

arguments about the propriety of holding this hearing. 

Let me make this absolutely clear. Holding this hearing today is 

entirely consistent with the longstanding blue slip policy of this 

Committee. Since I first became Chairman of this Committee in 

1995, I have followed the same blue slip policy crafted by two 

former Democratic chairmen of this Committee, Senator Kennedy 

and Senator Biden. 

Here is the Committee’s blue slip policy, as explained in a letter 

by former Chairman Joe Biden, to the first President Bush, dated 

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June 6th, 1989. ‘‘For many years, under both Democratic and Republican chairmanships, the return of a negative blue slip meant 

that the nomination simply would not be considered. That policy 

was modified under Senator Kennedy’s chairmanship so that the 

return of a negative blue slip would not preclude consideration of 

the nomination. A hearing and vote would be held, although the return of a negative blue slip would be given substantial weight.’’ 

Chairman Biden continued to explain the blue slip policy that 

the Committee would follow under his chairmanship as follows: 

‘‘The return of a negative blue slip will be a significant factor to 

be weighed by the Committee in its evaluation of a judicial nominee, but it will not preclude consideration of that nominee unless 

the administration has not consulted with both home State Senators prior to submitting the nomination to the Senate. If such 

good-faith consultation has not taken place, the Judiciary Committee will treat the return of a negative blue slip by a home State 

Senator as dispositive, and the nominee will not be considered.’’ 

I will submit a copy of his letter for the record. 

In the case of Judge Saad, as with other Michigan nominees, 

there is a clear record of consultation by the Bush White House 

with the Michigan Senators. White House records indicate that beginning on April 10th, 2001, White House Counsel Alberto Gonzalez began discussions with the offices of the Michigan Senators 

regarding the vacancies on the Sixth Circuit and in the Eastern 

District of Michigan. 

On May 17th, 2001, Judge Gonzalez provided the names of the 

individuals being considered for the Michigan vacancies and invited 

both Senators to provide feedback. The record is clear that over the 

next year, through subsequent telephone conversations, as well as 

written correspondence, there was extensive consultation and repeated invitations to the Michigan Senators to provide their input 

into the nomination process. 

In fact, I understand the White House offered to consider nominating both of the individuals championed by the Michigan Senators to Federal judgeships, although I believe they were District 

Court judgeships. Although President Bush ultimately did not 

nominate those individuals, the consultation requirement was undeniably fulfilled in the case of Judge Saad and the other Michigan 

nominees. 

I will continue to work with my friends and colleagues from 

Michigan, Senators Levin and Stabenow, the White House, Senator 

Leahy, and others on the Committee to reach an acceptable resolution in filling traditional vacancies in Michigan and the Sixth Circuit. 

And while the Michigan Senator’s negative blue slips have been, 

and will continue to be accorded substantial weight, indeed, I delayed a hearing on any of the Michigan nominees because of the 

Michigan Senators’ views. Their negative blue slips are not dispositive under the Committee’s Kennedy–Biden–Hatch blue slip policy. 

Again, I fervently hope that the debate that I anticipate will 

occur in my decision to schedule this hearing will neither distract, 

nor detract, from the historic significance of Judge Saad’s nomination, which was noted by Judge George Steeh, III, a distinguished 

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trict of Michigan. He said, as quoted in the Detroit Free Press on 

November 9th, 2001, that President Bush’s nomination of Judge 

Saad, in the wake of the September 11th attacks, ‘‘conveys an important message to all of the citizens and residents of this country 

and that we embrace and welcome diversity, and that we are extending the American dream to anyone who is prepared to work 

hard.’’ 

I could not agree more. Judge Saad is a fine jurist who will make 

an outstanding addition to the Sixth Circuit, and I look forward to 

hearing from him this morning or afternoon, whichever the case 

may be. 

With that, I will turn to the ranking member. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman HATCH. Is Mr. Rogers here? Take your seat. 

Senator LEAHY. It is unfortunate when one wants to recite history, every so often those troubling little irrefutable facts come in 

the way in the recitation. So I thought maybe I would go over some 

of the irrefutable facts, which may give a different view than my 

friend, the distinguished Chairman, has just given. 

Today, is the first time Chairman Hatch will ever have convened 

a hearing for a judicial nominee with two negative blue slips returned to the Committee—the first time ever. I believe it also may 

be the first time any chairman, Democratic or Republican, in any 

Senate Judiciary Committee, whether with a majority of Democrats 

or a majority of Republicans, proceeded with a hearing on a judicial 

nominee over the objection of both home-State Senators. It is certainly the only time in the last 50 years. I know it is the only time 

in the 29 years I have been in the Senate. 

So, today, actually should be noted in the annals of the Senate 

and of our Committee for the precedent set by this hearing, for the 

hubris behind it, and for the brazenness of the double standard it 

sets. In collusion with a White House of the same party, the Senate’s majority this year has launched a lengthening series of 

changed practices and broken rules on this Committee. And the 

White House, which seems to be calling more and more, determining how the independent Senate will act and more and more 

whittling away the independence of the Senate, the White House, 

and some in the Senate, have even suggested change in the Senate’s rule to consolidate the White House’s control over the judicial 

nomination process. 

Over the last 3 years, time and again the good-faith efforts of 

Senate Democrats to repair the damage done to the judicial confirmation process over the previous 6 years has been met with 

nothing but hubris. The kind of hubris is now also having a corrosive effect on the other body, the House of Representatives, that we 

have seen very dramatically in the past few weeks. 

Now, when Chairman Hatch chaired this Committee, but not 

with a Republican President, but with a Democratic President, Bill 

Clinton, one negative blue slip from a Senator was enough to doom 

a nomination and prevent a hearing on that nomination; indeed, 

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mittee did not even consider. There were several who were blocked 

even though they had positive blue sips from both their States. 

It appeared so long as any Republican Senator had an objection 

to the nomination of a Democratic President, that was honored. 

The nomination did not go forward. For example, when Senator 

Helms of North Carolina objected to an African–American nominee 

from Virginia, not only from his own State, but from Virginia, it 

was never allowed to go forward. 

When Senator Slade Gorton, my good friend from the State of 

Washington objected to nominees from California, they were held 

up. Earlier this year, the Committee, under the Chairman, took the 

unprecedented action of proceeding to a hearing on the nomination 

of Carolyn Kuhl to the Ninth Circuit over the objection of Senator 

Boxer from California. 

Now, when the senior Senator from California, Senator Feinstein, announced her opposition to the nomination as well, I suggested to the Chairman that further proceedings on the nomination 

ought to be carefully considered and we not proceed on the nomination, especially as it was opposed by the Senators from both that 

State and that was well known. 

In fact, Senator Feinstein, the senior Senator from California, 

has reminded the Chairman of his statements in connection with 

the nomination of Ronnie White, of Missouri. That was a nominee 

that got through our Committee, with both Democratic and Republican votes, but was defeated by Republicans in a party-line on the 

Senate floor. 

The Chairman said had he known that both home State Senators 

were opposed, he never would have proceeded, but, in a continuing 

series of changes of practices and positions this year, the Committee has proceeded to proceed with the Kuhl nomination, and of 

course the party-line vote was resolved. 

Now, we are making a further profound change in practices. 

When the Democratic President was doing the nominating and Republican Senators were objecting, a single objection from a single 

home State Senator stalled the nomination. In fact, I do not believe 

the Chairman can cite a single example of a single time that he 

went forward with a hearing over the objection of a negative blue 

slip of a single Republican home State Senator. There is none. 

But now the Republican President is doing the nomination, and 

all of a sudden the rules just change. No amount of objection by 

Democratic Senators is sufficient. It only took one Republican to 

object to a nomination of President Clinton, and now no matter if 

both home State Senators or Democrats object to a nomination of 

President Bush, the rules are entirely different. 

Chairman overrode the objection of one home State Senator with 

the Kuhl nomination, and he overrides the objections of both home 

State Senators for the Michigan nomination. 

I doubt we will hear from the other side of the aisle. It is the 

truth of the two policies that has been followed. While it is true 

various chairmen, and I admit various chairmen of the Judiciary 

Committee have used the blue slip in different ways, some actually 

unfairly and others toward attempting to remedy the unfairness, it 

is also true that each of those chairmen was consistent in his application of his own policy; that is, until now. 

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The double standard the Republican majority has adopted obviously depend upon the occupant of the White House, and I suspect 

the White House has ignored the independence of the Senate and 

is pulling the strings. But this change in practice marks another 

example of the double standard. 

Last week, the Republican majority chose to abandon our historic 

practice of bipartisan investigation. This is something that has always been done in the nearly 30 years I have been here. There is 

an investigation, and you have both Republican and Democrats 

who work closely together, so both the Chairman and the Ranking 

Member get the same result, but that has been abandoned and 

abandoned the meaning of consistent practice of protecting minority rights. They did that by changing and overruling the longstanding Committee rule that required a member of the minority 

to cut off debate in order to bring the matter to a vote. 

Incidently, a rule that was put in place at the insistence of then 

ranking minority member, Strom Thurmond, who wanted to make 

sure the Republican minority was protected. The Republican minority, as long as they were in the minority, they were protected. 

The second the Democrats go into the minority, we are not going 

to follow the rules any more. They do not have to be protected. 

Now, this week, the Committee takes another giant step in the 

direction of partisanship through this hearing. Apparently, Republican Senators will stop at nothing in their efforts to aid and abet 

the White House with a Republican President in an effort to politicize the Federal judiciary. 

The Federal judiciary should not be an arm of either the Democratic or Republican Parties. He should be independent. We can 

elect Republicans, and Democrats, and Independents, and that is 

fine. That is an area where they should be partisan in the Congress 

or the presidency, but not in the Federal judiciary. That should be 

independent. 

Now, both, and what makes it more difficult is that both of the 

Senators from Michigan are among the most respected members of 

the Senate, both are fair-minded, both have formed bipartisan coalitions time and time again, and both of them have attempted to 

work with the White House to offer their advice, but their input 

was rejected. 

They have now suggested another way to end the impasse on judicial nominations for Michigan. Their suggestion was a bipartisan 

commission along the lines of a similar one in Wisconsin. I see the 

distinguished Senator from Wisconsin here. I think that is a good 

one. 

I am familiar with these kind of bipartisan screening commissions. Vermont, which has had, since I have been here, Republican 

Senators, Democratic Senators, and now an Independent Senator, 

they have used such a commission for more than 25 years with 

great success. When I came here, I was the first, and actually still 

the only Democrat elected in Vermont’s history to the U.S. Senate, 

but the then-senior Senator, Republican Senator, worked with me 

to set up such a commission. 

Now, I commend the Senators representing Michigan for their 

constructive suggestions and for their good-faith effort to continue 

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to work with the administration, even though they do not seem to 

want to. 

So now we are faced with a nomination from Michigan to the 

United States Court of Appeals for the Sixth Circuit, opposed by 

both Michigan Senators, and it appears that again we will ignore 

our practices and our rules to pick a judicial fight. 

Of course, if we also have time, we will probably get to review 

the nominations of Michael Mosman, Judge Kim Gibson, Glen 

Conrad, Judge Henry Floyd, Magistrate Judge Larry Burns, and 

Judge Dana Sabraw, both nominated for the Southern District of 

California, and all of whom have received very, very glowing testimonies from their Senators of both parties. All of them have the 

support of both of their home State Senators. Two of these District 

Court nominations were the product of a bipartisan Selection Commission, which has worked extremely well for the citizens of California. 

In fact, I congratulate the Senators from the State of California 

and the people from the State of California for working out that 

kind of a commission. I think what it guarantees is that these are 

going to be consensus nominees, and they will probably get a vote 

on the floor of the Senate that will reflect the fact that they are 

consensus nominees. 

In fact, had such a bipartisan commission been allowed to include California’s Circuit Court nominees, we might not be faced 

with the divisive nomination of Carolyn Kuhl. President Bush 

promised, and I was heartened by his promise on the campaign 

trail, that he would be a uniter and not a divider. Unfortunately, 

that was before the election, and the practice in office with respect 

to judicial nominees has been most divisive. In fact, citing the remarks of the White House, the Lansing State Journal recently reported, for example, that the President is simply not interested in 

compromise on the existing vacancies in the State of Michigan. 

Under our Constitution, the Senate has an important role in the 

selection of our judiciary. It was the brilliant design of our Founders to establish that the first two branches of Government would 

work together to equip the third branch to serve as an independent 

arbiter of justice, not an arm of the Senate, not an arm of the 

White House, not an arm of either of the political parties, but as 

an independent arbiter, and that they relied on the checks and balances of the Senate and the White House to make sure they would 

be independent. 

As conservative columnist George Will wrote this past weekend, 

‘‘A proper Constitution distributes power among Legislative, Executive and Judicial institutions so that the will of the majority can 

be measured and expressed in policy and for the protection of minorities, somewhat limited.’’ 

Well, the structure of our Constitution and our own Senate rules 

of self-governance are designed to protect minority rights and to 

encourage consensus. And despite the razor-thin margin of recent 

elections, the majority party is not acting in a measured way, but 

in complete disregard for the traditions of bipartisanship that have 

always been the hallmark of the Senate. 

When there was a Democratic President in the White House, as 

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cancies in the Court of Appeals more than doubled under Republican leadership of the Senate, from 16 in January, 1995, to 33 

when the Democratic majority took over in July of 2001. And we 

then went and whittled back, but now with a Republican President, 

very substantially on those. 

In fact, under Democratic leadership, in spite of the abuses by 

Republicans and in spite of the 6 years of them blocking President 

Clinton’s nominations, we proceeded to consider and confirm two 

nominees to the Sixth Circuit, notwithstanding that all of President Clinton’s nominees to that have been blocked for years. 

We proceeded to confirm two more this year. The vacancies that 

once plagued the Sixth Circuit have been cut in half. The eight vacancies have been caused by the refusal of the Republicans to consider President Clinton’s nominees. The Democrats have allowed 

four of them to be filled in the last few months. The Sixth Circuit 

currently has more judges and fewer vacancies than it has had in 

years. 

Those of us who were involved in this process in the years 1995 

to 2000 know that the Clinton White House bent over backwards 

to work with the Republican Senators and seek their advice. In 

fact, my distinguished colleague, in his brilliant history of his own 

career, here in the Senate, refers to his working with President 

Clinton on that. 

There were many times when the White House made nominations at the direct suggestion of Republican Senators. In fact, I was 

there on some of those occasions. And there are judges sitting 

today on the Ninth Circuit, and the Fourth Circuit, the District 

Courts in Arizona, Utah, and Mississippi and many other places 

only because of recommendations of Republican Senators were honored by a Democratic President. 

In contrast, since the beginning of his time in the White House, 

the Bush administration sought to overturn traditions of bipartisan 

nominating commissions that run roughshod over the advice of 

Democratic Senators. They tried to change the exemplary systems 

in Wisconsin, the State of Washington, and Florida that worked so 

well. 

So, today, despite the best efforts of two extremely well-respected 

Senators from Michigan who proposed a bipartisan commission, 

similar to their sister State of Wisconsin, the administration has 

rejected compromise. 

I object to this reversal of position for obvious partisan gain and 

the unprecedented hearing, unprecedented hearing, going as far 

back as we can find in 50 years, that is being held today. I will 

participate in the questioning of Judge Saad because his nomination has raised some concerns. His judicial opinions against whistleblowers—those people who really do protect the Government—

and his opinions against victims of discrimination, as well as his 

opinions on cases involving workers’ rights give me great concern 

about his willingness to follow the law, but he will have a chance 

to answer those questions. So I look forward to his testimony. 

Senator FEINGOLD. Mr. Chairman? 

Chairman HATCH. Senator? 

Senator FEINGOLD. Mr. Chairman, I just want to make a brief 

statement. I feel truly privileged to serve on this Committee. 

290

Senator LEAHY. I would ask to put my whole statement in the 

record. 

Chairman HATCH. Without objection, we will put the whole statement in the record. 

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

Chairman HATCH. Senator, I would like to turn to the Senator 

from Michigan. 

Senator FEINGOLD. I would like to just make a brief statement 

if I could. 

Chairman HATCH. All right. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Obviously, I think this is one of the most distinguished bodies in the Senate. We have jurisdiction over issues 

that have a huge impact on the daily lives of our constituents, civil 

rights, the prevention and punishment of crime, the civil justice 

system and the Federal judiciary to just name a few. 

These are some of the most complicated and contentious issues 

the Senate faces, but because of that it is in this room that I have 

also been part of some of the most vigorously intense and challenging debates of my entire career. I have enjoyed these debates, 

and I have enjoyed working with my colleagues on this Committee. 

As I noted at our meeting last week, one of the things that 

makes it possible for us to work together, even on these very contentious issues is the respect for our rules and for practices of the 

Committee that have developed over time. Since the beginning of 

this year, I have watched with dismay as the rules and practices 

that have guided this Committee’s actions and nominations for 

many years have been tossed aside in order to push through the 

most nominees possible in the shortest period of time. 

An agreement between Senators Thurmond, Biden, Dole and 

Byrd, honored since the mid–1980’s, on the number of controversial 

nominees to be considered in a single hearing, the minimum time 

for the minority to prepare for a hearing after a nominee’s file is 

complete, and the timing of Committee votes after a hearing is held 

has now, for all intents and purposes, been eliminated. 

Nominees are now routinely scheduled for a Committee vote before questions have even been asked, much less answered. The rule 

that allows any matter to be held over for a week has been essentially eliminated. And, of course, Committee Rule IV, which had 

been in effect as a protection for the minority since 1979, has been 

violated twice, even after an agreement was reached to reinstate it 

after the first violation. 

With this hearing today, Mr. Chairman, we are overthrowing another longstanding practice of the Committee. This one, as the 

Ranking Member discussed, dates back more than a century. Both 

Michigan Senators who are with us today have expressed their opposition to this nominee by returning negative blue slips. Yet we 

are having a hearing in this Committee. 

For years, Mr. Chairman, you refused to have hearings on nominees put forward by President Clinton, and you often cited objections from only one home State Senator. Once again, the rules have 

291

changed based on the politics of the moment rather than based on 

any recognizable principle. I think that is very unfortunate. 

We all know the history of the vacancies on the Sixth Circuit. 

One Clinton nominee for that circuit, Judge Helene White, holds 

the dubious distinction of being the nominee who waited the longest for the courtesy of a hearing, in vain. She was pending in this 

Committee for over 4 years. She never got a hearing. And, remember, both blue slips were returned on her nomination. 

So this is the circuit where consultation and compromise is most 

needed, but the White House has steadfastly refused. Even with 

four vacancies, this White House could not find a way to reach out 

to Senators Stabenow and Levin and try to make amends for the 

shabby treatment of Helene White and Kathleen McCree Lewis. 

This White House has made all four nominations without working with the two Senators from Michigan. It has refused all overtures by the Senators to try to work together and come up with a 

compromise that would have led to the four seats being filled long 

ago. 

Now, I want to see these vacancies on the Sixth Circuit filled. I 

want there to be judges working hard to bring fair and equal justice to the people of Michigan, Ohio, Kentucky, and Tennessee. 

What is happening here today is not helping to break this deadlock. I have little doubt that the vast majority of our caucus will 

support the two Senators from Michigan in their fight to be adequately consulted on judges who will sit in their State. 

Mr. Chairman, this is another sad day among many that we 

have had on judicial nominations. I do welcome the nominees and 

their families, and I am sorry that what should be a day of celebration and pride is instead another day of controversy. But I felt I 

had to comment on the continued uprooting of the Committee’s 

rules and practices. 

Thank you for letting me speak, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator. As you know, there 

is a real dispute over whether the rules have been violated or not, 

with our side taking a different position from yours. I have to say 

in the case of Ronnie White, at least he got a vote. He may have 

been defeated, but he at least got a vote. That is something that 

a lot of our nominees are not getting. And every one of the cases 

cited by my friend from Vermont has an argument and an answer 

to it. I will not take time to do that now. 

I would just mention that Mr. Saad has been blocked through 

three nominations for 11 solid years, so—well, maybe not solid 

years, but he was first nominated in 1992 and has been nominated 

three times, and, unfortunately, he is caught in this controversy, 

which I am trying to solve. I believe Presidents, their nominees, 

their executive nominees, especially judges, deserve votes. They deserve up-and-down votes. If you don’t like them, vote against them. 

If you like them, vote for them. But we are finding that we are not 

doing that. 

Having said that, let me just turn to our two distinguished Senators from Michigan. I have a high regard for both of them. It is 

unfortunate that we have to be at this crossroads. I don’t always 

feel good about these conflicts and these problems. I certainly don’t 

feel good about the politics involved. But as long as I have known 

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Senator Levin, which is a long time, he has always been straightforward, has always been fair, and I know that he differs with the 

administration and perhaps with me on this, and I respect him. 

Senator Stabenow, who has been a hard-working Senator ever 

since she has been here, and we are grateful to have both of you 

here, and then we will turn to Michael Rogers at the end. But we 

have agreed to give an extraordinary amount of time to the three 

of you, which is right, I think, under these circumstances. And I 

intend to listen to your comments. 

I might have to get up and go out a couple of times. If I do, it 

is not out of disrespect. Please understand that. But we will start 

with you, Senator Levin, and then we will go to Senator Stabenow, 

and then we are honored to have Hon. Michael Rogers from the 

House of Representatives here, and we look forward to hearing 

your testimony as well. 

Senator Levin? 

STATEMENT HON. CARL LEVIN, A U.S. SENATOR FROM THE 

STATE OF MICHIGAN 

Senator LEVIN. Thank you, Mr. Chairman. We appreciate the opportunity to appear before this Committee today. We obviously 

would have preferred that our appearance be under different circumstances. 

We oppose the decision to proceed with this nomination and the 

other nominations for Michigan vacancies without addressing serious concerns that we have raised regarding fundamentally unfair 

treatment of Michigan judicial nominees during the previous administration. 

This Committee last held a hearing on a nominee for a Michigan 

vacancy on the Sixth Circuit on May 7, 1997, more than 6 years 

ago and more than 31⁄2 year before President Clinton’s term expired. 

The fact that the last 31⁄2 years of the Clinton Presidency passed 

without a hearing on Michigan’s Sixth Circuit nominees was not 

because there were no Michigan vacancies on that court. It was not 

because President Clinton failed to submit nominees for those vacancies. And it was not the result of questions about the character 

or the qualifications of the President’s nominees to those vacancies. 

Rather, it resulted from Senator Abraham’s decision to refuse to return his blue slips on the nomination of Michigan Court of Appeals 

Judge Helene White and Kathleen McCree Lewis. 

The record shows that this Committee honored Senator Abraham’s refusal to return those blue slips. But even after Senator 

Abraham finally returned his blue slips on the two nominations in 

the spring of 2000, the two women were not given hearings. That 

distortion of the judicial nominating process was grossly unfair to 

the two nominees and deprived the previous administration of the 

consideration by the Senate of those two nominees. 

We seek a just resolution, and Senator Stabenow and I have returned the blue slips with objections to proceeding to the current 

nominees until that resolution is achieved. 

As we have expressed to you personally, we believe that moving 

forward without resolving the impasse in a bipartisan manner 

could deepen partisan differences and make future efforts to reVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00304 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.002 SJUD4 PsN: CMORC
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solve this matter more difficult. The number of Michigan vacancies 

on the Federal courts provide an unusual opportunity for a bipartisan compromise. Efforts to forge compromise so far have not been 

successful, but we hope those efforts will continue. 

In order to fully understand our concerns, a brief history of the 

Michigan vacancies on the Sixth Circuit is in order. Judge Helene 

White was nominated to a vacancy on the Sixth Circuit on January 

7, 1997, after Judge Damon Keith assumed senior status. I returned my blue slip on Judge White’s nomination. Senator Abraham did not. 

More than 10 months later, on October 22nd, Senator Leahy, as 

Ranking Member of this Committee, delivered what would be the 

first of at least 16 statements on the Senate floor, made over a 4-

year period, regarding the Sixth Circuit nominations. He called for 

the Committee to act on Judge White’s nomination. His appeal, like 

the others that were to follow, was unsuccessful. 

For instance, on October 21, 1998, more than a year and a half 

after Judge White was nominated, Senator Leahy returned to the 

floor, where he warned that, ‘‘At each step of the process, judicial 

nominations are being delayed and stalled.’’ His plea was ignored. 

Senator Abraham’s blue slip remained unreturned, and the 105th 

Congress ended without a hearing for Judge White. 

In January 1999, President Clinton again submitted Judge 

White’s nomination. That day, I sent one of many notes to both 

Senator Abraham and Chairman Hatch. In that letter, I said that 

the 105th Congress had ended without Judge White being granted 

a Judiciary Committee hearing and suggested that fundamental 

fairness dictated that she receive an early hearing in the 106th 

Congress. Still no blue slip from Senator Abraham. His decision 

was honored and, again, no hearing. 

On March 1, 1999, Judge Cornelia Kennedy took senior status, 

opening a second Michigan vacancy on the Sixth Circuit. The next 

day, Senator Leahy returned to the floor, repeated his previous 

statements that nominations were being stalled, and raised Judge 

White’s nomination as an example. 

The exercise of the blue slip power by Senator Abraham was 

clearly motivated during this period by his repeated efforts to obtain the nomination by President Clinton of Jerry Rosen, a district 

court judge in the Eastern District of Michigan, for Judge Kennedy’s seat. However, in September of 1999, President Clinton decided to nominate Kathleen McCree Lewis to that seat. 

Soon thereafter, I spoke with Senator Abraham about the Lewis 

and White nominations. It had been more than 2–1/2 years since 

Judge White was first nominated. Twice in the next 6 weeks, Senator Leahy urged the Committee to act, calling the treatment of judicial nominees ‘‘unconscionable.’’ 

On November 18, 1999, I again wrote Senator Abraham and 

Chairman Hatch, urging hearings in January of 2000 for the two 

Michigan nominees. At that time, I noted that Judge White had 

been waiting for nearly 3 years for a hearing. I stated that the confirmation of the two women was ‘‘essential for fundamental fairness.’’ My appeals were for naught and 1999 ended without Senator 

Abraham’s blue slips and, therefore, without Judiciary Committee 

hearings. 

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In February of 2000, Senator Leahy again spoke on the Senate 

floor about the multiple vacancies on the Sixth Circuit. Less than 

2 weeks later, I made a personal plea to Senator Abraham and 

Chairman Hatch to act on the Michigan nominees. Again, I was 

unsuccessful. Senator Abraham’s blue slips remained unreturned, 

and no hearing was scheduled. 

On March 20th of the year 2000, the chief judge of the Sixth Circuit sent a letter to Chairman Hatch expressing concerns about an 

alleged statement from a member of this Committee that, ‘‘due to 

partisan considerations,’’ there would be no more hearings or votes 

on vacancies for the Sixth Circuit Court of Appeals during the Clinton administration. The judge’s concern would turn out to be well 

founded. 

Finally, on April 13, 2000, Senator Abraham returned his blue 

slips for Judge White and Ms. Lewis, without indicating approval 

or disapproval. I had previously understood that Senator Abraham’s decision not to return blue slips on the two nominees had 

prevented them from being granted a Judiciary Committee hearing. So the day that Senator Abraham returned his blue slips, I not 

only spoke to Chairman Hatch, but I also sent him a letter reminding him that blue slips had now been returned on the two nominations, expressing my concern about the unconscionable length of 

time the nominations had been pending, and urging that they be 

placed on the agenda of the next Judiciary Committee confirmation 

hearing. Again, my efforts were unsuccessful. That hearing passed 

without the Michigan nominees being on the agenda. 

On May 2, 2000, I tried again and sent another note to Chairman Hatch, but neither Judge White’s nor Ms. Lewis’s nominations 

were placed on the Committee’s hearing agenda then, or ever. Over 

the next several months, Senator Leahy went to the floor ten more 

times to urge action on the Michigan nominees, and more than 

once I also raised the issue on the Senate floor. 

In the fall of 2000, in a final attempt to move the nominations 

of the two Michigan nominees, I met with Majority Leader Lott to 

discuss the situation. And on the 12th of September, I sent him a 

letter saying that, ‘‘The nominees from Michigan are women of integrity and fairness. They have been stalled in the Senate for an 

unconscionable amount of time without any stated reason.’’ Neither 

the meeting with Senator Lott nor the letter prompted this Committee to act on the nominations, and the 106th Congress ended 

without hearings for either woman. 

Judge White’s nomination was pending for more than 4 years, 

the longest period of time any circuit court nominee has waited for 

a hearing in the history of the United States Senate. Ms. Lewis’s 

nomination was pending for more than a year and a half. 

Senator Abraham’s refusal to return blue slips on the White and 

Lewis nominations did not relate to either woman’s qualifications; 

rather, his refusal stemmed from his effort to persuade the White 

House to nominate Jerry Rosen, his preferred nominee to the Cornelia Kennedy seat on the Sixth Circuit. That unreturned blue 

slips of one Republican Senator precluded Judiciary Committee 

consideration of two nominees of a Democratic President, but two 

negative Democratic blue slips do not prevent the Committee from 

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now proceeding with hearings for a nominee of a Republican President is simply not acceptable. 

At least one version of Judge White’s and Ms. Lewis’s blue slips 

read the following: ‘‘No further proceedings on this nominee will be 

scheduled until both blue slips have been returned by the nominee’s home State Senators.’’ 

In 1997, when asked by a reporter about a Texas nominee opposed by that State’s Republican Senators, Chairman Hatch said, 

‘‘The policy is that if a Senator returns a negative blue slip, that 

person’s going to be dead.’’ 

And on October 7, 1999, Chairman Hatch said, with respect to 

the nomination of Judge Ronnie White, ‘‘I might add, had both 

home State Senators been opposed to Judge Ronnie White in Committee, Judge White would never have come to the floor under our 

rules. I have to say that that would be true whether they are Democrat Senators or Republican Senators. That has just been the way 

the Judiciary Committee has operated.’’ 

During the entire Clinton Presidency, it is my understanding 

that not a single judicial nominee—not one—got a Judiciary Committee hearing if there was opposition by one home State Senator, 

let alone two. Both home State Senators now oppose proceeding 

with President Bush’s Michigan judicial nominees absent a bipartisan approach. 

Inconsistencies in the Committee’s blue slip policy are troubling. 

But equally troubling is that even after their blue slips were returned by Senator Abraham, Judge White and Ms. Lewis were still 

denied hearings. Senator Abraham returned his blue slips in April 

2000, providing more than enough time for the Committee to hold 

a hearing. What happened? Please listen to what Kent Markus of 

Ohio said about President Clinton’s Sixth Circuit nominees. 

Professor Markus was nominated by President Clinton in February of 2000, also to fill a vacancy on the Sixth Circuit. Both home 

State Senators indicated their approval of his nomination. Nevertheless, he was not granted a Judiciary Committee hearing. His 

troubling account of that experience sheds added light on the 

Michigan situation. In his testimony before this Committee last 

May, this is what Professor Markus said: 

‘‘To their credit, Senator DeWine and his staff and Senator 

Hatch’s staff and others close to him were straight with me. Over 

and over again, they told me two things: one, there will be no more 

confirmations to the Sixth Circuit during the Clinton administration; and, two, this has nothing to do with you, don’t take it personally, it doesn’t matter who the nominee is, what credentials they 

may have, or what support they may have. See item number one.’’ 

And Professor Markus continued: ‘‘On one occasion, Senator 

DeWine told me, ‘This is bigger than you and it’s bigger than me.’ 

Senator Kohl, who had kindly agreed to champion my nomination 

within the Judiciary Committee, encountered a similar brick wall. 

