S. HRG. 111–695, Pt. 8 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 29, and NOVEMBER 17, 2010 

PART 8 

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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66–817 PDF 2011

S. HRG. 111–695, Pt. 8 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 29, and NOVEMBER 17, 2010 

PART 8 

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 

MATTHEW S. MINER, Republican Staff Director 

(III) 

C O N T E N T S 

WEDNESDAY, SEPTEMBER 29, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 324 

Franken, Hon. Al, a U.S. Senator from the State of Pennsylvania ..................... 1 

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

statement .............................................................................................................. 327 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 2 

PRESENTERS 

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

James E. Graves, Jr., Nominee to be U.S. Circuit Judge for the Fifth 

Circuit ................................................................................................................... 7 

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

Saldan ̃ a, Nominee to be U.S. District Judge for the Southern District of 

Texas ..................................................................................................................... 5 

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Diana Saldan ̃a, Nominee to be U.S. District Judge for the Southern 

District of Texas ................................................................................................... 4 

Lincoln, Hon. Blanche, a U.S. Senator from the State of Alamaba presenting 

Paul K. Holmes, III, Nominee to be U.S. District Judge for the Western 

District of Arkansas ............................................................................................. 3 

Pryor, Hon. Mark, , a U.S. Senator from the State of Arkansas presenting 

Paul K. Holmes III, Nominee to be U.S. District Judge for the Western 

District of Arkansas ............................................................................................. 8 

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

James E. Graves, Jr., Nominee to be U.S. Circuit Judge for the Fifth 

Circuit ................................................................................................................... 7 

STATEMENTS OF THE NOMINEES 

Battaglia, Anthony J., Nominee to be U.S. District Judge for the Southern 

District of California ............................................................................................ 137 

Questionnaire .................................................................................................... 138 

Davila, Edward J., Nominee to be U.S. District Judge for the Northern 

District of California ............................................................................................ 195 

Questionnaire .................................................................................................... 196 

Graves, James E., Jr., Nominee to be U.S. Circuit Judge for the Fifth Circuit . 9 

Questionnaire .................................................................................................... 16 

Holmes, Paul K., III, Nominee to be U.S. District Judge for the Western 

District of Arkansas ............................................................................................. 96 

Questionnaire .................................................................................................... 97 

Saldan ̃ a, Diana, Nominee to be U.S. District Judge for the Southern District 

of Texas ................................................................................................................. 239 

Questionnaire .................................................................................................... 241 

QUESTIONS AND ANSWERS 

Responses of Anthony J. Battaglia to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 292 

Responses of Edward J. Davila to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 298 

Page

IV 

Responses of James E. Graves, Jr. to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 304 

Responses of Paul K. Holmes, III to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 311 

Responses of Diana Saldan ̃ a to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 316 

SUBMISSION FOR THE RECORD 

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

statement .............................................................................................................. 321 

WEDNESDAY, NOVEMBER 17, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 806 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota, prepared 

statement .............................................................................................................. 815 

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

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

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 342 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 331 

PRESENTERS 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Michele M. Leonhart, Nominee to be Administrator of the Drug 

Enforcement, Department of Justice .................................................................. 332 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota presenting 

Michele M. Leonhart, Nominee to be Administrator of Drug Enforcement, 

Department of Justice ......................................................................................... 334 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota presenting 

Michele M. Leonhart, Nominee to be Administrator of Drug Enforcement, 

Department of Justice ......................................................................................... 334 

Wyden, Hon. Ron, a U.S. Senator from the State of Oregon presenting Marco 

A. Hernandez, Nominee to be U.S. District Judge for the District of Oregon 

and Michael H. Simon, Nominee to be U.S. District Judge for the District 

of Oregon ............................................................................................................... 335 

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

Steve Jones, Nominee to be U.S. District Judge for the Northern District 

of Georgia .............................................................................................................. 337 

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina presenting Max O. Cogburn, Nominee to be U.S. District Judge for the Western District of North Carolina ............................................................................ 339 

Hagan, Hon. Kay, a U.S. Senator from the State of North Carolina presenting 

Max O. Cogburn, Nominee to be U.S. District Judge for the Western District of North Carolina ......................................................................................... 340 

Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon presenting 

Marco A. Hernandez, Nominee to be U.S. District Judge for the District 

of Oregon and Michael H. Simon, Nominee to be U.S. District Judge for 

the District of Oregon .......................................................................................... 341 

STATEMENTS OF THE NOMINEES 

Cogburn, Max O., Nominee to be U.S. District Judge for the Western District 

of North Carolina ................................................................................................. 344 

Questionnaire .................................................................................................... 345 

Hernandez, Marco A., Nominee to be U.S. District Judge for the District 

of Oregon ............................................................................................................... 387 

Questionnaire .................................................................................................... 388 

Hylton, Stacia A., Nominee to be the Director of the U.S. Marshals Service ..... 652 

Questionnaire .................................................................................................... 653 

Jones, Judge Steve, Nominee to be United States District Judge for the 

Northern District of Georgia ............................................................................... 477 

Page

V 

Jones, Judge Steve, Nominee to be United States District Judge for the 

Northern District of Georgia—Continued 

Questionnaire .................................................................................................... 478 

Leonhart, Michele M., Nominee to be Administrator of Drug Enforcement, 

Department of Justice ......................................................................................... 554 

Questionnaire .................................................................................................... 555 

Saris, Patti B., Nominee to be a Member and Chair of the U.S. Sentencing 

Commission ........................................................................................................... 612 

Questionnaire .................................................................................................... 613 

Simon, Michael, Nominee to be U.S. District Judge for the District of Oregon . 432 

Questionnaire .................................................................................................... 433 

QUESTIONS AND ANSWERS 

Responses of Max O. Cogburn to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 692 

Responses of Marco A. Hernandez to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 699 

Responses of Stacia A. Hylton to questions submitted by Senator Sessions ...... 705 

Responses of Steve Jones to questions submitted by Senators Coburn and 

Sessions ................................................................................................................. 707 

Responses of Michele M. Leonhart to questions submitted by Senators Grassley, Kohl, and Sessions ........................................................................................ 713 

Responses of Patti B. Saris to questions submitted by Senator Sessions ........... 742 

Responses of Michael H. Simon to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 762 

SUBMISSION FOR THE RECORD 

American Bar Association, Kim J. Askew, Chair, Washington, DC, July 15, 

2010, letter ............................................................................................................ 779 

American Federation of Government Employees, AFL–CIO, John Gage, National President, J. David, National Secretary-Treasurer and Augusta Y. 

Thomas, National Vice President for Women and Fair Practices, Washington, DC, November 16, 2010, joint letter ...................................................... 781 

Americans for Safe Access, National Office, Washington, DC., letter ................. 783 

Aron, Nan, Alliance for Justice; Andrea Black, Detention Watch Newtwork; 

Donna Red Wig, Grassroots Leadership; Paul Wright, Human Rights Defense Center; Charlie Sullivan, International CURE; Tracy Vela ́zquez, Justice Policy Institute, Heidi Boghosian, National Lawyers Guild; Ken 

Kopczynski, Private Corrections Working Group and Craig Holman, Public 

Citizen, November 30, 2010, joint letter ............................................................ 792 

Aron, Nan, Alliance for Justice; Silky Shah, Detention Watch Newtwork; 

Donna Red Wig, Grassroots Leadership; Paul Wright, Human Rights Defense Center; Charlie Sullivan, International CURE; Tracy Vela ́zquez, Justice Policy Institute, Heidi Boghosian, National Lawyers Guild; Ken 

Kopczynski, Private Corrections Working Group and Craig Holman, Public 

Citizen, November 15, 2010, joint letter ............................................................ 794 

Bevier-Thiem, T. Alessandra, letter ....................................................................... 797 

Brooks, Ronald E., President, National Narcotic Officers’ Associations Coalition, West Covina, California: 

October 1, 2010, letter ...................................................................................... 798 

November 17, 2010, letter ................................................................................ 800 

Brown, Hon. Scott P., a U.S. Senator from the State of Massachusetts, November 17, 2010, letter ........................................................................................ 801 

Carpino, Louise, President, American Federation of State, County and Municipal Employees (AFSCME), Local 810, Philadelphia, Pennsylvania, November 16, 2010, letter ............................................................................................... 802 

Epstein, Jerry, President, Drug Policy Forum of Texas, Dallas, Texas, letter ... 803 

Federal Law Enforcement Officers Association, J. Adler, National President, 

Washington, DC, November 15, 2010, letter ..................................................... 805 

Franklin, Major Neill, Law Enforcement Against Prohibition, Medford, Massachusetts, statement .......................................................................................... 808 

Fox, Steve, Director of Government Relations, Marijuana Policy Project, 

Washington, DC, November 16, 2010, letter ..................................................... 810 

Health Professionals for Responsible Drug Scheduling, Sunil Aggarwal, 

Founder, San Francisco, California, letter ......................................................... 811 

Page

VI 

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

17, 2010, letter ..................................................................................................... 813 

Kerry, Hon. John F., a U.S. Senator from the State of Massachusetts, statement ...................................................................................................................... 814 

National Fraternal Order of Police, Chuck Canterbury, National President, 

Washington, DC, November 17, 2010, letter ..................................................... 820 

National Sheriffs’ Association, Sheriff B. J. Roberts President, Aaron D. 

Kennard, Executive Director, Alexandria, Virginia, October 27, 2010, letter 821 

Noorani, Ali, Executive Director, National Immigration Forum, Washington, 

DC, November 17, 2010, letter ............................................................................ 823 

National Organization for the Reform of Marijuana Laws (NORML), Allen 

F. St. Pierre, Executive Director, Washington, DC, November 16, 2010, 

letter ...................................................................................................................... 824 

Private Corrections Working Group & Prison Legal News, November 9, 2010, 

article .................................................................................................................... 827

Steenstra, Eric, President, Vote Hemp (VH), Brattleboro, Vermont, July 23, 

2010, letter ............................................................................................................ 831 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, prepared statement ...................................................................................................................... 835 

Wyden, Hon. Ron, a U.S. Senator from the State of Oregon, prepared statement ...................................................................................................................... 836 

ALPHABETICAL LIST OF NOMINEES 

Battaglia, Anthony J., Nominee to be U.S. District Judge for the Southern 

District of California ............................................................................................ 137 

Davila, Edward J., Nominee to be U.S. District Judge for the Northern 

District of California ............................................................................................ 195 

Graves, James E., Jr., Nominee to be U.S. Circuit Judge for the Fifth Circuit . 9 

Hernandez, Marco A., Nominee to be U.S. District Judge for the District 

of Oregon ............................................................................................................... 387 

Holmes, Paul K., III, Nominee to be U.S. District Judge for the Western 

District of Arkansas ............................................................................................. 96 

Hylton, Stacia A., Nominee to be the Director of the U.S. Marshals Service ..... 652 

Jones, Judge Steve, Nominee to be United States District Judge for the 

Northern District of Georgia ............................................................................... 477 

Leonhart, Michele M., Nominee to be Administrator of Drug Enforcement, 

Department of Justice ......................................................................................... 554 

Saldan ̃ a, Diana, Nominee to be U.S. District Judge for the Southern District 

of Texas ................................................................................................................. 239 

Saris, Patti B., Nominee to be a Member and Chair of the U.S. Sentencing 

Commission ........................................................................................................... 612 

Simon, Michael, Nominee to be U.S. District Judge for the District of Oregon . 432 

(1) 

NOMINATIONS OF JAMES E. GRAVES, JR., 

NOMINEE TO BE UNITED STATES CIRCUIT 

JUDGE FOR THE FIFTH CIRCUIT; PAUL K. 

HOLMES, III, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS; ANTHONY J. 

BATTAGLIA, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; EDWARD J. 

DAVILA, NOMINEE TO BE UNITED STATES 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA; AND, DIANA 

SALDAN ̃ A, NOMINEE TO BE UNITED STATES 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS 

WEDNESDAY, SEPTEMBER 29, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:03 p.m., SD–Room 

226, Dirksen Senate Office Building, Hon. Al Franken, presiding. 

Present: Senators Whitehouse, Franken, Sessions, and Cornyn. 

OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR 

FROM THE STATE OF MINNESOTA 

Senator FRANKEN. Good afternoon. This hearing will come to 

order. 

Today we will consider five judicial nominations. First, we will 

hear from Justice James Graves, Jr., who is nominated for circuit 

judge for the fifth circuit. 

Our second panel will consist of district court nominees, Judge 

Diana Saldan ̃ a of Texas, Paul Holmes of Arkansas, Judge Anthony 

Battaglia of California, and Judge Edward Davila, also of California. 

We are fortunate to have some of these nominees’ home State 

Senators here to introduce them, and we will turn to them shortly. 

Before we do, I will turn the floor over to my friend, the Ranking 

Member, Senator Sessions, for his opening remarks. 

Senator. 

2 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. It is good to be 

with you, and have enjoyed serving with you on the Committee. 

You have taken a great interest in these important matters, spend 

time on them, and that speaks well of your approach to law and 

justice in America; and, have had the good judgment to correct me 

on occasion when I have been wrong. 

Senator FRANKEN. Very, very, very rarely. 

Senator SESSIONS. You are very, very nice and kind. 

Senator FRANKEN. Thank you. 

Senator SESSIONS. We have had, I think, a good Committee and 

we try to do our job right. It is the only real opportunity the American people have in a public forum to have the nominees answer 

questions and discuss the issues. 

I have looked at the record of the nominees. I have some concerns. We will discuss some of those today. But we try to be supportive of good nominees, and I have voted for an overwhelming 

number of those. And most have received unanimous votes out of 

the Committee. 

I would like to take a moment to address the notion, that I think 

is mistaken, that district court nominees that the President has 

submitted have been treated unfairly or in an unprecedented manner. On average, Senators have had only 55 days this year to prepare for hearings, that is, from nomination to hearing of district 

court nominees. 

By contrast, during the Bush Administration, Senators had an 

average of 120 days before the district court nominees had a hearing. 

Last week, one of our colleagues raised the question of whether 

or not we are violating tradition when two home State Senators approve a nominee, and he felt that they should get a straight up or 

down vote without delay. But that has not been the tradition, as 

many have suggested. 

Fourteen of President Bush’s district court nominees had the 

support of their home State Senators, but did not get an up or 

down vote, because they were delayed mostly in committee. Thomas Farr of North Carolina had the support of both Senators Burr 

and Dole and waited 757 days and never got a hearing. He was 

rated unanimously well qualified by the ABA, and no concerns 

were ever raised about his nomination. 

Richard Honaker of Wyoming had the support of both Senators 

Enzi and Barrasso and waited 655 days for an up or down vote in 

the Senate, but it never came. He was rated unanimously well 

qualified, the highest rating by the ABA. And the only concerns 

raised were his co- sponsorship of a pro-life bill in 1991, while serving as a Democratic member of the Wyoming House of Representatives. 

Gus Puryear of Tennessee had the support of Senators Alexander 

and Corker and waited 569 days for an up or down vote on the 

Senate floor, but never got it. The ABA rated him unanimously 

qualified, and none of the concerns raised were significant. 

Richard Barry of Mississippi had the support of Senators Wicker 

and Cochran and waited 155 days just for a hearing, but it never 

3 

came. He was rated well qualified by the ABA, and no concerns 

were raised. 

So I just wanted to make that point. We are in a lot of give-andtake and fussing here. So we do have a responsibility, I think all 

of us in the Senate, to make sure the nominees are well treated 

and we do take seriously the support of home State Senators. 

Thank you. 

Senator FRANKEN. Thank you. Thank you, Mr. Ranking Member. 

Senator Cornyn, you are going to speak for your nominee. So I 

guess what we are going to do now is go to my colleagues, who are 

going to speak on behalf of the nominees from their state, and we 

will start with Senator Lincoln. 

PRESENTATION OF PAUL K. HOLMES, III, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS BY HON. BLANCHE LINCOLN, A U.S. SENATOR FROM THE 

STATE OF ARKANSAS 

Senator LINCOLN. Well, thank you, Mr. Chairman and to the 

members of the Judiciary Committee. I certainly want you all to 

know I appreciate the opportunity to appear before you today to introduce an enormously well qualified candidate and nominee, Paul 

K.—we call him P.K.—Holmes, III, who has been nominated to 

serve on the U.S. District Court in the Western District of Arkansas. 

First, I would also like to thank Chairman Leahy for granting 

my request that Mr. Holmes receive a hearing so that the Judiciary 

Committee can learn about P.K. and why he is such an outstanding 

candidate for the Federal bench. 

I would also like to recognize P.K.’s wife, Kay, who is also here 

with us today, and we appreciate always having family with our 

nominees when they come. It is a great opportunity for us to show 

that you get teamwork in Arkansas. And that is what you get out 

of the Holmes, that is for sure. 

P.K. is very well known and very well respected as a lawyer from 

Fort Smith, Arkansas, with a wealth of experience in both the public and the private sector. He is currently a partner at Warner, 

Smith & Harris in Fort Smith, where he also started out as an associate in 1978. 

From 1993 to 2001, P.K. left the firm when President Bill Clinton appointed him and the Senate confirmed him as the U.S. Attorney for the Western District of Arkansas. So he has got great experience and, again, very well qualified, and certainly well respected. 

P.K. is a 1973 graduate of Westminster College in Fulton, Missouri and received his J.D. from the University of Arkansas in Fayetteville in 1978. He is also known as a leader in his community. 

P.K. has been named Lawyer of the Year for the Arkansas Volunteer Lawyers for the Elderly. 

He is on the board of trustees for Lyon College in Batesville, 

which is one of our very esteemed liberal arts colleges in Arkansas. 

And he is an elder and trustee at the First Presbyterian Church 

of Fort Smith. 

Much of that is to tell you that I know P.K. not only as an incredibly professional lawyer, attorney, and certainly a great U.S. 

4 

Attorney from the Western District, but, also, from a family standpoint, we have a tremendous connection. 

My brother-in-law and P.K. were undergraduates together. He 

served as an attorney for my husband’s grandmother, who passed 

away a year ago, a year ago last week, a week shy of 112. So you 

not only know that he is a good lawyer, he has got great patience 

and stamina, as well. 

He received an outpouring of support for his candidacy from Arkansans, who know him both professionally and personally. And 

the dozens of letters and calls that we have received all expressed 

confidence that P.K. has the experience, the intelligence, the character, and fairness that qualify him for a Federal judgeship, and 

many other exemplary qualifies one would hope to find in a nominee, as well. I think you can see that from all of the activities that 

he is engaged with. 

In closing, I would like to thank, again, Chairman Leahy and the 

Judiciary Committee, all of the members here, for allowing P.K. 

Holmes to receive a hearing, and request your full attention, careful consideration of his nomination, and know that he has all of my 

confidence in terms of the incredible job that he can do serving on 

the Federal bench. 

So thank you, Mr. Chairman and Ranking Member Sessions. I 

appreciate your attention, and certainly want to welcome P.K. 

Holmes to the Judiciary Committee and tell him how proud we are 

in Arkansas of him. 

Thank you. 

Senator FRANKEN. Thank you. I hope he can live up to that introduction. 

After my distinguished colleagues make their introductions, feel 

free to go back to your other duties. All of us, I know, have very 

busy schedules. 

So, Senator Lincoln, if you would like to leave us now—you are 

welcome to stay, of course. 

I would now like to recognize the distinguished Senators from 

Texas. Senator Hutchison, thank you for joining us, and Senator 

Cornyn, to introduce Judge Saldan ̃a. 

PRESENTATION OF DIANA SALDAN ̃ A, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS BY 

HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE 

STATE OF TEXAS 

Senator HUTCHISON. Thank you very much, Mr. Chairman. It is 

my pleasure to introduce Diana Saldan ̃ a, who has been nominated 

to serve as a Federal judge for the Southern District in Texas, Laredo, to sit in Laredo. 

Judge Saldan ̃ a received a B.A. in history and government from 

the University of Texas and then received her J.D. degree from the 

University of Texas Law School. 

Judge Saldan ̃ a’s career has given her a breadth of experience, 

and I believe she will serve well on the Federal bench. 

She was born in Carrizo Springs, Texas, only a stone’s throw 

from where she is currently serving as U.S. Magistrate in Laredo. 

Prior to being selected to serve as a magistrate, Judge Saldan ̃ a 

served 4 years as an assistant U.S. attorney. She handled as many 

5 

as 350 active Federal criminal cases, ranging from immigration to 

narcotics to health care. It was in this capacity that she was selected court coordinator for Judge Kazen. 

Before her work in the U.S. Attorney’s office, Judge Saldan ̃ a 

spent time as a lawyer for the U.S. Department Justice in the Civil 

Rights Division and the U.S. Department of Agriculture in the 

General Counsel’s office. She also served as a law clerk to Chief 

Judge George Kazen in the Southern District of Texas. 

Judge Saldan ̃ a has a solid academic foundation, with impressive 

professional experience, and is very respected in the south Texas 

community. I believe she is well qualified and highly competent 

and would be an effective Federal district judge in south Texas. 

I recommend Judge Saldan ̃ a to the Committee. Senator Cornyn 

and I interviewed her and we feel that she is the best qualified 

nominee for this bench. 

Thank you, Mr. Chairman. 

Senator FRANKEN. Thank you very much, Senator Hutchison. 

And, again, feel free to—thank you for appearing and feel free to 

go back to your duties, unless you feel some obligation to listen to 

your junior Senator, which my senior Senator never seems to feel. 

[Laughter.] 

Senator FRANKEN. No, she sometimes enjoys listening to me. 

Senator Cornyn. 

PRESENTATION OF DIANA SALDAN ̃ A, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS BY 

HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 

TEXAS 

Senator CORNYN. Mr. Chairman, I wondered how you were going 

to get your way out of that one, but you did very well. 

Senator FRANKEN. Thank you. 

[Laughter.] 

Senator CORNYN. Mr. Chairman, I am pleased to join Senator 

Hutchison in welcoming Judge Diana Saldan ̃ a of Laredo, Texas, to 

the Senate and to the Judiciary Committee. We want to welcome 

her two sons, who I think are here, Thomas and Luke. Are they 

present? Would you mind if they stood? They are next door. 

As well as her mother, Blanca Hernandez Rodriguez. And there 

she is. Welcome. We are glad you are here. 

We also want to acknowledge Diana’s husband, Robert. There is 

Robert. Thank you, Robert. Robert serves as a police officer in the 

city of Laredo, Texas. Robert, we thank you for your service, as 

well. 

Senator Hutchison has detailed why we believe Judge Saldan ̃ a is 

the best qualified candidate for this position and why we recommended her to the President. And we are glad we have had a 

meeting of the minds with the President on that and he has nominated her. 

I want to take just a couple of minutes to talk about why she 

is such a remarkable person and why she is an inspiration and role 

model to so many people, because her story really represents the 

American dream. 

Throughout the selection process, the more I learned about Judge 

Saldan ̃ a’s story, the more I grew to admire not only what she has 

6 

accomplished, but what she stands for and how she represents our 

Nation, which is a beacon of opportunity for all. 

At the age of 10, she began traveling with her mother and siblings from their home in Carrizo Springs, Texas, to Minnesota and 

to North Dakota to work as migrant farmers in the soybean, sugar 

beet and potato fields. Because of the seasonal nature of that work, 

Diana and her siblings would often leave South Texas before school 

had ended and return after the next school year had begun, which, 

of course, made keeping up with school all the more difficult. 

She traveled the 1,500 miles north and worked with her family 

in the fields every summer through high school and college. She 

even worked in the fields during her first year of law school. 

Despite these challenges, she was the first in her immediate family to earn a college degree. She has recalled to others that while 

working in the fields, her mother had told her that an education 

was the only way of not being a farm worker and working in those 

fields anymore. 

Diana was once asked what person had the greatest impact on 

her life, and, not surprisingly, she answered, without hesitation, 

her mother. Diana explained, ‘‘My mother has a third grade education, but she was able to raise six children by working hard and 

having a deep faith in God. I remember her working up to three 

jobs at one time, taking naps in the family car, when our finances 

were especially tight, to make ends meet. My mother instilled in 

us a strong work ethic and encouraged us to dream of a better life.’’ 

