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S. Hrg. 111–1037 

NOMINATIONS OF HON. DANA KATHERINE 

BILYEU, MICHAEL D. KENNEDY, HON. DENNIS 

P. WALSH, MILTON C. LEE, JR., JUDITH ANNE 

SMITH, AND TODD E. EDELMAN 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

APRIL 20, 2010 

NOMINATIONS OF HON. DANA KATHERINE BILYEU AND MICHAEL D. 

KENNEDY TO BE MEMBERS, FEDERAL RETIREMENT THRIFT INVESTMENT BOARD; HON. DENNIS P. WALSH TO BE CHAIRMAN, SPECIAL 

PANEL ON APPEALS; MILTON C. LEE, JR., JUDITH ANNE SMITH, AND 

TODD E. EDELMAN TO BE ASSOCIATE JUDGES, SUPERIOR COURT OF 

THE DISTRICT OF COLUMBIA 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

EDWARD E. KAUFMAN, Delaware 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MICHAEL L. ALEXANDER, Staff Director 

KRISTINE V. LAM, Professional Staff Member 

LISA M. POWELL, Staff Director, Subcommittee on Oversight of Government Management, the 

Federal Workforce, and the District of Columbia 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

JENNIFER L. TARR, Minority Counsel 

JENNIFER A. HEMINGWAY, Minority Staff Director, Subcommittee on Oversight of Government 

Management, the Federal Workforce, and the District of Columbia 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Akaka .................................................................................................. 1 

Senator Voinovich ............................................................................................. 2 

Prepared statements: 

Senator Akaka .................................................................................................. 29 

Senator Voinovich ............................................................................................. 30 

WITNESSES 

TUESDAY, APRIL 20, 2010 

Hon. Dana Katherine Bilyeu to be a Member, Federal Retirement Thrift 

Investment Board: 

Testimony .......................................................................................................... 3 

Prepared statement .......................................................................................... 39 

Biographical and financial information .......................................................... 42 

Letter from the Office of Government Ethics ................................................. 55 

Responses to pre-hearing questions ................................................................ 56 

Michael D. Kennedy to be a Member, Federal Retirement Thrift Investment 

Board: 

Testimony .......................................................................................................... 5 

Prepared statement .......................................................................................... 63 

Biographical and financial information .......................................................... 65 

Letter from the Office of Government Ethics ................................................. 75 

Responses to pre-hearing questions ................................................................ 76 

Hon. Dennis P. Walsh, to be Chairman, Special Panel on Appeals: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 84 

Biographical and financial information .......................................................... 87 

Letter from the Office of Government Ethics ................................................. 99 

Responses to pre-hearing questions ................................................................ 101 

Responses to post-hearing questions for the Record ..................................... 108 

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

Columbia: 

Testimony .......................................................................................................... 16 

Milton C. Lee, Jr., to be an Associate Judge, Superior Court of the District 

of Columbia: 

Testimony .......................................................................................................... 18 

Prepared statement .......................................................................................... 110 

Biographical and financial information .......................................................... 112 

Responses to post-hearing questions for the Record ..................................... 136 

Judith Anne Smith to be an Associate Judge, Superior Court of the District 

of Columbia: 

Testimony .......................................................................................................... 19 

Prepared statement .......................................................................................... 137 

Biographical and financial information .......................................................... 138 

Responses to post-hearing questions for the Record ..................................... 152 

Page

IV 

Todd E. Edelman to be an Associate Judge, Superior Court of the District 

of Columbia: 

Testimony .......................................................................................................... 21 

Prepared statement .......................................................................................... 153 

Biographical and financial information .......................................................... 154 

Responses to post-hearing questions for the Record ..................................... 174 

APPENDIX 

Hon. Harry Reid, a U.S. Senator from the State of Nevada, prepared statement ...................................................................................................................... 33 

Paul Strauss, U.S. Shadow Senator for the District of Columbia, prepared 

statement .............................................................................................................. 34 

(1) 

1The prepared statement of Senator Reid appears in the Appendix on page 33. 

NOMINATIONS OF HON. DANA KATHERINE 

BILYEU, MICHAEL D. KENNEDY, HON. DENNIS P. WALSH, MILTON C. LEE, JR., JUDITH 

ANNE SMITH, AND TODD E. EDELMAN 

TUESDAY, APRIL 20, 2010 

U.S. SENATE, COMMITTEE ON HOMELAND SECURITY AND

GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:07 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Daniel K. Akaka, 

presiding. 

Present: Senators Akaka and Voinovich. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. This hearing will come to order. 

Good afternoon and welcome to all of you. Today, the Committee 

on Homeland Security and Governmental Affairs meets to consider 

the nominations of Dana Bilyeu and Michael Kennedy to be Members of the Federal Retirement Thrift Investment Board (FRTIB) 

and Dennis Walsh to be Chairman of the Special Panel on Appeals. 

On the second panel, we will consider nominations for the District 

of Columbia Superior Court. 

My friend, Senator Reid of Nevada, is unable to join us today, 

but he submitted a statement of introduction and support for Ms. 

Bilyeu that will be placed, without objection, at the appropriate 

place in the record.1

The Federal Retirement Thrift Investment Board was established 

in 1986 by legislation modernizing the Federal retirement system 

and creating the Thrift Savings Plan (TSP). The Board administers 

the TSP, which is a retirement savings plan similar to a 401(k) 

plan for Federal employees as well as military service members. 

Ms. Bilyeu is well qualified to join this Board. She has decades 

of experience with retirement funds and currently is Executive Officer of the Public Employees Retirement System of Nevada. In 

that role, she is responsible for fund management, including investment oversight. 

Mr. Kennedy also has strong credentials. He is Trustee for the 

Employees Retirement System of Georgia pension fund, a position 

he has held for over a decade already. He also has spent many 

2 

years in the private sector and currently is a senior client partner 

at an executive recruiting firm in Atlanta. 

The Special Panel on Appeals resolves disagreements between 

the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC). These disagreements 

arise on occasion in mixed cases where an employee appeals a personnel action to the MSPB and also petitions the EEOC, alleging 

that the action was based on discrimination. 

Mr. Walsh is a distinguished attorney who currently serves as 

the Associate General Counsel of the Federal Labor Relations Authority. Prior to that, he spent 20 years working at the National 

Labor Relations Board and served both as a member and as Deputy Assistant General Counsel. 

I am impressed with the qualifications of the nominees before us 

and am confident that, if confirmed, they will have much to offer 

the Federal Government. 

I want to congratulate all three of you on your nominations and 

welcome you and your loved ones to the Committee today. I understand that you have some family and friends in the audience, and 

I can hear them, too. [Laughter.] 

I want to give you the opportunity to introduce them to the Committee. Ms. Bilyeu, I would like to start with you and your introductions. 

Ms. BILYEU. Senator Akaka, my mother, Laurel Sammons, and 

my sister, Brooke Nielsen, are with me today in the audience. 

Senator AKAKA. Thank you. Mr. Walsh. 

Mr. WALSH. Thank you, Senator Akaka. With me today is my 

wife, Barbara A. O’Neill, who is a prominent labor attorney and 

long-time public servant with the National Labor Relations Board, 

sitting behind me. 

Senator AKAKA. Welcome. Mr. Kennedy. 

Mr. KENNEDY. Senator Akaka, I do not have anyone with me 

today, so I am flying solo. 

Senator AKAKA. Thank you. Aloha again to you and your families 

and your supporters, and welcome. You must be very proud of your 

loved ones and what they have accomplished. 

Now let me call on my good friend and partner here. We have 

worked so well together over the years. Senator Voinovich and I 

have sat on the Committee for many of those years. Senator 

Voinovich is a true leader in Federal workforce issues and has 

demonstrated his commitment during his time on this Committee 

to improving all aspects of our Federal workforce. 

Senator Voinovich, would you like to make an opening statement 

at this time? 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. Thank you, Senator Akaka. The two of us 

have spent a lot of time together over 10 years working on human 

capital and trying to create an opportunity where we can keep the 

best and brightest and attract those that we would like to see come 

into government. 

Senator Akaka has really done a wonderful job of introducing all 

of you. To our TSP nominees, you are coming at a challenging time, 

but both of you have excellent credentials for that job, and I appreVerDate Nov 24 2008 09:48 Aug 03, 2011 Jkt 057326 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 P:\DOCS\57326.TXT SAFFAIRS PsN: PAT
3 

1The prepared statement of Ms. Bilyeu appears in the Appendix on page 39. 

ciate your willingness to serve, and I appreciate your families and 

the sacrifice they are going to make so you can serve. 

Mr. Walsh, I would like to recognize the fact that you are willing 

to take on this job, in spite of the fact that you are not going to 

get paid—because under the rules, you cannot receive pay for two 

jobs—because you think it is going to make a difference for our 

country, so I thank you very much for your service. 

Senator Akaka, thank you. 

Senator AKAKA. Thank you, Senator Voinovich. 