The fact was a decision had been made to hold the vacancies and 

see who won the Presidential election. With a Bush win, all those 

seats could go to Bush rather than Clinton nominees.’’ 

Senator Stabenow and I are not alone in the view that we hold 

that what occurred with respect to these nominees was fundamentally unfair. On more than one occasion, Judge Gonzales, the curVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00307 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.002 SJUD4 PsN: CMORC
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rent White House counsel, has acknowledged that it was wrong for 

the Republican-led Senate to delay action on judicial nominees for 

partisan reasons, at one point even calling the treatment of some 

nominees during the Clinton administration ‘‘inexcusable.’’ 

Mr. Chairman, I doubt that any member of this Committee or of 

the Senate from either party would simply acquiesce if confronted 

with this set of facts. Senator Stabenow and I are determined to 

do what we can to see to it that the tactic used against the two 

Michigan nominees does not succeed. But we are equally determined to see a bipartisan solution. In order to achieve a fair resolution of this past injustice, Senator Stabenow and I have proposed 

a bipartisan commission to recommend nominees to the President. 

Similar commissions have been used in other States. That commission would not guarantee a recommendation for any particular individual, much less the nomination of any particular individual, 

since that is obviously up to the President. Yet that proposal has 

been rejected. 

Mr. Chairman, all of us have an opportunity to seek a bipartisan 

solution to the problem, avoiding a highly divisive and acrimonious 

debate. With this number of vacancies, we have an unusual opportunity to find a better path for consideration of judicial nominees. 

Finding that path would be of great benefit, not just as a solution 

to this problem but to set a positive tone for the resolution of other 

disputes perhaps as well. 

As to the qualifications of the nominee before you today, we 

would ask that the Committee hold the record open so that we can 

complete our vetting process. Our process began just a week and 

a half ago when we were suddenly—and, I may say, surprisingly—

confronted with the decision that our blue slip objections, which we 

based on the procedural history just outlined, would be ignored. 

Each of us who was here over the past several years knows what 

occurred with respect to the two Michigan nominees to the Sixth 

Circuit. And I believe that every one of us here at that time knows 

that what occurred was unfair to those nominees. All of us can contribute to the resolution of this situation. Notwithstanding that today’s hearing is being held over our objection, we still have time 

to reach a bipartisan compromise and to move forward together, 

and I hope that we can do just that. 

Thank you. 

Chairman HATCH. Thank you, Senator. We appreciate having 

your viewpoint. 

Senator LEVIN. And I would ask unanimous consent that the letters that I referred to be made part of the record. 

Chairman HATCH. Without objection, we will make them part of 

the record. 

Senator Stabenow, we will turn to you? 

STATEMENT OF HON. DEBBIE STABENOW, A U.S. SENATOR 

FROM THE STATE OF MICHIGAN 

Senator STABENOW. Well, thank you, Mr. Chairman. 

First, I would thank you and members of the Committee for allowing me and allowing Senator Levin to have the opportunity to 

address you today on this important issue. I completely agree with 

Senator Levin’s testimony, and I thank him for his leadership in 

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trying to bring fairness to the nomination process in the Sixth Circuit Court of Appeals. I also welcome Judge Saad to the hearing. 

Since I did not come to the Senate until 2001, I want to focus 

on the future, having supported Senator Levin’s testimony. Senator 

Levin has clearly outlined the history of how two highly qualified 

women failed to get a hearing before this Committee for more than 

4 years and 11⁄2 years, respectively. 

Mr. Chairman, it seems to me that the best way to end this impasse is to forge a bipartisan compromise. If the administration 

and Senator Levin and I do not do so, I am concerned that this 

struggle between the two branches of Government will continue for 

some time. Senator Levin and I have proposed to settle this conflict, as has been indicated, by appointing a bipartisan commission 

to make recommendations to the White House on judicial nominations. Our proposal would be based on a commission that is up and 

working just across Lake Michigan in Wisconsin. 

The State of Wisconsin commission has produced bipartisan 

nominees for both the district and the circuit courts since its inception under the Carter administration. In fact, just recently, the Republican Chairman of the House Judiciary Committee, Representative James Sensenbrenner, joined Wisconsin’s two Democratic Senators, Senators Kohl and Feingold, in announcing the renewal of 

their commission to recommend to the President nominees for Wisconsin vacancies on the Seventh Circuit Court of Appeals. 

Mr. Chairman, since he is your counterpart on the House Judiciary Committee, I am sure you know Congressman Sensenbrenner 

well, and you know that Chairman Sensenbrenner probably has a 

great deal of political and policy differences with Senators Kohl and 

Feingold. But for the sake of balance and fairness, he agreed to 

help form the bipartisan Wisconsin commission, and I commend all 

of those involved in that process. 

And according to press reports, Chairman Sensenbrenner has 

said that the White House is ‘‘willing to go through the commission 

process’’ for an appeals court nominee from Wisconsin. 

The Wisconsin commission includes representatives from the 

Wisconsin Bar Association, the deans of the State’s law schools, as 

well as members appointed by both Republicans and Democrats, 

and they only recommend qualified candidates that have the support of the majority of the commission. The President then looks 

to the recommendations of the commission when making his nominations. The Wisconsin commission’s recommendations have always been followed by the President, Democrat or Republican. Regardless of their political party, they have always been followed. 

This type of commission preserves the constitutional prerogatives 

of both the President and the Senate. It allows the President to 

pick one of the recommended nominees and protects the Senate’s 

advise and consent role. 

Mr. Chairman, Wisconsin is not the only State, as we all know, 

where this type of bipartisan commission works. In a similar form, 

it has worked in several other States, including Washington State, 

California, and, as the esteemed Ranking Member indicated, in 

Vermont. 

I strongly believe that this is the best way to correct this current 

situation, and I would ask that the members of this Committee 

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support such a bipartisan solution. If this process is good enough 

for Wisconsin, if this process is good enough for Congressman Sensenbrenner, why is it not good enough for us in Michigan? It would 

take almost no time to set up a similar commission in Michigan, 

and we are prepared to do so to move this process along. 

Senator Levin and I are interested in finding a bipartisan solution to this problem. If we can agree on a commission, we are willing to accept recommended nominees even if they are not Helene 

White or Kathleen Lewis or any other person we would choose if 

it were up to us. 

Let’s let a bipartisan commission work, and we all will let the 

chips fall where they may. Mr. Chairman, let’s look to the future 

and restore civility to this process. This has gone on too long. 

I urge all the members of this Committee to support this bipartisan solution, and I would like to thank you again for allowing us 

to testify. I would be happy to answer questions, and I am hopeful 

that we can join together in resolving this issue. 

Chairman HATCH. Thank you, Senator Stabenow. We appreciate 

your remarks. 

Congressman—

Senator LEVIN. Mr. Chairman, I am wondering if I could be excused at this time. 

Chairman HATCH. You sure can. 

Senator LEVIN. Thank you. 

Chairman HATCH. We know how busy you are, and we are happy 

to do so. 

Congressman Rogers, we will take your testimony now. 

PRESENTATION OF HENRY W. SAAD, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SIXTH CIRCUIT, BY HON. MICHAEL ROGERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE 

OF MICHIGAN 

Representative ROGERS. Thank you, Mr. Chairman. Good morning, and Senator Leahy as well. Thank you for allowing me to testify today along with the members of the Committee, Senator 

Levin, and Senator Stabenow. I certainly appreciate the opportunity to be here today. 

I have the very great privilege to be here today to introduce a 

great jurist who is not only a personal friend, but someone who has 

distinguished himself in the practice of law. But, first, Mr. Chairman, I would like to say I appreciate all that you have gone 

through to come to the conclusion to hold this hearing today. In 

talking with you personally, your staff, and the administration, the 

anguish in which you reached this conclusion should be noted for 

the public. This has not been a political decision for you. This has 

been a decision about justice and fairness and balance. 

There are some extenuating circumstances that have brought us 

all here today. I have heard the word ‘‘unprecedented’’ several 

times, and I certainly won’t get into the intricacies of Senate rules. 

But we do have something that is unprecedented. The Administrative Office of the U.S. Courts has deemed the circumstances in the 

Sixth Circuit Court a ‘‘judicial emergency’’—unprecedented. Nearly 

40 Assistant United States Attorneys wrote letters speaking to the 

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dangers of the vacancies of this court to bringing justice to the people for the Sixth Circuit—also unprecedented. 

I am not here today, Mr. Chairman, to argue and debate the Senate rules, as my fellow colleagues from Michigan have done. But 

I do believe, today, that the victim is not the Senate rules, if this 

hearing does not go forward and certainly the nomination be confirmed for Henry Saad and the others on the Sixth Circuit. But the 

real victims will be those of terrorism, of organized crime, of whitecollar criminals and drug cartels. Some 435-plus cases are now 

being held up in the Sixth Circuit because of the vacancies and the 

lack of the Circuit’s ability to process these cases. That and those 

folks, Mr. Chairman, are the true victims. 

But I do not want to forget why we are here. I am here for something pretty spectacular, a great moment in someone’s life to have 

the opportunity to be here for a hearing to serve the people of the 

United States in the Federal courts. And I would ask not only a 

good friend of mine but, again, a great jurist, Mr. Saad, if he would 

please stand up and introduce his guests who are here with him 

today, with your indulgence, Mr. Chair. 

Henry? 

Judge SAAD. Thank you. Thank you, Mr. Chairman. With me 

today are my son, Andrew Saad, who is here from college. My oldest son, Edward, who is practicing law in New York, is, I believe, 

probably practicing law in New York. 

Also with me today is Mara Letica; her son, Kyle Johnson; my 

law clerk, Melissa Taylor; my secretary of long standing, Margot 

Stallard; my other good friend, J.P. Mackley. I am sure I missed 

some other people. And I appreciate the introduction, and I appreciate the courtesy to appear before you. 

Chairman HATCH. We are happy to have all of you here. Thanks 

for introducing them, Judge Saad. 

Representative ROGERS. Thank you, Mr. Chairman. Thank you, 

Henry. And I just wanted to go over a little bit—you did a great 

job, Mr. Chairman, talking about his background. I just want to 

cover some different things, if I may. 

Judge Henry Saad is a distinguished court of appeals judge with 

over a decade of experience on the bench. He has sat on the Michigan Court of Appeals since 1994, having been re-elected twice with 

bipartisan support. And I can speak personally to that, Mr. Chairman. I actually campaigned with Mr. Saad on the first time in 

some very, very Democrat areas of my district, and it was overwhelming, the support and admiration those communities had for 

Mr. Saad. 

The American Bar Association rated Judge Saad as qualified to 

sit on the U.S. Court of Appeals for the Sixth Circuit. The nomination, and I hope confirmation, of Judge Saad is a testament to the 

American dream and the ideals upon which our Nation is moored. 

Born in Detroit to parents of Lebanese descent, Judge Saad is 

the first person in his family to attend college. Now the son of a 

welder for one of Detroit’s automakers stands on the threshold of 

becoming the first Arab American appointee to the Sixth Circuit 

Court. The importance of Judge Saad’s nomination to our Nation’s 

Arab American communities and really all minority communities 

cannot be understated. Hailing from Michigan, which possesses 

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over 400,000 citizens of Arab descent, I am acutely aware of the 

positive message sent by Judge Saad’s nomination to the Federal 

bench. At a time when many Arab American communities are suspect of their Government, the Arab American community needs 

Judge Saad as a role model. 

In addition to being a leader in Michigan’s Arab American community, Judge Saad has continually sought to bring together people of differing faiths. He was a board member of the National 

Council of Christians and Jews after founding the American Arabic 

and Jewish Friends, which is now a subsidiary of the National 

Conference of Community and Justice. 

Distinguished attorney and former Labor Department Solicitor 

General George Salem said it best, and I quote, ‘‘Judge Saad has 

spent his career building good relations with all ethnic communities.’’ 

While diversity on the Federal bench, Mr. Chairman, is important, there is no doubt that Judge Saad also possesses the judicial 

temperament consistent with an independent Federal judiciary. 

However, do not just take my word for it. Here are what some of 

Judge Saad’s colleagues, both Republicans and Democrats, have to 

say regarding his fitness for the Sixth Circuit Court of Appeals, 

and I quote: 

‘‘Judge Saad personifies the ideal judicial temperament we all 

seek and admire.’’ Roman Gibbs, former Democrat Mayor of Detroit. 

‘‘Despite allegiances to different political parties, we almost always resulted in a consensus. Henry is known and respected as a 

scholar and great member of our court.’’ Michigan Appellate Court 

Judge Mark Cavanaugh. 

‘‘Judge Saad has indeed sought common ground and often 

achieved it.’’ Alan May, Vice Chair, National Conference for Community and Justice. 

I quote: ‘‘Judge Saad is a person of the highest integrity and ability and a person deeply committed to the rule of law under the 

Constitution.’’ Robert Sedler, professor of law and counselor to the 

American Civil Liberties Union. 

Those testimonials, Mr. Chairman, are all from individuals affiliated directly or indirectly with the Democrat Party in the State of 

Michigan. And they reveal that Judge Saad is the embodiment of 

the independent Federal judiciary. Additionally, it is my understanding that Jim Zogby, the president of the Arab American Institute and a prominent Democrat activist, is also sending a letter of 

support to the Committee on behalf of Judge Saad. 

Please allow me to share just a few more of these from two very, 

very respected jurists in Michigan’s legal community. 

‘‘Judge Saad is one of the most thoughtful and fair-minded jurists on the court.’’ Stephen Markman, Michigan Supreme Court 

Justice and former Senate Judiciary Committee staff member, and 

that ought to say it all for you, Mr. Chairman. 

Chairman HATCH. That says a lot. 

Representative ROGERS. And I quote again: ‘‘Henry Saad has distinguished himself as an independent jurist who respects the rule 

of law, the independent of the judiciary, and the constitutional role 

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of the judiciary.’’ Maura Corrigan, Michigan Supreme Court Chief 

Justice. 

Now, in the courtroom, Judge Saad has served the citizens of 

Michigan with competence and integrity. He has significant appellate experience in both civil and criminal matters, authoring well 

over 75 published majority opinions. The respect afforded Judge 

Saad is best exemplified by the broad bipartisan support of his 

nomination to the Federal appellate bench. Groups as disparate as 

the United Auto Workers and the Michigan Chamber of Commerce 

have endorsed his nomination. 

Furthermore, Judge Saad was asked to serve on the Iraqi Advisory Committee of the American Bar Association by former Detroit 

Mayor and incoming American Bar Association President Dennis 

Archer. 

Like any public servant, Judge Saad is dedicated to improving 

the law and helping his State and local community through volunteer work. Judge Saad was the Chairman of the board of the Oakland Community College Foundation, president of the Wayne State 

University Law School Alumni Association, and he is currently a 

member of the Board of Visitors of the Ave Maria Law School. 

Additionally, in 1997, Judge Saad received the Salute of Justice, 

John O’Brien Award for Outstanding Volunteer Service to the People of Oakland County. In 1995, he received the Arab-American 

and Chaldean Council Civic and Humanitarian Award for Outstanding Dedication to Serving the Community with Compassion 

and Understanding. 

I think, Mr. Chairman, we have made quite clear his qualifications, and the good news in all of this is my two esteemed colleagues in the Senate, Senators Levin and Stabenow, don’t question the qualifications of Henry Saad to serve on the U.S. Circuit 

Court of Appeals. But while my primary mission today is to introduce my good friend and distinguished jurist, I would be remiss if 

I did not take the opportunity to address the emerging judicial crisis surrounding the Michigan nominees of President Bush to the 

Sixth Circuit. 

The fact is today represents the first hearing for a Michigan judicial nominee for over 21⁄2 years into the Bush administration. Just 

as there is no dispute over Judge Saad’s qualifications to serve on 

the Sixth Circuit, the same holds true for the remaining three 

Michigan nominees to the Federal appellate bench. The other 

judges—Honorable Richard Allen Griffin, Honorable David 

McKeague, and Susan Bieke Neilson—are all distinguished jurists 

who have served the citizens of Michigan with competence and integrity. All of Michigan’s four appellate nominees have received favorable ratings from the American Bar Association and have widespread bipartisan support and respect from the legal community. 

Senator your decision today to initiate hearings on the Michigan 

Four, as they have become known back home, is commendable, but 

only a start. Fairness to these judges and to the American citizens 

who seek the timely administration of justice requires that these 

nominees be provided not only a hearing but also a vote in the full 

Senate. The continued wholesale blocking of Michigan nominees, 

despite their unquestioned merit, is inconsistent with the dignified 

traditions of the United States Senate. 

302

Of course, it should also be noted that the wholesale blockade of 

Michigan nominees also extends to district court nominees Thomas 

Luddington and Dan Ryan as well. 

Moreover, the Sixth Circuit is critically understaffed as these 

nominees have been nominated to fill vacancies that have been designated—and I repeat again because it is this important, Mr. 

Chairman—by the non-partisan National Judicial Conference as 

‘‘judicial emergencies’’—again, unprecedented. 

Additionally, the United States Attorney’s Office for the Eastern 

District of Michigan issued a formal letter indicating that the severe understaffing in the Sixth Circuit hinders effective prosecution 

of criminal cases. Post–9/11, with all going on in the world today, 

Mr. Chairman, hardly do we find that acceptable circumstances. 

Again, unprecedented. 

In fact, the partisanship currently surrounding the Michigan 

Four is a recent phenomenon because there is a strong record of 

bipartisanship relating to former President Clinton’s Federal judiciary nominees from Michigan, and I just want to go over these real 

quickly, Mr. Chairman, if I may. 

Michigan Senator Spencer Abraham, a Republican, supported, 

even chaired the confirmation hearing for Hon. Eric Clay, who was 

President Clinton’s first nominee to the Sixth Circuit Federal Court 

of Appeals. With then-Senator Abraham’s strong support, Judge 

Clay was the first Clinton administration Federal appellate court 

nominee to get a hearing in the 105th Congress and the second to 

be confirmed by the Senate. Of 16 judgeships on the Sixth Circuit, 

Judge Clay continues to be the only Michigander. 

The bipartisanship during the Clinton administration did not end 

with Judge Clay. Then-Senator Abraham also supported Clinton 

Federal district court nominees Arthur Tarnow, George Steeh, Victoria Roberts, Marianne Battani, and David Lawson. These five 

judges, all with Senator Abraham’s support, are now judges on our 

Federal court. 

As you see, the partisanship surrounding Michigan judges is only 

of recent vintage. Unfortunately, Mr. Chairman, the citizens of 

Michigan are in grave jeopardy of losing Michigan’s voice on the 

Sixth Circuit. Four seats, one-quarter of the circuit’s membership, 

hang in the balance, and it would be an injustice for the people of 

Michigan to lose their representation in the judicial process. 

Mr. Chairman, as elected officials, we should work together to 

promote the system of justice that is timely, fair, and ensures 

Michigan’s residents are represented by Michigan judges. Again, 

this hearing is a step in the right direction, and I applaud you for 

the courage to proceed with this hearing and steadfastly urge without delay the swift confirmation of Judge Henry William Saad to 

the U.S. Court of Appeals for the Sixth Circuit. 

Mr. Chairman, I thank you, and I would ask that this place be 

the place where we seek justice and not seek retribution for at 

least perceived wrongs in the past. The fact that we do have a 

whole series of unprecedented events with the judicial emergency 

declaration and the Assistant United States Attorneys declaring 

the dangers of the vacancies of this court, I applaud again your 

courage for having this Committee hearing and nomination process, and I would hope that we could find that thoughtful debate 

303

and end what unfortunately has become a very partisan temper 

tantrum and come to the conclusion that justice should be brought 

to the people of Michigan in the Sixth Circuit. And I thank you 

very much, Mr. Chairman and Ranking Member, for the opportunity to testify today. 

Chairman HATCH. Thank you, Congressman Rogers. We appreciate your taking the time— 

Senator LEAHY. Mr. Chairman, if I might, when you finish, I 

want to say something while he is still here. 

Chairman HATCH. Sure. We appreciate your taking time to come 

over. 

Senator LEAHY. I want to say it while he is still here. 

Chairman HATCH. No, I understand. If you will wait so Senator 

Leahy can also make a comment. I know it is tough to give this 

kind of time over on this side of the Hill, but we are happy to have 

you here, and we appreciate your remarks. 

Senator Leahy would like to say something. 

Senator LEAHY. I also thank the Congressman for coming over 

here. He has been very patient. He has been here all morning, and 

I know with his workload that is also difficult, and his willingness 

to come here when he is not in session, when the other body is on 

recess, so I appreciate doubly your taking the time. 

Representative ROGERS. Thank you, Senator. 

Senator LEAHY. I was a little bit concerned hearing some of your 

statistics, and I know you did not intend this impression. But when 

you spoke of the vacancies, you understand that for 5 years there 

were nominees by President Clinton to fill some of those vacancies. 

They were never allowed to have a hearing or a vote. Had they 

been allowed that, had President Clinton’s nominees been allowed 

to even be voted on, there wouldn’t have been a vacancy. 

When I became Chairman, I very quickly after I became Chairman, even though these vacancies were all—by sworn statement, 

were kept vacancies so that President Clinton couldn’t nominate 

anybody. Notwithstanding that, shortly after I became Chairman, 

I held the first hearing on a Sixth Circuit nominee in, I think, 5 

years. It was President Bush’s nominee. And we have now confirmed four. We have actually had—since then we have had a 50-

percent increase between the time I was Chairman and Senator 

Hatch again was Chairman, we have had a 50-percent increase in 

the number of active judges on the court, four judges confirmed—

Rogers, Gibbons, Sutton, and Cook. I just didn’t want to leave the 

impression that nothing has been done nor that vengeance was 

taken because people nominated by President Clinton for the Sixth 

Circuit were not allowed to have hearings. 

In fact, as I said, the first such hearing in 5 years was one I held 

on one of President Bush’s nominees, and we have put in four 

judges and confirmed four judges to that circuit since then. 

Chairman HATCH. Well, maybe before you leave, Congressman, if 

you could give a few more minutes, we have a vote on, but I will 

just make some short comments, and then we will go to the vote 

and recess and come right back. 

Let me first point out that the current controversy about Michigan nominees dates back more than a decade. At the end of President George Herbert Walker Bush’s administration, Bush I, two 

304

Michigan nominees to the Federal courts, John Smetanka and 

Henry Saad—who is before us today—never got hearings in the 

Democratic-controlled Senate and failed to attain confirmation. 

Judge Saad has been waiting for 11 years. 

As President Clinton named his nominees to fill judicial vacancies, there was no expectation, let alone demand, that the two previous nominees be renominated by a new administration. Accordingly, President Clinton did nominate Michigan nominees to both 

the Sixth Circuit and the district courts. In fact, nine of those 

nominees were confirmed. A majority were confirmed during Republican control of the Senate; in other words, Clinton nominees. 

Two nominees, Helene White and Kathleen McCree Lewis, failed 

to attain confirmation. Now, I feel badly about that. The primary 

criminal for their failed nomination was the lack of consultation 

with one of the home State Senators, which is an absolute must in 

this process. And there was none. 

In his letter to the then–White House Counsel Beth Nolan, Senator Abraham wrote to express his astonishment and dismay that 

President Clinton forwarded the nomination for a Sixth Circuit 

seat without any advance notice or consultation. What was particularly troubling was that Senator Abraham had worked with the 

previous White House counsel, Mr. Ruff—a great man, by the 

way—to improve the consultation process. 

In fact, despite previous difficulties, Senator Abraham had fully 

cooperated with the administration in advancing the nominations 

of a number of Michigan nominees. Unfortunately, the situation 

again deteriorated, and the White House reverted to its previous 

pattern of lack of consultation. 

In fact, Senator Abraham was not consulted and, in fact, was 

told by the White House counsel that, despite earlier representations, the administration felt under no real obligation to do anything of the kind, which is unprecedented. And because of the 

White House’s lack of consultation, the nominations of the two individuals did not move forward. 

Now, this was consistent with both Democrat and Republican 

well-stated policy communicated to Mr. Ruff, that if good-faith consultation has not taken place, the Judiciary Committee will treat 

the return of a negative blue slip by a home State Senator as dispositive and the nominee will not be considered. 

Now, I also want to note that today’s hearing is not unprecedented. There have been nominations where negative blue slips 

were returned and a Senator’s objection was certainly considered, 

but did not stop the process or necessarily defeat the nomination. 

For instance, Albert Moon was nominated in October 1985 to be 

United States District Judge for the District of Hawaii. Although 

both home State Senators returned negative blue slips, a confirmation hearing was held in late November 1985. Mr. Moon’s confirmation was held over by the Committee in December 1985 in business 

meetings, and the 99th Congress adjourned before action on the 

nomination could be completed. 

Other examples are the nomination of John C. Shabazz, nominated to be U.S. District Judge for the Western District of Wisconsin, and the nomination of Judge John L. Coffey, of Wisconsin, 

to be U.S. District Judge for the Seventh Circuit. In both cases, 

305

Senator Proxmire returned blue slips prior to the Committee hearing, noting his objection to the nomination. 

In the case of Judge Shabazz, Senator Proxmire also appeared 

and testified at the Committee’s business meeting regarding his opposition to the nomination. Both confirmations were favorably reported by the Committee, and both were confirmed by the Senate. 

While Senator Biden was Chairman, the Committee considered 

the nomination of Vaughn R. Walker to be U.S. District Judge for 

the Northern District of California. Senator Cranston opposed, the 

Democrat Senator at that time opposed this nomination, sending 

letters to President Bush and Senator Biden expressing his opposition. In November 1989, the Committee favorably reported the 

nomination and the full Senate confirmed Mr. Walker by unanimous consent. 

Now, just to make the case a little more clear, I don’t feel good 

about Helene White and Kathleen McCree Lewis. But, of course, I 

had nothing to do with the problem, and the problems were created 

by the Clinton White House. 

Now, I would like nothing better than to work this out in a bipartisan way, and I have already talked to both Senators from 

Michigan and expressed that to them, and I will work to do that. 

This has been an embarrassing thing. 

But let me just make the record clear with this chart. The record 

is clear that previous Presidents were treated fairly by the Senate. 

It is time to give President Bush the same courtesy and move forward with his Michigan judges to the Sixth Circuit and to the district courts. 

And, by the way, my comments about if two negative blue slips 

are returned that person is basically dead referred to district court 

nominees. We are talking about circuit court nominees. And I don’t 

know of any cases where circuit court nominees have not been 

given at least a hearing and a vote. There may be some, but I cannot think of any off— 

Senator SESSIONS. Mr. Chairman, could I comment on that? 

Chairman HATCH. Could I just finish this? 

Senator SESSIONS. All right. 

Chairman HATCH. Then I would be glad to have you comment. 

Senator LEAHY. I will go first. 

Chairman HATCH. I have to go to the Ranking Member first, and 

then I will come to you. 

The record is clear that previous Presidents were treated fairly 

by the Senate, and I think President Bush deserves the same type 

of courtesy that the previous Presidents had, including President 

Clinton. And I think we should move forward with these Michigan 

judges to the Sixth Circuit and the district courts. 

Now, on this chart, during the current Bush Presidency, the Senate has confirmed no Michigan judges in almost 2 years. Six nominations are pending and have been for quite a while. 

During the Clinton Presidency, if you will notice there, the Senate confirmed nine Michigan judges, and I was Chairman for six 

of those years. 

Although two Michigan nominees were left unconfirmed at the 

end of the Clinton Presidency—Helene White and McCree Lewis—

306

two nominees were also left without hearings at the end of President Bush I when he ended his term in 1992. 

Now, during the first Bush Presidency, the Senate confirmed six 

Michigan judges, and two nominations were returned to the President. 

So for those who like to keep score and who think that is the way 

to do this, the Michigan judge tally would be as followed: the current President Bush, zero for six. Zero. Can’t even get a vote up 

or down in Committee. And up to now, lots of complaints about 

even holding hearings. But we have reached a point where the 

leadership has said these hearings have to go forward, and I think 

they are right. And we have given plenty of consideration to the 

negative blue slips, and I am going to give even more by trying to 

work out some bipartisan compromise if I can. But it is going to 

have to be a decent compromise. 

Bush II, zero for six, the current President Bush. President Clinton got nine; two didn’t make it. The prior President Bush, Bush 

I, got six but two didn’t make it. 

So when we talk about these things, we have got to get all the 

facts here, and, frankly, again, I will say that I don’t feel good 

about this controversy. I happen to like both Michigan Senators. I 

like Spence Abraham, too, and he was not without honor here. He 

was right in what he did. And everybody knew it here. So to now 

try and paint that like President Clinton was not being treated 

fairly is just not quite accurate, especially under those circumstances, because I was here and they did not even deign to talk 

to Senator Abraham, which is something that has to be done, no 

matter who is in the Presidency. And I believe this administration 

has been doing a good job. 

Now, some Democrats interpret it that unless they do what the 

Democrat wants them to, he is not consulting. Well, that is not 

what consultation is. 

So I just wanted to make those points. I will turn to Senator 

Leahy, and then I am going to finish with— 

Representative ROGERS. Well, I think the numbers are in your 

favor, Mr. Chairman, and I appreciate your effort for justice, not 

retribution. 

Senator LEAHY. If I might, Mr. Chairman, now that you have 

recognized me— 

Chairman HATCH. Sure. 

Senator LEAHY. And I certainly don’t want to cut off Congressman Rogers. I want him to have time, too. But for those who think 

we don’t always agree on things, I happen to absolutely agree with 

Senator Hatch that it is important to have all the facts, and two 

of them were sort of overlooked in this. 

One, we talked about Henry Saad being sent up here by former 

President Bush and not given a hearing. The little thing that was 

overlooked, it was 6 days before the end of the session. A number 

of nominees, quite a large number of nominees, were sent up by 

former President Bush just a few days before the end of the session. It was made very clear by folks at the Bush White House that 

they knew they would not get a hearing under the so-called Thurmond rule, Strom Thurmond’s longstanding rule that within 6 

months of an election you don’t hold hearings on judges unless you 

307

have both the Chairman and Ranking Member and both party 

Leaders agree. And I don’t know anybody who has ever had a hearing 6 days before you are about to adjourn. 

But they were sent up for two reasons: one, former President 

Bush fully expected to get re-elected; but, secondly, it was a nice 

political thing to lay out a number of these judges in different parts 

of the country and say now here is the kind of people I want for 

my next term. Nobody, Republican or Democrat, in my 29 years 

here has ever expected somebody to be confirmed 6 days before adjournment, nor did former President Bush. I think what he expected to do was be re-elected, and he was just going to put all 

these people in early on in the next year. That is just one fact that 

should be put out. 

Another one, when we talk about procedures of past Chairmen, 

my Chairman is this man. He is my Chairman, and I want to talk 

about his procedure, which is this: Never once, never once, when 

it was a Democratic President did he violate the blue slip rule. And 

those negative blue slips were all from Republican Senators— 

Chairman HATCH. Ronnie White. 

Senator LEAHY. Never once. 

Chairman HATCH. Ronnie White. 

Senator LEAHY. Never once did he—you actually had favorable 

blue slips on Ronnie White, and then when— 

Chairman HATCH. Negatives. 

Senator LEAHY. No, you had two positives. He was voted out of 

Committee, and then Senator Ashcroft said, wait, I have changed 

my mind, I am not in favor of him. And Senator Bond— 

Chairman HATCH. At the time of the vote there were two negative blue slips. 

Senator LEAHY. Yes, well— 

Chairman HATCH. And he got a vote. He got a vote. Our people 

aren’t getting votes. 

