S. HRG. 111–695, Pt. 6 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 22, APRIL 28, and MAY 13, 2010 

PART 6 

Serial No. J–111–4 

Printed for the use of the Committee on the Judiciary 

( 

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

66–693 PDF 2011

S. HRG. 111–695, Pt. 6 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 22, APRIL 28, and MAY 13, 2010 

PART 6 

Serial No. J–111–4 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

BRIAN A. BENZCOWSKI, Republican Staff Director 

(III) 

C O N T E N T S 

THURSDAY, APRIL 22, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Kaufman, Hon. Edward E., a U.S. Senator from the State of Delaware ............ 1 

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

statement .............................................................................................................. 114 

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

prepared statement .............................................................................................. 117 

PRESENTER 

Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware presenting Leonard Stark, Nominee to be U.S. District Judge for the District 

of Delaware ........................................................................................................... 2 

Kaufman, Hon. Edward E., a U.S. Senator from the State of Delaware for 

Senator Schumer presenting Raymond J. Lohier, Jr., Nominee to be U.S. 

Circuit Judge for the Second Circuit .................................................................. 5 

STATEMENTS OF THE NOMINEES 

Lohier, Raymond J., Jr., Nominee to be U.S. Circuit Judge for the Second 

Circuit ................................................................................................................... 6 

Questionnaire .................................................................................................... 8 

Stark, Leonard, Nominee to be U.S. District Judge for the District of Delaware ....................................................................................................................... 49 

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

QUESTIONS AND ANSWERS 

Responses of Raymond J. Lohier, Jr., to questions submitted by Senators 

Coburn and Sessions ............................................................................................ 98 

Responses of Leonard Stark to questions submitted by Senators Coburn and 

Sessions ................................................................................................................. 104 

SUBMISSION FOR THE RECORD 

Cottrell, Frederick L., III, Richards Layton & Finger, Wilmington, Delaware, 

March 23, 2010, letter ......................................................................................... 110 

Dunne, Cafey R., Chair, New York City Bar, New York, New York, May 

26, 2010, letter ..................................................................................................... 111 

Gillibrand, Hon. Kristen E., a U.S. Senator from the State of New York, 

prepared statement .............................................................................................. 112 

WEDNESDAY, APRIL 28, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 383 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota ................... 119 

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

statement .............................................................................................................. 384 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 125 

Page

IV 

PRESENTERS 

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut 

presenting Robert N. Chatigny, Nominee to be U.S. Circuit Judge for the 

Second Circuit ...................................................................................................... 119 

Lieberman, Hon. Joseph I., a U.S. Senator from the State of Connecticut 

presenting Robert N. Chatigny, Nominee to be U.S. Circuit Judge for the 

Second Circuit ...................................................................................................... 121 

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

John A. Gibney, Nominee to be U.S. District Judge for the Eastern District 

of Virginia ............................................................................................................. 124 

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

A. Gibney, Nominee to be U.S. District Judge for the Eastern District 

of Virginia ............................................................................................................. 122 

STATEMENTS OF THE NOMINEES 

Chatigny, Robert N., Nominee to be U.S. Circuit Judge for the Second Circuit 

Questionnaire .................................................................................................... 153 

Gibney, John A., Nominee to be U.S. District Judge for the Eastern District 

of Virginia 

Questionnaire .................................................................................................... 251 

QUESTIONS AND ANSWERS 

Responses of Robert N. Chatigny to questions submitted by Senators Coburn, 

Cornyn, Grassley and Sessions ........................................................................... 302 

Responses of John A. Gibney to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 364 

SUBMISSION FOR THE RECORD 

Apter, Ronald S., Assistant U.S. Attorney, District of Connecticut, Hartford 

Financial Services Group, Inc., Hartford, Connecticut; Califano, Mark G., 

Assistant U.S. Attorney, District of Connecticut, GE Capital Corp, Norwalk, 

Connecticut; Michael G. Considine, Assistant U.S. Attorney, Eastern District of New York, Day Pitney LLP, Stamford, Connecticut; Thomas V. 

Daily, Assistant U.S. Attorney, District of Connecticut, Reid and Riege, 

P.C., Hartford, Connecticut; James K. Filan, Jr., Assistant U.S. Attorney, 

District of Connecticut, Pepe & Hazard LLP, Southport, Connecticut; Andrew P. Gaillard, Assistant U.S. Attorney, District of Connecticut, Day 

Pitney LLP, Stamford, Connecticut; Gates Garrity-Rokous, Assistant U.S. 

Attorney, District of Connecticut, GE Capital Corporation, Norwalk, Connecticut; Glasser, James I., Assistant U.S. Attorney, District of Connecticut, 

Wiggin and Dana LLP, New Haven, Connecticut; Marc J. Gottridge, Assistant U.S. Attorney, Southern District of New York, Lovells LLP, New York; 

Ethan Levin-Epstein, Assistant U.S. Attorney, Eastern District of New 

York, First Assistant U.S. Attorney, District of Connecticut, Garrison, 

Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C., New Haven, Connecticut; Walter P. Loughlin, Assistant U.S. Attorney, Southern District 

of New York, K&L Gates, New York; Stephen V. Manning, Assistant U.S. 

Attorney, District of Connecticut, O’Brien, Tanski & Young, LLP, Hartford 

Connecticut; Joseph W. Martini, Assistant U.S. Attorney, District of Connecticut, Wiggin and Dana LLP, New Haven, Connecticut; Jeffrey A. Meyer, 

Assistant U.S. Attorney, District of Connecticut, Associate Professor, 

Quinnipiac University School of Law, Hamden, Connecticut; Alfred U. 

Pavlis, Assistant U.S. Attorney, Southern District of New York, Daly & 

Pavlis, Southport, Connecticut; H. James Pickerstein, Assistant U.S. Attorney, District of Connecticut, U.S. Attorney, District of Connecticut, Chief 

Assistant United States Attorney, District of Connecticut, Pepe & Hazard 

LLP, Southport, Connecticut; Brian E. Spears, Assistant U.S. Attorney, 

District of Connecticut, Levett Rockwood P.C., Westport, Connecticut, April 

27, 2010, joint letter ............................................................................................. 370 

Connecticut Law Tribune, Douglas S. Malan, article, .......................................... 374 

Golub, David S., Silver Golub & Teitell LLP, Stamford, Connecticut, September 23, 2005, letter and Affidavit ................................................................. 377 

O’Hare, Michael E., Supervisory Assistant State’s Attorney, Office of the 

Chief State’s Attorney, Rocky Holl, Connecticut, March 5, 2010 ..................... 387 

Page

V 

Nevas, Alan H., U.S. Attorney, District of Connecticut, U.S. District Judge, 

District of Connecticut; Kevin J. O’Connor, U.S. Attorney, District of Connecticut, U.S. Associate Attorney General; Stanley A. Twardy, Jr., U.S. 

Attorney, District of Connecticut, April 16, 2010, letter ................................... 399 

Stewart, Elizabeth J., Murtha Cullina LLP, Attorneys at Law, and David 

N. Rosen, March 15, 2010, letter and attachment ............................................ 401 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, prepared statement ...................................................................................................................... 411 

U.S. District Court, District of Connecticut, Hartford, Connecticut, court report ........................................................................................................................ 413 

THURSDAY, MAY 13, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 447 

Prepared statement .......................................................................................... 1048 

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

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

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 758 

PRESENTERS 

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

Scott M. Matheson, Jr., Nominee to be U.S. Circuit Judge for the Tenth 

Circuit ................................................................................................................... 457 

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

Susan Richard Nelson, Nominee to be U.S. Circuit Judge for the District 

of Minnesota ......................................................................................................... 458 

Hatch, Hon. Orrin, a U.S. Senator from the State of Utah, presenting Scott 

M. Matheson, Jr., Nominee to be U.S. Circuit Judge for the Tenth Circuit ... 449 

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

Susan Richard Nelson, Nominee to be U.S. District Judge for the District 

of Minnesota ......................................................................................................... 455 

Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland, presenting Ellen Lipton Hollander, Nominee to be U.S. District Judge for 

the District of Maryland and James K. Bredar, Nominee to be U.S. District 

Judge for the District of Maryland ..................................................................... 451 

Reed, Hon. Jack, a U.S. Senator from the State of Rhode Island, presenting 

John J. McConnell, Jr., Nominee to be U.S. District Judge for the District 

of Rhode Island ..................................................................................................... 452 

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

presenting John J. McConnell, Jr., Nominee to be U.S. District Judge 

for the District of Rhode Island .......................................................................... 454 

STATEMENTS OF THE NOMINEES 

Bredar, James K., Nominee to be U.S. District Judge for the District of 

Maryland ............................................................................................................... 584 

Questionnaire .................................................................................................... 585 

Hollander, Ellen Lipton, Nominee to be U.S. District Judge for the District 

of Maryland .......................................................................................................... 644 

Questionnaire .................................................................................................... 646 

Matheson, Scott M., Jr., Nominee to be U.S. Circuit Judge for the Tenth 

Circuit ................................................................................................................... 460 

Questionnaire .................................................................................................... 461 

McConnell, John J., Jr., Nominee to be U.S. District Judge for the District 

of Rhode Island ..................................................................................................... 529 

Questionnaire .................................................................................................... 531 

Nelson, Susan Richard, Nominee to be U.S. District Judge for the District 

of Minnesota ......................................................................................................... 708 

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

Page

VI 

QUESTIONS AND ANSWERS 

Responses of James K. Bredar to questions submitted by Senators Sessions, 

Grassley and Coburn ........................................................................................... 780 

Responses of Ellen Lipton Hollander to questions submitted by Senators 

Sessions, Grassley and Coburn ........................................................................... 790 

Responses of Scott M. Matheson to questions submitted by Senators Sessions, 

Grassley, Kyl and Coburn ................................................................................... 801 

Responses of John J. McConnell, Jr., to questions submitted by Senators 

Sessions, Grassley, Kyl, Cornyn and Coburn .................................................... 828 

Responses of Susan Richard Nelson to questions submitted by Senators Sessions, Grassley and Coburn ................................................................................. 1034 

SUBMISSION FOR THE RECORD 

Avedisian, Scott, Mayor, City of Warwick, Warwick, Rhode Island, May 7, 

2010, letter ............................................................................................................ 1043 

Baldwin, Barbara F., Providence, Rhode Island, February 23, 2009, letter ....... 1044 

Bishop, Brian, Director of the Founders Project and Bill Felkner, President 

and Founder, Ocean State Policy Research Institute, Providence, Rhode 

Island, June 16, 2010 ........................................................................................... 1045 

Chamness, Charles, President & CEO, National Association of Mutual Insurance Companies, Washington, DC, December 17, 2010, letter ........................ 1057 

Columbus, Curt, Artistic Director, Trinity Repertory Company, Providence, 

Rhode Island, December 29, 2008, letter ........................................................... 1058 

Corley, Richard K., Corley & Associates, Providence, Rhode Island, March 

3, 2009, letter ....................................................................................................... 1060 

DeRentis, James V., Executive Vice President & Chief Business Officer, 

BankRI, January 25, 2009, letter ....................................................................... 1063 

Diaz, Grace, Rhode Island State Representative District 11, Providence, 

Rhode Island, January 13, 2009, letter .............................................................. 1064 

Esserman, Colonel Dean M., Chief of Police, Providence Police Department, 

Providence, Rhode Island, May 7, 2010, letter .................................................. 1065 

Fisher, D. Michael, Circuit Judge, U.S. Court of Appeals for the Third Circuit, 

Pittsburgh, Pennsylvania, May 11, 2010, letter ................................................ 1067 

Foulkes, William G., Providence, Rhode Island, January 27, 2009, letter ......... 1069 

Gerhardt, Michael, and Doree Goodman, Warren, Rhode Island, February 

27, 2009, letter ..................................................................................................... 1070 

Grady, Meghan, MPA, and Kimberly Ahem, Providence, Rhode Island, February 23, 2009, letter ........................................................................................... 1072 

Greater Providence Chamber of Commerce, Providence, Rhode Island, statement ...................................................................................................................... 1073

Gregorie, Christine O., Governor, State of Washington, Olympia, Washington, 

December 12, 2008, letter .................................................................................... 1074 

Gross, Teny Oded, Executive Director, Institute for the Study & Practice 

of Nonviolence, Providence, Rhode Island, December 12, 2008, letter ............ 1075 

Hamblett, Adam, Vice President/General Manager, Cox Media, West Warwick, Rhode Island, January 26, 2009, letter .................................................... 1077 

Harpootian, John M., Paster & Harpootian, Cranston, Rhode Island, May 

7, 2010, letter ....................................................................................................... 1078 

Hittner, Barry G., Warwick, Rhode Island, January 19, 2009, letter ................. 1080 

Hurst, Barbara, Deputy Public Defender, Providence, Rhode Island: January 

12, 2009, letters .................................................................................................... 1081 

Israel, Richard J., Great Barrington, Massachusetts, May 7, 2010, letter ......... 1084 

Jaffe, Bob & Jill, Providence, Rhode Island, February 24, 2009, letter .............. 1085 

Jones, Scot A., President/CEO, Groov-Pin, Smithfield, Rhode Island: 

January 28, 2009, letter ................................................................................... 1086 

November 2 2010, letter ................................................................................... 1087 

Josten, R. Bruce, Executive Vice President, Chamber of Commerce, Washington, DC, June 15, 2010, letter ........................................................................ 1088 

Keefe, Sister Ann, Saint Michael’s Parish, Providence, Rhode Island, May 

6, 2010, letter ....................................................................................................... 1089 

Keeling, Beth, Supervisor of Southwick Drive Group Home, Lincoln, Rhode 

Island, December 26, 2008, letter ....................................................................... 1090 

Kelly, Neil F.X., Prosecutor, Criminal Division, Providence, Rhode Island, 

February 12, 2009, letter ..................................................................................... 1092 

Lapides, Sally E., President & CEO, Residential Properties LTD, Providence, 

Rhode Island, January 14, 2009, letter .............................................................. 1094 

Page

VII 

Magaziner, Suzanne McTigue, Bristol, Rhode Island, February 22, 2009, letter .......................................................................................................................... 1098 

Mandell, Mark S., Attorney at Law, Mandell, Schwartz & Boisclair, LTD, 

Providence, Rhode Island, January 28, 2009, letter ......................................... 1099 

Nolan, Annie M., President, Providence, Rhode Island, February 6, 2008, 

letter ...................................................................................................................... 1100 

Pine, Jeffrey B., Jeffrey B. Pine Law Office, Wakefield, Rhode Island, May 

7, 2010, letter ....................................................................................................... 1101 

Providence Journal, by John E. Mulligan, April 26, 2010, article ....................... 1103 

Ruggiero, Deborah, State Representative, District 74, Jamestown, Rhode Island, January 20, 2009, letter ............................................................................. 1108 

Sampson, David A., President and Chief Executive Officer, Property Casualty 

Insurers Association of America, Washington, DC, December 14, 2010, letter .......................................................................................................................... 1110 

Sullivan, Charles, Professor of English, Providence, Rhode Island, January 

27, 2009, letter ..................................................................................................... 1111 

Symonds, Susan, Interior Design, LL, Providence Rhode Island, February 

20, 2009, letter ..................................................................................................... 1112 

U.S. Chamber Institute for Legal Reform, U.S. Chamber of Commerce, American Insurance Association, American Tort Reform Association, National 

Association of Mutual Insurance Companies, Property and Casualty Insurers Association of America, May 11, 2010, joint letter ..................................... 1113 

Weisberger, Joseph R., Chief Justice (retired), Supreme Court of Rhode Island, Providence, Rhode Island, February 9, 2009 ............................................ 1115 

Whalen, David G., President and Chief Executive Officer, Lincoln, Rhode 

Island: 

January 22, 2009, letter ................................................................................... 1117 

May 6, 2009, letter ........................................................................................... 1119 

Wood, Cliff, Councilman, Providence, Rhode Island, April 1, 2009, letter ......... 1121 

ALPHABETICAL LIST OF NOMINEES 

Bredar, James K., Nominee to be U.S. District Judge for the District of 

Maryland ............................................................................................................... 584 

Chatigny, Robert N., Nominee to be U.S. Circuit Judge for the Second Circuit 153 

Gibney, John A., Nominee to be U.S. District Judge for the Eastern District 

of Virginia ............................................................................................................. 251 

Hollander, Ellen Lipton, Nominee to be U.S. District Judge for the District 

of Maryland .......................................................................................................... 644 

Lohier, Raymond J., Jr., Nominee to be U.S. Circuit Judge for the Second 

Circuit ................................................................................................................... 6 

Matheson, Scott M., Jr., Nominee to be U.S. Circuit Judge for the Tenth 

Circuit ................................................................................................................... 460 

McConnell, John J., Jr., Nominee to be U.S. District Judge for the District 

of Rhode Island ..................................................................................................... 529 

Nelson, Susan Richard, Nominee to be U.S. District Judge for the District 

of Minnesota ......................................................................................................... 708 

Stark, Leonard, Nominee to be U.S. District Judge for the District of Delaware ....................................................................................................................... 49 

(1) 

NOMINATIONS OF RAYMOND J. LOHIER, JR., 

NOMINEE TO BE U.S. CIRCUIT JUDGE FOR 

THE SECOND CIRCUIT; LEONARD STARK, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE DISTRICT OF DELAWARE 

THURSDAY, APRIL 22, 2010 

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

The Committee met, pursuant to notice, at 3 p.m., Room SD–226, 

Dirksen Senate Office Building, Hon. Edward E. Kaufman presiding. 

OPENING STATEMENT OF HON. EDWARD KAUFMAN, A U.S. 

SENATOR FROM THE STATE OF DELAWARE 

Senator KAUFMAN. I am pleased, and I am pleased to call this 

nomination’s hearing of the Senate Committee on Judiciary to 

order, and I want to thank Chairman Leahy for permitting me to 

Chair this hearing. 

I’d like to welcome both the nominees and their families and 

friends, the U.S. Senate and congratulate them, genuinely congratulate them on the nominations and to thank their family and 

friends for letting them accept the nominations. 

Today we welcome Raymond Lohier, Jr., nominated to be the 

Judge on the Circuit Court, Second Circuit. Mr. Lohier has 13 

years of experience as a Federal prosecutor and most recently 

served as a Deputy Chief and Chief of the Securities and Commodities Fraud Task Force in the U.S. Attorney’s Office for the Southern District of New York, a very quiet place to be. 

As you may know, I have been a strong champion here in the 

Senate of the Department of Justice efforts to root out the fraud 

that contributed to our financial crisis and bring those responsible 

to justice. Poor Mr. Lohier had to listen to me yesterday talk about 

that. I really appreciate your efforts. I really appreciate everything 

you’ve done and I really appreciate your accepting this public service. I know public service runs deeply to you and it is a wonderful 

thing you are doing. 

We’d also like to give a warm welcome, an especially warm welcome to Hon. Leonard Stark from my state of Delaware, nominated 

to be District Court Judge for the District of Delaware. Congratulations. 

Judge Stark currently serves the District as a Magistrate Judge. 

He was a previous Assistant U.S. Attorney, a very well-respected 

2 

Assistant U.S. Attorney in Delaware. Delaware is a small state, 

where everybody knows everybody. So when you’re respected in 

Delaware, you’re respected. 

I’m pleased to note that he’s an active member of the Delaware 

legal community and an active alumnus of the University of Delaware. He will be introduced by my Senior Senator, Tom Carper. 

Welcome, Senator Carper, and thank you for being here. I know 

you are scheduled at hearings, so we’ll get to you very soon. In fact, 

we’ll get you right now. 

PRESENATION OF LEONARD STARK, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE BY HON. 

THOMAS R. CARPER, A U.S. SENATOR FROM THE STATE OF 

DELAWARE 

Senator CARPER. Mr. Chairman, I think I’d like to start off my 

hearing by singing a verse of Oh, Our Delaware. 

Senator KAUFMAN. Proceed. 

Senator CARPER. I once had the misfortune of following Maya 

Angelou as a commencement speaker at the University of Delaware 

several years ago when I was Governor. She had written for the 

entire graduating class of the University that year, written a song, 

a poem and a song, and she sang it. 

After she finished that and left 25,000 people standing on their 

chairs cheering, I was introduced to follow her. 

Senator KAUFMAN. I am sure you did just fine. 

Senator CARPER. I said, after David Roselle, the President, introduced me, I said like Maya Angelou, I too will sing my remarks. 

While I am happy enough today to almost sing my remarks, I’ll 

spare all of you for that. I just want to say to Mr. Chairman and 

to Pat Leahy and Jeff Sessions, the Chairman and full Committee 

and the Ranking Republican and to your staffs how much we appreciate the expedited consideration of this nomination. 

I also want to say here as we stand next to, sit next to our other 

nominee, Raymond Lohier, that we wish you and your family well 

and congratulations on your nomination. 

Mr. Stark, Len Stark will I’m sure introduce his wife and three 

children, his mom and sister in a little bit when he speaks. Who 

knows, he may introduce the rest of the crowd that is here today 

as well. But I just want to say we’re glad that you all are here and 

have our Chief Judge from the Federal District Court in Delaware, 

Judge Sleet is here. 

A fellow who is sitting almost right behind me over my right 

shoulder is Jim Soles, legendary professor and Political Science 

Professor Emeritus at the University of Delaware who has 

mentored among others, Leonard Stark and me. That is just a very 

small sampling of folks that he has mentioned over the years. 

He probably single handedly has sent more people off into public 

service in the State of Delaware than anybody else. 

Senator KAUFMAN. One of my personal heroes. 

Senator CARPER. He is a personal hero to all of us from Delaware. It is great to be here with him on this special, special day. 

I just want to say how pleased and really honored I was to 

present to the President the names of three superbly qualified 

Delawareans for him to consider for this judicial appointment. Any 

3 

one of them would have been an excellent addition to the court and 

all of them uphold the high regard in which this court, our court, 

is held. 

The President has made I think a very wise choice in nominating 

our U.S. Magistrate, Leonard P. Stark, for a seat, bar seat on the 

U.S. District Court in Delaware. I will candor, he could not have 

made a bad choice from among the three names that we sent him. 

They are all just superb. 

Len Stark is a fellow University of Delaware graduate. So likely 

he is a proud Blue Hen Not just any kind of Blue Hen, but a Fighting Blue Hen. He couldn’t decide what to major in at the University of Delaware, whether to major in political science or economics, 

so he majored in both. He couldn’t decide whether as an undergraduate, just an undergraduate degree with a dual major and a 

masters degree, so he got both. Not everybody does that as an undergraduate to also complete your graduate work in history. 

I think early on the folks at U of D realized that this is an exceptional, exceptional person. He received as a student at the University of Delaware a full scholarship as a Eugene Dupont Memorial 

Distinguished Scholar. 

Following graduation, he was twice honored by fellow students 

and alumni by serving as commencement speaker. I don’t know 

about you, Len, but I love giving commencement addresses. My 

guess is if they had you back twice, you must have been pretty 

good. So for that, congratulations. 

Right after graduating from the University of Delaware, Leonard 

Stark was selected as a Rhodes Scholar. He studied at Oxford University. He has authored numerous academic and scholar publications including a book on British politics which he wrote in his 

spare time in between classes at Oxford. After Oxford, Leonard 

wanted to earn his law degree at Yale Law School where he served 

as Senior Editor of the Yale Law Journal. 

Somehow through all of this he managed to meet Beth. Jim Soles 

tells me, Dr. Soles tells me they met on their first day as freshmen 

at the University of Delaware. So actually after he kind of peaked 

on his first day, after that it was all downhill. But he still managed 

to accomplish quite a bit in what followed. 

He finished up with Yale Law School. I think the next thing for 

him to do was to take a judgeship with a very distinguished jurist 

in our part of the country, Walter Stapleton on the Third Circuit 

Court of Appeals, after which Len practiced as a corporate litigator 

at a little bitty law firm called Skadden, Arps. 

He began his career in public service as an Assistant U.S. Attorney for Delaware where from 2002 until 2007 he handled a wide 

variety of Federal, criminal and civil matters. Currently Leonard 

Stark serves as a U.S. District Court of Delaware in the service of 

the U.S. District Court of Delaware as a magistrate judge. In this 

position he already does a fair amount of the same work as a District Court Judge. Not all, but a good deal. 

His docket largely consists of civil cases that are referred to him 

by three active District Court judges. These referral cases, a great 

many of which are patent infringement actions, Judge Stark handles all types of pretrial matters, and in certain cases even presides 

4 

at trial just like we sometimes get to preside as Chairs of subcommittees in hearings just like this one. 

Finally, I’ll just say Len Stark is a humble and dedicated public 

servant. In fact, if I were half as smart and half as accomplished 

as he is, you would not want to be in the same room with me. This 

is a guy, to be this good and be this smart and to be this humble 

is a pretty remarkable combination. 

A dedicated public servant, obviously good family man. He is 

blessed with a wonderful wife and three terrific young children who 

I’ve been able to spend some time here today. He is joined today 

by his mom as well. I want to say to his mom, Linda, I think his 

sister Danielle is here, brother, father-in-law, James Brophee I believe also in attendance. 

Particularly to Linda, to Len’s mom, thank you so much for all 

that you and others in your family did to raise this young man. For 

him to turn out as well as he has, obviously somebody was involved 

early on and you have been involved all of his life, so great work. 

Maybe your sister Danielle gets an assist as well. 

I have already introduced Jim Soles. Let me just say he is one 

of the all-time greats. The wind beneath my wings and I know Len 

Stark’s and that of so many others who are here today. 

I would conclude by saying that I think in every facet of his life, 

Len Stark has performed with distinction earning the highest 

praise from his colleagues in many of the most prestigious awards 

ever given to a legal scholar and to a public servant. 

I think I can sum it all up by saying simply that Len Stark has 

the heart of a servant and his nomination, his position as magistrate on the U.S. District Court clearly provides him with the 

skills and preparation to be an outstanding District Court judge. 

His legal acumen, his tireless work ethic, his experience as a 

Federal magistrate judge, as an Assistant U.S. Attorney, as a litigator, has prepared him well for this seat on the U.S. District 

Court in Delaware should this Committee and the Senate see fit 

to confirm the nomination. 

In fact, it is hard for me to imagine really finding anyone in the 

country better prepared than he is to serve in this position. I urge 

my colleagues to move quickly on his confirmation and already you 

have moved very quickly. 

Again, to you my colleague and friend, Senator Kaufman, Mr. 

Chairman, it is great seeing you sitting there. To Senator Leahy, 

our Chair and to Jeff Sessions, our ranking Republican, all the 

staff who helped move this along, the seat has been vacant for a 

long time and we are anxious to fill it and we thank you for bringing us this much closer to that goal. Thank you so much. 

Senator KAUFMAN. Thank you for as you said, an excellent process and clearly coming up with an excellent result. I want to thank 

you. I know you have to leave to go to committee, but I appreciate 

it. 

Senator CARPER. I’m going to go preside over a hearing of my 

own. 

Senator KAUFMAN. There you go. 

Senator CARPER. I know I leave this nomination in very good 

hands. 

Senator KAUFMAN. Thank you. 

5 

Senator CARPER. Thank you. 

PRESENTATION OF RAYMOND J. LOHIER JR., NOMINEE TO BE 

U.S. CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY EDWARD 

E. KAUFMAN, A U.S. SENATOR FROM THE STATE OF DELAWARE FOR SENATOR SCHUMER 

Senator KAUFMAN. Next I have the pleasure of introducing Mr. 

Lohier. Senator Schumer told me that unfortunately he couldn’t be 

here, which is the Senate is crazy now, but he sends his regret. 

He has a statement here he wants to put in the record. Chairman Leahy has a statement he wants to put in the record on both 

the nominees. If there is no objection, I will put them in the record. 

Hearing none. 

[The prepared statement of Senator Schumer and Chairman 

Leahy appears as a submisssion for the record.] 

Mr. Lohier has had a distinguished career as a Federal prosecutor. He served as a trial attorney in U.S. Department of Justice 

Civil Rights Division and since 2000 has been an Assistant U.S. Attorney in the Office of the U.S. Attorney for the Southern District 

of New York where he is currently Special Counsel for the U.S. Attorney. 

In the Southern District of New York, he has held multiple leadership positions. As Deputy Chief and Chief of the Narcotics Unit, 

Mr. Lohier supervised the investigation and prosecution of hundreds of cases involving large scale drug distribution networks. 

He has also served as Deputy Chief and Chief of the Southern 

District of New York Securities and Commodities Fraud Task 

Force. In these roles, he supervised or co-supervised all of the District’s securities fraud trials. 

Most notably, Mr. Lohier oversaw the investigation and prosecution of Bernie Madoff, one of the biggest fraud cases in the country’s history. His work led to Madoff’s conviction, a sentence of 150 

years in prison and a forfeiture of more than $70 billion. 

Mr. Lohier also participated in the investigation and prosecution 

of New York Attorney Marc Dreier for a $750 million Ponzi scheme 

resulting in a 20-year prison sentence and forfeiture of more than 

$740 million. 

Mr. Lohier has received several honors and awards for his outstanding work including the Attorney General’s John Marshall 

Award for Outstanding Legal Achievement and multiple Department of Justice Special Achievement awards. 

Mr. Lohier, your credentials are truly impressive and we are 

deeply grateful for your public service. 

With the agreement of the Ranking Member and in the interest 

of efficiency, we are going to have both nominees on the same 

panel. So if you’d come forward. 

I’d like you both to please stand and raise your right hands and 

repeat after me. 

Do you affirm the testimony you are about to give before the 

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

truth so help you God? 

Mr. LOHIER. I do. 

Judge STARK. I do. 

6 

Senator KAUFMAN. Thank you. Let the record show the nominees 

have taken the oath. 

Mr. Lohier, I welcome you and acknowledge any family members 

or friends you have here today and then give an opening statement. 

STATEMENT OF RAYMOND LOHIER, TO BE U.S. CIRCUIT 

JUDGE FOR THE SECOND CIRCUIT 

Mr. LOHIER. Thank you, Senator. I don’t have a specific opening 

statement, but I would like to thank the Committee and you, Senator, for presiding over this hearing promptly. I would also like to 

thank Senator Schumer for his unstinting support throughout this 

process as well as Senator Gillibrand. 

I’d like to thank the many members of the Department of Justice, both my current colleagues and former colleagues who have 

expressed their support and good wishes. Of course I’d like to 

thank the President for nominating me. It is a great privilege and 

a great honor. 

I would be more than happy to answer the Committee’s questions, but before that if I may, I would like to introduce and take 

advantage of your kind offer to introduce members of my family. 

Senator KAUFMAN. Great. 

Mr. LOHIER. I have here with me my lovely wife, Donna, who I 

was fortunate enough to meet in my first year of law school and 

everything went well since then. 

I have also with me my two boys. William, who is eight, and 

John, who is six. Senator, I don’t want you to be alarmed if you 

see them make a run for the door at any given time. 

Senator KAUFMAN. I will not be alarmed. 

Mr. LOHIER. I also have with me my mother, Flocie Lohier, who 

as much as anyone else, taught me the value of hard work and integrity. I thank her for being here. 

My father, who passed away approximately two and a half years 

ago I’m sure is looking over me right now and is here in spirit. 

I’d also like to acknowledge the fact that both my father-in-law 

and my mother-in-law, C.S. Lee and Nancy Lee, drove all the way 

up here from Florida to be here, and I thank them very much for 

that. 

I have a very close family friend, Pat Taboe, who is also here 

who came last night and I appreciate her presence. I’d especially 

like to acknowledge the presence of someone who has been my 

mentor and whom I had the privilege of serving as a law clerk, and 

that’s Judge Robert P. Patterson, Jr., of the United States District 

Court for the Southern District of New York and I truly have valued his mentorship over the course of the years that I have known 

him and since I have clerked for him. 

In addition, Senator, I have got several of my wife’s uncles and 

an aunt, Mee-Sang Skrajnowski and Wlodek Skrajnowski and K.S. 

Lee as well as many, many friends from law school and college and 

high school. I thank them all for being here. I thank you again. 

Senator KAUFMAN. And I thank them for letting you do this, taking on this responsibility. I know it’s a hardship on family and 

friends, but I think it’s so incredibly worthwhile and I appreciate 

what you’re doing. 

7 

Judge Stark, would you like to make an opening statement and 

point out some of your family and friends? 

[The biographical Information of Raymond Lohier follows.] 

8 


66693.001
9 


66693.002
10 


66693.003
11 


66693.004
12 


66693.005
13 


66693.006
14 


66693.007
15 


66693.008
16 


66693.009
17 


66693.010
18 


66693.011
19 


66693.012
20 


66693.013
21 


66693.014
22 


66693.015
23 


66693.016
24 


66693.017
25 


66693.018
26 


66693.019
27 


66693.020
28 


66693.021
29 


66693.022
30 


66693.023
31 


66693.024
32 


66693.025
33 


66693.026
34 


66693.027
35 


66693.028
36 


66693.029
37 


66693.030
38 


66693.031
39 


66693.032
40 


66693.033
41 


66693.034
42 


66693.035
43 


66693.036
44 


66693.037
45 


66693.038
46 


66693.039
47 


66693.040
48 


66693.041
49 

STATEMENT OF LEONARD STARK, TO BE U.S. DISTRICT JUDGE 

FOR THE DISTRICT OF DELAWARE 

Judge STARK. Yes. Thank you very much. Thank you, Mr. Chairman, and thank you to the Committee for having this hearing. I 

too want to thank Senator Carper for his very kind and generous 

introduction and for taking time out of his schedule to be here to 

do that. 

