S. HRG. 110–138, pt.3 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JANUARY 22, FEBRUARY 12, FEBRUARY 21, APRIL 3, MAY 1, 2008 

PART 3 

Serial No. J–110–8 

Printed for the use of the Committee on the Judiciary 

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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47–450 PDF 2009

S. HRG. 110–138, pt. 3 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JANUARY 22, FEBRUARY 12, FEBRUARY 21, APRIL 3, MAY 1, 2008 

PART 3 

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 

January 22, 2008 

STATEMENT OF COMMITTEE MEMBER 

Page 

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

statement .............................................................................................................. 172 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 4 

prepared statement .......................................................................................... 176 

PRESENTERS 

Larson, John B., a U.S. Representative from the State of Connecticut presenting Kevin J. O’Connor of Connecticut, to be Associate Attorney General, 

Department of Justice ......................................................................................... 1 

STATEMENTS OF THE NOMINEES 

Katsas, Gregory G., of Massachusetts, to be Assistant Attorney General Civil 

Division, Department of Justice .......................................................................... 58 

Questionnaire .................................................................................................... 59 

O’Connor, Kevin J., of Connecticut, to be Associate Attorney General, Department of Justice ..................................................................................................... 5 

Questionnaire .................................................................................................... 7 

QUESTIONS AND ANSWERS 

Responses of Gregory G. Katsas, to questions submitted by Senators Leahy, 

Kennedy, and Grassley ........................................................................................ 146 

Responses of Kevin J. O’Connor, to questions submitted by Senators Leahy, 

Kennedy, Feingold, and Grassley ....................................................................... 116 

SUBMISSIONS FOR THE RECORD 

Larson, John B., a U.S. Representative from the State of Connecticut, statement ...................................................................................................................... 170 

Lieberman, Hon. Joseph I., a U.S. Senator from the State of Connecticut ........ 175 

February 12, 2008 

STATEMENTS OF COMMITTEE MEMBERS 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 179 

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

statement .............................................................................................................. 461 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 187 

PRESENTERS 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee presenting Gustavus Adolphus Puryear, IV, Nominee to be U.S. District Judge 

for the Middle of Tennessee ................................................................................ 180 

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

Richard H. Honaker, Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 183 

Page

IV 

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

James Randal Hall, Nominee to be U.S. District Judge for the Southern 

District of Georgia ................................................................................................ 181 

Corker, Hon. Bob, a U.S. Senator from the State of Tennessee presenting 

Gustavus Adolphus Puryear, IV, Nominee to be U.S. District Judge for 

the Middle of Tennessee ...................................................................................... 180 

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

Richard H. Honaker, Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 182 

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

James Randal Hall, Nominee to be U.S. District Judge for the Southern 

District of Georgia ................................................................................................ 186 

Lincoln, Blanche L., a U.S. Senator from the State of Arkansas presenting 

Brian Stacy Miller, Nominee to be U.S. District Judge for the Eastern 

District of Arkansas ............................................................................................. 184 

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

Brian Stacy Miller, Nominee to be U.S. District Judge for the Eastern 

District of Arkansas ............................................................................................. 185 

STATEMENTS OF THE NOMINEES 

Hall, James Randal, Nominee to be U.S. District Judge for the Southern 

District of Georgia ................................................................................................ 188 

Questionnaire .................................................................................................... 189 

Honaker, Richard H., Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 216 

Questionnaire .................................................................................................... 217 

Miller, Brian Stacy, Nominee to be U.S. District Judge for the Eastern District of Arkansas ................................................................................................... 307 

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

Puryear, Gustavus Adolphus, IV, Nominee to be U.S. District Judge for 

the Middle of Tennessee ...................................................................................... 251 

Questionnaire .................................................................................................... 252 

QUESTIONS AND ANSWERS 

Responses of Richard Honaker, to questions submitted by Senators Kennedy, 

Biden, Feinstein, Durbin and Cardin ................................................................. 364 

Responses of Gustavus Puryear, IV, to questions submitted by Senators 

Leahy, Kennedy and Feingold ............................................................................. 393 

SUBMISSIONS FOR THE RECORD 

Anselmi, Mark D., Rock Springs, Wyoming, letter ............................................... 433 

Barrett, Richard, Attorney at Law, Richard J. Barrett, P.C., Cheyenne, Wyoming, letter ........................................................................................................... 434 

Brimmer, Clarence A., District Judge, Cheyenne, Wyoming 

November 7, 2006, letter .................................................................................. 435 

April 3, 2007, letter .......................................................................................... 436 

Brown, Jacqueline K., Attorney at Law, Family Law Center, LLC, Casper, 

Wyoming, letter .................................................................................................... 437 

Bluemel, Joseph B., Attorney at Law, Kemmerer, Wyoming, letter ................... 438 

Casper, Stacy E., Attorney, Casper Law Office, LLC, Casper, Wyoming, letter 439 

Casper Star Tribune, March 28, 2007, letter to the editor .................................. 440 

Cotton, C. John, Esq., Attorney at Law, Gillette, Wyoming, letter ..................... 441 

Chapman, Frank R., Attorneys and Counselors at Law, Chapman Valdez, 

Casper, Wyoming, letter ...................................................................................... 443 

Daily Rockert-Miner, April 3, 2007, letter to the editor ....................................... 445 

Enzi, Michael B., a U.S. Senator from the State of Wyoming, letter .................. 446 

Fitzgerald, James E., Attorney, Fitzgerald Law Firm, Cheyenne, Wyoming, 

letter ...................................................................................................................... 447 

Fox, Kate M., Attorneys at Law, Davis & Cannon, Cheyenne, Wyoming, 

letter ...................................................................................................................... 448 

Gonda, Jeffrey J., Attorney, Lonabaugh and Riggs, LLP, Sheridan, Wyoming, 

letter ...................................................................................................................... 449 

Hickey, Paul J., Attorney, Hickey & Evans, LLP, Cheyenne, Wyoming, letter . 451 

Hursh, John R., Attorney & Counselor at Law, Central Wyoming Law Associates, P.C., Riverton, Wyoming, letter ................................................................. 453 

Page

V 

Johnson, Alan B., District Judge, District of Wyoming, Cheyenne, Wyoming: 

October 26, 2006, letter .................................................................................... 454 

October 26, 2006, letter .................................................................................... 455 

Kirven, Timothy J., Attorneys at Law, Kirven and Kirven, P.C., Buffalo, 

Wyoming, letter .................................................................................................... 457 

Kunz, Brent R., Attorney, Hathaway & Kunz, P.C., Cheyenne, Wyoming: 

November 8, 2006, letter .................................................................................. 458 

February 8, 2008, letter ................................................................................... 460 

Lewis, Rebecca A., Attorney, Pence and MacMillan, LLC, Steamboat, Colorado, letter ............................................................................................................ 463 

Levy, Bruce P., M.D., Chief Medical Examiner, State of Tennessee, Department of Health, Nashville, Tennessee, statement and attachment ................. 465 

McKellar, William M., Esq, Attorneys & Counselors at Law, McKellar, 

Tiedeken & Scoggin, LLC, Cheyenne, Wyoming, letter .................................... 501 

Messenger, Michael S., Attorney at Law, Messenger & Jurovich, P.C., 

Thermopolis, Wyoming, letter ............................................................................. 503 

Osborn, Mitchell E., Attorney at Law, Mitchelle E. Osborn, Cheyenne, Wyoming, letter ........................................................................................................... 504 

Rhodes, Diana, Esq., Attorney at Law, Rhodes Law Firm, P.C., Cheyenne, 

Wyoming, letter .................................................................................................... 505 

Rochelle, Ann M., Attorney, Shively, Taheri & Rochelle, P.C., Casper, Wyoming, letter ........................................................................................................... 506 

Rosenthal, Michael, Hathaway & Kunz, P.C., Cheyenne, Wyoming, letter ....... 508 

Schuster, Robert P., P.C., Attorney at Law, Robert P. Schuster, P.C., Jackson, 

Wyoming, letter .................................................................................................... 509 

Shively, Robert M., Attorney, Shively, Taheri & Rochelle, P.C., Casper, Wyoming, letter ........................................................................................................... 511 

Simpson, Alan K., (Retired) Wyoming State Senator, Cody, Wyoming, letter ... 513 

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

Casper, Wyoming, letter ...................................................................................... 515 

Woodard, Rhonda Sigrist, Woodard & White, a Professional Corporation, 

Cheyenne, Wyoming, letter ................................................................................. 516 

Woodhouse, Gay V., President Wyoming State Bar, Cheyenne, Wyoming, 

letter ...................................................................................................................... 518 

Wyoming Legislative Service Office, Dan J. Pauli, Director, Cheyenne, Wyoming, letter ........................................................................................................... 519 

February 21, 2008 

STATEMENT OF COMMITTEE MEMBER 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 1042

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

statement .............................................................................................................. 1046 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 521 

prepared statement .......................................................................................... 1051 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, prepared 

statement .............................................................................................................. 1053 

WITNESSES 

Warner, Hon. John, a U.S. Senator from the State of Virginia ........................... 524 

STATEMENTS OF THE NOMINEES 

Anderson, Stanley Thomas, Nominee to be U.S. District Judge for the Western District of Tennessee ..................................................................................... 527 

Questionnaire .................................................................................................... 612 

Haynes, Catharina, of Texas Nominee to be U.S. Circuit Court Judge for 

the Fifth Circuit ................................................................................................... 528 

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

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

of California .......................................................................................................... 527 

Questionnaire .................................................................................................... 573 

Page

VI 

QUESTIONS AND ANSWERS 

Responses of Catharina Haynes to questions submitted by Senators Leahy, 

Kennedy, Feinstein and Cardin .......................................................................... 653 

SUBMISSIONS FOR THE RECORD 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, statement ...................................................................................................................... 1039

Warner, Hon. John, a U.S. Senator from the State of Virginia, statement ........ 1056 

April 3, 2008 

STATEMENT OF COMMITTEE MEMBER 

Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin ............................ 1063 

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

statement .............................................................................................................. 1262 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1064 

PRESENTERS 

Bond, Hon. Christopher S., a U.S. Senator from the State of Missouri presenting David Gregory Kays, Nominee to be U.S. District Judge for the 

Western District of Missouri presenting Stephen N. Limbaugh, Jr., Nominee to be U.S. District Judge for the Eastern District of Missouri .................. 1067 

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

David Gregory Kays, Nominee to be U.S. District Judge for the Western 

District of Missouri and Stephen N. Limbaugh, Jr., Nominee to be U.S. 

