S. HRG. 111–695, Pt. 7 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JULY 15, JULY 28, and SEPTEMBER 15, 2010 

PART 7 

Serial No. J–111–4 

Printed for the use of the Committee on the Judiciary 

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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66–720 PDF 2011

S. HRG. 111–695, Pt. 7 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JULY 15, JULY 28, and SEPTEMBER 15, 2010 

PART 7 

Serial No. J–111–4 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

BRIAN A. BENZCOWSKI, Republican Staff Director 

(III) 

C O N T E N T S 

THURSDAY, JULY 15, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 1 

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

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

PRESENTERS 

Brown, Hon. Scott, a U.S. Senator from the State of Massachusetts presenting 

Denise Jefferson Casper, a Nominee to be U.S. District Judge for the 

District of Massachusetts .................................................................................... 5 

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

Carlton W. Reeves, Nominee to be U.S. District Judge for the Southern 

District of Mississippi .......................................................................................... 4 

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

Edmond E-Min Chang, a Nominee to be U.S. District Judge for the Northern District of Illinois .......................................................................................... 6 

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

Helen Murguia, a Nominee to be U.S. Circuit Judge for the Ninth Circuit ... 7 

Wicker, Hon. Roger F. a U.S. Senator from the State of Mississippi presenting 

Carlton W. Reeves, Nominee to be U.S. District Judge for the Southern 

District of Mississippi .......................................................................................... 4 

STATEMENTS OF THE NOMINEES 

Casper, Denise Jefferson, a Nominee to be U.S. District Judge for the District 

of Massachusetts .................................................................................................. 159 

Questionnaire .................................................................................................... 161 

Chang, Edmond E-Min, a Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 68 

Questionnaire .................................................................................................... 70 

Kobayashi, Leslie E., a Nominee to be U.S. District Judge for the District 

of Hawaii ............................................................................................................... 105 

Questionnaire .................................................................................................... 106 

Murguia, Mary Helen, a Nominee to be U.S. Circuit Judge for the Ninth 

Circuit ................................................................................................................... 8 

Questionnaire .................................................................................................... 11 

Reeves, Carlton W., a Nominee to be U.S. District Judge for the Southern 

District of Mississippi .......................................................................................... 199 

Questionnaire .................................................................................................... 200 

QUESTIONS AND ANSWERS 

Responses of Denise Jefferson Casper to questions submitted by Senators 

Coburn and Sessions ............................................................................................ 258 

Responses of Edmond E-Min Chang to questions submitted by Senators 

Coburn and Sessions ............................................................................................ 263 

Responses of Leslie E. Kobayashi to questions submitted by Senators Sessions 

and Coburn ........................................................................................................... 268 

Responses of Mary Helen Murguia to questions submitted by Senators Session, Kyl and Coburn ........................................................................................... 272 

Responses of Carlton W. Reeves to questions submitted by Senators Sessions 

and Coburn ........................................................................................................... 280 

Page

IV 

SUBMISSION FOR THE RECORD 

Akaka, Hon. Daniel K., a U.S. Senator from the State of Hawaii, statement ... 294 

Asian American Bar Association of the Greater Chicago Area, Sharon A. 

Hwang, President, Chicago, Illinois, May 10, 2009, letter ............................... 295 

Asian American Justice Center, Karen K. Narasaki, President and Executive 

Director, Washington, DC, July 13, 2010, letter ............................................... 298 

Brown, Hon. Scott, a U.S. Senator from the State of Massachusetts, statement ...................................................................................................................... 301 

Carson, Ellen Godbey, Honolulu, Hawaii, June 1, 2010, letter ........................... 302 

Collins, Patrick M., Perkins Coie, Chicago, Illinois, June 7, 2010, letter ........... 304 

Devens, Vladimir, Meheula and Devens LLP, Attorneys at Law, Honolulu, 

Hawaii, May 5, 2010, letter ................................................................................. 306 

Djou, Hon. Charles K., a U.S. House of Representative from the State of 

Hawaii, statement ................................................................................................ 308 

Filip, Mark, Kirkland & Ellis LLP and Affiliated Partnerships, Chicago, Illinois, May 20, 2010, letter .................................................................................... 309 

Hawaii Women Lawyers, Joanne L. Grimes, President, Honolulu, Hawaii, 

May 19, 2010, letter ............................................................................................. 310 

Hoffman, David H., Chicago, Illinois, May 24, 2010, letter ................................. 311 

Iuouye, Hon. Daniel K., a U.S. Senator from the State of Hawaii, statement ... 313 

Kane, Micah A., Kaneohe, Hawaii, June 16, 2010, letter .................................... 316 

Kaneshiro, Keith M., Attorney at Law, Honolulu, Hawaii, May 19, 2010, 

letter ...................................................................................................................... 318 

Kerry, Hon. John F., a U.S. Senator from the State of Massachusetts, statement ...................................................................................................................... 320 

Kirimitsu, Walter S., Honolulu, Hawaii, June 16, 2010, letter ........................... 322 

Komeiji, John T., Senior Vice President & General Counsel, Hawaiian Telcom, 

Honolulu, Hawaii, May 21, 2010, letter ............................................................. 324 

Lassar, Scott R., Sidley Austin LLP, Chicago, ILlinois, May 13, 2010, letter .... 326 

National Asian Pacific American Bar Association, Joseph J. Centeno, President; Tina R. Matsuoka, Executive Director; John C. Yang, Co-Chair, Judiciary Committee and Wendy Wen Yun Chang, Co-Chair, Judiciary Committee, Washington, DC, July 9, 2010, joint letter ........................................... 331 

Price, Warren, III, Price Okamoto Himeno & Lum, Attorneys at Law, Honolulu, Hawaii, April 27, 2010, letter ..................................................................... 336 

Purpura, Michael M., Carlsmith Ball LLP, Honolulu, Hawaii, May 4, 2010, 

letter ...................................................................................................................... 338 

WEDNESDAY, JULY 28, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Leahy, Patrick J., a U.S. Senator from the State of Vermont ............................. 341 

Prepared statement .......................................................................................... 553 

PRESENTERS 

Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio, presenting 

Kathleen M. O’Malley, Nominee to be U.S. Circuit Judge for the Federal 

Circuit ................................................................................................................... 343 

Norton, Hon. Eleanor Holmes, a Representative in Congress from the District 

of Columbia, presenting Beryl A. Howell, Nominee to be U.S. District 

Judge for the District of Columbia and Robert L. Wilkins, Nominee to 

be U.S. District Judge for the District of Columbia .......................................... 345 

STATEMENTS OF THE NOMINEES 

O’Malley, Kathleen M., Nominee to be U.S. Circuit Judge for the Federal 

Circuit ................................................................................................................... 347 

Questionnaire .................................................................................................... 349 

Howell, Beryl A., Nominee to be U.S. District Judge for the District of 

Columbia ............................................................................................................... 413 

Questionnaire .................................................................................................... 415 

Wilkins, Robert L., Nominee to be U.S. District Judge for the District of 

Columbia ............................................................................................................... 472 

Page

V 

Wilkins, Robert L., Nominee to be U.S. District Judge for the District of 

Columbia—Continued 

Questionnaire .................................................................................................... 473 

QUESTIONS AND ANSWERS 

Responses of Beryl A. Howell to questions submitted by Senators Sessions 

and Coburn ........................................................................................................... 523 

Responses of Kathleen M. O’Malley to questions submitted by Senator Sessions ...................................................................................................................... 531

Responses of Robert L. Wilkens to questions submitted by Senators Sessions 

and Coburn ........................................................................................................... 540 

SUBMISSION FOR THE RECORD 

American Intellectual Property Law Association (AIPLA), Alan J. Kasper, 

President, Arlington, Virginia, May 19, 2010, letter ......................................... 547 

Intellectual Property Law Association of Chicago (IPLAC), James R. Sobieraj, 

Appointments Committee, Olivia T. Luk, Appointments Committee, and 

Edward D. Manzo, President, July 27, 2010, joint letter ................................. 549 

Strauss, Hon. Paul, a U.S. Senator from the District of Columbia, prepared 

statement .............................................................................................................. 556 

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

statement .............................................................................................................. 560 

WEDNESDAY, SEPTEMBER 15, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Durbin, Hon. Richard, a U.S. Senator from the State of Illinois ......................... 561 

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

statement .............................................................................................................. 913 

PRESENTERS 

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

James E. Shadid, Nominee to be U.S. District Judge for the Central District 

of Illinois and Sue E. Myerscough, Nominee to be U.S. District Judge 

for the Central District of Illinois ....................................................................... 567 

Dodd, Hon. Christopher, a U.S. Senator from the State of Connecticut presenting Susan L. Carney Nominee to be U.S. Circuit Judge for the Second 

Circuit ................................................................................................................... 562 

Schock, Hon. Aaron, a Representative in Congress from the State of Illinois 

presenting Nominee to be U.S. District Judge for the Central District 

of Illinois ............................................................................................................... 564 

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

Amy Totenberg, Nominee to be U.S. District Judge for the Northern District of Georgia ..................................................................................................... 565 

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

Amy Totenberg, Nominee to be U.S. District Judge for the Northern District of Georgia ..................................................................................................... 566 

Norton, Hon. Eleanor Holmes, a Representative in Congress from the District 

of Columbia presenting James E. Boasberg, Nominee to be U.S. District 

Judge for the District of Columbia and Amy B. Jackson, Nominee to be 

U.S. District Judge for the District of Columbia ............................................... 566 

STATEMENTS OF THE NOMINEES 

Boasberg, James E., Nominee to be U.S. District Judge for the District 

of Columbia ........................................................................................................... 664 

Questionnaire .................................................................................................... 665 

Carney, Susan L., Nominee to be U.S. Circuit Judge for the Second Circuit .... 569 

Questionnaire .................................................................................................... 577 

Jackson, Amy B., Nominee to be U.S. District Judge for the District of 

Columbia ............................................................................................................... 707 

Questionnaire .................................................................................................... 709 

Page

VI 

Myerscough, Sue E., Nominee to be U.S. District Judge for the Central 

District of Illinois ................................................................................................. 807 

Questionnaire .................................................................................................... 808 

Shadid, James E., Nominee to be U.S. District Judge for the Central District 

of Illinois ............................................................................................................... 760 

Questionnaire .................................................................................................... 761 

Totenberg, Amy, Nominee to be U.S. District Judge for the Northern District 

of Georgia .............................................................................................................. 619 

Questionnaire .................................................................................................... 621 

QUESTIONS AND ANSWERS 

Responses of James E. Boasberg to questions submitted by Senators Coburn 

and Sesssions ........................................................................................................ 869 

Responses of Susan L. Carney to questions submitted by Senators Coburn 

and Sesssions ........................................................................................................ 876 

Responses of Amy B. Jackson to questions submitted by Senators Coburn, 

Franken and Sesssions ........................................................................................ 882 

Responses of Sue E. Myerscough to questions submitted by Senators Coburn 

and Sesssions ........................................................................................................ 892 

Responses of James E. Shadid to questions submitted by Senators Coburn 

and Sesssions ........................................................................................................ 899 

Responses of Amy Totenberg to questions submitted by Senators Coburn 

and Sesssions ........................................................................................................ 905 

SUBMISSION FOR THE RECORD 

Brady, Francis J., President, Connecticut Bar Association, New Britain, Connecticut, June 29, 2010, letter ............................................................................. 912 

Donoghue, Elizabeth, Chair, New York City Bar, New York, New York, September 22, 2010, letter ........................................................................................ 917 

Lieberman, Hon. Joseph, a U.S. Senator from the State of Connecticut, prepared statement ................................................................................................... 918 

Schock, Congressman Aaron, a Representative in Congress from the State 

of Illinois, prepared statement ............................................................................ 920 

ALPHABETICAL LIST OF NOMINEES 

Boasberg, James E., Nominee to be U.S. District Judge for the District 

of Columbia ........................................................................................................... 664 

Carney, Susan L., Nominee to be U.S. Circuit Judge for the Second Circuit .... 569 

Casper, Denise Jefferson, Nominee to be U.S. District Judge for the District 

of Massachusetts .................................................................................................. 159 

Chang, Edmond E-Min, Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 68 

Howell, Beryl A., Nominee to be U.S. District Judge for the District of 

Columbia ............................................................................................................... 413 

Jackson, Amy B., Nominee to be U.S. District Judge for the District of 

Columbia ............................................................................................................... 707 

Kobayashi, Leslie E., Nominee to be U.S. District Judge for the District 

of Hawaii ............................................................................................................... 105 

Murguia, Mary Helen, Nominee to be U.S. Circuit Judge for the Ninth Circuit ......................................................................................................................... 8

Myerscough, Sue E., Nominee to be U.S. District Judge for the Central 

District of Illinois ................................................................................................. 807 

O’Malley, Kathleen M., Nominee to be U.S. Circuit Judge for the Federal 

Circuit ................................................................................................................... 347 

Reeves, Carlton W., Nominee to be U.S. District Judge for the Southern 

District of Mississippi .......................................................................................... 199 

Shadid, James E., Nominee to be U.S. District Judge for the Central District 

of Illinois ............................................................................................................... 760 

Totenberg, Amy, Nominee to be U.S. District Judge for the Northern District 

of Georgia .............................................................................................................. 619 

Wilkins, Robert L., Nominee to be U.S. District Judge for the District of 

Columbia ............................................................................................................... 472 

(1) 

NOMINATIONS OF MARY HELEN MURGUIA, 

NOMINEE TO BE UNITED STATES CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT; EDMOND 

E-MIN CHANG, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; LESLIE E. 

KOBAYASHI, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF HAWAII; DENISE JEFFERSON CASPER, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS; AND, CARLTON W. REEVES, 

NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

MISSISSIPPI 

THURSDAY, JULY 15, 2010 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 4 p.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 

Chairman of the Committee, presiding. 

Present: Senator Kyl. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Good afternoon. I apologize for being a minute 

late. I was down at the Appropriations Committee. 

This is the first nominations hearing we have held since the 

Elena Kagan hearing, and I hope it will be a little shorter. 

We have five outstanding nominees with us today and I commend the President for sending their names. All of today’s nominees have the support of their home State Senators, a testament 

to the President’s commitment to working with the Senate to identify talented and successful people for the Federal bench. 

The first panel will feature Mary Murguia—I hope I am pronouncing that correctly—a U.S. district court judge in Phoenix, who 

has been nominated to serve on the U.S. Court of Appeals for the 

Ninth Circuit. 

2 

On the second panel, we will hear from four district court nominees: Edmond Chang, from my State of Illinois; Leslie Kobayashi 

of Hawaii; Denise Casper of Massachusetts; and Carlton Reeves of 

Mississippi. 

At the beginning of the hearing, it is traditional for Senators to 

introduce nominees to the Committee from their States, and I will 

begin by introducing Edmond Chang, after my colleagues have had 

their chance, because I know many of them have pressing schedules. 

So at this point, I would like to recognize Senator Kerry, if he 

would like to speak first before the committee, and please proceed. 

Senator KERRY. Well, thank you very much, Mr. Chairman and 

Senator Kyl. It is a privilege to be able to be here to make an introduction and to be before this committee. I am delighted to be here 

with my colleague, Senator Wicker, who is also here for the purpose of an introduction. 

It is my privilege today, Mr. Chairman, to be able to introduce 

to you Middlesex Deputy District Attorney Denise Jefferson Casper. And I want to thank Chairman Leahy, the Chairman of the 

whole committee, for scheduling the hearing so quickly on Denise’s 

nomination. 

It is my privilege, also, Mr. Chairman, to welcome her mother, 

who is sitting in back of me here; her husband, Marc. And I do not 

know if her two sons have arrived. I think they were going to arrive and maybe they were not able to get here. But she has twin 

sons, Harry and Jacob. They are the guys. There they are. So we 

are delighted to welcome them. 

Mr. Chairman Senator Kyl, I can tell you, without reservation, 

that Denise is going to be just an outstanding judge, and she is a 

very worthy successor to her predecessor, the late Judge Reginald 

Lindsay, who passed away last year after a lengthy illness. He 

really was an inspiration to us all. 

He rose from childhood in segregated Alabama to become the second black man ever appointed to the Federal bench in Massachusetts. And he loved the bench so much that, literally, just weeks 

before he passed away, he told a friend that he dreamed about returning to the bench every day. That is passion and dedication. 

I can guarantee you that Denise brings the same kind of commitment to the bench, the same love for public service and for the administration of justice. And it would not surprise anybody that 

Judge Lindsay was a great mentor to her and to many in our state; 

and, therefore, no surprise, Denise has become a great mentor herself through her involvement with the Big Sisters program. 

I am told by a number of people that anytime the Big Sisters has 

a gala or some other kind of fund-raiser, you will find her leading 

the charge, first to fill out one of the tables. 

Senator Kirk and I both recommended Denise to President 

Obama for nomination after a very rigorous examination of her 

record, and those, I might add, of many other qualified candidates. 

And it was conducted by a selection Committee of leading members 

of the legal community of Massachusetts. That was a tradition that 

our colleague, Senator Kennedy, began. We continued it, many of 

the same participants. 

3 

And their conclusion was the same as mine, that she will prove 

to be a first-rate jurist, an important addition to the district court. 

I can tell you that everyone in the legal community raves about 

her work ethic, her drive, her exceptional management, and her 

brilliance. Kathy Weinman, former president of the Boston Bar Association, a lawyer on the council now, and a member of the selection committee, praised her respectful leadership qualities. 

Chief judge, Judge Mark Wolf, of the district court, under whom 

she will serve, if confirmed, has nothing but the best to say about 

her. I will just tell you, very quickly, he said—he wrote us a letter, 

in fact, and said ‘‘Denise Casper is a distinguished lawyer with a 

demonstrated commitment to serving the public interest. My colleagues and I particularly recall her fine service as a Federal prosecutor. Her appointment would greatly contribute to our constant 

effort to give integrity to our Nation’s promise of equal justice 

under law.’’ 

I do not know if this is relevant or not, Mr. Chairman, but in the 

district attorney’s office, in which I previously served, it is reputed 

that she has a legendary laugh, is apparently not very subtle. You 

look at her and think she is very soft-spoken and if something 

funny were said, she would just kind of giggle at it. But I am told 

that throughout the office, everybody knows when she is there because of this laugh. 

More importantly, she graduated from Harvard Law School. She 

is currently the second in command of the district attorney’s office 

of Middlesex County, one of the largest in the country. 

She was a prosecutor in the U.S. Attorney’s Office; for a time, 

was the Deputy Chief of the Organized Crime Drug Enforcement 

Task Force. She was a clerk for the Massachusetts appeals court, 

and a private attorney in the firm of Bingham McCutchen, and a 

teacher at Boston University School of Law. That is a remarkable 

collection of accomplishments in a short span of time. 

Middlesex District Attorney, my friend and somebody I have 

worked with closely, who is here, Gerry Leone, told me right away, 

when I called him for an opinion, that she will just be a star on 

the Federal bench. 

And I will tell you that I had the privilege of serving in that office in the same job that she has now from 1976 to 1981, and so 

I have a special affection for her, but also an understanding of the 

job she has done. 

So anyone who looks at her record, as I know you have, will understand her remarkable set of qualifications that she brings to 

this job, and I recommend that the Senate confirm her as quickly 

as possible. 

Senator DURBIN. Senator Kerry, thank you very much. 

I see that Senator Cochran has arrived, the senior Senator from 

Mississippi, and I know that he is the ranking Republican on the 

Senate Appropriations Committee, which is currently in session. 

Senator Wicker, do you have a recommendation on whom should 

speak first? 

Senator WICKER. Mr. Chairman, I believe we should proceed with 

the Ranking Member of the Appropriations Committee. 

[Laughter.] 

Senator DURBIN. Good judgment, Senator Wicker. 

4 

Senator Cochran. 

Senator KERRY. Before he speaks, would the senior Senator and 

the Chair forgive me, could I be excused? 

Senator DURBIN. We thank you very much for attending. We 

know your busy schedule. Thank you. 

Senator KERRY. Thank you very, very much. I just do not want 

the Appropriations people to think I am running out on them. 

Senator COCHRAN. Thank you, Mr. Vice President. 

[Laughter.] 

Senator COCHRAN. Mr. Chairman, thank you for your courtesy. 

PRESENTATION OF CARLTON W. REEVES, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI BY HON. THAD COCHRAN, A U.S. SENATOR FROM 

THE STATE OF MISSISSIPPI 

I am pleased to introduce to the Committee Mr. Carlton Reeves, 

who has been nominated by the President to serve as United States 

District Court Judge for the Southern District of Mississippi. 

Mr. Reeves practices law in Jackson, Mississippi, where I practiced law for several years before being elected to the U.S. Senate. 

He received his undergraduate degree from Jackson State University and his law degree from the University of Virginia. He has 

served as a clerk and staff attorney for the Mississippi Supreme 

Court and as the chief of the civil division in the U.S. Attorney’s 

Office for the Southern District of Mississippi. 

Mr. Reeves has been actively involved with Mississippi legal 

services and other community organizations in our state. He is well 

respected by his fellow lawyers and the general public. 

Mr. Chairman, I am pleased to recommend this nominee for confirmation by the Senate. 

Senator DURBIN. Thank you very much, Senator Cochran. 

Senator Wicker. 

PRESENTATION OF CARLTON W. REEVES, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI BY HON. ROGER F. WICKER, A U.S. SENATOR FROM 

THE STATE OF MISSISSIPPI 

Senator WICKER. Thank you, Mr. Chairman and Mr. Distinguished Ranking Member. I am very pleased to join my senior Senator, Senator Cochran, in wholeheartedly endorsing the nomination 

of Carlton Reeves for the position of U.S. district court judge. 

I might note that we are joined in the room today by Chairman 

Benny Thompson of Mississippi, who is here not as a witness, but 

to offer his support, also, and we appreciate the bipartisan nature 

in which our delegation is supporting this nominee. 

Senator Cochran has mentioned the professional and scholastic 

achievements of Mr. Reeves. I think it is certainly important to the 

Senate that our nominees be qualified with regard to their scholastic background, their professional attainment, and, also, in their 

reputation for integrity. 