Our nominees have filed responses to biographical and financial 

questionnaires and answered prehearing questions submitted by 

the Committee. Without objection, this information will be made a 

part of the hearing record, with the exception of the financial information, which is on file and available for public inspection at the 

Committee offices. 

Our Committee rules require that all witnesses at nomination 

hearings give their testimony under oath. Therefore, I ask all of the 

witnesses to please stand and raise your right hand. 

Do you swear that the testimony you are about to give this Committee is the truth, the whole truth, and nothing but the truth, so 

help you, God? 

Ms. BILYEU. I do. 

Mr. KENNEDY. I do. 

Mr. WALSH. I do. 

Senator AKAKA. Thank you. Let it be noted in the record that the 

witnesses answered in the affirmative. 

Ms. Bilyeu, will you please proceed with your statement. 

TESTIMONY OF HON. DANA KATHERINE BILYEU 1 TO BE A 

MEMBER, FEDERAL RETIREMENT THRIFT INVESTMENT 

BOARD 

Ms. BILYEU. Good afternoon and thank you, Senator Akaka, 

Ranking Member, and Committee Members for holding the hearing 

today. My name is Dana Bilyeu, and I am honored to appear before 

you as a nominee to the Federal Retirement Thrift Investment 

Board. 

I am deeply grateful to President Obama for his confidence in me 

for this position. I also want to express my thanks and gratitude 

to Majority Leader Reid for his trust and support in recommending 

me to the President for nomination to this important post. 

Before I start, I do want to thank my husband, Lindsay, and my 

son, Mateo, for their continuing support both in our family life and 

for my professional pursuits. Due to scheduling conflicts, namely 

they are both in school full time, they were unable to attend today’s 

hearing. As I indicated previously, both my sister and my mother 

are with me today. They both inspire me to work to my greatest 

capacity, a trait that I learned through keen observation of both of 

them as they made their way through their personal and professional careers. My father, Daniel Sammons, died in February of 

this year, and it is in his honor that I speak today. 

Should I be confirmed, I look forward to working with the other 

members of the Federal Retirement Thrift Investment Board and 

4 

with the dedicated staff of the agency to further the policy goals 

for the Thrift Savings Plan, as it is a critical component of the retirement security for Federal employees. If confirmed, I will draw 

on my 20 years of experience in the retirement industry to fulfill 

my obligation to the members of Thrift Savings Plan as a good 

steward of the investment policy of the plan, providing low-cost, 

high-quality, broadly based investment options for the members. 

My experience as a retirement professional managing pension assets for members and beneficiaries of the Nevada pension fund will 

provide a complementary perspective on retirement financing and 

investment vehicles for the Board. I began my career in the retirement sector as General Counsel, moving on to manage operations, 

outreach, education, and benefits for a diverse population of employees. In my current capacity as the Executive Officer, I am responsible for investment policy development, asset allocation recommendations, and risk management. I spend the lion’s share of 

my average day focused on the same issues that face individuals 

participating in the Federal Thrift Savings Plan. 

I have had an opportunity since my nomination to learn more 

about the Thrift Investment Board, including the statutory mission, activities, and current investment policy framework within 

which the various investment vehicles for Federal employees have 

been crafted. If confirmed, I will work hard to continue the positive 

leadership already in place for this program. 

I have a great deal of experience working with a variety of professionals responsible for managing retirement assets for others as 

well as in the education sector within our industry. Now, more 

than ever, given the volatility our Nation has seen within the investment markets in the most recent market cycle, it is imperative 

that the financial literacy efforts of the agency be continued. Financial literacy allows participants in the plan to evaluate their own 

risk tolerance and to make informed investment choices that match 

that personal risk tolerance. 

I understand that the Office of Personnel Management is primarily responsible for educating the Federal workforce as to the 

nature of the benefits available to Federal employees, but the efforts of the Thrift Investment Board and staff in providing tools for 

employees to better understand the fund options available to them 

focus employees on the need to set aside funds today to help finance their futures in a manner that best suits the employees’ own 

goals. 

Because the Thrift Savings Plan is a defined contribution plan, 

the most important challenge facing the agency today is the need 

to increase participation in the program in all employment sectors, 

but particularly for our military. Congress has provided a significant tool to aid this effort in allowing an immediate agency match 

as an incentive to employees to encourage participation, as well as 

automatic enrollment. If confirmed, I will continue to emphasize 

the efforts of the Board to educate the non-participating workforce 

and to provide appropriate tools for the participating population to 

make informed investment choices based on their individual goals. 

I believe my background and experience have prepared me to become a valuable and positive member of the Thrift Investment 

Board, and I would like to thank the Committee for considering my 

5 

1The prepared statement of Mr. Kennedy appears in the Appendix on page 63. 

nomination. If confirmed, I look forward to working with the Members of this Committee, the Committee staff, and Congress as a 

whole. 

I would be happy to answer any questions that the Committee 

may have. 

Senator AKAKA. Thank you. Thank you very much for your statement, Ms. Bilyeu. 

Mr. Kennedy, will you please proceed with your statement. 

TESTIMONY OF MICHAEL D. KENNEDY 1 TO BE A MEMBER, 

FEDERAL RETIREMENT THRIFT INVESTMENT BOARD 

Mr. KENNEDY. Mr. Chairman and distinguished Members of the 

Committee, I am honored to appear before you today as a nominee 

to the Federal Retirement Thrift Investment Board. I am deeply 

humbled by the confidence that President Obama has shown in me 

with this nomination. 

As you know, the FRTIB was established to provide guidance 

and oversight for the Thrift Savings Plan, the primary pension 

fund for Federal employees. If confirmed, I look forward to working 

with the staff and participants in continuing to fulfill the mission 

of FRTIB while strengthening the organization. 

I believe I was nominated for this position due to my extensive 

financial services background and pension fund experience. For the 

past 10 years, I have had the honor to represent the citizens of the 

State of Georgia as a Trustee for the Employees Retirement System (ERS) of Georgia. With assets of approximately $14 billion, 

ERS has administered benefits to over 130,000 active employees 

and 52,000 retirees. During my tenure on the Board, I have served 

as a member of the Investment Committee. For 5 years, I served 

as Board Chairman. 

Over this past 10 years, we have worked closely with our staff 

in enhancing our communications with participants in the plan. 

This has been done through the implementation of an effective call 

center as well as a revised and more interactive Web site. We have 

provided greater access to participants regarding retirement planning and education. Furthermore, we have upgraded our technology, which has allowed ERS to operate in a more efficient manner. Finally, we have attracted stronger and more experienced talent to the organization, which will benefit ERS long-term. 

As an ERS Trustee, I have had the opportunity to become involved in several national pension fund organizations such as the 

National Association of State Retirement Administrators (NASRA) 

and the National Association of Securities Professionals (NASP). 

My involvement in these organizations has allowed me to interact 

with trustees across the country and learn about industry trends. 

This involvement has also allowed me to develop best practices, 

which we have implemented back in the Georgia system. All of 

these experiences will be beneficial in my involvement with FRTIB, 

if confirmed. 

In the first part of my professional career, I developed a broad 

background in the financial services industry. I started my career 

as an investment analyst at J.P. Morgan in New York, where I 

6 

analyzed bank and savings and loan stocks for portfolio managers. 

In this role, I developed a foundation for understanding equity capital markets. 

After completing my MBA at Harvard, I worked as a banker at 

Wachovia. In this role, I learned about the various financing options for corporations. Finally, at GE Capital, I focused on areas 

such as private equity and mezzanine debt. In addition to the traditional equities and fixed income asset classes, I have developed 

extensive knowledge of alternative investments. If confirmed, these 

financial experiences should allow me to bring a broad perspective 

to my position as a Board member at FRTIB. 

Currently, I am a Senior Client Partner at Korn/Ferry International in Atlanta. In my position, I conduct senior-level searches 

for top talent in the financial services industry. Over the past several years, I have conducted senior searches for large pension fund 

organizations such as the California Public Employees Retirement 

System (CalPERS), the California State Teachers Retirement System (CalSTRS), and the Teacher Retirement System of Texas 

(Texas Teachers). These searches have allowed me to gain some insight into these complex organizations while understanding the 

need to recruit top investment talent. If I am confirmed, my recruiting background will be helpful in my new role at the FRTIB 

as the organization continues to recruit and retain top-level talent. 

Should I be confirmed, I will focus my efforts in three key areas: 

One, investment oversight; two, communications and education; 

and three, recruitment and retention of top talent. 

Although the current investment options appear to be adequate, 

it is always prudent to continually review these options in light of 

changing financial markets. It is also prudent to analyze and review additional options in order to remain current. 

Although the FRTIB does a good job in its current communications and education efforts, these areas need to be continually enhanced in order to capture new participants. 

Finally, it is important to make sure that the staff at the FRTIB 

remains top-notch. This can be done through strategic recruiting as 

well as providing constructive feedback to current employees. It is 

important to create a welcoming culture for employees and a teamoriented environment. 