Today, Judge Saldan ̃ a mentors young people using her own story 

as inspiration and stressing that anything is possible if you are 

willing to work hard and sacrifice and stay focused. 

Let me conclude with this, Mr. Chairman. Diana has been nominated to fill the vacancy left by her mentor, Judge George Kazen, 

who is taking senior status. Judge Kazen knows Diana well. She 

served as his law clerk, appeared before him as a Federal prosecutor, and presided over many of his cases as a Federal magistrate judge. 

He described Diana as, quote, ‘‘One of the finest law clerks he 

ever had; a tough, no nonsense prosecutor, and a quintessential 

judge; intelligent, hardworking, honest, fair and decisive.’’ 

Finally, Judge Kazen told us that it would be his personal honor 

if Judge Saldan ̃ a were confirmed as his successor. I cannot think 

of much higher praise. 

Mr. Chairman, I look forward to working with you and all of our 

colleagues on the Judiciary Committee to swiftly confirm Diana 

Saldan ̃ a as United States District Judge for the Southern District 

of Texas and look for an expeditious consideration of her nomination on the floor and an affirmative vote. 

Thank you. 

Senator FRANKEN. Thank you, Senator Cornyn, and thank you, 

Senator Hutchison, for the very eloquent introduction of Judge 

Saldan ̃ a. 

I would now like to welcome my distinguished colleagues from 

Mississippi, Senator Cochran and Senator Wicker, to introduce 

Justice James Graves, Jr. 

Senators, thank you both for being here. We will start with Senator Cochran. 

7 

PRESENTATION OF JAMES E. GRAVES, JR., NOMINEE TO BE 

U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT BY HON. THAD 

COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much. I am 

very pleased to introduce Justice James Graves to the Judiciary 

Committee. He has been nominated by the President to serve as a 

circuit court judge on the United States Court of Appeals for the 

Fifth Circuit. 

He received his undergraduate degree from Millsaps College in 

Jackson, Mississippi. He earned a law degree from Syracuse University College of Law, and he has a master’s degree of public administration from Syracuse University. 

Justice Graves has served as legal counsel in the Mississippi Attorney General’s office in the Divisions of Human Services and 

Health Law. He also served as director of the Child Support Enforcement Division at the Mississippi Department of Human Services. 

Justice Graves currently serves as a presiding justice on the Mississippi Supreme Court. Before his appointment to our State Supreme Court in 2001, he served as a Mississippi trial court judge 

for 10 years. His other experiences include working with the Mississippi Legal Services and other community organizations in our 

State. 

Soon after his graduation from law school, he served as an adjunct professor at several universities in our State. He has received 

many honors, and the Mississippi legal community is very proud to 

have joined in endorsing him and recommending his nomination to 

the Committee. 

So I am pleased to recommend his confirmation to the Senate. 

Senator FRANKEN. Thank you, Senator. 

Senator Wicker. 

PRESENTATION OF JAMES E. GRAVES JR., NOMINEE TO BE 

U.S. CIRCUIT JUDGE FOR THE FIFTH CIRCUIT BY HON. 

ROGER WICKER, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI 

Senator WICKER. Thank you, Mr. Chairman and members of the 

Committee. I am glad to join Senator Cochran here today, and I appreciate this opportunity to say a few enthusiastic words regarding 

the nomination of Mississippi Supreme Court Justice James 

Graves to serve on the United States Court of Appeals for the Fifth 

Circuit. 

Of course, Justice Graves will have an opportunity to introduce 

his wife, Betty, and his family. They are here with him today. I 

know that this is a significant moment of accomplishment for the 

family, as well, and I congratulate them. 

I support this nomination for all of the reasons that Senator 

Cochran has already outlined—this candidate’s education, his professional experience, and his life experience. 

I would add to the specifics mentioned by Senator Cochran the 

fact that Justice Graves has been recognized on numerous occasions with awards noting his true servant’s spirit, which I believe 

is a testament to his dedication to his family and community. 

8 

Those who know him know that he is particularly committed to 

teaching, motivating and inspiring young people, particularly the 

young people of his native State of Mississippi. For example, he has 

coached high school, college and law school mock trial teams, including the Jackson Murrah High School mock trial team, which 

won the 2001 State championship. Also, in 2001, he was honored 

as the Jackson Public School District Parent of the Year. 

These are just some of the many examples that demonstrate his 

remarkable service to the public, in addition, of course, to the education and professional accomplishments that Senator Cochran 

mentioned. 

So in conclusion, let me say, Mr. Chairman, that I support this 

nomination and I congratulate Justice Graves and wish him all the 

best. 

Thank you to the members of the Committee for your hard work 

in this confirmation process. Thank you. 

Senator FRANKEN. Thank you, Senator. I would like to thank 

both of my distinguished colleagues from Mississippi. 

I see now that Senator Pryor has joined us to introduce P.K. 

Holmes. I have learned now it is P.K., and not just Paul. Thank 

you for joining us. 

Senator Pryor. 

PRESENTATION OF PAUL K. HOLMES, III, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF ARKANSAS BY HON. MARK PRYOR, A U.S. SENATOR FROM THE 

STATE OF ARKANSAS 

Senator PRYOR. Thank you, Mr. Chairman. And thank you for 

having me here, and thank all the members of the Committee. 

I come here today to say a few words about P.K. Holmes. And 

let me tell you, when the vacancy arose in the Western District of 

Arkansas, typically, as you all know, there is a long line of people 

who want to be a Federal Judge. But as soon as P.K. Holmes’ name 

arose, everybody else dropped off the list. 

Everybody defers to P.K. Holmes. The fact that he was an outstanding U.S. Attorney for the Western District for 8 years, from 

1993 to 2001; the fact that he has practiced law in Fort Smith in 

the areas of commercial litigation and white collar criminal matters 

with Warner, Smith & Harris there for years and years; and, just 

the fact that he has built his reputation all over the State of Arkansas for outstanding character, for the right kind of hard work, 

the right kind of proper judicial temperament, just the right kind 

of commitment to the legal profession, and respect for the courts. 

Basically, everybody else just said, ‘‘Hey, if P.K. wants it, then 

he would do a much better job than I could ever do,’’ and one-byone, they just dropped off the list. 

So it really is my privilege today to say a few kind words about 

P.K. I know Senator Lincoln was here a few moments ago. 

Just as a personal matter, I have known P.K. since I was probably about 12 years old or younger probably, and he has just always been an outstanding person and we have all watched and admired his legal career and how he handles himself with his family 

and in his profession and in his community, and he is just exactly 

9 

the kind of person I think we would all want on the Federal bench 

and someone that we will all be very proud of. 

Thank you for having me today. 

Senator FRANKEN. Thank you, Senator Pryor. And, again, thank 

you for coming here, for that introduction, and feel free to get back 

to your duties. 

My colleagues, Senator Feinstein and Senator Boxer, unfortunately, cannot be here, but have submitted, of course, positive blue 

slips for both Judge Battaglia and Judge Davila. I have statements 

from both Senator Feinstein and Senator Boxer, which I will submit for the record. 

[The statements appear as a submission for the record.] 

Senator FRANKEN. Let me just highlight just a part of Senator 

Boxer’s statement. She writes, ‘‘For the past 16 years, Judge 

Battaglia has served with distinction as a magistrate judge on the 

Southern District of California. He has a reputation as a judge’s 

judge, hardworking, thoughtful and fair. 

When he was in high school, Judge Battaglia took a class trip to 

tour the San Diego Superior Court Building. He said he was awestruck by the solemnity and dignity of the proceedings and the 

judges he saw on that tour. He aspired 1 day to become a judge. 

Today, he says that he hopes that maybe, just maybe, he can 

give something back by inspiring a child the way he was inspired.’’ 

About Judge Davila, Senator Boxer said, ‘‘For the past 8 years, 

Judge Davila has served on the Santa Clara County Superior 

Court, where he has drawn praise from fellow judges and lawyers 

for his hard work, integrity and fairness. 

In a recent survey by the Santa Clara County Bar Association, 

Judge Davila’s performance was rated excellent or very good by 

more than 80 percent of participants with respect to his work ethic, 

knowledge of the law, and procedure integrity, dispute resolution, 

and judicial temperament.’’ 

So for all the nominees who have been introduced, I thank you 

all for your service to our country and for offering yourselves up 

for this great responsibility. 

Justice Graves, will you take your seat on our panel, please? Actually, before you do, why do you not just stand and raise your 

hand, swear in the oath? 

[Nominee sworn.] 

Senator FRANKEN. Please have a seat. Justice Graves, I understand some of your family and friends are here. So please feel free 

to introduce them on this proud day. 

STATEMENT OF JAMES E. GRAVES, JR., NOMINEE TO BE 

UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT 

Justice GRAVES. Thank you very much, Mr. Chairman. I’d like to 

first thank the President for nominating me to serve as a judge on 

the Fifth Circuit Court of Appeals. I want to thank Chairman 

Leahy for an opportunity to appear before this Committee. I want 

to thank Ranking Member Sessions. Thank you, Mr. Chairman. 

Thank all on the Senate Judiciary Committee for the opportunity 

to be here today to answer any questions the Committee may have. 

10 

I appreciate the opportunity to introduce members of my family 

who are present here today, and I am asking them to stand when 

they are introduced. 

My wife, who has been married to me sometimes for longer than 

she cares to recall, is here and I am going to ask her to stand. My 

parents are here, both my mother and father. 

Senator FRANKEN. Welcome, and congratulations. 

Justice GRAVES. I have three sons and, actually, I didn’t look 

back to see if the third son had made it. But my three sons—— 

Senator FRANKEN. That is yes, I think. 

Justice GRAVES. Is that a yes? He is here. 

Senator FRANKEN. Well, I see a hand up. 

Justice GRAVES. Very good. I am very happy, son. 

[Laughter.] 

Justice GRAVES. That would be my son, Chris. And my son, 

James, and his wife, Tiffany. My son, Jeffrey, and his wife, Eyra. 

And someone should be holding my beautiful granddaughter. 

Senator FRANKEN. Your daughter-in-law is holding your granddaughter. 

Justice GRAVES. Wonderful. They told me not to look back. They 

said, ‘‘Talk into the microphone, don’t look back.’’ 

Senator FRANKEN. You can look and then talk. 

Justice GRAVES. I can look and then talk. 

Senator FRANKEN. Yes. 

Justice GRAVES. That’s going to be hard. 

Senator FRANKEN. Well, it is not a qualification for judge. 

Justice GRAVES. And I think that’s all of the immediate family 

that’s here. Well, my brother, Darrell, is here. He’s only 6′6′′, so it’s 

easy to understand how I might have overlooked him. Darrell is 

here. 

And then I have some of my chamber staff who are here, my 

clerk, Sherwood Colette is here. My assistant, Jackie Losset is 

here. My other clerk, Susan Huett, I am absolutely certain is 

watching the live Webcast. And I want to thank all those people 

for the support they have given me over the years. I thank them 

for being here. 

My three sisters, I am certain, are watching the live Webcast, as 

are my colleagues, I hope, or at least they’re going to tell me they 

saw it, my colleagues at the Mississippi Supreme Court. 

But I really do appreciate this opportunity. I thank all my family 

and all the other friends who are here today. 

And having no formal remarks, Mr. Chairman, I’d be pleased 

now to answer any questions the Committee may have. 

Senator FRANKEN. Absolutely. And I would like to welcome your 

family and your staff members who are here on this, which must 

be a very proud day for them. 

Justice Graves, we met yesterday. 

Justice GRAVES. Yes. 

Senator FRANKEN. I must say I was very impressed during our 

conversation. You have served on Mississippi’s highest court for 

nearly 10 years. If you are confirmed to the fifth circuit, more of 

your work will involve interpreting our work here; and by that, I 

mean, of course, Federal statutes. 

11 

How will you make sure that you interpret Federal statutes in 

line with our intent in passing them? 

Justice GRAVES. Well, I think I would—with regard to my work 

as an appellate judge, if confirmed for the court of appeals, I would 

approach those cases the same as I’ve approached the handling of 

cases in the 9 years now that I’ve been a Mississippi Supreme 

Court justice. 

I would examine the record, look at the law that was applicable 

to the record, the facts of that particular case, apply the law to the 

facts, in trying to reach an appropriate result in whatever case is 

before me as a judge. 

Senator FRANKEN. Well, is there any way you feel that your job 

would be different as a Federal appellate judge than as a Supreme 

Court justice in the State of Mississippi? 

Justice GRAVES. I’m certain it would be different to the extent 

that I would be dealing with Federal law. Now, as a Supreme 

Court justice in the State of Mississippi, obviously, I am, for the 

most part, dealing with cases that arise either under our constitution or under our state laws and the laws passed by our legislature. 

As a Federal judge, I know that I would be dealing primarily 

with Federal law and, as you stated, laws passed by the U.S. Congress, and it would be necessary for me to read—study that law 

and apply it to the facts in the particular case that would be coming before the court of appeals. 

Senator FRANKEN. As a Supreme Court justice, how did you determine the intent of the State legislators when they passed those 

laws? Would you just simply go by the text of the law? Would you 

go into the record that was made while the law was debated and 

passed? 

Justice GRAVES. I think on first approach, you look at the statute 

and try and determine what the language of the statute says, and 

that’s the first place to look in determining what the statute 

means. Hopefully, it says what it means and it means what it says. 

And in the State of Mississippi, there is a dearth of legislative 

history. And so there’s not a lot of that there in terms of recorded 

history with regard to debate that preceded legislation, those kinds 

of things. 

So typically, it’s looking at the statute, trying to interpret what 

the statute means, if it means what it says. The next thing you’d 

do is look at whether or not there is any precedent, any case law, 

where there have been judicial interpretations of a particular statute, and you would look to that precedent for guidance in reaching 

a decision involving that statute, in the State of Mississippi. 

Now, I recognize that with the U.S. Congress, there could be 

some more extensive records, history regarding legislative intent. 

Senator FRANKEN. Thank you. Justice Graves, I think it is remarkable that you have remained so active in your community, despite the rigors of your position as justice in the State Supreme 

Court. 

Can you tell me about your work on the board of Operation Shoestring and the Mississippi Children’s Museum? 

Justice GRAVES. Operation Shoestring is an organization which 

started more than 40 years ago in an area of Jackson, which is now 

12 

sort of a—it has been a blighted area, but the area is being revitalized. 

But Operation Shoestring promotes and sponsors after school 

programs to educate and involve the children in that community. 

They have programs for teaching children, which have resulted in 

improvement in their test scores, reading programs, literacy programs, and sometimes just feeding programs and daycare and after 

school programs for children in the community. 

And I’ve been serving on that board now for more than 3 years, 

because I think Operation Shoestring does such important work in 

the community. 

Mississippi has no children’s museum. And so several years ago, 

some members of the Junior League and a couple of other organizations got the idea to start a children’s museum, and they asked 

me to serve on the advisory committee. And I just have a deep concern for children and education. 

And my vision was that a children’s museum would be a great 

vehicle for educating children, and so I agreed to serve on the advisory committee, and then on the board. When the project began, it 

was determined that there was a need to raise about $25 million, 

and this was maybe 5 years ago, to get the museum started. 

I, as a judge, obviously, can’t be involved in fundraising, but 

every other aspect of the museum that I could be involved in, I 

have been involved in. 

I am pleased to report that the grand opening for the Mississippi 

Children’s Museum—and they’ll be happy I’m doing this now—the 

grand opening for the Mississippi Children’s Museum will be this 

fall. It is the first children’s museum in the State of Mississippi. 

Senator FRANKEN. Thank you, Your Honor. And I will turn it 

over to the Ranking Member. 

Senator SESSIONS. Thank you. Justice Graves, it is a pleasure to 

be with you again. I enjoyed our opportunity to talk and appreciated your comments at that time, and I enjoyed that opportunity 

in dialogue. 

It is good that you have your home State Senators’ support. And 

you have had a good bit of time now, 8 years, on the Mississippi 

Supreme Court. Well, by now, you have probably decided whether 

you like writing opinions or not. 

Do you like that work? 

Justice GRAVES. Yes, sir. 

Senator SESSIONS. The burden on judges is significant, and I 

think the caseload burden on our justices probably will remain 

high. There are several reasons I think that we should not add 

judges just to continue a certain fixed number of cases. 

I guess we are going to have to do better and keep the 

collegiality and smaller numbers, where possible. And I suppose 

you are willing to serve for the pay that has been offered. Do you 

know what the pay is? 

Justice GRAVES. I have a general idea, but I am certain I am 

willing to serve for that pay. 

Senator SESSIONS. And we hope 1 day judges can get pay raises, 

but we are in a tight budget. So it cannot be guaranteed. 

Let me ask you about Doss v. State; your former colleague on the 

Supreme Court of Mississippi, Judge Diaz, wrote, in dissent, and 

13 

you joined it, and stated the following: ‘‘When our founding fathers 

ratified the Federal and State Constitutions in 1788 and 1890, they 

did not consider all forms of the death penalty to be violative of our 

bans on cruel and unusual punishment.’’ And I certainly would 

agree with that. 

’’But just as we would disagree with our framers,’’ he went on to 

say that, ‘‘for example, the execution of a child, necessarily 

amounts to a violation of the Eighth Amendment, our society’s notion of what is cruel and unusual changes with time.’’ 

Do you personally agree with that, that the cruel and unusual 

definition changes with time? 

Justice GRAVES. Senator, that Doss opinion, was handed down by 

the Mississippi Supreme Court, I believe, in 2008 and Justice Diaz 

did write a dissenting opinion in that case, which I joined. 

But I’d like to point out that there were two issues about which 

I was chiefly concerned in that case, and those two issues had to 

do with the ineffective assistance of counsel and the mental retardation issue. 

His dissenting opinion addressed, in part one, those two issues. 

And those were the only two issues raised by the defendant in that 

case. Those were the substantive issues. Those were the issues 

about which I was concerned, and I take responsibility for joining 

that opinion. 

But I have not now nor have I ever espoused any view that the 

death penalty was unconstitutional, and, in fact, that case was 

brought back on re-hearing before the Mississippi Supreme Court 

in 2009 and I had an opportunity to author a majority opinion in 

that case and I addressed in that majority opinion one of the chief 

issues which concerned me, and that was the ineffective assistance 

of counsel issue. 

I wrote a dissenting opinion in that case with regard to the mental retardation issue. But that case has been withdrawn. A new 

opinion has been handed down, and everything that I wanted to 

say about Doss and the issues involved in the Doss case I said and 

had every opportunity to say in the new opinion which was handed 

down in 2009, and I chose to address those two issues and nothing 

else. 

Senator SESSIONS. Well, I understand that, and cases come fast 

and furious to a court. But language does have meaning, I think. 

Later on, one of the decisions Justice Diaz cited was the Supreme 

Court’s opinion in Roper v. Simmons. In that decision, the Supreme 

Court relied on foreign law in holding that the execution of minors 

violated the Eighth Amendment. 

Do you think it is proper to look to foreign law to define the 

Eighth Amendment of the United States Constitution? 

Justice GRAVES. I think it’s proper to look to the laws of the 

United States and the Constitution of the United States in making 

determinations about the Eighth Amendment to the United States 

Constitution. 

Senator SESSIONS. Well, I think I agree with what you said. Justice Diaz’s dissent went on to conclude, quote, ‘‘The death penalty 

is reduced to pointless and needless extinction of life, with only 

marginal contributions to any discernable social or public purpose. 

A penalty with such negligible returns to the State is patently exVerDate Nov 24 2008 11:48 Jul 13, 2011 Jkt 066817 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\66817.TXT SJUD1 PsN: CMORC
14 

cessive and cruel and unusual punishment, violative of the Eighth 

Amendment,’’ close quote. 

That, I suppose, is the phrase that worried me the most. It seems 

that you went along with the opinion that he had written that the 

death penalty is pointless and needless extinction of life. That is 

a matter we can talk about and disagree. 

But I am more worried about the apparent statement that it is 

so negligible in returns to the State, that it is patently excessive 

and cruel and unusual punishment, violative of the Eighth Amendment. 

Is that your position today? 

Justice GRAVES. No, it is not, Senator. And all I can say is that 

when I read what he wrote, I viewed it as his plea for a dialog on 

the efficacy of the death penalty. 

In retrospect, I can see how it may not be clear, but I never intended to adopt his thoughts, his concerns with regard to the death 

penalty. My chief concern was the ineffective assistance of counsel 

issue, the mental retardation issue. 

Senator SESSIONS. Well, the Constitution deserves a fair interpretation, it seems to me, and what essentially the people who ratified it meant. And would you not agree that there are multiple references in the Constitution from the earliest draft through various 

amendments, the Fourteenth Amendment and others later, that 

refer to capital crimes? You cannot take life without due process, 

but you could take life with due process. I think there are six or 

eight such references. 

So it would be difficult to interpret the Eighth Amendment, cruel 

and unusual punishment, it seems to me, as the Constitution prohibiting all death penalty. Would you agree with that analysis? 

Justice GRAVES. Senator, I fully expect that if I am confirmed, I 

will take an oath and that oath will be to uphold the laws and the 

Constitution of the United States. And the United States Supreme 

Court has determined that the death penalty does not constitute 

cruel and unusual punishment, and I would follow the law as 

handed down by the United States Supreme Court. 

Senator SESSIONS. Well, we had two members of the Supreme 

Court that dissented in every case, Justices Marshall and Brennan, 

and they contended the death penalty was cruel and unusual and 

that it was unconstitutional. 

No longer are such dissents occurring. It seems to me that Judge 

Diaz and you signed an opinion that agreed with that view. But I 

hear you saying that that did not necessarily represent your carefully considered intellectual view of that particular issue. It was 

more a willingness to sign on to Justice Diaz’s dissent as an expression of concern about this case. But it did say more than that, 

apparently. It seemed to say a good bit more. 

Would you just share once more your thoughts about this fundamental question about whether you could use the Eighth Amendment to declare all death penalties unconstitutional? 

Justice GRAVES. I think, Senator Sessions, that maybe the best 

evidence of how I would handle death penalty matters, if they came 

before me as a judge on the Fifth Circuit Court of Appeals, is the 

way I’ve handled them as a Mississippi Supreme Court justice. 

15 

In the 9 years that I’ve been a Supreme Court justice in the 

State of Mississippi, I’ve had an opportunity to vote on at least a 

dozen death penalty cases, where I’ve voted to affirm both a conviction and a sentence of death. 

I’ve voted to affirm convictions and death sentences both before 

that Doss opinion and since the Doss opinion. 

Senator SESSIONS. I appreciate that. I guess I would go one more 

step here and say as you analyze the Constitution and laws of the 

United States that come before you, will you seek to enforce them 

as they are written, fairly interpreting them as best you are able, 

to carry out the will of the populous who elected them through 

their elected representatives, passed them through their elected 

representatives? 

And the fact that you may or may not agree that the death penalty is good policy—and I think people can disagree about that— 

do you think that the Constitution prohibits its implementation, if 

left to your judgment? 

Justice GRAVES. If left to my judgment, I’m going to follow the 

law as handed down by the United States Supreme Court, and it 

clearly is that the death penalty does not constitute cruel and unusual punishment. 

Senator SESSIONS. But you signed an opinion that seemed to say 

that you do not agree with that, that you believe that it is of negligible benefit to the State; therefore, it is unconstitutional. Is that 

what you meant to say? 

Justice GRAVES. It is not. 

Senator SESSIONS. Thank you. 

Senator FRANKEN. Remember, you said the thing about—— 

Senator SESSIONS. My time is over. 

Senator FRANKEN.—my correcting you. Thank you. 

Senator SESSIONS. The Chairman has a right to bring the hammer down on elongated questioning. 

Senator FRANKEN. Yes. Thank you. I would like to thank the 

Ranking Member. And thank you, Justice Graves. We will now proceed to the second panel. 

Justice GRAVES. Thank you. 

Senator FRANKEN. Why do not you all come forward and instead 

of sitting, please remaining standing so that you can swear the 

oath. 

[Nominees sworn.] 

[The biographical information follows.] 

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Senator FRANKEN. Thank you. Please be seated. 

I now invite you to introduce any members of your families that 

are here today. Why do we not start from my left? 

