S. HRG. 111–695, Pt. 5 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JANUARY 20, FEBRUARY 11, FEBRUARY 24, and MARCH 10, 2010 

PART 5 

Serial No. J–111–4 

Printed for the use of the Committee on the Judiciary 

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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65–688 PDF 2011

S. HRG. 111–695, Pt. 5 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JANUARY 20, FEBRUARY 11, FEBRUARY 24, and MARCH 10, 2010 

PART 5 

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 

JANUARY 20, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

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

opening statement ............................................................................................ 365 

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

statement .............................................................................................................. 366 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 300 

PRESENTERS 

Barrasso, Hon. John, a U.S. Senator from the State of Wyoming presenting 

Nancy D. Freudentahl, Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 3 

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

Timothy S. Black, Nominee to be U.S. District Judge for the Southern 

District of Ohio; and Benita Y. Pearson, Nominee to be U.S. District Judge 

for the Northern District of Ohio ........................................................................ 7 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming presenting 

Nancy D. Freudentahl, Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 2 

Lincoln, Hon. Blanche L., a U.S. Senator from the State of Arkansas presenting Denzil Price Marshall, Jr., Nominee to be U.S. District Judge 

for the District of Arkansas ................................................................................. 4 

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

Denzil Price Marshall, Jr., Nominee to be U.S. District Judge for the 

District of Arkansas ............................................................................................. 6 

STATEMENTS OF THE NOMINEES 

Black, Timothy S., Nominee to be U.S. District Judge for the Southern District of Ohio .......................................................................................................... 165 

Questionnaire .................................................................................................... 166 

Freudenthal, Nancy D., Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 10 

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

Lynch, James P., Nominee to be Director of the Bureau of Justice Statistics ... 213 

Questionnaire .................................................................................................... 214 

Marshall, Denzil Price, Jr., Nominee to be U.S. District Judge for the Eastern 

District of Arkansas ............................................................................................. 69 

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

Pearson, Benita Y., Nominee to be U.S. District Judge for the Northern 

District of Ohio ..................................................................................................... 116 

Questionnaire .................................................................................................... 117 

QUESTIONS AND ANSWERS 

Responses of Timothy S. Black to questions submitted by Senators Coburn, 

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

Responses of Nancy D. Freudenthal to questions submitted by Senators 

Coburn, Grassley and Sessions ........................................................................... 324 

Responses of James P. Lynch to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 334 

Page

IV 

Responses of Denzil Price Marshall, Jr., to questions submitted by Senators 

Coburn, Grassley and Sessions ........................................................................... 343 

Responses of Benita Y. Pearson to questions submitted by Senators Coburn, 

Grassley and Sessions ......................................................................................... 351 

SUBMISSIONS FOR THE RECORD 

American Society of Criminology, Richard Rosenfeld, President, Columbus, 

Ohio and Academy of Criminal Justice Sciences, Janice Joseph, President, 

Greenbelt, Maryland, joint letter ........................................................................ 363 

Lauritsen, Janet L., Professor, University of Missouri, St. Louis, Missouri, 

letter ...................................................................................................................... 369 

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

statement .............................................................................................................. 370 

Sullivan, Michael J., Attorney at Law, Rothgerber Johnson & Lyons LLP, 

Casper, Wyoming, letter ...................................................................................... 372 

Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, letter ......... 373 

THURSDAY, FEBRUARY 11, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 710 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota ................... 375 

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

statement .............................................................................................................. 718 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 376 

PRESENTERS 

Bayh, Hon. Evan, a U.S. State Senator from the State of Indiana presenting 

Tanya Walton Pratt, Nominee to U.S. District Judge for the Souther District of Indiana; Jon E. DeGuilio, Nominee to be U.S. District Judge for 

the Northern District of Indiana, and Jane E. Magnus-Stinson, Nominee 

to be U.S. District Judge for the Southern District of Indiana ........................ 378 

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

presenting Lucy H. Koh, Nominee to be U.S. District Judge for the Northern District of California ..................................................................................... 381 

McCaskill, Hon. Claire, a U.S. State Senator from the State of Missouri 

presenting Audrey G. Fleissig, Nominee to be U.S. District Judge for the 

Eastern District of Missouri ................................................................................ 383 

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

Gloria Navarro, Nominee to be U.S. District Judge for the District of 

Nevada .................................................................................................................. 376 

STATEMENTS OF THE NOMINEES 

DeGuilio, Jon E., Nominee to be U.S. District Judge for the Northern District 

of Indiana .............................................................................................................. 525 

Questionnaire .................................................................................................... 526 

Fleissig, Audrey G., Nominee to be U.S. District Judge for the Eastern District of Missouri .................................................................................................... 422 

Questionnaire .................................................................................................... 423 

Koh, Lucy H., Nominee to be U.S. District Judge for the Northern District 

of California .......................................................................................................... 487 

Questionnaire .................................................................................................... 488 

Magnus-Stinson, Jane E., Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 599 

Questionnaire .................................................................................................... 600 

Navarro, Gloria M., Nominee to be U.S. District Judge for the District of 

Nevada .................................................................................................................. 385 

Questionnaire .................................................................................................... 386 

Pratt, Tanya Walton, Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 559 

Questionnaire .................................................................................................... 560 

Page

V 

QUESTIONS AND ANSWERS 

Responses of Jon E. DeGuilio to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 657 

Responses of Audrey G. Fleissig to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 663 

Responses of Lucy H. Koh to questions submitted by Senators Coburn and 

Sessions ................................................................................................................. 670 

Responses of Jane E. Magnus-Stinson to questions submitted by Senators 

Coburn and Sessions ............................................................................................ 677 

Responses of Gloria M. Navarro to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 689 

Responses of Tanya Walton Pratt to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 697 

SUBMISSION FOR THE RECORD 

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

Director, Washington, DC, January 29, 2010, letter ......................................... 702 

Burchfield, Bobby R., Attorney at Law, McDermott Will & Emery, Washigton, 

DC, February 9, 2010, letter ............................................................................... 704 

Carr, Dolores A., District Attorney County of Santa Clara, San Jose, California, February 1, 2010, letter ........................................................................... 705 

Chandler, Mark, Senior Vice President, General Counsel and Secretary, Cisco, 

San Jose, California, February 5, 2010, letter ................................................... 706 

Dinh, Viet D., Professor of Law, Georgetown University Law Center, Washington, DC, February 9, 2010, letter .................................................................. 708 

Gallagher, Catherine A., Judge, Superior Court of California, County of Santa 

Clara, San Jose, California, February 27, 2009, letter ..................................... 714 

George, Eric M., Browne Woods George LLP, Law Offices, Los Angeles, California, March 3, 2010, letter ............................................................................... 716 

Lee, Randall R., Wilmer Hale, Los Angeles, California, February 9, 2010, 

letter ...................................................................................................................... 723 

Lugar, Richard G., a U.S. Senator from the State of Indiana, prepared statement ...................................................................................................................... 725 

National Asian Pacific Bar Association, Washington, DC: 

Daniel Levin, February 4, 2010, letter ........................................................... 726 

Joseph J. Centeno, President; Tina R. Matsuoka, Executive Director; 

John C. Yang, Co-Chair, Judiciary Committee and Wendy Wen Yun 

Chang, Co-Chair Judiciary Committee, February 9, 2010, joint letter .... 727 

Schwarzenegger, Arnold, Governor, Sacramento, California, January 29, 2010, 

letter ...................................................................................................................... 732 

Smith, Laurie, Sheriff, County of Santa Clara, San Jose, California, January 

29, 2010, letter ..................................................................................................... 733 

Weld, William F., McDermott Will & Emery, New York, New York, February 

2, 2010, letter ....................................................................................................... 735 

Young, Ernest A., Alston & Bird Professor of Law, Durham, North Carolina, 

February 9, 2010, letter ....................................................................................... 737 

Zweig, Sally Franklin, Attorney at Law, Katz & Korin, PC, Indianapolis, 

Indiana, March 10, 2010, letter .......................................................................... 739 

WEDNESDAY, FEBRUARY 24, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 741 

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

statement .............................................................................................................. 971 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 742 

PRESENTERS 

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

Marc T. Treadwell, Nominee to be U.S. District Judge for the Middle 

District of Georgia ................................................................................................ 747 

Page

VI 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Josephine Staton Tucker, Nominee to be U.S. District Judge for 

the Central District of California ........................................................................ 743 

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

Mark Allan Goldsmith, Nominee to be U.S. District Judge for the Eastern 

District of Michigan ............................................................................................. 744 

Landrieu, Hon. Mary L., a U.S. Senator from the State of Louisiana presenting Brian Anthony Jackson, Nominee to be U.S. District Judge for 

the Middle District of Louisiana and Elizabeth E. Foote, Nominee to be 

U.S. District Judge for the Western District of Louisiana ............................... 746 

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

Mark C. Goldsmith, Nominee to be U.S. District Judge for the Eastern 

District of Michigan ............................................................................................. 745 

STATEMENTS OF THE NOMINEES 

Foote, Elizabeth E., Nominee to be U.S. District Judge for the Western 

District of Louisiana ............................................................................................ 780 

Questionnaire ........................................................................................................... 781 

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

District of Michigan ............................................................................................. 898 

Questionnaire ........................................................................................................... 899 

Jackson, Brian A., Nominee to be U.S. District Judge for the Middle District 

of Louisiana .......................................................................................................... 748 

Questionnaire ........................................................................................................... 750 

Treadwell, Marc T., Nominee to be U.S. District Judge for the Middle District 

of Georgia .............................................................................................................. 821 

Questionnaire ........................................................................................................... 822 

Tucker, Josephine S., Nominee to be U.S. District Judge for the Central 

District of California ............................................................................................ 860 

Questionnaire ........................................................................................................... 861 

QUESTIONS AND ANSWERS 

Responses of Elizabeth E. Foote to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 943 

Responses of Mark A. Goldsmith to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 949 

Responses of Brian A. Jackson to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 956 

Responses of Marc T. Treadwell to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 960 

Responses of Josephine S. Tucker to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 965 

WEDNESDAY, MARCH 10, 2010 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 1146 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 980 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 975 

PRESENTERS 

Bennet, Hon. Michael F., a U.S. Senator from the State of Colorado presenting William J. Martı ́nez, Nominee to be U.S. District Judge for the 

District of Colorado .............................................................................................. 979 

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

Gary S. Feinerman, Nominee to be U.S. District Judge for the Northern 

District of Illinois and Sharon J. Coleman, Nominee to be U.S. District 

Judge for the Northern District of Illinois ......................................................... 976 

Udall, Hon. Mark, a U.S. Senator from the State of Colorado presenting 

William J. Martı ́nez, Nominee to be U.S. District Judge for the District 

of Colorado ............................................................................................................ 978 

Page

VII 

STATEMENTS OF THE NOMINEES 

Coleman, Sharon J., Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 981 

Questionnaire .................................................................................................... 983 

Feinerman, Gary S., Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 1023 

Questionnaire .................................................................................................... 1024 

Martı ́nez, William J., Nominee to be U.S. District Judge for the District 

of Colorado ............................................................................................................ 1060 

Questionnaire .................................................................................................... 1061 

QUESTIONS AND ANSWERS 

Responses of Sharon Johnson Coleman to questions submitted by Senators 

Coburn and Sessions ............................................................................................ 1104 

Responses of Gary S. Feinerman to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 1110 

Responses of William J. Martı ́nez to questions submitted by Senators Coburn 

and Sessions ......................................................................................................... 1120 

SUBMISSION FOR THE RECORD 

Anti-Defamation League, Abraham H. Foxman, National Director, New York, 

New York, March 9, 2010, letter ........................................................................ 1137 

Bennet, Hon. Michael F., a U.S. Senator from the State of Colorado, statement ...................................................................................................................... 1139

Colorado Hispanic Bar Association, Damian J. Arguello, President, Denver, 

Colorado, March 9, 2010, letter .......................................................................... 1142 

Hispanic National Bar Association, Roma ́n D. Herna ́ndez, National President, 

Washington, DC, March 19, 2010, letter ............................................................ 1144 

Mexican American Legal Defense and Educational Fund, Claudine Karasik, 

Legislative Staff Attorney, Washington, DC, March 12, 2010, letter .............. 1150 

National Employment Lawyers Association, Bruce A. Fredrickson, President, 

and Sara J. Rich, President Colorado PELA, Washington, DC, March 9, 

2010, letter ............................................................................................................ 1152 

ALPHABETICAL LIST OF NOMINEES 

Black, Timothy S., Nominee to be U.S. District Judge for the Southern District of Ohio .......................................................................................................... 165 

Coleman, Sharon J., Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 981 

DeGuilio, Jon E., Nominee to be U.S. District Judge for the Northern District 

of Indiana .............................................................................................................. 525 

Feinerman, Gary S., Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 1023 

Fleissig, Audrey G., Nominee to be U.S. District Judge for the Eastern District of Missouri .................................................................................................... 422 

Foote, Elizabeth E., Nominee to be U.S. District Judge for the Western 

District of Louisiana ............................................................................................ 780 

Freudenthal, Nancy D., Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 10 

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

of Michigan ........................................................................................................... 898 

Jackson, Brian A., Nominee to be U.S. District Judge for the Middle District 

of Louisiana .......................................................................................................... 748 

Koh, Lucy H., Nominee to be U.S. District Judge for the Northern District 

of California .......................................................................................................... 487 

Lynch, James P., Nominee to be Director fo the Bureau of Justice Statistics ... 213 

Magnus-Stinson, Jane E., Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 599 

Marshall, Denzil Price, Jr., Nominee to be U.S. District Judge for the Eastern 

District of Arkansas ............................................................................................. 69 

Martı ́nez, William J., Nominee to be U.S. District Judge for the District 

of Colorado ............................................................................................................ 1060 

Navarro, Gloria M., Nominee to be U.S. District Judge for the District of 

Nevada .................................................................................................................. 385 

Page

VIII 

Pearson, Benita Y., Nominee to be U.S. District Judge for the Northern 

District of Ohio ..................................................................................................... 116 

Pratt, Tanya Walton, Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 559 

Treadwell, Marc T., Nominee to be U.S. District Judge for the Middle District 

of Georgia .............................................................................................................. 821 

Tucker, Josephine S., Nominee to be U.S. District Judge for the Central 

District of California ............................................................................................ 860 

(1) 

NOMINATIONS OF NANCY D. FREUDENTHAL, 

NOMINEE TO BE UNITED STATES DISTRICT 

JUDGE FOR THE DISTRICT OF WYOMING; 

DENZIL PRICE MARSHALL, JR., NOMINEE 

TO BE UNITED STATES DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF ARKANSAS; BENITA Y. PEARSON, NOMINEE TO BE 

UNITED STATES DISTRICT JUDGE FOR THE 

NORTHERN DISTRICT OF OHIO; TIMOTHY S. 

BLACK, NOMINEE TO BE UNITED STATES 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO; AND, JAMES P. LYNCH, 

NOMINEE TO BE DIRECTOR OF THE BUREAU OF JUSTICE STATISTICS 

WEDNESDAY, JANUARY 20, 2010 

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

The Committee met, pursuant to notice, at 2:33 p.m., Room SD– 

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

presiding. 

Present: Senators Franken, Sessions and Coburn. 

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

SENATOR FROM THE STATE OF DELAWARE 

Senator KAUFMAN. Good afternoon, everybody. I am pleased to 

call this nomination hearing of the Senate Committee on Judiciary 

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

this hearing. 

I would like to welcome each of the nominees, their families and 

friends to the U.S. Senate and congratulate them on their nomination and hope you will have a good experience. 

I would also like to welcome my colleagues—what a lineup—here 

to introduce the nominees. I am pleased to note that Republican 

and Democratic Senators have worked together to bring us these 

well qualified individuals today. 

Today, we welcome the First Lady of Wyoming, Nancy 

Freudenthal, nominated to be a judge in the District of Wyoming. 

2 

If confirmed, Ms. Freudenthal will be Wyoming’s first female Federal judge. 

Wyoming has a history of promoting equal rights for women. I 

remember, when I went there, I learned that it first gave women 

the right to vote in 1869, 21 years before achieving statehood and 

51 years before the ratification of the Ninth Amendment. So it is 

especially fitting. 

She will be introduced by her home state Senators, Mike Enzi 

and John Barrasso. 

I would also like to welcome the Honorable Denzil Price Marshall, nominated to be a judge of the Eastern District of Arkansas. 

Judge Marshall is currently a judge in the Arkansas Court of Appeals. 

He will be introduced from his home state by Senators Blanche 

Lincoln and Mark Pryor. 

We further welcome the Honorable Benita Pearson, nominated to 

be the judge in the Northern District of Ohio. If confirmed, Judge 

Pearson will be Ohio’s first African-American female Federal judge. 

She will be introduced by her home state Senator, Sherrod 

Brown. 

We welcome, also, the Honorable Timothy Black, nominated to be 

a judge for the Southern District of Ohio. Judge Black currently 

serves the Southern District as a magistrate judge and previously 

was a municipal court judge in Hamilton, Ohio. Senator Brown will 

introduce him, too. 

Finally, we welcome Dr. James Patrick Lynch, nominated to be 

Director for the Bureau of Justice Statistics at the U.S. Department of Justice. Over the last 30 years, Dr. Lynch has been involved in major efforts to build and improve our crime and criminal 

justice statistics systems. I look forward to introducing him. 

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

Senator KAUFMAN. I am going to yield time for the Ranking 

Member, Senator Sessions, when he arrives. What I would like to 

do, I would like to thank all the Senators who have come to speak 

on behalf of their home state nominees this afternoon. I know you 

are incredibly busy, and I know you are incredibly busy, but your 

presence and support speaks volumes about their qualifications 

and your respect for their qualifications. 

First, we will hear from the Senators from the State of Wyoming 

to introduce Ms. Freudenthal. First, Senator Enzi. 

PRESENTATION OF NANCY D. FREUDENTHAL, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF WYOMING BY 

HON. MICHAEL B. ENZI, A U.S. SENATOR FROM THE STATE 

OF WYOMING 

Senator ENZI. Thank you, Mr. Chairman. I am pleased to have 

the opportunity to introduce Nancy Freudenthal, who has been 

nominated by President Obama to serve as a judge of the United 

States District Court for the District of Wyoming. 

I want to thank the Chairman and Senator Sessions and your 

staff for moving quickly on scheduling this hearing. 

Nancy is a Wyoming native, born in Cody, and received her BA 

and her JD from the University of Wyoming. After being admitted 

3 

to the Wyoming State Bar in 1980, Nancy took a position with Governor Ed Herschler, as his attorney for intergovernmental affairs 

for 8 years. She then served in the same position for Governor 

Mike Sullivan for 2 years. 

In this capacity, Nancy served as the Governor’s representative 

on numerous boards, worked extensively with the state legislature, 

taught at the University of Wyoming College of Law, and served 

as acting Administrator of the Department of Environmental Quality in the Land Quality Division. 

In 1989, Nancy was appointed by Governor Sullivan to the Wyoming Tax Commission and State Board of Equalization, where she 

served as chairman for a 6-year term. While the State Board of 

Equalization is taxed with the annual process of equalizing value 

of property in Wyoming counties, the board has a main function of 

listening to disputes between taxpayers and the Department of 

Revenue and reviewing appeals. Nancy’s experience as chairman of 

this board will greatly enhance her abilities as a judge. 

Since joining Davis & Cannon in 1995, Nancy has handled a 

wide variety of matters, including complex mineral litigation, environmental and natural resource disputes, public utility law, oil and 

gas litigation, employment litigation, and commercial transactions. 

She has experience at both the trial and appellate levels. Nancy 

is well respected among her peers and judges in Wyoming. I have 

followed some of the things that she has worked on and I know 

that she is able to sort out the wheat from the intentional chaff. 

I also want to mention how important this judgeship is for Wyoming. While Senators disagree at times about specific nominees, we 

can all agree that without judges in place, our legal system slows 

down and does a disservice to the people we represent. 

I am pleased that the Senate Judiciary Committee is moving 

quickly and thoroughly on this nomination. I hope that we can finish the whole confirmation process promptly. 

Mr. Chairman, Nancy Freudenthal’s experience as a private attorney and in state government will serve her well as a district 

court judge. 

I, again, appreciate the Committee’s time and I look forward to 

the quick approval of this nomination. 

Senator KAUFMAN. Thank you, Senator Enzi. 

Senator Barrasso. 

PRESENTATION OF NANCY D. FREUDENTHAL, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF WYOMING BY 

HON. JOHN BARRASSO, A U.S. SENATOR FROM THE STATE 

OF WYOMING 

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

you to the other members of the Committee for allowing me the opportunity to be with you today. 

I am pleased to join Senator Enzi to speak in support of the nomination of Nancy Freudenthal to be a U.S. District Court Judge for 

the District of Wyoming. 

I have been a long-time admirer of Nancy Freudenthal. She and 

I were classmates in the first ever Class of Leadership Wyoming, 

long before either of us served in our current positions, and Nancy 

played an integral and an influential role in that program. 

4 

I have great respect for her public service. Much of her career 

has been dedicated to working for the people of Wyoming. As the 

First Lady of Wyoming, Nancy has championed causes with significant focus on reducing childhood and underage drinking. She is the 

national chair of the countrywide initiative called Leadership to 

Keep Children Alcohol-Free. 

She has been instrumental and played an instrumental role on 

the Steering Committee on Underage Drinking Research and Prevention nationally. As a doctor, Mr. Chairman, I understand the 

importance of prevention and awareness. 

I appreciate her energetic and enthusiastic work in advocating 

for the health and safety of our children. Nancy Freudenthal has 

the qualifications to be an effective member of the Federal bench. 

If confirmed, Nancy will be just the seventh Federal district court 

judge in the history of the district and the first woman to sit on 

the Federal bench for Wyoming. 

Mr. Chairman, Nancy has been a valued member of the Wyoming State Bar for nearly 30 years and the American Bar Association voted to give her a well qualified rating. Nancy has been a 

mentor and an inspiration to Wyoming’s next generation of legal 

professionals through her work at the University of Wyoming’s College of Law. 

Nancy Freudenthal has my full support, Mr. Chairman. I would 

ask members of this Committee to support her nomination, as well. 

Thank you, Mr. Chairman. 

Senator KAUFMAN. Thank you, Senator Barrasso. Now, the Senators from Arkansas will introduce Judge Marshall. 

Senator Lincoln. 

PRESENTATION OF DENZIL PRICE MARSHALL, JR., NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF ARKANSAS, BY HON. BLANCHE L. LINCOLN, A U.S. SENATOR FROM THE STATE OF ARKANSAS 

Senator LINCOLN. Thank you, Mr. Chairman and to the members 

of the Judiciary Committee. I, too, appreciate the opportunity to 

appear before you today to introduce Judge Price Marshall, who 

has been nominated to fill a Federal judicial vacancy in the Eastern District of Arkansas. 

I first want to thank the Chairman, Chairman Leahy, for granting my request, as well as the Committee, as was mentioned by 

Senator Enzi, for receiving a hearing so timely so that the Judiciary Committee could learn about Judge Marshall’s qualifications, 

abilities, and why he will make a terrific U.S. district judge for the 

State of Arkansas. 

Judge Price Marshall has enjoyed an impressive and lengthy 

legal career in Arkansas, where he has served as a judge on the 

Arkansas Court of Appeals since 2006 and as a reporter for the Arkansas Supreme Court Committee on Civil Practice since 2004. 

Previously, Judge Marshall practiced law in his hometown of 

Jonesboro, Arkansas for 15 years as a principal at the firm of Barrett & Deacon. Mr. Deacon is a long-time, established legal figure 

in our state. 

He also clerked for U.S. Circuit Judge Richard Arnold from 1989 

to 1991, and I think Judge Arnold’s widow was here earlier or is 

5 

not here today, Kay Kelly Arnold, as well as two of his previous 

law partners, Robert Jones, who I know quite well, as well as Jim 

Bradbury, who are here in the audience, and grateful for that incredible support that they lend to him. 

Judge Marshall graduated from Arkansas State University in 

Jonesboro in 1985, where he currently serves as an adjunct professor of political science. Judge Marshall also received a degree 

from the London School of Economics and graduated with honors 

from Harvard Law School in 1989. 

I have heard from dozens of our Arkansans from across the legal 

and the business community who support Judge Marshall’s nomination. He is well known in Arkansas as a gifted appellate advocate, a brilliant legal mind, and a well respected man of integrity. 

In my judgment, Judge Marshall possesses the intellect, the capabilities and the character to carry out the duties of the U.S. district judge and would well represent the State of Arkansas and our 

country in this capacity. 

Not only is Judge Marshall a distinguished professional, he is a 

dedicated family man. Like so many Arkansans, Judge Marshall 

believes in our Arkansas values of family and community. He and 

his wife, Polly Pickett Marshall, have been married for 22 years 

and they have two daughters, Adison, who is 15, and Lara Harden, 

who is 13, and who join us today. So we are proud to have them, 

as well, here in the Committee. 

Judge Marshall is a member and a deacon of the First Baptist 

Church in Jonesboro. He is involved in the Eastern Arkansas 

Council of the Boy Scouts of America and has received a Golden 

Gavel Award for exemplary service by the Arkansas Bar Association. 

Mr. Chairman, as a U.S. Senator from the State of Arkansas, I 

take the Senate’s role of advice and consent on lifetime judicial appointments very seriously. In fact, I interviewed, either in person 

or, certainly, by phone, each and every Arkansan who was interested in being nominated for a judicial appointment in Arkansas. 

I evaluate judicial nominees based on their skills, their experience, and ability to understand and apply established precedent, 

not only or on any particular point of view a nominee may hold. 

Fundamentally, I am interested in knowing that a nominee can 

fulfill his responsibilities under the Constitution in a court of law, 

and I am absolutely satisfied that Judge Price Marshall has more 

than met that standard and that my colleagues on the Judiciary 

Committee and the Senate will come to the same conclusion. 

So in closing, Mr. Chairman, I want to thank you and the Ranking Member of the Judiciary Committee for allowing Judge Price 

Marshall to receive a hearing and request your full attention and 

careful consideration of his nomination and hope that we can move 

it forward in an expeditious way. 

Thank you, Mr. Chairman and to the Committee. 

Senator KAUFMAN. Thank you, Senator Lincoln. 

Senator Pryor. 

6 

PRESENTATION OF DENZIL PRICE MARSHALL, JR., NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF ARKANSAS BY HON. MARK L. PRYOR, A U.S. SENATOR 

FROM THE STATE OF ARKANSAS 

Senator PRYOR. Thank you, Mr. Chairman. As is the custom 

around here, my staff wrote a very nice statement for the Committee and I may just ask to have that submitted into the record, 

because I have something—as wonderful the things that Senator 

Lincoln has just said, and they’re all true, and as good a job as my 

staff did, they’re all true, I would like to say something just on a 

personal note. 

I have known Price Marshall for 20-some-odd years now. I knew 

him right when we both came out of law school and he is a really 

fine person. He is exactly the kind of person we want on the Federal bench deciding cases. 

He is a great husband, a great father. He is very involved in his 

community and in his church, as Senator Lincoln said. He has been 

involved with the Arkansas Bar Association, but also with the 

State Supreme Court, who regulates the practice of law in Arkansas. 

Since law school, Price Marshall has been the kind of person 

that, when you see him in action, when lawyers practice either 

with him or against him, they come away with the impression, 

‘‘One day, this guy will make a great judge.’’ 

He is a great judge. He is on the Arkansas Court of Appeals 

right now. When he was in private practice for 15 or more years 

up in Jonesboro, Arkansas, he had a statewide reputation for being 

able to handle very complex litigation or very complex legal matters, whatever they may be, and, also, had a statewide reputation 

of being an excellent appellate lawyer and a great brief-writer and 

a great arguer before the appellate courts in Arkansas and in the 

Federal appellate courts, as well. 

When you look at Price and when you have practiced with him 

and been around him like I have, there are really, I think, two 

words that come to mind for Price Marshall. The first is integrity. 

He has it, an over-abundance of it. He is just known to have integrity in everything he does and every part of his life; second, impartiality. 

That is the kind of judge that he has been on the Arkansas Court 

of Appeals. That is the kind of judge he will be, if this Committee 

approves him and sends him to the Senate floor and he is confirmed, when he gets on the Federal district court. 

For me and for many Arkansas lawyers, the fact that Price Marshall is here today and is going through this process and the fact 

that he has been nominated by President Obama is really a dream 

come true, because he is exactly the kind of person that I think we 

would all like to see in our Federal judiciary. 

Thank you, Mr. Chairman. 

Senator KAUFMAN. Thank you, Senator Pryor. 

Now, Senator Brown will introduce Judge Pearson and Judge 

Black. 

7 

PRESENTATION OF TIMOTHY S. BLACK, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO, 

AND BENITA Y. PEARSON, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF OHIO BY HON. 

SHERROD BROWN, A U.S. SENATOR FROM THE STATE OF 

OHIO 

Senator BROWN. Thank you, Mr. Chairman. Senator Franken, 

Senator Coburn, thank you. I echo, for the two nominees that I 

have the privilege of introducing, the last words of Senator Pryor 

in the kind of integrity they bring, the kind of impartiality they 

bring. 

I will speak about each nominee consecutively, if I could, Mr. 