I might note that, in that regard, Mr. Chairman, our nominee 

today, Mr. Reeves, as a student at the University of Virginia Law 

School, was honored with the Mary Claiborne and Roy H. Ritter 

5 

fellowship, which actually recognizes outstanding honor, character, 

and integrity. 

He is certainly qualified in state and Federal practice. He has an 

outstanding reputation. This is a popular nomination with the bar, 

with the State as a whole, and with this delegation. 

I commend the President for working with State leadership in 

moving this nominee forward, and I am pleased and proud to support the nomination of Carlton Reeves and believe he will be a 

credit to our State, to the Federal bench, and to this committee. 

So thank you so very much. 

Senator DURBIN. Thank you very much, Senator Wicker. And I 

thank both you and Senator Cochran. And, Congressman Thompson, thank you for coming over and joining us. It is good to see my 

colleague again. 

The Senators from Mississippi can stay, if they wish, but I know 

they have a busy schedule and if they need to leave, we understand 

it. 

We also have joining us at the table Senator Scott Brown of Massachusetts. 

Senator Brown, you may proceed. 

PRESENTATION OF DENISE JEFFERSON CASPER, NOMINEE TO 

BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS BY HON. SCOTT BROWN, A U.S. SENATOR FROM THE 

STATE OF MASSACHUSETTS 

Senator Brown. Thank you, Mr. Chairman and Ranking Member 

Kyl. It is good to be here and I appreciate, obviously, the opportunity to speak to the Judiciary Committee, and thank you for the 

opportunity to introduce Denise Jefferson Casper of Massachusetts, 

the nominee for the United States District Court for the District of 

Massachusetts. 

I offer my congratulations to her and her family and all of those 

who are here to share this special day with her. 

My dear friend, District Attorney Gerry Leone is here and it is 

good to see him. 

And I know that Ms. Casper has worked very hard to get to this 

point in her career. I have met with her. I have done my due diligence. I have spoken with many of my former colleagues and folks 

that I practiced with when I was a practicing member of the bar 

and they all spoke very highly of her. 

As a matter of fact, one of my dear friends actually tried to hire 

her on three separate occasions, and he is a tough person to please. 

And I can also say that in the 2008 article in the Massachusetts 

Lawyers Weekly, she was described as absolutely tireless. And I 

quote, the quote is ‘‘being a courteous and humble woman, but also 

a zealous and effective advocate.’’ And I certainly cannot ask for 

anything more in a judge than to be somebody who is fair and zealous and tireless. 

I, too, want to commend the President for moving this—it will 

probably be national news, but I do want to commend the President—that was a joke. 

[Laughter.] 

Senator Brown. You have to have a sense of humor around here 

sometimes. I want to congratulate him for moving her forward. 

6 

As you know, she is also very active in her community, volunteering and having served in leadership roles in the Women’s Bar 

Association, Big Sister Association of Greater Boston, the American 

Bar, and many other noteworthy organizations. 

She has trained the next generation of advocates and judges as 

an instructor at BU Law School, and a graduate of Wesleyan and 

Harvard Law School. 

Ms. Casper currently serves, as I mentioned, as a deputy district 

attorney for the Middlesex district attorney’s office and she oversees very important work, working with witness bureau, the cyber 

protection program, the PACT unit, which investigates public corruption, organized crime and financial crime. 

She has a very long and storied career for somebody so young, 

and I wanted to make a point to come here and, with Senator 

Kerry, offer our bipartisan support for this nominee, and I am 

hopeful that we can move on this nomination very, very quickly. 

So I thank you both for your courtesy in allowing me to speak, 

and I am certainly available if you have any questions. 

Senator DURBIN. Thank you very much, Senator Brown. Senator 

Kerry spoke earlier and we will make sure that your entire statement will be made part of the record. Thank you for joining us 

today. The best parts will be made part of the record, we promise 

you that. 

[The statement of Senator Kerry appears as a submission for the 

record.] 

I also want to note that Senator Inouye and Senator Akaka had 

planned on attending. Senator Inouye, I know, is presiding one 

floor down over the Senate Appropriations Committee, where he 

chairs. It is an awesome responsibility and he, unfortunately, will 

not be able to join us. But his statement in support of the nominee 

from Hawaii will be made a part of the record. 

[The statement of Senator Inouye appears as a submission for 

the record.] 

PRESENTATION OF EDMOND E-MIN CHANGE, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS BY HON. RICHARD J. DURBIN, A U.S. SENATOR FROM 

THE STATE OF ILLINOIS 

Senator DURBIN. At this point, I would like to take the prerogative of the chair to introduce one of the nominees who will be before us today. 

Ed Chang is an accomplished Federal prosecutor in the State of 

Illinois, chief of appeals in the criminal division of the U.S. attorney’s office in Chicago. He works closely with our U.S. Attorney, 

Patrick Fitzgerald, who has written a strong letter of recommendation. 

As a Federal prosecutor for over a decade, Ed Chang has seen 

it all. He has prosecuted crimes involving guns, gangs, drugs, 

fraud, extortion, and child exploitation; supervised over 300 appeals; and, worked on major cases involving terrorism and public 

corruption. 

Mr. Chang is a native of New York City, but had the good sense 

to move to Chicago in 1991 to attend Northwestern University Law 

7 

School, where he graduated Order of the Coif and served on the 

law review. 

He began his legal career as a judicial law clerk, first, for Sixth 

Circuit Judge James Ryan, nominated by President Reagan, and 

then for highly regarded Chicago District Court Judge Marvin 

Aspen, an appointee of President Jimmy Carter. 

Before joining the U.S. attorney’s office in 1999, Mr. Chang 

worked for one of Chicago’s most respected law firms, Sidley Austin, where he specialized in employment and labor law. Throughout 

his career, he has had a strong commitment to pro bono work and 

to bar association and mentoring activities. 

He has served as an adjunct law professor at Northwestern Law 

School since 1996, teaching a class on civil rights litigation. 

Now, I have a bipartisan merit selection committee, which I set 

up last year, to consider applications for these vacancies. And I 

might add that Mr. Chang was chosen in a previous competition 

for an opening by a Republican nominating committee, and, in this 

case, was chosen again by a Democratic committee. It is quite a 

testament to the fact that he is not political and he does bring extraordinary credentials to this aspiration. 

It is an historic nomination. When he is confirmed, Mr. Chang 

will be the first Asian-American U.S. district court judge in Illinois, 

and only the second in the Nation between the east and west 

coasts. 

I now ask my colleagues—well, I will after I first recognize Senator Kyl, who I believe has a similar introduction. 

Senator Kyl. 

PRESENTATION OF MARY HELEN MURGUIA, NOMINEE TO BE 

U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT BY HON. SENATOR KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman. It is my pleasure to introduce to the Committee Mary Murguia. Judge Murguia is currently a Federal district judge in the State of Arizona. She has 

served on the bench there since the year 2000, and she has been 

nominated by the President to serve on the ninth circuit court of 

appeals. 

Senator McCain joins me in urging the committee’s strong support for her nomination, but he could not be here today. 

Just a few words to introduce Judge Murguia to the committee, 

though, of course, her extensive resume is on file with us. 

In the 10 years that she has served on the bench in the State 

of Arizona, she has presided over nearly 4,000 cases to verdict or 

judgment; has presided over nearly 60 trials, including over 50 jury 

trials, to verdict. 

Mr. Chairman, I talked to her colleagues on the Federal district 

court bench in Arizona and litigants who appeared before her and 

asked whether they believed that she gave every litigant a fair 

chance in court; and, to her person, they all said that her reputation is one of fairness, of equity, of blind justice, of doing the best 

that she can in each case, and, in all cases, approached the job of 

judging with exactly that kind of spirit that we would ask for in 

the judges that we have before us. 

8 

Her experience before being on the Federal district court was primarily in the area of service in the Department of Justice and in 

the office of the U.S. Attorney. 

But her most recent experience, from 1999 and 2000, was to 

serve as the director of the executive officer for United States attorneys. And as everyone here who is familiar with this knows, that 

is the individual responsible for the oversight and support of the 

94 different offices of U.S. attorneys around the United States, 

about 5,000 people in all, plus another 5,000 support staff and administration and appropriation of about $1 billion. 

Prior to that time, as I said, she served in the United States attorney’s office for the district of Arizona, among other things, arguing 15 cases and being involved in over 20 appeals before the ninth 

circuit. She was deputy chief of the criminal section for 4 years, 

from 1994 to 1998, and had a variety of other experience in that 

office. 

I would note that her very first experience out of school was in 

the county attorney’s office in Kansas, where she was, for 5 years, 

in there as the senior trial attorney in the sex crimes unit and trial 

attorney in the major crimes division. 

Just one other note of personal background, Mr. Chairman. 

Judge Murguia’s brother, Carlos, is the first Latino to serve as a 

Federal district judge in the State of Kansas and the two Judge 

Murguias—Judge Murguia, I should also point out, Judge Mary 

Murguia, was the first Latina to be appointed to the Federal district court in Arizona, and she and her brother, Carlos, are the only 

brother and sister sitting as Federal judges in the United States. 

I do not think that she will be disqualified from that if she moves 

on up to the ninth circuit court of appeals. We will see that they 

retain that distinction. 

In any event, it is with great deal of pleasure that I urge her confirmation before this Committee and look forward to her testimony. 

Senator DURBIN. Thank you very much, Senator Kyl. 

Now, since we have a nominee for the U.S. District Court, Judge 

Murguia—— 

Senator KYL. Circuit Court. 

Senator DURBIN. Pardon me. Circuit court—and then district 

court nominees, we will have two panels. 

The first panel will be Judge Murguia, and I ask her, if she 

would, please, approach the table. And we have a standard oath 

that is administered. 

[Nominee sworn.] 

Senator DURBIN. Thank you. Please be seated. Let the record reflect that the nominee answered in the affirmative. 

The floor is yours. 

STATEMENT OF HON. MARY HELEN MURGUIA, NOMINEE TO 

BE U.S. CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Judge Murguia. Thank you, Mr. Chairman. Thank you, Senator 

Kyl. I do not have any formal opening statement. There are some 

acknowledgments that I would like to make, if I can. 

First, I would like to thank President Obama for this honor, for 

his trust and confidence in me in nominating me to this position 

as judge on the ninth circuit court of appeals. 

9 

Also, I would like to thank Senator Kyl for his extremely kind 

and generous remarks in his introduction of me here today. I would 

like to thank both Senator Kyl and Senator McCain for their support of me throughout this process. I am very grateful to them 

both. 

There are two people who are not here today that I would like 

to recognize. Those two people are my parents, Alfredo and Amalia 

Murguia. They were actually here 10 years ago almost to the day 

for my confirmation hearing for the district court position. 

Unfortunately, my father has passed away and my mother suffers from Alzheimer’s and could not be here. But both my parents 

came to this country from Mexico to pursue the American dream, 

and my father worked for over 35 years as a steel construction 

worker for the Kansas City, Kansas Structural Steel Company. My 

mom and my father raised seven kids in a very working class 

neighborhood of Kansas City, Kansas. 

And six of their seven children attended college. Four of us went 

on to graduate from law school. And my presence here today before 

this distinguished is really an honor to them and a tribute to them. 

I do have some family members that are here today, if I could 

introduce them. First, I guess I will start with the judge, my brother, Carlos Murguia. He is a district court judge in Kansas. His 

wife, Ann, who is a council member for the unified government in 

Kansas City could not be here. She is my sister-in-law. They have 

three children, Wyatt, Thomas and Isabella Grace, who also 

couldn’t be here. 

My brother, Alfred, lives and works in Kansas City. He has three 

children who are a little bit older. In fact, Senator Durbin, his oldest child—I’ll say his oldest kid—Ryan, who is my nephew, I think, 

is on his way here. He recently graduated from Northwestern Law 

School and is studying vigorously for the bar exam, which is in less 

than 2 weeks, and he will be starting with the DOJ honors program in the fall. 

His brother, Nick, lives and works in Kansas City. He graduated 

from Tulsa University. My niece, Kelly Murguia, just recently graduated from Brown University. She graduated from Brown in May 

and she is undergoing a very intense program for Teach for America as we speak and will be starting in that program this fall. 

I would also like to introduce my brother, Ramon, who is a lawyer in Kansas City. He is on the board of trustees for the Kellogg 

Foundation, and really the first in our community to graduate from 

Harvard Law School. His wife, Sally, who is a lawyer, could not be 

here today. He has two children, my nephew, Miguel, and his sister, my niece, Amalia, also could not be here today. But all the kids 

are here in spirit, and I appreciate their support. 

My sister, Janet, is president and CEO of an Hispanic civil rights 

organization based here in Washington, D.C., and she is my twin 

sister and I am glad that she is here supporting me, as well. 

And there are two people who couldn’t be here, my sister, Rosemary Murguia, my sister, Martha Hernandez. They care for my 

mother and, unfortunately, could not be here today. 

I have a number of friends here today who’ve traveled here. My 

friend, Bea Witzleben, who is an assistant U.S. attorney in Philadelphia. We worked at the Department of Justice together. My 

10 

friend Margaret Epler, who works for the ninth circuit, is a lawyer 

for the ninth circuit court of appeals. 

My cousin, Lloyd Murguia, who is currently working for Congressman Gonzalez out of Texas. And I know that there are very— 

a number of former associates of mine with the Department of Justice, and a law school friend of mine here today, and there are numerous friends and family who are watching and I appreciate their 

support. 

Thank you for letting me make those acknowledgments. I’m 

ready to answer any questions that you all might have. 

[The biographical information follows.] 

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64 

Senator DURBIN. Thank you very much. And let me just say that 

the story of your family is an inspiration. It is not just an immigrant story. It is an American story, and the decision of your mother and father to come to this country has made this a better nation, 

as we can tell from your service and the contributions which all of 

your family have made, which you have alluded to in your introduction. 

So I am touched by it, being first generation American myself 

and presiding over this Judiciary Committee hearing. It is a reminder of who we are and, at times, we need that reminder. 

I would like to, if I could—— 

Judge MURGUIA. Thank you, Senator. Thank you. 

Senator DURBIN. Of course. I would like to just ask a substantive 

question or two. When you reach the circuit court level, you have 

to expect some serious questions and I hope you will bear with me. 

Judge MURGUIA. Of course. 

Senator DURBIN. In the 1980s, Congress passed a law to address 

the crack cocaine scourge in America. History shows that we may 

have gone too far. 

We established sentencing guidelines for crack cocaine that were 

100 times the standard used for powder cocaine. It has resulted in 

what many consider to be unfortunate outcomes, many even unjust. 

Having voted for that legislation, at a time, I can tell you that 

we were in just mortal fear that this new narcotic would come in 

dirt cheap, highly addictive, destroying lives and the lives of children who were born by the addicts. And so we reacted with a 100- 

to-1 sentencing standard. 

Now, this committee, in an extraordinary bipartisan effort, has 

reduced the disparity in a bill that we passed from 100-to-1 to 18- 

to-1. Some may argue it should be 1-to-1, which is my position, but 

it is the nature of a compromise that we have tried to come down 

to a level of 18-to-1, which has passed the Senate. 

Can you share your views on the crack/powder disparity and can 

you tell me what Federal judges can do, if anything, to reduce the 

disparate impact that criminal laws such as this might have on the 

poor and minorities? 

Judge MURGUIA. Well, Senator, Mr. Chairman, thank you for 

your question. I think the current sentencing structure post Booker 

gives the judges a great deal of freedom in fashioning individualized sentences for each defendant based on their history, characteristics, and the facts and circumstances surrounding the case. 

And so I have found, in my experience, that the post Booker sentencing structure allows us to take into consideration all the aspects of everyone’s background and their experience—I’m sorry— 

their background, their criminal history, and the facts and circumstances surrounding the case. And their history, we have to 

evaluate their personal, social, and criminal history when we sentence. 

Obviously, the guidelines, the United States sentencing guidelines are important and they need to be respected. They provide a 

very important framework and a fair process in evaluating each 

case and allow—they are an important tool to ensure fairness 

among similarly situated defendants. 

65 

So I think our current sentencing structure, hopefully, takes all 

of that into account. 

Senator DURBIN. Have you had any experience, any professional 

or legal experience with this sentencing disparity? 

Judge MURGUIA. I have not. 

Senator DURBIN. I will not pursue that any further, but I thank 

you for your response there. 

You did have a Fair Labor Standards Act case, called Stickle v. 

SCI Western Market Support Center, in which the plaintiffs alleged 

their employer failed to pay them adequate wages. The employer 

filed a motion to dismiss under the Twombly standard, but you denied the motion and ruled the case could go forward. 

What has been your experience applying the new standard set 

forth in the Twombly and Iqbal cases? Have you or your colleagues 

had any cases in which plaintiffs would have prevailed under the 

old standard, but had to be dismissed under this new Supreme 

Court standard? 

Judge MURGUIA. I don’t—just based on my experience, Twombly, 

the effects of Twombly are still being set forth, I think, as time 

passes. It hasn’t been into effect for a long time, that I know of any 

studies that have happened. 

But in my experience, I think it just allows the courts a good 

ability to determine whether or not the cases are meritorious, that 

they rise above a pure speculative level, if there’s a plausible claim. 

The Stickle case is currently ongoing and I allowed it to go forward. I thought it was the right decision to do. So I think it also 

allows for a fair process. 

Senator DURBIN. When the Supreme Court overturned the 50- 

year precedent of Conley v. Gibson and raised the bar for filing 

such complaints in Federal court, many believe that it made it 

more difficult for some workers, consumers, and victims of discrimination to proceed with their lawsuit. 

Your decision in the Stickle case appears to have given that 

plaintiff another day in court, at least an opportunity to proceed. 

Do you feel that this new standard makes it more difficult for petitioners or plaintiffs to prevail in these types of cases? 

Judge MURGUIA. I don’t know that it makes it more difficult at 

this point. 

Senator KYL. Thank you, Mr. Chairman. 

I have selected four questions in disparate areas to ask you, and 

so let me just take them one at a time here. 

The first has to do with reassignment of a case, the controversial 

Arizona case of Chamber of Commerce v. Candelaria, the case involving the Arizona statute imposing sanctions on employers who 

hire illegal immigrants. 

According to an Associated Press article December 11, 2007, you 

had originally been assigned to that case and, according to the article, you reassigned the case back to Judge Wake. 

Can you tell us—and this case was controversial, I will tell my 

colleagues, and has now been taken by the U.S. Supreme Court 

after the lower court decision was unanimously upheld. 

Can you tell us why you reassigned the case, Judge? 

66 

Judge MURGUIA. Certainly, Senator Kyl. That—I reassigned that 

case based on our local rules involving assignment of cases and 

transfer of cases. That case actually had a history in our court. 

Judge Wake had been presiding over the original version of that 

case for about 6 months. There were issues regarding a deadline. 

I think the law was going to go into effect in January. 

But Judge Wake, in the 6 months that he had the original 

version, an almost identical version of the case that was later 

refiled, had a trial on the merits, due to the request for a preliminary injunction; had considered and had several days of hearings 

regarding the motions to dismiss; and, ultimately, I think with 

about 20 days left before the law was to go into place, made a ruling. 

He had to make a ruling on that case, and found that issues surrounding standing prevented him or you didn’t need to go to the 

merits, because there was an issue regarding standing in that case. 

And so he issued his ruling and issued judgment. 

The parties, instead of appealing or filing a motion for reconsideration, simply seemed to take guidance from his order and refiled 

the case within 2 days. 

That case, which was almost identical to the original version of 

that case, was eventually assigned to me. When I saw the nature 

of the case and what was happening, I consulted the rules, which 

indicate that if a judge has a prior familiarity with the case and 

the issues and if it will avoid substantial duplication of proceedings 

and hearings, it should be reassigned. 

And so I simply was following the rules of assignment and transferring of cases. 

Senator KYL. Thank you. The second question has to do with a 

matter of recusal. In July of 2009, you recused yourself from a case 

alleging racial profiling by the Maricopa County Sheriff’s Office. 

That is the county in which Phoenix, Arizona is located. 

Immediately after you denied the defendant’s motion to dismiss 

the case, there were allegations made that your sister’s political beliefs might affect your judgment in the matter. You denied those 

allegations, but you still recused yourself from the case based on 

the remote possibility that there might be some appearance of bias. 

I think that is correct. Correct me if I am wrong. Would you say 

that you declined to serve in that case out of concern for the integrity of the judiciary, as a whole? 

Judge MURGUIA. Let me separate that out. Yes, I did ultimately 

recuse myself from that case. Always, when we review cases of 

recusal, a core concern is the integrity of the judiciary, and I think 

I referred to that in my order. 

I actually found that there was no actual bias, that I could have 

been fair; there was no conflict of interest; that I could have presided over their case. My reason for recusal was based on a very 

narrow basis, and that’s whether or not someone could—might reasonably question my impartiality based on the specific and unique 

circumstances and facts surrounding that case. 

That was the only basis. My sister, yes, is a president and CEO 

of an Hispanic civil rights organization. She has quite a different 

role than I do as a Federal judge, and I’m very cognizant of that. 

67 

I guess I just want to be very clear that her views or opinions 

do not influence my decisions as a judge. Her views, my sister’s, 

or any close sibling of mine or anyone else, including my own 

views, do not enter into my decisionmaking. 

I had to make a very careful review of the recusal statutes in 

that case and my code of conduct as a judge, and after careful review and because of the very unique circumstances and details surrounding that case, I entered a recusal. 

Senator KYL. Thank you very much. 

Senator DURBIN. I have no further questions. I do not know if 

you do, Senator Kyl. 

Senator KYL. Let me just ask one more orally and then maybe 

just submit two for the record. They are both very brief. 

The one that I would just ask you orally here. In your questionnaire, you reported that 100 percent of your practice as an attorney 

was devoted to criminal law matters, both as state and Federal 

prosecutor, and that about 68 percent of your cases during your 

time on the district court bench have been criminal cases. 

One attorney, as a result of this, expressed concern that your 

legal ability is much stronger on the criminal side than the civil. 

Could you tell us, briefly, how your time on the district court will 

prepare you to handle appeals in civil matters, if you are confirmed 

to a seat on the ninth circuit court? 