I believe that my pension fund experience and financial services 

background have equipped me to make a positive contribution to 

the Federal Retirement Thrift Investment Board. If confirmed, I 

look forward to working with Members of this Committee and the 

entire Congress in helping to strengthen the FRTIB and maintain 

its important mission. 

I would be happy to respond to any questions you may have. 

Senator AKAKA. Thank you very much for your statement, Mr. 

Kennedy. 

And now, Mr. Walsh, will you please proceed with your statement. 

7 

1The prepared statement of Mr. Walsh appears in the Appendix on page 84. 

TESTIMONY OF HON. DENNIS P. WALSH 1 TO BE CHAIRMAN, 

SPECIAL PANEL ON APPEALS 

Mr. WALSH. Thank you. I am honored to be appearing before this 

Committee as the President’s nominee for the position of Chairman 

of the Special Panel on Appeals. I would like to thank you, Senator 

Akaka and Senator Voinovich, and the other Members of the Committee for this opportunity to appear before you and to be considered for this very important position. I would also like to thank my 

wife, who I have already introduced, Barbara O’Neill, who has supported me throughout my career in the Federal Government, and 

our two children, Steven, who is a sophomore in college, and Rose, 

a freshman in high school, and as educational as this experience 

would have been for them, we preferred for them to be in class, as 

well, today. 

As you know and as you have described very aptly, the Chairman 

of the Special Panel on Appeals is a position established by the 

Civil Service Reform Act of 1978 to address certain mixed cases 

that involve issues concerning both merit systems principles and 

anti-discrimination principles as applied to Federal employees. If a 

Federal employee appeals such a case to the Merit Systems Protection Board and the MSPB decides the case, the employee can subsequently appeal the decision regarding the discrimination claim to 

the Equal Employment Opportunity Commission. If the EEOC 

issues a decision that differs from the MSPB’s decision as to the 

discrimination claim, it refers the case back to the MSPB. The 

MSPB can concur in the EEOC’s decision at that point, which 

makes it a final decision subject to judicial review. 

But if the MSPB determines that the EEOC’s decision conflicts 

with merit systems rules or laws, or that it did not have sufficient 

evidence in the record in applying those rules, it must certify the 

case to the Special Panel on Appeals. That somewhat complex procedure is where this position comes into play. 

The Chairman of the Special Panel, a presidential appointee 

under the Civil Service Reform Act, convenes a Special Panel, consisting of himself or herself, a member of the MSPB, and a Member 

of the EEOC. The Special Panel has 45 days to consider the case 

and must decide within that time period if indeed the EEOC’s decision is in violation of merit systems rules or did not apply them 

correctly to the record. In making such a decision, the Special 

Panel must give due deference to the MSPB on issues involving 

merit systems principles and to the EEOC on anti-discrimination 

principles. 

In a nutshell, Senators, that is the position which the President 

has asked me to assume. I believe I am well positioned to undertake this responsibility because of my extensive experience as an 

adjudicator of labor cases at the National Labor Relations Board 

(NLRB), my experience as a Federal manager at the NLRB, and 

my present position as the Deputy General Counsel at the Federal 

Labor Relations Authority (FLRA). 

As a member of the NLRB, I was called upon to decide cases involving labor law issues under the National Labor Relations Act as 

part of a politically divided yet collegial body. Our job was to meld 

8 

our various views together and decide cases as expeditiously as 

possible. The job of the Chairman of the Special Panel on Appeals, 

likewise, is to work together with panel members who may have 

disparate points of view and to issue a decision within a very tight 

time frame. 

My priority as a decisionmaker at the NLRB was always to decide cases quickly, while at the same time addressing all of the 

issues thoroughly and fairly. Those skills should serve me well if 

I am confirmed as Chairman of the Special Panel. As both a Chief 

Counsel and a Member of the NLRB, I was often confronted with 

issues involving both merit systems and anti-discrimination principles since I was responsible for managing my own Federal staff 

and also had co-responsibility with the other Board Members and 

the General Counsel for overall management at the NLRB. 

And finally, in my current position as Deputy General Counsel 

at the FLRA, I am responsible for the overall management of a nationwide field staff of Federal employees. In this position, therefore, 

I am becoming even more familiar with the merit systems and 

anti-discrimination principles that the Chairman of the Special 

Panel on Appeals is charged with addressing. 

The main priority of the Special Panel on Appeals is to decide 

cases presented to it fairly and expeditiously within a tight time 

frame. The statutory procedures that result in cases being presented to the Special Panel are complex. That is because those procedures are the product of a congressional compromise that was designed to maintain a delicate balance between merit systems and 

anti-discrimination principles by providing a third-party administrative tribunal that can reconcile those principles in a way that 

preserves the authority of both the MSPB and the EEOC over the 

areas in which each has the greatest expertise. 

It is, therefore, important to have fair and impartial decisionmakers on the Panel who understand the need both for careful 

legal rationales and expeditious decisions. I believe I have demonstrated my ability to accomplish both of those objectives in my 

career as an adjudicator of labor cases. 

I thank this Committee for its consideration of my nomination, 

and I, of course, will be pleased to answer any questions that you 

may have. 

Senator AKAKA. Thank you very much, Mr. Walsh, for your statement. 

I will begin with the standard questions this Committee asks of 

all nominees and ask you to answer these questions verbally. 

Is there anything you are aware of in your background that 

might present a conflict of interest with the duties of the office to 

which you have been nominated? 

Mr. WALSH. No, sir. 

Ms. BILYEU. No, sir. 

Mr. KENNEDY. No, sir. 

Senator AKAKA. Do you know of anything, personal or otherwise, 

that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you have been 

nominated? 

Mr. WALSH. No, sir. 

Ms. BILYEU. No, sir. 

9 

Mr. KENNEDY. No, sir. 

Senator AKAKA. Finally, do you agree without reservation to respond to any reasonable summons to appear and testify before any 

duly constituted Committee of Congress if you are confirmed? 

Mr. WALSH. Yes, sir. 

Ms. BILYEU. Yes, sir. 

Mr. KENNEDY. Yes, sir. 

Senator AKAKA. Thank you very much for your responses. 

I have some questions here for you. This question is for both Ms. 

Bilyeu and Mr. Kennedy. You both have distinguished careers and 

serve on State pension boards that make investment and policy decisions to provide for public worker retirement. As you know, the 

Federal Retirement Thrift Investment Board makes similar decisions that affect millions of Federal employees. Please discuss how 

your experience has prepared you to serve on this Board. Ms. 

Bilyeu. 

Ms. BILYEU. Thank you, Senator Akaka. My experience in the 

managing of the Public Employees Retirement System in Nevada 

has prepared me, I think, to be a major contributor to the Thrift 

Savings Plan for the Federal workers in that we make investment 

decisions all the time. We manage investment professionals. We 

monitor return numbers. We monitor fees, all of the very same 

things that this Board will be doing on behalf of those that are participating in the various funds approved by Congress. From that 

perspective, being able to lend that expertise to this Board, I think, 

will allow us to provide a greater depth of experience to the Board 

over time. 

Senator AKAKA. Mr. Kennedy. 

Mr. KENNEDY. Yes, Senator Akaka, I think there are several 

areas, and I may have mentioned some in my opening statement, 

but I think from a communications standpoint, I certainly have 

been involved in that area as a Trustee of the State of Georgia. In 

addition, education, coming up with creative ways to educate some 

of the participants in the plan about investments and also just 

about retirement planning in a general sense. And then third, as 

Ms. Bilyeu pointed out, the oversight of investments. We certainly 

have a great deal of experience in that regard. 

The other factor is that she and I have both been involved in several national public pension fund organizations, so therefore, we 

have been able to develop a network of other people leading to best 

practices and things of that nature. 

So I think those are some of the things that we would be able 

to bring to the FRTIB from our State perspectives. 

Senator AKAKA. Thank you very much. 

Mr. Walsh, you have a long record of service at the NLRB which 

administers the National Labor Relations Act, the law governing 

relations between unions and private sector employers. You already 

touched on this, but I would like you to discuss how your experience has prepared you for the Special Panel on Appeals and what 

you will do to further develop your expertise in Federal employment and discrimination law. 

Mr. WALSH. Thank you, Senator. Yes, in terms of my experience, 

I think that in some ways I am uniquely positioned for the Chairman of the Special Panel position in the sense that it was my role 

10 

on the National Labor Relations Board to work with other decisionmakers to carefully craft decisions on labor law issues in an expeditious way, which is, in general, of course, the job of the Chairman 

of the Special Panel. 

In terms of expertise in Federal merit systems and anti-discrimination law, as I said, I have had experience with it as a manager 

in a Federal agency, and I am now, as a manager in an advisory 

capacity at the Federal Labor Relations Authority, learning more 

and more about Federal service law and the principles that apply 

to Federal employees. There is also staff assistance available to the 

Chairman of the Special Panel at both the EEOC and the MSPB, 

and that will be my first priority, to draw upon the vast experience 

at those two agencies to educate myself even more thoroughly on 

civil service principles as well as anti-discrimination principles so 

that I will be ready whenever a case comes before the Special 

Panel. 