Chairman. My first, in alphabetical order, Tim Black, is the nominee for the U.S. District Judge for the Southern District of Ohio. 

Tim’s wife and two daughters are here with him today. We welcome them. They are friends/relatives of people that are very close 

to both Senator Klobuchar and Senator Franken. 

Since 2004, Judge Black has served the Southern District of Ohio 

as a magistrate judge. I have known Judge Black for over 10 years 

now. 

Prior to his work as a magistrate, he was a municipal judge in 

Hamilton County, in Cincinnati, for a decade, and a civil litigator 

with one of the most prominent firms in southwest Ohio, Graydon 

Head & Ritchey, also in Cincinnati. 

As a Federal magistrate, Tim has issued opinions and recommendations on numerous cases, with some of his most noteworthy ones in the area of constitutional law and housing rights. 

His broad experience also includes hearing many criminal cases as 

a municipal judge and litigating civil and commercial cases in private practice with the Cincinnati law firm, Graydon Head. 

Judge Pearson, prior to our formally sitting down now, said that 

she would, as a magistrate in the Northern District, always look— 

before she had met Tim Black—look at his decisions as a magistrate and how well reasoned and well thought-out they were. 

Senator Voinovich and I—Senator Voinovich is supporting both 

of these nominees. He was very intricately involved in the selection 

process. He and I assembled a distinguished group of 17 Ohioans, 

about half Republicans. Actually, one of them in the Southern District was more than half Republican. The other one, in the Northern District, happened to be more than half Democrat. 

They conducted interviews with dozens of candidates. The rule 

was at least 11 of them of the 17 had to support these candidates 

to hand them over to me to make the final decision, and then I 

interviewed each of the three candidates in both the Northern and 

the Southern Districts. 

Paul Harris, the chair of the event, a lawyer in Cleveland, chair 

of the committee in Cleveland did a particularly outstanding job in 

putting this together for the Southern District, and we flipped the 

districts. In the Northern District, Nancy Rogers, who was the 

Dean of the Ohio State Law School and later appointed Attorney 

General of Ohio, chaired that committee. 

The nomination committee spent hours vetting and interviewing 

these candidates and they were willing to devote substantial 

8 

amounts of time and energy to see who would serve and who would 

serve and who would serve best. 

The screening panel was more than impressed with Tim Black. 

They recognized his leadership, his commitment to legal excellence, 

his temperament, his qualities that made him well suited to serve 

in this capacity. 

Based on their recommendations, I had no reservation whatsoever in suggesting Tim Black to President Obama for nomination 

as U.S. District Judge in the Southern District, and, as I said, Senator Voinovich concurred in that decision. 

Beyond the major cases he has been involved with as a litigator, 

a Federal magistrate or municipal judge, beyond the long list of 

honors and awards he has received, one of the most important 

things that you all should know in this Committee about Tim Black 

is that he has dedicated his life to serving others. 

President Obama, in nominating him, stated that Tim has the 

evenhandedness, intellect and spirit of service that Americans expect and deserve from their Federal judges. Tim has exemplified a 

commitment to service through his work as a co-convener of the 

Round Table, a partnership between the Black Lawyers Association 

of Cincinnati and the Cincinnati Bar to improve diversity and inclusion in the legal profession. 

He helped establish a Domestic Violence Coordinating Council to 

increase communications, coordination and uniformity within the 

criminal justice system and the community to reduce domestic violence. 

His yeoman’s work as a member and vice president of Pro Kids, 

an organization that represents abused and neglected children, is 

one more example. 

Tim is quoted as saying that he is ready for the work of being 

a district judge in the Southern District. He absolutely is. 

I would also like to take the opportunity, Mr. Chairman, of introducing the other nominee from Ohio, and that is Magistrate Judge 

Benita Pearson to be the U.S. District Judge in the Northern District. She will be in Youngstown, if she is confirmed. 

I am proud to introduce this native Ohioan to the Committee. 

She has with her today her mother and four of her five siblings, 

who are here, most of them; her very, very, very proud mother and 

her pretty, pretty proud siblings, too. But her mother is really, 

really proud of this. 

She earned her JD from Cleveland State, her bachelor’s degree 

here in Washington from Georgetown. Before law school, Judge 

Pearson spent several years as a certified public accountant. 

I asked her how that would help her as a judge in our interview 

and she said, ‘‘Being a CPA helps me tell stories with numbers.’’ 

Throughout her career, Judge Pearson has litigated and presiding over a range of criminal and civil matters, housing, public 

corruption cases. In addition to her work as a magistrate judge, her 

legal experience includes serving as an adjunct professor at Cleveland State’s Law School, 8 years as an Assistant U.S. Attorney in 

the Northern District, and several years in private practice. 

When one looks to Judge Pearson’s life, it becomes evident that 

she is someone who cares both about her profession and her community. Last year, at the Akron Bar Association’s annual bench 

9 

bar luncheon, she urged attorneys to be better prepared and to be 

more civil to one another, something we in these hallowed halls 

could benefit from, Mr. Chairman. 

At the 2009 Youth in Excellence Performing Arts Workshop, she 

shared her life story and accomplishments with a group of 50 middle and high school-aged students from at-risk communities. 

Her community service includes more than a decade of ongoing 

work as a board member of the Eliza Bryant Village. The Eliza 

Bryant Village is a multi-facility campus providing services for impoverished elderly citizens, founded by and named after the daughter of a freed slave. 

The facility began simply as a nursing home built to serve Eliza’s 

mother and other African-Americans who had been turned away 

from nursing homes because of their race. 

Her background as a prosecutor, private practice attorney, CPA 

and Federal magistrate make her uniquely qualified to serve as a 

Federal district judge. When asked to describe the most significant 

legal activity she has been engaged in, she replied, ‘‘My most significant legal activity has been my steadfast commitment to administering equal justice for all, the poor and the rich, the likeable and 

the unlikeable, the first time offender and the repeat offender.’’ 

Chief U.S. District Judge James Carr lauded Judge Pearson as 

‘‘a splendid choice, imminently well qualified by intelligence, experience and judicial temperament.’’ 

Mr. Chairman and Ranking Member Sessions, both of these 

nominees are brilliant, both of them have acute legal minds, and 

both of them have terrific records of lifetime community service. 

Thank you. 

Senator KAUFMAN. Thank you, Senator Brown. 

I would like to, without objection, enter into the record a letter 

from Senator Voinovich commending both of the nominees. 

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

Senator KAUFMAN. Now, I would like to introduce Dr. Lynch. 

The mission of the Bureau of Justice Statistics is to help law enforcement by collecting, analyzing and disseminating information 

on crime and the criminal justice system, and Dr. Lynch is one of 

the foremost experts in all these areas. 

He has a great deal of experience in working with the Bureau. 

Recently, he served on a National Academy panel that reviewed 

the Bureau’s programs and recommended steps for their improvement. 

As a professor at John Jay College of Criminal Justice, the City 

University of New York and at American University, Dr. Lynch has 

taught courses on crime, criminal justice and research methods. He 

is the author and coauthor of several books and articles on crime 

statistics and victimization, including Understanding Crime Incident Statistics, the definitive work in the field. 

Dr. Lynch, your credentials are truly impressive. 

With that, I would like to give my colleagues the opportunity to 

move on to the important things they are doing and for us to swear 

in the nominees. Senators, thank you very much for coming. 

I would like the five nominees to step forward and remain standing. Please raise your right hand and repeat after me. 

[Nominees sworn.] 

10 

Senator KAUFMAN. Thank you. Let the record show that each of 

the nominees has taken an oath. Please be seated. 

Now, the nominees will have an opportunity to recognize their 

family and friends and give an opening statement. We will start 

with Ms. Freudenthal. Starting with you, I welcome you. Acknowledge any family members or friends you have with you here today 

and then give an opening statement, even if they are Governor. 

STATEMENT OF NANCY D. FREUDENTHAL, NOMINATED TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF WYOMING 

Ms. FREUDENTHAL. Thank you, Mr. Chairman. I am pleased to 

be here with my family, Dave Freudenthal, my husband; my one 

daughter out of a total of four children, Hillary Chen; my brother, 

Neill Archer Roan; and, my guest and friend, Rob Wallace. 

I’d like to thank the Committee for being here today, for your attention, and for your deliberations in this nomination hearing. I’d 

like to particularly thank you, Mr. Chairman, for convening and 

chairing this hearing. 

I would like to extend my appreciation to my home Senators, 

Mike Enzi and John Barrasso, for their kind remarks today in support of my nomination. 

Last, I would like to thank the President for the honor of this 

nomination. 

Thank you. 

Senator KAUFMAN. Thank you. 

Judge Marshall. 

[The biographical information of Nancy D. Freudenthal follows.] 

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STATEMENT OF HON. DENZIL PRICE MARSHALL, JR., NOMINATED TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS 

Judge MARSHALL. Good afternoon, Mr. Chairman, and thank you. 

I echo what Ms. Freudenthal said. I appreciate the Committee 

scheduling a hearing promptly and I know that involves your work, 

as well as the Ranking Member. 

I thank my friends, Senator Pryor and Senator Lincoln, for those 

generous introductions, and the President for nominating me. I appreciate the Committee’s time, all of the members here, for this important work. 

I’m blessed to have my family and some dear friends with me 

here today. My wife, Polly, is here and our two daughters, Adison 

and Lara Harden. Two of my friends, my closest of friends and 

former law partners, Robert Jones and Jim Bradbury are here, as 

well as our dear friend, Kay Arnold. 

Senator KAUFMAN. Thank you. 

Judge Pearson. 

[The biographical information of Denzil Price Marshall, Jr., follows.] 

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STATEMENT OF HON. BENITA Y. PEARSON, NOMINATED TO BE 

U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO 

Judge PEARSON. Thank you, Mr. Chairman. I thank you and the 

Ranking Member and all of the members of the Committee for the 

opportunity to appear before you here today. I also thank Senator 

Brown for that gracious introduction and both Senators Brown and 

Voinovich for their recommendations, and President Obama for his 

nomination. 

I’m privileged to be accompanied here today, sir, with several 

friends and family members, all of whom have traveled great distances to be in the presence of the Committee today. 

I’m pleased to introduce my mother, Kay Spates, who is here; my 

brothers, Wayne Dancie and Kevin Spates; my sisters, Kassandra 

Spates and Tabitha Spates. My sister, Renee Dancie, is home caring for all of the things that need to be done in our absence. 

I have several friends, Mr. Chairman, who are also here today. 

Karen Hamilton, a great friend from law school; Diedre Wolff. 

Mary Butler is here, as well; Daniel Katz. Phil and Marilyn Carr 

are also present today, along with Jay Huntley Palmer. 

Thank you very much for the opportunity to be present and to 

have those with me. 

Senator KAUFMAN. Thank you. 

Judge Black. 

[The biographical information of Benita Y. Pearson follows.] 

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STATEMENT OF HON. TIMOTHY S. BLACK, NOMINATED TO BE 

U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO 

Judge BLACK. Mr. Chairman, good afternoon. Ranking Member, 

Senator Sessions, all Senators who are present, it’s a high honor 

and great privilege to appear before you and we appreciate the opportunity. 

I wish to express my appreciation to the President, President 

Obama, for his nomination; to Senator Brown and Senator Voinovich from Ohio for recommending both myself and Judge Pearson 

to this body; and, to all Senators, Senator Coburn and Senator 

Franken. 

I, too, am pleased to have family with me present. I would ask 

that they stand. Best decision I ever made in my life as a judge 

or a human being, my wife of 33 years, Marnie Chapman Black. 

The most important work we’ve been engaged in is raising two 

daughters. They are both present, Abigail Chapman Black, Emily 

Harrison Black; my cousin, who works on the Hill, Heidi Black; 

long-time family friend, who lives in D.C., Caroline Orrick. 

Smaller turnout than Judge Pearson’s, but we’re just as pleased 

and honored. Thank you. 

[Laughter.] 

Senator KAUFMAN. Thank you. 

Mr. Lynch. 

[The biographical information of Timothy S. Black follows.] 

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213 

STATEMENT OF JAMES P. LYNCH, NOMINATED TO BE 

DIRECTOR OF THE BUREAU OF JUSTICE STATISTICS 

Mr. LYNCH. Senator, I want to thank you all for allowing me to 

appear before you. I’d also like to thank President Obama for this 

great honor, Attorney General Holder for his support, and Assistant Attorney General Laurie Robinson for her support. 

I would like to acknowledge members of my family. My wife of 

37-plus years, Carolyn DuPont Lynch, is here with me. My children, Alex and Sarah, would love to be here, but they had to return 

to classes and are probably watching me on some sort of electronic 

medium; the kind, I’m not exactly sure. 

I also have some friends and colleagues and students here and 

I would like to tell them how grateful I am for their support. 

With that, I would welcome your questions. Thanks. 

[The biographical information of Gerard Edmund Lynch follows.] 

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Senator KAUFMAN. Great. Now, we will get to questioning. I am 

going to yield my first round of questioning to Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. I thank you for 

doing that, because I do have to go soon. 

Judge Black, as Senator Brown indicated, you have done significant work in the field of combating domestic violence and have also 

been involved with one of my favorite organizations, the Sheila 

Wellstone Institute. 

Can you tell me how your work on domestic violence shaped your 

view of the judicial system? 

Judge BLACK. Thank you for the opportunity to respond to that, 

Senator Franken. When I became a municipal court judge some 16 

years ago and served in that position for 10 years, when I arrived 

in the busiest criminal court in Ohio, I didn’t know anything about 

domestic violence. But a third of my docket dealt with it and I 

didn’t understand. 

I would see, typically, women on day one asking me to hold the 

accused, saying that they were scared to death, and then two or 

three weeks later, when they appeared before me for trial, they either were not there or they were there telling me the police got it 

all wrong. 

It took me a long time to be fully educated as to the dynamics 

of domestic violence and family violence and over time, I came to 

understand that all of us have a responsibility to confront family 

violence when we have the opportunity. 

As a judge, I was bound by impartiality, but I took the time to 

educate myself in the dynamics, became associated with extraordinary institutions, such as the Sheila Wellstone Institute, and the 

work I did in that busy criminal court in the area of family violence 

is something I’m very proud of. 

Senator FRANKEN. Thank you. 

Dr. Lynch, I want to talk to you about an issue that I have discussed with you in the past, crime reporting in Indian country. 

Right now, very few tribes report crime statistics directly to the 

Uniform Crime Reporting Program and part of this is due to lack 

of funding and the capacity problems. 

Some of it is because some states, like Minnesota, actually prohibit tribal participation in state-sponsored incident-based crime 

reporting systems. What can you and will you do to address the 

lack of information of crimes in Indian country? 

Mr. LYNCH. Thank you, Senator. This has been a longstanding 

issue. I think when I first came to Washington in 1978, several 

years later, there were a number of initiatives under the aegis of 

the FBI to improve the collecting of data on the crime among Native Americans and a number of other efforts have been undertaken since then and there are some currently underway, as you 

know. 

As you say, collecting this information is complicated by issues 

of sovereignty and jurisdiction and at this point—it’s a very complicated issue. At this point, all I can say is that, if I were fortunate enough to be confirmed as the head of the Bureau of Justice 

Statistics, I would work with other relevant agencies to see that we 

have an institutionalized, routinized set of data on crime among 

Native Americans. 

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Senator FRANKEN. Thank you. 

I would like to go to Judge Pearson. As you may—at a luncheon 

in Mississippi this past month, Justice Scalia raised a concern that 

the Supreme Court jurists do not have enough diversity in their job 

experience, in their legal experience, that they all actually are 

judges. 

Moreover, social science confirms that a judge’s background does 

have an impact on how he or she judges, although not necessarily 

on a straightforward manner. A judge’s age, for example, may have 

more impact on his or her ruling than race or gender. 

So my question to you is this. How do you think that we should 

reconcile the fact that judges must follow the law and treat everyone who comes before them in the court absolutely equally and 

fairly, how do you reconcile that with the reality that experience 

matters and the diversity of experience can be a valuable thing on 

a court, like Justice Scalia? 

Judge PEARSON. Thank you, Senator Franken, for the opportunity to speak to that important issue. Diversity matters, but it’s 

also always important to remember that personal preferences and 

predilections have no role in judging. 

When you merge those two concepts together, sir, what happens 

is you realize that the process changes. The process is enhanced if 

members of the bench have diverse backgrounds. Diverse backgrounds can mean varying genders, races, varying economic challenges and experiences, such as my accounting background before 

pursuing a legal background. 

What that allows is for a judge with a diverse range of skills and 

background would be able to use a process that would be different 

in judging, but not necessarily dictate a different result; meaning 

all judges—my judging, in fact, is based upon an application of the 

law to the facts. But the experiences that I’ve had as an individual 

with diverse work and personal experiences allows me to see those 

facts through a lens that someone with other experiences may not 

see. 

Therefore, my process may be different, but the result should always be one that results in an evenhanded application of the law. 

And I think by encouraging diversity on the bench, that can be 

what the public is guaranteed, sir. 

Senator FRANKEN. Thank you. Thank you, Mr. Chairman. I am 

afraid I must go now. Also, I have run out of time. I am afraid I 

have run out of time, as well. 

Senator KAUFMAN. Thank you. 

Senator Sessions—before I introduce Senator Sessions—my chief 

of staff went to the university that is in Tuscaloosa and it would 

not be right for me not to do this and not congratulate you on your 

big win of the national championship. 

Senator SESSIONS. (Off microphone.) As a matter of fact, the university is surging in its academic excellence and reaching new levels of prominence, I think, and a great president. Thank you. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. We are glad to have each of you here. This is 

a process we just have to go through, you nominees for judge. 

301 

Ms. Freudenthal, you have got a lot better job security than your 

husband, if you get this job. 

[Laughter.] 

Senator SESSIONS. So this is the only time anybody ever gets to 

ask you questions to make sure that you have the qualities that 

are needed for the job, and I would say that to all of you. 

But it is not as if this is the only time. Our staff has looked at 

your record. The Bar Association has reviewed your record. A lot 

of work has gone into making sure that when this hearing occurs, 

that you are asked relevant questions that are important. 

I am not aware of any serious criticisms of any of these nominees 

for the bench, but that opportunity exists that somebody could 

come forward and then we will just do that and then we will have 

a vote. 

We are moving the nominees, I think, faster than ever, but I do 

not feel any obligation to see how fast we can move nominees. I 

think it is a constitutional responsibility that we do it in the right 

way. 

I guess I would ask each of you if you would share some thoughts 

about your mental approach to being a judge, how you intend to 

treat the parties and maybe what you think are the qualities a 

good judge should have. 

I will just ask each one of you to share some thoughts, not long, 

but just some general thoughts about that. 

Ms. Freudenthal. 

Ms. FREUDENTHAL. Thank you, Senator. If I’m fortunate enough 

to be confirmed as a district court judge, the philosophy that I 

would bring to the bench is, first and foremost, an allegiance to the 

law. The qualities, I believe, that are important are integrity, respect and courtesy to all the participants in the process, an ethic 

of hard work, and impartiality. 

The process that I would follow is a search for the law to determine what does the law mean and then apply the law to the established facts and reason to conclusions. 

Thank you, sir. 

Senator SESSIONS. I think that is a classical definition of what 

a judge does. We have had some dispute and discussion about your 

background and personalities and biases or whatever, but I think 

the commitment that you take as a judge is to, insofar as you are 

able, be objective and not be influenced by personal matters. 

Mr. Marshall. 

Judge MARSHALL. Thank you, Senator Sessions. I would echo 

what you just said, that the judge’s first obligation is to be impartial, and what Ms. Freudenthal said, as well. That is, we have to 

work hard and go wherever the law and the facts take us. 

I think it’s very important that everyone who comes in contact 

with the court be treated fairly and with dignity and courtesy and 

good manners. I would add, too, that it’s important, once a court 

reaches its decision, for the judge to express himself or herself 

clearly so that the parties, both those who won and the losing 

party, will understand that they have been heard, but will hear the 

reasons why they didn’t prevail that day. 

302 

That’s important, it seems to me, both for that day and those litigants, but also so that a judge’s ruling can be reviewed on appeal 

and if it’s wrong, it can be corrected. 

Senator SESSIONS. Well, you had two years as law clerk to Judge 

Arnold. Did that warp your brain in any way? 

Judge MARSHALL. It warped my brain in a very good way, Senator Sessions. 

Senator SESSIONS. That is a good answer. 

Judge MARSHALL. He’s a fine man and a great judge and my judicial role model. 

Senator SESSIONS. Thank you. Ms. Pearson, Judge? 

Judge PEARSON. Thank you, Ranking Member Senator Sessions, 

for the opportunity. I agree with your statement that integrity is 

a key characteristic that judicial officers should have and, if approved by this Committee and confirmed by the Senate and ultimately appointed by the President, I would continue to exercise 

that integrity. 

Sir, I also think judicial temperament is of the utmost importance and I think one of the measures of my judicial temperament 

is my past judicial experience; and, as important, knowledge of the 

law and a willingness to delve in and to become expert in, to the 

extent necessary, areas of the law one may not necessarily be as 

familiar with. 

As my co-panelist, Judge Marshall, has just said, the ability and 

willingness to articulate your decision both orally and in writing, 

those are very important characteristics, sir. 

Senator SESSIONS. Thank you. I think that is true and that 

means that you have got to work hard at your job. It is not an easy 

thing to summarize complexity in a fair way that every party can 

recognize that you considered the serious questions in the case and 

you addressed them effectively. 

Judge Black. 

Judge BLACK. Senator Sessions, thank you for the question. As 

to the mental approach one brings to judging and the qualities that 

are important, clearly, impartiality and integrity are the twin bulwarks. Intellectual competence is an absolute necessity. A commitment to hard work is critical. There is no place for a lazy judge. 

I think the important personal quality a judge needs is patience, 

the ability to suspend judgment until you’ve heard all of the evidence and all of the facts from all of the parties. 

Living in a home with my wife and two daughters, I’ve learned 

to exercise patience in that regard. In the final analysis, diligence; 

we are umpires, we call balls and strikes. There is a defined strike 

zone and that is our job as an impartial arbiter is to make a decision on this case on these facts and the law that applies to it. 

So thank you for the opportunity to speak to that. 

Senator SESSIONS. Thank you. 

Senator KAUFMAN. Dr. Lynch, what do you see as the biggest 

challenges for the Bureau of Justice Statistics moving forward? 

Mr. LYNCH. I think the biggest challenges for the Bureau of Justice Statistics moving forward are the perennial challenges to a statistical agency; that is to say, to maintain its credibility as an independent Federal statistical agency. 

303 

I think the way you do that is the same way you always do that, 

which is to provide accurate, timely and useful data at the same 

time that you’re protecting the confidentiality and maintaining access to the data. 

So I think those things have always been key for any statistical 

agency. 

Senator KAUFMAN. Good. To follow-up on Senator Sessions, as I 

look at the kind of philosophy of judging, can you talk a little bit, 

each one of you, about your views on the role of the court interpreting laws written and passed by elected legislative bodies? 

Why do we not start at the other end with Judge Black? 

Judge BLACK. Thank you, Senator Sessions—excuse me—on behalf of Senator Sessions, following-up, Mr. Chairman. 

The role of the court is to apply the rule of law, to apply evidence 

to the facts and the evidence to the law and make an impartial, 

neutral decision. 

As to the role of the courts in interpreting statutes passed by 

Congress, both state and Federal, in the first instance, there is a 

presumption that the laws passed by the legislature are constitutional and if there is any interpretation of the statute that can be 

deemed constitutional, it is the court’s role to enforce that statute. 

Senator KAUFMAN. Thank you. 

Judge Pearson. 

Judge PEARSON. Thank you, Mr. Chairman. I agree with what 

Judge Black just said and to that, I would also add that the recognition of precedent is of the utmost importance. Stare decisis is 

a term frequently used. And in addition to the presumption of constitutionality of statutes, the Supreme Court has set out guidance 

in its case law that judges can look to in order to determine if there 

is a way to judge that a statute is constitutional and certain criteria that must be met before determining that unconstitutionality 

is the only result that can follow. 

Senator KAUFMAN. Judge Marshall. 

Judge MARSHALL. Thank you, Mr. Chairman. I think the judge’s 

job in interpreting a statute is, first and foremost, to pay a lot of 

attention to the words, because this Congress and the General Assembly in Arkansas, legislatures generally, pay attention to the 

words and they are what are enacted into law, signed by the executive. 

Often, that’s the end of the matter. The words are often enough. 

Sometimes not the particular words, but the words within the entire section, looking at the whole of the statute and trying to figure 

out what the statute means. That’s what I try to do. 

Senator KAUFMAN. Judge Freudenthal. 

Ms. FREUDENTHAL. Thank you. The overarching goal is to give effect to the legislative enactment. If the statute is clear, then you 

apply the law as written; and, if the statute is ambiguous, there 

are recognized rules for statutory construction and you would apply 

those rules consistent with the precedent that has been established. 

I would be very reluctant to overturn a legislative enactment 

given the presumption of constitutionality and I think, as has been 

said previously, if there is a construction to give a statute that 

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would result in its constitutionality, then you would uphold that 

statute and apply it to the facts. 

Senator KAUFMAN. Following on Judge Pearson’s comment, how 

do you see precedent affecting your decisions as a judge? 

Ms. FREUDENTHAL. Precedent plays a significant part in terms of 

stare decisis. It creates consistency and stability in the law and in 

the judicial process. So I would give effect a precedent. 

Senator KAUFMAN. Judge Marshall. 

Judge MARSHALL. Mr. President, on the precedent point? 

Senator KAUFMAN. Yes. 

Judge MARSHALL. Well, a judge must be bound by precedent. As 

a judge on the Arkansas Court of Appeals, for example, it’s much 

of my work to follow what our Supreme Court says and what the 

United States Supreme Court says. 

The system couldn’t work if we reconsidered every rule of law in 

every case. It seems to me it’s particularly important for a Federal 

district judge, a soldier in the trenches, responsible both to the 

Court of Appeals and to the United States Supreme Court to follow 

precedent, set his or her own views aside, of course, but to pay particular attention to precedent and be bound by it. 

Senator KAUFMAN. Judge Pearson, is there anything you want to 

add? You pretty well covered it earlier. 

Judge PEARSON. Thank you. I agree, sir. There is nothing I’d like 

to add. I pretty well covered it earlier. 

Senator KAUFMAN. Judge Black. 

Judge BLACK. Thank you, Mr. Chairman. If I were to be confirmed as a Federal district judge, I would continue what I do in 

my work as a judge and that is to uphold precedent. I’m bound, all 

judges are bound by the United States Supreme Court. 

In my area, the Sixth Circuit Court of Appeals, they instruct us 

in how to apply the law and we are bound by it. 

Senator KAUFMAN. Thank you. 

Senator Coburn. 

Senator COBURN. Thank you, Mr. Chairman. Welcome to you all. 

Part of the purpose of our hearing is to make sure we have everything on the record that could be questioned. With the exception 

of Mr. Lynch, you all are all lifetime appointments. So I am going 

to go into some areas that may seem somewhat controversial. That 

is not my intention. 

It is my intention to allow you to answer questions that may be 

raised so that nobody doubts that 10 years from now when you are 

sitting and have had a great career on the bench. So please take 

them in the spirit. 

But, first, I will go to Mr. Lynch. The Bureau of Justice Statistics 

has a very important role as the Justice Department’s primary statistical agency and its mission is to collect, analyze, publish and 

disseminate information on crime, criminal offenders, victims of 

crime, and the operation of the justice system at all levels of the 

Federal Government. 

As I am sure you are aware, state statistics can be and often are 

manipulated to show what somebody wants those statistics to 

show. The credibility of your bureau is going to depend on the office being free from political influence to try to massage that in a 

direction, and I am going to go further on that. 

305 

If confirmed, will you commit to not let politics influence the data 

produced by the bureau? 

Mr. LYNCH. If I am fortunate enough to be confirmed, I would 

do that. 

Senator COBURN. What steps do you plan to ensure that? 

Mr. LYNCH. I think there are some very clear guidelines set out 

in the principles and practices for Federal statistical agencies, especially point number two or practice number two, where it lists 

a series of authorities that an independent statistical agency 

should have in order to protect itself from interference. 

I think if I were so fortunate as to be confirmed, I would pursue 

those authorities. 

Senator COBURN. Last year, the National Resource Council on 

the National Academies produced a report entitled Ensuring the 

Quality, Credibility and Relevance of U.S. Justice Statistics. Are 

you familiar with that? 

Mr. LYNCH. Yes, Senator, I am. 

Senator COBURN. That report made several recommendations 

and I would like to get your reaction. The first notes that ‘‘The Bureau of Justice Statistics generally espouses the expected principles 

and practices of a Federal statistical agency, but it has sustained 

major challenges to its independence as a national statistical resource in recent years,’’ and that is a quote. 

One of those challenges even included attempts by the Department of Justice officials to alter the content of statistical press releases. What do you believe needs to be changed within BJS to ensure its independence as a purely statistical and analytical arm of 

the Office of Justice Programs? 

Mr. LYNCH. Senator, I was on that National Academy panel and 

I think I—we were not privy, as a panel, to all the machinations 

around—I think you may be referring to the firing of Larry 

Greenfeld, the former director, allegedly because of a press release. 

So we were not privy to all of that information about the specifics 

of what actually happened to Larry and why and what both sides 

were and so I can’t speak to that. 