I of course am very grateful to the President as well for this 

great honor of his nomination of me. I don’t have an opening statement, but I would like to take the chance to introduce some of the 

many family and friends that I have with me starting first with my 

wife, Beth Stark. 

We have our three children here with us. I think all three are 

still in the room. 

Senator KAUFMAN. Yes, they are. 

Judge STARK. OK. That may not last. My son, my oldest son, 

Brennan, is 11, my daughter Lucy is eight, and my son who I am 

most concerned with at the moment, James, is 3 years old. 

I am very pleased also that my mother, Linda Stark, is here. She 

is here from St. Louis, and my sister Danielle Gordman, came in 

from Omaha, Nebraska to be here as well. 

My father-in-law had a shorter trip, James Brophy, he is here 

from Maryland. There are family members and friends who are 

watching on the webcast as well. I particularly would like to note 

my mother-in-law Karen Brophy and my two brothers-in-law, Neal 

Brophy and Jeff Gordman. 

I have several friends here in the audience including friend and 

colleague, our Chief Judge of the District Court, Greg Sleet and I 

also want to note Dr. James Soles whom Senator Carper mentioned, but I am truly blessed to have Dr. Soles as a friend and a 

mentor and it is certainly, as you know, no exaggeration to say 

that Dr. Soles at this point has been an inspiration for several generations of Delaware judges, lawyers and public servants and I’m 

very honored to be among them. 

Finally I do want to mention my father who unfortunately and 

sadly is not here. I too lost my father. For me it was in 2003. My 

dad was an attorney, of course the very first attorney that I knew. 

I know that he watches over me every day including today and I 

know that today he is especially proud and humbled, as am I. I’d 

be happy to answer any questions the Committee may have. 

[The biographical information of Leonard P. Stark follows.] 

50 


66693.042
51 


66693.043
52 


66693.044
53 


66693.045
54 


66693.046
55 


66693.047
56 


66693.048
57 


66693.049
58 


66693.050
59 


66693.051
60 


66693.052
61 


66693.053
62 


66693.054
63 


66693.055
64 


66693.056
65 


66693.057
66 


66693.058
67 


66693.059
68 


66693.060
69 


66693.061
70 


66693.062
71 


66693.063
72 


66693.064
73 


66693.065
74 


66693.066
75 


66693.067
76 


66693.068
77 


66693.069
78 


66693.070
79 


66693.071
80 


66693.072
81 


66693.073
82 


66693.074
83 


66693.075
84 


66693.076
85 


66693.077
86 


66693.078
87 


66693.079
88 


66693.080
89 


66693.081
90 


66693.082
91 


66693.083
92 


66693.084
93 


66693.085
94 


66693.086
95 


66693.087
96 

Senator KAUFMAN. And again, thank your family for allowing 

you to embark on this adventure. I tell you, you are honored by 

having Judge Sleet and Professor Soles here with you two folks 

who are among the most respected in Delaware. So it’s an honor 

for you to have them here and it’s an honor for us that they are 

here. 

What I’d like to do is just ask some questions. Senator Sessions 

is on his way, he should be here in a few minutes, but I’m just 

going to start and proceed. What I’d like to do is just ask a series 

of questions to both of you. We’ll start with Mr. Lohier. 

Could you briefly describe your judicial philosophy? 

Mr. LOHIER. Yes, Senator. If I am fortunate enough to be confirmed as a Circuit Court Judge, my judicial philosophy would be 

very straightforward. That is that I would apply the law either Supreme Court precedent, binding Supreme Court precedent or binding Second Circuit Court precedent or the plain text of a statute. 

I would apply that law to the facts in the record of the case and 

I would do so objectively, impartially and with an open mind. 

Senator KAUFMAN. Thank you. Judge Stark. 

Judge STARK. Yes, Senator. As a magistrate judge now and if fortunate enough to be confirmed as a District Court judge, my approach is to carefully apply the precedent of the Supreme Court 

and the Court of Appeals to the facts of the case as they appear 

before me. 

Senator KAUFMAN. Mr. Lohier, you have spent 13 years as a Federal prosecutor. Can you kind of lay out what it is you learned in 

that that would be helpful to be on the bench? 

Mr. LOHIER. I’ve learned a tremendous amount, Senator. First 

and foremost, as a prosecutor in the Southern District of New 

York, I had the great privilege of writing briefs and submitting 

briefs, as well as arguing orally before the Second Circuit Court of 

Appeals which is always a formidable experience. 

In addition, I learned what it takes to create a record below the 

District level, what goes into a record and what the potential pitfalls and appealable issues below may be. 

In addition to that, as a supervisor I was blessed. I was blessed 

to supervise some of the most outstanding, in my view, prosecutors 

in the country on very difficult cases, some of which you mentioned. 

In the course of my supervision of those fine, fine, prosecutors, 

I had the opportunity to review decisions, to grapple with incredibly complex legal scenarios and legal issues, as well as a very wide 

array of facts, very complex facts both on the financial fraud front 

as well as the narcotics front. 

As a result of that, I have had a wide range of experience that 

I think will serve me well. 

Senator KAUFMAN. Thank you. Judge Stark, you worked as a judicial law clerk, private practice and a prosecutor. What did you 

learn from that that you think will help you be on the District 

Court? 

Judge STARK. Thank you, Senator. I have had the opportunity to 

work with a number of truly phenomenal attorneys, both as a litigator in private practice and as an AUSA. I have had the opportunity to try cases, civil and criminal, in both state and Federal 

97 

court and I think through all that experience I have learned just 

both how difficult but how important it is to put together a case, 

to put together a record to vigorously represent your client’s interest and to pursue justice. 

I have found all of that to be helpful as a magistrate judge and 

I’m sure I would continue to find that helpful as well if I’m fortunate enough to be confirmed. 

Senator KAUFMAN. Both of you have been prosecutors. Can you 

just spend a few minutes and talk about what you’ve learned as 

prosecutors and what you think of the effect of deterrents for white 

collar crime? 

Mr. Lohier. 

Mr. LOHIER. With respect to white collar crime, Senator, and I 

know that you have worked incredibly hard in this area. I believe 

that the fight against financial fraud and the fight against financial crimes is a critical fight that our Nation faces. 

Certainly as a judge, I will abide by the Supreme Court precedent and abide by and comply with any Second Circuit Court precedent in the area of financial crimes, but it means a lot to me and 

I have learned how critical that fight is to the integrity of our markets. 

Senator KAUFMAN. Judge Stark. 

Judge STARK. And I would certainly echo what Mr. Lohier has 

said. From my experience as a prosecutor, I believe prosecuting 

white collar offenses is just as important as prosecuting other types 

of offenses. There certainly is a deterrent effect from prosecutions, 

and that’s very important. 

Senator KAUFMAN. And how much of it do you think is stiffer 

sentences or surety of longer prison sentences? I mean, is there any 

one thing that you think really is more helpful than another as a 

deterrent? 

Mr. LOHIER. I think stiffer sentences do have a deterrent effect, 

Senator. I also think that the regulation in place that is in place 

to make sure that the defendants know what the line is are critical, 

and those bright line rules that we have in place are also critical 

to combat financial crime. 

Senator KAUFMAN. Great. I want to thank you both for this hearing. Judge Sessions is held up in his meeting, so what I would like 

to do is thank you both for being here today, congratulate you on 

your nominations. I think it is easy to see that you are both truly 

qualified and we are grateful, as I said before, grateful to you but 

even more grateful to your spouses and friends and family that you 

answered the Federal services call and are willing to serve in the 

positions that you have. 

I wish you the very best of luck. I have no doubt you’re going to 

have wonderful careers and I’m looking forward to seeing you confirmed out of the Senate and onto your posts. So with that, I’ll adjourn. 

I’d like to keep the record open in case anyone has anything to 

add until noon tomorrow. We stand in recess. 

[Whereupon, at 3:30 p.m., the Committee was adjourned.] 

[Questions and answers and submissions follow. 

98 


66693.088
99 


66693.089
100 


66693.090
101 


66693.091
102 


66693.092
103 


66693.093
104 


66693.094
105 


66693.095
106 


66693.096
107 


66693.097
108 


66693.098
109 


66693.099
110 


66693.100
111 


66693.101
112 


66693.102
113 


66693.103
114 


66693.104
115 


66693.105
116 


66693.106
117 


66693.107
(119) 

NOMINATIONS OF ROBERT N. CHATIGNY, 

NOMINEE TO BE U.S. CIRCUIT JUDGE FOR 

THE SECOND CIRCUIT; AND JOHN A. 

GIBNEY, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

VIRGINIA 

WEDNESDAY, APRIL 28, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:35 p.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Amy Klobuchar presiding. 

Present: Senators Sessions, Grassley, Kyl, and Coburn. 

OPENING STATEMENT OF HON. AMY KLOBUCHAR A U.S. 

SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. All right. I’m pleased to call this nominations hearing of the Senate Judiciary Committee to order. 

I want to give a warm welcome to both of our nominees. I can 

tell you, the last nomination hearing that I chaired—I think Senator Sessions was there—was in the middle of the snow blizzard 

and our nominees were stranded in a hotel room with their babies 

for 6 days, so they were really happy to come out and be here. 

So, it is great to be here with our judicial nominees, Robert 

Chatigny, as well as the second one, who is Mr. Gibney. So, thank 

you very much, both of you, for being here. We have many Senators, seven Senators, here for this great event. So we’ll start here 

with Senator Dodd, who was here first. I know that he is going to 

speak and introduce Robert Chatigny, as is Senator Lieberman. 

Senator Dodd. 

PRESENTATION OF ROBERT N. CHATIGNY, NOMINEE TO BE 

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

CHRISTOPHER J. DODD, A U.S. SENATOR FROM THE STATE 

OF CONNECTICUT 

Senator DODD. Thank you very much, Madam Chairman, Senator Sessions, Senator Grassley. Of course, I am delighted to be 

talking about anything but financial reform at this point. 

[Laughter.] 

Senator DODD. So I may stay here and filibuster the rest of the 

afternoon on this matter so I don’t have to go back to these other 

issues. But I’m delighted to be here this afternoon and to introduce, 

120 

along with obviously Joe, my great pal and friend here, an individual that I not only respect immensely, but is my great, great 

friend for many, many years, and his family as well. 

He’s here, Madam Chairman, with his wife Stacy in the back. 

He’ll want to introduce these people himself, probably. Stacy and 

two sons, John and Peter, who are here, and sister-in-law Sugar, 

his mother-in-law Elaine is back there as well, sister-in-law Barb, 

brother Vic, are all the family kind of gathered around as well. So 

we’re delighted to recommend or to introduce them as well, so I 

thank you for having this hearing. 

Judge Chatigny’s outstanding resume, Madam Chairman, I think 

makes it clear that he’s tremendously well-qualified to serve on the 

Second Circuit of the Court of Appeals. I want to congratulate 

President Obama for this excellent nomination. 

In 1994, President Clinton nominated Judge Chatigny, Bob, to 

serve on the District Court and Judge Chatigny was confirmed 

unanimously by the U.S. Senate in 1994. For nearly 16 years he 

has been a Federal judge in Connecticut, serving as chief judge for 

the District of Connecticut from 2003 to 2009. In addition to ruling 

on a wide variety of cases, Judge Chatigny has earned a reputation 

of integrity, intelligence, and strict adherence to the rule of law. 

So I am pleased that Judge Chatigny has received the support 

of numerous former Federal prosecutors in Connecticut who understand the importance of upholding the rule of law and vouch for his 

character and his qualifications. 

Allow me to quote from a letter that I think was sent to the Committee, Madam Chairman, from three former U.S. Attorneys, each 

of whom happened to be appointed by Republican Presidents at the 

time who served well and with great distinction in our State. In 

their letter to you and to the members of the Committee, they said 

this about Judge Bob Chatigny: ‘‘We believe that he is a fair-minded and impartial judge who has the appropriate fitness and temperament for the appellate court.’’ 

In addition, Madam Chairman, the Committee has also received 

a letter signed by nearly 20 Assistant U.S. Attorneys currently 

practicing in Connecticut in which they express their confidence as 

well that Judge Bob Chatigny would be ‘‘unbiased, compassionate, 

and temperate’’. Clearly, Madam Chairman, Bob has the confidence 

and the support of the Connecticut legal and law enforcement communities in our State. 

Judge Chatigny’s legal experience prior to his appointment reveals a very rich understanding of, and a very deep, deep commitment to, the American legal system. After graduating from Brown 

University and Georgetown University Law Center, he served as 

clerk to three Federal judges, including Judges John Newman and 

Jose Cabranas. Prior to his service on the court, Bob built an excellent reputation in private practice, first as an associate at Williams 

& Connolly here in Washington, then returning to private practice 

in Hartford, Connecticut for a decade. 

In addition, Judge Chatigny has devoted substantial time and effort to improving the legal profession. When the Governor of Connecticut sought experienced and knowledgeable public servants to 

help make up better public policy, Judge Chatigny was the easy 

121 

choice, serving on both the State Judicial Selection Commission 

and the State Commission on Prison and Jail Overcrowding. 

In addition, he has served various roles with the Connecticut Bar 

Association, as well as being an advisor to the congressionally created Federal Court’s Study Committee. There can be very little 

doubt—no doubt whatsoever then—that this man’s talents, his 

temperament are tremendous well-suited for service on the Second 

Circuit Court of Appeals. 

On a personal note, Madam Chairman, I have had the privilege 

of getting to know Bob for many, many years. His wife Stacy and 

her parents I knew even before I knew Bob and we go back a long 

time. They’re very, very close, wonderful friends of my parents as 

well. As a friend of Bob’s and someone who recognizes his tremendous accomplishments, I am grateful that he has agreed to continue his service to our country by allowing his name to be put forward for this very, very important position. As a Senator, I am 

proud to recommend to you one of the State’s finest jurists, Bob 

Chatigny, as the next member of the U.S. Court of Appeals for the 

Second Circuit. 

I would say on a side note, not part of these remarks, in terms 

of a full disclosure, that 11 years ago this June, Bob also married 

me and my wife Jackie. Jackie is not here to testify, I believe, on 

his behalf after 11 years, but I believe she would as well. So I know 

that’s not part of the remarks and no reason for his name to be 

forward for you to consider voting for him, but I would be remiss 

if I didn’t thank him publicly as well for performing those duties 

on that day. 

Senator SESSIONS. Well, that was a good act. 

Senator DODD. Yes, it was. 

[Laughter.] 

Senator DODD. He was impartial, too. Showed good temperament, Jeff. 

Senator KLOBUCHAR. And thank you, Senator Dodd, for revealing 

that conflict of interest. 

Senator DODD. That is a conflict. 

[Laughter.] 

Senator KLOBUCHAR. That was very, very smart. 

Judge, I see you also have half of the independent caucus of the 

U.S. Senate here in your other Connecticut Senator. 

Senator Lieberman, welcome. 

PRESENTATION OF ROBERT N. CHATIGNY, NOMINEE TO BE 

U.S. CIRCUIT JUDGE FOR THE SECOND CIRCUIT BY HON. JOSEPH LIEBERMAN, A U.S. SENATOR FROM THE STATE OF 

CONNECTICUT 

Senator LIEBERMAN. Thanks, Madam Chair, Senator Sessions, 

members of the Committee. I thank you for giving me this opportunity to join my dear colleague and friend, Senator Dodd, in support of Judge Robert Chatigny’s nomination to serve on the U.S. 

Court of Appeals for the Second Circuit. 

I am proud to be here to support the nomination. I’m delighted 

to see his family. I want to mention, his late father-in-law, Peter 

Savin, who was a great friend to Senator Dodd and me, a wonderful citizen in Connecticut, very charitable, just a lot of fun to be 

122 

with, passed away some years ago so he’s not here in person. But 

I actually felt that he called me when I was in a conference committee a while ago and said, now, get up and get over to give your 

statement for Bob. That’s important. 

Senator Dodd and I, together, recommended Judge Chatigny to 

President Clinton in 1994 for a vacancy that then existed on the 

District Court in Connecticut, and he was, I am happy to say, nominated and confirmed by the Senate unanimously. In fact, from 

2003 to 2009, Judge Chatigny was the chief judge for the District 

of Connecticut. 

Throughout his tenure on the court he has demonstrated a surpassing commitment to thoughtful, hardworking rulings upholding 

the rule of law. He’s shown real impressive legal knowledge and capabilities. I hear from both those who have appeared before him, 

but also from his colleagues, that he has that magical, mysterious 

ingredient known as a fine judicial temperament and has worked 

very effectively with his colleagues on the bench to fashion opinions, to keep the court moving in exactly the direction it should be 

moving. 

I’m not going to repeat all the facts of his personal and legal career which Senator Dodd did, except to say that I think that in his 

years on the District bench he has clearly earned the respect of his 

peers on the bench and in the Connecticut bar. He’s rendered admirable service for the past 15 years as a district judge, which makes 

him eminently capable to sit on this very important Circuit Court. 

It is why I am so grateful that President Obama responded favorably to our recommendation and that of many others that he 

give Bob Chatigny the chance to serve on the Second Circuit Court, 

and why I feel that he is so clearly ready to assume this responsibility. So I thank you and the members of the Committee for proceeding forward with the confirmation process here and I look forward to working with you and the rest of our Senate colleagues to 

see to it that Judge Chatigny is confirmed to serve on the Second 

Circuit Court of Appeals. 

Thank you very much. 

Senator KLOBUCHAR. Well, thank you very much, Senators Dodd 

and Lieberman. Of course you are welcome to stay to hear your colleagues, but if you have other things to do, we understand that as 

well and we really thank you for coming to our Committee today. 

Thank you. 

All right. Senator Webb, thank you for being here. 

PRESENTATION OF JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA BY 

HON. JIM WEBB, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WEBB. Thank you, Madam Chairman, Senator Sessions, 

Senator Grassley. I am pleased to join my colleague from Virginia, 

Senator Mark Warner, for the purpose of introducing to this Committee an outstanding attorney from Virginia, John Gibney, whom 

the President has nominated for a seat on the U.S. District Court 

for the Eastern District of Virginia. 

I have a longer statement. I would ask it be submitted for the 

record and summarize, with your consent. 

123 

First of all, I have to say that when I found out that Judge 

Chatigny was an alumnus of Georgetown Law Center the same era 

that I was, it brought back a saying that they used to have at 

Georgetown. That was that the A students became professors and 

judges, the B students practiced law, the C students went into 

business, and the D students became politicians. 

[Laughter.] 

Senator WEBB. So here we both are, Judge. 

I’d like to recognize Mr. Gibney’s son, John Gibney, III, who 

joined us today, along with Mr. Gibney’s future daughter-in-law, 

Jesse Telhorster, both of whom are with us and are sitting right 

behind me today. 

I believe President Obama has made an extraordinary choice in 

nominating John Gibney. As I have met with candidates for Federal judicial vacancies in Virginia, an exhaustive process that Senator John Warner and I began and Senator Mark Warner and I 

have continued, I continue to be impressed by the caliber of the 

candidates that the Virginia bar has been putting forward, and the 

pool from which Senator Warner and I had to choose from for this 

position was extraordinary. It included judges, legal scholars, and 

skilled trial attorneys. 

From this very competitive field, Senator Warner and I recommended Mr. Gibney because of the overwhelming endorsement 

that he received from his peers across the State, and also because 

of his professional dedication. We recommended him to the President for nomination in June of last year. 

Mr. Gibney is not only known as an excellent trial attorney who 

has tried hundreds of cases, but also is a stand-out example of professionalism in the practice of law. He has been repeatedly asked 

to speak at the Virginia State Bar Young Lawyers Conference Professionalism Program for New Lawyers. 

He has devoted countless hours toward teaching ethics, continuing legal education classes to his fellow members of the bar. He 

has devoted his time to serving his community and helping fellow 

members of the bar throughout his career. I am proud to note that 

Mr. Gibney is a product of Virginia’s educational institutions. He 

is a 1973 graduate of the College of William and Mary, and a 1976 

graduate of the UVA Law School. 

His legal career has included time spent as an Assistant Attorney General of Virginia, as a law clerk to Hon. Harry L. Carrico, 

former chief justice and current senior justice of the Supreme 

Court of Virginia. So I am pleased to give my strongest endorsement, and I would now invite my colleague, Senator Mark Warner, 

to offer some comments. 

Senator KLOBUCHAR. Thank you very much, Senator Webb. Your 

full statement will be put on the record. 

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

Senator KLOBUCHAR. Senator Warner, welcome to our Committee. 

124 

PRESENTATION OF JOHN A. GIBNEY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA BY 

HON. MARK WARNER, A U.S. SENATOR FROM THE STATE OF 

VIRGINIA 

Senator WARNER. Thank you, Madam Chair. Thank you, Senator 

Klobuchar, Senator Sessions, Senator Grassley, Senator Coburn, 

for this opportunity. 

Again, I won’t reiterate all of the comments that my colleague 

Senator Webb made. I would like to thank the Committee for acting quickly on this nomination. We nominated John Gibney last 

June. The President actually, I guess, formally nominated him just 

earlier this month. The fact that this hearing is already being held, 

we are grateful for the speedy, expeditious manner in which you 

are addressing this issue. 

I also was going to point out the fact that John Gibney went to 

both William and Mary and UVA. Judge Carrico, the long-term 

chief of our State Supreme Court, now senior status, is somebody 

who is extraordinarily well-regarded, and the fact that John Gibney 

clerked for Judge Carrico went a long way in my mind. 

As Senator Webb indicated, John Gibney was highly regarded or 

highly qualified by the State bar, and John has been active in a 

whole series of legal activities around the Commonwealth and 

around Richmond. 

But I want to follow up as well, kind of off my comments, on why 

I think we made this choice. We’ve been blessed with extraordinary 

candidates in Virginia who Senator Webb and I had to work 

through, and I thank my senior Senator again for the process that 

he and John Warner established as we screen and try to make sure 

that we get all the input needed to make these kind of recommendations to the President. 

But in John Gibney we found somebody who, I think—I’m not 

sure how much of his life story he will relay to the Committee, but 

it’s an interesting life story. It’s one that’s had some success, it’s 

had some failure, it’s had some challenges. 

In his law practice, I think he has represented a variety of clients and a variety of intersections in the legal system that will 

bring a perspective, should you decide to move forward and if the 

Senate, as I hope, will confirm him, that sometimes could be absent 

from the bench. 

I think sometimes it’s great, as I think Senator Webb said, that 

we get the Law Review candidates, and as at least a lawyer by 

training, never by practice, I think it’s important that we get the 

legal scholars represented on the bench. I also think it is important 

that we get people who have really practiced law day in and day 

out, seeing the challenges that everyday Americans have to confront as they face the sometimes complex and challenging judicial 

system we have in this country. In John Gibney, we’ve got somebody who I think is a lawyer’s lawyer, somebody who understands 

those challenges, and someone I will echo with my colleague Senator Webb, I give my full-fledged endorsement to. I appreciate the 

Committee’s actions on his nomination today and I look forward to 

voting for his confirmation on the floor of the Senate. 

So, thank you, Madam Chairman. 

125 

Senator KLOBUCHAR. Thank you very much. Thank you, both of 

you, for being here. Have a good day. We’re going to have a lot of 

fun here, I can tell you that much. 

Senator Sessions is going to give his opening statement. Before 

I do that, I wanted to put the opening statement of Chairman 

Leahy on the record in support of both of our nominees, Judge 

Chatigny as well as Mr. Gibney. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator KLOBUCHAR. Senator Sessions. 

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

THE STATE OF ALABAMA 

Senator SESIONS. Thank you, Madam Chairman. I look forward 

to the hearing today. The nominees have all been looked at through 

our staff and through the President and his staff, and undergone 

background evaluations by the FBI, and the American Bar Association, and anyone else who wants to comment on their nomination. 

So even though the hearings are important, also much of this is in 

the record and we have the ability to review it. 

Looking at the nomination of Judge Chatigny, I think we’ll ask 

a number of questions today about that. He presided over several 

last-minute motions to stay the execution of perhaps Connecticut’s 

most notorious serial killer, Michael Ross, who had been convicted 

and sentenced to death nearly 20 years earlier for kidnapping, 

rape, and murder of six women, and he confessed to the murder of 

eight. 

After multiple appeals, State court proceedings, and in Federal 

court, the defendant explicitly instructed his attorney not to appeal 

anymore. From there, we had a number of actions by the judge to 

really frustrate what appeared to be the lawful decision of the 

State of Connecticut, and I have concerns about it. We’ve talked 

earlier, and I appreciate that. 

Judge, I enjoyed our opportunity to meet. I’m not in any way 

questioning your integrity and intentions. I appreciate the strong 

support that Senator Dodd has given to your nomination. I also got 

a call from former Attorney General Mukasey, who believes in you 

and supports your confirmation. 

But seven Assistant State’s Attorneys General have filed an ethics complaint concerning the conduct in that case, and we have a 

letter from the attorney, the prosecutor who handled the habeas 

case in your court who opposes your nomination. So it is a matter 

that I take very seriously and I believe judges have roles. Federal 

judges, in review of State court convictions that have been confirmed by the State Supreme Court, have limited responsibilities to 

interfere in the execution of that and we’ll discuss those issues as 

we go forward. Thank you. 

Senator KLOBUCHAR. All right. I’m going to ask the first questions, then we’ll go down the row here. I think I’ll start with a general question about how you would characterize your own judicial 

philosophy and what makes you want to be a judge. 

Judge CHATIGNY. I appreciate the Committee’s interest in learning how I approach cases and I do my best to decide each case on 

its merits, taking each case one at a time, examining the facts with 

126 

care, applying the relevant precedent, and avoiding injecting my 

own personal policy preferences into the matter. 

I’ve tried to do that throughout my 15 years as a district judge, 

and if I am fortunate enough to be confirmed, I would do that as 

a judge of the Court of Appeals. 

Senator KLOBUCHAR. Senator Dodd and Senator Lieberman mentioned your family, but there may be relatives they didn’t mention. 

So if you want to introduce them to us, we’d love to meet them. 

Judge CHATIGNY. Actually, Senator Dodd, as usual, was very 

good to introduce everybody, I believe. My wife Stacy is with us, 

my sons Peter and John are seated here in the front row, and my 

good friend Peter Kahn from the law firm of Williams & Connolly. 

Behind them, my brother Vic and his wife Barb, and my motherin-law, Elaine Savin, and my sister-in-law Sugar. We appreciate 

very much this opportunity to appear before the Committee today. 

Senator KLOBUCHAR. Well, thank you. 

You talked about your judicial philosophy. I appreciated that answer. Has your being a judge for the last 16 years changed at all 

your view of what a judge does? 

Judge CHATIGNY. It has impressed me with the importance of 

treating each case with care, extending to all people who come before the court an opportunity to be fully heard and it has left me 

with a strong conviction about the importance of the facts of each 

case and the need to examine the facts of each case with particular 

care. 

Senator KLOBUCHAR. Thank you. I’d like to explore that more, 

but I was listening to Senator Sessions’ opening statement and I 

know he wants to focus on one of your cases. I thought I would give 

you an opportunity, just right here, to talk about that. I know this 

is the Michael Ross case involving horrific murder. I guess my first 

question as a threshold matter would be: do you have any problems 

applying the death penalty or upholding capital sentences? 

Judge CHATIGNY. None at all. 

Senator KLOBUCHAR. And the death penalty is, of course, the ultimate punishment. We have to be very careful when it’s applied. 

For example, individuals have to be competent to stand trial. According to a 2002 Supreme Court ruling—that would be Atkins v. 

Virginia—executing mentally incompetent individuals is a violation 

of the Eighth Amendment ban on cruel and unusual punishment. 

And so I know from cases that I read throughout my life and work 

as a prosecutor, whether it’s a death penalty or a non-death penalty case, that judges are very conscious that these procedures be 

followed with any case. Is that correct? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. And in this case, Michael Ross, the defendant, indicated that he wanted to waive further appeals and be put 

to death. So when you hear that and you know about the murder, 

if you’re a guy on the street you think, OK, it’s over. Could you explain to me what made you question whether he was legally competent to waive his appeal and just make that decision on his own? 

Judge CHATIGNY. Yes. Thank you for the question. I understand 

and appreciate why people are concerned about what happened in 

this difficult case. The litigation came before me on a Friday afternoon and I was asked to conduct an emergency hearing on the 

127 

question whether this defendant was competent to waive legal 

challenges to the death sentence. 

I had no reason to question the good faith of the people who 

came before me. They did not appear to be death penalty abolitionists, interested in using the court to pursue their own agenda. I 

thought that they were urgently concerned about the question of 

his competence. 

I looked at the case over the weekend and presided at an emergency hearing on Monday. Based on my review of the facts and the 

law, I concluded that a stay should enter so that a hearing could 

be conducted on the issue of his competence to waive challenges to 

his death sentence. It was a very difficult week for all concerned. 

The Court of Appeals upheld the stay, but a closely divided Supreme Court vacated the stay. 

Senator KLOBUCHAR. And there was a 6-day evidentiary hearing, 

is that right? 

Judge CHATIGNY. As a result of the events that occurred during 

that week, the defendant’s own counsel moved in the State court 

for a stay so that a full hearing could be held on the issue. A hearing was conducted. A determination was made that the defendant 

was competent, and he was executed. 

Senator KLOBUCHAR. And do you have any issues with the Superior Court’s determination? 

Judge CHATIGNY. No. 

Senator KLOBUCHAR. So I just want to be clear before we embark 

on this journey to talk to you more about this case, that the whole 

episode here wasn’t about the death penalty. You were ready to actually give that out as a sentence. The issue to you was whether 

or not the defendant was competent to make certain decisions. 

Judge CHATIGNY. That’s correct. 

Senator KLOBUCHAR. And after this Ross episode was over, there 

were complaints filed against you alleging judicial misconduct for 

how you handled the case. A special Committee comprised of thenSecond Circuit Chief Judge John Walker, Second Circuit Judge 

Pierre LaValle, and then-Chief District Judge Michael Mukasey of 

the Southern District of New York exhaustively investigated the 

facts and the allegations against you, and this panel absolved you 

of any wrongdoing and cleared you of all the allegations against 

you. Is that correct? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. And then the findings of this special panel 

were adopted by the Judicial Council for the Second Circuit. Is that 

right? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. All right. Very well. I have gone slightly 

over my time, so Senator Sessions, if you want an extra minute 

and a half, please, it’s yours. 

Senator SESSIONS. Thank you. 

Senator KLOBUCHAR. Thank you. 

Senator SESSIONS. But I see my colleague is here. Senator Grassley is here, Senators Coburn and Kyl. I’d be pleased to yield to Senator Coburn at this time. 

Senator COBURN. Welcome, Judge Chatigny. I want to go directly 

to the Ross case, but before I ask you questions I want to make 

128 

sure that everybody understands that are not familiar with the 

case of the Roadside Strangler, Michael Ross. I’d like to describe 

a few of the details before I ask you questions. 

While in prison, Michael Ross participated in the creation of a 

documentary on serial killers entitled, ‘‘The Serial Killers,’’ during 

which he described in great detail how he raped and murdered 

eight women and girls. In the video, he explained, ‘‘Serial killers 

like me like to strangle their victims, and that is I guess the most 

common form of killing because there’s more of a connection, it’s 

more real, it’s not as quick.’’ Ross murdered all of his victims by 

strangling them. 

He later describes how he tied up Leslie Shelly, age 14, and put 

her in the trunk of his car and then took the other girl, April 

Brunias, age 14, and ‘‘raped her and killed her, and I put her in 

the front seat.’’ Then he pulled Leslie Shelley out of the trunk and 

brutally raped and killed her. In describing his last victim, Wendy 

Baribeault, he said, ‘‘I raped her and I killed her. It wasn’t as 

pleasant. It wasn’t a nice rape.’’ 

Judge Chatigny, this is the man you described in your testimony 

and in your discussions on this case as ‘‘the least culpable of people 

on death row’’ and said, ‘‘he should never have been convicted, or 

if convicted, he never should have been sentenced to death,’’ and 

that ‘‘when Mr. Ross says that I feel I’m the victim of a miscarriage 

of justice because they didn’t treat it as a mitigating factor, I can 

well understand where he’s coming from.’’ 

Judge, this serial murderer is the man you did everything possible to prevent the execution of. I think the record shows that. You 

believed in your position. I just wonder why you think your behavior in this case, which is pretty extraordinary—I’ve only sat on this 

Committee for 5 years—why that behavior would warrant a promotion to a much more senior court. 

Judge CHATIGNY. Senator, thank you for your question. I appreciate your concern. And of course, I found these horrible crimes to 

be unimaginably and unspeakably abhorrent. I believed that under 

the law, I was obliged to give careful consideration to the claim 

that he was not competent to waive legal challenges to this death 

sentence. 

Senator COBURN. Was he not found out to be competent and 

ruled competent? 

Judge CHATIGNY. Ultimately, yes. After a full adversarial hearing 

he was determined to be competent, and on that basis he was executed. I believe that the law required such a hearing to be held and 

that was my sole concern. I regret very much using words that 

make it appear that I was concerned about the issue of his guilt. 

In fact, I had no such concern. 

Senator COBURN. But you did, in fact, agree that there were mitigating circumstances. I think you pronounced him with a diagnosis 

of sexual sadism. Is that correct? 

