S. HRG. 110–138

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

FEBRUARY 6, MARCH 13, APRIL 11, JUNE 20, AND JULY 19, 2007

PART 1

Serial No. J–110–8

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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37–658 PDF 2007

S. HRG. 110–138

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

FEBRUARY 6, MARCH 13, APRIL 11, JUNE 20, AND JULY 19, 2007

PART 1

Serial No. J–110–8

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

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 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

February 6, 2007

STATEMENT OF COMMITTEE MEMBER 

Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 109

PRESENTERS 

Byrd, Hon. Robert, a U.S. Senator from the State of West Virginia presenting 

John Preston Bailey, Nominee to be District Judge for the Northern District 

of West Virginia ................................................................................................... 3

Capito, Hon. Shelly Moore, a Representative in Congress from the State 

of West Virginia presenting John Preston Bailey, Nominee to be District 

Judge for the Northern District of West Virginia ............................................. 5

STATEMENTS OF THE NOMINEES 

Bailey, John Preston, Nominee to be District Judge for the Northern District 

of West Virginia ................................................................................................... 7

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

Wright, Otis D., II, Nominee to be District Judge for the Central District 

of California .......................................................................................................... 37

Questionnaire .................................................................................................... 38

Wu, George H., Nominee to be District Judge for the Central District of 

California .............................................................................................................. 63

Questionnaire .................................................................................................... 64

SUBMISSIONS FOR THE RECORD 

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

statement .............................................................................................................. 103

Rockefeller, Hon. John D., IV, a U.S. Senator from the State of West Virginia, 

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

March 13, 2007

STATEMENT OF COMMITTEE MEMBER

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 113

PRESENTERS 

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

Halil Suleyman Ozerden, Nominee to be District Judge for the Southern 

District of Mississippi .......................................................................................... 114

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Halil Suleyman Ozerden, Nominee to be District Judge for the Southern 

District of Mississippi .......................................................................................... 115

STATEMENTS OF THE NOMINEES 

Kapala, Frederick J., Nominee to be Distict Judge for the Northern District 

of Illinois ............................................................................................................... 184

Questionnaire .................................................................................................... 185

Page

IV

Ozerden, Halil Suleyman, Nominee to be District Judge for the Southern 

District of Mississippi .......................................................................................... 118

Questionnaire .................................................................................................... 119

Settle, Benjamin Hale, Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 154

Questionnaire .................................................................................................... 155

SUBMISSIONS FOR THE RECORD 

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

statement .............................................................................................................. 224

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, prepared 

statement .............................................................................................................. 234

APRIL 11, 2007

STATEMENT OF COMMITTEE MEMBER

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 239

PRESENTER 

Lugar, Hon. Richard, a U.S. Senator from the State of Indiana presenting 

Joseph A. Van Bokkelen, Nominee to be District Judge for the Northern 

District of Indiana ................................................................................................ 237

STATEMENTS OF THE NOMINEES 

Livingston, Debra Ann, Nominee to be Circuit Judge for the Second Circuit .... 241

Questionnaire .................................................................................................... 242

Mauskopf, Roslynn Renee, Nominee to be District Judge for the Eastern 

District of New York ............................................................................................ 276

Questionnaire .................................................................................................... 277

Sullivan, Richard Joseph, Nominee to be District Judge for the Southern 

District of New York ............................................................................................ 307

Questionnaire .................................................................................................... 308

Van Bokkelen, Joseph S., Nominee to be District Judge for the Northern 

District of Indiana ................................................................................................ 336

Questionnaire .................................................................................................... 337

QUESTIONS AND ANSWERS 

Responses of Roslynn Renee Mauskopf to questions submitted by Senator 

Feingold ................................................................................................................ 377

SUBMISSION FOR THE RECORD 

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York, 

prepared statement .............................................................................................. 385

JUNE 20, 2007 

STATEMENTS OF COMMITTEE MEMBERS

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 389

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

statement .............................................................................................................. 519

PRESENTERS 

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina presenting William Linday Osteen, Jr., Nominee to be District Judge for the 

Middle District of North Carolina, and Martin Karl Reidiner, Nominee 

to be District Judge for the Western District of North Carolina ..................... 393

Dole, Hon. Elizabeth, a U.S. Senator from the State of North Carolina presenting William Lindsay Osteen, Jr., Nominee to be District Judge for 

the Middle District of North Carolina, and Martin Karl Reidinger, Nominee 

to be District Judge for the Western District of North Carolina ..................... 390

Page

V

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting Janis Sammartino, Nominee to be District Judge for the Southern 

District of California ............................................................................................ 394

Inhofe, Hon. James M., a U.S. Senator from the State of Oklahoma presenting Timothy D. DeGiusti, Nominee to be District Judge for the Western 

District of Oklahoma ............................................................................................ 391

STATEMENTS OF THE NOMINEES 

DeGiusti, Timothy D., Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 450

Questionnaire .................................................................................................... 451

Osteen, William Lindsay, Jr., Nominee to be District Judge for the Middle 

District of North Carolina ................................................................................... 395

Questionnaire .................................................................................................... 397

Reidinger, Martin Karl, Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 421

Questionnaire .................................................................................................... 422

Sammartino, Janis Lynn, Nominee to be District Judge for the Southern 

District of California ............................................................................................ 479

Questionnaire .................................................................................................... 480

JULY 19, 2007

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cardin, Hon. Benjamin, a U.S. Senator from the State of Maryland ................. 521

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

statement .............................................................................................................. 702

PRESENTERS 

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

Sharion Aycock, Nominee to be District Judge for the Northern District 

of Mississippi ........................................................................................................ 558

Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Jennifer Elrod, Nominee to be Circuit Judge for the Fifth Circuit ....................... 525

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Jennifer Elrod, Nominee to be Circuit Judge for the Fifth Circuit .... 525

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Sharion Aycock, Nominee to be District Judge for the Northern District 

of Mississippi ........................................................................................................ 522

Murray, Hon. Patty, a U.S. Senator from the State of Washington presenting 

Richard Jones, Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 523

STATEMENTS OF THE NOMINEES 

Elrod, Jennifer Walker, Nominee to be Circuit Judge for the Fifth Circuit ....... 528

Questionnaire .................................................................................................... 529

Jones, Richard, A., Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 565

Questionnaire .................................................................................................... 566

Aycock, Sharion, Nominee to be District for the Northern District of Mississippi .................................................................................................................. 610

Questionnaire .................................................................................................... 611

QUESTIONS AND ANSWERS 

Responses of Sharion Aycock to questions submitted by Senator Cardin .......... 652

Responses of Jennifer Elrod to questions submitted by Senators Cardin, Durbin, Feinstein and Leahy ..................................................................................... 655

Responses of Richard A. Jones to questions submitted by Senator Cardin ........ 699

Page

VI

ALPHABETICAL LIST OF NOMINEES 

Aycock, Sharion, Nominee to be District Judge for the Northern District 

of Mississippi ........................................................................................................ 610

Bailey, John Preston, Nominee to be District Judge for the Northern District 

of West Virginia ................................................................................................... 7

DeGiusti, Timothy D., Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 450

Elrod, Jennifer Walker, Nominee to be Circuit Judge for the Fifth Circuit ....... 528

Jones, Richard, A., Nominee to be District Judge for he Western District 

of Washington ....................................................................................................... 565

Kapala, Frederick J., Nominee to be Distict Judge for the Northern District 

of Illinois ............................................................................................................... 184

Livingston, Debra Ann, Nominee to be Circuit Judge for the Second Circuit .... 241

Mauskopf, Roslynn Renee, nominee to be District Judge for the Eastern 

District of New York ............................................................................................ 276

Osteen, William Lindsay, Jr., Nominee to be District Judge for the Middle 

District of North Carolina ................................................................................... 395

Ozerden, Halil Suleyman, Nominee to be District Judge for the Southern 

District of Mississippi .......................................................................................... 118

Reidinger, Martin Karl, Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 421

Sammartino, Janis Lynn, Nominee to be District Judge for the Southern 

District of California ............................................................................................ 479

Settle, Benjamin Hale, Nominee to be District Judge for the Western District 

of Washington ....................................................................................................... 154

Sullivan, Richard Joseph, Nominee to be District Judge for the Southern 

District of New York ............................................................................................ 307

Van Bokkelen, Joseph S., Nominee to be District Judge for the Northern 

District of Indiana ................................................................................................ 336

Wright, Otis D., II, Nominee to be District Judge for the Central District 

of California .......................................................................................................... 37

Wu, George H., Nominee to be District Judge for the Central District of 

California .............................................................................................................. 63

(1)

NOMINATIONS OF JOHN PRESTON BAILEY, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE NORTHERN DISTRICT OF WEST VIRGINIA; OTIS D. WRIGHT, II, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE CENTRAL 

DISTRICT OF CALIFORNIA; AND GEORGE H. 

WU, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE CENTRAL DISTRICT OF CALIFORNIA 

TUESDAY, FEBRUARY 6, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:37 p.m., in room 

226, Dirksen Senate Office Building, Hon. Patrick J. Leahy (Chairman of the Committee) presiding. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good afternoon. I apologize for the voice. I 

guess I’m just not used to cold weather, or at least not in Washington. 

We’re holding our first confirmation hearing of the new Congress 

for three nominations for important lifetime appointments to Federal District Courts. The nominees before us today, John Preston 

Bailey for the Northern District of West Virginia, Otis D. Wright 

for the Central District of California, and George H. Wu of the Central District of California, each come to us with the support of their 

home State Senators. 

I know Senators Feinstein, Boxer, and Rockefeller would have 

liked to have been here today to introduce the nominees, but 

there’s a closed, members-only briefing on the National Intelligence 

estimate that was issued last week on the situation in Iraq, and 

they were there. Rather than reschedule this—I know all of you 

made plans—we wouldn’t. 

We made some progress. At our first executive business meeting, 

the Judiciary Committee reported out five judicial nominations 

about 2 weeks after they were sent to us. 

Three of these were vacancies determined by the Administrative 

Office of the U.S. Courts to be judicial emergencies. All five are 

2

among those returned to the President without Senate action at 

the end of last Congress. 

I should note that there are no objections from the Democratic 

side, but apparently when the Republican Senators objected to 

going forward with one of the President’s judicial nominees, or a 

couple of them, in September and December, it held it all up. 

In any event, we pulled them back up. Five of them were confirmed by the Senate, and it showed it can be done. Judge Wood 

was the first one confirmed this year. Both Senators Chambliss and 

Isaacson were concerned about him, and we were able to do it. 

Senators Zinhoff and Coburn were concerned about Judge 

Freizell. They had hoped to get him confirmed last year and they 

said they knew that the hold was on their side of the aisle, which, 

for those of you who don’t understand it, when you’re getting down 

toward the end of the session, any Senator, either party, can basically hold things up. So, they had. 

I felt that they should have gone through, and I have assured 

those four Senators I would put them on the agenda immediately 

this year, and they were. Senator Feinstein and Senator Boxer 

worked very hard on the two from California. 

Going over the numbers last night—I will brag just a tiny bit—

with the five confirmations last week, we’ve confirmed more of 

President Bush’s nominations in 18 months I have served as Judiciary Committee Chairman, and the more than 2 years when Senator Hatch chaired the committee with a Republican Senate Majority, or during the last Congress when we had a Republican Senate 

Majority. 

I just mention that to those who think Democrats hold them up. 

I do it to encourage our Republican friends to try to move as quickly on President Bush’s nominees as I am, because some of them—

not the four Senators I mentioned earlier, all of whom went out of 

their way to praise what we did on this—but some have been trying to raise a scare. 

After I became Chairman, they ranted that ‘‘the sky is falling’’ 

and we would not proceed on any judicial nominations. I actually 

suggested to the administration, I’d give them their choice. We 

could move it at the rate that we did in the 18 months we were 

in Majority, or the rest of the time when they were. 

I might say, Mr. Chairman, while you have been setting the 

NASCAR record coming down the hall, I’ve been basically filibustering up here. 

[Laughter.] 

But I had a good teacher. 

Senator Byrd, who is, of course, the president pro tem of the U.S. 

Senate, the longest-serving member for our body—years ago, when 

my seniority moved up a tad, I was given my choice of seats and 

I chose the role with Senator Byrd. 

There’s three seats there: Senator Byrd, Senator Dodd, and myself. I used to call it the white-haired role, but I guess it’s two 

white-hairs and one bald guy. 

[Laughter.] 

But it’s worked out well. 

3

Senator Byrd, I’ll put the rest of my statement in the record. I’ll 

yield to you and then to Congresswoman Capito, my fellow ItalianAmerican. 

Congresswoman, in case you thought I was joking, my mother is 

first-generation Italian-American. I didn’t want you to think I was 

just joking. 

Go ahead, Senator Byrd. 

Senator BYRD. Thank you, Mr. Chairman. Ms. Capito. 

We know each other, Mr. Chairman, so we have to do a little exchanging here. 

Chairman LEAHY. Well, as you know, I’ve visited your beautiful 

State on a number of occasions. Much of it, with the hills, the valleys and the mountains, it made me think of my own State of 

Vermont. 

But I also know that in West Virginia, it’s small enough, you 

tend to know each other. But of course, also in West Virginia, Senator Byrd, everybody knows you. I know how well the Congresswoman does in her elections, and they ought to know her, too. So 

go ahead, please, sir. 

PRESENTATION OF JOHN PRESTON BAILEY, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF WEST 

VIRGINIA BY HON. ROBERT BYRD, A U.S. SENATOR FROM 

THE STATE OF WEST VIRGINIA 

Senator BYRD. Thank you. Thank you, Mr. Chairman. 

Colleagues on the committee and other members of the Judiciary 

Committee, I am pleased to appear before you today to introduce 

you to an esteemed colleague of mine, a fine West Virginia lawyer 

named John Preston Bailey. 

Mr. Bailey hails from the big, beautiful city of Wheeling, West 

Virginia. It used to be the old jumping-off place for people who 

wanted to come over on the old road that ran from Baltimore over 

to Wheeling, and then from there, I believe it was over to Vandalia, 

was it? 

Representative CAPITO. The national highway. The National 

Road. 

Senator BYRD. The old National Road. Yes. And I believe it went 

on over to—it eventually ended up, where, down in St. Louis? 

Representative CAPITO. The middle part of the country. 

Senator BYRD. All right. Is that St. Louis or St. Louis? 

Mr. Bailey hails, as I say, from the beautiful city of Wheeling. 

And Mr. Bailey has been nominated by the President for a seat on 

the Federal bench in the Northern District of West Virginia. 

Mr. Bailey is a splendid choice for this judgeship. Currently, he 

is senior partner at the firm of Bailey, Riley, Buke & Harmon. Not 

only is Mr. Bailey well versed in administrative law, but he is also 

a successful litigator, competent in both civil and criminal litigation. 

John Bailey graduated from West Virginia University’s College of 

Law in 1976, where he was a member of the West Virginia Law 

Review. He was admitted to the State Bar of West Virginia that 

same year, and clerked for 2 years thereafter with the Honorable 

Charles H. Haydon, II, who at that time was the U.S. District 

4

Judge for both the Northern and Southern Districts of West Virginia. 

Mr. Bailey is extremely well-qualified to be confirmed as a Federal judge. He worked as an assistant prosecuting attorney in the 

mid-1980’s and he served as chairman of the Worker’s Compensation Appeals Board in West Virginia from 1985 to 1991. 

He sat on the Executive Council of the West Virginia Bar Association for 6 years, and was elected to be president of that association in 1992. He was, thereafter, elected and he served as president 

of the West Virginia State Bar from 2003 to 2004. Before that, he 

served as vice president of the State Bar and as a member of the 

Bar’s Board of Governors. 

More recently, in fact, just last year he was also bestowed the 

honor of Fellow by the West Virginia Bar Foundation. In bestowing 

that honor upon Mr. Bailey, Tom Tinder, the executive director of 

the West Virginia Bar Association, stated that Mr. Bailey is a ‘‘true 

leader’’ of his community. 

John Preston Bailey has been a member of the Order of the Coif, 

the Order of the Barristers, a member of the Moot Court Board, the 

Ohio County Bar Association, the West Virginia Trial Lawyers Association, and the National Association of Criminal Defense Attorneys. 

I can attest to the fact that Mr. Bailey comes highly recommended by West Virginians of all stripes and varying legal viewpoints. He is a smart, independent thinker. He is hardworking. He 

has had over 30 years’ of experience as a licensed attorney. 

As a result, he recognizes the solemn responsibility with which 

a Federal judge is charged. He must interpret impartially and with 

proper contemplation of, and respect for, the three—let me say that 

again, the three—separate branches of our government, provisions 

that have been approved by the Congress and signed into law by 

our President. 

Mr. Bailey has an excellent reputation and a keen intellect. 

Based on my understanding of Mr. Bailey’s character and impressive credentials, I believe that he will make—yes, he will make—

a fine Federal judge. 

For all the reasons mentioned, I am pleased to introduce him to 

my colleagues today, and I urge them to support his nomination to 

be a U.S. District Court Judge for the Northern District of West 

Virginia. 

So, Mr. Chairman, I want to join our illustrious Congresswoman 

here, who does a fine job in her work. She is the lovely daughter 

of a former colleague of mine in the House of Representatives, and 

a man for whom I have a deep appreciation, the Honorable Arch 

Moore. 

So, I am proud to be here with you. Man, look at her smile. 

That’s enough to win the whole committee’s approval. 

[Laughter.] 

All right. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Senator Byrd, we will also put a 

statement from your distinguished colleague, Senator Rockefeller, 

in with yours. 

Congresswoman, please feel free to go ahead. 

5

PRESENTATION OF JOHN PRESTON BAILEY, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF WEST 

VIRGINIA BY HON. SHELLY MOORE CAPITO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST VIRGINIA 

Representative CAPITO. Thank you, Mr. Chairman. I appreciate 

the opportunity to testify in front of the committee, and it certainly 

is always a pleasure for me to be with our esteemed Senator, Senator Byrd. 

When you mentioned that everybody in West Virginia knows 

Senator Byrd, without question, and if they’re not sure, if they’re 

on a road or by a building, they know you, too, Senator Byrd, very, 

very well. 

Senator BYRD. Thank you. 

Representative CAPITO. He has a large imprint on our State. Certainly his words of approval and appreciation for John Bailey go a 

long way, I’m sure, for this committee in seeking approval for his 

nomination. 

But it’s a wonderful opportunity for me today to come in support 

of my friend John Bailey’s nomination to the U.S. District Court for 

the Northern District of West Virginia, which I don’t live in the 

Northern District, but I was born in the Northern District so I 

know lots of those areas. 

Mr. Chairman and members of the committee, I realize you have 

been evaluating Mr. Bailey’s experience, but I wanted to talk briefly about something that I also believe is an important aspect of 

John, and that is his broad understanding of the District for which 

he is nominated to serve. 

You mentioned in your opening statement that West Virginia 

and Vermont have a lot of similarities. You sort of stole my little 

statement here. 

Chairman LEAHY. Sorry. 

Representative CAPITO. In that we all know one another and 

we’re very proud of our heritage and our West Virginia roots. John 

has very strong West Virginia roots and is well-known in his community for many reasons. So, I appreciate that, John. 

I’ve actually known John 30 years. I know it’s hard to believe by 

looking at either one of us we would know anybody 30 years, but 

we have. 

After he earned his Juris doctorate at West Virginia University, 

he has spent, as Senator Byrd said, 30 years practicing law in West 

Virginia, spending a great amount of time gaining experience and 

earning respect in the courtroom. 

In addition, I believe John has the very important attributes of 

intelligence, honesty, which I believe you will see in the answers 

to his questions, even-handedness, and a sprinkling of what I think 

is a much-needed attribute: a great sense of humor. 

John is active outside the courtroom as well, serving, as the Senator mentioned, a second time as president-elect of the West Virginia State Bar Association, and he has also been on the Association’s Executive Committee and on the Board of Governors. 

As I am sure you are aware, the committee is aware, and the 

President is certainly aware, the U.S. District Court for the Northern District of West Virginia is currently short-handed due to the 

untimely death of the greatly respected Judge Craig Broadwater, 

6

and also of the senior status recently acquired by the equally respected Frederick Stamp, Jr. 

The President has made a wonderful choice in nominating John 

Bailey to this position. In light of these vacancies, in my belief, 

John Bailey is uniquely qualified. I ask that you look favorably 

upon his nomination and see to it that John Bailey can continue 

to serve the State of West Virginia. 

I thank you for your time. 

Chairman LEAHY. Thank you. I also appreciate the bipartisan 

support of him, and I appreciate both of you being here. As I mentioned, Senator Rockefeller is chairman of the Intelligence Committee so he has to preside over this closed meeting. 

I know you both have a million other things to do, so I thank you 

for coming out. I’ll try not to be too rough in your absence. 

Senator BYRD. Thank you, Mr. Chairman. Thank you, members 

of the committee. Thank you. 

Representative CAPITO. Thank you. Great to see you. 

Chairman LEAHY. Besides, I try to be nice to former prosecutors. 

If the three nominees would step forward, please, and raise your 

right hands. 

[Whereupon, the nominees were duly sworn.] 

Chairman LEAHY. Thank you. Please sit down. 

We’ve heard the introduction of Mr. Bailey. As I said, he has 

served as a prosecutor, now an attorney, in Wheeling, West Virginia. 

I would note on Mr. Wright, he’s been nominated to a seat in the 

U.S. District Court for the Central District of California, which is 

also a judicial emergency. I will put statements of both Senator 

Feinstein and Senator Boxer in the record. They’re also at the 

same briefing. 

But Judge Wright has been nominated after a distinguished 27-

year legal career; State trial judge, lawyer in the State government 

and private practice. He was born in Tuskegee, Alabama during 

the era of Jim Crow segregation. 

He overcame the barriers of formalized segregation and graduated from California State University of Los Angeles, Southwestern Law School, and ended up as a judge in the Superior 

Court of California, the county of Los Angeles, and assigned to the 

high-volume substance abuse court. Judge, when I looked at those 

statistics, ‘‘high volume’’ is an understatement, what goes before 

your court. 