I can speak to what I would do going forward and I think what 

I would do is exactly what the principles and practices tell us to 

do; and, that is to say, to have final authority over the content and 

form and timing of releases from a Federal statistical agency. 

Senator COBURN. The report also stated that there are major 

gaps in the substantive coverage of BJS data, such as white collar 

crimes, civil justice, juvenile justice, and the interaction between 

drugs and crime. 

I am particularly interested in the areas of juvenile justice and 

the drugs-crimes relationship. Do you believe that this recommendation of that panel is justified and if so, how do you propose to remedy those gaps? 

Mr. LYNCH. Senator, again, panel members—being a panel member is quite different from being a director, I’d presume. 

Senator COBURN. You are getting ready to find out. 

Mr. LYNCH. Yes, Senator, if you concur. I think that the juvenile 

justice area is complicated, because there are a number of people 

involved, the Office of Juvenile Justice and Delinquency Prevention 

and other people have—so there is a type of ambiguous authority. 

306 

But I think whatever one would do to address that and other 

gaps in the statistical system, I really wouldn’t want to answer on 

the fly right now. I think I would like to review the programs sitting as director as opposed to a panel member, because we can’t do 

all of them. We will have to pick and choose and I would like to 

pick and choose those things, if I were confirmed, with the advice 

and expertise of the staff. 

Senator COBURN. I will look forward to hearing from you about 

3 months after you are into the job, then. 

Mr. LYNCH. Thank you, Senator. 

Senator COBURN. If I may, Mr. Chairman, continue, because I 

have similar questions for every—Ms. Pearson, I have only one 

question. I have no doubt that you are qualified for this position. 

But as I was going through your information, I came to something that I cannot come to grips with and I just want to give you 

an opportunity to answer. 

In your questionnaire, you noted that you are member of the Animal Legal Defense Fund and according to ALDF’s website, it fights 

to advance the interests of animals through the legal system and 

advocates the adoption of an animal bill of rights, which provides 

that animals have the right to have their interests represented in 

court and safeguarded by the law of the land. 

Do you adhere to what that group’s message is and what is the 

precedent therefor? 

Judge PEARSON. Thank you, Senator Coburn, for the opportunity 

to speak to this issue. I am a member of the Animal Legal Defense 

Fund. You may also note that my biography includes that I teach 

animal law. And what that allows, sir, is me to use animals and 

the intersection of animals and the law to teach a course to law 

school students. 

This circles back to the Animal Legal Defense Fund in that the 

Animal Legal Defense Fund has a goal that is not my goal, but it 

certainly overlaps with what I teach, and that is broadening or creating animal rights. 

Animal law, however, is much more expansive than that. It includes animal welfare, but, also, every place where animals intersect with the law. In estate planning, for instance, if one wants to 

make sure that animals are cared for; in tort situations, if an animal causes harm or if an animal is harmed; in criminal law, similarly. 

Also, you heard Judge Black speak about his work in domestic 

relations. Well, there are other organizations that I’m also a member of, sir, that act especially to allow battered women a place to 

place their animals, because many battered women will not leave 

a home and leave a dog there. 

In fact, there are examples where—— 

Senator COBURN. I understand that. My question is really do you 

really believe animals should have the right to have their interests 

represented in a court of law. 

Judge PEARSON. In certain circumstances, sir, absolutely. 

Senator COBURN. What would those be? 

Judge PEARSON. For instance, and it already happens, this is not 

a new and novel idea. For example, in the industry of food, agriculture, the interests of the animal, which ostensibly is presented 

307 

as an interest in doing what is best and most healthy for individuals who eat animals, that is also a way in which animal interest 

is represented. 

I don’t want to mislead you into thinking that I’m an advocate 

for animal rights, because that is not the case. But I am an advocate for doing what is in the best interest of animals and, at times, 

that coincides with what is in the best interest of animals and humans, which is an example that agriculture and the representation 

of issues regarding agriculture and health—for instance, the H1N1 

virus and things of that sort. 

Senator COBURN. One final question on that and then I have no 

more questions for you. Is it in the best interest of a steer to be 

slaughtered? 

Judge PEARSON. Probably not in the best interest of the steer, 

sir, but then you have to look beyond that. I mean, the steer is 

going to lose its life. It’s a painful situation and steers, evidence 

has shown, through scientific testing, may have some idea or an 

apprehension about the slaughter that’s impending. 

But the next step is that is it necessary to slaughter the steer 

in order to provide food for those who would otherwise go hungry 

or perhaps be malnourished without the substance that this steer’s 

flesh and hide could provide in terms of clothing and other matters 

necessary for the well being of animals. 

Senator COBURN. I think I have a good understanding of what 

you are on that. Thank you. 

Judge PEARSON. Thank you, Senator. 

Senator COBURN. First Lady Freudenthal, thank you, number 

one, for being here. I had a couple of questions about the decision. 

In 2003, after your husband was elected Governor, you pledged not 

to appear before boards and commissions appointed by your husband and said you would build a Chinese wall between your law 

practice and state government. 

Why did you later change that policy? 

Ms. FREUDENTHAL. Thank you, Senator, for allowing me the opportunity to respond to that question. The position that was taken 

at that time was that I would move my practice away from appearance before governmental entities that my husband appointed. 

That was done in consultation with a professor at the law school 

who advised me that there was no ethical requirement to do so. 

Over the course of his time in office, I concluded that that approach was not in the best interest of my clients; that the process 

of dealing with governmental agencies was not one that needed to 

be constrained in that fashion. 

Most of my practice still remained in Federal court, as well as 

state court. But I did choose to move some of my matters and accept some practice areas dealing with government agencies. 

Senator COBURN. You stated in your questionnaire that in 2001, 

you were hired by EchoStar Communications to review legislative 

activities, speak to legislators and testify before the House Revenue 

Committee on a bill under deliberation that would have changed 

the definition of telecommunication. 

After your husband was elected Governor in 2003, you continued 

monitoring the legislation on behalf of EchoStar. Did you have any 

308 

ethical concerns about your work for them considering your husband was the chief executive of the state? Why or why not? 

Ms. FREUDENTHAL. Thank you, Senator. The involvement that I 

chose to have at that time for that client was a monitoring one 

only. I did not testify before any legislative committees in, I believe 

it was 2006 or 2007, and I did not have any occasion to address 

the issue with the executive branch. 

It was just a matter of following the legislation in that area so 

that were the law to be changed, my client would be fully informed 

of what the new requirements were. 

Senator COBURN. Having been born in Wyoming, that is a very 

acceptable answer. Thank you. 

Magistrate Black, a couple of questions. During your campaign 

for the Ohio Supreme Court in 2000, you stated that you view the 

law in the context of time and society. What did you mean by that 

statement? 

Judge BLACK. Thank you, Senator, for the opportunity to respond 

to that. The law exists today and it existed in the past and in approaching any legal question, a judge is called upon typically to interpret the text of a statement and one does that in statutory construction. 

But in society, different issues arise as futuristic developments 

occur that may never have been anticipated at the time the law 

was written, but the analysis is still the same. What does the law 

say? What does it mean? 

What changes is merely the context and the time at which a 

judge is called upon to interpret the language. 

Senator COBURN. So I have a better understanding, do you believe that judges should view the Constitution and the text in the 

context of time and society or what you just said, here is the application of the law, here is the written law, here is the background 

on the written law, and here are the facts? 

Judge BLACK. The former, Senator, the text. But, for example, do 

you need a warrant to search somebody’s cell phone? That was an 

issue that the founding fathers never addressed. But they wrote 

the law as to the protection against unreasonable searches and seizures. So one reads that text and applies it in a very different context than was originally written. 

Senator COBURN. Thank you. This is a question for all of the 

judges and you can just ‘‘yes’’ or ‘‘no’’ it. I am a firm believer that 

the Constitution does not allow judges to use foreign law in the interpretation of our Constitution. Do you agree with that or disagree 

with that? 

Judge BLACK. Which judge did you want to start with, Senator? 

Senator COBURN. Whichever one wants to speak up first. See 

who the leaders are. 

Judge BLACK. If you would be willing, I would like to respond to 

your inquiry at this time. And the question was whether we can 

use foreign law to interpret the Constitution. No. 

Senator COBURN. Magistrate Pearson. 

Judge PEARSON. Thank you, Senator. No. 

Judge MARSHALL. I don’t know. I have not thought about it, Senator Coburn. 

309 

Senator COBURN. Well, there is a document that puts out fairly 

clearly what our judges are to use, and it is the Constitution, the 

statutes and the treaties, and only the treaties when they are involved in foreign debate. 

So you have a question on whether or not we should use that in 

that context? 

Judge MARSHALL. Absolutely not. The Constitution is the supreme law of the land. 

Senator COBURN. The Constitution does spell out the authority 

and role of judges and how they interpret law, would you agree to 

that? 

Judge MARSHALL. Absolutely. 

Senator COBURN. It does say what we are to use to do that, 

which is the statutes and the Constitution. 

Judge MARSHALL. Absolutely, yes. 

Senator COBURN. That is fine. 

Judge MARSHALL. I’m sorry if I misunderstood. 

Senator COBURN. That is fine. 

Ms. FREUDENTHAL. Senator, if I have the privilege of being confirmed, I would look to the Constitution and the statutes and the 

precedent that has been set under those. 

Senator COBURN. One final question, Mr. Chairman. You all have 

related, during your testimony today, the importance of stare decisis. Can I just have an affirmative that you believe that that is the 

ruling body of law that you will reference in terms of your position 

as Federal district judges in terms of the appellate division that 

you are in, as well as the Supreme Court? 

Judge BLACK. Senator Coburn, my answer is yes. 

Judge PEARSON. Senator Coburn, my answer is also yes. 

Judge BLACK. Senator Coburn, my answer is also yes. 

Ms. FREUDENTHAL. Yes, Senator. 

Senator COBURN. All right. Thank you very much. Thanks for the 

indulgence. 

Senator KAUFMAN. Senator Sessions. 

Senator SESSIONS. Thank you. Ms. Freudenthal, with regard to 

your experience, I note that you do not have any experience litigating criminal cases and, actually, I think you have never tried 

a case before a jury. 

One of the things you will be required to do as a Federal judge 

is to impose sentences. There is a congressionally-established sentencing guideline procured that is pretty complex. Actually, after a 

while, you can become real adept at it; but at first, it is a bit intimidating. 

It used to be that that was mandatory and Congress having the 

power to set sentences, but somehow the Supreme Court felt they 

knew better and they have given a good bit of discretion now to the 

sentencing judge. 

So I guess my question to you is do you understand that the sentencing guideline was designed, supported by Senator Kennedy and 

Senator Thurmond and Senator Biden and Senator Hatch, was designed to ameliorate against this idea that your sentence depended 

on what judge you were before; that similar crimes with similar 

backgrounds and nature should get—— 

310 

So I guess my question is, will you express how committed you 

would be under the normal procedures to follow the guidelines even 

if they are advisory today? 

Ms. FREUDENTHAL. Thank you, Senator, for the important question on sentencing. I appreciate that sentencing is a weighty matter that needs to be undertaken with careful and sober consideration and that there is significant value to consistency, as you’ve 

articulated that so well. 

I want to assure you that I would give consideration to the sentencing guidelines. 

Senator SESSIONS. Well, I suppose consideration is one thing, but 

can you tell us how much respect you would give to it? You do not 

have a background in this. Do you come at it with any views that 

you can express to us today? 

Ms. FREUDENTHAL. Thank you, sir. As you’ve indicated, I definitely know that I have my work cut out for me. I plan on taking 

advantage of the resources that are available to judges and judicial 

education and, certainly, the knowledge and advice, through consultation with my colleagues. 

In that context, I would give consideration to the sentencing 

guidelines. I do want to assure you that I appreciate that sentencing is done on a individual case-by-case basis. 

So in the consideration of consistency, I feel reluctant to say that 

I would be committed to those, because I do believe sentencing is 

a weighty and individual matter. 

Senator SESSIONS. Well, it is an individual matter and that is 

how we end up with two judges, one giving somebody probation 

and another one giving them 20 years for the same, because they 

think it is a dangerous philosophy. 

I suggest, if you lack experience in sentencing, you scrupulously 

follow the guidelines, because they were established through a lot 

of hard work, how many convictions the individual has, whether 

there was violence in the case, how much was at stake and those 

kinds of things. 

I think, essentially, they are very good. There are some cases 

perhaps that they are not appropriate or do not fit perfectly. But 

in the long run, I would be inclined to think we would be better 

following them than abandoning them. 

Judge Marshall and Judge Pearson, you both dealt with the 

guidelines, at least to some degree. Could you express your basic 

philosophy and how you expect to handle or request from a defendant to depart from the guidelines perhaps and give a lesser sentence and maybe have their momma there and their preacher 

there, their children there? It can be a tough thing. 

Judge MARSHALL. Thank you, Senator Sessions. I have not done 

anything like that in my judicial career and I echo what—— 

Senator SESSIONS. Well, you have handled plea bargains. 

Judge MARSHALL. No, sir. On the court of appeals, all of that is 

done. My experience with the guidelines is soon after they were 

adopted, when I was a clerk with Judge Arnold, and we were struggling with implementing them. 

I think there is great wisdom in those guidelines. I think that I 

would use the word respect, that they are entitled to respect from 

the district courts. There is, I understand, a long history on this 

311 

issue of Congress struggling with trying to achieve some uniformity 

on sentencing at the same time that, as Ms. Freudenthal said, we 

don’t lose sight of the individual in a particular case. 

I would not want to prejudge any particular case or issue and, 

as I have said before, I would follow the Supreme Court’s precedent 

on the point, which, as I understand it, has the guidelines as important and entitled to respect, but advisory rather than mandatory. As their name implies, they are guidelines. 

Senator SESSIONS. Judge Pearson. 

Judge PEARSON. Thank you, Senator Sessions. You are correct, 

sir, when you say that sentencing is tough and, indeed, it should 

be. It’s a very individual decision, but also one that’s likely to have 

an impact beyond the individual defendant being sentenced and the 

advisory nature of the guidelines does not militate against the 

value the guidelines add in ensuring consistency in sentencing. 

In fact, now we have two tools. Before there was the ability to 

depart upward or downward, which the guidelines itself permitted, 

but now we also have the opportunity for variance to employ that 

when the guidelines sentence, such as a probation, is not the appropriate sentence in this individual case, but perhaps a more 

lengthy term of incarceration is important. 

So I can assure you that, if confirmed, in my judging, the sentencing guidelines would play a great and consistent role and allowing me to be sure that each individual defendant is given the 

most appropriate sentence, determined by the facts and the law. 

There is also, as you well know, Senator Sessions, the codifications of the guidelines, to some extent, in the statute, 18 USC 

3553, which I would also give consideration to. 

Senator SESSIONS. Well, this is not a little matter. If we do not 

watch it, we are going to drift back into what courtroom you appear in and I have seen it in great judges, too, in my district. One 

could give probation for the same offense another would give 20 

years for, just which court did you draw. 

The sentencing guidelines consider so many things and it is a little bit complex and some people did not like it at first, but I think 

judges came to like it, because without it, you are faced with pleas 

on the prosecutor asking for a big sentence and the criminal and 

his family asking for leniency. Where do you go? 

So I would just strongly urge you to—— 

Senator KAUFMAN. I just want to say this is one where Senator 

Sessions and I agree. When Senator Biden was first considering 

the sentencing guidelines, we got a letter in 1 day from a large 

prisoners group in Attica Prison in New York hoping that we were 

going to put sentencing guidelines, because all too often, to followup what Senator Sessions said, literally, there were two prisoners 

in the same cell for the same crime, one for 5 years and one for 

15. 

It is pretty compelling, the same time for the same crime is the 

most humane, fair, just way to go about doing it, again, taking into 

account individual judges faced with individual cases. 

But I think Senator Sessions and I both say the guideline are put 

together, they have been in place for quite a while and what we 

are trying to do is have people feel that they are all treated uniformly before the law. 

312 

Senator SESSIONS. I believe you were here when all that occurred, working with Senator Biden. 

Senator KAUFMAN. I was a staff person. 

Senator SESSIONS. I am sure he did what you told him. We all 

do. 

[Laughter.] 

Senator SESSIONS. Judge Black, you were asked about the idea 

that you view the law in the context of time and society. Justice 

Scalia once pointed out that the problem with that is—now, you 

have got a good way, I think, going to the nub of it—is that there 

is an, quote, ‘‘impossibility of achieving any consensus on what precisely is to replace original meaning once that is abandoned.’’ 

So I think it is a dangerous thing and a serious matter, indeed, 

if you replace the original meaning by what a judge today might 

devine he or she thinks it ought to say today. Do you see that danger? 

Judge BLACK. Thank you for the opportunity to comment on this, 

Senator. I see that danger and when I approach statutory construction or constitutional interpretation, first and foremost, I read the 

text, what does it say and what does it mean. And if it’s clear and 

unambiguous, the analysis is over. 

Senator SESSIONS. Well, unambiguous in terms of—all right. We 

could go round and round on this. 

Judge BLACK. We could. 

Senator SESSIONS. Scalia and others have for years and years. 

Judge BLACK. Indeed. But if I’m confirmed as a district judge 

and have that high honor, great privilege, my work is not going to 

be extraordinarily lofty constitutional statutory interpretation, in 

large part. It’s going to be the bread-and-butter of the Federal district courts doing things like applying the sentencing guideline. 

Having been a sentencing judge for 16 years, I will afford the 

sentencing guidelines substantial deference and respect. I appreciate them. I’ll tell you, in the Sixth Circuit, if you depart, you better have a specific, substantial, reasonable reason or you’ll get reversed. So perhaps the Sixth Circuit’s work may bring you some 

confidence. 

Senator SESSIONS. Well, I think Judge Black, based on his experience, has given just good advice. I think, in the long run, unless 

you have come to know something special, you would be better off 

following the guidelines, because you can get off base. 

Dr. Lynch, I think the Bureau of Justice Statistics is a very important office and I think it is very important that it preserve its, 

I think, pretty solid reputation as being independent and objective 

in its work. 

I have never seen a President or an Attorney General yet that 

did not have beliefs and a philosophy about how they think the office should be conducted. If they did not have that, they are not fit 

for the job, in my opinion. It is a job that requires leadership and 

belief and conviction and a philosophy. 

But you guys are supposed to give us the right data. If the Attorney General went out and made a big speech last week and your 

data does not support it, what is your view about how you should 

conduct your office? 

313 

Mr. LYNCH. Senator, I think there is some very good guidance to 

be taken from the principles and practices of Federal statistical 

agencies and I think, if I were fortunate enough to be confirmed, 

it would be that guidance that I would adhere to in conducting myself in the office. 

Senator SESSIONS. Well, Senator Coburn, I think, asked you 

some questions along that line, but I would just say that your 

group, when you were part of that study reviewing BJS programs, 

you recommended that BJS be moved out of Justice Programs and 

instead to report to the Attorney General and Deputy Attorney 

General directly, the idea that it would make it more prominent. 

I am inclined to think that the more you get prominent, the more 

you get politicized and the danger that it is. When I was United 

States Attorney for 12 years, I always read those reports. I thought 

they were just full of insight, just so many things that actual objective data would convince you that your original thought was wrong, 

the facts do not bear it out. 

So I would just say, first of all, I doubt that you should move the 

office. Second, I would charge you that you have got to protect the 

integrity of that office. You have said you will and I would have 

to take you at your word on that. 

I know, in 2005, a dispute arose between the director of BJS and 

the Assistant Attorney General regarding the content of a press release. Did you talk about that with Senator Coburn? 

Mr. LYNCH. Senator Coburn didn’t bring it up. I referred to it indirectly. 

Senator SESSIONS. Well, your panel recommended the Department of Justice not be permitted to make changes to the content 

or timing of the release of BJS work product, and I think that was 

probably a good approach. It is one that a good Attorney General 

should follow. 

Senator Kennedy and I supported and were responsible for the 

passage of the Prison Rape Elimination Act of 2003. I understand 

you have criticized that or at least the part that required a review 

panel. 

Mr. LYNCH. Are you referring to the panel report, Senator? 

Senator SESSIONS. Right. The panel report, when you were part 

of that panel. 

Mr. LYNCH. The panel did make comment on that, yes. 

Senator SESSIONS. Do you recall what it is you did not like about 

that report? 

Mr. LYNCH. When you’re saying ‘‘you,’’ again, it’s the panel that 

you’re referring to, Senator? 

Senator SESSIONS. Well, you are stuck with it, unless you disavow it. 

Mr. LYNCH. No. It’s just I didn’t write it. I didn’t have authorship, but I was a panel member. I think that during—what the 

panel, I think, felt uneasy about with respect to PREA, I think, 

was the commingling of statistical functions with enforcement functions. 

If you look at the principles and practices, they make a big point 

of that, that those should be kept distinct, if at all possible. 

Senator SESSIONS. That has got some validity to it and I would 

agree. 

314 

You have written a book about immigration and written an article for Casa de Maryland, which is a fairly controversial group, taking some pretty aggressive pro-immigration issues. 

You wrote that ‘‘Empirical research generally does not support 

the allegation that immigrants are involved in criminal activity to 

a greater degree than the native population,’’ close quote. 

Well, we certainly—I totally agree that most immigrants of this 

country, even those that have entered unlawfully, abide by most of 

the laws of this country, except for immigration. So I do not dispute 

that. 

But this was a serious argument you made. It is a matter of 

some national discussion and you make that fairly firm statement. 

But it has been estimated that illegal immigrants make up 27 percent of the Federal prison population, and that is a stunning number to me. 

That is not people being held waiting to be deported. These are 

people who have been convicted of other crimes, such as assaults, 

thefts, drugs and that kind of thing. 

Is that still your view on that subject? 

Mr. LYNCH. Senator, let me correct one thing. You referred to a 

group, La Casa, I don’t recall writing an article for them. I recall 

them taking excerpts from an article that I did or quoting it. 

Senator SESSIONS. You are right. My staff just gave me a note. 

I did not understand it, but that is correcting me. You are correct. 

I apologize. It was they who quoted your article, which is quite different. 

Mr. LYNCH. Trust me, Senator, every academic has cited every 

letter from his mother. So I remember that. So with respect to 

my—I did that research. 

Interestingly enough, I started my interest in immigration with 

my interest in sentencing, comparative sentencing, and I was trying to figure out why the Germans could have such a low incarceration rate and I assumed what they were doing was deporting summarily foreigners who were engaging in crime, and that’s how I 

started to tug at this particular thread. 

So I had looked at it in a variety of contexts across national comparisons, as well as just domestically, and I stopped looking at it 

intently around 2003 or 2004. And I think, at that time, that’s 

what the data led us to believe. 

Senator SESSIONS. Well, thank you. I really feel like that Office 

of Justice Programs and BJS, OJP, all of these things have the potential, we have talked about this before, Senator Kaufman and I 

have, to really provide us some leadership in how to make criminal 

justice in America better; other parts, too, but particularly the 

criminal justice area. 

That is a big job you have got. It requires independence and rigorous analysis. But if we can provide leadership and good data to 

states and localities who are wrestling with how to improve their 

law enforcement, I think we can reduce crime or reduce prison populations and make the system work better. 

I do think we have an appointment to talk some more about that. 

But I would like to say I would be willing to hear from you if, in 

the course of your work, you conclude that, pretty clearly, if we did 

A and B instead of C and D, we would get a better result. I would 

315 

love to hear you come forward and say, ‘‘Senator, you ought to consider this policy change,’’ and I would appreciate it if you would 

feel free to do that. 

Thank you. 

Senator KAUFMAN. I agree with Senator Sessions and I think 

when you look at the big change in terms of how we dealt with 

crime, positive things about how we dealt with crime the last 20- 

some years, it has been primarily around the use of statistics and 

new ways of doing it, using statistics in order to solve problems 

and deal with them. So I want to thank you for that. 

If we do not have anymore questions, we will hold the record 

open for a week for members of the Committee who wish to submit 

questions. 

Chairman Leahy has a letter, without objection, I would like to 

put into the record. 

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

Senator KAUFMAN. Again, I want to thank the nominees for 

being here and I want to thank their families. It is a great sacrifice 

you are making, it is a great sacrifice your family is making. But 

I will tell you what. When you look back on life from where I am, 

the fact that you were there helping your country when your country needed it is something that just cannot be topped in terms of 

satisfaction. 

So I want to thank you. You are qualified. We are grateful you 

are doing this service. 

With that, we stand in recess. 

[Whereupon, at 4 p.m., the hearing was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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(375) 

THE NOMINATIONS OF GLORIA M. NAVARRO, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE DISTRICT OF NEVADA; AUDREY G. 

FLEISSIG, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

MISSOURI; LUCY H. KOH, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE NORTHERN 

DISTRICT OF CALIFORNIA; JON E. 

DEGUILIO, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

INDIANA; TANYA WALTON PRATT, NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE 

SOUTHERN DISTRICT OF INDIANA; JANE E. 

MAGNUS-STINSON, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA 

THURSDAY, FEBRUARY 11, 2010 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 11:28 a.m., Room SD– 

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

Present: Senator Sessions. 

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

SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. I am pleased to call the nominations hearing of the Senate Judiciary Committee to order. 

Senator Sessions and myself are here. We are even starting a 

few minutes early, in light of how many days our nominees have 

been waiting. We are very sorry about this, and I know you had 

your families in, you dealt with canceled flights and blizzard conditions. Of course, in Minnesota, we call this weather ‘‘fair to partly 

cloudy’’. 

[Laughter.] 

Senator KLOBUCHAR. We do welcome your friends and family. I 

know we’re considering six distinguished nominees today from Indiana and Missouri, Nevada and California. I can tell you, I’ve had 

376 

all week to prepare for this hearing, so I know all your biographies 

in great detail. 

We’re also excited to welcome several home State Senators to introduce our compelling nominees, including our distinguished Majority Leader, Senator Harry Reid. I would say more about them, 

but Senator Reid has a very busy schedule today. I know that he 

is here to introduce Gloria Navarro, and I understand that, if she 

is confirmed, she will be the only woman and the only Latina on 

the Federal District Court in Nevada. 

Before I begin, Senator Sessions, before Senator Reid begins, 

would you like to say a few words? 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Well, I look forward to a good hearing. We are 

having hearings, I believe, on six today. That is a good case. I am 

glad to have the Majority Leader here. I know he has an incredible 

burden of people like yourself, who are always trying to get him to 

do things. 

[Laughter.] 

Senator SESSIONS. So, Senator Reid, we would be glad to hear 

from you at this time. 

Senator KLOBUCHAR. Senator Reid. Senator Reid, want to turn 

on your microphone there. 

PRESENTATION OF GLORIA M. NAVARRO, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF NEVADA BY HON. 

HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA, 

SENATE MAJORITY LEADER 

Senator REID. First, I want to read a statement by Senator Ensign. He asked me to do this: 

‘‘The snow in Washington, DC has canceled yet another flight so 

I am unable to appear before the Judiciary Committee today to join 

Senator Reid in introducing a distinguished Nevadan. I wish I 

could be there in person to tell you that I believe Gloria Navarro 

has the relevant experience and qualifications and respect for the 

law that is required of a District Court judge. 

Gloria has been a dedicated public servant, and Nevadans should 

be proud to have this honorable individual on the bench. As a firstgeneration Cuban-American, Gloria embodies the spirit of America. 

I am glad for this opportunity to introduce the proud mother, wife, 

and public servant to my Senate colleagues. Thank you, John Ensign.’’ 

Let me say to this distinguished Judiciary Committee, I am terribly impressed with this Nevadan’s professional record and commitment to public service in virtually every area of her life. Getting 

to know her has been a good experience for me. She is very personable and professional and is devoted to justice and the rule of law. 

We have talked about our families, shared respect for the law, 

and our experience growing up in Nevada. She is yet another example of the American story. As Senator Ensign mentioned, daughter of an immigrant family from Cuba, and of course she speaks 

Spanish fluently. She’s learned English and her ABC’s watching 

377 

‘‘Sesame Street’’. Today, she is an outstanding attorney who chose 

to serve her community. 

She will be the first Hispanic, as Senator Klobuchar mentioned, 

to sit on the bench in the District of Nevada, the first Hispanic 

woman. It is clear that she is well—prepared to do this job. She 

is currently the Chief Deputy District Attorney in the Office of 

County Counsel, Clark County, Nevada, the Las Vegas area. 

You have her re ́sume ́; it speaks for itself. But I want to just say 

this: I have the ability to appear before different groups, and a lot 

of times I speak to entities that I have to kind of get a good background first before I speak to them because I think sometimes they 

know more than I know. 

In this instance, I feel very comfortable talking about a trial and 

what they mean. I’ve had the good fortune to try over 100 cases 

to juries, and I know how important a judge is in the judicial system we have in America today. 

Gloria is not rated as high as she should be rated. Why? The 

ABA says she hasn’t had judicial experience. That is upsetting to 

me. If they based their ratings on people having judicial experience, that would mean that, according to them, every person that 

seeks a seat on the bench has to have judicial experience, maybe 

a municipal court judge, maybe a justice of the peace. 

I just cannot accept that and I think the ABA should get a new 

life and start looking at people for how they’re qualified and not 

whether they’ve had judicial experience. I think one of the problems we have in our Federal judiciary, is we have too many people 

who have never seen the outside world. 