Senator LEAHY. He got sandbagged. 

Chairman HATCH. We are being filibustered. 

Senator LEAHY. He got sandbagged and you know it. 

I am going to go vote, speaking of votes. 

Chairman HATCH. All right. Senator Sessions? 

Senator SESSIONS. I was going to recall, Mr. Chairman, your 

leadership in opposing a movement when President Clinton was 

President to expand the power of the blue slip to circuit judge 

nominees, and Republicans wanted to do that. You said that we 

should not do that, we should maintain the position that on a circuit nominee, a blue slip was not dispositive. And you stood firm 

on that, and we had a vote on it, and your position prevailed. 

You have shown integrity and consistency in these issues. 

Chairman HATCH. Can I interrupt you on that? You know, it was 

not unreturned blue slips that prevented hearings for Clinton 

nominees. It was the utter lack of consultation by the Clinton 

White House with home State Senators that prevented those nominees from going forward and getting votes. That is a rule that really we have always honored around here. 

Now, look, there are some nominees I wish could have gotten 

through. I think I have expressed that. But I acted in good faith 

to move as many judicial nominees as I could, and I think my 

308

record is pretty darn good. It was much better than the record 

when the Democrats controlled the Congress. 

I don’t want to go into all the statistics. We have been through 

them before, but the fact of the matter is it was much better. And 

I get a little tired of this partisanship that keeps coming up with 

selective recollections. 

Sorry to interrupt you, Senator, but to be honest with you, this 

is the third nomination of Judge Saad, and he hasn’t been given 

the time of day until now. I think it is time to start giving people 

at least the time of day. And, frankly, these nominees deserve upand-down votes. Maybe they will be defeated. I don’t know. But 

they deserve—the President deserves up-and-down votes, and especially when they get out of Committee and get to the floor, and especially when they are on the floor. We have never in the history 

of this country had a filibuster, a true filibuster against a judicial 

nominee until this President. And, frankly, it is not only unjustified, it is reprehensible what is going on. 

I am sorry to keep you here, but I think it is important— 

Representative ROGERS. Absolutely, Mr. Chairman. 

Chairman HATCH. —that you report back to our friends in Michigan that this is not quite as clear-cut as our friends on the other 

side are trying to make it. In fact, it isn’t the way they are trying 

to make it. 

Senator I am sorry to interrupt you. 

Senator SESSIONS. Well, John Smetanka was a United States Attorney with me. He was a brilliant guy, a decent person. Everybody 

liked him, moderate in demeanor and philosophy, studied at Catholic Seminary, just in every way a fine person. He sat over a year 

and never got a vote. And I remember that one distinctly. We were 

all just very concerned, his fellow United States Attorneys were, 

that he was denied that. 

The first 9 nominees out of 11 that President Bush sent forward 

never got a hearing, I do not believe. Nine of the 11 never even got 

a hearing when the Democrats controlled this Committee for almost 2 years. That was an unprecedented blocking of nominees. I 

have never—I don’t think we have ever seen that. 

When we first started this new Congress and President Bush 

was elected, the Democrats demanded, after having complained 

about blue slip policies when President Clinton was President, they 

demanded enhanced power to block nominees with a blue slip. You 

remember that? It was very intense. They just demanded they have 

even more power to block nominees, and hopefully that didn’t happen. 

Another unprecedented thing happened. Two nominees for the 

circuit court were voted down in Committee, Priscilla Owen and 

Pickering. No Clinton nominees were ever voted down in Committee the entire time you were Chairman, Mr. Chairman. 

Chairman HATCH. That is right. 

Senator SESSION. We had filibusters in Committee. That has 

never been done before, and you finally invoked the power of the 

Chair to call a vote, which you have the power to do, to end the 

filibuster in Committee, and we have had filibusters on the floor 

of the United States Senate for Federal judges, which has never occurred in the history of this country. 

309

So for the Democrats to suggest that they are somehow carrying 

on in the fashion that was carried on when President Clinton was 

nominating and Republicans had the majority here is just wrong. 

They have changed in a whole lots of ways and using a blue slip 

to block every nominee, four of them en bloc, without stating any 

objection for them, is such an abuse of that policy, I think we just 

simply have got to confront it, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. 

We have got to get over. We are late for a vote. But let me just 

say this: There has been a rumor that somebody on the Democrat 

side might invoke the 2-hour rule. I hope that is not true, but that 

has been a rumor. But if they do—and they would have a right to, 

although I think it would not be good faith in my eyes. But if they 

do, then we will have to recess until the end of the session today, 

and we will continue to finish this hearing by the end of the day. 

So I just want to make everybody aware that that is not going to 

stop this hearing from going forward. It is just going to make it inconvenient and miserable for everybody if that happens to occur. I 

hope it will not, and I hope that is just a rumor. But I have heard 

it, and I just thought I would make that clear so everybody will understand. 

I want to thank you for your patience, for being here, and for 

your kind remarks. 

Representative ROGERS. Thank you, Mr. Chairman. 

Chairman HATCH. And I want to thank the other two Senators 

as well. I appreciate their position. I appreciate their feelings. And 

I want to try and help them and help Michigan, if I can. But I sure 

as heck think we ought to get up-and-down votes for these people. 

Representative ROGERS. Thank you for your passion, Mr. Chairman. 

Chairman HATCH. With that, we will recess until I can get back. 

[Recess 12:20 p.m. to 12:44 p.m.] 

Chairman HATCH. I am going to wait just a few more minutes, 

and then I am going to start. I hate to start without Senator 

Leahy, but I have been waiting for almost 15 minutes. I know 

there is not a follow-up vote. So I hope the Democrats will send 

somebody in here for this hearing, but if not, we will proceed. 

I have been informed by my counsel that Senator Leahy said to 

go ahead and start. So, Judge Saad, we are going to ask you to 

come forward. Please raise your right hand. Do you solemnly swear 

to tell the truth, the whole truth, and nothing but the truth, so 

help you God? 

Judge SAAD. I certainly do. Thank you. 

Chairman HATCH. Thank you. 

STATEMENT OF HENRY W. SAAD, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SIXTH CIRCUIT 

Judge SAAD. Shall I be seated, Mr. Chairman? 

Chairman HATCH. You surely can. We are very honored to have 

you before the Committee. You have an excellent reputation, as has 

been explained here by the Congressman, and I am well aware of 

it myself, having followed this saga now for the last 11 years. And 

I intend to see that you are treated fairly, and I intend to see that 

their nominations are treated fairly, if we can, when they achieve 

310

the Presidency. But the point I have been making is I don’t think 

President Bush has been treated very fairly, although I think we 

treated their nominees as fairly as I could under the circumstances. 

Now, we are honored to have you here with members of your 

family and your friends, some of your friends. Would you care to 

make a statement before the Committee? 

Judge SAAD. The only statement I would like to make, Mr. Chairman, is that I am absolutely pleased and honored to be here. I have 

had a great respect as a student of government for our Government 

in total, what our Founding Fathers did for this Senate, and its 

traditions, and I respect and honor what you are doing and what 

the Senate Committee is doing, and I am prepared to answer any 

questions that you may have. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you. I appreciate that. 

I was going to turn to Senator Leahy first and have him ask 

whatever questions he felt inclined to do, but let me at least start 

it, and hopefully he will arrive or one of the Democrats will. Usually we have at least one who will represent the Democrats. 

Judge Saad, you have a lot of experience as a practicing attorney, 

as a teacher of law, as a State appellate judge. How has this experience prepared you to be a judge on the Sixth Circuit Court of Appeals? 

Judge SAAD. Thank you, Mr. Chairman, for that question. I think 

the most important quality of an appellate judge is the ability and 

the willingness to listen to both sides, to give the litigants and the 

attorneys who argue before the court the respect due the positions 

they have. 

Chairman HATCH. Thank you. I have— 

Judge SAAD. To keep—I’m sorry. 

Chairman HATCH. Keep going. I am sorry. I thought you were 

through. Go ahead. 

Judge SAAD. To keep an open mind, not to pre-judge matters, to 

give both the—not only the fact of impartiality but the appearance 

of impartiality. I’ve had the honor of teaching legal ethics, what we 

call professional responsibility, in one of our local law schools. And 

what we teach the students and what I have tried to teach interns, 

externs, anybody that I work with, is that you accord the parties 

a fair hearing, you keep an open mind. You’re governed by the rule 

of law, not your own intuitions. And, indeed, as complicated as the 

law is these days, if we just go by gut instinct and intuition, I think 

all of us who are lawyers know that you would end up with some 

difficulty. 

The real purpose of appellate review is to make, at least in our 

court, as an intermediate appellate court in Michigan, is to be an 

error-correcting court, to follow the rule of law, which means also 

to follow the rule of law that governs our conduct as judges, so that 

if the standard of review is clearly erroneous or de novo or abuse 

of discretion, those rules govern us. So we abide by the rules, and 

we give people a fair hearing, keep an open mind. 

Chairman HATCH. Well, thank you. 

Let me interrupt for a second and put the statement of Senator 

Richard Durbin into the record at the appropriate place. 

You have been active in a number of legal, civic, and charitable 

organizations. Could you please explain to the Committee what you 

have done to reach out to all segments of society and what results 

you feel that you have achieved in doing this type of work? 

Judge SAAD. Well, I think it is important for a lawyer and our 

professional rules of responsibility say that it’s important for a lawyer to give back to the community. So as a lawyer, I was involved 

in, as I’m sure the record will show, numerous charitable and legal 

organizations: Wayne County Neighborhood Legal Services, which 

provided legal service to the poor; New Detroit, which tried to seek 

some common ground with some of the issues that Detroit faced in 

the mid- to late 1960’s. I’ve worked with the National Conference 

of Christians and Jews for outreach and ecumenical purposes. 

Teaching law school is another way to give back to the community. 

I teach at two local law schools, and I’m on an advisory board of 

374

a third. And the list can go on, but I don’t want to take all your 

time going through all that. But I think it’s very important in all 

of these outreach activities. 

I’ve also worked with various committees of the American Bar 

Association over the years. I’ve worked on committees of the Michigan Bar Association, the Detroit Bar Association. So giving back to 

your profession both by working through committees of the various 

bar associations and I think your ethnic and religious communities 

for purposes of bringing people together is very important. And 

then I think the litigants in your courtroom have the impression 

that not only are you somebody who takes the law seriously, but 

you take your role as a human being in giving back to society very 

seriously. 

Chairman HATCH. I know you very well. I know your reputation. 

I know what you have done. I have a tremendous amount of respect for you. I don’t see any reason to ask you any further questions. 

I think what I am going to do, though, is ask you to stay here 

because I have been informed that perhaps Senator Edwards will 

be coming. I would like to give any Democrat who wants to ask any 

questions some time with you. 

Judge SAAD. I would be pleased to do that, Mr. Chairman. 

Chairman HATCH. I hate to have you just sit and wait, but I 

want to be fair to my colleagues. 

Judge SAAD. I would be pleased to wait at your discretion. 

Chairman HATCH. Well, thank you so much. Then what I will do 

is I will begin with the other district court nominees, and I will 

move ahead with them. But if any of the Democrats arrive, I will 

have to interrupt them so that they can get back to you, if that is 

all right with the district court nominees as well. 

Judge SAAD. Okay. 

Chairman HATCH. So, with that, we will ask you to stick around 

for a while. I won’t keep you all day. If nobody shows up, they 

won’t show up. 

Judge SAAD. Thank you, Mr. Chairman. I’d be happy to. Thank 

you. 

Chairman HATCH. Okay. Thank you. 

Chairman HATCH. Then if I could have Larry Alan Burns, Glen 

E. Conrad, Henry F. Floyd, Kim R. Gibson, Michael W. Mosman, 

and Dana Makoto Sabraw all take your seats, I would appreciate 

it. Well, if you could all raise your right hands, if you would. Do 

you solemnly swear to tell the truth, the whole truth, and nothing 

but the truth, so help you God? 

Judge BURNS. I do. 

Judge CONRAD. I do. 

Judge FLOYD. I do. 

Judge GIBSON. I do. 

Mr. MOSMAN. I do. 

Judge SABRAW. I do. 

Chairman HATCH. Thank you very much. Please take your seats, 

and we will go from my left to your right. And we will start with 

you, Judge Burns, if you have any comments you would care to 

make. I think most of you have introduced your family and your 

friends, but those of you who haven’t might want to take the opporVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00386 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.002 SJUD4 PsN: CMORC
375

tunity to do that. In that regard, we welcome all of you here. This 

isn’t always the most pleasant Committee to watch or to sit 

through. It has become one of the most partisan committees I have 

ever sat on, and, frankly, it gets really old to me. But that is the 

way it is, and it is a great Committee and we have great people 

on this Committee, people of tremendous ability, but a lot of deep 

feelings. And so I apologize in part for the Committee and the way 

we act from time to time, but there are some deep, strong feelings, 

and I think people need to know that. 

Judge Burns, we will start with you. You need to press this little 

button in front. You will see a little red light come on if you press 

it lightly. 

Judge BURNS. I think I did it. 

Chairman HATCH. Okay. You will all need to do that. 

STATEMENT OF LARRY ALAN BURNS, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge BURNS. I have no opening statement. I want to reiterate 

what Judge Saad said. I’m pleased to be here. I thank the Chairman and the Committee for holding a hearing and am looking forward to answering any questions the Committee may have. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you. 

Judge Conrad? 

STATEMENT OF GLEN E. CONRAD, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF VIRGINIA 

Judge CONRAD. Senator, likewise, I’m very pleased to be here. 

It’s not very often that we in the judiciary get to see our representative Government at work, and it’s thrilling for me to attend this 

hearing and to participate and to answer the Senators’ questions. 

[The biographical information follows:]

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Chairman HATCH. Well, you are a glutton for punishment if you 

want to see this representative Government. 

[Laughter.] 

Chairman HATCH. No, I appreciate that. I am just trying to be 

humorous. 

Judge Floyd? 

STATEMENT OF HENRY F. FLOYD, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF SOUTH CAROLINA 

Judge FLOYD. Thank you, Mr. Chairman. I have no opening 

statement except to reiterate that I’m glad to be here and I appreciate the opportunity to have this hearing and answer your questions. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you so much. 

Judge Gibson? 

STATEMENT OF KIM R. GIBSON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

Judge GIBSON. Thank you, Mr. Chairman. I don’t have any opening statement either. I want to express my appreciation to the 

Committee for having me here and what a great honor it is to appear before this body, and especially nice is the fact that a lot of 

my family could be here with me, and I’m sure it’s something 

they’ll always remember. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you so much. 

Mr. Mosman? 

STATEMENT OF MICHAEL W. MOSMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF OREGON 

Mr. MOSMAN. Thank you, Mr. Chairman. I also have no opening 

statement. I’m honored to be here and prepared to answer this 

Committee’s questions. 

[The biographical information follows:]

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Chairman HATCH. Well, thank you so much. 

Judge Sabraw? 

STATEMENT OF DANA MAKOTO SABRAW, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge SABRAW. Thank you, Mr. Chairman. Like my colleagues, 

I do not have an opening statement, but I am honored and delighted to be here and happy to answer any questions. 

[The biographical information follows:]

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542

Chairman HATCH. Well, let me tell you how honored we are to 

have all of you here. It is a terrific thing for us, and, frankly, I feel 

very, very good about all of your willingness to serve. It seems to 

me that we are blessed to have people of your quality willing to 

give up what really is a lucrative profession to serve at the level 

that you are willing to serve. It is not easy in this day and age, 

and we are finding that there are some people who will not accept 

these positions because of the low pay in comparison to what they 

make as lawyers. But there are many, many others who really 

want to give service to our country, and I don’t know of any entity 

that is more important than the third separated branch of Government, the Federal court system. So it is very, very important what 

you are doing, and we are very grateful to have all of you here. 

Let me start with you, Judge Burns. Before becoming a magistrate judge, you spent your career as a prosecuting attorney, primarily handling criminal cases. As a judge, the majority of the 

cases you have handled are civil in nature. How did you prepare 

yourself to make this transition from being a prosecutor, from litigating primarily criminal cases, to deciding primarily civil cases 

given your background? 

Judge BURNS. Thank you, Senator, for giving me the opportunity 

to explain that. 

I had some experience in the business community. I served on a 

board of directors for a local bank in San Diego. I was the only lawyer on the bank for about 3–1/2 years and, as such, I managed our 

civil litigation. I didn’t personally handle the cases, but I hired our 

outside counsel, and I monitored all of our legal activity. 

Aside from that, I found that the number of cases I tried as a 

prosecutor prepared me quite well to understand issues, to get to 

the important issues in a case, and to focus parties’ attention on 

issues. And I found that the dichotomy between civil and criminal 

law in that regard wasn’t as great as it seemed. 

Chairman HATCH. Okay. Thank you. 

As a former prosecutor, what assurances can you give to criminal 

defendants who appear before you that they will receive fair treatment in your courtroom? 

Judge BURNS. Well, I can give them the assurance of a track 

record. I have been endorsed, as the Chair probably knows, by the 

criminal defense organizations in San Diego. There was that concern, of course, anytime a prosecutor takes the bench, but I think 

my record over the last 6 years has been one of being a balanced 

person who listens carefully to both sides and hits the ball right 

down the middle. 

Chairman HATCH. That is my belief. 

Mr. Conrad, Judge Conrad, you have spent practically your entire career as a United States magistrate judge. You are now being 

nominated for a lifetime position as a Federal judge in the District 

Court for the Western District of Virginia. In what ways has this 

prepared you? And I am also impressed by your desire that you 

have shown, which to me is a passionate interest, in educating future lawyers about Federal court civil procedure and practice and 

legal practice in the Western District of Virginia. Could you please 

talk a little bit about your longstanding involvement in continuing 

legal education as well? 

543

Judge CONRAD. Thank you, Senator, for the opportunity to address those subjects. 

Yes, I have been a United States magistrate judge for many 

years, and public service was the field which I always wanted to 

enter. As for the question concerning preparation to serve as 

United States district judge, as you know, Senator, the function of 

the magistrate judge and United States district judge overlap to a 

very great extent, and I think it’s a very good training field, a very 

good basis for preparation to serve in that higher office. 

We are committed in the Western District of Virginia to educating the younger lawyers about the Federal court, encouraging 

both litigants and attorneys to use the forum provided by the Federal court, not to be afraid of the rules and not to be afraid of the 

procedures, but to embrace those and use them to their clients’ 

benefit. And I believe that we’ve been successful in making the 

Western District of Virginia a comfortable place and a user-friendly 

place to practice law. 

Chairman HATCH. Great. 

Judge Floyd, tell the Committee about your work on the Board 

of Commissioners on Grievances and Discipline, which, as I understand it, is empowered to deal with complaints against members of 

the bar and, of course, has a concomitant duty to make recommendations for disciplinary conduct and how this experience 

may have helped you to become a judge? 

Judge FLOYD. Thank you, Mr. Chairman. I’ve had the opportunity to serve both on the Lawyers’ Grievance Committee as well 

as the Commission on Judicial Conduct where we investigate and 

conduct hearings and make recommendations for disciplinary actions against attorneys as well as judges. That early on prepared 

me to become a circuit judge, because that is pretty much what I 

would do after I was sworn in as a circuit judge. It’s a process of 

being open-minded and doing a thorough investigation and trying 

to be fair to all sides and reach a proper result. 

Chairman HATCH. Thank you. 

Judge Gibson, you have had a long and successful career in the 

United States Army, particularly as a Judge Advocate General. 

How has that prepared you for this current calling that you now 

receive from the President? 

Judge GIBSON. Well, thank you for that question, Mr. Chairman. 

As well as many other life experiences that I’ve had— 

Chairman HATCH. One other aspect of that, too, though, just one 

other question so you can answer both at the same time. During 

your tenure on the bench, you have been instrumental in initiating 

the victim impact panels and the juvenile drug court, which is only 

the second court of its kind in Pennsylvania on which you serve as 

a judge. So I would like you to also include that in your explanation as to how that may have helped you and your reasons for 

starting those initiatives. 

Judge GIBSON. Well, thank you very much, Mr. Chairman. With 

regard to your first inquiry about my experience in the Army, I 

think it helped me develop a sense of fairness and an ability to 

work with people and the ability also to make decisions when they 

need to be made and weigh all the factors and treat people with 

respect when you are doing that. And I try to do that with all the 

544

litigants and the counsel and witnesses who come into my courtroom. 

With regard to the juvenile drug court program that we initiated, 

you’re correct that it was the second such court in Pennsylvania, 

and it has given me one of my most memorable experiences in the 

judiciary because we’ve been able to get kids to go back to school, 

complete grades, whereas, before, they had been failing. We’ve been 

able to keep them drug-free with the work of the whole Committee 

that we work with, working with their parents. And we do that by 

bringing them into court frequently and supervising and encouraging. 

As far as the victim impact panel, Mr. Chairman, before I took 

the bench, I went and sat and listened to a victim impact panel 

where the mother of someone who had been killed in a drunk-driving incident testified and stated what had happened to her. And I 

was so moved by it that I thought that anyone who came before 

the court for a drunk-driving type offense would benefit from hearing the terrible consequences that can occur from that. So we did 

initiate that, and we now require that as part of the probation and 

the diversionary programs that we do have. 

So I think both those programs have worked well. 

Chairman HATCH. Well, thank you. 

Mr. Mosman, you have spent quite a bit of time in your professional career in the U.S. Attorney’s Office for the District of Oregon. I would like you to expand on how your experience there has 

prepared you to be a Federal judge, and let me just add another 

question so you can answer both at the same time. 

Having appeared before judges on many occasions during the 

course of your distinguished legal career—and you have a distinguished academic background as well, as do all of you—I am sure 

you have had ample opportunity to reflect on the quality of judge 

that you would like to become. And I would not mind hearing you 

describe briefly for the Committee what you think the proper role 

of a judge in our constitutional system is and what qualities you 

believe are necessary for a judge to fulfill a Federal judgeship role. 

Mr. MOSMAN. Thank you, Mr. Chairman. I think the principal 

thing about my career in the U.S. Attorney’s Office that has helped 

me prepare for this nomination is my experience with many different criminal trials. I’ve had the opportunity perhaps in this kind 

of career to try more cases than I might otherwise have done. And 

so seeing those trials, participating in them, watching how that 

unfolds in Federal court has been very beneficial to me. 

I think also it’s given me an opportunity to watch Federal judges 

in action and, as you have said, to ponder what it means to be a 

Federal judge, what those qualities are that make for a good Federal judge. I think I would go back to the time I had with Justice 

Lewis Powell, where I first really saw in action the kind of civility 

and decency and respect that he manifested constantly to litigants 

that really for me are the primary hallmarks of a great judge. 

Chairman HATCH. The reason I ask these questions in a very 

real sense is, having practiced in federal courts myself, and having 

had at least two major curmudgeon judges, trial judges, during my 

tenure, both very brilliant people—Wallace Gorley in the Western 

District of Pennsylvania and none other than the heralded and faVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00556 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.002 SJUD4 PsN: CMORC
545

bled Judge Ritter in Utah—we sometimes get the attitude around 

here that once you get to these lifetime appointments, the whole 

demeanor changes and it goes to some of the judges’ heads where 

they think they—you know, they will acknowledge that they are 

the closest thing to godhood in this life, but some of them think 

they have actually achieved godhood. So we have to continually 

talk in those terms, that the service you give is service that should 

be fair to everybody—litigants, attorneys, people in the courtroom, 

witnesses, et cetera. And some judges go way beyond where they 

should go, in my opinion. And I just want to kind of hope you will 

always remember this discussion here in this hearing room today. 

Judge Sabraw, you have been recognized for your pro bono efforts by various Committee organizations in San Diego and surrounding areas. Now, would you agree that the most effective 

means for a judge to implement change in the Committee is not 

simply from behind the bench but, instead, must include direct 

interaction with the members of the community over whom he presides? And as an attorney, your litigation experience focused predominantly on civil matters, yet since your appointment to the 

bench, you have handled a varied docket. As a matter of fact, in 

2000, you were named the Criminal Presiding Judge of the North 

County Division of the San Diego Superior Court. 

How do you think your litigation and judicial experience will best 

aid you in the challenges that await your confirmation on the 

bench for the Southern District of California? 

Judge SABRAW. Yes, thank you, Mr. Chairman. I think the opportunity I’ve had on the State bench is a wonderful platform for the 

Federal bench. I served on the State court for 8 years. Equally divided in those years, I’ve handled both civil and criminal cases. 

Prior to becoming the criminal supervising judge for the North 

County, I handled felonies exclusively, serious felony crimes of all 

sorts, and then 1 year as criminal supervising judge assigning out 

cases and handling all of the plea dispositions. 

Thereafter, and to date, I’ve served exclusively in a civil direct 

calendar department covering general jurisdiction, multi-party litigation cases. So I’m hopeful that that experience will feed directly 

into a smooth transition onto the Federal bench. 

Chairman HATCH. Well, thank you so much. I really appreciate 

it. 

I have looked over your careers and your resumes and your work 

that you have done, both outside the bench and on the bench. And 

I am really impressed with all of you, and I think everybody on this 

Committee should be impressed with all of you. And I hope that 

we can get you through. It is apparent we cannot get you through 

before the August recess. I would have to put you on tomorrow’s 

markup, and I think that would be difficult to do under the current 

circumstances. But I will do everything in my power to put you on 

the markup when we get back and get you through as soon as possible, because every one of you will be filling seats that are drastically needed. And I have seen a lot of panels in my day and an 

awful lot of good people who are serving in the Federal judicial system, but I don’t know that I have ever seen a better panel than 

this one. 

546

So I just want to compliment each and every one of you for being 

willing to participate, being willing to interrupt your careers, being 

willing to go on these lifetime, very lonely positions, because once 

you go on the bench it is pretty tough to really do a lot of things 

that you have been used to doing without serious criticism. So you 

do kind of go into a cloister, to a degree—not nearly as bad as the 

Supreme Court. I will never forget I went over there not too long 

ago, and one of the Justices came running up to me and said, ‘‘Oh, 

a real human being.’’ 

[Laughter.] 

Chairman HATCH. He said, ‘‘We never see any real human beings 

over here.’’ I think he was excluding his clerks and secretaries, but 

the point is that it is a cloister and it is a difficult place. 

Now, Senator Edwards is here. I am through with my questions. 

I am through with my questions of this district panel, but we can 

come back to Judge Saad anytime you want to if you care to ask 

any questions of these folks. 

Senator EDWARDS. I don’t, Mr. Chairman. Could I just make—in 

fact, I don’t need more than 60 seconds. I just wanted to make a 

quick point, and if you want to conclude with— 

Chairman HATCH. Well, why don’t I release them, then, and tell 

you that we will do our best to get your through right after we get 

back from the recess. We will do everything in our power to do this 

for you, and I believe we will get you through. 

So, with that, we are going to release you and allow you to go. 

I just feel fortunate we were able to get this done, so thanks so 

much for being here. We appreciate your service. We appreciate 

your willingness to serve our country. Thanks so much. 

Judge BURNS. Thank you, Mr. Chairman. 

Judge CONRAD. Thank you, Mr. Chairman. 

Judge FLOYD. Thank you, Mr. Chairman. 

Judge GIBSON. Thank you, Mr. Chairman. 

Mr. MOSMAN. Thank you, Mr. Chairman. 

Judge SABRAW. Thank you, Mr. Chairman. 

Chairman HATCH. All right. Let’s have Judge Saad come back up 

to the witness table. Senator Edwards would like to make a statement, and then we will go from there. 

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

Mr. Chairman, as you know, you and I and the White House 

worked very closely together to reach a consensus on Judge Allyson 

Duncan and her nomination to the Fourth Circuit Court of Appeals, which moved through the Committee quickly and moved 

through the United States Senate with strong support. I think it 

is an example of what can be constructively accomplished when we 

go about this process the right way, in a constructive way, and 

reach consensus about these nominees. 

My concern about Judge Saad is going forward with the nomination of a judge over the objection of both home State Senators. I 

think it is important not just for those Senators but for the process, 

for us to go about this in exactly the way we did with Judge Duncan, which I think is the process that works and the process that 

we should adopt as a model. And I just wanted to come for the purpose of—I don’t have questions for the judge. I wanted to come for 

the purpose of expressing that, with all respect to the Chairman, 

547

who has worked with me on any number of issues. But on this particular issue, I think it is of great concern to me to go forward with 

Judge Saad over the objection of both of his home State Senators, 

particularly when we have a model like Allyson Duncan, which I 

think represents what we should be doing. 

And I would just ask the Chairman if I could put my full statement in the record. 

Chairman HATCH. Without objection, we will do that. 

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

Chairman HATCH. I agree with you, it is wonderful when we can 

have cooperation and everybody is working closely together. 

I think we have made a case that Judge Saad, in his third nomination and waiting 11 years, deserves to be considered and have 

a vote up and down. But there is a difference in feeling on this, 

and I acknowledge my colleagues and respect my colleagues in that 

regard. 

By the way, for the district court nominees, we are going to keep 

the record open, as we will with you, Judge Saad, if nobody else 

comes, we will keep the record open for written questions, and any 

Senator on this Committee can ask any questions they want, and 

we will keep the record open until next Monday. And hopefully the 

Senators will put their questions in writing, and that will give all 

of you a month to answer the questions, which is usually enough 

time. 

So, thank you, Senator. 

Senator EDWARDS. Thank you, Senator. 

Chairman HATCH. I think what we will do is just wait for a few 

more minutes and see if there are any other Democrats who would 

care to ask any questions. 

Sorry to do this to you, but I want to give my colleagues every 

chance to come and ask any questions they care to. 

Judge SAAD. I understand the professional courtesy, Mr. Chairman. Thank you. 

Chairman HATCH. We will release the district court judges. I 

don’t think there is anybody who is going to come and ask any 

questions. So if you would care to go, you have got our approval. 

But please answer your written questions as soon as you can. 

[Pause.] 

Chairman HATCH. I have been informed that there are no other 

Democrats who are planning on coming, but let the record show 

that we have been here for 3 hours, most all of which has been 

spent on Judge Saad. I am willing to spend all day, if necessary, 

to allow any Democrat the opportunity to question. This is the time 

to do so. But in the event none are going to come—and I have been 

informed they will not—we will keep the record open for them to 

file written questions. 

I don’t see any reason for a further hearing. You have presented 

yourself. You have been here long enough, and everybody has really had an opportunity, and an ample opportunity, to come and ask 

you any questions they would care to ask. And I am hopeful that 

we can—I hope I can find some Solomonic way of resolving this impasse because the four circuit court of appeals judgeship nominees 

by this administration all appear to be excellent to me, and I think 

548

to the people of Michigan. And for the people of Michigan, this is 

not fair to have this impasse because the people of Michigan are 

not getting the judicial representation that they deserve, and ultimately if this continues on, I think it is going to be much to the 

detriment of the State. And I think we have made a pretty ample 

case that because of the lack of consultation, that is why the two 

judges did not get through, although nine did. And I was one of 

those who saw that they got through. And I would have seen that 

the other two got through had it not been for that type of inappropriate impasse. 

The administration, whichever it is, has an obligation to consult. 

I admit some of our Democrat friends think that consultation 

means approving whoever they want to approve, not the administration. Unfortunately, the Constitution doesn’t back them up. The 

Constitution says the President has the power of nomination. 