Senator AKAKA. Thank you, Mr. Walsh. Ms. Bilyeu and Mr. Kennedy, as you both know, I am a strong advocate for improving financial literacy. Will you please give specific examples of the steps 

you will take as a Board member to increase participants’ education about their investment options? 

Ms. BILYEU. Senator Akaka, the first step, if we are confirmed 

in these positions, that I would want to do is to take a very indepth look at what is the financial literacy education program that 

is currently in place at the TSP, and I know that there have been 

some broad steps taken there, as well as making some of their tools 

a little bit more interactive for individuals. 

I think the first step that I would want to look at implementing 

is broadening how we address those that are non-participants in 

the program, particularly those in the military. As I indicated in 

my opening statement, those that are at the beginning of their careers, those that are very early on, 18, 19, and 20-year-olds, often 

are those that have the hardest time deciding to participate in 

these programs, and they are actually the group that needs to start 

participating early, and our military, I think, is a great example of 

that. We have a very young military, and those that need that participation, we will be focusing on that. 

Financial literacy is very difficult to strike the right balance between how much information you give them and how careful you 

are not to lead them to make particular choices. For me, financial 

literacy means being able to have the individual be able to assess 

what their own risk tolerance is and to learn about the various 

risks of the funds as they go forward. So introducing a risk component to the education process is something that I would want to see 

happen. 

Senator AKAKA. Thank you. Mr. Kennedy. 

Mr. KENNEDY. And just to build on Ms. Bilyeu’s comments, which 

I agree with wholeheartedly, I think there are several things that 

the FRTIB has already started to implement that will help in 

terms of communications within the financial literacy area. Specifically, they have been working to enhance the Web site to make it 

more interactive as a way to get the message out to more and more 

people, and I think that will be something that we will continue to 

work with the staff to continue to develop going forward. 

11 

Second is in the area of the call centers because they have actually set those up, and it is another mechanism specifically they 

have in order to communicate with current participants and hopefully with new participants. As Ms. Bilyeu pointed out, I think one 

of the challenges that the FRTIB and TSP will be confronted with 

is continuing to bring new plan participants into the plan. So that 

is something that will be a goal of mine as well as, I think, of hers 

going forward. 

Senator AKAKA. Thank you very much. 

Ms. Bilyeu, in your answer to this Committee’s prehearing questionnaire, you identified investment performance oversight as an 

area you plan to focus on, if confirmed. Please explain why performance oversight is important to the Thrift fund and its participants. I just want to warn Mr. Kennedy that I am going to ask you 

for a comment on that, too. Ms. Bilyeu. 

Ms. BILYEU. Senator Akaka, from the experience that I have 

seen, both in my current professional career and after review of the 

funds that are available in the Thrift Savings Plan, you want to 

make sure when you are using even index funds, which is what is 

used primarily at the TSP, that your investment managers are following all the terms and conditions that have been set for them. 

There are a lot of layers to that in the investment world, and from 

my perspective, as fiduciaries to the fund, it is our obligation to ensure that those that are actually doing the investments on behalf 

of the individuals have very clear responsibilities to report to us 

how they are doing. Any of their potential issues that may come 

up, we should know about those ahead of time. 

So it is about ensuring that those that have been charged with 

the obligation to actually invest the funds on behalf of the individual members are doing what they are supposed to do, and as a 

fiduciary, I think that is one of my major goals. 

Senator AKAKA. Mr. Kennedy. 

Mr. KENNEDY. Just to build on that comment, I would continue 

to work and sort of monitor and oversee not only the performance 

of the investment management options that are in the program, 

but the stability of the investment management firms providing the 

mutual funds or whatever the various options are. We live in a 

very rapidly changing financial environment. There is a great deal 

of consolidation within the financial services industry. Many of the 

firms, as you know, continue to merge and things of that nature. 

So we really need to have an understanding and feel comfortable 

that the investment management firms that we do employ to provide the options remain strong, as well as some of the comments 

that Ms. Bilyeu made. 

Senator AKAKA. Thank you very much. Senator Voinovich. 

Senator VOINOVICH. Mr. Walsh, I think you are in great shape. 

Senator Akaka asked some good questions. I am going to concentrate on Ms. Bilyeu and Mr. Kennedy, so you can breathe easy. 

Mr. WALSH. Thank you. [Laughter.] 

Senator VOINOVICH. First of all, Ms. Bilyeu, you have a husband 

and a son named Mateo? 

Ms. BILYEU. Mateo is my son. 

Senator VOINOVICH. Bilyeu, it is an interesting name. What derivation is that, do you know? 

12 

Ms. BILYEU. That is a good question, Senator Voinovich. I would 

be happy to get back to you—— [Laughter.] 

Senator VOINOVICH. It is going to have a lot to do with this job. 

[Laughter.] 

Ms. BILYEU. I believe that it is Cajun derivation. It is a French 

derivation that has been misspelled over time, and so we believe 

the background is Cajun. 

Senator VOINOVICH. Well, you will have to excuse me because my 

parents were first generation, and the first question that was always asked at the table was, what is their ethnic background? So 

I play games guessing people’s background. 

You both have a tough job. We do not know where the markets 

are going. Can you share with me who the managers are for the 

respective funds, and what qualifications do you have and how 

would you monitor their performance? In other words, I think 

many believe that we have a bunch of people at the Thrift Board 

that are looking at various stocks and deciding on how the TSP 

should be invested, when actually what the TSP does is hire some 

firms for this function and then they kind of oversee what they are 

doing. I would like your opinion on how do you judge the performance of those people and how do you make sure that the TSP is 

not going down the wrong track. 

Ms. BILYEU. Senator Voinovich, Senator Akaka, from my perspective, when you are looking at investment management firms of any 

type, those that are currently hired by the TSP or, for instance, my 

own pension fund, there are various types of management. When 

you have index managers, which are passive managers managing 

against indexes themselves, the first thing you want to do is make 

sure that they are tracking the index appropriately, that they are 

following the mandate that has been given to them, and that is a 

significant issue for us because tracking error always means performance changes. 

You want to make sure that the team that is involved in the 

oversight of the account is maintained; it stays in place; it is not 

one in which there are a lot of changes. And as Mr. Kennedy indicated, you want to make sure that there is stability in those 

firms—— 

Senator VOINOVICH. I think there are two managing firms now 

for them. 

Ms. BILYEU. I believe one of them is Barclays Global Investors 

(BGI), which is the most significant money manager in the country 

at this point. We actually refer to them sometimes as the 800- 

pound gorilla in the investment management world because they 

are such a very significant firm. It is a very strong firm, with very 

strong performance, particularly in the index world, which is where 

the lion’s share of these funds are. 

Senator VOINOVICH. Mr. Kennedy, please go ahead and comment. 

Mr. KENNEDY. Yes. And just to pick up on that, I really do think 

we need to underscore the stability factor, as well, because certainly we will work with the staff at the FRTIB in reviewing the 

investment returns for the various funds and making sure there is 

not a drift from being the passive style that they selected. So tracking the mandates is going to be vitally important. But I do think 

it is going to be equally as important to make sure that we have 

13 

a great deal of stability for the individuals who are working with 

the FRTIB on the specific choices so there is not a lot of turnover, 

because typically when there is turnover in these firms, then that 

could lead to some performance issues. So I think from that standpoint, it will be important for us to make sure that there is a remaining stability there. 

Senator VOINOVICH. Have you had an opportunity to review their 

performance in the last 2 or 3 years, and is there anything that 

causes you to have some concern about what we are doing? 

Ms. BILYEU. Senator Voinovich, from the perspective of the passive mandates that they have, my personal impression of them is 

that they have tracked their indexes very well. Now, obviously, the 

indexes themselves have suffered as everything has suffered in the 

financial downturns. But being able to capture those returns on the 

way down and then again on the way back up, I believe that they 

have been capable of doing that, and there has not been, other than 

mergers, as Mr. Kennedy spoke of, really not a lot of turnover within those firms. 

Particularly BGI—it is actually called BGI BlackRock, or I cannot remember the merged name at this point—it is a very significant firm, and so from my perspective, I would want to make sure 

that the index team that is in place handling these funds on behalf 

of the members of the Federal Thrift Savings Plan has them first 

and foremost in their minds as they move forward with their mandates. 

Senator VOINOVICH. Great. So basically, from your perspective, 

our funds have come back pretty much like some of the other similar funds? They have done a pretty good job? 

Ms. BILYEU. I would say, yes, they have tracked exactly basically 

what the market has done. The market itself is, of course, extremely volatile, and so from my perspective, I would want to look 

even a little bit closer at that to see how well the individuals who 

participate in those funds have actually done because what you see 

happening with a lot of individual investors is the funds may do 

very well, but the individuals themselves within them, because 

they become concerned about what is going on in the markets, may 

pull out at the wrong times, get back in at the wrong times. So 

there is probably a difference between how your individual investors are doing versus how the index funds themselves are doing. 