I think the present make-up of our Supreme Court speaks of 

that. I asked President Obama, let’s get somebody on the court that 

has not been a judge. They need to do more than think of themselves as these people that walk around in these robes, with these 

fancy chambers they have. 

I think we need people on the bench who have been out there, 

like Gloria, who has had to go to court to get a corrupt public official removed from office. She did that. Somebody who has defended 

somebody who has been convicted of murder and was sentenced to 

death; she’s done that. Somebody who’s been in the private practice 

of law and had to ask somebody for money for their fees, to pay 

their bills. 

So, this woman will be a terrific judge. She has had experience 

in the real world of government, the real world of the law. Again, 

I hope the ABA stops rating people based on whether or not they’ve 

had judicial experience. I think that’s fine if they have that part 

of it, but don’t rate somebody not as qualified because they haven’t 

been a judge before. 

Senator KLOBUCHAR. Thank you very much, Senator Reid. And 

thank you for those thoughtful comments. Certainly, you would be 

someone who would know what it’s like to come somewhere with 

different experience, as you started your career in the Capitol 

working as a police officer right in this building. So, thank you very 

much. We are excited to hear from your nominee. 

Senator Bayh is here from Indiana, and I know that you have 

three excellent nominees to introduce. I will tell you, my favorite 

one was the woman judge, Tanya Walton Pratt, who is currently 

378 

in a private law firm with her father, husband, and brother. Is that 

correct? No, it’s not? It was correct. You were at a private law firm 

with your husband, father and brother. So, I thought that would 

be very good evidence of a patient temperament. So, very good. 

Senator Bayh, to introduce the three nominees. 

Senator BAYH. We not only talk about family values in Indiana, 

we practice them, Senator. 

Senator KLOBUCHAR. Very good. 

PRESENTATION OF TANYA WALTON PRATT, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA; JON E. DEGUILIO, NOMINEE TO BE DISTRICT JUDGE 

FOR THE NOTHERN DISTRICT OF INDIANA, AND JANE E. 

MAGNUS-STINSON, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE SOUTHERN DISTRICT OF INDIANA BY HON. EVAN 

BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA 

Senator BAYH. Thank you very much, both Senator Sessions, 

Senator Klobuchar. I appreciate this opportunity. I also want to 

thank our nominees for their perseverance here in the face of 

Snowapalooza, or Snowmaggedon, whatever we’re calling it these 

days. 

Senator KLOBUCHAR. We are calling it the Snowmination here. 

[Laughter.] 

Senator BAYH. I thought this was just weather as usual in Minnesota. But in any event, we’re a hardy breed in Indiana, just as 

you are. I’m grateful to them for sticking it out here, because they 

were scheduled to go forward yesterday. 

So, Senator Klobuchar, Ranking Member Sessions and other distinguished members of the Committee who could not be with us 

but are represented by their able staff here today, I want to thank 

you for the opportunity today to introduce three outstanding Hoosiers who have been nominated to serve as U.S. District judges. 

I was proud to join with Senator Lugar to recommend these exemplary individuals to the White House and I am confident that 

each will be an excellent addition to the Federal bench. 

Before I introduce these three nominees, I would like to comment 

briefly on the state of the judicial confirmation process, generally. 

In my view, this process has too often been consumed by ideological 

conflict and partisan acrimony. This is not, I believe, how the framers intended us to exercise our responsibility to advise and consent. 

During the last Congress, I was proud to work with Senator 

Lugar to recommend Judge John Tinder as a bipartisan consensus 

nominee for the Seventh Circuit Court of Appeals. Judge Tinder 

was nominated by President Bush and unanimously confirmed by 

the U.S. Senate by a vote of 93:0. It was my hope that Judge Tinder’s confirmation would serve as an example of the benefits of 

nominating qualified, non-ideological jurists to the Federal bench. 

In selecting the three qualified individuals sitting before you 

today, President Obama has demonstrated that he also appreciates 

the benefits of this approach. I was proud to once again join with 

Senator Lugar to recommend these nominees to President Obama, 

and I hope that, going forward, other Senators will adopt what I 

call ‘‘the Hoosier approach’’ of working across party lines to select 

consensus nominees. 

379 

I would also like to personally thank Senator Lugar for his extraordinary leadership and for the consultative and cooperative approach he has taken to judicial nominations. During my time in 

Congress, it has been my privilege to forge a close working relationship with Senator Lugar on many issues. This has been especially true on the issue of nominations. 

When a judicial nominee from Indiana comes before this Committee, our colleagues can be confident that the name being put 

forward enjoys bipartisan support, regardless of which political 

party is in the White House or controls a majority in the U.S. Senate. 

I also want to briefly note the historic nature of the nominees 

seated before you today. In particular, if confirmed, Judge Tanya 

Walton Pratt would be our State’s first African-American Federal 

judge. If Judge Jane Magnus-Stinson were to join her on the Federal bench, it would double the number of female Federal judges 

in the State of Indiana. 

I hope that both will be confirmed and that their appointments 

as Federal judges will inspire Hoosier children of all backgrounds 

to pursue their dreams and will show them that, in America, anything is possible if you study hard and play by the rules. 

On the merits, these three talented nominees share many common attributes that make them well-qualified for lifetime appointments to the Federal judiciary. All three have been recognized as 

leaders in the Indiana legal community and all have the experience, insight, background, and temperament that Hoosiers expect 

and deserve from their judges. 

These nominees have shown themselves to be deserving of the 

public trust. They have demonstrated the highest ethical standards 

and a firm commitment to applying our country’s laws fairly and 

faithfully. In so doing, they have earned the respect and support 

of Indiana’s judges, lawyers, elected officials, and community leaders. 

In addition to their good judgment and impressive knowledge of 

the law, I am confident that each of the nominees appreciates the 

limited role of the Federal judiciary. They understand that in our 

constitutional system of government, the appropriate role for the 

judge, is to interpret our laws, not to write them. 

Along with being accomplished attorneys, all of these nominees 

are outstanding citizens. They are role models in their respective 

communities, not only because of their considerable professional accomplishments, but because of their civic involvement and their 

commitment to improving the lives of their fellow Hoosiers. 

Most importantly, in their professional and civic work, each of 

these nominees has shown themselves to be dedicated to the pursuit of the bedrock ideal of our American judicial system: equal justice under the law. 

I am confident that this group of nominees will serve the people 

of Indiana and the United States with great distinction and will 

help ensure the speedy and efficient administration of justice for all 

of our citizens. 

I would like to, first, introduce Jon DeGuilio, who has been nominated to serve in the Northern District of our State. If confirmed, 

Mr. DeGuilio would fill the seat once held by Hon. Judge Allen 

380 

Sharp, who passed away last year after a long and distinguished 

career serving our State. 

Mr. DeGuilio has extensive experience in Federal court and has 

earned a well-deserved reputation as a tough prosecutor. From 

1993 to 1999, he served as the U.S. Attorney for the Northern District of Indiana, during which time he led efforts to aggressively 

crack down on crime and drugs and to make our streets safer. 

Prior to his service as U.S. Attorney, Mr. DeGuilio served as the 

prosecuting attorney for Lake County, as well as the public defender in that county. He is the former president of the Hammond 

City Council and a former legal advisor to the Lake County Sheriff’s Office. A graduate of Notre Dame and Valparaiso University 

School of Law, next year Jon will celebrate his 30th wedding anniversary with his wonderful wife, Barbara. Together, they have two 

children, Suzanne and Christopher. 

I would next like to introduce Judge Jane Magnus-Stinson, who 

has been nominated to fill one of two vacancies in our Southern 

District. The Southern District has a special place in my heart because I once clerked there shortly after graduating from law school, 

so I saw the internal workings of our court system in that district 

firsthand; it was a formative experience for me. 

Judge Jane Magnus-Stinson is extremely well-qualified to serve 

on the Federal bench. She has extensive trial experience, having 

served as a judge on the Mirren County Superior Court from 1995 

to 2007. During this time, she was recognized as a leader among 

Indiana jurists, serving on the board of directors of the Indiana Judicial Conference and the Board of Managers of the Indiana Judges 

Association. 

Judge Magnus-Stinson also has valuable experience presiding in 

Federal court, having served as a Federal magistrate judge in the 

Southern District since 2007. Judge Magnus-Stinson’s devotion to 

the fair and efficient administration of justice has been recognized 

by her fellow Hoosiers. She has been honored as the ‘‘Judge of the 

Year’’ by the Indiana Coalition Against Sexual Assault, and as an 

‘‘Outstanding Judge’’ by the Indiana Coalition Against Domestic Violence. 

In recommending Judge Magnus-Stinson, I have the benefit of 

being able to speak from personal experience, as she served as my 

counsel while I was Governor of the State of Indiana. She is a cum 

laude graduate of Butler University and Indiana University School 

of Law. 

Judge Magnus-Stinson is married to Bill Stinson, and they have 

two wonderful daughters, Jill and Grace. 

The final nominee I would like to introduce today is Judge Tanya 

Walton Pratt, who has also been nominated to serve in the Southern District of our State. Judge Walton Pratt is highly qualified to 

serve as a U.S. District Judge. She has extensive trial experience, 

having served as a judge in the Marion Superior Court since January 1997. For the vast majority of this time, she presided over 

Major Felonies in the Criminal Division and was responsible for 

managing dozens of jury trials every year. 

Judge Walton Pratt has been recognized as a leader among Indiana jurists and currently serves on the Executive Committee of the 

Marion Superior Court system, and as supervising judge of the 

381 

Marion County Juvenile Detention Center, and on the board of directors of the Marion County Bar Association. 

In addition to her work as a judge, Tanya Walton Pratt has also 

been recognized as a leader in her community. She has also been 

honored with numerous awards, including the Career Achievement 

Award from the Indianapolis Archdiocese, and the Key to the City 

of Muncie. She is a graduate of Spelman College and Howard University School of Law. 

I also understand, Judge Pratt, that back in the day—my colleagues might be interested in this. Back in the day, my father and 

her father served in the Indiana General Assembly together. There 

are some wonderful black-and-white photographs in the State legislature commemorating their service together. 

It is my pleasure to introduce her today as a worthy and historic 

nominee to the Federal bench. 

In closing, I would like to emphasize my personal belief that each 

of these nominees before you today possesses the temperament, intellect, and even-handedness necessary to serve as a Federal judge. 

I have high confidence that, if confirmed, they will be superb additions to the Federal bench, and I am pleased to give each of them 

my highest recommendation. 

Madam Chairman, Ranking Member Sessions, it is my distinct 

pleasure to present to this Committee for your consideration Jon 

DeGuilio, Judge Jane Magnus-Stinson, and Judge Tanya Walton 

Pratt. 

Thank you for your courtesy today. It’s always good to come before this Committee. My father served on this Committee for years, 

his entire tenure in the Senate, so the Judiciary Committee has a 

fond spot in the Bayh family heart. 

Senator SESSIONS. Thank you. 

Senator KLOBUCHAR. Thank you very much, Senator Bayh. We 

really appreciate it. 

And now we have Senator Boxer. Before that, I just wanted to 

put, Senator Bayh, the statement from Senator Lugar in support 

of these nominees in the record. Thank you. 

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

Senator KLOBUCHAR. Senator Boxer is going to be introducing 

Judge Lucy Koh. If she’s confirmed, she will be the first KoreanAmerican woman to be a Federal judge in the entire country. 

Senator Boxer. 

PRESENTATION OF LUCY H. KOH, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA BY HON. BARBARA BOXER, A U.S. SENATOR FROM 

THE STATE OF CALIFORNIA 

Senator BOXER. That’s right, Senator. 

Senator Klobuchar, Senator Sessions, I just personally want to 

thank you so much for not allowing the weather to interfere with 

your work and ours in filling these crucial posts. I know it was very 

special to my particular nominee here today that I’m going to introduce, Judge Lucy Koh, who came here with a large contingent of 

her family, through the snows, and 3,000 miles traveled. So, it 

meant quite a bit. 

382 

I would ask if Judge Lucy Koh, who has been nominated to the 

Northern District Court, would stand at this time. I would ask if 

she would have her family stand so we could see who came with 

her. It’s quite a contingent. Well, we’re just so happy that they 

were all here. I want to congratulate all of you on this very important day. 

Lucy Koh is very well-respected by her colleagues in the California legal community and she’ll make an outstanding addition to 

the Federal bench. Judge Koh is the daughter of two proud parents 

who risked much to come to America and provide for their families. 

Her mother escaped from North Korea at the age of 10 by walking 

for two weeks into South Korea, a dangerous trek that required her 

to hide from North Korean soldiers along the way. Her father 

fought against the Communists in the Korean War, and later emigrated to the United States. He worked as a busboy and a waiter 

in Maryland while attending Johns Hopkins University, later 

bringing the rest of the family here. 

Judge Koh is the first member of her family to be born in the 

United States of America. Then her family moved to Mississippi, 

where her mother taught at Alcorn State University, the Nation’s 

first historically African-American land grant college. During this 

time, Judge Koh was bussed to a predominantly African-American 

public school, where many of her classmates lived in poverty. Her 

childhood experiences provided inspiration for her to pursue a career in the law and work for the NAACP Legal Defense Fund during law school. 

Judge Koh attended Harvard Ratcliffe Colleges as a Harry S. 

Truman Scholar, graduating magna cum laude. After college, she 

attended Harvard Law School, where she was awarded ‘‘Best Brief’’ 

in the school’s Moot Court competition. 

Judge Koh has had a diverse career in the practice of law that 

makes her uniquely qualified to serve as a Federal judge. She has 

worked in policy, serving as a fellow for a Subcommittee of the 

Senate Judiciary Committee and in policy positions at the Justice 

Department. She served as a Federal prosecutor in Los Angeles, 

where she handled financial fraud, narcotics, public corruption, and 

violent crime cases. 

She has received awards and recognition for her work as a prosecutor, including a sustained ‘‘Superior Performance’’ award and an 

award from then-FBI Director Louis Freeh for her prosecution of 

the $54 million securities fraud case. She was a litigator in private 

practice prior to becoming a State court judge. 

During her time in private practice, Judge Koh worked on complex litigation matters involving security and intellectual property, 

primarily appearing in Federal court. She led the trial and the appellate team in the landmark patent case, In Re: Seagate, where 

a new standard for wilful patent infringement was established for 

the first time in years. 

With these credentials, it is easy to see why Governor Arnold 

Schwarzenegger appointed her to the California Superior Court in 

2008, where she once again excelled as a judge, handling a docket 

of both criminal and civil cases. Governor Schwarzenegger said, 

‘‘Simply put, Judge Koh exemplifies the very best of the legal profession and will be an excellent Federal judge’’. Here are the words 

383 

of Judge Katherine Gallagher, who was the presiding judge of the 

Santa Clara County Superior Court when Judge Koh was appointed: ‘‘Judge Koh is universally held in high esteem, and wellliked. She has a reputation for being prepared, thoughtful, intellectually honest, and fair. She has demonstrated exemplary judicial 

temperament.’’ 

And here are the words of Santa Clara District Attorney Delores 

Carr: ‘‘Prosecutors appear regularly before Judge Koh. Judge Koh 

has an excellent reputation for being fair and impartial to both 

sides. She is respectful to victims of crime, defendants, witnesses, 

and lawyers, and is careful and deliberate in her decisions. 

Like her career, the support for Judge Koh is diverse. I already 

mentioned the bipartisan support she has. In addition, she is endorsed by a wide group of supporters, such as former Massachusetts Republican Governor William Weld, Santa Clara County 

Sheriff Laurie Smith, former Bush Office of Legal Policy Director 

Via Dinn, the National Asian-Pacific Bar Association, and the 

Asian-American Justice Center. 

I would like to submit a group of the letters of recommendation 

we have received in support of Judge Koh for the record, if I might. 

May I introduce those letters for the record? 

Senator KLOBUCHAR. Yes, you may. 

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

Senator BOXER. So, in conclusion, as Senator Klobuchar has stated, Judge Koh’s nomination is historic. If confirmed, she would be 

the first Korean-American in United States history to serve as a 

Federal District Court Judge. 

I am so proud to be here today with Judge Koh, her family, and 

also the other outstanding nominees that will appear before you. I 

close by congratulating Judge Koh and the other nominees and 

their families, and I urge my colleagues in the Senate to move 

swiftly to confirm these nominees to the Federal bench. I thank you 

so very much for your indulgence. 

Senator KLOBUCHAR. Thank you very much, Senator Boxer. We 

look forward to hearing from the nominee. Now we have Senator 

McCaskill, who I know is going to introduce Judge Audrey Fleissig, 

who is obviously a very qualified nominee, Senator McCaskill, because she attended Carlton College in Minnesota, which you should 

know, Senator Sessions, in Northfield, Minnesota, is called the 

‘‘hometown of cows, colleges, and contentment’’. True story. 

Senator McCaskill. 

PRESENTATION OF AUDREY G. FLEISSIG, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI 

HON. CLAIRE MCCASKILL, A U.S. SENATOR FROM THE STATE 

OF MISSOURI 

Senator MCCASKILL. Well, I was going to thank you, Madam 

Chairwoman and Senator Sessions, for continuing to have this 

hearing today. I think it would have been easy to say, well, let’s 

just wait. I appreciate the fact that you all are making this happen. 

There are a lot of people who came to Washington for their hearing and they have had an unexpected several-day vacation in 

Washington. I’m glad that we’re going to be able to get this done, 

especially for Judge Fleissig, who has a lot of work back in St. 

384 

Louis she continues to do, and needs to continue to do, as a magistrate of the Federal court there. 

Yes, she graduated from Carlton College magna cum laude and 

Order of the Coif at Washington University Law School. Clearly, 

this woman has the brains. Really, what we’re looking for here is 

intellect, attitude, and character. Those are the three legs of the 

stool for a lifetime appointment to the Federal bench. 

The brains. There is not a problem here. This is a very smart 

woman who respects the law and has the right attitude about the 

law because she continues to teach. Even though she runs an incredibly busy docket as a magistrate, she has continued to teach, 

especially in the area of trial practice, as an adjunct professor during her time on the bench. 

Now, attitude. Audrey Fleissig has a very simple idea, that she 

owes the litigants her hard work and her respect. That’s what you 

want. I know both of you have been in front of many judges, trial 

judges, in your careers, as have I. Really, at the end of the day, 

you just want a judge that is working as hard at it as you are and 

is respectful, not just to the lawyers, but importantly, to the clients. That is the kind of reputation Judge Fleissig has, incredibly 

hard-working, very fair, and very respectful of the litigants in her 

court. 

Character. You know, it’s so easy once you get a black robe to 

focus on your family and your work, judge. You’ve got a great excuse to do nothing else. No one would ever think you were a slacker. As a mother of two children and being active in her children’s 

schools and being on the bench, no one would ever really raise an 

eyebrow that you weren’t out there doing things in the community. 

So when you have a judge that not only takes off the robe for her 

family, but takes off the robe for her community, it should tell you 

a lot about her character. It should tell you about the kind of person she is. 

Even though her children are grown now, she continues to work 

in a community program, helping young children get excited about 

reading, three- to-five-year-olds that need role models, that need 

that extra spark. She continues to work in a not-for-profit capacity 

in a charitable capacity for these young people so that they can 

have the advantages she had, after going to public school, of getting a first-rate higher education and a career that is full of the 

challenges and rewards of public service. 

I think she’s going to be an excellent Federal judge. When I first 

realized I was going to have some kind of role in this, I remembered all the times I looked down my nose about Federal judges: 

lifetime appointments, they aren’t accountable to anybody, they 

think they know everything, they think the people that work in the 

State system are stupid. I really have had some comments in my 

career that were not kind to Federal judges. 

So this is my first time to have a role in trying to help select a 

Federal judge, and my biggest concern was that I find a person 

who would never take that lifetime appointment as anything other 

than a challenge to do the very best for the public. I am confident 

we found that person in Audrey Fleissig and I’m proud to have a 

chance to introduce her this morning. I thank the Chair and the 

Ranking Member for their indulgence and their time this morning. 

385 

Senator KLOBUCHAR. Thank you very much, Senator McCaskill. 

The nominees can now come up. We’re looking forward to hearing from you. 

Okay. Will you raise your right hand? 

[Whereupon, the witnesses were duly sworn.] 

Senator KLOBUCHAR. All right. We are looking forward to meeting your families. I was thinking, as Senator Boxer introduced you, 

Judge Koh, of having those two little kids in a hotel room for 4 

days. If that’s what happened, that must have been a lot of fun. 

So, I think it would be very fitting that you introduce your family, 

and friends or family that are here, as well as we’d like to hear 

from all of you. So, maybe we’ll start with Ms. Navarro. Thank you. 

STATEMENT OF GLORIA M. NAVARRO, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF NEVADA 

Ms. NAVARRO. Thank you very much, Madam Chair and Ranking 

Member. I’d like to begin, first, by thanking the Lord my God for 

the opportunity to be here today. Unfortunately, my family and 

friends could not be here. They had many flights canceled, rescheduled, and canceled. 

Senator KLOBUCHAR. Well, we’ll send them a DVD. 

Ms. NAVARRO. Yes. I know that they are here in spirit with me, 

and I would like to take a moment to acknowledge them and their 

attempts to be here: my husband, Chief Deputy District Attorney 

Brian Rutledge; my oldest son, Scott Joseph Rutledge, who is 11; 

my middle son, Matthew Ryan Rutledge, who is 9; and my youngest son, Wyatt Luke Rutledge, who is 6; my mother, Gloria Dee 

Navarro, who has always been the wind beneath my wings; and my 

friends who could not be here today but who had planned to be 

here, including Nahed Nabih Abdou, Shauna Brandt, Kathy JoAnne Kelly, and her daughter Erin Thompson and her husband 

Bobby Thompson. 

Also, my father could not be here. He has passed away. But it 

is important for me to take a moment to acknowledge him because 

he dropped out of school in sixth grade so that he would be able 

to provide for his family financially, and he never forgot the value 

of the education that he lost. He sacrificed his life so that I would 

be able to enjoy that education that he did not, and that is very 

special to me. 

I also would like to thank Senator Ensign, who I know was trying to be here today and did attempt to be here. I’d also like to 

thank Senator Harry Reid, the Majority Leader, for very generous 

words and for his recommendation and support in this process. 

Most importantly, I’d like to thank President Obama for nominating me to a position that is very meaningful to me because it 

is a nomination to the same Federal bench where my own parents, 

my grandparents, and family members were naturalized and became proud American citizens. It’s quite an honor. Thank you. 

Senator KLOBUCHAR. Thank you very much. 

Judge Fleissig. 

[The biographical information follows.] 

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STATEMENT OF AUDREY G. FLEISSIG, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI 

Judge FLEISSIG. I would like to thank Senator McCaskill for coming here today and for the faith that she has placed in me in recommending me to the President, and of course to the President for 

this honor that he has given me in nominating me for this position. 

I especially want to thank the Committee and the Chair and Ranking Member Sessions for holding this hearing here today. It is 

something that is very special to all of us, but it is also special to 

our family members and friends, some of whom were able to be 

here today and some are not. But I do have my husband here of 

31 years, my husband Bruce. 

Senator KLOBUCHAR. Where is he? There he is. Very good. 

Judge FLEISSIG. And my son, Matthew, is also here today. They 

have both come here from St. Louis and were able to get out on 

one of the last flights that made it out. My daughter, Rachel 

Fleissig, had to return to college and was not able to be here today, 

but she is very sorry that she could not attend. 

My mother is not well enough to travel and my sisters are home 

with her. My mother-in-law, unfortunately, broke her pelvis just 

about a week ago and Bruce’s family is home with her. But they 

are very, very special people to me as well. 

I am very graced to have two other friends here with me today. 

My dear friend Sedgwick Mead, Jr. has come here from St. Louis, 

and also Professor Jane Aiken, who is now a professor at Georgetown Law School, who previously was a professor at Washington 

University. I am so pleased that she was able to come here today. 

Two other dear friends, Professor Karen Tokarz and Judge Susan 

Block, were to come here with me today, but their flights were canceled and they were unable to be here. But I do want to thank you. 

My Father passed away the year after I graduated from law 

school, but he was certainly my inspiration to head in this direction. Although he was not a lawyer himself, he did love and debate 

the law and he would have been very, very proud here today. 

Senator KLOBUCHAR. Thank you very much, Judge. 

Judge Koh. 

[The biographical information follows.] 

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STATEMENT OF LUCY H. KOH, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA 

Judge KOH. Thank you very much, Madam Chairwoman and 

Ranking Member Sessions, for holding this hearing, despite the inclement weather. It’s truly an honor to be here. I would also like 

to thank the Committee for considering my nomination, and thank 

Senator Boxer for her very kind introduction, as well as thank my 

other home State Senator, Senator Feinstein, for her support. I also 

would like to thank President Obama for nominating me. 

Today, I am very happy to have with my husband—if they would 

please stand—Mariano-Florentino Cuellar, and our two children, 

Ria, who is almost six, and Mateo, who is three. We have an evacuation plan in place in case there are disturbances. 

[Laughter.] 

Senator KLOBUCHAR. There have been a lot of evacuation plans 

this week, but this is the first one I’ve heard at our hearing. So, 

thank you. 

Judge KOH. We have already had to execute it briefly at the beginning of the hearing. I also have my parents; Jay and Eunsook 

Koh are here. I’m sorry that Senator Coburn is not here, because 

my mother was a professor at the University of Oklahoma for 20 

years, 12 of which she was at the Health Sciences Center. 

I also have my brother, Kyung, here, and my nephew, Kyle. My 

husband’s cousin and his wife, Surya and Melissa Sen are here. 

People who have been sort of mentors for me since my freshman 

year of college are Charles and Cynthia Field. They are also here 

as well. 

I have many other family members who had intended to come 

today, and friends, but unfortunately were not able to make it here. 

But I thank them for their support as well. 

Senator KLOBUCHAR. Thank you very much. 

Mr. DeGuilio. 

[The biographical information follows.] 

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STATEMENT OF JON E. DEGUILIO, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA 

Mr. DEGUILIO. Thank you, Chairwoman Klobuchar, Ranking 

Member Sessions. I am honored and humbled to be here today. I 

want to thank you and your staffs for conducting this hearing so 

promptly after my nomination and for having this hearing, despite 

the weather challenges that we faced in the last week. 

Senator KLOBUCHAR. Well, they get a lot of snow in Alabama. I 

know he’s used to this. 

[Laughter.] 

Mr. DEGUILIO. I do want to thank the President for his nomination of myself. I also would like to thank Senator Bayh and Senator 

Lugar for their support of my nomination. Unfortunately, I’m not 

joined today by family; they could not make it out of Chicago because of flight cancellations. 

But I would like to acknowledge my wife, Barb. Senator Bayh indicated, we’ve been married many, many years, and she’s been one 

of the greatest things in my life. I’d also like to acknowledge my 

children, Suzanne, who is 27, and a lawyer, and my son Christopher, who is 20, and a junior at Valparaiso University, studying 

political science. 

I look forward to this hearing. Thank you, Madam Chairwoman. 

Senator KLOBUCHAR. Thank you very much. 

Judge Pratt. 

[The biographical information follows.] 

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STATEMENT OF TANYA WALTON PRATT, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA 

Judge PRATT. Thank you. Senator Klobuchar, Madam Chair, 

thank you very much for the hearing today. I’d like to also thank 

Ranking Senator Sessions for being here today. 

I would like to thank President Obama for the nomination, my 

Senators, Evan Bayh and Senator Richard Lugar for recommending me to the President. I’d like to thank my husband of 25 

years, Marcel Pratt, who flew out with me to Washington, DC in 

the storm on Monday night; my daughter, Lena Pratt, who luckily 

is here in Washington, DC. She’s a freshman at Howard University. My mother, Joan Walton, was snowed in and did not get to 

make it in from Indianapolis. She’s been crying all week, but I told 

her, thank God we have been told that it is being broadcast on 

webcast today. 

My very good friend from law school, Robert Warren, and another friend, George Williams, who live in the Maryland area, but 

unfortunately they’re snowed in their subdivisions. My brother, 

Charles Walton, Jr., who is an attorney practicing in Atlanta, Georgia, was not able to make it in, and my father, Charles Walton, 

who passed away in 1996. 

Senator KLOBUCHAR. Thank you very much, Judge. And Judge 

Magnus-Stinson. 

[The biographical information follows.] 

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STATEMENT OF JANE F. MAGNUS-STINSON, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA 

Judge MAGNUS-STINSON. Thank you, Madam Chairwoman. 

Thank you, Ranking Member Sessions. My extreme gratitude to 

the Committee for conducting this hearing today, such that we 

could have our families in attendance for the hearing. 

I would like to thank President Obama for the nomination. I 

would like to thank Senators Bayh and Lugar for their bipartisan 

recommendation of myself and my colleagues who are here today. 

I also want to, as Judge Pratt and I were texting this morning, 

thank God that our families were able to leapfrog the storm and 

get here on the last flights out of Indianapolis and Chicago, and I 

would like to introduce them now. 

With me today is my husband of 16 years, Bill Stinson, who represents the best decision I ever made; and our daughters, Jill and 

Grace Stinson, who are the best work we’ve ever done. 

[Laughter.] 