Judge CHATIGNY. Senator, I wish I could—— 

Senator COBURN. I have the record here. Those are your words. 

Judge CHATIGNY. Yes. And read out of context, I can appreciate 

that the reader could think that I had an opinion. I addressed 

those issues in connection with the issue of competence. The defendant had a long history of mental illness, several disorders, inVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00138 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
129 

cluding the one you mentioned. These were relevant to the question 

of his competence to waive legal rights. 

Senator COBURN. What was the name of the psychiatrist who diagnosed him with sexual sadism? 

Judge CHATIGNY. He was evaluated by a psychiatrist named Michael Norko, and Dr. Norko testified in the State proceeding that 

preceded my involvement that the defendant was competent. Part 

of the difficulty in this unusual case was that there was no adversary proceeding at that stage and his opinion was not tested in any 

way. After the events that occurred before me, he contacted the defendant’s lawyer and said, now that I have looked at material I had 

not seen before, I realize my opinion could change. And it was on 

that—— 

Senator COBURN. Could change or did change? 

Judge CHATIGNY. Could change. 

Senator COBURN. OK. 

Judge CHATIGNY. And on that basis, the defendant’s lawyer 

sought a stay so that the issue could be adequately investigated 

and reliability determined. 

Again, I apologize for using words that call into question my 

character as a judge in that case. In life, we—— 

Senator COBURN. I’m not challenging your character. Your record 

shows that you have great character. That’s not what I’m challenging. I’m worried about a standard that’s outside the law, an 

empathy standard where you become too identified with a case to 

make a sound judgment. As a matter of fact, multiple courts before 

yours had found him competent. You were not the only one. 

The other question that I have is that you were actually involved 

in this case prior to it coming to you as an attorney, is that correct? 

Judge CHATIGNY. Technically, perhaps. But—— 

Senator COBURN. Was that made evident to the people who were 

on both sides of the trial in this case? Was it disclosed? 

Judge CHATIGNY. It was not, for the simple reason that I had forgotten my prior involvement. 

Senator COBURN. In a serial murder case of eight people? 

Judge CHATIGNY. I was not involved in the case. Thirteen years 

before the matter came to me I was contacted by a friend who 

asked me if I would file, on behalf of the Connecticut Criminal Defense Lawyers Association, a motion in the State Supreme Court 

for leave to file an amicus brief on an evidentiary issue. I agreed 

to do so. I reviewed the motion that he prepared and I saw to it 

that it was filed, and that was the end of my involvement in the 

matter. 

Senator COBURN. I think my records are correct, that’s the only 

death penalty case you were involved in in 25 and you forgot it? 

Judge CHATIGNY. Senator, the simple truth is that—- 

Senator COBURN. The rape and murder of eight young women? 

Judge CHATIGNY. Well, I never represented Michael Ross and my 

involvement didn’t extend beyond essentially acting as local counsel for my friend for the purpose of filing an application to file a 

motion, and that—— 

Senator COBURN. But you actually did research on that case on 

mitigating factors. Is that correct? 

130 

Judge CHATIGNY. I did some very limited research before concluding that there was no need for me to be involved anymore, and 

I told my friend that this was the case and I had no further involvement. 

Senator COBURN. I’m sorry. My time is up. I’ll have to wait till 

the second round. 

Senator KLOBUCHAR. Thank you very much. 

Just to clarify the record, Judge Chatigny, the issue last raised 

by Senator Coburn about your recollection of filing a motion, you 

didn’t actually represent the defendant, is that correct? 

Judge CHATIGNY. That’s correct. 

Senator KLOBUCHAR. And in the Mukasey report when they reviewed the conduct from this case, they in fact found that this was 

innocent and not misconduct. Is that correct? 

Judge CHATIGNY. They found that it was an innocent lapse of 

memory, which it was. 

Senator KLOBUCHAR. OK. 

Judge CHATIGNY. When I realized that I had a prior involvement 

I was stunned, as was my former partner when he learned about 

it. It had been 13 years. It may seem to reasonable people that my 

involvement was in some way significant, but it wasn’t. 

Senator COBURN. Madam Chairman, I’d just like to add, prior to 

you joining our Committee there was a judge, a Circuit judge by 

the name of Jim Payne who disclosed he owned 100 shares of WalMart to the litigants in a trial and we castigated him as a Committee. 

I didn’t, but the Chairman did, saying how unethical it was, even 

though he disclosed it. So we’re talking about two different standards now, one that says it’s fine not to disclose and one that says 

somebody is not on the appellate bench today because they did disclose. I’d add that to the record. 

Senator KLOBUCHAR. OK. Well, I wasn’t there for that case. I just 

know what the finding of Judge Mukasey was in this case, and 

that was that there was no misconduct. 

Senator COBURN. But our job is not on the findings of Judge 

Mukasey. It is our job to see if somebody is suitable for a Circuit 

judge position, not the finding of an appeal in terms of lawyers. 

Senator KLOBUCHAR. That’s correct. 

Senator Sessions. 

Senator SESSIONS. Senator Kyl, I’ll yield. 

Senator KYL. Thank you very much, Judge. Welcome. Maybe 

that’s not the right terminology here, but obviously this Ross case 

is something that’s been well-publicized. It’s something that I’m 

sure you appreciate we have an obligation to look into. 

Judge CHATIGNY. Yes. 

Senator KYL. Part of the concern that I have about the case relates to the issue of judicial temperament. You consider judicial 

temperament to be a key factor in our evaluation of a nominee for 

the court, I presume. I guess the thrust of the questions that I have 

go to a conference you held with some of the lawyers and some of 

the terminology that you used during that conference. This was on 

January 28, according to the notes that I have here, with the defendant’s lawyer, whose name is Paulding. 

131 

Here are some of the things that my notes reflect that you said 

during that. First of all, do you remember that teleconference? 

Judge CHATIGNY. Yes. 

Senator KYL. At least now you do. 

Judge CHATIGNY. I do. 

Senator KYL. You told him that he was ‘‘facilitating the execution 

of his client’’, that ‘‘we are not in this profession to help people get 

killed’’, and third, ‘‘and I tell you that, Mr. Paulding, because it is 

true. What you’re doing is terribly, terribly wrong, and so I don’t 

know how anybody in your position honestly, Mr. Paulding—I do 

not know how anybody in your position could be accepting of this 

responsibility to proceed in the face of this record to be the proximate cause of this man’s death.’’ 

Do you remember those statements? 

Judge CHATIGNY. I do. 

Senator KYL. You then went on to warn him of the consequences 

of his not reversing course. You said, ‘‘So I warn you, Mr. Paulding, 

between now and whatever happens Sunday night, you’d better be 

prepared to live with yourself for the rest of your life and you’d better be prepared to deal with me if an investigation is conducted 

and it turns out that what Lopez says and what this former program director says is true, because I’ll have your law license.’’ Do 

you remember saying that? 

Judge CHATIGNY. Yes. 

Senator KYL. And then when Mr. Paulding told you that he had 

spoken to his client as you had previously instructed him to do, you 

responded, ‘‘Then you better make a clear record of it. You better 

have a court reporter there taking down the advice you’re giving 

him, because believe me, if—you’re going to need it. You’re going 

to need it.’’ 

Do you remember saying that? 

Judge CHATIGNY. I do. 

Senator KYL. Do you think that the way that you expressed yourself in that hearing was appropriate and do you believe that it 

might raise a legitimate question in our mind as to your judicial 

temperament? 

Judge CHATIGNY. Senator, thank you for asking me this question 

because I can well understand why you would be concerned. I regard judicial temperament as vitally important, indispensable. And 

one of the difficulties that I have with the Ross case is the way I 

spoke to Mr. Paulding. I used words that were excessive, words 

that were harsh. I regretted them immediately and I undertook to 

apologize to him at the earliest opportunity and he was very gracious to say to me that no apology was necessary. But, yes, I do 

acknowledge that my choice of words was terrible. It’s a situation 

in which I believed then, and I believe now, that I did the right 

thing, but I went about it the wrong way. 

Senator KYL. Do you recall now what caused that to occur? Did 

you lose your temper? Were you simply really uptight about this 

particular case? Were you mad at Ross? What was your state of 

mind that caused you to do something that you’ve acknowledged 

was inappropriate? 

132 

Judge CHATIGNY. This telephone conference took place at the end 

of a grueling week, with hours remaining before the execution. I 

believed that I had a duty to point out to this lawyer—— 

Senator KYL. Was it pressure? I’m trying to—because of the time 

here, trying to—— 

Judge CHATIGNY. I’m sorry. 

Senator KYL. Was it—your explanation would be that you were 

under a lot of pressure, or what? I’m not trying to put words in 

your mouth, I’m just looking for an explanation because that is unacceptable behavior for a judge. 

Judge CHATIGNY. I agree that the words I used were wrong and 

the pressure was intense. I would like to think that, even under 

intense pressure, I would now display calm detachment, which I 

surely did not display at the time. But it was a learning experience 

for me, to be sure. 

Senator KYL. Judge, because of our timing rules our questioning 

is really chopped up here, so my first round of 5 minutes has now 

expired. I’ll just carry on then where I left off next time I have a 

chance to query you. 

Thank you. 

Senator KLOBUCHAR. Thank you. And just since the topic of your 

temperament came up, I just want to put in the record that the 

Committee has received a joint letter from three former Republican-appointed U.S. Attorneys for the District of Connecticut: 

Kevin O’Connor, U.S. Attorney from 2002 to 2008; Alan Nevis, U.S. 

Attorney from 1981 to 1985; and a U.S. district judge for that same 

district from 1985 to 1989; and Stanley Twardy, Jr., U.S. Attorney 

from 1985 to 1991, who wrote that they ‘‘support without any reservation the nomination of Judge Robert Chatigny to the U.S. 

Court of Appeals for the Second Circuit’’. 

In a letter dated April 16th, 2010, they wrote that they, ‘‘Have 

found him to be even-tempered, thorough, and without agenda’’, as 

well as ‘‘a fair-minded and impartial judge’’ whose record in sentencing Federal criminal defendants shows that he is appropriately 

sensitive to the facts of the person before him and the rights of the 

victims of the crimes that have been committed. So I will include 

this letter in the record. 

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

Senator KLOBUCHAR. I would also note just one more clarification 

of the record, that in the Mukasey findings, that this was not found 

to be a reason for misconduct. I think they call it unusual, but they 

understood the circumstances. Is that correct? 

Judge CHATIGNY. Yes. 

Senator SESSIONS. Madam Chairman, are you—— 

Senator KLOBUCHAR. I’m just clarifying the record since—— 

Senator SESSIONS. Well, are you going to respond to each witness’ testimony? Is that the way we’re going to do it? 

Senator KLOBUCHAR. Senator Sessions, it’s your time to question 

and I’ll go after that. Your turn. 

Senator SESSIONS. Well, I would offer for the record the letter 

from Mr. Michael E. O’Hare, the supervising Assistant State’s Attorney who represented the State in this case, who questions the 

wisdom of this appointment and the fitness of the nominee to serve 

who was there, participated, and saw what happened. I don’t think 

133 

this is a matter that is going to lightly go away, Judge. I wish it 

was, but it’s just not going to be dismissed. 

I have been a prosecutor and I have seen judges go beyond their 

proper role in hearings, and I believe you did in this case. I believe 

Mr. Paulding, the attorney for the defendant, conducted himself in 

a way he should have and that you did not. And so that’s a problem for me. You have a good record. People like you. In other 

cases—there are some concerns in other cases. But I just have to 

tell you, I’ve seen the transcript and I didn’t—not so much—I think 

it evidenced a lack of a proper understanding of your role in the 

matter. 

So with regard to the competency hearing you testified to that 

occurred before the death penalty was carried out, this matter had 

been tried in the State courts of Connecticut, had been appealed to 

the Connecticut Supreme Court, and a competency hearing had 

been held and the death penalty had been affirmed by the highest 

court in the State of Connecticut, had it not? 

Judge CHATIGNY. Yes. 

Senator SESSIONS. And so what occurred, as I understand it, is 

that a letter came in from a prisoner at the last minute saying that 

the defendant may have been brainwashed and that somehow this 

caused a second competency hearing to occur. Is that correct? 

Judge CHATIGNY. It was one of a number of things that happened 

to contribute to that result. 

Senator SESSIONS. Now, with regard to that letter, when did that 

letter come in? Did that come in before the Friday teleconference? 

Judge CHATIGNY. Yes. I believe it arrived 2 days before—two or 

3 days before. I don’t recall—— 

Senator SESSIONS. And Mr. Paulding had been in constant contact with his client, and as it turned out that letter was insubstantial and not proven to be dispositive of the issue of his competency. 

And apparently, is it not true, that the client, Mr. Ross, the murderer, had decided he didn’t want to appeal anymore? He felt that 

the judgment of execution was due to be carried out and he was 

prepared to accept it. 

Judge CHATIGNY. Yes. And the issue before me was whether he 

was competent to waive legal remedies. 

Senator SESSIONS. And the attorney who has been working with 

him and been defending him that he chose—is that correct, or was 

he appointed? 

Judge CHATIGNY. Senator, let me take this opportunity to clarify. 

His long-time defense counsel who had defended him over the 

course of the many years were the ones who came to the Federal 

court, claiming that he was not competent to waive legal remedies. 

The lawyer who was representing him at the time, Mr. Paulding, 

had been hired to advocate that he was competent. 

Senator SESSIONS. By the defendant or his—— 

Judge CHATIGNY. By the defendant. 

Senator SESSIONS. So the defendant wanted a lawyer to make 

clear that he didn’t think he was incompetent and that he was prepared to accept his fate. 

Judge CHATIGNY. Yes. 

134 

Senator SESSIONS. Which is consistent with what the competency 

hearing in the State had found, and consistent with what the appellate courts and the Supreme Court of Connecticut had found. 

Now, tell me again. I have to ask this. Senator Coburn asked you 

about the letter that you wrote from your friend. Did you know— 

did you sign the letter? 

Judge CHATIGNY. I signed an application for leave to file a brief, 

yes. 

Senator SESSIONS. And was a brief—was it the brief that was 

filed? 

Judge CHATIGNY. No brief was ever filed. My involvement was 

limited to filing that application for permission to file a brief, looking briefly at an issue and then informing my friend that I didn’t 

think it was necessary or appropriate for me to be briefing that 

issue, that others could do it, and so my involvement ended. 

Senator SESSIONS. So he did give you some indication of what the 

issue was apparently. 

Judge CHATIGNY. Not really. 

Senator SESSIONS. Well, you say you told him it wasn’t appropriate for you to respond, or something to that effect. Surely you 

had some basis to make an evaluation of the merits of the case. 

Judge CHATIGNY. Please understand that this was one issue of 

many and I was not involved in considering all the other issues. 

My consideration of this one particular issue was very limited. As 

I said before, I was not involved in the Ross litigation, except for 

that very brief involvement, which I unfortunately forgot. Had I remembered, I would have recused myself to avoid even a possible 

appearance of bias. But regrettable as it is, I forgot. 

Senator SESSIONS. Well, my time has run at this point. You 

know, we want to be fair to you and we’re going to do that. You 

need to have an opportunity to explain, and I’ve learned a few 

things in talking with you already I didn’t fully understand. But 

we do have some more. Madam Chairman, I think we’ll need to 

have some more time. 

Senator KLOBUCHAR. Of course. Whatever time you need. 

I just had some follow-up questions, Judge Chatigny. 

Now, so what happened here is, you have this case, he’s going 

to be executed, and then you get some information that the guy 

that had found him, the medical expert who had found him competent to stand trial, was now doubting his opinion. Is that right? 

Or wasn’t sure if that was correct, or he might make a different 

opinion? 

Judge CHATIGNY. The sequence needs to be clarified The psychiatrist who evaluated this defendant in the State court competency 

proceeding contacted the defendant’s lawyer soon after the telephone conference that we’ve discussed and told the lawyer that he 

had come into possession of material, actually writings, by this defendant that caused him to think that his opinion about the defendant’s competence could change. That, together with other information that emerged, caused Mr. Ross’s lawyer to move to stay the 

execution so that the issue of the defendant’s competence could be 

reevaluated. 

Senator KLOBUCHAR. And so you then had to make a decision. So 

the lawyer gets this information that the expert who had said his 

135 

client was competent now isn’t sure if he’s competent, so he gives 

him that. So the lawyer—I just, as a lawyer myself, you would 

have an obligation to bring that before a judge. 

So, now you look at this competency issue. I just remember, as 

a prosecutor, we would have these cases come up. I will be honest, 

as a prosecutor, we’d always want them to be found competent to 

stand trial even if they were like talking to tomatoes or whatever 

cases that we had. We did have one like that. 

And sometimes we would concede it because it was so obvious, 

and sometimes it was a murky area, but a lot of times as a prosecutor we would fight to have someone declared competent. I’m 

sure you’ve seen that. But your obligation as a judge—let’s say that 

you had just dismissed this and didn’t even look at it and said, you 

know what? He’s competent and I don’t even want to give a chance 

to have a hearing on this. Then what if he was executed then and 

then someone had found that the lawyer—that this lawyer hadn’t 

brought it up or hadn’t done anything about. What would have 

happened to that lawyer? 

Judge CHATIGNY. Well, that was my concern. I undertook to 

warn Mr. Paulding of the potential consequences if he failed to act 

and his client was executed in violation of his constitutional rights. 

I was trying to do the right thing to protect the integrity of the system. If we were going to have an execution we should do it right. 

This was the first one in 45 years, and I thought it was important 

that it be done carefully. 

Senator KLOBUCHAR. So it wasn’t your belief that somehow he 

shouldn’t be executed or—— 

Judge CHATIGNY. No. 

Senator KLOBUCHAR. Even that he didn’t do the deeds. It was 

that—and the horrific crime. It was that the procedure at hand, 

you felt especially if it was this landmark execution, horrific case, 

public focus, and you wanted it to be handled in the right way, is 

that what you’re talking about? 

Judge CHATIGNY. Yes. And as it happened, Mr. Paulding prepared a motion for a stay of the execution for filing in Federal 

court, and recognizing that these unusual events of the past week 

had created an unfortunate situation, I urged him to file the motion in State court, out of respect for the State court, to give the 

State court an opportunity to act on that, and he did. The State 

court granted the motion, held the competency hearing, made the 

finding that the defendant was competent, and in the end that’s 

how it turned out. 

Senator KLOBUCHAR. And then one other clarification. During 

this three-judge panel, looking back at this case with all of its facts 

and evidence, Michael Ross’s lawyer, who is J.R. Paulding, testified 

that he did not feel pressured, but sought a postponement of the 

execution based on his own view of the evidence and his duties as 

a lawyer. Is that correct? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. OK. 

Judge CHATIGNY. And I feel particularly badly about what occurred because I think that Mr. Paulding did his conscientious best 

in the circumstances. 

136 

Senator KLOBUCHAR. And then after that happened, when the 

three-judge panel issued its decision, it actually said that, ‘‘while 

the judge used strong language, there was no misconduct. Under 

the proper circumstances, a judge may deliver a warning that 

threatens a misbehaving attorney with disciplinary action or contempt citation by the judge, or referral to another disciplinary authority without necessarily interfering with any legitimate right of 

the attorney or the attorney’s client.’’ 

Again, these were three judges: Second Circuit Chief Judge 

Walker, who was nominated by President George H.W. Bush; 

Judge Pierre LaValle; and then Southern District of New York 

Chief Judge Michael Mukasey, who as we know later went on to 

serve as the U.S. Attorney General under George W. Bush. 

And I understand that Mr. Mukasey is publicly supporting your 

nomination. As we know from Senator Sessions’ statement, that he 

had called him. Is that correct? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. All right. 

So again, I want to thank you. I would love to talk to you. I think 

you’ve had like 450 opinions. Is that correct? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. And only 16 of them have been reversed. 

Who’s counting? I don’t know. 

[Laughter.] 

Senator KLOBUCHAR. Something like that. Or been maybe taken 

up to be reconsidered broader, than reversed. 

But I want to thank you for your patience. I know my colleagues 

have some other questions. Thank you very much. 

Judge CHATIGNY. Thank you. 

Senator KYL. Madam Chairman, Senator Coburn has graciously 

agreed to let me go ahead. 

Senator KLOBUCHAR. Senator Kyl. 

Senator KYL. Let me go ahead. As is the case sometimes, things 

interfere with this hearing, and I apologize, but I only have a 

minute before I have to go to another commitment. 

I’ve got two questions, each with a subpart. Let me go back to 

this conference that we talked about before. You, in this conference, 

cited your own personal experience in an unrelated matter, touring 

the prison where Mr. Ross was held. I gather this was not a part 

of the record in the case before you. Was that an appropriate thing 

under those circumstances? 

And I guess, second, you also referenced abundant literature that 

you had read on the issue, noting that most European countries 

would refuse to extradite prisoners if a prisoner was going to end 

up ‘‘in that setting.’’ I think you were referring to that particular 

prison. 

I guess the second part of this question is: how does that inform, 

or do you believe that this is an appropriate reference for you to 

inform interpretation of U.S. case law? 

Judge CHATIGNY. Senator, dealing with the first part of the question, I had toured the facility in connection with another case and 

I wanted to put that on the record so that Mr. Paulding and others 

would know what was in my mind. In the ordinary case, a judge 

would not take into consideration things outside the record, but 

137 

this was an emergency proceeding and I felt I had an obligation to 

disclose that, partly because I wanted to do my best to focus Mr. 

Paulding’s attention on what was going on. And I—— 

Senator KYL. I’m sorry. Because of the time—I appreciate that. 

Judge CHATIGNY. I’m sorry. 

Senator KYL. Can you get to the second part of the question regarding the foreign law? 

Judge CHATIGNY. Yes. 

Senator KYL. This is a matter of great concern to those of us who 

don’t think it appropriate to resolve U.S. cases on the basis of foreign law. 

Judge CHATIGNY. I understand. And I have never used foreign 

law to decide an issue before me and I can’t envision a circumstance in which I would. My point here was to impress upon 

Mr. Paulding that the conditions of the defendant’s confinement 

could exacerbate his mental illness, as alleged. As it turned out, 

after the full evidentiary hearing in State court, that proved not to 

be so. But at the time I spoke, I had an allegation that it was so 

and I went forward for that reason only. 

Senator KYL. Well, what did European extradition experience 

have to do with that? 

Judge CHATIGNY. Only insofar as they relied upon empirical evidence regarding the effect of long-term solitary confinement on inmates, and for no other reason. 

Senator KYL. Let me switch to a second subject. After the teleconference and after the Supreme Court affirmed the Second Circuit’s reversal of the temporary restraining order and there were 

no additional impediments to his execution, which was then set to 

occur at 2 a.m. on the following morning, about 3 hours before the 

scheduled execution you directed the clerk of your court to call the 

Execution Command Center and request the number of Judge Patrick Clifford, who was the State trial court judge in the case. Is 

that correct? 

Judge CHATIGNY. Yes. 

Senator KYL. Now, given the fact that there was no longer any 

matter pending before you, and I gather there was no motion on 

the part of any party, why did you do that? 

Judge CHATIGNY. I wanted the judge to know that I was available in case he wanted to speak with me. I thought there was a 

chance he might hear from Mr. Paulding and he might want to 

seek clarification from me. 

Senator KYL. Did you speak with him, with the judge? 

Judge CHATIGNY. No. 

Senator KYL. Did you also try to contact the chief justice of the 

Supreme Court, Justice Sullivan? 

Judge CHATIGNY. No. 

Senator KYL. Do you believe now that it was appropriate for you 

to call to volunteer that if they had any questions, that you’d be 

happy to try to answer them? 

Judge CHATIGNY. I do. 

Senator KYL. The thing that is in my mind in this line of inquiry 

is that it appears to me that you believe that anybody who could 

commit such a heinous crime must be mentally unfit, and it appears to me that you take an undue interest—even though I appreVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00147 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
138 

ciate the fact that you said if there’s going to be an execution you 

want to make sure it’s done right—and were very exercised about 

the way you discussed this with counsel. Would you care to comment on my—on this perception that I have? 

Judge CHATIGNY. Yes. Thank you for giving me the opportunity. 

I can well understand why you would have that perception. It’s unfortunate that the Ross case gets in the way of the record of my 

work day-to-day in all kinds of cases over the course of 15 years. 

It is not a reliable indication of my character as a judge or my 

work as a judge. Again, I believe I did the right thing, but I went 

about it the wrong way. For that, I’m sorry. 

Senator KYL. I appreciate that. There were some other questions 

that I wanted to ask concerning some other decisions that you were 

involved in and I think we’ll have the opportunity to put those 

questions on the record for you. I would appreciate that. 

[The questions appear under Questions and Answers.] 

Senator KYL. And for those family or friends who are here, I 

wasn’t here at the beginning so I don’t know exactly who everybody 

in the audience is. I hope that everyone appreciates that the Senate has an obligation, a very serious obligation to the U.S. Constitution, to provide advice and consent to the President on his 

nominations. Just as your responsibilities require rigorous investigation, Judge, I am sure that those who are representing you 

here today can appreciate that our responsibility requires the 

same. 

I appreciate your responsiveness and I apologize for having to 

leave now. 

Judge CHATIGNY. Thank you. 

Senator KLOBUCHAR. Thank you very much, Senator Kyl. Thank 

you for being here. 

Senator Coburn. 

Senator COBURN. Let me go back. I think I heard you, and you 

need to clarify this for me. What was the reason you did not file 

an amicus brief on the Ross case? 

Judge CHATIGNY. The issue that was suggested for briefing 

seemed to me to not warrant a brief on behalf of the Criminal Defense Lawyers Association. 

Senator COBURN. Is it not true that you were written by Mr. 

Ross after you’d filed a motion to file an amicus brief, and that you 

wrote him back saying your involvement was when the case was 

over? 

Judge CHATIGNY. Yes. 

Senator COBURN. OK. Thank you. 

And you didn’t have any recollection of that prior to this case? 

Judge CHATIGNY. I did not. 

Senator COBURN. All right. Thank you. 

I want to go back to the interaction with Counselor Paulding and 

just clarify for the record a little bit. Paulding only filed a stay 

after he had what he believed at that time was an implied threat. 

Would you agree with that? 

Judge CHATIGNY. Senator, I believe Mr. Paulding has stated that 

he did not feel threatened and that he sought the stay based mainly on his conversation with Dr. Norko and his duty to the courts 

139 

to bring to their attention new information or evidence bearing on 

the issue of his client’s competence. 

Senator COBURN. Then why would Mr. Ross testify in front of 

you that the only reason he agreed to go along with the filing of 

the stay is to ‘‘protect Paulding’s law license’’ ? 

Judge CHATIGNY. There was no such testimony by anyone before 

me. 

Senator COBURN. It was in the Supreme Court, in the State Supreme Court. 

Judge CHATIGNY. That was not the position he took. 

Senator COBURN. That’s a direct quote: ‘‘protect Paulding’s law license,’’ from the State Supreme Court. 

Let me move on, if I may. Do you believe that there is a mitigating factor in all death penalty cases? 

Judge CHATIGNY. No. 

Senator COBURN. Do you believe that in sexually related crimes 

such as Ross’s, that there usually is a mitigating factor? 

Judge CHATIGNY. No. 

Senator COBURN. How much time did you spend researching 

mitigating factors when you were first asked to look at Mr. Ross’s 

record by the—I think it was the Connecticut trial bar, benevolent—— 

Judge CHATIGNY. I don’t recall doing any research into mitigating factors. 

Senator COBURN. Thank you. 

Judge CHATIGNY. I think it was an evidentiary issue, but I don’t 

recall. 

Senator COBURN. It should be noted for the record, at the time 

of your conversation with Mr. Paulding, you were a member of the 

Grievance Committee of the U.S. District Court for the District of 

Columbia. Is that correct? Would your statements to Mr. Paulding 

carry more weight considering you were on the Grievance Committee versus a judge who was not on the Grievance Committee? 

Would you, as a reasonable man, tend to think that it might carry 

more weight? 

Judge CHATIGNY. Senator, I’m not sure. And I’m trying to recall 

if I was a member of the Grievance Committee at that time. I don’t 

recall. But certainly, you’re right. A forceful statement to a lawyer 

will tend to have an impression, and I do regret that my words to 

Mr. Paulding were harsh. 

I would want to be clear. You referred to Mr. Ross’s testimony. 

I believe he gave that testimony in the subsequent State court proceeding. 

Senator COBURN. Yes, he did. 

Judge CHATIGNY. I don’t want to leave you with the impression 

that I doubt that he did that. 

Senator COBURN. No, no. No. I understand that. Thank you. Let’s 

move off that for a minute. I’ll bet you’d like to move off of it, and 

so would I. Thank you for being so cooperative. 

In Doe v. Lee, you held that the Connecticut Sex Offender Registration Act was unconstitutional. The U.S. Supreme Court unanimously reversed your decision. Specifically, the court rejected your 

conclusion that a violation of a liberty interest occurred because the 

law implied that all registrants are currently dangerous and imVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00149 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
140 

posed onerous registration obligations, relying on its previous 

precedent established in Paul v. Davis, that mere injury to reputation, even if defamatory, does not constitute the deprivation of a 

liberty interest. 

Why did you disregard prior Supreme Court precedent in that 

ruling? 

Judge CHATIGNY. Senator, as in every case, I did my best to 

faithfully apply the law. In that case, a procedural issue was presented. I studied the relevant precedents of the Second Circuit, did 

my best to follow them. I concluded that due process did require 

that a hearing be held in a circumstance where a—— 

Senator COBURN. I’m out of time. Let me just ask one other question. You’re not responsible just for the precedents of the Second 

Circuit, you’re responsible for the precedents of the Supreme Court 

as well, correct? 

Judge CHATIGNY. Yes. 

Senator COBURN. Thank you. I’ll yield back and I’ll wait for the 

next round. 

Senator KLOBUCHAR. Okay. Thank you. 

And just to clarify that issue, you did not actually strike down 

Megan’s Law, is that correct? 

Judge CHATIGNY. No. I ruled that due process required a hearing. The Second Circuit affirmed. The Supreme Court—— 

Senator KLOBUCHAR. And they unanimously affirmed? 

Judge CHATIGNY. They did. The Supreme Court unanimously reversed. I, of course, accept their ruling as the law of the land and 

have no difficulty whatsoever following it. But I did my best to 

apply the law as I understood it. 

Senator KLOBUCHAR. And again, you didn’t strike it down. It was 

a procedural issue, that you felt that there should be—you felt that 

there should be an additional procedure. 

Judge CHATIGNY. To be clear, under Connecticut’s registry, nondangerous registrants and dangerous registrants were lumped together. There was no differentiation. The plaintiff claimed to be 

non-dangerous and he wanted an opportunity to prove that at a 

hearing before he was listed on the registry. Under applicable 

precedent, Supreme Court and Second Circuit, I concluded that he 

was right, and on that basis I said you can’t put these people on 

the registry without giving them a hearing. The Court of Appeals 

agreed. The Supreme Court unanimously disagreed and the registry is in effect. 

Senator KLOBUCHAR. Okay. Thank you. 

Senator Sessions. 

Senator SESSIONS. Judge, as a trial judge you have the authority 

on motion, if contempt is executed in your presence, to discipline 

lawyers, do you not? 

Judge CHATIGNY. Yes. 

Senator SESSIONS. And lawyers know that and they respect the 

power of a judge. I have to say that your comments—really, 

threats—to Mr. Paulding were inappropriate. Would you agree? 

Judge CHATIGNY. I would agree that the words I used were excessive, yes. 

Senator SESSIONS. And you also said at that time, ‘‘We’re not in 

this profession to help people get killed.’’ A lawful execution does 

141 

not meet my definition of killing. Do you think that’s a bad choice 

of words? 

Judge CHATIGNY. Very much so. 

Senator SESSIONS. And then when you said to the lawyer, ‘‘what 

you’re doing is terribly, terribly wrong’’, and you went on to say, 

‘‘I do not know how anybody in your position could be accepting of 

this responsibility and proceed in the face of this record to be the 

proximate cause of this man’s death.’’ 

Then you, I think, went on to basically threaten him. You said, 

‘‘Then you better make a clear record of it. You better have a court 

reporter there taking down the advice you’re giving him, because 

believe me, you’re going to need it. You’re going to need it.’’ 

Do you feel like—it seems to me the lawyer was representing a 

client who had had a full panoply of appeals and was ready to accept his fate, and it seems to be a mentality among some in our 

legal system that the death penalty must be resisted at virtually 

all costs, and we go to every possible effort to delay its coming. 

Do you agree that you have a right, when the time is ready, that 

the defendant is ready to be executed, that he should be executed? 

Judge CHATIGNY. Yes, if he’s competent, then that’s his choice. 

Senator SESSIONS. Now, during this call you said this that worries me: ‘‘Looking at the record in light most favorable to Mr. Ross, 

he never should have been convicted.’’ How could you say that? 

Judge CHATIGNY. Here again, Senator, I appreciate the question 

because it gives me an opportunity to clarify and to address your 

understandable concern. I was trying to explain to Mr. Paulding 

that the significant evidence casting doubt on his client’s competence pervaded the case. 

The issue of guilt was not before me. That issue had been determined, but the issue of competence was before me and his history 

of mental illness was clearly relevant to that issue. His prior counsel had defended the case based on an insanity defense, later based 

on his mental disorders. And I regret that I used words that suggested I had an opinion about this defendant’s guilt or that I was 

concerned about his guilt. I was not. I—my sole concern was 

whether he was competent to waive legal remedies. It was a learning experience, as I said. If I had it to do again I would certainly 

do it differently. 