Now, we do have the power of advise and consent, but that 

means a vote up and down. It means holding hearings and asking 

good questions, and maybe sending interrogatories or written questions. But it ultimately means a vote up and down. That is what 

the advise and consent process should be, especially where there 

has been consultation. And in your case, Judge Saad, there has 

been ample consultation, more than ample. In the case of Kuhl, 

overwhelming consultation with both California Senators, but especially Senator Boxer, who was the first one to withhold her blue 

slip or to send in a negative blue slip. And I think in every instance 

this administration has made an effort to consult with Senators up 

here of both parties. And in your case, they certainly have done so, 

and it isn’t fair for good nominees like you and the others to be 

held up under these circumstances, and to be held up crying foul 

over Helene White and Kathleen McCree Lewis, both of whom are 

nice people. And I know of both of them. I knew Ms. Lewis’ father, 

Wade McCree, and thought the world of him and would like to 

have helped her. But under the circumstances, I have to—there is 

only so much I can do, also. 

With regard to never having brought up a judge with two negative blue slips, it is basically true with regard to district court 

nominees. But I can remember when Ronnie White was brought up 

and both negative blue slips were there. I could have refused to go 

to a vote, but we went to a vote, and he at least got a vote up and 

down, which is something that is not being accorded the Bush 

nominees. And I might add—the Bush II nominees, we will put it 

that way, and many of the 54 holdovers that were left at the end 

of the Bush I administration, including you, Mr. Saad—Judge 

Saad, I should say. 

So I don’t think there is a very good argument against voting up 

and down on your and the other three nominees, including the two 

district court nominees. There is a difference between withholding 

blue slips on district court nominees, I agree, when both Senators 

were against a district court nominee because those nominees are 

right in the State. They don’t represent a multiple–State situation. 

So there is a difference between withholding blue slips on district 

court nominees than there is in withholding blue slips on circuit 

court of appeals nominees. 

549

Now, I would just point out with regard to Ronnie White, there 

were two negative blue slips by Republican Senators. I was the 

Chairman. And I could have taken the position that we shouldn’t 

go to a vote. But we did. And he had a vote up and down. Now, 

admittedly, the second negative blue slip occurred shortly before 

that vote, but, nevertheless, it was negative. But the Republicans 

did vote up and down. He was the only one that I recall voted down 

by the Republicans in the Senate in the Clinton years. Everybody 

else who was brought up had a vote up and down and passed. And 

most of them passed by unanimous consent. 

But, to make a long story short, you deserve better treatment 

than this. We are going to do everything in our power to see that 

you get that vote up and down, and I believe that if it is the vote 

up and down, you will win because I think people of fairness will 

appreciate the fact that you have a tremendous reputation in the 

law. And I want to make sure that you are treated fairly. 

Now, with regard to Ronnie White, just to correct the record, 

there was one positive blue slip, one negative blue slip. The negative blue slip was by a member of this Committee, and I asked the 

member, I said, ‘‘Do you have any objection to me bringing Judge 

White up?’’ And the member said, ‘‘No, but just make sure that I’m 

listed as a no vote,’’ which I did. 

But by the time he came to the floor, there were two negative 

blue slips in the sense that both Senators had decided to oppose 

Ronnie White. So I treated that as a negative blue slip. 

To their credit, we went ahead with a vote. They could have 

stopped the vote, but we went ahead with the vote. And it was to 

my credit, too, because I wanted to go ahead. I think he deserved 

a vote. And I believe you do, and I believe the ones that are being 

filibustered do, the ones that are being filibustered for the first 

time in history. I think we have got to break through this type of 

maltreatment of Bush nominees and consider treating them in a 

fair and balanced manner and give them votes up and down, especially when they come to the floor. 

So, with that, we will recess this Committee. As far as I am concerned, you have had your hearing. But the record will be open for 

any questions that they want to ask in writing, and we would appreciate it if you would get the answers back as soon as you can. 

Judge SAAD. I most certainly will, and I thank you for the hearing, Mr. Chairman. 

Chairman HATCH. Well, thanks, Judge. It is great to have you 

here, and I admire you and I admire what you have been able to 

do. 

With that, we will recess until further notice. 

[Whereupon, at 1:24 p.m., the Committee was adjourned.] 

Questions and answers and submissions for the record follow.]

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(607)

NOMINATIONS OF CARLOS T. BEA, OF CALIFORNIA, NOMINEE TO BE CIRCUIT JUDGE 

FOR THE NINTH CIRCUIT; MARCIA A. 

CRONE, OF TEXAS, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF TEXAS; PHILLIP S. FIGA, OF COLORADO, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF COLORADO; WILLIAM Q. 

HAYES, OF CALIFORNIA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; JOHN A. HOUSTON, 

OF CALIFORNIA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA; ROBERT CLIVE JONES, OF NEVADA, NOMINEE TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF NEVADA; AND RONALD A. WHITE, OF OKLAHOMA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF OKLAHOMA 

WEDNESDAY, SEPTEMBER 3, 2003 

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. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch and Cornyn. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Today, the Committee has the privilege of considering the nominations of seven outstanding lawyers to be federal 

judges. I want to commend President Bush for nominating each of 

them, and I look forward to hearing each of your testimonies. 

Since there are so many Senators here this morning waiting to 

speak on behalf of the nominees, I will keep my opening remarks 

quite brief. 

608

The first nominee from whom we will hear is Judge Carlos Bea, 

our nominee for the Ninth Circuit Court of Appeals. He has had 

an exemplary legal career in California as a successful attorney 

and as an impartial jurist. During his 32-year career in private 

practice, Judge Bea appeared in court on a regular basis and was 

the lead counsel in approximately 125 jury trials. 

In 1990, Judge Bea was appointed and subsequently elected to 

his current position as a judge on the San Francisco Superior 

Court. He was re-elected, without opposition, to the superior court 

in 1996 and again in 2002. In this capacity, he has literally handled thousands of cases and presided over hundreds of trials. President George H.W. Bush nominated Judge Bea for a federal district 

judgeship in 1991; however, no hearing was held on his nomination 

during the 102nd Congress. His long wait for a fair and well-deserved hearing before the Senate Judiciary Committee ends today. 

As with other nominees to the Ninth Circuit that this Committee 

has considered this year, Judge Bea’s colleagues overwhelmingly 

support his confirmation to the Federal appellate bench. Thirtyseven judges of the San Francisco Superior Court, who serve with 

Judge Bea and work with him every day, sent a letter to the Committee praising his skills as a jurist. They wrote, ‘‘Judge Bea has 

distinguished himself in presiding over ground-breaking complex 

litigation in the insurance coverage and environmental areas, as 

well as handling many asbestos trials.’’ The letter also recognizes 

his service on many of the superior court’s management committees and the fact that before becoming one of their colleagues, 

‘‘Judge Bea was considered by the legal community to be one of the 

finest civil trial lawyers in San Francisco.’’ So I will submit a copy 

of this letter for the record. 

In addition to his Superior Court colleagues, California Supreme 

Court Justice Carlos Moreno, San Francisco Mayor Willie Brown, 

and representatives of the San Francisco Bay Area’s Hispanic community have all written to this Committee expressing enthusiastic 

support for the judge and for his confirmation to the Ninth Circuit. 

I hope my colleagues will join me in supporting him as well, and 

I look forward to hearing his testimony this morning. 

In addition to Judge Bea, the Committee will hear testimony 

from six well-qualified district court nominees. In the interest of 

time, I will reserve my remarks on the district court nominees until 

after we have heard from Judge Bea. 

We will turn to the Ranking Member upon arrival. 

We have a number of Senators who care to testify on behalf of 

various nominees this morning, and we will start with Hon. Don 

Nickles from Oklahoma. 

PRESENTATION OF RONALD A. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF OKLAHOMA, 

BY HON. DON NICKLES, A U.S. SENATOR FROM OKLAHOMA 

Senator NICKLES. Mr. Chairman, thank you very much, and I 

want to thank you for scheduling this hearing on several outstanding nominees to the Federal bench, one of whom is from my 

home State of Oklahoma, a friend of mine, Ron White. His wife, 

Lisa, is with him as well. He is well qualified to be a Federal district judge. Senator Inhofe and I both interviewed several people 

609

and came to the conclusion that Ron White would be an outstanding addition to the Federal court. 

He has been an attorney with the very prestigious Tulsa firm of 

Hall Estill for 17 years. He has been a partner since 1992. His 

practice has covered a variety of areas. As an attorney, 60 percent 

of his court appearances were in Federal court. He is admitted to 

practice before the Oklahoma Supreme Court, the U.S. Court of 

Appeals for the Tenth Circuit, and the U.S. District Court in the 

Northern, Eastern, and Western Districts of Oklahoma. 

He received his law degree from the University of Oklahoma in 

1986. He has been involved in numerous organizations and charities in the State. He has received the ABA rating unanimously 

qualified. I am very happy to strongly support his nomination and 

urge the Senate to move quickly with his confirmation. 

I thank you, Mr. Chairman, for allowing me to speak, and I have 

a Budget Committee hearing so I need to run. So thank you, Mr. 

Chairman. 

Chairman HATCH. We understand. Thank you so much, Senator 

Nickles. We appreciate you taking the time to be here. 

If I can, I will just go across the table, so we will go to you, Senator Ensign. We were going to have Senator Reid. When he arrives, 

we will talk to him. 

PRESENTATION OF ROBERT CLIVE JONES, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, BY HON. 

JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman. It is an honor for me 

to be here today before the Senate Judiciary Committee to introduce a great bankruptcy judge from my State of Nevada, Mr. Robert Clive Jones. Since taking the bench, Judge Jones has heard 

thousands of bankruptcy cases. He has overseen many of Nevada’s 

most complex and controversial bankruptcy cases since taking the 

bench and has done so with great care, fairness, and prudence. 

He is respected and admired throughout the legal community for 

his belief and his dedication to the rule of law. Judge Jones has 

served on the Federal bankruptcy bench in my home State of Nevada for the past two decades. 

Additionally, in 1986, Judge Jones was appointed to the Bankruptcy Appellate Panel, U.S. Court of Appeals of the Ninth Circuit, 

and has served with distinction as a member of this panel for consecutive 7-year terms. This is the only active Bankruptcy Appellate 

Panel in the United States, and it has settled substantial questions 

of bankruptcy law and interpretation of the bankruptcy statute. 

Judge Jones also served on the U.S. Conference Committee on 

Codes and Conduct from 1989 to 1995. This Committee is responsible for drafting, adoption, and interpretation of codes of conduct 

for U.S. judges and judicial employees. 

A long-time resident of Nevada, Judge Jones began his education 

not in my State of Nevada but in the Chairman’s home State of 

Utah at Brigham Young University. He later earned his law degree 

at the University of California, graduating in the Order of the Coif, 

indicating a place in the top 10 percent of his graduating class. 

610

Upon graduation, Judge Jones served as a clerk for Judge J. 

Clifford Wallace on the U.S. Ninth Circuit Court of Appeals and 

then began a career in Nevada in the private sector until his appointment to the bankruptcy court in 1983. 

Judge Jones’ extensive legal background and his commitment to 

public service make him an excellent choice as U.S. District Court 

Judge for the District of Nevada. 

Mr. Chairman, I know his wife, Anita Michele, is proud of him 

for being here today, and the State of Nevada is proud of Robert 

and all that he represents for our great State. And I appreciate you 

expeditiously considering his nomination, and I join with Senator 

Reid in a bipartisan way to forward his nomination today. 

Chairman HATCH. Well, thank you so much, Senator Ensign. We 

appreciate you being here, and we will allow you to go. We know 

how busy all of you are. 

We will turn to Senator Boxer at this point, and we look forward 

to hearing your testimony, Senator. 

PRESENTATION OF CARLOS T. BEA, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT, WILLIAM Q. HAYES, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT 

OF CALIFORNIA, AND JOHN A. HOUSTON, NOMINEE TO BE 

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

THE STATE OF CALIFORNIA 

Senator BOXER. Chairman Hatch, thank you very much. I am 

very pleased today to introduce to you Judge Carlos Bea, the nominee for the Ninth Circuit Court of Appeals. And I wonder if it 

would be all right with you if we could ask his family to stand, and 

perhaps he could just give you the names of this beautiful family 

he has brought with him. 

Chairman HATCH. Of course it would be. That is quite a family. 

I really enjoyed meeting them. 

Senator BOXER. Judge, do you want to introduce them? 

Judge BEA. Yes, Senator Boxer, Chairman Hatch. My wife and 

the mother of these four strapping lads: Dominic, Nicholas, Alex, 

and Sebastian. And my father-in-law, Albert Reed Rubey; and over 

here, Reed Rubey, Jr., and his two children, Dina and Henry. And 

we are also honored to have from San Francisco Richard Wall, my 

law school classmate, and from New York, Lou Guzzo of the New 

York Fire Department, a veteran of 9/11. 

Chairman HATCH. Well, you know how to influence this Committee, is all I can say. 

[Laughter.] 

Chairman HATCH. We are delighted to have all of you here. It is 

wonderful to have you here, and we look forward to getting this 

hearing over and getting Judge Bea confirmed. 

Senator BOXER. Thank you so much. I will be brief and ask 

unanimous consent that my entire statement be placed in the 

record. 

Chairman HATCH. Without objection, we will put all entire statements in the record. 

Senator BOXER. Mr. Chairman, I am also very proud to introduce 

two nominees for the Southern District Court of California: William 

611

Hayes and John Houston. And if it is okay with you, I know they 

would be proud to show you their families as well. So let’s start 

with Mr. Hayes, and we will go to John. 

Mr. HAYES. I would like to introduce my wife, Julia Jauregui; my 

father, Robert Hayes; and my mother, Margaret Hayes. 

Chairman HATCH. We are delighted to have all of you here. 

Senator BOXER. Mr. Houston? 

Judge HOUSTON. Good morning, Senator. 

Chairman HATCH. Good morning. 

Judge HOUSTON. It is my pleasure to introduce my wife, Charlotte Houston; my son, John Allen; my mother and father, John 

and Charlotte Houston; my sister, Vera; my sister, Rita; my sister, 

Sharon; my niece, Michelle; my niece, Alex; my brother-in-law, Dr. 

Rev. Tommie London; my sister-in-law, Shandra Houston; and my 

brother, Gregory Houston. 

Chairman HATCH. Well, we are delighted to have all of you here. 

We appreciate you coming and supporting the nominee. 

Senator BOXER. Mr. Chairman, I know you can tell the excitement in the room because these nominees have worked so hard and 

so long, and these are good nominees. 

Let me just begin by discussing for a moment Judge Bea. He was 

born in Spain and has lived in California for most of his life. He 

received both his undergraduate and law degrees from Stanford, 

and he has an impressive legal career. And you have cited some 

of the things, so I won’t cite all of them, but just to say that he 

practiced law in San Francisco for 30 years before he was appointed a judge on the San Francisco Superior Court. And he was 

elected to the seat in 1990, has been re-elected twice by the voters 

of San Francisco. He has taught at Stanford and Hastings Law 

School. 

I will just skip over a lot of his qualifications and just read you 

a couple of comments. 

One reporter wrote of him, ‘‘He has received high marks for his 

specialty, handling complex civil litigation disputes.’’ 

Another reporter, who spoke with numerous lawyers, wrote that, 

‘‘He is at his best handling monstrous size cases that pose difficult 

legal questions presented by sophisticated lawyers.’’ 

So this just gives you a sense of this man because this is obviously a difficult time in our society, and we are going to have complex issues, and they are going to be gray areas. So I think that 

this is an excellent choice. 

Judge Bea has been endorsed by the San Francisco La Raza 

Lawyers Association, the Mexican American Legal Defense Fund, 

and I am very happy that they have lent their support. 

Turning to the district court nominees, I want to comment on the 

process that brought these two wonderful people to you today. In 

a truly bipartisan fashion, Mr. Chairman, the White House Counsel, Senator Feinstein, and I have worked together to create a judicial advisory Committee for our State, one in each Federal judicial 

district in the State. And I have to tell you, it is balanced. Each 

Committee has a membership of six: three appointed by the White 

House, three appointed jointly by Senator Feinstein and myself. 

Each member’s vote counts equally, and a majority is necessary 

for the recommendation. So both Judge Houston and Mr. Hayes 

612

were reviewed by the Southern District Committee and strongly 

recommended for these positions. Judge Houston had extensive experience as a Federal prosecutor before his appointment as a magistrate judge. Mr. Hayes has extensive civil experience as a private 

attorney before becoming a Federal prosecutor, rising to the position of head of the Criminal Division in the U.S. Attorney’s Office. 

So, again, I am just so pleased to be here today, and I am delighted with these three nominees, and I do hope that we will see 

them move forward quickly. 

Thank you very much. 

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

Chairman HATCH. Thank you, Senator Boxer. Thanks for taking 

the time. 

Mr. KARIM-PANAHI. Mr. Chairman, my name is Parviz Karim–

Panahi from Southern California. This Senator and Senator Feinstein, and previous Senators, they have created the most corrupt 

judiciary, Federal judiciary in Southern California— 

Chairman HATCH. We are going to have to ask—we are going to 

have to ask for order. We are going to have to ask for order. The 

Committee will be— 

Mr. KARIM-PANAHI. I wanted to put this matter before you— 

Chairman HATCH. We understand but— 

Mr. KARIM-PANAHI. —and before this Judiciary Committee to 

know what is happening. I have nothing to do against these nominees, but what has been happening in the past 20 years or 30 

years, I am talking about not— 

Chairman HATCH. All right, sir. I have got to ask you to refrain 

because we are going to continue this hearing, and we appreciate 

your strong feeling—we appreciate your strong feelings, but we are 

not going to allow disruptions in the Committee. 

We are going to turn to our Minority Whip next and accommodate Senator Reid, and then we will finish with the two of you, and 

then we will come back to Senator Hutchison. 

PRESENTATION ROBERT CLIVE JONES, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA, BY HON. 

HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator REID. Mr. Chairman, I appreciate it very much. I left 

Senator Specter on the floor, and he asked if I could get back as 

quickly as I can. 

Chairman HATCH. We understand. 

Senator REID. So I very much appreciate this. 

Mr. Chairman, Clive Jones has a great pedigree. He is a fine 

man. He graduated from an outstanding law school, UCLA. He has 

worked in the private sector where he was a partner in a law firm 

for a number of years, prior to being chosen to be a United States 

bankruptcy judge in the District of Nevada. He has worked in this 

capacity now for more than two decades. He has served as a chief 

judge for about 10 years. He was appointed to the only active 

Bankruptcy Appellate Panel in the country for more than a dozen 

years. 

Mr. Chairman, I notice that our esteemed nominee is joined 

today by his family. I have to remark that my admiration for this 

613

nominee is matched by my admiration for his wife. She comes from 

a wonderful family. Her father, a man by the name of Wayne 

Bunker, has had an outstanding career in accounting in the State 

of Nevada and in public service generally. I had the good fortune 

of being able to attend a meeting with him this past Sunday. Of 

course, recognizing the modest and really the humble man that he 

is, he would never, ever talk to me about the fact that his son-inlaw was about to get this most important job. And I knew that his 

pride was significant in the fact that his son-in-law may be able to 

be a judge and of the caliber that he feels he deserves, that is, a 

Federal district judge. 

So I have the greatest respect for Clive, and also for his wife, 

Michele, who is an outstanding musician. They have four wonderful children. Their youngest boy is in law and accounting. He is a 

grandfather. He has worked in the scouting program. Both Clive 

and Michele can sing. They have been part of a very important choral group in Las Vegas called the Bluth Chorale, which is well 

known in Nevada and parts of the Western United States. 

So, Mr. Chairman, it is with pleasure that I recommend to this 

Committee Clive Jones to be a Federal district judge. 

Chairman HATCH. Well, thank you so much, Senator. We appreciate your testimony. We know you are busy, and we appreciate 

you taking the time from your busy schedule. 

Senator Campbell, we will go to you. 

PRESENTATION OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, BY HON. 

BEN NIGHTHORSE CAMPBELL, A U.S. SENATOR FROM THE 

STATE OF COLORADO 

Senator CAMPBELL. Thank you, Mr. Chairman. Senator Allard, 

my colleague, and I have appeared before you a number of times 

to recommend nominees for different positions. I have to say that 

I am very pleased to be here to support one. But you know as well 

as I do, Mr. Chairman, that the process by which a person gets 

nominated to the bench is not easy, and to get here in front of your 

Committee, they have to have pretty widespread support. And 

without that broad support, they simply couldn’t be this far. Clearly, in democracy there is opportunity for anyone, any American, to 

dissent. But these nominations are not by accident, and I happen 

to think that all seven of these judicial nominees, including the appeals court nominee for the Ninth Circuit, are good nominees. 

It is my pleasure to be here with my friend and colleague, Senator Allard, to introduce Phillip Figa, a good Coloradan, a wellqualified jurist, and I hope you will agree he is well suited to serve 

as a Federal judge. I would like to abbreviate my statement and 

have included in the record with your permission a full statement 

and an editorial by the Denver Post in support of Mr. Figa. 

Chairman HATCH. Without objection. 

Senator CAMPBELL. And as the other nominees have done, I wonder if I could ask Mr. Figa to introduce his wife, Candace, and his 

son, Ben, and daughter, Elizabeth. 

Mr. FIGA. Mr. Chairman, this is my wife, Candy; my son, Ben; 

and my daughter, Lizzie. 

614

Chairman HATCH. We are delighted to have all of you here and 

look forward to— 

Senator CAMPBELL. I notice the other nominees also have their 

families here, Mr. Chairman, and I think that if you are going to 

serve in public office anywhere, whether it is an elected position or 

an appointed position, without the support of your family we 

couldn’t be doing these things. And I am sure the same applies to 

our judges, and I am just delighted to see their families are supporting them. 

Mr. Chairman, Phillip Figa is a well-qualified person to serve on 

the U.S. District Court for Colorado. He has been a Coloradan for 

27 years and is an excellent jurist who will be a terrific addition 

to the Federal bench. 

Since Phillip Figa earned his juris doctor degree at Cornell University Law School back in 1993, both his career and personal life 

have been one of service. He has accomplished a well-balanced 

combination of service in the local community in addition to his 

achievements in private practice. He is the president of Burns, 

Figa and Will, a well-respected law firm located in Englewood, Colorado. He is a fellow with the International Society of Barristers, 

whose membership includes about 600 outstanding trial lawyers 

dedicated to excellence and integrity and advocacy. 

He has led the Colorado Bar Association, including service 

through everything as the head of the bar association’s Ethics Committee. He has also served as the Chairman of the board of the 

Anti–Defamation League’s Mountain States Region. He enjoys very 

broad bipartisan support, including former Senator and State Senate Majority Leader Mike Feeley’s endorsement; also the endorsement of Colorado’s Supreme Court Justice Gregory Hobbs, who predicted he would have a very fine view of the judiciary as the third 

branch of Government and a person who calls them as he sees 

them. 

Former President of the Colorado Bar Association Miles Cortez 

said of Phillip, ‘‘Figa’s extensive Federal court experience will likely 

enable him to hit the ground running.’’ 

John Sadwith, the Executive Director of the Colorado Trial Lawyers Association, said of Phil, ‘‘He is a calm, even-tempered person. 

I can’t think of anything but superlatives.’’ 

On Friday, August 22nd, the Denver Post editorial, which I 

asked to be included in the record, declared that Phillip Figa’s 

nomination was a win-win judicial pick. It states him as a good, 

solid choice, well-qualified lawyer with a moderate reputation. It 

goes on to describe him as a highly competent and smart lawyer 

who is known for being fair and thoughtful, and I think in this position that is a sentence that we all would try to adhere to, being 

fair and thoughtful. 

So I just wanted to add my personal endorsement. I think he will 

be a very, very fine nominee, and I look forward to the early action 

of this Committee on confirming him. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you so much, Senator. 

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

615

Chairman HATCH. Senator Allard, if I could ask you to defer to 

Senator Hutchison who has an appropriations meeting she has to 

get to. 

Senator ALLARD. Mr. Chairman, I would be glad to defer to Senator Hutchison. 

Chairman HATCH. We will come right back to you. 

Senator Hutchison? 

PRESENTATION OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS, BY 

HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE 

STATE OF TEXAS 

Senator HUTCHISON. Thank you so much, Mr. Chairman, and 

thank you, Senator Allard. I appreciate that so much. 

I am pleased to recommend the nomination of Judge Marcia 

Crone. Judge Crone is a Dallas native, and she is joined today by 

her husband, Seth, and I would like to ask him to stand. Their two 

children are not with them, I understand, but, Seth, thank you for 

being here. 

Chairman HATCH. Happy to have you. 

Senator HUTCHISON. Judge Crone is currently serving as a U.S. 

magistrate judge in the Southern District of Texas, having been 

there in that capacity since 1992. 

Mr. Chairman, I have never given you a nominee with higher 

academic credentials than Judge Crone. She was valedictorian of 

her high school, one of the largest and best high schools in our 

State. She was a National Merit Scholar. She had a 4.0 at the University of Texas, was a member of Phi Beta Kappa, and graduated 

first in her class from the University of Houston Law School. 

Chairman HATCH. That is pretty impressive, is all I can say. 

Senator HUTCHISON. I have to say, if she ever made a B, I guess 

she would have thought that was failure in life. 

Chairman HATCH. That makes you wonder how balanced she is. 

[Laughter.] 

Senator HUTCHISON. But in addition to her academic credentials, 

she also has a wonderful professional achievement record. She has 

served in private practice with a great law firm in Houston, Andrews and Kurth, and became a partner there until her appointment to the Federal bench. And as a U.S. magistrate, she has presided over a number of civil and criminal cases. In her 10 years 

there, she has authored 700 opinions, over 130 of which are published. 

She has also been active in the community, in the bar association; she serves on the board of directors of the Garland Walker 

Inn of Court, is a mentor to Houston area law students, and is active in her church. 

She meets the high standards to which we hold Federal judges, 

and we had a number of appellants for this seat in East Texas, a 

newly created seat that will be in Beaumont. And she just came 

out on top of our Committee process, which, as you know, is a bipartisan process. 

So thank you, Mr. Chairman, for allowing me to introduce her. 

I couldn’t recommend anyone more highly. And thank you for your 

courtesies. 

616

Chairman HATCH. Thank you, Senator Hutchison. We appreciate 

you taking time to be here. I am sure we will move ahead. 

Senator Allard? 

PRESENTATION OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, BY HON. 

WAYNE ALLARD, A U.S. SENATOR FROM THE STATE OF COLORADO 

Senator ALLARD. Mr. Chairman, thank you for allowing me the 

opportunity to be here this morning and for holding this timely 

hearing. It is a great honor to introduce Phil Figa to the Judiciary 

Committee. He is up for consideration for the vacancy in the Colorado Federal District Court caused by the recruitment of Judge 

Match. Judge Match’s departure leaves big shoes to be filled. However, by the end of this hearing on Phil Figa, I am sure you will 

understand why I believe that Phil is the right person for the job. 

I also want to thank Senator Campbell, my colleague and family 

member from Colorado, for working with me to help expeditiously 

fill this important vacancy. 

Before I go any further, I, too, would like to welcome Phil’s wife, 

Candy, and his children, Ben and Lizzie, to the hearing. Candy, 

Ben, and Lizzie, I bet you know—or, Mr. Chairman, I think it is 

an unusual opportunity for the children to be present when their 

father has to show up for a job interview. And so it is a privilege, 

I think, to be able to see something like that happen with a member of your family. 

Earlier this summer, I had the privilege of having Ben Figa 

serve in my office as an intern, and through this experience, I 

learned to admire the strong family values so apparent in every 

member of the Figa family. I have warned Phil that the nomination 

process is a grueling one, but I know his family’s continued support 

and encouragement will provide the strength and energy he needs 

in order to stand steadfast in pursuit of this most worthy endeavor. 

Senator Campbell has already mentioned the strong and outstanding academic and community credentials that Phil will bring 

to the bench. And I would second that he has a keen intellect, an 

ideal temperament, and that is no secret. In a letter dated June 10, 

2003, Senator Campbell and I wrote to the Committee, ‘‘Mr. Figa 

is highly qualified and will ably serve the people of the United 

States. . .(he) is well known throughout the Colorado legal community for his credibility, integrity, hard work, and firm grasp of the 

law.’’ His supporters hail from across party lines and include a variety of elected officials from all levels of local, State, and Federal 

Governments. 

Phil and Candace have been married for 30 years. They met in 

college at Northwestern, where he received his degree in 1973, Phi 

Beta Kappa. Candy then put Phil through law school at Cornell, 

paying for his education by teaching English in a nearby New York 

high school. Twenty-7 years ago, they moved to Boulder, Colorado, 

where Phil began a clerkship at Sherman and Howard. Eventually, 

the firm hired him as a full-time attorney. While in Boulder, Candy 

decided to attend law school at the University of Colorado, and I 

had to chuckle when he mentioned that between college and law 

school, they had 10 years of study dates together. 

617

At Sherman and Howard, Phil worked with his mentor, Hugh 

Burns, a Rhodes Scholar and well-known attorney. Eventually, the 

two would form their own law firm, known today as Burns, Figa 

and Will. And I would just mention that Figa just doesn’t stand for 

Phil. Candy also works at the firm. Together, they have partnered 

for 25 years in the successful and prestigious practice. 

I had a good laugh when Phil said his ‘‘work relationship’’ with 

his wife may have been aided by the fact that they were on different floors and they had to communicate via e-mail. My wife and 

I have worked together in the same business, too, and we never 

had that luxury. 

Mr. Chairman, when considering the nominee, please know that 

Mr. Figa has my unequivocal support. The confirmation of his nomination by the Senate will prove to be a great service to the people 

of the United States. As I have mentioned, his nomination has enjoyed broad and bipartisan support from judges, colleagues, and 

both Democrat and Republican Members of Congress. Of the many 

gracious comments I have heard about Phil, none characterizes him 

better than a statement made by the managing partner at his firm. 

He said, ‘‘He is a gracious fellow. . .a very likable person. He’s a 

gentlemanly character.’’ 

Phil is well grounded in family values. He enjoys the Colorado 

outdoors. And according to criminal defense lawyer Gary Lozow, 

Figa is a ‘‘thoughtful and bright person who will make a good Federal judge and is mindful of the awesomeness of taking on that responsibility.’’ The Rocky Mountain News noted that he has 

achieved a rare balance in his life of family, law practice, and community activities. The Denver Post has endorsed him, and since my 

colleague has already asked that his endorsement be made a part 

of the record, I will not make that request. 

Mr. Chairman, Phil Figa will serve our Nation with the utmost 

of respect to our country and our Constitution, and for this, I urge 

you to forward his nomination to the Senate with a favorable recommendation. He is, in a word, ideal for the Federal bench. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator. We sure appreciate you 

coming, and I am sure that Mr. Figa does as well. So thank you 

for taking time out of your busy schedule. 

Without objection, we will put the statement of the Democrat 

leader on the Committee, Senator Leahy, and also the statement 

of Dianne Feinstein in the record before the testimony of the Senators who have appeared. 

Chairman HATCH. Well, Judge Bea, why don’t we start with you? 

If you will 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? 

Judge BEA. I do, sir. 

Chairman HATCH. Thank you so much. 

Judge Bea, would you care to make an opening statement? We 

are delighted to have your family with you. What a good-looking 

family you have. In fact, every judgeship nominee here has a wonderful family. 

618

STATEMENT OF CARLOS T. BEA, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT 

Judge BEA. Thank you, Senator. I think I will let my family be 

my opening statement, and we will proceed right to the questioning. 

Chairman HATCH. Well, thank you so much. That is good. I think 

that is a pretty good opening statement. 