He served for 3 years as a U.S. Marine on active duty. As the 

father of a Marine, I must note that. He served as a Los Angeles 

County sheriff’s deputy for 11 years before becoming a Deputy Attorney General at the California Justice Department. He spent 22 

years in private practice with Wilson, Elser, Moskowitz, Adelman, 

& Dicker. So, I’m glad that he is here. 

And Mr. Wu has been nominated to serve on the U.S. District 

Court for the Central District of California. He has a 32-year legal 

career as a State trial judge, Assistant U.S. Attorney, private practitioner, and academic. 

He has 10 years’ experience at the bench as a judge in the Los 

Angeles Superior Court and Los Angeles Municipal Court. He 

served as Assistant U.S. Attorney in the Civil Division, the U.S. 

7

Attorney’s Office for the Central District of California, Assistant 

Chief of— private practice—I’m going over this somewhat in length 

because Senator Feinstein and Senator Boxer can’t be here—from 

the law firm of Lathem, Watkins, Los Angeles office, Lebeouf. How 

do you pronounce it? Lebeouf, Lamb, Libby & McCray. Professor of 

law at the University of Tennessee, and born in New York City. 

I might say, I’m glad to see all of you. Mr. Bailey, please don’t 

take this at all the wrong way. You come here with great credentials. In coming from a State which has probably the lowest percentage of minorities in the country, I feel we have to, though, as 

a country make more of a step toward diversity on our courts. 

If confirmed, Judge Wright will become the 90th African-American judge currently on the Federal bench. If he is confirmed, 

Judge Wu will be only the ninth Asian-Pacific American judge of 

the Federal bench, and the sixth active judge. 

In the last 6 years, there’s been only 18 African-American judges 

nominated to the Federal bench, compared to 53 in the first 6 years 

President Clinton’s. Of 875 seats in the Federal Judiciary, only five 

active Asian-Pacific American judges. Only two nominated in the 

last 6 years, neither to a seat in the Federal Circuit Court. 

I think outstanding lawyers like Dean Harold Cole of Yale, Professor Gudenlu of Boat Hall School of Law, attorneys Karen 

Marasacki, John Yang, Debra Yang. We have a lot. I just mention 

this as an area where, as a Nation, we have to do more. 

Obviously, the first thing we look for is the ability to be a judge. 

I have always—before I vote for anybody, and I’ve been voting for 

judicial nominees for 33 years now—I asked myself, if I were appearing before that judge, whether I was plaintiff, defendant, no 

matter what my case, would I be treated fairly? That’s what I 

want. In our confirmation hearings we hear a lot about stare decisis, and this question is always asked. 

Mr. Bailey, how do you feel about that? Is this an iron-clad rule 

or does it depend upon the court? 

Mr. BAILEY. Mr. Chairman, I believe that stare decisis is a very 

important part of the legal system because it lends predictability 

to the law. And if the law is predictable, as it should be, then that 

leads to the resolution of disputes and also gives the people of this 

country an idea what standards and rules they are expected to live 

by. 

Chairman LEAHY. Before we go to the other two, I’ve made a—

after all these years here and conducting hundreds of these, I forgot what I think is one of the most important things. 

Mr. Bailey, would you introduce any member of your family 

here? Because some day in the archives of the Bailey family, they’ll 

see their names on this official transcript. 

Mr. Bailey. 

STATEMENT OF JOHN PRESTON BAILEY, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF WEST VIRGINIA 

Mr. BAILEY. Thank you, Senator Leahy. Yes. With me today are 

my three children: my son, John P. Bailey, II, my son, Brian J. Bailey, and my daughter, Jenna Bailey. 

[The biographical information of Mr. Bailey follows.]

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Chairman LEAHY. Thank you very much. 

Judge Wright, do you have any family members here? 

STATEMENT OF OTIS D. WRIGHT, II, NOMINEE TO BE DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge WRIGHT. No, Mr. Chairman, I do not. 

[The biographical information of Judge Wright follows.]

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Chairman LEAHY. And Judge Wu? 

STATEMENT OF GEORGE H. WU, NOMINEE TO BE DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge WU. No, I do not, Senator. 

[The biographical information of Judge Wu follows.]

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Chairman LEAHY. We had moved this so expeditiously, I think a 

lot of you didn’t have a chance to do anything. Mr. Bailey can drive 

here. The rest of you had a little bit of a trip to make. 

Judge Wright, let me ask you the same question. If you’re going 

to District Court, how strongly do you feel about stare decisis? 

Judge WRIGHT. Thank you, Mr. Chairman. Like Mr. Bailey, I 

agree with his comments. I feel very strongly about it. There’s only 

one court that doesn’t have to follow it. 

As Mr. Bailey says, it gives uniformity and predictability. It may 

actually keep matters out of the courts because if people have some 

guidance as to how the law would resolve their dispute, they’re 

able to resolve those disputes without legal recourse. But it absolutely gives all of us guidance and I strongly believe in that doctrine. 

Chairman LEAHY. In your case, your controlling courts would be 

either the Ninth Circuit or the Supreme Court itself? 

Judge WRIGHT. That’s correct, sir. 

Chairman LEAHY. Thank you. 

And Judge Wu, how do you feel? 

Judge WU. I feel the same way, thank you, Senator, as my colleague, Judge Wright, and also Mr. Bailey. I really don’t think I 

have anything else to add. 

Chairman LEAHY. This may sound like a non-legal question, but 

I’ve heard this by other chairman of this committee, Senator Thurmond did, others did, and spoke about the fact that if you’re a District Judge, this is a lifetime appointment unless you get appointed 

to some other court. 

In a way, you don’t have to be nice to anybody, but I would hope 

that that’s not the attitude you might feel. You’ve all had litigation 

experience. You’ve all had people before you. You’ve all heard the 

words within the Bar that speak about Judge So and So, and they 

say, boy, he’s just not very good to the litigants before him. 

I believe in a judge, of course, having control of his court. But 

let me just ask you, Mr. Bailey. You’ve been in a lot of courts. 

You’ve seen good judges—and I’m not asking you for names, but 

you’ve seen good judges—and you’ve seen some that you probably 

wish you didn’t have to appear before. What do you feel a judge 

should be like? What’s the impression a litigation should get? 

Mr. BAILEY. Mr. Chairman, I think that when a lawyer goes to 

the courtroom, he or she has already a great amount of stress as 

to whether he or she is going to do a good job for the client. 

That person should not also have the stress of wondering whether he’s going to be treated with respect or stress over whether he 

or she is going to get chastised for something unfairly. I think very 

strongly that the courts should be a place where you are heard, 

here people behave in an extremely civilized and professional manner. If confirmed, I will see that that occurs in my courtroom. 

Chairman LEAHY. And Judge Wright, you’ve certainly had occasion to think about this in your own life as a judge. How do you 

feel on the issue of how people should be treated before they come 

before the court? 

Judge WRIGHT. Yes, sir. Of course, you prefaced your question 

with ‘‘this is not a legal question’’, but I think it’s an extremely appropriate question. There may be a place for arrogance. I’m not 

101

sure what that place would be, but I am sure that it is not on the 

bench. 

The courts do not belong to us. We are holding a public trust. 

The courts belong to the people. They need to be made to feel welcome, that this is a place for resolution of their disputes as opposed 

to any alternatives. 

Our job is to administer the law fairly and impartially. It is not 

our place to assume a sense of power which we do not possess, a 

sense of superiority which we simply do not have. We are administering a public service. If, as I’m sure my two colleagues agree, 

you really love the institutions the way we do, you would not discredit it. 

Chairman LEAHY. And Judge Wu? 

Judge WU. Thank you, Senator. It’s a little hard to be last, because everything I would like to say has usually already been said. 

But the only thing I would like— 

Chairman LEAHY. That’s never stopped Senators, you know. 

[Laughter.] 

I’ll tell you, we have an expression: just because everything has 

been said doesn’t mean everybody’s said it. 

Judge WU. Thank you. But at this point I’m not a Senator, so 

I would just simply like to add one point. There’s always a cardinal 

rule, that you should treat others the way you’d like to be treated 

yourself. I think that is a cardinal rule that will stand in good 

stead for anyone who is a Federal District Court judge. Other than 

that, I would just simply agree with my colleague, Otis Wright, and 

also Mr. Bailey. 

Chairman LEAHY. You know, this is somewhat of an abstract 

question, but back in 1938 the Supreme Court— and I’m not trying 

to see who knows most cases, and I’d forgotten myself until somebody brought it out to me—United States v. Caroleen Products. 

That’s a question of the responsibility of courts to protect the 

constitutional rights of individuals, especially the less powerful, 

and especially where the political system has not policed itself. 

There’s a footnote in there where they said, ‘‘Legislation which 

restricts those political processes which can ordinarily be expected 

to bring about repeal of undesirable legislation is to be subjected 

to more exacting judicial scrutiny under the general prohibitions of 

the 14th Amendment than most other types of legislation.’’ 

Judge Wright, do you agree with that, that the courts have—if 

you’re talking about constitutional rights of individuals, especially 

the less powerful, where their rights have not been maintained by 

the political system, does the court have a stronger duty to look 

carefully at what’s being done? 

Judge WRIGHT. Yes, Senator. The conduct which you describe, or 

which is described in that footnote, runs afoul of the constitutional 

protections. And, yes, it would be the duty of the court to correct 

that wrong. 

Chairman LEAHY. Judge Wu? 

Judge WU. I agree that it would be the duty of the courts to correct that law, but obviously to overturn an enactment by the legislative body is a decision which must be taken reluctantly, and only 

if there are no other alternatives. 

102

And so there’s always a presumption of the constitutionality of 

an enactment by the legislative body, so obviously that would have 

to be honored before one could take the tremendous step of overturning legislation. 

Chairman LEAHY. And Mr. Bailey? 

Mr. BAILEY. Again, I am last, or this time I am last, and I agree 

with what my cohorts have said. A statute should only be reluctantly overruled as a point of last resort. But if that statute is 

abridging the constitutional rights of those who cannot help themselves, there probably is a little lower hurdle than there is in the 

typical review of a statute. 

Chairman LEAHY. Thank you. 

You probably thought, when you filled out your questionnaire for 

this, that you’re going to need a lifetime appointment just to get 

through all the questions and all. But they are helpful to the members of the committee. 

Perhaps the fact that we don’t have members in here hitting you 

with a lot of questions, that they felt pretty good about those. It 

makes our job easier. So unless any one of you has anything further to say, I’m going to recess this hearing, leave the record open 

long enough for people to ask questions. 

[No response.] 

No? 

You are wise. Thank you. We stand in recess. 

[Whereupon, at 3:15 p.m. the committee was recessed.] 

[Submissions for the record follow.]

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(113)

NOMINATIONS OF HALIL SULEYMAN 

OZERDEN, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

MISSISSIPPI; BENJAMIN HALE SETTLE, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF WASHINGTON; AND 

FREDERICK J. KAPALA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

TUESDAY, MARCH 13, 2007

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, Pursuant to notice, at 10:07 a.m., in room 

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

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

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Good morning. This meeting of the Senate Judiciary Committee will come to order. 

It is my pleasure to chair this hearing featuring three nominees 

for appointments to the Federal judiciary. I am proud that one of 

these nominees comes from my home State of Illinois, Judge Frederick Kapala of Rockford. He has been nominated to fill a seat on 

the U.S. District Court in the Northern District of Illinois. 

The other two nominees who are here today are Benjamin Settle, 

I just met, who has been nominated for a District Court seat in the 

Western District of Washington; and Halil Ozerden—I hope I pronounced that correctly—who has been nominated for a District 

Court seat in the Southern District of Mississippi. 

Mr. Settle and Mr. Ozerden have been nominated to fill vacancies that have been deemed by the U.S. courts to be judicial emergency districts. These are districts in which the number of cases 

filed per judge is very high, so it is important to fill these vacancies 

quickly. 

Judge Kapala has been nominated to fill a vacancy in Rockford. 

It’s the only judgeship in that city; it’s been vacant since January. 

I want to thank Chairman Leahy for giving Judge Kapala and the 

other nominees swift consideration this year. 

114

All three of today’s nominees have the support of their home 

State Senators, but, due to scheduling conflicts, not all of the home 

State Senators could make it to our hearing. We are happy to have 

the Senators from Mississippi here to introduce the Mississippi 

nominee, Mr. Ozerden. 

The Senate has already confirmed 10 judges in the 110th Congress and we have reported 15 judicial nominations out of committee. In total, we have confirmed 268 Article 3 judges under 

President Bush. It is a good track record. 

I call, now, on Senators Lott and Cochran for opening remarks. 

By virtue of seniority or first arrival, Senator Cochran. 

PRESENTATION OF HALIL SULEYMAN OZERDEN, NOMINEE TO 

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

THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much for convening the hearing. I am very pleased to be here this morning with 

my colleague, Senator Lott, to introduce Sul Ozerden—Halil 

Suleyman Ozerden, but to his acquaintances and friends down in 

Mississippi he’s just ‘‘Sul’’—to recommend him for confirmation as 

a U.S. District Court judge for the Southern District of Mississippi. 

Sul is very well qualified because of his education and experience 

to serve as a Federal judge. He is a highly respected lawyer with 

a keen sense of fairness. He will reflect great credit on the Federal 

judiciary, and our State. 

Accompanying him today at the hearing are members of his family: his wife, Denise; his mother, Candace; and his aunt, Cordelia 

Green. Sul and Denise’s children, Vivian and Harty, ages 3 and 1, 

remained on the Gulf Coast to take care of things down there. 

[Laughter.] 

His law partner, Cy Faneca, and his wife, Georgia Anne Faneca, 

are also here today. 

Sul graduated magna cum laude in 1989 from the Georgetown 

University School of Foreign Service, where he was a member of 

Phi Beta Kappa. After graduating from Georgetown, he attended 

the U.S. Navy flight school in Pensacola, Florida and served for 5 

years as a Naval officer. 

He served as a bombardier and navigator aboard the A- 6E ‘‘Intruder’’ aircraft, and was awarded the Navy commendation medal 

for missions flown over Iraq during Operation Restore Hope in 

1992 and 1993. 

He also completed a 6-month deployment to the Western Pacific, 

and another to the Persian Gulf about the aircraft carrier U.S. 

Kitty Hawk from 1992 to 1994. 

After his service in the Navy, he returned to college. He graduated from the Stanford University School of Law, where he was 

an associate editor of the Stanford Law Review. 

Sul then served as a law clerk in the Eastern District of Louisiana, the Federal court there, to the Honorable Eldon E. Fallon, 

U.S. District Court judge. 

He then returned to the Mississippi Gulf Coast and joined the 

law firm of Dukes, Dukes, Keating & Faneca, a highly respected 

firm in our State. Because of the cross-jurisdiction nature of law 

115

practice on the Mississippi Gulf Coast, Sul became licensed not 

only to practice in Mississippi, but also in Alabama, Florida, and 

Louisiana. 

He has practiced in State and Federal courts throughout the 

southeastern United States. He has routinely served as lead counsel on a wide range of complex cases, including general civil defense litigation, civil rights, and representation of local government 

entities. 

Sul is ranked by his fellow lawyers at the highest level of professional excellence. In addition to his legal practice, Sul has consistently given his time and donated his abilities to the legal profession and to his community. 

He is a mentor to students at Gulfport High School, where he 

graduated. He serves as president and is a board member of the 

Gulfport Chamber of Commerce. He has served as president of the 

Harrison County Young Lawyers Association. He is a graduate of 

the Leadership Gulf Coast and was recognized as one of South Mississippi’s Top 40 Business Leaders Under 40 years of age. 

Mr. Chairman, I am very pleased to recommend, without qualification, and sincerely, Sul Ozerden and recommend his approval 

and confirmation as a U.S. District Court judge. Thank you. 

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

Senator DURBIN. Thank you very much, Senator Cochran. 

Senator Lott? 

PRESENTATION OF HALIL SULEYMAN OZERDE, NOMINEE TO 

BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT LOTT, A U.S. SENATOR FROM THE 

STATE OF MISSISSIPPI 

Senator LOTT. Thank you, Senator Durbin. I ask consent that my 

statement be put in the record as if delivered. 

Senator DURBIN. Without objection. 

[The prepared statement of Senator Lott appears as a submission 

for the record.] 

Senator LOTT. I cannot add a whole lot more to his qualifications 

than what my distinguished senior Senator from Mississippi, Senator Cochran, has already provided. But I just want to congratulate 

the other nominees today. Thank you, Senator Durbin, for being 

here for this hearing. 

I want to say that I am really honored and quite pleased to be 

here to support the nomination of Sul Ozerden to be a Federal District judge for the Southern District of Mississippi. I am very 

pleased that his mother is here, and his wife, Denise, and his senior law partner, Cy Faneca. 

Senator Cochran has already referred to Cy Faneca. He and I 

were classmates at the University of Mississippi in the late 1950’s 

and 1960’s; we go back a long way. He is one of the most respected 

citizens that we have on the Gulf Coast. 

And partially through his pointing out to me what an outstanding young man Sul Ozerden is, that I started watching him 

several years ago to just observe his progress in the community 

and in the practice of law. It is especially poignant, too, that his 

mother, Candace, is here; his father passed away last year. 

116

I had a personal relationship with his father, too. I cast a somewhat unpopular vote back in the mid-1970’s and Dr. Ozerden 

showed up at my office to advise me that, while it was an unpopular vote, he supported it and he appreciated it. 

I never will forget it, because usually you don’t have that happen, that somebody would show up in your office and say, you cast 

a tough vote and I want you to know I do appreciate it. So I always 

followed him in the community after that. 

And then to see Sul, a second-generation American, be able to 

achieve such great heights in everything he’s done in his life, it 

makes it particularly special that he’s here today as a nomination 

for the Federal judiciary. 

Sul has done an outstanding job in everything he’s done in his 

life. He’s always reached the greatest heights academically and in 

the military and in his professional and his private life. He’s been 

exemplary, graduating, as Senator Cochran pointed out, as salutatorian from Gulfport High School, which is a large high school, 

going to Georgetown University School of Foreign Service on a 

Naval ROTC scholarship. 

I must admit, maybe Senator Cochran has a special feeling for 

him on that basis alone, since he was a Naval ROTC scholar himself at the University of Mississippi in the 1950’s. He graduated 

from Georgetown magna cum laude and Phi Beta Kappa in 1989. 

He served 6 years on active duty, where he was an A–6E ‘‘Intruder’’ bombardier and navigator. He was awarded the Naval commendation medal for missions that he flew over Iraq during Operation Southern Watch in Somalia during Operation Restore Hope. 

He went to Stanford Law School, where, as Senator Cochran 

noted, he was on the Law Review. He clerked for a Federal judge. 

He is with one of the most outstanding firms on the Gulf Coast, 

Dukes, Dukes, Keating and Faneca. 

They have a varied practice: civil defense litigation, local law enforcement representation, representing government entities, commercial transactions and litigation. Cy has made sure that Sul had 

a variety of experience there in that law firm. 

But, also, Sul has been involved in the community. As you know, 

Senator Durbin, this is the area that got hammered by Hurricane 

Katrina. We all have a heightened awareness and appreciation now 

for professional men and women and business men and women, 

and volunteers that have really pitched in and helped the community, helped everybody to try to recover. It is a long process, but 

Sul and his family have been right there in the middle of it. 

He has also been a very active participant in his church. He 

serves on the building committee, and that is an extremely important position because the church was devastated by Hurricane 

Katrina. 

I am convinced that this young man will be a credit to the Federal judiciary, to all of us that serve in Congress when we confirm 

his nomination, and it is a great honor and a pleasure for me to 

be here to be here to support his nomination here today. 

Thank you. 

Senator DURBIN. I want to thank Senator Lott and Senator Cochran. They both noted that the nominee has achieved the status of 

117

Phi Beta Kappa. A friend of mine, Gene Callahan in Illinois, said 

he only missed Phi Beta Kappa by two grades: A and B. 

[Laughter.] 

Others have done much better. Thank you both for your introduction of the nominee this morning. 

If I could ask the nominees to please come to the witness table 

for the oath. If you would all remain standing for just a moment 

here. If you would please raise your right hand. 

[Whereupon, the witnesses were duly sworn.] 

Senator DURBIN. Let the record reflect that all three responded 

in the affirmative. You may be seated. 

Mr. Ozerden has had a very kind introduction by his two State 

Senators. I would like to, by way of introduction, say a word or two 

about the other two nominees. 

First, the nominee, Benjamin Settle. Thank you for being here. 

The Senators from Washington are unable to attend the hearing, 

but I would like to briefly introduce you on their behalf. 

Benjamin Settle is from Olympia, Washington and works at the 

law firm of Settle and Johnson in Shelton, Washington. He’s had 

a distinguished 35-year legal career. He’s done it all. You’ve served 

as a prosecutor, criminal defense lawyer, family law attorney, and 

corporate general counsel. 

Mr. Settle served in active and reserve duty in the U.S. Army 

from 1969 until 1982, including a stint as Captain in the Judge Advocate General Corps. I am pleased to see that Mr. Settle has given 

pro bono legal services over the years to several nonprofit organizations committed to helping low-income people and the developmentally disabled. 

Mr. Settle is married to a teacher, and they have one child who 

is a junior in college. After I introduce all three of you, I am going 

to ask you to introduce your families before you say a few words. 

Our third nominee is one I have come to know, and enjoys a 

great reputation in my State. Judge Frederick Kapala is supported 

not only by myself, but also Senator Obama. 

Judge Kapala has served with distinction as a State Court judge 

in Illinois for the past quarter-century, from 1982 to 2001, a Circuit 

Court judge in Rockford, serving over the years as presiding judge 

of the Criminal Division in the Juvenile Court. 

In 2001, he was elevated to the Illinois Appellate Court and he 

has served on that court, the second-highest State court in Illinois, 

for the past 6 years. 

Before he donned his judicial robes in 1982, Judge Kapala 

worked in private practice, served as a Special Assistant Attorney 

General in the Illinois Attorney General’s Office prosecuting consumer fraud complaints. His first job out of law school was working 

as a prosecutor in the Winnebago County, Illinois State’s Attorney’s 

Office in 1976. 