Senator SESSIONS. Well, you said ‘‘he should never have been 

convicted’’ and then went on to say ‘‘or if convicted, he never should 

have been sentenced to death because sexual sadism is clearly a 

mitigating factor.’’ Can you cite any authority in which sexual sadism has been defined as a mitigating factor? 

Judge CHATIGNY. No. 

Senator SESSIONS. Well, I don’t think there is any. I’m rather— 

it seems to me that would be, if anything, an aggravating factor. 

Judge CHATIGNY. My intention was to call Mr. Paulding’s attention to the record of the defendant’s disorders, including that one, 

solely to impress upon him the need to reassess the issue of his 

competence to waive legal remedies. 

Senator SESSIONS. Well, you said that there was significant evidence raising questions about his competency. I don’t know that 

there was a scintilla of evidence. I guess this letter, if you chose 

142 

to see it as something of value, could have been seen as some 

minor possibility of a competency question. 

But really, the attorney, Mr. Paulding, was in contact with his 

client who had been—and didn’t take this seriously. All it was was 

a letter from a person in jail, maybe trying to help out a fellow 

prisoner, if he could frustrate the system, it sounded like to me. 

There was no real credible facts stated in that letter that would 

make me think that there was a real significant question of competency. Wouldn’t you agree? 

Judge CHATIGNY. I do agree. I realize now that there’s an important point that needs to be clarified. At the emergency hearing on 

the application for the stay, the plaintiffs proffered evidence on the 

subject of the defendant’s competence, including expert testimony, 

which had not been considered by the State court. 

It was against the background of that evidence that we subsequently saw new evidence emerge, but the evidence that concerned 

me at the very beginning was this evidence proffered at the emergency hearing, including expert psychiatric evidence, which had not 

been part of the competency hearing in the State court. I am sorry 

I didn’t clarify that earlier. 

Senator SESSIONS. Well—— 

Judge CHATIGNY. When the competency hearing was reconvened 

in State court, there were expert witnesses on both sides who testified on that issue. The trial-type proceeding took approximately a 

week, with two experts on both sides of the question, and then the 

State judge wrote a careful, thoughtful opinion, finding that the defendant was competent. 

Senator SESSIONS. But the Connecticut Supreme Court had also 

reviewed it previously in the record of the previous competency 

hearing and found him adequate, did it not? So you were just second-guessing their decision based on a letter from a prisoner. Excuse me. He should be able to answer that and I’ll give you more 

time. I’ve gone beyond my time. 

Judge CHATIGNY. I believe strongly that a district judge should 

defer to the State court, and I do that. In this unusual case, I believed that the allegations that were made and the evidence that 

was presented to me in support of those allegations raised a sufficient issue about competence to require a further review, in no 

small part because there had been no adversarial hearing in the 

State court where the issue could be tested, as we test issues in 

our system. 

Senator KLOBUCHAR. OK. Thank you. 

Judge Chatigny, I just want to go back over this, your sort of exacerbation at the hearing and why you felt that way and used that 

language that you now regret. And I was actually listening to it, 

thinking about times that I’ve been before judges who get mad, 

even in civil cases, about things. Some of the words you used remind me of other words I’ve heard, so it didn’t really surprise me, 

but they don’t usually get litigated because it never comes out. But 

I’ve heard judges use very strong language at lawyers, and that’s 

no excusing it, I just have. 

And so, but one of the things I found interesting was just this 

succinct statement by the panel, the Second Circuit conclusion, 

about some of the things you had said in exchange with the lawyer, 

143 

who as we know has already said that he didn’t feel pressured, and 

I’ll get to that in a minute. 

But they said, ‘‘The words cannot be read in isolation. The proceeding colloquy clearly shows Judge Chatigny’s growing exasperation with the fact that Ross was about to be executed based on his 

waiver of legal remedies in the face of a reasonable possibility’’, 

and you’ve already told Senator Sessions that if you felt that he 

was firmly competent, had no questions about that, the fact that 

he waived his remedies and was going to be executed, that 

wouldn’t be a problem for you. Is that correct? 

Judge CHATIGNY. That’s correct. 

Senator KLOBUCHAR. So you said that—what they say is that ‘‘in 

the face of a reasonable possibility that he was not competent to 

give such a waiver’’, so you have this situation where this new evidence has come before you from his lawyer, so you’re concerned 

that he may not be competent, and at the same time you have a 

lawyer—the Second Circuit stated, ‘‘his lawyer was refusing to take 

steps to examine new evidence casting doubt on his client’s competence. The judge was clearly concerned that Paulding’s’’, that’s 

the lawyer, ‘‘reluctance to engage the court in the question of Ross’s 

competence, based on Paulding’s sense that he was bound by his 

client’s instructions, might cause an unconstitutional execution.’’ So 

once again, your concern was not that you didn’t want to do the 

death penalty or you had a problem with it, it was that you were 

concerned that this could be found to be unconstitutional and you 

wanted to have it done right. 

Judge CHATIGNY. That’s true. 

Senator KLOBUCHAR. And the lawyer—and I can understand 

where the lawyer is coming from—feels lawyers should do what 

their client says. But from your standpoint, and the case law 

shows, the first question the lawyer has to ask is, is my client competent or not. 

Judge CHATIGNY. That’s correct. 

Senator KLOBUCHAR. And that’s why I can understand you got a 

little heated, whether it was right or not, in trying to make sure 

that lawyer understood that, that, yes, you’re bound by what your 

client says but you’ve got to make sure he’s competent. OK. 

So, the other piece of this is just some of the things that we 

heard about your feelings on the case itself, and what you were trying to do here was to make sure the procedures were followed. 

That’s right? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. OK. And I’d just note that again, in the 

Second Circuit decision, that it says—they say, ‘‘There is no indication that Judge Chatigny sought to nullify Ross’s death sentence. 

Rather, the transcript clearly reflects his focus on insuring that a 

proper competency determination be made.’’ 

Then one other thing I wanted to put on the record here was that 

17 former Federal prosecutors who worked with or appeared before 

you wrote to this Committee about their ‘‘conviction in his integrity 

and fitness to serve on the Court of Appeals’’. In an April 27, 2010 

letter, they describe you as ‘‘unfailingly respectful of others and 

their views with no axe to grind’’, and asserted that, ‘‘in criminal 

as well as civil matters, Judge Chatigny has proven himself over 

144 

the course of 15 years on the bench to be unbiased, compassionate, 

and temperate.’’ 

So I’d like to put that letter on the record as well in addition to 

the ones that we heard from the chief U.S. Attorneys that were included in the record. 

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

Senator KLOBUCHAR. Just one other follow-up. You’ve had how 

many cases? Do you remember how many cases you’ve had in your 

career as judge? 

Judge CHATIGNY. Thousands. 

Senator KLOBUCHAR. I think someone told me you had 4,000 

cases. 

Judge CHATIGNY. That sounds right. 

Senator KLOBUCHAR. OK. And you’ve issued 450 decisions. 

Judge CHATIGNY. I thought perhaps more. I think I’ve had approximately 450 criminal defendants come before me for sentencing. That’s an estimate. The number of opinions, I’m not sure. 

Senator KLOBUCHAR. And most of those—we discussed almost all 

of those cases have been upheld. I think I had the number, 16 

cases had been reversed. Is that right? 

Judge CHATIGNY. I believe so. I’m not sure. 

Senator KLOBUCHAR. And have you had other cases where you 

had to deal with competence and make sure that the defendant 

was competent to stand trial? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. Is it something that you are acutely aware 

of when you go into these cases? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. Do you think other judges are concerned 

about that as well? 

Judge CHATIGNY. I do. 

Senator KLOBUCHAR. OK. I was thinking your son is over there. 

Oh, one has left. It’s just too much. I’ll talk to him later. When you 

think about all of these cases you had, the 4,000 cases and all of 

the work you’ve done as a judge, what are you most proud of? It 

might not be one case, but just of the work and your judicial philosophy, what you’ve done as a judge that you would want them to 

know. 

Judge CHATIGNY. Well, thank you for that question. I would say 

that I’m proud of doing a fair and honest job of it day in and day 

out and trying to do my part to maintain public confidence in a system of justice that I revere. 

Senator KLOBUCHAR. OK. Thank you very much. 

I think Senator Coburn is next. 

Senator COBURN. Thank you. I’d like to enter into the record an 

affidavit submitted by Mr. Golub of the Connecticut Criminal Defense Lawyers Association which states that in fact the particular 

issue you agreed to research related to establishing mitigating factors for death penalty cases. 

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

Senator COBURN. The other thing I wanted to raise with you is, 

are you aware of Federal statute 28 U.S.C. 2254(e)? 

Judge CHATIGNY. I believe so. 

145 

Senator COBURN. OK. It states that in Federal habeas corpus 

proceedings, factual determinations of State courts shall be presumed to be correct. 

Judge CHATIGNY. Yes. 

Senator COBURN. And as I understand it, the Connecticut courts 

considered and rejected the allegation that Mr. Ross was not competent when he decided not to pursue further appeals, and that in 

the hearing on the public defender’s habeas corpus petition, however, you said that this finding was ‘‘not binding on me, it can’t be’’. 

Is that accurate? 

Judge CHATIGNY. Yes. 

Senator COBURN. And why is it not binding on you? 

Judge CHATIGNY. Because the procedure that was followed was 

limited and I was presented with evidence raising a substantial 

issue on a matter of life and death. 

Senator COBURN. Thank you. 

I want to go back to one other area and then I’ll finish, and I’ll 

have some questions for the record. 

You gave a speech at the American Constitution Society at the 

University of Connecticut Law School in which you criticized mandatory minimums because ‘‘empathy for individuals in a case inevitably comes into play, as it should’’. Does empathy factor in your 

decisions in a courtroom? 

Judge CHATIGNY. No. 

Senator COBURN. Just in sentencing? 

Judge CHATIGNY. Not in sentencing. 

Senator COBURN. Well, explain that statement to me then. You 

criticized mandatory minimums in that speech, and your following 

statement was, ‘‘empathy for individuals involved in a case inevitably comes into play, as it should’’. 

Judge CHATIGNY. Well, I recall the speech. I don’t recall the comment. 

Senator COBURN. Well, that’s a quote exactly. 

Judge CHATIGNY. Yes. I don’t doubt that I made the comment. I 

believe I was referring to not just the defendant, but also the victims, as well as witnesses when I referred to the individuals, plural, in a case. I think that it is important, in a criminal case at 

sentencing, for a judge to be conscious of the interests of all concerned, but the decision needs to be based on the facts and the law. 

Senator COBURN. In the same speech you said, ‘‘We shouldn’t try 

to drastically reduce departures. Departures are essential. The purpose of the Federal Sentencing Guidelines is to provide consistency 

and uniformity.’’ I agree with that. ‘‘That way the sentences imposed for the same crimes do not vary widely depending on the 

judge the defendant happens to draw on.’’ 

What factors do you consider in deciding whether or not downward departure is appropriate? 

Judge CHATIGNY. I consider the presentation made by the parties, I look at the guidelines with care, and I ask whether, on the 

facts before me, a departure under the guidelines is warranted. I 

recognize—— 

Senator COBURN. You’re not out of line with all the rest of the 

judges, so I don’t want to make that point. I think you’ve followed 

that fairly well. I do have some questions, however, on six child 

146 

pornography prosecutions and one sexual tourism case. You’ve departed on those cases. 

The reason I’m asking the question is, we have a sexual sadism 

case which looks like you’re sympathetic towards, we have Megan’s 

Law, which you’re trying to give a greater constitutional right than 

what the Supreme Court ultimately said was there, and then we 

have this instance of child pornography in which you’re going 

against the Sentencing Guidelines. And I may have as well, but the 

reason for the question is, you put all these together, it creates a 

story that would appear that you’re soft on sexual crimes, sexual 

pornography, and abuse of children. I know you’re not and I’m not 

saying that, but you can understand why those questions should be 

asked. 

Judge CHATIGNY. Yes. Absolutely. I recognize that a narrative 

has developed here that depicts me in this way, and I can assure 

you that child pornography is abhorrent to me, and if I have departed it is only because the facts and the law seem to demand it. 

Senator COBURN. Thank you very much. You’ve been very cooperative. Appreciate it. 

Judge CHATIGNY. Thank you. 

Senator KLOBUCHAR. Senator Sessions. 

Senator SESSIONS. Thank you. I know you’ve handled a lot of 

cases, some 4,000 cases. But can you think of any case in which 

you’ve injected yourself more personally into than this case involving a sexual predator who murdered, admittedly, eight women? 

Judge CHATIGNY. I cannot. I have spent years working on other 

cases. This case took about a week, actually, just a week. I’ve given 

a lot of thought to other cases, and in that way invested myself 

heavily in them. But you’re right, this case is unique. 

Senator SESSIONS. I know this judicial panel ruled that you 

shouldn’t be disciplined, but there are statements read by our distinguished chairman, who’s a good prosecutor and knows the law, 

but this was basically not an affirmation of your conduct in that 

hearing, but a finding, according to your fellow judges, that you 

had not violated the Code of Judicial Conduct. Would that be right? 

Judge CHATIGNY. Yes. 

Senator SESSIONS. I don’t think we should overstate that. 

When you said in your sentence—you said he shouldn’t have 

been sentenced—‘‘shouldn’t have been convicted’’, then you said ‘‘he 

shouldn’t have been sentenced to death because sexual sadism is 

a mitigating factor—clearly, a mitigating factor’’, which is finding 

of major proportions without any record to back it up, I would suggest, but you also said, I think, in that hearing that Ross was ‘‘the 

least culpable, the least of people on death row’’. Did you say that? 

What did you mean by that? 

Judge CHATIGNY. Thank you for the question, Senator, because 

again I recognize that there is a valid basis for concern and it gives 

me an opportunity to explain. I was terribly concerned that an execution was about to occur when the issue of mental competence had 

not been properly evaluated. 

In trying to impress that upon Mr. Paulding, I pointed out to him 

that if you looked at the record in the light most favorable to the 

defendant, all of these things could be said. Why was that relevant? Because they all pertain to his mental illness. His previous 

147 

counsel had said that he was so ill that he was not guilty, that he 

was so ill he was not eligible for the death penalty. Mental illness 

pervaded the case and I was trying to focus attention on that so 

that the lawyer would reassess his position before it was too late. 

Senator SESSIONS. Well, it wasn’t any question about his guilt. 

He had confessed to that and the evidence was overwhelming. So 

a defense lawyer has got to have some defense and insanity is the 

only one left, I suppose. So just because defense counsel pleaded 

guilty and urged that his client was incompetent in a case like this, 

I think he was probably making the only argument or plea that 

could be made. But you gave that great weight, his personal statement that he thought he was—did you take a personal statement 

from the counsel or did you just review the record of the State 

court process by which they pled mental competency? 

Judge CHATIGNY. I reviewed the record, such as it was, in the 

very limited time available to me. And I must say—— 

Senator SESSIONS. How would this make him the ‘‘least culpable 

of people on death row’’? What did you mean by that? 

Judge CHATIGNY. If, as has had been claimed, he was in fact severely mentally ill, and given the clear relevance of his history of 

severe mental illness to the issue of his competence to waive legal 

remedies, I felt that this was a way of addressing the matter with 

Mr. Paulding’s lawyer that might cause him to reassess his position, as I believed he had an ethical obligation to do. 

Again, I regret my choice of words. I did the best I could in the 

circumstances to follow the law and discharge my responsibility. I 

fell short of doing it as I would have wished, in retrospect. I treat 

it as a learning experience. 

Senator SESSIONS. Well, I understand that. 

Let me just ask one more thing. Now, in the first hearing before 

we had this teleconference and this occurred, you found that the 

State should—you stayed the execution and you found that he was 

entitled to another hearing on competency. The Second Circuit 

went along with that. They tried to give—all judges are given some 

deference. But the Supreme Court, by a 5:4 majority, said even giving deference to the trial judge’s decision processes, there was insufficient evidence to order a delay. At that point you didn’t have 

this letter from the prisoner, is that right? 

Judge CHATIGNY. I can’t recall the timing exactly, but that letter 

cropped up while the case was on appeal, as I recall. 

Senator SESSIONS. Well, Madam Chairman, you know these are 

tough hearings and we take a person with thousands of cases. You 

know that story about the law, as the cloud comes over the city and 

the lightening bolt comes out of the sky and says you’re negligent? 

Senator KLOBUCHAR. That’s us. 

Senator SESSIONS. It’s one person and he’s declared negligent, or 

you’re declared to be in error. You have a lot of friends, Judge, and 

you’ve obviously done good work on the bench. I don’t think your 

integrity has been questioned. So we’ll be glad to look at this. 

I have a strong feeling that our Federal courts have forgotten 

their role in these cases. Until the last 50 or so years, cases weren’t 

retried in Federal court. When you got an affirmance by the Supreme Court of a State, it was presumed to be final. 

148 

Now we have Federal judges that think they want to review everything, second-guess State courts, cost thousands of dollars, delay 

executions, and the Supreme Court, in the reversal of your case, I 

think, was a statement: judges, you’ve got to be careful, you’re 

overreaching here. This does not call for another hearing based on 

the record that they went up to. They see them from all over the 

place. 

So my fundamental concern is along that line, not with you in 

any personal way. I appreciate your testimony. I think you’ve been 

patient with us and I think you’ve endeavored to be honest and fair 

in answering the questions. 

Thank you very much. 

Judge CHATIGNY. Thank you. 

Senator KLOBUCHAR. I appreciate your closing comments there, 

Senator Sessions. Again, Judge Chatigny, I mean, despite that people may have disagreements on what the role of a Federal court 

judge should be here, but do you feel, based on the Constitution, 

based on cases handled by Circuit Courts in the past, that you had 

a duty to look at that competency issue and make sure that this 

defendant, however horrific he was, was competent before an execution, a decision before he could waive his rights and be executed? 

Judge CHATIGNY. Yes. 

Senator KLOBUCHAR. All right. 

Senator SESSIONS. Madam Chairman, I’ll offer Senator Grassley’s 

statement for the record. 

Senator KLOBUCHAR. OK. 

Senator SESSIONS. He wished to be here and expressed his interest in the issues of the case, but had to be at another matter. 

Senator KLOBUCHAR. Well, thank you very much, Senator Sessions. We’ll include that. 

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

Senator KLOBUCHAR. I also just want to include the—you know, 

we’ve been—I loved Senator Sessions’s reference to the lightening 

bolt coming down on one case. But just to clarify here, put on the 

record, that in more than 15 years as a Federal judge, the government has never appealed a single one of your sentences. As Senator 

Coburn noted, your downward departure rate was completely in 

the range of other judges, and he acknowledged that, even though 

he touched on a few cases with which he disagreed. 

And as much as he may have mentioned cases where you had 

downward departed again in the range with other judges, you’ve 

also had some cases where you’ve given out maximum sentences. 

In 2001, a cocaine dealer, 20 years, maximum sentence allowed by 

law. There you had the dealer’s defense attorney publicly attacking 

you for imposing such a harsh sentence. Those were not the cases 

were brought up today. They were not brought up, but there are 

cases like that and we acknowledge that as we look at your record 

of 4,000 cases. 

So I just want to thank you for appearing before us. As the other 

Senators have noted, you showed much patience, as did your family. Your other son did return, but now he’s gone, and they have 

been standing by your side at every moment. I can tell that, and 

149 

they care very much about you. We look forward to working with 

you in the weeks to come here. 

Thank you very much. 

Judge CHATIGNY. Thank you so much. Thank you. 

Senator KLOBUCHAR. All right. We’ll take 1 minute and then 

we’ll have our next nominee up. 

OK. Are we ready to go, everyone? Thank you. OK. 

Mr. Gibney, will you please stand to be sworn? You are standing. 

[Whereupon, the witness was duly sworn.] 

Senator KLOBUCHAR. Thank you. 

Now the numbers are a little more even here, Mr. Gibney. We 

won’t be three to one, and I don’t even think we’ll need that here. 

But I want to thank you for being here. You certainly had a nice 

testament to you from Senator Webb and Senator Warner, both of 

whom are very well-respected in this body. 

Do you have your family members or friends you’d like to introduce? 

Mr. GIBNEY. I do, your Honor—Senator. Thank you, first, Madam 

Chairman, for the opportunity, and Mr. Sessions for the opportunity, to appear before you. I’d also like to thank Senators Warner 

and Webb for their kind remarks, and of course President Obama 

for his kindness in nominating me. 

With me today are my son, John Gibney, III, my future daughter-in-law, Jesse Telhorster, and my assistant, Kelly Arnett. I’m 

very proud to have them with me today as well. 

Senator KLOBUCHAR. Well, thank you very much. 

I think I’ll start out with the question that I asked of Judge 

Chatigny. That is, as someone who has spent many years in private practice with a vast array of cases, how do you characterize 

what you believe will be your judicial philosophy? How are you 

going to look at cases having made that transition from private attorney to being a judge, from being an advocate to being someone 

who is a trier of the facts? 

Mr. GIBNEY. My role as a judge and my judicial philosophy, if I’m 

fortunate enough to be confirmed, would be that I believe that a 

judge’s role—a district court judge’s role is to find the law from examining the text of the Constitution, the text of statutes, the relevant Supreme Court decisions, and the relevant decisions of the 

Fourth Circuit Court of Appeals, to find the facts exclusively from 

the evidence that comes before me, and to apply the law to the 

facts. 

Senator KLOBUCHAR. And listening to Judge Chatigny talk about 

what he’d learned in his 16 years as a judge, what do you think 

is the most important quality a Federal judge should have? 

Mr. GIBNEY. I think the most important quality any kind of 

judge should have, Federal judge included, is humility. I think that 

humility—and by humility I don’t mean the quality of being abased 

or meek or put down in some way, but rather the quality of knowing your place in the world, knowing that it’s not the center of the 

world, knowing that everybody in that courtroom is just as important as you are, that they have their own concerns that are important to them, and that each one of them deserves the same respect 

that you would give to a fellow member of the bench. 

Senator KLOBUCHAR. Very good. 

150 

You worked as an Assistant Attorney General in the Virginia Attorney General’s Office. Can you tell us about your time in that office and what skills you learned that will be helpful? 

Mr. GIBNEY. My time in that office was—thank you for asking 

that question, Senator. My time in that office was—was very rewarding and it was there that I honed my skills that have allowed 

me to, in my legal career, represent a lot of local governments. I 

think that what I learned best in the Attorney General’s Office was 

the need for hard work at all times and the need to—and of course, 

the need to have the—the delight I took in judges who treated all 

the litigants fairly. 

Senator KLOBUCHAR. Well, you don’t have these 4,000 decisions 

that we have to examine. 

Mr. GIBNEY. I don’t. 

Senator KLOBUCHAR. I’m sure you’re very disappointed about 

that. 

[Laughter.] 

Senator KLOBUCHAR. But you come from the private practice. 

Generally, Federal judges have great discretion to decide whether 

to sit on a case when possible conflicts of interest arise. It’s therefore important that judicial nominees have a well thought out view 

of when recusal is appropriate. 

Former Chief Justice Rehnquist made clear on many occasions 

that he understood that the standard of recusal was not subjective, 

but rather objective. It was whether there might be any appearance 

of impropriety. How do you interpret the recusal standard for Federal judges, and in what types of cases do you plan to recuse yourself? I don’t need specific examples of clients or cases, but just a 

statement that you will follow the applicable law. 

Mr. GIBNEY. Thank you, Senator. I will, of course, follow the applicable law and all the precedents in that area and will examine 

each case closely to see if there’s any potential conflict that needs 

to be addressed by me, or even if I think there’s no possibility of 

it, to point it out to counsel if there’s any remote way that anyone 

could think there was a possible conflict. 

Senator KLOBUCHAR. Just one last question. As a lawyer who’s 

practiced for so long and is well-known in your community, what 

do you think some of the greater challenges are now that are facing 

the Federal judiciary? 

Mr. GIBNEY. I think that the—thanks for asking that question. 

I think that the greatest challenge facing the Federal judiciary at 

this time is probably the difference in the quality of defense among 

various defendants. Of course, it’s not the judge’s job to go in and 

try the case for the lawyers, but as we’ve seen in a number of highprofile cases, wealthy people seem to be able to get a different caliber of representation than the ordinary folk, and I think that is 

a very difficult question and poses a dilemma to our system. 

Senator KLOBUCHAR. Thank you very much. 

Senator Sessions. 

Senator SESSIONS. Well, Mr. Gibney, you have a good record of 

trying a lot of cases. I think it indicated some 500 or more trials, 

90 percent of which you were the sole attorney on. 

Mr. GIBNEY. That’s correct. 

151 

Senator SESSIONS. Which is indicative of a deep experience with 

the system and should put you in a position to be able to handle 

the decision-making processes that come before a judge, recognizing 

maybe when a lawyer really does need a continuance and maybe 

they don’t, or when they’ve made an honest mess-up in their preparation, or whether they’re consistently unprepared and need to be 

disciplined, or whatever. 

Do you feel that the experience you have will help you make 

those kind of decisions that make the system work a little better? 

Mr. GIBNEY. Senator, yes. Thank you very much for that question. I do feel that way. I’ve been down in the trenches. I’ve been 

yelled at by judges, I’ve lost a lot of cases, I’ve won a lot of cases. 

I think I understand the difficulties that lawyers face in real life 

in preparing for court and coming to court and representing clients, 

and representing difficult clients. 

Senator SESSIONS. And do you believe that a judge, when they 

put on the robe and take the oath to serve under the Constitution 

and the laws of the United States, that that means that you must 

put aside your personal views, policy concepts, political or ideological values and objectively find the facts and apply them fairly to 

the law as written? 

Mr. GIBNEY. Thank you, Senator Sessions. Absolutely, I do. 

Senator SESSIONS. Let me ask you this question. In March of 

2000, you told the Greensboro News & Record you did not favor 

mandatory dispute resolution programs, even though the law supports them. You stated, ‘‘I think they are grossly unfair to the 

worker’’ because employers in non-union settings have leverage 

over an employee, I think in essence you said. 

The arbitrators are not representative of the peer group of those 

who would make up a jury. I understand that you could make 

those points. They’re not matters that ought to be—you shouldn’t 

be criticized for expressing those views. But my question is, with 

regard to mandatory resolution programs, even though you may 

not support them, will you require them when they are required 

pursuant to contract and case law and statutory authority? 

Mr. GIBNEY. Yes, I will, Senator. 

Senator SESSIONS. Well, in criminal cases, a lot of these powerful 

defendants are outgunning the prosecutors, so maybe—I don’t 

know about it in civil cases, but a lot of individual plaintiffs had 

you for their attorney. I figure you could stand up against any of 

them. 

Mr. GIBNEY. Well, I’ve tried to do my best throughout my career 

when the odds are long and when the odds are short. 

Senator SESSIONS. Well, it is a great legal system we have. 

Mr. GIBNEY. It is, and I’m very honored. 

Senator SESSIONS. Individual attorney, individual clients can go 

to someone like you who has great skill and probably can contend 

with any lawyer in the country and sue the biggest, fattest corporation, and every now and then get a $100 million verdict, whether 

they deserve it or not, sometimes. So I think the system works 

pretty well. 

I think it is appropriate for a judge in a case to not—to not allow 

a poorer client to be taken advantage of. How would you evaluate 

that process about what you might do if an outgunned young lawVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00161 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
152 

yer is maybe being taken advantage of a bit? What do you think 

the responsibility of a judge is when you see something like that 

occur in your courtroom? 

Mr. GIBNEY. Senator, thanks for that question. That’s a very difficult question. When do you jump in when someone is ineffectively 

assisting a client in a criminal matter. 

Senator SESSIONS. Or civil. 

Mr. GIBNEY. Well, civil is a little different. 

Senator SESSIONS. It’s a little different. But—— 

Mr. GIBNEY. But I would try, to the best of my ability, to make 

sure that the ground rules are fair for everybody and that both 

lawyers have an equal opportunity to put on their case. If I sensed 

that in a criminal case we were reaching a stage where there was 

ineffective assistance of counsel as defined by the relevant Supreme 

Court decisions, which is a pretty stiff standard, in that case I 

would probably step in in some way—and I’m not sure how at this 

time—and try to make sure that whatever process we went 

through was fair to the defendant. 

Senator SESSIONS. Well, you’re right, it’s not an easy thing. I’ve 

seen judges avoid error sometimes in an appropriate way without, 

I think, being unfair to any party. But thank you so much. I’m impressed with your experience. I think the kind of experience you 

bring to the bench is valuable and it should stand you in good 

stead. 

Mr. GIBNEY. Thank you, Senator Sessions. I’ve been very fortunate to be a lawyer as long as I have, in what you denoted is a 

great profession and a great system. 

Senator KLOBUCHAR. Well, thank you very much, Senator Sessions. Thank you, Mr. Gibney. Now, we could just hang out and see 

if our colleagues return to ask you questions or we could adjourn 

the hearing. 

So I want to let everyone know that the record will remain open 

for 1 week, and we wish you good luck, Mr. Gibney. We’re all impressed by your credentials. I don’t want to speak for everyone, but 

we’re impressed—I’m impressed by your credentials, as well as 

Judge Chatigny’s. I want to thank you for this civil hearing and 

that we’re able to complete it, and having your family here I’m sure 

is special as well. 

Thank you. The hearing is adjourned. 

Mr. GIBNEY. Thank you, Senator. 

[Whereupon, at 4:30 p.m. the Committee was adjourned.] 

[The biographical information follows.] 

[Questions and answers and submissions for the record fellow.] 

153 


66693.108
154 


66693.109
155 


66693.110
156 


66693.111
157 


66693.112
158 


66693.113
159 


66693.114
160 


66693.115
161 


66693.116
162 


66693.117
163 


66693.118
164 


66693.119
165 


66693.120
166 


66693.121
167 


66693.122
168 


66693.123
169 


66693.124
170 


66693.125
171 


66693.126
172 


66693.127
173 


66693.128
174 


66693.129
175 


66693.130
176 


66693.131
177 


66693.132
178 


66693.133
179 


66693.134
180 


66693.135
181 


66693.136
182 


66693.137
183 


66693.138
184 


66693.139
185 


66693.140
186 


66693.141
187 


66693.142
188 


66693.143
189 


66693.144
190 


66693.145
191 


66693.146
192 


66693.147
193 


66693.148
194 


66693.149
195 


66693.150
196 


66693.151
197 


66693.152
198 


66693.153
199 


66693.154
200 


66693.155
201 


66693.156
202 


66693.157
203 


66693.158
204 


66693.159
205 


66693.160
206 


66693.161
207 


66693.162
208 


66693.163
209 


66693.164
210 


66693.165
211 


66693.166
212 


66693.167
213 


66693.168
214 


66693.169
215 


66693.170
216 


66693.171
217 


66693.172
218 


66693.173
219 


66693.174
220 


66693.175
221 


66693.176
222 


66693.177
223 


66693.178
224 


66693.179
225 


66693.180
226 


66693.181
227 


66693.182
228 


66693.183
229 


66693.184
230 


66693.185
231 


66693.186
232 


66693.187
233 


66693.188
234 


66693.189
235 


66693.190
236 


66693.191
237 


66693.192
238 


66693.193
239 


66693.194
240 


66693.195
241 


66693.196
242 


66693.197
243 


66693.198
244 


66693.199
245 


66693.200
246 


66693.201
247 


66693.202
248 


66693.203
249 


66693.204
250 


66693.205
251 


66693.206
252 


66693.207
253 


66693.208
254 


66693.209
255 


66693.210
256 


66693.211
257 


66693.212
258 


66693.213
259 


66693.214
260 


66693.215
261 


66693.216
262 


66693.217
263 


66693.218
264 


66693.219
265 


66693.220
266 


66693.221
267 


66693.222
268 


66693.223
269 


66693.224
270 


66693.225
271 


66693.226
272 


66693.227
273 


66693.228
274 


66693.229
275 


66693.230
276 


66693.231
277 


66693.232
278 


66693.233
279 


66693.234
280 


66693.235
281 


66693.236
282 


66693.237
283 


66693.238
284 


66693.239
285 


66693.240
286 


66693.241
287 


66693.242
288 


66693.243
289 


66693.244
290 


66693.245
291 


66693.246
292 


66693.247
293 


66693.248
294 


66693.249
295 


66693.250
296 


66693.251
297 


66693.252
298 


66693.253
299 


66693.254
300 


66693.255
301 


66693.256
302 


66693.257
303 


66693.258
304 


66693.259
305 


66693.260
306 


66693.261
307 


66693.262
308 


66693.263
309 


66693.264
310 


66693.265
311 


66693.266
312 


66693.267
313 


66693.268
314 


66693.269
315 


66693.270
316 


66693.271
317 


66693.272
318 


66693.273
319 


66693.274
320 


66693.275
321 


66693.276
322 


66693.277
323 


66693.278
324 


66693.279
325 


66693.280
326 


66693.281
327 


66693.282
328 


66693.283
329 


66693.284
330 


66693.285
331 


66693.286
332 


66693.287
333 


66693.288
334 


66693.289
335 


66693.290
336 


66693.291
337 


66693.292
338 


66693.293
339 


66693.294
340 


66693.295
341 


66693.296
342 


66693.297
343 


66693.298
344 


66693.299
345 


66693.300
346 


66693.301
347 


66693.302
348 


66693.303
349 


66693.304
350 


66693.305
351 


66693.306
352 


66693.307
353 


66693.308
354 


66693.309
355 


66693.310
356 


66693.311
357 


66693.312
358 


66693.313
359 


66693.314
360 


66693.315
361 


66693.316
362 


66693.317
363 


66693.318
364 


66693.319
365 


66693.320
366 


66693.321
367 


66693.322
368 


66693.323
369 


66693.324
370 


66693.325
371 


66693.326
372 


66693.327
373 


66693.328
374 


66693.329
375 


66693.330
376 


66693.331
377 


66693.332
378 


66693.333
379 


66693.334
380 


66693.335
381 


66693.336
382 


66693.337
383 


66693.338
384 


66693.339
385 


66693.340
386 


66693.341
387 


66693.342
388 


66693.343
389 


66693.344
390 


66693.345
391 


66693.346
392 


66693.347
393 


66693.348
394 


66693.349
395 


66693.350
396 


66693.351
397 


66693.352
398 


66693.353
399 


66693.354
400 


66693.355
401 


66693.356
402 


66693.357
403 


66693.358
404 


66693.359
405 


66693.360
406 


66693.361
407 


66693.362
408 


66693.363
409 


66693.364
410 


66693.365
411 


66693.366
412 


66693.367
413 


66693.368
414 


66693.369
415 


66693.370
416 


66693.371
417 


66693.372
418 


66693.373
419 


66693.374
420 


66693.375
421 


66693.376
422 


66693.377
423 


66693.378
424 


66693.379
425 


66693.380
426 


66693.381
427 


66693.382
428 


66693.383
429 


66693.384
430 


66693.385
431 


66693.386
432 


66693.387
433 


66693.388
434 


66693.389
435 


66693.390
436 


66693.391
437 


66693.392
438 


66693.393
439 


66693.394
440 


66693.395
441 


66693.396
442 


66693.397
443 


66693.398
444 


66693.399
445 


66693.400
446 


66693.401
(447) 

NOMINATIONS OF SCOTT M. MATHESON, JR., 

NOMINEE TO BE UNITED STATES CIRCUIT 

JUDGE FOR THE TENTH CIRCUIT; JOHN J. 