District Judge for the Eastern District of Missouri .......................................... 1068 

Warner, Hon. John, a U.S. Senator from the State of Virginia: Presenting 

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

of Virginia and David J. Novak, Nominee to be U.S. District Judge for 

the Eastern District of Virginia, and Elisebeth C. Cook, Nominee to be 

Assistant Attorney General for the Office of Legal Policy, Department of 

Justice ................................................................................................................... 1064

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

S. Davis, Nominee to be U.S. District Judge for the Eastern District of 

Virginia and David J. Novak, Nominee to be U.S. District Judge for the 

Eastern District of Virginia ................................................................................. 1066 

STATEMENTS OF THE NOMINEES 

Cook, Elisebeth C., Nominee to be Assistant Attorney General for the Office 

of Legal Policy, Department of Justice ............................................................... 1069 

Questionnaire .................................................................................................... 1071 

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

of Virginia ............................................................................................................. 1097 

Questionnaire .................................................................................................... 1098 

Kays, David Gregory, Nominee to be U.S. District Judge for the Western 

District of Missouri .............................................................................................. 1135 

Questionnaire .................................................................................................... 1136 

Limbaugh, Stephen N., Jr., Nominee to be U.S. District Judge for the Eastern 

Distrit of Missouri ................................................................................................ 1200 

Questionnaire .................................................................................................... 1201 

Novak, David J., Nominee to be U.S. District Judge for the Eastern District 

of Virginia ............................................................................................................. 1170 

Questionnaire .................................................................................................... 1171 

QUESTIONS AND ANSWERS 

Responses of David J. Novak to questions submitted by Senator Specter ......... 1256 

SUBMISSIONS FOR THE RECORD 

Warner, Hon. John, a U.S. Senator from the State of Virginia, prepared 

statements: 

Elisebeth Collins Cook ..................................................................................... 1265 

Mark S. Davis ................................................................................................... 1269 

Page

VII 

Warner, Hon. John, a U.S. Senator from the State of Virginia, prepared 

statements—Continued 

David J. Novak ................................................................................................. 1277 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, prepared statement ...................................................................................................................... 1283

May 1, 2008 

STATEMENTS OF COMMITTEE MEMBERS 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1290 

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

statement and letters ........................................................................................... 1425 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1290 

PRESENTERS 

Bayh, Hon. Evan, a U.S. Senator from the State of Indiana presenting William T. Lawrence, Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 1295 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona presenting G. 

Murray Snow, Nominee to be U.S. District Judge for the District of Arizona ....................................................................................................................... 1289 

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

William T. Lawrence, Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 1294 

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

G. Steven Agee, Nominee to be U.S. Circuit Court Judge for the Fourth 

Circuit ................................................................................................................... 1296

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

Steven Agee, Nominee to be U.S. Circuit Court Judge for the Fourth Circuit ......................................................................................................................... 1297 

NOMINEES 

Agee, G. Steven, Nominee to be U.S. Circuit Court Judge for the Fourth 

Circuit ................................................................................................................... 1298

Questionnaire .................................................................................................... 1300 

Lawrence, William T., Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 1336 

Questionnaire .................................................................................................... 1337 

Snow, G. Murray, Nominee to be U.S. District Judge for the District of 

Arizona .................................................................................................................. 1376 

Questionnaire .................................................................................................... 1377 

SUBMISSIONS FOR THE RECORD 

Warner, Hon. John, a U.S. Senator from the State of Virginia, prepared 

statement .............................................................................................................. 1447 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, prepared statement ...................................................................................................................... 1452

ALPHABETICAL LIST OF NOMINEES 

Agee, G. Steven, Nominee to be U.S. Circuit Court Judge for the Fourth 

Circuit ................................................................................................................... 1298

Anderson, Stanley Thomas, Nominee to be U.S. District Judge for the Western District of Tennessee ..................................................................................... 527 

Cook, Elisebeth C., Nominee to be Assistant Attorney General for the Office 

of Legal Policy, Department of Justice ............................................................... 1069 

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

of Virginia ............................................................................................................. 1097 

Hall, James Randal, Nominee to be U.S. District Judge for the Southern 

District of Georgia ................................................................................................ 188 

Haynes, Catharina, of Texas Nominee to be U.S. Circuit Court Judge for 

the Fifth Circuit ................................................................................................... 528 

Honaker, Richard H., Nominee to be U.S. District Judge for the District 

of Wyoming ........................................................................................................... 216 

Page

VIII 

Katsas, Gregory G., of Massachusetts, to be Assistant Attorney General Civil 

Division, Department of Justice .......................................................................... 58 

Kays, David Gregory, Nominee to be U.S. District Judge for the Western 

District of Missouri .............................................................................................. 1135 

Lawrence, William T., Nominee to be U.S. District Judge for the Southern 

District of Indiana ................................................................................................ 1336 

Limbaugh, Stephen N., Jr., Nominee to be U.S. District Judge for the Eastern 

District of Missouri .............................................................................................. 1200 

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

of California .......................................................................................................... 527 

Miller, Brian Stacy, Nominee to be U.S. District Judge for the Eastern District of Arkansas ................................................................................................... 307 

Novak, David J., Nominee to be U.S. District Judge for the Eastern District 

of Virginia ............................................................................................................. 1170 

O’Connor, Kevin J., of Connecticut, to be Associate Attorney General, Department of Justice ..................................................................................................... 5 

Puryear, Gustavus Adolphus, IV, Nominee to be U.S. District Judge for 

the Middle of Tennessee ...................................................................................... 251 

Snow, G. Murray, Nominee to be U.S. District Judge for the District of 

Arizona .................................................................................................................. 1376 

(1) 

NOMINATIONS OF KEVIN J. O’CONNOR, OF 

CONNECTICUT, NOMINEE TO BE ASSOCIATE 

ATTORNEY GENERAL, DEPARTMENT OF 

JUSTICE; AND GREGORY G. KATSAS, OF 

MASSACHUSETTS, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, 

DEPARTMENT OF JUSTICE 

TUESDAY, JANUARY 22, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:02 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, presiding. 

Present: Senators Cardin and Specter. 

Senator WHITEHOUSE. The hearing will come to order. 

My name is Sheldon Whitehouse, Senator from Rhode Island. I’ll 

be chairing this hearing. 

And we have with us the Honorable John Larson, who represents 

the State of Connecticut in Congress. And I will allow the Congressman to say a few words on behalf of one of the nominees, and 

then I will make an opening statement. Then I will call the two 

nominees forward together to be sworn, to give their opening statements, and then have such questions and answers as may transpire. So, that’s what we’ll do. 

Congressman Larson, the floor is yours. 

PRESENTATION OF KEVIN J. O’CONNOR, NOMINEE TO BE ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, 

BY HON. JOHN B. LARSON, A U.S. REPRESENTATIVE FROM 

THE STATE OF CONNECTICUT 

Representative LARSON. Thank you very much, Senator. I would 

like to say, on behalf of United States Senators Dodd and Lieberman, and I take both great pride and honor in being here and getting to introduce Kevin O’Connor to this committee. 

I’m proud to introduce Kevin O’Connor. He has brought honor 

and distinction to every endeavor he’s been associated with. This 

is a proud moment for him, Kathleen, their children, and the entire 

O’Connor family, several of whom are assembled here this afternoon. It’s a proud moment for the State of Connecticut and, I daresay, a proud moment for these United States. 

2 

Our local paper, the paper of record in the State of Connecticut, 

the Hartford Current, wrote of Mr. O’Connor’s nomination: ‘‘In 

Kevin O’Connor, the White House has someone whose record and 

integrity promise to help restore confidence and stability to the 

agency.’’ I couldn’t agree more. 

In his 5 years as United States Attorney for Connecticut, his office successfully prosecuted numerous public officials, both Republicans and Democrats, for corruption and bribery charges. Mr. 

O’Connor has been adamant in enforcing our civil rights laws. He 

has protected our children from predators by successfully implementing the Project Safe Childhood program that combats online 

sex crimes against children. 

He has won a conviction in a Federal civil rights trial against the 

former mayor of Waterbury, Connecticut for sexually abusing two 

minor children, and he sent a clear message that racial discrimination has no place in the State of Connecticut, or this country, with 

the prosecution of racially motivated crimes. 

Mr. O’Connor personally prosecuted a man who plead guilty to 

violating Federal civil rights laws by accosting a colleague and 

making racially derogatory comments. As U.S. Attorney, he successfully tried criminal cases, argued two cases before the U.S. 

Court of Appeals for the Second Circuit. He has appeared in court 

on behalf of the United States on numerous other matters. 

But he also took his job and responsibility outside of the courtroom and onto the streets by implementing a Project Safe Neighborhoods program. He worked to reduce gun crime, because there 

is no better way to lower our crime rate than to prevent criminal 

behavior before it begins. 

I know this firsthand from working with him and seeing the level 

of commitment, understanding, the passion that he brings to his 

job and the coordinated involvement he brings to problem solving, 

things that I know serve him, and this Nation, well. 

He also took on companies in our State whom he believed were 

violating the Clean Water Act. They were found guilty of dumping 

sewage into our waterways and falsifying records. In addition to 

obtaining two of the largest criminal penalties in New England history for their convictions, he also went further and secured commitments from the companies to clean up their acts and improve their 

environmental compliance efforts. 

Mr. O’Connor recently served with distinction as Chief of Staff 

for the Attorney General. He assumed this position during a difficult time for the Department and the U.S. Attorney community. 

He helped maintain consistency during the transition between Acting Attorney General and Attorney General Michael Mukasey. He 

stepped up to the job by instituting a process that both helped fix 

the Department’s problems and ensured its continued integrity. 

His previous experience includes a stint as a partner in one of 

Connecticut’s largest law firms. He also enforced our Nation’s security laws while working for the U.S. Securities & Exchange Commission, and he teaches law at the University of Connecticut and 

George Washington University. He has been an active and involved 

member of our community, serving on boards with distinction, and 

most of all bringing his great energy and enthusiasm to all of those 

endeavors. 

3 

As an Associate Attorney General, I am confident that he will 

continue to enforce the Nation’s laws and continue to show the 

strong and impartial commitment to the rule of law. 

I am honored to introduce Kevin O’Connor for your consideration 

of his nomination to the position of Associate Attorney General, for 

which he is eminently qualified and, like everything else that he 

has done, will distinguish himself on behalf of this great Nation 

that he has sworn to serve. 

I thank you for affording me the honor to introduce this outstanding candidate. 

Senator WHITEHOUSE. Thank you, Congressman Larson. I appreciate that you have made the trip—quite a long trip, it seems, from 

your side of the Capitol to ours—to speak on behalf of Mr. O’Connor. I appreciate it. 

Representative LARSON. Let’s hope we can continue to close that 

chasm that exists there. Thank you very much, Senator. I appreciate the opportunity. 

Senator WHITEHOUSE. I’m very grateful to have our Ranking 

Member, the distinguished Senator from Pennsylvania, Senator 

Specter, here. 

Senator. 

Senator SPECTER. Well, thank you, Mr. Chairman. I wanted to 

join in welcoming Congressman Larson and thank him for his 

opening remarks. I’d welcome the nominees for key positions in the 

Department of Justice. Kevin J. O’Connor, to be Associate Attorney 

General, the number three position. I thank Senator Leahy, the 

Chairman, and you for moving ahead with these important nominations. 

We’re trying very hard to get the Department of Justice up to 

full speed. We have lots of important work to do. The Department 

had a rugged year last year, without saying anything further. Attorney General Mukasey is in charge, bringing in a new team. We 

want to make an appropriate analysis here and get these people 

confirmed at the earliest possible time so that they can move ahead 

full steam. 

I am pleased to see the excellent resumes of these two nominees. 

Kevin James O’Connor, with honors from University of Notre 

Dame, high honors from Connecticut Law School, on the Law Review. Real qualifications. He clerked for a Federal judge and was 

U.S. Attorney. He worked in the Department of Justice as Associate Deputy Attorney General and Chief of Staff to the Attorney 

General. So, those are very fine credentials. He knows his field. A 

prosecuting attorney’s job is something that Senator Whitehouse 

and I have some—I have modest experience, he has extensive experience. 