[The biographical information follows:]

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Chairman HATCH. You have significant experience as a private 

litigator and practitioner representing both plaintiffs and defendants in primarily civil litigation, and since 1990, of course, as a 

State court trial judge. Now, I understand that you have also participated on appellate panels of the San Francisco Superior Court 

during your tenure there. 

Now, could you tell us how these experiences have helped or prepared you to serve on the Ninth Circuit Court of Appeals? And how 

would you characterize the key differences between the trial and 

the appellate judicial roles? 

Judge BEA. Well, I think the key difference between the trial and 

the appellate court is the ability of the trial court to determine 

facts, weigh the evidence, weigh the credibility of witnesses, and 

come to conclusions when there is not a jury there. 

The appellate court, of course, has to determine the case from the 

record that’s presented and has a much narrower scope of review 

and fact-finding, of course, than does the trial court. 

I have been fortunate, as you mentioned, to have been both on 

the plaintiff and the defendant side, even in FELA cases, which I 

think you have some experience with. For 15 years I was a defense 

attorney, and then for the next 15 years I was a plaintiff’s attorney. 

Chairman HATCH. It is a lot nicer being a plaintiff’s attorney, is 

it not? 

Judge BEA. I think it’s better paid for certain. 

Chairman HATCH. Much easier too. 

Judge BEA. And besides, you win more often. 

Chairman HATCH. That is right. 

Judge BEA. So that gave me a great deal of experience in trial 

practice, and of course I think the 3 years I spent on the appellate 

panel of the Superior Court, including 1 year when I was the Presiding Judge, helped me because we were taking appeals from the 

Municipal Court directly to the Superior Court. 

Chairman HATCH. That is great. You have been active in efforts 

to make our legal system more understandable and accessible to 

both Hispanics in this country and Spanish in the Latin American 

audiences abroad. As I understand it, one example of such efforts 

was your hosting of a program on Spanish language television in 

the San Francisco area that addresses various legal topics from 

labor union rights to handling speeding tickets. 

Could you tell us about some of your other outreach efforts to the 

Hispanic community in the San Francisco area, and tell us how 

successful some of these efforts have been. 

Judge BEA. Well, getting back to that, I was the host of a twoor three-minute segment every week which took questions from the 

public as to how do you pay for a traffic ticket, how do you use 

small claims court, what contracts have to be in Spanish to be enforceable in California, and this would go on once a week, and I 

would give a Spanish language explanation of this on the 6 o’clock 

news which had a pretty wide readership. 

In addition to that, of course, I’ve been pretty active in the Hispanic National Bar Association, and they have a moot court competition, nationwide moot court competition, and I have sat as a 

judge in that. And I’ve participated in a lot of Hispanic National 

646

Bar Association matters including I’m supposed to give a speech tomorrow in San Jose, but I won’t be there. One of my friends, Alex 

Aldemondo, is taking my place, giving a speech on motions in 

limine, which is a trial practice issue. 

I’ve attempted to give as much education as I can to the hispanic 

community that needs to be educated in the Spanish language. 

Chairman HATCH. That is great. Can you tell us about some of 

your pro bono activities, particularly those that led to your Civil 

Order of Merit Award from the King of Spain in 1993, and of 

course the Distinguished Judge Award from the La Raza Lawyers 

of San Francisco in 2002. 

Judge BEA. Well, we found, back in the late 1970’s we found that 

many Basque immigrants who had come as shepherds to the Western United States, probably also to Utah, certainly in Idaho, Nevada, California, had not been informed of their rights to become 

American citizens after a period of time working here. In some 

cases they had been misinformed by their bosses to keep them on 

the farm. The Spanish Government at that time—this was 1979, a 

democratic government of Spain—asked me to please help inform 

these folks about their rights to become citizens in the United 

States, as I have become a citizen, and so I started a program of 

doing that. Then that led to sort of representing all the Spaniards 

and some other hispanics, relatives of Spaniards, who found themselves in legal difficulties, whether it be immigration or criminal 

misdemeanor type cases, and I would go to the jails and try to get 

them out on their own recognizance. I appeared also in Immigration Court several times for persons who had been here so long 

that they were entitled to remain, although their paperwork wasn’t 

all that good. 

Chairman HATCH. I am really impressed with you and your service. Once of my closest friends is Paul Laxalt, who is a Basque himself, and very proud of it, as he should be. I am proud of the service 

that you have given. 

The Ninth Circuit Court of Appeals is a very controversial court 

in this country. It is reversed a high percentage of the time by the 

Supreme Court. Of course, they hear thousands of cases that the 

Supreme Court does not have time to consider. My only caution to 

you there is just that we need people there who are going to abide 

by the rule of judging, which is to interpret the laws that are made 

by those who have to stand for reelection, in other words, those 

who are politically supposed to be making the laws, not judges. 

That is an easy statement, but a lot of times where there are cases 

that are in gray areas, where the law has not defined it, or where 

there is an inter-circuit conflict, and I would count on you being 

one of the real stable solid people on that court because of your experience, and help to bring that court more into the mainstream 

than it is right now. We are hopeful that you will be able to do 

that. 

Judge BEA. Thank you, Senator. 

Chairman HATCH. It is a wonderful opportunity to serve on a 

very distinguished court which is probably the largest population 

presiding circuit court in the country, and it is very, very important. It is an honor to have you here. It is an honor for you to be 

nominated by the President of the United States, and to have the 

647

support of both of your senators. That means a lot to me. We will 

try to put you through as quickly as we can. 

I want to compliment your family. They look like really wonderful people, and I am sure they are, and we are grateful to have you 

here, and I will do everything in my power to get you through as 

quickly as we can. 

Judge BEA. Thank you very much. 

Chairman HATCH. Thank you. With that, we will let you go. 

I am pleased now to turn to our District Court nominees on today’s agenda. Our first nominee, Marcia Crone, is a graduate of the 

University of Houston Law Center. She worked as an associate and 

later as a partner at the prestigious law form of Andrews and 

Kurth before being appointed as a Federal Magistrate Judge in 

1992. 

If you could just come up and take your seat right there. We welcome you. You are on your far right. 

I have no doubt that her elevation to the District Court will 

greatly benefit the Eastern District of Texas. 

Phillip Figa, our nominee for the District of Colorado has been 

actively involved in the Colorado legal community since the beginning of his legal career. 

If you all will just take your seats as I announce you. Mr. Figa. 

A graduate of Cornell Law School, Mr. Figa has been a partner 

at a Colorado litigation firm for the past 20 years. He currently 

serves on the Board of Directors of the Anti–Defamation League for 

his region, and has assumed various leading roles in the American 

Bar Association and the Colorado Bar Association. So I look forward to confirming this very accomplished and community-oriented 

practitioner to the federal bench. We welcome you here, both of 

you. 

Robert Clive Jones is our nominee for the District of Nevada. 

Judge Jones graduated from UCLA School of Law in the top 10 

percent of his class. A member of the Order of the Coif, and having 

served as an associate editor of the UCLA Law Review. He clerked 

for Ninth Circuit Judge J. Clifford Wallace before entering private 

practice. In 1983 he was appointed to the U.S. Bankruptcy Court 

for the District of Nevada, where he currently serves. I think Nevada is very fortunate to have you as a person who will serve on 

the Federal District Court Bench, and we are grateful that you are 

willing to make this sacrifice. 

William Hayes has been nominated to the Southern District of 

California. Mr. Hayes received his BS, JD and MBA degrees from 

Syracuse University. He began his legal career as a civil litigation 

associate. Then in 1987 joined the United States Attorney’s Office 

for the Southern District of California where he currently serves as 

Criminal Division Chief. Mr. Hayes is an extremely accomplished 

trial lawyer, and I believe his extensive civil and criminal legal experience will serve him very well when he is confirmed to this position, and I expect to see that you are. We are delighted to have you 

here and delighted you have this opportunity. 

John Houston is our nominee for the Southern District of California. Judge Houston entered public service after law school when 

he joined the U.S. Army Judge Advocate General Corps. He then 

joined the U.S. Attorney’s Office for the Southern District of CaliVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00659 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.003 SJUD4 PsN: CMORC
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fornia before his appointment in 1998 as a Federal Magistrate 

Judge. Judge Houston has been recognized repeatedly for his outstanding legal skills over the course of his career, and I have no 

doubt that he will continue to serve well the Southern District of 

California upon his elevation to the District Court Branch, and we 

are honored to have you here. We look forward to talking with you. 

Our nominee for the Eastern District of Oklahoma, Ronald 

White, is a distinguished litigator. After graduating from the University of Oklahoma Law School in 1986, Mr. White joined the law 

firm of Hall, Estill, Hardwick, Gable, Golden and Nelson in Tulsa. 

His practice has focused on litigation in the areas of tort and insurance defense, medical malpractice, corporate litigation, ERISA and 

telecommunications. Mr. White is a well-respected legal practitioner in Oklahoma and will make a fine addition to the Federal 

Bench there. 

I want to welcome all of you impressive nominees to the Committee, and I certainly commend the President for nominating each 

of you to these positions. 

Would any of you care to make any opening statements? We will 

start with you, Judge Crone. 

STATEMENT OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF TEXAS 

Judge CRONE. Mr. Chairman, thank you very much. It is such an 

honor to be here today before the Committee, and I just want to 

express what great feelings I have to be given the opportunity to 

serve the country. I have been very honored to be a United States 

Magistrate Judge, and I look forward to continuing my service if 

confirmed. 

My husband is here with me today. Unfortunately, my children, 

who—I guess you would say in our household academics are important. But my two daughters, who are in high school, it is science 

test day on Wednesdays. So they are in school today. 

Chairman HATCH. They need to be there. 

Judge CRONE. But thank you, Mr. Chairman. 

[The biographical information of Judge Crone follows:]

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Chairman HATCH. We are delighted to have you here. 

Mr. Figa? 

STATEMENT OF PHILLIP S. FIGA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF COLORADO 

Mr. FIGA. Mr. Chairman, first of all, I would like to thank you 

and the Committee for allowing me the opportunity to be considered on such an expedited basis. 

In addition to my family, I would like to introduce a few people 

including Chuck Turner, the Executive Director of the Colorado 

Bar Association, who came out for this. 

Chairman HATCH. Glad to have you here, Chuck. 

Mr. FIGA. My law partner, J. Kemper Will, who came out from 

Denver yesterday for the hearing. 

Chairman HATCH. I am honored you are here. 

Mr. FIGA. Good friends, Jim and Marlene Bailor of Washington, 

D.C., and my children’s college classmates, Seth Rosen and Erica 

Gorchow, who are here today. 

Chairman HATCH. Good to have you both here. 

Mr. FIGA. And I would also like to thank my Senators for their 

participation in this process, and their support, and of course, the 

President for honoring me with this nomination. 

[The biographical information of Mr. Figa follows:]

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Chairman HATCH. Thank you. 

Mr. Hayes? 

STATEMENT OF WILLIAM Q. HAYES, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Mr. HAYES. Thank you, Mr. Chairman. I just wanted to thank 

you as well for scheduling this hearing, and also wanted to express 

my thanks to both of the Senators from California for their support. 

[The biographical information of Mr. Hayes follows:]

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Chairman HATCH. Thank you. 

Judge Houston? 

STATEMENT OF JOHN A. HOUSTON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge HOUSTON. Good morning, Mr. Chairman. I thank you for 

the opportunity for this expedited hearing. 

I would also like to thank my family for being here today to support me in this endeavor as they have throughout my legal career, 

and also a special thanks to the Senators for their support. 

[The biographical information of Judge Houston follows:]

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Chairman HATCH. Thank you. 

Judge Jones? 

STATEMENT OF ROBERT CLIVE JONES, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEVADA 

Judge JONES. By way of introduction, Mr. Chairman, if I may, 

my companion and spouse is here, Anita Michele; and my youngest 

daughter, Kimberly Miller and her husband Ryan. Kimberly is a 

nursing student, graduating from Brigham Young. Ryan works for 

a nationwide CPA firm officed in Las Vegas. 

Chairman HATCH. Delighted to have you with us. 

Judge JONES. For the record, I can just mention we have three 

other children. They are here with us in spirit, my daughter JaNae 

and Mark Barrow reside in Phoenix. He works for a medical provider firm. JaNae is a prior teacher. They have three of our grandchildren. My son Justin and Jenn live in Las Vegas, Nevada. They 

have two children. Justin is an attorney and CPA, again in a large 

national firm. And Melissa Henrich and Jake. Melissa is a middle 

school math teacher in Phoenix, Arizona, and Jake is a graphic 

arts computer specialist. He is studying for his business degree in 

Mesa Community College and then on to ASU. 

It is a great honor to be here. I am very much humbled, and appreciate the President for his nomination and the time of the Committee. Thank you. 

[The biographical information of Judge Jones follows:]

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Chairman HATCH. Thank you, Judge Jones. 

Mr. White? 

STATEMENT OF RONALD A. WHITE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF OKLAHOMA 

Mr. WHITE. Good morning, Mr. Chairman. I would like to thank 

you for scheduling the hearing. The President has honored me with 

this nomination, and I also express deep appreciation to Senators 

Nickles and Inhofe for their support. 

I only brought one friend for support today, but she is the best 

one I have, my beautiful wife, Lisa. 

Chairman HATCH. We are happy to have you here, very much. 

That is a pretty good friend. That is all I can say. 

[The biographical information of Mr. White follows:]

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Chairman HATCH. If you would all stand, I will swear you all in. 

Do you solemnly 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? 

Judge CRONE. I do. 

Mr. FIGA. I do. 

Mr. HAYES. I do. 

Judge HOUSTON. I do. 

Judge JONES. I do. 

Mr. WHITE. I do. 

Chairman HATCH. Let us start with you, Judge Crone. You have 

already had a distinguished career as both an attorney and as a 

United States Magistrate Judge. Obviously, you have gained some 

insight from your professional experience on both sides of the docket which will influence your judicial temperament as a Federal District Court Judge. 

Having had the experience as both a judge and an advocate, 

would you speak just briefly about the role and significance of your 

experience, and maybe the role and significance of judicial temperament, and state what elements of judicial temperament you 

consider to be the most important. 

Judge CRONE. Thank you, Mr. Chairman. Yes, having been a 

practitioner—I’ve practiced law for 14 years in a variety of capacities. I worked in labor and employment areas, products liability, 

commercial litigation, and have a good grasp of many of those 

areas, which I found very useful when I moved to be the magistrate 

judge, or one of the magistrate judges in Houston. 

In that capacity my knowledge of the law has greatly expanded. 

It has been a true challenge to master the law and also to understand the litigants, what’s really driving the litigants. I enjoy the 

exposure to the criminal law which I did not have as a practitioner. 

That was strictly civil. It’s, I think, caused me to have much greater insight into what’s valuable in this country, what people think 

is important, and really an insight into some of the problems 

plaguing the society that I’ve seen through the criminal docket. It’s 

been an eye-opening experience, and I think it’s been very helpful 

to me to be understand and empathize, but also realize the very 

serious and significant difficulties in many areas that are challenges to the country, to the viability and stability of our country. 

I think that combining those two areas of experience will help me 

tremendously on the District Court Bench. I welcome the opportunity to handle felony criminal matters. To date I have only handled pretrial matters on the felony side. Of course I’ve done misdemeanor cases and things like that, that we do have jurisdiction 

of. 

I think judicial temperament is key. What is brought forth to me 

is the very importance of these cases to the litigants. I think judicial temperament, you need to be very serious about the matter at 

hand. This is an important decision in these people’s lives, whether 

it’s civil or criminal, and to treat the litigants with the utmost respect, courtesy, dignity to which they’re entitled. We are very fortunate in the United States to be able to resolve the problems in the 

courtroom, not in a battlefield and not in a back alley. And I think 

774

the judicial role is to see that that privilege is afforded to all citizens, residents of the United States. 

Chairman HATCH. Thank you. That is helpful. One of the things 

we worry about here is that, I have often said that being a Federal 

Judge, District, Circuit or Supreme Court Justice, is the closest 

thing to godhood in this life, because once you are there, the only 

way they can remove you is for really bad action. Unfortunately, 

there are some judges, who once they get on the bench, allow it to 

go to their head and become very dictatorial and temperamental. 

I would caution each of you to try and realize that you are dealing with human beings. You are dealing with attorneys, some of 

whom are highly skilled, some of whom are just learning, and you 

are dealing with various witnesses and so forth, and it is good to 

be humble on the bench if you can, and I just mention that to all 

of you. It is tough to be a judge, because once you start making decisions, you are going to irritate somebody all the time, and somebody is going to call you arrogant no matter what you do. But just 

keep that in mind, that you are servants of the public, and I sure 

hope that you can be humble servants of the public and do everything you can. 

Judge Crone, you have served as a magistrate judge for more 

than 10 years, and I have been impressed by your commitment to 

serve your country in that capacity, and I am sure it was somewhat 

of a transition to adjust to work after your career as an attorney. 

You have talked a little bit about that transition. As a magistrate 

judge, how do you believe that has prepared you to serve as a Federal District Court Judge? 

Judge CRONE. I’ve been very fortunate as a magistrate judge to 

have a number of consent cases where I really fit in the same capacity as an Article III District Judge, and have handled those 

cases in their entirety, a number of them. And I think that has prepared me by basically doing many of the same duties as a District 

Judge would do. 

Also, seeing the pretrial part of the criminal aspect, the District 

Judges often don’t see the pretrial work that we do, initial appearances, bond hearings and things like that. It gives me a good grasp 

on that entire procedure, because then moving into the felony 

trials, I think I’m prepared for that. I know that there will be additional issues that come up that I have not been dealing with, but 

I have basically become familiar with suppression issue and the 

like. 

In the Southern District of Texas we have a large habeas docket, 

so I’ve dealt with many criminal issues, handling innumerable petitions for writs of habeas corpus. I think that that has been the best 

training ground as a Magistrate Judge for a District Judge position 

that one could really imagine, because I would be dealing with the 

same type of issues, the lawyers’ understanding of the sensitivities 

that are required, the amount of preparation that’s required. One 

really needs to know the law and the different areas of each case 

before you to really understand what the legal issues are as well 

as the factual dynamics of the case. So I think it has been just invaluable experience, and I want to continue my education in that 

area. 

775

What I’ve enjoyed about the job is I’m learning something new 

all the time, and I think that’s going to continue throughout because every case always presents something different. There’s a 

new twist, there’s a new issue, there are new laws that are passed, 

when we’re looking at that, and it’s just always been a very challenging and dynamic environment, and I look forward to hopefully 

being able to continue that. 

Chairman HATCH. Thank you. 

Mr. Figa, in 1995 you created a Federal pro bono mentor program for Colorado. This program assists Colorado’s Federal Trial 

Bench in providing counsel for pro se litigants, in whose civil cases 

the judges determine are in need of appropriate counsel. Can you 

elaborate on the program’s significance and purpose? 

Mr. FIGA. Yes, sir, Mr. Chairman. I was delighted, as State Bar 

President of Colorado to institute this program that would enable 

junior and senior lawyers to work together to handle cases that the 

Court believed needed attention by representation for pro se litigants, mostly prisoners, some civil cases. Where there was some 

plausible merit to the plaintiff’s claim, the Court felt it was important to have someone learned in the law handle those individuals’ 

cases and as it turned out, we were able to get the support of the 

court and the bar to enlist a number of junior and senior lawyers 

to work together, which would help the litigants of course, which 

would help the court, and which would help junior lawyers develop 

the skills and values they need by being mentored by a senior lawyer in working on such cases, and I was appointed to one of them 

and actually won a judgment and was able to donate a sizable 

amount of the proceeds from the recovery of that case to the program to finance others who would be going forward in representation of clients under the program. 

Chairman HATCH. Our District Court are overburdened with litigation. How do you feel about mediation and arbitration as maybe 

forms of alternative dispute resolution? 

Mr. FIGA. I think those are significant advances in terms of dispute resolution. I have participated in numerous arbitrations and 

mediations over my 27 years of trial practice, and I would try to 

encourage that to the extent possible. It seems to me that the court 

itself can be a significant participant in encouraging alternative 

uses of judicial resources and non-judicial resources to help resolve 

disputes and to ease the congested dockets in our Federal Courts 

today. 

Chairman HATCH. Thank you. 

Mr. Hayes, what do you believe will be your biggest challenges 

in assuming the role of a Federal Judge in California and how are 

you going to address them? 

Mr. HAYES. Thank you for your question, Mr. Chairman. As 

you’re aware, I’ve spent the last 17 years as a prosecutor for the 

United States, and so I look forward to the challenge to again, reacquainting myself with civil practice. I spent 3 years in civil practice in Colorado, and have some taught some law school classes 

dealing with civil practice. Although that’s certainly the area that 

I need to reacquaint myself with, I’ve begun that process and will 

continue to reacquaint myself with civil practice to complement my 

extensive criminal experience. 

776

Chairman HATCH. How are you going to balance the interests of 

the prosecution and the defense in criminal trials? 

Mr. HAYES. Senator, I will be able to do that, as in civil practice 

we represented both plaintiffs and defendants. When I was in civil 

practice I did represent a criminal defendant. I represented, obviously, the United States for the last 17 years. I’ve litigated before 

the—for the United States and against the United States. I certainly understand the difference between being an advocate and a 

judge. I’ve been fair and evenhanded as a prosecutor, and I would 

be as a judge if I am fortunate enough to be confirmed. 

Chairman HATCH. You’ve taught a variety of legal and business 

courses at four different academic institutions. Could you elaborate 

just a little bit on the courses that you teach and what you have 

learned from these experiences? 

Mr. HAYES. I’ve taught the legal and ethical environment of business in business law at the University of Colorado. I’ve taught an 

accounting class at National College in Colorado. I’ve taught a 

number of law school classes at Thomas Jefferson Law School in 

California. Those were criminal procedure, white-collar crime. I 

also taught tax fraud at the University of San Diego College of 

Law. It has given me a wide background in a number of areas. I’ve 

enjoyed interacting with a variety of students both in the graduate 

business schools and in law schools. It’s been a very professionally 

rewarding experience and has motivated me to obtain some expertise in a number of legal areas. 

Chairman HATCH. Thank you. 

Judge Houston, you have given numerous speeches on the 

progress that African–Americans have made in the last century 

and the challenges that they face in the 21st century, and you have 

noted a number of historical contributions of such prominent African–Americans, Homer Plessy, Olivia Brown, Rosa Parks, Dr. Martin Luther King, Jr., and as a matter of fact you have been a member of the Martin Luther King Day Parade Committee in San Diego 

for more than 20 years, I believe. 

Can you tell the Committee how the experiences of these individuals have influenced the decisions that you have made throughout 

your career and what role this influence will play after you are confirmed as a Federal District Court Judge? 

Judge HOUSTON. Thank you for the question, Senator. The role 

these individuals have played in my mind to make me a better 

judge has been the attribute primarily of courage. If you look at 

Plessy in the late 1900’s, Mr. Plessy had the audacity to challenge 

the system because he felt that he could, he should be able to ride 

in a railroad car on the railroad line on which he worked and sit 

with anyone else. That was a hard task for him to do I’m certain 

in the late 1900’s, and to pursue his dream that the American system was for everyone, and that his rights were that as—worth as 

much as those of any other citizen, and pursuing his dream 

through the courts. 

Certainly Dr. King has been very instrumental in American history. Dr. King also exhibited the courage and the belief that the 

Constitution has meant what it said, that America is to treat all 

members of the society in an equal and fair-handed manner. 

777

The other individuals, the other civil rights leaders I’ve mentioned have all had the same common thread, courage to believe 

that the system is there to work for each and every person. I’ve 

participated in the Martin Luther King Parade over the years because it’s been my view that to bring a parade to the city of San 

Diego, with the assistance of the City Council and the San Diego 

County Commissioners, along with the San Diego Police Department is only a testament of Dr. King’s interest in ensuring that 

this is a free and open society to everyone. 

Every dealing I’ve had in the public sector has surrounded the 

issue of open access and freedom for everyone, and that the Constitution and the laws of the United States apply to each and every 

one. 

How do I bring that into the courtroom? In the courtroom I look 

at every litigant in a fair and equal manner. Every litigant walks 

into the courtroom on the criminal side innocent until proven guilty 

regardless of the charges. And on the civil side, I’ve learned as a 

Magistrate Judge that litigants come to court seeking justice for 

the wrongs that have been done against them, whether it’s in a discrimination area, breach of contract, it could be a business venture 

between one corporation and another. They come to see justice and 

redress in our legal system, and I have learned through the course 

of my responsibilities as a Magistrate Judge that every litigant in 

a courtroom seeks the same thing. They want a fair, timely ruling 

from a court, and regardless of whether they win or lose, when 

they leave that courtroom they should feel that justice has been 

done and they’ve had their day in court. 

My judicial philosophy is to that end, that every person who approaches my courtroom with a case will know that they will receive 

a fair and impartial hearing, that I will keep an open mind, that 

I will listen and not make a decision until the end of the day, until 

the evidence is closed, and that I will give 150 percent to every 

matter that comes before the court to ensure access to the courts. 

In my view, these factors lead to public confidence in the integrity 

of the judicial system, and it’s my aim and goal to continue to proceed, if I’m confirmed as District Court Judge, to ensure that my 

courtroom is open to the public in such a matter. 

Chairman HATCH. Thank you, Judge. One other thing, in your 

question there you said your involvement in your community has 

centered primarily on children who are under served. I take a great 

interest in that, among many other things, but certainly in children. But you cited several programs, but one in particular is 

called Judges in the Classroom. Would you please tell the Committee just a little bit about this program? 

Judge HOUSTON. Certainly, Senator, and I appreciate that question as well. As is indicated in my application, the children in our 

communities is our—you know, they represent our future. We 

must, as judges, as all respectable members of our society, reach 

out and assist these children to be the best adults that they can 

be by providing tools to them during their childhood, and resources 

during their childhood, so that they can grow into responsible and 

productive citizens of the United States. 

The Judges in the Classroom program is actually a program that 

was created by the current presiding Magistrate Judge, and in this 

778

program Federal District Court Judges, Magistrate Judges and 

Bankruptcy Judges, have volunteered to make themselves available 

to the classrooms in the public school system in the city of San 

Diego. 

Teachers contact us individually to ask us to come to their classrooms. We coordinate with the teacher as to the subject matter for 

the day, and the subjects include: government, the jury system, 

trial practice, what it takes to be a lawyer or a judge, and what 

it takes to be a responsible citizen, and the duty of all citizens to 

vote once they become of age. We instill these values and thoughts 

in the children’s minds at a very early age through this particular 

program. 

This program also entails a component wherein students come to 

the classroom for mock trials, Goldilocks and the Three Bears. 

Criminal trials, 100 Dalmatians, there’s a skit for that. So that 

they can experience being participants in the courtroom proceedings as lawyers, judges, as a lawyer, defense counsel, prosecutor, witnesses, jurors and judge and bailiff, and it has been a 

very well-recognized program in the city of San Diego, and I’m very 

pleased to be a part of it. 

Chairman HATCH. I compliment you for being part of it and for 

the good work that you have done. You are clearly qualified for this 

position, as all of you are, and I am very proud of you. 

Mr. Jones, let me take a moment with you. You have served on 

the Federal Bankruptcy Court for 20 years. You are used to being 

punished and beaten up I am sure. 

[Laughter.] 

Judge JONES. That is right, Senator. 

Chairman HATCH. What skills have you mastered during your 

tenure that you think would be helpful in serving on the Federal 

District Court Bench, which naturally has a broader jurisdiction? 

Judge JONES. Two decades have taught me some of the skills of 

judging. I consider the most important to be temperament. I think 

of course high on the list of functions of a judge are determine and 

resolve disputes. But certainly a very important part of that is simply to listen. Aside from evidentiary objections that you are making 

decisions on quickly, probably the greatest function of a judge, either a Bankruptcy Judge or a District Court Judge is to listen to 

the dispute and to allow the parties, as well as the attorneys, to 

feel like they have had their day in court. 

I had a great experience, Mr. Chairman, on the Bankruptcy Appellate Panel, some 13 years listening to appeals from Bankruptcy 

Courts throughout the Ninth Circuit. It’s given me a great perspective in analyzing decisions, evidentiary decisions, bankruptcy law 

decisions. It was a wonderful experience for a long time. Our bankruptcy appellate panel was the only panel that was functioning 

throughout the country. Now, of course, most of the circuits do 

have functioning bankruptcy appellate panels, but for those few 

years it was a great experience to help settle bankruptcy law 

throughout the country and consequently, many of those decisions 

are cited throughout the country. That has brought to my mind a 

very, an additional very important quality of a judge, and that is 

fairly, analytically determining the law and its application to the 

facts in front of you. When you do have to—hopefully we don’t have 

779

to publish so often on the District Court as you might have to as 

an appellate judge, but when you do publish, being sure that your 

interpretations of the law are correct and fair. So I would say in 

summary, temperament, being a long listener, a fair and impartial, 

unbiased determiner, when you have to make decisions, those are 

some of the greatest qualities that I think hopefully I’ve learned a 

little bit about and would bring to bear. 

Chairman HATCH. Thank you. In your questionnaire you have 

mentioned a number of boards upon which you have served. One 

in particular, a charitable organization called Opportunity Village, 

I believe, assists the mentally disabled. Could you please tell that 

Committee a little bit more about that particular group? 

Judge JONES. I served on that board for a couple of years, Mr. 

Chairman. A great jurist in our community, Judge Lloyd George, 

has a son who receives the services at Opportunity Village. That’s 

a great organization in our State and certainly in our community. 

They have several formal places of conducting business there. They 

entertain throughout the day a large group of mentally challenged, 

mentally retarded persons. They give them employment. They do 

actual projects and help to earn a living for themselves. In addition, they perform educational functions, and finally, they perform 

housing functions under State and Federal grant programs providing housing for those who are in need. It was a great opportunity to serve in that capacity for a couple of years. 

Chairman HATCH. Thank you. 

I failed to turn to my colleague from Texas who probably would 

like to say a few words about the Texas nominee here. I apologize. 

PRESENTATION OF MARCIA A. CRONE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS, BY 

HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 

TEXAS 

Senator CORNYN. Not necessary, Mr. Chairman. I do want to 

thank you for chairing these important hearings. I do not think 

there is anything more important that we do in the United States 

Senate than hold confirmation hearings for members of the Federal 

Bench. I am slightly prejudiced, given my 13 years as a State District Court Judge, but all we have to do is to read the newspaper 

or watch television to see that the framers’ concept of what a judge 

should be and how a judge should act still remains controversial, 

as crazy a notion as that may seem. I have got to say that without 

exception, that President Bush’s judicial nominees have not only all 

been well qualified, including this panel and the one that preceded 

them, but also committed to the role that judges should play under 

our Constitution, that is, not as lawmaker, but as someone who interprets the law, not as a alternative legislative branch or a super 

legislature or someone who wears a black robe and legislates from 

the bench, but someone who understands that their job is to interpret the law and to render judgment based on a set of facts determined by the fact finder in accordance with the legislature and 

apply the laws determined by the legislature or by some appellate 

court or appellate court precedent. 

That is an honorable, a tough job sometimes, but it is always important, and I want to congratulate each one of you for your willVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00791 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.003 SJUD4 PsN: CMORC
780

ingness to take on this important job and just reinforce in your own 

minds something you already know, and that is the tremendous 

gravity and importance of the role that you have agreed to accept. 