Judge MURGUIA. Certainly, Senator Kyl. I’ve had a remarkable 

experience as a district court judge, presiding over a wide variety 

of civil cases, including tort and contract disputes, cases involving 

patent infringement, class action cases, and a variety of class action cases, securities fraud, Fair Labor Standards Act, consumer 

fraud. 

I have also been asked to preside over multi-district litigation 

cases, which, by their nature, are very complex. I think that experience of presiding over those cases gives me a very good understanding of what litigants face, of what trial lawyers at the district 

court level confront, and what trial judges, the decisions that they 

have to make and the issues that they have to resolve almost on 

a daily basis. 

And I think that that experience would be extremely beneficial 

to me as a circuit court judge in the ninth circuit, if I’m fortunate 

enough to be confirmed. 

Senator KYL. Actually, the majority of cases that are considered 

by all of the judges in the district court are criminal rather than 

civil; are they not? 

Judge MURGUIA. That’s correct. We’re the number one district of 

handling criminal cases in the ninth circuit. I think we’re the third 

overall in the country. 

Senator KYL. Well, I will submit a couple other questions for the 

record. I really appreciate your testimony. Welcome, and we look 

forward to a speedy confirmation of your nomination. 

Judge MURGUIA. Well, I thank you and the Chairman for all of 

your questions and for your help and support. Thank you very 

much. 

Senator DURBIN. Judge Murguia, there may be some written 

questions sent by Senator Kyl, myself, or other members of the 

68 

committee, which I am sure you will be attentive to, which we 

would appreciate very much. 

We thank you very much for your joining us. 

Judge MURGUIA. Certainly. 

Senator DURBIN. And thank your family, as well, for being part 

of this hearing. 

Judge MURGUIA. Thank you very much. 

Senator DURBIN. Thank you. 

We will now take a minute to reset the table for the next panel, 

which includes four nominees to the district court: Edmond Chang 

from Illinois; Leslie Kobayashi of Hawaii; Denise Casper of Massachusetts; and Carlton Reeves of Mississippi. 

[Pause.] 

Senator DURBIN. I would like to ask the four nominees, if they 

would, please, to stand, as you are, and raise your right hand. 

[Nominees sworn.] 

Senator DURBIN. Let the record reflect that the four nominees all 

answered in the affirmative, which makes the next stage of this 

much easier. 

I would like to give each of you a chance to introduce your family 

members and say a few words. 

I do not know, I guess, if there is an order here that should be 

followed. I did not want to show favoritism, but Mr. Chang first. 

STATEMENT OF EDMOND E-MIN CHANG, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

Mr. CHANG. Thank you, Senator. First, I want to thank you, Senator Durbin and Senator Kyl, for holding this hearing. I very much 

appreciate that. 

I also want to express gratitude to President Obama for the deep 

privilege of this nomination. 

I would also like to thank you specifically, Senator Durbin, for 

your support and the warm words of introduction. I very much appreciate that. 

I’d like to acknowledge and thank my family and friends who 

were able to attend the hearing in person. And so I have with me— 

and I hope they will stand and get my thanks—my mother, Esther 

Chang; my wife, Jeannie Chang; and my lovely daughters, Emily 

and Claire. Also, a great college friend of mine, Lawrence Wu, is 

here from Michigan. I have known him for over 20 years. 

If I could also take a moment to acknowledge and thank some 

of my family who were not able to attend in person because of 

scheduling and other travel conflicts, the first of which is my father, Lawrence Chang, who is overseas in Taiwan. I want to thank 

him very much. And my older sister, Elizabeth, and her husband, 

Scott, and my nephews, Matthew and Michael. I know they’re 

watching the Webcast. 

Also, my younger sister, Elaine; her husband, Henry; and, their 

girls, Chloe and Elise, are watching. And I want to thank my inlaws, as well, Shun-Yu Tiao and Chen-Kun Tiao; and my brotherin-law, Andy Tiao, his wife, Michelle, and their kids, Alex, Katie 

and Chris. 

Thank you for the opportunity to make those remarks. 

Senator DURBIN. Thank you very much, Mr. Chang. 

69 

Nominee Kobayashi? Have I pronounced that correctly? 

[The biographical information follows.] 

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105 

STATEMENT OF LESLIE E. KOBAYASHI, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF HAWAII 

Judge KOBAYASHI. You have, and congratulations on doing that. 

Senator DURBIN. Please proceed. 

Judge KOBAYASHI. Thank you very much, Mr. Chairman, Ranking Member Senator Kyl. My deepest appreciation for scheduling 

this hearing. It’s been a long road from Hawaii. So I appreciate it 

very much that you’ve scheduled this. 

I’d also like to extend my deepest appreciation and gratitude to 

President Obama for this nomination and for the great privilege of 

being his first nominee from the district of Hawaii. 

My sincere thanks, also, to Senators Inouye and Akaka. Great 

mahalo nui loa to them for their support and encouragement 

throughout this process. 

If I may have your permission, Mr. Chairman, I’d like to introduce my family members. From Hawaii, my husband, Judge Clarence Pacarro. Our sons, Cody, age 11, and Luke, age 7. 

Also, I’d like to recognize some friends that are here in the D.C. 

area, my good friend from college, Patricia Sulser and her husband, 

David. Our good family friends, Dr. Freddy Chen, Michelle Chen, 

and their children, Chelsea and Theodore. 

Not with us physically today, but in spirit, back in Hawaii, our 

parents, my father and mother, Herbert and Ruth Kobayashi; my 

mother-in-law, Jean Pacarro; my sisters, Anne Miyashiro, her husband, Charlie, their son Travis; my sister, Robin Kobayashi, and 

her husband, Dr. Kenny Fink, and their children, Ellie and Jack. 

Many family and friends that are supporting us through the Nation and in Hawaii, as well as my brothers-in-law, Rudy and Dij 

Pacarro, Bill and Penny Pacarro, and Randy and Norma Pacarro 

and their families. 

And, of course, my court family, I’d like to very much thank my 

support staff, Star Quon (ph), Donna Odani (ph), and Warren 

Nakimora (ph), as well as all of the fellow judges in the district of 

Hawaii; our court clerk staff and the court clerk, the pretrial, probation, the U.S. Marshals, court security staff, and Federal defenders and U.S. attorneys, whose daily encouragement and support 

have been most meaningful. 

Thank you. 

Senator DURBIN. Thank you very much, Judge. 

Ms. Casper. 

[The biographical information follows.] 

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159 

STATEMENT OF DENISE JEFFERSON CASPER, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF MASSACHUSETTS 

Ms. CASPER. Thank you, Mr. Chairman. Thank you to you, Senator Kyl, and all the members of the Committee for scheduling this 

hearing today and allowing me to appear before you. It’s an honor 

for me, it’s an honor for my family, and I greatly appreciate the opportunity. 

I’d also like to thank Senator Kerry for his kind introduction 

today and for recommending me to the President for this judicial 

seat. I am deeply grateful for his confidence in me for this position. 

I’d also like to thank Senator Brown for his warm introduction, 

his willingness to speak to me about my interest in becoming a 

Federal district court judge, and for his support. 

I’d also like to acknowledge and thank Paul Kirk, the previous 

Senator from Massachusetts, who joined in Senator Kerry’s recommendation to the President. 

Finally, I would like to thank President Obama for this nomination. I am honored and deeply humbled by it, and I’m very excited 

and happy to appear before you today. 

Mr. Chairman, I’d also like to take the opportunity to introduce 

my family who are here and my friends and colleagues who have 

been able to join me, as well. 

First and foremost, my husband of 16 years, Marc Casper. Marc’s 

love, support and encouragement over the years have meant the 

world to me. We’re very excited that our two sons, Harry and 

Jacob, are here. I think they’re trying very hard to remain quiet 

during these proceedings, and I am sure they will continue to do 

so during all of the nominees’ remarks. 

[Laughter.] 

Ms. CASPER. They are both 6 years old, and they’re headed to 

first grade in the fall. They’re very excited about this, their second 

trip to the Capitol. They didn’t remember that much about their 

first trip, since they were too young, but I’m hoping this trip will 

be as memorable for them as I know it will always be for me. 

I’d also like to introduce my mother, Marcia Jefferson, who has 

traveled here from the State of New York, my original home state. 

There is no doubt that the lessons that my mother has taught me 

about hard work, humility and respect for others have made this 

moment possible. 

I’m very happy that my brother, Darryl Jefferson, and my sisterin-law, Kristy Kershaw Jefferson, are here. We’re very excited for 

them, because they’re expecting their first child in the fall, my 

mother’s first granddaughter. So we’re very excited they’re here. 

There are a number of members of my extended family who are 

here, as well, and I’d like to acknowledge them. My cousin, Louise 

Dyer, and her husband, Filon, of the capital here in D.C. My uncle, 

Charles Dyer, of Maryland; my cousin, Hakim Dyer of Maryland, 

his wife, Marilyn, their son, Faheem. 

The Jefferson branch of the family is also well represented. My 

uncle, Bernie Jefferson, my aunt, Beverly Jefferson, and their 

grandson, Genis Guzman, are here, as well. And they’re also all 

from New York. 

I’m also pleased to be joined by good friends today; my dear, 

dear, friend, Julia Frost-Davies, who also happens to be the mother 

160 

of my goddaughter, Gillian, is here. A good family friend of ours, 

Meredith Smith, is here. And I’m also happy to say that a number 

of my sorority sisters and friends of over 20 years from Delta 

Sigma Theta sorority are here, including Reverend Joy Challenger, 

Dr. Judith Absalon, and Janice Williams Thomas. 

I’m also very happy that a number of my current and former colleagues are here from the U.S. attorney’s office, Jim Farmer, Cynthia Young, and Theo Chuang. My current colleagues from the 

DA’s office, Marian Ryan and Jeff Shapiro. 

I’m particularly pleased that my good friend and current boss, 

the Middlesex District Attorney, Gerry Leone, is here, despite all 

the demands on his time back in the commonwealth. 

I am part of a rich legacy, I think, of excellence in public service 

to come out of the Middlesex District Attorney’s office, a legacy that 

the senior Senator from Massachusetts is very much a part and 

which Gerry’s leadership exemplifies. 

I’d like to say a brief word about some people who could not be 

here today. I understand that a number of my friends and colleagues back in the DA’s office are watching the Webcast. I want 

to thank them for their support and goodwill during the selection 

process and all the best wishes they’ve been sending me for today’s 

hearing. 

Finally, although certainly he’s foremost in my mind today, I’d 

like to say a word about my late father, Eugene Jefferson. As it is 

for me, this would have been a huge day for him. He spent part 

of the early part of his career as a probation officer, and he believed deeply in the importance of the judicial system in our society. 

In many ways, his influence on my life has propelled me to this 

opportunity. He’s very much in my thoughts. 

Thank you. 

Senator DURBIN. Thank you very much. 

Mr. Reeves. 

[The biographical information follows.] 

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STATEMENT OF CARLTON W. REEVES, NOMINEE TO BE 

UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI 

Mr. REEVES. Thank you, Mr. Chairman and Ranking Member 

Mr. Kyl. 

On behalf of me and my family, I want to thank the President 

for nominating me for this job. This is his first nomination for the 

State of Mississippi. 

I do thank Senator Cochran and Senator Wicker for their kind 

words and the bipartisan nature in which they have come together 

with Congressman Thompson, whom I have known for more than 

25 years as a student at Jackson State University, interning in his 

office, and he, obviously, saw something in me and has stuck with 

him from that day to this one. 

If I may, Senator, I’d like to introduce my family here today. 

Senator DURBIN. Please. 

Mr. REEVES. I have my wife, Lora Reeves, and my daughter, 

Chanda Reeves. My mother is here today, Wilhelmina Reeves. My 

sisters are here, Terri Reeves Hansberry and Christy Reeves. And 

Terri has brought her daughters, DeAnna Parker, Paige Reeves, 

and Hope Reeves. 

And my mother’s friend of over 60 years, from Yazoo City, Mississippi, is also here, Ms. Winnie Stanton, who lives in the area 

now. 

I have siblings who, unfortunately, were not able to be here, 

Carolyn Reeves and her husband, Ernest, Tony Reeves, and Calvin 

Reeves. They’ve all supported me. 

Now, those who are at home, I know, who are watching the 

Webcast and for the old ladies who probably are not watching the 

Webcast, but are hearing about it, my aunt, Hannah, who is approaching her 94th birthday, I believe, great aunt; and, my aunt, 

Mug, who we call Modest Paige, who was like our grandmother. 

I have dozens and dozens of nieces and nephews. I have in-laws 

who are supporting me, Catherine Singleton, and my law partners. 

We have a three-man law firm back home; Brad Pigott, former U.S. 

attorney. His son is here representing his family, Chris Pigott. And 

Cliff Johnson, who is working hard today. 

There are others in my family who could not be here, but they’re 

watching over me. My father, a retired military man of over 30 

years, First Sergeant Jesse W. Reeves. My uncle, Pete, who was 

like my grandfather, he’s not here. And I have brothers, Andrew 

Taylor and Jesse Reeves, Jr. 

It’s special, because when I got the call on January the 21st that 

the Department of Justice thought that I might be considered, that 

was 10 days after Jesse was buried, and tomorrow would be Jesse’s 

55th birthday. So this is his birthday present. 

And I thank the Senate. And there’s one other person who I 

know is watching over me, and that’s my mother-in-law, Annie 

Brown Moseley, who is no longer with us, as well. 

As I looked around the room when I walked in and when I came 

up, I saw several people from Yazoo City, Mississippi who are also 

here, and I certainly appreciate their support. 

Thank you for your time and I appreciate it. 

[The biographical information follows.] 

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Senator DURBIN. Thank you so much, Mr. Reeves. 

Now, we would like to go slightly out of order, because I know 

that Senator Inouye, who is the President Pro Tempore of the U.S. 

Senate and Chairman of the Senate Appropriations Committee was 

working diligently downstairs in an Appropriations Committee 

hearing and was unable to be at the beginning of this session, but 

I’d like to give him a chance now, if he would like to take the opportunity to say a few words on behalf of a nominee. 

Senator INOUYE. I thank you very much, Mr. Chairman. 

I would like to warmly welcome the honorable Magistrate Judge 

Leslie Kobayashi and her family. Her husband, Clarence Pacarro, 

and their sons, Cody and Luke. 

I am here to express my full support for Judge Kobayashi’s nomination to the district court of Hawaii. Judge Kobayashi’s maternal 

great-grandparents emigrated from Fikolka (ph). My grandparents 

came from there, also, to work in the sugar fields of Hawaii. Her 

paternal grandparents immigrated from Hiroshima to work as 

night watchmen and run a small family business. 

You will have to excuse my voice. That is what appropriations 

does to you. 

[Laughter.] 

Senator INOUYE. Judge Kobayashi’s father was the first in his 

family to attend college and dental school, and, following his graduation, he served in the U.S. Army during the Korean War and 

was posted at Fort Dix, New Jersey, where Judge Kobayashi was 

born. 

The family returned to Hawaii, where her father started a dental 

practice and her mother worked as an elementary school teacher 

in Hawaii’s school system. 

Judge Kobayashi excelled in her studies, attended Wesleyan College and Boston College School of Law. 

Judge Kobayashi is an experienced lawyer, with over 25 years of 

experience in Hawaii in both civil and criminal law. She has served 

as a Federal magistrate judge for over 10 years on the court to 

which she has been nominated. 

Judge Kobayashi is admired and respected by her colleagues on 

the Federal bench. She is well versed in the legal processes as a 

sitting magistrate and I am confident that she will be able to take 

the bench in a seamless and swift transition. 

Judge Kobayashi is also well respected by both the plaintiff and 

defense bars. She is known for her fair and evenhanded manner, 

her knowledge of the law, and her commitment to the principle 

that every person has their day in court. 

Despite her busy schedule, Judge Kobayashi continues to be active in bar association activities and community service. She lectures at the William S. Richardson School of Law at the University 

of Hawaii, served on the Hawaii State Bar Association board of directors, and served as vice chair for the magistrate judges executive committee for the ninth circuit. 

Her community involvement includes being on the board of directors for the Friends of Judicial History Center, and serving on the 

board of directors for the Volunteer Legal Services of Hawaii. 

251 

Judge Kobayashi’s application was reviewed by a merit selection 

panel that Senator Akaka and I established. She was deemed well 

qualified for the position. 

Judge Kobayashi is the American dream and like so many others, hers is the story of hard work, perseverance and success, and 

I’m proud to support the nomination of Judge Leslie Kobayashi for 

the United States District Judge, District of Hawaii. 

She is well qualified for the position and would bring honor to 

the court. I urge your swift confirmation. 

Senator DURBIN. Thank you very much, Senator Inouye. We are 

honored that you would come join us at this committee, and I am 

certain that Judge Kobayashi is honored by your kind words. 

Without objection, I am going to enter into the record a statement from Senator Inouye’s colleague, Senator Akaka, strongly in 

support of your nomination, as well. You could not have two better 

or stronger friends in the U.S. Senate. 

[The statement appears as a submission for the record.] 

Senator INOUYE. Mr. Chairman, may I be excused? 

Senator DURBIN. You are excused, and I know you have plenty 

to do. So thank you so much for being here, Senator Inouye. 

Senator Kyl and I will ask a few questions. Most of you have 

gone through extensive interviews and reviews of your background. 

So if the questions do not go on for a great period of time, it is not 

a reflection on our interest. Many things have already been asked 

and we have that record, and some questions will be sent later, 

which we hope that you will attend to in a timely way. 

Senator KYL. Besides, it is really hot. 

Senator DURBIN. Senator Kyl has some problems with the heat 

from the lights here. So we are going to try to move this along, if 

we can. 

Mr. Reeves, yours is an historic nomination. You are the first African-American nominated for a Federal judgeship in the State of 

Mississippi in 25 years, since Judge Henry Wingate was nominated 

by President Reagan in 1985. 

Mississippi, as many know, has the highest percentage of African-Americans of any state in the Nation. So your nomination says 

a lot. 

Can you talk to us about the importance of racial diversity on the 

Federal bench in Mississippi, given your personal experience growing up in Mississippi and your knowledge of how far your state has 

come? 

Mr. REEVES. Thank you for the question, Senator Durbin. It is 

extraordinarily important that the judiciary reflects the population 

in the states. Judges serve several functions, role models to other 

lawyers, role models to students, role models to the people who 

come before the court. 

People need to see that they have a chance; that they, too, can 

one day come to the great hall of the Senate and be nominated by 

a President to be a judge. 

As past president of the Magnolia Bar Association, we trumpeted 

that notion. We spoke about the need for diversity throughout the 

State of Mississippi and actually throughout the country, because 

equal justice under the law, people need to believe that a cross-secVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00259 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
252 

tion of the community can serve as judges and that they can administer justice and that they will obey and respect the rule of law. 

And those are just some of my thoughts, sir. 

Senator DURBIN. I thank you for that. I have a question for the 

other three nominees, because you all share a background as prosecutors. And occasionally, Senator Kyl, I will have a request for 

visitation in Chicago from a group of criminal defense lawyers and 

they will say to me, ‘‘Durbin, you are a pretty good guy, but it 

seems like everybody you put on the bench is a former prosecutor. 

So when are you going to start looking for criminal defense lawyers 

so we can have a little balance on that bench?’’ 

So I would like to ask you, Ms. Casper, when the criminal defense bar takes a look at your background, are they going to feel 

like it is an uphill battle when they go into your court? 

Ms. CASPER. I don’t believe so, Senator. Thank you for the question. Although I’ve spent a significant part of my career as a prosecutor, I think I certainly have a reputation of being a straight 

shooter who is fair and impartial and can be fair and impartial, if 

I’m so lucky as to be confirmed. 

I would also say that the role of a prosecutor is to do justice and 

in order to properly discharge my duties as a prosecutor, I necessarily had to look across the—at the other side and the obligations of discovery disclosures and appropriate recommendations for 

disposition are things that I had to consider in my role as a prosecutor. 

I would also say that I’ve spent a fair amount of my time working with criminal defense attorneys in Massachusetts, most recently on a cross-section of bar leaders, both criminal defense attorneys, prosecutors and law enforcement, on a wrongful conviction 

task force, where we worked cooperatively to look at ways to improve the judicial system so that we can avoid even the possibility 

of wrongful convictions. 

So I think based on all of that, both my experience, as well as 

my reputation and commitment with working with folks on both 

sides of the aisle, I think I would be a fair and impartial judge. 

Senator DURBIN. Ms. Kobayashi, as magistrate, have you dealt 

with many criminal cases and sentencing questions? 

Judge KOBAYASHI. Thank you for that question. Yes, I have. And 

we have trials up to full misdemeanors as magistrate judges and 

handle all of the pretrial matters in felony cases. 

So I think that experience serves me well in terms of dealing 

with both sides, in terms of prosecution and defense. And in the 

role of a judge, you quickly learn that you are nonpartisan; that 

you do need to look at both sides equally and with a keen eye to 

make sure that both sides follow the rules and are head fairly. 

So I don’t believe that will be a problem, but I appreciate the 

question. 

Senator DURBIN. Mr. Chang, I do not know if you heard—you 

may have heard my earlier question to Judge Murguia about the 

crack/powder sentencing disparity, and this has been an issue 

which this Committee has addressed and we have considered for 

some time. 

What experience have you had involving that type of sentencing 

or anything similar to it? 

253 

Mr. CHANG. Thank you for that question, Senator. I have prosecuted many crack cases, as well as powder cocaine cases. And so 

I have operated under this sentencing framework. 

Senator DURBIN. And what is your experience? The notion is that 

it is particularly punitive, and if it is punitive, Congress wrote the 

law, the President signed it, and it is a law that, as a prosecutor, 

you would face. 

But we have had, for instance, Federal judges come before the 

Judiciary Committee and talk about the problem it has created, 

particularly within the African-American community. They just feel 

that this disparate sentencing for this particular narcotic raises a 

serious question about whether there is justice in the system. 

Have you felt that in the course of trials or prosecutions you 

have been involved in? 