Mr. Holmes. 

STATEMENT OF PAUL K. HOLMES, III, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 

ARKANSAS 

Mr. HOLMES. Thank you. First, let me thank the Chairman of 

the Committee and the Ranking Member for scheduling this hearing today and this opportunity to be heard, and thank you, Senator 

Franken, for chairing the Committee. 

I’m really appreciative of the nomination by the President of the 

United States to be United States District Judge for the Western 

District of Arkansas. And I’m also appreciative of the support of 

Senators Blanche Lincoln and Mark Pryor in recommending my 

nomination to the President. 

I would like to introduce my family here. I would like for my wife 

of 31 years, Kay, to please stand. And we have two sons who could 

not be here today, because they cannot miss college classes. Our 

son, Christopher Holmes, is in Batesville, Arkansas, watching on 

the Webcast; and, our son, Stephen Holmes, is in Fort Smith, Arkansas, watching on the Webcast. 

And with that, I will be glad to answer any questions the Committee may have. Thank you. 

Senator FRANKEN. Well, thank you. 

[The biographical information follows.] 

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Judge Battaglia—I did say Battaglia at the first pass by your 

name, I apologize. Any Battaglias here today? 

STATEMENT OF ANTHONY J. BATTAGLIA, NOMINEE TO BE 

UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN 

DISTRICT OF CALIFORNIA 

Judge BATTAGLIA. There are, Senator. And thank you for 

chairing today’s hearing. I’d like to thank Chairman Leahy for 

scheduling this and Ranking Member, Senator Sessions, as well. 

And let me thank, also, the President for the nomination; Senator 

Boxer for recommending to the President for consideration; and, 

Senator Feinstein, for her tremendous support in this process. 

I’d like to introduce my wife of 33 years, Carol Battaglia, who is 

behind me, and I’d like her to stand. 

Senator FRANKEN. Welcome. 

Judge BATTAGLIA. Also, Carly Battaglia, now Nardin, my daughter, and her husband, Brandon Nardin, late of the U.S. Marine 

Corps, who are here with me. And my son, A.J., Anthony James 

Battaglia, who is here, as well. 

Also, joining me from San Diego, I’d like to introduce, if I may, 

Russell Block, who is a professor at San Diego State and the husband of Judith N. Keep, who left us far too young. She was the 

chief judge that appointed me in 1993, a mentor, an inspiration, 

and I’m just so thrilled to have Rusty, as we call him here, on her 

behalf and his, to support me. 

Our clerk of court, Sam Hamrick, from San Diego, who was in 

town and chose to come. The Honorable Mary Schroeder, former 

chief of the Ninth Circuit Court of Appeal, who has been a longtime friend, mentor and inspiration, as well. And I would be remiss 

if I didn’t thank Tom Hnatowski, the chief of the Magistrate 

Judges Division of the Administrative Office; and, Margaret Irving, 

the chief of the Article III Division of the Administrative Office, 

who have attended today. 

At home, I do have my 88-year-old mother watching on the 

Webcast, along with my brother, who is there caring for her. And 

I do have all of my magistrate judge colleagues, who are now in 

their noon meeting, watching me instead of attending to business, 

which I appreciate very much, and our district judges, who have 

supported me so faithfully throughout this process. 

So thank you, Senator, for allowing me to recognize these very 

important folks. 

Senator FRANKEN. Thank you very much, Judge Battaglia, and 

welcome to all of you. 

Judge Davila. 

[The biographical information follows.] 

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STATEMENT OF EDWARD J. DAVILA, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 

CALIFORNIA 

Judge DAVILA. Thank you. Thank you, Mr. Chairman. And I 

would also like to thank the President for my nomination. I feel 

humbled and privileged to be here to discuss issues with the Chairman and the Ranking Member. And thank Chairman Leahy for arranging this hearing for all of us here this afternoon. 

I do have family members here that I’d like to introduce. But I’d 

also like to thank my home State Senator, Senator Boxer, for her 

nominating me to the President; and, my other State Senator Feinstein, for her continued support. 

I would like to introduce my wonderful wife, Mary Greenwood, 

who is present. 

Senator FRANKEN. Welcome. 

Judge DAVILA. And our fantastic 13-year-old daughter, Chela, 

who is also present. She’s missing a few days of her rigorous middle school to be here on this wonderful educational experience, and 

she’ll return shortly. 

Our dear family friend, Mary Maben, is also here. She works in 

San Jose and in Washington, DC, and I’m happy to have her here 

to support me, as well. 

Senator FRANKEN. Welcome. 

Judge DAVILA. Thank you. There are others who are not here, 

and, Senator, if I may for just a moment, tell you I was very privileged to be raised in a matriarchal family; a single mother, and 

there were three other women who were of great significance in my 

life—my grandmother, who has passed away now, and my Aunt 

Trini, is 90-years-young, and, of course, my mother. They could not 

be here. Their health situation precludes them from being here, but 

all three of those people, I’ve learned so much from them and all 

there of them continue to be with me here and I’m happy to have 

their support in spirit, if it not in flesh. 

I should also recognize and thank my two sisters, Celia and 

Linda, who I believe are watching the Webcast, as well. And, of 

course, I need to thank my wonderful court staff, Maggie and Mary 

Lou, who I am convinced are the best in the business. No disrespect to my colleagues and their staff. But I’m grateful for all 

their support. 

Thank you very much. 

[The biographical information follows.] 

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Senator FRANKEN. Thank you, Judge. And for all the women that 

you have mentioned watching on the Webcast, welcome. Hi, welcome to you, too. 

Judge Saldan ̃ a, thank you for being with us. Congratulations. 

And please feel free to introduce any members of your family or 

staff or friends who are here today. 

STATEMENT OF DIANA SALDAN ̃ A, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF 

TEXAS 

Judge SALDAN ̃ A. Thank you, Senator. I want to start off by 

thanking President Obama for the nomination. It is truly an honor 

to be here today with you and with Ranking Member Sessions. 

I want to thank Senator Cornyn and Senator Hutchison for their 

very kind words and their introduction to me. I want to thank 

them for establishing a bipartisan Committee in the State of Texas 

to review applications, and for their support throughout this process. I also want to thank Congressmen Henry Cuellar, my home 

Congressman from Laredo, Texas. 

I am here because of the support of family and friends. I would 

like to recognize individuals who are here with me today and, also, 

some who were not able to travel with me to Washington, DC. 

I want to start off by introducing my husband, Robert Arredondo, 

who stood up earlier today when Senator Cornyn was introducing 

me. He is a proud member, as he indicated, of the Laredo Police 

Department and a wonderful husband. He and I just became the 

proud parents of two boys, Thomas and Luke, who are seated next 

door. They are ages 4 and 5, and we were worried that they would 

not be able to sit through the hearing. So they are next door with 

my niece, Adriana Perez, who is here and volunteered to watch 

them for us. 

My mother, Blanca Hernandez Rodriguez, is here with me. As 

Senator Cornyn indicated earlier, she is my inspiration. She taught 

me to be a very hard worker and really gave me the opportunity 

to dream of being here someday. She worked very hard for all of 

her six children. All six received high school diplomas and four of 

them college degrees. I am fortunate that two of my sisters were 

able to be here today, my sister, Rose Pearson, and her son, Daniel 

Kenneth Pearson, Jr., and then my sister, Blanca Saldan ̃a. Her 

daughter, Adriana, is the one who is watching our two boys right 

now. 

I have two other sisters who were not able to be here with me 

today, Linda Garcia, who was like a second mother to me. She’s 

older than I am, but she is like a second mother to me. And she’s 

an accountant and was not able to get away from work, unfortunately. But I know that she is here with me in spirit. And her children, Samantha and Brandon, and her husband, Martin. 

My other sister, Beatrice Saldan ̃ a, was not able to be with me 

either, but I know that she’s watching the Webcast. And my brother, Rudy Saldan ̃ a, and his sons, Joseph, Emanuel, Abraham and 

Jeremiah. I have 11 nieces and nephews, so I have to make sure 

I introduce all of them. And Elijah. 

Senator FRANKEN. I am not sure we have time. 

[Laughter.] 

240 

Judge SALDAN ̃ A. And Elijah Pearson, who was not able to be here 

with me. My mother-in-law, Laura Arredondo; my sister-in-law, 

Linda Arredondo—— 

Senator FRANKEN. Welcome. 

Judge SALDAN ̃ A.—traveled from Laredo and from Austin to be 

here. My college roommates, Ronnie, Veronica Ruiz, and Lila 

Michele Garza, Sarah Martinez traveled here. 

Senator FRANKEN. Welcome. 

Judge SALDAN ̃ A. My only other college roommate, who was not 

able to be here, is Christy Isom (ph), but I know that she is watching with her kindergarten class in Austin, Texas. 

My wonderful staff in Laredo, Margie, Irene and Yamil, all of the 

staff at the Federal courthouse in Laredo, Texas, my colleagues at 

the Federal courthouse, Judge Alvarez, Judge Hacker, Judge Garcia. 

And I would like to conclude by thanking Judge Kazen, who is 

my mentor. I clerked for him when I graduated from law school 

and I, if confirmed, will succeed him. He has been an inspiration 

to me. He has a tremendous work ethic. For over 20 years, he 

served the Laredo division as the only Federal district judge in Laredo, with an overwhelming criminal docket, on the border. And I 

want to thank him for all of his support, and his beautiful wife, 

Barbara Kazen, as well. 

And I welcome any questions from the Committee. Thank you. 

[The biographical information follows.] 

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Senator FRANKEN. Thank you. I want to just welcome everyone, 

all these family members and significant folks who came here 

today. This must be a very proud moment for all of you. Congratulations. 

Well, why do I not start the questioning here? I will start with 

Judge Davila. Before you became a judge in 2001, you stated that 

you would need to leave the role of an advocate behind and become 

an objective listener. 

Can you tell us the difference that you see between being a judge 

and being an advocate and how you took on that transition? 

Judge DAVILA. Thank you, Mr. Chairman. Yes. And it is a transition that I’m certain all my colleagues here have had to make from 

their practices, from their days as a lawyer, where we represented 

a cause, a client, and argued cases in front of judges. And in those 

situations, we were not unbiased. We were very biased, because we 

were, of course, pursuing the goal of our client’s best interest. And 

I did that for 20 years as a lawyer. 

Of course, making the transition to the bench, one leaves that behind, as I indicated, and you no longer are an advocate. You become a neutral and impartial fact-finder and you must make decisions accordingly. 

Senator FRANKEN. Thank you, Judge. 

Senator Whitehouse, my colleague from Rhode Island, has just 

stepped in and was a Federal attorney—is that right? 

Senator WHITEHOUSE. Correct. 

Senator FRANKEN. With P.K. Holmes—or United States attorney. 

Senator SESSIONS. The United States attorney. 

Senator WHITEHOUSE. The United States attorney. Let me thank 

the Chairman and the Ranking Member for letting me interrupt 

the proceedings just for a second on a small point of personal privilege. 

I had the great pleasure of serving with P.K. Holmes as United 

States attorney, me for the District of Rhode Island, him for the 

District of, if I recall, Arkansas, during the Clinton Administration, 

and I am delighted to see that he is now a candidate for judicial 

office. 

I wanted to extend him my best wishes for a swift and uneventful confirmation. 

Mr. HOLMES. Thank you, Senator. 

Senator WHITEHOUSE. Welcome. Welcome to all the candidates, 

but in particular, thank you and best wishes to you, Candidate 

Holmes, Nominee Holmes. 

Mr. HOLMES. Many thanks for your kind remarks. 

Senator FRANKEN. Well, that is the greatest wish that any member of this panel can give you. So congratulations, former U.S. attorney. 

Let me go to Judge Saldan ̃ a. I will say that the introduction you 

were given by both Senators was very eloquent, and you do have 

a truly remarkable background. I congratulate your mother. 

You have overcome more, I would submit, than most of your future colleagues on the Federal bench. How has that shaped you 

and how do you think that has shaped your judging, if it has at 

all? 

286 

Judge SALDAN ̃ A. Thank you, Senator. Growing up as a farm 

worker, traveling throughout the country, I was able to see what 

different persons experienced from different backgrounds. Actually, 

going to the great State of Minnesota and meeting the people there 

and lots of people who are watching, I think, on the Webcast from 

Minnesota who I still keep in touch with, it really gave me a wide 

breadth of experience, I believe, and has made me a well rounded 

person. 

And it really drove—not drove, but it helped to create my very 

strong work ethic. And because I serve on a border court, that is 

something that will serve me very well. 

Senator FRANKEN. Well, thank you. I just want to make the point 

that I think that experience and a broad breadth of experience is 

a good thing. And that does not necessarily mean that you become 

biased in one way or the other, but it just means that you bring 

an understanding of how your rulings affect all kinds of people. 

Would that be a correct statement? 

Judge SALDAN ̃ A. Yes, it is, Senator. Thank you. 

Senator FRANKEN. Thank you so much. 

Judge Battaglia, I see that you have helped manage the Volunteer Lawyers Domestic Violence Clinic. I am going to a Sheila 

Wellstone Institute event tonight, and she was a champion in this 

field. 

What is your role in this program, in the Volunteer Lawyers Domestic Violence Clinic, and how has your volunteer work influenced 

your career? 

Judge BATTAGLIA. Thank you, Senator, for that question. I was 

a board member for the San Diego Volunteer Lawyer Project in the 

early 1990s, helping manage or govern the organization, implement 

programs, including the domestic violence program and others, to 

ensure that members of the public that needed assistance had lawyers available to confront the needs that they were dealing with in 

the tragic circumstances particularly in domestic violence that people were caught up in. 

So the role was to make sure the organization worked soundly, 

fairly, and lawyers were available for people in need. 

Senator FRANKEN. Thank you. 

Judge BATTAGLIA. As far as shaping my views, my concern about 

access to justice has always been very strong and I believe firmly 

in the system, and it was just a supplement to that deep feeling. 

Senator FRANKEN. Thank you. Thank you for working in that 

field. 

Mr. Holmes, since my colleague recommended you so highly, I 

am going to give you a pass. 

Mr. HOLMES. Thank you, Senator. 

Senator FRANKEN. And my time is up anyway. So I will go to the 

Ranking Member. 

Senator Sessions. 

Senator SESSIONS. Thank you. We do not want to pass over the 

U.S. attorney too lightly. But I did have a call from a friend who 

served for many administrations in the Department of Justice and 

also served for quite a while as director of the executive office of 

United States attorneys. So he knew United States attorneys all 

over the country, and I think was a former U.S. attorney and prosVerDate Nov 24 2008 11:48 Jul 13, 2011 Jkt 066817 PO 00000 Frm 00294 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\66817.TXT SJUD1 PsN: CMORC
287 

ecutor himself. And he said you were topnotch. So I think that is 

a good compliment, and appreciate the comments of our colleagues 

who are high on your appointment. 

Mr. Holmes, with regard to the sentencing guidelines, the Supreme Court has weakened the authority of those guidelines somewhat. How have you felt the guidelines have worked in terms of 

attempting to have uniformity of sentencing, as a Federal prosecutor? And to what degree do you believe that as a judge, you will 

seek to be consistent with the guidelines in your sentencing? 

Mr. HOLMES. Thank you, Senator Sessions, for the question. Of 

course, during my tenure as U.S. attorney, the guidelines were 

mandatory, and, since the Booker decision, they’re advisory. 

I think there’s a presumption that the sentencing guidelines are 

reasonable. I believe that they should be followed, and my experience in the field of criminal defense has been that they have been 

followed. And I would continue to use the sentencing guidelines, 

because they do avoid disparity in sentencing, and I, if I’m fortunate to be confirmed as district court judge, would follow those. 

Senator SESSIONS. Thank you. 

Judge Saldan ̃ a, you were a Federal prosecutor for a number of 

years and a United States magistrate judge, I guess 5 or 6 years 

as a Federal prosecutor and, since 2006, a magistrate judge in Federal court. 

What would you say about the guidelines and how you would see 

them? 

Judge SALDAN ̃ A. Thank you, Senator. I recognize and understand 

the importance of the sentencing guidelines and why they were implemented, the importance of uniformity in sentencing throughout 

the country. And I also recognize the state of the law and that they 

are presumptively reasonable. 

And so I would look to the sentencing guidelines when I am determining the appropriate sentence for a person who is standing 

before me, if confirmed as a United States district judge. 

Senator SESSIONS. Thank you. I think that would be good advice 

as meant? Judge Battaglia, you are a magistrate judge. You have 

worked with them, also. What would be your comment? 

Judge BATTAGLIA. My comment, Senator—and thank you for asking me—is that there is a presumption of reasonableness for the 

guidelines. I have utilized those in misdemeanor sentencing, Class 

A misdemeanors, where the guidelines are applicable. 

As the Supreme Court has directed us, I consider those first off 

and use those, give them great deference, because they have regularized sentencing. Despite the change in the law, I think they still 

give us a great pattern to follow for consistency in sentencing everyone fairly. 

Senator SESSIONS. I could not agree more. 

Judge Davila, I think you will find that to be true, although you 

may not have had a lot of direct experience with them. I think that 

is the right thing. Otherwise, we go back to, well, it depends on 

which judge you have. You are in one courtroom and you get hammered; in another courtroom, you get probation for the very same 

offense, and it becomes pretty indefensible really to explain to family or victims why one person got one sentence and one person got 

another. 

288 

That is what led to the passage. Senator Kennedy, Senator Thurmond, Senator Biden, Senator Hatch all worked on that and passed 

those guidelines. I do not think the Supreme Court was precisely 

correct in their ruling, but we are stuck with it. So that is where 

we are. 

I do believe that justice in America will suffer if judges move 

away from following the guidelines, which represent, I think, the 

studied opinion of judges and other experts in sentencing. 

Judge Battaglia, you had a situation with a student who allegedly said to a counselor, ‘‘If you do not give me this schedule 

change, I’m going to shoot you.’’ The student apparently said ‘‘I’m 

so angry, I could just shoot somebody,’’ closed quote. 

You were reversed eventually, on that case, although upheld initially, for saying the school did not have the authority to suspend 

the student. 

Would you, briefly, we just have a moment, share your thoughts 

about that? And do you feel like you properly respected the burdens that fall on school administrators, the principal, to make sure 

that teachers are not threatened or harassed in a classroom? 

Judge BATTAGLIA. Thank you, Senator, for that question. That 

was one of my early cases and one that I am happy to talk about. 

At the time, the evidence was in dispute about the precise nature 

of the statement, and I found that under either characterization, it 

was protected speech, under the ninth circuit authority existing at 

the time. I followed the law, the precedent that was in place, the 

precedent of the ninth circuit, based upon United States Supreme 

Court precedent. 

And I faithfully adhered to the precedent, found the facts to be, 

irrespective of which statement, the necessary concern of an imminent threat was absent. So the speech was protected. 

The ninth circuit initially affirmed me and then, on reconsideration, several months later, decided to go a different way, which 

would be the province of the appellate court to overrule the district 

court decision I made. So yes. 

Senator SESSIONS. Are you thinking free speech? Well, what 

would be your evaluation as to which would be the correct ruling, 

the first one or did they reverse their prior authority when they 

ruled against you? And do you suggest that the phrase, ‘‘If you 

don’t give me this schedule change, I’m going to shoot you,’’ that 

under existing case law, was such that a school cannot discipline 

a student for it? 

Judge BATTAGLIA. At the time of the decision, it was. It is no 

longer. My decision was overruled. The appellate court, the ninth 

circuit, changed its prior precedent in overruling my decision. 

The development of case law since has made it clear that that 

would not be protected speech and that there was a serious threat, 

and the courts, I think, would approach that. 

Were I to have that case again today, the outcome would be different. If I were to look back and criticize my opinion, it would be 

probably that I should have found that the statement asserted by 

the school district was the correct one. Since the plaintiff had the 

burden of proof and failed to make it, it was, in effect, a dead heat. 

But either way, if this case were happening today, the ruling 

would be totally different from the district court level. 

289 

Senator SESSIONS. Well, I will just tell all of you, I think the 

American people and I have the view that schools have got to be 

given some latitude in running the school and maintaining order. 

And you cannot make a Federal case out of every suspension over 

some hot kid who runs their mouth, it would strike me. 

But I think there has been some authority in the past that could 

well have led you to follow that authority, and I do not dispute it. 

Judge BATTAGLIA. And I don’t disagree with you. 

Senator SESSIONS. But if so, it was not very good authority and 

I am glad the court has moved away from it. 

Judge BATTAGLIA. Right. And as you know, Senator, we are 

bound by precedent at the district court level. A magistrate judge, 

as I was in this case, it’s not our role to invoke policy, to make law, 

but we are bound by the applicable authority and follow that, notwithstanding how we might feel personally. That is our job. But 

thank you for asking. 

Senator SESSIONS. Well, I do not think the Constitution ever 

would have—normally, it would not have been interpreted in that 

fashion, and the ninth circuit has rendered some opinions that I 

certainly would not support. 

Judge Davila, you were active in La Raza, which is a group that 

I understand emphasizes and affirms the Hispanic ethnic heritage, 

and that is fine, and you said a few things that I think are OK, 

but close for a judge. 

You said you hope to see increasing diversity of experiences, 

ideas, race, ethnicity and culture on the bench, and I think that is 

fine, and we do not leave our life experiences behind, do we? We 

bring those to the bench, I suppose, and that’s what’s good about 

a diverse bench. 

You go on to be quoted in this piece, saying, ‘‘Justices will be better able to relate to the experiences of those that come before 

them.’’ I think that is a careful, pretty careful statement. 

Some have gone beyond that and suggested that if you have a 

person of my ethnic, religious, racial background on the bench, they 

are more likely to rule for me than if not. 

Do you not think that the oath that a judge takes that they must 

be impartial, they should not be a respector of persons, and do 

equal justice to the poor and the rich sets up an ideal vision of a 

judge who, no matter what their ethnicity is, that they will give everybody before them a fair shake, no matter what the party’s ethnicity is? 

Judge DAVILA. Well, thank you, Senator. And I appreciate your 

eloquence and I agree with your statement. Justice is blind. There 

is only one rule of law, and that article that you reference was an 

article from our local town newspaper, I believe, upon my appointment. And I think the title of that, as I recall, was local—it might 

have been ‘‘Local Boy.’’ I just don’t remember now. But it was 

‘‘Local Attorney Moves to the Bench.’’ 

Senator SESSIONS. And you do not vouch for the perfect accuracy 

of the quotes. Is that what you are suggesting, that it was not your 

word, it was what the newspaper said you said? 

Judge DAVILA. Well, no, sir, Senator. What I’m saying is I agree 

with your statement. There is one rule of law, Senator, and we do 

290 

bring our backgrounds to our employments, our careers, our jobs, 

and those backgrounds serve us well as a judge. 

I can tell you, Senator, my background has helped me to develop 

a character that has assisted me in establishing a courtroom that 

affords dignity to victims, to witnesses, to litigants, all litigants 

who come in my courtroom, and I’m proud of that. 

I should tell you, Senator, that when it comes, however, to making a decision on a case, the background that was referenced perhaps, that is separate and apart, because as judges, we make our 

decisions without bias, impartially, and we look at the law, including precedent, and apply it to the facts. And we, therefore, continue 

the system of justice that is blind, as I’ve indicated. 

Senator SESSIONS. And your commitment is to provide that equal 

justice to each and every party before you, regardless of their ethnicity, race, education, or religion. 

Judge DAVILA. It is. And if I am fortunate enough to be confirmed, I would do that, Senator. 

Senator SESSIONS. I think that is the ideal of American justice, 

I really do, and why people come here from all over the world, because they feel like that no matter who they are, if they own some 

property, nobody can come and take it from them; they cannot be 

incarcerated without the proper rules applying, they get a fair day 

in court, and that applies across the board. 

And the whole strength of the American system is to find the 

truth and to apply it fairly to the parties before you. Some, I think, 

get to believing there is no truth and that it is just a matter of perspective, but I think that is contrary to the ideal of the American 

legal system. 