Senator VOINOVICH. That gets into the whole issue of the Office 

of Personnel Management’s (OPM) responsibility for education. 

Both of you would probably agree that OPM needs to do much 

more work in that area so people are a little more sophisticated in 

terms of what they are doing, particularly given our current climate. 

Ms. BILYEU. Everyone needs to do a lot more work in education. 

All of us do. 

Senator VOINOVICH. One of the things that you are going to find 

is you are going to be pestered by various people in terms of adding 

to the options that are available. Senator Akaka and I faced real 

pressure to add Real Estate Investment Trusts (REITs) to the TSP. 

They really lobbied, very heavy lobbying, and the Board said no to 

it, noting that there were some options that were available within 

existing TSP funds for the REITs, but the fact was they did not 

14 

think we ought to get into it. I guess as I look back on that, it was 

a very good decision by the Board. 

If you look at the portfolio that is available—you mentioned you 

are both involved in your pension plans, but you are also involved 

in your deferred compensation programs, too, in your respective 

States—do you think that we have enough options available right 

now for our Federal employees? 

Mr. KENNEDY. I would probably say we do, and I am comfortable 

with the options that we currently have and the composition of the 

TSP. And I guess the reason why I say that is you want to make 

sure that you provide enough options but not too many options because when you start to provide too many options, then you really 

need to do a better job educating the participants about what these 

new options are. So I think it adds a whole different sort of element to the process as you start to add a great deal of additional 

options. 

Now, with that said, I do think it is important for us to continue 

to look at new options and new ideas because things do change in 

financial markets. And one of the things I can sort of add to the 

FRTIB is the experience I have had in the alternatives investment 

space, and I am certainly not advocating that the FRTIB or TSP 

go in that direction. But as we look at things such as REITs and 

we look at social responsibility funds and other ideas that kind of 

gravitate to us, I think it will be good to be able to at least take 

a look at it and be able to make some pretty good decisions going 

forward about why we are not going to do that. So I am pretty comfortable with the line-up that we have today. 

Senator VOINOVICH. Ms. Bilyeu. 

Ms. BILYEU. Just adding to what Mr. Kennedy has said, the 

whole concept of the array of funds that you have is to allow the 

individuals, based on how much they want to put into those funds, 

to balance out what their risk tolerance is. Some of them are stock 

funds, some are bond funds, and some are lifestyle funds, and the 

idea is to be able to allow those individuals to match what they believe their risk tolerance is and what their personal investment 

goal is. 

Right now, I think you have a broad array that does do that and 

allows for the diversification that is part of the entire investment 

process. As Mr. Kennedy said, though, you do want to continue to 

look at how that evolves and continues through and, of course, to 

always make decisions for either adding or deleting a fund through 

the process of where you are approaching it from the broadest possible perspective for the most people in your fund overall. 

Senator VOINOVICH. The last comment, Senator, is that several 

years ago, we had a member of the Senate by the name of Peter 

Fitzgerald from the State of Illinois, a banker. I am still asking my 

staff to see if I could get a copy of his speech on the TSP. But one 

of the things he said, for all the people here who are part of the 

TSP program, is that the cost involved to the participants is the 

lowest in the country today. It is amazing. I never really appreciated that. The cost of being involved in the TSP is the lowest perhaps in the world. And it all adds up if you stay in it for many 

years. That is another thing, I think, that ought to be driven home 

15 

with folks, that this is a pretty good operation that they are fortunate to be a part of. 

Thank you very much for your testimony. 

Senator AKAKA. Thank you very much, Senator Voinovich. 

Let me ask Mr. Walsh a question. The Special Panel on Appeals 

has issued only five decisions since 1978. What is your understanding of the role of the Special Panel on Appeals and the responsibilities of the chairman? 

Mr. WALSH. Thank you, Senator. The role is really to act in a 

way as an intermediary and also as kind of a check. It is to ensure 

that both anti-discrimination principles and the civil service or 

merit systems principles are taken into consideration in these 

kinds of cases because we have two agencies, each of which has expertise in its own area. So the Special Panel’s role is really to 

achieve parity between the principles while also preserving the authority of the two agencies over their areas of expertise. 

And in terms of how many cases have been heard, it is true that 

there have been very few cases, but that does not necessarily mean 

that both the chairman and the panel do not have an ongoing role, 

because just the fact that this appeals process and this panel exists 

is a check on each agency in terms of applying the principles that 

are usually the expertise of the other one, to make sure, for example, the MSPB correctly applies anti-discrimination principles and 

the EEOC correctly applies merit systems principles. The fact that 

this process and this panel exists is kind of a check and a balance 

to make sure that happens. 

Senator AKAKA. Thank you very much for your testimonies. At 

this time, there are no further questions. There may be additional 

questions for the record, which will be submitted to you in writing. 

The hearing record will remain open until the close of business tomorrow for Members of this Committee to submit additional statements or questions. 

Ms. Bilyeu, Mr. Kennedy, and Mr. Walsh, I wish you all the best 

of luck as we move forward here. I would tell you that I am impressed with your backgrounds and with your testimony and look 

forward to moving as quickly as we can on confirmation. So thank 

you again, and thank your families and supporters who are here 

with you. Thank you very much. 

Mr. WALSH. Thank you, Senator. 

Mr. KENNEDY. Thank you. 

Ms. BILYEU. Thank you. 

Senator AKAKA. I would now like to call up the nominees for the 

D.C. Superior Court. 

[Pause.] 

Senator AKAKA. I want to welcome everyone to the second part 

of today’s proceedings as this Committee considers the nominations 

of Todd Edelman, Milton Lee, and Anne Smith to be Associate 

Judges of the District of Columbia Superior Court. 

We consistently receive excellent D.C. Court candidates nominated by the President from those recommended by the nonpartisan Judicial Nomination Commission. I am confident that, if 

confirmed, these nominees will join the others who have appeared 

before us in making valuable contributions to the District. 

16 

I would now like to welcome Congresswoman Norton to the Committee and yield for her introduction of our nominees. Congresswoman Holmes Norton, please proceed. 

TESTIMONY OF HON. ELEANOR HOLMES NORTON, A 

DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA 

Ms. NORTON. Thank you, Mr. Chairman, and while I am here, 

may I also thank you for your long and dedicated work for us as 

you get to do not only this but a lot more for the District of Columbia. 

And may I express my thanks especially to Senator Voinovich, 

who is leaving the Senate this year. Senator Voinovich has rendered especially dedicated service to the District of Columbia. He 

was a former mayor, and he never forgot what it was like to be 

mayor of a big city, and he showed every bit of it when he served 

on our committees and in the Senate, and I thank him personally 

for that service. 

For you, Mr. Chairman, and Mr. Voinovich, we have three especially well qualified candidates, as you, Mr. Chairman, have already said, and I will not belabor the point except to introduce 

them briefly. 

Todd Edelman is a clinical Professor of Law at Georgetown University Law Center. He is well qualified for the court. He has been 

chief of the Serious Felony Section of the Public Defender Service 

and has tried in the very court where he is to serve over 60 cases. 

He is a cum laude graduate of Yale University and was a RootTilden Scholar at the New York University School of Law. 

Judge Milton Lee is already a judge, but he is a Magistrate 

Judge on the Superior Court where he would serve. He is a graduate of American University and Catholic University Law School. 

He, too, worked at the Public Defender Service, and I might say, 

Mr. Chairman, that our Public Defender Service is renowned for 

attracting the best and the brightest from across the country. It is 

the best Public Defender Service in the country. He was Deputy 

Trial Chief while he was there. He has been on the faculty as a 

professor at the District of Columbia School of Law. We are particularly grateful in the District that he has spearheaded the development of the District of Columbia Superior Court’s Fathering 

Court Program, considering the duties he will have if he is confirmed. 

And finally, Mr. Chairman, I am pleased to introduce Judge Judith Smith to you today, who is also already a judge, but a Magistrate Judge, and a graduate with high distinction from Pennsylvania State University, a Certified Public Accountant, and a graduate of Georgetown University Law Center. She has had the distinction of already serving as a law clerk to an Associate Judge on 

the Superior Court, so she knows the court she would serve very 

well. She, too, has extensive trial experience with the Public Defender Service of the District of Columbia. 

I do not think you will find better qualified candidates than these 

to serve on our excellent Superior Court, Mr. Chairman. 

Senator AKAKA. Thank you. Thank you very much, Congresswoman Norton. It is always good to see you here. We appreciate 

your being here today to introduce the nominees. 

17 

Ms. NORTON. Thank you, sir. 

Senator AKAKA. Thank you very much. 