Judge MAGNUS-STINSON. Also with me is my father, Bob Magnus, who came from Chicago. My mom got the stomach flu and 

missed the last flight, and like Judge Pratt, we had a tearful conversation this morning. So to my mom, Holly Magnus, I gave her 

the link on the web and I hope she’s watching. 

I’d like to acknowledge my siblings who could not be here today: 

my sister Carrie Magnus, who lives in Barrington Hills, Illinois, 

outside of Chicago, and my brothers, Bob Magnus and his wife 

Cathy, who are in California—wisely choosing to stay in Southern 

California—and my brother John, who was going to make it, but 

made the executive decision not to try to risk the storm. John is 

the business manager at the Marine Corps base in Camp Pendleton 

in Southern California, and made a good choice, I think, to stay 

where he is. 

I’d also like to introduce my baby brother, who is here, Mike 

Magnus, and his and our dear friend, Darin Greenwalt, who made 

the trip from Chicago. Also, to introduce Tim Tutton. Tim works 

for the Department of Education here in Washington, and his wife 

Katie has been my neighbor since I was probably about eight. 

Katie was intending to come, but couldn’t make it because of the 

weather as well. 

I’d also like to thank my staff, who have been a great support, 

and my Federal family in Indianapolis. 

If I might just say, it’s a particular pleasure for me to be here 

with an old friend such as Jon DeGuilio, a dear friend such as 

Tanya Pratt, with whom I served for 12 years in Marion County, 

and thanks to our close quarters in the hotel over the weekend, 

some new friends—or during the week, Judge Koh, Ms. Navarro, 

and Judge Fleissig. Thank you very much. 

[The biographical information follows.] 

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Senator KLOBUCHAR. Very good. So, that’s how we build relations 

on the Federal bench. Very good. I thought I’d start out by asking 

the four of you who have served as judges just if you could comment about how your judicial experience has changed your view of 

the role of a judge and what you expect, really, to be the biggest 

difference between your role as a judge now and being elevated to 

the Federal District Court. 

Maybe we’ll start with you, Judge Magnus-Stinson. 

Judge MAGNUS-STINSON. Thank you, Senator. I believe that the 

experience I’ve had, nearly 15 years now as a judge, has prepared 

me to understand that the role of a judge is one of a learning process. You learn something new every day, not only about the law, 

but about the excellent preparation of cases, about witnesses, about 

credibility, and about the hard work that goes into being a judge. 

I consider the position of being a judge to be one of absolute public trust. Since I’m fortunate enough to serve as a magistrate judge 

at this time, I know I could continue in public service, at least for 

the next five years during my term. It is my commitment to public 

service that brings me here and I look forward, if confirmed, to continuing, perhaps in a more full role, of public service as an Article 

3 judge. 

Thank you. 

Judge PRATT. Thank you, Senator. I believe the main thing I’ve 

learned from my 13 years as a trial judge is the fact that we do 

make very difficult decisions that have a huge impact, not only on 

the litigants, but also the entire community. I believe that it is important to prepare in advance for your cases, to listen carefully and 

clearly to the arguments of counsel, to research before you make 

decisions, to make sure that your decisions follow precedent and respect the doctrine of stare decisis. 

I think one of the biggest transitions from State court to Federal 

court will be that I will have the benefit of law clerks. In the State 

court, we don’t have law clerks. We do all of our own research. It’s 

very important to be fair, impartial, and patient. 

Senator KLOBUCHAR. Very good. I’ve never heard that answer before about the law clerks, but I think that’s a very honest one. So, 

thank you. 

Judge Koh. 

Judge KOH. I believe the role of a judge is to be open-minded, 

not to prejudge any case, to apply the law fairly, to be prepared, 

to let people have their day in court, let them be heard, to treat 

them with respect and dignity. 

One of the bigger differences that I think I’ll see between being 

a State court judge and a Federal judge, if confirmed, is that as an 

Assistant U.S. Attorney I engaged in plea negotiations directly 

with counsel for the defendant and there was no involvement by 

the judge until we submitted the plea agreement to the court, 

whereas, in my current role as a State court judge, we have a very 

high volume, often over 500 cases a week. 

The judge has a slightly different role. The ethical roles of judges 

are slightly different in that the parties often, in criminal cases, in 

State court will ask the judge to get involved in plea negotiations. 

So, that’s a very different role in Federal court than in State court. 

Senator KLOBUCHAR. Very good. Thank you. 

643 

Judge Fleissig. 

Judge FLEISSIG. Thank you, Madam Chairwoman. 

I think the biggest surprise to me on taking the bench was what 

a tremendous challenge it is to do the job well every single day. It’s 

a very, very difficult job, and you never know where the challenges 

are going to come from. They may come from procedural issues, 

they may come from encountering a substantive area that I’ve 

never dealt with before, or the lawyers sometimes present unique 

challenges for us as well. 

It’s also been a tremendous surprise to me how weighty the job 

has felt. It is a very awesome responsibility and it humbles me 

every single day, and every day I wake up and just hope that I am 

equal to the task that is expected of me. I didn’t expect to feel that 

so intensely every day, even though that has been happening now. 

I’ve been honored to be a member of a—a working member of our 

Federal bench as a Federal magistrate judge for eight and a half 

years now. It is a tremendous, intelligent, hard-working, and dedicated bench and, if I am given the honor of being confirmed by the 

Senate, I would look forward to being able to play a more significant role on that bench and to help our court handle its caseload 

by playing my role. 

Thank you. 

Senator KLOBUCHAR. Thank you very much. 

Ms. Navarro, you had a background that I think a lot about as 

being a former county attorney in Minnesota. You’re the chief deputy district attorney for the Civil Division. I think not everyone realizes how much civil work goes on in the county attorney’s office, 

that has both jurisdiction over criminal and civil, and you also have 

served as a public defender. Could you talk about how those experiences, you think, will make you a good judge and how they’ve 

shaped the work that you plan to do as a judge? 

Ms. NAVARRO. I believe I do have a broad range of experience 

that I can bring to the bench. I have practiced both in criminal law 

and in civil law, both in State court and in Federal court, both representing plaintiffs and representing defendants, and both as a private practitioner, as well as a public servant. 

Those experiences have given me the opportunity to appear in 

front of many different judges, with many different styles. I have 

also had an opportunity to become familiar with many different 

rules and procedures in different courts. 

I am already familiar with the Federal rules of evidence, with 

the rules of criminal procedure in Federal court, the Federal rules 

of civil procedure, the sentencing guidelines, as well as the local 

rules. I think that having that broad range of experience definitely 

will build a solid foundation for a successful judicial career. 

Senator KLOBUCHAR. Thank you very much. Appreciate that. 

And then Mr. DeGuilio, our only man. 

[Laughter.] 

Senator KLOBUCHAR. You’ve broken the gender ceiling. 

[Laughter.] 

Senator KLOBUCHAR. Could you talk a little bit about your experience as a Federal prosecutor, is that correct? 

Mr. DEGUILIO. Yes. Yes. 

644 

Senator KLOBUCHAR. And how you think that’s going to shape 

your judicial philosophy or the work that you do on the bench. 

Mr. DEGUILIO. Thank you, Madam Chairwoman. In the five and 

a half years that I was a U.S. Attorney, I believe I gained a greater 

respect for the rule of law and the importance of law in our society. 

Being a public servant carries with it great responsibility and I am 

continually honored and humbled and understand the great important of having that responsibility. I have come to cherish fairness 

and justice in our system. 

As a prosecutor, I strived every day to try to do the right thing, 

mindful of the victims who we represented, mindful of the rights 

of defendants, mindful, as the often-quoted opinion from Justice 

Sutherland, ‘‘to strike hard blows, but to strike fair blows’’. I’ve always tried to treat people with respect and courtesy, and to demonstrate the kind of temperament that brings respect to the position that I’ve held. I hope to bring all those qualities, if confirmed, 

to the District Court bench. 

Thank you. 

Senator KLOBUCHAR. Thank you very much. 

Senator Sessions. 

Senator SESSIONS. Thank you, Madam Chairman. It is quite a ladies’ day. 

[Laughter.] 

Senator SESSIONS. If we’ve got some activists out there, maybe 

they don’t like being called ladies. I suspect that’s all right, at least 

in Alabama, still. 

Senator KLOBUCHAR. It’s a Southern phrase. 

Senator SESSIONS. It’s a Southern thing. 

You know, I was just thinking, under President Bush, all three 

U.S. Attorneys in Alabama were women, and four of the first five, 

I believe—maybe four of the first six—Federal judge nominations 

that Senator Shelby and I recommended, of course, all of those 

were women. They’re doing fabulous jobs on the bench. I think it 

is a good thing to see women take a larger role in the Federal judiciary. 

Senator Leahy wanted to have this hearing, and he called me 

about it. You’ve come from out of town, and we’re glad to do that. 

I know some of our members might have been here if they could 

have been, but are not able to. But it’s not difficult for me, I’m 

nearby. So, we’re glad to have the hearing and go forward with it. 

This is our only opportunity, really the only opportunity the 

American people have, even, to see the nominees and ask questions 

of them. Of course, what a lot of people don’t know, is you filled 

out quite a lot of written questions and provided answers. The FBI 

has done background work on your nominations and you’ve passed 

that. The American Bar Association has made their reports to us. 

All those are helpful as we analyze who should be confirmed. That 

is a Senate responsibility. 

So this moment, I guess, is the only time publicly you can be 

held accountable. For the rest of your time, if you are confirmed, 

you will not have to answer to any politicians. You get to follow the 

law. 

I hope you have that firmly in your mind, that great power, that 

great independence that we bestow on the Federal bench, which I 

645 

support—my experience says that we have had—I’ve practiced before great Federal judges. Some not so great, but I had great Federal judges to practice before. I hope that you will understand, as 

Judge Fleissig said, the awesome responsibility that you have, and 

you will work very hard to be worthy of the trust that would be 

given to you if you hold that office. 

First, I would note that another thing that you go through, and 

was evidenced by the Senators who spoke on your behalf today, is 

that it is important that your home State Senators review your 

nomination and that they affirm your nomination. That has been 

done in each of your cases and it means much to us. In fact, if they 

do not, you are not likely to be moving forward. So, you’ve had a 

good report on that. 

Let me ask two U.S. magistrate judges, having been a U.S. Attorney for a long time and observed our courtrooms and how they 

operate, I’m very impressed with the trust and responsibility provided and given to the magistrates in our districts. I understand 

some districts do not give as much trust and responsibility to the 

magistrate. What’s your philosophy about that, and what might 

you share to your other judges who never had the experience in 

Federal court that you’ve had as a magistrate judge? 

Judge FLEISSIG. Well, thank you for that question, Senator Sessions. I think a lot of the country doesn’t know what a magistrate 

judge does in our system and what an important role that they fill 

in every district. Every district uses their magistrate judges differently, and sometimes it is a function of what their caseload looks 

like, which, as you know, can vary tremendously from district to 

district. 

The caseload in a border State certainly looks very, very different 

from the caseload that we would have in the Eastern district of 

Missouri. I’ve been very blessed, in the Eastern district of Missouri, 

that our district judges determined very early on to give to magistrate judges as much responsibility as the Federal law really allows magistrate judges to have. 

Senator SESSIONS. Do you believe that’s a good philosophy? 

Judge FLEISSIG. Well, it works well in our district. It was the result of a study that was done on the efficient use of how we could 

more efficiently move our cases for the members of the public in 

our district. In our district, magistrate judges are on the wheel. 

Cases—direct civil cases—are directly assigned to us and we handle those cases from beginning to end, but only with the consent 

of the parties. 

So, any party who wishes to have their case heard before an Article judge may do so without any aspersions being cast on their 

choice. Yet, those who do consent to have a magistrate judge hear 

their case, we will handle their case from beginning to end. We also 

handle all of the pre-trial phase of criminal cases, including the 

suppression motions. 

So, I’ve been blessed with a very rich and diverse experience in 

my district. It was part of the attraction of the position for me 

when I left the position of being U.S. Attorney. So, our district 

judges believe that it helps them move our caseload most efficiently. We have found the legal community to be very supportive 

646 

of that role and we as magistrate judges welcome it because it gets 

us such a diverse experience. 

Senator SESSIONS. Judge Magnus-Stinson, what are your 

thoughts on that? 

Judge MAGNUS-STINSON. Thank you, Ranking Member Sessions. 

Senator SESSIONS. What advice would you give to your colleagues-to-be? 

Judge MAGNUS-STINSON. I give lawyers advice always to respect 

staff, and I think I would tell district judges to always respect the 

magistrate judges, Senator. Our district operates a little bit differently than the district in which Judge Fleissig is located. 

In our district, the magistrate judges are assigned the responsibility for managing the discovery process, and through that process 

then our goal is to provide the lawyers and parties enough information so that they can fairly evaluate their cases and civil cases. It’s 

then our responsibility to serve as facilitators in settlement conferences, and we do them in virtually every case that comes before 

our district. That is a very successful program. We resolve probably 

60 to 70 percent of our cases at the settlement conference. 

Our district judges are completely grateful for our work and treat 

us with the ultimate respect, and as colleagues, really. I would, if 

fortunate enough to be confirmed, so collaborate with the magistrate judges in our district who are my friends right now and my 

colleagues. 

I have had the good fortune of having the parties’ consent in my 

jurisdiction in a variety of cases, including insurance disputes, contract disputes, personal injury cases, employment law cases, and 

Social Security cases. 

Senator SESSIONS. And you’ve presided over those trials all the 

way to verdict? 

Judge MAGNUS-STINSON. That’s correct. 

Senator SESSIONS. Jury and non-jury? 

Judge MAGNUS-STINSON. Yes. This year, I’ve had two trials. I 

miss trial work, having been on a major felony court for a long 

time. But I had a trial in an insurance coverage dispute, and then 

just 3 weeks ago our chief judge had a scheduling conflict and the 

parties consented and I presided over a jury trial in a Copyright 

Lanham Act, Digital Millennium Copyright Act, and then a State 

Computer Trespass, and one other cause of action I can’t remember. But we had a 2-day jury trial, and probably the biggest challenge was the jury instructions. 

Senator SESSIONS. I suspect he was glad you took that case, 

knowing how—— 

Judge MAGNUS-STINSON. We reached a verdict, and that was—— 

Senator SESSIONS. Well, I would say that I do think that the 

magistrate judges in general should be given full responsibility and 

utilized fully. Some have gifts that are different: some may be better at research, and some better at courtroom work. I guess the ultimate responsibility falls on the Article judge to decide that. But 

I suspect both of you have an interest in doing the right thing with 

your magistrates, having had that experience. 

Let me run a few questions. I believe people can have different 

personal views about the death penalty. I do not believe that’s 

something we all have to agree on. I believe it’s an effective penVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 00656 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
647 

alty, and most Americans do. Most jurisdictions have it, and the 

Federal court system has it. 

Ms. Navarro, you worked on the Nevada Appellate and would 

keep you from fairly deciding cases, even if it resulted, through the 

proper legal process, in a judgment of death on the defendant before you? 

Ms. NAVARRO. Thank you, Senator Sessions, for the opportunity 

to address that question. I am aware that the U.S. Supreme Court 

has held that the death penalty is a constitutional punishment, 

and I am prepared to apply and follow that law. 

During the time that I worked on both death penalty appeals 

and at the Special Public Defender’s Office on murder cases and 

other cases that also had issues that were before the court, I 

learned that there is a wide array of personalities and, as you said, 

a lot of different views on the death penalty. But at the end of the 

day, the most important thing was that it is a punishment that is 

available that the courts can use, and that the juries are the individuals who have to decide and pass judgment. 

Senator SESSIONS. Do you have a view that the death penalty 

violates the Constitution as being ‘‘cruel and unusual’’ ? Have you 

ever expressed an opinion on that? 

Ms. NAVARRO. I have not expressed an opinion on that. I’m not 

sure that I have a particular opinion on that. There’s a case-by-case 

basis that, in my personal view, if I was sitting on a jury, I would 

have to decide. 

However, I have sat on a jury. Not a death penalty case jury, but 

I have sat on a jury before and I have litigated many cases and 

have observed juries, and can see the tension and the pain that it 

causes to them to sit through one of these cases. I would not set 

aside a jury verdict lightly unless there was an error that was not 

harmless, but rather significant enough and important enough that 

the law would require the death penalty. 

Senator SESSIONS. Do you think that a juror should sit on a case 

if they express the view that they oppose the death penalty and 

will not impose it? 

Ms. NAVARRO. In my jurisdiction, that is not allowed. It is called 

the Death Qualified Panel. The individuals who sit on the jury 

must attest that they will be fair and open-minded, and are willing 

and able to pass a verdict of a death penalty if necessary. 

Senator SESSIONS. You would affirm that law, if you were a 

judge? You would follow that? 

Ms. NAVARRO. Yes, I would follow that law, of course. 

Senator SESSIONS. I want to ask a little something of everybody, 

you know. 

Judge Fleissig, according to your questionnaire, you’ve been a 

member of Common Cause, which is a respected organization and 

you certainly have every right to participate in it. But it does take 

some positions on issues that, I think, raise questions, and I’d just 

like to ask you about it and see what your personal views are. 

Common Cause called for the appointment of a special prosecutor 

to investigate members of our intelligence community for their efforts to obtain intelligence vital to the security of the Nation. They 

also call for the impeachment of Ninth Circuit Judge Jay Bybee for 

his actions when he was at Office of Legal Counsel, advocating for 

648 

the creation of a Federal rule, a burdensome rule of net neutrality, 

and criticizing the recent decision of the United States v. Citizens 

United, and called that ‘‘putting our democracy up for sale to the 

highest bidder’’. 

I know you’re not a member of that now. How do you feel about 

those issues? Do you think the Supreme Court decision—I think— 

followed the First Amendment in the Citizen United case. I predicted, on the floor of the Senate, that much of that legislation that 

passed was not going to withstand constitutional muster, and I 

think it didn’t. But how do you feel about, let’s say, Citizens 

United? Is that ‘‘putting democracy up for sale to the highest bidder’’ ? 

Judge FLEISSIG. Thank you, Senator, for the opportunity to address that. I have not, I admit, read the Citizens United case. So, 

I have not read it. I have only read some of the press summaries 

of that case. It is the law of the land, and I would certainly follow 

it. I have to say that I have not paid the small amount of dues that 

I ever paid to Common Cause in, oh, goodness, probably 15 years. 

At that time, I had been interested in it because of the position 

that it took on consumer protection issues. 

Senator SESSIONS. That was its original intent, you’re right. 

Judge FLEISSIG. And I honestly, Senator, have not followed the 

organization since that time. When I had paid dues for several 

years to Common Cause, its focus was on consumer protection, 

things like the Truth in Lending law and issues of that sort. I was 

interested in those issues at that time and supportive of what the 

organization was doing. I have not followed it in 15 years, if I even 

followed it back then. 

Senator SESSIONS. Judge Koh, you have written and expressed 

opinion about the need for diversity on the bench and advocated for 

those ideas. Do you think that a lack of proportionality or diversity 

on the bench that may occur is in itself evidence of an invidious 

discrimination? How should we think about that? 

Judge KOH. I do believe, Senator Sessions, that diversity on the 

bench is important. I think it helps instill confidence in the justice 

system. I believe it also reaffirms that this is the land of opportunity; anyone can grow up and become a judge. So, I think to that 

extent it is important. I have not ever written that I believe there 

should be proportionality on the bench, so I’m not sure what you 

were referring to, sir. 

Senator SESSIONS. Well, it’s just an issue. We talk about the importance of diversity. At some point does that mean that we should 

have some sort of balance, and have a balance affecting all the different backgrounds and genders? Is that, in itself, proof that discrimination is occurring? 

Judge KOH. Let me preface my statement, first of all, by saying 

there could be issues regarding whether that’s disparate impact, 

discrimination cases that come before me. So if I were confirmed, 

it would be not proper for me to comment on that issue now and 

sort of hypothetically say how I would rule on some type of disparate treatment or disparate impact case. 

Other than saying that I do believe that diversity on the bench 

is a good thing, I certainly have not advocated for proportionality 

in any of my writings or anything I’ve done or said. 

649 

Having said that, I do want to emphasize, Senator Sessions, that 

if you look at my record as a judge and as a lawyer, that I have 

faithfully followed the law and do not believe that there should be 

any kind of prejudice or bias in judicial decision making. 

Senator SESSIONS. Well, I think that kind of gets to the core of 

the matter. I was going to ask you, do you think you can give fair 

justice to an Irish-Catholic man? I hope that you can; I expect that 

you will. Likewise, an Irish-Catholic male judge can do justice to 

a Korean, or a minority. We’ve got to be careful as we make comments. 

You said in an article, ‘‘Even when there is more diversity on the 

bench, minority judges still need to maintain the disguise of objectivity or else face challenges to their decisions’’. Well, I remember 

Justice Sotomayer, in something that was troubling to me, quoted 

favorably a comment that said, ‘‘There is no objectivity, just a series of perspectives’’. That still makes the hair stand up on my 

neck. I think that’s a dangerous philosophy. 

What did you mean, that minority judges need to ‘‘maintain a 

disguise of objectivity or else face challenges to their decisions’’ ? 

Judge KOH. Senator, thank you for giving me the opportunity to 

address that. I participated in that discussion review of a book 

journal two decades ago as a student, and I frankly had not even 

read that in the last two decades. In preparing for this process, I 

became reacquainted with things I had done as a student and I 

was frankly quite amazed that I had even made that statement. 

I completely disagree that there is no objectivity. Absolutely, our 

system of justice requires it. Litigants, parties, counsel are entitled 

to objectivity, and I think our rule of law would simply break down 

if everyone were to just insert their own personal biases. I mean, 

our system of justice, and this great country exists, because there 

is a rule of law which we all respect. 

And I can assure you, Senator Sessions, that in what I’ve done 

as an officer of the court, as a corporate litigator, and what I’ve 

done as an Assistant U.S. Attorney, as a Department of Justice attorney, and as a judge, I have faithfully followed the rule of law 

and I would not let bias or prejudice in any way influence my decisions. 

Senator SESSIONS. Well, I think some of these speeches we have, 

and I think the zeal to have more diversity on the bench, has led 

to some rhetoric from a lot of our nominees. I’ve seen a lot of it, 

actually, that I think go beyond what is contemplated in the American system of justice, which is that a judge takes that oath not to 

be a respecter of persons and to impartially follow the law and the 

facts of the case. That’s the oath that they take, and it’s a deep 

thing. 

If a person appearing before the bench feels that the judge’s personal experiences, their ethnic background, their religion, or their 

political philosophy causes them to not listen fairly to their case, 

not to fairly find the facts in their case, wouldn’t you agree that 

the whole system is in jeopardy? Actually, you just said the system 

would be in jeopardy. 

Judge KOH. I agree with you. 

Senator SESSIONS. Thank you. The whole American legal system—I guess, Judge Pratt, the whole cross examination idea, 

650 

things we were taught in law school, is to me based on a belief that 

truth is ascertainable, there is some objectivity, and the process is 

to try to bring the truth out, and judges rule to allow this process 

to occur in a fair and objective way, and then to honestly and objectively apply those truthfully found facts to the law. Would you 

agree with that? 

Judge PRATT. Yes, Senator Sessions, I agree wholeheartedly, 100 

percent, with that. 

Senator SESSIONS. In a 2007 speech, you talked about probation 

and you were encouraged when you can discharge an offender from 

probation or modify a sentence to allow a defendant to pursue education. In one case, you approved the transfer of a convict from 

prison to a low-security program, over the prosecutor’s objection on 

the grounds that the convict continued to pose a threat to the community. That’s what the prosecutor said, and that transferring him 

would diminish the seriousness of his crime. 

You, I guess, allowed that to happen and the convict escaped 

from the low-security program and went on to be an accomplice in 

the murder of a 68-year-old man. He was later convicted of felony 

murder. Would you share with us your thinking on that case, and 

what you’ve learned from it? 

Judge PRATT. Yes, Senator Sessions. Thank you for the opportunity to speak on this—on this matter. It was a huge learning experience for me as a State court judge and an example of the difficult decisions that we have to make as judges. We have a statute 

in Indiana that was enacted by our State legislature for a community transition program. 

This is a program where the department—the Indiana Department of Corrections would make a recommendation to the State 

court judges as to those inmates who they believed, in the last 60 

days of their sentence in prison, would be good candidates to go 

into a lower security program. 

While in the community transition program, the idea is that 

these persons would participate in work-release programs and be 

allowed to make an easier transition back into the community. This 

particular defendant was convicted of a burglary. 

There was a recommendation from the Department of Corrections to allow him into the lower security program. I also had a recommendation from the program itself, who screens each of the applicants in our court system, and recommended to the judge whether or not this person would be a good prospect for this—this legal 

opportunity. Unfortunately—Mr. Price was the gentleman’s name— 

he absconded from the program. He did participate in a murder as 

an accomplice to someone who actually killed someone. 

It was a heart-breaking, horrible experience and I just—and I 

think it just goes to show the huge impact that the decisions we 

make have on the community and the very difficult decisions that 

we make, and I do regret-in this particular case I could not predict, 

but I do regret that Mr. Price was released into that program. 

Senator SESSIONS. I think I heard, it was on NPR—as I went by 

a radio was playing this morning—about an individual that was released, and the same day he was released committed a rape as part 

of a California program to reduce prison population in California. 

651 

Having been a prosecutor, and I know Senator Klobuchar has, 

some people don’t realize that a lot of the individuals that are prosecuted are dangerous people. The number of people who commit 

murders is small. The number of people who would ever commit a 

murder is very, very small, or a serious violent crime, or some 

other serious crimes. 

When you capture one of them, you have to see that this is not 

the same kind of person; if they’ve committed one crime, there is 

a much higher mathematical percentage that they’ll commit another crime. We just have to be careful about that. You will all be 

faced with the sentencing guidelines, and the sentencing guidelines 

have been adjudicated, I guess, as more advisory than they were, 

although I think most judges pretty faithfully follow them. 

I will ask magistrate judges, since you’re familiar with that, first. 

Do you feel that the sentencing guidelines should be given respect 

and deference as you decide the appropriate sentence of a person 

appearing before you? Maybe, what deference should it be given? 

Judge FLEISSIG. As a magistrate judge, I actually don’t have 

much occasion to use the sentencing guidelines because we are not 

involved in giving sentences on felony cases. But I was very familiar with the sentencing guidelines in my 10 years as an Assistant 

U.S. Attorney and as U.S. Attorney in my district. 

Now, at that time the guidelines were mandatory, and I am 

aware that the Supreme Court has held otherwise since that time. 

However, I gained great respect for the sentencing guidelines when 

I was serving as a prosecutor. I think they perform an important 

function in assuring that the sentences nationwide have some 

amount of uniformity. I think, from participating in plea negotiations for many years, I think the predictability that it afforded to 

defendants was also very important as well in terms of their decisionmaking. 

Senator SESSIONS. I know that many of our Senators—Leahy, 

Senator Biden, Senator Kennedy—all worked with Republican 

members, Senator Hatch, Thurmond, and others, and they reached 

an agreement about this because there were too many examples of 

people going before one judge and committing the same crime and 

getting long sentences and this one getting probation. Dramatic differences. It was an equal justice approach. I think it has worked. 

I support the guidelines. I am working, and I have offered for some 

time, to reduce the sentencing guidelines’ mandatories for crack cocaine. Maybe we can get that done before long. I proposed significant change in that, and I think we should do it. 

But Judge Magnus-Stinson, what do you think is an appropriate 

role for a Federal judge to take with regard to the deference given 

to the sentencing guidelines? 

Judge MAGNUS-STINSON. Thank you, Senator. In the Seventh 

Circuit, which is the circuit that governs our district, a guidelines 

sentence enjoys a presumption of reasonableness. It has always 

been my goal in sentencing. I have not sentenced anyone in Federal court, but in State court, certainly, to impose only reasonable 

sentences. 

I would give both great respect to the guidelines as a means of 

guiding the discretion that I have, as well as the sentencing statute 

itself, which I think affords the opportunity for the court to conVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 00661 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
652 

sider some of the disparities that you’ve just addressed to ensure 

that there’s no sentence that’s being imposed disparately on one individual versus another. 

Senator SESSIONS. It’s a remarkable system. Everybody had 

doubts about it. They thought people would not plead guilty to the 

rather severe sentences, but the guilty pleas continue to increase. 

I think we’re at, 99 percent of criminal cases are disposed of with 

some sort of guilty plea. 

Judge Navarro, what respect would you give to the sentencing 

guidelines? 

Ms. NAVARRO. Senator, I did have an opportunity to work with 

the sentencing guidelines, like my colleague, when they were mandatory, before they became discretionary. I was an attorney under 

the Criminal Justice Act, so I was in court representing defendants. Most of the time that we spent with the guidelines was in 

reading the Committee notes and trying to figure out how to apply 

them. I grew to be very comfortable with them. 

I am aware of the collective wisdom of the individuals that came 

together, and appreciate the intention of trying to make sure that 

there’s conformity and consistency in the sentencing procedure. I 

agree with you, it was easier to negotiate a plea agreement when 

there was a sentencing guideline that we could all rely upon and 

be comfortable with that was going to be applied. 

I believe that great deference should be given to the sentencing 

guidelines and I believe that I would probably only depart from 

them on very rare occasions when the facts required that to be the 

case. 