Mr. CHANG. Well, Senator, thank you for that question. In my experience, when the sentencing regime—the sentencing guidelines 

are mandatory, there was very little wiggle room. And I think as 

you stated, some Federal judges have expressed concern over that. 

Now, of course, the sentencing guidelines are advisory and the 

Supreme Court ruled in a case, Kimbrough v. United States, that 

judges may indeed consider individual circumstances and deviate 

from that crack/powder disparity that you spoke of. 

And if I’m fortunate enough to be confirmed, then I would operate under that framework, as well, where the guidelines, while important, are advice and not mandatary. 

Senator DURBIN. Thank you. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

First, let me just comment generally that I was really moved by 

each of the nominees’ introduction of members of their family, and 

it is very clear and I think it says something about the nominees 

themselves that they feel great inspiration from their families, 

their friends, those who cannot be here, those who have passed on, 

but who you remember fondly, and it is meaningful to us here. 

I would also echo what Senator Durbin said, the lack of a 3-hour 

grilling here does not suggest that we do not care about your nominations. We have a lot of information in front of us. I know you 

want that grilling here until 8 tonight, but I just want to assure 

the members of the family that the fact that we do not spend as 

much time as we did on a nomination, for example, like Solicitor 

General Kagan, who has been nominated to the Supreme Court, 

certainly does not suggest lack of interest. 

I, too, will be relatively brief, perhaps having a question or two 

for the record. 

Senator Durbin raised a matter, and, Mr. Reeves, going back a 

little bit in time here, you mentioned your chairmanship of the 

Magnolia Bar Association, and I wanted to ask you a couple questions about a letter that you wrote at that time relative to the 

Southwick nomination. 

Leslie Southwick was nominated to serve on the fifth circuit 

court of appeals, as you know, was confirmed, sits on that court 

today, in a bipartisan vote. But you wrote a pretty stern letter in 

opposition to his nomination, if I could quote just from a couple 

254 

pieces of that and then ask you some questions about that, and this 

was in 2007. 

First of all, you talked about President Bush, and I will just 

quote this. You said, ‘‘President Bush has demonstrated an absolute disdain for appointing African-Americans to the Federal judiciary, particularly within the states representing the fifth circuit. 

Leslie Southwick’s nomination continues a stark pattern of racial 

discrimination and racial exclusion in appointments by President 

Bush to the fifth circuit and to the Federal judiciary from Mississippi.’’ 

Now, do you still stand by that accusation made back in 2007? 

Mr. REEVES. I’m sorry, sir. Yes. In 2007, I was the president of 

the Magnolia Bar Association and we represent—the Magnolia Bar 

Association was founded in 1955, because the African-American 

lawyers who were lawyers back then were precluded from being 

members of the Mississippi Bar Association. 

So the Magnolia Bar Association has always been extraordinarily 

inclusive. It is bi-racial now and at all levels. 

In 2007, we were advocating the need for diversity in the Federal 

judiciary in Mississippi. That was one of the main things that the 

Magnolia Bar Association itself was advocating, because in the 200 

years that the fifth circuit has been in existence, there had only 

been two African-Americans who had been appointed to the fifth 

circuit. 

In the time that the State of Mississippi had been into the 

Union, since 1817, there had been only one African-American appointed to the Federal judiciary. And in the last 20 years or so, 

there have been appointments, nominations to the Federal judiciary in Mississippi. I think the number had exceeded 15 or 17, if 

you include all the Federal judges there in Mississippi in 2007, and 

not—and there had only been one African-American appointed and 

he was appointed in 1985, which was over 20 years ago. 

So as an advocate on behalf of the legal system, as an advocate 

on behalf of the Magnolia Bar Association, that’s why those—those 

represent the comments that were made as my presidency of the 

Magnolia Bar Association. 

Senator KYL. And I can appreciate that. My question really goes 

to a matter of judicial temperament, the way in which a person 

acts as a judge when—in fact, you made the point that a judge can 

be a role model; that both lawyers and others, litigants, who come 

before a court want to know they are treated fairly and, in that respect, if they see in the judges a reflection of the community, I 

think that is a good thing. I totally agree with your comment on 

that. 

But would it not have been more judicious to say—if this was 

your opinion, and I will ask you whether it was. Judge Southwick 

is a fine man, a good lawyer, and would make a good judge. However, it is time that an African-American or some other minority 

member be appointed to the fifth circuit court of appeals. 

Would that not have been a better way to approach this than opposing the nomination and, in fact, using pretty harsh language regarding Leslie Southwick himself? 

Mr. REEVES. Well, thank you for the question. I know Judge 

Southwick. We worked together on some things with the American 

255 

Inns of Court. We just disagreed, as president of the Magnolia Bar 

Association at the time, we just disagreed with the nature of the 

appointments that had been made throughout the fifth circuit, 

throughout the country at the time. 

There had been a dearth of black or any minority candidates 

nominated by the President during the years of 2000 to 2008, and 

the Magnolia Bar made that one of its critical issues over the last 

several years. 

I think the full context of my letter, I do think that in that context of the letter, I don’t criticize Judge Southwick’s abilities or 

anything of that nature. 

And while the President had the prerogative to nominate a person of his choice, we thought, as the Magnolia Bar Association, that 

the Senate had an equal duty to make sure that it looked at the 

scope of the land and tried to encourage some diversity throughout 

the judiciary. 

Senator KYL. Mr. Chairman, do you mind if I just do a followup question or two here, and then that will be it? 

And I can understand. That is why I am asking, and, again, I 

ask this as a question that goes to your judicial temperament, how 

you will conduct yourself on the bench, and I think it is important. 

It would have been one thing to say it is time that an AfricanAmerican is nominated and confirmed for the fifth circuit court of 

appeals. But with regard to Leslie Southwick himself, and I will 

just quote another thing from the letter, you expressed concern 

that Judge Southwick’s nomination could lead—and this is a 

quote—‘‘could lead to an improperly narrow interpretation of the 

Constitution and the civil rights laws,’’ which suggests to me that 

it—well, it is not just a suggestion. 

You said that his nomination could lead to an improperly narrow 

interpretation of the Constitution and civil rights laws, meaning 

that he would interpret the laws in that way. 

Was that really your view about him as an individual and do you 

still view him in that way, as a member of the fifth circuit? 

Mr. REEVES. Thank you. I appreciate the question. The full context of that quote, I believe, that you’re quoting from derives from 

a decision that Judge Southwick endorsed on the Mississippi court 

of appeals, wherein there was a fact dispute and some evidence 

that a supervisor at the Department of Human Services in the 

State of Mississippi referred to an employee, subordinate, as a 

‘‘good old nigger.’’ And we thought that the—we thought, as Magnolia Bar Association and others, that the constraints on which 

Judge Southwick and others placed on that evidence, where the 

employee appeals board did not recommend the termination of the 

supervisor, because they believed that the ‘‘good old nigger’’ quote 

that was used was not bad enough, because ‘‘good’’ and ‘‘old’’ modified the word ‘‘nigger.’’ 

And where I’m from, there is very little that can modify that 

word, and I do note that Judge Leslie Southwick—excuse me— 

Judge Leslie King, who is the African-American chief of the court 

of appeals, disagreed and wrote a strenuous dissent in that matter. 

And ultimately, the decision that Judge Southwick ruled in favor 

of was overturned by the Mississippi Supreme Court. And again, 

the African-American judge on the Supreme Court wrote a concurVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00263 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
256 

ring opinion, Fred Banks, someone whom I deeply admire and respect, really went through the why that word is so offensive for 

that particular agency and the fact that that supervisor was speaking for the agency itself, and that agency represents all of Mississippi. 

Senator KYL. Mr. Chairman, if I could just ask one other question. You were on the board—or were on the board of the Mississippi Workers Center for Human Rights, its treasurer since 

2008. 

Are you still on the board of that organization? 

Mr. REEVES. No, sir. I’ve since resigned. 

Senator KYL. In 2001, there was a statement, called ‘‘statement 

of solidarity with migrants,’’ and I wonder if you are familiar with 

that statement and if you had anything to do with that statement. 

Mr. REEVES. I’m not familiar. I’m not familiar. 

Senator KYL. Well, then I will not ask you a question here. What 

I might do is put some information about that in a question and 

then take a look at it. And if you knew anything about it, then you 

can answer the question; if not, then, obviously, you do not need 

to do that. 

Mr. REEVES. Thank you, Mr. Senator. 

Senator KYL. Mr. Chairman, in view of the time, that is all the 

questions I have of the nominees. Again, I congratulate all of you 

for your nominations and hope that we can move forward with the 

consideration of the nominations as soon as possible. 

Senator DURBIN. Senator Kyl, thank you so much for being here. 

It is a session day when most people are heading out to another 

location, and thank you for your indulgence to be here at this moment. 

I just want to put in the record that I had a chance to read the 

letter that Mr. Reeves sent on behalf of the Magnolia Bar Association and it refreshed my memory about the controversy associated 

with Leslie Southwick’s nomination, not just the racial composition 

of the courts in Mississippi, but, also, that particular case, which 

was very controversial. 

The only exceptions I would have in your letter are, in two different places, you refer to me in a positive way and—— 

[Laughter.] 

Senator DURBIN. That may destroy your credibility with some. It 

is going to help you with me. 

So I thank all of you for being here today, and particularly to the 

family and friends who have joined in this historic occasion for 

each one of the nominees. 

The Senate Judiciary Committee is a Committee that Senator 

Kyl and I have been honored to serve on for quite a few years and 

the men and women who pass through this Committee hall, sit at 

this table, answer these questions are ultimately, in the vast majority of cases, then given an awesome responsibility to serve for 

life in the Federal judiciary and to make decisions relative to our 

laws and justice every single day. 

So we take this very seriously and we certainly acknowledge 

each of you brings a wealth of experience to this, personal and 

legal experience, and we accept you at your word that, if given the 

chance to serve in the Federal judiciary, you will continue to use 

257 

your very best judgment, consistent with the laws of our country 

and our Constitution. 

At this point, I am going to ask that the Judiciary Committee 

stand in adjournment. If written questions are sent, if you will attend to them in a timely manner, we would appreciate it very 

much. 

Thanks for being here, and thanks to all your family and friends. 

[Whereupon, at 5:26 p.m., the meeting was adjourned.] 

[Questions and answers and submissions follow.] 

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(341) 

NOMINATIONS OF KATHLEEN M. O’MALLEY, 

NOMINEE TO BE UNITED STATES CIRCUIT 

JUDGE FOR THE FEDERAL CIRCUIT; BERYL 

A. HOWELL, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; AND, ROBERT L. WILKINS, NOMINEE TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA 

WEDNESDAY, JULY 28, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:33 p.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. 

Present: Senators Whitehouse, Franken, and Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. It may look like musical chairs. Senator 

Whitehouse, who has filled in twice as chair already—this will be 

the second time today—while we have been doing these things, also 

had to balance his other assignments. 

So I want to begin the hearing, and we will let him take over 

when he gets here. 

I might say that one of the people who has been nominated and 

will be before the Committee is Beryl Howell. And I feel strange, 

in a way, introducing her to the committee, because those who 

served here from 1993 to 2002 will remember her as my general 

counsel; one of the most effective members of our Judiciary Committee staff, with a background as a highly decorated Federal prosecutor. 

Senator Sessions will remember her work on many criminal justice and national security issues. Senator Hatch will, no doubt, remember her work on the Digital Millennium Copyright Act or AntiCyber Squatting Consumer Protection Act and our No Electronic 

Theft Act. 

And then to also remind some of my other colleagues on the 

other side, Senator Kyl and Senator Grassley, recall her work on 

the National Information Infrastructure Protection Act, our ComVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00349 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
342 

puter Fraud and Abuse statute, and on important oversight matters, including the bipartisan hearing we had on Ruby Ridge, which 

led to some much overdue improvements at the FBI. 

Senator Cornyn, of course, will be interested in her work on the 

electronic freedom of information initiatives. In that regard, I think 

she is the only nominee I can recall who has been inducted into the 

Freedom of Information Act Hall of Fame. 

What some of you may not know is her background before she 

joined the Senate staff. She grew up in a proud military family. 

And, Colonel, we are glad to have you here. 

She was awarded an undergraduate degree with honors in philosophy from Bryn Mawr College in Pennsylvania. She earned her 

law degree at Columbia University School of Law, where she was 

a Harlan Fiske Stone scholar. She clerked for Judge Dickinson 

Debevoise in the United States District Court for the District of 

New Jersey. And having worked as a student assistant in the U.S. 

Attorney’s Office, she joined the U.S. Attorney’s Office for the Eastern District of New York in 1987. She worked there for almost 6 

years, and rose to be deputy chief of the narcotics section. 

Her grand jury investigations and prosecutions included complex 

public corruption, narcotics, and money laundering cases involving 

the leadership of the Chinatown Flying Dragons gang, the Cali 

drug cartel and others. 

Descriptions of her cases read like crime novels. She successfully 

prosecuted the leadership of a Chinatown gang, called the Flying 

Dragons, for heroin trafficking and extradited the head of the gang 

after he fled to Hong Kong; a case of you can run, but you cannot 

hide. 

She successfully prosecuted a group of Colombian drug dealers 

and arrested the gang members just as they were packing almost 

$20 million in cash from narcotics proceeds into a hidden compartment of a truck to smuggle it out of the country. 

Incidentally, your son is listening to this very carefully, hearing 

about some of the things his mom did. 

Then some of these defendants attempted a prison escape by 

bribing officials and she successfully prosecuted the perpetrators of 

the escape plan. 

She handled the successful investigation and prosecution of over 

20 corrupt New York City building inspectors involved in extortion. 

Her work was recognized by twice being awarded the U.S. Attorney’s Special Achievement Award for Sustained Superior Performance; by commendations from the FBI, DEA, the New York City 

Department of Investigation, and ultimately by the prestigious Attorney General’s Director’s Award for Superior Performance. 

I always felt lucky to have hired her and that she was willing 

to come work here. She left us in 2003 to help establish the Washington, D.C. office of a consulting and technical services firm specializing in digital forensics. 

And her work in the private sector assisted in a government 

cyber extortion investigation. She received the FBI Director’s 

Award; and she was a member of the Commission on Cyber Security and of the Center for Strategic International Studies; Ms. Howell taught legal ethics as an adjunct professor at American’s University’s, Washington College of Law, and she has twice been conVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00350 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
343 

firmed by the Senate to serve as a member of the bipartisan U.S. 

Sentencing Commission, to which she was appointed by President 

Bush; and, on and on. 

I will put the whole statement in the record. 

But one of the things that I like very much is she and her husband, Michael, have raised three children in the District, and they 

are long-time citizens here, and I am proud of them. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman LEAHY. Then because I know that both Senator Brown 

and Representative Norton have to leave, let me turn to you for the 

introductions you want to make, and then we can begin the hearings. 

PRESENTATION OF KATHLEEN M. O’MALLEY, NOMINEE TO BE 

U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT BY HON. 

SHERROD BROWN, A U.S. SENATOR FROM THE STATE OF 

OHIO 

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

Sessions, Senator Whitehouse, Senator Franken. Thank you for 

your attention and your service. 

It is my pleasure to introduce Judge Kathleen McDonald 

O’Malley, a brilliant, dedicated, and trail-blazing jurist. She was 

raised in Richmond Heights, a Cleveland suburb, supported and 

nurtured by a typical large Irish Catholic family, many of whom 

are here today. 

Judge O’Malley said that her parents, Thomas and Mildred, 

whom we call Billie McDonald, in particular, have been the greatest influence in her life. 

I want to extend my greetings to Kate’s mother, Billie McDonald, 

who is proudly watching the hearing via Webcast. So, Billie, thank 

you for joining us. 

As a father of three daughters, I know our children’s successes 

are sweeter than our own, and congratulations to her mother. 

I would also like to recognize Kate’s other family members who 

are here. Her husband, George Pappas, over my left shoulder; 

daughter, Nora, and son, Jack, who celebrated his 21st birthday on 

Monday. Kate’s brothers, Kevin and Brian McDonald, are also 

here, along with numerous cousins and nieces and friends. 

Many of Judge O’Malley’s current and former clerks have traveled from around the Nation to be here today, she told me seven 

of them, and that speaks volumes, seven of them are in the audience today. 

Today is a little bittersweet. Should this Committee and the Senate concur, the people of Ohio will lose one of our finest judges. But 

it is a proud day for me to speak about her accomplishments and 

to share her story with this Committee and with the Nation. 

As a child, Kate was blessed with wisdom beyond her years. It 

was clear what she wanted to do with her life. At the age of 12, 

she was asked what she wanted to be when she grew up. She replied that she wanted to be a Federal judge. 

As she excelled, not—centerfield for the Cleveland Indians for 

me, Federal judge for her. As she excelled—and she has, obviously, 

done better than I have, too. 

344 

As she excelled in school, high school, college and law school, in 

her words, ‘‘It never occurred to me that I couldn’t.’’ 

She graduated phi beta kappa from Kenyon College in Gambier, 

Ohio, not far from where I grew up, in 1979. She was first in her 

class, with one of the Nation’s finest law schools, Case Western Reserve Law School near Cleveland. 

After law school, Kate clerked for the Sixth Circuit Court of Appeals, for the very distinguished Judge Nathaniel R. Jones, who 

was one of her major influences and considers Kate to be like family. 

The Cleveland Plain Dealer wrote in 1994 that her clerkship 

with Judge Jones taught her that as a judge, quote, ‘‘You have to 

be true to the law, you have to be intellectually honest.’’ 

After her clerkship with Judge Jones, Kate spent several years 

in private practice, she gained invaluable experience representing 

numerous large corporations, in addition to medium-sized and 

small businesses. 

She became an expert in complex corporate litigation, patent and 

intellectual property cases, experience that will serve her well as 

a circuit judge in the Federal circuit. 

She translated her private sector experience into a distinguished 

career in public service as chief counsel and chief of staff for then 

Ohio Attorney General Lee Fisher. Kate used her brilliant mind 

and incredible work ethic to litigate major state and Federal constitutional cases at both the trial and appellate levels. Her responsibility that employs intellect and temperament required in the Attorney General’s office has served her well through her career, and 

people on this Committee are certainly familiar with that. 

Recognizing her brilliance, her good legal mind, her superior 

work ethic, Ohio Senators Howard Metzenbaum and John Glenn 

recommended Kate’s name to President Clinton for a place on the 

Federal bench on September 20, 1994. 

President Clinton nominated her to serve on the Federal bench 

as a U.S. District Judge for the Northern District of Ohio. When 

Judge O’Malley began her service on the northern district bench, 

she was among the youngest judges serving on the Federal bench. 

And for the last 15 years, Judge Kate O’Malley, still one of the 

youngest, has served the northern district of Ohio with distinction. 

In case there is any doubt as to her experience, she has handled 

approximately 4,000 civil cases, 800 criminal cases, three major 

multi-district litigation cases, including one with 20,000 claimants 

and another with 12,000 separate cases. 

And she is an innovator. She has spearheaded national efforts to 

integrate cutting-edge technologies into courtrooms, ensuring that 

the administration of justice is equal and fair and open to all who 

seek it. 

As an educator, Judge O’Malley has generously given back to her 

alma mater, Case Western, to teach the next generation of patent 

lawyers and advocates. And as a strong believer in pro bono service, she encourages students and clerks, lawyers and educators 

alike to provide legal services to those who clearly need them. 

She will make an outstanding judge in the U.S. Court of Appeals 

for the Federal Circuit. Her distinguished career pursuing justice 

345 

based on merits and devoid of ideology or hidden agenda will bring 

an important new voice to the courtroom. 

In closing, what maybe amuses me the most about Kate is when 

asked what is the one thing that people would not know about her, 

she replies, ‘‘Most people don’t know that I’m a Federal judge,’’ the 

way that she carries herself and acts, because to most people, she 

is a wife, mother, daughter, sister, friend, Lacrosse coach, soccer 

coach. 

She is all those things in the community and all those things as 

a human being. That is what makes me proud to introduce and to 

support Judge Kate O’Malley. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

And, Judge, you should know that he says these nice things 

about you when you are not here, too, and has. 

[Laughter.] 

Chairman LEAHY. And if you ever watch the Senate during a 

vote, you see the various Senators huddling, Republicans, Democrats. Senator Sessions and I get more work done in this Committee between votes, huddling off in a corner, but you see Senator 

Brown whispering—and he cannot whisper. 

Senator BROWN. I do not whisper, Mr. Chairman. 

Chairman LEAHY. In my ear. 

Senator BROWN. I try to whisper, but it just carries too much. 

Chairman LEAHY. Senator Brown, I know you are supposed to be 

elsewhere, and feel free to do it. 

Senator Franken. 

Senator FRANKEN. Do we get questions? 

Chairman LEAHY. Of Senator Brown, no. 

[Laughter.] 

Chairman LEAHY. I thought about it, but we would all have too 

many and we would be here all afternoon. 

PRESENTATION OF BERYL A. HOWELL, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA AND 

ROBERT L. WILKINS, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE DISTRICT OF COLUMBIA BY HON. ELEANOR 

HOLMES NORTON, A REPRESENTATIVE IN CONGRESS FROM 

THE DISTRICT OF COLUMBIA 

Representative Norton and I have served together for a lot of 

years. She stays young, I grow old, but we still serve together, and 

we both had enduring interest in the District of Columbia. 

Representative Norton, I am proud to have you here. 

Representative NORTON. Thank you very much, Mr. Chairman. 

And I want to thank you, Senator—right here—I worked with you 

before on Federal judges, U.S. attorney, when President Clinton 

gave me senatorial courtesy. It is a pleasure to still be able to work 

with you as you sit once again as chair. 

And I want to thank you and Ranking Member Sessions for inviting me to introduce the two nominees for United States District 

Court for the District of Columbia. Both of them are Washingtonians that I am proud to represent and to introduce, Beryl Howell and Robert Wilkins. 

346 

Robert Wilkins graduated in chemical engineering from RoseHulman Institute of Technology in 1986 and from Harvard Law 

School in 1989, where he served as executive editor and common 

editor of one of the law reviews. 