Our nominees all have strong legal backgrounds and have devoted much of their careers to public service. Each of them has 

served as an attorney for the D.C. Public Defender Service. Mr. Lee 

has been a Magistrate Judge for the D.C. Superior Court for more 

than a decade, presiding over a wide range of calendars. Ms. Smith 

also is a D.C. Superior Court Magistrate Judge, serving in the 

Court’s Family Division. Mr. Edelman currently is a professor in 

Georgetown Law’s Criminal Justice Clinic, and he practiced civil 

litigation before that. 

I believe these nominees have much to offer the D.C. Superior 

Court, and I hope we can act quickly to confirm them. 

Senator Voinovich, do you have any statement to make? 

Senator VOINOVICH. Yes. Thank you, Mr. Chairman. I want to 

extend a welcome to the nominees and to their families, and I 

thank you for your willingness to serve on the District of Columbia 

Superior Court. 

As Senator Akaka says, we have three experienced attorneys, 

two of whom currently serve as Magistrate Judges, and I know it 

is no surprise for me to say that judges have significant responsibilities. 

Mr. Chairman, I have reviewed each of the nominees’ biographical questionnaires and believe each of them is well qualified to 

serve as Associate Judge for the Superior Court of the District of 

Columbia, and each of them would bring extensive legal experience 

to the bench. Without echoing your remarks about each of these 

nominees’ specific qualifications, I do want to point out that they 

all have a history of public service as each of them has gained practical legal experience working for the District of Columbia Public 

Defender Service. I think it is also notable that they have each 

taught law students practical trial court skills in Georgetown University’s law clinics. And I understand that both Judge Smith and 

Judge Lee have served well as Magistrate Judges, and I also note 

that Judge Smith hails from my home State of Ohio. It is good to 

have a Buckeye before me. 

I look forward to hearing from each of you about the reasons why 

you think that you are qualified, but I already know that. I hope 

the Committee will vote on your nominations in the very near future. Thank you. 

Senator AKAKA. Thank you very much, Senator Voinovich. 

Each nominee has filed responses to a biographical and financial 

questionnaire submitted by the Committee. Without objection, this 

information will be made part of the hearing record, with the exception of the financial data, which will be kept on file and made 

available for public inspection in the Committee office. 

Our Committee rules require that all witnesses at nomination 

hearings give their testimony under oath. Therefore, at this time, 

I ask you to please stand and raise your right hand. 

Do you swear that the testimony you are about to give this Committee is the truth, the whole truth, and nothing but the truth, so 

help you, God? 

Mr. LEE. I do. 

Ms. SMITH. I do. 

18 

1The prepared statement of Mr. Lee appears in the Appendix on page 110. 

Mr. EDELMAN. I do. 

Senator AKAKA. Thank you. Please note for the record that the 

witnesses answered in the affirmative. 

Judge Lee, I understand you have family here with you today. 

I would like to give you an opportunity to introduce them at this 

time. 

TESTIMONY OF MILTON C. LEE, JR.1 TO BE AN ASSOCIATE 

JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA 

Mr. LEE. Thank you very much, Mr. Chairman and Senator 

Voinovich. It is certainly my pleasure. I am honored to be here before you today. 

I would like to introduce the members of my family, and I would 

like to say first and foremost that I really could not be where I am 

today if I did not have the type of support that they have offered 

to me. I know they have sacrificed on many occasions so that I can 

be in a position to continue to serve the citizens of the District of 

Columbia. 

Seated immediately behind me is my wife, Claudia. My sister is 

in the audience, as well, Sandra Baumgardner, her daughter, 

Deanna, and her grandson, John. My son, Joshua, is a freshman 

at Temple University, and he is unable to be here today because 

he indicated to me last week that he had study commitments and 

exams to take care of, and while I was a little shocked at the maturity of that response, I was very pleased by it. So he is not here. 

He is here in spirit, quite frankly. 

I would also like to say that there are many other people in the 

gallery who have been supportive, as well. My staff at the courthouse has really made it a pleasure for me to serve in the capacity 

that I serve. My secretary, Michelle Fitzgerald, is here. My current 

law clerk, Sarah Acker, and my current courtroom clerk, Ronnie 

Mitchell, are all present, as well, and I would like to say publicly 

that these are the folks who are really the backbone, the workforce 

of the Superior Court. They often do not get the type of credit that 

they deserve, and so I want to publicly thank them for everything 

that they have done for me during my time on the court. 

I would also like to thank Chief Judge Lee Satterfield, who has 

supported me in every endeavor since I have joined the court. Also 

present is Judge Emmett Sullivan from the U.S. District Court 

here in the District of Columbia. He is the Chair of the Judicial 

Nomination Commission, and that commission was responsible for 

forwarding my name to the White House. I would also like to thank 

President Barack Obama for the nomination that I received for the 

position of Associate Judge. 

I am fortunate. I am blessed, I think, in many respects, and more 

than just a little humbled to be in the position to come before you 

on this nomination. I am born and raised here in the District of Columbia. I am educated by the city school system. I graduated from 

American University and received my law degree from Catholic 

University. Upon graduation, I joined the Public Defender Service 

here in the District of Columbia and practiced with that agency for 

19 

1The prepared statement of Ms. Smith appears in the Appendix on page 137. 

9 years in the very court that I now work with and I hope to continue to work with. 

I have also been a faculty member at the University of the District of Columbia School of Law, where I have taught in the Juvenile Law Clinic, and I have transitioned over to many substantive 

classroom experiences, teaching evidence, criminal procedure, and 

criminal law, to name a few. 

I joined the court in 1997 as a Magistrate Judge, and I have 

served in every single branch of the court, and I think that experience has served me well over the years. 

One of the best experiences I have had with the court has been 

the work that I have had on the Fathering Court Initiative, and 

that is a program that is designed to help fathers coming home 

from a period of incarceration reunite with their families so that 

they are fathers in every sense of the word. We assist them in getting employment. We provide educational services and job training. 

We make sure that they are current on their child support, that 

they are reconnected with their children, and that they do not reoffend. Those are the things that this program has done over the 

course of the last 4 years, and I am proud to say that I have been 

a part of that. 

My professional life has been dedicated to serving the citizens of 

the District of Columbia through our judicial system. If confirmed, 

I would be honored to be in a position to continue that service as 

an Associate Judge. I recognize that people come to the Superior 

Court at a time when there is a great deal of anxiety, when they 

are looking sometimes for answers, for a solution to the things that 

trouble them the most. I think they deserve to be treated with dignity and respect. They should have their cases decided efficiently 

and fairly, and we should exercise the greatest amount of professionalism in delivering that justice to them. 

That is the commitment that I have made to the citizens of the 

District of Columbia and the commitment that I make to this Committee, and if confirmed, that is the way that I will approach delivering justice for our citizens. 

I want to thank the Committee and its Members. Its staff has 

been very professional and courteous. They have given us every 

piece of assistance we could possibly ask for. I look forward to answering any questions that you may have about my qualifications 

to continue service as an Associate Judge. 

Senator AKAKA. Thank you very much, Judge Lee. I want to say, 

it is good to have your family here, as well as those who support 

you. 

Judge Smith, will you please introduce your family and continue 

with your statement. 

TESTIMONY OF JUDITH ANNE SMITH 1 TO BE AN ASSOCIATE 

JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA 

Ms. SMITH. Thank you, Senator Akaka and Senator Voinovich. I 

want to thank you for the opportunity to appear before you today 

to have you consider my qualifications for a position as an Associate Judge on the D.C. Superior Court. I am honored to be nomiVerDate Nov 24 2008 09:48 Aug 03, 2011 Jkt 057326 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 P:\DOCS\57326.TXT SAFFAIRS PsN: PAT
20 

nated and want to thank the Judicial Nomination Commission, and 

in particular the Chair of the Commission, the Hon. Emmett Sullivan, for recommending me to the White House, and finally President Barack Obama for nominating me. I also want to thank the 

Senate Committee staff for their professionalism and assistance 

throughout this process. 

Before I introduce my family, I also would like to thank Congresswoman Norton—I know she may have left already—for her 

kind remarks and introduction, and Chief Judge Lee Satterfield 

and several other Superior Court Judges for their advice and guidance. 

I do want to introduce my family who traveled from Florida to 

be here with me today: My parents, Richard and Sarah Smith, and 

my sister, Christine Carter, all three of whom have set a wonderful 

example for me and provided their love and support. 

I especially want to acknowledge my son, Jalen Pierce Smith, 

who turns six just next week, who is very excited about being here 

today. I would also like to thank my significant other, Lonnie Spencer, although he is unable to be here today. 

I do also want to acknowledge my Judicial Administrative Assistant, Patricia Harris, my law clerk, Helen Pilstrom, and my courtroom clerk, Jonathan Hopkins, who have been so helpful to me in 

my first year and a half as a Magistrate Judge. Also, there are a 

number of friends, former colleagues, and role models here or 

watching the hearings who have supported me both professionally 

and personally throughout my years of public service in the District 

of Columbia. I truly appreciate their advice, support, and encouragement. 