In particular I wanted to be here for Judge Marcia Crone’s confirmation, Mr. Chairman, because I had the pleasure along with 

Senator Hutchison, who I know was able to be here earlier, to recommend her to the President, and the President did see fit to accept that recommendation, and as well I think as he should because of her distinguished service already as a magistrate, Federal 

magistrate, working in 1992 in one of our busiest districts in the 

United States Southern District of Texas, there in the Houston Division. She has distinguished herself as an outstanding jurist. She 

has authored approximately 700 opinions already as a Federal 

Magistrate, over 130 of which have been published. I am sorry I 

was not able to be here earlier when the official introductions were 

being made, but I will ask that the remainder of my introduction 

be made part of the record of the hearing. 

Chairman HATCH. Without objection. 

Senator CORNYN. And did want to come to congratulate Judge 

Crone and her family for this tremendous honor and commend her 

for accepting this tremendous responsibility that she has demonstrated her willingness to take on, and with that, Mr. Chairman, 

I thank you very much and pass it back to you. 

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

Chairman HATCH. Thank you, Senator. 

Mr. White, let us just finish with you, and then if Senator 

Cornyn has any questions, we will turn to him. 

Just one. In your questionnaire you mentioned the pro bono case 

in which you successfully appealed the decision of a self-funded 

health plan administrator in denying benefits for a life saving surgical procedure to a plan participant. Tell us about that case and 

your view on the importance of pro bono work. 

Mr. WHITE. Thank you, Mr. Chairman. I think those are all very 

important issues because they do involve both pro bono and the 

health care system as we have in our country now. 

A substantial part of my practice is in ERISA benefits litigation, 

and that’s afforded me the opportunity to appear in Federal Court 

on those issues quite frequently, and it’s also a rather, some would 

say obtuse area of the law, and I’ve enjoyed learning that area. Because it is not widely practiced, I receive a lot of questions from 

other clients of my firm, from other lawyers in the community, and 

cold calls off the street because they’ve heard my name and they 

think maybe I can help them with a problem they’re having with 

their health plan or their health insurance, and I’m always pleased 

to take those calls and meet with those people if I can because it 

is a very complex area. 

This particular situation was a gentleman who had a aortic aneurism, and he was an employee—he was disabled so he’s no longer 

working, but he was a former employee of a major Tulsa employer, 

one that my firm had done work for previously a few years before 

but we no longer represented. He needed surgery to repair that aneurism and he needed it quickly. At the time the introduction of 

stent technology, where a wire mesh tube is put into the aneurysm 

781

and then the aneurysm cut away was brand new, brand new technology, and as most health plans do, this particular major employer’s health plan had an exception, an exclusion for experimental 

procedures. Without this procedure this man would die. 

I convinced my firm to allow me to take a case against a major 

Tulsa employer and former client and possibly a client in the future, to attempt to convince them through the administrative appeals process for that plan to change their mind. 

We went through the administrative appeals process. I gathered 

evidence from his physicians, from experts across the country, and 

with his help, and by taking an approach, not a confrontational approach, but a reasoned and persuasive approach, we were able to 

convince the appellate panel of that health plan to change their 

minds and approve that surgery in a timely manner, and to that 

extent it had a very happy ending. 

Chairman HATCH. Thank you. 

There are a lot of questions we could ask all of you, but you are 

all qualified, and I know that, and I think everybody else knows 

it too, so I am going to do everything in my power to get all of you 

confirmed as soon as possible. I just appreciate your willingness to 

serve because these are among the most important positions in our 

society, and they should be venerated by every person in our society because of the great work the Federal Bench does. I do not care 

whether you are Democrats or Republicans, we have had great people in both parties, people from all persuasions who have become 

great judges. We have had people from all persuasions who have 

been less than great judges too. But I am counting on all six of you, 

and of course, Mr. Bea as well, to be great judges. We look forward 

to seeing you work on the bench and look forward to getting you 

through the Senate. 

With that, I am going to recess until further notice. Thank you 

all for your service. 

[Whereupon, at 11:22 a.m., the Committee was recessed until call 

of the Chair.] 

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

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NOMINATIONS OF MARGARET CATHARINE 

RODGERS, OF FLORIDA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF FLORIDA; ROGER W. TITUS, OF 

MARYLAND, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF MARYLAND; 

AND GEORGE W. MILLER, OF VIRGINIA, 

NOMINEE TO BE JUDGE FOR THE UNITED 

STATES COURT OF FEDERAL CLAIMS 

WEDNESDAY, SEPTEMBER 17, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

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

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. 

Present: Senators Cornyn and Craig. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. Good morning. This hearing of the Senate Judiciary Committee will be convened, and I know we have a number 

of Senators who are going to make some introductions, and, of 

course, I will recognize Senator George Allen from Virginia. We 

will recognize you for your comments and introduction, Senator 

Allen, in just a moment. 

The purpose of today’s hearing is to consider the nominations of 

Margaret Catharine Rodgers to be United States District Judge for 

the Northern District of Florida; Roger W. Titus to be United 

States District Judge for the District of Maryland; and George W. 

Miller to be Judge for the United States Court of Federal Claims. 

I want to thank Senator Hatch, who could not be here today, for 

scheduling this important hearing. I believe that considering the 

confirmation of judicial nominees is among the most important duties that the United States Senate has. Obviously, these are very 

important positions. And it is with great pleasure that I welcome 

the nominees this morning, and we will get a chance to hear from 

you and hopefully have a chance for you to introduce your family 

and friends who accompanied you on this wonderful occasion. 

834

But at this time I would like to recognize my colleague, the junior Senator from Virginia, Senator George Allen, for any comments 

he might care to make. 

Senator Allen? 

PRESENTATION OF GEORGE W. MILLER, NOMINEE TO BE 

JUDGE FOR THE UNITED STATES COURT OF FEDERAL 

CLAIMS, BY HON. GEORGE ALLEN, A U.S. SENATOR FROM 

THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman, and thank you for 

having this hearing. And I know this Committee goes through 

many candidates, and I know you as Chairman and as a member 

of this Committee have worked to make sure that we as a Senate 

have the advice of the Judiciary Committee and move forward on 

these qualified nominees. And while you may be the junior Senator 

from Texas, you have hit the road with strong force, and you have 

just been truly a tremendous asset to the Senate and to America 

with your knowledge, your experience, your expertise, and also 

your commitment for equity and fairness and consideration of judicial nominees. 

Mr. Chairman, I am here this morning to speak to you and members of the Committee to support and introduce the nomination of 

a fellow resident of the Commonwealth of Virginia, George W. Miller, to be a judge on the United States Court of Federal Claims. 

His wife, Kay, and son, George III, are back towards the back 

there, if they would please rise. 

Senator CORNYN. Why don’t you stand and be recognized, if you 

would, please. Thank you. Thank you for coming. 

Senator ALLEN. I would say, Mr. Chairman, that Mr. Miller has 

exceptional legal expertise that has prepared him very well for 

being a judge on the Court of Federal Claims. He has through his 

years, as you can see from his resume, served in the U.S. Navy 

Judge Advocate General Corps, served in the United States Naval 

Reserve. He served as a law clerk for Hon. Bruce Forrester on the 

United States Tax Court. From 1968 to 1970, Mr. Miller was in the 

Office of the Assistant General Counsel for Logistics for the United 

States Department of Defense. 

Since 1970, George Miller has been with the law firm of Hogan 

and Hartson here in Washington, D.C., becoming a partner in 

1977. Mr. Miller also served the Commonwealth of Virginia for several years as an eminent domain counsel in the Northern Virginia 

District for the Virginia Department of Transportation. Most importantly and relevant to your consideration of his capabilities and 

experiences, he has been admitted to several courts of the U.S.: the 

Tax Court of the United States, the U.S. Court of Federal Claims, 

and he is also admitted to the bar in Virginia, New York, and the 

District of Columbia. He has spent much time as a lawyer handling 

a broad range of civil litigation, takings litigation, and commercial 

arbitration matters. His cases have been heard in the U.S. Court 

of Federal Claims, the very court that he has been nominated to 

serve. And, in fact, I asked Mr. Miller, ‘‘What percentage of your 

cases are in that court?’’ He said, ‘‘Fifty percent or more.’’ So that 

is a fairly unique Federal court, and so he has the experience of 

how it ought to operate and operate well. 

835

Indeed, he is on the Advisory Council for the U.S. Court of Federal Claims as well, and I am very confident, Mr. Chairman and 

members of the Committee, that you will find him to be an outstanding nominee and, more importantly, an outstanding judge. 

So I would ask you in the most respectful way to examine this 

gentleman, and when you examine George Miller’s record, his exceptional record, in particular in the Court of Federal Claims, you 

will find, I think, Mr. Chairman, an outstanding candidate that we 

would want to move forward with, with all deliberate speed—to the 

extent there is deliberate speed in the Senate, but as quickly as 

possible. 

I thank you for having this hearing and also for your perseverance in making sure our nominees get prompt and fair consideration. Thank you, Mr. Chairman. 

Senator CORNYN. Thank you very much for your comments, Senator Allen. We are delighted to have you here today. 

Senator Warner sent along some written comments, and they 

will, without objection, be made part of the record, as will the complete written statements of each of our Senators who are making 

statements here today. Thank you very much for being with us. 

Senator ALLEN. Thank you, Mr. Chairman. 

Senator CORNYN. At this time it is my pleasure to recognize Senator Sarbanes for purposes of any comments he would like to make 

relative to the nomination of Roger Titus, and then we will recognize Senator Mikulski. Thank you very much for being here. 

PRESENTATION OF ROGER W. TITUS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY HON. 

PAUL SARBANES, A U.S. SENATOR FROM THE STATE OF 

MARYLAND 

Senator SARBANES. Thank you very much, Mr. Chairman. I am 

very pleased to come before the Committee today, along with my 

colleague, Senator Mikulski, to introduce a very highly respected 

leader in Maryland’s legal community, Roger Titus, who has been 

nominated to serve on Maryland’s Federal district court. 

Roger Titus received his undergraduate degree from Maryland’s 

Johns Hopkins University and then his law degree from Georgetown University Law Center. While he was at law school, he 

worked as a claims adjuster for Allstate Insurance, and I just mention that to just sort of show he has had some real grass-roots experience if he is going to go on the Federal bench and understand 

the problems of ordinary litigants. 

He went on to a very distinguished legal career. He was in a 

small firm in private practice, was a city attorney for the city of 

Rockville for a number of years, but then joined Venable, Baetjer 

and Howard, which is one of our State’s absolutely leading law 

firms, has been with them now for a number of years and, of 

course, is a partner. 

He has had a range of experience in private practice. I think it 

will serve him well on the Federal bench. He has concentrated in 

litigation. He has had significant experience in State and local government law, in general litigation, constitutional litigation. He has 

handled a wide range of complex commercial litigation matters 

836

and, in addition, has had a very successful career in the appellate 

courts. 

He has also—and I want to stress this—been a leader in our 

legal community. He has been very active in a range of bar activities, including serving as president of the Maryland State Bar Association. We have a very strong, active State Bar Association in 

the State of Maryland. We are very proud of it. It has a whole 

range of programs committed to enhancing the professionalism of 

the legal profession in our State. They do not give the presidency 

of that organization out very lightly, and Roger has served as its 

president and has been a member of its Board of Governors for a 

number of years. He has also been head of the Maryland Municipal 

Attorneys Association, the Trial Court Judicial Nominating Commission. There are a whole range of bar activities, all of which I 

think reflect his own personal commitment to elevating the standards of legal practice and legal service in this country. 

He is a member both of the American College of Trial Lawyers 

and the American Academy of Appellate Lawyers. And I think it 

is fair to say that within his profession he is regarded as preeminent amongst his colleagues at the bar. In fact, the Montgomery County Bar Association just a few years ago gave him the 

Century of Service Award. They picked 15 people who had been the 

best attorneys and judges in the 20th century in terms of legal excellence and service to the bar and community in Montgomery 

County, which is his home, and he was amongst the 15 selected. 

I think that is quite a high honor. 

He has also been involved in a number of civic activities, most 

importantly heading up the Board of Trustees of Suburban Hospital, and we know, of course, what is involved if you head up a 

major hospital board and the significance of that. 

So this is a man of wide experience, breadth and depth of a very 

strong commitment to the best principles of the legal profession. I 

think he will be a stellar addition to our Federal district court. We 

are proud of our court in Maryland. We think it does a very good 

job, and I think Roger Titus brings to it the kind of qualities that 

we look for in a judge: excellent intellectual credentials, the 

breadth and experience to understand the situations confronting 

litigants who will come before his court, active participant in our 

legal community, high contribution to the legal discourse of our 

State, participation in Maryland’s civic community, and he really 

is a person who commands respect and esteem in our State. His 

nomination by President Bush has been received with great favor 

throughout both the profession and the broader community in our 

State, and I am delighted to come today and introduce him to the 

Committee and to urge his favorable consideration upon you. 

Thank you. 

Senator CORNYN. Thank you very much, Senator Sarbanes. We 

appreciate your comments and your presence here today, as we do 

Senator Mikulski, and we are delighted to have you here. We 

would be happy to hear any comments you would like to make with 

regard to this nomination. 

837

PRESENTATION OF ROGER W. TITUS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY HON. 

BARBARA MIKULSKI, A U.S. SENATOR FROM THE STATE OF 

MARYLAND 

Senator MIKULSKI. Thank you very much, Mr. Chairman. I appear before the Committee today with great enthusiasm to recommend to the Committee the nomination of Roger Titus to be on 

the Federal district court in Maryland. Senator Sarbanes has 

elaborated on this in great detail, but let me just say from my perspective, when I look to moving a judge from our community and 

voting for them on the floor from other communities, I look for 

three tests: one, judicial competence, as verified by peers and the 

legal community itself; second, high integrity and kind of a pattern 

of community service, public service; and, number three, dedication 

to core constitutional principles and guarantees. 

Judge to-be, I hope, Mr. Titus meets these tests well and beyond 

the norm. First of all, on judicial competence you will note from the 

record that he received a unanimous ‘‘well qualified’’ from the ABA. 

In our own community, he is regarded as a lawyer’s lawyer, heading up the bar association, and, again, the outstanding way in 

which he practiced law. If we talk about Mr. Titus, one word if you 

had to describe him was ‘‘distinguished.’’ He has been distinguished 

in every undertaking he has pursued. 

When it comes to high integrity and community service, yes, he 

was a city attorney and has done public law. He has been on the 

Board of Trustees of Suburban Hospital. But one case in particular 

I would like to bring to your attention. As a practicing attorney, he 

undertook representing on a pro bono basis something called Mobile Medical Care. This is a program that provides free medical 

care to poor and homeless people, and they wanted to have a headquarters in Montgomery County. Well, zoom, zoom, we got into the 

NIMBY, the ‘‘not in my back yard.’’ 

Mr. Titus threw himself into this case with all the vigor and intellectual capacity and legal competency that he could, and as you 

know, zoning can be arcane. The community was enormously prickly. It took great negotiation skills. And, you know, he has been 

with pretty feisty law firms, but he gave it all that he had and 

treated them like they were a blue-ribbon or a blue-chip client. 

That is the kind of man that is coming before you today. 

By the way, he won that case. 

That just kind of tells you something about the man and something about the character. We are very proud of him. Though he 

was born in Washington, D.C., he is truly a son of Maryland, being 

raised in our own Montgomery County and attending our schools, 

like Johns Hopkins and, of course, Georgetown Law. His wonderful 

wife, Catherine, is with him, and we are so pleased that they have 

really been Team Maryland in many of their community services. 

He was the first in his family to go to law school. In fact, he 

started out as an electrical engineer, and now he is one of many 

of a family of lawyers. Two of his children are lawyers. 

Again, Senator Sarbanes has outlined really the legal career of 

Mr. Titus and how he had his own firm in Montgomery County, in 

Rockville. Then that firm merged with one of the two law firms in 

the United States, Venable, Baetjer and Howard. We might note to 

838

the Committee one of its partners is Ben Civiletti, former U.S. Attorney General, and it is just one of the most prestigious law firms 

in our State. 

So when we go through, you can just see the outstanding way 

that Mr. Titus has practiced law, lived in his community, and we 

believe that he deserves the support that the Committee should 

have, and we should move him expeditiously. This is an outstanding appointment. This Committee and the Senate will be 

proud of the job that Mr. Titus will do as a Federal district court 

judge. 

Thank you. 

Senator CORNYN. Thank you very much, Senator Mikulski and 

Senator Sarbanes, for your presence and participation here today. 

I see Senator Nelson in his usual just-in-time fashion is here, 

and we would be delighted to hear from you, Senator Nelson, with 

regard to any comments you would like to make about the nomination of Margaret Catharine Rodgers. 

PRESENTATION OF MARGARET CATHARINE RODGERS, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT 

OF FLORIDA, BY HON. BILL NELSON, A U.S. SENATOR FROM 

THE STATE OF FLORIDA 

Senator NELSON. Mr. Chairman, thank you, and it is my delight. 

You know, one of the great things about the Senate is you get to 

meet all of these nominees, and sometimes it is three for a particular vacancy, and we have kind of worked out a deal with the 

White House where Bob Graham and I will interview all the nominees, and then let the White House know if we have an objection. 

So we get to interview quite a few, as you can imagine, with the 

size of Florida and all of the vacancies that occur. And I must say 

that as I have not only interviewed Casey Rodgers but I have had 

other people tell me about her, I have received more good comments about this nominee than is usually the case. And it is with 

a great deal of pleasure that I come here to welcome her along with 

you, Mr. Chairman, and her husband, James, and their children, 

and they are here to support her. 

The judicial appointees are charged with making important decisions that greatly impact the daily lives of our citizenry, and so we 

want the nominees to possess a great deal of knowledge and experience, and we want that judicial temperament of being impartial 

and fair and compassionate. And I think that Mrs. Rodgers possesses these traits, and she passes the test with flying colors with 

regard to her professional experience, and she will be an excellent 

judge. 

She is a graduate of California Western School of Law, was sixth 

in her class. She has been a lawyer, and most recently she has 

been a magistrate judge in the Northern District. And that, by the 

way, is another interesting fact that I have found since Senator 

Graham and I have interviewed so many nominees. You usually do 

not have to worry about the magistrate judges, that they have 

the—first of all, they have passed the test to be selected by the 

judges, and then they have that great experience. 

Prior to her service on the bench, she had her own law firm. She 

served as general counsel for the Better Business Bureau, and she 

839

has been a member of the United States Army. She is active in her 

community through a number of civic organizations, and it is her 

hometown of Pensacola that have spoken out so vigorously on her 

behalf. And based on her professional success and my observations, 

I believe that she will be an excellent judge, and I highly commend 

her to the Committee, Mr. Chairman. 

Senator CORNYN. Senator Nelson, thanks for those comments 

and for your participation during this important confirmation hearing for Ms. Rodgers, and the insights that Senators provide about 

their home State nominees is immensely valuable to the Committee, and I want to say thanks again for being here. 

Senator CORNYN. If I may ask the nominees, please, to come forward and be sworn, we will be glad then to proceed with any statements you might care to make. 

Do you swear that the testimony you are about give before the 

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

truth, so help you God? 

Judge RODGERS. I do. 

Mr. TITUS. I do. 

Mr. MILLER. I do. 

Senator CORNYN. Thank you very much. Please have a seat. 

Looks like, Judge Rodgers, you are on this end. We can either move 

you or move the— 

Well, thanks to each of you for being here today. And Chairman 

Hatch does send his regrets. He is unavoidably absent from the 

hearing. But I know each of you know enough about the operation 

of the Senate to know that there are other eyes and ears observing 

and listening to the proceedings here today. And, of course, each 

one of you has already been through quite an examination before 

you get to this point, through groups like the American Bar Association, through Federal agencies like the FBI, not to mention the 

evaluation process leading up to your nomination by the President. 

And so we know you have been scrutinized and analyzed, and your 

records combed with a fine brush. 

But we would be delighted to hear any comments you might have 

to make in terms of any opening statement. And it is entirely appropriate—and we are not too formal here—if you would like to introduce members of your family or friends who happen to be accompanying you on this important day, recognizing the significance 

that this day must have in your life and the life of those who love 

you and support you in what you are doing. 

So, Judge Rodgers, please proceed with any comments you would 

like to make. 

STATEMENT OF MARGARET CATHARINE RODGERS, NOMINEE 

TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 

FLORIDA 

Judge RODGERS. Thank you, Mr. Chairman. Is this on? 

Senator CORNYN. Now it is. 

Judge RODGERS. Thank you. It is indeed an honor and a privilege 

for me to be here today. And I want to thank you, Mr. Chairman, 

and the other members of the Committee for scheduling this hearing and giving me the opportunity to address the Committee. 

840

I also want to thank Senator Nelson for being here today and for 

his kind words of support on behalf of my nomination. 

While I don’t have an opening statement per se, I would like to 

take the opportunity to introduce some special people who are here 

with me today for support. 

First, I have my husband Jim; I have my daughter Hannah Rodgers, my stepdaughter Maggie Pschandl, stepdaughter Jamie 

Lajter, daughter Maggie Rodgers. I would say that Maggie and 

Hannah are not unhappy about having to miss school this week. 

And I don’t know if they’re more happy about, or more excited 

about being here today or being able to attend the World Cup game 

on Sunday. I just told them they have to hold their cheers until 

Sunday. 

My long-term secretary, Kathy Rock, and her husband Bob. 

They’ve come all the way from Pensacola. My mother, Jane Hubbard, and my uncle, John Morris, who I know my father, who’s deceased, is pleased to have my Uncle John here today in his place. 

My sister, BJ Greer, from Pensacola; and my dearest and closest 

friend, Susan Fisher, who resides here in the Washington area 

with her husband and children. 

And I want to tell them that I am very grateful to all of them 

for being here, and grateful for all their support. And thank you. 

[The biographical information of Judge Rodgers follows:]

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Senator CORNYN. Thank you, Judge Rodgers, and thanks to each 

of you for being here and supporting Judge Rodgers on this important day. I could tell you from my experience, even though I have 

never been a Article III judge, I was a State district judge and a 

member of the Texas Supreme Court for a period of 13 years in my 

previous life, and it is important on occasions like this to have 

those who are near and dear to you here for support, and we are 

delighted to have you here. 

At this time, Mr. Titus, I would be glad to hear any opening comments you might have to make. 

STATEMENT OF ROGER W. TITUS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF MARYLAND 

Mr. TITUS. Thank you, Mr. Chairman. I first wanted to thank my 

Home State Senators Sarbanes and Mikulski for their very generous remarks. I thought I was at a funeral listening to me being 

praised. 

Senator CORNYN. They were awfully nice, I noticed. 

Mr. TITUS. But it’s wonderful to have their support and encouragement as I go through this quest. 

I don’t have an opening statement, either, but I did want to remark on one thing that Senator Mikulski reported to you about me 

being an electrical engineering student, as by way of introducing 

my family—and by way of explaining to you how I’ve done my best 

to increase the population of the legal profession. 

I was indeed an electrical engineering student at Johns Hopkins, 

struggling in that subject with my fellow electrical engineering student, Michael Bloomberg, who was my fraternity brother. And two 

things happened in 1961: I changed majors, to political science; and 

I eloped with the daughter of a lawyer. I don’t recommend that as 

the way to meet your first lawyer—that’s the first lawyer I ever 

knew. Since that time, however, I’ve worked hard to populate the 

legal profession, as you will hear from my introductions. 

The woman I eloped with, Cathie Titus, is right here, my wife. 

My daughter Paula, a lawyer, is with me. Her husband Felix is not 

able to be here today. He’s not a lawyer, but he just was appointed 

by Governor Ehrlich to the Trial Court Nominating Commission for 

Montgomery County to select judges. 

My son Richard is here, also a lawyer. His wife Marlene is here, 

and she’s also a lawyer. We have one person who kept the whole 

group honest, my son Mark, who’s an educator. He’s here. 

I have four grandchildren. They’re not in law school yet. My oldest grandson is Benjamin Laboy; his sister Grace Laboy; my granddaughter Emily Titus; and my grandson Drew Titus. 

I also have a nephew who’s attending American University who’s 

here, Kevin Gaughan. And lo and behold, I have a dentist of mine 

that retired. And I guess he has nothing better to do. He’s shown 

up here today to watch me. This is the man who’s known my 

mouth in special ways—Melvin Slann is in the back there. 

Senator CORNYN. That is dedication and friendship personified. 

Mr. TITUS. And finally, I wanted you to know that seated in the 

audience is Reggie Felton, who is a member of the Board of Education of Montgomery County, which is one of my clients. 

And I have nothing further to say. 

875

[The biographical information of Mr. Titus follows:]

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Senator CORNYN. Thank you. One of the things, being elected 

from the State of Texas, I don’t talk about an awful lot, but I am 

a product of Montgomery County schools, at least for a period of 

my growing up and my dad was stationed at Walter Reed Army 

Medical Center, and we lived in Kensington, Maryland. But we are 

delighted to have all of you here today. Thank you for being here 

to support soon-to-be Judge Titus. 

Mr. Miller, we would be glad to hear any comments or introductions you might have to make. 

STATEMENT OF GEORGE W. MILLER, NOMINEE FOR THE 

UNITED STATES COURT OF FEDERAL CLAIMS 

Mr. MILLER. Thank you very much, Senator Cornyn. 

I first of all want to say that I am deeply gratified by the nomination by President Bush. And I’ve always believed that the highest calling of a lawyer is to be a judge. And I take this opportunity 

very seriously and look forward to, hopefully, making a positive 

contribution to the administration of justice on the Court of Federal Claims. 

I want also to thank the Committee for scheduling the hearing 

as promptly as it did. That has not always been the case in these 

matters. I know I, and I think the others who are here today share 

my view that it is everything we could have asked for in terms of 

expeditious consideration, and we appreciate it greatly. 

You have already met, through Senator Allen, my wife Kay, who 

is here, and my son George, who is also here. I’d like to introduce 

two other friends and colleagues who are here. The first is Austin 

Mittler, who is my law partner and mentor, has been with Hogan 

& Hartson since 1968, even longer than I, and has for many years 

been the head of our litigation practice group. 

And with him is Steven L. Simrodt, a law school classmate of 

mine and long-time friend, who lives and works on Capitol Hill. So 

it was easy for him to come over, and I appreciate greatly his presence. 

Our daughter, who lives in Austin, Texas, was not able to be 

with us this morning, but I hope she’s listening on the Internet. 

And our son Bill, who is in his third year at Vanderbilt University 

Law School, was also not able to be here this morning. I hope he’s 

studying hard, as I have every reason to believe that he is. 

And obviously, I want to make appropriate thanks to Senator 

Allen for his very gracious remarks, and for Senator Warner and 

the help and assistance that I’ve received from the members of the 

staffs of both of the Senators from Virginia. 

I have no opening statement other than those remarks. 

[The biographical information of Mr. Miller follows:]

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Senator CORNYN. Thank you very much, Mr. Miller. 

I am happy to have been joined by my colleague Larry Craig. 

And Senator Craig, if you have any comments at this point before 

we launch into the questions, I would be glad to recognize you for 

that purpose. 

Senator CRAIG. I have no questions, thank you very much, Mr. 

Chairman. I am here to listen and to get to know these three nominees better. 

Senator CORNYN. Excellent. We are glad you could be here in 

person. 

Well, let me just launch into a few questions here, if we may. 

First, Judge Rodgers, there was comment made about your experience as a magistrate judge, and I wonder if you could tell the Committee a little bit about your experience in that capacity—the kinds 

of cases you have heard, kinds of responsibilities that you have assumed and discharged as a Federal magistrate judge. 

Judge RODGERS. All right. Thank you, Mr. Chairman. If I might, 

before I embark on answering your question, I was remiss in not 

thanking Senator Bob Graham as well earlier. Senator Graham 

has submitted comments for the record, and I am deeply grateful 

to him for that and, again, was remiss earlier in not mentioning 

that. 

Senator CORNYN. We will certainly make those, as we will all 

other written comments made by Senators, as part of the record. 

Thank you for remembering that. 

Judge RODGERS. Thank you. 

The last 16 or so months have been probably the most rewarding 

in my career, and that’s the time that I have been serving as a 

magistrate judge on the United States District Court for the Northern District of Florida. This position has, in my opinion and in my 

experience, been invaluable to me, and I think it will prove to be 

invaluable if I am fortunate enough to be confirmed by the Senate. 

As far as day-to-day responsibilities as a magistrate, I now perform many of the same or similar type of duties that the district 

court judges on our court perform. In our district, magistrate 

judges are fully utilized. And what I mean by that is they have 

both a civil and a criminal docket. They manage both. 

On the criminal side, I handle all felony initial appearance proceedings, beginning with, again, the initial appearance, the arraignment, detention hearings, which are of course evidentiary 

hearings. I do on occasion accept pleas in felony cases. That is done 

on a report and recommendation basis to the district court. 

We also have a very large misdemeanor docket in the Northern 

District of Florida due to the number of military facilities that we 

have in our area, as well as National Seashore areas. On the misdemeanor side of the docket, I handle the case from the inception 

all the way through the trial, through sentencings, and I will add 

that, as part of that, I do on occasion apply the Sentencing Guidelines in Class A misdemeanor cases. So I have some familiarity 

with the Sentencing Guidelines, which I think will prove useful to 

me down the road if I am confirmed. 

I also handle violation of probation hearings, as well as, again, 

sentencings, and handle matters pertaining to the grand jury as a 

magistrate. 

957

On the civil side of the docket, our duties are vast. And I would 

add that on the Northern District of Florida, our docket is approximately 90 percent civil. Over half of that docket is made up of 

cases that the magistrates handle on a day-to-day basis, those 

cases being Social Security cases, habeas corpus matters, petitions 

and motions, as well as prisoners’ civil rights cases. And I handle 

those cases on report and recommendation to the district court 

judges. 

We also handle all of the civil discovery matters as magistrates 

on our district court, which, as you can imagine, keeps us very 

busy and requires a good command of the Federal Rules of Civil 

Procedure, which, again, I think will prove useful down the road 

if I am confirmed. 

The, I guess, more of a subjective benefit of having served as a 

magistrate is that it has allowed me to develop a certain judicial 

temperament. I enjoy my time in the courtroom as well as outside 

the courtroom, but I do believe that the time that I’ve spent in the 

courtroom as a magistrate judge has been invaluable to me and 

will prove to be so down the road. 

I think it has taught me a lot about respect for the litigants that 

come into the courtroom. As a district court judge, I’m the first—

excuse me, as a magistrate judge, I am the, really, the first person 

that they see and hear from in the courtroom, and I feel that I represent the court. And as a district court judge, if I’m confirmed, I 

feel the same way, that I would have a duty and a responsibility 

to ensure that the litigants are treated fairly, respectfully, courteously. And not just the litigants, but the attorneys as well, the 

jurors, and every member of the public that comes into the courthouse, because it is a public forum. 

But in short, I think that the time that I’ve spent as a magistrate has been invaluable, and I think would prove to be invaluable down the road if I’m fortunate enough to be confirmed. 

Thank you. 

Senator CORNYN. Thank you very much. 

Mr. Titus, during your introduction, I was—one of the things 

that you have done or the honors that you have received caught my 

attention, in particular being admitted to the American College of 

Trial Lawyers, which I know is reserved, really, for people at the 

top of their profession, people who represent clients in courtrooms. 

And you, of course, having spent a lot of time in the courtroom as 

a lawyer, I know, in all likelihood, share my concern that there are 

a lot of people who can’t afford to resolve their differences in a 

courtroom because of the cost. Particularly we are talking about 

civil cases. We know indigents who are charged with crimes can get 

court-appointed lawyers. But also the delay that seems to be built 

in too often in our civil litigation system precludes many people 

from seeking resolution of their disputes in a court of law. 