At that time, the Winnebago County State’s Attorney was Philip 

Reinhard, who went on to become a Federal judge. Judge Kapala 

is following in the same footsteps 30 years later; it is Judge 

Reinhard’s judgeship that Judge Kapala has been nominated to fill. 

Judge Kapala served in the U.S. Army, both on active and reserve duty, from 1970 to 1980, attaining the rank of captain. He 

118

graduated from the University of Illinois Law School, and 

undergrad at Marquette University. 

He and his wife have two daughters. Judge Kapala will have a 

chance to introduce his family in a few minutes. He has been an 

outstanding citizen in the Rockford, Illinois community, an active 

member of two dozen different community groups and legal organizations, and is a community leader in many organizations that help 

at-risk children, the mentally ill, and people dealing with alcoholism. 

He recently received a unanimous rating of ‘‘Well Qualified’’ by 

the American Bar Association, the highest rating a Federal judicial 

nominee can receive. In a 2006 poll taken by the Winnebago County Bar Association, 99 percent of those lawyers surveyed gave 

Judge Kapala a positive recommendation. That is nothing short of 

a miracle, that 99 percent of lawyers could agree on anything. 

[Laughter.] 

These are all qualities crucial for a judge to have, and Judge 

Kapala’s near-perfect score suggests he has what it takes to be fair 

and impartial. I had a chance to sit down and meet with him recently. 

Judge James Holderman, Chief Judge of the Northern District, 

called our office last week and said Judge Kapala is ‘‘a great judge 

and an excellent choice for the U.S. District Court vacancy.’’ That 

is high praise from a top Federal District Court judge in our State. 

I commend Congressman Dennis Hastert, our leading senior Republican in the House of Representatives, for recommending his 

nomination. It is the latest example of a successful bipartisan approach that we have encouraged in Illinois. 

Finally, I want to note again that Judge Kapala has been nominated to fill the sole Federal judgeship in Rockford. This judgeship 

has been vacant since January, when Judge Reinhard took senior 

status. It is important to fill this seat as quickly as possible. 

Let me call on the nominees at this point, each one, to say a few 

words of opening remarks and introduce their families. 

Mr. Ozerden, if you would kick off. 

STATEMENT OF HALIL SULEYMAN OZERDEN, NOMINEE TO BE 

DISTRICT JUDGE OR THE SOUTHERN DISTRICT OF MISSISSIPPI 

Mr. OZERDEN. Thank you, Senator. I would simply like to thank 

the President for the nomination, thank the Chairman and the 

Committee for holding this hearing, thank Senator Cochran and 

Senator Lott for their support, and also thank my family for their 

support. 

Here today I have my wife, Denise Dunaway Ozerden of Gulfport; my mother, Candace Ozerden of Gulfport; my aunt, Cordelia 

Green of Richmond, Virginia; and my law partner, Cy Faneca, and 

his wife Georgia Anne Faneca. 

Senator DURBIN. Great. Glad to have you all here today. If you 

would like to go ahead and make an opening remark, then we will 

go to the other nominees for the same opportunity. 

Mr. OZERDEN. I have no other statement at this time. Thank you, 

Senator. 

[The biographical information of Mr. Ozerden follows.]

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Senator DURBIN. All right. 

Mr. Settle? 

STATEMENT OF BENJAMIN HALE SETTLE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON 

Mr. SETTLE. Thank you, Mr. Chairman. Thank you for holding 

this hearing. I, too, thank my two Senators from my State for supporting me. Of course, I thank President Bush for his confidence 

shown in me by nominating me to this position. 

I would like to introduce my wife, Lynn. And perhaps—they’re 

back there—they can raise their hand so, Mr. Chairman, you can 

see who they are. My wife, Lynn; my brother-in-law, Colonel Chuck 

Allen. He came down from Carlisle. He is a teacher at the War College. 

Gary Burleson is here. He is the Mason County prosecutor. He’s 

known me since he was six, and I told him that I was glad that 

I was up here speaking about me and not himself, since he knows 

many stories that I would just as soon not have on the record. 

[Laughter.] 

Then we also have here other friends from Mason County that 

have come out here: Kenan Butler is here, a long-time friend of the 

family; Wyla Wood and Joel Meyer, from a public utility. There is 

the American Public Power Association meeting this week, so fortunately they could attend, as well as Commissioner Jack Janda, for 

coming from the public utility district there in Mason County. So, 

I am grateful that they were all able to attend today. 

Senator DURBIN. Mason County is well represented. 

Mr. SETTLE. Yes. Thank you. 

[The biographical information of Mr. Settle follows.]

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Senator DURBIN. Judge Kapala? 

STATEMENT OF FREDERICK J. KAPALA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS 

Judge KAPALA. Thank you, Mr. Chairman. I appreciate those 

kind words. I will do my utmost to live up to them. I thank you 

for chairing this hearing. I thank you for your support, and that 

of Senator Obama. I certainly thank Senators Lott and Cochran for 

appearing here this morning, and certainly to the President for 

nominating me. 

With your permission, I’d like to acknowledge the people that are 

with me here today. 

Senator DURBIN. Yes. 

Judge KAPALA. I have my wife, Jill; my daughters, Candy and 

Katie; Katie’s friend, Dylan Whitcher; and my very dear friend, 

Mike Dunn, and his son Peter. I’m thankful that they’re here with 

me today to support me, and I waive any further opening statement. 

[The biographical information of Judge Kapala follows.]

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Senator DURBIN. Thank you. 

I’m going to ask a few general questions and address them to all 

three, and you can each respond. 

Judge Kapala, let me start with you because this is a lifetime appointment and there is a fear on this side of the table, and a fear 

among lawyers, that once receiving a lifetime appointment, it will 

go to the head of a judge and they will become imperial in their 

courtrooms and lose the humility which we like to think is part of 

life, and part of good service. 

Tell me about your experience as a lawyer, practicing lawyer, 

with judges—you do not have to name names—and your views 

about this concern of the judiciary. 

Judge KAPALA. Mr. Chairman, many times I hear judges talk 

about the courtroom to which they’re assigned as ‘‘my courtroom’’. 

I’ve done it from time to time. But I think that’s a misnomer. No 

judge owns a courtroom. The courtroom is owned by the people in 

the well of the court, and it’s there to resolve their legal controversies. 

I like to think of the courtroom as a place where I have the privilege to work. I know in the past, one other nominee who sat in this 

room mentioned that a person will remember being mistreated long 

after that person will remember who won or lost the case. I think 

that is a very important comment to take to heart, and I subscribe 

to it. 

Senator DURBIN. Mr. Settle? 

Mr. SETTLE. Thank you, Mr. Chairman. 

I think that’s a very important quality for a judge to have, is a 

proper measure of humility. The courtroom setting can be a very 

tense environment. I think that the litigants particularly -the lawyers are more accustomed to it, but even the lawyers deserve courtesy for the court—this is a foreign environment for them. 

I think that a good judge will work hard to put those litigants 

and witnesses at ease when they’re in that courtroom. I think that 

that’s a quality that should never change in a Federal court judge. 

Senator DURBIN. Mr. Ozerden? 

Mr. OZERDEN. Thank you, Mr. Chairman. The service of a judge 

is something I look at as a public service, as a judge as a public 

servant. My belief is that it’s critical that judges treat all lawyers 

and litigants with courtesy and respect, because for the vast majority of lawyers and litigants, the only contact they will have with 

the Federal judicial system is at the District Court level. If they’re 

not treated fairly, it undermines confidence in the system overall. 

Senator DURBIN. The other general question I’d like to ask before 

a few specifics, we like to believe, those of us who have practiced 

law, or lawyers, that this system of justice is balanced and fair. 

Yet, we know that many times in the courtroom there are Davids 

and Goliaths. 

Many times there will be parties before you in civil and criminal 

cases who don’t have the resources that others have. In that circumstance, it is a real test for the court to view both fairly and 

honestly and to treat them that way. 

I’d like to know what, in your life’s experience, would give a person standing before you who is poor, has modest representation, 

what they believe is a good claim or a good defense, and wants to 

219

know if that judge sitting up on that bench could even identify with 

their life, what would you say, Mr. Ozerden? 

Mr. OZERDEN. Mr. Chairman, first of all, I would say that being 

impartial and fair to all parties is critical. It goes back again to the 

question of the public having confidence in the judicial system. I 

people don’t feel that judges and courts are fair and impartial, it 

undermines our entire system. 

From my own perspective, my father was an immigrant. He came 

to this country with one suitcase and $100 in his pocket. When we 

were a young family growing up, we struggled financially a great 

deal. I remember what that’s like. 

Also, I think my service in the Navy is very important also, because the Navy is an extremely diverse environment. You have 

people of all ethnic backgrounds, all economic backgrounds. 

So, I’ve had a lot of experience in the Navy dealing with people 

who were very, very different from me, and I think that’s going to 

really help me learn to understand where they’re coming from. 

Senator DURBIN. Mr. Settle, you’ve been a criminal prosecutor 

and a defense lawyer. You’ve probably seen some of the people I’ve 

just described in the courtroom. Tell me about your experience and 

what kind of confidence it may give to that defendant who may feel 

that this judge is totally removed from my life experience. 

Mr. SETTLE. Mr. Chairman, I did serve as a criminal defense 

lawyer in the Army Judge Advocate General’s Corps, and I served 

many soldiers from various socioeconomic backgrounds. That 

taught me much about life generally and the circumstances in 

which they grew up. It definitely required paying attention to those 

things. 

When we say the Pledge of Allegiance, we say ‘‘justice for all’’. 

I think it’s one of the real challenges of our court system to recognize that ‘‘justice for all’’ is a difficult goal to meet, understanding 

that different individuals who will come before a court have different resources. 

That is something I think that a Federal judge very much must 

keep in mind, is that though it is equal justice for all, it is not 

equal resources for all, and that that’s part of the court’s responsibility. 

Senator DURBIN. Judge Kapala? 

Judge KAPALA. Mr. Chairman, I know what it’s like to live economically disadvantaged. When I was born, my parents lived in a 

garage that had been converted into an apartment. From there, we 

moved to a four-room house—not four bedrooms, four rooms—and 

five of us lived there; my mom, my dad, myself, my brother, my sister, and my dad’s father, who had some health problems, and we 

cared for him to make sure that he would be all right. My brother 

and I shared a bed. 

I know what it’s like to buy clothes a couple sizes too large so 

you can grow into them. I know what it’s like to go to a penny 

candy store and not have a penny in your pocket. Our house had 

a flat tin roof, no garage, no basement. I expect that the people in 

my neighborhood would receive the same treatment before the law 

that anyone would receive. 

220

Canon 63 of the Illinois Code of Judicial Ethics requires judges 

to not manifest, by word or deed, any bias or prejudice based upon 

socioeconomic status, and I will scrupulously adhere to that canon. 

Senator DURBIN. I’d like to ask some specific questions, if I could. 

Judge Kapala, I’ll stay with you for a moment. First, let me preface 

these remarks by saying I know that, in the course of a political 

campaign, all of us have said things which may go to an extreme 

and, as we reflect on them later, have a different view. 

I’d like to refer to one of your campaign statements in 1994, 

where your slogan was ‘‘A Tough Judge for Tough Times’’. And you 

said in an interview that year that you had been given the nickname ‘‘Maximum Fred’’ because you were a local prosecutor early 

in your career who often sought maximum sentences for criminal 

defendants. 

Can you tell me now, from the perspective of time and as you reflect on it and in your new role, whether that is something that you 

would like to be known as when it comes to your Federal judicial 

post? 

Judge KAPALA. Thank you, Mr. Chairman, for that question. 

When I made that statement, I was a prosecutor. Every job I’ve 

ever had in my life has received my full commitment, my full devotion. Sometimes as a prosecutor you have cases before you that require the maximum sentence. 

It’s a sad fact of our world that there are some people who are 

heartless people, who receive enjoyment from inflicting pain and 

suffering on others. And to those people, I think the law should 

treat harshly. 

But I understand that we shouldn’t view everyone through the 

same lens. There are people who are not heartless. There are people who are good, decent people that have made a mistake. There 

are people who are afflicted with different challenges in their life 

and they need to be treated differently. 

As a Federal District judge, if I am fortunate enough to be confirmed, I have the benefit of sentencing guidelines. I know that the 

Supreme Court has said they are advisory now instead of mandatory, but I will pay strict deference to those guidelines. You can be 

assured, sir, that I will tailor my sentences and my approach to the 

law based upon the characteristics of the cases that come before 

me. 

Senator DURBIN. You’ve been a judge for 25 years. What’s the 

toughest decision you’ve ever had to make as a judge? 

Judge KAPALA. For three of those years I was the presiding judge 

of our Juvenile Court. One of the toughest rulings that I’ve had to 

make was to terminate a person’s parental rights. To that person, 

it’s just as if that child had died because they’ll never see that child 

again, they’ll never watch them grow up, watch them go to school, 

see them get married, have grandchildren. That is a heart-wrenching decision. 

But the other side of that coin is, sometimes, even after you’ve 

taken a parent or a child out of the home, through counseling, hard 

work, and education you can restore a parent to fitness. 

And although it’s been one of the hardest decisions in my career 

to terminate a parent’s parental rights, there are few decisions that 

are more gratifying than to be able to give a child his or her parent 

221

back to them. So, I’ve gone to both extremes as a presiding justice 

of the Juvenile Court. 

Senator DURBIN. Mr. Settle, in your questionnaire submitted to 

the Judiciary Committee you said that 98 percent of your practice 

has been in the State court and a small percentage, 2 percent, before the Federal court. Tell me about the learning curve as you 

seek a spot here on the Federal judiciary. 

Mr. SETTLE. There will be a learning curve, Mr. Chairman, there 

is no question about that. But I don’t come without understanding 

and knowing the Federal rules of evidence and the Federal rules 

of procedure. 

Those were the rules that we were to follow, and did follow, 

when I was in the Army in the Judge Advocate General’s Corps. 

The State of Washington has adopted both those two uniform Federal rules of both evidence and procedure. 

And, of course, I spent about two-thirds of my career as a litigator in State court, spending lots of time in litigation, working 

with those rules. So, I think that though it’s going to be a new environment for me, and I surely intend to work hard to get up to 

speed with the uniqueness of the Federal court as opposed to State 

court, I believe that all of that background and experience will 

serve me well, if I am confirmed. 

Senator DURBIN. I would like to ask you about a question which 

haunts us all, and it’s not directed to you personally. But I think 

when we talk about justice in our country, we have to be sensitive 

to the fact that race is an issue and that many people of color believe that the system is stacked against them. 

They see disproportionate numbers of their brothers and sisters 

who were arrested, prosecuted, and incarcerated. I think they feel 

that the system just is not fair when it comes to the question of 

race. What has been your life experience in dealing with racial 

issues before the courts? 

Mr. SETTLE. Mr. Chairman, I alluded earlier to my experience in 

the Judge Advocate General’s Corps, and I think that that was the 

first opportunity that I really got to be in a position to understand 

someone who came from a different background and a different circumstance than I did. It was an education. 

I don’t know how to explain, other than to say that in any courtroom, if I were to be confirmed as judge, I would think it extremely 

important to treat every litigant, regardless of their race, with a 

great deal of respect and be able to convey that to everyone in that 

situation. 

When I was a criminal defense lawyer, I worked hard to get to 

know my client. I might spend the first session finding out about 

the facts underlying the alleged charge and I would go back to the 

stockade, or if my client was not incarcerated pending trial I would 

have that person come in, and get to know them. 

Will Rogers said, ‘‘I never met a man I didn’t like’’, and I found 

that that was the case also with criminal defendants. They are people just like you and me. Sometimes, especially on a first offense, 

it’s very important that that experience of that individual, that 

they go away believing in their system and in the whole criminal 

justice process. 

222

Senator DURBIN. Mr. Ozerden, in your questionnaire you indicated that 99 percent of your legal practice has been civil, a very 

small percentage criminal. In the Federal judiciary, about 1 out of 

4 cases that you will face will be criminal in nature. How are you 

going to deal with that learning curve? 

Mr. OZERDEN. Thank you, Mr. Chairman. Throughout my career, 

although my civil practice has been the vast majority of my practice, I have had some criminal exposure so I think that that will 

help me. I also had some experience as a Federal judicial law clerk 

at the District court level, where I saw criminal cases and assisted 

with the judge trying those cases. 

So, I have had some exposure with the criminal system. I think 

that that’s going to be a foundation I can build from. The docket 

in the Southern District of Mississippi, where I will be working, is 

predominantly civil. 

But I think, with the experience I have had throughout my practice and the resources I’ll have through the Administrative Office 

of Courts and other judges, if I’m confirmed, will assist me in making that transition. 

Senator DURBIN. Mr. Ozerden, I’m a little older than you are. In 

my lifetime, I can recall, while attending Georgetown School of Foreign Service, the civil rights era. It was a painful era for our country, and particularly painful for your home State of Mississippi as 

we look back on it. 

I asked a question earlier of Mr. Settle. I’d like to ask the same 

of you. As I understand it, the largest percentage of African-American population of any State is Mississippi, and race is part of your 

justice system that you are now asking to be part of as well. 

I’d like your reflections on the issues of race and justice from a 

Mississippi perspective, from a perspective as a Federal judge. 

Mr. OZERDEN. Thank you, Mr. Chairman. If I’m confirmed for 

this position, from my perspective, the most important thing in my 

charge will be to be fair and impartial to all parties, regardless of 

their ethnic background and economic background. 

I have had the opportunity, because I’ve practiced in a smaller 

community, that when I’ve been involved in cases I have seen people of different backgrounds and I’ve had that exposure to them in 

the courtroom. 

In a larger community, sometimes you may only deal with large 

companies and that sort of thing when you’re in court, but I have 

had the exposure to, in a smaller community, people of different 

backgrounds. I think that will enable me to understand where 

they’re coming from. Again, the main thing is for me to be fair and 

impartial, and I will do that. 

Senator DURBIN. Thank you. 

I have no further questions. Perhaps some of my colleagues will 

submit questions to you before your nominations come before the 

full Judiciary Committee. 

I want to thank all the nominees for being here today, and thank 

your families and friends for joining you. I’m sure it’s a memorable 

day in your lives to take this step forward. We are anxious to give 

you a fair hearing before the full committee, and hope to move 

these nominations in an expeditious manner. Again, thank you all 

for being here today. 

223

This meeting of the Senate Judiciary Committee stands adjourned. 

[Whereupon, at 10:45 a.m. the hearing was adjourned.] 

[Questions and answers and submissions for the record follow].

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(237)

NOMINATIONS OF DEBRA ANN LIVINGSTON, 

NOMINEE TO BE CIRCUIT JUDGE FOR THE 

SECOND CIRCUIT; ROSLYNN RENEE 

MAUSKOPF, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

NEW YORK; RICHARD JOSEPH SULLIVAN, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

SOUTHERN DISTRICT OF NEW YORK; AND 

JOSEPH S. VAN BOKKELEN, NOMINEE TO 

BE DISTRICT JUDGE FOR THE NORTHERN 

DISTRICT OF INDIANA 

WEDNESDAY, APRIL 11, 2007

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, Washington, D.C.

The Committee met, pursuant to notice, at 10:16 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Charles E. Schumer, 

presiding. 

Present: Senator Schumer. 

Senator SCHUMER. The hearing will come to order, and I apologize for being late. 

Our first witness is Senator Richard Lugar, one of our fine leaders in the Senate, who has waited patiently. So without further 

ado, Senator Lugar. 

PRESENTATION OF JOSEPH S. VAN BOKKELEN, NOMINEE TO 

BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF INDIANA, BY HON. RICHARD LUGAR, A U.S. SENATOR FROM 

THE STATE OF INDIANA 

Senator LUGAR. Well, thank you very, very much, Mr. Chairman. 

It is a great pleasure and honor to be here today to introduce an 

outstanding district court nominee for the Northern District of Indiana, Joseph Van Bokkelen. 

I would first of all like to thank you, Mr. Chairman, and the 

Chairman of the Judiciary Committee, Chairman Pat Leahy, and 

the Ranking Member, Senator Arlen Specter, for holding this hearing today and for moving so quickly on this nomination. I am 

pleased that Joe is joined here today by his wife, Sally; his daughter, Kate; Dr. Paul and Betsy Hauser; and Bud and Cathy Huey. 

238

In July of last year, Judge Rudy Lozano informed me of his decision to assume senior status after a distinguished career of public 

service. He was a remarkable leader on the Federal bench, and I 

applaud his leadership to Indiana and to the legal community. 

Given this upcoming vacancy and the need for strong leadership, 

I was pleased to commend to President Bush Joe Van Bokkelen to 

serve on the Federal court in the Northern District of Indiana. I 

have known Joe for many years, have been impressed with his high 

energy, resolute integrity, and remarkable dedication to public 

service. 

Joe Van Bokkelen attended Indiana University where he received both his undergraduate and law degrees. He then served in 

the Indiana Attorney General’s office, followed by his first experience in the United States Attorney’s Office in the Northern District. 

After many years of private practice, Joe assumed his current position of United States Attorney for the Northern District of Indiana on September 21, 2001. His performance in this position has 

been nothing short of remarkable. He has undertaken the most aggressive public corruption initiative in the history of the office. 

Since 2002, over 30 public officials have been indicted and convicted. 

Joe has also used his office to target the use and possession of 

illegal firearms, combat gang activity, implement drug-demand reduction programs, and cultivate community partnerships. Likewise, 

Joe has demonstrated leadership in the Justice Department, where 

he serves on several of the Attorney General’s Advisory Committees, including Violent and Organized Crime, White Collar Crime, 

Sentencing Guidelines, and the Region Information Sharing Working Group. 

Newspapers across northern Indiana contain articles and editorials applauding his determination to bring about effective law 

enforcement. The Northwest Indiana Times recently commented 

that Joe Van Bokkelen ‘‘has an excellent track record for the 5 

years he has led the U.S. Attorney’s Office in Northern Indiana.’’ 