Senator WHITEHOUSE. Also modest. 

Senator SPECTER. And I’m especially pleased to see Mr. Katsas 

has worked for Judge Becker. That’s an education all by itself. 

Judge Becker was Chief Judge of the Circuit in the Federal District 

Court from 1970 to 1982. He served on the Third Circuit until his 

untimely death 2 years ago. He was a very good friend of mine, and 

one of the great, great jurists in the history of the Federal courts. 

Mr. Katsas has a great record, Princeton cum laude and Harvard 

Law School, cum laude, executive editor of the Harvard Law ReVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
4 

view, and extensive experience at the Department of Justice. So, 

it’s good to move ahead with these quality nominees. I’m reserving 

judgment, gentlemen, until we hear you testify and take a close 

look at your record, but it seems to me you’re in very good shape. 

And preliminarily, let me say that I will not be here too long because there are several hundred Pennsylvanians waiting to talk to 

me. This is January 22nd, as you may have noted on your calendar, the day of Roe v. Wade, which brings a large group to the 

steps of the Supreme Court and a large group to most Senators’ offices. 

Thank you very much, Congressman Larson, for coming over. 

Representative LARSON. My pleasure. Thank you, Senator. 

Senator WHITEHOUSE. Thank you, Congressman Larson. 

Go ahead and take your seats, gentlemen. Today the committee 

will hear from two witnesses, Kevin O’Connor, nominated to be the 

Associate Attorney General, and Gregory Katsas, nominated to be 

the Assistant Attorney General in charge of the Civil Division. 

Mr. O’Connor is currently the U.S. Attorney for the District of 

Connecticut. He has previously served as Chief of Staff to Attorney 

General Alberto Gonzales and as Associate Deputy Attorney General. Prior to joining the Department of Justice, he had an impressive career in both the private and public sectors. 

The position to which Mr. O’Connor has been nominated is a 

vital one. The Associate Attorney General is the number three official at the Department of Justice, responsible for supervising a 

number of important offices, including the Antitrust, Civil, Civil 

Rights, and Environment & Natural Resources Divisions. 

Mr. Katsas is currently both the Acting Associate Attorney General and the Principal Deputy Associate Attorney General. From 

2001 to 2006, he served as the Deputy Attorney General of the 

Civil Division, where he supervised much of the division’s appellate 

work, so he is well familiar with the workings of the very important division he has been nominated to. 

STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 

FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Before proceeding with the witnesses’ 

opening statements, I would like to make two observations. First, 

this hearing marks another important step in the effort to restore 

the Department’s credibility after the disastrous tenure of Alberto 

Gonzales, which ended with vacancies throughout the Department’s upper ranks. 

Indeed, the nominees before the committee today are the ninth 

and tenth, respectively, to have confirmation hearings before this 

committee since Mr. Gonzales stepped down, a list which includes 

nominees to be Attorney General, Deputy Attorney General, Associate Attorney General, and three Assistant Attorneys General. 

I commend Chairman Leahy for his determination to help fill 

these vacancies so that Attorney General Mukasey can have a leadership team intact so the Department’s credibility can be restored. 

Chairman Leahy has provided a statement, which I ask to have 

put in the record. Without objection, the Chairman’s statement will 

be part of the record. 

5 

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

Senator WHITEHOUSE. Whether the Department’s credibility can 

be restored depends in large part on whether these nominees are 

committed to operating in a manner different from the approach of 

the Gonzales Justice Department in which they both served. Second, this hearing is a reminder of the vital role of congressional 

oversight of the Department of Justice. 

It was thanks to this committee’s hard work last year that the 

American people learned of U.S. Attorneys fired for political reasons, of a hiring process corrupted by politics, and a policy that allowed hundreds of people at the White House to have case-specific 

conversations with dozens of DOJ lawyers. 

Attorney General Mukasey has taken preliminary steps to right 

the ship, but as we all know, there is much more to be done. Congress will play an instrumental role in ensuring that progress continues to be made, which brings us to today’s hearing. We look forward to the testimony of both Mr. O’Connor and Mr. Katsas. 

We need independent voices in the leadership of the Department 

of Justice, people who will make decisions based on the law, not 

on politics, people who will stand up to political pressure from the 

White House, and people who understand and value the time-honored traditions of the Department of Justice that have helped guide 

it for many decades and made it great. These are the measures by 

which we will judge your nominations. I look forward to your testimony, and would call on you for your opening remarks. 

Senator Specter, would you like to make further opening remarks? 

Senator SPECTER. No thank you, Mr. Chairman. 

Senator WHITEHOUSE. Would the witnesses please stand and be 

sworn? 

[Whereupon, the witnesses were duly sworn.] 

Senator WHITEHOUSE. Please be seated. 

Mr. O’Connor, will you proceed first? 

STATEMENT OF KEVIN J. O’CONNOR, OF CONNECTICUT, NOMINEE TO BE ASSOCIATE ATTORNEY GENERAL, DEPARTMENT 

OF JUSTICE 

Mr. O’CONNOR. Good afternoon, and thank you, Mr. Chairman, 

for, No. 1, agreeing to chair this hearing, and Senator Specter, for 

being here as well. I want to thank the President and the Attorney 

General for having the confidence in me to nominate me for this 

very important position at a very important time. 

I also want to thank Congressman Larson for his kind words and 

efforts to be here today. I had the good fortune of having been an 

opponent of his in a prior election. You can probably see, from his 

remarks, why I lost and he won. He is an outstanding public servant and it means a lot to me and my family that he took the time 

to be here. So, I want to thank him as well. 

I’d also like to thank my family, many of whom join me here 

today. 

Senator WHITEHOUSE. Why don’t you take a few minutes and introduce them if you would? We’d be delighted to see who they are 

6 

and have you have the opportunity to introduce them to the committee. 

Mr. O’CONNOR. Thank you, Senator, for that. 

I’d introduce my wife, Kathleen, and my son James, who is for 

now is acting very well on her lap. My three daughters are colorcoordinated so we don’t lose them in the room, Erin, Anne and 

Mary. Behind them are my in-laws, Bill and Caryl Plunkett, and 

behind my wife are my parents, Mary and Dennis O’Connor. I also 

have two of my brothers here today, Michael and John O’Connor, 

and Michael brought his sons, Brandon and Michael, as well. I 

have numerous other friends and family from West Hartford, but 

also from my U.S. Attorney Office and the Department who are 

here as well. 

I will not indulge upon your time and your patience by going 

through all of them, but I want to thank them as well. 

Senator WHITEHOUSE. Well, you are all very welcome here. I appreciate that you’ve taken time out of your schedules to come, and 

I appreciate how well the young O’Connor children are behaving. 

You are setting a very good example. 

Please proceed. 

Mr. O’CONNOR. Thank you. 

I want to be very brief in my opening statement and just simply 

say that it’s an honor to serve. I feel privileged to have served this 

country and the people of Connecticut for the last five-plus years 

as United States Attorney. And should I be confirmed by the Senate, I would view it as the highest honor of my professional career 

to continue in service of the Department of Justice. 

I have come, over the past 5 years, to admire and respect so 

greatly all of the men and women of the Department of Justice, 

all—more than 100,000 of them, and I feel privileged every day I 

get to come to work and work alongside them. So it is a deep honor 

to me and to my family to be here today. 

Again, I thank this committee for moving as quickly as it has 

with my nomination, and I thank you for your time this afternoon. 

[The biograhical information follows.] 

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Senator WHITEHOUSE. Mr. Katsas? 

STATEMENT OF GREGORY G. KATSAS, OF MASSACHUSETTS, 

NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE 

Mr. KATSAS. Thank you, Senator. I would just like to acknowledge a few people, and thank a few others. 

First, if I may, I’d like to introduce my girlfriend, Simone Mele, 

who’s here. She came down from New York to be with us, and 

we’re glad that she’s here. I’d like to say hello to my mother, who 

is watching these proceedings on television. She’s elderly and 

couldn’t be here in person, but she is watching from Jamaica Plain, 

Massachusetts. Also, to my sister in Newbury-Port, Massachusetts. 

She is busy raising two small children with her husband. 

I’d like to thank a few of the very many people who have helped 

me and supported me in various stages of my legal career: Justice 

Clarence Thomas gave me the incomparable privilege of clerking 

for him twice, first at the DC Circuit and then at the Supreme 

Court; Timothy Dyke and Glen Baker were my bosses for many 

years at Jones, Day, and great teachers and mentors; Robert 

McKeown, Peter Keisler, and William Mercer each gave me the 

high honor of serving at the Justice Department for the last six 

and a half years, both in the Civil Division and the Office of the 

Associate Attorney General. 

I’d like to thank Robert Kaugh and every member of the appellate staff of the Civil Division. I’ve worked with them side to side 

for more than 5-years. They are a team of fabulous, dedicated public servants and lawyers. Robert managed that staff flawlessly and 

I ended up getting much of the credit for his great work. Last, but 

not least, I’d like to thank the President for nominating me, and 

I’d like to thank this committee for giving me this hearing. 

Finally, I’d like to recognize two people who are no longer with 

us. The first, is Judge Edward Becker, who gave me my first job 

out of law school as a clerk in Philadelphia on the Third Circuit. 

Judge Becker was a giant in the law, but nonetheless a humble 

man and, as Senator Specter knows, one also who was loved by everyone who had the chance to know him. He taught me so many 

good lessons, including that good decision-making requires hard 

work and a painstaking attention to detail. He died much too 

young, but his memory continues to inspire me and dozens of other 

former clerks every day of our professional lives. 

Finally, my father. He came to this country and lived the American dream for more than 40 years as a distinguished forensic pathologist in Greater Boston. In his obituary, the Boston Globe described his unparaleled reputation for honesty, integrity, for the 

testimony that he gave in court as a part of his job. I’ve tried to 

do my best to live up to those standards of honesty and integrity 

in my own career so far, and I will do my best to continue to live 

up to those standards as an Assistant Attorney General, if I should 

be fortunate enough to be so confirmed. 

Thank you very much. 

[The biographical information follows.] 

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Senator WHITEHOUSE. Thank you, Mr. Katsas. 

Mr. O’Connor, you, in addition to being the nominee for Associate 

Attorney General, also continue in your position as U.S. Attorney 

for the District of Connecticut. 

Mr. O’CONNOR. That’s correct. I currently serve as U.S. Attorney 

for Connecticut. 

Senator WHITEHOUSE. Do you intend to relinquish that position? 

Mr. O’CONNOR. I believe I would have to, if I was confirmed. I 

don’t think it’s a choice by law. I would certainly intend to step 

down, if confirmed. 

Senator WHITEHOUSE. Good. 

I think across America, people who have served in the Department of Justice are looking at this institution with real consternation, but also real hope. I think as we all know, this is a really 

vital, proud, and important institution in the architecture of American government and the enforcement of American liberties and 

laws. I hope it is now emerging from what probably number among 

its darkest days. 

I think it is very important to every member of this committee, 

as well as to so many thousands of colleagues who work for the Department of Justice and to those who have gone before you who 

look back with real pride and affection on their time at the Department of Justice, to see things put right. 

I would like to hear from you why, now, you want to be Associate 

Attorney General and how, to borrow the phrase from the Hartford 

Current, you will promise to help restore consonance to the Department of Justice and stability to the Department of Justice. 