Thank you very much. Judge Saldan ̃ a, you made a comment back 

when you were in law school that indicated a very strong belief in 

affirmative action and that because—and you say, quote, ‘‘It offends me that an Anglo can take my seat, because the admissions 

Committee is unwilling to consider my background.’’ 

To what extent do you think objective criteria for deciding admissions to universities is legitimate and to what extent do you think 

they should look beyond that to provide preferences or, inevitably, 

adversities to people of different ethnic backgrounds? 

Judge SALDAN ̃ A. Thank you, Senator, for that question. I was 

representing the Hispanic Law Students Association at the time 

that I made that statement and it was after a ruling by the firth 

circuit, I believe. 

The Supreme Court has spoken on affirmative action and has 

held that race is a factor that can be considered, but it must be rationally based. And if I am confirmed, I can assure you, Senator, 

that I will apply the existing law in that area and apply it to the 

facts of the cases before me. 

Senator SESSIONS. The Supreme Court expressed a very clear 

view that in America, preferences should not be provided to one 

ethnic group or racial group over another, basically, except under 

certain circumstances. Would you agree with that? 

Judge SALDAN ̃ A. Yes, I do, Senator. 

Senator SESSIONS. And that strict scrutiny should be applied, 

which means a very careful review of any situation in which we 

291 

give one ethnic group or racial group or religious group an advantage over another. 

Judge SALDAN ̃ A. Yes, Senator, and that is what I would follow. 

That is the state of the law. It is very clear, and I will follow that, 

if confirmed. 

Senator SESSIONS. Thank you. Well, I appreciate the opportunity 

to have this hearing, Mr. Chairman, to ask these questions. Followup questions will be submitted to you. Your backgrounds have been 

evaluated. The FBI has done backgrounds. The White House has 

done backgrounds. Your Senators who support your nomination 

have checked you out. 

And those are all good things, because you are asking to be given 

a lifetime appointment, launched forth from the Federal bench 

without an opportunity to be second-guessed pretty much, except at 

the appellate court. 

So it is an important office you are seeking. We try to do our 

duty, and I appreciate the comments that you have given us today. 

Senator FRANKEN. Thank you. I would like to thank my friend, 

the Ranking Member. And, yes, these are lifetime appointments. So 

that is why I let you go for as long as you wanted. 

[Laughter.] 

Senator FRANKEN. And the Ranking Member is correct. The 

hearing record will be held open and it will be held open for a 

week. 

In closing, I just want to thank the Ranking Member and I want 

to thank each of you for your testimony today and for all of your 

public service. You are all very impressive in your life stories and 

your accomplishments. 

I just want to say something, because the Ranking Member 

started to get on this, sort of the theme, we talked about your experience as a migrant worker, as the daughter of a migrant worker, 

and your statements for La Raza. 

I think that every American and every person intuitively knows 

that a judge brings his or her experience to the court. I do not 

think anyone can doubt that. And Oliver Wendell Holmes, I believe, said—it was he who said something to the effect of that the 

law is experience, and I do not think there is any contradiction between that and the ability of judges to use their experience in a 

way that is consistent with exercising the rule of law. 

So I value the diversity that people of different backgrounds, as 

the Senator said, is what makes our country different, as the people from all over the world come, and I think it is valuable to have 

people from all over the world sit as judges on our courts. We have 

a Holmes, a Battaglia, Davila and Saldan ̃ a. 

So we will hold the record open for 1 week for submission of 

questions for the nominees and other materials. 

This hearing is now adjourned. 

[Whereupon, at 3:30 p.m., the hearing was concluded.] 

[Questions and answers and submissions for the record.] 

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(331) 

NOMINATIONS OF MAX O. COGBURN, NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF 

NORTH CAROLINA; MARCO A. HERNANDEZ, 

NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE DISTRICT OF OREGON; MICHAEL H. SIMON, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF OREGON; STEVE JONES, NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

GEORGIA; MICHELE M. LEONHART, NOMINEE TO BE ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE; 

PATTI B. SARIS, NOMINEE TO BE A MEMBER AND CHAIR OF THE UNITED STATES 

SENTENCING COMMISSION; AND, STACIA A. 

HYLTON, NOMINEE TO BE THE DIRECTOR 

OF THE UNITED STATES MARSHALS SERVICE 

WEDNESDAY, NOVEMBER 17, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10 a.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, 

presiding. 

Present: Senators Kohl, Feinstein, Whitehouse, Klobuchar, 

Franken, and Sessions. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. 

SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. The hearing will come to order. And I welcome everyone here. Our Ranking Member, Senator Sessions, is on 

his way, but I’ve been given clearance to get underway while he 

makes his way over here. 

332 

The order of proceeding is that I will make a brief opening statement, followed by that of Ranking Member Sessions. And if anybody else cares to make an opening statement, we will do that, and 

then we will turn to the Senators who would like to make introductions of the nominees from their States, and we will take that in 

order of seniority. Then we will have two panels. The first will be 

the four nominees to the district courts and the second will be the 

three nominees to the executive agencies. Each nominee will have 

the chance at that time to introduce any guests they may have 

with them, family members. And I welcome all of you here today. 

The seven nominations that we will consider are Max Cogburn, 

nominated to the United States District Court for the Western District of North Carolina; Judge Marco Hernandez and Michael 

Simon, nominated to the U.S. District Court for the District of Oregon; Judge Steve Jones, nominated to the U.S. District Court for 

the Northern District of Georgia; Michele Leonhart, nominated to 

be Administrator of Drug Enforcement at the Department of Justice; Judge Patti Saris has been nominated to be a member and 

chair of the U.S. Sentencing Commission; and, Stacia Hylton has 

been nominated to be the Director of the United States Marshals 

Service. 

We welcome each of these nominees and their families and their 

friends here to the U.S. Senate. 

We have a full slate and a busy floor schedule this morning. So 

in the interest of efficiency, we will get straight to the order of 

business. 

In the absence of Senator Sessions, why do I not turn to Senator 

Feinstein for any opening statement she might care to make? 

PRESENTATION OF MICHELE M. LEONHART, NOMINEE TO BE 

ADMINSTRATOR OF THE DRUG ENFORCEMENT, DEPARTMENT OF JUSTICE BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. The 

only statement I wanted to make is one on behalf of Michele 

Leonhart. Would it be appropriate for me to do it at this time? 

Senator WHITEHOUSE. Of course. 

Senator FEINSTEIN. Thank you very much. I am very pleased to 

introduce her. She has been nominated to serve as Administrator 

of the DEA. She has had a very distinguished career with that organization, which includes several critical roles in my home State 

of California. 

In 1997, she became the first woman to head a DEA Field Division when she was named Special Agent in Charge for San Francisco. She managed DEA operations in San Francisco until September 1998, when she became Special Agent in Charge of the Los 

Angeles Field Division, one of DEA’s largest. She continued in that 

position until March of 2004, when she was confirmed as Deputy 

Administrator. 

She and her family continue to maintain a residence in California, and we are very proud to call her one of our own. 

Ms. Leonhart has served as the Acting Administrator for the 

DEA since November of 2007, for 3 years. She was unanimously 

confirmed by the Senate to be Deputy Administrator in 2004. 

333 

So the members of this Committee are already familiar with her 

outstanding qualifications and excellent work in enforcing the Nation’s controlled substances laws, but I would like to briefly just 

highlight some of her accomplishments. 

Under her leadership, DEA has reached record-breaking levels of 

extraditions, drug and asset seizures, and revenue denied to drug 

trafficking organizations. She realigned resources to expand DEA’s 

foreign presence to combat emerging threats and enhanced intelligence-sharing with foreign countries, to include Mexico and Colombia. 

She implemented a plan to deploy the first team of DEA agents 

to conduct counter-narcotics operations in Afghanistan post-9/11, 

leading to the investigation and prosecution of Afghan drug lords. 

Under her leadership as Acting Administrator, the DEA recently 

completed one of its most successful joint international drug operations in history, Operation Xcellerator. This 21-month effort, terminating in February of 2009, dealt a severe blow to the violent 

Sinaloa Cartel in Mexico, resulting in more than 750 arrests and 

$59 million seized. 

She has worked with law enforcement, community and school 

leaders. She has educated children, parents and teachers about 

drug prevention. She explained the importance of these efforts at 

the 18th annual Drug Abuse Resistance Education Conference, 

when she said, ‘‘Every child you get through to is one less member 

of a dealer’s customer base.’’ 

Over the years, she has received numerous honors for her 

achievements, including awards for meritorious service from both 

Presidents Clinton and Bush. 

There are, and will continue to be, serious challenges confronting 

the DEA, as violent drug trafficking organizations and gangs continue to threaten not just our Nation, but countries around the 

world. And the DEA needs a leader who has the talent, experience, 

and commitment to fight these ruthless criminals. 

With her nearly 30 years of dedicated service and longstanding 

record of success, Acting Administrator Leonhart will continue to 

provide strong leadership as the DEA fulfills its vital mission. 

I urge my colleagues to support her nomination. Thank you very 

much, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Feinstein. 

Our wonderful Ranking Member has arrived. I do not know if 

you would care to make an opening statement of any kind at this 

time. 

Senator SESSIONS. I think it is great to have these Senators here 

and would be delighted to hear from them before I make any comments. 

Thank you all for coming and expressing your views on these important nominations. 

Senator WHITEHOUSE. Let me then turn to the last member 

present from the Committee, Senator Franken, who may have a 

word or two about somebody perhaps from White Bear Lake. 

334 

PRESENTATION OF MICHELE M. LEONHART, NOMINEE TO BE 

ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT 

OF JUSTICE BY HON. AL FRANKEN, A U.S. SENATOR FROM 

THE STATE OF MINNESOTA 

Senator FRANKEN. Well, actually, Michele Leonhart is from 

White Bear, but I will make it quick, because Senator Feinstein 

covered her terrific career. But I do want to make that Minnesota 

connection, thank you. 

We have a number of remarkable individuals here today, and 

each of you should be very proud of your work and your achievement, and congratulations on your nominations. 

I would like to talk about two nominees here today. First is 

Michele Leonhart, who President Obama has nominated to be Administrator of the Drug Enforcement Administration, a position, as 

Senator Feinstein said, she has exercised in an acting capacity 

since November 2007. 

Ms. Leonhart grew up in White Bear Lake, Minnesota. As the 

Chairman said, her first posting at the DEA was in Minneapolis, 

where she was the first woman to serve as a special agent. She has 

served for 30 years at the DEA. 

Ms. Leonhart may have moved from Minnesota and I heard Senator Feinstein claim her as their own, as well, which I resented. 

But Minnesota has not forgotten Michele. In fact, every time a representative from the Minnesota Police and Peace Officers Association visits my office, the first thing they say is, ‘‘When are you 

going to confirm Michele Leonhart,’’ and my answer is, ‘‘Hopefully, 

very, very soon,’’ and I am happy to see you here. 

Mr. Chairman, let me also say hello to Judge Saris. I have 

known Judge Saris and her husband, Arthur, for a long time. And 

aside from being a brilliant jurist and a dear friend, Judge Saris 

has one distinction that no one else on this panel has. Her wonderful daughter, Celia Segal, worked for me as a staff assistant in my 

office, and Celia is an absolute gem. 

Everyone in our office loved her and our staff and our constituents—and I actually chose her to give a tour of the Senate to Garrison Keillor when he was visiting town a few months later, and he 

remarked on how wonderful she was. 

So thank you so much, Judge Saris, for your daughter, and it is 

good to see you. 

Senator WHITEHOUSE. Senator Klobuchar. 

PRESENTATION OF MICHELE M. LEONHART, NOMINEE TO BE 

ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT 

OF JUSTICE BY HON. AMY KLOBUCHAR, A U.S. SENATOR 

FROM THE STATE OF MINNESOTA 

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

Thank you. 

So, Ms. Leonhart, you get not one, not two, but three Senators 

introducing you. So I suppose it is like how many Senators do you 

need to screw in a light bulb or something. 

But I am just honored to be here to be one of the many voices 

supporting you to lead the Drug Enforcement Administration. 

As was mentioned, Michele grew up in White Bear Lake, Minnesota and attended Bemidji State University in Bemidji, MinVerDate Nov 24 2008 11:48 Jul 13, 2011 Jkt 066817 PO 00000 Frm 00342 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66817.TXT SJUD1 PsN: CMORC
335 

nesota. And when you look at her career, it is full of firsts. She 

graduated first in her class from the Baltimore Police Academy in 

1978; first in her class at the DEA Training Academy in 1981; first 

female agent ever to serve in the DEA’s Minneapolis field office; 

and, in 1997, she became the first woman to head a DEA field division when she was appointed as special agent in charge in San 

Francisco. 

In fact, the only time the word ‘‘second’’ is used regarding 

Michele Leonhart is in this context. If confirmed by the Senate, she 

will become the second woman ever to serve as administrator of the 

DEA. 

We are very excited about this nomination. I was in law enforcement in Minnesota for 8 years as the county attorney for Minnesota’s largest county, and I have repeatedly heard from my 

friends in law enforcement many compliments about Michele’s 

work; that she has an absolutely tireless work ethic that inspires 

everyone around her; that she embodies the principle of leading by 

example; that she works across jurisdictional lines, Federal, State 

and local, and I think we all know crooks do not care about those 

jurisdictional lines and the people that we are supposed to protect 

do not care who enforces the law, whether it is local, State or Federal. They just want us to get the job done. And that she also has 

earned the respect and the trust of all the people that she has 

worked with at different levels of law enforcement. 

So I am very proud to support her nomination and believe that 

she is the right woman, the right Minnesotan, the right person for 

the job. 

Thank you. 

Senator WHITEHOUSE. As I indicated earlier, we will now go by 

order of seniority of the Senators who are here with nominees to 

introduce, and we will lead with Senator Ron Wyden of Oregon, 

who has not one, but two nominees before us. 

Senator Wyden. 

PRESENTATION OF MARCO A. HERNANDEZ, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF OREGON AND 

MICHAEL H. SIMON, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE DISTRICT OF OREGON BY HON. RON WYDEN, A U.S. 

SENATOR FROM THE STATE OF OREGON 

Senator WYDEN. Thank you very much, Mr. Chairman. And let 

me spare you the filibuster. I would ask unanimous consent to 

make my prepared remarks a part of the record. 

Senator WHITEHOUSE. Without objection. 

Senator WYDEN. Thank you very much, Mr. Chairman. This is a 

great thrill to be here to nominate two exceptional individuals, 

Judge Marco Hernandez and Michael Simon, to serve as U.S. district court judges for the district of Oregon. 

I have known both of them for many years and it is wonderful 

to be here to introduce them. 

I would also like to be able to introduce the family members and 

honored guests that are here with both nominees. 

Judge Hernandez is joined by his wife, Mary Beth; daughter, 

Alicia; son, Daniel; and, his parents, Frank and Rosa Hernandez. 

336 

Oregon’s Chief Judge Paul De Muniz and his wife, Mary, are also 

here. 

Mr. Simon is joined by his wife, Oregon State Senator Suzanne 

Bonamici, and his daughter, Sara. Michael’s son, Andrew, who was 

also an intern in my office, is overseas, but I can tell you, your 

hearing is being streamed live on the Internet, and I am sure it 

is not the only household where that is being done. 

A couple of comments about both of the individuals, because they 

are both exceptional people. With respect to Judge Hernandez, 

Marco Hernandez, Chairman Whitehouse, what is striking is I 

urged two Presidents of different political parties to nominate 

Judge Hernandez, because he is such an exceptional individual. 

Without going through all of this, when my friend, Gordon 

Smith, led the nomination process, Judge Hernandez was nominated for the district court by George Bush, and I supported that 

recommendation vigorously. Unfortunately, the 110th Congress 

was unable to act on his nomination. 

So in the 111th Congress, I recommended Judge Hernandez once 

more, this time with the strong support of Senator Merkley. So we 

are very pleased that President Obama has chosen Judge Hernandez to be nominated for the bench. 

Now, it is not exactly hard to decipher why leaders of both political parties are such strong supporters of Judge Hernandez, because his life is essentially a billboard for the American dream. It 

is an exceptional story. At age 17, he moved to Oregon by himself. 

He had to support himself. 

He took a job as a dishwasher, found his way to a better job as 

a janitor, and eventually became a teacher’s aide. At that point, he 

began taking night classes at a local community college, with the 

dream of one day being able to go to a 4-year school. 

Finally, he was able to enroll at Western Oregon State College 

and quickly showed his ability to excel there. He earned the Dewey 

award as the outstanding male student in his class. 

He has a demonstrated commitment to public service. He worked 

at Oregon Legal Services, representing farm workers, and he was 

a deputy district attorney. 

What I like especially about him is his interest, and there is sure 

going to be a premium on this in the years ahead, at looking for 

creative solutions. He pioneered an innovative domestic violence 

program to aggressively pursue offenders and created a new program for those with mental illness. 

So Judge Hernandez, an individual with resounding support 

from both sides of the aisle, additionally, has the support of a broad 

range of legal organizations, and I give him my strongest possible 

support as one of the two judges that Oregon Senators would like 

to see on the bench. 

With respect to our other outstanding nominee, Michael Simon, 

he, too, has a diverse and distinguished record of public service. He 

has been a litigator, a professor, and a judge pro tem, just to 

scratch the surface. 

He graduated summa cum laude from UCLA and then graduated 

from Harvard Law School, as well. He has been a trial judge and 

a special U.S. assistant attorney. Throughout his work in both the 

337 

public and private sectors, he has stepped up to be a volunteer 

with many legal and civic groups. 

There is virtually no organization in our State, Mr. Chairman, 

that does not seek out the services of Michael Simon. When you see 

materials for various groups to sign up for civic causes, Michael’s 

name is invariably one of them, because he has such an extensive 

participation in local nonprofit organizations. 

He is a pillar of the community, an exemplary member of the 

bar, and outstanding nominee for the Federal bench. 

Finally, these two Federal judicial vacancies must be filled 

promptly. And one of the seats, the seat has been open for 656 

days, Mr. Chairman and colleagues, and is classified as a judicial 

emergency. 

We all understand that justice delayed is justice denied, and the 

people of my home State deserve a full Federal bench. 

So I am very pleased, Mr. Chairman, to be able to present these 

two extraordinary lawyers for confirmation to the bench. 

I am going to be in and out, as there is a hearing in the Senate 

Finance Committee on Health Care, and suffice it to say, Senator 

Merkley has my proxy this morning, because he and I share the 

view, as I did with Senator Smith, on Judge Hernandez, that these 

are exceptional individuals. 

We are grateful for your time and your consideration this morning. 

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

Senator WHITEHOUSE. Thank you, Senator Wyden. It is important to the Committee to hear the views of our colleagues who 

know these candidates so well. And with respect to Senators who 

depart after their remarks, it is actually our expectation that Senators will depart after their remarks, knowing how busy everybody 

is around here. 

So, Senator Wyden, thank you. 

Senator Chambliss, welcome. 

PRESENTATION OF STEVE JONES, 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, Senator Whitehouse, 

Senator Sessions, members of the Committee. I appreciate very 

much the opportunity to come visit with you this morning and to 

introduce an outstanding Georgian, Superior Court Judge Steve C. 

Jones, who has been nominated to serve as United States District 

Court Judge for the Northern District of Georgia. 

I would, first of all, like to ask unanimous consent that a letter 

from my colleague, Senator Isakson, be entered into the record. 

Senator WHITEHOUSE. Without objection. 

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

Senator CHAMBLISS. This letter is, obviously, in strong support of 

Judge Jones. And Johnny could not be here, as he has, just like 

Ron, a Commerce Committee meeting that he is obligated to attend. 

338 

Steve Jones is a native of Athens, Georgia, where he has lived, 

worked, demonstrated his commitment to the community, and offered his time and leadership to various organizations. 

Like Senator Isakson and myself, he is a graduate of the University of Georgia, both undergrad and law school; and, like Johnny 

and me, he is not particularly happy with our football season. So 

I would appreciate questions today about that when he comes before you. But we all know we will be back. 

Judge Jones began his legal career as an assistant district attorney before becoming a municipal judge in Athens. Since 1995, he 

has served on the bench as a superior court judge of the Western 

Judicial Circuit, which covers Clark County and Oconee County. 

In this capacity, Judge Jones has presided over both civil and 

criminal cases. He has also supervised the circuit’s felony drug 

court for 6 years. 

Judge Jones’ list of honors and awards are truly too numerous 

to mention here. They are a testament to the high esteem in which 

his peers and his neighbors now hold him. But I do want to mention a very few of them. 

They include the Georgia State Bar’s Distinguished Judicial 

Service Award; the Georgia Legal Services Program’s Georgia Justice Builder Award; the University of Georgia Presidents Fulfilling 

the Dream Award; the Boy Scouts of America’s Distinguished Citizen Award; the Chief Justice Robert Benham Award for Community Service Beyond Official Work; and, the Julian Bond Humanitarian Award. 

In addition to his various legal memberships, Judge Jones serves 

on the board of directors of the University of Georgia Alumni Association, the Athens Area Community Foundation, Hope Haven and 

Bread for Life, and is a member of the National Football Foundation College Hall of Fame, the A. Philip Randolph Institute, and 

the Athens Rotary Club. 

Steve is married to his lovely wife, Lillian, and I will let him introduce his family that is here with him this morning. 

In addition to juggling his legal and community duties, he is a 

deacon at Ebenezer Baptist Church West in Athens. 

I have had the privilege of introducing any number of individuals 

to this distinguished Committee over the years and whether it was 

during the Bush administration or now during the Obama administration, I have had Democrats and Republicans who have complemented President Bush’s nominees, but I will have to say I have 

never had any more support shown in a bipartisan way for the 

nomination of Judge Steve Jones. 

He is that well respected by all political party members in our 

State. They know him well. They know he has served his community well on the bench as a superior court judge, and he is going 

to make an outstanding Federal district judge. 

So I am very pleased, Mr. Chairman, to be here today to put in 

nomination and recommendation the nomination of Judge Steve 

Jones. 

Thank you very much. 

Senator WHITEHOUSE. Thank you, Senator Chambliss. We appreciate very much your being here and we know that your and Senator Isakson’s support of this nominee will be very helpful to movVerDate Nov 24 2008 11:48 Jul 13, 2011 Jkt 066817 PO 00000 Frm 00346 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66817.TXT SJUD1 PsN: CMORC
339 

ing him rapidly through the process and into the office that he 

seeks. Thank you. 

Next, Senator Richard Burr. 

PRESENTATION OF MAX O. COGBURN, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 

CAROLINA BY HON. RICHARD BURR, A U.S. SENATOR FROM 

THE STATE OF NORTH CAROLINA 

Senator BURR. Senator Whitehouse, Senator Sessions, members 

of the Committee, it is an honor to be asked to be here to introduce 

one of our nominees, Max Cogburn, of Asheville, North Carolina. 

Married, two children, a daughter who has followed in his legal 

footsteps and has been admitted to the bar in North Carolina, and 

I am sure Max will have an opportunity to introduce any family 

members that he has brought with him today. 

President Obama has nominated Max to the Federal bench in 

North Carolina’s western district. He is an excellent choice and I 

believe will be a great addition to the court. 

Max is a longtime resident of Buncombe County and his family 

roots in the western North Carolina mountains run very deep. 

While his family’s history in western North Carolina is impressive, 

Max has not rested on that history. 

He was admitted to the bar in 1976 and has made a name for 

himself, with a strong record in his legal career and in public service; an assistant U.S. attorney; a chief assistant U.S. attorney; 

magistrate judge; and, currently, a partner at Cogburn & Brazil. 

During his 12 years as a Federal prosecutor, he was also the lead 

attorney on the Organized Crime and Drug Enforcement Task 

Force. As an assistant U.S. attorney, he was responsible for prosecuting murder cases, drug trafficking, voter fraud, among other 

Federal crimes. 

His service in the U.S. attorney’s office brought with it a host of 

honors and awards for his service from the U.S. Marshals Service, 

the Park Service, and the FBI, among others. 

He has a law degree from Samford and did his undergraduate 

work at UNC-Chapel Hill. Typically, for me, UNC-Chapel Hill 

would be a disqualifier, but given that I have now had two children 

graduate from Chapel Hill, it is now perceived as an asset for any 

nominee. 