Senator SESSIONS. It is a challenging thing at first. It’s kind of 

intimidating. When you see those charts and numbers, we think, 

this is a computer process and not a human process. But they do 

a nice job, the commission does, of how many prior convictions, and 

how much drugs were involved, or did they carry a gun, or did they 

assault the person in the course of the crime. It has enhancements 

and reductions based on all that. 

I think it does have, as you said, quite a bit of logic. Maybe the 

ranges were too tight. If you like the defendant you’d give him 8 

years, if you didn’t like him he got nine and a half; that’s about 

all the range the judge had. So, maybe a little bigger range would 

have been helpful. But I think they followed a pattern of sentencing that most judges consider to be the gold standard of sentencing. 

Judge Koh. 

Judge KOH. Senator Sessions, the sentencing guidelines were 

mandatory when I was an Assistant U.S. Attorney, and I would 

give them great deference. 

Senator SESSIONS. Mr. DeGuilio. 

Mr. DEGUILIO. Thank you for that question, Senator. I did become very familiar with the guidelines during my tenure as U.S. 

Attorney, and actually briefed and argued several cases through 

the Seventh Circuit Court of Appeals on guidelines issues. I would 

also give them great deference, should I be fortunate enough to be 

confirmed as a District Court judge. 

653 

I do believe they provide a comprehensive framework by which 

all relevant factors can be taken into consideration and do help to 

ensure consistency in sentencing. 

Senator SESSIONS. Judge Pratt. 

Judge PRATT. Thank you, 

Senator SESSIONS. I’m aware of the history of the sentencing 

guidelines and the hard work and wisdom that went into creating 

the guidelines. I also would give substantial deference and great respect to the guidelines. 

Senator SESSIONS. Judge Magnus-Stinson, you asked, at some 

point in your career, I understand, not to be assigned cases where 

the death penalty was involved. Would you share with us your 

thought about the death penalty and why you made that request, 

and the impact of it, and the situation? 

Judge MAGNUS-STINSON. Thank you, Senator. At the time that 

issue arose, I sought counsel from the counsel to the Indiana Commission on Judicial Qualifications, which is the disciplinary entity 

that regulates judicial behavior, and at that time was advised to 

make no public statement about the issue, as to do so would implicate the Code of Judicial Conduct. 

I continue to believe that the Code of Conduct that applies to my 

work now precludes me from making a public statement, but I can 

say, Senator, that the issue that arose in that circumstance would 

not prevent me from enforcing Federal law, including the death 

penalty, if I am fortunate enough to be confirmed. 

Senator SESSIONS. Well, that’s an important matter. For a while, 

at the apex of judicial activism, we had two judges on the Supreme 

Court who dissented in every death penalty case, saying that they 

thought it was a violation of the ‘‘cruel and unusual’’ provision, 

whereas, in truth, there are, I think, six specific references in the 

Constitution for capital crimes, taking a life with due process. 

Every State, colony, had death penalties, including the Federal 

Government. It’s inconceivable that they could have interpreted the 

Constitution in that fashion, in my view. It was an arrogant personal effort to abrogate the subtle law of the American people and 

the history of the Constitution. Forgive me. I feel strongly about 

that. But I want to know, did that have anything to do with your 

approach to it and your unwillingness to participate in these cases? 

Judge MAGNUS-STINSON. Senator, I will answer it this way: I am 

fully cognizant that the death penalty is the law of the land. I am 

under oath to uphold it at this time, as well as uphold the United 

States Constitution as it’s been interpreted by a majority of our Supreme Court, which has held that the death penalty is constitutional in our country. 

Senator SESSIONS. Well, it’s more than a majority now. I don’t 

think a single member of the court would adhere to that extreme 

view that two members adhered to. But do you personally think— 

and I’ve already tipped my hand to my philosophy. But do you personally agree with the view that the Constitution, fairly interpreted, would inhibit the imposition of the death penalty? Have you 

ever expressed such a view? 

Judge MAGNUS-STINSON. I have never expressed such a view, 

Senator, and will continue to refrain from expressing views on the 

issue, as it may be an issue that appears before me. I do underVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 00663 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
654 

stand, as a trial judge, my role is to enforce existing law and follow 

it. 

Senator SESSIONS. All right. Well, this is a big deal. Some States 

have added the death penalty in recent years, some States have 

taken it away. We’ve got a Federal death penalty and we’ve upheld 

it in recent statutes in recent years. It may not be the rule in 

France, but I suspect it probably is there. But somehow there’s this 

impression that only the enlightened world favors the death penalty, and I don’t think that’s accurate. 

Madam Chairman, we may submit some written questions. I enjoyed this. I feel like, since I’m the lone member in the Minority 

Party present, that I should ask these questions. It’s the one and 

only opportunity that we have to see you in person and to ask 

questions, and therefore have a record on which we can make a decision about your confirmation. I hear good things about all of you. 

You will certainly get a fair hearing. 

I responded a few days ago to a complaint from two of our Senators who said their nominee didn’t move forward fast enough. 

Madam Chairman, one of them waited, I think, 4 months before 

sending the blue slip back and the nominee moved right through 

the Committee as soon as Chairman Leahy called it up and nobody 

objected to the nominee moving on the floor of the Senate. 

But they contended that, I guess, the Republicans were surreptitiously blocking the nominees. I believe good nominees ought to 

move forward. We need to do our homework, do our background, 

see what the Bar Association says, see what the FBI says, see what 

your answers to the questionnaires are, see how you handle yourself today, and at some point, without any rush or panic, we ought 

to move you forward and give you an up-or-down vote, unless 

there’s a controversy, unless there’s some serious problem. 

I think I voted for 90 percent-plus of Presiden Clinton’s nominees, and hope to be able to do the same with President Obama’s. 

I think the system is working pretty well, and I would just note 

that you should be glad that the situation we face is not the one 

President Bush’s nominees faced when the Democrats had a majority in Congress and the Senate, since many of those nominees took 

years to move, and some never moved. We’re doing a lot better and 

going a lot faster now. 

Thank you, Madam Chairman. 

Senator KLOBUCHAR. Well, thank you very much, Senator Sessions. Thank you for taking that opportunity to ask some important 

questions to clarify things. I think you all did a good job of answering them. I just wanted, just to clarify again with you, Judge Magnus-Stinson, that you would in fact enforce the laws and apply the 

laws fairly, including the laws about the death penalty? 

Judge MAGNUS-STINSON. Yes, Senator, I would. 

Senator KLOBUCHAR. Okay. 

Judge MAGNUS-STINSON. I’m currently under oath to do that and 

I take that oath very seriously. 

Senator KLOBUCHAR. Thank you. I had the same—we didn’t have 

the death penalty. We don’t have the death penalty in Minnesota, 

but I was asked this a lot as a prosecutor. You have to think about 

that and answer those questions and apply the laws and enforce 

them, which I always believed I would have, and said I would. 

655 

The same with you, Ms. Navarro. Is that correct? 

Ms. NAVARRO. Yes. 

Senator KLOBUCHAR. Okay. Very good. 

And then Ms. Fleissig, just one follow-up. So you were a member 

of Common Cause, or paid dues to it, the last time, I think, was 

in 1996, is that right? 

Judge FLEISSIG. Somewhere—somewhere in the mid-90s. 

Senator KLOBUCHAR. Okay. 

And then, Ms. Koh, I just wanted to follow up on one thing with 

you, and that is I know Senator Sessions was right to ask questions about some of your prior speeches and statements. I think everything should be open when you are, as you noted, up for such 

an important job as a Federal judge. But those things were written 

when you were a law student, is that correct? 

Judge KOH. That’s correct. 

Senator KLOBUCHAR. And since then, I just was noting that Governor Schwarzenegger, in his letter for you, said, in fact, ‘‘I appointed Judge Koh to the Superior Court of Santa Clara County 2 

years ago, and since that time have never had cause to regret my 

decision. Her approach has always been careful and balanced’’. It 

sounds like the Fox News thing. 

[Laughter.] 

Senator KLOBUCHAR. Of ‘‘fine and fair’’. Very nice and poetic 

from Governor Schwarzenegger. ‘‘In fact, she had presided over 

thousands of criminal and civil matters and has seen only one partial reversal in all those cases. Her career as a judge builds on the 

reputation for talent and integrity she rightfully earned as a Federal prosecutor and intellectual property litigator after several positions in the U.S. Department of Justice.’’ So, I just thought I’d include that for the record, as well as we have statements for the 

record from Senator Leahy on these nominees, and we also have 

a statement from Senator Feinstein on your nomination, Judge 

Koh. 

[The prepared statements of Senator Leahy and Senator Feinstein appear as a submission for the record.] 

Senator KLOBUCHAR. Are there any other statements that we are 

forgetting here? The record is going to remain open for 7 days for 

any of my colleagues that wish to submit questions that were not 

as hardy as the Senator from Alabama and were unable or held 

back because of planes or anything else. I just wanted to thank all 

of you. I think this has been a very good hearing. 

Do you want to add anything, Senator? 

Senator SESSIONS. Just to thank you for allowing me to spend 

more time than normal asking questions, and you and Senator 

Leahy have been good on that and allowed the questioning to go 

as long as appropriate. Thank you for that. 

Senator KLOBUCHAR. Well, that’s very good because I have the 

Norwegian ambassador out in the hallway and we are doing a callin to Minnesota because we couldn’t make it there for an event for 

Vice President Mondale. I will tell you, we believe there are more 

Norwegians in Minnesota than there are in Norway. 

[Laughter.] 

656 

Senator KLOBUCHAR. I’m sure he’s going to disagree with me on 

that fact. So, I’m not going to be able to meet all your families, but 

I want to thank you very much for the time you spent today. 

The hearing is adjourned. 

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

[Questions and answers and submission follow.] 

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(741) 

NOMINATIONS OF BRIAN A. JACKSON, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 

MIDDLE DISTRICT OF LOUISIANA; ELIZABETH E. FOOTE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT 

OF LOUISIANA; MARC T. TREADWELL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 

MIDDLE DISTRICT OF GEORGIA; JOSEPHINE 

S. TUCKER, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF 

CALIFORNIA; MARK A. GOLDSMITH, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF MICHIGAN 

WEDNESDAY, FEBRUARY 24, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:05 p.m., Room SD– 

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

Present: Senators Feinstein and Sessions. 

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

FROM THE STATE OF MINNESOTA 

Senator FRANKEN. Good afternoon. The hearing will come to 

order. 

I want to welcome everyone to today’s hearing of the Senate Judiciary Committee. Today we will hear from five District Court 

nominees, two from Louisiana, one from Georgia, one from California, and one from Michigan. 

I would like to extend a special welcome to my distinguished colleagues who are here to introduce their home State nominees: Senator Feinstein will be here shortly, Senator Landrieu, and Senator 

Chambliss. Thanks for being here today. 

The nominees being considered are: Brian Jackson, to sit on the 

U.S. District Court for the Middle District of Louisiana; Elizabeth 

Foote, to sit on the U.S. District Court for the Western District of 

Louisiana; Marc Treadwell, to sit on the U.S. District Court for the 

Middle District of Georgia; California Superior Court Judge Josephine Tucker, to sit on the U.S. District Court for the Central DisVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 00751 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
742 

trict of California; and Oakland County Circuit Court Judge, Mark 

Goldsmith, to sit on the U.S. District Court for the Eastern District 

of Michigan. 

The experience and talent of today’s nominees is extraordinary. 

We have two sitting judges, lawyers who have served as both defense and plaintiff attorneys. I am welcoming the Ranking Member 

right now. Welcome. 

Senator SESSIONS. A meteoric rise you have achieved. 

Senator FRANKEN. Thank you. And well deserved. 

[Laughter.] 

Senator FRANKEN. As I was saying, we have an incredibly talented group here today. We have two sitting judges, lawyers who 

have served as both defense and plaintiff attorneys, a nominee who 

has served in several different roles in the executive branch, and 

nominees who have engaged in extremely impressive pro bono 

work. 

We also have nominees who are breaking barriers. One of our 

nominees, Elizabeth Foote, was only the fourth woman to practice 

law in Alexandria, Louisiana. Moreover, if confirmed, Brian Jackson would be only the second African-American judge to serve on 

the District Court in the Middle District of Louisiana. 

I would like to thank all the nominees for being here today. It 

is an honor to be in the presence of such talented men and women. 

I look forward to hearing your testimony and hope that we can confirm you promptly so you can start the important work of administering justice. I have faith that with the U.S. Federal judges, all 

participants in our legal system will be better off. 

In closing, I would like to outline how the hearing will proceed. 

After the Ranking Member, Senator Sessions, makes his introductory remarks, the home State Senators will introduce their nominees. Then each Senator on the Committee will have 5 minutes to 

ask questions of the nominees. 

Now I will turn it over to the Ranking Member, Senator Sessions. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Senator Franken. Welcome to all 

the nominees. We appreciate you agreeing to serve. Each of you 

have had significant accomplishments in your career. 

After today, our Committee will have held hearings on all but 

two of President Obama’s judicial nominees, 95 percent to date. At 

this point under President Bush, more than half of his nominees 

still had not had an initial hearing in the Judiciary Committee. 

I just would share those numbers because people grumble that 

we’re going slow. Four of today’s nominees were nominated only 20 

days ago and the Committee received their records just 2 weeks 

ago, so we’re moving rapidly. I mention this because every nomination the Senate must consider carefully; we are talking about a lifetime appointment. 

In that respect, these hearings are an important part of the process. They are the Senate’s only opportunity to publicly review the 

record. We do try to do a pretty good staff review of their record 

743 

and backgrounds, as well as Senators’ involvement. We consider 

very much the home State Senators and their evaluations. 

A nominee’s views on the role of a judge and the importance of 

the adherence to rule of law are also crucial to this vetting process. 

Those who sit on our Nation’s judiciary must be totally committed 

to impartial and blind justice and put aside any personal experiences or opinions that could influence their decision on anything 

other than the facts and the law. 

So, I look forward to hearing the views of today’s nominees. We 

want judges who have the ability, the integrity, the experience to 

make good decisions and the personal discipline to ensure that 

their own views, biases, and prejudices do not influence their decision—making. 

I am glad to see these excellent Senators, and we look forward 

to your comments. Thank you. 

Senator FRANKEN. Thank you, Senator. 

I would like to welcome my colleagues again and invite you to 

introduce your home State nominees. Senator Feinstein, would you 

like to start? 

PRESENTATION OF JOSEPHINE STATON TUCKER, NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT 

OF CALIFORNIA BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I very 

much appreciate this. I would like to introduce Orange County Superior Court Judge Josephine Tucker. She’s been nominated for the 

U.S. District Court of the Central District of California, to the 

court-house located in Santa Ana, and that’s where she would be 

sitting. She has been recommended by a bipartisan Judicial Advisory Committee that I have and she comes primarily from a rural 

background. She was raised in St. Louis, Missouri by parents who 

had never been to high school, but encouraged her passion for reading, as well as her love of the outdoors. 

She graduated summa cum laude from William Jewell College, 

and gained admission in her final year to Harvard Law School. In 

1986, she graduated from Harvard, and then worked for 1 year as 

a law clerk to Hon. John Gibson on the U.S. Court of Appeals for 

the Eighth Circuit. 

At the age of 26, she moved to California, became a member of 

the California Bar, practiced in the San Francisco office of Morrison & Foerster for 7 years, and then moved with her husband and 

family to Orange County. She became a partner at the law firm, 

and later the head of the firm’s employment law practice. While in 

private practice, she litigated numerous multi-million—dollar employment cases on both the plaintiff and the defense side. 

She wrote prolifically. Her publications include the California 

Employer’s Guide to Employee Handbooks and Personnel Policy 

Manuals—that’s a widely used reference book in this area of the 

law—three articles, and over 50 case critiques for the California 

Employment Law Reporter, and 60 discussions of the law confronting employers and employees in the Los Angeles Times Sunday edition. 

744 

Finally, she has devoted herself to a lot of pro bono work, providing volunteer legal services to the Make A Wish Foundation, the 

Inter-Community Child Guidance Center, the AIDS Foundation, 

the Orange Coast Inter-Faith Shelter. 

In 2001, the Orange County Trial Lawyers Association recognized her overall work by naming her their Employment Lawyer of 

the Year. The next year, Governor Gray Davis appointed Judge 

Tucker to the Superior Court for Orange County. That was in 2002. 

In that capacity, she’s handled a judicial calendar comprising up 

to 500 cases at a time. She’s presided over trials involving commercial contracts, tort claims, felony crimes, and family law. She has 

overseen case management conferences, settlement conferences, 

and ex parte applications, and she has been specially appointed by 

the Chief Justice of California to 2 years on the Appellate Division 

of the court, giving her experience with appeals as well as trials. 

So she has 15 years experience as a litigator and 8 years of experience as a judge. 

In 2006, the Orange County Lawyer Magazine published an article entitled, ‘‘Judge Josephine Tucker: A True Role Model for Today’s Women in the Law’’. In that article, she explained her judicial 

philosophy and it was: look at the facts, look at the law, make a 

decision. 

So I happen to believe this straightforward approach will serve 

her well and that she will be a fine addition to the Federal bench 

of Orange County, and I thank you very much, Mr. Chairman, for 

being able to introduce her. 

Thank you. 

Senator FRANKEN. Thank you, Senator Feinstein. 

Now I am going to turn to the Senators from Michigan. First, my 

colleague, Senator Levin. 

PRESENTATION OF MARK A. GOLDSMITH, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN BY HON. CARL LEVIN, A U.S. SENATOR FROM THE 

STATE OF MICHIGAN 

Senator LEVIN. Thank you very much, Senator Franken, for holding these hearings. I want to commend this Committee on the expeditious way in which you do handle nominations. I wish I could 

make the same kind of claim for the Committee that I chair, the 

Armed Services Committee. We don’t move quite as quickly; Senator Sessions probably would bear witness to that with me. 

Debbie Stabenow and I are here to introduce to this Committee 

and to recommend to this Committee Mark Goldsmith, for the 

Eastern District Court, Federal court, in Michigan. We’ve known 

him for a long time. He was a litigator for, I think, 25 years or so 

before he was appointed to our highest trial court, which is the Circuit Court in Michigan, where he’s been a judge for approximately 

6 years. 

Before that, he was active with State Bar functions, including his 

own private practice. He was special counsel to the State Bar Committee on Unauthorized Practice of the Law, active in the Attorney 

Discipline Board. He is a graduate of the University of Michigan, 

where he graduated with high honors—high distinction and honors 

from the School of Economics at the University of Michigan in 

745 

1974. He is a graduate of the law school at Harvard Law School 

in 1977. 

Chairman mentioned that some of the witnesses are breaking 

barriers here today. I can only tell you that Mark and his wife 

Judy had some barriers broken for them a few days ago, when 

their daughter-in-law presented them with their first grandchild. 

[Laughter.] 

Senator LEVIN. I don’t know of any more important barrier to 

break than that one, being a proud grandfather. But that’s the reason that their son and daughter-in-law are not here today to be 

with them. 

We’re very proud of the process that we use in Michigan to make 

these recommendations. Senator Stabenow and I appoint a bipartisan board to make recommendations to us, and forward it then 

to the President. Judge Goldsmith got the highest marks that you 

could possibly get, the kudos that we want to hear about anybody 

that we would recommend to the President. So we’re proud to be 

here today to make that recommendation to you and hope that you 

are able to put your stamp of approval on him. 

Thank you, Mr. Chairman. 

Senator FRANKEN. Thank you, Senator Levin. 

Senator Stabenow. 

PRESENTATION OF MARK A. GOLDSMITH, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN HON. DEBBIE STABENOW, A U.S. SENATOR FROM THE 

STATE OF MICHIGAN 

Senator STABENOW. Well, thank you very much, Mr. Chairman 

and Senator Sessions. 

It is my great pleasure to join with Senator Levin. As he indicated, we have both known Judge Mark Goldsmith for many years. 

I cannot think of a person that I would be more enthusiastic or excited to introduce and endorse in front of this Committee. As you 

know, he has been nominated by the President to be a judge of the 

U.S. District Court for the Eastern District of Michigan, and I am 

absolutely convinced that he will serve with great distinction. 

Senator Sessions, as you were talking about what you look for in 

a judge, I thought you were describing Mark Goldsmith. So, I am 

very pleased to be here to join in supporting him. As Senator Levin 

said, he joined the Oakland County Circuit bench in 2004. He has 

proven to be a highly respected judge, known for his integrity and 

his fairness. 

You have also heard about his degrees from the University of 

Michigan and from Harvard University. He has served as a partner 

with Connington Lowe in Detroit, and as an Adjunct Professor of 

Law at Wayne State University’s Law School. 

I think it’s also important to note that he’s well—known in the 

community, where he has served on the boards of several nonprofit 

organizations, helping those in need in the Detroit area. He has 

been recognized for his pro bono involvement, his community work, 

most notably at B’nai B’rith Anti-Defamation League and Forgotten Harvest, a very significant organization that uses surpluses of 

perishable foods from grocery stores, restaurants and caterers and 

746 

provides them to emergency food providers. We are very appreciative of his efforts as a community leader. 

It is also wonderful to recognize and welcome Judy here today. 

Do I understand—I think that your brother Merwin is here as 

well? Down at the end. Welcome. It’s good to have you here as well. 

I am pleased to join with Senator Levin in congratulating you on 

the new title of grandfather. It’s a very exciting title. 

Mr. Chairman, let me just say again that Judge Goldsmith is the 

kind of nominee that I know that we will all be very proud of, and 

we would ask for your support. 

Senator FRANKEN. Thank you, Senator. 

Senator Landrieu, you have two nominees today. 

PRESENTATION OF BRIAN A. JACKSON, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA, AND ELIZABETH E. FOOTE, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA 

BY HON. MARY LANDRIEU, A U.S. SENATOR FROM THE 

STATE OF LOUISIANA 

Senator LANDRIEU. Yes, Mr. Chairman, I do. I’m pleased to 

present both of them to you and to Senator Sessions. Thank you 

so much for your work on this Committee. It is my privilege to introduce two outstanding attorneys in the State of Louisiana to be 

Federal judges. It is without hesitation that I say that many, many 

people in our State would think that these two individuals are two 

of the finest that we have to offer. You will see from my brief presentation, and all the paperwork that I’ve submitted on their behalf, 

their exceptional professional experience and outstanding records 

as public servants. 

First, Brian Jackson. Brian comes from a very distinguished family of public servants and I know that he is proud, and I am 

pleased, that his father, Harold, and his mother, Andree—Harold, 

a retired U.S. Postal Service worker, and Andree, a retired school 

teacher—are here with him today, as well as his brother Kevin, 

who is retired from the U.S. Marine Corps and president of the 

Blinded Americans Association, and he works in Austin, Texas. His 

family is proud of him, but so are many, many members of the 

community. 

As his Senator, I am extremely proud of him. He served for over 

16 years with the Justice Department already, fully immersed in 

everything the Justice Department has done in the State of Louisiana and nationally. He served as U.S. Attorney briefly, waiting 

for the nominee of President Bush and the prior administration. He 

served from 1992 to 2002 as First Assistant. Besides his work already in that venue, in that position, here is a shareholder and 

leader on the board of directors for one of the premier firms in our 

State, Misco and Lewis. He has recently chaired their Committee 

on Diversity and on the board of directors. 

In addition to his extremely exemplary professional experience, 

may I also say that he’s been active with Catholic Charities, the 

Metropolitan Crime Commission, and Teach for America, all organizations that I have the highest respect for, and has served on the 

board of directors of the Federal Bar Association, the New Orleans 

Chapter. 

747 

He has graduated from some of our most outstanding universities, Xavier University for his undergraduate, Southern Law 

School in Baton Rouge, where he served as editor-in-chief of the 

Law Review there, and master’s as well at Georgetown University. 

So, he is well—credentialed, well-experienced, and I know he’s anxious to serve, Mr. Chairman. You will find all of his paperwork in 

order. 

Elizabeth Erny Foote, I am honored to present to the Committee 

this morning to nominate her for judge in Louisiana’s Western District. Beth is joined by her husband of 33 years, and her law partner, Ross Sith. She’s also joined by her son David, who is a student 

at Mayberry College; her older son Paul is working abroad and 

couldn’t be here. An extraordinary family. 

She also comes from a family of great public servants. Her husband and brother are both retired State judges. Her father-in-law 

is a retired City Court judge. So, it looks like she was destined to 

be a judge, like it or not. But I am so pleased to recommend Beth. 

For 30 years, I have known her and can attest personally to her 

passion for justice and equality, particularly on behalf of women. 

She has been a tremendous advocate. 

Besides a partner in the law firm, she was the immediate past 

president of the Louisiana Bar Association, in which she’s been actively involved for 25 years. She was the first woman to be elected 

to a position serving on the Louisiana Bar, and has come recommended to me through a variety of different venues, but most 

importantly and impressive, 19 past presidents of the Bar Association have recommended her to me for this position. I’m sorry, 13 

past presidents. 

In addition, she has great academic credentials: a JD from LSU 

Law and a master’s from Duke University. Her paperwork is also 

in order. 

Mr. Chairman, let me just conclude by saying it is without hesitation that I recommended these two candidates to the President 

of the United States and I’m so pleased that he has chosen to nominate them and for them to be presented to this Committee for your 

approval. 

Senator FRANKEN. Thank you, Senator Landrieu. 

Senator Chambliss. 

PRESENTATION OF MARC T. TREADWELL, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE 

STATE OF GEORGIA 

Senator CHAMBLISS. Thank you very much, Senator Franken, 

Senator Sessions. I am very pleased to be here today to introduce 

to the Committee Marc Treadwell, who has been nominated by the 

President to be a U.S. District Court judge for the Middle District 

of Georgia. It is a particular pleasure because that is my home district that I practiced in for 6 years when I practiced law in Georgia. 

Senator Isakson joins me in this introduction in support of Marc 

Treadwell; he unfortunately had a conflict today, but asked me to 

especially let the Committee know that he is very supportive of his 

candidacy. 

748 

Marc Treadwell grew up in rural South Georgia, down in 

Blackshear, Georgia. He was a graduate of Valdosta State University, a university from which my daughter graduated. He was also 

a graduate of Mercer University Law School, the law school from 

which my son graduated. So I not only know how well-educated he 

is, but I know how expensive his education was. 

Mark is just one of those individuals who has really developed 

into an outstanding lawyer in our State. He comes highly recommended by his peers. He’s a member of the American Trial Lawyers Association, American College of Trial Lawyers, and has practiced law in Macon for a number of years. You know, as lawyers 

you tend to scrutinize maybe more closely the folks who are nominated up here, and I just can’t say enough good things about the 

background and the preparation of Marc Treadwell to go to the 

bench. 

He teaches now in addition to practicing, teaches at Mercer parttime as he practices there in Macon. He’s written over 50 articles 

for publication in Law Reviews and other periodicals. He is recognized as an expert in Georgia evidence law and is just truly so 

well-respected by his peers that we received nothing but positive 

comments about Marc as we went through this process. 

Marc and his wife Wimberly have two sons, Thomas and John. 

In addition to being an outstanding lawyer, he is a great citizen of 

Macon, Georgia, a member of Danville United Methodist Church, 

and it’s just a privilege for Senator Isakson and I to recommend 

the nomination by President Obama of Marc Treadwell to the U.S. 

District Court, and I thank you for letting me be here today. 

Senator FRANKEN. Thank you, Senator Chambliss. 

Now I’d like to ask the nominees to all come to the table for the 

administration of the oath. OK. Could you all stand? We have 

Jackson, Foote, Treadwell, Tucker, and Judge Goldsmith. All right. 

Please raise your right hands. 

[Whereupon, the witnesses were duly sworn.] 

Senator FRANKEN. Thank you. You may be seated. 

Mr. Jackson, you are free to give any opening remarks, and if 

you’d like to introduce any members of your family that are here 

today. 

STATEMENT OF BRIAN A. JACKSON, TO BE U.S. DISTRICT 

JUDGE FOR THE MIDDLE DISTRICT OF LOUISIANA 

Mr. JACKSON. Well, thank you very much, Senator, for holding 

this hearing and for presiding over this hearing. I am privileged to 

be joined today by several people who are very, very special to me. 

As Senator Landrieu noted, I am joined by my father, Harold Jackson, my mother, Andree Jackson, my brother, Kevin Jackson, a retired Marine who has served his Nation honorably. I am deeply 

grateful that they’re here today. 

I’m also joined today by two of my very dear friends, Tim 

Francis, who has been a friend since high school, and Iden Martyn, 

who served with me in the Justice Department for several years 

and who is also now in private practice. My sister, Helene Dobeny, 

could not be here today, unfortunately, nor could any of my nieces 

and nephews. Nonetheless, I know they’re with me in spirit and I 

am deeply, deeply grateful for their support as well. 

749 

And finally, I’d like to, of course, thank Senator Landrieu, not 

only for her kind remarks, but also for her support of my nomination. I’d also like to thank Senator Vitter for his support of my 

nomination. Finally, of course, I’m deeply indebted to the President 

for considering me for this position. 

Thank you. 

Senator FRANKEN. Thank you. 

[The biographical information of Brian A. Jackson follows.] 

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Now to Elizabeth Foote. 

Ms. Foote. 

Ms. FOOTE. Thank you, Senator. 

Senator FRANKEN. And by the way, welcome to all members of 

Mr. Jackson’s family. 

Mr. JACKSON. Thank you. 