He has received a number of high performance ratings, including 

the AV Rating from Martindale-Hubbell and the highest judicial 

rating from the American Bar Association. Outside of his public 

service, Joe is involved in a number of community activities and 

civic organizations. 

I would like to thank you again, Mr. Chairman, for this opportunity to present Joe Van Bokkelen to the Committee. I believe 

that he will demonstrate remarkable leadership to northern Indiana and will appropriately uphold and defend our laws under the 

Constitution. 

Thank you, sir. 

Senator SCHUMER. Thank you, Senator Lugar, and your strong 

recommendation of Mr. Van Bokkelen will go a long way with this 

Committee, so we thank you for being here. 

Senator LUGAR. Thank you very much. 

Senator SCHUMER. I would now ask our four nominees to come 

forward. Would they please take their seats? Debra Livingston, 

Roslynn Mauskopf, Richard Sullivan and Joseph Van Bokkelen. 

239

I have an opening statement. I did not give that so that Senator 

Lugar could get on his way, but I think before I give my opening 

statement, why don’t you all stand, raise your right hand. Do you 

affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the 

truth? 

Ms. LIVINGSTON. I do. 

Ms. MAUSKOPF. I do. 

Mr. SULLIVAN. I do. 

Mr. VAN BOKKELEN. I do. 

Senator SCHUMER. Please be seated. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. Well, good morning, everybody, and I thank 

you all for being here. I want to observe that our nominees this 

morning are Federal prosecutors or former Federal prosecutors, 

which is very timely given our Committee’s investigation into 

whether the Department of Justice has impinged on prosecutorial 

independence. We have two sitting U.S. Attorneys: Ms. Mauskopf 

from my home Eastern District of New York, Brooklyn and four 

other great counties; and Mr. Van Bokkelen for the Northern District of Indiana. We also have two former Assistant U.S. Attorneys, 

both Mr. Sullivan and Ms. Livingston having served in the Southern District of New York. And as if that were not enough, I understand we have at least one other Assistant U.S. Attorney among 

the family members today. So that is all very good news. 

I also want to point out, take the liberty sitting in the chair here 

as the Chairman of the Subcommittee that oversees the courts, and 

being a New Yorker, having three of the four nominees come from 

New York, I want to point out that the record we in New York 

have for a system of nominating Federal nominees works. It has 

worked very well for the 6 or 7 years—everyone has heard about 

the rancor that goes on in the nomination of judges, but in New 

York it has worked quite well in the past. There is often rancor in 

other parts of the country, but very little in the quiet, bashful State 

of New York. So I am glad to see that that happens. 

But, seriously, it is because in New York we have an effective 

and bipartisan way to select qualified and moderate candidates—

not too far right, not too far left—for the bench. And apropos of 

that point, let me note that Senator Clinton, whom I work with 

very closely in these areas, will be submitting a statement of support for all three of the nominees from New York, which I am sure 

the Judiciary Committee will appreciate. 

Now, let me introduce our nominees here today. First, Debra Livingston for the Second Circuit, which is an appellate court, as you 

all know. 

Ms. Livingston’s career so far has spanned private practice, 

criminal prosecution, and academia. She is currently Vice Dean 

and the Paul J. Kellner Professor of Law at the Columbia University Law School, one of the finest in the country, where she teaches 

criminal procedure and evidence, in addition to a seminar on national security and terrorism. She has written extensively on law 

240

enforcement accountability and other criminal law issues, and she 

is co-author of a criminal procedure casebook. 

Ms. Livingston is a graduate of Princeton University and received her J.D. from Harvard Law School, my alma mater, where 

she served as an editor of the Harvard Law Review. I was not so 

fortunate to be on the Law Review. 

After completing her J.D., Ms. Livingston began her legal career 

by clerking for Judge J. Edward Lumbard on the U.S. Court of Appeals for the Second Circuit. So, if confirmed, this would really be 

her second time serving the Second Circuit Court. 

From 1986 to 1991, Ms. Livingston, as was mentioned, was an 

Assistant U.S. Attorney in the Southern District of New York, 

where she prosecuted public corruption cases and served as the 

Deputy Chief of Appeals in the Criminal Division. Before and after 

her time as prosecutor, Ms. Livingston was an associate at the 

major New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison—again, where I served for one summer. That was all I lasted 

there. 

She entered academia in 1992 at the University of Michigan Law 

School and then returned to New York in 1994 to join the faculty 

of Columbia Law School. She also served as Commissioner on the 

New York City Civilian Complaint Review Board for many years, 

from 1994 until 2003. 

Ms. Mauskopf has served since 2002 as the U.S. Attorney for the 

Eastern District of New York, where she oversees all Federal criminal and civil cases in Brooklyn, Queens, Staten Island, Nassau, and 

Suffolk counties. She is originally from Washington, D.C., earned 

her undergraduate degree from Brandeis University, and her J.D. 

from the Georgetown University Law Center. 

Ms. Mauskopf is a veteran public servant, having served as the 

New York State Inspector General from 1995 to 2002. That office 

is responsible for investigating misconduct in all executive branch 

agencies for the State. While serving in that capacity, Governor 

Pataki also appointed her as Chair of the Governor’s Moreland Act 

Commission on New York City Schools. Prior to her appointment 

as Inspector General, Ms. Mauskopf served as an assistant district 

attorney in Manhattan, where she prosecuted violent crimes and 

white-collar cases, among other matters. In the district attorney’s 

office, Ms. Mauskopf rose to become the Deputy of the Special Prosecutions Bureau in 1992 and Chief of the Frauds Bureau in 1993 

to 1995. 

Richard Sullivan—or it says ‘‘Rich’’ Sullivan. 

Mr. SULLIVAN. Either one is fine. 

Senator SCHUMER. OK. Well, the card says ‘‘Richard’’ and my 

notes say ‘‘Rich.’’ Last but not least, let me introduce Rich Sullivan. 

This is a nice friendly hearing, so you can call me ‘‘Chuck’’ and I 

will call you ‘‘Rich.’’

[Laughter.] 

Senator SCHUMER. Mr. Sullivan is the General Counsel of Marsh 

& McLennan Companies, Inc. That is a global professional services 

firm. He is a native of Long Island and attended William & Mary 

College. Mr. Sullivan earned his J.D. from Yale Law School, began 

his legal career as a clerk to Judge David Ebel in the U.S. Court 

of Appeals for the Tenth Circuit in Colorado. 

241

Like most native New Yorkers, he did not leave for too long and 

returned after his clerkship to practice law for several years with 

the firm of Wachtell, Lipton, Rosen & Katz. In 1994, Mr. Sullivan 

left private practice to become a Federal prosecutor, serving as Assistant U.S. Attorney in the Southern District of New York from 

1994 to 2005. He became a supervisor of the General Crimes Unit, 

then chief of the Narcotics Unit. Later, then-U.S. Attorney Jim 

Comey named Mr. Sullivan the founding chief of the newly created 

International Narcotics Trafficking Unit, dedicated to investigating 

and prosecuting the world’s largest narcotic-trafficking and moneylaundering organizations. 

During his last 3 years in the office, from 2002 to 2005, Mr. Sullivan was also Director of the New York-New Jersey Organized 

Crime Drug Enforcement Task Force, where he managed the activities of law enforcement officers conducting investigations and 

prosecutions for a major Federal task force. I should note that 

while Mr. Sullivan was with the Southern District of New York, he 

supervised my chief counsel, Preet Bharara, right here. You probably read his glowing article in Time Magazine. His mother enjoyed it very much, he informed me. But Preet has only had wonderful things to say about Rich Sullivan. I guess that is why it says 

‘‘Rich.’’

Anyway, I thank these three nominees for being here, and my 

colleague, Senator Lugar, has introduced Mr. Van Bokkelen. I am 

introducing these three nominees not as Chairman so much but as 

the Senator from New York. 

So before I move on, I would like to give each of the nominees 

a chance to introduce families or friends who they might have with 

them today, because I know this a proud day, not only for the 

nominees but for their families. You know, we all know how our 

families are being us every step of the way, and we would not be 

there, I am sure you all agree with me, without the support our 

families have given us. 

So why don’t we first go to Professor Livingston. Do you have 

any people you might like to introduce? 

STATEMENT OF DEBRA ANN LIVINGSTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SECOND CIRCUIT 

Ms. LIVINGSTON. Yes, Senator. I have with me today my husband, John McEnany, and my father, Robert Livingston. I was 

lucky enough to receive notice of this hearing when my parents 

were in New York. My mother, Sara Livingston, would have liked 

to be here, but she is home helping to take care of our—

Senator SCHUMER. Would they wave or like to stand up so we 

can see them both? Thank you. Congratulations to both of you. 

[The biographical information of Ms. Livingston follows:]

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Senator SCHUMER. How about Ms. Mauskopf? 

STATEMENT OF ROSLYNN RENEE MAUSKOPF, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK 

Ms. MAUSKOPF. Thank you, Senator Schumer. Today I have with 

me my mother, Regina Mauskopf, who is very, very proud to be 

here and I think would not be embarrassed to note in the Congressional Record that she is about to turn 90. 

Senator SCHUMER. God bless. And a Holocaust survivor. 

Ms. MAUSKOPF. A Holocaust survivor, along with my father, 

Barry Mauskopf, who passed away a few years ago and who is with 

us in spirit. I am happy to have both of them here. 

Senator SCHUMER. Amen. 

Ms. MAUSKOPF. I am also very happy to have my home-State 

Senator chairing this hearing. 

Senator SCHUMER. Thank you. And would you just like to wave, 

Mrs. Mauskopf? Thank you. And many more years to you. May God 

give you many more years. 

[The biographical information of Ms. Mauskopf follows:]

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Senator SCHUMER. Rich Sullivan, you can introduce your family 

by their nicknames, too. 

[Laughter.] 

STATEMENT OF RICHARD JOSEPH SULLIVAN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW 

YORK 

Mr. SULLIVAN. I actually will. My father is here today, John 

‘‘Jack’’ Sullivan. 

Senator SCHUMER. Jack. 

Mr. SULLIVAN. He is a Flushing-born, now Long Island resident 

for many years. My wife, Anne, and our twin daughters could not 

be here today. My father-in-law is in the hospital, so she is caring 

for him. 

Senator SCHUMER. We wish him a speedy recovery. 

Mr. SULLIVAN. Thank you, Senator. 

[The biographical information of Mr. Sullivan follows:]

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Senator SCHUMER. And Mr. Van Bokkelen. 

STATEMENT OF JOSEPH S. VAN BOKKELEN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF INDIANA 

Mr. VAN BOKKELEN. In my case, Senator Lugar introduced all 

my family members. I am excited that they are here, in particular, 

Dr. Paul and Betsy Hauser who are my wife’s stepmother and husband. 

[The biographical information of Mr. Van Bokkelen follows:]

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Senator SCHUMER. Great. Well, thank you very much, and welcome to all the families, and now I have a few questions for each 

of the nominees. 

First, this one is for Debra Livingston. First, could you please 

identify two judges or Justices whom you admire and explain the 

reason why. 

Ms. LIVINGSTON. I am a believer in judicial restraint, Senator, 

and so as a result of that, I very much admire the work of judges 

that have embodied that philosophy in their work. Justice Jackson 

comes immediately to mind. People love him for his writing and for 

the beauty of that writing. But he was a firm believer that part of 

the judicial task is to confine yourself to the appropriate role. 

I could also mention Justice Harlan, who also embodied this in 

his judicial philosophy. 

I should also say I cannot subscribe to all the opinions of both 

of those Justices, but their general overall philosophy I am very 

much sympathetic with. 

Senator SCHUMER. And one from New York, one from New Jersey. That is very nice, too. OK. 

You spent 15 years as a law professor, first at the University of 

Michigan and since 1994 at Columbia. Prior to entering academia, 

you practiced law for 8 years. What can you tell the Committee to 

assure us your past courtroom experience provides a sufficient 

background for you to assess the district court records that you 

would review as an appellate judge? 

Ms. LIVINGSTON. Well, I did have a significant court experience 

as a prosecutor and as a Second Circuit clerk where I was able to 

observe firsthand how Second Circuit judges go about assessing the 

work of the district court. 

As a law professor, I have written and thought and taught in the 

fields of procedure, so I have remained immerse in thinking about 

procedural law and how judges implement the rule of law. And so 

I think am very sensitive to the role of the appellate court in supervising district courts. 

Senator SCHUMER. OK. Now, in 1998, you participated in a 

roundtable discussion about Terry v. Ohio. That was the landmark 

Supreme Court case that established police may stop and frisk a 

person for weapons based on reasonable suspicion. You praised the 

Terry decision because, ‘‘The Court in Terry did not foster the illusion of judicial control’’ over the day-to-day encounters between police and citizens. 

In your view, what is the proper role of the courts in regulating 

how police and other actors exercise the discretion granted to them 

by the criminal law? 

Ms. LIVINGSTON. Well, Senator, judges have a profound responsibility to decide the cases and controversies that come before them, 

and in that context there will be Fourth, Fifth, other Bill of Rights 

provisions raised that implicate police behavior. And courts articulate standards that then come to influence the operation of police 

departments. 

In that particular roundtable, I was speaking to the wisdom, I 

thought, of the Terry v. Ohio opinion in recognizing that that is a 

very important role, but that the judiciary cannot be the only part 

of Government that plays a role in promoting and fostering police 

373

accountability. So legislatures and the Executive have also historically played an important role and have helped foster reform in police departments, along with the Judiciary. 

Senator SCHUMER. Thank you. OK. Now for the district court 

nominees. First I have some questions that I will ask all of you, 

and we will go with them seriatim. The same question I first asked 

Professor Livingston, it is one of my favorites, and that is, please 

identify two judges or Justices whom you admire and explain the 

reason for your selection. Ms. Mauskopf? 

Ms. MAUSKOPF. I also admire Justice Jackson, not only for his 

body of work as a Supreme Court Justice, but he served as an Attorney General of the United States; he was also the chief prosecutor at the Nuremberg trials. He also gave, as Attorney General, 

one of the seminal speeches about the Federal prosecutor. And in 

that speech, which I quote to every Assistant United States Attorney that I swear in, he talks about the awesome power that a Federal prosecutor holds. A prosecutor has more control over life and 

liberty than any other person in America. And it is something that 

has always been in the forefront of my mind as a prosecutor from 

my days in the D.A.’s office to my days at U.S. Attorney, and it is 

something that will be in the forefront of my mind, should I be confirmed as a Federal district court judge. 

Senator SCHUMER. OK. Do you have another one? 

Ms. MAUSKOPF. Supreme Court Justice? 

Senator SCHUMER. Anybody. It could be two judges or Justices, 

either one. 

Ms. MAUSKOPF. I think one of my favorite district court judges 

whom I admire greatly, who serves on the Eastern District bench, 

is Judge Nicholas Garaufis, who comes at his work obviously as a 

great lawyer, with great legal skill, but with great common sense 

and practical experience. And to me, as a district court judge, the 

combination of those two attributes make for a great district court 

judge. 

Senator SCHUMER. I think you have summed up Judge Garaufis. 

He is a new judge. Somehow the wheel has given him a whole lot 

of controversial cases right away, but he has done a great job and 

I agree with you. I agree with you about all of these. You picked 

very well, both of you. 

Mr. Sullivan? 

Mr. SULLIVAN. Well, the first judge who would come to mind 

would be Michael Mukasey, whose seat I would be taking if I were 

fortunate enough to be confirmed. I thought Judge Mukasey always 

exhibited tremendous intelligence, independence, and treated all 

litigants and lawyers with great respect. And I thought that was 

exactly what a district judge should be, and I think he was recognized as a model district judge. 

Another judge would be Denny Chin, also in the Southern District, who I think I had four trials before, and I was always struck 

by how he made defendants and defense lawyers and prosecutors 

feel that they had a fair shake at the trial. And I remember on one 

occasion a defendant, who had been convicted, nevertheless 

thanked the Court for conducting a fair trial. I thought that speaks 

volumes about the man. 

374

Senator SCHUMER. Thank you. I will let the record show that I 

recommended Judge Mukasey to become Attorney General. Not 

that I want to throw any politics into this hearing. So I think highly of him as well. 

Mr. Van Bokkelen? 

Mr. VAN BOKKELEN. Mine, likewise, would be district court—

Senator SCHUMER. You do not have to pick New York judges, Mr. 

Van Bokkelen. 

[Laughter.] 

Mr. VAN BOKKELEN. I was trying to write down some names of 

New York judges I could remember. I came up with zero. But there 

would be district court judges, because that is where I spent my 

whole life, prosecuting cases and defending cases in district court. 

And three of them would be: 

Judge Michael Kanne, who sits on the Seventh Circuit now, but, 

however, was in the Northern District of Indiana; as a matter of 

fact was a fraternity brother of mine; Judge Phil McNagny, who is 

deceased; and Judge George Beamer, who was a judge when I became an Assistant U.S. Attorney, at a much younger age than I am 

right now, and who guided me through a lot of things, particularly 

the role of a prosecutor, the limits of prosecutorial authority, and 

how to conduct yourself. 

Senator SCHUMER. Good. OK. And let me now ask some specific 

questions of each of our nominees based on their experience. 

For U.S. Attorney Mauskopf, you have spent essentially all of 

your career, legal career, as a prosecutor in the State and Federal 

systems, but you have spent little or no time representing the other 

side in the criminal justice system. What can you tell the Committee to assure us that, if confirmed, you will be able to fairly consider the claims and rights of criminal defendants who come into 

your courtroom? 

Ms. MAUSKOPF. I think the first order of a prosecutor in considering any case that comes before a prosecutor is to think about the 

other side. In fact, I was taught that from my first days in the 

Manhattan D.A.’s office, and I have done that in assessing each 

case, each issue that has come before me as a prosecutor, and as 

a result of doing that throughout my entire career, I have earned 

a reputation from being a fair and honest prosecutor, one with integrity, one that considers both sides fairly. 

It is equally important, it has been equally important throughout 

my career as a prosecutor, as the IG, to determine not to bring 

charges as well as to bring charges. So seeking justice is the primary role of a prosecutor, and that ensures that both sides are considered. 

Senator SCHUMER. Thank you. 

And for Mr. Sullivan, you served for over a decade as a prosecutor in the Southern District, the same district that you have 

now been nominated to serve as a judge. You left the U.S. Attorney’s Office relatively recently. What can you tell the Committee to 

assure us you will be able to fairly consider the cases brought by 

Federal prosecutors who worked with you or under your supervision in the U.S. Attorney’s Office? 

Mr. SULLIVAN. Well, I agree with much of what Ms. Mauskopf 

just said. I think a prosecutor’s first role is to do justice and to 

375

make sure that in making charging decisions, which are monumental decisions in an individual’s life, that they have great—they 

have certainty, to a moral certainty, about the guilt of the individual being charged and would hold prosecutors to an extremely 

high standard. I think I had a reputation for doing that when I was 

supervising assistants, that we should never lightly indict anyone. 

And I would expect prosecutors to adhere to that norm when they 

appeared in front of me. 

I would also expect them to treat defendants and defense lawyers 

with great respect. You know, our system of justice is, I think, the 

envy of the world, and much of it turns on the respect with which 

we treat accused individuals who are innocent until proven guilty. 

Senator SCHUMER. Thank you, Mr. Sullivan. 

And for Mr. Van Bokkelen, you are currently serving as the U.S. 

Attorney for the Northern District. That is the same district where 

you have been nominated, just like Mr. Sullivan. So what can you 

tell the Committee to assure us you will be able to fairly consider 

cases brought by Federal prosecutors who worked for you in the 

U.S. Attorney’s Office? 

Mr. VAN BOKKELEN. Well, one difference I have is the better part 

of my career has been spent defending people, those charged by the 

Government with crimes. And when I was in private practice, I did 

a lot of pro bono defense work. I was one of the founding members 

of the Federal Community Defender Program, which now operates 

in our district. So I have been on both sides of representational 

matters. 

The fact is, as I move from one position over to the other position—I think I did that without a problem—I make sure I instituted in my district a very detailed prosecution memorandum to 

make sure the cases we were bringing were worthy of Federal prosecution and reminded my prosecutors at all times that one of the 

most difficult decisions to be made when an agency is pushing very 

hard is the decision not to prosecute. And if a case is prosecuted, 

it should be prosecuted because it is worthy of a prosecution, not 

simply because someone thinks a crime may or may not have been 

committed. 

Senator SCHUMER. OK. And one other question for all of our district court nominees. You know one of the things this Committee 

is talking about now is the firing of the U.S. Attorneys. So just, in 

general—I do not want to ask you about any of the specifics, but 

in your view, what is the proper balance between the need for prosecutorial independence and the President’s prerogative to appoint 

U.S. Attorneys? We will start with Ms. Mauskopf and move our 

way over. 

Ms. MAUSKOPF. I think the President’s prerogative and the Attorney General’s prerogative to set the criminal justice priorities for 

an administration is entirely appropriate, and it is part of the role 

of a U.S. Attorney to carry out those priorities and to particularize 

those priorities within a particular district. It is also the role of the 

U.S. Attorney to address whether or not the national priorities are 

as much of a priority within that particular district and to assess 

what other priorities need to be addressed within a judicial district. 

The balance is a delicate one, and it is one that both the executives, the Attorney General and the President, as well as the U.S. 

376

Attorney, have to—there has to be a dialog. There has to be a discussion. And there has to be a complete understanding on both 

sides as to how those priorities and prerogatives are going to be 

carried out. 

Mr. SULLIVAN. Well, I would agree with much of that answer. I 

would add, I think, that I think it is vitally important for individuals in a district to believe that their United States Attorney is 

above politics. 

In New York, I will say that the three United States Attorneys 

whom I served—Mary Jo White, Jim Comey, and David Kelley—

were perceived that way, and there is a tremendous importance attached to that perception. I do not think anyone I ever dealt with 

ever felt for a moment that decisions made by the office were in 

any way tainted by petty political considerations or that indictments were brought because of pressure brought to bear. I think 

that is a tremendously important thing, that kind of independence 

and presumption of good faith on the part of U.S. Attorneys. 