Despite coming down from the mountains for school, the mountains have always been home for Max Cogburn and it is clear that 

they mean a great deal to him and to his family. I believe he brings 

with him a perspective that will serve the court and western North 

Carolina extremely well. 

In addition to his legal career, which certainly qualifies him for 

the bench in its own rights, for 4 years, he served as president of 

the Cogburn’s other family businesses, a dude ranch outside of 

Asheville, North Carolina; time spent others how to herd cattle and 

shoot straight has got to be a useful tool. 

Another selling point at the ranch, if I have read the sales pitch 

correctly, just one television, something that many of us would welcome the opportunity after coming off of campaign, to limit people 

to the number of TVs they have, it might make it a little bit easier. 

340 

Mr. Chairman, out of all the qualifications that Max Cogburn 

brings to this nomination, let me say this. He is a good man and 

we need good individuals to serve on our bench. 

I highly recommend to the Committee that we move as expeditiously this nominee as we can. 

I thank the chair. 

Senator WHITEHOUSE. Thank you, Senator Burr. 

Your colleague, Senator Hagan. 

PRESENTATION OF MAX O. COGBURN, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 

CAROLINA BY HON. KAY HAGAN, A U.S. SENATOR FROM THE 

STATE OF NORTH CAROLINA 

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

Sessions. 

I, too, join my colleague, Senator Burr, in welcoming Judge 

Cogburn, and thank him for being here today. As you can see, this 

is a bipartisan recommendation. It is extremely important to me 

that North Carolina have highly capable representation on the Federal courts. 

Judge Cogburn is exactly the type of legal mind that we need as 

a judge on North Carolina’s western district court. 

Mr. Chairman, I appreciate you holding this confirmation hearing today. It is my hope that hearings like these will allow the Senate to move exceptional nominees along faster and confirm them in 

a more timely manner. 

I recommend Judge Cogburn because of his distinguished record 

as a jurist and attorney in both the public and private sectors. 

After earning degrees from Samford University Cumberland School 

of Law, and UNC–Chapel Hill, he entered private practice. Judge 

Cogburn has worked in private practice on and off since 1976, handling criminal felonies, misdemeanors, civil torts, domestic cases, 

and corporate work. 

Judge Cogburn also served as an assistant United States attorney from 1980 to 1992, where he prosecuted murder cases on the 

Cherokee Indian Reservation. He also prosecuted drug trafficking, 

voter fraud, and a wide variety of Federal crimes. 

During his time with the U.S. attorney’s office, Judge Cogburn 

served as the lead attorney on the Organized Crime and Drug Task 

Force, as well as the chief assistant U.S. attorney. And from 1995 

to 2004, Judge Cogburn served as a magistrate judge on the United 

States District Court for the Western District of North Carolina. 

As a magistrate judge, he ruled on cases involving sexual harassment, racial discrimination in employment, fraud, age discrimination, products liability, and medical malpractice. 

Judge Cogburn is a good steward of the law. He received the 

American Bar Association’s highest rating of well qualified. He has 

the skills and the expertise that this position requires, and I am 

thrilled to be here today to discuss Judge Cogburn’s outstanding 

qualifications to serve on the district court for the Western District 

of North Carolina. 

Judge Cogburn brings decades of legal and judicial experience to 

the bench, and I am confident that Judge Cogburn will serve on 

the bench with distinction. He comes today with his wife, Fran, 

341 

and his daughter, Casey, who is practicing law in Huntsville, Alabama. His mother, Mrs. Cogburn, of Asheville, North Carolina, also 

is joining him today. 

I want to thank the Judiciary Committee for holding this hearing, and thank you, Mr. Chairman. 

Senator WHITEHOUSE. Well, we thank both of you, Senator Burr 

and Senator Hagan, for coming here to support your nominees. 

As I said, it is extremely important when the two Senators from 

the home State who know these candidates firsthand express their 

strong support. 

I think when that support is bipartisan, as it is in your case, it 

highlights once again the institutional value in this body of deferring to and giving great weight to the recommendations of the 

home State Senators when they are in accord as to the district 

judge nominee who is appropriate for their State. 

So thank you very much for being here. 

We turn to our final presenter, Senator Jeff Merkley of Oregon. 

PRESENTATION OF MARCO A. HERNANDEZ, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF OREGON AND 

MICHAEL H. SIMON, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE DISTRICT OF OREGON BY HON. JEFF MERKLEY, A 

U.S. SENATOR FROM THE STATE OF OREGON 

Senator MERKLEY. Thank you very much, Mr. Chairman, Ranking Member Sessions, and Senator Franken. It is a pleasure for me 

to join Senator Wyden in introducing Oregon’s two nominees for 

the district court. 

It is terrific that their families were able to join them and that 

our own Oregon Chief Justice Paul De Muniz and his wife, Mary, 

were able to come, as well. 

Judge Marco Hernandez has served Oregon’s legal community 

with great distinction in a variety of roles, from representing underserved communities as a Legal Aid attorney to his experience as 

a deputy district attorney to his 15 years as a State court judge. 

He has devoted his life to a fair and just legal system, and his 

diverse experience will serve him very well in the capacity as a district judge. 

Judge Hernandez is imminently qualified for this nomination 

and would be a terrific addition to the bench. 

Turning to Michael Simon, whether it be his extensive pro bono 

legal work or his substantial involvement in civic organizations, 

like the Classroom Law Project, Michael has made his mark as an 

outstanding citizen of the Oregon legal community. 

He is respected as a top lawyer in commercial litigation, appellate law, and constitutional law, and is respected well outside his 

northwest roots and is imminently qualified to set the standard for 

what it means to be a good judge. 

The U.S. District Court of Oregon has had a reputation as a 

place—as a well run and even-handed court led by outstanding professional jurists. Both of these nominees exemplify the spirit of 

public service and excellence, have been the hallmark of the Oregon bar, and will add to the Oregon judicial legacy. 

Thank you so much for scheduling this hearing and expediting 

consideration of these nominees as we seek to fill these positions 

342 

so that, indeed, the system can function on behalf of better justice 

for our citizens. 

Thank you. 

Senator WHITEHOUSE. Thank you, Senator Merkley. We very 

much appreciate your and Senator Wyden’s expressions of support 

for these two nominees, and, certainly, as busy as everybody is 

right now in the Senate, the fact that both of you are here is significant. We appreciate it immensely. 

We will now take about a 2-minute break while the table is reset 

and the four judicial nominees come forward and take their places. 

[Recess.] 

Senator WHITEHOUSE. The way that we will proceed is that our 

Ranking Member will give his statement. He was very courteous in 

deferring to the other Senators who had other business to get their 

statements into the record. So we will turn to him, and we will 

then introduce the nominees and give them each a chance to introduced any guests or family or friends who are here with them. 

Then at the conclusions of all those introductions, there will be 

a period of questioning for the entire panel, with each Senator to 

have 5 minutes for the panel. 

So without further ado, Ranking Member Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. And I would like 

to thank all the people who have worked to move these nominations forward, and congratulate the nominees on receiving the nomination of the President of the United States to a very August and 

important position of Federal judge. 

I understand this will be the last nomination hearing for the 

111th Congress and with today’s hearing, the Committee has held 

hearings for 110 nominees, including two nominees to the Supreme 

Court, which was a pretty good spectacle and effort. A lot of effort 

and work had to go into that. Eighty nominees to the Federal circuit and district courts, and 28 nominees to positions within the executive branch, a pretty big and significant number. 

I would just note, about the nomination, most of you, I believe, 

have been nominated in July. Judge Hernandez was nominated by 

President Bush in July of 2008 and did not clear before the Congress recessed, and that is the reason we have a 600-day vacancy 

rate, really, I guess, in his nomination. 

So I am glad that you are back and I appreciate President 

Obama re-nominating you. I think that was a nice gesture and it 

is one that maybe will be positive for all of us here. 

The nominees, of course, have been nominated for a lifetime appointment. This hearing is the only opportunity we have to help 

our Senate to develop the information necessary to advise and consent on a nomination. 

It seems to me that we do have divergent views in the Committee and in the Senate on the philosophy and approach to judging. Judicial activism is something most all of us, I think, believe 

is not a healthy thing for a judge to display, but we disagree sometimes what activism is. 

343 

I think it is when a judge fails to adhere to the rule of law or 

fails to recognize the Constitution as the supreme law of the land, 

and, instead, substitutes his or her own views or policy preferences 

in place of the law. I could say even empathy or politics or ideology 

could interfere with the ability of a judge to be the dispassionate 

and neutral arbiter that I believe they should be. 

Those are some of the things that have been discussed at some 

length in this process of nominations, but it is not unimportant. It 

is a big deal, because a judge who is not bound by the law is really 

not adjudicating. It is something else akin to politics or advocacy 

or something else. 

As you take this lifetime appointment, I have had some of my 

Federal judge friends that say you give up your constitutional 

rights. Well, in some ways, you do give up things that you would 

be free to do in the private sector you cannot do as a Federal judge. 

Also, I would say to you that you give up the advocacy role and 

become the arbiter, and a fair arbiter is what you are paid to do 

and I hope and pray that you will all be able to do that. 

We have on the second panel a number of nominees for the important administrator for the Drug Enforcement Administration, 

director of the Marshals Service, another very important office, and 

the chair of the Sentencing Commission, another very important 

nomination. 

All of these nominees have had their records reviewed in depth 

by staff and Senators, and I will have some questions as we go forward. You might think, out of all my life, why do you not find the 

one thing you want to complain about. Well, I think it is an opportunity to ask that. 

Obviously, the good things are there and have been part of the 

record or you would not have been nominated. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Sessions. 

Now, I will turn to the nominees. We are delighted to have Max 

Cogburn with us, currently a partner at Cogburn & Brazil. He has 

a distinguished career of service as a United States magistrate 

judge. 

For those of us who practiced in Federal court, we know how important and valuable that experience is for a nominee. You are before a panel that is chaired and ranked by two former United 

States attorneys. 

Senator Sessions and I have both had the opportunity to witness 

firsthand the dedication and the competence and the esprit de 

corps and the determination to produce justice that AUSAs bring 

and we are particularly pleased that not only were you an AUSA, 

but you were also, what I would call in my office, the first assistant; I gather, in your office, it was appropriate to call it the chief 

assistant, and that you led the OCDETF task force, which requires 

you not only to be an excellent prosecutor, but, also, quite a good 

diplomat and negotiator among all of the elements of the Federal 

Government. 

I am particularly pleased, as a New Englander, to see that you 

were born in New England. We welcome you for any opening statement or introductions you would care to make. 

344 

STATEMENT OF MAX O. COGBURN, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 

NORTH CAROLINA 

Mr. COGBURN. Thank you very much, Senator. If I might, first, 

just thank Senator Hagan and Senator Burr for the generous remarks that they made. I am very, very much honored that they 

took the time out of their busy schedules to come here and introduce me. 

I, first, would like to thank President Obama for his confidence 

in me by nominating me to the Federal bench; Senator Leahy for 

allowing me to come to this Committee meeting; and, Senator Sessions, for the same reason. 

Senator Whitehouse, I appreciate you chairing this meeting 

today. And, Senator Franken, I thank you for coming today and 

spending time here to consider my nomination. 

I would like to introduce some of the members of my family who 

are here today. I have my mother, Mary Cogburn, who is seated 

back here, and she is originally from Charleston, South Carolina, 

and has come here to be with me today. 

My wife, Fran Cogburn, who is originally from Decatur, Alabama. I met her when I was in law school there at the Cumberland 

School of Law at Samford and she was a student at Samford University there in Alabama. And she still has family there. She has 

three sisters who are living currently in Decatur, Alabama, and another sister who is living in Texas at the present time. The three 

are living there. 

My daughter, Casey Cogburn, who is an attorney currently practicing in Huntsville, Alabama. She also went to the Cumberland 

School of Law and she is licensed to practice law in both Alabama 

and North Carolina. 

I have other members of my family who could not be here due 

to other commitments. My son, Tripp Cogburn, is watching this on 

the Webcast, along with his wife, Stacy, and my 5-year-old grandson, Oliver. So they are watching this on the Webcast. 

I have a number of colleagues that I work with that are watching 

this, as well as extended friends and family both in North Carolina, 

South Carolina, and Alabama. 

Thank you very much. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Thank you, Mr. Cogburn. 

We are delighted, also, to be joined by Judge Hernandez. I guess 

we could call him a repeat offender before this Committee. But we 

are delighted to have him back and look forward to a more successful trip through confirmation at this time. 

Your service on the district court and on the circuit court provides excellent background and qualifications for this position, and 

your service to Oregon, legal services over the years, shows a keen 

sense of duty to your community and particularly to those who are 

less favored than others, and we appreciate that very much. 

So welcome, and, please, proceed with any statement or introductions that you would care to make, Judge Hernandez. 

STATEMENT OF HON. MARCO A. HERNANDEZ, NOMINEE TO BE 

UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF 

OREGON 

Judge HERNANDEZ. Thank you very much. I want to thank the 

Committee for having me, Chairman Whitehouse, Senator Sessions, Senator Franken. Thank you for conducting this hearing and 

allowing me to appear before you. 

I want to thank President Obama, President Bush before, Senators Wyden and Merkley for their kind remarks and support 

throughout the process, Senator Wyden, in particular, for a process 

that has now taken years and he has been a supporter of mine 

throughout all of that time. 

There are some people behind me that I would like to introduce 

to you. My mom and dad are here, Frank and Rosa Hernandez. My 

wife, Mary Beth is here; my daughter, Alicia; my son, Daniel is 

here. 

Chief Justice De Muniz, from the Oregon Supreme Court, and 

his wife, Mary, are here and have been longtime supporters. 

I appreciate all of their support and that they are having my 

back and here with me in Washington, DC. And, again, I appreciate the opportunity to be here before you. I welcome your questions. 

Thank you. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Thank you, Judge Hernandez. We are delighted to have you. 

Michael Simon comes to us, he is a partner at a major national 

firm and leads its Portland office. I do not know if you were actually an AUSA, but you were a trial attorney in the Department of 

Justice, what we used to refer to as main Justice. And very pleased 

that you, too, have a New England connection as a Rhode Islander 

and welcome you, welcome any statement or introductions you 

would care to make. 

STATEMENT OF MICHAEL SIMON, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF OREGON 

Mr. SIMON. Thank you, Mr. Chairman. I have no formal statement, but I would like to begin by thanking the President of the 

United States for his nomination. And if I am fortunate enough to 

be confirmed, I thank him and the Committee and the Senate as 

a whole for the opportunity to serve the public as a United States 

district judge in the district of Oregon. 

I also thank you, Mr. Chairman, and Ranking Member Sessions 

for convening this hearing and for listening to our testimony and 

for asking us questions. I also express appreciation to Senator 

Franken for being here. 

I also very much appreciate the very kind words from Oregon’s 

senior Senator, Ron Wyden, and his support and encouragement 

throughout this process. And I also appreciate the very kind words 

and the presence of Oregon Senator Jeff Merkley, also, for his support and encouragement throughout this process. 

I very briefly would like to introduce two of my family members 

who are here today and to acknowledge two family members who 

could not join us today in person. I, first, would like to introduce 

and ask to rise my wife, Suzanne Bonamici. And we have been 

married now for 25 years and for 25 years, a little more than 25 

years, she has been my very best friend. Thank you. 

I also have two wonderful children. My daughter, Sara Simon. 

Thank you. 

Senator WHITEHOUSE. You thought you would get off easy, Sara. 

Mr. SIMON. Sara is a college sophomore. And my other child, my 

son, Andrew, graduated from college a few months ago and is now 

off in graduate school at a far distance. He is watching on the 

Webcast, at least that is what I have been told. And I also understand that my mother, Arlene Simon, is going to be watching on 

the Webcast, as well, and I thank her for beginning my education 

and for instilling character and value traits in me and for which 

I am much appreciative. 

I look forward to answering the questions from the Committee. 

Thank you very much. 

[The biographical information follows.] 

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477 

Senator WHITEHOUSE. Thank you very much. 

Our last nominee on this panel is Judge Jones, who serves with 

distinction on the superior court of the State and is the presiding 

judge on the felony drug court. 

Like Judge Hernandez, he is also a former assistant district attorney in his home State. So we have the prosecutors’ offices, Federal and State, well represented in this panel. 

As a graduate of the University of Georgia, I promised that I will 

follow Senator Chambliss’ injunction and not discuss football. 

Judge JONES. Thank you. 

Senator WHITEHOUSE. You are welcome here for any statement 

or introductions you would care to make, sir. 

STATEMENT OF HON. STEVE JONES, NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF 

GEORGIA 

Judge JONES. Thank you, Senator Whitehouse. I would like to 

thank Chairman Leahy, Ranking Member Sessions, and the Committee for your consideration of my nomination and scheduling of 

this hearing today. 

I would also especially like to thank President Obama for the 

nomination. I feel honored and privileged to be here today. 

I would also like to thank Senator Chambliss for being here 

today and for his introduction, and Senator Isakson for his letter 

of support and introduction. Senators Chambliss and Isakson have 

been really helpful to me and I really appreciate and honor to have 

their support and the support their staffs have given me through 

this entire process. 

I would not be here today without the support of my family and 

friends, and I would like to recognize the ones that are here today 

and two that could not be here today, but are here in spirit. 

I would like to start off, first, by introducing my beautiful wife 

of 20 years, Lillian Kincey. I have made a lot of decisions as a 

judge, but the best decision I ever made was asking her to marry 

me. 

I would also like to introduce my sister, Deloris Ford, and my 

niece, Donna Ford. They both have also played an important part 

in me being here today. 

There are two ladies that cannot be here today, but they are here 

with me in spirit, and, because of their health, they cannot be here. 

And one is my mother, Katie Jones, and the other is my motherin-law, Mrs. Stella Kincey, and they both have been very supportive and I know they are watching and are here with me in spirit today. 

I would also like to acknowledge the remainder of my family and 

friends and my colleagues who could not make the trip, as well as 

my office staff, who are watching via Webcast today. And I would 

also like to thank them. 

And, Senator Sessions, I understand that Auburn beat us last 

week, but it was a great game. 

I will be glad to answer any questions the Committee may have. 

Thank you, Senator Whitehouse. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Thank you, Judge Jones. I cannot guarantee that the Ranking Member will follow Senator Chambliss’ injunction and show mercy for this nominee. 

Senator SESSIONS. No. 

[Laughter.] 

Senator WHITEHOUSE. It is a very solemn thing for members of 

the U.S. Senate to consider nominees for the United States district 

court. It is very important that you have the support of your colleagues from your home State, who know you better than anyone, 

but each Senator also has their own responsibility to inform themselves so they can vote, as their duty in their best lights, requires 

them to vote. 

And as we do that, we are keenly aware that we are voting on 

lifetime appointments; that long after we are gone, you may very 

well still be serving on these district courts, we hope, with great 

distinction. But I think we do bring a perspective about the appropriate role of a judge to our duties, and I would like to share that 

perspective with you and then ask each of you to comment briefly 

on your agreement or disagreement with that perspective. 

It is my belief that judges must do a number of things. One is 

to respect the role of Congress as the 

duly elected representatives of the American people in our system of American democracy. Two is to decide cases based on the 

facts and the law, nothing else. Three is to not prejudge any case, 

but listen to every party that comes before you, powerful or weak, 

rich or poor, irrespective of station or position; to respect the precedent that the Supreme Court and the circuit courts for your districts have laid down and the precedent that exists within your 

own district; and, finally, to limit yourself in your decisions to the 

issues that the court must decide that are properly presented before it. 

It is my belief that those disciplines, which must be self-imposed 

by judges, are key to the successful operation of the carefully balanced system of government that the Founding Fathers created 

and that we all honor and enjoy the fruits of. 

So if I could ask each of you for a comment on that, and I will 

then turn to Senator Sessions for his questioning. 

Mr. COGBURN. Senator, I agree with everything you said, absolutely. That is what a judge is—that is exactly what a judge has 

to do, be impartial, be fair, and follow the law. 

Senator WHITEHOUSE. Judge Hernandez. 

Judge HERNANDEZ. I agree, as well. I think that I would add to 

the mixture that it is important for judges to do all of those things 

with a great deal of judicial temperament and evenness so that the 

parties that are appearing before you trust that you are judging 

these cases in a fair and just way. 

Mr. SIMON. Chairman Whitehouse, I, too, agree with everything 

that you have just described as the qualities and character of judging. 

Judge JONES. Senator Whitehouse, I agree with what you said 

and it is important, because if we fail to do that, then the communities we serve or preside over lose confidence in our courts and, 

as judges, we will not have credibility. 

545 

Senator WHITEHOUSE. Yes. And as we know, for judges, credibility is the coin of the realm and it is the confidence of the American people and the judiciary that allows judicial orders to be followed and it is an important concern, because you do not have an 

army to go and enforce your opinions. 

The opinions and the orders that come down from our courts 

have the weight that they do because the American people accepts 

them and accepts the rigor and the discipline and the fairness that 

you bring to your task. 

So I appreciate that very much and I look forward to your successful process through the confirmation process; I might even hazard to say successful and rapid process. 

Senator SESSIONS. Well said, Mr. Chairman. I think you did set 

forth good standards for judges, and you answered well in affirming that, I think. 

Mr. Cogburn, my daughter went to Cumberland and that is good. 

It is a very fine law school. I am very proud of it. The dean, Dean 

John Carroll is a former magistrate, United States magistrate, and 

does as great job there, and it is a large and fine law school. 

You have been a Federal prosecutor. You started, it looks like, 

before the sentencing guidelines became law, and you prosecuted 

and sent a lot of people to the bastille as a prosecutor, it looks like, 

over a number of years after the guidelines, also. 

How would you share to your colleagues here the impact of the 

sentencing guidelines and to what extent do you believe a judge 

should give respect and deference to those guidelines? 

Mr. COGBURN. Senator Sessions, the sentencing guidelines were 

brought into being in order to get rid of any kind of meaningless 

disparity in sentencing; that is, to try to have most people who 

commit the exact same crime receive generally the same sentence 

and to try to have some uniformity across the board, depending on 

where you were sentenced, in what court you were sentenced in 

and what state you might be sentenced in, wherever that might 

occur. 

A great deal of effort was put into the sentencing guidelines and 

into getting them established and deciding where those particular 

guideline ranges fall. 

Under 18 United States Code Section 3553, which is the sentencing statute, the first thing that a judge is to do is to determine 

what those sentencing guidelines are before going into the rest of 

the sentencing process. 

They are to be given substantial weight in determining what 

these sentences are. They are a very important part of the sentencing process. 

Senator SESSIONS. Before the guidelines, in my district, you 

would see dramatic differences in sentencing for very similar offenses. I am not sure how that played out in every district. I think 

it did happen all over the country. 

Did you perceive there was more uniformity and more coherence 

in the sentencing process post-sentencing guidelines? 

Mr. COGBURN. There was more uniformity post—sentencing 

guidelines than there had been before. There had been some backand-forth differences in sentences before. Depending on cooperation 

546 

and that sort of thing, you could get some very, very strong differences in sentences. 

But cooperation is still taken into consideration and people are 

able to get some relief for cooperation. So the sentencing guidelines, generally, have brought a great deal more uniformity to the 

sentencing process. 

Senator SESSIONS. In general, do you think they reflect a considered consensus of where sentences should fall? 

Mr. COGBURN. Those who have prepared the sentencing guidelines have given a great deal of time and effort into placing those 

sentences into various categories and they are—the majority of sentences that I am observing have been falling within the sentencing 

guideline range; that most of the judges have been tending to sentence within the guideline range rather than departing from that. 

Senator SESSIONS. Well, we could talk about it a good bit more, 

but I would just say to you that the guidelines were developed by 

judges and the Sentencing Commission, but it was, in large part, 

based on the tendency of judges to sentence in a mainstream way 

around the country. They examined what the sentences were and 

they considered other areas. 

So I think it reflects a fairly good consensus of where sentencing 

should be. It may not be perfect. 

I would ask each of you to state to what extent you feel that you 

would desire or you would seek to be in harmony with those guidelines, recognizing that a judge, once he is given a lifetime appointment, can ignore them pretty regularly under some of the more recent case law. 