As Senator Voinovich noted, I was born in Columbus, Ohio, 

where I attended public schools. I received my bachelor’s degree in 

accounting from the Pennsylvania State University and became a 

Certified Public Accountant. I worked for Price Waterhouse for a 

number of years in both Boston and Columbus. I then relocated 

here to Washington, DC, more than 20 years ago to attend Georgetown University Law Center and embark on a career in public interest law. 

After graduating from Georgetown, I was fortunate to clerk for 

an exceptional jurist, the Hon. A. Franklin Burgess, Jr., an Associate Judge, D.C. Superior Court, for whom I have great admiration and respect. 

Following my clerkship, I spent the majority of the next 15 years 

in public service in the District of Columbia. I served as a Special 

Education Attorney, a Juvenile Services Attorney, and a Supervising Attorney at the Public Defender Service (PDS) for the District of Columbia and also as an attorney for the District of Columbia Public Schools and the Office of the State Superintendent of 

Education for the District of Columbia. I have appeared before dozens of current Superior Court judges as well as several Federal 

court judges over the years as I worked on special education and 

juvenile justice issues. 

I then had the great fortune to be appointed as a Magistrate 

Judge in the Family Court of D.C. Superior Court in September 

2008, presiding over primarily abuse and neglect proceedings, as I 

still do now. In this position, I have had the privilege of serving 

21 

1The prepared statement of Mr. Edelman appears in the Appendix on page 153. 

the citizens of the District of Columbia. If confirmed, I will continue to serve with integrity and provide fair, efficient, and respectful justice to those who come before me. 

I am honored to be considered for this position and look forward 

to answering any questions the Committee may have about my 

qualifications. Thank you. 

Senator AKAKA. Thank you very much, Judge Smith. I want to 

add my welcome to you, your family, and your supporters, as well. 

Now we will hear from Mr. Edelman. Please introduce your family and then give your statement. 

TESTIMONY OF TODD E. EDELMAN 1 TO BE AN ASSOCIATE 

JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA 

Mr. EDELMAN. Thank you, Mr. Chairman and Senator Voinovich. 

I am grateful for and honored by the opportunity to appear before 

you today as a nominee to be an Associate Judge on the Superior 

Court of the District of Columbia. 

I want to begin by introducing my family: My wife, Marisa 

Nightingale, who is directly behind me, along with our daughter, 

Nora, who is on the second day of her fifth birthday party today. 

Our son, Jacob, was not showing this body the respect that it deserved, so he is now in the hallway. [Laughter.] 

My mother and stepfather, Sybil and Lewis Mitchell, are also 

here, up from Florida, as well as my father-in-law and mother-inlaw, Stuart and Elena Nightingale. And while I have a lot of people 

to thank today, I know that I am sitting in front of you primarily 

because of my family’s support, encouragement, and patience. 

A number of my friends, colleagues, and students are also here 

in the gallery, and I would like to thank them not only for their 

support today, but for their inspiration and their challenges and at 

times their entertainment over the last 15 years. 

I would also like to thank the District of Columbia Judicial Nomination Commission and Judge Sullivan for recommending me to 

the White House and President Barack Obama for nominating me. 

And finally, I would like to thank the Committee for considering 

my nomination so expeditiously and the Committee staff for their 

hard work in preparing for this hearing on such short notice and 

for the courtesy they have shown me during this process. 

I went to law school 15 years ago to pursue a career in public 

service, and I feel fortunate that I have had the opportunity to do 

so. I have dedicated my legal career to protecting the principles 

that access to justice should be equally available to everyone in our 

community and that the quality of representation provided in court 

should not depend on income, wealth, or connections. 

As a public defender at the Public Defender Service and the 

Georgetown University Law Center’s Criminal Justice Clinic, I represented indigent men and women in D.C. Superior Court for over 

12 years, work that I have found to be both a daunting responsibility and a unique privilege. I have also spent much of my career 

teaching other public defenders and legal service providers and 

other attorneys and law students who work on behalf of low-income 

people here in Washington. 

22 

As a clinical professor at Georgetown Law, I aim to instill in my 

students a passion for using their law degrees to help those who 

need it the most. The same commitment to public service and the 

principle of equal justice under the law that motivated me to go to 

law school and to take these positions at PDS and at Georgetown 

has motivated me also to seek appointment to the bench. 

As I contemplate the next step in my career, I cannot help but 

think about the way that I started my career, which was as a law 

clerk to Judge William Bryant in the U.S. District Court for the 

District of Columbia. Judge Bryant was a legendary trial lawyer, 

a respected and historic jurist, and, above all else, one of the warmest and kindest men I have ever met. Judge Bryant may have 

taught me more in that one year than I have learned since, and 

he set an example that I will seek to emulate should I be confirmed. 

Judge Bryant was intellectually curious, committed to applying 

the law impartially and fairly, and dedicated to showing equal respect to all parties. If I am confirmed, after my career on the bench 

is over, I hope to be remembered the way Judge Bryant is remembered, as a judge who treated litigants with dignity and his role 

with humility. 

I am quite moved to be here sitting as a nominee for a judgeship 

on the D.C. Superior Court. That is the court where I grew up as 

an attorney, where I learned much of what I know about the law 

and being a lawyer, about winning and losing, and about the joys 

and challenges of public service. I am humbled to be considered for 

this position, and I thank you again for considering my qualifications. 

Senator AKAKA. Thank you very much, Mr. Edelman. It is wonderful to have all of your loved ones here and those who are supporting you. I am sure they are proud of all you have accomplished. 

Let me continue with the standard questions this Committee 

asks of all nominees. I would like you to answer each of the questions. 

Is there anything you are aware of in your background that 

might present a conflict of interest with the duties of the office to 

which you have been nominated? Mr. Lee. 

Mr. LEE. No, sir, Mr. Chairman. 

Senator AKAKA. Ms. Smith. 

Ms. SMITH. No, sir. 

Senator AKAKA. Mr. Edelman. 

Mr. EDELMAN. No, Mr. Chairman. 

Senator AKAKA. Do you know of anything, personal or otherwise, 

that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you have been 

nominated? Mr. Lee. 

Mr. LEE. No, sir. 

Senator AKAKA. Ms. Smith. 

Ms. SMITH. No, sir. 

Senator AKAKA. Mr. Edelman. 

Mr. EDELMAN. No, sir. 

Senator AKAKA. Do you agree without reservation to respond to 

any reasonable summons to appear and testify before any duly constituted committee of Congress if you are confirmed? 

23 

Mr. LEE. Yes, sir. 

Ms. SMITH. Yes, sir. 

Mr. EDELMAN. Yes, sir. 

Senator AKAKA. Thank you very much. 

This is to all three of you on the panel. I see that you are former 

D.C. public defenders. I commend your decision to serve those who 

may be unable to afford legal representation. How did your experience as a public defender shape your sense of justice and your approach to later work? Mr. Edelman, I would like to start with you. 

Mr. EDELMAN. Thank you. Being a public defender has obviously 

been the bulk of the work I have done as an attorney, and it has 

shaped much of the way I see the law. I think the thing that has 

struck me above all else is the importance of having not just competent counsel, but excellent counsel representing those who are in 

the situation. People who are charged with crimes are facing very 

difficult circumstances, and many times that is appropriate, facing 

lengthy jail terms. It is also appropriate that for people who are in 

that situation, they receive counsel that is not just minimally competent by some constitutional standards, but our goal should be 

that everyone who is in that situation, charged with a crime, have 

counsel who can represent them in a way that someone watching 

their trial or watching those court proceedings would think, I cannot tell whether that person could afford an attorney or whether 

they had an attorney appointed for them. So it has very much 

shaped my view of the role of counsel and the importance of having 

counsel in those situations. 

In addition, I think that being a public defender, people think of 

us sometimes as cynics about the system. I think it is something, 

those people who take on this role are actually idealists about the 

system, and I am an idealistic person with regard to the system, 

as well. I think that part of our role is to explain to our clients who 

may well not trust the system the importance of doing so because 

we need to do that so that we can do our jobs, and I think that 

is an important role of the judge, as well. The judge needs to earn 

the trust of all people appearing in front of him or her in order to 

play the role the judge needs to play in the system. 

Senator AKAKA. Thank you. Judge Smith. 

Ms. SMITH. Thank you. I do agree with the comments Mr. 

Edelman made, certainly, about competent counsel. I would also 

add that during my experience, primarily, I represented teenagers 

who were involved in the juvenile justice system who also had special education needs, and I had oftentimes a fairly high caseload 

in terms of the students I was working with. 

I think one of the many things that I learned from being a public 

defender is that while I may have many clients, the case that the 

respondent had was really the one and only thing that was on his 

mind, and to slow down, use patience in both explaining the process to him as well as making sure that he had my full attention. 