Mr. VAN BOKKELEN. I agree with the answer of my colleagues, 

and one other thing I think supports that is the fact that Senator 

Bayh, in fact, is supporting my nomination, which I failed to acknowledge. I think that speaks pages to what is perceived by both 

sides as to the function I have served, and it has been very much 

down the line and I have called them as they needed to be called. 

Senator SCHUMER. Do any of the four of you want to add anything else? 

[No response.] 

Senator SCHUMER. Thank you all for coming, and the hearing is 

adjourned. 

[Whereupon, at 10:46 a.m., the Committee was adjourned.] 

[Questions and answers and a submission for the record follow.]

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NOMINATIONS OF WILLIAM LINDSAY OSTEEN, 

JR., NOMINEE TO BE DISTRICT JUDGE FOR 

THE MIDDLE DISTRICT OF NORTH CAROLINA; MARTIN KARL REIDINGER, NOMINEE 

TO BE DISTRICT JUDGE FOR THE WESTERN 

DISTRICT OF NORTH CAROLINA; TIMOTHY 

D. DEGIUSTI, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF 

OKLAHOMA; AND JANIS LYNN 

SAMMARTINO, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

CALIFORNIA 

WEDNESDAY, JUNE 20, 2007

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

The Committee met, pursuant to notice, at 2:35 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Dianne Feinstein, 

presiding. 

Present: Senator Feinstein. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. I apologize to my colleagues and to those who 

are interested in our nominees for being late. I do not like to be 

late. Everything is coming down at one time, and I think probably 

the other Senators understand what I mean. In any event, I am 

very pleased to welcome Senators Inhofe, Dole, and Burr to this judicial nominations hearing. We have four distinguished judicial 

nominees on the agenda today, and we welcome them as well. We 

look forward to hearing from them after the introductions. 

One of our most important constitutional duties is to consider the 

President’s judicial and executive branch nominations, and today’s 

hearing continues the progress that we have made in the 51⁄2

months since this Congress began. 

The Senate has confirmed 18 nominees so far this year. As 

Chairman Leahy recently pointed out, that is more judges than 

were confirmed in the entire 1996 session of Congress when President Clinton was in office, and we are only at the midpoint of this 

session. Chairman Leahy is also justifiably proud of the fact that 

390

during the Bush Presidency, the Senate Judiciary Committee 

under Democratic control has confirmed more circuit judges, more 

district judges, and more total judges than under either of the Republican Chairmen who worked with Republican majorities in the 

Senate. 

The reason I go into this is it is often mentioned back and forth 

in the Judiciary Committee, and so every chance on this side of the 

aisle we get to straighten the record, I like to do it. 

In any event, we still do not rubber stamp each judicial nominee, 

of course, and we try to act as quickly as possible to confirm nominees. So I would like to hear from the three Senators who are here. 

I would like to indicate that Senator Coburn would be present to 

support his nominee, but as I think most know, he has had surgery 

and is recovering. As soon as he comes back, he will put comments 

in the record. 

Who was the first Senator on the spot? Does anyone have a time 

issue? 

[No response.] 

Senator FEINSTEIN. Well, then, I will go to the woman automatically. Senator Dole, would you proceed? 

PRESENTATION OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE 

TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 

NORTH CAROLINA, AND MARTIN KARL REIDINGER, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT 

OF NORTH CAROLINA, BY HON. ELIZABETH DOLE, A U.S. 

SENATOR FROM THE STATE OF NORTH CAROLINA 

Senator DOLE. Thank you very much, Chairman Feinstein, for 

holding today’s hearing. It is my great privilege to be here and to 

introduce two outstanding North Carolinians who are nominees for 

district judgeships in my home State: William Osteen, Jr., for the 

Middle District, and Martin Reidinger for the Western District. 

Both Bill and Martin have amassed impressive records of accomplishment in their legal careers. I am proud to have recommended 

them to President Bush, even though they both went to the University of North Carolina for their undergraduate and law degrees, a 

fact this Duke alumni just had to overlook. And let me add that 

Bill’s mother, Joanne, has been a treasured friend of mine since 

our Duke days together. 

Bill Osteen has deep roots in North Carolina, receiving his education in our State, as I have mentioned, and practicing law there 

for the past two decades. In 2004 and 2005, Business North Carolina included him in its Legal Elite, the cream of the crop, selected 

not by the editors of the magazine but by State bar colleagues. Bill 

has broad experience in both criminal and civil litigation. As we all 

know, criminal cases make up a substantial and increasingly large 

portion of a Federal district judge’s docket, and Bill is well 

equipped to handle this important aspect of the job. He estimates 

that he has served as the counsel of record in more than 100 Federal criminal cases. Bill also knows his way around a courtroom. 

In an age when most cases are resolved through settlement or plea 

agreement, Bill has taken over 30 cases to trial. On the strength 

of this experience, I have no doubt that Bill will be able to make 

the transition to district judge without missing a beat. 

391

In addition to a distinguished professional life, Bill also has a 

very full personal life. He is a dedicated family man to his wife, 

Elizabeth, and their two children—Anne Bennett and Bill—and he 

is a man of faith, actively involved in the First Presbyterian 

Church of Greensboro. 

It is also notable that Bill has been nominated to succeed his father to this seat. Bill’s father, William Osteen, Sr., has served the 

Middle District with great distinction, and I know that he must be 

proud indeed of his son’s many accomplishments. It is a rare and 

remarkable feat that a son has the opportunity to serve in his father’s one-time place on the bench, and I am honored to tout Bill’s 

many qualifications here today. 

And I am also honored to introduce Martin Reidinger, the President’s nominee for the Western District of North Carolina. Martin, 

too, is a man of significant professional achievement. For the past 

23 years, he has practiced law in Asheville with Adams, Henson, 

Carson, Crow & Saenger. Martin, I understand that you drove all 

the way from the beautiful and probably a lot cooler mountains of 

Asheville to muggy Washington to be with us today, and, folks, 

that is nearly 500 miles. And we are glad to see some of your 

strongest supporters—your wife, Patti, and family here with you 

today. 

Martin has vast civil litigation experience handling matters running the gamut from employment law to land disputes. He frequently appears in Federal courts and has litigated to a verdict or 

judgment nearly 200 cases over the past two decades. In addition, 

Martin has served as the President and Secretary Treasurer of the 

Buckham County Bar Association, and he currently sits on the 

Board of Directors for Pisgah Legal Services, which provides free 

civil legal services to low-income people who are unable to afford 

an attorney. In fact, in 2004, Martin accepted the North Carolina 

State Bar’s Outstanding Pro Bono Services Award for his law firm’s 

commitment to giving back to their community. 

Martin and Bill come to this Committee with impeccable credentials, and I am confident that they both would serve with great distinction as members of the Federal judiciary. Both have earned the 

respect of their colleagues and peers, many of whom have contacted 

me to voice support for their nominations. It is my great privilege 

to give them my strongest endorsement. 

Thank you again for holding this hearing for two of North Carolina’s most talented and capable legal minds. Currently, our State 

has four district court vacancies, so I urge this Committee to act 

with due speed on these nominations, and I thank you very much, 

Madam Chairman. 

Senator FEINSTEIN. Thank you, Senator Dole. 

Senator Inhofe? 

PRESENTATION OF TIMOTHY D. DEGIUSTI, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA, BY HON. JAMES M. INHOFE, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator INHOFE. Well, thank you, Madam Chairwoman. I am 

proud to lend my support to the nominee here behind me, Timothy 

392

DeGiusti, for the United States District Court for the Western District of Oklahoma. 

He was born in Oklahoma City, where he continues to live with 

his wife, Elaine, and they have four children. He has led a life of 

excellence and is no stranger to public service. 

He enlisted in the Army National Guard as well as the Army 

ROTC Program at the University of Oklahoma in 1981. In 1985, 

he received his B.A. with distinction in ethics and religion at the 

University of Oklahoma and officially joined the Army Reserves. 

After graduating from the University of Oklahoma College of 

Law in 1988, Tim became an associate at Andrews Davis, an Oklahoma City firm where he ultimately became a partner. Since 2000, 

he has been as a partner in the Oklahoma City firm Holladay, 

Chilton & DeGiusti. He is a member of the Order of Barristers and 

was named by Oklahoma Governor Brad Henry to be a member of 

the Oklahoma Uniform Laws Commission, where he serves as a 

delegate to the National Conference of Commissioners of Uniform 

State Laws. 

I would comment also that he has been strongly recommended by 

Governor Henry who is a Democrat, so he has broad professional, 

personal and bipartisan support. 

From 1990 to 1993, Tim DeGiusti served on active duty as trial 

counsel for the United States Army’s Judge Advocate Generals 

Corps, trying 57 courts martial cases. He continued to work as a 

military lawyer in the Army Reserves until 1999 and in the Army 

National Guard until 2003. 

He has taught courses in military law and trial techniques at the 

University of Oklahoma College of Law as an adjunct professor and 

has authored articles such as ‘‘Unlawful Command Influence: Raising and Litigating the Issue,’’ which appeared in The Army Lawyer 

in 1993. 

Tim was named among the 2006 Oklahoma Super Lawyers and 

has received the Martindale and Hubbell ‘‘peer review rating’’, 

which is the most prestigious of ratings. He is also listed among 

Best Lawyers in America in 2007 and has received the American 

Bar Association’s highest rating of ‘‘well-qualified.’’ His public service also extends to pro bono legal services and long involvement in 

the Knights of Columbus. 

I have to pause here and say that he happens to be the son-inlaw of someone who is a very close friend of mine, Judge Ralph 

Thompson, with whom I served many years ago in the State legislature. And so I know that Judge Thompson and his wife, Tim’s father-in-law and mother-in-law are very proud to be here today to 

watch this process take place. 

Timothy DeGiusti receives my full recommendation to serve as 

district judge for the Western District of Oklahoma, and I ask you 

to quickly approve his nomination. 

Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you, Senator Inhofe. 

Senator Burr? 

393

PRESENTATION OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE 

TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF 

NORTH CAROLINA, AND MARTIN KARL REIDINGER, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT 

OF NORTH CAROLINA, BY HON. RICHARD BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA 

Senator BURR. Madam Chairwoman, thank you, and I think it is 

safe to say that Senator Dole and I are here in support of two incredible candidates today. It is a privilege to be here to introduce 

the Committee to two honorable North Carolinians who are here in 

hopes of becoming United States district court judges in our home 

State. Both Bill Osteen, Jr., and Martin Reidinger have the qualifications, the experience, and the temperament to be outstanding 

judges. 

Bill Osteen—it is not the first time, as Senator Dole said, that 

a Bill Osteen has been in front of this Committee for this position. 

Over 15 years ago, his dad was considered by this Committee, and 

he has served with unbelievable distinction for his career on the 

bench. But make no mistake about it. Bill Osteen, Jr., is not here 

today because his father was an outstanding judge. Bill is here 

today because he is qualified in his own right to serve on the Federal bench, and he is the best person to keep this strong judicial 

legacy alive. 

Born in Greensboro, North Carolina, Bill attended the University 

of North Carolina at Chapel Hill for graduate and undergraduate 

school. Like Senator Dole, being a Wake Forest graduate, it is difficult for both of us to bring so many Tar Heel graduates to the 

Hill. But, clearly, the experience and the education they have is not 

a disqualifier. 

Bill’s professional legal experience is diverse. He has litigated a 

wide range of cases, handling both civil and criminal cases, and he 

is familiar, very familiar, with the Federal procedure. But perhaps 

most importantly, in addition to his impressive professional qualifications, Bill is a good man. I had the pleasure of meeting Bill’s 

family today before this hearing. I can tell you that he is a good 

person. He is a good son. He is a good dad to his two children, 

Anne Bennett and Bill, and he is a good husband to his wife, Elizabeth. I urge the members of this Committee to support Bill’s nomination and to confirm him to serve on the North Carolina Federal 

bench. 

Martin—

Senator FEINSTEIN. Thank you—excuse me. 

Senator BURR. I have got one more, if I could. 

Senator FEINSTEIN. Please, go ahead. 

Senator BURR. Thank you, Madam Chairwoman. Martin 

Reidinger, as Senator Dole said, is from Asheville, North Carolina. 

Traditionally, in North Carolina, it seems like the Western District 

is always served by somebody out of Charlotte, North Carolina. 

However, the Western District of North Carolina spans western 

200 more miles past Charlotte. Martin resides in Asheville. It is located in that beautiful western region in the Blue Ridge Mountains. 

Like Bill Osteen, a Carolina graduate, undergrad and graduate 

school, Martin has a well-established Federal practice in western 

394

North Carolina. Throughout his career, he has handled all types of 

cases, presented a wide range of clients and has appeared in all 

levels of State and Federal court. He truly represents western 

North Carolina. 

So often nominees for this judicial district, as I said, reside in 

Charlotte. We are proud of the fact that we have got the people 

with the experience and the education and the temperament, that 

are homegrown, that can serve on the bench. I am pleased that the 

strong legal minds of western North Carolina were not overlooked 

during this nomination process and one of their own is here today. 

He is also here because his qualifications of a good person, a great 

dad, a great person put him at the top of the list of candidates that 

should be considered. 

Madam Chairwoman, you have before you today two qualified 

nominees with a wealth of legal experience who maintain the requisite judicial temperament to make an excellent Federal judge. I 

hope that you will give these nominations prompt and favorable 

consideration, and I urge my colleagues to expedite these nominations. 

I thank the Committee for their time. 

Senator FEINSTEIN. Thank you very much, Senator Burr, and I 

would like to thank all three Senators. You know, your testimony 

really is meaningful. It becomes part of the official record. I know 

the candidates appreciate it, and I want you to know the Committee appreciates it as well. 

PRESENTATION JANIS LYNN SAMMARTINO, NOMINEE TO DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 

THE STATE OF CALIFORNIA 

Senator FEINSTEIN. I am going to say a few words on behalf of 

Judge Sammartino from San Diego, but if you wish to be excused, 

please feel free. And I would like to put in the record at this time 

a statement of the Chairman, Senator Patrick Leahy. Thank you 

again so much. 

I am very pleased to say a few words on behalf of the nominee 

for the District Court of the Southern District of California, Judge 

Janis Lynn Sammartino. She is a graduate of Occidental College 

at the University of Notre Dame Law School. After earning her law 

degree, she served as a law clerk in the Superior Court of South 

Bend, Indiana. Since then, she has devoted herself to service to her 

city and her State, and, of course, that State is the best State in 

the Union—California. 

Judge Sammartino worked for 18 years as a Deputy City Attorney in San Diego. In her first 2 years as a deputy in the Criminal 

Division, she prosecuted more than 50 criminal cases in front of juries and an equal number of bench trials. She was then promoted 

to the Municipal Law Section of the Civil Division. She has played 

a key role in the design and implementation of the city’s Facilities 

Benefit Assessment Program, a funding mechanism designed to finance public improvements in the city. When the program was 

challenged in court, she was part of the litigation team that defended it successfully. 

395

She later served as principal legal advisor to the city of San 

Diego on redevelopment issues, played a major role in the construction of the Horton Plaza Retail Center, which has been really responsible to a great extent for the refurbishment of the downtown 

of San Diego. And she rose to the rank of Senior Chief Deputy City 

Attorney. 

But if that is not enough, she was appointed to the municipal 

court in 1994 and to the superior court in 1995. As a testament to 

her skills as both a judge and a leader, her fellow judges elected 

her to be assistant presiding judge from 2004 to 2005 and then presiding judge as of January of 2006. She now oversees the second 

largest trial court in California, which is also the third largest trial 

court in the Nation. Clearly, her judicial career has given her experience in a wide range of areas, and I am very pleased to recommend her. 

I should say that she is a product of the screening committee in 

which we have three Republicans and three Democratic appointments who sit and screen judges. And we have had a very good 

track record. All of our judges have been confirmed. 

So I would like to ask the four potential judges to come forward, 

and I will administer the oath. If you would stand and raise your 

right hand and affirm the oath when I complete its reading. Do you 

affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. OSTEEN. I do. 

Mr. REIDINGER. I do. 

Mr. DEGIUSTI. I do. 

Judge SAMMARTINO. I do. 

Senator FEINSTEIN. Thank you, and you may be seated. Now, let 

me begin by saying that this is not a controversial group of potential judges, so to that extent, at least you can relax. I would like 

to invite each of you to say a few words and to introduce your family. Then I will ask a few questions and that will be it. So if we 

can go right down the line. Mr. Osteen, if you would like to begin. 

STATEMENT OF WILLIAM LINDSAY OSTEEN, JR., NOMINEE TO 

BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF NORTH 

CAROLINA 

Mr. OSTEEN. Senator, thank you for your words in your opening 

statement. All of us here I believe greatly appreciate the concern 

that the Senate shows in discharging its duties in reviewing these 

nominations. I would like to thank the President for trusting me 

sufficiently to nominate me for consideration to this position. I 

would also like to thank Senators Burr and Dole for their kind 

comments here today as well as their support throughout this process. 

Most of all, I would like to thank the people that I am getting 

ready to introduce to this Committee. They have shown tremendous support of me throughout every endeavor that I have undertaken, and I would like to start with my wife, Elizabeth Osteen; 

my daughter, Anne Bennett Osteen; my son, Bill Osteen; and then 

I would like to turn to my father, Judge William L. Osteen, or Bill 

Osteen; my mother, Joanne Osteen; my brother, Bob Osteen, and 

396

his fiancee, Jennifer Justice. I have one other brother who now resides in the great State of California, outside of Long Beach, California, and he unfortunately was unable to be here today. But had 

he not been tied up with work, he would certainly have been here 

by my side. 

Thank you. 

[The biographical information of Mr. Osteen follows.]

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Senator FEINSTEIN. Thank you very much. 

Mr. Reidinger? 

STATEMENT OF MARTIN KARL REIDINGER, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH 

CAROLINA 

Mr. REIDINGER. Thank you, Senator. First of all, I would like to 

very much thank this Committee for having this hearing today and 

giving me this opportunity to be here, and I would like to thank 

you, Senator, for being here to chair this hearing. 

I want to express my thanks to Senator Dole and Senator Burr 

for those very flattering introductions that they gave and also for 

their support in this process as they have recommended to the 

President that I be nominated. 

I would also like to express my thanks to President Bush for 

nominating me, to give me this opportunity, and to show that confidence that he has in me in order to advance that nomination. 

I would also like to introduce my family. They are very much responsible for very much of who I am. Behind me a couple rows 

back is my wife, Patti; our oldest daughter Heather McCrory, our 

daughter Sarah, our daughter Alex, and our son, Max. 

Thank you very much, Senator. 

[The biographical information of Mr. Reidinger follows.]

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Senator FEINSTEIN. Thank you very much. 

Mr. DeGiusti, please proceed. 

STATEMENT OF TIMOTHY D. DEGIUSTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA 

Mr. DEGIUSTI. Thank you, Senator Feinstein, for holding this 

hearing, and thanks to the other Committee members as well. I 

would like to thank President Bush for nominating me and thank 

Senators Inhofe and Coburn for their support and thank Senator 

Inhofe for his introduction. 

My family members who are here with me are my wife, Elaine; 

my father-in-law, Judge Ralph Thompson; his wife, my mother-inlaw, Barbara Thompson; my brother-in-law, Frank Campbell; sister-in-law, Lisa Campbell; and my sister, Cynthia Kadish. I also 

have a friend who has made the trip to be here today, my old boss 

from active duty Army days, Colonel (Retired) Bill Condron. 

Thank you. 

[The biographical information of Mr. DeGiusti follows.]

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Senator FEINSTEIN. Thank you very much. 

Judge Sammartino, welcome. 

STATEMENT OF JANIS LYNN SAMMARTINO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge SAMMARTINO. Thank you, Senator Feinstein, for holding 

this hearing and for chairing these proceedings today on behalf of 

the Committee on the Judiciary. Additionally, thank you is extended for your support in getting to this process and for your participation in the bipartisan commission that brings forward the 

nominees, and myself in particular, from California. It is very 

much appreciated. 

I would like to thank President Bush for the trust and confidence 

that he has placed in me by bringing my nomination forward to 

this Committee. 

Also, the other home-State Senator from the State of California, 

I would like to thank Barbara Boxer for her support, both in the 

bipartisan commission process and in bringing my name forward 

also to this Committee. 

I have numerous people here with me today from the State of 

California, and I would like to introduce them quickly. 

My mother and father, Marion and Angelo Sammartino are here 

from Oceanside, California. My two sons, Joseph Gardner and Jonathan Gardner. Joseph is from San Diego. Jonathan is from Berkeley, California. My sister, Stephanie McPherson, is currently residing in Richmond, Virginia. Joseph’s wife, Christine, now from San 

Diego, California, and her mother, Maria Strzelczyk, from Glen 

Rock, New Jersey. My dear friend, Superior Court Judge Herbert 

Hoffman, retired from the Superior Court, from Delmar, California. 

And two very good friends who came from La Jolla, California, for 

the proceedings today: Connie and Don Goertz. 

Again, I would like to thank the Committee for these proceedings 

today, Senator Feinstein. 

[The biographical information of Judge Sammartino follows.]

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Senator FEINSTEIN. Thank you very much. Now a few questions, 

and I will ask each one of you to respond to the same question. 

Over the past decade, the Supreme Court has struck down an 

unprecedented number of Federal statutes, most notably several 

designed to protect the civil rights of Americans, as beyond 

Congress’s power under Section 5 of the 14th Amendment, for example, Flores v. City of Boerne, Kimmel v. Florida Board of Regents, Board of Trustees v. Garrett. The Supreme Court has also recently struck down Federal statutes as being outside the authority 

granted to Congress by the Commerce Clause, such as in cases of 

U.S. v. Lopez and U.S. v. Morrison. What is your understanding of the scope of congressional power 

under Article I of the Constitution, in particular the Commerce 

Clause, and under Section 5 of the 14th Amendment? Who would 

like to start? 

That is the first test. Who would like to start? 

Mr. OSTEEN. Senator—

Senator FEINSTEIN. Judge Osteen? I mean, excuse me, Mr. 

Osteen. 