Judge Hernandez, would you share with us your thoughts? 

Judge HERNANDEZ. Thank you for the question, Senator Sessions. 

I am accustomed to guidelines. Oregon has sentencing guidelines. 

I use them all the time. I am very comfortable with them. 

On the Federal side, it is my opinion that the guidelines need to 

be given a great deal of deference as we approach cases. Those 

guidelines were well thought out. A lot of time was invested in determining whether and what appropriate sentences should be, and, 

again, they should be given a great deal of deference. 

Senator SESSIONS. Thank you. 

Mr. Simon. 

Mr. SIMON. Senator Sessions, I, too, would give the guidelines a 

great deal of deference, and I recognize their importance in providing consistency and uniformity in sentencing throughout the Nation. I also recognize that they were the result of a bipartisan consensus from this body, that they are the result of a great deal of 

input and expertise from a wide variety of people. 

I will note that in response to Chairman Whitehouse’s comment 

at the beginning, it has been a number of years since I was a Federal prosecutor. I did begin at main Justice, in the antitrust division, prosecuting antitrust defenses, but I was designated on a special detail as a special assistant U.S. attorney in Alexandria, Virginia, where I prosecuted both white collar fraud trials and armed 

bank robbery. 

I will also admit that that was before the sentencing guidelines 

came out. And so to acquaint myself with those, I started reading 

547 

these. I note that about 2 weeks ago, the 2010 guidelines manual 

was just issued. I have begun reading that. 

But I do agree with the values and the policies behind it and I 

would give them great deference. 

Senator SESSIONS. Thank you. 

Judge Jones. 

Judge JONES. Senator Sessions, I also believe that the guideline 

should be given substantial and great deference, because uniformity and consistency in sentencing brings about confidence in 

our courts and, also, helps us reach a reasonable sentence. 

Senator SESSIONS. It was a dramatic, historic event, really, when 

Congress, in the early 1980s, made some of these decisions. Senator Kennedy and Senator Thurman and Senator Biden and Senator Hatch and all, Leahy and others, all worked together to bring 

it about, and I do think there has been more integrity in the process. 

It is easier to defend the sentences intellectually and morally to 

anybody who challenges them. Any guidelines sentence is backed 

up by quite a good bit of research, debate, discussion. And I worry 

that there may be a belief that judges are now free to sentence like 

they would like, but I believe you will sleep better at night if you 

follow the guidelines, because when you have the momma and the 

minister and the brother and the children before you at sentencing 

time, it is no fun and at least you have got an objective fallback 

that I am trying to operate within what a consensus is for the 

country. 

Mr. Simon, you have been a member for some years with the 

ACLU. I see one thing conservatives would like. I see you filed a 

lawsuit defending the free speech of anti-abortion protestors, and 

ACLU does take sides that are not always liberal, if you would call 

it that. 

But it also is an institution that has taken quite a few positions 

that are troubling to me, such as legalization of drugs. Does that 

reflect your views? 

Mr. SIMON. Senator Sessions, I have been involved as a volunteer 

lawyer for the ACLU for a number of years and it certainly is true. 

In my case, as well as, frankly, in almost everyone’s that I have 

interacted with, that we do not necessarily agree with all of the positions taken by the American Civil Liberties Union. 

And to answer your question, what I have primarily been focusing on in my activities for the American Civil Liberties Union of 

Oregon has been involved in First Amendment issues. 

Senator SESSIONS. Well, we have had a big debate about legalization of drugs, and you would be a judge that will have to impose 

some rather stiff sentences for violation of drug laws. 

Have you taken a position personally on that? 

Mr. SIMON. I have not, Senator, and I would have no difficulty 

at all enforcing all of our laws. 

Senator SESSIONS. I notice the Oregon Website said that the 

ACLU supports a moratorium on the death penalty. Would you 

personally agree with that and have you advocated for that? 

Mr. SIMON. I have not taken any positions on that issue, Senator, 

but I do observe that the Fifth Amendment to the United States 

Constitution does refer to capital crimes. It does refer to not putVerDate Nov 24 2008 11:48 Jul 13, 2011 Jkt 066817 PO 00000 Frm 00555 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66817.TXT SJUD1 PsN: CMORC
548 

ting anyone in double jeopardy for life or limb, and, also, that no 

one shall be deprived of life without due process of law. 

And so I do think that the United States Supreme Court, using 

those references, among others, has quite clearly said that the 

death penalty does not violate the Eighth Amendment’s prohibition 

on cruel and unusual punishment, and I am fully prepared to follow all of the precedent from the United States Supreme Court and 

the applicable courts of appeal, including that. 

Senator SESSIONS. Well, I agree with that constitutional analysis, 

very clearly, although we had two members on the Supreme Court 

for quite a number of years that dissented in every death penalty 

case, saying it did violate the Constitution. 

Within the Constitution itself, there are a host of references, 

more than you just made, to the death penalty and implicit in the 

document is an affirmation of the death penalty. But the ACLU 

Website in Oregon posted a white paper, eight objections to the 

death penalty, and one of those was, quote, ‘‘Capital punishment is 

cruel and unusual’’ and that it, quote, ‘‘denies due process of law.’’ 

So are you saying that it is not cruel, that you do not share that 

view, or what would be your comment? 

Mr. SIMON. I played no role in the preparation of that particular 

white paper to which you refer nor have I ever taken any public 

positions on that question. 

I am prepared to commit to you that I will follow all of the precedent from the United States Supreme Court and from the courts 

of appeal, and I do recognize the constitutional references that you 

have highlighted for us. 

Senator SESSIONS. What do they mean it would deny due process 

of law? Do you know what the ACLU could be referring to with 

that? 

Mr. SIMON. I do not know specifically what you are referring to, 

Senator. I did not play a role in the preparation of that document 

at all. 

Senator SESSIONS. We have had quite a number of cases—judges, 

nominees, recently that have not followed the sentencing guidelines 

with regard to child pornography, and some of that is legitimate 

and some of that was troubling to me, in their decisionmaking 

processes. 

ACLU has opposed any laws that limit pornography, including 

child pornography. Do you agree with that policy of the ACLU and 

will you enforce the law and follow the guidelines, as appropriate? 

Mr. SIMON. I most certainly will enforce the law and, as I expressed earlier, I do anticipate giving great deference to the guidelines, including all aspects of the guidelines. I have not spoken or 

written with respect to the issue of child pornography, but I do 

fully anticipate having no difficulty in supporting and enforcing all 

of our laws and in giving great deference to all aspects of the sentencing guidelines. 

Senator SESSIONS. And if confirmed, would you have any reservation in applying the death penalty, if it were appropriately consistent with the law? 

Mr. SIMON. In the appropriate circumstances, I would have no 

difficulty enforcing the law in all of its aspects, including that. 

549 

Senator SESSIONS. Thank you. Well, we have got Senator 

Franken here. I am sorry. I am past my time. But we do have a 

number of nominees on the panel and it takes a little more time 

than normal. 

Thank you. 

Senator WHITEHOUSE. We can happily do a second round. 

Senator SESSIONS. Thank you. 

Senator WHITEHOUSE. We will happily do a second round to accommodate any further questions Senator Sessions may have, but 

I think it is appropriate for Senator Franken to have his turn. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. Thank you, Ranking Member Sessions. And a second round would be great, because 

I know Senator Sessions has a lot of questions. 

Judge Jones, you served as presiding judge on the felony drug 

court. 

Judge JONES. Yes, sir. 

Senator FRANKEN. For the Western Judicial District of Georgia 

since 2004. Can you tell me about that? What is a drug court? Who 

do you deal with? Obviously, it is drug felony offenses. 

But I think that we have a lot of people in prison for drug offenses that maybe could be better served by having treatment. 

What do you do in the felony drug court? 

Judge JONES. Well, thank you, Senator Franken. Felony drug 

court is a court in which after an individual has entered a plea of 

guilty, they are charged, a drug charge. The prosecutor works out 

a negotiated plea with the defense counsel. And in the program, 

the felony drug is a 17- to 24-month program, in which the individuals go through five phases. 

In the first phase, they are drug tested randomly anywhere between three to four times a week. They may receive a call as early 

as 6:00 in the morning for a drug test and as late as 10:00 at night 

for a drug test. 

They meet biweekly with me and we discuss matters. They go 

through classes weekly. And as they move through the phases, the 

amount of contact somewhat reduces, but the requirements are still 

the same. 

The mission of the felony drug court is to provide treatment for 

individuals so they will not become repeat offenders or recidivists. 

We have found that sentencing one to jail with a drug offense, 

when they get out of jail, they still have a drug addiction or substance abuse problem. 

So what we are trying to do is stop the substance abuse problem 

so they will not become recidivists. And the program has been very 

successful, in my opinion. But we try to keep in contact with individuals after they graduate, as much as 2 years later, and we have 

a number of individuals come back. It is probably one of the most 

successful and most rewarding things I get to do as judge, and I 

look forward to meeting the individuals biweekly in the felony drug 

court. 

Senator FRANKEN. And do you have any sort of longitudinal studies? I know you have been there for 6 years. But is the evidence 

that this works, that there is less recidivism, that this actually 

550 

saves not just society money by not having to incarcerate people, 

but that the treatment has a return on investment? 

Judge JONES. The State of Georgia, Senator, conducted an audit 

on all the felony drug courts in the State recently and it showed 

that the felony drug courts were less expensive and they were probably one of the most successful aspects of the courts. 

For my particular drug court, I can say we have less than 20 percent of the individuals that graduate from felony drug court commit a crime within 2 years after graduating from the felony drug 

court. So an 80 percent success rate, I feel, is showing that they 

are successful and the court does work. 

Senator FRANKEN. So would it be too bold to say that if we are 

interested in long-term deficits in this country, that maybe it would 

be a smart approach to have drug courts all over the country and 

make sure that we are not incarcerating people in a way that actually is more expensive for society in all kinds of ways? 

Judge JONES. Yes, sir. I would agree with that statement completely. 

Senator FRANKEN. Thank you. And I know that your job is not 

to talk about deficits, it is to be a judge, but my job is. 

I would like to know, on the sentencing guidelines—and it 

sounds like all of you said that they deserve great deference and 

sounds like that you are talking about the consistency and uniformity of sentencing gives credibility to the court, which I find 

very important. 

Can any of you speak to when you kind of make exceptions to 

or when your deference to the guidelines is also colored by other 

factors? Is there anyone who would like to speak to that? 

Mr. COGBURN. Senator, it would certainly depend on the facts of 

the case, but 18 USC 3553 has all of those factors and after you 

determine the sentencing guideline, the proper guideline range, you 

look at all those other factors. 

Normally, those factors probably would determine just where 

within that guideline range you would go. 

Senator FRANKEN. So the guidelines themselves have within 

them the factors that you would consider. 

Mr. COGBURN. They have some factors, too, but, also, in the statute itself, there are things that you look at and consider. After you 

get the sentencing guideline range determined, there are other factors that you look at and some of those would implicate where 

within this guideline range you would go. 

And on occasion, and I would not know without what particular 

fact situation it would be, you might—so there might be one of 

those other factors that you are looking at under 3553 that would 

cause you to go outside the guideline range. 

Senator FRANKEN. Well, thank you. My time is up and I have to 

go vote. 

Senator WHITEHOUSE. We will return to Senator Sessions. It appears that Chairman Leahy will be coming to chair for a period to 

allow me to go and vote on the two votes that we have. So we will 

continue forward and back for a second round to Senator Sessions. 

Senator SESSIONS. Thank you. Judge Jones, I do think that drug 

courts have great merit and have advocated for them since the 

551 

early 1980s, and, well managed and properly handled, it can be effective. 

But I do believe, do you not, that the ultimate authority of a 

judge to adjudicate a person guilty and sentence them to custody 

provides a kind of opportunity or the environment to get the attention of the offender and perhaps give them a chance to alter their 

lifestyle? 

Judge JONES. Yes, sir. I agree with that totally. I think that, as 

judge, it is my job to listen to the facts in the case and follow the 

law in rendering a reasonable sentence on one. And if you fail to 

do that, then you are not doing your job as judge. 

Senator SESSIONS. I just wonder, in this day and age, that some 

are discussing legalization of drugs and California has had votes on 

that. It seems to me that a low level offender can be given a second 

chance and it ought to be done in a way that has good supervision, 

as drug court does. 

But, also, would you be concerned about a legalization of drugs 

in the country? 

Judge JONES. Well, sir, what I believe is that right now, the law 

that I have to recognize is what is put forth by the Supreme Court 

and the 11th Circuit Court of Appeals and the Congress of the 

United States, and I will follow that law as far as drugs. 

I agree with you that the supervision of individuals on drugs 

helps them tremendously. 

Senator SESSIONS. The Athens Banner-Herald quoted you as saying, ‘‘Sentencing does not deter crime. The only thing I see sentencing doing is taking a person off the street so they can’t do it 

for a while.’’ 

Well, that is true. It does take the person off. The incapacitation 

is one of the factors in it. But are you saying you truly do not believe that consistently enforced laws do not deter other people from 

violating the law? 

Judge JONES. No, sir. Senator Sessions, when you are sentencing 

one to a sentence for being convicted for the law, that not only 

sends a message to that individual, but to other individuals that 

there is a punishment for violating the laws. 

So I definitely believe that sentencing does deter crime. 

Senator SESSIONS. Well, good. I think about the squeegee crackdowns, the street crimes in New York that New York cracked down 

on, and all crime plummeted when they did that. 

Judge JONES. Yes, sir. 

Senator SESSIONS. And it was consistent prosecutions that ended 

it. And if you do not prosecute it, you do not get deterrence. The 

same, I think, about at the border with Operation Streamline, 

where, when people are apprehended at the border are actually 

prosecuted and serve some time in jail, they come back less often 

than if they are not prosecuted. And I think of public corruption. 

I do believe there is real deterrence. If a community allows corruption to continue without prosecuting, it does do that. And I just 

was troubled by your statement. I am glad to see that you clarified 

that. 

And Senator Chambliss did not have the gumption to show up 

at the Auburn-Georgia game, but Senator Isakson was there sitting 

one row away from me with his Georgia shirt on, that sea of orVerDate Nov 24 2008 11:48 Jul 13, 2011 Jkt 066817 PO 00000 Frm 00559 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66817.TXT SJUD1 PsN: CMORC
552 

ange. I thought it was a courageous act. And after you guys had 

whipped us 4 years in a row, I think it was good to have a little 

different outcome. The SEC football is a lot of fun. 

Judge JONES. Yes, sir. 

Senator SESSIONS. A fabulous thing. I thank all of you for being 

willing to undergo this scrutiny. I will say I know that Chairman 

Leahy knows that more of it is done behind closed doors than in 

the open meeting and if anything bad had shown up, we would 

have been asking you about it. 

So to some degree, you can certify that you have been checked 

out clean. 

Judge Hernandez, it is great to see you and I am glad that after 

600 days, we are finally being able to see you confirmed. 

Judge HERNANDEZ. Thank you very much, Senator. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. [presiding] Thank you, Senator Sessions. I 

voted on this first one, so I will let you go. And I know the questions have been asked of all of you, and I congratulate each one of 

you, congratulate you on the jobs you have been nominated for, or 

offer condolences, depending upon how much of a backlog there 

may be in the district. 

But as one who has practiced in state court, Federal Court, all 

the appellate courts, I know how hard judges work. And I am not 

going to ask questions, so we can bring up the next panel, but I 

would remind you of just one thing. 

We had a judge who was here, a very, very good judge, and she 

had made some comment about the fact that she always worried 

because she was quite short. And I said, ‘‘You have to remember, 

when you go in the courtroom, you are the tallest person there.’’ 

Everybody in the courtroom stands and looks up at you. Do not 

let it go to your head. You are there to do justice to everybody and 

for everybody. You all have legal careers. You are used to walking 

into the court. I mean, there are days you could do it on some motions and some proceedings are so easy, it is almost a matter of 

rogue. 

A lot of the people, when they are in the case before you, it is 

the only time that litigant has ever been in a Federal court. It is 

the only time probably they ever will be. And everything they know 

or think or feel about the judicial system will depend upon how a 

Judge Cogburn or a Judge Hernandez or a Judge Simon or a Judge 

Jones treats them while they are there. 

They will not see any other judges. They probably will not ever 

be in another court, and they do know whether we have a good 

court system and a good judiciary, based upon how you are, not on 

how anybody else is. 

So that is an awesome responsibility. I felt that responsibility 

even when I was a prosecutor. How you treated defendants or, as 

we call them, respondents in Vermont or a victim, because for 

many of them, it is the only time they ever saw the criminal justice 

system. 

Now, I have read your backgrounds, each one of you, and impressed by it. Senator Sessions and I always meet privately if there 

are questions that need to be resolved before, both the Republican 

and Democratic side. We look at that very carefully and openly 

553 

with each other. I agree with him, there is nothing to worry us 

there. 

So I thank you all for being here, and I will not ask questions. 

And I know you have all been introduced, and thank you for taking 

the time. 

Did you all get to introduce your family, too, earlier? 

Judge JONES. Yes, we did. 

Chairman LEAHY. Because someday, that will be in your archives 

and everybody says, ‘‘Now, who was there?’’ Thank you. 

Mr. SIMON. Thank you, Senator. 

Mr. COGBURN. Thank you, Senator. 

Chairman LEAHY. Before we begin this panel, Michele Leonhart, 

Patti Saris, Stacia Hylton, if you would all raise your right hand. 

[Nominees sworn.] 

Chairman LEAHY. Thank you. And I am not Sheldon Whitehouse. 

I am Patrick Leahy. Somehow we have to get those in there. 

I understand, Ms. Leonhart, you have already been introduced; 

is that correct? 

Ms. LEONHART. That’s correct. 

Chairman LEAHY. And Judge Patti Saris has served as U.S. district court judge for the district of Massachusetts since 1993. Before that, she was an associate justice of the Massachusetts superior court; magistrate judge in the district of Massachusetts; 

worked in the U.S. attorney’s office for the district of Massachusetts, where she was chief of the civil division. 

She served as counsel to our dear friend, Senator Kennedy, on 

this Committee from 1979 to 1981; became counsel a little bit after 

I became a member of the Committee. 

Born in Boston, BA from Radcliffe, JD from Harvard Law School. 

And I should note for the record that Senator Kerry has submitted 

a statement of support for you. 

And Stacia Hylton is a 24-year veteran of the U.S. Marshals 

Service. She has posts, including acting deputy director and the assistant director for prisoner operations. 

From 2004 to February this year, she served as Federal detention trustee in the Department of Justice, where she managed 

thousands of prisoners in Federal custody awaiting trial or deportation. 

She currently operates her own consulting company, Hylton, 

Kirk & Associates. She was born in Red Bank, New Jersey. She is 

a graduate of Northeastern University. 

I will include for the record a statement in support for Ms. 

Hylton—I apologize for the voice—from Senator Webb of Virginia. 

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

Chairman LEAHY. Now, Ms. Leonhart, have you had a chance to 

introduce any family members who are here? 

Ms. LEONHART. I have not, Chairman. Thank you. 

Chairman LEAHY. Please go ahead, so it can be part of the 

record. 

554 

STATEMENT OF MICHELE M. LEONHART, NOMINEE TO BE ADMINISTRATOR OF DRUG ENFORCEMENT, DEPARTMENT OF 

JUSTICE 

Ms. LEONHART. Thank you very much. I am proud to introduce 

my better half, my partner, Gene Johns, my husband, who today 

celebrates his 28th year with the Los Angeles County Sheriff’s Department. He is currently a narcotics detective in Los Angeles. 

And also with me is Hon. Peter Bensinger, who was the DEA administrator from 1976 to 1981. He has been a mentor for me and, 

in fact, was the administrator that swore me in as a DEA agent 

and presented me with my badge and credentials. 

And I would also like to note three people that are not here 

today. My oldest son got married on Saturday and I didn’t want to 

take him away from a honeymoon. And my youngest son is a deputy sheriff in Los Angeles and had to work. And then my mother 

earlier this year suffered a stroke and she is recovering or would 

be here. 

So thank you very much. 

Chairman LEAHY. Please give her our best. 

Ms. LEONHART. Thank you, Chairman. 

Chairman LEAHY. And, Ms. Saris, do you have family members 

here? 

[The biographical information follows.] 

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612 

STATEMENT OF HON. PATTI B. SARIS, TO BE A MEMBER AND 

CHAIR OF THE UNITED STATES SENTENCING COMMISSION 

Judge SARIS. I do. Thank you very much for holding this hearing 

today. I would like to introduce my husband, Arthur Segal. We will 

celebrate our 34th wedding anniversary next week. 

Chairman LEAHY. Now, Judge, that is an accomplishment, and 

he is obviously aware that he married up. My wife and I celebrated 

our 48th this year. 

Judge SARIS. I hope to go there. And I’d like to introduce my 

daughter, Celia. Senator Franken introduced her, as well, as being 

a gem. She used to work for him. 

And as well, I’d like to mention my other three kids who couldn’t 

be here today, my daughter, Marissa, who is teaching in a charter 

school in Boston; my son, Eddy, who is on the west coast and 

couldn’t make it; and, my baby, who actually fell asleep in my lap 

when I went through my confirmation hearing is, believe it or not, 

a freshman. So I’m newly an empty-nester. 

I’d like to introduce my friend, Wendy Gray, who is here; my 

brother-in-law, Jim Segal; and, a whole lot of other friends and 

staff who have come down to be with me today. 

I’d also like to thank the Judicial Conference for suggesting my 

name; to President Obama for nominating me; and, to this whole 

Committee for hearing me today, because this was the Committee 

that I first started in as a staff member, as you noted. And, in fact, 

in 1981, I learned about sentencing policy by being a staff member 

on this Committee when I was very young. 

Thank you. 

Chairman LEAHY. And I am sure you are going to get a lot of 

good advice from the outgoing chair, Judge William Sessions of 

Vermont. 

Judge SARIS. I consider him a good friend and we’ve talked a lot. 

I should also mention, or she’ll kill me, my mom, who couldn’t 

make it here today and I’m sure is going to be watching this from 

Boston. 

Chairman LEAHY. Well, I hope she will and please give my best 

to Judge Sessions. He is a wonderful friend. 

About the only time I have been in Federal court since I became 

a Senator was to appear before him to move the admission of one 

of his law clerks to the Federal court. 

The law clerk was my oldest son. I went through and made the 

usual motions. Judge Sessions looked at him and he goes, ‘‘Hmm.’’ 

And we had joked about that. He quickly made up his mind and 

admitted him. 

Ms. Hylton, do you have any friends or family members here? 

[The biographical information follows.] 

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STATEMENT OF STACIA A. HYLTON, NOMINEE TO BE THE 

DIRECTOR OF THE UNITED STATES MARSHALS SERVICE 

Ms. HYLTON. I do, Mr. Chairman. First, thank you for your introduction and the opportunity to appear here today to address your 

questions. 

I would also like to thank President Obama and the attorney 

general for their confidence in me through this nomination. 

If I could, I’d like to introduce my husband of almost 25 years, 

Ike Hylton, who is here with me today. And I regret that your son, 

who is in a very rigid academic program, much to our pleasure, is 

unable to be here today due to some exams, but he has assured me 

that he will use his technical skills gained through video gaming 

to watch it on Webcast tonight with the rest of our family. So I look 

forward to that. 

Chairman LEAHY. We have a similar thing that we say when a 

fellow Senator is about to give a long and important—all speeches 

being important, of course—on the floor of the Senate as we are 

leaving. We say, do not worry, we will read it in the Congressional 

Record. But I imagine in your son’s case, he probably will actually 

watch it. 

Ms. HYLTON. Yes. It would be a good opportunity for him. And 

I’d also like to thank both Senator Webb and Senator Warner for 

their support and their letter for the record today. 

Chairman LEAHY. Thank you. Let me ask, Ms. Leonhart, you 

spent almost 30 years in the Drug Enforcement Administration, including as deputy administrator. You were nominated to that position by President Bush. 

I have always felt that being in law enforcement was a very special calling. I know I enjoyed my time there. But what did you 

learn from your experience at DEA that you think will stand you 

in the best stand, if you are confirmed to be the agency’s administrator? I am sure you must have given it a lot of thought. 