I see that carry over into the work I do in the Family Court, where 

I often have very emotional families in front of me, and so it is very 

important for me to realize that while I may have more than one 

case on any day, it is the only case they have and it is very important for them that they have my focus and respect during those 

proceedings, and that is something that I find very important. 

24 

Senator AKAKA. Thank you. Judge Lee. 

Mr. LEE. One of the things that I learned as a young lawyer at 

the Public Defender Service was the importance of representing individuals so that when they got through with their litigation, they 

felt like they were represented completely and they had a sense 

that even if the outcome was not the outcome that they wished for 

or desired, they had a sense of fairness about the process. 

So as I have transitioned from the Public Defender Service into 

an academic life and now a judicial life, my goal really across the 

board is to make sure that people who come before me feel as 

though they were dealt with fairly and they understand the process 

by which we reached a decision, even if they may not agree with 

that process. And that requires that you treat people as individuals 

and not as cases that come before you. They are not defined solely 

by what they are charged with or the litigation that brings them 

to the court. There is a bigger picture that is required. 

I think the system that we have is the greatest system in the 

world, and it is great because everyone takes their role seriously 

and they work to the best of their capability to make the results 

fair and just. 

Senator AKAKA. Thank you. 

Mr. Edelman, the role of a judge is very different from the role 

of an advocate and will be relatively new to you. Please discuss 

how you will transition to the role of an impartial decisionmaker. 

Mr. EDELMAN. Thank you, Mr. Chairman. Obviously, as you 

pointed out, the decision to go from being an advocate, as I have 

been in my various jobs, and to apply for the bench is a decision 

to take on a different role and a broader role than I have had before. I think that the key to doing that is to seek out mentorship 

on the court. 

There are many others on the court who have been advocates in 

the same sense that I have, who have been defense lawyers or public defenders, and many who have been prosecutors or litigators in 

private practice. All of them have made the transition, I have 

heard, with some bumps along the way, from beginning to look at 

things from the point of view of a judge rather than from an advocate, and I think in this and in other areas, the wisest course for 

me will be to seek out their counsel and discuss how they did it. 

I know that, obviously, I am going to be approaching situations 

differently. I am not going to be approaching situations thinking 

about what is best for my client, but thinking about the interests 

of all parties, all litigants, and, of course, what is just, and that is 

a change in mindset that I will seek out counsel on. 

Senator AKAKA. Thank you. 

Judge Smith, as a Magistrate Judge for the D.C. Family Court, 

you know that courtrooms can often be emotionally charged places. 

How have you maintained a productive courtroom environment? 

Ms. SMITH. Mr. Chairman, sometimes it is a difficult balance. We 

have a high volume of cases, and we have a lot of emotional families in front of us. But it is truly important to make sure, as I mentioned before, that everyone feels like their case is what my focus 

is at that time. And so I do my best to schedule so that I know 

they have the appropriate time to have their case heard and be 

heard, and I try to work the best I can in terms of my patience and 

25 

calmness in the hearing so that in some ways that may help calm 

them down. 

I also think it is important that they, again, have the opportunity 

to be heard as well as have the process explained to them in clear, 

non-legal language, as many of the families certainly do not have 

their own knowledge of the law, and that if they need any opportunity to ask questions, they do so and consult with their counsel. 

So far, I feel like I have been successful in that. Thank you. 

Senator AKAKA. Thank you. 

Judge Lee, attention to detail is critical for any judge. If a mistake goes unnoticed, it may directly impact the life of someone appearing before you. Please describe the steps you have taken to 

minimize the number of errors that occur in your courtroom. 

Mr. LEE. Senator, I will be the first to tell you that I am not a 

perfect soul, and recognizing that I am not a perfect soul means 

that I have to rely on others sometimes to point out what I can do 

better and when I have made mistakes. I work very closely with 

my courtroom staff, my chambers staff, to make sure that what I 

do is done correctly and that if there is a mistake out there, we correct it as quickly as we can. 

One of the benefits of working in the Superior Court, notwithstanding how busy our courthouse is, is that our Chief Judge and 

our presiding judges have committed themselves to putting in place 

a process that minimizes those mistakes. And so every case that 

gets reviewed in a courtroom is reviewed by our quality control 

staff before entries are made in the record to make sure that it is 

accurate. We have a recording system that we can listen to simultaneously or contemporaneously with what goes on in the courtroom. So we are able to pick up on errors when they are brought 

to our attention. 

These are all things that we all have to rely on because we understand that we are not perfect at what we do, but we make every 

effort to find a perfect result as often as we possibly can. 

Senator AKAKA. Thank you very much, Judge Lee. Senator 

Voinovich, your questions, please. 

Senator VOINOVICH. In terms of public defenders, all of you are 

going to have people appearing before you, and if you ascertain 

that the person who is appearing before you has counsel who is not 

competent, how will you handle something like that? 

Mr. EDELMAN. It is a difficult situation because obviously there 

are a lot of pressures on the court in terms of getting people to go 

onto the list to be court-appointed counsel. I think that what many 

judges do in that situation is, first, ask the attorney’s client, are 

you satisfied with the work of your attorney? In some situations, 

the client will respond, no, I am not, and the judge will—— 

Senator VOINOVICH. Would you do that right in the beginning, 

before the trial began? 

Mr. EDELMAN. Yes, I would try to do that at the earliest possible 

time. 

Senator VOINOVICH. OK. 

Mr. EDELMAN. And the second thing I was going to say was in 

those situations, I think it is imperative when a judge has a concern about the quality of counsel that the concern be raised as 

early in the history of the case as possible so you do not get into 

26 

a situation where you have an attorney actually in a trial representing somebody, not performing competently. That puts that 

person at risk and puts any verdict that might be reached at risk. 

Senator VOINOVICH. Ms. Smith. 

Ms. SMITH. Thank you, Senator Voinovich. In echoing slightly 

what Mr. Edelman has said, I think it is important to reach out 

to the participant to determine what the issue may be. I have had 

one such instance where a litigant raised a question about counsel. 

They were confused about some things and wanted the opportunity 

to have the court explain it to them, which I did with parties 

present, and then an opportunity to say themselves whether they 

wanted to continue on with their counsel. As Mr. Edelman indicated, we do have mentoring attorneys, as well, and the attorneys 

that are on the panel have the opportunity to get additional training, if needed, if they are not up to the standards that are expected. And so there are opportunities to address that situation. 

Senator VOINOVICH. Mr. Lee. 

Mr. LEE. Senator, one of the important functions of, I think, 

judges in the system that we have, to make sure that it works at 

the level that we expect from it, is that everyone does what they 

are committed to doing. We have to have good judges. We have to 

have good prosecutors. We have to have good defense lawyers. And 

I think judges have to oversee all of that. 

In our courthouse, we are, I think, in a unique position, where 

we have panels of lawyers who serve in each of our branches, and 

they have been pre-screened and they apply and they are reviewed 

by the judges and committees, and there are Continuing Legal 

Education requirements that they all must meet. These are all core 

or minimum requirements that we require of the lawyers that appear before us. And part of our obligation is to make sure that after 

they meet those minimum qualifications, they do what needs to be 

done on behalf of the clients for us. And if they do not, then we 

have to respond to that. 

Senator VOINOVICH. In other words, do you have a procedure 

where you screen the people who would represent indigent clients 

beforehand? Then you have a pool of individuals that are eligible 

that would step forward. So there is some screening before somebody comes in. 

Mr. LEE. That is absolutely correct. We refer to it as the panel 

system, and each branch of the court, Family Court and the Criminal Court, have panels and designated areas of representation. The 

lawyers apply to be on the panel. They are screened by a committee that the Chief Judge has created—— 

Senator VOINOVICH. This takes care of the indigent people. 

Mr. LEE. Yes, it does. 

Senator VOINOVICH. But you also are going to have people appearing before you who just have lousy lawyers. [Laughter.] 

Mr. LEE. That happens, as well. It is not unique to those that 

are poor. 

Senator VOINOVICH. But you still go through the process with 

them, are you happy with this, and so on and so forth? 

Mr. LEE. That is correct. We make sure that the lawyers that 

come before us are lawyers that are capable of functioning at the 

27 

level required for the type of case that they have. I think that is 

the responsibility of every judge. 

Senator VOINOVICH. Well, it seems to me that you have all had 

some great experiences and all seem to be fairly qualified to take 

the jobs that you are seeking. 

Mr. Chairman, I have no further questions. 

Senator AKAKA. Well, thank you very much, Senator Voinovich. 

I want to thank all of you. There are no further questions at this 

time. There may be additional questions for the record, which will 

be submitted to you in writing. The hearing record will remain 

open until the close of business tomorrow for Members of this Committee to submit additional statements or questions that they may 

have for you. 

It is my hope that this Committee and the Senate will be able 

to act quickly on your nominations. We look forward to that happening. And again, thank you very much for being here. Thank you 

for your families being here and your supporters, as well. 

This hearing is adjourned. 

[Whereupon, at 3:39 p.m., the Committee was adjourned.] 

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