Mr. OSTEEN. Thank you very much. Senator, my experience in 

the practice of Federal criminal law has been primarily in the—or 

in the Federal law has been primarily in the criminal and general 

business litigation. To a certain extent, the Commerce Clause principles that the Court has described flow into certain criminal cases 

through, for example, school zone doctrines and those types of 

things, various criminal statutes. 

My views on this matter as a district judge nominee are very 

simply that the Supreme Court and the Congress set the rules and 

the precedent that I as a district court nominee am to follow, regardless of any personal feelings that I may have on the issue 

itself. 

So in responding to the Senator’s question, it is my belief that, 

regardless of any personal view that I may have on the Commerce 

Clause itself, it is my duty to apply the law as determined by the 

Supreme Court under the Constitution and apply those laws as 

passed by Congress. 

Thank you. 

Senator FEINSTEIN. Mr. Reidinger? 

Mr. REIDINGER. Thank you, Senator. My feeling on this point is 

that the Supreme Court has given the lower courts a road map to 

follow with regard to federalism issues and with regard to Commerce Clause issues. And it would be the role of a district court 

judge and, if the Senate sees fit to confirm me, it would be my role 

to try to follow that road map to the best of my ability, to try to 

apply those statutes and apply that case law to those statutes to 

the best that I can. 

Enactments of Congress have a presumption of constitutionality. 

It is not for a lower court to willy nilly find enactments of Congress 

to be unconstitutional, whether on federalism grounds or others. 

And, therefore, it is to be within that narrow scope that the Supreme Court has given us to apply that case law as it exists, but 

only to that extent. 

Senator FEINSTEIN. Well, let me, because you are not really responsive to the question. The Commerce Clause is the basis for 

514

which we legislate in many areas, and that is particularly true in 

the area of civil rights. So if you do not believe the Commerce 

Clause can cover this, the Congress has limited authority to legislate to correct major grievances of our society. And the purpose of 

the question is to try to ascertain what view you would have on the 

Commerce Clause as the basis for the legislation that the Congress 

might 1 day have before you. 

Mr. REIDINGER. If I may followup in answer to that. 

Senator FEINSTEIN. Please. 

Mr. REIDINGER. I believe that the Supreme Court has also found 

the Commerce Clause to be a proper basis for a good deal of legislation. 

Senator FEINSTEIN. Correct. 

Mr. REIDINGER. And within those boundaries, I think that there 

are probably thousands of statutes based upon the Commerce 

Clause that are perfectly constitutional and would be found so, 

would be held so, and have been held so by the Supreme Court. 

It is, first of all, the enactment of Congress with that presumption of constitutionality only to the extent that it has been tailored 

by the Supreme Court. That is the lodestar for the lower courts. 

Senator FEINSTEIN. Mr. DeGiusti? 

Mr. DEGIUSTI. Thank you, Senator. I concur with my colleague’s 

comments, and the presumption of constitutionality at the district 

court level I believe cannot be overstated. That is the point of departure in considering a provision of legislation, and from there the 

courts should tread carefully in considering those matters and, of 

course, always follow the guidance, binding guidance from the 

courts of your circuit and that established by the Supreme Court. 

Senator FEINSTEIN. Judge Sammartino? 

Judge SAMMARTINO. Thank you, Senator Feinstein. I agree with 

the comments of the other nominees this afternoon. The Supreme 

Court has found a basis for the Commerce Clause to be a foundation for much of the legislation that is referenced. And, of course, 

as a district court judge, if I am fortunate enough to be confirmed 

by the Senate, I would follow the law and the guidance of the Supreme Court, of course, in handling those matters. 

Senator FEINSTEIN. Thank you. I threw a hardball question at 

you. It was a question that you could go at very expansively or not 

at all. So let me do an easy one now. 

How can you assure us that if politically sensitive cases come before you and in any case before you you will be able to disregard 

your own personal views and allegiances and decide the case only 

on the law and the facts before you? Judge Sammartino? 

Judge SAMMARTINO. Thank you, Senator Feinstein. I would assure this Committee that any politically sensitive matter that 

would come before me would be decided solely on the merits of that 

and not on the basis of anything else. I would follow the law strictly as it is written and presented to me. 

I think my background as a superior court judge has trained me 

well to make that transition to the Federal bench. It is what I have 

tried to do for the last 13 years, and I think that is what judges 

do first and foremost. They set aside their personal views and follow the law to the fullest extent possible. 

Senator FEINSTEIN. Thank you. 

515

Mr. DeGiusti? 

Mr. DEGIUSTI. Senator, if I were to be confirmed as a district 

court judge, I would always endeavor first to faithfully apply the 

law as written, not as one might wish or think it should have been 

written, and apply that law to the facts at hand, impartially and 

fairly. And by doing so, I think one removes any political nature 

of the issues that are presented. 

Senator FEINSTEIN. Thank you. 

Mr. Reidinger? 

Mr. REIDINGER. Thank you, Senator. I believe that in order to 

provide equal justice, our judicial system must rely on judges to be 

able to apply the law, to have the intellectual rigor and the intellectual honesty to apply the law as it is, not as it would otherwise 

benefit those whom the judge may know or not as the judge may 

otherwise wish the law to be, but to apply the law as it is. Only 

then can justice be administered equally across the board. 

I would assure this Committee that I believe I bring to this position, if I am confirmed, that sort of intellectual honesty that is necessary, and I believe that I can do that in the administration of justice in this position, if I am confirmed. 

Senator FEINSTEIN. Thank you, Mr. Reidinger. 

Mr. Osteen? 

Mr. OSTEEN. Senator, thank you for your interest in that. I have 

had the good fortune to practice law in the Federal district courts 

in the State of North Carolina. My experience has been that the 

judges that have held court in that State have done it with the utmost of integrity, without any sense of politics in the courtroom, 

and that is a tradition that I would strongly endeavor to continue. 

It is my hope, if I am confirmed as a district judge by this Committee, that at the conclusion of my career people would not say 

that I was a conservative or a liberal judge, but instead would simply say that, ‘‘He followed the law and applied it as appropriate, 

without regard to any extraneous or irrelevant considerations.’’

Thank you. 

Senator FEINSTEIN. Thank you very much. 

Now, there has been a lot of discussion on the Committee from 

time to time about judicial activism and activist judges and exactly 

what that means. I would like to ask each of you to define ‘‘judicial 

activism’’ this afternoon. Mr. Reidinger, why don’t you go first? 

Mr. REIDINGER. Thank you, Senator. The way I would define ‘‘judicial activism’’ is a judge or a court going beyond applying the law 

as it is and in essence acting in a legislative or a quasi-legislative 

capacity, not just applying the law but creating the law in order 

to apply it. And with that definition, with that sort of understanding of what judicial activism is, I believe that it undermines 

our judicial system because then the litigants who are before any 

court do not have the confidence that that court is going to apply 

the law as it has been adopted by this Congress or as it has been 

adopted by State legislators or as it has been promulgated by the 

higher courts. They only have the confidence that that judge before 

whom they appear will be ‘‘fair.’’ And I believe that undermines the 

equality of that justice. 

516

Therefore, having that sort of activist approach, that sort of legislative or quasi-legislative approach on the bench is something to be 

steered clear from. 

Senator FEINSTEIN. Thank you. 

Anybody else who would like to comment? I thought he gave a 

pretty good definition. Are there any additions to that? 

[No response.] 

Senator FEINSTEIN. All right. A quick question and an easy one. 

What role does temper have for a judge? Judge Sammartino? 

Judge SAMMARTINO. Temperament is a very important characteristic for a judge, and I think fundamentally, if I were confirmed as a district court judge—and any judge for that matter 

should have patience and an ability to deal with any litigant who 

walks into their courtroom in a completely fair and impartial basis. 

And that would include whether the litigant is self-representing or 

has a lawyer representing them. So it is an expansive view of it 

from my perspective because fundamentally, when somebody leaves 

your courtroom, I would like them to always leave with the feeling 

that the process was fair, it was complete, that they were heard in 

the totality, and whether they agree or disagree with my rulings, 

that they at least had that type of hearing. 

Senator FEINSTEIN. You gave a very good description of ‘‘temperament.’’ My question was ‘‘temper.’’ What role would temper 

play, that of a judge? I was hoping it would be just a one-word answer. 

Judge SAMMARTINO. It has no place in my courtroom. That is 

why maybe I misheard your question, Senator Feinstein. It has no 

place in the courtroom. 

Senator FEINSTEIN. Anybody differ with that? 

[No response.] 

Let’s talk about judicial ethics for a moment because the authority of the Federal judiciary rests, to a large extent, on its integrity 

and each judge is a holder of a collective trust because the unethical conduct of a single judge can tarnish the reputation of the entire judiciary. So a critical aspect of fitness for a Federal judgeship 

is the ability to meet the highest ethical standards. 

What are the most important lessons you have learned, either in 

your law practice or in your judicial career, in your government 

service, that you will bring to the bench if confirmed as a district 

court judge? Mr. DeGiusti, let us start with you. 

Mr. DEGIUSTI. Thank you, Senator. Senator, respect for the 

court, respect for the judicial process equates to respect for the rule 

of law. It is imperative in this country that our citizens have respect for the rule of law and they believe in the rule of law. And 

if district judges—or any judge, for that matter, does not uphold 

the highest level of integrity in the performance of their duties, 

then that respect for the rule of law can erode. And, of course, that 

would be the most unfortunate of things, and so for that reason, 

if confirmed, I will always endeavor to uphold the highest standards of integrity. 

Thank you. 

Senator FEINSTEIN. All right. Mr. Osteen, judicial ethics. 

Mr. OSTEEN. Senator, I agree with what Mr. DeGiusti just said. 

I think as I understood the question, what are the most important 

517

things or experiences you have had, or something along those lines, 

I would suggest to the court that when I started practicing law 20 

years ago, I did not have a keen understanding or handle on all 

the ethical rules that we had to follow as attorneys. However, I 

have endeavored to follow those ethical rules throughout my career, and my experience has taught me that when an organization 

such as a bar association or a judiciary under the Code of Conduct 

sets forth certain rules, those rules are certainly to be followed 

whether or not they are clearly understood in every instance because they are important to the dignity and integrity of the profession. 

My experience has been, even though I may have had questions 

about some things as we went along, my experience was that in following the rules, that was exactly the right path and the best 

course to take. 

Thank you. 

Senator FEINSTEIN. Mr. Reidinger? 

Mr. REIDINGER. There is one thing I would add, and that is what 

I have learned about this topic in the practice of law. Throughout 

my career, I have had wonderful mentors, and if there is one thing 

I have learned from them, when it comes to issues of ethics, it is 

not a question of when you step over the line or when you get your 

toes near line. It is that you never get your toes near the line. If 

there is a question about whether something is ethical, that is 

probably a pretty good indication that is something you need to shy 

away from what even might be unethical. And it is not just a question of following the rules. It is a question of avoiding the appearance of impropriety. I think that not only goes for lawyers, it goes 

doubly for judges. 

Senator FEINSTEIN. Thank you. 

Judge Sammartino? 

Judge SAMMARTINO. I agree with all the comments of the nominees this afternoon because I believe that the appearance of any 

question of an ethical concern is as important as an actual conflict, 

and I believe that for the reason that the trust and confidence in 

the system of justice that we have in America is critical to our collective well-being. 

So when the question is raised, when a concern comes to mind 

or is asked, I think that is the time to take action and act accordingly. 

Senator FEINSTEIN. One final question on the subject of recusal. 

Generally, Federal judges have great discretion when possible conflicts of interest are raised to make their own decisions about 

whether to recuse themselves from particular cases. So I think it 

is important that judicial nominees have a well-thought-out view of 

when recusal is appropriate. 

Former Chief Justice Rehnquist made clear that he understood 

that the standard for recusal was not subjective; rather, it was objective. The standard was whether there might be any appearance 

of impropriety. 

How would you interpret the recusal standard for Federal 

judges? Anybody? 

Mr. REIDINGER. I will start with that one because I believe my 

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ever there is even a question to be there, even if it does not raise 

an actual ethical question, it may raise a question of the appearance of impropriety. And, therefore, just like Chief Justice 

Rehnquist said, when there is even a question, that is probably a 

good objective standard as to when a judge ought to recuse. 

Senator FEINSTEIN. Judge Sammartino? 

Judge SAMMARTINO. I agree with that also. Our greatest goal, 

should we all be confirmed as Federal district court judges, is to 

preserve public confidence in the system that we would become a 

part of. Once the question has been raised, I think we need to act 

accordingly to diminish that concern on the part of the litigants, so 

the appearance is as important as the actuality. And I would be 

very sensitive to that, as we are in the State of California on the 

State side. 

Senator FEINSTEIN. Mr. DeGiusti? 

Mr. DEGIUSTI. I agree with those comments, Senator. Clearly, 

the appearance of impropriety is as harmful as the existence of impropriety. So both have to be guarded against, and if the question 

is close at all, then a judge should recuse. 

Senator FEINSTEIN. Thank you. 

Mr. Osteen? 

Mr. OSTEEN. Senator, I agree with what my colleagues have said. 

I do agree there is both a subjective and objective component to the 

recusal statutes. Recusal is not a matter to be taken lightly because I also believe a district judge has an obligation to hear all 

those cases that he can fairly hear, but certainly subject to the 

rules, both the subjective and objective components of those rules. 

Senator FEINSTEIN. Thank you. 

Thank you all very much. I am going to let you off easy. This will 

conclude the hearing. I would just like to say that the record will 

be held open for 1 week for written questions. I thank the nominees, and I adjourn the hearing. 

[Whereupon, at 3:21 p.m., the Committee was adjourned.] 

[A submission for the record follows.]

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NOMINATIONS OF JENNIFER WALKER ELROD, 

NOMINEE TO BE CIRCUIT JUDGE FOR THE 

FIFTH CIRCUIT; RICHARD A. JONES, NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF WASHINGTON; AND 

SHARION AYCOCK, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

THURSDAY, JULY 19, 2007

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:45 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senator Cornyn. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The hearing will come to order. And let me 

thank you all for your attendance. 

I want to thank Senator Leahy—Chairman Leahy—for giving me 

the opportunity to chair this hearing. 

This will be the first hearing that I’ve chaired for the confirmation of judges. And I consider that to be a great honor. 

I think one of the highest responsibilities of a United States Senator of this Judiciary Committee is the consideration of appointments to the Federal bench. And I want to thank our three nominees for their commitment to public service and their willingness 

to serve. I welcome all three, along with your families, here today. 

During my campaign for the U.S. Senate, I outlined to the people 

of Maryland what I would use in considering appointments to the 

Federal bench. I think it’s extremely important to look at the qualifications of the nominees, as well as their judicial temperament, as 

well as their passion for the Constitution and its protections of the 

civil liberties of the people of our Nation. So I take this responsibility—this committee takes this responsibility—very, very seriously and I look forward to this hearing. 

My father was a Circuit Court judge and I know the importance 

of being a judge. We rely upon our Judiciary Committee as an indeVerDate 0ct 09 2002 09:38 Sep 17, 2007 Jkt 037658 PO 00000 Frm 00529 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\37658.TXT SJUD1 PsN: CMORC
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pendent branch of government, as a check and balance on the legislature, and on the executive branch of government. 

Serving as a judge is a public service and a sacrifice, and I once 

again thank those who are willing to put themselves forward in 

that capacity. I particularly want to express my appreciation to 

your families for putting up with the sacrifices of serving as a 

judge. 

We will hear from three panels today. The first will be our colleagues in the U.S. Senate who’ve requested an opportunity to be 

here. We will then hear from the nominee for the Circuit Court of 

Appeals, and then the two nominees for the District Court. 

I would, next, normally recognize Senator Cornyn as a member 

of this committee, but I will start with Senator Lott. 

PRESENTATION OF SHARION AYCOCK, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI BY HON. TRENT LOTT, A U.S. SENATOR FROM THE 

STATE OF MISSISSIPPI 

Senator LOTT. Well, thank you very much, Mr. Chairman. Thank 

you, Senator Cornyn and Senator Murray, for letting me go forward. Like you, too, I am involved in a hearing down on the second 

floor, and I’ll run right back. 

But I’m really particularly pleased to be here today. It’s the first 

opportunity I’ve ever had of this nature. I’m here to endorse the 

nomination of Judge Sharion Aycock to be a Federal District judge 

in the Northern District of Mississippi. 

She would be the first Federal District woman judge in the history of the State of Mississippi. I apologize that we have come to 

this point so late, but we have found an excellent nominee to be 

a good Federal judge—an excellent Federal judge—and to be the 

first woman in our Federal judiciary in Mississippi. 

Her husband Randy is here with her today. We’re delighted to 

see him. I told him to say good bye and wish her well as she ascends that place in the heavens known as the Federal bench. 

I should note right at the beginning, she has received an ABA 

rating as ‘‘Unanimously Well Qualified’’. She currently sits on the 

Circuit Court bench in the First Circuit District of Mississippi. I 

first met her, I think, some 18, 19 years ago in a small town in 

north Mississippi. In fact, she was born in Tremont, Mississippi. It 

probably has a population of not 1,000, I don’t guess, but not many 

people. 

She graduated with honors there from high school. She attended 

Mississippi State University, where she graduated with a degree in 

political science. She received her law degree from Mississippi College School of Law. She served as co-editor-in-chief of the Law Review there, and finished second in her class. 

After law school, she was employed by the C.T. Cleveland law 

firm in Fullton, Mississippi and she had an extensive private practice. She represented the Itawamba County Board of Supervisors, 

the Board of Education, the town of Tremont, the city of Fullton, 

and Northeast Mississippi Natural Gas District. She also served as 

the Itawamba County prosecuting attorney from 1984 to 1999. 

She’s been very active in her community. She’s past president of 

the Itawamba County Development Council, which has done an exVerDate 0ct 09 2002 09:38 Sep 17, 2007 Jkt 037658 PO 00000 Frm 00530 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\37658.TXT SJUD1 PsN: CMORC
523

cellent job, I know to my own knowledge. She served on the hospital foundation. She worked with the health services in the region. 

She served as chairman of the Prairie Girl Scouts Capital Fund. 

She has received the Itawamba County Good Citizen Award in 

2000, and on and on and on. I mean, she’s just been involved in 

everything in this community. She’s been real active. 

But she has primarily been recognized by Senator Cochran and 

me as an outstanding jurist in North Mississippi. She served as the 

First Judicial District President and Secretary, the first female 

President of the Mississippi Bar Foundation, and was honored as 

a Fellow of the Mississippi Bar. 

So I think you get the drift here. I’ve watched her for many 

years. I must say that when we recommended her for consideration 

to the White House, there was an inquiry: is she a Democrat? And 

I said, you know, I don’t know. It doesn’t really matter. She’s got 

the personal integrity, the character, the experience, the education, 

the demeanor to be a good Federal judge. 

When you become a good, fair-minded Federal District judge, 

partisan politics or philosophy don’t matter. This is an excellent 

nominee, and I fully, wholeheartedly recommend her to the committee and urge her expeditious approval by the committee so that 

she’ll be sent to the floor so that she can assume her position on 

the Northern District District Court. 

Thank you. 

Senator CARDIN. Senator Lott, thank you very much for your testimony. We know your schedule, so if you need to leave, we certainly understand. 

Senator LOTT. Thank you. Thank you. 

Senator CARDIN. The senior Senator from Washington, Senator 

Murray. 

PRESENTATION OF RICHARD JONES, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A U.S. SENATOR FROM 

THE STATE OF WASHINGTON 

Senator MURRAY. Thank you very much, Mr. Chairman. Congratulations on chairing your first Judiciary hearing. To all of the 

members of your committee—I know they’ll be coming in—I want 

to thank you for this opportunity. 

I am very honored to be here today to introduce to the U.S. Senate a very distinguished lawyer. He is a King County Superior 

Court judge from my home State, Richard Jones. He is a man who 

enjoys broad bipartisan support and he deserves a seat on the Federal bench. 

President Bush nominated Judge Jones to be a District Court 

Judge for the Western District of Washington State. Judge Jones 

is an excellent choice and I am very proud to be here to support 

him and to welcome him before the Judiciary Committee. 

On this special day, Judge Jones is joined by a number of members of his family, and I want to take a minute to introduce them, 

if you want to stand up. His wife, Leslie is here with him; his sister, Theresa Frank; his niece, Dana Frank-Looney; his sister, 

Mardra Jay; and his brother-in-law, Christopher Jay. I want to 

thank all of them for being here today as well. 

524

Mr. Chairman, if you were to ask lawyers and judges in my home 

State about Judge Jones, here are some of the descriptions that 

you would hear: ‘‘He is admired by everyone in the justice system.’’ 

‘‘He gives respect and he gets respect.’’ ‘‘The test of one’s performance is the way they handle the smaller cases. Richard displays 

precisely that same degree of sensitivity to all that appear before 

him.’’

One newspaper said, ‘‘In his courtroom, Jones is known for making eloquent statements that express just the sort of values needed 

in a judge.’’ The Seattle Times went on to say, ‘‘This is a lifetime 

appointment with no room for mistakes, and we believe there is no 

mistake here.’’

Mr. Chairman, I couldn’t agree more. Judge Jones has handled 

some of the most difficult cases in Western Washington in the past 

decade and he’s won the respect of everyone who has come before 

him. He, in fact, heard the murder charges against Gary Ridgeway, 

also known as the Green River Killer. 

Ridgeway pleaded guilty to 48 counts of aggravated first-degree 

murder in 2003, and is one of the most prolific serial killers in 

American history. It would be a tough case for any judge, but 

Judge Jones earned praise for the sensitivity and dignity he 

showed for the victims of the Green River Killer. 

As a result of that case and in recognition of his long service to 

Washington State, in 2004 Judge Jones received the Judge of the 

Year Award from the Asian Bar Association of Washington, the 

King County Bar Association, the Washington State Bar Association, and the Washington State Trial Lawyers Association. 

Both Senator Cantwell and I assisted the President in choosing 

Judge Jones from a list of very qualified candidates. When I met 

him, I was impressed with his sensitivity, with his professionalism, 

and his overall sense of fairness. 

Throughout his career, Judge Jones has won high praise for his 

judicial demeanor and for the respect he shows all parties. He 

clearly meets the standards of fairness, evenhandedness, and adherence to the law that we except of our Federal judges. 