[The biographical information follows.] 

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Ms. LEONHART. Thank you, Chairman, for that question. It’s a 

great question. It all comes down to serving the public. You’re a 

public servant and you’ve got to put the public first. 

It’s about public safety and it’s about everything that you do remembering your impact on communities, your impact on this country, and, with DEA, actually, your impact on the world. 

Chairman LEAHY. Well, I have held Senate Judiciary Committee 

hearings, I have had them here, of course, but I have also gone into 

cities like Rutland and St. Albans and Perry, Vermont. Now, these 

are small cities, a lot of blue collar, very hardworking cities where 

people tend to know each other. 

Up to a few years ago, I do not think anybody locked their doors. 

You never worried about anything. But we heard about not only 

the scourge of drugs, but prescription drug abuse in each one of 

these places and the devastating effect it has on communities. A lot 

of it was prescription drug abuse, more and more people becoming 

addicted to prescription pain killers, such as OxyContin. 

What I found most interesting in these hearings is that the 

whole community came together. You had law enforcement, educators, clergy, physicians, parents. 

It was also quite an eyeopener to some of the parents there. It 

is obvious there was no automatic answer. You cannot do it just by 

education or just by law enforcement. You are not going to do it 

just in the schools. 

Do you see that kind of a growing problem nationwide on the 

abuse of prescription drugs, and what would you suggest? 

Ms. LEONHART. Absolutely, Chairman. And I know that recently 

you were at or helped sponsor a summit there in Vermont on prescription drugs. 

It is a growing problem. It’s an epidemic in this country, and it 

concerns me and the DEA very much. About 7 million Americans 

are abusing prescription drugs and what really concerns me is that 

every day, about 2,500 teenagers abuse prescription drugs for the 

first time. 

And we all have something to do about it, because it affects all 

of our families and all of our communities. One is education, and 

DEA has done a good job, especially this year with the Take Back 

program in September, of getting the word out. 

We have talked to kids. We have looked at every survey there 

is to find out where are they getting these prescription drugs, and 

over 60 percent of these teens will tell you that they get it from 

a family member, a friend, or from the family medicine cabinet. 

So education is key, but enforcement, especially enforcement by 

our State, local and Federal agencies, is also very important and 

oftentimes it’s the only way to get some of these abusers of prescription drugs to seek treatment. 

So it’s a whole of government approach. It’s a community approach. It concerns me. And if I have the privilege of being confirmed, it is one of my three focus points for the Drug Enforcement 

Administration. 

Chairman LEAHY. But you also have people who have actually 

gone into the business of supplying this, are looking for—it is one 

thing that you have a kid in high school break in the neighbor’s 

home, steal the drugs. I am not excusing that, but it is a little bit 

674 

different than somebody who comes into town and it is almost a 

stereotype of, ‘‘Hey, kid, guess what I’ve got here in my briefcase.’’ 

Are these two different things? 

Ms. LEONHART. Well, we are traditionally involved in cocaine and 

heroin and methamphetamine trafficking organizations and what 

we have found is that some of the organizations that are behind 

the supply of pharmaceutical drugs not only to teens, but adults, 

as well, are organized crime groups, are in it to make money, and 

we attack those organizations the same way we attack those trafficking groups. 

So you are correct. The problem is the teen user, the young drug 

user, the first-time abuser, but there is also organized crime and 

organizations that are peddling this poison. They make money off 

of it, and they often will peddle pills alongside peddling cocaine or 

marijuana. 

Chairman LEAHY. They have got to be stopped. And they have 

to be stopped. 

Ms. LEONHART. That’s correct. 

Chairman LEAHY. I am not leaving because of your response, 

which I happen to agree with, but there is a roll call vote on and 

we are playing tag-team here. 

Senator WHITEHOUSE [presiding]. I very much appreciate the 

Chairman coming back to allow this so that the hearing can go on 

uninterrupted. When you do two votes side-by-side, you have to do 

rather an elaborate back-and-forth hallway race in order to keep 

that going, and I appreciate very much that Chairman Leahy was 

willing to do that. And I am delighted that Senator Kohl has joined 

us, as well as Senator Franken. 

Since I am likely to be here until the end, why do I not defer to— 

who is in order? Senator Franken? 

Senator FRANKEN. Yes. 

Senator WHITEHOUSE. You have 5 minutes, sir. 

Senator FRANKEN. Thank you. Judge Saris, welcome. We were 

talking—I noticed you were sitting back there when we had the 

nominees for the Federal judgeships, and we were talking about 

sentencing guidelines. And you have spoken about them and how 

they are valuable tools, but that they are not infallible. 

Can you tell me your basic approach to sentencing guidelines, 

after 24 years on the bench, and both how valuable they are and 

when they are not infallible? Speak to that. 

Judge SARIS. Yes. Well, I was on the Senate—a staff member on 

the Judiciary Committee when the guidelines first started getting 

considered, and, at the time, the big policy was why should a bank 

robber in Texas get a different sentence from a bank robber in 

California; why should it matter what judge that you get. 

And so the underpinning policy of the guidelines is still very important today, which is to avoid unwarranted disparities between 

similarly situated defendants. 

So essentially, that pervasive theme is still very important today. 

However, as many people know, the Supreme Court has issued, I 

think, as many as five opinions recently talking about the guidelines and the importance of the fact that you also need to consider 

all of the statutory factors under 3553(a). 

675 

So you start with the guidelines as your benchmark, as your anchor, if you will. And then sometimes, though, the individual characteristics of a defendant may be worth considering, aren’t properly 

considered in just doing a mathematical calculation, and you are 

permitted to consider those factors in calculating a sentence. 

Senator FRANKEN. So those factors were the ones that one of the 

nominees referred to that that is the law. 

Judge SARIS. Yes. The 3553(a) factors, yes. 

Senator FRANKEN. I got it, I got it, I think. 

Ms. Leonhart, a lot of people from Minnesota are proud of you 

and your nomination. And your first posting was in Minneapolis 

and you never had to deal with me, right? 

Ms. LEONHART. No. 

Senator FRANKEN. I just wanted to make that clear. Can you tell 

us what you learned on the job in Minneapolis? 

Ms. LEONHART. Thank you for that question, Senator. I want to, 

first, thank you for the very kind introduction. That was actually 

unexpected this morning. So thank you very much. 

My first 5.5 years on the job were in Minnesota. I had a choice. 

I was being assigned to Miami, but I graduated No. 1 in my agent 

class and you get to pick where you want to go, and it was my only 

chance to go back home. So I picked Minneapolis and, for that 5.5 

years, felt I made a difference and I cleaned up my neighborhood 

and I cleaned up the community. 

I learned the basics of the job. I learned that it’s all about working with your State and local counterparts. And I learned from 

working the small cases up to the big cases that at the end of the 

day, it is about identifying those most responsible, those organizations that are peddling the poison on our streets and putting them 

in jail. 

My partners, we go back 30 years and they were five Minneapolis police sergeants that really taught me the streets. 

Senator FRANKEN. Ms. Hylton, several human rights groups have 

expressed concern with your nomination on the grounds that you 

may face a conflict of interest in your new position. You set up a 

consulting company while you were the Federal detention trustee 

and the head of the office that awards contracts to private correctional facilities. 

Once you left your position, your company received a $112,000 

contract from one of the Nation’s largest for—profit prison companies. 

These groups say that you may face a conflict of interest in your 

new position in matters that affect your consulting company or the 

company who received the contract from the GEO Group. 

Now, I understand you worked with the ethics officials both before and after this work to make sure you acted appropriately, but 

I think it is important to get this out in the open so that you have 

an opportunity to address it. 

So could you please speak to these allegations? 

Ms. HYLTON. Yes. Thank you, Senator Franken, for that question. I welcome that opportunity. I’d like to assure the entire members of the Committee that I did follow all ethics requirements and 

regulations and worked closely with the ethics office both before retirement and subsequently after. 

676 

I incorporated the consulting business about a month before I retired just simply so I could begin the paperwork and begin to set 

up the office; so that when I did retire February 28, I could—the 

company would no longer be dormant and it could stand up and operate March 1, and I followed within those guidance that were provided by the ethics office. 

While serving in the capacity of the Federal detention trustee, 

the contract awards actually happen at the assistant trustee level 

for procurement, and so, therefore, I had no direct involvement 

with contract awards. I had recused myself early on in even any 

conversations about private industry. 

My focus was in the best interest of the government always, to 

ensure that hundreds of State and local intergovernmental agreements would be in place, along with the Federal detention centers, 

along with private prisons. 

Senator FRANKEN. Well, thank you. Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Senator Kohl? 

Senator KOHL. Thank you very much. I would like to talk with 

you, Ms. Leonhart. I would like to thank you for appearing before 

the Committee today and I would like to commend you for the success of the National Drug Take—Back Day that allowed people to 

safely dispose of their unwanted prescription drugs. 

In my home State of Wisconsin, 84 law enforcement agencies collected nearly 4,500 pounds of prescription drugs. We made great 

progress, but I believe that more could be done to facilitate additional take-back programs and prevent excess medication from 

being prescribed in the first place, and I am looking forward to 

working with you on this issue. 

However, Ms. Leonhart, I am disappointed with the DEA’s lack 

of progress on an issue that was the subject of an Aging Committee 

hearing earlier this year. At that hearing, we heard serious concerns about the effects of changes to DEA’s enforcement policies for 

controlled substances in long-term care settings. 

The changes have resulted in nursing homes being unable to administer pain medications to ailing residents in a timely manner. 

The time that it takes for a nursing home to comply with the new 

DEA enforcement policy can be an eternity to an elderly patient 

who is agonizing pain. 

At that hearing, the deputy assistant administrator of the DEA 

assured me that your agency would act quickly to solve this problem. And when I met with you in early May, you assured me that 

this was a priority and that you, also, would address the problem 

swiftly. 

In August, I requested joint comments from DEA and HHS on 

draft legislation that I prepared and submitted to you that would 

facilitate more timely access to pain medication for ailing nursing 

home residents, and I received no response. 

Now, I do appreciate the DEA’s statement of policy issued last 

month, which clarifies how nurses at long—term care facilities can 

administer some controlled substances. However, that fails to provide a solution for Schedule II drugs, such as morphine, which are 

also necessary in certain situations. 

677 

From the vantage point of nursing homes, there are practical 

problems with implementing the policy in its current form. So 

while it is a step in the right direction, more needs to be done. 

As I explained, it appears that the DEA is putting paperwork before pain relief. I would like to see much more progress made on 

this issue before you are confirmed. 

When will DEA provide comments on my draft legislation? 

Ms. LEONHART. Thank you, Senator Kohl, first, for your leadership on that issue, and I know we have worked with you and the 

Committee on those very serious issues. 

I do want you to know that it is of utmost importance to me and 

the DEA that we do have resolution to those issues. We don’t take 

lightly our responsibility to not only prevent diversion and do our 

regulatory business, but we are very concerned about those patients in need, and that’s why, in the interim, while we’re finding 

long-term solutions, we have come up with a couple of short-term 

changes, short-term policy statements, clarifications that, in many 

ways, have helped, but we need to do more. 

And I agree with you, it is a serious issue and, if confirmed, I 

will tell you that we will continue to work through the process with 

the Department of Justice and with HHS and I am quite confident 

that we will be able to get back to you with some dialogue and with 

some solutions that will be favorable to you and the Committee. 

It does take time to do that. I can’t put a timeframe on it, but 

know that we are taking that very, very seriously. 

Senator KOHL. Well, I said in my statement that I would like to 

see much more progress made on this issue before you are confirmed. As I indicated, I did submit some legislation to you and I 

have not heard back from you or your department. 

Now, I know, in the best of all worlds, you would like to take 

care of it and take care of it immediately, but things are not all 

that simple. On the other hand, this legislation that I submitted 

to you is not all that complicated. 

So I would like to repeat that it is an issue that has been out 

there now for quite a long time. It is not all that complicated. How 

we are going to see to it that patients in long-term care settings 

get the medicine that they need at the time that they need it, I 

think we agree on that principle. And how to get it to them is not 

all that complicated, and that is what my legislation addresses. 

So in the most gentle but clear way, I would like you to know 

that I intend to insist that we see some progress on this issue as 

a condition of your confirmation. And I know we can do it. I mean, 

I am not trying to put some impossible roadblocks, because I think 

we have discussed this now, and your department and my office 

are aware of what we can do and should do and need to do, and 

it can be done in a timely way. 

So I am here to request of you that we work a little harder together to try and get some progress. Is that reasonable? 

Ms. LEONHART. Thank you, Senator. I will bring that back to the 

Department of Justice and let them know your concern, and I’m 

hoping that we are able to get back to you. 

Senator KOHL. I do appreciate that very much. Thank you. 

Senator WHITEHOUSE. Let me chime in and thank Senator Kohl 

for his leadership on this issue. Let me first say, Ms. Leonhart, 

678 

that I am very supportive of your candidacy. I am very proud of 

the way you have served our country in this organization. 

As you know, we have a common friend who is a DEA agent, who 

I worked with very closely when I was U.S. attorney, somebody 

who I am extremely proud of, who was willing to put herself into 

harm’s way in very significant ways in very important circumstances, and she speaks very highly of you and your record 

speaks very highly of you. 

I do not think I should use her name, because she is undercover 

frequently, but we understand what we are talking about here. 

So I am extremely favorably disposed toward your nomination, 

but there are these institutional problems that need to be addressed. And I could not echo Senator Kohl more clearly than to 

say that the purpose of medicine is to take care of the sick and 

when that purpose is not being met because the safety regime to 

keep the medicine from being abused is interfering with it, then a 

secondary purpose is interfering with a primary purpose. 

We cannot have elderly people lying alone, racked with pain, 

when medicine to cure that and to solve that is at hand, because 

of bureaucracy. 

So I will back Senator Kohl in whatever he chooses to do to get 

a resolution to that point. We are backwards on that issue. I am 

a former U.S. attorney. I am a former attorney general. I have 

prosecuted drug dealers, I have prosecuted diversion cases, I get 

that. It is a priority. But it cannot be a priority that bureaucratically interferes with the ability of an elderly, lonely patient in 

grave, grave pain to have access to the relief that she may need. 

So I emphasize there, and I would have another concern that we 

are working our way through, but I would like to see more progress 

on, and that is in the area of e-prescribing. 

You and I have talked about this before, but I very deeply believe 

that the only way that America avoids a true catastrophe in health 

care, which is coming at us, because the costs are out of control, 

is to make a delivery system that improves the quality of care and 

lowers the cost of care in ways that makes the system more accessible to Americans, that makes it more intelligent, that eliminates 

waste, that provides for better prevention, and avoids medical errors. 

All of that will stand on a better health information technology 

infrastructure. That is the sort of gateway into what is a vital primary national mission and, very often, the gateway to health information technology is electronic prescribing. 

And it makes absolutely no sense for a doctor to engage in electronic prescribing unless they can go to an electronic prescribing 

system. And for a long time, DEA was insisting that they go to an 

electronic prescribing system; for any scheduled pharmaceuticals, 

they had to stay with the paper system, which, from a prosecutor’s 

point of view, I thought was nonsense, because there is so much 

investigative advantage to having the electronic data to cull 

through, to look for anomalies, to see where investigative resources 

should be dedicated, but that was your position. 

Senator Coburn, who agrees with me on very little, and I had a 

very tough hearing with representatives of your administration 

679 

more than 2 years ago on this subject, and we are still watching 

this drag on and on and on. 

It is a matter of the president’s priority to get this built out. He has put $20 billion behind it. It is the Department of Health and 

Human Services’ priority to get this built out. And why, for the life 

of me, DEA cannot get out of the way when it has, to my opinion, 

no legitimate stake in interfering with this, because from my law 

enforcement perspective, we advance the cause by moving to e-prescribing for schedule narcotics. We do not hold it back. 

Clearly, there are some issues that need to be resolved, but on 

balance, I think it is a huge plus, step forward from a pure drug 

diversion and investigation point of view. 

So I know I have spoken with some enthusiasm and passion 

about these subjects, but I feel very strongly about them. And as 

strongly as I feel about your capabilities, we simply have to get a 

message into your organization that status quo on these issues and 

the progress that we have seen on them just is not good enough. 

Ms. LEONHART. Thank you for your leadership, Senator, on e-prescribing. And I would like to note that I did sign, in March, e-prescribing interim rule. It did go into effect in June, and we have 

done a lot of outreach and are continuing to talk to industry about 

it. We have been promoting it. 

We share your concerns and we think that that interim rule was 

our way of moving forward with what we believe, for all the same 

reasons you have mentioned, will help. And I will do, if confirmed—— 

Senator WHITEHOUSE. And admittedly, it will. It was a step in 

the right direction. 

Ms. LEONHART. It is a step and, if confirmed, I tell you, I will 

continue to prioritize e-prescribing and make sure that we continue 

to do what we can do at DEA to move that along. 

Senator WHITEHOUSE. We believe that—at least I believe that 

the urgency of getting the United States of America onto a robust 

and secure health information infrastructure so that we can provide Americans with the health care system of the future is a primary national goal and of real urgency. 

And we are very eager to work with you to work through any 

problems, but I appreciate very much your sentiment that you will 

make sure that your organization, in turn, works with a keen 

awareness not just for its own concerns in this process, but for the 

larger concerns of the country, and I appreciate that. 

Judge Saris, I just want to very briefly let you know that both 

a former boss of mine when I was U.S. attorney, Jamie Gorelick, 

and the chief judge of my district—Ms. Gorelick is a former boss, 

so she does not have much sway with me any longer. But Judge 

Lisi is our chief judge on our United States District Court and we 

came through the Committee together and we were both appointees 

or recommended by Claiborne Pell and appointed by President 

Clinton, and they speak very, very highly of you and of the work 

that you have done. 

And I just wanted to have it be a matter of record that the 

former deputy attorney general of the United States and a chief 

United States district judge, who has the occasion to work with you 

very closely from a neighboring state, both feel that the quality of 

680 

your work, the quality of your scholarship, the quality of your leadership all merit that kind of commendation. 

So I am delighted that you are here and look forward, I hope, to 

a speedy confirmation for you. 

Judge SARIS. Thank you. 

Senator WHITEHOUSE. And wish you well in your job of keeping 

the sentencing guidelines current and appropriate. 

And, finally, Ms. Hylton, I look forward to working with you. As 

you may know, we have a detention facility in Rhode Island that 

has experienced some setbacks. It is a matter of great importance 

to the Rhode Island delegation that that be all set right and that 

we work with you to make sure that to the extent that the facility 

is properly complying with all of the various laws and administrative requirements of the Marshals Service, that it continues to be 

seen by you as a valuable resource. 

I want to also take a moment to recognize Marshal O’Donnell, 

who I worked with for many, many years as a state police officer. 

I knew him first when he was an undercover officer and I was prosecuting cases that he was the primary agent and witness in. He 

went on to become the No. 2 in the Rhode Island State Police and 

run it as the top administrator. 

So he combines both great courage and initiative in the field, 

great experience in putting cases together for successful prosecution, and considerable administrative skills in law enforcement, 

and I am delighted that you will be working with him. 

So thank you very much for being here. We wish you well. 

Ms. HYLTON. Thank you, Senator. I look forward to working with 

you and the district of Rhode Island and the office of the Federal 

detention trustee on that detention facility in your area. As you 

know, it’s critical for that district to have housing within a reasonable distance from the court. So I look forward to working with 

you. 

Senator WHITEHOUSE. All right. At this point, Senator Sessions 

is not present, but I do believe that he wishes to have a chance to 

ask questions of the witnesses. So we will not adjourn the hearing 

at this point. We will recess the hearing until 3 p.m. so that he has 

the chance at 3 to return and re-engage with you, and I think that 

is an important courtesy, since Senator Sessions is extremely busy, 

and I am very pleased that he has the interest in this panel to 

come back and ask these questions. 

So we are eager and delighted to have the chance to do that. I 

hope that it does not disturb your schedules too much, but I think 

it is important. 

So without further ado, the hearing will recess until 3 p.m. 

[Recess.] 

Senator SESSIONS. [presiding] We will return to session. I used 

to have a show called ‘‘In Session with Jeff Sessions.’’ It did not 

break any rating record numbers, you can be sure of that. 

It is great to have each of you. We thank you for your willingness 

to serve. I appreciate so very much Chairman Leahy allowing me 

to have an opportunity to ask some questions. We have just had 

so many conflicts here at this late part of the year with so many 

things happening. 

Let me get onto the right page here. Is it Leonhart? 

681 

Ms. LEONHART. Leonhart. 

Senator SESSIONS. Leonhart. Very good. I am a big fan of the 

DEA, having spent much of my 2.5 years as an Assistant United 

States Attorney prosecuting their cases, and then, later, being 

United States Attorney for 12 years, and we worked with some of 

the big international smuggling cases to other kinds of cases. 

And I do believe that law enforcement does make a difference in 

the safety of our streets and the health of our children, and would 

first ask you, do you have a view and have you expressed one with 

regard to legalization of marijuana and some of these latest ideas 

of that nature that have been floating up in states and cities, and 

what is that position? 

Ms. LEONHART. Thank you, Senator. A 30-year veteran DEA 

agent, I have seen what marijuana use has done to young people. 

I’ve seen the addiction. I’ve seen the family breakups. I’ve seen the 

bad. 

I am extremely concerned about legalization of any drugs. We already have problems with the other—with prescription drugs which 

are legal. And it is of concern and it’s of concern to DEA and we 

enforce Federal drug laws. So if confirmed as administrator of the 

DEA, we would continue to enforce the laws, the Federal drug 

laws. 

Senator SESSIONS. In previous years, DEA administrators have 

spoken out against the legalization measures. Have you done so 

and do you expect to do so if these referenda continue to be afoot? 

Ms. LEONHART. DEA and I have spoken out. DEA will enforce 

Federal drug laws. Right now, in all 50 states, marijuana is illegal. 

In all 50 states, we have DEA agents that bring cases and we focus 

on resources on major traffickers and the organizations who are 

supplying drugs, no matter which drugs, marijuana, meth, cocaine, 

heroin. 

Senator SESSIONS. Well, I know you have the responsibility to enforce the law, but chiefs of police, state directors of public safety, 

and heads of the Drug Enforcement Administration many times, in 

my experience, have understood the danger of these legalization efforts. And it sounds good to people. It sounds like, well, we can just 

end the problem of drugs if we just make it legal, which any country that has tried that, Alaska and other places have tried it, it 

does not work and it is a very dangerous failed policy, and we need 

mature, effective public officials who are willing to say that. 

Ms. LEONHART. You are absolutely—— 

Senator SESSIONS. Are you willing to say that? 

Ms. LEONHART. Yes. I’ve said that, Senator. You’re absolutely 

correct. The social costs from drug abuse in all of the—especially 

from marijuana, all of the recent reasons that legalizers say it 

should be legalized, it will help the Mexican cartel situation, it 

won’t. It will allow states to balance budgets, it won’t. 

Nobody is looking at the social costs to society when we are talking about legalizing drugs. And what worries me the most is we 

have seen, after years of stabilization of drug use, especially among 

teens, we have seen a spike, and I believe that that spike is directly related to all the conversation we are now hearing about the 

legalization of drugs. 

682 

Senator SESSIONS. I would have no doubt of that. In fact, having 

been involved as United States Attorney in the early 1980s and the 

spontaneous grassroots effort, the Reagan Administration effort to 

crack down on drugs, drug use did go down. 

As a matter of fact, a University of Michigan study showed that 

half the high school seniors in 1980 admitted to having used an illegal drug and the numbers went well below 25 a decade later. 

So the effort that we undertook as a Nation to counsel young 

people, send clear messages about what is acceptable and what is 

not had a positive influence on the health and welfare of our country. The military’s drug testing, for example, one of my United 

States attorney friends in Hawaii had a large portion of his office 

doing murders and assaults and thefts and burglaries from the 

military bases after they tested for drugs and eliminated drugs in 

the military, he said those all just plummeted; not just drug cases, 

but assaults and thefts and burglaries went down. 