MCCONNELL, JR., NOMINEE TO BE UNITED 

STATES DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND; JAMES K. 

BREDAR, NOMINEE TO BE UNITED STATES 

DISTRICT JUDGE FOR THE DISTRICT OF 

MARYLAND; ELLEN LIPTON HOLLANDER, 

NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE DISTRICT OF MARYLAND; 

AND, SUSAN RICHARD NELSON, NOMINEE 

TO BE UNITED STATES DISTRICT JUDGE 

FOR THE DISTRICT OF MINNESOTA 

THURSDAY, MAY 13, 2010 

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

The Committee met, pursuant to notice, at 2:30 p.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senators Feingold, Whitehouse, Klobuchar, Franken, 

Sessions, Hatch, and Kyl. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The Judiciary Committee will come to order. I 

am going to acknowledge in the beginning that we may get interrupted with a vote on the floor of the U.S. Senate. So we are going 

to try to expedite this hearing as quickly as we can, from the point 

of view that we have a lot of our Senators that want to be heard 

in introducing their nominees. 

Today, the Committee will consider five judicial nominations. I 

want to thank Senator Leahy for giving me the opportunity to 

chair this hearing. 

Panel one will consist of Scott Matheson of Utah to be U.S. Circuit Judge for the Tenth Circuit. Panel two consists of four district 

court nominees; John McConnell of Rhode Island, Susan Nelson of 

Minnesota, Ellen Hollander of Maryland, and James Bredar of 

Maryland. 

448 

Let me take this opportunity to particularly talk about, with 

pride, the two Maryland nominees that are before us. I want to 

commend and congratulate Senator Mikulski for the process that 

she initiated in the State of Maryland for making recommendations 

to the President on our nominees to the bench. 

I believe the process that she established brought forward the 

best possible candidates for judicial appointment, and I think the 

Committee is going to be very pleased by the two that are before 

us today. 

I look forward to Senator Mikulski formally introducing our two 

nominees, Judges Hollander and Bredar. 

Judge Ellen Hollander currently serves as judge on the Maryland 

Court of Special Appeals, which is our second highest court, that 

hears mandatory appeals from the state courts of Maryland. She 

has served as a judge on that court since 1994. She has broad experience on the bench, and she would be replacing Judge Andre 

Davis, who was recently appointed to the Court of Appeals for the 

Fouth Circuit. 

I was pleased to attend last month’s investiture with Senator Mikulski for Judge Davis, and we now are bringing forward Judge 

Hollander for that position. 

She has been an active member of the bar since 1974 and has 

received the highest possible rating from the American Bar Association. 

I also want to comment that she is extremely active in our community, served on Goucher Board. I served on Goucher Board, had 

a chance to personally observe her activism in our community. She 

is very active in the Jewish charity issues, and will make a great 

addition, I believe, to the Maryland District Court. 

Judge Jim Bredar comes to this Committee with a wide range of 

courtroom and litigation experience. He served as a Federal prosecutor in Colorado for 4 years before coming to Maryland and serving as a Federal public defender for 6 years. And since 1998, he 

has served as a U.S. magistrate judge for the U.S. District Court 

for the District of Maryland. So he is very familiar with the workload of our Federal bench. 

He would be replacing Judge J. Frederick Motz from Baltimore. 

Judge Motz has taken senior status. Let me thank Judge Motz for 

his 15 years of service on the bench, particularly as our chief judge 

from 1994 to 2001. I would also like to mention that Judge Motz’s 

wife continues to serve with great distinction on the Fourth Circuit, 

and it is fitting, indeed, that Judge Motz was the official that swore 

in Judge Bredar as a U.S. magistrate judge in 1998. 

Judge Bredar also comes with a great deal of experience in helping our community and has been well recognized for that, and we 

very much, again, appreciate his background and willingness to 

continue to serve. 

I need to point out, if you look at his background, I am particularly impressed that he worked as a park ranger and ski patroller 

in Colorado. That makes me very jealous. 

Let me also mention the three nominees that are before us that 

will be introduced formally by their home state Senators. Scott 

Matheson of Utah comes to this Committee with experience of 

being a prosecutor, a law firm attorney, professor of law, and dean 

449 

of a law school. And he comes from a very distinguished family of 

public servants, and I have had the opportunity of serving with his 

brother, Jim, who has been a member of the House of Representatives. 

John McConnell of Rhode Island is a distinguished lawyer with 

more than 25 years of private practice in Rhode Island. He has focused on complex litigation and comes to this Committee with a 

broad background for the district court. 

Our final nominee is Susan Nelson of Minnesota. Judge Nelson 

has served as a U.S. magistrate judge for the District of Minnesota 

for the past 10 years. As a magistrate judge, she has handled hundreds of cases and is very well familiar with the workload of our 

district court. 

So I want to welcome all five of our nominees. I want to thank 

them and their families, because I know this is a team effort, for 

their willingness to, in most cases, continue to serve in a public position of trust on behalf of the people of our country. 

At this point, I am going to turn to the members of the Senate 

to introduce their nominees, starting with Senator Hatch, who has 

been a very active member of this Committee, a leader of this Committee, and a great friend of all. 

Senator Hatch. 

PRESENTATION OF SCOTT M. MATHESON, JR., NOMINEE TO BE 

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

ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman, and thank you 

for your kind remarks. I am quite thrilled here today to be able to 

present our nominee for the Tenth Circuit Court of Appeals, Scott 

Matheson. 

Scott Matheson is nominated by President Obama to the U.S. 

Court of Appeals for the Tenth Circuit. He continues his family’s 

dedicated service to our State of Utah and its educational institutions. His father was Governor of Utah, one of the great Governors 

that we had, and had had great experience in his prior work. 

Scott brings to this nomination both personal qualities of character and integrity and a variety of relevant experiences. He has 

degrees from Stanford, Oxford, and Yale. 

His three decades of legal experience includes private practice 

with the distinguished law firm of Williams and Conley here in 

Washington; public service as a deputy county attorney, and as 

U.S. Attorney for Utah, and long-time experience as a very 

thoughtful scholar. 

He has been on the faculty of the S.J. Quinney College of Law 

at the University of Utah since 1985, where he is currently the 

Hugh B. Brown Presidential Endowed Chair in law, and he holds 

that chair. 

Over the years, he has taught civil procedure, constitutional law, 

evidence, First Amendment, and intellectual property. In addition 

to being in the classroom, Scott also serves the law school as an 

associate dean for academic affairs and for 8 years as dean of the 

law school. 

He also served on the advisory and governing boards of the 

Hinkley Institute of Politics at the University of Utah, and the seVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00459 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
450 

lection committees for different fellowships and prizes granted by 

the university. 

He also served for 7 years on the Committee overseeing the Tanner Lecture on Human Values, one of several nationally and internationally renowned forums sponsored by the Tanner Humanity 

Centers at the University of Utah. 

The Tanner Lectures are given several times a year at renowned 

institutions, including Oxford and Cambridge, Harvard, Yale and 

Princeton, and the Universities of Michigan, California and, most 

importantly, of course, Utah. 

The range of lecturers is breathtaking, including Richard 

Dawkins, Marion Wright-Edelman, and Solomon Ruschke, to 

Charles Freid, Judge Richard Posner, and Supreme Court Justices 

Stephen Breyer and, one of all of our favorites, I am sure, Anthony 

Scalia; and I have to say Breyer is certainly in that category, as 

well. Utahns are all very proud of this fine institution. 

Scott has received a number of awards for his service in this and 

other capacities, including the faculty achievement and services 

award from the university and awards for his service to the Federal Bar Association and the Utah Minority Bar Association. 

Scott is not the first of President Obama’s judicial nominees to 

come from the world of academia. Scott, however, has as greater 

variety of experience, including the real world practice of law, especially his service as a Federal prosecutor. He is a man of integrity, 

ability and dedication, and I personally know him very, very well 

and have nothing but the highest opinion of him. He is a person 

who will distinguish himself on the court, as he has in every other 

endeavor of his life. 

By the way, I am happy to see his wonderful mother here today. 

It was not long ago she went through some trying times and we 

were all praying for her. She is a wonderful leader in Utah, one 

of the great women that we have out in our state; and, also, his 

beautiful wife and other members of the family. 

Above all, I am really happy to have his brother here. Jim 

Matheson has been a Congressman in the House of Representatives for a decade, and I think he is one of the finest people I know 

and he is just a good person and a hard worker and a very good 

Member of Congress. 

So I am pleased to introduce this man of integrity and ability 

and dedication as a nominee to the Tenth Circuit Court of Appeals. 

Mr. Chairman, I want to thank you for your kind courtesy to me 

and I naturally expect kind courtesies to all these nominees here 

today, and I know you are the type that will make sure that happens. 

Thanks so much. 

Senator CARDIN. Senator Hatch, thank you. You are always very 

cordial in your introductions, and I do acknowledge Congressman 

Matheson, who is here, who I had the opportunity to serve with in 

the House. 

We will now turn to Senator Mikulski. 

451 

PRESENTATION OF ELLEN LIPTON HOLLANDER, NOMINEE TO 

BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND 

AND JAMES K. BREDAR, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE DISTRICT OF MARYLAND BY HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE STATE OF 

MARYLAND 

Senator MIKULSKI. Thank you very much, Mr. Acting Chairman. 

It is with a great deal of pride and enthusiasm that I present, 

along with you, two outstanding Marylanders to be nominated to 

the District Court of Maryland. I am proud to be here today to introduce Judge Ellen Hollander and Judge James Bredar. 

It is a great honor that both you and I recommended these two 

outstanding people to President Obama and we thank him for their 

nomination. 

I also wish to thank Senators Leahy and Sessions for agreeing 

to such a prompt hearing on this matter. 

Mr. Chairman, as you know, I take my advice and consent responsibilities very seriously and the opportunity to recommend to 

a President of the United States a nominee for the Federal bench 

is indeed a great honor, but it is a great responsibility. 

My criteria are that any nominee must have absolute integrity, 

judicial competence and temperament, a commitment to core constitutional principles, and a history of civic engagement in our own 

State of Maryland. 

I am happy to report to the Committee that Judges Hollander 

and Bredar meet these standards and they meet them in an extraordinary way. 

I want to also bring to the Committee’s attention that it is not 

just my opinion or even your opinion, Mr. Chair, but the opinion 

of the American Bar Association. The ABA gave them a unanimous—both of them—a unanimous well qualified recommendation. 

One looks at their background and sees that they bring unquestionable competence and preparedness and a deep understanding of 

how ordinary Americans live. They bring seasoning in the law and 

sensibility in the application of the law. 

Judge Ellen Hollander, who was elevated in November—Judge 

Hollander has the experience that makes her a top-notch nominee. 

She has served Maryland state courts at both the trial and the appellate level for more than 20 years. 

She has served in a leadership role on the Maryland Court of Appeals’ Rules Committee and as a chair of the Appellate Rules Committee. 

Prior to taking the bench, Judge Hollander practiced law in both 

the public and private sectors, including 4 years as a prosecutor. 

She is a graduate of Georgetown Law, where she was the editor of 

the American Criminal Law Review. She has received her Bachelor 

of Arts from Goucher. 

I know both of you are on the Goucher board. I have an honorary 

degree from Goucher. I do not know if that counts, but I will tell 

you, what Hollander does—Judge Hollander—really does count. 

Judge Hollander has received numerous community awards. I 

will not list them, but what I want to bring to the Committee, it 

is not the number of awards, it is the number of things that she 

has done to get the awards; a strong advocate of women and chilVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00461 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
452 

dren; on the board of the Jewish Council, Community Relations 

Council; making sure that we do many things to advocate for the 

poor, the disenfranchised, and the marginalized. She is, again, a 

very top nominee. 

Judge Bredar, if confirmed, will fill the seat of Judge Motz, as 

you have indicated. In him, we have a highly qualified nominee, 

who has served the justice system from both sides, a defense attorney and a prosecutor. 

But he brings some unique background in the sense that he was 

a Federal public defender for 6 years, where he revitalized and expanded the office; and, before that, he was a prosecutor. He would 

be the first Federal public defender to serve on the Maryland Federal bench. 

He also brings 12 years of judicial experience as a Federal magistrate, and Chief Justice Roberts recently appointed him to the 

Committee on Federal-State Jurisdiction. 

He, too, is a graduate of Georgetown Law Center. He has got a 

bachelor’s degree from Harvard. I am sure he will get an honorary 

degree from Goucher, as well. 

[Laughter.] 

Senator MIKULSKI. And he has himself been active in the community, whether it is volunteering at children’s schools, being at 

PTA, he has been a soccer dad, and he has been an advocate for 

keeping the courthouse door open for everyone. 

Again, both bring the characteristics that one expects in a judge, 

but I think, again, I will say they are so well seasoned, but they 

are so sensible in the application of the law, and that is what we 

are looking for in judges. 

So I hope that the Committee unanimously reports them out, and 

I hope that we can confirm them expeditiously. 

Thank you very much. 

Senator CARDIN. Senator Mikulski, thank you very much. As the 

Senator from Maryland, I just want to concur in Senator Mikulski’s 

comments about Judge Hollander and Judge Bredar. We are very 

proud to submit our recommendations to the President. 

We think we have brought forward two of the most talented people we have in our state and the Nation to serve on our Federal 

bench and we are very proud that they are willing to step forward 

in public service. 

With that, I want to recognize Senator Jack Reed. 

PRESENTATION OF JOHN J. MCCONNELL, JR., NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND 

BY HON. JACK REED, A U.S. SENATOR FROM THE STATE OF 

RHODE ISLAND 

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

Hatch and my colleagues on the Committee. I also want to thank 

Senator Leahy and Senator Sessions for their prompt attention to 

this nomination by the President of Jack McConnell to be Rhode 

Island’s next U.S. District Court Judge. 

Senator Whitehouse and I are extraordinarily proud that the 

President accepted our recommendation. And this is a proud day 

for Jack’s family, also, and his colleagues. More than 20 of them 

are here today. 

453 

Rhode Island is vastly underpopulated, but it is worth the effort. 

[Laughter.] 

Senator REED. They all have reason to be proud. Jack’s mother, 

Jane, is here; his father-in-law and mother-in-law, Justice Donald 

and Ursula Shea. I might say that Justice Shea is a retired member of our Rhode Island Supreme Court, one of the most distinguished members of our Rhode Island Supreme Court, whose example of integrity and intelligence continues to resonate through the 

legal chambers of Rhode Island. 

Jack himself matches that sense of integrity and intellectual excellence. He is extraordinarily qualified as an attorney. He is perhaps one of the handful of attorneys in Rhode Island who have 

ranked among the very best in the United States. 

There is no doubt, in my mind, about his ability to be a district 

judge. He has exceptional skills, impartiality, and professionalism, 

and I fully expect Jack to be an outstanding jurist. 

Indeed, a broad array of Rhode Islanders, clergy, business people, 

Republicans, Democrats, corporate attorneys, defense attorneys, 

have come forth voluntarily and recognized and expressed their 

support for Jack. 

They support him because he is an outstanding attorney. He has 

represented a variety of clients. He has done so with great, great 

legal skill and great integrity, and he will do that as a district 

court judge, represent the people of the United States with skill 

and integrity. 

You can read his resume and find out all the cases and all the 

professional data, but I want to talk about Jack McConnell as a 

person. He is someone who is deeply committed to helping his community, not simply by donating and attending social events and 

charitable events. 

You will find Jack in the community. He, every Monday, serves 

breakfast at Amos House, our soup kitchen, our biggest soup kitchen. We have something in common. I started out as the pro bono 

lawyer for Amos House about 25 years ago. 

It is not attention-getting. It is just innately decent and caring 

of his community, and that is Jack. 

He has learned his lessons from his father and mother. His father was a Marine in Korea, came home, built a strong family, and 

gave Jack, along with his mother, Jane, the inspiration to work 

hard, but not simply for his own ambition, but for a better community. 

He has done this. He has juggled his family life. He has made 

time to be a big brother for about a decade to a young man in the 

poorer part of our capital city of Providence. He has taught First 

Communion classes. He has been a volunteer at the homeless legal 

clinics in Providence and Pawtucket. 

He has served as a key member of the board of Crossroads, 

which is our largest homeless organization in the state. He has 

been a chair of the Providence Tourism Council. He has worked 

tirelessly not only as an attorney, but as a citizen. And these are 

the type of contributions that give him the perspective to sit on a 

court, to be a judge who understands the people who are before 

them; not just the wealthy, but every person who stands before 

him. 

454 

His innate sense of fairness, his innate sense of decency will 

make him a superb judge, and I am very enthusiastic in my support. 

I join my colleague, Senator Whitehouse. I thank him for his excellent work here and his collaboration in this nomination. Senator 

Whitehouse, thank you. 

Today, we are here proudly to ask this Committee for its consideration of a great lawyer and a great man. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Reed. And, Senator Reed, 

you are certainly excused to leave. 

The remaining introductions will be done from the dais, since 

they are members of the Judiciary Committee, starting with Senator Whitehouse. 

PRESENTATION OF JOHN J. McCONNELL, JR., NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND 

BY HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM 

THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Thank you, Mr. Chairman. I am very 

proud to join my senior Senator, Jack Reed, in introducing Jack 

McConnell to the Committee. 

As was the case with Judge Rogeiree Thompson, who was confirmed in March to a seat on the First Circuit Court of Appeals, 

it was a great pleasure for me to participate in Senator Reed’s 

process to identify the best candidate for a judgeship on the U.S. 

District Court for the District of Rhode Island. 

I was proud to join him in recommending Jack McConnell to 

President Obama, and thank the President for recognizing in Jack 

McConnell the qualities that will make him a tremendous addition 

to the Federal bench in our state. 

Jack McConnell’s life has been a classic American story of success through hard work. As Senator Reed mentioned, Jack was 

born in Providence, grew up in Warwick, Rhode Island, graduated 

from Brown University, and, after college, earned his J.D. from 

Case Western Reserve University School of Law, before returning 

to Rhode Island in 1983 to clerk for Associate Justice Donald F. 

Shea of the Supreme Court of Rhode Island. 

This clerkship was more eventful than Jack expected, as he later 

married Justice Shea’s daughter in 1986. Jack has since become a 

leading light in Rhode Island’s bar and a leader within our community. He has generously supported and served on countless boards 

of educational, charitable, and artistic institutions across our state, 

including Save the Bay, the Genesis Center, the Providence Tourism Council, Crossroads Rhode Island, the Trinity Repertory Theater, and Roger Williams University. Our state has benefited greatly from that public service. 

Jack now is nominated to undertake another type of service for 

which he is impeccably qualified. There is no question that he has 

the legal expertise and experience necessary for service as a district court judge. 

He has tried scores of cases nationwide, an ideal qualification for 

a district court nominee. He understands motion practice. He has 

455 

experience in criminal and civil cases, and he quickly grasps the 

most complex and novel legal issues. 

I know Jack’s qualifications are first rate, because I worked with 

him when I served the people of Rhode Island as their attorney 

general. At the time, Rhode Island faced a public health crisis from 

lead poisoning. Providence was described by our lead newspaper as 

the ‘‘lead paint capital of America.’’ This was attributed to high levels of lead in paint in older homes. 

As attorney general, I sought relief from lead paint manufacturers to help Rhode Island families whose children bore the brunt of 

this scourge. 

When I worked with Jack in a case where I was deeply involved 

as leader of the litigation team, I saw a capable attorney of the 

highest integrity and character, who understands and follows the 

highest principles of our legal profession. 

Jack also has been active for years in Rhode Island democratic 

politics. Over the years, he has been with me and he has been 

against me. He understands now that those days of politics are 

over. He understands very closely, from his father-in-law’s experience, also a Democrat-turned-judge, how important it is that he put 

aside those things as he enters this higher calling. 

It is this principled understanding of the role of our courts that 

particularly recommends Jack to the Committee’s consideration 

and that has called forth such extensive and remarkable support 

from the Republican community in Rhode Island. 

I have no doubt that Jack will be an impartial judge and that 

he will uphold the law and apply it conscientiously to the facts of 

each case. 

The touchstone of our legal system is equal justice under law. I 

am confident that Jack McConnell will meet that standard as a 

judge. 

In sum, Jack is an exceptionally qualified nominee who will 

make a fair, talented, and honorable judge. 

I thank the Committee for holding this hearing. I thank the 

Chairman. And I look forward to Jack’s ultimate confirmation and 

service on our local district court. 

PRESENTATION OF SUSAN RICHARD NELSON, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA BY 

HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE 

OF MINNESOTA 

Senator KLOBUCHAR. [Presiding.] Thank you very much, Senator 

Whitehouse. Senator Cardin went to vote, and so we are all going 

to be rotating in and out here, as a vote has been called. 

But it is my distinct pleasure to introduce and endorse Susan 

Richard Nelson as the President’s nominee to become a Federal 

district court judge for the district of Minnesota. 

She is here with her husband, Tom, way back there behind all 

the people from Rhode Island, Sheldon, I think, right there. 

I always like to tease Senator Whitehouse that the State of 

Rhode Island is always used for comparative purposes, like the iceberg that let loose was the size of Rhode Island. Now we can say 

there are enough people in here to fill the State of Rhode Island. 

456 

She is also here with her oldest son, Rob, and her younger son, 

Michael, who I understand is a junior at St. Olaf College in Minnesota, who should be studying for his finals. So I was picturing 

the two of them last night, he is studying for his finals, while his 

mom is studying for this hearing. So I do not know what would be 

harder. 

Susan Richard Nelson has been a magistrate judge in the district 

of Minnesota for the last 10 years, where she has earned the respect of litigants, lawyers, and judicial colleagues alike. 

I can say unequivocally that she has the judicial temperament, 

the personal integrity, and the keen legal mind that are absolute 

prerequisites for being a great judge. 

Judge Nelson was born in Buffalo, New York and graduated from 

Oberlin College with high honors in 1974. She received her law degree from the University of Pittsburgh, where, by the way, Senator 

Hatch attended. She received her law degree in 1978, where she 

was a member of the esteemed Order of the Barristers. 

Prior to becoming a magistrate judge in 2000, Judge Nelson was 

a civil litigator in private practice for 22 years. Judge Nelson is extremely qualified to be a district court judge in Minnesota. She has 

more than three decades of legal experience, though, of course, the 

last 25 were really the best, because they occurred in Minnesota. 

Her decade of experience as a magistrate judge has given her excellent preparation for the role of district court judge. In addition 

to conducting hearings, ruling on motions, and conducting settlement negotiations, she has also presided over multiple trials. 

In essence, she will be ready to fill her position her first day on 

the job. 

Throughout her tenure as a magistrate judge, Judge Nelson has 

gained a reputation as a fair, but stern judge, one who is thorough 

and prepared. She has been described as a judge who favors neither plaintiffs nor defendants, who listens carefully to both sides of 

every matter she hears, and who can be relied upon to give articulate, well reasoned explanations for her decisions. 

Judge Nelson was highly recommended to this Committee. She 

was initially recommended by a judicial selection committee, consisting of Minnesota attorneys, judges, and members of law schools. 

That judicial selection Committee received countless letters and emails in support of Judge Nelson. 

Moreover, the ABA standing Committee on the Federal Judiciary 

unanimously rated Judge Nelson as well qualified. This is the highest rating that the Committee awards. 

Judge Nelson is also involved in a variety of civic and bar activities. She is currently a member of the Minnesota Women’s Lawyers 

Advisory Board and served as the group’s president. She often represents the organization at speaking engagements and has written 

a column for the group’s monthly newsletter for quite a while. 

In addition to her work with the Minnesota Women’s Advisory 

Board, Judge Nelson has served as a mentor for disadvantaged 

kids. 

I also wanted to mention the importance of this nomination to 

the district of Minnesota generally. Our district’s caseload has increased significantly in recent years. From 2008 to 2009, the district saw a 54 percent jump in the number of civil cases filed. 

457 

With over 5,000 civil cases currently pending and only six judges 

on full-time status to deal with those cases, not to mention the 

docket of criminal cases on top of that, our district really needs 

Judge Nelson to be confirmed quickly. 

I believe that Susan Richard Nelson will make a fine Federal district court judge for the district of Minnesota. It is my honor to introduce her to the Committee, and I urge her swift confirmation. 

At this point, because of the vote and because I need to vote, we 

are going to recess the hearing for a few minutes for Senator 

Cardin to return, and then I know that Senator Franken is also 

going to give an introduction for Judge Nelson. 

So I recess this hearing, subject to the call of the chair. I am 

missing a gavel, so I guess I will use Senator Specter’s name thing. 

There we are. 

[Whereupon, at 3 p.m., the hearing was recessed.] 

PRESENTATION OF SCOTT M. MATHESON, JR., NOMINEE TO BE 

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

RUSS FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. [Presiding.] Call the Committee back to 

order. 

When Senators come back from vote, we will start the hearing 

again. I am Senator Feingold from Wisconsin, and it is my pleasure 

to speak in support of Scott Matheson, Jr., who President Obama 

has nominated to fill a vacancy on the U.S. Court of Appeals for 

the Tenth Circuit. 

I have known Scott as a close friend for many, many years. We 

first met as students together at Oxford. Scott has a rare combination of intellect, legal knowledge, experience, and probity that 

makes him perfect for an appellate court judgeship. 

I could not possibly recommend anybody more strongly. From 

1993 to 1997, Scott served as U.S. Attorney for the District of 

Utah. Faced with challenging cases, he developed legal positions 

that revealed his extensive knowledge of the law and unwavering 

fair-mindedness. 

A particularly revealing example is when a U.S. Supreme Court 

decision, Hagen v. Utah, in 1994, threatened the viability of Federal criminal convictions for crimes committed on the Indian reservation in eastern Utah. The Court found that the reservation was 

a patchwork of mixed state, private and Federal land. 

So the issue facing the courts after Hagen was whether the Federal Government had jurisdiction when the crimes were committed. 

Scott recognized that it would have been legally improper to sustain convictions rendered by a court without subject matter jurisdiction, but it also would have been manifestly unfair to void otherwise valid convictions and force victims to go through new trials. 

Scott was able to find an answer that honored the Supreme 

Court decision, but protected all of the otherwise valid convictions, 

stretching back decades. So in the words of Scott’s first assistant, 

David Schwendiman, with whom my staff communicated, quote, ‘‘It 

was brilliant legal work, but typical of Scott. Scott’s excellence was 

well recognized among his colleagues.’’ According to David 

Schwendiman, ‘‘When it came down to it, Scott was the finest lawVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00467 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
458 

yer in the office and, in my view, probably the best tenth circuit 

advocate. When we were in the courtroom in the trial that we did 

together in the tenth circuit, he was truly the person who knew 

more than anyone else in the courtroom both about the law and the 

facts. It will be the same if he is appointed to the bench.’’ 

There are many judges in the Federal Court of Appeals with excellent academic credentials, and Scott’s match up with the best of 

them. I know Senator Hatch has already reviewed those, so I will 

not go over that again. But I am, of course, very aware of his accomplishments. 

Scott has been deeply involved, as well, in Utah politics, and, in 

my opinion, he was born to be a judge. Beyond his outstanding intellect and experience, his fair-mindedness and probity make him 

perfect for the role. 

Scott never hesitates to do the right thing, even when it is unpopular. I believe Scott Matheson is an outstanding nominee and 

will be an outstanding judge, and so I am very pleased that the 

President has nominated him and I am proud to support him 

today. 

Thank you, Mr. Chairman. 

Senator HATCH. Mr. Chairman. 

Senator CARDIN. [Presiding.] Senator Hatch. 

Senator HATCH. After listening to Senator Feingold, I am starting to have some doubts here. 

[Laughter.] 

Senator FEINGOLD. That was my only hesitation. 

Senator HATCH. No. That is great praise and I am very grateful 

that you would take time to come and talk about our great nominee. 

Senator CARDIN. Senator Franken. 

PRESENTATION OF SUSAN RICHARD NELSON, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA BY 

THE HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE 

OF MINNESOTA 

Senator FRANKEN. I told you to finish before he got here. 

[Laughter.] 

Senator FRANKEN. Mr. Chairman, I am just very proud in joining 

my senior Senator, Senator Klobuchar, in introducing Judge Susan 

Richard Nelson, the nominee for the U.S. District Court for the 

District of Minnesota. 

I would like to thank Chairman Leahy and Senator Sessions for 

moving quickly to schedule this hearing. I would also like to congratulate all the nominees here today on this great honor, and 

thank you and your families for being with us today. 

Judge Nelson, I am just so pleased that you can be with us 

today. You are an extraordinarily qualified nominee and you make 

our state proud. I also want to welcome your husband, Tom, and 

your sons, Rob and Michael, to this hearing today. 

Judge Nelson graduated from Oberlin College, and I missed Senator Klobuchar’s introduction. I hope I am not covering a lot of the 

same territory, but this is the day this is happening, so why not 

hear that you graduated with high honors twice, and went on to 

the University of Pittsburgh Law School. 

459 

She practiced law for more than 20 years, gaining experiences in 

many areas of the law during her time as a partner at Robins, 

Kaplan, Miller and Ciresi in Minneapolis. 

Judge Nelson was named a Super Lawyer, one of Minnesota’s 

leading lawyers, for five consecutive lawyers. For the past 10 years, 

she has served as a U.S. magistrate judge in the Minnesota district 

court. Judge Nelson’s decisions while serving as a magistrate judge 

illustrate her strong commitment to justice and to the rule of law. 

She has decided a wide range of cases on topics ranging from employment discrimination to deceptive trade practices. She conducts 

settlement conferences nearly every week, and has presided over 

several cases to verdict. 

Minnesota has a strong tradition of fighting for access to justice 

and Judge Nelson has upheld this principle during her time as 

magistrate judge. In 2005, the Hennepin County Bar Association 

gave her the judicial professionalism award, which is given to the 

judge who, quote, ‘‘best exemplifies the pursuit of the practice of 

law as a profession, including the spirit of public service and promotion of the highest level of competence, integrity, and ethical 

conduct.’’ 

Are you still with us, Senator Hatch? That is good, right? 

Senator HATCH. I have to admit, you have been stultifying me a 

wee bit here. 

Senator FRANKEN. All right. I am sorry. 

Senator HATCH. But I want you to know I am all ready for your 

nominee, because she—— 

Senator FRANKEN. Then why am I even continuing? 

Senator HATCH. Wait, wait, wait. She graduated from the University of Pittsburgh and I think Senator Cardin might very well 

be, too. 

Senator CARDIN. We sort of have a bias toward University of 

Pittsburgh up here. 

[Laughter.] 

Senator FRANKEN. Well, I do not feel one way or the other about 

it, frankly. 

[Laughter.] 

Senator HATCH. That is typical. I understand that. 

Senator CARDIN. The Senator’s time has expired. 

[Laughter.] 

Senator FRANKEN. I ask for another 2 minutes. 

Judge Nelson is also a former president of Minnesota Women 

Lawyers and deeply involved in her community. She has supported 

a wonderful organization that I have worked closely with, Minnesota Advocates for Human Rights. She is also involved with the 

Bloomington, Minnesota American Legion, the Minneapolis Jewish 

Community Center, and the Bloomington Classic Baseball League, 

among other civic organizations. 

This diversity of experiences has helped her understand law and 

the community from many different perspectives, a quality that 

will serve her well as a district court judge. 