Mr. O’CONNOR. Senator, I think the short answer to that is, because I subscribe to the same views of the Department that you 

just articulated, I believe that all of us in the Department, particularly those of us who serve at the pleasure of the President and 

who are here for a finite period of time, we have an obligation to 

keep the reservoir of credibility as high as we found it. These have, 

rightfully, been difficult times for the Department. I agree with 

that wholeheartedly. 

I had the pleasure of serving with some of the best U.S. Attorneys in the country, colleagues and friends, and I think we all 

share the commitment to making sure that we do all that we can 

to make sure that we leave this Department as good as we found 

it. 

I think the opportunity to serve as Associate Attorney General 

is an opportunity for me to do all I can in a different capacity, albeit one that would require me to be away from my family for a 

period of time. But when the Attorney General asks you to serve 

at challenging times, I think for those of us who are committed to 

public service, it’s a very difficult question to say no to. 

I was asked to serve, am honored to have served. I am fortunate 

to have a family that has supported me in these endeavors, though 

it hasn’t been easy. I can commit to you that, if I am confirmed, 

I will work every day, not just with those of us who served in this 

administration, but the men and women who will be there long beyond us, to do all we can to give people the confidence that this 

Department of Justice has to have to be effective. 

104 

Senator WHITEHOUSE. There will be those awkward circumstances with the political desires and purposes with the administration that you serve that may come into conflict with the laws 

and liberties that it is the Department’s obligation to defend. In 

those circumstances, how will you evaluate that conflict? 

Mr. O’CONNOR. Well, I would follow the law. The law is supreme. 

No job—no job—is more important than its credibility and integrity. If I ever came to such a situation—and I truly hope and trust 

that I won’t, but if I do—I will not hesitate to walk away, to resign, 

if I ever felt that I was being asked to do anything other than 

what’s right for the Department, what’s right for this country. 

Senator WHITEHOUSE. You served as Chief of Staff to Attorney 

General Gonzales at the time when he gave testimony before this 

committee, that many of the members felt was less than candid, 

less than truthful. Were you involved in the preparation of his testimony before this committee as Chief of Staff? 

Mr. O’CONNOR. I was involved. I’m not sure what particular testimony you’re referring to, but I was involved, generally preparing 

him and enlisting others, one at the Office of Legislative Affairs, 

in the various oversight hearings that occurred during the time period I served as Chief of Staff. 

Senator WHITEHOUSE. The two statements that come to mind, 

one was on July 24 when Mr. Gonzales stated, in reference to his 

visit to Attorney General Ashcroft’s hospital room, ‘‘The disagreement that occurred and the reason for the visit to the hospital was 

about other intelligence activities. It was not about the Terrorist 

Surveillance Program that the President announced to the American people.’’ 

Since then, numerous officials, including members of the socalled Gang of Eight, the top intelligence committees on the House 

and Senate side, and FBI Director Robert Mueller, have confirmed 

that the disputes did, in fact, concern the Terrorist Surveillance 

Program. 

What was your reaction when he gave that testimony? Were you 

familiar with the underlying situation or were you out of the classification bubble necessary to understand the testimony? 

Mr. O’CONNOR. The latter. I, frankly, have no understanding. I’m 

not read into the Terrorist Surveillance Program, never have been. 

With respect to that portion of his testimony, he did testify a few 

times at the Intel Committee. I was not involved in the preparation 

for that because I had not been read into that program. So, I could 

not tell you whether or not anyone’s testimony in that regard is accurate or not. 

Senator WHITEHOUSE. OK. 

The other piece of testimony was on April 19. Mr. Gonzales testified, ‘‘I haven’t talked to witnesses because of the fact that I 

haven’t wanted to interfere with the investigation’’, the investigation being the investigation into the dismissal of U.S. Attorneys. 

Subsequently, White House liaison Monica Goodling testified that 

the Attorney General had indeed had a discussion with her, one 

that she found uncomfortable, in which he set out his version of 

events regarding the process of hiring U.S. Attorneys, and asked 

her for her reaction. 

105 

Were you involved with that testimony? What is your reaction to 

what the Attorney General said when he testified as he did? 

Mr. O’CONNOR. Well, I don’t think I had any reaction at the time. 

I don’t even know if I was serving as Chief of Staff at that point. 

I believe I became Chief of Staff, like, April 26th. But I was, Senator, I know, part of the folks involved in preparing for that hearing, I believe. At the time he answered that question I had no reason to question him. When Ms. Goodling subsequently testified, 

there was obviously a difference of opinion there. 

I think Judge Gonzales could probably speak better than I can 

as to explaining that inconsistency. I don’t believe that Judge 

Gonzales, when he subsequently denied having that conversation 

with this group, I’m not privy, as I said, to exactly what the explanation was. It may have been the fact that he had just not recalled 

it, or he didn’t recall the conversation occurring then. 

Senator WHITEHOUSE. Do you know when you first became aware 

of a conversation that took place between Attorney General 

Gonzales and Ms. Goodling? 

Mr. O’CONNOR. Yes, I do. 

Senator WHITEHOUSE. When was that? 

Mr. O’CONNOR. It was the day she testified. 

Senator WHITEHOUSE. OK. Well, that clarifies what your action 

would have been to his testimony. 

The last point I’d like to ask you about is a more specific version 

of my earlier question focusing in on the Civil Rights Division, 

which is a division that has suffered particularly in the past 

months and years with embarrassing evidence of politically motivated hirings, a decrease in the division’s enforcement of Section 2 

of the Voting Rights Act, the DOJ amicus brief defending Indiana’s 

Voter Identification law, which, based on all the evidence I have 

seen, is an effort to make it more difficult to vote, not less difficult. 

If confirmed, what would you do to ensure that the Civil Rights 

Division is apolitical and vigorously protects the right to vote? In 

particular, what do you think about these State voter ID laws, 

which strike me as both erecting an obstacle to the right to vote, 

and doing so in a way that particularly makes it difficult for the 

elderly, for authorities, and for people who are at the lowest economic levels? 

Mr. O’CONNOR. Well, let me try to answer that in two phases. I 

think with respect to what I would do, should I be confirmed and 

oversee Civil Rights, would be to communicate very clearly that we 

do not make any decisions on any cases for anything other than 

what the law and the facts dictate, and political considerations play 

absolutely no role in whether we bring or don’t bring cases. Only 

the evidence should matter, number one. 

Secondly, I think as a management philosophy of the Civil Rights 

Division, I’d like to see them get on the front pages for the cases 

they do, not for anything else. I think, unfortunately, in the past 

year or two they’ve made news, but not for the right reasons. I 

think my goal would be to see the Civil Rights being talked about 

in the press because of its work, not because of its management, 

or any of the other issues that have nothing to do with the mission 

of doing the right thing for the American people and aggressively 

enforcing civil rights. 

106 

With respect to the second question of voter ID, I must say, I 

have limited experience with the issue. I don’t recall, as U.S. Attorney of Connecticut, there being any issues with any voter ID statutes passed by the State legislature that we have had to enforce. 

Obviously, HAVA does apply in Connecticut. 

There have been a few issues with the Secretary of State’s ability 

to certify compliance, but they haven’t really involved our office. I 

can say that obviously the right to vote is probably one of the most 

fundamental rights that we have, and guarding it zealously is part 

of what the Department does in the Civil Rights Division. We have 

an obligation to make sure that people who should vote can vote, 

and aren’t intimidated. That’s probably one of the most important 

issues that we have. 

There is, I believe, a concern in some parts of the country, although I’m not privy to the facts there, where there are people voting who perhaps should not be voting. I think it’s safe to say that 

in those respects there’s an interest as well in making sure that 

people who shouldn’t vote don’t dilute the votes of those who 

should. 

The question I think in each particular case depends on the facts 

and circumstances as to whether the remedy, be it a Federal statute, HAVA, or a State statute, is written in a manner that accomplishes that and doesn’t have an adverse impact. I know, with respect to the case of Indiana, I know that’s pending before the Supreme Court and has been argued. I’m hesitant, not only because 

I’m not that familiar with it, but also because of the pending nature of that litigation, to make any additional comments specific to 

that. 

Senator WHITEHOUSE. Would you agree with me with the proposition that if there are a handful of people who may vote for whom 

it is not appropriate that they be voting, it is not legal that they 

be voting, and the measure that the Department pursues in order 

to protect against the risk of their voting discourages hundreds of 

people who are legally entitled to vote, enfranchised properly in 

this country, to vote for its elected officials. The Department has 

taken a big step backward. 

Mr. O’CONNOR. Well, I would say under those circumstances I 

would like to think the Department would look long and hard. Ultimately it would be the State legislature that passed the bill that 

had that impact. The Department would have to ascertain, under 

those circumstances, what, if any, role to play. Clearly, I think 

under those circumstances the Department would have to be very 

reticent to try to defend the statute if that was the impact that the 

statute was having. 

Again, it’s hard for me to speculate on the circumstances, but if 

the goal of the statute is not being accomplished and there’s a negative impact on people that the statute did not intend to cover, 

that’s a real problem, I think, from a constitutional perspective. 

But I think, should an issue like that land in the lap of the Civil 

Rights Division, we would obviously have to give great weight to 

that. 

Senator WHITEHOUSE. It may be more than just the statute 

that’s involved. It may be enforcement policies at the Civil Rights 

Division. 

107 

Mr. O’CONNOR. I agree. That’s possible, yes. 

Senator WHITEHOUSE. OK. 

Mr. Katsas, welcome. 

Mr. KATSAS. Thank you. 

Senator WHITEHOUSE. If you don’t mind, I would ask you to embellish a little further on the remarks that you made in your opening statement—you alluded to your pride in your father’s accomplishments—and bring them to bear, if you would, on the present 

situation of the Department of Justice, particularly in terms of its 

credibility and reputation for integrity and how you see your role 

in the management position at the Department that you are seeking, and restoring that credibility and that reputation. 

Mr. KATSAS. As a forensic pathologist, my father’s job was to ascertain the cause of death and, on many occasions, to testify in 

court about that. He was typically a witness called by the government in the course of a murder or other prosecution, but he never 

viewed himself as a government witness in the sense of someone 

whose job it was to secure a conviction. 

He viewed his job as telling the facts as he determined them, regardless of where the chips may fall in any particular case. I think 

that kind of fairness earned him the terrific reputation over time 

among both prosecutors and defense lawyers who were involved in 

criminal prosecutions in the Commonwealth of Massachusetts, and 

served him well professionally and served him well as a human 

being. 

As I said, I share that sense that my job as a lawyer, involved 

in a different aspect of court proceedings, is to call things as best 

I can and make the best legal judgments I can, whether as a litigator called upon to defend the government’s position or as an advisor called upon to counsel as to what the law might require in 

a particular case. 

One can’t work in a litigating division for five years, as I have, 

without getting the sense that an appreciation of that kind of ethic 

that runs throughout the staff, throughout the appellate staff that 

I supervised and the other parts of the Civil Division, there is a 

wonderful honor that I have felt many times in being able to go 

into court and say, ‘‘May it please the Court, I represent the United 

States of America.’’ 

Deputy Attorney General Comey used to say that that statement 

always gives one immediate credibility and makes a court inclined 

to believe whatever follows that statement. But that’s only true if 

all of us continue to do our part to preserve the traditions of fairmindedness and integrity about which you have spoken so eloquently. I did my best for more than 5 years in the Civil Division 

to uphold that sort of tradition and, if confirmed, I would do my 

best to continue in the same vein. 