And I wondered what thoughts you might have about either case 

management techniques of alternative dispute resolution or other 

similar techniques you might be able to use to make sure that 

more people have access to the courts, and not less. 

Mr. TITUS. Thank you, Mr. Chairman. 

One of the activities that I’ve been engaged in since 1989 is being 

a member of the—the full long name for it is the Standing ComVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00969 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.004 SJUD4 PsN: CMORC
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mittee on Rules of Practice and Procedure of the Court of Appeals 

of Maryland. We call it the rules committee. It’s a tongue-twister. 

Since I’ve been on that committee, I was, among others, given 

the chairmanship of the management of litigation subcommittee. 

And one of the concerns of that Committee is to address the very 

type of thing that you’re mentioning now. While I was chairman, 

we came up with a mandatory requirement for all circuit courts in 

our State to have differentiated case management plans, so that a 

complex case would be on one type of a track and a very simple 

case would be on a very simpler track. 

That has worked very well, because it means that a case that 

should be inexpensive to litigate ends up on a rather quick, short 

track for discovery and pre-trial and so forth. Another aspect of it 

is that there are mandatory conferences with the presiding judge 

early in the case, to discuss such things as discovery planning, but 

most importantly, to talk about the alternatives for resolving the 

matter without having to go through the full-blown process of preparing for and conducting an actual trial. So it provides for—and 

I’ve been sometimes disappointed that it hasn’t been implemented 

as well as I’d like—but it provides for the possibility of early intervention by mediation. 

In the Federal court to which I’ve been appointed, significant use 

is made of the magistrate judges to conduct mediations. And I’ve 

participated in a number of them, and they do an extraordinarily 

good job of helping the parties identify a solution to their case, that 

is, not necessarily one that’s going to be hammered out in a courtroom with uncertain results and possibly high costs. 

So those are obvious concerns to me, and that’s how I’ve acted 

on them in the past. 

Senator CORNYN. Thank you very much. I think it was Ambrose 

Bierce who defined litigation as something to which you go in—or 

people who resolved their disputes through basically a sausagegrinding process. And he said it more artfully than I can remember 

right now, but essentially sometimes it is hard, through the litigation process, to identify the winner from the loser; both of them are 

so battered and bruised and depleted during the process. So I am 

glad to hear of your commitment to differentiated case management land alternative dispute resolution. 

Mr. Miller, you are also an advocate of the use of alternative dispute resolution. Can you talk a little bit about your ideas about 

how those ADR techniques can be used to resolve disputes that will 

be pending before the U.S. Federal Court of Claims? 

Mr. MILLER. Thank you, Senator Cornyn. 

I, as Senator Allen mentioned, have been a member of the Advisory Council of the Court of Federal Claims for the past 9 years. 

And one of the things which the Court of Federal Claims has itself 

done very recently is to establish a pilot program seeking to utilize 

alternative dispute resolution techniques more aggressively to try 

to settle cases that should be settled at an early point in the proceedings. 

My own experience in that regard has been that there is no substitute for judicial involvement at a point in time, hopefully when 

the parties have conducted some discovery, know what the facts of 

the case are, and the parties would benefit from a neutral evaluaVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00970 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.004 SJUD4 PsN: CMORC
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tion by a judge who can share with the parties what his reaction 

might be if he were confronted with the particular facts and circumstances. And the Court of Federal Claims ADR pilot program 

seeks to utilize so-called settlement judges for that purpose. 

And I would hope that that pilot program will be expanded—

modified as appropriate, given the court’s experience with the pilot 

program—but expanded to be even more widely utilized in the 

Court of Federal Claims. I think that there has been a lot of 

progress in that regard to date in that court, and my impression 

is that the judges are very interested in expanding the reach of the 

ADR pilot program, which I support. 

Senator CORNYN. Senator Leahy, the Ranking Member of the Judiciary Committee, is unable to be here in person but has sent a 

written statement which will be made, without objection, part of 

the record. 

Mr. Miller, tell me, for those who may not be as familiar as you 

are with the work of the United States Court of Federal Claims, 

what you consider to be the greatest challenges that confront that 

court. 

Mr. MILLER. Senator Cornyn, I think one of the greatest challenges confronting that court is ensuring the expeditious decision 

of cases. There was a time, I think, when practitioners generally 

regarded the Court of Claims, as it was then known, as a forum 

in which it could take a long time to get a decision. I was a member of a litigation practice reform task force in 1996, which studied 

that issue, made some recommendations. And my own experience 

is that, as a result of that activity and of the work of the Advisory 

Council, the Board of Governors of the Bar Association of the Court 

of Federal Claims, and the active participation of the judges of the 

Court of Federal Claims, that the court has come a long distance 

from the era when it was, I think, widely regarded as too slow in 

rendering decisions. And I think, at this point in time, that perception among the members of the bar has generally changed, and the 

court is in fact must more, in my judgment, conscious of the need 

to render its decisions quickly as well as well. And I think continuing that trend is one of the most significant challenges facing 

the court. 

Senator CORNYN. Are there case-disposition standards that exist 

for that court? And how is the court doing in terms of meeting 

those standards, if they exist? 

Mr. MILLER. It is my understanding, Senator, that the court has 

an internal operating rule or procedure which contemplates, as I 

understand it, that within 30 days of the filing of the last brief or 

the conclusion of the hearing, the matter is set for argument. Argument, in turn, is set within 60 days of the last brief or conclusion 

of the hearing, and decision is rendered within 30 days of argument; therefore, within 90 days of the conclusion of the trial proceedings. 

My impression is that the court is generally adhering to that 

guideline. Now obviously there are cases which for one reason or 

another should be stayed pending, perhaps, a decision of the Court 

of Appeals for the Federal Circuit which may resolve the case or 

to permit the parties to arrive at an amicable resolution. But I 

think in principle that is the timetable which the court has interVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 00971 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.004 SJUD4 PsN: CMORC
960

nally set for itself. And as an outside observer, it is my impression 

that the court adheres to that timetable in most of the cases that 

come before it and are not otherwise candidates for some sort of 

delay. 

Senator CORNYN. Thank you. 

As each of you know, judges are not legislators. And sometimes 

a judge is confronted with a legal precedent, or maybe even a statute, which directs a result that they may not personally agree with 

or be happy with. Of course, the United States Supreme Court 

precedents are binding on all lower Federal courts, and circuit 

court precedents are binding on the district courts. I would like to 

hear a little bit from each of you—perhaps, Ms. Rodgers, starting 

with you—about your observations with regard to the duty of a 

United States Federal district judge to follow precedents of higher 

courts and the statutes passed by Congress in the event that they 

aren’t unconstitutional. 

Judge RODGERS. Thank you, Mr. Senator, Mr. Chairman. 

If I am fortunate enough to be confirmed, my judicial philosophy 

as a district court judge would be one of respect for the limited 

powers of the district court, and also respect for the separation of 

powers. If I’m confirmed, I would leave the matter of law-making 

and legislating to the Congress, where it rightfully belongs. I 

wouldn’t have any problem doing that whatsoever. 

Senator CORNYN. What is your approach to a—let’s say the 

United States Supreme Court has not passed on an issue that you 

need to decide. Where would you look for guidance, and how would 

you arrive at a decision absent a clear precedent or a clear statute? 

Judge RODGERS. Well, the first place I would look would be to the 

law or precedent of our circuit, which would be the 11th Circuit 

Court of Appeals. In the absence of any guiding precedent in that 

circuit, I would most probably look to circuit court decisions in 

other circuits that might be analogous to the facts before me or the 

legal issues before me. In the absence of any guidance, or persuasive guidance, from other circuits, I would, in reviewing Federal 

legislation, I would first afford the statute a presumption of constitutionality. From there, I would apply statutory rules and principles of construction to try to arrive at the statute’s meaning. And 

in the event the statute was not clear or there was some ambiguity 

there, I would rely on legislative history to guide me in determining the statute’s meaning. 

Senator CORNYN. Mr. Titus, do you agree that occasionally judges 

have to make decisions that are unpopular or perhaps may not 

even be consistent with their own personal preferences because 

precedent, faithful application of precedent or a statute requires it? 

Mr. TITUS. Thank you, Mr. Chairman. I don’t think there’s any 

question but that a judge’s personal views are irrelevant. When it 

comes to a case that comes before a judge that has a controlling 

precedent or a statute that dictates the result, you have to follow 

it. 

I have been an advocate for people who I didn’t like or whose 

views I didn’t like, and that’s the nature of the advocate’s job. Your 

job is to be the advocate. And a judge is in the same situation. You 

bury your personal feelings and you follow the precedent, follow 

what the law is. 

961

Senator CORNYN. Are you saying that the role of an advocate is 

represent the client faithfully without regard to whether you like 

the client or even agree with their legal arguments? 

Mr. TITUS. That’s what the Code of Professional Responsibility 

says—zealously represent the client to the best of my ability. 

Senator CORNYN. And what should we glean from, let’s say, for 

example, the kinds of cases that you have handled and maybe the 

kinds of positions that you have taken as an advocate on behalf of 

a client, what should we glean from that in terms of your ability 

to perform the duties of a United States Federal district judge. Is 

it relevant at all? 

Mr. TITUS. Well, I have been involved in cases where the positions I took were not necessarily popular. One of those was mentioned by Senator Mikulski. I mean, I was having people booing at 

me and everything else trying to get an administrative headquarters for an organization to provide medical care for the homeless. But I had a client and I had a job to do, and we got the job 

done. 

Senator CORNYN. Does that have any bearing, do you think, on 

how you will regard such cases, or other cases, as a judge? I guess 

what I am trying to get at—I am not asking the question very 

well—but what the difference in the role is between that of an advocate and that of a judge, and what relevance your conduct as an 

advocate should have in terms of our consideration of whether you 

should be confirmed as a judge. 

Mr. TITUS. Well, what I’m trying to say is I feel very comfortable 

with the constraints that are upon a judge to follow precedent, to 

make decisions that may not be popular but which are bound by—

are controlled by precedent or by statute. And I was simply trying 

to draw an analogy to the fact that lawyers, as advocates, frequently have to advocate positions with which they may not personally agree but which is in the interest of the client to advocate. 

And I’m comfortable with making that transition and keeping my 

own personal views, whatever they may be, not in the forefront of 

any decision making as a jurist. 

Senator CORNYN. Thank you. 

Mr. Miller, would you comment on those same questions? 

Mr. MILLER. Well, I think I have actually little to add to the comments of Judge Rodgers and Mr. Titus. I would say that I think 

the first task, actually both of the advocate and, I think, of the 

judge, is to, having ascertained the relevant facts, look up the law. 

And just as the advocate seeks to marshall precedents in support 

of his client’s position, so, it seems to me, the judge, in analyzing 

the existing law and relevant authority, is seeking to find out, at 

least initially, if it’s possible to do so, what the law is. And having 

ascertained that, assuming he is able to do so, that in turn sets the 

course that the judge necessarily is on to make a decision, regardless of what his personal views of what might be good policy in the 

circumstances might be. 

Senator CORNYN. Thank you very much. 

Well, I want to thank each of you for being here today to answer 

a few questions in addition to the multitude of questions you have 

already answered to even get to this point, and to congratulate you 

and your families on your nomination. It is my hope that your 

962

nominations will be voted out of the Committee quickly and that 

you will be speedily confirmed by the United States Senate. I think 

your record, your answers to these questions and others have 

shown not only your qualification for the office to which you have 

been nominated, but your temperament is appropriate to that job, 

and your approach to the unique role of judging in our legal system 

commends itself toward your confirmation. 

There may be other questions that will be tendered to you in 

writing by members of the Committee. That is their right. And we 

will hold the record open for that purpose. 

But with that, this hearing today will be concluded. And thank 

you again for being here. 

[Whereupon, at 11:00 a.m., the Committee was adjourned.] 

[Questions and answers follow.]

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(989)

NOMINATION OF DORA L. IRIZARRY, OF NEW 

YORK, NOMINEE TO BE DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF NEW YORK 

WEDNESDAY, OCTOBER 1, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, Schumer, and Durbin. 

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

FROM THE STATE OF ARIZONA 

Senator KYL. This hearing will come to order. 

The agenda of the Senate Judiciary Committee this morning is 

to hear from a candidate for Federal district court and witnesses 

in connection with her nomination. The candidate is Dora Irizarry. 

She is a candidate for the United States District Judge for the 

Eastern District of New York, and she is going to be introduced 

this morning by the Senator from New York, who I will turn to in 

just one moment. 

Let me explain for those of you in the audience. As is frequently 

the case, the Members of the Senate are each supposed to be in 

four different places as of 10 o’clock, so we are going to take turns 

here in conducting this hearing. I want to make two points. 

First of all, the fact that not everybody is up here does not mean 

that we do not care or that we will not all review the record and 

talk to the people who are here in moving the nomination forward 

or dealing with the nomination. And, secondly, therefore, the failure of a lot of members to cross-examine and quiz and ask a lot 

of questions and so on does not denote lack of interest. That interest will be certainly revealed as the nominee proceeds through the 

process and we have additional hearings. But for this hearing this 

morning, I regret to say there may be some lack of attendance from 

time to time, and I just do not want any of you to take that as a 

lack of respect for this nominee or for the process. It certainly does 

not represent that at all. 

Now, I know that Senator Schumer—at least I believe Senator 

Schumer would like to introduce the nominee, and, therefore, let 

me call upon the Senator from New York. 

990

PRESENTATION OF DORA L. IRIZARRY, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK, 

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

STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I very much appreciate the opportunity not only to be here today and serve on this 

Committee, but particularly to introduce our nominee, Dora 

Irizarry, to the Federal Court for the Eastern District of New York, 

which represents four counties that have a population of 7 million 

people, including my home county of Brooklyn. And our nominee is 

from Brooklyn as well. 

Now, I just want to say before I begin, Senator Clinton would 

have been here as well but had prior scheduling, as the Chairman 

said. At 10:00 in the morning, we are supposed to be in four places 

at once, but she wanted to convey her support for the nominee as 

well. 

Also, I would say that Judge Irizarry’s parents and son, Justin, 

could not be here today, but I know they are very proud of Dora’s 

accomplishment. And I would also note just for the record, a sign 

of our times, her sister and brother-in-law could not be here either. 

Judge Irizarry’s sister is an Army civilian and her brother-in-law 

is an enlisted man, and they both are stationed in Fort Buchanan 

in Puerto Rico. So I want to congratulate them, wish them well, 

and thank them for the service to our country. 

Now, coming here today to introduce Judge Irizarry is a—excuse 

me—is a particular pleasure for me. So pleasurable that I am overcome here today. 

[Laughter.] 

Senator SCHUMER. It is a particular pleasure for me because her 

nomination is an example, Mr. Chairman, of what happens when 

the process works right. We are filling all of the vacancies on New 

York’s Federal courts with nominees who have bipartisan support. 

All of the relevant parties, myself and Senator Clinton, Governor 

Pataki, and the White House, are not only comfortable supporting 

all of the judges we put on the Federal bench, but we believe each 

of them will do the Nation a credit as members of the Judiciary. 

The Committee is familiar with the judge’s biography, so I am 

just going to touch on a couple of highlights. 

She was born in Puerto Rico but raised in New York, and she 

graduated from one of the best high schools not only in New York 

City but in the country, and that is the Bronx High School of 

Science, which you have to take a test to pass and it is very hard 

to get in. 

From there she went to Yale College—not bad—and Columbia 

Law School—excellent; my brother went there—before embarking 

on a 16-year distinguished career as a New York prosecutor. She 

was appointed to the New York City Criminal Court by Mayor 

Giuliani and then to the Court of Claims by Governor Pataki. She 

left the bench a few years ago, ran for public office, and has been 

in private practice since. 

Now, as the Committee knows, because I talk about this all the 

time—and I also want to welcome so many guests from New York 

who are here today. I want to thank them all for being here, including—we have some judges who are here, we have some memVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 01002 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.005 SJUD4 PsN: CMORC
991

bers of the bar, some members who have been very active in the 

Latino legal community, and just friends of the judge. And they fill 

the room, and I want to welcome everyone here. For fear of offending anyone, I will not single anybody out, except there is one person I served in the Assembly with in 1974 when I was first elected 

to the Assembly at the young age of 23, and that is Judge Michael 

Pesce, my friend who serves on the Brooklyn Supreme Court. But 

I will not tell them what we talked about—well, can I? Jon would 

appreciate it. No? All right. I will tell him privately. In any case, 

so I welcome everybody here. 

Now, you may not be familiar, but the Committee knows, because I talk about this a lot. I have three standards when I help 

select judges in New York and when I vote on judges here in Washington. And they are these: excellence, moderation, and diversity. 

Excellence: A judge should be legally excellent. The Federal 

courts have awesome power, and we do not want someone’s brother-in-law or political hack. We want the best. 

Moderation: I do not like judges too far right. You know that, Mr. 

Chairman. I also do not like judges too far left and, in fact, on my 

legal Committee have knocked out a number of people who the 

Committee thought highly of because I thought they were 

ideologues of the left. And I think ideologues, whether they be of 

the far right or the far left, want to make law. And the Founding 

Fathers wanted people to interpret the law. Nothing against these 

ideologues. They care passionately. But when you care so passionately about something, it is sort of harder to just interpret law 

rather than make it. 

And my third qualification is diversity. I do not think the bench 

should just be white males. Obviously, that is an important standard as well. 

Well, Judge Irizarry clears the bar on all three. First, her background shows good, excellent training and experience, and she has 

had an excellent record. I was impressed by her background. But 

when I met with her—I had read her biography—I was very impressed, Mr. Chairman, with her legal knowledge and with her 

candor. There was no trying to beat around the bush, figure out 

what I wanted to hear and then say it. She said what she thought. 

She also had a great grasp of things. 

I always ask nominees: What are some opinions that you are 

critical of by the Supreme Court or other? And she gave two really 

thoughtful opinions, not the kind of thing you would see that she 

was critical of. One she was critical of from the right; one she was 

critical of from the left. But really thoughtful and impressive. 

Now, I know that the ABA has found her not qualified, but their 

concerns are not based on her legal knowledge or her intellectual 

ability. Everybody gives her high marks on those. Rather, the 

ABA’s concerns regard the standard of temperament from the 

bench. And I asked Judge Irizarry about these concerns when she 

came to be interviewed by me. Her answers were quite persuasive. 

While she suggested the concerns may have been a bit exaggerated 

in some instances, she did not duck it. She took full responsibility 

for the temperament concerns, discussed candidly the growing she 

has done since then, and expressed a genuine commitment to ensuring that these concerns do not follow her to the bench. 

992

As my colleagues know, when a red flag is raised regarding a judicial nominee, I believe the burden is on him or her to demonstrate that he or she deserves lifetime appointment to a powerful 

post of Federal judge. In my opinion, Judge Irizarry has carried 

that burden and carried it well. 

I am proud to support her nomination, proud to commend her to 

my colleagues on the Committee, and look forward to her swift confirmation by the full Senate. 

Thank you, Mr. Chairman. 

Senator KYL. Thank you very much, Senator Schumer. 

Senator Hatch had an opening statement, which detailed much 

of the information that you raised, and I am going to insert that 

in the record rather than take the time to read it here. But I did 

want all of you who traveled to be here today to know of Senator 

Hatch’s strong support for the nominee and his conclusion, much 

the same as Senator Schumer has expressed himself, as well as a 

recitation of Judge Irizarry’s record. And so that will be made a 

part of the record. 

Senator SCHUMER. Mr. Chairman, I would just ask unanimous 

consent that Senator Leahy, who is the ranking Democrat on the 

Committee, also in support of the judge’s nomination, that his full 

statement be added to the record. 

Senator KYL. Without objection, it will be included in the record. 

Now, Judge Irizarry, if you would take the dais, and I think I 

am going to ask you, first of all, if you would like to introduce 

members of your family who are here. 

Judge IRIZARRY. Thank you very much. Good morning to everyone, and good morning, Mr. Chairman. Good morning, Senator 

Schumer. I thank you very much for your continued and unwavering support and for that very generous and kind introduction. 

If you would just bear with me, please, I would like to make special note of some people who did come a long way to be here with 

me today: 

The Honorable Michael Pesce, who is the Presiding Justice of the 

Appellate Term in New York State Supreme Court for the Second 

and the Eleventh Districts, which covers part of the Eastern District of New York. 

The Honorable Lewis L. Douglass, Justice of the Supreme Court 

of the State of New York, who sits in Brooklyn Supreme Court and 

is also the Chair of the Franklin H. Williams Commission on Minorities in the Courts. 

And James Castro-Blanco, immediate past president of the Puerto Rican Bar Association and also a member of the Mayor’s Committee on Judicial Nominations. 

As Senator Schumer noted, my son, Justin, could not be here. He 

is in school in Idaho, and they are finishing up the term. So it was 

a little difficult for him to be here today. And my parents are a little elderly, and it was difficult for them to travel from Puerto Rico. 

And you have heard about my sister, Rosario, and Gilbert Marrero, 

and they are serving their country with the Army, and it was difficult for them to get away. And they are stationed in Puerto Rico. 

And I do not want to disrespect all of the people who came here 

today. There are too many names to mention. But I do want to 

make special note of certain individuals who are here today: 

993

Manuel Romero, who is president-elect of the Brooklyn Bar Association; Dolly Caraballo, who is the current president of the Puerto 

Rican Bar Association; Telesforo DelValle, Jr., who is here with his 

wife, Claudia; and he is past president of the Puerto Rican Bar Association, past president of the New York Region Hispanic National 

Bar Association, past vice president of the New York State Criminal Trial Lawyers Association, and has sat on many judicial nominating committees; Honorable Francois Rivera from New York 

State Supreme Court sitting in Brooklyn; Honorable Ariel Belen, 

Justice of the Supreme Court, State of New York, sitting in Brooklyn, and is one of the founders of the Cervantes Society, which is 

an umbrella organization within the Office of Court Administration, which joins together all Hispanic employees from the 

custodians to the judges under one umbrella group. His daughter, 

Lauren, who is 11 years old, is with us here today. And Fredric 

Newman, who is partner of the firm that I am currently with, 

Hoguet, Newman, and Regal, and I believe Judge Douglass’ daughter is here today with his grandson as well. 

Thank you very much, Mr. Chairman, for the opportunity. 

Senator KYL. Well, thank you, and we welcome all of you to this 

hearing and are delighted to have you here. 

Now, may I swear you in? Would you raise your right hand and 

affirm this oath? Do you swear that the testimony you are about 

to give before the Committee will be the truth, the whole truth, 

and nothing but the truth, so help you God? 

Judge IRIZARRY. I do so swear. 

Senator KYL. Thank you. Now, Judge, let me ask you if you 

would like to give an opening statement, and then members of the 

Committee can refer questions to you. 

STATEMENT OF DORA L. IRIZARRY, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF NEW YORK 

Judge IRIZARRY. Thank you for the opportunity to make an opening statement, but I think that I will waive that at this time. 

Thank you. 

[The biographical information follows:]

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92637.906
1043

Senator KYL. All right. Let me just ask you one or two pro forma 

questions. You have dealt with these in your questionnaire to the 

Committee, but the question that most members want to be sure 

has been affirmed in oral testimony is the question of how you 

would approach decisionmaking and what you would base your decisions on as a judge. As you know, there has been some political 

contention here about confirmation of judges, and I think the first 

thing we always want to know or to hear from you is precisely how 

you would approach the issue of judging, of making decisions? 

Judge IRIZARRY. Thank you for asking that question. It is an important question. I would follow the law, the case law as set forth 

by the United States Supreme Court and, of course, by the court 

of my circuit, the Second Circuit, and, of course, follow the Constitution of the United States. It is the role to follow the precedent 

as set forth by those courts and by the Constitution. 

Senator KYL. And occasionally there are cases of first impression, 

or at least counsel argue that there are cases of first impression 

and you have to sometimes go beyond what is clear precedent. In 

those cases, how would you approach the decisionmaking? 

Judge IRIZARRY. Well, I would certainly go to the statute. There 

is usually a relevant statute that is of concern, whether it’s procedural or substantive. And if the meaning is not plain, then certainly I would go to the legislative history and look at what the legislative intent was, and certainly the intent of Congress should be 

given deference in that regard. 

Senator KYL. To the extent that you can divine the intentions of 

100 people who on any given day can be at least on two sides of 

any particular issue, good luck when you have to do that. 

[Laughter.] 

Senator KYL. Maybe with that I should turn to my colleague, 

Senator Schumer, and see if he has any questions. He probably 

would want rebuttal time first. 

Senator SCHUMER. No rebuttal time, Mr. Chairman. And we 

work quite well together on many issues, and we disagree on some, 

as he said. 

I would say that it is probably a calm day in the Senate when 

there are only two sides to the issue. But I have asked, of course, 

Judge Irizarry many questions and thoroughly reviewed her record, 

and I have no further questions here. 

Senator KYL. Thank you. Then let me just ask one last question 

for you to make a comment on the record. There will be testimony, 

as was noted, regarding the American Bar Association’s rating, and 

perhaps I should have mentioned that we will have in our panels—

the next panel will be Thomas Hayward, Jr., Chair of the Standing 

Committee of the Federal Judiciary, American Bar Association—we 

are very happy to have him with us—and Pat Hynes, former Chair 

of the Standing Committee on the Federal Judiciary, American Bar 

Association. And then the final panel will consist of James CastroBlanco from New York, Hon. Lewis Douglass, and Hon. Michael 

Pesce, who have all been previously introduced. 

So let me just ask you if you would like to comment on the issue 

of temperance that—judicial demeanor and temperance that Senator Schumer alluded to, if you would like to say anything about 

that before these other panelists are called forward. 

1044

Judge IRIZARRY. Thank you, Mr. Chairman. I am grateful for the 

opportunity to address that issue. I’m grateful for this hearing to 

have that opportunity. 

Like the Committee, when the ABA set forth its finding or the 

rating, I received the same letter that the Senate got, which was 

one sentence just indicating what the rating was. And, frankly, I 

had thought that the interview had gone rather well, so I was a 

bit surprised at the rating. 

Let me start by just saying this, what I believe is the proper temperament of a judge, and certainly temperament is an important 

aspect or element to be considered in determining whether someone should be a judge or not. And temperament, proper temperament and proper demeanor should be at the forefront of any judge’s 

thoughts anytime that he or she is in the courtroom or out of the 

courtroom. 

I believe that a judge should have the proper respect and reverence for the law; a judge should be respectful of the dignity of 

all who come before him or her and respectful of their opportunity 

to be heard and give them that opportunity to be heard. Everyone 

should have their day in court. It is important for a judge to have 

a sense of justice and, most importantly, for a judge to be fair, understanding, and compassionate. 

I believe that I have conducted myself in that manner, and certainly I have always striven to achieve all of those goals while I 

have been on the bench. And so I was, frankly, very surprised to 

hear of these allegations because during the time that I was sitting 

as a judge, I had never received any complaints. I have always had 

the utmost confidence of my superiors, who never seemed to hesitate to ask me to take over in very difficult situations, including 

one incident I recall in criminal court where there were 800 cases 

on the calendar, we had wall-to-wall people outside and inside the 

courtroom. This is in criminal court. And the judge who was sitting 

in that part had had a problem with Legal Aid, and they had 

stormed out in protest the day before and were refusing to handle 

cases. And my supervisor asked me to please step in and see if I 

couldn’t take care of all of those people’s cases. And I did. I worked 

it out with the attorneys. I had a meeting with everyone concerned—prosecutors and everyone from the defense panel—and we 

were able, thank goodness, to dispense justice efficiently and as 

quickly as possible and got everyone out by 6:30 in the evening. 

And certainly those are very trying situations, and for anyone 

who has not practiced in the courts of New York State, and specifically in New York City, it’s very hard to explain to you what those 

courts are like. They are the busiest courts in the country, particularly criminal court, where an average calendar can run 150, 200 

cases a day. And you have to do that between 9:30 and 5 o’clock. 

You deal with maybe 50, 70 different lawyers. In Supreme Court, 

you can have a calendar that can run up to 100 cases, and, again, 

you’re dealing with similar numbers of lawyers. Everyone comes 

with their own agenda. 

As a judge, my only agenda is to make sure that the cases are 

handled properly, that everyone is heard. Sometimes you’re dealing 

with litigants who are mentally ill. In the criminal term where I 

sat, sometimes you have defendants who are violent. And so you 

1045

have safety concerns for everyone in the courtroom, including the 

attorneys as well. 

And so you have lawyers who come in with their own agenda. 

Sometimes—many times they are unprepared. They are late. Everybody is rushing off. They also have many places to be at the 

same time, so everyone is rushing. And very often they want to 

take control of the courtroom. 

And so it takes a very firm and tough judge to be able to take 

control of the courtroom, and at the same time be mindful that you 

have to be fair and you have to be just and you have to be compassionate, and that the appropriate amount of time has to be taken 

for each case to be able to handle it properly. At times it means 

modulating the tone of your voice, and certainly there could be 

some who could mistake that as yelling or screaming. Everybody 

has a different opinion as to what is yelling and what is screaming. 

And it may be that people are unhappy with the ruling that I have 

made. In an adversarial system, not everyone is going to be happy 

with the outcome. 

So I am truly sorry to know that anyone felt offended, that anyone might have been hurt by anything that I might have done in 

the courtroom. Certainly that was not my intention. I firmly believe that—in the 7 years that I sat on the bench, there was a mellowing-out process that I went through and gradually sort of 

learned what techniques kind of worked better. You learn to be a 

bit more patient with attorneys who are brand new, and you try 

to work within that framework and try to follow those kinds of 

high, lofty goals that I just outlined for the Committee with respect 

to what is appropriate judicial temperament. 

Chairman HATCH. Well, thank you so much. 

Senator KYL. Might I just say thank you for that answer. I think 

it was an explanation that needed to be on the record, and it was 

well put. And as I announced earlier, we will be doing some musical chairs, but you are now blessed to have the Chairman of the 

Judiciary Committee presiding, and thank you very much 

Judge IRIZARRY. Thank you, Senator. Good morning, Mr. Chairman. 

Chairman HATCH. Good morning. We are happy to have you 

here, and I have no questions for you. I understand they have covered some of the questions that others may have. So with that, we 

welcome you to the Committee, and we will complete this hearing. 

Okay? 

Judge IRIZARRY. Thank you very much. I thank you for this opportunity. 

Chairman HATCH. Thank you so much, Judge. 

Our third panel will be Thomas Z. Hayward, Jr., the Chair of the 

Standing Committee on the Federal Judiciary, the American Bar 

Association, and Pat Hynes, the former Chair of the Standing Committee on the Federal Judiciary, the American Bar Association. We 

will be happy to take your testimony at this time. We welcome both 

of you. We know that you have very difficult jobs here and that it 

takes a lot of your time, but it means a lot to the Bar Association 

and it means a lot to this Committee. 

1046

We will turn to you, Mr. Hayward, and if you could limit yourself 

to 5 minutes each, we would appreciate it, because I am due down 

at Finance as well. 

STATEMENTS OF THOMAS Z. HAYWARD, JR., CHAIR, STANDING 

COMMITTEE ON FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, WASHINGTON, D.C., AND PATRICIA M. HYNES, 

FORMER CHAIR, STANDING COMMITTEE ON FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, WASHINGTON, D.C. 