As a district court judge, Judge Nelson will continue to have 

many of the responsibilities she has performed so admirably for the 

past decade. Judge Nelson has been rated, quote, ‘‘unanimously 

460 

well qualified’’ by the American Bar Association, the highest rating 

possible. 

I urge my colleagues on the Committee to support her nomination, and I look forward to quick action both in Committee and in 

the full Senate. 

Thank you, again, Judge Nelson, for being here. And thank you, 

Mr. Chairman, for the opportunity to introduce her. 

Senator CARDIN. Thank you, Senator Franken. 

We now will proceed to our first panel, which will be Scott 

Matheson. 

[Witness sworn.] 

Senator CARDIN. Mr. Matheson, you may proceed. But as is the 

tradition of our Committee, if you have family members that are 

with you, it would be appropriate to introduce your family. We 

know this is a family effort. 

STATEMENT OF SCOTT MATHESON, NOMINEE TO BE UNITED 

STATES CIRCUIT COURT JUDGE FOR THE TENTH CIRCUIT 

Mr. MATHESON. Well, thank you very much, Mr. Chairman. And 

it’s an honor to be here and I’m delighted to introduce family members who are with me this afternoon. 

I will start with my wife, Robyn, who is seated directly behind 

me. And to her left is my daughter, Heather. My son, Briggs, is 

here in spirit, but he’s a first year law student at Stanford and I 

told him he had to stay in California and go to class. And I hope 

I can get some Committee support on that decision, because he 

wasn’t happy about that. 

My mother is here. She’s been mentioned several times during 

the course of these proceedings. She arrived in Washington last 

night, promptly slipped at the Metro and dislocated her finger. But 

she’s OK. I just hope that isn’t an omen for the hearing. But I’m 

pleased that she could join us. 

I’d like to mention my father. We lost my father almost 20 years 

ago. We think about him and we miss him every day and especially 

on this day. 

My brother, Jim, was here earlier. He was introduced. He had 

to ask to be excused. And I’d like to mention my brother, Tom, who 

lives in Tucson, Arizona, and my sister, Lu, who lives in Salt Lake 

City. 

Also joining us today are many friends, colleagues, former colleagues, students, former students, and, via online, many colleagues and friends out in the State of Utah, and I appreciate their 

interest and support. 

I’d also like to thank and acknowledge the introductions on my 

behalf by Senator Hatch. That’s the kind of introduction that would 

make anybody’s mother blush, and I think she did, and then Senator Feingold did the same thing. 

So I appreciate very much what both of them had to say, and especially the bipartisan support that those statements represent. 

With that, Mr. Chairman, I’ll turn it back to you and I look forward to answering the Committee’s questions. 

[The biographical information follows.] 

461 


66693.402
462 


66693.403
463 


66693.404
464 


66693.405
465 


66693.406
466 


66693.407
467 


66693.408
468 


66693.409
469 


66693.410
470 


66693.411
471 


66693.412
472 


66693.413
473 


66693.414
474 


66693.415
475 


66693.416
476 


66693.417
477 


66693.418
478 


66693.419
479 


66693.420
480 


66693.421
481 


66693.422
482 


66693.423
483 


66693.424
484 


66693.425
485 


66693.426
486 


66693.427
487 


66693.428
488 


66693.429
489 


66693.430
490 


66693.431
491 


66693.432
492 


66693.433
493 


66693.434
494 


66693.435
495 


66693.436
496 


66693.437
497 


66693.438
498 


66693.439
499 


66693.440
500 


66693.441
501 


66693.442
502 


66693.443
503 


66693.444
504 


66693.445
505 


66693.446
506 


66693.447
507 


66693.448
508 


66693.449
509 


66693.450
510 


66693.451
511 


66693.452
512 


66693.453
513 


66693.454
514 


66693.455
515 


66693.456
516 


66693.457
517 


66693.458
518 


66693.459
519 


66693.460
520 


66693.461
521 

Senator CARDIN. Well, thank you. And we certainly do appreciate 

the introductions and support that has already been shown on this 

Committee. 

Let me start with a question I think is relevant, considering that 

the President recently nominated Elena Kagan to the Supreme 

Court and then she would be coming to the Supreme Court without 

judicial experience; that your nomination is to the court of appeals, 

the appellate court, and you have not served in a judicial capacity. 

One is very impressed with your background and your experience 

in the positions that you have held in the legal community. 

Do you think it is a concern that you have not served on the district court or in a circuit court going to the court of appeals? 

Mr. MATHESON. Well, thank you, Mr. Chairman. I am pleased to 

be able to address that question. 

I would start out by saying that I feel that I have been extremely 

fortunate in my career to have some extraordinary opportunities, 

ranging from private practice at a leading law firm to prosecuting 

in our State courts in Utah, to serving as the U.S. attorney, serving 

as dean of a law school, and participating in a multitude of law reform efforts. 

I couldn’t have asked for better opportunities than that. It’s been 

a very satisfying career up to this point, and I think that that 

blend of experience and those opportunities to make judgments and 

to work hard on legal issues and to work with others on a variety 

of law-related projects will serve me well on the bench. 

And I think that those experiences will serve as a substitute, I 

suppose, for having served as a judge. I understand that that’s very 

good and relevant experience leading into a position of this nature. 

Senator CARDIN. As a judge, you have to decide cases based upon 

the law. But the oath that you take indicates that you will execute 

justice to the poor and to the wealthy, that there be no distinction. 

The fairness of our system sometimes is skewed when someone 

does not have the ability to pursue their case in court. How do you 

interpret your position as a judge carrying out the oath that you 

would take to dispense justice equally to the poor? 

Mr. MATHESON. Well, I think, Senator, that the oath requires a 

critical quality, and that quality is impartiality. And it also means 

that a judge has to have a full commitment to the rule of law, to 

impartial application of law to the evidence that has been admitted 

in the particular case, a commitment to procedural due process, 

and to open mindedness. 

And I think it also requires deference to the other branches of 

government and, also, I think, constant vigilance to ensure that the 

law is applied and that the judge’s personal and political views are 

not involved in the application of the law to a particular case. 

I think if the judge follows those principles, that equal justice 

and meeting a judge’s responsibilities and, most importantly, as 

you started out, meeting the oath will be fulfilled. 

Senator CARDIN. I am not familiar with Utah, I am with Maryland, as to the responsibilities of lawyers to participate in pro bono 

and to provide help to those who otherwise would be denied access 

to our courts. 

Do you see a role that the courts can play in promoting adequate 

representation for all people in our system? 

522 

Mr. MATHESON. I think there is, Mr. Chairman. First, let me say 

that the Utah Bar has a strong record in this area and the legal 

community in my State has stepped up and fulfilled the responsibility that you just described in many, many ways. 

I’ve had the privilege to participate in a number of those activities, such as the And Justice for All campaign in our community 

that supports our legal services agencies. As dean of the law school, 

I was involved in developing a pro bono initiative, which matches 

up students with practicing lawyers to meet under-served legal 

needs of our community. And our judges in the State have stepped 

forward and encouraged programs and lawyers to participate in 

these activities. 

And I feel that I’ve been part of that tradition and to the extent 

that it is consistent with the judicial role, would like to continue 

in that respect. 

Senator CARDIN. Thank you. 

Senator Hatch. 

Senator HATCH. Let me just ask one question, and it is an important one, certainly, and we are welcoming you to the Judiciary 

Committee of the U.S. Senate. And I want to thank you and your 

family for your commitment to service to our State and to our country, as well. 

Let me just ask you a question concerning judicial philosophy, 

because I know that this has to be asked. I understand that to 

mean your understanding of the power and proper role of judges 

in our system of government involves judicial philosophy. 

Now, in 1991, for the 200th anniversary of the Bill or Rights, you 

wrote a piece for the Salt Lake Tribune arguing that, quote, ‘‘There 

is an unmistakable link between our established constitutional values and basic human needs,’’ unquote. 

Because you referred to, underlined, constitutional values, that 

naturally raises this question—whether judges, as opposed to legislators, may act to help meet those needs. 

For example, one scholar has argued that constitutional provisions, such as the guarantee of equal citizenship, make the Constitution literally a generative source of substantive rights. Now, 

that sounds as if judges can recognize new rights that they think 

will meet human needs. 

Would you care to comment on that? 

Mr. MATHESON. Yes. Thank you, Senator Hatch, for that question, and I think it raises a very important issue. 

I would say, first of all, that I have never taken the position that 

you just described and that the provision of opportunity mentioned 

in the article that you just described is a responsibility for the legislature to address. 

I’ve always viewed the Constitution as providing for protection 

for individual rights against government interference as opposed to 

providing affirmative rights, and that has been my consistent position as a constitutional law teacher and scholar. 

I think you put it well last week in the speech that you gave to 

the Cato Institute, where you said that it’s important to recognize 

the principle that it isn’t judges who control the Constitution, it’s 

the Constitution that controls the judges, and that resonated with 

523 

me. I believe in that principle and it’s one that I would take to the 

bench. 

Senator HATCH. Well, thank you. If we have any other questions, 

we will submit them in writing. 

Mr. MATHESON. Thank you. 

Senator CARDIN. Thank you. 

Senator Feingold. 

Senator FEINGOLD. Nothing. 

Senator CARDIN. Senator Kyl. 

Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

Let me first begin by asking you a question about your book, 

Presidential Constitutionalism in Perilous Times. You argued, and 

I am quoting here, ‘‘The Presidency requires a constitutional conscientiousness that was lacking in the George W. Bush administration that must be inculcated in the future.’’ 

Could you give me some examples? 

Mr. MATHESON. Well, my concern that was expressed in that 

statement, Senator, is a separation of powers concern and the relationship between separation of powers and individual rights. 

The book, by the way, is a book about several Presidents that 

faced security and liberty interests in times of war and national security threat. 

Senator KYL. Let me just get to the point here. You are accusing 

them of not caring about the Constitution. Constitutional conscientious, a lack of consciousness about or thought about or concern 

about. That is kind of a tough charge against people who tried very 

hard to be good public servants. 

Can you give me an example? 

Mr. MATHESON. Well, the examples talked about in the book occurred during the first—mostly during the first term of the Administration and had to do with the lack of collaborative policymaking 

effort in the areas of torture, national security surveillance, and detention. 

And the analysis speaks mostly to the question of why the Administration didn’t work more closely with Congress in developing 

those policies. 

Senator KYL. With all due respect, though, if the President has 

constitutional authority to execute a war, it may not be a good idea 

or good policy not to communicate more robustly with the Congress, but that doesn’t mean that it lacks constitutional conscientiousness or, in other words, that it is overriding its powers. 

Let me just give you an example of what I thought you were getting at. You wrote that when President Bush issued his November 

13, 2001 military commission order, he claimed lawmaking, adjudicating, and prosecuting authority, conflating separation of powers 

under the commander-in-chief mantel. Historically, this planting of 

executive, legislative, and judicial powers in one person or, even in 

one branch of government is ordinarily regarded as the very acme 

of absolutism. 

Now, are you contending or did you contend in that book that the 

President, in the exercise of his authority as commander-in-chief of 

our armed forces in the middle of a military conflict, must require 

524 

Congress’ approval when dealing with foreign enemy combatants 

on enemy soil? 

Mr. MATHESON. Senator, let me try to clarify that point a little 

bit more. What I was trying to get at with respect to military commissions, which eventually was recognized by the Supreme Court 

in 2006 in the Hamdan case, is that the President ended up acting 

unilaterally in establishing the commissions and, as it turned out, 

under the Uniform Code of Military Justice, there was a Congressional limitation on how those commissions could or should be established. 

And that was challenged and then, of course, several years later, 

the Supreme Court struck down the commissions—— 

Senator KYL. But the Supreme Court did not strike down the 

President’s authority to establish a military commission. 

Mr. MATHESON. Well, they left that question open. 

Senator KYL. Right. But that is what you were criticizing him of 

doing here, of setting it up. Now, there may have been some infirmities in it, and it may have been a better idea for him to—and, 

in fact, ultimately, Congress did work with him and modify it 

somewhat and this Administration currently believes that we can 

operate under that authority. 

So, part of what you wrote here suggests that he does not have 

the authority to do it. That is the thing that I am wondering about. 

It is not maybe that it was not a great idea, it is exactly how he 

did it or that he should have consulted with Congress. 

Mr. MATHESON. Well, Senator, I think what I was trying to suggest is that, as the Court explained in Hamdan, we didn’t have a 

situation where Congress had not spoken. Congress had spoken. 

And if we were in the hypothetical situation where Congress had 

said nothing on this issue, it’s in that context that the Court left 

the question open whether the President could act. 

But even in that context, Justice Kennedy was very careful to 

point out that an executive establishment of a court and the rules 

of that court and the sanctions of that court should raise issues of 

constitutional concern concerning separation of powers. That’s the 

point I was trying to make. 

Senator KYL. You argued, from the same source, ‘‘The executives 

claimed that it could arrest and lock up individuals suspected of 

terrorist ties without charge, without counsel, without due process, 

and without any prospect of release until the war on terror is over 

evaded the rule of law in a war that is supposed to preserve the 

rule of law.’’ 

Did it turn out that the Supreme Court agreed with you? 

Mr. MATHESON. Well, they did, actually, up to a point in the 

Hamdee case. 

Senator KYL. Did not the Hamdee court say that you could hold 

a prisoner until the end of the conflict? 

Mr. MATHESON. They did, but not without the provision of a due 

process hearing to challenge the validity of the detention. 

Senator KYL. So what you are saying is they are only without 

due process, as later the Hamdee court ruled—in other words, you 

do not deny that the President has the authority to hold and to arrest, to lock up, as you put it, terrorists without charge. 

525 

Mr. MATHESON. Well, I would include the issue of charge and the 

validity of detention as part of the due process consideration. 

Senator KYL. So you think a person has to be charged, that a terrorist who is captured on a battlefield has to be charged with a 

crime? 

Mr. MATHESON. No. What I was trying to explain is that a person in Hamdee’s position—of course, he was a citizen, we know. 

Senator KYL. Right. 

Mr. MATHESON. Would have an opportunity to contest the detention and, as part of contesting the detention, the reason for the detention would, I think, be part of that discussion. 

Senator KYL. Well, that is different from what you said. They do 

have the right to contest and there is a review even under the 

original authority that the President exercised with respect to terrorists held at Guantanamo on status. 

But what you are saying here is that the executive’s claim that 

it could arrest and lock up individuals suspected of terrorist ties 

without charge and without counsel—now, you say without due 

process, that later got interpreted—and without any prospect of release until the war is over evaded the rule of law. 

But the Court says that all three of those things are appropriate. 

Mr. MATHESON. Well, I suppose that, Senator, I’m trying to put 

those concepts together and I see a due process interest maybe a 

little more broadly that you’re suggesting. 

But I would cite to the Hamdee case as validating that point. 

Senator KYL. I would cite to the Hamdee case as contesting it. 

I am over my time. I just had one other series of questions, but I 

am happy to yield. 

Senator CARDIN. Senator Whitehouse. 

Senator WHITEHOUSE. First of all, welcome, Dean Matheson. It 

is good to have you with us. You served as United States attorney. 

We have, obviously, confirmed you before for positions of significant 

responsibility, and I welcome you back. 

Could you describe a little bit the nature and extent of your appellate court practice during the course of your career? 

Mr. MATHESON. Well, I’d be happy to do that, Senator. And it’s 

good to see you again. We overlapped as U.S. attorneys, and Senator Whitehouse was clearly one of the leaders of our U.S. attorney 

group. So it’s good to be back with you this afternoon. 

Senator WHITEHOUSE. He only says that now. 

Mr. MATHESON. As to your question about appellate practice, as 

the U.S. attorney, I argued a number of cases before the Tenth Circuit. Senator Feingold described one of the more significant cases 

involving the preservation of a multitude of convictions against collateral attack that were being challenged as the result of a Supreme Court case. And we worked very closely with the Justice Department, because it was a challenging issue. 

I argued other cases before the Tenth Circuit, including an en 

banc case involving a Fourth Amendment issue, and I argued a 

case that I was also involved as the trial lawyer. It was a homicide 

case that we tried in Federal district court in Salt Lake City. And 

what made the case particularly interesting is it was the first case 

in the history of our state where we used two juries, because of an 

evidentiary issue. 

526 

There was a problem under the Supreme Court decision of U.S. 

v. Boutin, and rather than severing the cases, we tried them together, and that was an interesting experience and we took that 

case up on appeal to the tenth circuit. 

I have to say that my practice experience before that court has 

been some of the most professionally satisfying of my career. I thoroughly enjoyed it. It’s how I’ve gotten to know that court and come 

to respect it so much and why it’s such an honor to be nominated 

to serve on that court. 

Senator WHITEHOUSE. Well, you have magnificent accomplishments and I am delighted that you are here. I wish you well. 

My last question is how many of you there are who are sixth generation Utahans. 

Mr. MATHESON. Well, you’d be surprised how many there are. 

[Laughter.] 

Senator WHITEHOUSE. I will leave it at that. 

Senator CARDIN. Senator Franken. 

Senator FRANKEN. Thank you, Dean. I am very impressed that 

you have taken time from your work as a professor and a dean to 

serve both as a local prosecutor and a U.S. attorney, as Senator 

Whitehouse mentioned. 

What impact do those experiences have on your understanding of 

the criminal justice system and how will that impact or influence 

you, if you are confirmed, at the appellate court? 

Mr. MATHESON. Well, I’ve learned a great deal from those experiences and I think I’ll mention just a few of the lessons learned. But 

I think one of the most important is that I have great confidence 

in our system of criminal justice in this country at both the state 

and Federal levels. 

For one thing, we have such a strong bench in our state, as Senator Hatch knows, in the state courts and the Federal courts, just 

outstanding judges. 

But perhaps most important is a sense, a very deep sense of how 

conscientious and how committed all the participants in the process 

almost always are, very professional, take their roles very seriously, whether it’s a prosecutor, a defense attorney, a clerk, jurors. 

I think that there’s a seriousness that is needed in the criminal 

justice system and I’ve seen it in action, and I have a lot of respect 

for each and every person who is involved in that process, because 

they come to it each day and they come to it to do as good a job 

as possible, because they recognize that whatever their role is, if 

they do it well, that contributes to how effective the system is. 

So I came away from experience as a prosecutor and as a U.S. 

attorney with that lesson in mind. 

Senator FRANKEN. As Senator Cardin referenced, you have written about the importance of responding to the legal needs of low 

income and middle class people in our society. How did you develop 

your commitment to access to justice? Is there any one series of 

events or is this something that you observed or a value that you 

got from your parents? 

Mr. MATHESON. Well, thank you, Senator. I think I’d start out by 

saying all of the above. I think growing up in my family, we were 

always taught about commitment to service. That was inculcated 

early on, but that continued through law school and during the 

527 

early years of practice and it’s just always been a part of my commitment, my priority, and what I’ve wanted to do. 

And I’ve had some terrific opportunities to participate in that 

area, going back quite a few years, when I was actually quite a 

young lawyer. I was asked to serve on the Legal Aid Society of Salt 

Lake City and became the president of their aboard. 

And during the time I served with them, we developed a domestic violence program for our community that I think is a model to 

this day and I’m very proud of having been involved in programs 

like that. 

Senator FRANKEN. Well, thank you. I have heard enough. No 

more questions. And you are very impressive, sir. Thank you. 

Mr. MATHESON. Thank you, Senator. 

Senator CARDIN. Just as a follow-up to Senator Kyl’s point, the 

book that Senator Kyl was referring to, Presidential Constitutionalism in Perilous Times, you analyzed Presidents, if I understand it, Lincoln, Wilson, Franklin Roosevelt, Truman, and George 

W. Bush. That was all five, I guess, that you were comparing. 

And then you draw a conclusion, which is very similar to the 

9/11 Commission’s report, that I just really want to put in the 

record, because I agree with it and there might be some interest 

in that, that Presidents generally have focused on national security 

in times of crisis and not on civil liberties, and they need to focus 

on both, which is exactly some of the findings of the 9/11 Commission. 

I would hope that I will find the time to be able to read that 

book. It sounds very interesting. 

Mr. MATHESON. Thank you. 

Senator CARDIN. Senator Kyl, did you want a second round? 

Senator KYL. Yes, I do, Mr. Chairman. I have a set of questions. 

Just as a final point, and maybe since I asked you if you could give 

me some examples, that might have caught you just a little bit unawares, I will just ask a question for the record and you are free 

to take time and provide a written answer, if you would like to do 

that. 

But the final point on this question, the little debate you and I 

were having about Hamdee and so on. Assume that there is an initial determination of status and that there is an at least one time 

habeas review, which the Court said would exist. 

Do you believe that criminal charges, provision of counsel, and 

some other prospect of relief is required for due process or required 

by due process for foreign terrorists who are captured on the battlefield and detained in place like Guantanamo? 

Mr. MATHESON. Well, Senator, as you’ll recall, Justice O’Connor 

addressed, in part, what she thought due process might require, 

but didn’t go into great detail on that issue and I think that issue 

may still be with us up to a point in terms of how detainees—and, 

again, the distinction in that case was drawn between a citizen detainee as opposed to a non-citizen detainee. 

So I think my answer, Senator, would, as so often happens in 

these matters, depend on a combination of facts and circumstances 

and if asked to confront it in a judicial capacity, would do so with 

an open mind. 

528 

And these are difficult issues, as you know. They’ve been debated 

back and forth now for quite a number of years and it has continued into this administration. 

Senator KYL. Did the habeas or the resulting requirement for habeas depend upon citizenship status? 

Mr. MATHESON. Well, as you know, after Hamdee, there were 

other cases and there was the Rasoul case, which recognized a habeas opportunity for the Guantanamo detainees, but under the 

Federal habeas statute. 

Then we had legislation that stripped jurisdiction for habeas review, but the administration did institute the combat status review 

tribunals. But then we moved up to the Boumediene case, which 

has resolved some issues, but raised several others. 

So we’re talking about a fluid situation in this area. 

Senator KYL. But further established the habeas right. 

Mr. MATHESON. In Boumediene. 

Senator KYL. Right. 

Mr. MATHESON. Yes. 

Senator KYL. Let me just switch total subjects. This book Professor Carlin co-authored, I am just going to quote from it, argued 

that interpreting—I am quoting now—‘‘Interpreting the Constitution requires adaptation of its broad principles to the conditions 

and challenges faced by successive generations. The question is not 

how the Constitution would have been applied at the founding, but 

rather how it should be applied today in light of changing needs, 

conditions, and understandings of our society.’’ 

Are you generally familiar with that? 

Mr. MATHESON. Well, I haven’t read that book, Senator, or what 

she wrote. 

Senator KYL. Well, I would just ask you what you think about 

it, then, or do I need to repeat it? 

Mr. MATHESON. No. I think I understand the question and I hope 

I can be helpful with a response. 

I view the Constitution as establishing, in its text, and everything, I think, starts with the text, but establishing a structure of 

government and a set of relationships within and between governments and between the government and individuals. 

I think those principles were established at the beginning and 

that the framers intended that document and those principles to 

endure and to serve us in addressing situations that would be new 

and unanticipated, and I think that that document has served us 

well in that respect. 

I don’t see the structure or principles changing. I see circumstances that have to be confronted as changing. I recently was 

reading the Second Amendment case, the majority opinion in Heller, and Justice Scalia was responding to a claim that the Second 

Amendment should only apply to those arms that were in existence 

in the 18th century. And, of course, he rejected that claim and 

pointed out that the First Amendment has been applied to modern 

forms of communication and the Fourth Amendment has had to be 

applied to modern forms of search, and the Second Amendment, 

likewise, has to be interpreted in light of new forms of arms, and 

I think that that approach is a sensible approach. 

529 

Senator KYL. Creative lawyers, of course, will come up with an 

infinite number of new circumstances. I agree with you that circumstances change and, also, even if they do not, lawyers will 

think of new ways of presenting cases on behalf of their clients. 

But the word, also, ‘‘needs’’ was in here, in light of changing 

needs, and I was just thinking, for example, of the free exercise of 

religion clause and was wondering if you could maybe just give me 

an idea about how you think there might be a changing need that 

would require a different interpretation than how the Constitution 

would have been applied at the founding. 

And, again, that may be unfair just to put you on the spot. 

Mr. MATHESON. Well, no, Senator. It’s a great question. I suppose 

my initial reaction to it is that I understand what changed circumstances are, but I’m not sure I understand what a changed 

need is. 

Senator KYL. I kind of was thinking the same thing. Maybe that 

is something you and I might agree on. 

Mr. MATHESON. Well, I’ll take it then. 

Senator KYL. Thank you very much. 

Mr. MATHESON. Thank you, Senator. 

Senator CARDIN. Does any other member of the Committee wish 

to inquire? 

[No response.] 

Senator CARDIN. If not, thank you very much and that will complete your testimony and questioning. 

Mr. MATHESON. Thank you, Mr. Chairman. Thank you to the 

Committee. It’s been an honor to be with you today. And thank 

you, again, Senator Hatch, for your kind words. 

Senator CARDIN. We also, again, express our appreciation to you 

and your entire family. 

We will now move to our second panel, which will consist of John 

McConnell for U.S. District Judge for the District of Rhode Island; 

Susan Nelson to be U.S. District Judge for the District of Minnesota; Ellen Hollander to be U.S. District Judge for the District 

of Maryland; James Bredar to be U.S. District Judge for the District of Maryland. 

If you all would, remain standing to be sworn. 

[Witnesses sworn.] 

Senator CARDIN. Thank you. Please have a seat. 

As I pointed out with the previous panel, that the tradition of 

our Committee, if you would take the time to introduce your family 

members or other guests that are here, we would certainly appreciate that. And I will start off with John McConnell. 

STATEMENT OF JOHN J. MCCONNELL, JR., NOMINATED TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND 

Mr. MCDONNELL. Thank you, Mr. Chairman. I am truly blessed 

with a large family and friends and supporters, many of whom are 

actually here today. My wife, Sara; my daughter, Catherine, who 

next weekend graduates from Brandeis University and was just accepted to teach in the D.C. Public Schools with Teach for America, 

and she’ll start there this fall; my daughter, Margaret, ‘‘Maggie,’’ 

who is a sophomore at George Washington University here in the 

530 

District; and, my son, John, who is a seventh grader at the Gordon 

School in East Providence. 

My mom, Jane McConnell, is here with me. My in-laws, retired 

Rhode Island Supreme Court Justice Donald Shea and my motherin-law, Ursula Shea, are here with me. And I have the privilege of 

having grown up with five brothers, four of whom are here with 

me. My brother, Tom, and his wife, Amy Matthews; my brother, 

Bob; my brother, Paul; and, my brother, Joe. My brother, Pete, I 

think is watching at home, unable to make it down here today. 

A few of my nieces and nephews are here, Will and Robbie and 

Brendon McConnell, and my niece, Jessica Reinhardt. A couple of 

my law partners are here, Aileen Sprague, Don Migliori, Vin 

Greene, Fidelma Fitzpatrick, and some very excellent friends who 

always are there to support me, Donna D’Aloia, Rita Pratt, who is 

actually celebrating her birthday with us here today, Jacky Beshar, 

and Dan Roacha. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you. 

Judge Bredar. 

[The biographical information follows.] 

531 


66693.462
532 


66693.463
533 


66693.464
534 


66693.465
535 


66693.466
536 


66693.467
537 


66693.468
538 


66693.469
539 


66693.470
540 


66693.471
541 


66693.472
542 


66693.473
543 


66693.474
544 


66693.475
545 


66693.476
546 


66693.477
547 


66693.478
548 


66693.479
549 


66693.480
550 


66693.481
551 


66693.482
552 


66693.483
553 


66693.484
554 


66693.485
555 


66693.486
556 


66693.487
557 


66693.488
558 


66693.489
559 


66693.490
560 


66693.491
561 


66693.492
562 


66693.493
563 


66693.494
564 


66693.495
565 


66693.496
566 


66693.497
567 


66693.498
568 


66693.499
569 


66693.500
570 


66693.501
571 


66693.502
572 


66693.503
573 


66693.504
574 


66693.505
575 


66693.506
576 


66693.507
577 


66693.508
578 


66693.509
579 


66693.510
580 


66693.511
581 


66693.512
582 


66693.513
583 


66693.514
584 

STATEMENT OF JAMES K. BREDAR, NOMINATED TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND 

Judge BREDAR. Thank you, Mr. Chairman. And if the Committee 

will permit, I’m going to ask my family members to stand, since 

they’re in the back of the room and I think they should be recognized, given the labor that they have committed to this endeavor. 

First, I’d like to introduce my wife, Stacey Sewell Bredar, who 

teaches fifth grade in the Baltimore County Public Schools; my son, 

Thomas, who is a sophomore at Northwestern University in Evanston, Illinois. Next, my son, Daniel, who in 2 weeks will graduate 

from McDonough School and is headed to Harvard in the fall; and, 

then, my daughter, Sophie, who is five and is headed to kindergarten in the fall. 

We are also joined today by my brother, John, who lives here in 

the District, and my nephew, Henry, who is 13 and in the seventh 

grade at St. Alban’s School. My mother-in-law, Ann R. Sewell, is 

here, as is my career law clerk, Beverly Peyton Griffith. 

My parents are not able to be with us. I’m sure they’re watching 

with great interest from Denver, where they still live. 

Thank you, Mr. Chairman. 

Senator CARDIN. Judge Hollander. 

[The biographical information follows.] 

585 


66693.515
586 


66693.516
587 


66693.517
588 


66693.518
589 


66693.519
590 


66693.520
591 


66693.521
592 


66693.522
593 


66693.523
594 


66693.524
595 


66693.525
596 


66693.526
597 


66693.527
598 


66693.528
599 


66693.529
600 


66693.530
601 


66693.531
602 


66693.532
603 


66693.533
604 


66693.534
605 


66693.535
606 


66693.536
607 


66693.537
608 


66693.538
609 


66693.539
610 


66693.540
611 


66693.541
612 


66693.542
613 


66693.543
614 


66693.544
615 


66693.545
616 


66693.546
617 


66693.547
618 


66693.548
619 


66693.549
620 


66693.550
621 


66693.551
622 


66693.552
623 


66693.553
624 


66693.554
625 


66693.555
626 


66693.556
627 


66693.557
628 


66693.558
629 


66693.559
630 


66693.560
631 


66693.561
632 


66693.562
633 


66693.563
634 


66693.564
635 


66693.565
636 


66693.566
637 


66693.567
638 


66693.568
639 


66693.569
640 


66693.570
641 


66693.571
642 


66693.572
643 


66693.573
644 

STATEMENT OF ELLEN LIPTON HOLLANDER, NOMINATED TO 

BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND 

Judge HOLLANDER. Thank you, Senator. First, if I may, I’d like 

to thank the Committee for the opportunity to appear today. I 

would also like to express my gratitude to you and to Senator Mikulski for the confidence you’ve expressed in me in recommending 

me to the President. 

I’m also grateful to Senator Mikulski and to you for your kind 

introduction. 

I particularly want to express my profound appreciation to President Obama for the enormous honor that he has bestowed upon 

me. 

I’m especially grateful that my family and so many friends and 

colleagues are able to share this milestone in my professional life. 

I do, too, have quite a crew here. They got here early, so they have 

good seats. 

[Laughter.] 

Judge HOLLANDER. But nonetheless, I would like to ask them to 

stand as I introduce them. 

I am joined by my husband of almost 38 years—I know I look 

very young, but I was very—— 

[Laughter.] 

Judge HOLLANDER. Rich Hollander. And those who know Rich 

will readily agree that in choosing him as my life partner, I have 

demonstrated my ability for very sound decisionmaking. 

We are especially proud of our children. They are surely our 

greatest accomplishment. Our daughter, Hillary, is a clinical social 

worker in New York. Our son-in-law, Zachary Shankman, might be 

the most excited member of our family to be here, as he clerked 

for a Federal judge in New York City, where he now practices law. 

Our son, Craig, is a Ph.D. student at Johns Hopkins, and I think 

today it might be worth noting that he is the recipient of a Congressional research award from the Dirksen Center. His fiance, 

Jenifer Steinhardt, is here, as well. She works in finance in New 

York. 

Our youngest, Brett, is a sports broadcaster in Baltimore, and 

I’m proud to admit that in several news reports announcing my 

nomination, I was identified as the mother of Brett Hollander. 

[Laughter.] 

Judge HOLLANDER. I’m also thrilled to be joined by my brother, 

Dr. Andrew Lipton, and my sister-in-law, Dr. Helene Lipton, who 

traveled from San Francisco to attend these proceedings. 

I’m also delighted by the presence of Shondell Spiegel, a lifelong 

family friend, who flew in from Los Angeles to be here, as well. 

I’m very sorry my sister, Rhoda Lipton, could not be here. She 

is watching the Webcast, but she was unable to attend, as it’s the 

last day of classes for the students she teaches at Columbia University. 

I also wish to acknowledge Karen Warren, my invaluable administrative assistant of 25 years. And I’m deeply honored by the presence of so many wonderful friends, colleagues, and current and 

former law clerks, and I have several judicial colleagues, as well. 

I hope they are standing. I think they didn’t follow the instructions 

very well. 

645 

[Laughter.] 

Judge HOLLANDER. So I would ask them to stand. They deserve 

to know that I so very much appreciate how much they have supported me through this very long endeavor. 

And, finally, if you’ll permit me, Senator Cardin, I do want to 

mention those whose presence I sorely miss, especially on a day 

like today. My devoted in-laws, Joseph and Vita Hollander, and my 

beloved parents, Harold and Hilda Lipton. 