STATEMENT OF ELIZABETH E. FOOTE, TO BE U.S. DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA 

Ms. FOOTE. Thank you, Senator. I, too, would like to thank the 

President. I would like to thank this Committee for the courtesy 

and promptness of the hearing. I’d like to thank Senator Landrieu 

for her lovely introduction and recommendation for this job, and 

Senator Vitter for his support as well. 

With the Committee’s indulgence, I would like to introduce my 

family. My husband Ross is a retired District Court judge for 33— 

he’s my husband for 33 years, he was a judge for 14. My son David, 

who’s in his last semester at Middlebury College in Vermont. My 

son Paul lives and works in London and is watching via webcast. 

My brothers, Paul and Jay, could not be here but they have sent 

in their stead as their representative my niece, Margo Elizabeth 

Erny, who is my namesake, and her husband, John Holliday. 

My in-laws, Toni and George Foote, who are 87 and 90 years old, 

are likewise watching this webcast in their spare bedroom. They 

have sent as their representatives my brother-in-laws George Foote 

and Ray Foote. Representing the 27 Foote grandchildren and 21 

great-grandchildren is my niece Caroline Marriott, and I’m so glad 

that she could come and be with us today. 

I also have two friends who have joined me today. One of my oldest friends, Betty Owens, who reminded me this morning that I encouraged her to go to law school, and one of my youngest friends, 

Lauren Torbett, who I taught at Mock Trial in high school and now 

is waiting admission to the New York Bar. 

Thank you so much for that opportunity. 

Senator FRANKEN. Well, thank you, Foote soldiers. 

[Laughter.] 

Senator FRANKEN. Then, Mr. Treadwell, tread well. 

[The biographical information of Elizabeth E. Foote follows.] 

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STATEMENT OF MARC T. TREADWELL, TO BE U.S. DISTRICT 

JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA 

Mr. TREADWELL. Thank you, Mr. Chairman. I, too, appreciate the 

Committee allowing us to appear here so quickly today. I’d like to 

thank Senator Chambliss for his kind introduction and the support 

that he’s shown, and I certainly am thankful to the President for 

giving me this opportunity to potentially serve the residents of the 

Middle District of Georgia. 

My wife Wemberly is here with me today. My older son Thomas 

is a student at Auburn, Auburn University, and he’s in mid-term 

exams so he cannot be here. My younger son John is a high school 

senior, and he’s here with me. He’ll be going to either Auburn or 

the University of Alabama in the fall. 

Thank you. 

Senator FRANKEN. Thank you. 

Now we’ll go to Judge Tucker. 

The biographical information of Marc T. Treadwell follows.] 

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STATEMENT OF HON. JOSEPHINE S. TUCKER, TO BE U.S. DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge TUCKER. Thank you, Senator. 

First, I would like to thank President Obama for the confidence 

of his nomination and I would like to thank my home State Senators, Senator Boxer and Senator Feinstein, for their support. I 

would particularly like to thank Senator Feinstein for her warm 

and generous introduction as well. I’d like to thank you, Senator 

Franken, for chairing this hearing and participating in it. 

I would like to introduce my family, if I may. I have with me 

today my wonderful husband of over 21 years, Steven Tucker, my 

eldest son, Zachary Tucker, my son Abram Tucker, who is—my oldest son is 19, and Abram is 16. My daughter, Laura Tucker, who 

is 10 but will tell you she’s almost 11, and I also have with me my 

oldest brother, the trailblazer of the family who first attended college, was the first one in our family to attend college, is Gary 

Staton. My sister, who is a well-known trial attorney in Arizona, 

Georgia Staton. My sister-in-law, Gary’s wife, Victoria Staton. I believe those are all who are present here today. 

I would also like to, of course, mention my 86-year-old mother 

who is in Arizona, unable to attend. I would like to say viewing the 

webcast, but she and technology do not really get along so I have 

a feeling that will come later. And my father, who is departed, but 

with us in spirit, George Staton. 

I would also like to introduce my brother who could not be here 

today, and that is Danny Staton, and his wife, Mia BalledinasStaton. 

Thank you very much. 

Senator FRANKEN. Thank you, Judge. 

Judge Goldsmith. 

[The biographical information of Josephine Staton Tucker follows.] 

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STATEMENT OF HON. MARK A. GOLDSMITH, TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN 

Judge GOLDSMITH. Thank you, Mr. Chairman. I thank the Ranking Member, Senator Sessions, and all members of the Committee 

for allowing me to appear this afternoon at this hearing. I’m very 

grateful to the President for his confidence in me in making this 

nomination. I am very grateful also to Senator Levin and Senator 

Stabenow for their support, for their gracious remarks this afternoon. 

I would like to introduce to you the love of my life, my wife for 

the last, almost 21 years, Judy Goldsmith, and also joining us this 

afternoon is my oldest brother, Merwin Goldsmith, representing all 

my siblings, John, Steven, and Barbara as well. 

Our two children are not present for very good reasons. As you 

already heard, our son Jared and his wife Stephanie were working 

on a joint venture for the last 9 months that finally brought fruit 

at about 2:23 p.m. this past Saturday, and they brought into the 

world Alexis Caitlin Talia. So, they are really busy with that very 

important work and couldn’t join us this afternoon, understandably. And our daughter Molly, who is 16 and an eleventh grader, 

is in Israel study for her winter semester of eleventh grade, and 

she’s going to be joining us by way of the webcast. 

Two people who are with us in spirit are my parents, Bessie and 

Max Goldsmith. I am grateful to them for giving me the gift of life 

and my core values of faith and family and community and country. I know they’re with us in spirit today. 

Thank you, Mr. Chairman. 

Senator FRANKEN. Thank you, Your Honor. 

[The biographical information of Mark A. Goldsmith follows.] 

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938 

Well, I guess I’ll start with some questions. First, Judge Tucker, 

as Senator Feinstein mentioned, before you started serving as a 

judge you were an employment lawyer for many years, I believe 

were named the Employment Lawyer of the Year at one point by 

some august organization. In fact, for 6 years you even co-chaired 

your firm’s employment law department. In your capacity as an 

employment lawyer, you helped many corporate clients draft employment agreements and other employee documents. 

Now, given your experience in employment law, I’m interested in 

your opinion of mandatory arbitration as a condition of employment contracts. When is mandatory arbitration in employment contracts appropriate and when is it not appropriate, in your opinion? 

Judge TUCKER. Thank you for that question, Senator. Probably 

it is best answered by explaining, as a judge, now that I’m a judge 

and have been for the last 7 years, how I address mandatory employment arbitration agreements that come before me. 

They are treated very similar to other mandatory arbitration 

agreements outside the employment context. What I do as a judge, 

is I look to precedential decisions, to decisions of higher courts, 

which tell me to determine whether the agreement, for example, is 

substantively unconscionable or procedurally unconscionable. 

I look to issues of waiver, whether one party or the other has 

waived the right to arbitration. And in some instances under California law, I am required to hold an evidentiary hearing to determine, for example, whether the agreement was—is—is fair, in essence. That’s what substantive, unconscionability and procedural 

unconscionability address. 

I apply the law, the contours of those doctrines to the facts at 

hand, and in some instances enforce the arbitration agreement and 

in other instances do not. But it all depends upon the particular 

facts and how they relate to the governing law. 

Senator FRANKEN. In your experience, are there some kinds of 

cases where—you’re talking about things that are unconscionable, 

where it would simply be unconscionable to go back to the mandatory arbitration agreement. Sometimes are you taking into account 

that the plaintiff is at a disadvantage in court or are you taking 

it that the complaint is outside the scope of a normal employment 

situation that’s covered by arbitration? 

Judge TUCKER. I would take into account all of the relevant facts. 

Sometimes the relevant facts have to do with how the agreement 

was crafted. Sometimes they have to do with the scope of the arbitration agreement, in which case I have to look carefully at the language of the arbitration agreement. 

But I am guided by precedent essentially when it comes to determining whether a particular agreement would be substantively unconscionable or procedurally unconscionable. There is case law that 

would guide me in that determination. 

Senator FRANKEN. Thank you. 

Ms. Foote, you were co-chair of the Louisiana State Bar Association’s Hurricane Katrina and Rita disaster relief efforts. I want to 

commend you for your extremely valuable work. 

How has that experience of doing disaster-related legal work 

shaped your view of the judicial system? 

939 

Ms. FOOTE. Thank you, Senator. Being Bar president and my 

work with the disaster Committee gave me both a macro and micro 

view of the judicial system—macro in the sense that you became 

familiar with big-picture issues like access to justice. The disaster 

relief Committee put together a call center that handled over 

14,000 distinct clients. 

Since that time—since that time we have formed a nonprofit corporation on which I serve on the board, and we have used that call 

center to be a point of access for legal services throughout the State 

of Louisiana. So, that’s a big-picture issue. Also, my experience 

with the Bar has given me the perspective of the lawyers and what 

lawyers want out of the judicial system. 

Senator FRANKEN. Thank you. It appears my time is up, and I’ll 

turn it over to the Ranking Member. 

Senator SESSIONS. Thank you. 

Mr. Jackson, I see you’ve been—I guess it’s Judge Jackson. 

Mr. JACKSON. Well, not just yet. 

Senator SESSIONS. Not yet? 

Mr. JACKSON. I believe that’s an error. 

Senator SESSIONS. That’s an error. Premature. 

Mr. JACKSON. Right. 

Senator SESSIONS. But you’re looking good, I have to tell you. 

[Laughter.] 

Senator SESSIONS. I wouldn’t issue any opinions or declaratory 

judgments yet, but I think you’ve got a good background. 

Mr. JACKSON. Well, thank you. 

Senator SESSIONS. I respect Assistant U.S. Attorneys that do a 

lot of Federal court practice, and they’re familiar with it in some 

depth. You’ve been First Assistant, which indicates people respect 

your leadership skills and judgment. First Assistants are pretty 

solid people. 

Mr. JACKSON. Thank you, Judge. Senator. 

Senator SESSIONS. They have the respect of their peers. We’ve 

had—you’ve seen the law change with regard to sentencing guidelines. 

Mr. JACKSON. Yes, Senator, I have. 

Senator SESSIONS. We’ve got a number of people here that have 

not dealt with the sentencing guidelines. I guess you’ve seen them 

up close and personal. What kind of deference, in light of the Supreme Court decision that eliminated, for the most part, I guess, 

the mandatory nature of it—what—how do you feel like a good 

judge should approach the guidelines and what kind of deference 

should they be given in any decision you might render? 

Mr. JACKSON. Well, Senator, as you know, I have served as both 

a Federal prosecutor and a defense attorney, practicing in the Federal system, so I am indeed very familiar with the Federal sentencing guidelines. I appreciated the guidelines for providing the 

kind of uniformity and certainty I think the Congress was seeking 

when it—when it enacted the guidelines, and that the Sentencing 

Commission has tried very hard to—to promulgate over—over time. 

I will tell you that I agree that the guidelines are presumptively 

reasonable. I think they provide a great service, not only to judges, 

but also to litigants, defendants. If I am confirmed, I will tell you 

that I intend to give great deference to the sentencing guidelines. 

940 

Again, I realize that that was a bipartisan product that was 

worked on for several years by the Congress, and again, I think the 

guidelines have served the defendants and certainly have served 

the Nation well. 

Senator SESSIONS. Yes, it was. I know you had Senator Kennedy, 

Biden and Leahy, along with Thurmond and Hatch and others on 

this side of the aisle. It was, from my experience, a major change, 

but it did definitely eliminate the danger that occurs when two 

judges, one in one hall of the courthouse and another in another 

one, give dramatically different sentences for the same offense. 

I do think the Sentencing Commission invests a tremendous 

amount of time in trying to identify what the ranges of sentences 

should be and they essentially have been in the median area of 

where good judges have sentenced over the years, I think. So I 

would encourage you to think about this experience as a prosecutor 

here. 

I won’t ask you now, but some people may think that they are 

just free to, willy-nilly, ignore those guidelines. I think that causes 

you starting down a slippery slope, Mr. Jackson, because next 

you’ll have a change and change and change, and pretty soon you 

have no guiding principle on how to have stability in sentencing. 

Mr. JACKSON. I couldn’t agree more, Senator. Again, they are absolutely essential to the system. 

Senator SESSIONS. Do any of you have any opinions that you 

might not—that you have this day on a concern about the guidelines that would cause you to depart in a more regular way than 

Mr. Jackson indicated? 

[No response]. 

Senator SESSIONS. Let’s see. Mr. Treadwell, you come highly recommended. Senator Chambliss has assured me that you’re a capable, skilled attorney. I understand you’ve been a plaintiff attorney 

a good bit in your life, which I think is legitimate; I’ve filed plaintiff suits myself. I guess I would ask you—well, first, I can see from 

your background you have respect from your peers because you’ve 

held a lot of important offices and been selected to do some important things by the Bar. But do you feel like you can give both a 

corporation that’s been sued as well as a plaintiff who is sued, or 

any other party that comes before the court, a fair and good day 

in court? 

Mr. TREADWELL. I absolutely do, Senator Sessions. In fact, during my career I’ve represented defendant corporations, appointed 

criminal defendants. Recently, my practice has centered on representing plaintiffs. I have always been a zealous advocate for whoever my client is. I think that, if anything, that’s given me a greater appreciation for the absolute essential impartiality on the part 

of a judge. 

Senator SESSIONS. Well said. My impression is—and see if you 

agree—that judges that have been good, respected advocates in the 

courtroom turn out to be pretty good judges on the bench. 

Mr. TREADWELL. I would agree with that. I think judges—or lawyers who have spent time in the courtroom like that come to know 

what type judges they would like to see on the bench and hopefully 

they can be that type judge. 

Senator SESSIONS. I think so. 

941 

Judge Goldsmith, in your investiture remarks, in a speech, you 

were talking about the formative years of the American Republic. 

You said, ‘‘It was the judiciary that viewed its mission as searching 

for common ground, while the context was constitutional decisionmaking, statutory interpretation, weaving a fabric of common law.’’ 

Then you go on to say, ‘‘American judges have, in their finest moments, sought to divine and apply the common values of our country to the disputes before them.’’ 

In one sense I think that is a statement that does not trouble 

me, but I would like for you to share with me the extent to which 

you think a judge’s role is to divine the common values and therefore apply them to the decisionmaking process, and how might that 

conflict with the duty to simply follow the statutory or constitutional mandates that are in place? 

Judge GOLDSMITH. Thank you, Senator, for that question. 

I believe, as a trial judge, I am going to be bound by the precedents of the Supreme Court of the United States and the Sixth Circuit, if I am confirmed as a U.S. District Judge. I don’t think 

there’s any room to be divining anything other than to try to follow 

scrupulously what the higher courts require me to do in a particular case. 

The particular phrase that you were reporting from my investiture remarks really were looking to questions of first impression, 

where legal matters didn’t have any clear guidance from a higher 

court. That was the context in which I was talking about trying to 

find common ground to try to build a consensus. 

Senator SESSIONS. Well, we have situations that are very real. 

Sometimes they become cases of first impression, such as two justices on the Supreme Court against the plain words of the document, found that the death penalty was cruel and unusual, when 

it had multiple references to the death penalty within the document itself in an approving fashion. 

We have judges that somehow thought they were finding, I 

guess, common values when they found that the Constitution guaranteed the right of abortion, or you have the judges who have, in 

a case of first impression with regard to the EPA’s ability to rule 

on CO2, concluded that a 1970 Act, when I guess if anything they 

probably thought the world was cooling then, had no thought about 

Congress’ Act and no thought to eliminate CO2. But I guess they, 

for some reason, thought that there was some value in giving—in 

treating it as a pollutant at this point in time. 

So I guess you see, all of you, the concerns some of us have, that 

feel like a judge has to show discipline on these issues and to be 

careful. But do your words suggest, and what you say today suggest, that if it’s a case of first impression and the answer is not 

clear, that your goal is to divine the common values, which I guess 

would be—and then use that to decide the dispute? 

Judge GOLDSMITH. Well, I would look to the traditional tools that 

a judge should look to, which is the binding precedents of the Supreme Court, and in my case it would be the Sixth Circuit. I will 

try to get what the guidance is from those decisions in making up 

my mind, even if it were a case of first impression. 

Senator SESSIONS. I think you’re right. I think even in cases of 

first impression, if a judge looks carefully, there is some body of auVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 00951 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
942 

thority that can help them reach an objective decision. I do think 

the danger is—one of our Senators—who is now present, nominated you, of which I know you’re appreciative—indicated that in 

that case of first impression you have a great more freedom than 

I think is accurate. 

Mr. Chairman, our people have—my staff has looked over these 

nominees’ records. I think we feel good about them and their background. We will have some time, but not a lot, before your vote 

comes up. If people have complaints, they can make them. That’s 

the one opportunity that we have in this whole process for the 

American people to at least register their views. Then we’ll move 

forward, I think, in each of your cases without any undue delay to 

a final vote. 

I appreciate the Senators who recommended you, and appreciate 

and give deference to the President’s choice. We can’t all secondguess the President, and each of you have some very strong things 

in your background that I think speak well of you. 

Thank you. 

Senator FRANKEN. Thank you. I’d like to thank the Ranking 

Member. Thank you for getting to Judge Goldsmith, because his 

daughter is watching from Israel. So, I’m glad you gave him a little 

bit of the once-over there. 

I’d like to put Chairman Leahy’s statement into the record, without objection. 

Senator SESSIONS. No objection. 

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

Senator FRANKEN. Okay. Thank you. 

And I’d like to thank you all for being here today, and for your 

families. I want to thank you, each, for your statements and testimony today. You are all very impressive and very thoughtful individuals. It’s really good that folks like you are going to be serving 

our Nation’s courts. 

I will hold the hearing record open for 1 week. 

The hearing is now adjourned. Thank you. 

[Whereupon, at 2:57 p.m. the Committee was adjourned.] 

[Questions and answers and a submission for the record follow.] 

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(975) 

NOMINATION OF SHARON J. COLEMAN, OF ILLINOIS, NOMINEE TO BE DISTRICT JUDGE 

FOR THE NORTHERN DISTRICT OF ILLINOIS; GARY S. FEINERMAN, OF ILLINOIS, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

NORTHERN DISTRICT OF ILLINOIS; AND 

WILLIAM J. MARTINEZ, OF COLORADO, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF COLORADO 

WEDNESDAY, MARCH 10, 2010 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:50 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, presiding. 

Present: Senators Whitehouse, Durbin, and Sessions. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. 

SENATOR FROM THE OF RHODE ISLAND 

Senator WHITEHOUSE. All right. We will call the hearing to order. 

Senator Sessions has informed me through his staff that he is on 

his way, but he is voting, and he does not wish to delay the proceedings while we go through the introductions. 

Today we will consider three nominations to the Federal bench. 

Justice Sharon J. Coleman has been nominated to be United States 

District Judge for the Northern District of Illinois. Gary S. 

Feinerman has been nominated to be United States District Judge 

for the Northern District of Illinois. And William J. Martinez has 

been nominated to be United States District Judge for the District 

of Colorado. 

Each nominee brings a record of experience and achievement in 

the law to this hearing today. I congratulate each of you on your 

nominations. 

In addition to welcoming today’s nominees, I would also like to 

welcome their families and friends to a happy day at the U.S. Senate. I, of course, would also like to welcome my colleagues who are 

here to introduce the nominees. 

The way we will do this is that we will have the introductions 

by the Senators here in their order of seniority, and we will then 

proceed to the panel of nominees. Each nominee at that point will 

976 

have the opportunity to introduce his or her family, and by then 

we should have a full complement of a Chairman and Ranking 

Member here, and we will proceed to the questions. 

Let me just say that voting to confirm an individual to the Federal bench is one of the most important and lasting decisions that 

a Senator can make. Every day Federal judges make decisions that 

affect the lives of Americans in all walks of life. Their responsibilities are weighty and must be fulfilled in keeping with a proper understanding of the judicial function under the American system of 

government. 

Judges must respect the role of Congress as representatives of 

the American people; decide cases based on the law and the facts, 

not prejudge any case but listen to every party that comes before 

them, popular or not; respect precedent; and limit themselves to 

the issues that the court is called upon to decide. I hope that each 

judicial nominee we hear from today understands the importance 

of those principles. 

The Ranking Member may wish to make a statement when he 

comes, but in the meantime, why don’t we proceed to the distinguished Senator from Illinois, the senior Senator of the State of Illinois, Senator Durbin. 

PRESENTATION OF GARY S. FEINERMAN, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, 

AND SHARON J. COLEMAN, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY 

HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 

STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Senator Whitehouse, for 

convening this hearing. It is great to be here today. We have three 

excellent nominees, and I learned from Mr. Martinez that he 

rounds it out by having a Chicago connection. So I could not ask 

for a better panel of nominees from my selfish and personal perspective. 

But I am here particularly to introduce Justice Sharon Coleman 

and Mr. Gary Feinerman. They have been nominated to serve as 

U.S. District Court Judges in the Northern District of Illinois. They 

have received the highest possible rating from the American Bar 

Association. They were recommended to me by a bipartisan merit 

selection Committee chaired by former Congressman, former D.C. 

Circuit Judge, and former White House Counsel Abner Mikva. I 

recommended these names to President Obama, and we are fortunate that such outstanding individuals are willing to serve on the 

Federal bench. 

I would like to first introduce Sharon Coleman. And I do not 

know if this is the appropriate time for her to introduce her family. 

Would this be appropriate? Or do you want to wait until—— 

Senator WHITEHOUSE. We will wait on that until they are at the 

panel, and then they can introduce their families. 

Senator DURBIN. OK. Since you have the gavel, I think it is a 

great idea. 

She was born in Chicago, spent much of her childhood in Huntsville, Alabama, and I hope that when the Ranking Member comes, 

Senator Sessions of Alabama, he will appreciate her roots. Justice 

977 

Coleman has devoted her legal career to public service. She has 

been a State court judge in Cook County, Illinois, for the past decade and a half, and presided over 600 cases to verdict. She was 

elected to be a Cook County trial judge in 1996, won a retention 

election in 2002. In 2008, she received a promotion, elected to a 10- 

year term on the Illinois appellate court, and we are hoping that 

she will not be able to serve out that term if she is considered favorably by the Senate for this Federal appointment. 

She has an excellent reputation for fairness and impartiality. Before serving on the bench, for 4 years she was an Assistant U.S. 

Attorney in Chicago, 8 years in the Cook County State’s Attorney’s 

Office. A county prosecutor, she handled a wide variety of cases 

from muggings to murders. She was promoted to be the chief of the 

Public Interest Bureau where she supervised 75 attorneys and created a special unit to protect senior citizens from exploitation. 

Justice Coleman has served on the boards of numerous bar associations and organizations in Chicago, received many, many 

awards, including the prestigious C.F. Stradford Award from the 

Cook County State’s Attorney’s Office, the Esther Rothstein Award 

from the Women’s Bar Association of Illinois, and a Woman of Excellence Award from the Chicago Defender newspaper. 

Justice Coleman attended Northwestern University, Northern Illinois University, and Washington University Law School, where 

she received a full scholarship. 

Gary Feinerman is another nominee before us today. He has 

been a star of equal merit in the Chicago legal community. Mr. 

Feinerman is a partner at one of Chicago’s oldest and largest law 

firms, Sidley Austin, and specializes in litigation and appellate 

work. From 2003 to 2007, he was our State Solicitor General representing Illinois in criminal and civil appeals. He won five Best 

Brief Awards from the National Association of Attorneys General, 

and he personally argued two cases before the U.S. Supreme Court, 

a challenging assignment for any lawyer. He also argued before the 

U.S. Court of Appeals for the Seventh Circuit and the Illinois Supreme Court. 

Early in his career, Mr. Feinerman worked at the Chicago law 

firm of Mayer Brown and in the Justice Department’s Office of Policy Development. He served as a judicial law clerk for Supreme 

Court Justice Anthony Kennedy and for Seventh Circuit Judge Joel 

Flaum. He is a leader in the Chicago legal community, president 

of the Appellate Lawyers Association of Illinois, and serves on the 

boards of Chicago’s Constitutional Rights Foundation and the Midwest chapter of the Anti-Defamation League. Mr. Feinerman has 

also had an active pro bono practice which speaks well of his commitment to the legal profession and to helping the disadvantaged. 

His academic record is equally impressive. He graduated from 

Yale University and Stanford Law School, where he finished second 

in his class. 

Mr. Chairman, I am going to do all I can to expedite these nominations. The Northern District has more district court vacancies— 

currently there are six—than any other district in America. Yet the 

number of case filings is on the rise, so there is more work to go 

around and fewer judges to do it. This means that people who are 

looking for their day in court have to wait longer. Too often justice 

978 

delayed is justice denied. We have an urgent need for additional 

judges in the Northern District of Illinois. I hope my Senate colleagues will consider and confirm Justice Coleman and Gary 

Feinerman as quickly as possible. 

Thank you. 

Senator WHITEHOUSE. Thank you very much, Senator Durbin. 

Thank you for your statement. I know how busy you are as our 

Majority Whip and Assistant Majority Leader, so the fact that you 

have taken time out of your busy schedule to come here and put 

your personal imprimatur on these two wonderful candidates is a 

strong sign of your support for them and of their merit, and I appreciate that very much. 

I will now call on Senator Mark Udall of Colorado to make an 

introduction of his nominee. 

PRESENTATION OF WILLIAM J. MARTINEZ, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, BY 

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

COLORADO 

Senator UDALL. Thank you, Mr. Chairman, and let me start by 

stating my thanks to you and Chairman Leahy and Ranking Member Sessions and the Committee itself for providing me with some 

time to introduce President Obama’s nominee to be the next Federal district court judge in Colorado, Bill Martinez. 

Bill is an accomplished authority, Mr. Chairman, and a true role 

model in our State. His personal story captures what is inspirational about our great country, America, and highlights what can 

be accomplished with focused discipline and extraordinary hard 

work. 

Bill was not born with great privilege. He came to the United 

States as an immigrant child from Mexico City and literally worked 

his way through college and toward a career in the law. And as he 

told me last year when I had a chance to spend some time with 

him, his experience with ethnic prejudice and poverty instilled in 

him a lifelong passion for justice. 

As a lawyer, as you can imagine given that background, he has 

represented clients from many walks of life, but his focus has really 

been on helping those with the least amount of power in our society. 

In one of his many pro bono cases, he represented low-rent and 

Section 8 tenants. Mr. Chairman, you know from your experience, 

there is no money and little glory in that kind of practice, but it 

reflects what our justice system really should be about, which is 

ensuring that everyone has their day in court. 

Mr. Chairman, I believe in strong, well-balanced courts that 

serve the needs of our citizens. Bill Martinez brings that sense of 

balance because of his broad legal background and professionalism. 

He is, as the Denver Post, our statewide newspaper, noted, considered an expert in employment and civil rights law. I know also that 

Bill understands the constitutional role of the judiciary, which you 

spoke to in your initial remarks, and will fulfill his special responsibility as an Article III judge, if confirmed. 

Our judicial system is built on principles of trust and integrity 

that make our country a beacon of justice around the world. No 

979 

matter how perfectly designed a judicial system may be in theory, 

however, it will not long maintain the trust of its citizens or the 

integrity they demand of it unless it has judges who are people of 

strong character and who reflect the community they serve. 

Senator Bennet and I last year convened a bipartisan advisory 

committee, which was ably chaired by Denver lawyer Hal Hadden, 

well known and highly respected in Colorado, and former Colorado 

Supreme Court Justice Rebecca Kourlis, who also has that standing in the State of Colorado. 

Bill Martinez’s life experience, his record of legal service, and his 

impressive abilities are what persuaded this Committee to recommend him to Senator Bennet and myself for a Federal judgeship. 

So, Mr. Chairman, in closing, I am confident that, if confirmed, 

Bill Martinez will undertake this solemn duty with a passion to do 

justice. That is what has guided him in his life from a very early 

age. And thank you for providing me with a bit of time to introduce 

one of Colorado’s great attorneys, and I strongly urge this Committee to support him. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Udall. It is a pleasure 

to have you here, and it is a delight and also a testament to the 

character and ability of the nominee that both of Colorado’s distinguished Senators are here. So, without further ado, I will turn to 

Senator Bennet. 

PRESENTATION OF WILLIAM J. MARTINEZ, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, BY 

HON. MICHAEL F. BENNET, A U.S. SENATOR FROM THE 

STATE OF COLORADO 

Senator BENNET. Thank you, Mr. Chairman, and I would like to 

say first thank you to you for having both of us here. 

I want to say thank you to my senior Senator, Mark Udall, for 

running an extraordinary process to fill these vacancies. We have 

vacancies all over the country, as you know, that need to be filled 

because people are awaiting justice. And the process that Mark 

Udall ran which ended up with Bill Martinez, quite rightly, being 

recommended to you was one that I think could be a model for the 

entire country. So it was a great privilege for me to be part of that. 

Part of the perils of being the junior Senator is that the senior 

Senator says everything you were going to say, so I would ask that 

my statement be put in the record, but just lend my voice to Senator Udall’s to say I am very proud to come before this Committee 

and highlight the experience and accomplishments of this superbly 

qualified nominee. Bill Martinez will be an asset, a huge asset to 

the Federal bench. 