So I hope that this administration will send a very clear message 

on this. I know that a lot of people, like you said, have the idea 

that drug cartels will be all nice if we just made it legal, and a lot 

of them think that. 

So I am glad to hear you say that and I encourage you to speak 

out on that. I may ask you some written questions about the Mexican situation. 

For my two cents’ worth, the best way we can help the Mexican 

leadership, who is standing courageously against drug cartels, because their lives are on the line—as we know, those who stand up 

to them put their lives at risk—is to demolish the gangs in our 

country who are selling drugs, collecting the money, and taking it 

back to fund these entities of power and strength. 

Have you given any thought to enhancing our ability to focus on 

the Mexican drug cartels that are the primary distribution network 

for cocaine in America? 

Ms. LEONHART. Yes, Senator. A lot of the focus for DEA these 

days is on Mexico. And now that we have these courageous Mexican partners with President Calderone at the head, we have had 

great successes in Mexico in breaking the power and the impunity 

of these cartels. 

But we can do more and, if confirmed, what we will do is continue our partnership in Mexico and expand, because now we’re 

collecting so much more intelligence that we’re sharing with them 

and we’ve got that intelligence to share with our state and local 

partners here so that we can effectively go after those domestic 

cells that are working for those cartels, transporting, distributing 

drugs and collecting the money and bringing it back south. 

Senator SESSIONS. Well, if you look at it as the tree of the criminal enterprise in Mexico, the roots are the distribution networks in 

the United States that bring in the money and the wealth that goes 

up to do it. And as our responsibility in our country, we need to 

be after those folks, and they will be facing substantial prison sentences. But we need to work on that and, hopefully, DEA will continue to do that. 

Judge Saris, it is good to have you. 

Judge SARIS. Thank you. 

683 

Senator SESSIONS. I was United States attorney when we did not 

have the sentencing guidelines and I was there when they were 

passed, and I was there when they were implemented. And they 

were implemented with clarity, without equivocation, and it, I 

think, was another one of the factors in the decline in drug use in 

America. 

The murder rate in America is half what it was in the late 1970s, 

early 1980s, and a lot of good things have happened. And although 

we do not want anyone in jail a day longer than it is smart to have 

them there, I have no doubt that because we have a substantial 

prison population, that has reduced crime in America. 

If you go out and did a survey of 100 people, how many of them 

are likely to be an armed robber, not many; or a burglar or a rapist. And the extent to which more of those are in jail, you have less 

armed robberies, murders and rapes. That is just a fact. 

A lot of people want to get out of it, they do not want to talk 

about that. They want to say that there are too many people in 

prison. So we have got to get them out of prison. So we need to 

be smart about it is what I would say to you. 

Yours is an August position. The sentencing guidelines have been 

damaged inexplicably for me by the Supreme Court decisions. But 

that is the Supreme Court and we are stuck with that. 

So I wanted to ask a number of things. I would like to inquire 

about how you personally have dealt with the guidelines in your 

court and the judges with which you served in Massachusetts, because according to the Sentencing Commission, of which you would 

be the head, in 2009, 56.8 percent, 57 percent, nationwide, sentences were rendered within the guideline range, but in Massachusetts, only 35 percent of the cases resulted in sentences within the 

guideline range. 

Nationwide, only 11.8 percent of the cases resulted in below 

range sentences and cited Booker, the Booker case to justify that 

decision. In Massachusetts, that same category accounted for 33 

percent of all cases. 

Why do you think Massachusetts is that far out of the mainstream of the United States? Because you will be sentencing commissioner for the United States, not just for Massachusetts. 

Judge SARIS. Thank you, Senator. It’s a great question, and let 

me back up by saying I was here as a young staff person putting 

together the sentencing guidelines back in the early 1980s. So I am 

firmly committed to the principle of eliminating unwarranted disparities. 

One of the big differences in Massachusetts is our high proportion of crack cases. And I want to thank the Congress for passing 

the Fair Sentencing Act. I think that makes a huge difference. I 

know approximately 66 percent of the drug cases that I personally 

sat on involved crack, in contrast to the Nation’s about 19 percent, 

and it’s been a high priority in our U.S. attorney’s office to go into, 

let’s say, the housing projects—— 

Senator SESSIONS. Where do you get that number of 19 percent 

nationwide? 

Judge SARIS. Is crack? I asked somebody to calculate it and that’s 

what someone told me. 

684 

Senator SESSIONS. I do not think it is that low in the districts 

where I practiced and what is happening in Alabama today. I think 

it is higher. 

Judge SARIS. I asked somebody to look it up and that is what 

they came up with. 

Senator SESSIONS. Well, we will check it. Maybe you are right, 

I do not know. 

Judge SARIS. But in any event, I do know my personal caseload 

has had a high number of crack cases, and I believe that is true 

across the district of Massachusetts. 

Senator SESSIONS. Well, it was in Alabama when I was there, 

that is for sure. That is true. 

Judge SARIS. So I believe that the concerns about the crack/powder ratio did actually cause a lot of disparity across the United 

States and I’m hoping now that you’ve fixed it through this new 

statute, which I fully support and I think is a wonderful compromise, I think a lot of that will go away. 

Senator SESSIONS. To what extent do you feel would be the responsibility of the Chairman to advocate that judges follow the 

guidelines, that this is important, that they not lose discipline, that 

every judge start more and more, year after year, less and less find 

any binding authority in the guidelines? 

Judge SARIS. I think right now with the guidelines, it’s a very 

important transitional moment for exactly the reason you just pinpointed, which is the chair of the Sentencing Commission—I think 

Judge Sessions has done it. I think Judge Hinajosa has done it— 

needs to go out, needs to make sure that the guidelines are persuasive and evidence-based, and they need to go out to the judges and 

really advocate and ensure that they understand how important it 

is and what an important Congressional principle it is to avoid unwarranted disparity, and it shouldn’t just be within a district, 

whether is your luck of the judicial draw. 

It should be the differences between Texas and Massachusetts or 

between California and Georgia, let’s say. It should be nationwide 

and it should be within a district. 

Senator SESSIONS. Well, that certainly was the idea, and I think 

it was followed pretty closely for quite a number of years. 

With regard to your personal sentencing, which I think would reflect your approach to the guidelines, do you think your sentences 

would be the range of Massachusetts’ sentences as far as departures are concerned or would be more in line with the national 

numbers? 

Judge SARIS. Well, across the 5 years, averaging, I believe they’re 

consistent nationally with the number within guidelines. It’s gone 

up and down depending on the year, because of—largely because 

of the crack cases. Sometimes I was below Massachusetts. Once I 

think I was above Massachusetts. 

But primarily, I—we have 47 percent, I think, of our caseload is 

drug-driven, and I think that in those situations, as I said, on 

crack, most of us in the last couple of years departed down. 

Senator SESSIONS. Well, I do not think you should have. I think 

there are too many departures downward, and I do not think the 

Booker case really authorized or suggested that judges should 

break free and just impose their own personal views. 

685 

I know some judges have done that. So it worries me a little bit 

that we would have somebody named to be the Chairman of the 

commission who has one of the higher rates of departures, frankly, 

in that way. I may follow it up and give you a chance to respond 

to that some. 

Would you be willing to provide the Committee a list of cases in 

which you departed downward from the guidelines, with some sort 

of brief description of those cases? 

Judge SARIS. Sure. 

Senator SESSIONS. I appreciate that. In a 2002 speech to the 

Massachusetts State Sentencing Committee, which is the important thing, the sentencing guidelines, the Federal experience, you 

said, ‘‘I believe that a guideline system is better than one based on 

mandatory minimums and one that is purely discretion-based. 

However, the states should be careful to avoid the rigidity of the 

Federal system and preserve the discretion of the trial court judge 

to render a principled sentencing decision. When all is said and 

done, our system has not eliminated disparity in sentencing.’’ 

Well, it may well be your view, but I would hope it would not 

be the view of the Chairman of the United States Sentencing Commission, who should believe and strive to achieve consistency in 

sentencing to eliminate disparity. 

And the idea that a guideline system, you are talking in Massachusetts, is better than one based on mandatory minimums, is it 

not true that what you meant in that statement was that you 

would prefer a system that just had guidelines and had no mandatory requirement on a judge as opposed to one that has mandatory 

minimums or a mandatory sentence for certain crimes? 

Judge SARIS. Yes. I testified before the legislature to urge them 

to adopt a guideline system. 

Senator SESSIONS. Guidelines as opposed to mandatory. We have 

a mixed guideline/mandatory system. And do you oppose that? 

Would you like to see Federal sentencing minimum mandatories 

eliminated? 

Judge SARIS. I believe that the Sentencing Commission will be 

studying mandatory minimums as part of its mandate. I am not— 

I remember sitting over there as a staff member. I certainly understand why Congress wants mandatory minimums, because there 

are certain crimes they feel carry a certain sentence. 

Senator SESSIONS. All right. 

Judge SARIS. I believe the guidelines are the best approach. Once 

you’ve made sure that they are followed by the judges, that they’re 

persuasive, that they’re evidence-based, I think that gives judges 

the flexibility on those few occasions—— 

Senator SESSIONS. Well, but Massachusetts, at a much higher degree than anybody else, thought they knew better than the guidelines. They set these guidelines, but I know better; I do not have 

to follow them, because the guidelines are in error, right? 

Judge SARIS. I know that’s not my practice. As I said, that is, as 

far as I’m concerned—— 

Senator SESSIONS. Well, there is a little bit of that in all of this. 

Judge SARIS. Well, no. I’ve actually followed the guidelines. I 

would say the one big exception was the crack guidelines and I 

686 

think that now that that is fixed, I think that you’re not going to 

see that anymore or certainly you won’t with me. 

Senator SESSIONS. Because you did not like the crack sentences. 

Judges did not like them, so they did not want to follow them. 

Judge SARIS. Now I like them. No. I think what happened is that 

the Supreme Court in two cases actually told us that we should— 

and the Sentencing Commission itself said. And so I think across 

the country, what was happening—as I said, I think it’s the single 

greatest source of unwarranted disparity, is that once the Supreme 

Court spoke and said you should consider lower sentences, I think 

a lot of people, including myself, did. 

Senator SESSIONS. In a 2007 speech to the Federal Bar Association, you stated, ‘‘Sentencing has become harder and more challenging now that judges can finally think again beyond the strict 

sentencing guidelines.’’ Do you think there is a greater potential for 

disparate or erroneous sentences now that the sentencing has become harder and more challenging? 

Judge SARIS. Absolutely, and that’s why I think it’s important. 

The Supreme Court has said, as you know, that you start with the 

guidelines. They’re your benchmark, they’re your anchor, but you 

must consider the individual characteristics of the offender and 

other of the factors in 3553(a). And so I think that’s why the commission is all the more important right now; not only to make sure 

that the guidelines are persuasive, but to go out there and persuade judges to follow those guidelines. 

Senator SESSIONS. Well, I think the leadership from the commission should encourage and you should be confident that your guidelines consider the proper factors. As a matter of fact, they do. 

There are very few factors that I am aware of that are not included. If you carry a gun, if you had a previous offense, if you 

threaten the witnesses, how much drugs that you have, whether or 

not you took advantage of a child, or factors that all allow increase, 

and there are factors, such as cooperation and other factors that 

allow some reduction. 

We added a little more in this crack bill that I worked on for 

many years, essentially the same bill I offered in 2000, it finally 

got passed this year. But those numbers are—so I just think that 

you really need to have this in your head; that you are trying to 

craft guidelines that properly consider the circumstances of the 

case. 

Otherwise, you are back there just like we used to see when I 

first started prosecuting, the preacher there talking, the momma 

crying, the brother talking, the boss pleading, and the judge, with 

very little guidance, letting his conscience or empathy of the moment decide what a sentence should be, and they were very aberrational. Some judges were very aberrational themselves and some— 

and on the same floor, you get dramatically different sentences for 

the same offense. 

Do you agree that the leadership from your side needs to be clear 

that you believe the guidelines have inculcated as much of the relevant data as realistically achievable and that normally you would 

expect people to follow that? 

687 

Judge SARIS. I absolutely promise to do that and I also believe 

that. I was persuaded of it when I was back here 25 years ago, and 

I still believe it. 

Senator SESSIONS. The commission listed 14 priorities for implementing the Fair Sentencing Act of 2010, which I cosponsored; continuing to study the impact of the Booker case; implementing portions of the health care bill, among others. 

On that same day, the commission published its proposed temporary emergency amendment to implement the Fair Sentencing 

Act of 2010—that is our bill—for public comment and that amendment took effect November 1. 

Do you agree that developing appropriate permanent rules to implement the Fair Sentencing Act should be a high priority for the 

commission? 

Judge SARIS. Absolutely. I think it should be one of the first 

things we do is to make sure that everybody is heard from and that 

we get statistics and that we implement permanent amendments. 

I was not involved, obviously, in the crafting of the temporary 

ones, but that’s one of my first orders of priority. 

Senator SESSIONS. And would you agree that it would be important for the commission to allow this Fair Sentencing Act time to 

be implemented before it produces any additional policy recommendations or conclusions about the crack and powder cocaine 

issue? 

Judge SARIS. Well, this may be something I’d have to check on. 

I had thought we were required to do a permanent amendment by 

May 1. I may be wrong about that, Senator. But I think that if 

that’s not the case, the way you propose it makes the most sense 

of all. 

If, in fact, we have to do something by May 1, then I imagine 

we go with the data that we’ve got and then be open to changing 

it. 

Senator SESSIONS. The rules of the commission allow the chair 

a good bit of power to call meetings, to convene a public hearing, 

‘‘on any matter involving the promulgation of sentencing guidelines 

or any other matter affecting the commission’s business.’’ 

If confirmed, what issue do you have, in your mind, that you 

might want to have hearings on? 

Judge SARIS. Thank you. I was hoping to have the opportunity 

to do that. I think one of the big problems that I’ve been worried 

about is the high rate of recidivism after people get out of jail, either on supervised release or after they have left all together. 

Overall, the people on supervised release, about 30 percent of 

them end up in revocations. However, 30 percent doesn’t really capture it, because that means all criminals across all categories. 

In contrast, about 60 percent of all people in the highest criminal 

history categories are getting revoked; high, high numbers. In our 

district in Massachusetts, we’ve been experimenting with a drug 

court program, as well as with reentry programs and various probation supervision techniques. 

What I’d really like to do is bring down that rate of recidivism. 

I think it’s an important public safety issue and I believe that we 

should be much more aggressive in dealing with treatment, as well 

as being smarter, if you will, on trying to stop people from 

688 

recidivating and then if they do, perhaps tougher, because at the 

end of it, this is both a rehabilitation issue, but, very importantly, 

a public safety issue, and I would like to hold hearings on that 

issue. 

Senator SESSIONS. Yes. But you do not need—you have been involved in this at least 25 years, apparently. I think I am probably 

a little longer, and tried to follow it, read writings and keep up 

with it over the years. It has just been an interest of mine. 

Ninety-nine percent, I was stunned to see recently, I think it is 

99 percent of the criminal cases end in pleas. 

Judge SARIS. Yes. 

Senator SESSIONS. Is that about right, Judge Saris? 

Judge SARIS. I had sort of thought it was 92 or 93, but certainly 

over 90. 

Senator SESSIONS. The numbers were higher than that that I 

heard. But at any rate, if it is 90 percent, the point is overwhelmingly, the question is how much time or whether the person will 

serve time; if so, how much. 

So I do think it is worth spending a considerable amount of time 

in the system on trying to identify what kind of sentence ought to 

be imposed, and the system should be consistent, from a moral 

point of view, but it also should reflect reality. 

And I would just say to you that recidivism has been the big deal 

for a long time. And has there been any program that has dramatically reduced the recidivism rate, to your knowledge? 

Judge SARIS. To my knowledge, at least preliminary statistics 

from our drug court is that we’ve started to reduce the recidivism, 

but I can’t say that that’s going to be a long-term fix. I believe that 

we should be following offenders intensively. I believe we should be 

making sure they have job opportunities, and I think that we 

should be a hammer when they fail to comply. 

Senator SESSIONS. I agree with that and I would just say that 

that is true. But I want to make the point that ever since I have 

been in law enforcement, starting out in 1975, people have had all 

kinds of plans to fix the recidivist rate. And in the early 1980s, 

right after Miami started the first drug court, we invited the judge 

to Mobile, Alabama. I was at the meeting. And we started one 

there. And he was claiming this dramatic rate. 

Well, it is not that dramatic. Maybe it looked like it for a while. 

I think it was better, but we have just got to understand, mature 

people, that small incremental gains are significant; not that you 

are going to reduce by half or 60 percent recidivist rates, I do not 

think it has ever been achieved anywhere, and every idea that has 

ever been thought up. 

You have education in prisons, you have drug prisons, you can 

get them in physical condition in prison, you have them cut grass 

in prison, all these things have not been as effective as we wish 

they were or we would be glad to do them anywhere anytime, if 

we could prove it worked. 

So I am glad you are looking at that, and will not harass you 

with any more questions. 

Judge SARIS. Thank you, sir. 

Senator SESSIONS. You answered well, I give you credit. 

689 

Now, Ms. Hylton, you are going to run the U.S. Marshals Service. 

Ms. HYLTON. Yes, sir. 

Senator SESSIONS. Back in the 1800s, they had this guy, kind of 

like David Koresh, I think, up in rural Alabama and he killed a 

bunch of people and they called the marshal. He had to get on a 

steamboat and a train to come up and catch the man. But that was 

the only Federal presence that existed. There was not any DEA, 

sorry, at the time, just the U.S. Marshals Service, and it has a 

great heritage and great history, and you have had a pretty long, 

professional career in service. 

But it is a very important job you are undertaking. Do you have 

any thoughts about what you would like to accomplish? 

Ms. HYLTON. Yes, Senator, thank you. And thank you for the acknowledgment to the women and men in the Marshals Service that 

pride themselves in the long tradition of the agency and their accomplishments. 

I’ve been away from the Marshals Service now for about 7 years 

and like many law enforcement nationwide, I’m sure they face significant challenges with the growing demands that are on them. 

I know that we share that our National security and the protection of our judicial process is at the center of our democracy, and, 

therefore, I would look forward, if confirmed, to take on those challenges so that we can ensure the protection of the integrity of the 

judicial process; that we address the issues on our border districts; 

that we keep our streets safe by apprehending dangerous fugitives; 

and, that we protect our children through the mandates in the 

Adam Walsh Act. 

So I look to, in order to achieve that, I look to ensure that our 

resources and the support of this Committee and Congress and 

through their appropriations are used wisely and effectively. I look 

to ensure that there’s a sound and effective operating infrastructure for the employees of the Marshals Service to meet those mission requirements; and, I look to be innovative and creative in 

leveraging information technology and technical solutions in order 

to enhance our protective services and investigations. 

And I think, also, that it’s important to always kind of look to 

the future in law enforcement as you know you need to stand ready 

and be prepared for the future, and, in law enforcement, the demands shift often on us. 

Senator SESSIONS. You will be the leader of this important service, and it is my observation that the FBI, the DEA, Customs, all 

the Federal agencies, including the Marshals Service, create organizational structure. You give people special duties that are critically important maybe at one time, but a decade later, they may 

not be so important. 

And make no mistake, you are going to be asked to do more for 

less, because this country does not have the money. We do not have 

the money to continue to spend like we have, and every agency— 

I just proposed to my Republican colleagues that we all reduce our 

expenditures 15 percent. I will assure you, the U.S. Senate will not 

fail if we reduced spending 15 percent and neither would the 

United States Marshals Service, if it had good leadership. 

690 

But hopefully you will not be asked to take that kind of reduction. But I guess I am saying, are you prepared to rigorously examine all the positions that you have, the special duties that you 

have, the clerical positions that you have, and make sure that more 

personnel are focused on the actual responsibilities of the Marshals 

Service? 

For example, the Department of Defense did a good job of moving 

more people to be military deployable and less doing support positions, because the whole purpose of the military was to deploy and 

execute the policy of the Congress and the President. 

Are you willing to do that, even if it shakes up and causes some 

people to complain that you are being mean to them? 

Ms. HYLTON. Senator, I actually pride myself on my fiscal responsibility in my career. Certainly, I embraced it as Federal detention trustee. I believe that we can always look to ensure that 

we are meeting the demands that are in front of us by reassessing 

and realigning as necessary. 

Senator SESSIONS. I believe both sides of the aisle here would 

back you up on that, if you have done it in the right way and you 

have got good plans that make the service more productive. 

Gosh, you have got some talent, you have got good talent in the 

Marshals Service, and sometimes their duties are not as broad as 

they need to be to fully utilize their talents or sometimes within 

the agency itself, the service itself, the job descriptions contain the 

ability to be productive. 

So I hope you will look at that as you seek to be more productive 

for the service. 

Ms. HYLTON. Yes, sir. 

Senator SESSIONS. Good luck. 

Ms. HYLTON. Thank you very much. 

Senator SESSIONS. It is an important job. 

Thank all of you. I have enjoyed this exchange. Each one of you 

are being asked to head very important agencies of the United 

States, very important agencies, and we will be reviewing your 

record, background. 

Ms. Hylton, I did want to say that I do think there is a role for 

private prisons in the American system. I do not think you would 

have a blanket refusal to consider that and if anybody is critical 

of you for that, I do not think that would be justified. 

If you improperly made decisions about who to hire and how to 

manage a contract—but the idea that somehow this should never 

be contracted out, in ceratin circumstances, I think it would be 

wrong. 

What is your view about private prisons? 

Ms. HYLTON. Thank you, Senator, for that question, because I 

think you know we took great pride at the office of the Federal detention trustee to meet the growing population, and always the 

first approach is—the best approach is always a balanced approach. 

And the first step in the process is Federal detention beds availability. That’s the first assessment. That is done with keeping in 

mind the best interest of the government, but also the best interest 

of the detainee. 

691 

We want to ensure that they are within a reasonable distance of 

their court proceedings, that they are supported by counsel, and 

that they have access to family. 

So if we cannot meet the Federal detention space, there are no 

beds available in the Federal detention centers, we then turn to 

our partners and state and local facilities. Because we have a need 

within the department, again, location close to the courthouses, we 

partner often with the state and local governments and actually 

enjoy 1,800 intergovernmental agreements nationwide. 

When sometimes there are pressing fiscal problems for the state, 

they are not able to share those beds. They have their own needs. 

And at those points is when, we’ve exhausted all alternatives, we 

then turn and have to rely on private industry. 

Done rarely, but it is done, and it’s allowed us to provide housing 

for detainees within a reasonable distance to the court, and I think 

that’s a good thing. 

Senator SESSIONS. I do, too. You stated that well. 

Thank you so much. 

Ms. HYLTON. Thank you, Senator. 

Senator SESSIONS. Let me say that the record will remain open 

for additional questions and comments for one week. Thank you so 

much. 

[Whereupon, at 3:44 p.m., the hearing was concluded.] 

[Questions and answers and submissions for the record follow.] 

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66817.700
778 


66817.701
779 


66817.702
780 


66817.703
781 


66817.704
782 


66817.705
783 


66817.706
784 


66817.707
785 


66817.708
786 


66817.709
787 


66817.710
788 


66817.711
789 


66817.712
790 


66817.713
791 


66817.714
792 


66817.715
793 


66817.716
794 


66817.717
795 


66817.718
796 


66817.719
797 


66817.720
798 


66817.721
799 


66817.722
800 


66817.723
801 


66817.724
802 


66817.725
803 


66817.726
804 


66817.727
805 


66817.728
806 


66817.729
807 


66817.730
808 


66817.731
809 


66817.732
810 


66817.733
811 


66817.734
812 


66817.735
813 


66817.736
814 


66817.737
815 


66817.738
816 


66817.739
817 


66817.740
818 


66817.741
819 


66817.742
820 


66817.743
821 


66817.744
822 


66817.745
823 


66817.746
824 


66817.747
825 


66817.748
826 


66817.749
827 


66817.750
828 


66817.751
829 


66817.752
830 


66817.753
831 


66817.754
832 


66817.755
833 


66817.756
834 


66817.757
835 


66817.758
836 


66817.759
837 


66817.760
838 

Æ 


66817.761