And I hope you’ll permit a special note about my father. The son 

of emigrants, he graduated from Harvard Law School and was regarded as a lawyer’s lawyer. I was just 17 when he died, but in the 

brief time that I enjoyed with him, he instilled in me the importance of hard work, integrity, and, most important, I believe, for 

today, the value of public service. 

He also encouraged me to believe that I, too, could be a lawyer, 

despite the fact that there were not many women attorneys during 

my youth. The enormous pride he felt for the legal profession has 

remained with me and has brought me to this day. 

Thank you. 

Senator CARDIN. Thank you, Judge Hollander. 

Judge Nelson. 

[The biographical information follows.] 

646 


66693.574
647 


66693.575
648 


66693.576
649 


66693.577
650 


66693.578
651 


66693.579
652 


66693.580
653 


66693.581
654 


66693.582
655 


66693.583
656 


66693.584
657 


66693.585
658 


66693.586
659 


66693.587
660 


66693.588
661 


66693.589
662 


66693.590
663 


66693.591
664 


66693.592
665 


66693.593
666 


66693.594
667 


66693.595
668 


66693.596
669 


66693.597
670 


66693.598
671 


66693.599
672 


66693.600
673 


66693.601
674 


66693.602
675 


66693.603
676 


66693.604
677 


66693.605
678 


66693.606
679 


66693.607
680 


66693.608
681 


66693.609
682 


66693.610
683 


66693.611
684 


66693.612
685 


66693.613
686 


66693.614
687 


66693.615
688 


66693.616
689 


66693.617
690 


66693.618
691 


66693.619
692 


66693.620
693 


66693.621
694 


66693.622
695 


66693.623
696 


66693.624
697 


66693.625
698 


66693.626
699 


66693.627
700 


66693.628
701 


66693.629
702 


66693.630
703 


66693.631
704 


66693.632
705 


66693.633
706 


66693.634
707 


66693.635
708 

STATEMENT OF SUSAN RICHARD NELSON, NOMINATED TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF MINNESOTA 

Judge NELSON. Thank you, Mr. Chairman, Ranking Member Sessions, Senators Franken and Klobuchar, and members of the Committee. I want to start by saying it is a profound honor and privilege to be here today. I am deeply humbled by this process. 

I want to thank this Committee for convening this meeting so 

quickly after my nomination. I appreciate the hard work that went 

into doing so. 

I also want to thank Senator Klobuchar, although she’s not here 

for a moment, for her warm and generous remarks in introducing 

me today. I want to thank Senator Franken for his unwavering 

support of my nomination. And perhaps most importantly, I’d like 

to thank President Obama for his trust and confidence in me. I 

take that very seriously and hope to make him proud. 

I, too, am very proud to introduce some members of my family 

and friends who have been so kind to come here to support me 

today. I’d like to start with my husband of nearly 27 years, my 

dearest friend, and I’d ask him to stand, Tom Nelson. 

And our pride and joy, our two boys are here today, our oldest, 

Rob Nelson, lives and works here in the District for the Council on 

Foreign Relations, and our youngest son, Michael Nelson, who is a 

junior at St. Olaf College. And unlike Scott Matheson, I allowed 

him to miss finals and come here today. 

[Laughter.] 

Judge NELSON. We’ll see whose judgment was—also, on behalf of 

the Richard family, my family, my sister, Barbara Richard, is here 

with her youngest child, Jake. The Richards live far and wide 

across the globe and I know they’re all here in spirit. 

I’d also like to thank my dearest friend, Annamarie Daley, my 

best friend in Minneapolis for many decades. She flew here to be 

here today. And my dearest friend from college, Jan Heininger, 

who is here. 

Also, for those of you watching on the Webcast, I am truly thankful for your support. 

And finally, I’d like to acknowledge my in-laws, Tom’s parents, 

Ed and Fern Nelson, who are 89 and 88 years young. And they 

couldn’t be here today, but they have truly provided me for love 

and support for the years and deserve the greatest recognition for 

that. 

Thank you, Mr. Chairman. 

[The biographical information follows.] 

709 


66693.636
710 


66693.637
711 


66693.638
712 


66693.639
713 


66693.640
714 


66693.641
715 


66693.642
716 


66693.643
717 


66693.644
718 


66693.645
719 


66693.646
720 


66693.647
721 


66693.648
722 


66693.649
723 


66693.650
724 


66693.651
725 


66693.652
726 


66693.653
727 


66693.654
728 


66693.655
729 


66693.656
730 


66693.657
731 


66693.658
732 


66693.659
733 


66693.660
734 


66693.661
735 


66693.662
736 


66693.663
737 


66693.664
738 


66693.665
739 


66693.666
740 


66693.667
741 


66693.668
742 


66693.669
743 


66693.670
744 


66693.671
745 


66693.672
746 


66693.673
747 


66693.674
748 


66693.675
749 


66693.676
750 


66693.677
751 


66693.678
752 


66693.679
753 


66693.680
754 


66693.681
755 


66693.682
756 


66693.683
757 


66693.684
758 

Senator CARDIN. Well, let me thank all four of you for being willing to continue service in the public, and I particularly want to 

thank your families, because as I said earlier, this is a family effort. I know it is not easy on your families the amount of time and 

commitment it takes to serve on the Federal bench, and we very 

much appreciate their willingness to join in this effort. 

Before starting the questioning, I want to acknowledge that the 

reason we were able to get this hearing scheduled so promptly was 

the help we received from Senator Sessions in scheduling this, and 

I would yield to Senator Sessions if he wanted to make any opening 

comments. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Well, thank you, Mr. Chairman. These are important positions and teams of staffers and lawyers have checked 

into the backgrounds of the nominees and have looked at that. FBI 

have done background checks and ABA and others. And so I look 

forward to participating in the discussion this morning. 

Thank you. 

Senator CARDIN. I want to start off with the question that I 

asked Mr. Matheson dealing with the oath of office that you would 

take on becoming a judge, and, that is, to—so we get the exact language, it’s to—equal justice to the poor and to the rich. 

I say that because at the trial court level, it becomes more pronounced if someone does not have adequate legal representation 

and in civil proceedings, the ability to get adequate legal representation many times depends upon having adequate resources in 

order to be able to pursue a case. 

And I understand the role of a judge, but I also understand that 

as a judge, you are in the upper pinnacle of our judicial system in 

trying to make sure that equal justice is dispensed and your oath 

requires you to do that without regards to wealth. 

So I guess my question to you is how do you see your role as a 

district court judge in carrying out the oath of office to make sure 

that justice is dispensed equally to the poor and to the rich. 

We will start with Mr. McConnell and then we will reverse it 

next. 

Mr. MCCONNELL. Thank you, Senator Cardin. It would be my 

commitment, if I were fortunate enough to be confirmed by the 

U.S. Senate to serve in the district court of Rhode Island, it would 

be my commitment to ensure total and complete impartiality and 

to ensure that whether the poor or the rich came before me, that 

they would be treated fairly, that they would be treated with respect, and that they would be treated impartially, and that would 

be my commitment in my courtroom. 

My background has included a long history of pro bono service 

in many areas, from time sitting at a homeless legal clinic, dealing 

with very practical problems of people perhaps who have lost their 

license, all the way to litigation on behalf of folks in Rhode Island 

that were develop mentally disabled and lost their home. 

So I would bring that desire for fairness and impartiality to the 

bench with me. 

Senator CARDIN. Judge Bredar. 

759 

Judge BREDAR. Thank you, Senator. Thanks for the opportunity 

to discuss this very important issue. And if I were confirmed, I 

would, I hope, uphold the commitment that I made early in my career to make sure that the poor and those who live in the shadows 

of our society do truly have equal access to our courtrooms. 

My work as a public defender, I think, was completely involved 

with that. You’re right that it becomes a more tricky proposition 

when one is a judge, because you’re not there, of course, to advocate on behalf of anyone, whether they are rich, poor or otherwise. 

But I do think it’s appropriate for judges to do what they can to 

ensure that all parties, including those who are impoverished, have 

access to the courts. I think in the Federal court system, we do 

quite well with respect to the criminal side; and, due to the Congress’ wisdom in passing the Criminal Justice Act in 1974, we 

make available public defenders and panel lawyers to perform that 

service. 

On the civil side, it’s more problematic. I think that judges have 

a responsibility to encourage the bar generally to undertake their 

responsibility, when able to represent the indigent on a pro bono 

basis, to ensure that they have an equal opportunity to be heard 

in court. 

Senator CARDIN. Judge Hollander. 

Judge HOLLANDER. Thank you, Senator Cardin, for that question. 

I have, as my record reflects, 21 years of judicial service. Part of 

that time, I was a trial judge, more recently, of course, on the 

Court of Special Appeals of Maryland. 

In that time, I have had numerous occasions to work with pro 

se litigants and I think my record would reflect that regardless of 

whether they were represented or not, everyone has an opportunity 

to be heard fairly and impartially without bias or prejudice. 

And I think my colleagues will attest, who are present today, 

that there are many times when we do have pro se litigants in the 

appellate court. The court is not able to appoint counsel at our 

level. But those pro se litigants, their submissions, which are often 

very difficult to decipher, receive extremely careful consideration 

and attention; and, in fact, maybe it takes an extra effort, which 

I’ve always expended, to try to figure out exactly what the argument is that is being presented. 

And so I feel very proud of the fact that I have worked very hard 

to make sure that whether someone has counsel or doesn’t, they, 

too, have their day in court. 

Senator CARDIN. Thank you. 

Judge Nelson. 

Judge NELSON. Yes. Chairman Cardin, if you could indulge me 

just one moment, I forgot one of my dear friends. 

Senator CARDIN. You better get that in the record. 

Judge NELSON. I will worry about it the rest of the hearing. Our 

dear friend, Anna Fogel, is here and I want to recognize her for 

being here. 

Senator CARDIN. Absolutely. 

Judge NELSON. You know, in the district of Minnesota, we have 

spent a lot of time as a bar and a bench focused on the issue of 

equal access to justice. And as a magistrate judge for the past 10 

years, on a daily basis, I see people come into my courtroom who 

760 

are probably experiencing the worst day of their lives, whether 

they’ve been charged with a crime, whether they’ve suffered a terrible physical injury, and many of them have had very difficult 

lives. 

Many of them are pro se. And both on the civil side and the 

criminal side, we have attempted in Minnesota to address this and 

we’ve recently implemented a wonderful pro se program, which includes access to our clerk’s office. We give them samples of complaints and other pleadings so they understand how to access the 

court. We have a very sophisticated system of assigning counsel to 

represent them. 

But I think in the end, what’s critically important for a district 

court judge and the best way to deliver equal access to justice is 

through impartiality, through fair and just administration of the 

law to all. 

Thank you. 

Senator CARDIN. Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. Let me ask each 

one of you—let me get exactly where we are here. Each one of you 

will be required to impose sentences. 

And having been a prosecutor for some time, I might be accused 

of having a bias, but I have had the personal experience to see the 

damage that criminals can do to human beings and to society. We 

have sentencing guidelines that, until recently, were mandatory, 

with a few exceptions. 

Sometimes judges think they know better than the sentencing 

guidelines, but in my view, they are pretty good. They were consistent with the view of most judges about how sentences should 

be imposed. 

So I guess I’ll just run down a list. Briefly, if you would, share 

with me to what extent you feel committed to the sentencing guidelines and to what extent do you have any hesitation to provide significant severe sentences, if that’s called for under the guidelines. 

Do you have any personal feelings that would make it difficult 

for you to impose a harsh sentence where appropriate? 

Mr. McConnell. 

Mr. MCCONNELL. Thank you, Senator Sessions. I think the sentencing guidelines are—one of the best aspects and the greatest aspects of the sentencing guidelines is that they offer consistency and 

I think consistency in criminal sentencing is key. 

I think people charged with crimes and victims deserve to know 

that there will be consistent punishment meted out. I think the 

guidelines should be given great deference. I think the guidelines, 

as a product of bipartisan work, deserve that deference by people 

in the know, and I think that I would follow the Supreme Court 

precedent on how to use them. 

But in my own personal circumstance, they would particularly be 

given great deference in sentencing, Senator. 

Senator SESSIONS. Thank you. I think that’s the view of most 

judges. 

Magistrate Bredar, you have criticized the guidelines partially, 

saying that ‘‘offenders and their criminal acts are inherently 

unique and, if justice is to be served, sentences must be imposed 

761 

on a case-by-case basis’’ and that the ‘‘interests of justice are best 

served when discretion is left with the judge.’’ 

And you said in response to the Court’s ruling in the Booker case, 

‘‘I hope Congress will not act precipitously to curtail judicial discretion.’’ 

I would note to you that the Nation went through a national discussion on that issue of case-by-case basis and judge-by-judge 

basis, which is what that really means. And Senator Kennedy and 

Senator Hatch and Senator Biden and Senator Thurman all came 

forward with the sentencing guidelines that I utilized as a prosecutor. 

So I am concerned about that. Do you see any problem with the 

fact that two judges on the same hall, one gets—they get exactly 

the same cases and one sentence gets probation and one gets 15 

years in jail, as used to happen quite often? 

Judge BREDAR. Senator, I hope I look like a young man, but the 

fact is that I was actually working as a Federal prosecutor when 

the guidelines came into place back when they were held constitutional in United States v. Mastretta in 1987. 

And I will agree with you wholeheartedly that there were problems in the country and in the Federal courts with respect to disparity in sentencing and that the guidelines, the genesis of the 

guidelines was that disparity, and it was a very important step forward in terms of advancing justice in this country. 

I not just know of stories, I lived the experience you’ve described 

of getting one sentence in one courtroom and a quite different one 

down the hallway for virtually identical offenses. 

So there clearly was a problem. The guidelines were put in place 

to address that. I think like many prosecutors and defense attorneys during the time when the guidelines were first in place, there 

was a feeling in myself that they were, at times, a bit confining; 

that in a just system of sentencing, there needed to be some room 

for greater flexibility. 

Certainly, not a return to the bad old days where there was really no guidance. 

Senator SESSIONS. Well, your advocacy here is that sentences 

must be imposed on a case-by-case basis. That’s exactly what we 

had previously, and, basically, that says each judge decides, does 

it not, if you do not give deference to the guidelines? 

Judge BREDAR. I think the first principle I want to enunciate is 

that as a magistrate judge, I have been sentencing under the 

guidelines for the last 12 years and I think the record shows that 

my sentencing practice has been right down the middle of the road 

and that I have faithfully applied the guidelines, first and foremost, because they’re the law of the land and that’s the judge’s responsibility, regardless of what views he may or may not have advocated before he became a judicial officer. 

I want to be crystal clear that, if confirmed as a district judge, 

that would remain my policy. I follow the law and if the sentencing 

guidelines are on the books, as they still are, very much, they are 

the first reference point in any sentence that is imposed. 

Senator SESSIONS. Well, that is what I guess I would like to hear. 

[Laughter.] 

762 

Senator SESSIONS. The guidelines are a first reference point. 

They are not binding, however, and I guess my question is if you 

truly believe what you said in that statement and you are no 

longer bound, as you previously were, before Booker and those 

cases, to what degree do you give deference today to sentencing 

guidelines? 

Judge BREDAR. Well, I give the deference that the guidelines 

themselves command and that the law of the United States Court 

of Appeals for the Fourth Circuit requires that I give, which is that 

they are the first place that a judge looks when a judge is crafting 

a sentence. 

And frankly, while the legal language is a bit more technical 

than this, the bottom line is you need to have a darn good reason 

why you are stepping away from the guidance of the Sentencing 

Commission and the experience of so many others with this category and class of offense, and I give great deference to that. 

Senator SESSIONS. Mr. Chairman, I have already run well past 

my time and I do not want to ignore our other two people. But I 

suppose I would be willing to give back my time. I doubt they 

would be offended. 

[Laughter.] 

Senator CARDIN. Thank you, Senator Sessions. I have got a feeling that others will pick up on some of these points. 

Senator Klobuchar. 

Senator KLOBUCHAR. He can go ahead. He was before me. 

Senator CARDIN. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. I had the chance earlier to 

welcome Jack McConnell here. So I think my questions, if the other 

nominees will forgive me, will focus on the Rhode Island nominee. 

You have had, clearly, a very strong political background. You 

and I—you have been for me and you have been against me. I 

would say, on balance, maybe a little bit more against than for over 

the years. 

But one of the interesting things about Rhode Island is that people can have friendships and respect for one another that transcends where you stand politically. 

Senator Reed has great personal confidence that you will be able 

to transcend your political experiences and background and opinions of the past if you become a judge. I want to say I very strongly 

share that point of view and that is why I so strongly supported 

your nomination. 

But not everyone here has had the chance to get to know you in 

that way and to see that element of your character. Not everyone 

here is familiar with the extent to which, in Rhode Island, it is not 

uncommon for people of intensely political backgrounds to become 

judges and how over and over and over again our experience has 

been very successful with them able to set aside that history and 

treat every person who comes before them equally and fairly once 

they have done that. 

Your father-in-law, Justice Shea, was one. On the Republican 

side, Justice Weisberger was another. One of the people who has 

indicated his personal belief in your capability to make that transformation is Judge Selya of the First Circuit, a Rhode Islander on 

763 

the First Circuit, who has served with great distinction for many 

years. 

I have practiced before him. I have never had a moment’s hesitation about his fairness or concern about partiality, and yet he 

came to that job intensely political, working for a Republican Governor, working in politics, active in campaigns. 

And as I said, a lot of people here aren’t familiar with that tradition in Rhode Island or with how successfully judges are expected 

to and do make that leap. In Corinthians, it says, ‘‘When I was a 

child, I spoke as a child, I understood as a child, I thought as a 

child. But when I became a man, I put away childish things.’’ 

I do not want to make a firm equation of political things with 

childish things. There are occasions when politics is not childish. 

[Laughter.] 

Senator WHITEHOUSE. There are occasions when it is. But I do 

think that the Bible’s presumption that there are turning points in 

a person’s life when they put away things of the past and move 

into new responsibilities is something that is very much a part of 

the human condition and very appropriate. 

And I would ask you to make some remarks at this point to assure us that every litigant who comes before you, no matter their 

background, whether they be poor or rich, Democrat or Republican, 

if they are individuals, to know that they will get a fair shake 

against big corporations, that whoever they are, when you are a 

judge, it no longer matters. You have taken a solemn oath and obligation to do impartial justice and you will honor that. 

Mr. MCCONNELL. Thank you, Senator Whitehouse, and thank 

you for that kind introduction. If I could just say that I must have 

been a child when I opposed you politically. 

[Laughter.] 

Mr. MCCONNELL. I now am a man—— 

Senator WHITEHOUSE. But a very effective one, a very effective 

one. 

Mr. MCCONNELL. Sadly for you, yes. 

[Laughter.] 

Mr. MCCONNELL. I do regret it, if I can say so. I am under oath. 

I appreciate that question, Senator. Politics has been an avocation for me. It has been, ever since—I told you earlier I have five 

brothers and I had a dad who politics was an avocation for him. 

He was a local ward Committee person. 

And we would oftentimes struggle to get dad’s attention individually, when you have such a large family as I do. And so I picked 

up, when I was about 10, walking the ward with him and distributing the leaflets and whatnot and as we say in Rhode Island, I 

sort of caught the bug. 

But that was my avocation. That was what I said, because I believed in a cause or I believed in a particular candidate, which we 

have been very fortunate in Rhode Island over time to have. 

My professional life has been as a litigator. For 25 years, I’ve 

tried cases, and the politics has never gotten in the way. 

I was telling someone the other day, while I have contributed 

and supported and helped in campaigns, I don’t believe I’ve ever 

asked for anything. I don’t ask for White House tours. I don’t ask 

764 

for Senate gallery seats. I just don’t ask for anything. It is an avocation, because I truly believe in the public service it’s done. 

And my dad taught me very early on that if you believe in something, then you need to support it, and I’ve tried to do that. 

If I am fortunate enough to become—to be confirmed by the Senate and become a judge, I commit to you and to the people of the 

state and the country that I’d leave that behind. 

I have been involved in politics and I have been a trial lawyer. 

That was my job. I did it professionally, I did it fairly, I did it ethically for many, many years. 

Again, if I’m privileged enough to be confirmed, I make that 

same commitment to impartiality, to fairness, and to the rule of 

law, because that is what my job would be. And I make that commitment to you and to the entire Committee and the Senate. 

Senator WHITEHOUSE. Thank you. I have gone a moment over my 

time, so I am not going to ask any further questions. But I do want 

to make sure, Mr. Chairman, that the letter from Mayor Scott 

Avedisian, who is the second senior ranking Republican official in 

Rhode Island, the letter from Justice Weisberger, who is a very distinguished Republican member of the Rhode Island Supreme 

Court, now serving on senior status, that the letter from my predecessor as attorney general and our last Republican attorney general, Jeffrey Pine, are also in the record; that my successor as the 

state director of business regulation, Republican Barry Hittner, is 

in the record; that the letter from John Harpootian, who is an extremely active Republican political figure in Rhode Island, on the 

current Republican Governor’s sort of inner circle of advisers and 

very important part of his political campaign, again, supporting 

Jack McConnell is in the record; and, the statement from Judge 

Selya in the Providence Journal, with his assurance that Jack 

McConnell can make this transition; and, finally, a letter from the 

former Republican attorney general and now member of the United 

States Court of Appeals for the Third Circuit, Michael Fisher. 

I believe that they are all in the record, they are in my package, 

but if not, I would ask unanimous consent that they be put into 

the record. 

Senator CARDIN. Without objection, they will be included in the 

record. 

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

Senator CARDIN. Do you have any Democrats that are supporting 

him? 

[Laughter.] 

Senator WHITEHOUSE. There may be one or two. 

Senator CARDIN. Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. Let me welcome all of 

the panelists and all of the family members who are here. 

I hope that, since I am going to concentrate, Mr. McConnell, on 

questions to you, that the others will not feel slighted or that the 

members of your family will feel slighted. Believe me, the panelists 

are not—do not feel that way. 

Let me ask you questions that will both follow-up on what Senator Whitehouse was just talking about and then one other line of 

inquiry. 

Do you believe that health care is a right of citizenship? 

765 

Mr. MCCONNELL. I have never studied the issue legally, Senator 

Kyl, so I don’t have an opinion on that. 

Senator KYL. Well, the reason I ask is that you were quoted in 

2003 in the Providence Journal Bulletin as saying, and I quote, 

that ‘‘affordable, accessible and quality health care should be a 

right of citizenship.’’ 

And that caught my attention, because I think it is hard to find 

a place in the Constitution, a particular provision, which would 

support that view. And so I was curious why you said it, if you remember saying it. 

Mr. MCCONNELL. I do. I believe it was in an op-ed in 2002 concerning democratic principles and values in the state, if I recall. 

Senator KYL. Correct. I have 2003, but—— 

Mr. MCCONNELL. 2003, it was, after the 2002 election. I think 

what I said in there, that were certain values that I believed that 

the state Democratic Party should unite around, education, work in 

the inner city, health care at the time, perhaps inappropriately, 

perhaps I meant universal health care, meaning that everyone 

should have health care for the system to work, and certainly was 

not speaking in any legal fashion. 

Senator KYL. Well, when you say it should be a right of citizenship, what else could you mean other than that the law would require it? 

Mr. MCCONNELL. Well, what I think I meant, Senator Kyl, was 

that as a party, that one of the values that we should profess as 

a state party was that health care for all people was so fundamental; that perhaps I took a little bit of liberty by saying it rises 

to the level of citizenship. 

Senator KYL. All right. This then will be the lead-in to the final 

question that Senator Whitehouse was about to ask you, I am sure, 

which was, in effect, tell us how we can be assured by you that 

views like the one I just expressed, a strong political view that 

something should be the case, will not creep into your decisionmaking. 

I mean, I can interpret that as you saying this is the law or the 

Constitution, it should be a right of citizenship. And because you 

believe that, presumably, still as a political matter, a case may 

come to you where the question is, well, is that, in fact, the law 

and the tendency to wish that something could be true could well 

color your view when you read the law. 

What can you say to assure us that this will not be the case? 

Mr. MCCONNELL. Senator Kyl, it would be inappropriate for it to 

color my view, if I’m fortunate enough to be confirmed by the Senate. I deeply understand that the role that I’ve played as an advocate in the courtroom or as an advocate in the political system for 

political beliefs are left behind. 

Those, in fact, to follow on Senator Whitehouse’s analogy, those 

were the thoughts and actions at the time of an older child. But 

the reality is that the duties—I have followed my ethical and professional duties as an advocate in the courtroom unblemished and 

I would bring that same commitment to follow the law, a judge’s 

responsibility of applying law to facts. 

Senator KYL. I appreciate your commitment to doing that and 

you understand why it important to do it. 

766 

And another, you gave an interview in which you said, and I 

quote, ‘‘There are wrongs that need to be righted and that’s how 

I see the law.’’ Well, most of us believe some version of that. 

But the question is when you are in a position to right those 

wrongs, as a judge, would you tend to do so, even though the law 

may be contrary to that particular result? And what I am asking 

for, and I thought Senator Whitehouse kind of invited the same 

thing, is what is it that would lead us to believe that you can actually do that. 

I am sure you want to assure us you can. I practiced law for 20 

years. I left politics out of the practice of law. It is kind of hard 

to involve it. I mean, you have got a client and a bunch of facts 

and politics does not have much to do with it. 

But judging, you could actually right the wrong, you have got the 

power to do it. The legislature just did not get the job done, you 

might conclude. And by your ruling, you could make it happen and 

you would like to see it happen, but the law just does not seem to 

be that way. 

So how can we be assured that you would not read the law to 

right that wrong? 

Mr. MCCONNELL. Because I would have a different role, Senator. 

My role as an advocate was to do that and a look at my record will 

show an unblemished record of 25 years of professional, ethical, 

fair conduct, never called into question. 

I would bring those same values with me to the bench. I understand that the role of a judge is not to make law. There are other 

branches of government or the legislature that does that. The role 

is to apply the facts to the law and follow precedent. 

I’m a firm believer in following precedent. I believe, as I said earlier to Senator Sessions, consistency in the law is important, and 

that would be my goal as a judge, to be a fair and impartial arbiter 

of the law by applying them to the facts in the case before me. 

Senator KYL. Thank you. My time is up. I will have one other 

round of questions, if I may. 

Mr. MCCONNELL. Thank you, Senator. 

Senator CARDIN. Senator Klobuchar. 

Senator KLOBUCHAR. Well, thank you very much, Mr. Chairman. 

Thank you. I am sorry I was not here when you all sat down and 

introduced your families. I was meeting with a nominee for another 

court, one in Washington, DC., but I quickly ran over here, ended 

the meeting actually to say that I had to be here for our nominee. 

But I wanted to just, first of all, Mr. McConnell, before I address 

some questions to our two nominees at the end of the table here— 

that quote that I was listening that Senator Kyl read about the 

health care. 

So even back then in your advocacy role, you were not talking 

about a constitutional right. You were talking about that something had to be done, like a law change. Is that what you meant 

by that? 

Mr. MCCONNELL. I meant that the political system should take 

up the issue to assure that people have health care, yes, Senator, 

not in a legal or a rights sense at all. 

Senator KLOBUCHAR. All right. Thank you. Anyway, back over 

here to the other end of the table. You both have served as judges 

767 

and I know you, Magistrate Nelson, as a magistrate. And I wondered how that experience has changed your view about the job 

that you seek now; how that experience being a judge, how it has 

been different than you thought and how you think it will make 

you a better judge. 

I guess I will start with you, Magistrate Nelson. 

Judge NELSON. Thank you, Senator Klobuchar, for the opportunity to respond to that question. Over the past 10 years as a 

magistrate judge, day in and day out, as I mentioned before, I see 

folks come to court who are in desperate straits and it has become 

clear to me that we need to provide good and full access to everyone to our system of justice and that our system of justice must be 

totally fair and impartial. 

And we all, when we look at what happens around the world, develop a deeper appreciation for the importance of the rule of law. 

And as a judge for many years now, I revere the rule of law, because it is so critical to the functioning of a good society. 

Senator KLOBUCHAR. Judge Hollander. 

Judge HOLLANDER. Thank you, Senator, for the question. As I 

know my record reflects, I have 21 years of judicial service, a portion on the trial court and, more recently, a portion on the appellate court. 

And in the capacity of both trial court and appellate court situations, I’ve had the opportunity to consider a wide array of issues 

and multiple questions. I’m always amazed at how many things 

seem to be new. 

I suppose judges are the last remaining generalists. But this has 

given me the confidence to believe that whatever the issues might 

present in terms of Federal court, that I would be well equipped 

to resolve them, because I have the basic tools to use these skills 

to answer the questions. 

And I also believe that my service as an assistant U.S. attorney 

and a Federal law clerk will come in very handy as I return, I 

hope, with any good fortunate and, hopefully, confirmation to the 

Federal system. 

Senator KLOBUCHAR. Thank you. Magistrate Nelson, I want to 

touch specifically on the role of a magistrate here and I know that 

you—we focus a lot on criminal cases and sentencing guidelines in 

a lot of our questions, and, certainly, I think like that as a prosecutor, former prosecutor. 

But civil cases are such an important part of the Federal workload and some of them are very complex. And I know that you have 

a record of being able to bring parties together in consensus and 

settle cases that are very complicated and you have a reputation 

of bringing the most cases to settlement of just about any magistrate judge. 

Could you talk about how you do that and why you think that 

can be a good way to resolve disputes? 

Judge NELSON. Thank you, Senator, for that question. I think in 

your opening remarks, you commented on the fact that we have 

about 5,000 civil filings in the district of Minnesota each year and 

we have seven active district court judges. 

And so our district court has determined that its highest and 

best use of its magistrate judges is to attempt to settle cases. And 

768 

two to three days a week, we bring parties together in lengthy, 

complicated settlements. 

You know, litigation is so costly these days, too, that in many 

ways, that brings about justice earlier in a case in a way that’s 

cost-effective and it’s an important opportunity for us as a court to 

provide to the parties and lawyers. 

I also think to be a good settlement judge, a magistrate judge 

has to gain the respect and rapport of both sides, because once you 

lose the respect and rapport of one side, they won’t engage in the 

settlement process. And by nature, settlement is difficult. It’s a 

compromise and it’s difficult not to win. 

And so I think it requires certain skills, but most importantly, 

that the parties do trust you and respect your judgment on assessing the strength of their cases. 

Senator KLOBUCHAR. Very good. And you have also had trials, is 

that right, that you have overseen trials, as well? 

Judge NELSON. As a magistrate judge. Certainly, in my private 

practice, I have been in many trials and as a magistrate judge, I 

have had three trials to verdict. 

Senator KLOBUCHAR. All right. Well, very good. Thank you very 

much. Thank you, all of you, and good luck. 

Senator CARDIN. Senator Franken. 

Senator FRANKEN. Just to start, Mr. McConnell, I believe that 

people have a right to health care, but I know that it is not in the 

Constitution and I do not think I would be confused, and I am not 

even a lawyer. 

[Laughter.] 

Senator FRANKEN. You talk about giving up childish things. I 

talk about doing that. 

[Laughter.] 

Senator FRANKEN. All right. Judge Nelson, I am really impressed 

by your record of volunteering as a mentor to the disadvantaged 

kids and disadvantaged students. What impact do you think those 

experiences have had on your work as a magistrate judge? 

Judge NELSON. Thank you, Senator Franken. I appreciate the opportunity to address that question. When I graduated from law 

school in the late 1970s, I found myself in this new profession with 

very few mentors. I didn’t know any women judges, I didn’t know 

any women partners, and I didn’t know any women politicians. 

I barely knew any women who worked outside the home. And I 

always promised myself that if I enjoyed some success in this profession, that I would turn around and provide mentorship to those 

who also didn’t have mentors in their lives, and I think it’s essential to do that. 

I mentor at every level. We have a wonderful program that came 

out of the seventh circuit, actually, which Judge Ann Williams of 

the seventh circuit began the program, and that is to provide 

mentorship to disadvantaged children in high schools, and we’ve 

done that in Minneapolis and in many other parts of the country. 

I’ve also provided mentorship at the college level and at the law 

school level. And I believe it gives everybody a sense that they can 

do what they dream of. 

Thank you. 

769 

Senator FRANKEN. Thank you. Mr. McConnell, you engaged in a 

wide variety of pro bono litigation, including on behalf of immigrants and the homeless and persons with disabilities. 

How do you make the decision? How do you decide where to devote your pro bono time? 

Mr. MCCONNELL. Thank you, Senator. That’s a good question. I 

hadn’t thought of it. In some cases, it knocks on your door. In some 

cases, you volunteer time, as I have, with the homeless legal clinic 

and you sit at a table where social services are offered to homeless 

people, including time with an attorney, and that’s where the rubber really hits the road and you find legal problems that—a man 

who lived in his car who needed his car, but didn’t have his driver’s 

license, and needed to move it and you work and try and get him 

his license back, which we successfully did. 

So sometimes you make yourself available to it, and that’s 

been—and sometimes they come back at you. I had an instance, 

Senator, where I represented four developmentally disabled adults 

who had spent most of their time in an institution, who had lived 

successfully in the community in a residence, and the state moved 

them out and wanted to put them back into another institution and 

they landed on my door and we went to court and got an injunction 

to stop it. 

They left them alone for 12 years and then tried it again. And 

they came back at my door and knocked again and we went back 

to court the court reviewed it and issued an injunction to stop it. 