Senator WHITEHOUSE. You’ve mentioned this already, but how do 

you see the role of career attorneys with the Department of Justice? 

Mr. KATSAS. When I was the Appellate Deputy for the Civil Division, there was one of me, a political appointee, and 60 career attorneys working for me and with me. That office couldn’t possibly 

function unless there were a sense of trust and rapport and cooperation between me as the nominal leader and the staff who acVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
108 

tually did the overwhelming bulk of the work, and made the overwhelming majority of the recommendations, and made sure that 

the work got done. 

I think I earned their respect and developed a good relationship 

with them. It is indispensable. In the Civil Division in its entirety, 

there are probably something like half a dozen political appointees 

and 800 career lawyers. No political appointee at the top of that 

pyramid could possibly function without the confidence of all of the 

career lawyers working toward the common mission of justice. 

Senator WHITEHOUSE. I’ve recently had the chance to review a 

number of classified opinions from the Office of Legal Counsel. I’ve 

arranged that they are now—sections of them, at least, that I have 

selected are now declassified so that we can talk about them publicly, and I’ve spoken about them. 

They concern me very much, particularly since an OLC opinion 

has a precedential effect and one could build on another, and one 

could, in a chain of self-created precedent, walk the Department 

pretty far outside of the bounds of traditional legal theory, particularly when opinions are classified and there’s very little public opportunity for scrutiny and reaction to it. 

I’d like to ask for each of you to react to two points that I extracted from those opinions, and then I’ll turn to my learned, distinguished colleague from the State of Maryland, Senator Cardin, 

who has joined us. 

Here are the two propositions that I’d like to ask your comment 

on. The first proposition is this. An executive order cannot limit a 

President. There is no constitutional requirement for a President to 

issue a new executive order whenever he wishes to depart from the 

terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it. 

My concern on that one, rather briefly, is that it allows the published executive orders of the executive branch of the government 

to become a foil and a screen for the real activities of the government if there is never a disclosure of the President’s, to use the 

phrase, modification or waiver of the executive order. I understand 

perfectly well that the President is free to modify one. He can act 

outside of one and modify it nunc pro tunc. There is enormous and 

widespread executive authority. 

But the idea that you must never—you’re free never to come into 

compliance or change an executive order and simply run a classified program in violation of your own disclosed executive orders, 

which in many situations have the force of law, strikes me as being 

a trespass beyond the bounds of legal propriety. 

The second one is very simple. The Department of Justice is 

bound by the President’s legal determinations. It strikes me that 

that is a particularly difficult proposition where the Department of 

Justice is called upon to do its duty, that the President, for reasons 

that may have nothing to do with the enforcement of the laws of 

the United States of America, may choose to have a different view, 

maybe as a result of his personal interests or his political self-interests, and unfortunately has to have seen such circumstances. 

President Nixon was rather famous for saying if the President says 

so, then it can’t be illegal. 

109 

So if you could react to those two propositions for me, I’d appreciate it. 

Mr. O’Connor. 

Mr. O’CONNOR. Thank you, Senator. I would say that, with respect to the first one, I think that perhaps the most appropriate 

way to respond is that transparency is crucial, that it seems to me 

always to be the best situation to act in a transparent manner and 

that, regardless of whether the President can or cannot deviate 

from an executive order, it seems to me the most prudent course 

is, when doing so, to make sure that he’s consulting with leaderships of the intel committees or the appropriate committees that 

have jurisdiction or oversight responsibilities. 

So I think, with respect to—it’s less important to me whether he 

can or cannot do that. It’s really more important whether he should 

or should not do it. If he does, it seems to me the best course of 

action would be to make sure he was consulting with the appropriate folks in Congress so that they were aware of it, so it did not 

look, I think as you said, as a cloak-and-shield type situation. I 

think that with respect to the second statement about the Department, I am frankly confused by it. It doesn’t make sense to me. Obviously I don’t have the same context, but the— 

Senator WHITEHOUSE. I’m so glad you have the same reaction I 

had. 

Mr. O’CONNOR. Yes. Maybe there’s a context to the classified 

opinion. Obviously I haven’t seen that. But the statement, in and 

of itself, I’m trying to figure out how that could make sense. Perhaps there is a way that I’m just not sophisticated enough and 

knowledgeable enough to figure out, but it seems to be that the Department has an obligation to call them as we see them. 

Senator WHITEHOUSE. Mr. Katsas? 

Mr. KATSAS. It’s hard to have too definitive a view, not seeing all 

the context, but let me give you some thoughts based on what 

you’ve shared with us. 

With respect to— 

Senator WHITEHOUSE. And just for the record, I’d be delighted to 

tell you more about those opinions. Those are the only segments 

that they’ve allowed me to talk about, the only segments that are 

unclassified. 

Mr. KATSAS. Understood. With respect to the first statement on 

how a President can or can’t change executive orders, it seems to 

me literally true in a sense because the Constitution doesn’t specify 

procedures for making or sending executive orders in a way that, 

say, it specifies the procedures for making and rescinding statutes. 

To that extent, it’s true. 

But as your comments suggest, it does seem to create concern 

about notice and forthrightness. To the extent that an executive 

order is a published public document intended to convey things to 

the Congress and to the public about what the executive is doing, 

there would obviously be concerns if, then, the executive does something completely differently in secret without being clear about 

what it’s doing. 

I can obviously understand your concern with respect to Congress’ oversight interests, and a more general concern that people 

like to know what their government is up to. There may be occaVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00119 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
110 

sions when there are national security or other needs for secrecy 

in particular cases, but I just can’t evaluate whether such arguments would be compelling in the context of—whatever context 

that statement was made. 

Senator WHITEHOUSE. And the second? 

Mr. KATSAS. The second. I think the important question for me 

as a Justice Department lawyer is, what are my obligations to my 

superiors up the chain of command, to and including the President. 

I understand my obligations, both as a constitutional matter within 

the Article 2 hierarchy and as an ethical matter as an attorney 

charged with practicing ethically, I understand my obligations as 

advising and litigating cases and advising superiors consistent with 

my own assessment of what the law requires. 

It is quite easy to imagine circumstances in which I, as a lawyer, 

think that there is only one legally defensible view to take litigating a case as a member of the Civil Division and someone above 

me in the chain of command instructs me to do the opposite. That 

would put me in a terrible position. I think it would compel me to 

resign. I am happy to say that, in more than 5 years of litigating 

cases within the Civil Division, I was never put in that uncomfortable and unfortunate position. 

Senator WHITEHOUSE. Senator Cardin? 

Senator CARDIN. Mr. Chairman, thank you very much. 

First, let me thank both of our nominees for their commitment 

to public service. We very much appreciate that. We know it’s a 

tremendous sacrifice to your family and we thank the family for 

being willing to share you with public service. So, we thank both 

of you for that. 

I want to followup somewhat with Senator Whitehouse’s comments about following the law and the power between the executive branch and the legislative branch. So, Mr. O’Connor, let me, 

if I might, start by talking a little bit about the U.S. PATRIOT Act 

and how far the administration can go, contrary to what Congress 

may do. 

One of the issues that’s currently being debated is the exclusivity 

of the U.S. PATRIOT Act on obtaining information from U.S. citizens. There is a balancing that we’re trying to do, giving the government the ability to get information it needs in a timely way 

versus protecting the civil liberties of the people of our own country. We are considering a statute that would be exclusive. As Senator Whitehouse mentioned in some of his statements from legal 

counsel opinions, there’s a question, at least, raised as to whether 

Congress can do that or not. 

You’ve been involved in some of this litigation. If Congress indeed requires the administration to follow a certain action on obtaining information under the Foreign Surveillance Act, can the 

President go beyond that, and if he can, what does he have to do 

in order to notify Congress? 

Mr. O’CONNOR. Senator, yes. I think, to be clear, that’s the Protect America Act, I believe, and the FISA modernization debate 

that’s going on right now that expires. I must tell you, my knowledge of the PATRIOT Act doesn’t really include FISA. That being 

said, I have a general knowledge. I’m happy to answer the question. I haven’t litigated FISA. 

111 

Senator CARDIN. You’re correct. The legislation we’re currently 

considering. 

Mr. O’CONNOR. That’s right. I would say this. I’m generally 

aware. I don’t—I’ve never really delved in this FISA world as a 

U.S. Attorney, but my general understanding is— 

Senator CARDIN. You’re in for a treat. 

[Laughter.] 

Mr. O’CONNOR. My general understanding is that there are really conflicting views on whether or not Congress can regulate and 

make FISA the exclusive means of the President’s authority to engage in warrantless surveillance. There’s an opinion I’ve seen from 

Attorney General Griffin Bell where he indicates that FISA does 

not go to the limits, that there’s some inherent authority, recognizing, of course, that you get into the Justice Jackson analogy of 

Youngstown, where, when you’re in that realm, the President’s 

power is probably at its lowest ebb. But I also recognize that there 

are distinguished legal scholars, including the dean of Yale Law 

School in my district, who feel otherwise, that the President does 

not have inherent authority above and beyond what Congress gives 

them under FISA. I must say, I haven’t read these varying points 

of views. I recognize they exist. They obviously come from people 

with far more formidable legal minds than mine. I think the solution is, rather than necessarily—one could probably delve into the 

issue and give a definitive issue—answer on this, but I think it 

would be in everybody’s best interests to avoid the constitutional 

question in the first place and try to work in the spirit that Attorney General Levy did with Congress, collaboratively, to avoid a 

constitutional question on who has what authority. 

It seems to me the best course of action is always to work collaboratively with Congress on this issue and not put ourselves in 

that third basket that Justice Jackson required, but to put us in 

the first basket where the President is acting consistent with Congress’ authority. 

And should I be confirmed—and I don’t know if, as Associate Attorney General, this would even be in my domain. But were I to 

be asked to participate, I would certainly approach it with the philosophy that collaboration is always better here and staying in that 

first basket that Justice Jackson so articulately described, rather 

than having a situation where one branch of government is not seeing eye-to-eye with the other. 

Senator CARDIN. Well, I agree with you, it’s always best if we can 

work together. Unfortunately, that has not always been the case. 

Mr. Katsas said quite clearly that if he—on a fundamental issue 

there was direction given that he disagreed was following the law, 

he would consider resigning. It seems to me that in the numberthree position at Justice, you’ll have an opportunity to exercise a 

good deal of impact here. 

What Congress is trying to do, working with the administration, 

is develop the manner in which information can be obtained under 

the Foreign Intelligence Surveillance Act. I guess what I would like 

to know, is the respect for the different branches of government 

and that the Judicial Committee must exercise independent judgment here—it can’t just be the cheerleader for the President—and 

112 

would welcome your thoughts as to how you see your role in that 

regard. 

Mr. O’CONNOR. Well, should I be asked by the Attorney General—I realize there’s a February 1 deadline, I believe, under the 

Protect America Act. But should I be asked to participate, I can assure you that my view here would be focused on one thing and one 

thing only, and that’s the law. But I would say that in cases where 

there’s disagreement over how far Congress can go, the solution is 

not to ignore Congress and proceed anyway. 