In terms of his personal background, he graduated from Seattle 

University and the University of Washington School of Law. In private practice, Richard Jones successfully represented both plaintiffs 

and defendants in a variety of civil cases. 

As a county and Federal prosecutor, he had extensive experience 

prosecuting criminal cases. And most recently as a full-time King 

County Superior Court judge, Richard Jones has distinguished 

himself and won broad support. Since he was first appointed in 

1994, the voters of King County have reelected him three times. 

I know that I speak on behalf of a large number of the people 

in my State’s legal and law enforcement community in saying our 

Federal bench will be stronger when Richard Jones is confirmed. 

So it is my pleasure to be here today to introduce this great lawyer and judge to the committee, to support his nomination fully, 

and to help make him our newest Federal judge. I urge this committee to approve this nomination promptly, and I hope we can 

confirm Judge Jones before the full Senate quickly. 

Thank you very much, Mr. Chairman. 

525

Senator CARDIN. Senator Murray, thank you for your testimony. 

We appreciate it very much. 

We are now pleased to have the entire Senate delegation here. 

Starting with the senior Senator, Senator Hutchison. 

PRESENTATION OF JENNIFER ELROD, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. KAY BAILEY 

HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator HUTCHISON. Thank you, Senator Cardin. We certainly 

appreciate your chairing this hearing and having a hearing on our 

nominee for the Fifth Circuit Court of Appeals. There are three vacancies on that court, and we hope that we can have a confirmation 

of Jennifer Elrod. 

She is an outstanding, accomplished judicial nominee. She has a 

distinguished State court judge record, and as a practicing attorney. Judge Elrod showed her judicial capability in the 190th District Court in Houston, Texas, where she currently presides. At 

present, she manages a docket of over 1,000 cases and leads all 

Harris County Civil District judges in the number of jury cases 

tried to verdict since 2005. 

Prior to serving on the bench, she practiced at Baker Botts, 

where she worked for 8 years on litigation matters, including antitrust, employment law, commercial litigation, and general civil litigation. She also served as a law clerk to the Honorable Sim Lake 

in the Southern District of Texas. 

Judge Elrod’s outstanding intellect is evidenced by her exceptional academic credentials. She graduated magna cum laude from 

Baylor University in Texas, and cum laude from Harvard Law 

School. 

She has long been dedicated to pro bono service and charitable 

causes, and she is the former chair of the Gulf Coast Legal Foundation, the largest provider of pro bono legal assistance to indigent 

people in the Texas Gulf Coast region. 

She was recently commended by the Texas Access to Justice 

Commission for her service in facilitating the advocacy skills of 

lawyers who represent poor and low- income Texans. 

Judge Elrod has also been an active member in the Texas Bar 

and the Houston Bar, and she is a two-time recipient of the President’s Award for Outstanding Service to the Houston Bar Association. And she was named Outstanding Young Lawyer of Houston 

in 2004 by the Houston Young Lawyers’ Association. 

I am honored to introduce her. She meets the high standards 

that we hold for all of our judicial nominees. She has an impressive 

record of public service, work ethic, integrity, and will bring honor 

to our Federal bench. She is married, with two children, living in 

Houston, Texas, and I commend her to the committee. 

Senator CARDIN. Thank you, Senator Hutchison. 

Senator Cornyn? 

PRESENTATION OF JENNIFER ELROD, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. JOHN 

CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. I’ll try not to duplicate too much of what Senator Hutchison said about Judge Elrod, 

526

but I take a special interest, as you noted, in judicial nominations, 

considering it a very important part of our responsibilities. But, 

this is also because I was a member of the Texas State judiciary 

for 13 years before I became a recovering judge, and moved on into 

other work as Attorney General of our State, and then to the U.S. 

Senate. 

It is perhaps evidence of my advancing years and Judge Elrod’s 

relative youth that I did not know her until she was selected by 

the White House for this job. But I have to tell you, I’ve been overwhelmingly impressed by your qualifications for this job. 

Senator Hutchison noted that this is a judicial emergency on the 

Fifth Circuit, one of our busiest Circuit Courts in the Nation, and 

we have two vacancies. Just recently, the second nominee has been 

sent over by the White House. So it’s my hope that both of these 

nominees will be given prompt consideration, and that’s why I’m 

especially grateful to you and to Chairman Leahy for having this 

prompt hearing on this seat. 

As Senator Hutchison noted, Judge Elrod graduated from Harvard Law School. It’s interesting, as just sort of a footnote, that 

when she began her legal education at Harvard Law School, she 

participated in what was known as a James Barr Ames Moot Court 

Appellate Advocacy Competition. 

Though her team lost in the final round by a vote of 2:1, it did 

win the vote of one of the panelists, a certain judge from the U.S. 

Court of Appeals for the Fifth Circuit by the name of Patrick 

Higgenbotham. It is perhaps ironic that Judge Elrod now stands 

before the Senate Judiciary Committee, nominated by the President, to fill the vacancy created by Judge Higgenbotham’s transition to senior status. 

After Judge Elrod served as a law clerk to Judge Sim Lake, a 

well-respected Federal District judge in the Southern District of 

Texas, she served in private practice and then was appointed by 

the Governor of Texas in 2002 to her current seat in Harris County. 

As you probably know, in Texas we have a long heritage of elections for judges. It is an artifact, perhaps, of our history. But she 

has been reelected twice to that position and has presided over 

more than 200 trials, gaining a reputation as a fair, hardworking, 

and thoughtful judge, recognized for her low reversal rate. 

Senator Hutchison has noted her community service, which is 

highly significant considering the fact that she’s married and has 

two young children. Judge Elrod commendably balances her career 

as a lawyer and a judge with her desire to further serve the community. For example, she serves as chairwoman of the Gulf Coast 

Legal Foundation, now known as Lone Star Legal Aid, which 

serves more than one million low-income persons, making it the 

fourth largest legal aid program in the Nation. 

She was first general counsel to Communities and Schools in the 

Houston area, and co-chair of the Houston Volunteer Association’s 

legal hot line, for which she has received an award for her outstanding pro bono work. She’s taught at the University of Houston 

Law Center as an adjunct professor. 

I think one of the basic questions we all want to know about on 

judicial nominees, is what’s their judicial temperament like? And, 

527

of course, Judge Elrod has a demonstrated record of excellent judicial temperament. 

She understands the difference between being a judge and being 

an advocate. And it’s this fairness and respect for all is why Judge 

Elrod’s nomination is supported across the Houston legal community. She has the personal endorsement of past and current presidents of the Houston Bar Association, the Hispanic Bar Association, and the Mexican-American Bar Association, and those are just 

a sample. 

So, Mr. Chairman, I could go on and on, but I won’t so we can 

get on with the witnesses. Let me just say thank you for allowing 

me to join Senator Hutchison in commending this outstanding lawyer, judge, and Texan to you. We hope the committee will act 

promptly on this nomination. 

Senator CARDIN. Well, we thank both of you for your testimony. 

Senator Cornyn, I have the pleasure of hearing from you regularly 

on our committee, but it’s always nice to see you on the other side 

of the dais here. 

Senator CORNYN. You are nice to say it’s a pleasure. I appreciate 

it. 

Senator CARDIN. It truly is. Always is. 

Without objection, the statement from Chairman Leahy will be 

made a part of our record. 

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

Senator CARDIN. I’ve been advised that Senator Cochran is on 

the floor. He wanted to be here to introduce and support Sharion 

Aycock for the U.S. District Court for the Northern District of Mississippi. If Senator Cochran is able to be here, we will interrupt in 

order to give him a chance to be heard. 

We will now proceed to the second panel which consists of one 

witness, Judge Jennifer Walker Elrod, who has been nominated to 

the United States Circuit Court for the Fifth Circuit. 

Judge Elrod currently sits on the 190th District for Harris County, Houston, Texas, a position she’d held since 2002. Before joining 

the State bench, Judge Elrod spent 8 years in private practice as 

an associate of Baker Botts, and served as a law clerk for Judge 

Sim Lake in the United States District Court for the Southern District of Texas. 

She is married to Hal Connor Elrod, director of Information Systems at Direct Energy, and has two children. 

Judge Elrod, it is the tradition of our committee we swear in our 

witnesses. If you would, you are standing. 

[Whereupon, the witness was duly sworn.] 

Senator CARDIN. Thank you. 

Judge Elrod, the way that we proceed, first, if members of your 

family are here, we would welcome your introduction of the members of your family. You are free to proceed as you wish as far as 

an opening statement is concerned. The committee will then be 

asking you some questions and it will be supplemented by written 

questions. We keep the record open after the hearings for your 

reply to written questions. 

But you may proceed as you wish. 

528

STATEMENT OF JENNIFER WALKER ELROD, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FIFTH CIRCUIT 

Judge ELROD. Mr. Chairman, thank you for having me here before your committee today. I do not have an opening statement, but 

I would take this opportunity to introduce my family to you. 

As you’ve mentioned, my husband, Hal Elrod, is here, as well as 

our daughters: Catharine Leigh Elrod and Elizabeth Connor Elrod. 

Senator CARDIN. We see them. They’re waving. That’s good. 

[Laughter.] 

Judge ELROD. In addition, my parents, Johnny and Jeannie 

Walker are here. My brother, Lieutenant John David Walker and 

his wife Melissa; my sister, Jennise Stubbs, and her son, Jackson 

Stubbs, are here; and my uncle, Van Walker. I think that’s all of 

my family members. And if I’ve forgotten someone, I apologize. I 

hope I haven’t. 

And in addition, I also am privileged to have three of my colleagues from the Harris County judiciary here: Judge Ken Wise, 

Judge Jeff Brown, and Judge Grant Dorfman who have made the 

trip, and I am honored that they would make a trip like this to 

come and be part of this, and also my other friends who are here. 

So, thank you very much. 

[The biographical information of Judge Elrod follows.]

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Senator CARDIN. Well, we appreciate your family and your associates and friends being here. We know this is a particularly important day. As I said in my opening comments, I really want to thank 

the family particularly because I know it’s not easy to serve as a 

judge and it takes time away from the family, and we very much 

appreciate the sacrifices that are made by your family. 

So I can explain to your family, this is a traditional type of a 

hearing where we’ll ask questions. Some of them could get rather 

direct at times, but it’s a requirement that we try to find out as 

much information as possible because you’re being appointed to a 

life term position and this is the one opportunity that the public 

gets to have a full record of your qualifications and your views, and 

we try to take advantage of this the best that we can.. 

If I understand correctly, you choose not to make an opening 

statement. Am I correct? 

Judge ELROD. Yes, Mr. Chairman. That’s correct. 

Senator CARDIN. Let me start off by asking you a few questions, 

if I might. I believe that you served on a judicial screening committee of the Association of Women Attorneys. So I’m going to start 

by asking you, what questions did you ask or did you want to know 

in screening applicants to become a judge? 

Judge ELROD. Well, it’s been a while, but as I recall I was interested in knowing about the judicial temperament of the candidates. 

It’s very important that people who serve on the bench don’t have 

that ‘‘black robe fever’’ or ‘‘robitis’’ or whatever they call it these 

days, and that people who are going to serve have an even temperament and are listeners. 

Also, I looked at their experience because it’s important to have 

people who have demonstrated experience in the field. And do they 

have a reputation for integrity in their practice of the law. Those 

were some of the categories that I looked at when I screened candidates. 

Senator CARDIN. First of all, as I told you yesterday when we had 

a chance to meet, I really do applaud your leadership on legal services and pro bono. I think that’s an extremely important responsibility that lawyers have, and you’ve taken that responsibility very 

seriously with your leadership in Texas. I congratulate you for 

that. 

Some of the most significant cases that you’ve been involved with 

has been on a pro bono basis, and I find that impressive and just 

really want you to know that I, for one, appreciate that type of 

commitment to equality within our judicial system. 

I do want to talk, though, about one of the criteria which is of 

concern to the committee, and that is experience. You are nominated to serve on the Appellate Court, a lifetime position. 

You have no judicial experience on the Federal bench, although 

you certainly do at the State level. This is a position that will require a considerable amount of attention to the constitutional details and precedent for affecting a lot of trials in this country. 

What can you tell me that can give this committee some comfort 

that you are qualified and experienced to serve on the Federal Appellate Court? 

Judge ELROD. Well, I can go through my specific experiences in 

the Federal system, and I’m happy to do that, Mr. Chairman, if 

557

you’d like me to do that. But I think the most important thing I 

can tell you is that I take very seriously something that my mentor, Judge Sim Lake, said to me. 

He said the people that come to court and have a problem, that 

day their problem is the most important thing. That’s the most important case that you consider, because it’s most important to 

them. 

And, indeed, sometimes it’s the very most important things in 

their very lives and I’ve tried to treat each of the cases that have 

come before me in that way and treat them with diligence and 

careful attention, and I would bring that diligence, careful attention, and work ethic and respect for the Constitution to the Fifth 

Circuit Court of Appeals, if you were to confirm me. 

Senator CARDIN. I know your background. I know your career. 

We have that information in the record. You have a background on 

the bench and in private practice which is impressive. We are talking about an appellate Federal position. It’s going to take a great 

deal of commitment on your part to be adequately prepared for the 

type of cases that are going to come to the Federal bench. Is there 

any path that you intend to take in order to be properly prepared 

to meet the challenges of the Appellate Court? 

Judge ELROD. The path that I would take would be to listen, to 

read the briefs, to listen carefully to the arguments, to listen to the 

positions and discussions of my colleagues, and to work diligently, 

to read every single record thoroughly and to treat the—to treat 

that responsibility with the highest regard, as would be called for 

on the Fifth Circuit Court of Appeals. 

Senator CARDIN. I want to move to the issue that has been of 

concern to this committee on diversity on the bench. You are nominated for a seat on the Fifth Circuit that includes Mississippi, Louisiana, and Texas and presides over the largest percentage of minority residents, 44 percent, of any regional Circuit Court of Appeals in the country outside of Washington, DC. 

Mississippi has the highest African American population, 36 percent of any State in the country. Louisiana has the second-largest 

African American population, 32 percent of any State in the country. 

Given these percentages, of the 19 Federal judges that now sit 

on the Fifth Circuit, only one is African American. So I want to 

know your views as to how important you believe diversity is for 

the public to have confidence that the courts are going to be responsive to their needs. 

Judge ELROD. Well, I have treated the issue of diversity very importantly in my career. As a matter of fact, on Monday when I get 

back to Texas, I’ll try a case—unless it’s settled—but I will also 

host a program of high school students from disadvantaged backgrounds who come to the Harris County courts every year, and 

have for the past 5 years that I’ve sat as a judge, designed especially to tell them about careers in the law. I have taken the personal responsibility to make sure that there are educational opportunities available and that people can learn that people can be successful in careers in the law. 

Senator CARDIN. Now, obviously you’re just one of the appointments. There’s a whole series. You cannot create diversity by one 

558

appointment, but it does have an impact on the diversity within 

the court. I want to come back to the issue of the balance within 

that Circuit. It does trouble me about the lack of diversity on the 

Fifth Circuit. 

I just really want to know whether it’s of concern to you, whether 

you believe there should be efforts to have greater diversity on the 

institutions of government that the people of this Nation are concerned about, giving them a fair shake. 

Judge ELROD. With regard to the constitution of the Fifth Circuit, that is, of course, a matter for the President, with the advice 

and consent of the Senate. So, I can’t speak to the Fifth Circuit 

specifically, or any other court. 

However, again, I can turn to you, to my commitment that I have 

tried to display—that I have displayed, in my public service in the 

efforts that I’ve chosen, both in helping not only these high school 

students, but small children get their dental services so that they 

can go to school and be educated and not have to be embarrassed 

in school. 

My efforts—for example, I had the privilege of helping a young 

woman who was graduating from high school, and she was graduating salutatorian of her class, and her parents could not come to 

the United States to see her high school graduation. 

They were—they lived in Mexico and they could not get the visas 

that they needed to come to her high school graduation. I was able 

to help her get her parents here to see her graduate, and her parents sat in my office and thanked me and said that that was the 

proudest day of their lives. That was an important day in my legal 

career. 

Senator CARDIN. Thank you. You’ve been saved for a few minutes, because the senior Senator from Mississippi, Senator Cochran, has arrived. You can continue to sit there if you will, but I 

want to call on Senator Cochran and give him a chance to address 

our committee. 

It’s always a pleasure to have you before our committee, Senator. 

PRESENTATION OF SHARION AYCOCK, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD COCHRAN, A U.S. SENATOR FROM 

THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much. I appreciate your courtesy, and I apologize for being late. We had an Appropriations Committee session on a bill that we are reporting to 

the full Senate that went a good bit later than we expected. 

But I’m very pleased to have the opportunity to introduce today 

Judge Sharion Aycock and recommend her confirmation as a 

United States District Judge for the Northern District of Mississippi. 

Judge Aycock’s husband, Randy, is with her here today. I had an 

opportunity to visit with him earlier today. 

I’m pleased to let you know that Judge Aycock is exceptionally 

well qualified by reason of her education, her experience, and her 

temperament to serve as a Federal judge. I am sure she will reflect 

great credit on the Federal judiciary. 

559

During her distinguished career as a lawyer and as a State court 

judge in my State, she has earned the respect and admiration of 

the lawyers and judges who have worked with her and who know 

her well. She’s been selected to serve in many professional and 

community positions of trust and responsibility. The American Bar 

Association’s Standing Committee on the Federal Judiciary unanimously concluded that she is ‘‘Well Qualified’’ to serve as a Federal 

District Court judge. 

She was born and raised in Northeast Mississippi in the town of 

Tremont, Itawamba County, where she graduated from high school 

with honors and was elected president of the student body. She 

graduated with honors from Mississippi State University in 1977, 

where she studied economics and political science. 

She was a member of Phi Kappa Phi, the Nation’s oldest and 

largest honor society. She was inducted into the Mississippi State 

University Hall of Fame. She also served as president of her social 

sorority, Delta Delta Delta. 

She received her law degree from the Mississippi College School 

of Law, where she served as co-editor-in- chief of the Law Review 

and as treasurer of the student body. She graduated second out of 

a class of 146, and was admitted to the Mississippi State Bar. 

After graduation, she returned to her home county and started 

her law practice. She practiced as an individual practitioner in her 

own office since 1984 until she was elected to serve on the District 

Court State trial court bench. 

But during those years she represented her County Board of Supervisors, the Board of Education, the town of Tremont, the city of 

Fullton, and the Northeast Mississippi Natural Gas District. 

She served as the Itawamba County prosecuting attorney for 8 

years. She was recognized as the State’s ‘‘Most Distinguished Juvenile Justice Professional.’’ She was elected Circuit Court judge for 

the first Circuit Court district in Mississippi in November of 2002 

and she was unopposed when she sought reelection in November 

of 2006. 

State court judges, as you know, are elected in Mississippi. Voters have the opportunity to get to know candidates personally and 

to learn more about their background and their ability. And based 

on a consensus of the people in her part of the State, she has truly 

been an outstanding trial judge. 

The fact that she was unopposed in 2006 in an area of the State 

which takes politics seriously, somebody said up there it’s a contact 

sport. Well, it may not be that, but people have recognized, across 

a broad range of the community, the tremendous job she does and 

the enthusiasm that she brings to the office and the courtroom 

every day. 

The First Circuit Court District’s docket is one of the busiest in 

the State of Mississippi. It had one of the largest backlogs, too, of 

any judicial district in the State, and she cleaned it up. Everything 

is up to date, and not just Cincinnati, or wherever, but everything. 

Kansas City. Sorry. Kansas City. 

During her tenure she’s had the opportunity to hear criminal 

cases and civil cases covering a broad range of subject areas, and 

she has done it all with a calm, cool, judicial temperament, a sensitivity for the interests of jurors, of litigants, of judges. 

560

She is a very popular choice for this position that has come open 

in the Federal court system of our State, and I’m looking forward 

to hearing all the compliments and the words of praise of her as 

she begins her tenure as a United States District Court judge. I 

recommend her highly and wish her well, and congratulate her on 

this nomination. 

Senator CARDIN. Thank you very much for your comments before 

the committee. Without objection, we’ll put the resolution of the 

Mississippi Chapter of the American Board of Trial Advocates in 

support of the nomination of Sharion Aycock into the record. 

Senator Cornyn? 

Senator CORNYN. Well, thank you, Mr. Chairman. I was thinking 

a little bit about your questions about diversity on the bench, and 

certainly I share your interests in seeing that everyone in our society is represented in all branches of government, including the judiciary. 

I was thinking about the fact that Judge Elrod, if confirmed, will 

replace somebody that looks more like you and me. I understand 

Judge Aycock will be the first United States Federal District judge 

who happens to be a woman in Mississippi, Senator Lott said earlier. So, I think maybe we’re not making enough progress, but I 

think we have to note the progress that is being made and I’m 

grateful for that. 

Judge, I’m going to throw you a little bit of a curve ball here, but 

I know you can take it. I have a daughter in law school, so I happen to note these things. One of the major law firms in the Nation 

just increased its starting salary to $160,000 a year, which is a little shocking for first-year law students. 

How do you feel about judicial salaries and our ability to attract 

the best and the brightest to the Federal judiciary? Because I know 

we all are concerned that it not be seen as a job that some people 

can take if they can afford it, but that others may be prohibited, 

or perhaps discouraged by much higher salaries in the private sector to what they can earn as a Federal judge. 

Judge ELROD. Well, Senator Cornyn, judicial salaries are in the 

province of Congress. I trust your wise judgment—Congress’ wise 

judgment—on judicial salaries. I personally—as you know, I did 

not take this job that I have now in order to increase my financial 

benefit, although I have seen in the State court a situation where 

some very good judges have left the State court bench in order to 

provide for their families. But I didn’t take the job I have now for 

the salary, and if I were to confirm—be confirmed to the Fifth Circuit, I would be happy to serve. 

Senator CORNYN. Well, when I was Attorney General of our State 

I used to tell the people that worked at the Attorney General’s office that I knew they weren’t in it for the money or the glory, and 

I trust that would also apply to you. 