So they come in a variety of different ways and you always can 

expect them. 

Senator FRANKEN. Sounds pretty haphazard. 

Mr. MCCONNELL. It is oftentimes, Senator. 

Senator FRANKEN. Judge Nelson, as Senator Klobuchar mentioned, you have served as a magistrate judge for 10 years. What 

are some of the most notable settlements that you have had? Can 

you describe one? Most people think of magistrate judges doing 

civil. Can you name one that is just sort of memorable in a way 

that is illustrative of how you will be a Federal judge? 

Judge NELSON. Sure. 

Senator FRANKEN. That is a hard thing to put together. Do your 

best. 

Judge NELSON. Sure, Senator Franken. Thank you. I have had 

many settlements that I have been very proud of. And so I don’t 

mean to slight anybody by selecting one, but one that I’m especially 

proud of is a case known as Pagliolo v. Guidant. Guidant, a very big company, of course, engaged in a reduction 

in force and laid off hundreds and hundreds of employees and in 

doing so, it was alleged, their decisions had a disparate impact on 

older employees. That was the allegation in the case. 

So there were a class of the employees who had been fired or laid 

off who sued and it was a very emotional case. Many of those people had worked for 20 or 30 years for the company and the company felt very strongly that they had carefully considered their RIF 

to ensure that it would have no disparate impact on age. 

And it took us several long days to work through it, but we were 

able to reach consensus on it, and I’m particularly proud of it. 

Senator FRANKEN. Thank you. Thank you, Mr. Chairman. 

770 

Senator CARDIN. We will have a second round, because I believe 

that Senator Kyl does want to ask some questions, and Senator 

Sessions. 

Let me just ask, if I might, a couple questions, then I will turn 

it to my colleagues. 

Judge Bredar, you are in your second term as a magistrate 

judge, having served there for over a decade. What experiences do 

you take out of your being a magistrate judge that, if you are confirmed, sir, as a district court judge, you would use to try to improve the administration of justice in the Maryland district using 

the district court judges and experiences that you have had a magistrate judge to try to make the system more efficient? 

Judge BREDAR. Thank you, Senator Cardin. Echoing some of 

what Judge Nelson has said, a critical role that magistrate judges 

play in the district of Maryland is in settling cases or attempting 

to. And if there were a retail level of judicial work in this country, 

I believe it is when judges are at the settlement table face-to-face 

with the litigants and the lawyers who represent them. 

From that experience, a judge develops a deep sense of just how 

extremely important the issues are involving ths litigants, but not 

just how important it is to them that the case ultimately be resolved, but also that it be done in a timely manner; that there not 

be delays. 

You, I think, have some distance as a district judge in a way that 

a magistrate judge doesn’t, so that when you grant a postponement 

or you are unable, for whatever reasons, to get a prompt decision 

or opinion out, you’re maybe not quite as aware of the impact that 

that has on people’s lives and abilities to run their businesses, to 

conduct their personal affairs and so forth. 

As a magistrate judge, you hear those stories, because you sit 

with those litigants in settlement conferences. And I firmly believe 

that while, certainly, a lot of what you’re hearing about is the substance of the case, you also hear a great deal of their frustration 

with the process itself. 

And a lot of that has to do with how discovery is conducted, how 

long it takes for rulings to be made, why was my trial postponed, 

and these sorts of things. 

I will take with me that experience, if I’m so fortunate as to be 

confirmed. These are real people. Our decisions, even our administrative decisions, have real consequences in their lives and in the 

operation of their businesses, and nothing is unimportant that a 

United States district judge does. 

Senator CARDIN. Thank you. Thank you for that answer. 

Judge Hollander, you would bring considerable State judicial experience both at the circuit court level and at the appellate court 

level. 

As you know, I come from the a family of a circuit court judge 

and a State judge and I know, at times, there is a view that even 

though our Federal court and State court are only located a couple 

blocks apart, that there is a real difference as the way the pace of 

justice in the two courts. 

How do you see taking the experience in the State court and how 

will your adjustment be moving to the Federal bench? 

771 

Judge HOLLANDER. Senator, thank you for the question. And I 

hope it’s appropriate to say that I knew your father. He was a wonderful man and, obviously, the apple didn’t fall far from the tree, 

and I do feel compelled to say that, since you mentioned him. 

I think my service—— 

Senator SESSIONS. That is OK, you are under oath. 

[Laughter.] 

Judge HOLLANDER. And every word was true. I was a young lawyer when he was on the bench and he was very kind to me. 

I think my State service will serve me enormously well, if I am 

fortunate enough to be confirmed. Many of the issues that come before the State courts often involve questions of Federal law. Obviously, in the criminal arena, we see Fourth, Fifth, Sixth Amendment issues, Eighth Amendment issues. 

In the civil domain, we have cases from which we draw upon 

Title VII, ADEA cases. We’ve had many cases involving issues 

under both the civil rules of procedure and the criminal rules of 

procedure. Our State rules are modeled on the Federal rules. 

And I’ve had a number of cases over the years where we’ve had 

to look by analogy to the State—in State law, drawing on Federal 

cases to answer the questions. 

So I feel very comfortable that my service as a State judge will 

be enormously helpful, if I am fortunate enough to be confirmed. 

Senator CARDIN. Senator Sessions. 

Senator SESSIONS. Mr. McConnell, looking at a couple of your 

statements that Senator Kyl asked you about, and I have a lot of 

good friends who are good trial lawyers, this seemed to fit a number of them. 

’’I am an emotional person about injustice at any level, personal, 

societal or global. There are wrongs that need to be righted, and 

that’s how I see the law,’’ closed quote. So I think being passionate 

and zealous is a good quality for a litigator, and it seems to be that 

way for people who are highly successful in the plaintiff bar. 

But I do think those qualities are somewhat different cloistered 

halls of a courtroom, where you are reading briefs and trying to be 

objective, and those emotions might start running and you might 

see that there is a wrong there that I need to right. 

Do you feel like—I will just ask you again. Do you feel that you 

can—that you are seeking the job as the kind of judge I believe we 

need, one that calls the balls and strikes, does not take sides in the 

ball game and fairly adjudicates the just result of the case based 

on the law and the facts? 

Mr. MCCONNELL. I do, Senator Sessions. My job as an advocate 

in the courtroom was my job to advocate. My ethical responsibilities were to do it zealously and I believe, for 25 years, I did that. 

I oftentimes, in some of the cases—the people that I represented, 

you would develop relationships with and you would advocate on 

their behalf. That was what I saw as my role. 

But my role would definitely be different as a judge. I have—— 

Senator SESSIONS. After you try a case—I am a little bit taken 

aback by the op-ed criticizing the court that ruled against you 4:0 

on one of these cases. It seemed to me that was a bit unusual. Most 

people that make sure they have calmed down good after the case 

772 

is over before they write an op-ed criticizing the court that 4:0 

ruled against them. 

Do you have any second thoughts about that op-ed that you 

wrote? 

Mr. MCCONNELL. Only, Senator Sessions, in that I’ve been asked 

a lot about it during this process and if I hadn’t written it, I 

wouldn’t have had to talk about it so often. 

And are there word choices that perhaps you would choose differently? Sure. We have a tradition in Rhode Island. We’re many 

years without a law school, and lawyers oftentimes would be the 

ones that would need to critique the law. 

I can recall back in 1983, when I was clerking, he went on to become Justice Flanders on our Rhode Island Supreme Court, wrote 

a very strident op-ed against an opinion that the Rhode Island Supreme Court had written and that, since that time, has sort of been 

our tradition to critique the law and—— 

Senator SESSIONS. Well, it is all right to point out why you might 

think—I think it is a free country. It is not normally done by most 

good lawyers I know. But I do think you can speak out about litigation. 

But you accused the court of letting, quote, ‘‘wrongdoers off the 

hook.’’ That is the kind of results-oriented criticism that makes me 

uneasy. 

You understand what I am saying? 

Mr. MCCONNELL. I do, Senator. 

Senator SESSIONS. A very important distinction, is it not? 

Mr. MCCONNELL. It is, Senator. 

Senator SESSIONS. So you are accusing the court of deliberately, 

the way I would look at that quote, as crafting a result that let 

wrongdoers off the hook. And maybe they had no choice under the 

law but to rule against you. 

I could see you questioning their analysis of the law, but that 

conclusion—would you explain how you felt comfortable using those 

words? 

Mr. MCCONNELL. I will try, Senator. Thank you. Taken in context, Senator, it was the State’s belief that the public nuisance law 

of Rhode Island that had been in existence for 200 years was the 

appropriate avenue for the State to choose, given the fact some of 

the law of the State of Rhode Island at the time, to bring this case. 

That was done. It was tried before a jury. The jury returned a 

verdict for the State. The trial judge affirmed the verdict under 

that longstanding law. And it was appealed to the Supreme Court. 

The Supreme Court disagreed. They disagreed with the State’s 

analysis of the law, and the results of that were that the law, as 

the State perceived it at the time and I, as their counsel, was overturned, that had existed for centuries in our State. 

And the effect of that change of law were, according to the allegations that the jury found, that wrongdoers were let go. It was 

not—— 

Senator SESSIONS. Well, the judges of the court somehow decided 

to let these wrongdoers go and change established law, is that your 

testimony? 

Mr. MCCONNELL. I apologize, Senator, I missed the first part of 

the question. 

773 

Senator SESSIONS. It is your testimony that all four of the judges 

who reviewed this case changed the law so that they could let 

wrongdoers off the hook. 

Mr. MCCONNELL. No, Senator, not so that they could, two independent clauses. We believed—the State believed that the law— 

that the Supreme Court overturned and changed longstanding public nuisance law, period. That’s—— 

Senator SESSIONS. Well, I will take a look at that, but I am not 

so much concerned about whether or not you criticized them for, 

quote, ‘‘changing the law,’’ if that is what they did. I am more concerned by your characterization of it as suggesting they had some 

desire to let wrongdoers off the hook. 

Mr. MCCONNELL. I did not intend to give that perception and I 

believe in that op-ed, Senator, we referenced the longstanding 

change in law that we—that the State alleged took place because 

of the Supreme Court opinion. 

Senator SESSIONS. My time is up. Thanks, Senator. 

Senator CARDIN. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. As the lead attorney in the 

early parts of this case, I can add my two cents on that, because 

I was probably even more disappointed and dismayed by the Supreme Court’s decision than Jack McConnell was. 

I argued all of the early dispositive motions personally. I was 

very familiar with the law. We had done extensive research; I had 

done extensive research. The public nuisance theory was one that 

I had brought forward. I had done previous public nuisance cases. 

I thought it fit perfectly. 

The trial judge in this case was a gentleman named Michael Silverstein. He is a very tough, smart business judge. He ran the 

business calendar on the Rhode Island Superior Court. 

I do not think there is a judge on the Superior Court who would 

not say that he is, if not the best, one of the very best judges not 

only now on the Superior Court, but in its history. 

This trial was the longest trial in Rhode Island history. It 

spanned my tenure as attorney general and went into the next attorney general’s tenure. It was Attorney General Lynch who ultimately won it at trial. 

Judge Silverstein is an extraordinarily distinguished person. I 

think that we—between the independent judgment that we reached 

about where the law was, the confirmation we got over and over 

through dispositive motions and rejection of motions to dismiss and 

overturn the verdict and all that we got from Judge Silverstein, 

that there was a very strong sense that had actually gotten a conviction that should stand and that the trial judge and the trial jury 

had both established that these were indeed wrongdoers. Period. 

And then when the Supreme Court changed the law, it did have 

the effect of letting these defendants, who had been determined to 

be wrongdoers both by a jury of their peers and by the very, very 

capable, very no nonsense trial judge, and they got off the hook. 

So I actually can remember calling Jack when I saw the piece 

and to say I thought you kind of let them off easy, actually, but 

I am glad you did not consult with me on it. 

So I just wanted to add that comment. I have some personal experience with that. 

774 

Senator SESSIONS. (Off microphone) because I value your experience and judgment on this matter. 

Senator WHITEHOUSE. The other thing I would add—and I have 

got a little time remaining, I think. I just want to highlight some 

of the things that some of our Republicans have said. 

I know the letters are in the record. But Scott Avedisian has 

said, ‘‘As the Republican mayor of Rhode Island’s second largest 

community, I’ve always firmly believed that the ability to reach 

consensus among people of different points of view is critical for the 

well being of our residents and our state as a whole. In the time 

I’ve come to know Jack, I’ve realized he shares the same philosophy. I believe that Jack would be a valuable asset to the bench 

and a good representative of Rhode Island in the Federal court system. I am proud to offer this recommendation.’’ 

Justice Weisberger concludes his letter that ‘‘Jack McConnell 

would be superbly qualified to preside as a Federal judge over the 

most challenging and complex cases. He is a man of keen intelligence and impeccable integrity. He would be a splendid addition 

to the distinguished bench of the United States District Court of 

Rhode Island.’’ 

Attorney General Pine concludes that ‘‘There is no question, in 

my mind, that Jack would be an honest, principled, ethical and fair 

judge. He would be a credit to our state and to our judiciary. He 

has earned this prestigious position for his many years of hard 

work, legal experience and success as an attorney, as well as his 

position in the community as a respected civic leader and family 

man. I enthusiastically support his candidacy for a position on the 

Federal bench.’’ 

And then John Harpootian, who is actually an official—he is vice 

Chairman of the state Republican Party. ‘‘Time and again, Jack 

has proven that he is a man of great principle and integrity. While 

being a vigilant advocate for his clients in the causes that he has 

taken up during his professional career, Jack has always conducted 

himself in the most ethical and professional manner. One of the 

greatest characteristics that I admire about Jack so much is that 

despite political differences of opinion, he never allowed those differences to become personal or to cloud his judgment. These characteristics lead me to unqualifiedly support Jack’s confirmation to 

the United States District Court of Rhode Island.’’ 

Judge Fisher of the Third Circuit writes to most favorably recommend Jack McConnell and to conclude that ‘‘He is an outstanding nominee to serve on the U.S. District Court for the District of Rhode Island and I enthusiastically support his nomination.’’ 

The last thing I will mention, as my time runs out, is that I 

know that the United States Chamber of Commerce has taken a 

position, kind of extraordinarily for a trial judge, supported by both 

Senators of the home state. The Greater Providence Chamber of 

Commerce, which is the largest Chamber of Commerce in Rhode Island, has distanced itself from that opinion and has said, ‘‘The 

Greater Providence Chamber of Commerce was not consulted at 

any point in the process by the United States Chamber of Commerce or its Institute for Legal Reform as to our views relative to 

the nomination of Mr. McConnell. The Greater Providence ChamVerDate Nov 24 2008 08:06 Jul 27, 2011 Jkt 066693 PO 00000 Frm 00784 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\66693.TXT SJUD1 PsN: CMORC
775 

ber of Commerce has never endorsed nor opposed nominees running for the Federal or state judiciary.’’ And then it concludes, ‘‘We 

would point out that Mr. McConnell is a well respected member of 

the local community, leading important civic, charitable and economic development institutions.’’ 

So the anxiety that seems to appear in some quarters is really 

not shared in Rhode Island from the business community, through 

our own Chamber of Commerce, through very significant Republican leaders and officials, and certainly throughout the legal community, and Senator Reed and myself. 

Senator CARDIN. Senator Kyl. 

Senator KYL. Thank you, Mr. Chairman. Since we are discussing 

this lead paint litigation, let me ask you about that. 

The information I have is that you were awarded the no bid contingency contract in 1999 by the State of Rhode Island to bring suit 

against the former manufacturers of lead paint. Is that correct? 

Mr. MCCONNELL. My law firm, along with another law firm, was 

engaged by then Attorney General Whitehouse pursuant to his 

powers, statutory powers to do so. 

Senator KYL. This is the litigation we were just talking about. 

Right? 

Mr. MCCONNELL. Yes, Senator. 

Senator KYL. And the news reports, at least some of them, suggest that it was you who approached the Rhode Island attorney 

general. Did you? 

Mr. MCCONNELL. I did not. 

Senator KYL. You did not. 

Mr. MCCONNELL. No, Senator. 

Senator KYL. All right. Do you know how the representation 

came about? 

Mr. MCCONNELL. I do, Senator. 

Senator KYL. Was it somebody else in your law firm that approached the attorney general or did he approach them or how did 

that come about? Do you know? 

Mr. MCCONNELL. No, Senator. The case came about when our 

firm was engaged in certain cases on behalf of children that had 

lead poisoning in the ordinary course of claims against homeowners’ insurance or against the landlord, and we had been involved in that throughout the country. 

When I represented the state in its tobacco lawsuit, then Attorney General Pine, Republican Attorney General Pine was the attorney general and I would sit and brief him on the negotiations and 

ultimately the settlement, so that he could make a decision whether to sign onto it or not. 

He brought up the fact that he had started a task force working 

on lead paint issues. We had a very, very—we had thousands of 

children—— 

Senator KYL. Let me just interrupt you. This is not that big a 

deal as to who said what to whom here. I am just trying to—— 

Mr. MCCONNELL. It was actually Attorney General Pine who 

asked me to put it together. I left a binder. He was on his way out. 

He said, ‘‘I can’t saddle the next attorney general with this,’’ and 

he left the analysis for incoming Attorney General Whitehouse. 

776 

Senator KYL. Good. You are familiar with criticism in the media 

about representation of your firm in some of this litigation, are you 

not? 

Mr. MCCONNELL. I have seen it, yes, Senator. 

Senator KYL. And some of that may be relative to your—I mean, 

after your nomination to serve on the court, obviously. 

Would you say that either you or other partners at Motley Rice 

did anything to encourage this particular kind of litigation over 

lead paint? 

Mr. MCCONNELL. We were asked to analyze the law and the facts 

in the case and we prepared an analysis and a binder and turned 

it over to then Attorney General Pine and then to Attorney General 

Whitehouse. 

Senator KYL. Well, let me ask it a little bit more broadly. After 

you got the verdict in the case we are talking about, the one that 

was overturned by the Rhode Island Supreme Court. 

Mr. MCCONNELL. Yes, Senator. 

Senator KYL. One newspaper described you, and this is a 

quotation, as ‘‘the lead lawyer in the Ohio lawsuits’’ and quoted you 

as saying, and I am quoting, ‘‘The movement is gaining steam. We 

have seen it in both the Rhode Island trial and in three or four appellate court decisions, all of which have ruled against the lead 

paint industry.’’ 

Do you think it is right for lawyers to bring lawsuits as part of 

a movement against an industry? 

Mr. MCCONNELL. No, I don’t, Senator, and—— 

Senator KYL. Do you think that quotation was inaccurate, as 

quoting you—and I will say it again. Let me just figure out the 

quotation here. 

From the New York Times, January 6, 2007, quoting you as saying, ‘‘The movement is gaining steam. We have seen it in both in 

the Rhode Island trial and three or four appellate decisions, all of 

which have ruled against the lead paint industry.’’ 

Mr. MCCONNELL. I think if—I don’t particularly remember the 

article, Senator. I apologize. I believe it was a general story about 

the state of lawsuits nationwide against former manufacturers of 

lead pigment in paint and I believe what I was saying was after 

many years of rulings that went in favor of the pigment industry, 

that there had been a series of rulings, Rhode Island, Ohio, California, and others, that actually—it had shifted—— 

Senator KYL. Gone the other way. 

Mr. MCCONNELL. Right. It had shifted from sort of unanimous 

one side to—after Attorney General Whitehouse brought the Rhode 

Island case, it sort of shifted legally the other way. It was sort of 

a—— 

Senator KYL. So you are quoted as saying ‘‘The movement is 

gaining steam’’ and then you referred to Rhode Island and three or 

four other appellate decisions. 

Mr. MCCONNELL. There had been a period where more of the law 

was being defined in favor of the government entities who were 

bringing these cases, yes, Senator. 

Senator KYL. I am just curious then. You say it is not right for 

lawyers to bring lawsuits as part of the movement against an industry, but it sounds like that is exactly what you were saying. 

777 

Mr. MCCONNELL. No. What I was saying was that the legal opinions that this—I believe—again, I don’t recall the article, exactly, 

but that the legal opinions that the courts were issuing—the attempt to—the cases were being brought against lead pigment companies back maybe into the 1970s. My dates may be off a little bit. 

And there were a series of them where courts had ruled that it 

wasn’t applicable, for a variety of reasons. 

And then after an analysis in Rhode Island under the public nuisance law and the judge’s ruling there and in a few other places, 

it had sort of shifted. It was sort of more of a historic comment, 

Senator, than it was anything beyond that. 

Senator KYL. I understand. My 5 minutes is up. It is kind of 

hard to have continuity in questioning when we have this kind of 

limitation. 

I understood the point you were originally trying to make, but 

if I can—and I have a couple more minutes’ worth of questions just 

as a follow-up to this. My point really was not only is it right to 

seek this as a movement, but whether you actually encouraged 

these lawsuits in other states, you or your law firm. Did you? 

Mr. MCCONNELL. No, Senator, we did not. 

Senator KYL. Are you aware of any role by the Association of 

Community Organizers for Reform Now, that’s ACORN, in how 

those cases might have come to be filed? 

Mr. MCCONNELL. No. Neither I nor my firm have had any relationship with ACORN. 

Senator KYL. Mr. Chairman, I have just two other quick questions. 

Senator CARDIN. Without objection, Senator. 

Senator KYL. Thank you. I appreciate it. One has to do with a 

letter that was written on June 4, 2009, the Public Nuisance Fairness Coalition wrote a letter to Attorney General Holder asking the 

Department of Justice to look into several allegations of wrongdoing related to the Rhode Island lead paint case that you handled. 

Are you aware of that letter? 

Mr. MCCONNELL. I have seen it, yes, Senator. 

Senator KYL. All right. Has any—— 

Mr. MCCONNELL. Not from them. 

Senator KYL. From some other source. 

Mr. MCCONNELL. Yes, Senator. 

Senator KYL. Did any law enforcement official contact you regarding the allegations in it? 

Mr. MCCONNELL. No, Senator, they didn’t. 

Senator KYL. All right. And so are you aware of whether any investigation is ongoing or has been concluded? 

Mr. MCCONNELL. I have heard nothing of it other than when I 

received that and I was sort of outraged by the false accusations 

that were contained in there. 

Senator KYL. Thank you. My last question is just this, and if you 

would like to, rather than taking time of the Committee, reflect on 

this and provide a written answer, that is fine with me. 

It just is the general question of how you would view recusal in 

cases of this kind given your substantial involvement in whether 

it be lead paint or tobacco litigation. And I do not know that I am 

even asking a specified question here, other than as you look at 

778 

how you would have to deal with this as a judge, have you thought 

about it and if you would think about it, how do you think you 

would come out on matters of recusal? 

And if you would like, as I said, given the time, the fact that I 

am over time, I am happy to allow you to answer that question on 

the record. 

Mr. MCCONNELL. I appreciate that, Senator. I will do that. 

Senator CARDIN. We expect there will likely be questions, other 

questions, that will be offered in writing also. 

Senator KYL. That is fine. Thank you, and, again, I thank the indulgence of all the members of the panel. 

Senator CARDIN. Senator Klobuchar. 

Senator KLOBUCHAR. I have no additional questions at this time. 

Senator CARDIN. Senator Franken. 

Senator FRANKEN. I guess I do not have any questions for the 

nominees. I do have a question—maybe a couple of questions for 

Senator Whitehouse. Is that all right? 

[Laughter.] 

Senator CARDIN. It is not all right. 

Senator FRANKEN. All right. Well, then, I will not—I will just ask 

them out loud, which is I was wondering if those letters that he 

read from were from people who knew Mr. McConnell very well. 

Senator WHITEHOUSE. Yes. They were written by people who actually knew Jack McConnell very well. 

Senator FRANKEN. And they are people from Rhode Island. 

Senator WHITEHOUSE. That is correct. You are two for two. 

Senator FRANKEN. And they must have been Democrats, I guess, 

because they were so laudatory, is that right? 

Senator WHITEHOUSE. No. You are wrong there, I am sorry. 

Senator FRANKEN. I am wrong there? All right. So they were Republicans? 

Senator WHITEHOUSE. Yes. 

Senator FRANKEN. But they were so laudatory and they know 

him very well. 

Senator WHITEHOUSE. That is right. 

Senator FRANKEN. All right. I am confused. Thank you, Mr. 

Chairman. 

Senator CARDIN. It just goes to show you should have gone to law 

school. 

[Laughter.] 

Senator CARDIN. The hearing record will remain open for one 

week for additional statements and questions from Senators. I ask 

the nominees to try to respond to those questions in a timely manner, because we cannot schedule the—it is difficult to schedule the 

action of the Committee until after the material is made available 

to the Senators who request it. 

So I would ask that you try to respond to that in a timely way. 

Senator SESSIONS. Mr. Chairman, thank you. Mr. McConnell, I 

have enjoyed talking with you this morning. There has been some 

complaints or controversy about your nomination. It is not possible 

for us to run through all that today. So I may submit some additional questions for the record. 

These are important issues. There has been a lot of public policy 

discussion about these kind of class action lawsuits, whether they 

779 

have been abused, how much money the lawyers have made off the 

cases, and what is the best way to affect good public policy. 

So I know the Chamber of Commerce has spent a lot of time 

studying the issues and they have some strong opinions on it. So 

I value the fact that they are concerned about your nomination and 

oppose it, and I give that some credibility. 

I do not dismiss it lightly. But you are entitled to a fair day to 

get your side out, and when you are involved in litigation of this 

intensity, sometimes hard feelings can occur. So I understand that. 

And we will look forward to complete answers about that. 

Otherwise, I do not think we would have fulfilled, Mr. Chairman, 

the responsibility we have to clear the air on issues of controversy. 

Thank you. 

I will say Senator Reed also spoke very highly of you. He has 

talked to me more than once and I appreciate that. 

Mr. MCCONNELL. Thank you, Senator. 

Senator CARDIN. And as has been pointed out frequently, the five 

nominees that we have before us today all are seeking confirmation 

for lifetime appointments. So we consider the confirmation process 

to be a very important responsibility of the Senate. 

I know that the hearing has gone on longer than we had anticipated. I want to thank particularly those that are in the room for 

their patience. And we had a lot of young people here and they 

were very well behaved and didn’t hear them at all. So I want to 

compliment the audience, and, again, thank the families and 

friends for their support, and our nominees for being prepared to 

take on this responsibility. 

With that, the Committee will stand adjourned. 

[Whereupon, at 5:10 p.m., the hearing was concluded.] 

[Questions and answers and submissions for the record follow.] 

780 


66693.685
781 


66693.686
782 


66693.687
783 


66693.688
784 


66693.689
785 


66693.690
786 


66693.691
787 


66693.692
788 


66693.693
789 


66693.694
790 


66693.732
791 


66693.733
792 


66693.734
793 


66693.735
794 


66693.736
795 


66693.737
796 


66693.738
797 


66693.739
798 


66693.740
799 


66693.741
800 


66693.742
801 


66693.695
802 


66693.696
803 


66693.697
804 


66693.698
805 


66693.699
806 


66693.700
807 


66693.701
808 


66693.702
809 


66693.703
810 


66693.704
811 


66693.705
812 


66693.706
813 


66693.707
814 


66693.708
815 


66693.709
816 


66693.710
817 


66693.711
818 


66693.712
819 


66693.713
820 


66693.714
821 


66693.715
822 


66693.716
823 


66693.717
824 


66693.718
825 


66693.719
826 


66693.720
827 


66693.721
828 


66693.743
829 


66693.744
830 


66693.745
831 


66693.746
832 


66693.747
833 


66693.748
834 


66693.749
835 


66693.750
836 


66693.751
837 


66693.752
838 


66693.753
839 


66693.754
840 


66693.755
841 


66693.756
842 


66693.757
843 


66693.758
844 


66693.759
845 


66693.760
846 


66693.761
847 


66693.762
848 


66693.763
849 


66693.764
850 


66693.765
851 


66693.766
852 


66693.767
853 


66693.768
854 


66693.769
855 


66693.770
856 


66693.771
857 


66693.772
858 


66693.773
859 


66693.774
860 


66693.775
861 


66693.776
862 


66693.777
863 


66693.778
864 


66693.779
865 


66693.780
866 


66693.781
867 


66693.782
868 


66693.783
869 


66693.784
870 


66693.785
871 


66693.786
872 


66693.787
873 


66693.788
874 


66693.789
875 


66693.790
876 


66693.791
877 


66693.792
878 


66693.793
879 


66693.794
880 


66693.795
881 


66693.796
882 


66693.797
883 


66693.798
884 


66693.799
885 


66693.800
886 


66693.801
887 


66693.802
888 


66693.803
889 


66693.804
890 


66693.805
891 


66693.806
892 


66693.807
893 


66693.808
894 


66693.809
895 


66693.810
896 


66693.811
897 


66693.812
898 


66693.813
899 


66693.814
900 


66693.815
901 


66693.816
902 


66693.817
903 


66693.818
904 


66693.819
905 


66693.820
906 


66693.821
907 


66693.822
908 


66693.823
909 


66693.824
910 


66693.825
911 


66693.826
912 


66693.827
913 


66693.828
914 


66693.829
915 


66693.830
916 


66693.831
917 


66693.832
918 


66693.833
919 


66693.834
920 


66693.835
921 


66693.836
922 


66693.837
923 


66693.838
924 


66693.839
925 


66693.840
926 


66693.841
927 


66693.842
928 


66693.843
929 


66693.844
930 


66693.845
931 


66693.846
932 


66693.847
933 


66693.848
934 


66693.849
935 


66693.850
936 


66693.851
937 


66693.852
938 


66693.853
939 


66693.854
940 


66693.855
941 


66693.856
942 


66693.857
943 


66693.858
944 


66693.859
945 


66693.860
946 


66693.861
947 


66693.862
948 


66693.863
949 


66693.864
950 


66693.865
951 


66693.866
952 


66693.867
953 


66693.868
954 


66693.869
955 


66693.870
956 


66693.871
957 


66693.872
958 


66693.873
959 


66693.874
960 


66693.875
961 


66693.876
962 


66693.877
963 


66693.878
964 


66693.879
965 


66693.880
966 


66693.881
967 


66693.882
968 


66693.883
969 


66693.884
970 


66693.885
971 


66693.886
972 


66693.887
973 


66693.888
974 


66693.889
975 


66693.890
976 


66693.891
977 


66693.892
978 


66693.893
979 


66693.894
980 


66693.895
981 


66693.896
982 


66693.897
983 


66693.898
984 


66693.899
985 


66693.900
986 


66693.901
987 


66693.902
988 


66693.903
989 


66693.904
990 


66693.905
991 


66693.906
992 


66693.907
993 


66693.908
994 


66693.909
995 


66693.910
996 


66693.911
997 


66693.912
998 


66693.913
999 


66693.914
1000 


66693.915
1001 


66693.916
1002 


66693.917
1003 


66693.918
1004 


66693.919
1005 


66693.920
1006 


66693.921
1007 


66693.922
1008 


66693.923
1009 


66693.924
1010 


66693.925
1011 


66693.926
1012 


66693.927
1013 


66693.928
1014 


66693.929
1015 


66693.930
1016 


66693.931
1017 


66693.932
1018 


66693.933
1019 


66693.934
1020 


66693.935
1021 


66693.936
1022 


66693.937
1023 


66693.938
1024 


66693.939
1025 


66693.940
1026 


66693.941
1027 


66693.942
1028 


66693.943
1029 


66693.944
1030 


66693.945
1031 


66693.946
1032 


66693.947
1033 


66693.948
1034 


66693.722
1035 


66693.724
1036 


66693.725
1037 


66693.726
1038 


66693.727
1039 


66693.728
1040 


66693.729
1041 


66693.730
1042 


66693.731
1043 


66693.949
1044 


66693.950
1045 


66693.951
1046 


66693.952
1047 


66693.953
1048 


66693.954
1049 


66693.955
1050 


66693.956
1051 


66693.957
1052 


66693.958
1053 


66693.959
1054 


66693.960
1055 


66693.961
1056 


66693.962
1057 


66693.963
1058 


66693.965
1059 


66693.966
1060 


66693.967
1061 


66693.968
1062 


66693.969
1063 


66693.970
1064 


66693.971
1065 


66693.972
1066 


66693.973
1067 


66693.974
1068 


66693.975
1069 


66693.976
1070 


66693.977
1071 


66693.978
1072 


66693.979
1073 


66693.980
1074 


66693.981
1075 


66693.982
1076 


66693.983
1077 


66693.984
1078 


66693.985
1079 


66693.986
1080 


66693.987
1081 


66693.988
1082 


66693.989
1083 


66693.990
1084 


66693.991
1085 


66693.992
1086 


66693.993
1087 


66693.994
1088 


66693.995
1089 


66693.996
1090 


66693.997
1091 


66693.998
1092 


66693.999
1093 


666931.000
1094 


666931.001
1095 


666931.002
1096 


666931.003
1097 


666931.004
1098 


666931.006
1099 


666931.005
1100 


666931.007
1101 


666931.008
1102 


666931.009
1103 


666931.010
1104 


666931.011
1105 


666931.012
1106 


666931.013
1107 


666931.014
1108 


666931.015
1109 


666931.016
1110 


666931.017
1111 


666931.018
1112 


666931.019
1113 


666931.020
1114 


666931.021
1115 


666931.022
1116 


666931.023
1117 


666931.024
1118 


666931.025
1119 


666931.026
1120 


666931.027
1121 

Æ 


666931.028