He clerked for Judge Earl B. Gilliam of United States District 

Court for the Southern District of California. Mr. Wilkins is currently a partner in the Washington, D.C. law firm of Venable, LLP, 

where he practices primarily in corporate defense, white collar 

technology and commercial litigation. 

He previously has worked as an attorney for the Public Defenders Service for the District of Columbia, where he was chief of special litigation from 1996 to 2000. 

Beryl Howell received her J.D. from Columbia University School 

of Law in 1983, and her BA from Bryn Mawr College in 1978. After 

law school, Ms. Howell was a law clerk to U.S. District Court 

Judge Dickinson B. Debevoise of the District Court of New Jersey, 

and worked in private practice as an associate of the law firm of 

Schulte Roth & Zabel. 

She then was an assistant United States attorney for the Eastern District of New York, where she became deputy chief of the 

narcotics section. And as you have, I think, perhaps, most authoritatively, Mr. Chairman, outlined in great detail, in much greater 

detail than I would ever know. She has served in a number of different posts, but perhaps particularly notably, your own staff and 

as your own general counsel of this Senate Subcommittee on the 

Judiciary, and as your own senior adviser. So she comes well recommended before this committee, to say the very least. 

Robert Wilkins and Beryl Howell have both enjoyed a full range 

of the experience and intellectual background that has helped them 

earn reputations as excellent lawyers and makes them ideal candidates for the U.S. District Court for the District of Columbia. 

I am pleased to represent them and to recommend them both to 

you. 

Chairman LEAHY. Thank you very, very much. 

What I am going to do, and this is no lack of respect for any of 

the nominees, I am going to slip out. Senator Sessions is going to 

handle the hearing for me. 

I thank Representative Norton especially for coming over, because she has to cross the whole campus to get here, and I appreciate that. 

Senator SESSIONS. I appreciate you delegating the chairmanship 

to me for a change. You are getting nicer and nicer as election coronation gets closer. 

[Laughter.] 

Chairman LEAHY. I hope you have enjoyed it. I just took it back. 

[Laughter.] 

Senator SESSIONS. Brief though it is. Mr. Chairman, before you 

leave, I think you probably heard that the House has just passed 

the crack cocaine/powder bill, the Senate version. It will be sent to 

the President for signature, which I have enjoyed working with you 

on and Senator Durbin and others. 

I believe we made a good step to improve justice and I know you 

agree. 

347 

Chairman LEAHY. I think we did. There was a lot of back-andforth and compromise, and, Senator Sessions, I applaud what you 

did on that, and Senator Durbin, what he did. 

The crack and powder cocaine disparity has bothered me greatly. 

Ms. Howell has had experience with that on the Sentencing Commission. And I have never been able to understand why somebody 

who is in the highest levels of society, or their business, whatnot, 

can pay $200 for cocaine in one form and if they are caught, they 

are probably going to do some community service. A black kid in 

the inner city paid $200 for another kind of cocaine and ended up 

going to prison and their life ruined. 

I think it is unfair. So I am delighted to see this. I know the 

President is going to sign it. 

Senator WHITEHOUSE. [Presiding.] All right. We will now have 

Judge O’Malley come forward. 

[Nominee sworn.] 

Senator WHITEHOUSE. Thank you. Please be seated. Welcome. 

Why don’t I give you a chance to introduce for the record all of your 

family who are here with you or who may be watching? I gather 

your mom is watching over the Webcast. 

STATEMENT OF KATHLEEN M. O’MALLEY, NOMINEE TO BE U.S. 

CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT 

Judge O’MALLEY. Yes, my mom is watching on the Webcast. 

First, I would like to thank Chairman Leahy and Ranking Member Sessions for scheduling this hearing. I truly appreciate it. And 

thank you, Senator Whitehouse, for agreeing to chair it. 

I also want to thank President Obama for the faith in me that 

this nomination shows. I want to thank Senator Brown, who is always charming, and I want to thank him for his kind words. And 

I would like to thank Senator Voinovich, who couldn’t be here, but 

did write to the President on my behalf and has agreed and told 

me that he is going to submit a statement for the record in support. 

Thank you, Senator Franken, for being here. 

I won’t introduce all of my family and friends that are here, because we would be here all day, but I will introduce a few, if that’s 

okay with you. 

Senator WHITEHOUSE. Of course. 

Judge O’MALLEY. First, of course, my husband, who has already 

been introduced, is George Pappas. My children, Nora and Jack 

O’Malley. My brother, Kevin McDonald and his wife, Marybeth, 

and his daughters, Megan and Molly. My brother, Brian McDonald, 

and his wife, Chris, and his daughter, Claire. 

And I also have here two other nieces and nephews, Eleni and 

George Alafoginis, from the Greek side of the family. 

There are lots of friends. I have friends that have come from 

Ohio for me, I have friends from Massachusetts. I have Judge 

Marvin Garvis, who came from Maryland to support me. And I also 

have seven of my current and former law clerks, who I am thrilled 

came all the way to be here. 

So there are lots of other friends and family that are watching. 

I do want to say hello to my mother, and I want to say that my 

348 

dad and my brother, Tom, were both with me 16 years ago and, 

unfortunately, have passed away, but they would have loved this. 

So thank you, Senator. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Thank you. We are delighted to have you 

with us. I am conscious, as I chair these hearings, of how significant they are, as we consider some of America’s finest individuals, 

really our best and our brightest, our most committed and dedicated for lifelong positions on the Federal bench. 

You have already crossed the first hurdle and are now going 

from the trial to the appellate level, and we are very proud to have 

you here. 

We are very conscious on this Committee that every day, Federal 

judges make decisions that affect the lives of everyday Americans; 

not only the everyday Americans right before them in that case, 

but others whose lives are affected by the holdings that they deliver. 

So it is important to us, and I usually ask of judges to assure 

me that they will, first, respect the role of Congress as the representative branch of government of the American public policy; 

and, second, that they will decide cases based on the law and the 

facts; third, that they will not prejudge any case, but listen to every 

part that comes before them; fourth, that they will respect precedent, like it or not; and, finally, that they will limit themselves to 

the issues that the court is called upon to decide. 

I am sure that question will come as no challenge to you, after 

your 16 years of distinguished service on the district court. But if 

you do not mind, may I ask you if you agree with those propositions? 

Judge O’MALLEY. Those are easy commitments for me to make 

and I think that my 16 years on the bench and my record has proven that I have adhered to all of them. 

Senator WHITEHOUSE. Well, I appreciate that very much, and I 

am delighted to have you here. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Judge O’Malley, it is a pleasure to see you. You have got a good 

long history in judicial work. I think it will stand you in good 

stead. 

Let me ask a question or two, because it goes to maybe what I 

think the role of a judge should be. 

There have been some criticisms of Justice Roberts’ metaphor 

that a judge should be a neutral umpire. But I like it. I mean, a 

judge does not take sides in the game, does not decide who he 

would like to win before the game starts, and fairly calls the plays 

as best they can, maybe not perfectly, but do their best in an intellectually honest way, and that is the closest we can get to justice, 

I think. 

I do believe that there is objective truth and our entire justice 

system, we have been taught since our earliest days, is to find the 

truth and then render opinions based on that. 

You, in an interview discussing your appointment to the bench 

in 1994 and the impact Judge Nathaniel Jones, for whom you 

clerked, had on you, you stated this, ‘‘You have to be true to the 

law, you have to be intellectually honest,’’ A-double-plus, tripleplus, for that. 

And you went on to say, ‘‘You can’t say I want a certain result 

and set out to achieve that result, regardless of where the law realVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00418 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
411 

ly takes you. Jones’ attempt to strike a balance between those two 

ultimate goals is something that stayed with me throughout my career.’’ 

But what two goals were you talking about, the striking a balance between two goals? Do you recall that? If you do not, do not 

let me bother you with it. 

[Laughter.] 

Judge O’MALLEY. I think what was said about Judge Jones the 

first time that I spoke about that is that Judge Jones said that 

judges can play an important role in the world and in society. For 

instance, it’s because of judicial rulings that everyone has a right 

to counsel ultimately, and that conclusion has been reached. But he 

said judges should never seek to play a role in society that goes beyond applying the facts to the law that is before them. 

So what he was saying is that you can play a very important 

role, but only within the bounds of what the framers intended for 

that branch of government. 

Senator SESSIONS. I think that is a fair answer. I am not sure 

exactly how you balance that, but there is—I call it the Siren’s 

Song of Activism. Some judges seem to get a little bored on the 

bench and like to make a little history. 

I think it is a temptation you should normally reject, although 

sometimes you are thrust into a situation where you have to make 

a decision not fully understanding. 

You have two death penalty cases that you have been reversed 

on; one where the defendant failed to object to a jury instruction 

because the defendant’s lawyer said, ‘‘Well, I didn’t object because 

I thought it would be futile,’’ and you overturned the death penalty 

part of it, not the conviction, as I understand it. 

But the Supreme Court has rejected this futility standard. It said 

you cannot not object and then later complain and come before the 

court and say, ‘‘Well, I didn’t think you would rule with me, anyway, Judge,’’ and still preserve error. 

How do you evaluate the way you handle that in life? 

Judge O’MALLEY. At the time that was decided, which was very 

early in my career, so almost 15 years ago, the Supreme court had 

not been as clear at that point with respect to that issue. And in 

my original opinion, I actually stated at some length that the issue 

of exhaustion and the issue as to whether or not procedural default 

would apply was a very close call. 

Ultimately, the sixth circuit disagreed with me on that narrow 

question. Out of a 180-page opinion, that is the only thing they disagreed with. 

But even at the time, I acknowledged that it was a close issue 

and that the law was not fully developed as it would apply to those 

particular facts. 

Senator SESSIONS. And the sixth circuit affirmed you in the 

Esparza v. Mitchell case. However, they were reversed by the Supreme Court, an occasion on which you, again, upheld an objection 

to a death penalty case. 

Would you want to comment on that briefly? 

Judge O’MALLEY. Again, the sixth circuit did affirm me in a 

unanimous opinion with respect to the Esparza case. There were 

a number of issues in that case particularly having to do with the 

412 

fact that the jury was never told about frontal lobe damage to the 

defendant. 

I think, actually, given the development of case law out of the 

Supreme Court since then, if the Court were to get the Esparza decision today, it might actually reach a different result. 

Senator SESSIONS. Let me ask you to just make an affirmation, 

if you will, that you will—that you are prepared to give the government, the state prosecutors and the Federal prosecutors a fair 

shake and follow the law with regard to death penalty cases and 

that you have no personal feelings about the death penalty that 

would impair your ability to objectively and fairy adjudicate those 

cases. 

Judge O’MALLEY. Absolutely, Senator. If you look at my record, 

you will see that I have affirmed more death penalties than I have 

set aside throughout the course of my career. 

Senator SESSIONS. Well, I appreciate that and I think those cases 

both were close cases and good people could disagree on them. 

I would just say you have got the kind of experience that would 

appear to warrant elevation to the court of appeals and I look forward to—at this point, I am not aware of anything that would 

cause me to have serious concern about your nomination. 

Judge O’MALLEY. Thank you, Senator. 

Senator SESSIONS. Mr. Chairman I am—well, I have a few more 

minutes before I will have to leave. 

Senator WHITEHOUSE. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Judge O’Malley, Senator Brown gave a great introduction to you 

and I congratulate you and the minions behind you. 

[Laughter.] 

Senator FRANKEN. You are Irish Catholic. Is that right? 

Judge O’MALLEY. How did you guess? 

Senator FRANKEN. My wife is Irish Catholic. Also, you are named 

O’Malley. 

[Laughter.] 

Senator FRANKEN. If you are confirmed, you will start to consistently hear a lot of intellectual property cases and in those cases, 

you are very often going to have to weigh the public’s interest in 

then the free flow of information against proprietary interests or 

protecting investments. 

This is coming up a lot in the net neutrality debate, where a lot 

of us in the government want to ensure a free and open Internet, 

and where we also want to guard against piracy. 

Can you tell me how you are going to go about weighing those 

interests? 

Judge O’MALLEY. Well, Senator, thank you. Those interests or, 

actually, the balance with respect to those interests are actually 

spelled out in the statutes that we would need to apply. 

So the Patent Act, the trademark laws, the laws that I would 

have to apply actually contain the very balances that you are talking about. 

They were Congressional decisions and my job is to apply that 

balance as Congress has dictated it. 

Senator FRANKEN. Well, I am glad to hear you say that, as if I 

was doubting that you would do that. But we were talking here 

413 

about activism and judicial modesty, and I do have a concern myself about—what did you call it—the Silent Song of Activism, I 

think the Ranking Member called it. 

Senator SESSIONS. Siren’s Song. 

Senator FRANKEN. Oh, the Siren’s Song. Oh, I see. Much better 

than Silent Song. 

Senator SESSIONS. Some songs are better silent. 

Senator FRANKEN. Well, anyway, that was my real question, 

which is, is it Silent or Siren’s Song and the Ranking Member answered it. 

But thank you and congratulations again. 

Judge O’MALLEY. Thank you, Senator. 

Senator WHITEHOUSE. Thank you very much, Judge O’Malley. 

We are pleased that you are here. It is always a pleasure and an 

honor when the Ranking Member is here for these and his assurances that he sees nothing to inhibit your going forward is always 

pleasant news and the fact that there is not a whole wall of people 

on that side with questions is also usually a pleasant sight. 

So I will excuse you and we look forward to the Committee taking up your nomination in short order. And then I am going to assume it will be taken to the floor, where, along with a great number of other judges who cleared the Committee unanimously or 

with microscopic dissenting votes, we will descend into political 

quicksand for a while. 

Regrettably, that is the current situation. I hope that we can 

clear judges through, but I must say that there are judges who 

have cleared the Committee unanimously who have sat for months 

and months and months and months on the Senate floor awaiting 

a vote. 

Judge O’MALLEY. I have ultimate faith that won’t happen. 

Senator WHITEHOUSE. It is always good to have faith, Judge 

O’Malley. 

Judge O’MALLEY. Thank you very much, Senator, and my whole 

family thanks you, as well. 

Senator WHITEHOUSE. Congratulations to you and to your family. 

We are proud to have you with us. 

We will take just a 2-minute recess while the next panel comes 

forward. 

[Recess.] 

Senator WHITEHOUSE. Will you please stand and be sworn? 

[Nominees sworn.] 

Senator WHITEHOUSE. Thank you very much. Please be seated. 

If you would like to each take a moment to introduce your family 

and friends who are here, we would welcome that. And it is good 

to have that on the record of these proceedings for posterity. 

STATEMENT OF BERYL A. HOWELL, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF COLUMBIA 

Ms. HOWELL. Thank you very much, Chairman Whitehouse. I 

want to take the opportunity, first, to thank the committee, Chairman Leahy for his very gracious and kind remarks this morning, 

as well as Representative Norton. Thank you, Chairman Whitehouse, for chairing the hearing, and, Senator Franken, for being 

here. I really appreciate all the work that goes in on preparing for 

414 

hearings and for the Committee giving me the opportunity to be 

here today. 

I also want to thank President Obama. I am profoundly humbled 

and honored by his nomination of me and for the opportunity to be 

considered by this Committee and the Senate to give its consent to 

my appointment to the bench for the district court for the District 

of Columbia. 

I with your forbearance, I do want to take the opportunity to introduce some of my family and friends who are here. 

Senator WHITEHOUSE. We would like that. 

Ms. HOWELL. Starting with my husband, Michael Rosenfeld, who 

has been my unwavering support since we met in college. My parents, Colonel Howell and Ruth Howell. My father has spent a career in the military, doing public service, and instilled in both my 

siblings and me the ethic that you should always leave a place better than you found it, including picking up litter that you didn’t 

leave, and I think that that is a public service commitment that all 

of us have endeavored to fulfill. 

Senator WHITEHOUSE. We thank him for his service and wise 

counsel. 

Ms. HOWELL. Yes. And my son, George Rosenfeld, is here. He is 

a rising junior at Columbia University and has taken time off from 

his two summer jobs in New York to come down for the hearing. 

My two daughters, whose names I did want to mention, Alina 

Rosenfeld. She can’t be here because she is volunteering in an orphanage in Nicaragua. And my other daughter, my 12-year-old 

daughter, Calla Rosenfeld, has decided this would be a little boring 

and decided to stay in camp in Vermont. 

Senator WHITEHOUSE. The chairman, I know, would appreciate 

that choice. 

[Laughter.] 

Ms. HOWELL. I do want to take the opportunity, also, to thank 

my mother-in-law, Judy Rosenfeld, who is also in Vermont, for her 

loving support for the past 30 years. 

I also have a friend, Kirby Heller, who is here. She is a dear 

friend from when we were prosecutors together. 

Thank you very much for the opportunity to do that. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Mr. Wilkins, would you like to do the 

same. 

STATEMENT OF ROBERT L. WILKINS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA 

Mr. WILKINS. Thank you, Mr. Chairman. Thank you for the opportunity to appear before you. And I would like to thank Senator 

Leahy and Ranking Member Sessions, as well. And, Senator 

Franken, thank you for also appearing here. 

It’s an honor for me to be here, and it is an honor for me to have 

been nominated by President Obama, and that’s an honor that I 

will take and consider and seek to uphold as faithfully as I possibly 

can. 

I would like to take this opportunity to introduce my family, asking them to please stand. First of all, of course, my beloved wife, 

Amy ‘‘Amina’’ Wilkins; my sons, Bakari James Wilkins and Alim 

Russell Wilkins; my mother, Joyce Wilkins. My mother-in-law and 

father-in-law, Ernesteen and James Long. Unfortunately, there are 

two very special family members of mine who were not able to be 

here with me, my brother, Larry Wilkins and my dear grandmother, Marcella Hayes. 

I would like to take this opportunity to thank all of my family 

members and colleagues, past and present, who have supported 

me. 

Two very special people are here today that I’d like to acknowledge, dear friends of mine, Melvin Elvin Williams and Carl Racine. 

I am a 20-year resident of the District of Columbia and very 

proud of that, but I would be remiss if I didn’t also advise this 

Committee that I was born and raised in Muncie, Indiana. And 

therefore, it is a distinct honor and pleasure for me to have with 

me my law partner, but, more importantly, my former Senator who 

has served this body so honorably for many years, including on this 

committee, and that’s Senator Birch Bayh. 

[The biographical information follows.] 

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Senator WHITEHOUSE. We are delighted to have Senator Bayh 

with us and back in this chamber again and we will be very sad 

when his son, Evan, goes on to other accomplishments and leaves 

us at the end of this term. 

I have been very honored to serve with Evan. We serve on the 

Intelligence Committee together. And the Bayh family, father and 

son, have left a very distinguished record in this body and we are 

honored that he is here. 

Senator BAYH. Thank you, Senator. 

Senator WHITEHOUSE. Now, I gave you a preview of the previous 

nominee’s testimony. 

I think that it is an important step when people move from their 

private lives to wear the robes and as we wear the robes and assume the responsibilities, the lifetime responsibilities of a United 

States district court judge. 

We have a certain amount of jousting back and forth on this 

Committee about activism and who does it, but I do think that underneath the jousting about an important constraint around the activities of a lifetime appointed judge, and it’s a useful part of the 

hearing process to reflect that and to give you an opportunity to 

comment on it. 

The way that I say it is that judges must respect the role of Congress, the elected representatives of the American people; that they 

must decide cases based on the law and the facts and nothing else; 

that they not prejudge any case, but make sure that any person 

coming before them, gets a full and complete hearing, irrespective 

of their wealth or lack of it, power or lack of it; that they must respect precedent, like it or not; and that they must limit themselves 

to the question the court has fairly presented. 

Those are constraints that help define and protect the judicial 

function in this country, and I hope that you will both agree that 

they are ones that you will abide by as United States district court 

judges. 

Ms. HOWELL. Yes, Chairman Whitehouse. I can unequivocally 

say that those are principalities that I would abide by, would I be 

lucky enough to be affirmed as a district court judge. 

Senator WHITEHOUSE. Mr. Wilkins. 

Mr. WILKINS. Thank you, Senator. I think that those are all excellent guideposts that I would certainly also affirm that I would 

try to maintain and abide by during my tenure, if I am so fortunate 

as to be confirmed. 

Senator WHITEHOUSE. Very good. I appreciate that. 

Senator Franken. 

Senator FRANKEN. I probably would not be a good judge because 

I do not agree with any of that. 

[Laughter.] 

No. I actually completely agree with it. It was a joke from my 

last thing I used to do. 

Ms. Howell, you got a pretty decent intro from our chairman. 

Ms. HOWELL. I would agree with that. 

Senator FRANKEN. That was really pretty amazing. So I really do 

not have much to ask you, other than I am really curious about the 

corrupt building inspectors you prosecuted. Could you tell me how 

521 

they were corrupt and exactly what they were doing? How many 

were there? 

Ms. HOWELL. I successfully convicted about 20 of them across different boroughs in the metropolitan New York City area, and their 

MO, modus operandi, was to extort payoffs before they would issue 

a certificate of occupancy to people who usually were quite desperate for their C-of-Os, certificates of occupancy, in order to move 

into their buildings. 

Senator FRANKEN. So what does that mean? Why did they—a 

certificate of occupancy means they could not move in until they 

got it. 

Ms. HOWELL. Owners of the buildings could not actually start 

using and occupying their building until they were issued a certificate of occupancy by the New York City building inspector. 

Senator FRANKEN. And the building inspector basically was saying this building is sound enough to be occupied; is that what the 

certificate of occupancy is? 

Ms. HOWELL. Essentially, yes. And the building inspectors would 

not issue the certificate of occupancy unless they had received a 

payoff. 

Senator FRANKEN. And how long did they go to jail for? 

Ms. HOWELL. Approximately 3 years. 

Senator FRANKEN. Seems fair. Mr. Wilkins, you have worked 

with indigent clients as a public defender and you have served on 

the D.C. Access to Justice Commission to expand access to legal 

services for poor people. 

I think that equal access to justice is absolutely necessary for a 

fair justice system. What will you do as a judge to ensure that everyone who comes in your courtroom has equal access to justice? 