If you’re going to go to that third bucket, you ought to be doing 

it in close consultation with Congress and you ought to at least let 

Congress know that you have this difference of opinion. I hope and 

I trust, and anything I would do, sir, as Associate Attorney General, were I to be confirmed, would be to keep us out of that situation. I don’t think it’s in the best interests of our country, or the 

Department, or this branch, or the executive branch to have those 

kind of constitutional showdowns. So I’m optimistic, by February 

1st, that those people involved in these negotiations will come to 

some sort of resolution that everybody can live with. 

Senator CARDIN. Thank you. 

Mr. Katsas, let me, if I might, turn to Guantanamo Bay for a moment. 

Mr. KATSAS. Sure. 

Senator CARDIN. I understand you’ve been involved in some of 

the litigations concerning Guantanamo Bay. Where are we going on 

Guantanamo Bay? Can we maintain the legal position for an indefinite period of time of detaining individuals under unlawful combatant status without rights under the normal criminal justice system, or even the military justice system? 

Mr. KATSAS. I think there are two aspects to your question: what 

does the Constitution require vis-a-vis the Guantanamo detainees, 

and what is sound policy vis-a-vis the detainees? 

On the first, the first question is pending before the Supreme 

Court in the Iloda and Boomadine cases, and we should have a lot 

more clarity, I would assume, in June when the court, in all likelihood, will render a decision on that question. 

Under current law, under current DC Circuit precedent, there is 

no constitutional impediment to the existing regime at Guantanamo of military tribunals followed by Court of Appeals review, but 

that’s all before the Supreme Court to be decided. 

On the broader question of what is sound policy, that is not so 

much a call for a civil litigator to make. But I can tell you, the 

President has expressed his desire to close Guantanamo as soon as 

that can be done responsibly, consistent with that desire. Most of 

the detainees who have ever been brought to Guantanamo have 

been released from Guantanamo. About 750 have been brought in, 

and something on the order of 200 or fewer remain. So, I think the 

Defense Department is doing its best to wind down as much as it 

can. 

The judgments about whether the detainees can safely be 

brought to this country, whether they can safely be released or 

whether they can safely be transferred to other countries under appropriate security conditions and appropriate assurances of humane treatment, frankly, are a bit above my pay grade. 

113 

Senator CARDIN. Let me ask your advice on one other area. 

There are many things that have concerned me about Guantanamo 

Bay. I’ve been there. I’ve had a chance to meet with our soldiers 

that have been in Guantanamo Bay. One thing I’ve never understood is why the United States didn’t seek the guidance of the 

international community on the handling of unlawful combatants. 

The 9/11 Commission talked a little bit about this. 

I would just like to get—you’re seeking confirmation to a top policy position within Justice—as to your views as to the advisability 

of the United States seeking international standards for a problem 

that’s going to be with us, I’m afraid, for the indefinite future. 

We’re not going to be able to end the war on terror in the next year 

or two, so it’s likely that we’re going to have another round of individuals who are going to be picked up, suspected to be a terrorist, 

have information that’s important for us to obtain for the security 

of America. 

Wouldn’t it be—I don’t want to lead the witness, but tell me your 

view as to whether we should be doing this alone, knowing full well 

that other countries might very well be in a similar position that 

we’re in and do things that we would normally object to. Would it 

be advisable for us to seek some international standards rather 

than just try to create our own standards for what we think is 

right? 

Mr. KATSAS. Other things equal, of course it would be advisable 

to consult with, particularly, our allies and other nations. It seems 

to me that is part of what the Defense Department has done in the 

past in the following sense. The detainees at Guantanamo have 

been given tribunals, have had the opportunity to have a military 

tribunal determine whether or not the detainee is, in fact, an 

enemy combatant or an innocent person swept up in the— 

Senator CARDIN. I believe that occurred after the courts interviewed. 

Mr. KATSAS. After the Rasoul decision in 2004. With respect to 

your point about consulting international standards, my understanding is that the thinking at the time was to do precisely that 

and to use as a model for the detention system in 2004 going forward the kind of standards that have grown out of Article 5 of the 

Geneva Convention which addresses the question of figuring out 

who is, in fact, a combatant and who is not a combatant and who 

is entitled to P.O.W. status. 

Obviously, as we move forward and it looks like detainees might 

otherwise be staying for the indefinite future, it may well be appropriate to consider further process and further protections and, as 

part of that dialogue, I would think that the input of our international partners would be a significant consideration going forward. 

Senator CARDIN. Just to clarify the record, I think it would be 

advisable to do more than consultation. I think it would be important for us, with our allies, to develop international standards for 

this new type of international problem we’re confronting, the unlawful combatant issue, so that there’s general recognized international standards for how these detainees should be treated. We 

did this originally under the authority of the President without 

114 

really the Congress or the court’s concurrence, and then finally the 

court has developed certain rights. 

Absent the court decisions, it’s likely that these individuals never 

would have had a formal process for determining their status. But 

I would just hope that we would open this up more. We did a lot 

of things that were very defensible, but we didn’t engage the international community. There’s a lot of rumors, and some of which 

were totally false, because of the manner in which we handled it. 

Ultimately we just didn’t know what to do with them. 

After a long detention, they had very little value for intelligence, 

but from a safety point of view we didn’t know whether we should 

try them, or return them, or do what. We’re sort of stuck now. Everyone agrees—at least most people agree—that Guantanamo, as it 

was originally constituted, is no longer desirable for us to maintain. 

Now we don’t know what to do with the people that are there. 

So I just would urge us to try to gain international support for 

these types of activities before just saying, because we’re America, 

we can go ahead and do it because we know what we’re doing right. 

Mr. Chairman, you’ve been very patient with time. I want to ask 

Mr. O’Connor just one more question, or at least comment. 

I know that the Chairman’s already questioned you on one of the 

areas that’s under your jurisdiction, which is the Civil Rights Division. I don’t want this hearing to go without mentioning the Civil 

Rights Division because I am deeply troubled by the record of the 

Civil Rights Division over the last couple of years. 

To me, the Civil Rights Division has had a proud history in 

America in advancing the civil liberties/civil rights of all Americans, particularly those who have been denied fully participation in 

our society. I just would caution you as to what could be done within the Civil Rights Division to really advance the rights of all 

Americans. 

I know the Chairman talked a little bit about election issues, 

which I’ve been working with Senator Obama on legislation that I 

hope will move forward to give you additional tools. But I just believe that this is an area that should have no partisan difference, 

one in which we all should be looking at ways that that division 

can perform its historic role in advancing the rights of Americans, 

and would urge you to give this your highest priority. 

Mr. O’CONNOR. Senator, I will. I would simply say that Congressman Larson was kind enough to refer to a few cases, but we just 

most recently took guilty pleas from two New Haven police department officers who framed an African American defendant for civil 

rights. So, I will pledge to this committee that, should I be fortunate enough to be confirmed, I will continue the same level of aggressive enforcement of civil rights in Connecticut on a national 

level and I’m very, very cognizant of your concerns in this area. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Well, I thank you both for your service to 

our country. You both bring significant talents to government service, which you and your families know would be better recompensed, financially at least, and in terms probably of worries 

taken home at night in other areas of activity, but you have chosen 

115 

to dedicate your talents to government service and we are very 

grateful for that. 

I want to particularly thank and express my appreciation to Mrs. 

O’Connor, who has done a wonderful job of keeping the O’Connor 

children in a state where their grandparents can be very proud of 

their behavior through a long afternoon. I know, as the Chairman 

of these things, that there is a part-way ceremonial aspect to them, 

but there is also a significant substantive aspect. I appreciate those 

who are here for family reasons, having had the patience as we 

went through some of the substantive issues that concern, I think, 

our entire country. 

If there’s anything that anybody else would like further to add 

to the record, the record of these proceedings will remain open for 

one further week. But other than that, and with my renewed 

thanks and appreciation to the two witnesses, the hearing is now 

concluded. 

[Whereupon, at 3:10 p.m. the Committee was recessed.] 

[Questions and answers and submissions follows.] 

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(179) 

NOMINATIONS OF JAMES RANDAL HALL, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE SOUTHERN DISTRICT OF GEORGIA; 

RICHARD H. HONAKER, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT 

OF WYOMING; GUSTAVUS ADOLPHUS 

PURYEAR, IV, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT 

OF TENNESSEE; BRIAN STACY MILLER, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE EASTERN DISTRICT OF ARKANSAS 

TUESDAY, FEBRUARY 12, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:34 p.m., in room 

301, Russell Senate Office Building, Hon. Dianne Feinstein, presiding. 

Present: Senators Cardin and Specter. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. I will call this meeting of the Judiciary Committee to order. I spoke with Senator Specter this morning. He indicated that he was going to be here, but I know he does hear his 

distinguished colleagues on other occasions. So in the interest of 

time, I am going to begin. 

We have four nominees before us today. They are: Richard 

Honaker for the District of Wyoming; Gus Puryear, for the Middle 

District of Tennessee; Brian Stacy Miller for the Eastern District 

of Arkansas; and James Randal Hall, for the Southern District of 

Georgia. 

We also have a distinguished panel of U.S. Senators who are 

here who care enough to come to the committee to be able to introduce the nominees from their State. If anyone has an absolute time 

problem, please let me know. Otherwise, I will begin with Senator 

Alexander and just go straight down the table. 

If there is no problem, Senator Alexander, please proceed. 

180 

PRESENTATION OF GUSTAVUS ADOLPHUS PURYEAR, IV, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE 

DISTRICT OF TENNESSEE, BY HON. LAMAR ALEXANDER, A 

U.S. SENATOR FROM THE STATE OF TENNESSEE 

Senator ALEXANDER. Thank you, Madam Chairman. Thank you 

for your time and for allowing me to come by, with Senator Corker, 

on behalf of Gus Puryear. He was nominated by President Bush in 

June. He would succeed Judge Robert Ecchles, who is taking senior 

status, who has been a very excellent, very excellent judge in Nashville. 

Gus has a strong record of achievement in both the public and 

the private sectors. He’s tried cases in both Federal and State 

courts. He has worked for committees in the U.S. Senate, and he 

has worked most recently in the private sector with one of Tennessee’s largest companies. He’s an honors graduate of—and the 

University of North Carolina. He clerked on the Fifth Circuit Court 

of Appeals, where I once clerked many years earlier. He’s been a 

litigator with one of Nashville’s major firms. 

I think it’s important to note that in private life he has been a 

commissioner of the National Prison Rape Elimination Commission, one of eight commissioners on a bipartisan panel created by 

the Prison Rape Elimination Act of 2003. He’s active with the Red 

Cross, the Boy Scouts, and in the First Presbyterian Church in 

Nashville. His family is here today. I’m sure he’ll introduce them. 

It’s my pleasure to be here to support the President’s nomination, 

to say that I hope the Senate will swiftly confirm him. 

Thank you very much for your time. 

Senator FEINSTEIN. Thank you very much, Senator Alexander. 

Senator Chambliss. 

Senator CHAMBLISS. Madam Chairman, thank you very much. 

I’m happy to yield to our colleague from Tennessee to keep this in 

order if Senator Corker wants to go, and we’ll have both Tennesseans going first. 

Senator FEINSTEIN. That’s fine. Thank you. 

Senator Corker. 

PRESENTATION OF GUSTAVUS ADOLPHUS PURYEAR, IV, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE 

DISTRICT OF TENNESSEE, BY HON. BOB CORKER, A U.S. SENATOR FROM THE STATE OF TENNESSEE 

Senator CORKER. Thank you, Madam Chairman. Thank you for 

rescheduling things so this hearing could take place. I know you’re 

very busy. We thank you, and are honored to be here. Senator 

Cardin, thank you for the same. 