One of the things that I am very profoundly concerned about is 

the extent to which the cost and the time involved in modern litigation prohibits many people from seeking and obtaining access to 

justice in our State and Nation. You know, it’s got to be an extraordinary case that perhaps a lawyer might take on a contingency fee 

basis that would justify the kind of investment they would make 

in the case, and certainly just the delay and the pain that goes 

561

along with being involved in perhaps a multi-year legal process dissuades some who might otherwise deserve access to justice from obtaining it. 

So can you tell us a little bit about your thoughts with regard 

to what can be done, and what has been done, and most particularly what you have done, to address those concerns about delay 

and costs associated with justice that would prohibit some from 

seeking it. 

Judge ELROD. Well, one thing that I have done, is I tried—I 

asked the lawyers that come in my courtroom, would they like an 

expedited trial. And I’ll give anybody a trial in 45 days on the merits, if they’ll agree to it. 

Otherwise, I have a very prompt trial scheduling order that I get 

into, because I’ve found if you give months and months and months 

and years and years for discovery, lawyers will try to find things 

that they need to discover. 

So you need to give adequate time to complex cases, obviously, 

but if you move things along and give everyone a fair playing field, 

but don’t delay, you save the litigants costs. Other things you can 

do, is you can allow the use of technology in the courtroom to be 

of—to be helpful. 

I allow anyone to appear on the telephone, for example, if they 

choose to do so as long as it’s not an evidentiary hearing, and other 

types of things like that. There are always innovations that can be 

made in order to streamline and to cut costs because litigants, the 

people whose cases the lawyers are bringing, don’t want to wait 12 

years to go to trial and spend millions of dollars. They want to get 

their disputes resolved in a prompt, efficient manner. 

Senator CORNYN. And, of course, Senator Cardin has already noticed your service to the Legal Services to folks who are of modest 

means who might not otherwise have access to justice, so I commend you for that. 

You’ve been a practicing lawyer, and now a District judge, and 

you are aspiring to enter the, I guess, the hermitage or whatever 

that is sometimes known as the Federal appellate judiciary. 

But it obviously takes a little bit of a different temperament, a 

little different attitude based upon your role in the legal system, 

whether as an advocate on behalf of a client, as you were at Baker 

Botts, or as a trial judge working with juries and establishing the 

facts so that the law may be applied to enter a judgment. 

But can you tell us a little bit about what sort of adjustment you 

think you’ll have to make going from a trial bench to an appellate 

bench in terms of how you approach your job or whether there’s not 

much change at all. 

Judge ELROD. In general, I think the job is very much—it’s a 

similar job in that you apply the law to the facts, you follow the 

law, you follow the Constitution. And that’s your job whether you’re 

sitting hearing a red light swearing match or the most complex 

patent dispute. 

You use the same skill set, however, you may take some more 

analytical reasoning, some careful study, careful review of precedent. But it’s the same basic skill: a commitment to the facts and 

the law of the case that you’re considering that you have at the 

trial level and at the Court of Appeals. 

562

Senator CORNYN. Well, you are quite accomplished as a lawyer, 

obviously did very well in law school and have a great record of 

success. I suspect that you might in many cases be the most accomplished lawyer in the courtroom, including the advocates. Are you 

going to be tempted to re-try the case, particularly on appeal, for 

the lawyers who tried it down below or before you in the appellate 

argument? 

Judge ELROD. It’s not a judge’s role to act as an advocate, as you 

know, having sat on the Supreme Court of Texas. My job would be 

to decide and rule on the law based upon the facts that were 

brought to me. We don’t step in and play in the game. And I don’t 

mean to belittle it and call it a ‘‘game’’, but we call the balls and 

the strikes, and I would be faithful to that role on the Fifth Circuit 

Court of Appeals, if I was confirmed. 

Senator CORNYN. Thank you very much. I’m confident you will. 

Thank you, Mr. Chairman. I see my time has expired. 

Senator CARDIN. Thank you, Senator. 

Let me talk about one of the cases that you were involved with 

on a pro bono basis that I found as a very interesting case. I think 

it’s Shell Fox, the one dealing with the wearing of the rosary in 

which the—I think you were a co-counsel in that, if I’m correct, in 

which there was concern that gang-related activities, that you wear 

certain apparel and students wanted to wear some religious articles, that you took the position that this is their freedom, their personal right do that, and it was unreasonable to restrict what students could do as far as a rosary, I believe it was. 

Which is an interesting type of a conflict that is now occurring 

throughout not just the United States, but other countries. France, 

for example, has passed laws restricting what students can wear 

because of their concern of violent activity against students in 

schools. And, of course, we have a major concern about gang activity. 

So I just wanted to give you a chance to perhaps expand on that 

a little bit, tell us a little bit about your philosophy and your concerns about protecting the rights under the Constitution, when 

sometimes there are conflicts under the Constitution where we’re 

trying to protect the peace and safety of a community, but we’re 

also trying to protect individual rights to express their religious beliefs as they see fit. Do you care to try to help me out on that one? 

Judge ELROD. Mr. Chairman, as you noted, I was an advocate on 

behalf of a client in that lawsuit. I think you put very well the conflicts that we have in our society. Public school safety is obviously 

of paramount concern in our society, as are First Amendment 

rights. 

Courts have to very carefully balance those issues based upon 

the law and the facts that are presented to them. In the case that 

I was an advocate on behalf of a client, the judge in that court 

found that, in fact, my clients had been discriminated against. 

Senator CARDIN. Well, perhaps you could give me a little bit 

more view—your views—as to the constitutional protections for 

civil liberties, for the right for one to express his or her religious 

beliefs, the rights under the Constitution for consumers against the 

arbitrary practices of business, those types of issues that I think 

the framers of our Constitution envisioned the judicial branch 

563

being effective in protecting individual rights against arbitrary governmental actions or private sector actions. Do you care to help me 

on that, your views? 

Judge ELROD. My views on—can you rephrase, Mr. Chairman? I 

apologize. I’m—

Senator CARDIN. How you would look at the Constitution, and interpreting the Constitution to protect individuals, as you did in this 

particular case, against a law that you felt was wrong? But how 

do you look at judging the rights of an individual, whether it’s a 

right to religious freedom, freedom of speech, the constitutional 

protections we have. How do you view—how do you weigh that in 

your making decisions? 

Judge ELROD. Well, when a judge is considering these important 

rights in the Constitution, you basically take the facts of the case 

as it comes in and you look at the precedent. 

Right now I sit on a trial court in Houston, Texas, as you know, 

and I look to see, what has the first Court of Appeals said? What 

has the 14th Court of Appeals said? What has the Texas Supreme 

Court said about this? Has the Supreme Court of the United States 

opined on this? If none of these courts have opined, have other 

courts opined that could be helpful and give helpful, persuasive authority rather than precedential authority? 

And I would carefully consider that, recognizing that these are 

important rights that need to be adjudicated based upon the facts 

presented in the case. 

Senator CARDIN. Let me put it this way. As a pro bono attorney 

in Legal Aid, you used your talents to help people who otherwise 

would not have gotten the opportunity to get their points brought 

out in our judicial system. That is what I find admirable about pro 

bono and about the legal aid work that you did. 

As an appellate court judge, how do you see your role in helping 

someone who is disadvantaged, or someone who has been oppressed, or someone who has not gotten a fair shake in our legal 

system? 

Judge ELROD. Well, my role as a role is obviously different than 

my role as an advocate. As a judge, my job is just to decide the case 

based upon the law, and the arguments, and the briefs that are 

presented. There are things that judges can do that help legal services for the poor. 

For example, judges can teach practitioners who serve legal services for the poor, advocacy skills. As was mentioned earlier, I did 

that this year. Judges can make sure that if people come in and 

needing legal services, that they have ready access and know of the 

legal services that are in their communities. The Houston Bar and 

the Houston Young Lawyers, for example, work hard to provide 

those types of lists and things, and judges can give out that information. 

But judges cannot become advocates for the parties in a case before them. That’s—the judge steps out of his or her role if he chooses to say, I’m going to try to advance this party and not that party. 

That’s not a proper role for the judge. 

Senator CARDIN. In the confirmation hearings of Chief Justice 

Roberts and Justice Aleto, there was extensive discussions about 

the amount of which judges and justices are bound by previous 

564

court decisions, stare decisis. What is your opinion as to how 

strongly judges should be guided by the doctrine of stare decisis is 

very, very important. 

Stare decisis gives us uniformity in the law. It promotes partysettled expectations. It’s a very important legal principle. We would 

not have a stable system of justice of judges were, every day, 

changing their minds. And they shouldn’t be changing their minds, 

ever, based upon their personal will or personal whims, or even 

personal public policy views. 

Senator CARDIN. Thank you. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. I don’t have any 

further questions of this witness. 

Senator CARDIN. Judge, just bear with me for a few more moments. I’m going to make a request from you, and that is, as I 

think I told you when we were together, you have not been the author of that many published opinions, which is something that our 

committee normally looks at very carefully on appellate nominations. 

What I would request, is that copies of speeches that you gave 

in public forums, be made available to our committee. If you have 

copies, we will request that that be made to supplement our record 

just so that we have an opportunity to hear your thoughts. This 

will be taken in the right context, but I think it’s useful if we can 

see some more of your writing. So if you could comply with that, 

I certainly would appreciate it. 

There will be other questions that we’re going to be submitting 

for the record and give you a chance to reply to our committee on 

it, but I don’t have any additional questions at this time and I 

thank you very much. 

Again, I thank your family for being here. They’re great supporters, I can see that. 

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

Cornyn. 

Senator CARDIN. The third panel will consist of two nominees for 

the District Court. Richard Anthony Jones, who’s been a judge on 

the King County Superior Court since 1994. Previously, Judge 

Jones served as an Assistant U.S. Attorney in the Western District 

of Washington and an associate of Bogle & Gates, staff attorney for 

the Port of Seattle, and Deputy Prosecuting Attorney for King 

County. 

We will also have on this panel Judge Sharion Richardson 

Aycock. Judge Aycock is a State trial judge on the Fifth Circuit 

Court District of Tupelo, Mississippi, a position she has served in 

since 2003. Previously, Judge Aycock worked in private practice as 

a sole practitioner, a partner in Soper, Russell, Richardson & Dent, 

an associate of A.T. Cleveland Law Office. She also serves as a 

county prosecuting attorney. 

If you will please stand to be sworn. 

[Whereupon, the witnesses were duly sworn.] 

Senator CARDIN. Please be seated. 

The way that I would request that we begin, each of you will 

have an opportunity, if you choose, to make an opening statement 

to the committee. I believe, Judge Jones, your family has already 

565

been introduced, but I don’t mind you introducing them again. 

They deserve as much attention as you can give them for putting 

up with your public life. The same thing with Judge Aycock. 

So, Judge Jones, you may begin. 

STATEMENT OF RICHARD A. JONES, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON 

Judge JONES. Thank you, Senator. I will not be giving a formal 

statement, but I would like to begin by thanking you for taking 

time out of your busy schedule and for being here today. 

I’m very thankful also to the President of the United States, 

George Bush, for his confidence in nominating me to serve as the 

next Federal judge, if confirmed, in the State of Washington. 

I’m also very much appreciative for the fact that our Senator 

Murray was able to take time from her busy schedule to be present 

as well. 

At the sake of being redundant, Senator, I would take advantage 

of being able to introduce my family, because I’m very proud of the 

fact that they are here today. 

Please trust me in knowing that I have a very large family. This 

is a very small representation of my family. I would like to, once 

again, introduce my wife, Leslie Jones; my sister, Theresa Frank; 

her daughter, Dana Frank-Looney; my sister, Mardra Jay; and my 

brother-in-law, Christopher Jay. 

Senator CARDIN. Thank you. 

Judge JONES. Thank you, Senator. 

[The biographical information of Judge Jones follows.]

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Senator CARDIN. Judge Aycock? 

STATEMENT OF SHARION AYCOCK, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

Judge AYCOCK. Thank you. I will decline making an opening 

statement today in the interest of your time, and others’ there are 

here, but I do want to take this opportunity to thank President 

Bush for the nomination that I received for the District judge for 

the Northern District of Mississippi. 

I am very appreciative, Chairman Cardin, for you convening and 

conducting this meeting. This is something that we have been waiting for for some time, and very anxious to have the opportunity to 

be questioned regarding this position. 

I also want to express how pleased I was that my home State 

Senators, Senator Cochran and Senator Lott, took time out of their 

very busy schedules to come here today and introduce me. 

I do have my husband here with me today. And Chairman 

Cardin, I have a large family in Mississippi, but it was our choice 

to travel and to make this hearing accompanied by my husband. 

I have a loving family at home in support of me. Thank you. 

[The biographical information of Judge Aycock follows.]

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Senator CARDIN. Well, again, we appreciate both your public 

service, plus also the commitment of your families. It’s not easy at 

times, and we certainly appreciate that very much. 

I want to thank both of you for the information that you’ve made 

available to the committee. That information has been reviewed. I 

must tell you, I was impressed by both of your backgrounds, your 

commitment to the judicial branch, and your knowledge and your 

backgrounds. So, I applaud both of you for a very distinguished career. 

Your appointments are to the District Court, so let me, if I 

might, just tell you some of the advice my father gave me a long 

time ago when I used to go to his court and watch him. He was 

a Circuit Court judge, trial judge in Baltimore City. 

He was not reversed very often, but he felt a real obligation to 

try to make people feel comfortable in the court and to try to have 

a commitment to help particularly those people who were disadvantaged. Our system is tough enough. But at the Circuit Court level, 

you can apply some practical solutions sometimes to problems. 

I’m just really trying to get, if I might, your thoughts about your 

responsibility as a District Court judge as it relates to the Constitution, as it relates to the protections that are in the Constitution, as it relates to individuals who have been put at a disadvantage in our society, and sometimes the only way that they can get 

relief is through the courts. 

How do you view your position—the potential position—as a Federal District Court judge in carrying out I think what the framers 

of our Constitution intended, the judicial branch to protect the 

rights of individuals against abuses of either the private sector or 

government? 

Judge Jones, you can start if you’d like. 

Judge JONES. Thank you, Senator. Senator, I think, first, I’d ask 

you to look at my history and my background in terms of things 

that I have done. My father taught me as a young boy, it’s not so 

much in what you say as opposed to the things that you do. I have 

been very actively involved in different programs to assist others 

in their access to justice. 

As you can see from the materials I’ve submitted to this committee, I serve as the advisor to the Access to Justice program in 

our local jurisdiction. I work with lawyers and law students to encourage them to assist individuals who can’t obtain assistance by 

any other means; but for their assistance, there would be no representation. 

In addition to that, Senator, the commitment that I have as a 

judge and as a public servant for many years has been one geared 

to fairness and to ensure that the Constitution applies to all persons equally at all times in every respect, regardless of background 

or personal circumstances. 

Senator CARDIN. Thank you. 

Judge Aycock? 

Judge AYCOCK. Chairman Cardin, I think it’s important. As you 

have noted, you know something about our background and our 

history, but that’s very important to me, where I came from. The 

fact that I have had the privilege of practicing 22 years in a very 

rural community where I had the privilege of representing all 

649

kinds of people, I think that has prepared me for going on the 

bench, where I respect every single person that walks in that courtroom. It is the most important day of their lives when they have 

something before the court, oftentimes having waited months, perhaps years, to get there. 

So once they’re there, that litigant deserves my attention. They 

deserve all the listening power I can put behind listening to the 

testimony, hearing what they have to say, knowing what the law 

is, because I need to get it right at that stage, and just being fair 

to that litigant, making them feel that they are welcomed in that 

courtroom, that I have not pre-judged their case, that I am there 

to listen and to make a fair decision based upon the law. 

Senator CARDIN. We had a little conversation with the last panel 

on stare decisis, and I expect I’ll hear in your response how important that is for consistency on the courts, and that of course you 

are bound by stare decisis. If you would like to comment on that, 

fine. 

But what do you do when you have litigants before you where 

it is clear that, following what appears to be the legal precedent, 

the decision is not going to be one that is in the interest of justice? 

What do you do then? Do you follow stare decisis or are there other 

courses that you can take? Judge Jones? Let’s reverse it. We’ll go 

to Judge Aycock this time. 

Judge AYCOCK. Thank you. Certainly there are times that I have 

made unpopular decisions in the courtroom, and perhaps that best 

speaks to just the acknowledgement that you don’t always know 

the perfect answer. You can’t always fix the situation. But people 

expect fairness and they expect evenhandedness, and they expect 

a level playing field. 

If they get those things, then when they walk out of the courtroom and they know they’ve been treated fairly, even though the 

decision may be something different that they had hoped for, then 

they can’t be critical of the system itself. And that’s my job, is to 

make sure that that happens in my courtroom. 

I know that there are times that making that decision following 

that rule of law that is there that has been established, sometimes 

you look at that and question it, perhaps. But my job as a trial 

judge is to know what the law is, and then to apply that law, but 

understanding that my judicial temperament requires me to remind myself of the components of compassion and understanding, 

and to be fair, above all. 

Senator CARDIN. Thank you. 

Judge Jones? 

Judge JONES. Senator, I can’t tell you how many times lawyers 

have approached me in the courtroom, prefacing their remarks 

with, this is a novel approach to the law, your Honor, and respecting that, indeed, it is a novel approach to the law. If confirmed, I 

would fully expect to take an oath upholding the Constitution of 

the United States, and with that comes the very serious commitment and responsibility to uphold the Constitution and to follow 

the law as it has been applied and interpreted by justices before 

me, and past precedent. 

Senator CARDIN. I remember with fondness my trial days. I remember appearing before different types of judges. I remember apVerDate 0ct 09 2002 09:38 Sep 17, 2007 Jkt 037658 PO 00000 Frm 00657 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\37658.TXT SJUD1 PsN: CMORC
650

pearing before a judge who had a really wonderful reputation, but 

he always tried my case for me. I wanted to make sure he didn’t 

lose it when he tried it for me. 

I’ve also been in the courtroom where I could have easily won a 

case because of the way the other attorney was conducting the 

case, but then the judge interceded and corrected the record and 

a different outcome occurred. 

My point to you is, how aggressive should a judge be in making 

sure that the case is presented in a way that the record is balanced 

or the record is clear to make a decision? I think we’ll have Judge 

Jones to go first this time. 

Judge JONES. Senator, one of the adages that I’ve heard from 

reading in the past, and specifically Judge Leonard Hand, is he 

made a statement at one point in time that justice does not depend 

so much upon legal dialectics as upon the atmosphere created in 

the courtroom. 

In the end, that depends primarily upon the judge, and I believe 

the judge has the responsibility of setting the proper tone and atmosphere at all times in the proceedings before the judge. And if 

confirmed, you have my solemn commitment that I would ensure 

that justice would be done. It’s not my responsibility to be an advocate or to try a case, in any regard. I certainly wouldn’t take a case 

from a lawyer and give them the opportunity to try the case, as 

they believe it appropriate. 

Judge AYCOCK. Mr. Chairman, as Judge Jones has indicated, it 

is totally inappropriate to become an advocate, even when we want 

to retreat into that position of having practiced law for those 22 

years. And you think about what you might do in that situation, 

but that’s inappropriate and that’s not my job. 

My job is to be there to rule on the objections, rule on the motions, to keep the trial proceeding in an orderly manner, and to remember my role. There are times that I am of the opinion that you 

can be available, whether it is during the trial or after the trial 

where young attorneys can seek you out and ask, given the situation, you heard me try the case, do you have any suggestions. And 

I think they can learn from those of us that have practiced for 

years, and in that capacity, help. But in that courtroom, you’re 

there to try the case. To hear the case. Excuse me. 

Senator CARDIN. I’m sure you’ve heard, and your Senator was 

very complimentary of your judicial temperament, about really nice 

people who become judges, and then you start to wonder. What do 

you think is the right balance between maintaining the discipline 

and dignity of a court and not forgetting that this is a place that 

people should feel comfortable that they’re getting judgment by 

someone who is mindful of what it is to live in a community. 

Judge AYCOCK. Chairman, we’re all human. We all make mistakes. I have to remind myself that I’m going to make my share 

of mistakes, but to just go in every day and do the very best job 

that day under those circumstances that I can do. And I think I 

will always have a place in my community. I will do those things 

under the Code of Ethics that permit me to remain active where 

I can. 

But I do understand that I have isolated myself, by choice, by 

asking the voters of North Mississippi to put me in this elected poVerDate 0ct 09 2002 09:38 Sep 17, 2007 Jkt 037658 PO 00000 Frm 00658 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\37658.TXT SJUD1 PsN: CMORC
651

sition, and asking you, Senator, and your committee to confirm me 

in this new position, that I am asking for some sense of isolation 

because I realize that I have to maintain the role of a judge. 

Judge JONES. Senator, I have held my position as a Superior 

Court judge for 13 years and I’ve been able to demonstrate during 

that time period to the members of our community, and to the bar, 

and to the bench of my capacity to maintain the proper demeanor 

and decorum in the courtroom. 

I place great emphasis on the pride of the position I presently 

hold as a Superior Court judge to ensure that every person coming 

into that courtroom walks out of the door feeling that justice has 

been done. They may not prevail, but they know that they had the 

opportunity to be heard and that justice has been served. 

Senator CARDIN. One moment, please. 

Let me again point out that the record will be open for written 

questions. That’s what they’re telling me, that the record will be 

open for 1 week for written questions—I guess I was going to say 

the right thing after all—that the committee may very well want 

to propound. 

But I just want to make a personal observation. I was very impressed when I read your backgrounds and your material before today’s hearing. It’s only been reinforced by your appearance here 

today. I again thank you all for your willingness to serve in what 

I think is one of the most important positions in our country, and 

that is as a judge, as a Circuit Court judge, where I think justice 

really is the front lines for carrying out justice in our community. 

It is not easy. There are tremendous sacrifices, and I thank you 

very much for being willing to put yourself forward. 

With that, this committee will stand adjourned. Thank you. 

[Whereupon, at 3:55 p.m. the committee was adjourned.] 

[Questions and answers and a submission for the record follow.]

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Æ


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