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 Chair of the American Bar Association’s Standing Committee on Federal Judiciary. With me today is 

Patricia Hynes, a former member and past Chair of the Committee, 

and a circuit member for this investigation. We appear here to 

present the views of the association on the nomination of Dora 

Irizarry to be a United States District Court Judge for the Eastern 

District of New York. After careful investigation and consideration 

of her professional qualifications, a majority of our Committee is of 

the opinion that the nominee is not qualified for the appointment. 

A minority found her to be qualified. 

Before discussing the specifics of this case, I would like to briefly 

review the committee’s procedures so that you will 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 our committee’s booklet, ‘‘Standing Committee on 

Federal Judiciary: What It Is and How It Works.’’ 

The American Bar Standing Committee investigates and considers only the professional qualifications of a nomine: his or her 

competence, integrity, and judicial temperament. Ideological or political considerations are not taken into account. Our processes and 

procedures are carefully structured to produce a fair, thorough, and 

objective peer evaluation of each nominee. A number of factors are 

investigated, including intellectual capacity, judgment, writing and 

analytical ability, industry, knowledge of the law, breadth of professional experience, character, integrity, compassion, courtesy, 

open-mindedness, patience, freedom from bias, commitment to 

equal justice under the law, and general reputation in the legal 

community. 

The investigation is ordinarily assigned to the Committee member residing in the judicial circuit in which the vacancy exists, but 

it may be conducted by another Committee member or former 

member. In the current case, Mrs. Hynes, in her capacity as a 

former member, was asked to undertake this investigation because 

the current member from the Second Circuit was already undertaking another investigation. 

The starting point of an investigation is the receipt of 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 qualifications—professional 

experience, significant cases handled, major writings, and the like. 

The circuit member makes extensive use of the questionnaire in 

the investigation. In addition, the circuit member examines the 

legal writings of the nominee and personally conducts extensive 

1047

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 integrity, professional competence, and 

judicial temperament. This process provides a unique peer review 

aspect to our investigation. 

Interviews are conducted under the assurance of confidentiality. 

If information adverse to the nominee is discovered, the circuit 

member will advise the nominee of such information if he or she 

can do so without breaching the promise of confidentiality. During 

the person 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 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 in the interviews, and the investigation can be briskly concluded. In other cases, such as this 

one, conflicting evaluations over some aspect of the nominee’s professional qualifications may arise. In those instances, the circuit 

member takes whatever further steps are necessary to reach a fair 

and accurate assessment of the nominee. 

Upon completion of the investigation, the circuit member then 

submits an informal report on the nominee to the Chair, who reviews it for thoroughness. The circuit member then prepares a 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, which is then circulated to our entire 

15-member committee, together with the nominee’s completed Senate Judiciary questionnaire and copies of any other relevant materials. After careful consideration of the formal report and its enclosures, each member submits his or her vote to the Chair, rating the 

nominee ‘‘Well Qualified,’’ ‘‘Qualified,’’ or ‘‘Not Qualified.’’ 

I would like to emphasize, Mr. Chairman, that an important concern of the Committee in carrying out its function is confidentiality. 

The Committee seeks information on a confidential basis and 

assures its sources that their identities and the information they 

provide will not be revealed outside the committee, unless they consent to disclosure or the information is so well known in the community that it has been repeated to the Committee member 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 the additional information bearing on it. And as I previously indicated, if 

the information cannot be shared, the information will not be used 

by the Committee in reaching its evaluation. 

1048

Now, turning to the investigation specifically of this nominee, 

Judge Irizarry was nominated on April 28, 2003. Carol Dinkins of 

Houston, Texas, who was then Chair of the Standing Committee, 

and my predecessor, assigned Mrs. Hynes to the investigation, as 

explained above. She began her investigation shortly after receiving the nominee’s May 23, 2003, responses to the public portion of 

the Senate Judiciary Committee questionnaire. 

On July 9th, Mrs. Hynes prepared and submitted to Chair 

Dinkins an informal report that presented the results of her thorough investigation, including summaries of all of her confidential 

interviews and a description of her interview with the nominee. On 

July 11th, Mrs. Hynes’ formal report was transmitted to all members of the committee. Those who had questions were encouraged 

to contact Mrs. Hynes directly. After all Committee members had 

an opportunity to study the report and the attachments, they reported to the Chair their votes on the qualifications of the nominee. 

A majority of the Committee found the nominee ‘‘Not Qualified’’ 

and a minority found her ‘‘Qualified.’’ This vote was reported to you 

on July 21, 2003. 

With your indulgence, Mr. Chairman, I will now ask Mrs. Hynes 

to describe her investigation of the nominee. 

Chairman HATCH. Thank you so much, Mr. Hayward. 

Ms. Hynes, we are happy to have you here. 

Ms. HYNES. Good morning, Mr. Chairman. I appreciate the opportunity to be here. My name is Patrician Hynes. I am a trial lawyer from New York, and as Mr. Hayward indicated, I am a former 

member of this Committee and a past Chair of this committee. 

With that background, I was asked to undertake the investigation 

of the qualifications of Dora Irizarry to be a United States District 

Judge for the Eastern District of New York. 

During my membership on the committee, both as the Second 

Circuit member and as Chair, I participated in numerous investigations of potential and actual nominees to the U.S. Courts of Appeals and to the U.S. District Courts. My investigation of this 

nominee was conducted in the same manner as all investigations 

by the Standing Committee are conducted, as just explained by our 

Chair, Thomas Hayward. 

My investigation was conducted over a two-and-a-half-month period, during May, June, and July of this year. It included approximately 70 confidential interviews, including more than 50 lawyers 

and 17 judges. During each conversation I inquired how the person 

knew, if at all, the nominee and what the person knew about the 

nominee’s professional competence, judicial temperament, and integrity that would bear on her qualifications to serve as a United 

States district judge. I also inquired if they knew any reason why 

the nominee was not qualified to serve as a district court judge. 

I made a particular effort to locate and speak to lawyers who had 

had trials before this nominee because this nominee was a sitting 

judge, and the best way to find out how a judge conducts themselves is to ask lawyers who appear before that judge. And Judge 

Irizarry sat in the criminal court in Brooklyn. She also sat in the 

Supreme Court in Brooklyn, the Supreme Court in Manhattan. For 

a short time at the beginning of her career as a criminal court 

judge, she sat in the Bronx. 

1049

In addition to the interviews, I also reviewed other materials, her 

questionnaire, decisions she had written. I also met privately with 

Judge Irizarry in her office. And during the course of our meeting, 

concerns that had been identified during my investigation were discussed with Judge Irizarry, and she was given an opportunity to 

rebut the adverse information and provide any other additional information. 

The majority of the lawyers that I interviewed raised concerns 

about Judge Irizarry’s temperament. These lawyers were both prosecutors and defense lawyers from the three different counties 

where she had sat as a judge, both on the criminal court and the 

Supreme Court, being Bronx, Manhattan, and Brooklyn. These 

comments by the lawyers who had appeared before Judge Irizarry 

all had a starkly common theme and included statements such as 

that Judge Irizarry was gratuitously rude, abrasive, and demeaned 

attorneys; that she flew off the handle in a rage for no apparent 

reason and would scream at attorneys; that she was impatient and 

did not fully listen to legal arguments and did not have a good 

grasp of the legal issues presented to her; and that she took offense 

easily, was short-tempered and volatile, and got angry when lawyers disagreed with her; that she was rigid and dismissive and did 

not treat lawyers with respect. 

On the issue of judicial temperament, the committee’s background booklet states that ‘‘in investigating judicial temperament, 

the Committee considers the nominee’s compassion, decisiveness, 

open-mindedness, courtesy, patience, freedom from bias and commitment to justice under the law.’’ 

Our committee, in reviewing my report on the nominee, could not 

and did not discount the number of complaints about the nominee’s 

temperament. Certainly some attorneys who appeared before her 

have not encountered problems, but unfortunately they do not adequately make up for the substantial number of negative comments 

concerning her judicial temperament. The breadth and depth of 

these negative comments signal a serious control issue. If the investigation had disclosed that the nominee’s judicial temperament 

had improved over the years as she acquired more experience, the 

Committee would not have exhibited the same amount of concern. 

However, the concerned comments about Judge Irizarry’s lack of 

judicial temperament appeared consistently until her resignation 

from the State bench to run for political office. 

The best judge in the world can have a bad day from time to 

time, and a judge who is smart and trying to run a tight courtroom 

will almost inevitably leave some of the lawyers or litigants with 

a bad taste from time to time. But this investigation and the information gathered goes beyond the thesis that, occasionally, with a 

crowded docket and stressful conditions, a judge may step over the 

line insofar as temperament is concerned. After careful consideration of my report, a major of the Committee was of the view that 

the nominee is not qualified for the position. A minority of the 

Committee found her to be qualified. 

Our Committee takes most seriously its responsibility to conduct 

an independent investigation of the professional qualifications of 

judicial nominees. There is no bright-line litmus test as to whether 

a nominee is or is not qualified. Our recommendation is not the reVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 01061 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.005 SJUD4 PsN: CMORC
1050

sult of tallying the comments—pro and con—about a particular 

nominee. Rather, in making our evaluation, we draw upon our previous experience, the information and knowledge we gain about the 

nominee during the course of our investigation, and our independent judgment. I must stress that we apply the same standards 

and criteria to all nominees. 

In my service on the committee—and I was a member of the 

Committee for 5 years and a Chair for a year—I have either conducted or reviewed literally hundreds of reports on judicial nominees. And, unfortunately, I have never before experienced such 

widespread and consistent negative comments about a nominee’s 

temperament. 

I thank you for allowing us to share our views with the committee. 

Chairman HATCH. Well, thank you so much. 

Senator Durbin, do you have any questions? 

Senator DURBIN. How frequently has the ABA come to this conclusion about nominees? 

Ms. HYNES. On the basis of temperament, Senator? 

Senator DURBIN. Yes. 

Ms. HYNES. I have not gone back and done a history. I would say 

infrequently. That I can say for certain. 

Senator DURBIN. Mr. Hayward, do you know? 

Mr. HAYWARD. Yes, Senator. Contemplating that question, I went 

back and checked, and it has been most infrequent. It goes all the 

way back to before President Reagan was in office as President of 

the United States. 

Senator DURBIN. That was the only other example you could 

find? 

Mr. HAYWARD. Yes, sir. There has been nothing since then. 

Senator DURBIN. I am wondering, Ms. Hynes. I found in my experience, having run for political office and practiced law, that fulltime lawyers sometimes look down their noses at people who get 

involved in political life, do not think they are real lawyers. Did 

you notice in any of the reactions to Judge Irizarry perhaps that 

feeling because she had chosen to be a political candidate? 

Ms. HYNES. Not at all, Senator. The comments that were made 

by lawyers who appeared before her, these were lawyers who had 

appeared before us long before she obviously resigned from the 

bench. No one made any comment to me about her resignation to 

run for office. 

Senator DURBIN. Did you try to screen out political bias because 

she had been a declared Republican candidate for Attorney General 

from her critics? 

Ms. HYNES. Senator, I did not in my interviews discern any concern with politics. There was no discussion of politics at all. It was 

simply for the lawyers—they were lawyers who were interviewed 

because they had dealt with appeals from Judge Irizarry, and they 

were lawyers who appeared before her. Of the lawyers who appeared before her, the temperament was the issue that was discussed and volunteered from the get-go. In terms of my placing a 

call, I did a lot of work to locate trials and lawyers on both sides, 

prosecution and defense. And when I would call and say, ‘‘I am 

calling on behalf of the ABA about Judge Irizarry,’’ the first comVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 01062 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.005 SJUD4 PsN: CMORC
1051

ments that were made by the majority of the attorneys that I interviewed who had appeared before her were discussions of her temperament. 

Senator DURBIN. I am sorry I was not here earlier, and this may 

have been touched on. Did you look into whether any formal complaints had been filed against her while she served as judge? 

Ms. HYNES. It is a requirement of our Committee that the nominee provide to us a waiver whereby we can then inquire into the 

various grievance committees of any jurisdictions where a nominee 

may have been sitting. I did that, and what came back is their 

form letter that said there is nothing in the public files that indicates any, you know, complaints against this nominee. 

Senator DURBIN. So how do you balance that between what appears to be overwhelming and compelling evidence against her on 

temperament, and yet when it comes to the actual evidence of complaints filed, the file is empty? 

Ms. HYNES. Senator, quite frankly, my take on that is that lawyers do not view the grievance Committee procedure as a vehicle—

or may not view it as a vehicle to discuss a judge’s temperament. 

But it was certainly a situation where there was—her reputation 

was widely known as someone who had a temperament issue. 

Senator DURBIN. Well, I might say, Mr. Chairman, I think we 

look at each nominee—at least I do—on three levels: integrity, honesty, the question of legal skills, and I think equally important is 

the question of temperament. It is virtually impossible for us to 

judge in a snapshot experience with a nominee what their temperament is. And this is a matter of concern. I am glad that we held 

this hearing because, as Mr. Hayward has indicated, this is an extraordinary finding. I am going to look at it very carefully. 

Thank you. 

Chairman HATCH. Well, thank you so much, Senator. 

I thank you both for your time and your effort to be here and 

for your assistance to this Committee not just today but through 

the years. We appreciate it. 

Mr. HAYWARD. Thank you, Mr. Chairman. On behalf of all members of the committee, we thank you for those comments. 

Chairman HATCH. Thank you so much. 

Ms. HYNES. Thank you, Senator. 

Chairman HATCH. Thank you for being here. 

[The prepared statement of Mr. Hayward and Ms. Hynes appears 

as a submission for the record.] 

Chairman HATCH. We will now turn to our fourth panel: James 

F. Castro-Blanco, Esq., immediate past president of the Puerto 

Rican Bar Association, from Shearman and Sterling in New York; 

Hon. Lewis L. Douglass, Justice, New York State Supreme Court, 

Chair of the Franklin H. Williams Commission on Minorities; and 

Hon. Michael L. Pesce, Presiding Justice, Appellate Term, New 

York State Supreme Court. 

We are very honored to have the three of you here, and we look 

forward to hearing your testimony. We will start with you, Mr. 

Castro-Blanco. 

1052

STATEMENT OF JAMES F. CASTRO-BLANCO, IMMEDIATE PAST 

PRESIDENT, PUERTO RICAN BAR ASSOCIATION, NEW YORK, 

NEW YORK 

Mr. CASTRO-BLANCO. Thank you, Mr. Chairman. 

Chairman Hatch and members of the United States Senate Committee on the Judiciary, thank you very much for giving me this 

opportunity to testify supporting the nomination of Judge Dora L. 

Irizarry to the position of United States District Court Judge for 

the Eastern District of New York. My recommendation is based 

upon my own experiences working with Judge Irizarry as well as 

numerous conversations I have had with many members of the 

legal community. As a former Assistant United States Attorney in 

the Eastern District of New York, I have had the opportunity to 

practice before some of the most outstanding jurists in the Nation. 

Judge Irizarry would be an excellent addition to that court. Her 

wisdom, compassion, integrity, and love of the law will enable her 

to be an extraordinary district court judge. I am confident that she 

will serve with distinction. 

I have the honor to serve on the New York City Mayor’s Advisory 

Committee on the Judiciary. In that role, I have reviewed many judicial applications and interviewed many candidates. The most important qualities I look for in a candidate are integrity, proper judicial demeanor, knowledge of the law, and a sense of compassion. 

Judge Irizarry possesses all of these qualities in abundance. 

During my tenure as president of the Puerto Rican Bar Association, I worked extensively with Judge Irizarry to increase opportunities for Hispanic attorneys and to provide scholarship money for 

Hispanic law students. Her efforts in this regard have been recognized by the Hispanic legal and business communities. Her honors 

and awards, while too numerous to list, evidence her service to the 

community and the esteem in which she is held. 

Earlier this year, the Board of Directors of the Puerto Rican Bar 

Association voted to approve Judge Irizarry’s nomination to the district court. That decision was based upon the board’s review of 

Judge Irizarry’s record and reputation. Additionally, prior to the 

vote, members of the board who have appeared before Judge 

Irizarry discussed the judge’s ability to effectively and respectfully 

run her courtroom. The board agreed that she possesses the intellect and judicial demeanor to be an outstanding district court 

judge. 

My practice as a trial lawyer has been conducted solely in the 

Federal courts. As a result, I have not had the opportunity to appear before Judge Irizarry. My interactions with Judge Irizarry 

have taken place through many community service-related activities. Judge Irizarry and I have served as panelists on law school 

forums. We have been speakers at Bar Association functions and 

have worked closely organizing events honoring prominent individuals who have made a positive impact on our community. 

I have observed Judge Irizarry interact with many individuals in 

a variety of forums. Some of those individuals have challenged her 

views on a variety of issues in a very confrontational manner. She 

has always maintained her poise in such situations and treated 

people respectfully even when that courtesy was not returned. In 

1053

my opinion, her demeanor on all occasions during which I have observed her has been professional and measured. 

Judge Irizarry’s career epitomizes the American dream. From her 

humble beginnings in Puerto Rico and the projects of the South 

Bronx, using her intellect and perseverance, she graduated from 

Yale University and Columbia School of Law. Forsaking a highly 

paid Wall Street career, she served as an assistant district attorney 

and then as a judge of the New York City Criminal Court and New 

York State Court of Claims. During her career as a public servant, 

she continued to be a community leader, mentor, and role model. 

Judge Irizarry’s generosity of spirit and fine character are apparent from her interactions with all the people she encounters. Her 

reputation among practitioners is that of a fair and no-nonsense 

judge. She had led the kind of multidimensional life that will allow 

her to mete out justice in a thoughtful and fair way. It is my belief 

that Dora L. Irizarry possesses all the qualities necessary to be an 

extraordinary district judge. In short, her judgment, intellect, and 

character set her apart. I am honored to have been given the opportunity to speak in support of her nomination, and I thank you. 

Additionally, just one note. There is in New York State a Commission on Judicial Conduct where attorneys can freely lodge complaints against any judge. 

[The prepared statement of Mr. Castro-Blanco appears as a submission for the record.] 

Chairman HATCH. Well, thank you. We appreciate having your 

testimony. 

Justice Douglass, honored to have you here. I look forward to 

hearing from you. 

STATEMENT OF HON. LEWIS L. DOUGLASS, JUSTICE, NEW 

YORK STATE SUPREME COURT, AND CHAIR, NEW YORK 

STATE COMMISSION ON MINORITIES 

Justice DOUGLASS. Thank you. I have with me my grandson, 

E.J., because it is not every day that you can see your grandfather 

testify before a United States Senate Committee. 

Chairman HATCH. We welcome you, E.J. You are sitting straight 

up. You are someday going to be a judge yourself, I can just tell. 

Justice DOUGLASS. I am a Justice of the Supreme Court in New 

York, and I am also chairperson of the New York Commission on 

Minorities. That is a commission consisting of 21 judges and lawyers appointed by the chief judge to develop programs to improve 

the opportunities for minorities in our system and to improve the 

perception of fairness in the system. We hold meetings throughout 

the State and maintain an ongoing dialogue with minority Bar Associations and develop training programs on the issues of diversity 

for judges. 

I met Judge Irizarry about 10 years ago, when we both were 

judges appointed by the Governor to sit on a court called the Court 

of Claims. Our assignments had nothing to do with claims. It was 

an appointed court created to handle the overload of felony prosecutions. We were all appointed to the Court of Claims and then 

immediately assigned to the Supreme Court to handle major felony 

prosecutions. 

1054

Judge Irizarry steadily gained a reputation among lawyers as a 

superb judge. She did expect everyone who appeared before her to 

adhere to the rules and to perform in a way that enhanced the dignity of the court. She was, nevertheless, fair and evenhanded. 

Like many of us who grew up in inner cities, she believed that 

when a person is found guilty, after a fair trial, it is important that 

government, through the courts, make a strong statement that 

criminal behavior is unacceptable and that social circumstances are 

not an excuse for crime. In short, she had a reputation as a tough 

but fair judge. While presiding over these felony prosecutions, she 

took on young lawyers as interns and became active in Bar Association activities and eventually became president of the Hispanic 

Judges Association. And I know that you know of her excellent academic background. 

Let me turn to what I think is particularly unique and important. We have done remarkable things in this country in the past 

50 years since the Supreme Court outlawed segregation and moved 

us to a more opened society. Judge Irizarry’s appointment would be 

another confirmation of that achievement. In the mid-1960’s, her 

father worked as an electrician at the Federal Building in lower 

Manhattan which housed the Federal court. At that time, like 

other minorities, he worked on Federal projects because minorities 

were not then readily admitted into the unions. He, of course, admired Federal judges, as we all did, and still do. The idea that his 

daughter would someday stand before a Committee of the Congress 

for consideration for appointment as a Federal judge would have at 

that time been viewed as pure fantasy. But here we are considering 

the appointment of Dora, now having graduated from Yale and Columbia and having served as a State judge. 

I tell you, it makes me feel good not only to endorse her because 

of her scholarship and reputation as a State judge, and because she 

is one of the nicest people I know, but it makes me feel good because it shows that all the struggles, all the demonstrations, all the 

tears were all worthwhile, and we can be proud of the system of 

government under which we now live. 

[The prepared statement of Justice Douglass appears as a submission for the record.] 

Chairman HATCH. Thank you so much, Justice Douglass. 

We will turn to you, Justice Pesce. 

STATEMENT OF HON. MICHAEL L. PESCE, PRESIDING JUSTICE, APPELLATE TERM, NEW YORK STATE SUPREME 

COURT, SECOND AND ELEVENTH DISTRICTS 

Justice PESCE. Thank you, Mr. Chairman, for the opportunity, 

and if I may, if I can digress a bit, rather than read the statement 

which I submitted, I should address myself directly to the one issue 

that appears to have arisen regarding Dora’s—as I call her—qualifications to sit as a Federal district judge, and that is the issue of 

temperament. 

Senator Durbin, you asked a very interesting question of Pat 

Hynes, and the question was: Were there any complaints and official reports made by attorneys about Judge Irizarry’s behavior 

while on the bench, or temperament? And she did not have an answer to that. I have an answer to that because I was her immeVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 01066 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.005 SJUD4 PsN: CMORC
1055

diate supervisor, and I would be the one who would receive such 

an official complaint, and the answer to that is no. 

In addition, I did receive complaints about Dora Irizarry about 

how she ran the courtroom. I was her supervising judge, and I was 

the first person—I guess the first target of lawyers who complained. 

The Brooklyn bench that was part of the Second Judicial District 

with Richmond County, Staten Island, is the largest single administrative judicial district in the country. It had 116 judges when I 

was a supervising judge and the administrator. It had employees 

of over 1,000 people. It had 12,000 felony indictments. It had 

52,000 civil filings and other matters that it handled. The volume 

was tremendous. I think E.J. would describe it as being 

‘‘humongous.’’ 

Half of the judges sat in Criminal. In the criminal parts, there 

were six judges who handled the bulk of the indictments, would 

prepare the cases for trial. I can assure you that in my career as 

a judge, I never encountered two lawyers who were willing to go 

forward with any case to trial. They always found ways to delay, 

to postpone. My statement has some reference to that. 

In order to effectively run those six parts that had all of the 

12,000 felony indictments, you had to be tough, capital T, capital 

O—and the rest you know. And unless you are tough, you are not 

getting anything done. And unless you are tough, what happens is 

that the lawyers take over the courtroom. They run your calendar. 

The stress and the pressure are tremendous. I used to do that 

type of work. I used to fly off the handle. I used to be rude. I used 

to get angry at lawyers. That was part of the nature of the work 

that was done. It was not fun. It was the worst time that I ever 

spent on the bench. I am sure Dora feels the same way. I put her 

there. And I would not put her there unless I knew she could do 

the job, I knew that she could be tough. That was part of the job 

description. If she could not do it, she would have been out. I never 

even once received a complaint from the district attorney of Kings 

County, who happens to be a friend, and he would be more than 

happy to confide in me socially or especially professionally that he 

was having problems with Dora Irizarry. He was not. Staff assistants were, perhaps. Assistant district attorneys were. Not once did 

I receive a phone call from the head of the Legal Aid Society, which 

represents the substantial bulk of attorneys who represent 

indigents in criminal matters, who was also a friend, who could 

easily have confided in me. But Legal Aid attorneys certainly did 

complain to me, as did assistant district attorneys. And in many 

cases, they were exaggerated, but in many cases, I realized that it 

was part of the work that took place in the part that Dora Irizarry 

had. 

From that part, she went on to Manhattan, and she went, I 

think, to heaven, because in Manhattan she did trials and that was 

easy. 

I did receive complaints from attorneys. I would receive complaints about other judges. It does not justify the judge sometimes 

flying off the handle. But judges are human beings. We are imperfect human beings. And she will probably continue to be an imperfect human being. But as a human being and as a judge, she is abVerDate 0ct 09 2002 10:53 Apr 09, 2004 Jkt 092637 PO 00000 Frm 01067 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\92637PT4.005 SJUD4 PsN: CMORC
1056

solutely one of the best I have ever known, one of the best I have 

ever supervised. 

And I think my statement ends by saying that the common description by attorneys about Dora Irizarry was that she is trying 

to run the courtroom as if it was the Federal bench. And I said, 

well, that is very appropriate for the nomination. 

So one thing that really surprised me is that—I am sorry Pat 

Hynes did leave. I have known Pat Hynes a long time. I was never 

called by the American Bar Association regarding the impression 

of temperament, and that kind of surprised me. The New York Bar 

Association called. Other groups called. But Pat Hynes never called 

me. And I know her well, and she knows me. And I was kind of 

surprised that she was even here to speak about the temperament. 

I would be glad to take questions. 

Chairman HATCH. Well, thank you so much. I would point out 

that it is not an easy job for the Bar Association people, and, you 

know, it takes a lot of their time, and it is all volunteer. 

But the testimony of you three is very important to me, and I 

personally appreciate you taking the time to be down here. So your 

time has not been wasted. 

Senator Durbin, I will turn to you. 

Senator DURBIN. Thank you, Mr. Chairman, and thank you all 

for your testimony. 

I might ask the two judges who are here: How common is it that 

official complaints are filed by attorneys against judges? Either one 

of you. 

Justice DOUGLASS. I do not think that it is common for official 

complaints, but it is common for lawyers to go to the administrative judge and say, ‘‘I want to tell you something off the record.’’ 

And Mike can speak to when that happens. But when lawyers are 

unhappy, they do not hesitate to go to the supervising judge or administrative judge or to see them at a coffee shop and say, ‘‘You 

know, Judge So-and-so is not treating me right.’’ That is very common. 

Senator DURBIN. I would think that perhaps the point made by 

Ms. Hynes earlier is one that I can recall from my own practice. 

I was in a small town. But if you decide that you are going to go 

to war with a judge, you better never plan on going back to his 

courtroom. And I think that is a restraint from some official complaints. 

Justice DOUGLASS. They could always speak to the administrative judge kind of off the record. 

Senator DURBIN. Right. But the point that she made in her testimony was that she spoke to—had 70 interviews, 50 lawyers and 17 

judges, and said the overwhelming majority came to the same conclusion about the temperament of the nominee. And the point that 

I think is equally important is that it appeared that it was not just 

a matter of her taking command of a courtroom early in her career 

and establishing her reputation, but that these incidents appeared 

to take place throughout her career on the bench. That to me is a 

troubling situation. 

I would say that I am an Illinois lawyer, a downstate lawyer, 

which is not in the big leagues of Chicago law practice when I was 

in private practice. And I know that New York lawyers are not 

1057

known as being docile or deferential by nature. But it seems to me 

that some very serious charges have been raised here that go beyond whether she was controlling her docket. It is a question of 

how she controlled it and whether or not she would bring those 

same characteristics to the Federal bench. 

Judge Pesce, you say with some pride that you were tough, rude, 

angry, and flew off the handle. Maybe that is the way you do business in New York. I do not know. But I would say that if nominees 

to the Federal bench came to us and said, ‘‘We are going to be 

tough, rude, angry, and fly off the handle to get things done,’’ they 

would have a tough time before this Committee. 

Justice PESCE. Yes, Senator, that should be taken along with the 

other statement I made that we are not perfect human beings. You 

fly off the handle. You are rude when you are faced with over 100 

felony indictments. I looked at some of the numbers, and I think 

1 year Dora had 8,230-something appearances in 1 year, which 

means that there were 8,232 different attorneys who appeared before her on cases throughout the year. And when you have hundreds of appearances in 1 day, it is tough. 

I do not expect the Federal dockets to have that kind of volume 

because it is impossible, and I would be the first to admit that it 

is almost impossible to handle those circumstances. And with those 

circumstances and those conditions and not being a perfect individual, you will find the occasion when you are rude, ruder than 

you want to be. But also, if you are rude in one instance, that attorney will not forget it because he is sitting in the courtroom and 

he sees you as a judge go through 85 cases, and everything is fine. 

And on the 86th case, the attorney stands up and he is hit a bit 

by the judge in a way that he does not particularly like, he is going 

to remember that. 

Senator DURBIN. I do not question that. I can still remember how 

judges treated me, and it has been over 20 years since I have been 

in the courtroom. 

Justice PESCE. And how judges treated me when I was an attorney. 

Senator DURBIN. Sure. We do not forget those things. But let me 

just say to you, I still am struck by Mr. Hayward’s statement that 

the ABA could not find a similar case involving temperament 

where they found a person not qualified in over 20 years. They had 

to go back to the Reagan administration—before the Reagan administration to find a similar case. So it appeared that what came 

out in this interview process was very extraordinary, and we have 

many Federal judicial nominees who have had State court experience in very trying circumstances who come to us aspiring to the 

Federal bench. So it appears that it was a very unusual finding as 

a result of their interview process. 

Justice PESCE. I dare say—and I may be out on a limb on this 

one, having part of my statement describe what Brooklyn and Staten Island are like as the humongous judicial district, the largest in 

the Nation—is that I am sure you have had nominees who have 

come from similar courts. But I can assure you—I invite you to 

visit—that the manner in which Brooklyn, Kings County, runs because of the volume, sheer volume, is unparalleled, not even in 

Manhattan, New York county, not even in the Bronx, which is 

1058

Bronx County, not even in Queens. Not even L.A., which is the second largest judicial unit. Kings County is quite a place to be. 

And, again, I have to repeat that if the problem were as serious 

as Pat Hynes found it to be, Dora Irizarry would not have lasted 

in that part. I would have replaced her. The district attorney of 

Kings County would have spoken out loud. 

Senator DURBIN. So you did not receive any informal complaints 

about her demeanor in the courtroom? 

Justice PESCE. I did receive informal complaints from attorneys 

who would meet me socially at meetings and say, ‘‘She’s trying to 

run the courtroom like it’s a Federal bench,’’ which means strict 

adherence to her rules. And while you may tell the attorney once 

that this is the way I want things done, in a State court that attorney does not seem to pay attention. 

Senator DURBIN. Did they bring to your attention some of the 

things that came out in the interviews—throwing objects at attorneys in the courtroom, things like that? 

Justice PESCE. That never came to my attention. 

Senator DURBIN. Were you aware of that, Justice Douglass? 

Justice DOUGLASS. No, I never heard that until this moment. 

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

Chairman HATCH. Thank you, Senator. 

We will make all of your full written statements part of the 

record. I want to thank everybody who has appeared here today. 

Judge Irizarry, we are very happy to have you here, and we will 

try to move with expedition on your nomination. And we appreciate 

the efforts that everybody has made, especially you Supreme Court 

Justices. That means a lot to us, and we just want to wish you continued good fortune on the bench and your good work there, because what you do is extremely important. 

With that, we will recess until further notice. 

[Whereupon, at 11:09 a.m., the Committee was adjourned.] 

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

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