I am very excited to join Senator Alexander in being here and 

talking about Gus Puryear. He’s a Tennessean who has practiced 

law for the majority of his career in Middle Tennessee, and has had 

a distinguished career as a lawyer. He’s excelled in the private sector, as Lamar has mentioned and served his country twice, once as 

a law clerk to the Fifth Circuit Court of Appeals, and then as a 

lawyer here in the U.S. Senate. 

In his service here in the Senate, he served as counsel to the 

Committee on Government Affairs during the campaign finance investigation, and then went on to serve 2 years as Legislative DirecVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00190 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
181 

tor for Senator Bill Frist. Currently, Gus, as Lamar has mentioned, 

is general counsel for a national corporation, Correction Corporation of America. 

He’s been exposed to many facets of law, however, Gus is also a 

devoted family man. He’s been blessed with a beautiful wife, Jennifer, who is with him today, and two daughters, Ruth and Mary, 

who join him today. He’s been active in many civic endeavors, 

which I greatly applaud, in the Nashville area, and has been a tremendous asset to his community. I hope that this committee will 

see fit to bring him to the floor as quickly as possible. 

Again, thank you for this time. 

Senator FEINSTEIN. Thank you very, very much. 

Senator Chambliss. 

PRESENTATION OF JAMES RANDAL HALL, NOMINEE TO BE 

U.S. DISTRICT JUDGE OF GEORGIA, BY HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA 

Senator CHAMBLIS. Thank you very much, Madam Chairman. We 

lost Senator Cardin. Now, this is a lot more exciting than Ben 

thought it was going to be. 

[Laughter.] 

Madam Chairman, I am pleased to be here today to have the opportunity to introduce James Randal Hall to the Committee. I 

would say that my colleague, Senator Isakson, has a conflict, but 

he is going to be here a little bit later to also speak on behalf of 

Randy Hall. 

Randy Hall is well-qualified to fill the position to which he’s been 

nominated on the District Court bench in the Southern District of 

Georgia, and I’m pleased to endorse his nomination. I, and the people of Georgia, thank Chairman Leahy and Senator Specter for 

scheduling Randy’s hearing today, and I hope the Judiciary Committee will act promptly to favorably report his nomination, and 

the Senate will follow with a swift confirmation. 

Randy Hall has been a partner with Warlick, Tripp, Simmons & 

Hall since 2004. Prior to that, he served in the Georgia State Senate as a Senator from the 22nd District. For over 10 years, Randy’s 

practice has focused on commercial real estate, banking, corporate 

matters, and commercial litigation. He has a reputation for integrity and character. Those who have worked with him say he is totally committed to the rule of law and that he is fair and honest 

in all of his dealings and undertakings. Obviously those traits are 

very much needed on the bench today. 

Mr. Hall is a native of Augusta, Georgia. He graduated from Augusta College in 1979 and became a fellow Bulldog when he graduated from the University of Georgia School of Law in 1982. He’s 

an active member of his community, serving on the Augusta-Richmond County Community Partnership for Children and Families, 

and attends Trinity-on-the-Hill United Methodist Church. 

He is here today with his wife Suzi and other members of his 

family, including his daughters, Betsy and Mary Catherine, that he 

will introduce. I commend my friend, Randy Hall, to this Committee, urge swift action to advance his nomination, and look forward to the prompt confirmation of James Randal Hall to the 

Southern District of Georgia. 

182 

I thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator Enzi. 

PRESENTATION OF RICHARD H. HONAKER, NOMINEE TO BE 

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

HON. MICHAEL B. ENZI, A U.S. SENATOR FROM WYOMING 

Senator ENZI. Thank you, Madam Chairman. I want to begin by 

thanking you for holding this hearing today. I know the difficulties 

with the scheduled vote this morning, and then the difficulties in 

having rooms in the afternoon. I really appreciate that you’re the 

Chairman of the Rules Committee and we’re able to pull that off. 

Senator FEINSTEIN. Sometimes it does come in handy. Thank 

you. 

[Laughter.] 

Senator ENZI. I think the last time that I was in this room testifying, it was 11 years ago when I was trying to bring my laptop 

on the floor of the U.S. Senate. 

Senator FEINSTEIN. I remember that, yes. 

Senator ENZI. Yes. I trust that today’s hearing will have a much 

better outcome for me. Although Senator Leahy is unable to attend, 

I want to formally thank Chairman Leahy for his willingness to 

hold this hearing. I spoke with the Chairman a number of times 

about Mr. Honaker’s nomination, and I appreciate that the Chairman has kept his word and placed him on the Committee’s schedule. 

This will be a little bit different introduction because Mr. 

Honaker has been a long-time friend of mine. He was actually nominated by Craig Thomas—Craig Thomas was the senior Senator— 

and went through an extensive selection process that involved a lot 

of the legal community in Wyoming, and selected Richard and put 

his name forward. He has since, of course, been supported by a 

wide group of people from Wyoming. You will find many positive 

letters of reference in his file. I do have a number of letters that 

I’d like to introduce and have as part of the record. 

Senator FEINSTEIN. They will be included in the record. 

Senator ENZI. Thank you. 

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

Senator ENZI. One is from our most popular former Governor and 

former Ambassador to Ireland, Mike Sullivan, who is a Democrat. 

Another is from the former Senator, Allen Simpson, who all of us 

know is a very strong Republican. You’ll find that kind of a mix 

throughout the file. 

Mr. Honaker will be an excellent jurist for our home State of Wyoming. He has the experience and the temperament to serve our 

State and judiciary well. You’ll be making the correct decision if 

you vote to move his nomination forward. 

He was born in Wyoming in 1951. He obtained an undergraduate 

degree at Harvard University. He returned to Wyoming to study 

law, and graduated from the University of Wyoming College of Law 

in 1976. Since he graduated, he practiced law or worked in State 

government in one form or another in Wyoming. If he’s confirmed 

to be a District Judge, his familiarity with Wyoming and the rest 

will undoubtedly benefit him as he hears cases. 

183 

Now, as a Republican, I never thought I would be supporting a 

trial lawyer to be a Federal judge, but Mr. Honaker’s qualifications 

are beyond reproach. He has served as the president of the Wyoming State Bar Association, and he’s served as the president of the 

Wyoming Trial Lawyer’s Association. The American Bar Association has unanimously given Mr. Honaker its highest rating of ‘‘Well 

Qualified. ’’ 

I’m well aware of some special interest groups who oppose Mr. 

Honaker’s nomination. I don’t think there has ever been a judge 

who’s not faced some sort of opposition before being confirmed. The 

groups that oppose Mr. Honaker do not know him as well as I do. 

They don’t know him as well as those in the legal community who 

have sent in countless letters in support of the nomination. He is 

a fair and just man. I know that from experience that comes from 

many times before. 

He does know the difference between legislating—and that’s from 

his experience as a Wyoming representative and a Democrat—and 

judging from all his years of court work. Since the criteria is fairness, I want to assure you that Richard is among the fairest people 

I know. I mentioned that he’s a good lawyer. He’s also a good 

friend. We did serve together in the State legislature. 

We worked across the aisle with each other to provide leadership 

on a lot of bills, and I highly recommend that we vote this nomination out of Committee so that the Senate can confirm him so that 

he can be a District Judge for the District of Wyoming. One of the 

letters in here is also from the retiring judge, who has done an outstanding job and highly recommends him. 

I thank you, Madam Chairman, for the opportunity. The other 

Senator from Wyoming is also here, and I think would appreciate 

it if he could say a few words. 

Senator FEINSTEIN. Thank you very much. Senator Corker, that 

is very nice of you. If the other panel can come up, please. We’ll 

hear from the other Senator from Wyoming, Senator Barrasso, 

first. 

PRESENTATION OF RICHARD H. HONAKER, NOMINEE TO BE 

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

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

OF WYOMING 

Senator BARRASSO. Thank you very much, Madam Chairman and 

Senator Specter. Thank you very much for allowing me the opportunity to be here with you today. 

I’m pleased to join Senator Enzi to speak in support of Richard 

Honaker to be the U.S. District Judge for the District of Wyoming. 

Richard’s family is here as well, his wife Shannon, their three children. And Senator Specter, the nominee’s daughter is a senior at 

Penn Law School right now. 

Mr. Honaker is an outstanding attorney. He is widely regarded 

by his peers, as evidenced by the fact that he is the first attorney 

in the history of the State of Wyoming to serve as both president 

of the Wyoming State Bar Association and the Wyoming Trial Lawyers Association. 

Now, Madam Chairman, as you know, I’m an orthopedic surgeon. 

I never thought I’d be here today supporting a trial lawyer for the 

184 

federal bench. But he is just outstanding. I feel very proud to support Richard Honaker as our nominee. He has earned the respect 

of the legal community. The Standing Committee of the Federal Judiciary of the American Bar Association has unanimously voted 

that Mr. Honaker is ‘‘Well Qualified’’ for a position on the Federal 

bench in the District of Wyoming. His 30-plus years of legal work 

is exemplary. There is no question that he is ready to fill the seat 

for which he has been nominated. I know Mr. Honaker. I respect 

him as an individual. I admire his legal abilities, his passion, and 

his love for the law. That respect is shared by many of Wyoming’s 

finest legal minds. 

Words I have heard from members of the Wyoming Bar to describe Mr. Honaker are: bright, fair, civil, ethical, passionate about 

his clients, and devoted to the law. He expects the same of others 

that he requires of himself, is which to be well-prepared, to observe 

the rules of courtroom procedure and decorum, and to treat every 

person in the courtroom, whether lawyer, litigant, witness, or juror, 

with the greatest measure of courtesy and respect. Madam Chairman, Richard Honaker is eminently qualified to serve on the Federal bench in the District of Wyoming. He has my support, and I 

would ask the members of this Committee to support his nomination as well. 

Thank you, Madam Chairman. 

Senator FEINSTEIN. Thank you very much, Senator. 

We will now turn to the remaining nominee, Mr. Miller. We have 

Senator Lincoln and Senator Pryor. Also, I see Senator Isakson is 

here. So why do we not begin with you, Senator Lincoln, if you 

would? 

PRESENTATION OF BRAIN STACY MILLER, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE DISTRICT OF ARKANSAS, BY 

HON. BLANCHE L. LINCOLN, A U.S. SENATOR FROM THE 

STATE OF ARKANSAS 

Senator LINCOLN. Well, thank you, Madam Chairwoman and 

Senator Specter, and to all the members of the Judiciary. I am 

enormously appreciative of the opportunity to appear before you 

this afternoon to introduce Brian Miller, who has been nominated 

to be the U.S. District Judge for the Eastern District of Arkansas. 

East Arkansas is my home, and it’s Mr. Miller’s home as well. 

As the senior Senator from Arkansas, I am pleased to support 

Mr. Miller for this important post. After reviewing his record and 

speaking with many of his friends and colleagues in Arkansas, I 

can assure the Committee that Brian Miller is not only a superb 

lawyer and public servant, but he’s also a trusted friend who is 

held in high regard by so many in our great State. 