Mr. WILKINS. Thank you, Senator. I think that as a judge on the 

U.S. district court, you have to be mindful of your obligation to 

make sure that justice is blind and that justice is equal and that 

a person who perhaps doesn’t have all of the resources isn’t affected unfairly on the merits because of that. And so I would try 

to be mindful of those issue as I was issuing my—as I would rule 

on particular matters. 

And I note that in the District of Columbia, there is a process 

by which judges can appoint counsel to the pro se matters, where 

the plaintiffs may have meritorious cases or potentially meritorious 

cases that need to be explored with competent counsel and that the 

judges often times work with the legal community to get them to 

take those cases, and I would certainly applaud and support that 

effort. 

Senator FRANKEN. So that is the judge appointing a lawyer for 

a plaintiff. 

Mr. WILKINS. I believe that there is a process by which the court 

can refer a matter and seek to encourage counsel to take the case. 

He can’t actually, I don’t believe, appoint counsel. But firms sign 

up and agree to take cases as they are referred. 

Senator FRANKEN. Well, I applaud the work that you have done 

and I congratulate you both on these nominations. Congratulations. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Franken. 

522 

I join Senator Franken in congratulating you on the worthy academic and service careers that have prompted President Obama to 

nominate you for this extraordinary office, and I wish you every 

success as we go forward. 

As I said earlier, there is an unfortunate situation on the Senate 

floor right now; that people who come out of this Committee with 

unanimous support of the Committee nevertheless seem to fall into 

months of quicksand, but without prejudging how the Committee 

hearing will go, I hope and expect that it will be uneventful and 

that we will be able to get you through the floor and on to what 

I hope will be very distinguished careers at the bench. 

I congratulate both of you, I congratulate your families. 

The hearing will remain open for an additional week, the record 

of it will, if anyone wishes to add any further materials. 

But with no more business before the committee, the hearing is 

adjourned. 

[Whereupon, at 3:23 p.m., the hearing was concluded.] 

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

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(561) 

NOMINATIONS OF SUSAN L. CARNEY, NOMINEE TO BE UNITED STATES CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT; AMY 

TOTENBERG, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA; JAMES E. 

BOASBERG, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; AMY B. JACKSON, 

NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE DISTRICT OF COLUMBIA; 

JAMES E. SHADID, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS; AND, SUE E. 

MYERSCOUGH, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS 

WEDNESDAY, SEPTEMBER 15, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Richard J. Durbin presiding. 

Present: Senators Franken and Sessions. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. If I could ask everyone to please be seated. 

Good afternoon. This hearing of the Judiciary Committee will come 

to order. 

Today, we have before us six outstanding judicial nominees to 

the Federal bench, and I commend President Obama for sending 

their names to the Senate. I would like to welcome each of our 

nominees, as well as their family members and friends who are in 

attendance. 

Our first nominee panel today—excuse me just a second. 

Thank you. I am just getting my signals straight here. 

562 

First, we are going to welcome members of the House and Senate 

who are here to introduce those nominees who will be before the 

Judiciary Committee today. I see Senator Chris Dodd is in attendance. Senator Chambliss we hope will arrive very shortly. Senator 

Isakson from Georgia, also, welcome. Representative Eleanor 

Holmes Norton from the District of Columbia, fresh from her victory yesterday, welcome back. And Congressman Aaron Schock. 

So at this point, because of their own schedules, I am going to 

allow my colleagues to speak. I will tell those in attendance that 

on the first nominee panel today, we will have Susan Carney, nominated to serve on the U.S. Court of Appeals for the Second Circuit. 

On the second panel, we will hear from five district court nominees. Amy Totenberg, who has been nominated to serve in the 

Northern District of Georgia; James Boasberg and Amy Jackson, 

nominated to serve on the U.S. District Court for the District of Columbia; and, James Shadid and Susan Myerscough, who have been 

nominated to serve in the Central District of Illinois. 

Each of the nominees has the support of their home state Senators and in the case of the two District of Columbia nominees, 

they have the support of D.C. Delegate Eleanor Holmes Norton. 

At these nominations hearings, it is traditional for nominees to 

be introduced to the Committee by members from their home 

states. The Ranking Member is on his way and will be here shortly, and he has given me permission to go forward with the hearing. 

I would note that at 3 p.m., we have a ceremony on the steps 

of the Capitol in remembrance of the victims of September 11. We 

may be able to conclude this entire hearing by then; but if not, it 

is likely that we will take a short recess so that all members will 

have a chance to participate in that important hearing. 

So before I introduce my nominees, I am going to defer to my colleagues who are here. And I believe the most senior in attendance 

would be the Senator from Connecticut, Senator Chris Dodd. 

PRESENTATION OF SUSAN L. CARNEY, NOMINEE TO BE U.S. 

CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. CHRISTOPHER DODD, A U.S. SENATOR FROM THE STATE OF CONNECTICUT 

Senator DODD. Thank you, Mr. Chairman. That was not always 

the case, I want you to know, I was senior. But I thank you, Mr. 

Chairman, very much. And I know the Ranking Member will be 

along soon, as well. 

So I thank you for providing me this opportunity this afternoon 

to present to you and to the members of the Committee for your 

consideration the pending judicial nomination for the second circuit. And as you mentioned already, I have the honor of introducing you to Susan Carney, an extremely well respected member 

of Connecticut’s legal community, nominated by the President in 

May to serve on the court of appeals for the second circuit. 

I would also like to take this opportunity to introduce some of 

her family. I am hesitant, because it is a—I do not know if the 

whole crowd made it or not, but I went down the potential list and 

it could fill this room, I think, potentially. But her husband, who 

is here, Lincoln Caplan; her daughter, Molly, who I met a moment 

ago, a student at Columbia University. 

563 

Her mother, Mrs. Carney, who is a veteran of the United States 

Navy, and delighted that she made the trip to be with us. Mrs. 

Carney, thank you and thank you for your service to our country, 

as well, too, and glad to have you with us today. 

Birch Bayh is here, former colleague, member of this Committee, 

and a great friend of the Carney family, the nominee’s family, and 

was willing to come along and be here with us today, as well. 

Birch, it is great to see you as part of this confirmation process. 

The Senate’s constitutionally mandated duty to provide advice 

and consent on nominees to the Federal bench is, in my view, one 

of the body’s most important functions. It is our obligation, as 

members of the U.S. Senate, to carefully examine judicial nominees 

and determine for ourselves whether they are qualified for the positions that they have been nominated for. 

While I realize that my colleagues approach this process with different criteria, I firmly believe that Susan Carney is, by any measure and any criteria, imminently qualified to serve on this most important circuit court. 

Since her graduation from Harvard Law School in 1977, Susan 

has enjoyed a diverse and illustrious legal career that has taken 

her from government service to private practice to the halls of some 

of the most prestigious education and research institutions in the 

world. 

Having graduated magna cum laude, Susan clerked for Judge 

Levin Campbell on the first circuit court of appeals, following a distinguished career in the private sector, where she represented large 

nonprofit organizations on behalf of a variety of firms in Washington, DC, Los Angeles and Boston. 

Susan Carney was hired as the associate general counsel for the 

Peace Corps in 1996 and after 2 years of performing important 

legal work for that agency, Susan joined the office of general counsel at Yale University in New Haven, Connecticut. 

Since 2001, Susan has served as Yale’s deputy general counsel 

and done so with great distinction, I might add, Mr. Chairman. It 

is the second highest ranking legal position at the university. In 

her capacity, Susan has worked on a broad array of legal matters 

that come before the university, from international affiliations and 

transactions to research, intellectual property, technology transfer, 

and compliance issues. 

Throughout her career, Susan Carney has developed a professional versatility and breadth of legal knowledge well suited to 

serve on the second circuit court of appeals. And perhaps even 

more important, I believe she has exhibited the kind of temperament and unflinching respect for the rule of law that are absolutely 

critical components, in my view, of serving on the Federal courts. 

Last fall, before she was nominated by President Obama, I had 

the wonderful opportunity to spend time with Susan in my office 

in Hartford, Connecticut. Among the many topics, including, obviously, the Peace Corps—I served as a volunteer and she served as 

legal counsel—it came up during that conversation. 

We talked about my father’s service at the Nuremberg trials in 

1945 and 1946 and how the Nuremberg trials are a powerful example of our Nation’s commitment to the rule of law. And during that 

meeting, Susan reiterated her commitment to that ideal. I have no 

564 

doubt whatsoever that, if confirmed, that commitment to the rule 

of law will define her service as a Federal judge on the second circuit court of appeals. 

So, Chairman Durbin and Senator Sessions, Senator Franken, as 

well, has joined you on the Committee here, I am certain that during the course of this afternoon’s hearing, Susan’s excellent qualifications will be closely and fairly scrutinized. It is my hope and 

confidence that following the Committee’s consideration, the full 

Senate will be able to move forward expeditiously in confirming 

this superb nominee to serve on this most important circuit court. 

I thank the Committee. 

Senator DURBIN. Thank you, Senator Dodd. 

I received a note here, and I would ask the indulgence of the 

other members. Congressman Schock, I believe, has a roll call vote 

that ends very shortly and I would like to give him an opportunity 

to say a few words before he has to depart. 

PRESENTATION OF JAMES E. SHADID, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS 

BY HON. AARON SCHOCK, A U.S. REPRESENTATIVE FROM 

THE STATE OF ILLINOIS 

Representative SCHOCK. Thank you very much, Senator Durbin. 

I appreciate that. And to my fellow panelists, I appreciate you indulging me. 

Once again, thank you, Senator Durbin and members of the 

Committee, for allowing me to share with you my reasons for enthusiastically supporting President Obama’s nomination of State 

Circuit Court Judge James Shadid as a Federal district court 

judge. 

Jim Shadid is from my hometown of Peoria, Illinois. But that is 

not why I am here to support his nomination. I want to make clear 

that my support is not perfunctory support for someone who is simply from my district. I am here because State Circuit Court Judge 

James Shadid has been an outstanding circuit court judge, by every 

measure. 

In fact, I believe he is a role model for what it takes to clear 

backlogged cases and efficiently running the courts; and, more importantly, he is also a role model for fairness, justice, and protecting the public. 

James Shadid has the perfect temperament to serve the public 

as a judge. He comes to trials with no preconceived notions and is 

abundantly fair, has deep insights into the law, and has always ensured criminal defendants a fair trial. If and when those defendants have been found guilty, Judge Shadid’s sentencing for violent 

criminals has been consistent. He is a tough, no nonsense, clearheaded judge, who has handed down thoughtful, but tough sentences. 

In a well known case in my hometown of Peoria, a defendant was 

on trial for shooting a gun into a crowd at one of Peoria’s high 

schools. The defendant was found guilty. Judge Shadid sentenced 

him to 24 years in prison. 

The sentence was appealed and the appellate court found that 

Judge Shadid placed an undue emphasis on the fact that the shootVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00572 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
565 

ing took place in a school, reversed the sentence, and remanded the 

case back to Judge Shadid for re-sentencing. 

The appearance of the appellate court pressing Judge Shadid to 

go easier on the defendant’s sentence was plain for all to see in our 

community. Yet, Judge Shadid carefully considered the appellate 

court’s ruling, clarified the legal basis on the sentence, and once 

again came down with a sentence of 24 years in prison for the defendant. 

Our circuit court, misdemeanor court, was notoriously backlogged 

with cases for a very long time. The average turnaround time was 

8 months. Though he was in a position to focus on other sometimes 

more interesting types of cases, Judge Shadid volunteered to step 

up and take on the mess. He swiftly eliminated the backlog and 

put in place a more efficient process that has radically improved 

the functioning of our misdemeanor court. 

Judge Shadid goes above and beyond the call of duty, even in his 

judgeship, by holding mock trials in partnership with local high 

schools. This has given students invaluable insight into the criminal justice system, and I personally know of many young people 

whose lives have been turned around by Judge Shadid’s admirable 

efforts to help at-risk youth. 

All in all, I do not believe it is possible to find a better person 

to serve as a Federal court judge. I commend Senator Durbin for 

his recommendation of Judge Shadid and President Obama for 

nominating James Shadid to serve the public as a Federal district 

court judge in Illinois. 

Once again, I thank the Committee for your consideration. 

Senator DURBIN. Thank you, Congressman Schock, and I know 

you have to leave. We understand that. 

Representative SCHOCK. Thank you. 

Senator DURBIN. I would now like to recognize Senator Chambliss from Georgia. 

PRESENTATION OF AMY TOTENBERG, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE 

STATE OF GEORGIA 

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

Senator Sessions, Senator Franken, and other members of the 

Committee. 

I am very pleased to be here today to introduce to the Committee 

Amy Totenberg, who has been nominated to serve as a district 

court judge for the Northern District of Georgia. My colleague, Senator Isakson, joins me here, obviously. 

This must be the day for Harvard graduates, as Ms. Totenberg 

is a graduate of Radcliffe College at Harvard, as well as Harvard 

Law School. She came to Atlanta in 1977, after attending Harvard 

Law School, began working at the Law Project in Atlanta, where 

she concentrated on constitutional rights litigation. 

She has been a solo practitioner in Atlanta for some 20 years and 

in addition to specializing in constitutional law, Ms. Totenberg has 

become a well known arbitrator and mediator, particularly in employment and civil rights cases. She served as a court-appointed 

monitor and mediator for the U.S. district court here in the District 

566 

of Columbia and has also served as a special master for the U.S. 

district court in Maryland on an institutional education reform 

case, an area of the law where she has an awful lot of expertise, 

as she served as general counsel to the City of Atlanta’s Board of 

Education from 1994 to 1998. 

She also has a background in academia, having taught at Emory 

University, one of our great law schools, as an adjunct professor 

from 2004 through 2007. She has also been deeply involved in our 

community. Ms. Totenberg has sat on the State Personnel Board, 

chaired a special advisory education committee to the Georgia 

State Board of Education, served as a member of the Governor’s 

Educational Reform Commission, presided over the Georgia Center 

for Law and Public Interest, and given her time to Hands-On Atlanta, the city’s largest volunteer service program. 

She has a wealth of experience both inside the courtroom, as well 

as outside the courtroom, and I am very pleased to be here to recommend her today. 

Thank you. 

Senator DURBIN. Thank you, Senator Chambliss. 

Senator Isakson. 

PRESENTATION OF AMY TOTENBERG, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA BY HON. JOHNNY ISAKSON, A U.S. SENATOR FROM THE 

STATE OF GEORGIA 

Senator ISAKSON. Thank you very much, Senator Durbin. And I 

want to thank the Ranking Member and Chairman Leahy for offering us the opportunity to be here today to introduce Ms. Totenberg. 

I am not an attorney and I am certainly not going to repeat the 

resume introduction of Senator Chambliss, but I would add that 

the Senator and I chair a six-member judicial review committee 

that reviews all the nominees presented in Georgia, and they recommended that Ms. Totenberg be presented to you for consideration for the Northern District of Georgia. 

I do, however, have one bit of knowledge or expertise in an area 

where Ms. Totenberg has been eminently qualified, and that is in 

the area of public education. And I would note that today in the 

audience are two district court judges from the District of Columbia 

who have often called on Ms. Totenberg to serve them both in arbitration and mediation, as well as opinion on education law. 

So I am pleased to join Senator Chambliss today to commend Ms. 

Totenberg to the Committee for their consideration, and I thank 

you for your time. 

Senator DURBIN. Thank you, Senator Isakson. 

Delegate Eleanor Holmes Norton. 

PRESENTATION OF JAMES E. BOASBERG, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA AND 

AMY B. JACKSON, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE DISTRICT OF COLUMBIA BY HON. ELEANOR 

HOLMES NORTON, A U.S. REPRESENTATIVE FROM THE DISTRICT OF COLUMBIA 

Representative HOLMES NORTON. Thank you very much, Chairman Durbin, Ranking Member Sessions. 

567 

I am pleased to introduce two exceptionally well qualified nominees for the U.S. District Court for the District of Columbia. 

As you know, we do not have Senators in the District of Columbia, but I have appreciated that President Obama has granted me 

the courtesy to recommend the U.S. attorney, the district court 

judges, and similar Federal law enforcement officials. In turn, I 

have sought to empower the residents of the District of Columbia 

by forming a 17-member commission of lawyers and laymen to investigate and vet and recommend to me candidates, and I consider 

only candidates who have come through my judicial nominating 

commission. 

I am particularly proud of the two nominees before you today. 

Judge James Boasberg now serves as an associate judge for the 

District of Columbia Superior Court. Before that, he was an assistant attorney for the District of Columbia for some years and in private practice. 

He clerked for Dorothy Nelson of the United States Court of Appeals for the Ninth Circuit, has his degrees from Yale College, Yale 

Law School, and Oxford University. 

Amy Berman Jackson is a top practitioner in one of the District’s 

top law firms, where she specializes in complex criminal and civil 

trials, litigation and appeals. Ms. Jackson also served as an assistant United States attorney for the District of Columbia, winning a 

number of awards from the Department of Justice while she was 

there. 

Ms. Jackson is a cum laude graduate both of Harvard College 

and Harvard Law School. 

The District of Columbia is the home of a plethora of highly 

qualified lawyers. Mr. Chairman, I believe that the two nominees 

I introduce today would be rated among the best by their own 

peers. 

Thank you very much. 

Senator DURBIN. Thank you, Delegate Norton. I appreciate that 

very much. 

PRESENTATION OF JAMES E. SHADID, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS 

AND SUE E. MYERSCOUGH, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS BY HON. 

RICHARD DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. I would like to say a few words about the two 

nominees from Illinois, Jim Shadid and Susan Myerscough, who 

have been nominated to fill judgeships in the U.S. District Court 

for the Central District of Illinois. 

I am going to appeal to Senator Sessions after this hearing, assuming a favorable outcome, because we only have one active status district court judge in the Central District of Illinois. The remaining three judgeships are currently vacant. It is a large district 

and one judge just cannot handle it. 

The Administrative Office of the U.S. Courts has determined that 

the Central District vacancies are a judicial emergency. So we are 

hoping for a timely consideration, if the nominees are approved by 

the Judiciary Committee. 

568 

A word about Jim Shadid. As Congressman Schock has said, he 

is highly regarded in the Peoria community for his service on the 

state bench. He is seeking the seat that was vacated when Judge 

Michael Mihm took senior status. 

Jim Shadid is a leading figure in the Peoria legal community. He 

was born in Peoria and many believe he got his start in life in a 

favorable way because he knew how to play ball. Specifically, he 

was quite a baseball player for the Bradley University Braves. He 

was a two-time team MVP and inducted into the Bradley Athletics 

Hall of Fame. 

After graduation, he played a season of minor league baseball, 

and then turned his talents to the law. He was first appointed as 

circuit judge in 2001; won retention elections, which require 60 percent of the vote, I might add, in 2002 and 2008; presided over 300 

trials and thousands of pleas and sentencing. 

Prior to his service on the state bench, he worked as an attorney 

in private practice, public defender, commissioner on the Illinois 

Court of Claims, and assistant attorney general. 

In addition to his broad experience on the bench and in the law 

office, he has an impressive record in the Peoria community, tenure 

as president of the Boys and Girls Club, and has service on the 

boards of numerous other organizations. 

Finally, I will note that Judge Shadid was the first Arab-American to serve as a state judge in Illinois. Upon his confirmation, if 

the Committee gives approval, he will be the only Arab-American 

Federal judge in our state. 

There is a large Arab-American community in Peoria, including 

my friend, former colleague, and current Secretary of the Department of Transportation, Ray LaHood. So I know this community is 

very proud of Judge Shadid. 

A word about Sue Myerscough. She has been nominated to fill 

the Springfield-based seat vacated by the retirement of Judge 

Jeanne Scott, who has long been a prominent figure herself on the 

Springfield legal landscape. 

Sue Myerscough has over 23 years of judicial experience, currently serves as an elected justice of the Illinois Fourth District Appellate Court. 

A native of Springfield, she earned her BA and law degree from 

Southern Illinois University and began her career as a law clerk 

for Judge Harold Baker of the Central District. Following that, she 

was in private practice for 6 years. She was appointed as associate 

judge in 1987, elected full circuit judge in 1990; and, during her 11 

years as trial judge, she presided over thousands of bench and jury 

trials, including the most complex civil litigation and murder trials. 

In 1998, Justice Myerscough was elected to her current seat on 

the Illinois appellate court; in 2008, won her retention election; 

and, during her 12 years on that court, has authored over 1,200 decisions on a wide range of issues. 

She has worked actively to promote legal education for school 

children and, since 2001, has served on the board of visitors for the 

SIU Law School. Since 1994, she has served as adjunct professor 

at the SIU School of Medicine, an institution where I also had the 

privilege of a non-paid teaching job. 

569 

Justice Myerscough was first nominated to serve as Federal district court judge 15 years ago, but never reached the point of a 

hearing. 

Today is an important step, Judge Myerscough, and thanks for 

your patience. You have waited a long time, and it is my pleasure 

to welcome you and your family here today. 

If there are no further introductions from my colleagues and others, I thank those who did come to introduce the nominees, and 

they will be excused to return to their important duties. Thank you 

all. 

Now, first, we will consider Circuit Court nominee Susan Carney, 

and she will be brought to the table individually and questions will 

be asked, and then we will bring the other nominees forward. 

Before she is seated, it is the custom of the Committee to administer an oath before testimony. So if you would please repeat after 

me. 

[Nominee sworn.] 

Senator DURBIN. Thank you. Let the record reflect that the nominee has answered in the affirmative. 

So, first, I would like to give you, Ms. Carney, an opportunity to 

introduce family and friends who may be in attendance. 

STATEMENT OF SUSAN L. CARNEY, NOMINEE TO BE UNITED 

STATES CIRCUIT JUDGE FOR THE SECOND CIRCUIT 

Ms. CARNEY. Thank you very much. I’d also like to thank the 

Chairman, the Ranking Member, yourself, Senator Durbin, Senator 

Dodd for his generous introduction, Senator Franken, with whom 

I met this morning, and the rest of the Committee for their time 

and consideration of my nomination. I would also like to thank 

Senator Birch Bayh, whose presence here today honors me. 