I would like to thank the Committee for holding this hearing 

today, and I look forward to supporting Bill Martinez’s nomination 

when it reaches the floor. 

I would like to say congratulations to Bill and to his family, and 

thanks for having me today. 

Senator WHITEHOUSE. Without objection, your full statement will 

be added to the record, and the record of this proceeding will actually stay open for a week from the conclusion of the hearing for any 

980 

statement that any other Senator or, frankly, any other person or 

organization seeks to add. 

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

Senator WHITEHOUSE. I know that both of you are very busy, and 

thank you so much for taking the time to be here to support your 

candidate. 

We will stand in recess for just a few moments to let the room 

switch over for the nominees and to allow Senator Sessions a few 

more moments to get here and join us. 

[Recess from 3:03 p.m. to 3:08 p.m.] 

Senator WHITEHOUSE. The hearing will come back to order. I 

want to welcome Senator Sessions, who is not only the Ranking 

Member at this hearing, but the Ranking Member of the entire Judiciary Committee. And so it is a great honor for us to have him 

here, and before we call forward the nominees to be sworn, I would 

recognize him for his opening statement. Senator Sessions. 

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

THE STATE OF ALABAMA 

Senator SESSIONS. Well, thank you, Senator Whitehouse. I appreciate that. These are important hearings, and I look forward to participating in it. And I would just note, as you know but for the 

record, how much work does go into a person’s nominating process. 

The FBI does background checks, the White House checks, the Department of Justice checks, the local Senators are inquired of, and 

a lot of things happen to ensure that we are fulfilling our responsibility of advice and consent. 

Today’s nominees have been nominated for a lifetime appointment. This is the only time in a public forum they will be asked 

any questions or held to account, so we need to do our job on that. 

All were nominated just 14 days ago. That is pretty fast. And so 

these hearings and follow-up written questions will be the best way 

I think we have to be able to fulfill our responsibility. 

I want to take a moment to thank the Chairman for working 

with us on some nominees who have had extensive records to allow 

more time to look at that, and I think we can work on that. 

So, Mr. Chairman, I would be delighted to hear from this panel. 

I think that we are in a position to go forward on these nominees 

today. It is a very short turnaround, and if in the course of it we 

find things that indicate that the nominee—there are other questions, I think they should be—we should set up a mechanism 

where that can be asked, and we will be able to fulfill our responsibility. 

So thank you very much. 

Senator WHITEHOUSE. Thank you, Senator Sessions. I am sure 

that Senators Durbin and Burris and Senators Udall and Bennet 

are very appreciative of the minority’s courtesy in allowing these 

nominees to proceed. 

Senator SESSIONS. And I would say it does mean a lot to us that 

Senators, I think, take seriously their responsibility to review 

nominees, and their positive evaluations are important to us. 

Senator WHITEHOUSE. If the nominees could come forward and 

stand to be sworn. Do you affirm that the testimony you are about 

981 

to give before this Committee will be the truth, the whole truth, 

and nothing but the truth, so help you God? 

Mr. FEINERMAN. I do. 

Justice COLEMAN. I do. 

Mr. MARTINEZ. I do. 

Senator WHITEHOUSE. Thank you very much. Please be seated 

and welcome. I think what I will do is follow the order of precedence set by my colleagues, which would bring before us Justice 

Coleman first, followed by Mr. Feinerman, followed by Mr. Martinez. 

Justice Coleman, you are recognized for any opening statement 

you would care to make. 

STATEMENT OF SHARON J. COLEMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

Justice COLEMAN. Thank you very much, Senator Whitehouse 

and Senator Sessions. I have no opening statement. I would like to 

say, however, that I thank you, Mr. Chairman, and Senator Sessions and the Committee for the hard work that they do in this 

very important task. I also thank my senior Senator, Senator Durbin, for putting forth my name to the President. I also thank Senator Burris, who met with us this morning, for his consideration, 

the Committee that worked so hard to reach this result where we 

are here before you today; and also, last but not least, the President for nominating me to this position. 

Senator WHITEHOUSE. Would you like to take a moment to recognize any family members? 

Justice COLEMAN. Very much so. I have quite a crew here. Thank 

you very much. If they can stand when I call their names. 

My husband first, Wheeler Coleman, is here. Our children—my 

son, James Coleman; my daughter, Kara Coleman—are here. I am 

also happy to say that my father, Dr. James Johnson, who recently 

relocated from Huntsville, Alabama, to be near me in Chicago, is 

here. 

And also I have with me several relatives, my three sisters-inlaw. The oldest one, Cynthia Mitchell and her husband, Cecil 

Mitchell, they have come from North Carolina, along with their 

son, my nephew, Brandon. Also we have extended family and 

friends from North Carolina, if they could stand. 

I also have my two sisters-in-law from Chicago, and they are 

Deborah and Barbara Coleman, and if they could please stand, 

from Chicago. And they also have brought friends with them, if 

they could also stand. 

We also have extended family from the area, the Jacksons, if 

they could also stand. 

I also would like to introduce someone who has been with me 

throughout this week, my lifelong friend for over 30 years, Ilene 

Slonoff, who came from Hinsdale, Illinois. 

And I also would like to acknowledge my only sibling, Dr. Jackie 

Johnson Minter, who is watching on the webcast which you have 

provided in Houston, Texas, Sugarland, Texas, and also family and 

friends throughout Alabama, Montana, Illinois, Missouri, North 

Carolina, and California. So I would like to recognize all of them. 

Thank you very much for that opportunity. 

982 

Senator WHITEHOUSE. Well, that is a very impressive as well as 

geographically far-flung delegation. 

[Laughter.] 

Senator WHITEHOUSE. And we are delighted to welcome them all 

here today. 

Justice COLEMAN. Excuse me, Senator. If I could also just acknowledge, although they are not with me personally today, I 

would like to recognize, make mention of my mother, Dr. Fran 

Johnson, and my mother-in-law, Marie Coleman. They are watching over the rails of heaven. My mother was an associate provost 

at University of Alabama-Huntsville until 2006. 

Thank you very much. 

Senator WHITEHOUSE. Indeed they are. Thank you. 

Mr. Feinerman. 

[The biographical information of Sharon Johnson Coleman follows.] 

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STATEMENT OF GARY S. FEINERMAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

Mr. FEINERMAN. Thank you, Mr. Chairman, Senator Sessions. I, 

too, would like to thank the President for the nomination. I would 

like to thank Senator Durbin for recommending me to the President, and it was a pleasure meeting Senator Burris this morning. 

And I would like to thank the Committee for convening this hearing. 

If I can introduce my family members who are here: my wife, 

Beth Kohl; our three children, Sophia, Anna, and Lily. And I also 

have a cousin here who did not travel from far, he came from the 

Pentagon. He is a senior adviser for Net Assessment at the Department of Defense, Adam Lovinger, who is in the back. And anybody 

who happens to be watching on the webcast, I would like to acknowledge them as well. 

[Laughter.] 

Senator WHITEHOUSE. Good. Well, I particularly want to welcome 

your young daughters here and thank them for their patience with 

all of this ceremony and folderol. 

And now Mr. Martinez. 

[The biographical information of Gary S. Feinerman follows.] 

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STATEMENT OF WILLIAM J. MARTINEZ, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO 

Mr. MARTINEZ. Thank you, Mr. Chairman, Senator Sessions. I 

would like to begin by thanking President Barack Obama for having the trust and confidence to nominate me for this position. I 

have been and continue to be deeply humbled by what is truly the 

greatest honor of my lifetime. 

I would also like to thank Senator Mark Udall for his very generous and heartfelt and kind words of introduction, as well as Senator Bennet for his kind comments. 

I would like to thank you, Mr. Chairman, and Ranking Member 

Senator Sessions for convening this hearing today to allow us members of the nominee panel to have an opportunity to address any 

questions members of the Committee might have. 

I would also, if I may, like to take a few moments to introduce 

my family. 

Senator WHITEHOUSE. I wish you would. 

Mr. MARTINEZ. OK. I would like to start with my wife, my loving 

wife, Judy Shlay. We have been married 25 years. She has been 

a great supporter and a loving companion for me for many years, 

and I could not have done this without her. 

I would like to introduce my father, Guillermo Martinez, and my 

mother, Mary Martinez. 

Mr. Chairman, it is literally true I would not be sitting here 

today at this table had not my parents several years ago left behind everything near and dear to them and, with their three young 

sons in tow, came to this country from Mexico to give us a better 

life. And I also would never be sitting here today if it was also not 

true that my parents never allowed me for a moment to ever doubt 

that I would 1 day grow up to be the first member of our family 

to attend college. 

I would like to now introduce my beautiful daughters, beginning 

with my older daughter Erica—Erica is a sophomore at Macalester 

College in St. Paul, Minnesota—and my younger daughter Laura, 

who is a senior at Denver East High School. Their love for and devotion to their Daddy is one of the greatest treasures of my life. 

Next I would like to introduce my brothers: my brother Salvador, 

who is a horse and dog breeder in western Pennsylvania; and my 

other brother, my youngest brother, Al, who is an owner of a small 

mortgage brokerage company in Chicago. 

And, finally, I would like to introduce my sister-in-law, Susan 

Bertolino, who is on the faculty of Temple University, came down 

from Philadelphia to be here today with us. 

Thank you. 

Senator WHITEHOUSE. Thank you, Mr. Martinez. We are delighted by the presence of your family, and it must be very special 

for each of you to have your family around you on this day. 

[ The biographical information of William Joseph Martinez follows.] 

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I wish to ask a few questions that I think will come as no surprise to all of you. They are questions that I ask customarily when 

we are presented with candidates for a lifetime nomination to our 

United States courts. The first relates to comments that I made in 

my opening statement. 

Judges must respect the role of Congress as the duly elected representatives of the American people. They must decide cases based 

on the law and the facts. They must not prejudge any case but listen to every party that comes before the court, popular or not. They 

must respect precedent. And they must limit themselves to the 

issues that the court is called upon to decide in that case. Can each 

of you satisfy that standard? Mr. Feinerman? 

Mr. FEINERMAN. Yes, I can, Senator. 

Senator WHITEHOUSE. Justice Coleman. 

Justice COLEMAN. Yes, I can, Senator Whitehouse. 

Senator WHITEHOUSE. Mr. Martinez. 

Mr. MARTINEZ. I assure you, Chairman, that I can. 

Senator WHITEHOUSE. Thank you. 

In order to uphold the rule of law, judges must give every party 

their fair day in court. What assurances can you give that everybody coming into your courtroom will be treated fairly regardless 

of race, gender, religion, political beliefs, economic background, or 

any other consideration? 

Mr. FEINERMAN. I have been representing clients in court for 

many years now, and I view as a role model the many judges I 

have appeared before who have done precisely, Mr. Chairman, 

what you have said a judge ought to do: make decisions based upon 

the law and the facts and not carry any predispositions into the 

case. And, in particular, I clerked for a judge right out of law 

school, Judge Flaum on the Seventh Circuit, and he in particular 

is a model in terms of treating litigants with the utmost respect 

and also ensuring that the case is decided on the facts and on the 

law. 

Senator WHITEHOUSE. Justice Coleman. 

Justice COLEMAN. Mr. Chairman, I would hope that for the past 

12 years I have set a record which shows that I have adhered to 

the principles you have set forth. Treating litigants fairly and with 

respect is the hallmark of what I believe a good judge should—how 

they should comport themselves. 

In addition to being a judge in several different sectors of Cook 

County, circuit court and now the appellate court, I also have 

taught all of the new judges in Cook County for over 10 years on 

judicial ethics, judicial conduct, in which I, again, set forth the 

same values that you have put forth. I assure you I will be able 

to do that. 

Senator WHITEHOUSE. Mr. Martinez. 

Mr. MARTINEZ. Mr. Chairman, I, too, can assure you that I will 

have no difficulty in fulfilling those goals, and I know that my 

track record, if one were to look at it, would show with deeds more 

than words that I have made decisions in my life and in my career 

that reflect those very goals. 

I have represented working-class indigent individuals. I have 

represented executive vice presidents of Fortune 500 companies. I 

have represented plaintiffs and defendants in civil litigation. I have 

1097 

represented debtors and creditors in bankruptcy proceedings. All 

across the board. And I am confident that, were you to ask any of 

the clients that I have represented, they would assure you that I 

would have no trouble in meeting those expectations. 

Senator WHITEHOUSE. Thank you, Mr. Martinez. 

Can each of you assure me that, if confirmed, you would respect 

precedent and act with judicial modesty and judicial restraint in 

discharging your duties as a United States district judge? 

Mr. Feinerman. 

Mr. FEINERMAN. Yes, I could, Mr. Chairman. 

Justice COLEMAN. Yes, I will. 

Mr. MARTINEZ. Mr. Chairman, I have full knowledge of the limited role that I would have a district trial judge, and I know that 

under the doctrine of stare decisis I am—and my oath of office, 

would be compelled to follow binding precedent. 

Senator WHITEHOUSE. And, finally, history has shown that what 

is right and what is popular may from time to time diverge, and 

United States district judges have been called upon over time to 

make decisions that are unpopular, that may disrupt social expectations or economic expectations, but are, in fact, the right thing 

to do under the law. 

Can you assure me that in such circumstances you will not hesitate to show the courage that is necessary to make the right decision? 

Mr. FEINERMAN. I give you that assurance, Mr. Chairman. 

Justice COLEMAN. Mr. Chairman, based on my record, which includes directed verdicts in very sensitive cases and post-trial rulings in very complex cases, I assure you that I would continue to 

uphold that. 

Senator WHITEHOUSE. Mr. Martinez. 

Mr. MARTINEZ. Mr. Chairman, I assure you that I can meet those 

expectations, and I commit myself fully to meeting those. 

Senator WHITEHOUSE. Well, I thank all of you. My time has expired, and we turn now to the Ranking Member, Senator Sessions. 

Senator SESSIONS. Well, thank you, Mr. Chairman. It is a pleasure to be with each of you, and I will ask a few questions. 

Senator WHITEHOUSE. You did get that Justice Coleman is from 

Alabama? 

Senator SESSIONS. I am excited about that. We are proud of our 

alums. And you have family there still? 

Justice COLEMAN. My father just relocated. I have family and 

friends there. I graduated from Johnson High School. 

Senator SESSIONS. And at UAH, University of Alabama-Huntsville, your sister was—— 

Justice COLEMAN. My mother was associate provost. 

Senator SESSIONS. Your mother. 

Justice COLEMAN. Right. 

Senator SESSIONS. That is a great university, a big university. 

Justice COLEMAN. Yes, it is. 

Senator SESSIONS. Mr. Feinerman, in 2007, you participated in 

a roundtable discussion, ‘‘Confessions of a Blue State Solicitor,’’ and 

I think those are good things to do. I think lawyers ought to be 

open and having discussions. And I do not want to suggest anything improper, but the website describing it called it an open disVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 01107 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
1098 

cussion between attendees and Mr. Feinerman about shaping one’s 

law career while maintaining progressive legal values. 

As I understand the progressive movement in the early 1900s, it 

was a pretty elitist group that believed that there are expert answers to complex questions, and only a few people were really 

smart enough to know those answers, and it denigrated a bit popular democracy in terms of that kind of approach to government 

and policy. 

So I guess my question is: Do you consider yourself a progressive? And how would you define a progressive if you do? 

Mr. FEINERMAN. I do not consider myself a progressive in the 

sense that you described it in the early 20th century sense. I think 

what—I did not have a role in putting together that description—— 

Senator SESSIONS. You are right. It was not your choice of words. 

Mr. FEINERMAN [continuing]. On the website. I think what—if I 

had to guess, I think that the author of that posting was using 

‘‘progressive’’ in the more modern sense, and I think it was an 

American Constitution Society event, and I think it was meant the 

way it is meant in contemporary political discourse. 

Senator SESSIONS. Well, in the contemporary political environment, what is progressive legal values? And how would that impact 

a judge’s decisionmaking? 

Mr. FEINERMAN. I do not think it would impact a judge’s decisionmaking. I think progressive—just in contemporary discourse, 

there are people who consider themselves conservative, people who 

consider themselves progressive or liberal. But in terms of the job 

of a judge, those values do not determine how a statute is interpreted or how a fact is found. There are precedents that tell a 

judge how to go about doing judicial business, particularly district 

judges. And I would commit to you that I would follow those precedents and follow those legal tools. 

Senator SESSIONS. Well, you have got an excellent and broad 

legal background and handled a lot of complex cases that oftentimes fall to the lot of a Federal judge to deal with, and I think 

that speaks well of your legal skills. And you have expressed caution, I guess I would say, but not opposition to the death penalty 

and indicated that you wrestle with that and are prepared—in a 

previous case, you made a speech about it and some notes about 

it. Do you feel—you referred to—the question you asked yourself is: 

Should somebody like me be a part of the machinery of death? That 

is Justice Blackmun’s word. ‘‘From this day forward,’’ he said, ‘‘I 

shall no longer tinker with the machinery of death.’’ 

So I guess, obviously, you have thought about it. I think your answer in your speech indicated that you feel like you are able to proceed and enforce the law as written, even though it might be difficult. Is that still your view? And are you committed to fairly following the law even when it calls for the death of the defendant? 

Mr. FEINERMAN. Yes, absolutely, and the speech was part of that 

‘‘Reflections of a Blue State Solicitor General.’’ And what I was 

speaking about at that part of the speech was when you are in a 

position for a State Attorney General, as I was, or when you are 

any kind of prosecutor, you have to follow the law. And I spoke 

about the case People v. Cecil Sutherland, and I think any prosVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 01108 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
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ecutor really should reflect in any case, particularly a case as grave 

as a capital case. And when I was Solicitor General of Illinois, I 

supervised a criminal appeals division, and our division handled 

numerous capital cases, and my name was on those briefs. I edited 

those briefs. I met with the families of the victims before the arguments before the Illinois Supreme Court, and I think at the end of 

the speech I said, yes, I was comfortable in that role. And because 

I was comfortable in the role as an advocate, I think I certainly 

would be comfortable in the role as a judge. 

Senator SESSIONS. Well, I think you have well stated that. I firmly believe that persons can disagree with the death penalty as a 

matter of policy, but as for a lifetime appointment on the Federal 

bench, it is appropriate to ask are you prepared to follow the law 

faithfully like other laws and not treat it differently and undermine 

it, as I have seen certain judges do, just systematically, it seems, 

find one excuse after another not to allow the normal process to go 

forward. 

I think we have made some changes over the years. We are more 

stable about our death penalty situation today. 

Justice Coleman, you filled out a questionnaire when you ran for 

the appellate court or sought an appellate court seat to the independent voters of Illinois, and you talked about the mandatory sentencing requirements in Illinois and that they seek to provide for 

more uniform sentencing, and I think you affirmed that view is of 

value and it is something that is legitimate to enforce and follow. 

Is that your view? And do you think that—and how would you 

see the Federal Sentencing Guidelines, which are more restrictive, 

I think, than Illinois’—how do approach that? 

Justice COLEMAN. Well, first of all, yes, I agree, Senator Sessions, 

that the reasoning behind the mandatory Sentencing Guidelines, as 

I stated in that questionnaire, was appropriate. For so long, the 

sentencing could be disparate, markedly uneven, depending on 

what defendant showed up in what courtroom. And I think the goal 

of uniformity was a laudable one, and I think to some extent the 

mandatory sentencing addresses that. 

I think the guidelines that are set forth in the Federal system, 

I have heard—I have not—when I was Assistant U.S. Attorney, I 

was a civil Assistant U.S. Attorney, and so I just came into the office about the time that the guidelines were beginning to take effect, so I do not have personal experience with them. 

But even though they are somewhat advisatory or advisory at 

this point, I would say that there would probably be a unique situation or the rare situation where I would depart from those guidelines based on what I know of the Federal system. 

Senator SESSIONS. Well, I think they are very helpful, and I 

think you answered that well. I have offered legislation for 10 

years to modify the crack cocaine penalties that I think are too 

harsh and need to be—now all of a sudden, we have got a lot of 

people who want to do it, go further than I think we probably 

should go. But we will have a hearing on that tomorrow, and so 

we may well—but I think Congress, if we are going to step in and 

authorize and, in effect, create guidelines and sentences, we ought 

to monitor them. If they are not working effectively, Congress 

should change the law on them, and that is what we will be workVerDate Nov 24 2008 10:55 May 27, 2011 Jkt 065688 PO 00000 Frm 01109 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\65688.TXT SJUD1 PsN: CMORC
1100 

ing on. And I think your experience is correct that if we have good 

guidelines, they generally are better off being followed because I 

have seen in my personal experience dramatically different sentences, depending on what judge you happen to appear before, and 

that is hard to justify. 

Mr. Martinez, I appreciate your background and qualifications. I 

note that you have been a member of the Legal Panel of the ACLU 

in Colorado since 2006. That is a legitimate institution that participates in litigation. I do not always agree with their views. I do not 

think I would join them based on the positions they publicly take, 

but I would note, Mr. Chairman, that the ACLU supported the majority opinion in the Citizens United case that my liberal colleagues 

criticized vigorously this morning. 

So what were your responsibilities in that position? And what did 

it call on you to do? 

Mr. MARTINEZ. Senator, 4 years ago, I was requested to join the 

Legal Panel by the legal director of the Colorado chapter of the 

ACLU. The Legal Panel is a group of about 20 practitioners in Colorado who have an interest in civil rights and civil liberties. 

The function of the committee—I am sorry, of the panel is to review proposed litigation memos prepared by the staff attorneys of 

the local ACLU chapter, and the Legal Panel discusses them, analyzes the potential litigation, and votes either to recommend or not 

to recommend to the board of the local chapter whether to seek redress from settlement negotiations through litigation. 

Senator SESSIONS. Well, for example, on that website, the ACLU 

says that they believe the death penalty inherently violates the 

Constitution, the ban on cruel and unusual punishment; also it violates the guarantees of due process and equal product. 

Do you agree with that? 

Mr. MARTINEZ. Well, what I would agree with as a district judge 

is that the United States Supreme Court has ruled that capital 

punishment does not violate the Eighth Amendment except in narrow circumstances that have been carved out in recent years. So 

I think what is material and important is what is my view—what 

my view would be as a sitting Federal district judge, something 

that would be quite different from my views as a personal citizen 

or an advocate or litigant and member of the ACLU. 

Senator SESSIONS. Well, as we are aware in this body of which 

we are a part as sort of a political institution, we have to make 

judgments. Do you personally think that the death penalty and 

have you ever expressed a view as to whether or not the death penalty violates the constitutional ban on cruel and unusual punishment? 

Mr. MARTINEZ. I have never expressed such a view. 

Senator SESSIONS. And would you share with us your view on it? 

Mr. MARTINEZ. My view now today as a citizen as opposed to 

what I would do as a district judge. My view is that I think that 

with time, I think the long arc of history shows that there has been 

a progression in some nations, and I think in time in this Nation 

that that day may come. But whether it is 50 years or 100 years 

from now, that is, in my mind, irrelevant to the notion of what is 

the law today, what would I be bound to apply today, and that law 

today is that, with the exception of certain limited circumstances, 

1101 

capital punishment does not violate the Eighth Amendment, and I 

would be—— 

Senator SESSIONS. Well, we have got to deal about the Constitution. So you think it is somehow the meaning of the words alters 

as time goes by based on—— 

Mr. MARTINEZ. The meaning of the Constitution? 

Senator SESSIONS. Yes. 

Mr. MARTINEZ. No. There are enduring terms and text in the 

Constitution that remain firm and fixed for all time unless amended pursuant to the provisions of the Constitution. What can change 

is the Supreme Court’s interpretation or reading of certain terms. 

And unless and until the Supreme Court ever changes its interpretation of those relevant terms, then the current status would obtain. 

Senator SESSIONS. Well, so you hold out the possibility that a Supreme Court might legitimately conclude the death penalty violates 

the Eighth Amendment prohibition on cruel and unusual punishment? 

Mr. MARTINEZ. Senator, what I am saying is that that may occur 

in the future. It is a hypothetical, and it could happen in 50 years 

or 100 years. Again, I would stress that it would be irrelevant to 

my duties as a district judge. I would be duty-bound by my oath 

and by the doctrine of stare decisis to apply the law. I am fully prepared if a jury under the Federal statutes, applicable Federal statutes, if a jury recommends a death sentence, which is the way it 

works currently, and it was properly obtain, that jury verdict was 

proper in terms of procedural and substantive aspects, I would not 

have a problem with imposing that recommended penalty from the 

jury. 

Senator SESSIONS. It is just a pretty big deal in the sense that— 

and I believe the Supreme Court, two members of the Supreme 

Court were deeply in error, in effect, by agreeing with the ACLU 

and dissenting in every death penalty case, contending that the 

death penalty case is unconstitutional as a violation of the Eighth 

Amendment. But you would not dispute, would you, that at the 

time the Constitution was adopted and the time of the 14th 

Amendment and other portions of the Constitution were adopted, 

it makes multiple references to capital crimes, that the possibility 

of taking life with due process but not without due process, and 

that it would seem pretty clear, would it not, that it would be an 

abuse of the interpretive power of a judge to say that that Constitution should be construed in a way that would eviscerate those 

provisions? 

Mr. MARTINEZ. I agree with you, Senator. The text of the Constitution is clear. And until the last decade, the Supreme Court 

consistently interpreted the text as one as you are today discussing 

it. Now through the Roper case and the Kennedy case, the Supreme 

Court has chipped away at that view. And as a district court judge, 

for example, with respect to Roper, the Supreme Court newly interpreted the Eighth Amendment to prohibit capital punishment of individuals who committed the capital—the alleged capital crime 

when they were under 18. 

Whether I agree with it, whether I was happy with that result 

or dismayed by the result is irrelevant. If I were ever faced with 

1102 

that case with that situation, I would have to follow Roper unless 

and until it was reversed or changed by a subsequent Supreme 

Court ruling. 

Senator SESSIONS. Well, I think that is well said in the sense 

which you are bound by superior authority and how those cases are 

interpreted. Just as a long-time prosecutor, I used to be flabbergasted that members of the court would take that view that the 

Eighth Amendment in general prohibits the death penalty when 

the Constitution clearly contemplates a death penalty in any number of different places. 

Mr. Chairman, thank you for this opportunity to ask these questions. There may be some written questions we will submit. And 

we have got positive statements on these nominees also, and I appreciate the opportunity to ask you these questions. 

Senator WHITEHOUSE. Before we conclude the hearing, I would 

like to add into the record of this proceeding the statement of our 

distinguished Chairman, Senator Patrick Leahy, in favor of these 

nominees, as well as letters of support for Mr. Martinez from the 

Colorado Hispanic Bar Association and the National Employment 

Lawyers Association, as well as a letter from the Anti-Defamation 

League in support of Mr. Feinerman. I ask unanimous consent that 

those may be added to the record. 

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

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

Senator WHITEHOUSE. And I would conclude with—one of the 

nice things about being able to hold these hearings is you get to 

make some observations in conclusion, and the observation that I 

would like to offer to each of you is that, in my view, there are 

powerful forces that are at work in this country to deprecate the 

value of the judicial forum and its role in the American system of 

government. We see it in attacks on practitioners, trial lawyers. We 

see it in efforts to put caps on damages. We see it in the description of juries as ‘‘runaway’’ juries. We see in the description of lawsuits as ‘‘frivolous,’’ even when they have survived judicial determination that they are not frivolous under Rule 11, and there is 

a strong procedure for protecting against those lawsuits. We see juries mentioned not once but three times in the Constitution and 

Bill of Rights. And at least from this Senator’s perspective, I have 

the concern that powerful forces look at our political institutions 

and see them as amenable to suggestion and control, whether it be 

elected officials in the executive branch or elected officials in our 

legislative branch of government. And as those institutions become 

more and more malleable to influence, in particular to monied influence, the jury box stands more and more starkly as an institution of American government that is beyond their reach. Indeed, efforts to tamper with a jury are illegal; whereas, efforts to tamper 

with Governors and Presidents and members of legislature are encouraged through organized systems of campaign contribution and 

support. 

So in that sense, I hope that as each of you take your oath—and 

I hope you will, and I hope it will be soon—to support and defend 

the Constitution of the United States, you will bear in mind the importance of the courtrooms to which I hope, after our concurrence 

1103 

here in the Senate, you will enter as important establishments in 

the constitutional system of our Government as in many cases the 

last refuge for people who are unpopular or against whom massive 

and powerful forces are arrayed and for whom justice cannot be obtained in executive forums or in legislative chambers. And you may 

turn out to be their last hope, and I think it was the Founding Fathers’ intention that judges and juries should be that last hope. 

And I offer that as advice worth every penny that you paid for it 

in this hearing. 

As the distinguished Ranking Member has said, the hearing will 

remain open for further questions, and, obviously, even if this hearing’s period is closed, I would encourage you to answer any further 

questions that may come from any side so that we can move expeditiously toward considering your nominations in the Judiciary 

Committee, and from there I hope quickly to the floor, so that you 

can get about the work of performing the role of United States district court judges. And I appreciate very much your participation 

today and thank very much your families who took great trouble 

and traveled some distance to attend. I know particularly for the 

younger ones these are tedious, but I have to say young and old 

alike have been very well behaved, and I appreciate it. 

The hearing is concluded. 

[Whereupon, at 3:48 p.m., the Committee was adjourned.] 

[Questions and answers and submission for the record follow.] 

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Æ 


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