If I could introduce my family members who are here, they could 

stand up perhaps. My husband, Lincoln Caplan, my husband of 31 

years; my daughter, Molly Caplan; my mother, Cleo Carney, a veteran and recently retired from her long-time work; my two aunts, 

Dr. Maria Olgas, a nurse and professor of medical surgical nursing 

in Richmond, Virginia; my Aunt Kassie Olgas, long-time operating 

room supervisor in the Veterans’ Administration, including at 

Hines Memorial Hospital. 

My sister-in-law, Joanna Caplan; her husband, Bob Blaemire, 

worked for Birch Bayh. My brother, Scott Carney; my mother-inlaw, Kit Caplan. And I’d also like to acknowledge my four other 

brothers who are watching from other venues, my 14 nieces and 

nephews, my sisters-in-law, and my extended family. 

I’m very fortunate in having a large and wonderful family and 

wonderful colleagues at Yale and elsewhere, as well. So thank you 

very much. 

Senator DURBIN. Thank you. 

Ms. CARNEY. One last thing. I did want to mention my father, 

who died 8 years ago. He was the first lawyer I knew and gave me 

my first lessons in the law, and he would have been very proud to 

be here today. 

Senator DURBIN. Thank you very much for that recognition. I 

might also add that we will, without objection, include statements 

in the record relative to nominees by Senator Joe Lieberman on beVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00577 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
570 

half of Susan Carney, before us now, and a statement also being 

made by the Chairman of the Committee, Senator Pat Leahy, will 

be entered, without objection. 

[The statements of Senator Lieberman and Chairman Leahy appears as a submission for the record.] 

Senator DURBIN. I will ask first and then defer to my Ranking 

Member here, Senator Sessions. 

You have got an interesting background in the clients that you 

have had, the work that you have done in the legal field, general 

counsel’s office at Yale University, associate general counsel of the 

Peace Corps. But sticking with the topic which I raised in relation 

to Judge Shadid, you provided representation for the Major League 

Baseball Players Association in the unfair labor practices action 

against the baseball owners during the 1994–1995 baseball strike. 

To the relief of myself and baseball fans everywhere, the litigation ultimately resulted in the ending of the players’ strike. Tell us 

about your role in that litigation. 

Ms. CARNEY. I had worked at the law firm of Bredhoff and Kaiser in those years with George Cohen, who is now the director of 

the Federal Mediation and Conciliation Service, and Virginia Seitz, 

in particular, on briefing issues to the National Labor Relations 

Board about whether a Section 10(j) injunction should issue to prevent the unilateral imposition of the salary cap that the owners 

were considering at the time. 

That effort, the briefing effort, I worked on researching and writing the briefs with my colleagues at Bredhoff and Kaiser. That resulted in an opinion by the National Labor Relations Board in 

favor of the injunction. 

The injunction was subsequently sought and granted by now Justice Sotomayor in New York. 

Senator DURBIN. So you have friends in high places. And you 

also did a lot of work with intellectual property, which is something 

we discuss at length in the Judiciary Committee. It is a very difficult, complicated issue, but very important, as well. And you did 

a lot of work on intellectual property law, particularly when you 

were serving as general counsel at Yale. 

How would that experience in this complicated area of law enhance your perspective as a Federal judge? 

Ms. CARNEY. I served as acting general counsel for about 6 

months and in my—throughout the 12 years I’ve been at Yale, I’ve 

worked on intellectual property issues, including patent law and 

copyright law. 

With all the technological change that we have been experiencing, the law has been changing rapidly in those areas. And 

there are areas that are subject to consideration by this body 

that—the Patent Reform Act, for example—that I think the experience I have in licensing, working on licenses for the university, 

working on issues related to the Digital Millennium Copyright Act, 

for example, that experience would serve me in good stead, as 

those issues are presented to the second circuit. 

Senator DURBIN. I would like to ask you my last question, a general question, so that it will be part of the record. 

Tell us about the pro bono and civic work that you have done 

even as you pursued your legal career. 

571 

Ms. CARNEY. I have focused—not having been a litigator in recent years, but more supervising litigation, although I started as 

a litigator, I have focused my pro bono work on community service 

through board memberships, largely, providing guidance and counsel, as I have participated in New Haven youth soccer and so on. 

I did work extensively on one pro bono matter here in the District of Columbia when I was a resident here, but by appointment 

of Judge Frank Burgess in the D.C. superior court. 

So I have kind of scattered my pro bono efforts in those ways. 

I think community service is very important and I’ve always tried 

to find ways to contribute. 

At the moment and last year, I’ve been serving as a reading 

tutor. So it hasn’t been legal activity, but community involvement 

in that way. 

Senator DURBIN. Thank you very much. 

I am going to recognize my colleague, Senator Sessions. And at 

the beginning of the hearing, I noted that if you had an opening 

statement, we would be happy to enter it as part of the record at 

the appropriate place. 

Senator SESSIONS. Well, I will do that and would just note that 

we are moving nominees through the Committee at a rather good 

rate, and I will definitely be amenable to your request for your 

judges. They both seem to have good backgrounds. So we will look 

at that. 

But President Obama’s nominees to the district court have waited an average of 49 days for a hearing. President Bush’s nominees 

to the district courts have waited 89 days, on average; 28 of those 

nominees had not received a hearing at this point in the process, 

and, likewise, we are moving at a pretty fast pace. 

So you and the Chairman are keeping us busy. We are keeping 

up. The President is taking somewhat of his time in making nominations. He should not rush. But of the 85 district court vacancies 

today, only 33 do we have nominees from. So we cannot confirm 

people when we do not have a nomination. 

But we should take the time to review them carefully because it 

is a lifetime appointment. It is not an election. It is the confirmation process and it is the only opportunity the American people 

have to make sure the nominees are well qualified before they are 

launched on the public, for good or ill. 

Judge Shadid, I see you are a good baseball player. The only 

thing better would be a good umpire. I think baseball is a good experience for a Federal judge. A neutral umpire would be pretty 

good, although I noticed some of my colleagues did not like the idea 

of a neutral umpire in the last confirmation hearings that we have 

had. 

Ms. Carney, you have had about 12 years now as Yale’s lawyer 

and I understand that you have not tried or litigated any cases before the court. Have you ever tried a case yourself as lead counsel 

or actually been in the trial where you participated in examination 

of witnesses or arguments before a jury? 

Ms. CARNEY. I have been primarily an appellate lawyer, Senator 

Sessions. I have participated in one hearing in which I examined 

witnesses and I participated in several depositions, but I have not 

tried a case to conclusion. 

572 

As I said, my focus has been on appellate lawyering. 

Senator SESSIONS. Have you argued before the court of appeals 

a case? 

Ms. CARNEY. I have not. 

Senator SESSIONS. Nor the Supreme Court. 

Ms. CARNEY. No, sir. 

Senator SESSIONS. Well, it is a lack. It is not a disqualifying lack. 

But to me, I think normally we would expect a judge to the United 

States Court of Appeals, one step below the Supreme Court, to 

have some experience in the courtroom or in the appellate arena. 

Do you think that is a handicap to you and do you have any 

plans as to how you might overcome that? 

Ms. CARNEY. Senator, I don’t see it as a handicap. I would have 

preferred to have that experience given where I am at the moment, 

but I started out as a clerk for an esteemed Federal circuit judge, 

Levin H. Campbell, worked on many opinions with him, for him. 

Of course, the result was his. 

I worked on appellate briefs, including Supreme Court briefs, extensively in the first chapter of my career when I was a lawyer 

here in Washington. I have continued to be involved in litigation 

since then, more as a supervisor or a co-counsel, on activities for 

the Peace Corps and for Yale. 

And I believe that the breadth of experience that I have as a government lawyer, in private practice, and now as an in-house counsel for a major research university gives me broad exposure to the 

legal issues that are likely to come before the court of appeals. And 

so I do feel that I’m qualified for this position. 

Senator SESSIONS. I would just say I do believe you learn something from actual participation before a judge. If you want to be a 

judge, you normally like to have seen one in action. And I do think 

that we should—that is a factor that weighs in my evaluation of 

a nominee. 

I will not attempt to express the things that you can learn from 

that actual experience, but one of the things is that a lawyer who 

has practiced a lot or a judge who has been on the bench for a 

while, I think, understands that they are not policy-setting officials. 

They have to decide the discreet dispute before them and that is 

what the parties expect and when they get away from that, they 

are damaging the system and they are not as effective as they 

should be. 

You have had very little criminal experience. Are you familiar 

with the sentencing guidelines and describe your understanding of 

the sentencing guidelines, the importance that they play in the 

criminal judge system and Federal court, and the degree to which 

you feel guidelines should be followed. 

Ms. CARNEY. I am familiar with the sentencing guidelines. I believe that they brought an important consistency to Federal sentencing throughout the United States after years of great inconsistency. 

I’m familiar with the Booker decision that held that they were— 

these guidelines were no longer mandatory, but were advisory, and 

I believe the second circuit has extensive case law with regard to 

the guidelines and requires its district court judges to apply and 

573 

calculate the sentences and the sentencing range that would be applicable were the guidelines still mandatory and that the practice 

is of deferring and giving weight to the guidelines in sentencing. 

Senator SESSIONS. Have you formed an opinion about your personal view as to the respect the guidelines should be given? 

Ms. CARNEY. Well, if I were so fortunate as to be confirmed, Senator Sessions, I would follow the Supreme Court law and the court 

of appeals law in the second circuit about implementing the guidelines in the post-Booker environment. 

Senator SESSIONS. Well, I agree with you that they are valuable, 

too. There is no doubt it has reduced the disparity in sentencing 

and you have to know, which perhaps you have not had the experience to know, but judges in the very same courthouse, often on the 

same floor, were giving dramatically different sentences for the 

very same offenses. And it is like which judge you knew depended 

on whether you got probation or 10 years in jail, and that is what 

this Committee, before I got on it, from Senator Kennedy to Senator Thurman and Senator Biden and others agreed was an untenable position. 

So we moved to the guidelines, but there is an erosion of their 

power by recent Supreme Court decisions. And I hope that as you 

wrestle with those issues that come before you, you will understand 

that there is a danger in deferring too readily to unsupported views 

of a trial judge who just may not be willing to—does not want to 

be consistent. 

Tell me about your view on the death penalty. Have you expressed any views on that and do you have an opinion as to its appropriateness? 

Ms. CARNEY. If I were to be confirmed, Senator Sessions, I would 

apply the law as it—as I read the law, the law of the second circuit 

and of the Supreme Court, and I feel comfortable doing that. 

Senator SESSIONS. Have you expressed an opinion on the death 

penalty as to whether or not you think it is an appropriate sentence and if the legislature should or should not pass it? 

Ms. CARNEY. I have not. 

Senator SESSIONS. And you are prepared to enforce it, regardless 

of your personal views, in a fair and effective way. 

Ms. CARNEY. Yes, Senator, I am. 

Senator SESSIONS. We have had a good bit of discussion about a 

judge allowing empathy or their feelings for how the law affects the 

daily lives of American people in their decisionmaking process. 

Do you believe a judge should allow their own personal, political, 

moral, religious or social values to influence their decisionmaking 

process? 

Ms. CARNEY. Senator, I believe the job of a judge is to objectively 

apply the—and neutrally apply the law to the fact as found before 

him or her, as presented. 

Senator SESSIONS. I know Justice Sotomayor rejected President 

Obama’s empathy standard, as it came to be known, saying, quote, 

‘‘We apply the law to the facts. We don’t apply feelings to facts,’’ 

closed quote. 

Do you agree with that comment? 

Ms. CARNEY. Yes, Senator. 

574 

Senator SESSIONS. Well, thank you for these comments. I will be 

submitting, I am sure, some additional questions for the record. 

I will note, for all of the nominees and for the people in the audience, that you have to go through a pretty rigorous examination before you get to this chair. You have to meet with Department of 

Justice, you meet with the White House lawyers, you are reviewed 

by the ABA, the FBI does a background check, all of which is available to us and we evaluate in our analysis of the nominees. 

So I would just say that we feel a responsibility, all of us do, I 

think, on the Committee to make sure that we fulfill that duty 

carefully before we cast our vote. 

Thank you very much. 

Ms. CARNEY. Thank you, Senator. 

Senator DURBIN. Thank you, Senator Sessions. 

Senator Franken. 

Senator FRANKEN. Ms. Carney, as Senator Sessions mentioned 

and as you acknowledged, you have never tried a case to verdict. 

But as you replied, you have had a pretty substantial appellate 

practice. 

How many Federal appeals have you worked on? 

Ms. CARNEY. Senator Franken, I’m not exactly sure. I haven’t 

done the count. I’ve worked on some appeals at Yale. I have 

worked on appeals when I was in practice in Washington. Maybe 

it’s 15 cases. I couldn’t say. 

Some of those—that includes a Supreme Court case, which involves a petition for certiorari and so on. 

Senator FRANKEN. But this is an appeals court and you have had 

somewhere in the ballpark of 15 appeals. 

Ms. CARNEY. I couldn’t say for sure, but I think that would be— 

that doesn’t include the experience I had when I was clerking for 

Judge Campbell and the other brief-writing that I participated in, 

which is a similar exercise. 

Senator FRANKEN. How many Federal appellate briefs have you 

written? 

Ms. CARNEY. I, again, would think it’s around 15, but that’s appellate brief. Similar would be motions for summary judgment, motions to dismiss, arguing legal standard and analyzing cases in the 

motions practice, which more characterizes the litigator’s practice 

this day than a trial practice, which my father engaged in. 

Senator FRANKEN. And this is an appellate court, obviously, that 

you—— 

Ms. CARNEY. Yes, Senator. 

Senator FRANKEN (Continuing). Have been nominated for. So 

that experience is very relevant, I would think. 

Ms. CARNEY. Yes, Senator. 

Senator FRANKEN. Now, Senator Sessions was talking about the 

job of a circuit judge is to apply the law, and I would think that 

could well be described—since you are abiding by decisions that are 

made by the Supreme Court, that the appellate judge really is an 

umpire, more or less. 

Ms. CARNEY. Well, I think that the job is—— 

Senator FRANKEN (Continuing). Maybe more so than a Supreme 

Court justice. 

575 

Ms. CARNEY. I think that the job is to apply the law to a record 

that’s established in the district court and because the facts are 

found below and the Supreme Court is directive above and one is 

surrounded by precedent, there are fairly narrow margins for—— 

Senator FRANKEN. Interpretation. 

Ms. CARNEY (Continuing). Interpretation, exactly. 

Senator FRANKEN. Right. So that, in a way, really is—it is narrow because it has really been defined by decisions that you adhere 

to. You are always going to be applying the decisions that have 

been made by the court, by the Supreme Court and by the appellate court, before you, right? 

Ms. CARNEY. Yes, Senator. 

Senator FRANKEN. So in that way, very much like an umpire, 

and I think that Senator Sessions can take great solace in that. 

On the Supreme Court, then, you do not have to answer this, but 

it seems to me that you are almost defining the strike zone and it 

is almost an entirely different job. I would not expect you to want 

to even get into that. 

But an important part of your work, if you are confirmed, is to 

interpret our work in the Congress. When you are interpreting a 

statute, what will you do to make sure that you are interpreting 

the law in line with our intent? 

Ms. CARNEY. I would start with the text of the statute. I would 

look to other judicial interpretations of the statute, starting with 

the Supreme Court, of course, and within the second circuit, as 

well as collegial circuits and, from the text and the interpretations 

that had already occurred, work to understand the Congressional 

intent and to apply it as Congress intended. 

Senator FRANKEN. Well, let me ask one last one. In the 1990’s, 

mid 1990’s, you represented a workers’ union in Tennessee, after 

its members were exposed to depleted uranium, and I think you 

had an important victory there. 

Can you tell us about that case? 

Ms. CARNEY. That was a case in which workers had walked off 

the job because of a fear of imminent harm from their exposure to 

depleted uranium. They invoked a clause of the National Labor Relations Act, as I recall, that gave them the permission, if you will, 

under the statute to absent themselves in a non-strike situation. 

And there was a debate between the union and the employer 

about whether that clause applied or whether there was really 

something else going on. The firm I was with, Bredhoff and Kaiser. 

After a very long history in the courts and before the National 

Labor Relations Board, the workers’ position was vindicated that 

this was a potential harm to them and that they were justified in 

invoking this section of the statute that Congress had passed. 

Senator FRANKEN. Thank you, Ms. Carney, and congratulations 

on your nomination. 

Ms. CARNEY. Thank you so much. 

Senator DURBIN. Ms. Carney, thank you very much. And since 

there are no further questions for you at this time, we are going 

to excuse you. You probably will receive written questions from 

members who are here today and those who will look over the transcript of the record and your background before reaching their conclusions about your nomination. 

576 

But thank you very much for being here, we really appreciate 

that, and for your family and friends for attending with you. 

Senator Bayh, it is always good to see you and I think that Ms. 

Carney has at least one Senator she might recommend that you 

speak to on her behalf. 

I would thank all those who are here and ask their consideration 

of the fact that we are going to stand in recess. At 3 p.m., there 

is a ceremony involving Members of Congress and the observance 

of the 9/11 anniversary that we just recently noted, I should say, 

and that will probably go until about 3:30 p.m. 

I will try to return promptly at that moment and bring in the 

second panel, put them under oath, and move forward as quickly 

as I can. 

So if there are no objections—I am not sure it would make any 

difference if there were—I am going to ask that this Committee 

stand in recess. 

Senator SESSIONS. Senator Bayh, it is great to see you. Thank 

you for being here. 

Senator DURBIN. This Committee stands in recess. 

[Recess.] 

Senator DURBIN. The Committee will resume consideration of the 

nominees. And if I could ask the district court nominees to stand 

behind your chairs while I administer the customary oath. 

[Nominees sworn.] 

Senator DURBIN. Let the record indicate that all five nominees 

have answered in the affirmative. 

Senator Sessions has told me to start and he will try to return, 

as others will. As you can understand, things come and move about 

here. 

I would like to ask each of you to take a moment and introduce 

your family and friends who are in attendance today, and perhaps 

we will start with Ms. Totenberg of Georgia. 

[The biographical information follows.] 

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619 

STATEMENT OF AMY TOTENBERG, NOMINATED TO BE UNITED 

STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 

GEORGIA 

Ms. TOTENBERG. First of all, thank you very much, Senator and 

members of the Committee, in absentia, for your review and consideration of the application. I’m just deeply grateful, deeply grateful to the President, and, of course, to my Georgia Senators who 

appeared today for their very kind and generous introduction. It is 

a real privilege to be here today. 

I want to start off by, of course, introducing my family who is 

here, both in body and in spirit, and would like to start off by just 

speaking about my father, Roman Totenberg, who will be 100 on 

January 1 and who is not with us today, but who is actually living 

and working in Boston and teaching at Boston University and remains an extraordinary man. 

He first came to this country in 1935 to give his first concert 

here. He had been a concert violinist in Europe and he gave his 

debut concert in Washington, DC and fell in love with this country 

totally, and then with the shadow of Nazi power coming over Europe in the following years, he moved to the United States and 

married my mother. 

He embraced the freedom and democracy in our country, which 

has just really been sort of the hallmark of our experience of citizenship. And he has been a lifelong model of human independence, 

professional dedication, and personal wisdom, and I am deeply 

grateful for the role model he has provided, as well as his affection. 

And I know he will be watching the Webcast when there is somebody at home to manage the technology. 

And my mother, who is no longer alive, would love to be here and 

I honor her in principal, of course, but I’ve got a great gang who 

are here. And first and foremost, my husband, Ralph Green, a man 

for all seasons and my great support, married for 30 years; and, my 

three daughters, Naomi Green, Sonya Green, and Clara Green. 

And I would ask them all to stand up. 

And my husband is hiding out, but that’s all right. He’s got the 

girls for protection. I also have a great daughter, Emily Green, in 

California and she couldn’t join us, because she has a new job 

there. 

And I’ve got wonderful other supports here, as well. I’ve been incredibly fortunate in my life to have worked with Judge Marvin 

Garbis and Judge Paul Friedman from Maryland and from DC, and 

they are both here today, and they have given me an exceptional 

opportunity in life to work with both of their courts in very important cases that benefit the children of the city of Baltimore and 

Washington, DC and have been very difficult cases and complex 

ones. But it’s been an extraordinary opportunity to work with 

them. 

And flowing out of that, I have a great crowd of people from Baltimore and Washington, DC. There are representatives, both council and representatives of the parties in the Baltimore case, from 

the State of Maryland, Baltimore City Schools, and the Maryland 

Disability Law Center are all here, and I would ask them to stand 

up, all that entire group of people. 

620 

And then we also have people from the Washington city schools 

and I am very appreciative of them, as well. And I have my very 

close former colleague from Baltimore, Erin Leff, and my very good 

friend from Atlanta, Midge Sweet, who has traveled up here today, 

and, of course, a host of people in Georgia who I have worked with. 

Thank you so very much, and thank you to all my friends and 

family who are here. 

Senator DURBIN. Thank you. 

Judge Boasberg. 

[The biographical information follow.] 

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Ms. TOTENBERG. And I did forget my sister, Jill Totenberg, and 

that would be like I’m going to be really in trouble. But she’s right 

there. I can hear her whispering. 

Senator DURBIN. Judge Boasberg. 

STATEMENT OF JUDGE JAMES E. BOASBERG, NOMINATED TO 

BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF 

COLUMBIA 

Judge BOASBERG. Thank you very much. I am also very honored 

to be here and would like to introduce my family. I’ll start with my 

father, Tersh Boasberg, who is here. My mother, Sally Boasberg, 

would very much like to be here. She’s, however, in the hospital recovering from cancer surgery, but the good news is she is watching 

on the Webcast, which is being engineered by my sister, Margaret, 

who is with her in the hospital. So they’re watching now. 

My other sister, Melissa Boasberg, is here, and she is also representing my brother, Tom Boasberg, who now has the job that 

now Senator Michael Bennett from Colorado formerly had as the 

superintendent of the public schools in Denver. 

I’d also like to mention my wife, Liddy Manson, who is here, and 

also my children; my son, Daniel, and my twin daughters, Katharine and Anne. And as impressed as they are by this August proceeding, I think they’re even more excited that they got out of 

school early. 

Senator DURBIN. Thank you very much. 

Ms. Jackson. 

[The biographical information follow.] 

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707 

STATEMENT OF AMY BERMAN JACKSON, NOMINATED TO BE 

UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA 

Ms. JACKSON. Thank you, Senator. I would first like to thank you 

and the Committee for considering my nomination and for scheduling this hearing. I would like to thank President Obama for 

nominating me. It’s an extraordinary honor and I will certainly 

dedicated myself, if confirmed, to living up to the confidence he has 

placed in me. 

I would like to also thank Congresswoman Norton not only for 

recommending me to the President, but for establishing a commission and a process that enabled anyone to fill out an application 

and be considered. 

I would like to introduce to you family members who are here 

and mention some who can’t be here. It is very humbling to be in 

this room and realize that it was my grandparents who came here 

on a boat, all four of them, to this country, with nothing, to escape 

oppression. They valued education more than anything else and it 

is through their hard work and their dreams that I sit here today. 

They certainly paved the road for me and it—really carpeted, to 

tell you the truth—and it was their lifelong commitment to service 

and learning and family that has been instilled in me. 

My grandmother, Lena Sauber, who can’t be here, is represented 

by the necklace that I’m wearing. I may be your first nominee to 

ever introduce her jewelry. But I wear that to remember the 

woman who came here, learned the language, became a citizen, 

was a suffragette, raised three daughters, and ran a business, and 

I know that she is connected to me and watching here today. 

With me here today is my mother, Mildred Berman. She is here 

today and I would say she’s always been there. She was the welcoming presence every day when I came home from school to greet 

me and have the perfect snack and in her house, I grew up blissfully unaware that there was anything that I couldn’t do when I 

grew up as long as I got off the phone and did my homework. 

I would like to introduce other members of my family who are 

here to support me. My cousin, Helen Schlossberg-Cohen, and my 

father’s sister, Rose Abelson. 

I’m also supported here today by my husband, Darryl Jackson. 

We met in the U.S. attorney’s office many years ago and we’ve always both been committed to returning to public service. He was 

able to do it when President Bush nominated him to an assistant 

secretary’s position, and I’m very thankful that he has agreed that 

it’s my turn, and that he has supported me every step of the way. 

I, unfortunately, am not joined today by my two handsome and 

brilliant sons, David and Matthew. They have recently been delivered to college and so they’re unable to be here. But I hope that 

they’re watching the Webcast and if not, I am sure it is because 

they are studying very hard. 

I have been blessed as a lawyer to have the good fortune to only 

work at places with people I loved and people I admired and respected. My colleagues—many of my colleagues from Trout 

Cacheris are here. And it’s such a small firm, I think I can say that 

Trout Cacheris is here. 

708 

I am so honored by the fact that Plato Cacheris and my other 

partners have all come. But I would like to especially mention Bob 

Trout and John Richards, who gave me the gift of a lifetime when 

they asked me to join their small firm. And my partner and friend, 

Gloria Solomon, who was the first person I told that I planned to 

fill out the application for Congresswoman Norton and who did not 

laugh and who has been thrilled and supporting me every step of 

the way, along with so many of the women that I count among my 

close friends who are here today, Jennifer Levy, Ruth Kassinger, 

Maureen Asterbody (ph), Susan Morrow, Melanie Ferrara, and my 

many friends who I hope have been able to watch. 

To conclude, I really want to talk the most about the two people 

who can’t be here today; my late brother, Gordon Berman, and my 

father, Barnett Berman. I’ve always been touched by the line in the 

Memorial Prayer that says you honor your loves ones, your lost relatives, by standing up and pursuing the ideals that they stood for. 

My brother stood for using your law degree to pursue justice. 

And my father was not a lawyer. He was a doctor, but he was one 

of those old-fashioned kind of physicians who believed that you 

treat the patient who has the disease and not the disease who has 

the patient. 

He wrote me a letter on my last day of law school and he said 

to me that it was expected that I would use my law degree and the 

gifts that he thought I had for something larger than just private 

concerns. He said, ‘‘Of you, more is expected.’’ 

I have that letter with me today. I know he is here with me 

today and I trust that he would say that this is what he had in 

mind. 

Thank you. 

Senator DURBIN. Thank you very much. 

Judge Shadid. 

[The biographical information follow.] 

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STATEMENT OF JUDGE JAMES SHADID, NOMINATED TO BE 

UNITED STATES DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF ILLINOIS 

Judge SHADID. Thank you, Senator Durbin and Chairman Leahy 

and Ranking Member Sessions and this Committee, for considering 

my nomination and everybody else’s nomination. And on a personal 

note, Senator Durbin, thank you very much for the confidence that 

you placed in me by sending my name on to the President. I appreciate that confidence you have in me and I can assure you that that 

confidence will be well placed. Thank you very much. 

I’m proud to have present with me today my entire family. My 

wife, Jane; my sons, Jim and Joe; my daughter, Maggie. My parents are present, George and Lorraine Shadid. My niece is present, 

Lauren Shadid. Lauren is the daughter of my brother who passed 

from cancer 5 years ago. I’m glad that she was able to come with 

us today. 

My cousin, who lives in the DC area, Tim Unes. And I saw a 

friend, a family friend, who is attending George Mason Law School; 

and, how he got wind of this I don’t know, but he appeared. So I’ll 

introduce him, as well, David Rashid. 

Thank you. 

Senator DURBIN. Thank you, Judge. 

Judge Myerscough. 

[The biographical information follow.] 

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STATEMENT OF JUDGE SUE E. MYERSCOUGH, NOMINATED TO 

BE UNITED STATES DISTRICT JUDGE FOR THE CENTRAL 

DISTRICT OF ILLINOIS 

Judge MYERSCOUGH. Thank you, Chairman. Thank you for presiding today and thank you for the recommendation for this position, as well as Senator Burris. I want to thank the Committee 

members for being here today and for their thorough consideration. 

I’d also like to thank their staff members, because I know they do 

quite a bit of work themselves. 

I’d especially like to thank the President for the nomination and 

the faith he’s put in me and the faith that you’ve put in me for so 

many years. 

And at this time, I’d like to introduce my family and some of my 

friends who are attending. My parents were unable to attend, as 

was my father-in-law, due to health reasons, unfortunately. They 

send their regrets. 

My husband of 35 years is here, Bob Mueller; my two daughters, 

Sarah and Lauren; my older brother, Michael Myerscough; a colleague of yours from many years ago, John Keith; and, as well, 

Tom Lamont, who is the Assistant Secretary of the Army now; and, 

John Michelich, a long-time Springfield resident who has moved 

out here; and, Harry Metz. 

Thank you. 

[The biographical information follows.] 

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Senator DURBIN. Thanks very much. Well, thank you all for the 

introductions of your family and friends who came with you today. 

I know that none of us come here by ourselves. There are many 

things that inspire us and those who stand alongside us on life’s 

journey. 

I will ask a few questions of a pretty general nature, because as 

Senator Sessions mentioned earlier and for the record, you have 

been investigated inside and out. You have been asked the questions by many and you have faced a lot of briefings and other 

things that prepare you undoubtedly for this hearing. 

Some of the members who were not in attendance may have 

their own particular questions that they may ask. 

Ms. Totenberg, one of the most important things for a judge is 

to make certain that they focus on the facts in the courtroom and 

the law and are not influenced by outside sources. 

Can you give the assurance to this Committee that when you 

make your decisions, you will not be affected by anything said on 

NPR Radio? 

[Laughter.] 

Ms. TOTENBERG. I am very proud of my sister, who is not in the 

country right now, and I can assure you that I will not be influenced by her. We have—I have had to operate in the same legal 

world, in a larger sense, for some time, but I am very used to being 

extremely independent and I think that that’s the—obviously, I 

have absolutely complete commitment to implementing the role of 

a district court judge on an independent basis and hearing the 

facts and making my own conclusions based on applicable law and 

without regard to NPR. 

Senator DURBIN. Since there are no Republicans present—well, 

never mind. 

[Laughter.] 

Senator DURBIN. Now, you had an interesting case that you 

served on as a mediator involving a group of students who asserted 

a school district’s prohibition of clothing depicting the Confederate 

flag violated their First Amendment rights. And I take it that this 

took place in Georgia, in Atlanta. 

Ms. TOTENBERG. In south Georgia. 

Senator DURBIN. As the mediator, you had to try to balance the 

school district’s legitimate educational policy interest against the 

constitutional interests of the students. 

Tell me what you took into consideration in that mediation and 

how it ended. 

Ms. TOTENBERG. Well, of course, at one level, you never know 

what happens after you think you’ve got the settlement done. But 

what you had to take into consideration was that the school district 

has a very strong interest in making all students feel comfortable 

and be prepared to focus on the central mission of schools, education, and not to feel that they are subject to humiliation because 

of what somebody else may be wearing on their tee shirt. 

And on the other hand, students have a real First Amendment 

right under Tinker to express their viewpoints. And so the question 

really was how to accommodate those interests so that it would not 

be an impossible situation for other students attending the school, 

for the school district to be in a position where it can say ‘‘We care 

863 

about all students and we want to make all students feel that they 

are learning and functioning in a nondiscriminatory, welcome educational environment. 

And I think the resolution ultimately was some degree of control 

over what the nature of the tee shirts were that the students found 

acceptable, where they could express themselves, but that there 

would be some limits on what would be worn on their tee shirts. 

Now, it’s some years ago, so there may have been some other aspects of the resolution, as well. But I think that was really what 

we were trying to do and because it was a mediation as opposed 

to an arbitration, there was a real opportunity to work with people, 

to talk about what are these interests and how do you need to address these for the future. 

Senator DURBIN. My background here does not say how it ended. 

Ms. TOTENBERG. Well, that’s pretty much how it ended, was that 

there was a—I don’t know what—there might have been attorney’s 

fees or anything else, but they had this resolution where they were 

going to agree; as far as I understood, that there would be some 

policy from the school district that could, to some extent, restrict 

clothing, which is normally allowed, in fact, in school districts to 

have clothing policies; but at the same time, some amount of expressions allowed on the clothing, but it cannot be offensive. 

And so I think that really was the scope of what was going to 

be the expression on the tee shirts was the resolution. 

Senator DURBIN. Judge Myerscough, you spent a number of years 

as a trial court judge, handling civil and criminal cases, and then 

on the appellate court for a number of years, as well, and now 

seeking to return to the trial level in the Federal courts. 

I know you have thought through how that would change your 

approach on the bench. But I would like to ask you the question 

that I will ask the others, as well. 

I had a gentleman named Scott Lassar, who was a U.S. attorney 

in Chicago, who was seeking reappointment and he came for an 

interview before me and Senator Carol Moseley Braun, and I asked 

him, in the Federal court system, in the criminal process, at what 

point are the scales balanced. At what point can the criminal defendant really believe that they have as much power as the prosecutor in terms of asserting their constitutional rights and asserting their innocence, which most do? 

And he said to me, ‘‘When the jury is picked. Until the jury is 

selected, the government has all the power with grand juries, with 

investigations, with the things that can be asked of potential criminal defendants and witnesses.’’ He said, ‘‘The tables are not balanced at that point. The scales aren’t balanced until the jury is 

chosen and at that point, there is balance in the process.’’ 

What is our observation, having been witness to and part of that 

process for so many years? 

Judge MYERSCOUGH. I disagree with him. I believe that the 

scales are balanced from the moment that party walks into my 

courtroom. 

I’ve been a former teacher. I taught French and English. I was 

a litigator. I defended police officers and I defended doctors, lawyers, and then I went on the bench and I held every position there 

is in every docket at the trial court, whether associate judge, crimiVerDate Nov 24 2008 08:49 Jul 28, 2011 Jkt 066720 PO 00000 Frm 00871 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66720.TXT SJUD1 PsN: CMORC
864 

nal, civil. And the last 12 years I’ve spent observing what happens 

in the trial court. 

And I believe that what I can do in the courtroom is what I have 

done for the last 23 years, which is give every litigant my full attention, whether it’s the government or it’s the defendant, and 

apply the law to the facts and give that defendant—if it’s a jury 

trial he wants, a jury trial. And then if he chooses to plead, which 

very often happens in Federal court, then I will apply, as instructed by the Supreme Court, the sentencing guidelines, the commentary to the guidelines, and then listen to the government and 

the defendant in imposing my sentence accordingly and explain the 

reasons for my sentence. 

Senator DURBIN. I think the point he was driving at was before 

the courtroom, before the case comes to the courtroom, whether 

there is a balance or fairness in the process or whether there is 

more power on the government side. 

So before the courtroom, before anyone comes before you, what 

is your impression of the process leading up to that? 

Judge MYERSCOUGH. Well, there is substantially more manpower 

with the U.S. attorney’s office. They’re very talented prosecutors. 

They have a backup in their investigators that does not exist with 

the public defender’s office. 

But I have to say, at least in the Central District, in Springfield, 

in the county court and the U.S. attorney’s office and the public defender’s office, we have exceptional representation for defendants. 

Senator DURBIN. Judge Boasberg, what is your impression? 

Judge BOASBERG. I think that I would agree that the scales are 

not imbalanced to the extent that there are many practices that enable a defendant to even the scales. The government, of course, has 

to obtain an indictment through a grand jury process. They can’t 

simply arrest someone or file a complaint. They actually have to 

get him indicted. 

And as an assistant United States attorney who dealt with grand 

juries on a regular basis, I believe that many are skeptical, that 

many are interested, particularly in the District of Columbia, in 

hearing a great deal about the facts and the law before voting to 

indict. 

After indictment, there’s broad discovery under Rule 16. There 

are Brady obligations the government must comply with, which, 

again, I took seriously as a prosecutor and, if confirmed, would enforce as a judge. And then, of course, there are motions to suppress, 

motions in limine, and other different pleadings that the defense 

can file. 

So that by the time the case is actually queued up for trial, a 

great deal has occurred and then if the playing field is not balanced 

at that point, it’s the evidence that imbalances it rather than the 

procedures. 

Senator DURBIN. Judge Shadid, you were a defense attorney before ascending to the bench. What is your impression? 

Judge SHADID. My impression, Senator, and thank you for the 

question, is that you have to always keep in mind that this is a 

process and that the founding fathers thought of this process and 

built into the Constitution safeguards for criminal defendants in 

865 

the Fourth Amendment, the Fifth Amendment, and a number of 

others. 

And those safeguards although maybe don’t stop initially from a 

grand jury indictment or an arrest, but they are built in so that 

when a competent lawyer is appointed to represent the defendant, 

that the rules and the responsibilities of the government are in 

place to protect that person’s rights and address any wrongs that 

may have occurred. 

Senator DURBIN. Ms. Jackson, along that same line, I had an opportunity—we have an interesting tradition that is about 6 or 8 

years old now that every 2 years, when a new Senate is elected, 

we have dinner with the Supreme Court. 

I do not know who—I think Senator Daschle actually came up 

with the original idea. But it is an interesting trek across the street 

to gather in the hallway of the Supreme Court and to actually sit 

down with a Supreme Court justice for an informal evening. 

I had an opportunity last year to sit with Justice Kennedy and 

I said to him at that point that I was going to be chair of the Crime 

Subcommittee of the Senate Judiciary Committee, which I chaired 

for a short time before Senator Specter took it over. 

I said to him, ‘‘What do you think ought to be my priority? What 

should I look at when it comes to the criminal justice system in 

America, from your perspective?’’ And he said, ‘‘Look at our system 

of corrections, incarceration.’’ He said, ‘‘There won’t be a single justice here, I don’t believe, who wouldn’t agree with me that something needs to be done.’’ 

We incarcerate so many people in America under circumstances 

which many have challenged, and, of course, hope that each one 

has gone through a just process, reaching that conclusion. But for 

some reason, America has such a high level of incarceration in our 

institutions and there are serious questions, in his mind. 

Now, I understand that a judge is not going to set the sentencing 

standards that the Congress is responsible for and is restricted in 

terms of evidence and the rules of evidence and the like. But what 

is your thought, as you reflect on your background as a prosecutor 

and a defense attorney, on those two elements? 

Ms. JACKSON. I think my background leads me to a place where 

I see the role of the district court judge as ensuring that both sides 

get a completely full and fair hearing. I believe strongly in the importance of vigorous law enforcement, but I also believe strongly in 

the presumption of innocence and the rights of a defendant to be 

recognized at trial. 

And fortunately, the policy question of what should be done 

about the corrections system was properly placed in your lap and 

not mine, but I will certainly be attentive to my role to make sure 

that if anyone is committed to that system, it would be after a 

scrupulously fair trial. 

Senator DURBIN. I would like to ask, Ms. Totenberg, you served 

as a monitor or in a special master capacity on two Federal district 

courts. 

Ms. TOTENBERG. Right. 

Senator DURBIN. You were appointed by the DC district court to 

monitor a consent degree involving the city’s special education system and you were appointed by the district court for the district 

866 

of Maryland to serve as special master in connection with litigation 

over the special education system in Baltimore. 

How has your experience working in these capacities prepared 

you or given you some background that would be helpful as a district judge? 

Ms. TOTENBERG. Thank you very much for the question. The experiences in total have given me a very deep understanding, in 

fact, of how to move cases, how to manage cases. 

The opportunity, as I said in my introduction, of working with 

both Judge Garbis and Judge Friedman has been extraordinarily 

educational. We’ve talked about all aspects of the case. They are 

complex cases which involve a variety of phases, and I think that 

that breadth of experience in complex litigation with multiple parties and, frankly, ever-changing proceedings will be extremely helpful in handling some of the more challenging cases that do come 

into the Federal courts, whether they be in the area of antitrust 

or in mass tort cases or in class actions. 

I think it’s really invaluable experience and I feel I have been 

truly tutored by the best. 

Senator DURBIN. Judge Boasberg, my staff had a question prepared here, which said you may or may not remember that I 

chaired your Senate nomination hearing a few years back, but you 

have already reminded me that you did and that I gave a book to 

one of your children at that time, and it is certainly a pleasure to 

see you here today. 

You were confirmed after my hearing by a vote of 98–0, and I 

wish you the same good luck in this undertaking. But I asked you 

at that time in 2002, in your nomination hearing before the Committee on Governmental Affairs, about your thoughts on judicial 

temperament. 

Well, here we are 8 years later and I would like to know what 

you think about what you have seen in a courtroom and how important the temperament issue is when it comes to the administration of justice. 

Judge BOASBERG. Thank you, Senator. I do remember it well. In 

fact, the book that you gave my then 5-year-old son about Abraham 

Lincoln’s top hat is in my briefcase today, although my now 14- 

year-old son, I think, is almost as tall as Abraham Lincoln without 

the hat. 

It’s been something that’s obviously been extremely important to 

me throughout my time. I can say that I’ve never flown off the handle and held anyone in criminal contempt in the 8-plus years I’ve 

been a judge, and I think that judges who are best able to control 

their courtrooms are ones who don’t threaten contempt all the 

time. And I can say that I haven’t threatened it or issued any order 

of holding someone in criminal contempt in my time. 

I think that it’s not always easy for any of us, particularly those 

who have had young children, to be as patient as we would like to 

be all the time, but I have certainly endeavored to do so and have 

endeavored to cultivate such a reputation and would hope to continue that, if fortunate enough to be confirmed. 

Senator DURBIN. Judge Myerscough, the issue of judicial temperament? You were a practicing attorney before you were on the 

bench. 

867 

Judge MYERSCOUGH. I believe it’s very important and I, luckily, 

walk in a long line of predecessors who have shown extreme judicial temperament. I would like to say I have followed in their footsteps with my own temperament. In the last 23 years, I have not 

held anyone in contempt. 

But I think what’s most important in terms of patience is the 

need to move the case should not outweigh the need to listen to the 

parties and to listen to the evidence in the case. 

We do have a backlog, a terrible backlog, and it will be taken 

care of. I will work the extra hours to do that, but I will not do 

that at the expense of shortening the evidence that’s to be presented in my courtroom. 

Senator DURBIN. Judge Shadid, you faced that, did you not, when 

you faced the backlog in your own court? 

Judge SHADID. I did. But if I may, I’m happy to hear Justice 

Myerscough offer to work the extra hours. 

I did face this. We did have a backlog, it was pointed out earlier, 

and the matter was resolved by just, I think, paying attention to 

detail. 

But more importantly or as importantly, I think there are a 

number of qualities that make a fine trial judge and temperament 

has to be one of them. I believe the trial courts are the gatekeeper 

for the public’s first entry into the justice system or the judicial 

system and, as a result, they set the tone for the public’s confidence 

in the system, and I think they do that best by even-handed, fairminded disposition, with a level playing field. 

Thank you. 

Senator DURBIN. Ms. Jackson, you have been in the courtroom 

and seen it from both tables in terms of the issue of judicial temperament. What would you say? 

Ms. JACKSON. Well, I think, certainly, my trial experience has 

given me a good reason to understand the importance of judicial 

temperament. Obviously, I have not served as a judge, but I would 

hope that what my background investigation has revealed is that 

of all the many things that can be said about me, that I am a real 

person and I relate to other people from all walks of life. 

And I think that ability to connect and to understand will inform 

my judging, hopefully, inform my temperament and help me to 

achieve the goal that I have, which is to rule efficiently, because 

I think people are waiting for your rulings, and to rule clearly, because I think people need to understand them. 

Senator DURBIN. Well, I thank you all for your patience and 

waiting while we recessed and returned. And I thank all the 

friends and family who have gathered today on your behalf. 

The record is going to remain open for 1 week for additional letters, statements and questions from Committee members and I 

would ask you, if you receive those questions, to try to respond 

promptly. The process in the Judiciary Committee will undoubtedly 

be explained to you about matters coming on the Committee calendar and then most likely held over a week. So the sooner we can 

complete the record, the better and more likely that if there is a 

positive vote from the Committee—and I hope for all of you there 

will be—that we can move it to the floor for consideration before 

the end of this calendar year. 

868 

I thank everyone for being here today. And this Committee will 

stand adjourned. 

[Whereupon, at 4:07 p.m., the hearing was adjourned.] 

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

869 


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