Mr. Miller is a native of my hometown, Helena, Arkansas, which 

also happens to be the oldest city in the State of Arkansas. After 

high school, Brian continued his education, graduating from the 

University of Central Arkansas in 1992. Not satisfied with only a 

baccalaureate degree, he continued his education by earning a law 

degree from Vanderbilt University. 

Brian also had the distinction, which I have to say adds to my 

pride in being here before this Committee, in serving as one of the 

first interns for my office in the U.S. House of Representatives in 

185 

the summer of 1993. Brian began his professional career up the 

Mississippi River in Memphis, Tennessee at the firm of Martin, 

Tate, Morrow & Martsen. 

In 1998, Brian ran a successful campaign to be the city attorney 

for our hometown of Helena. While he served as city attorney, his 

father served as mayor. I must add that as Brian and I both grew 

up in the same hometown, our parents worked very diligently in 

that community to make it a strong community and that makes me 

even more proud to be here on Brian’s behalf. 

He continued to work part-time with his firm in Memphis until 

January of 2007, when he was selected by Governor Mike 

Huckabee to be a State Appellate Judge. Throughout his career, 

Brian has been no stranger to the courtroom. In addition to the positions mentioned above, he also was appointed Deputy Prosecuting 

Attorney for Phillips County. In fact, between January of 1999 and 

January of 2006, Brian spent 3 days a week, every week, in the 

courtroom either in his capacity as a prosecutor or on behalf of his 

clients. 

He has a reputation for being a tough, but fair, litigator who is 

a respected prosecutor and tireless advocate. He’s received overwhelming support from the legal community around my State for 

his nomination. 

When evaluating lifetime appointments to the Federal bench, I 

carefully consider a nominee’s skills, experience, intellect, and ability to understand and apply established precedent. Fundamentally, 

I’m interested in knowing that a nominee can fulfill his responsibility under the constitution to apply the law fairly, without political favor or bias. I am fully satisfied, Madam Chairwoman, that 

Brian has met that standard. 

In closing, I want to thank Chairman Leahy and Senator Specter 

and the Chairwoman here today for working with Mr. Miller, my 

staff, and myself in working to prepare for this hearing today. I appreciate your consideration of this nominee and encourage members of this Committee to certainly support his confirmation. 

Thank you, Madam Chairwoman. 

Senator FEINSTEIN. Thank you, Senator Lincoln. 

Senator Pryor. 

PRESENTATION OF BRAIN STACY MILLER, NOMINEE TO BE 

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

STATE OF ARKANSAS 

Senator PRYOR. Thank you, Madam Chair. I want to thank the 

Committee for having us today, and having this hearing. 

I want to begin with a statement and end it in the same way, 

and that is: I heartily recommend and support Brian Miller for confirmation for this position in the Eastern District of Arkansas. He 

has earned a reputation in legal circles and around the State of Arkansas as a qualified and fair judge, and he understands that he 

has big shoes to fill for the late Judge George Howard, Jr. I’m confident that he is up to the task of filling those shoes. 

Now, this Committee has seen more than its share of polarizing 

nominees, but Brian Miller is the exception. He has a track record 

of bringing integrity and impartiality to the Arkansas Court of ApVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00195 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
186 

peals. Before that, he was a municipal judge, before that, a deputy 

prosecuting attorney, and also before that, in private practice for 

9 years. 

He’s a graduate of Vanderbilt University Law School and the 

University of Central Arkansas, as well as the Phillips Community 

College. He also served in the Navy and the Navy Reserve from 

1985 to 1992. As a member of the Arkansas Bar, I hear a lot of 

comments from lawyers in Arkansas about issues that are important to them. I understand that members of this Committee feel 

my pain on that. We have a lot of lawyers that contact me about 

different legal matters, especially when it comes to Federal judgeships. 

But when Judge Miller’s name began to circulate for this nomination, I received only praise from his colleagues. In fact, it was 

one of the few occasions—maybe the only one—since I’ve been in 

the Senate where not a single person criticized this nomination. He 

had truly an outpouring of support from the Arkansas legal community and folks outside the legal community in my State. I think 

one of the primary reasons, is he brings such a breadth and diversity of experience and fairmindedness and intelligence to this position in the court today. 

So I would say that Brian Miller is in it for all the right reasons. 

He exemplifies what is right with the system and he is a nominee 

that people in Arkansas feel extremely comfortable with. I will end 

where I began, and that is: I heartily endorse Judge Brian Miller 

for the Eastern District of Arkansas. 

Senator FEINSTEIN. Thank you very much, Senator Pryor. 

Senator Isakson, welcome. 

PRESENTATION OF JAMES RANDAL HALL, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF 

GEORGIA, BY HON. JOHNNY ISAKSON, A U.S. SENATOR FROM 

THE STATE OF GEORGIA 

Senator ISAKSON. Thank you very much, Madam Chairman. I’d 

like to thank Ranking Member Specter and Chairman Leahy for facilitating this hearing today and allowing these nominees to come 

before the Committee. 

I join the Senior Senator from Georgia, Saxby Chambliss, in 

praising Randy Hall, who’s been nominated to replace Judge Avant 

Edenfield in the State of Georgia. I won’t recite the long litany of 

accomplishments that Senator Chambliss has already presented to 

you because those are in the record, but I would like to emphasize 

a couple of things about Randy’s record that is so exemplary for 

why he would be great on the bench. 

He has an extensive practice in real estate, business, corporate 

law, and corporate litigation which is an absolutely critical type of 

a practice to have in our judiciary, and that type of expertise. 

Second, as Senator Pryor was talking about, phone calls from 

home, we all get phone calls from home on appointments. But I 

have to tell you, in my experience in the U.S. Senate—this is my 

fourth year—I have never had a total volume of totally unanimous 

calls about any prospective judicial appointment until Randy’s 

name was recommended by the President of the United States. AuVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00196 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
187 

gusta, Georgia is the home of the Masters, but it is also the home 

of the most opinionated people I’ve ever seen. 

[Laughter.] 

In their opinion, Randy Hall is the right man for this judicial appointment. 

He is joined today by his lovely wife, Suzi. He’s a graduate of my 

alma mater, the University of Georgia, with his juris doctor in 

1982. He was elected to the Georgia State Senate and served there. 

Before that, he served in his spare time as the chairman of the Augusta-Richmond County Planning and Development Authority. 

So, Randy brings extensive business experience, extensive government experience, and a great deal of support from his home 

community, and I commend him to the Committee with my highest 

recommendation. Thank you. 

Senator FEINSTEIN. Thank you very much, Senator Isakson. I believe that completes the testimony of the Senators, actually two, for 

each of the nominees. So if you wish to be excused, you certainly 

can. I thank the Senators very much. 

I notice that there are some empty seats in the first couple of 

rows; if people who are standing would like to take them, please 

feel welcome to do so. 

We are joined by our Ranking Member, Senator Specter. Senator, 

do you have a statement you’d like to make? 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Madam Chairwoman. 

Just a word or two. I appreciate the listing of these nominees. It 

is my hope that we will be able to process them promptly for upand-down votes. We have had some considerable discussion about 

expediting the confirmation of judges or the rejection of judges so 

that we have quite a backlog, and it is my hope that we will be 

able to proceed for up-and-down votes. 

Just one comment. It’s nice to be in the Rules Committee hearing 

room. 

Senator FEINSTEIN. Well, you’re very welcome. It’s a beautiful 

room, isn’t it? 

Senator SPECTER. It’s an exquisite room. It’s the first time that 

I can recollect being on the dais here, and it’s a magnificent room. 

The Russell Building has appointments which are remarkable, 

built in 1909. We’ve had other buildings since, but none can quite 

match the grandeur of this hearing room. I know we’re here because you are the Chairperson of the Rules Committee and this is 

your home. 

Senator FEINSTEIN. It was a place to go. 

Senator SPECTER. So thank you for inviting all of these people, 

and me, to your home. 

Senator FEINSTEIN. You’re very welcome. 

We will now proceed. I’ll ask the four nominees to please come 

forward and be seated. The way we will proceed, is I will ask each 

one, before they’re seated, to affirm the oath when I complete its 

reading. 

[Whereupon, the witnesses were duly sworn.] 

Senator FEINSTEIN. Thank you. You may be seated. 

188 

The process right now, gentlemen, is this. Each of you will be afforded the opportunity to make an opening statement. I think Senator Specter and I would hope that you would introduce your family and that they would stand when they are introduced so that we 

might acknowledge their presence. 

Then following your statements, each member of the Committee 

that’s present, which right now is the two of us, will ask a few 

questions and that will be it. 

So why don’t we begin with you, Mr. Hall, and we’ll just proceed 

right down the table. 

STATEMENT OF JAMES RANDAL HALL, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF GEORGIA 

Mr. HALL. Thank you, Madam Chair. Let me particularly thank 

you for chairing this meeting, Senator Specter, for your presence. 

I thank the Committee for calling this hearing today. I want to 

thank President Bush for the nomination and thank my friends, 

Senators Chambliss and Isakson, for not only their support, but for 

those very kind words that they’ve offered into the record. 

It’s my great privilege today to present my family. They did travel with me from Georgia for this very special moment. My wife, 

Suzi, my oldest daughter, Mary Catherine, who is a freshman at 

Friendly University. 

Senator FEINSTEIN. Please stand. 

Mr. HALL. My youngest daughter, Betsy, a high school freshman. 

My father, Jim Hall, and my stepmother, Julia Hall. I’m very 

pleased to have them. Thank you. 

Senator FEINSTEIN. Well, we are delighted to have the family, so 

please feel very welcome. Thank you very much. 

[The biographical information follows:] 

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STATEMENT OF RICHARD H. HONAKER, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF WYOMING 

Mr. HONAKER. Thank you, Senator Feinstein, for being here on 

such a busy legislative day to convene this hearing. 

I would like to begin by thanking the late Senator Craig Thomas, 

who was so kind to sponsor my nomination. I want to thank Senator Enzi and Senator Barrasso for their warm and generous comments and for their leadership in advancing my nomination after 

Senator Thomas’ passing. 

I’d also like to thank Senator Allen Simpson, former Senator 

from Wyoming, who couldn’t be here today but who has kindly provided me with great counsel and support during the process. And, 

of course, I’d like to thank the President for his nomination. 

It’s my pleasure, Senator, to introduce my family to you. I’d like 

to start by introducing my daughter, Heather and her husband 

Derrick, Heather and Derrick Mercer. Heather serves our country 

in the Foreign Service. Heather worked as a staffer in Senator 

Enzi’s office, and Derrick in Senator Kyl’s office. 

Senator FEINSTEIN. Oh, my goodness. 

Mr. HONAKER. And I’d like to introduce my daughter Harmony 

Decosimo and her husband David Decosimo. Harmony’s a thirdyear student at Penn, and David is a Ph.D. candidate at Princeton. 

The two of them, in our big family event of the year, are expecting 

their first child and our first grandchild in June. 

Senator FEINSTEIN. That’s wonderful. 

Mr. HONAKER. I’d like to introduce my son Dustin, who is a senior at the University of Wyoming, and also works in our oil fields 

out there. 

And the most important person in my life, my wife Shannon, the 

great person in my life. 

Thank you very much. I look forward to your questions. 

[The biographical information follows:] 

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Senator FEINSTEIN. Thank you. Thank you. Welcome to the family. 

Mr. Puryear. 

STATEMENT OF GUSTAVUS ADOLPHUS PURYEAR, IV, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF TENNESSEE 

Mr. PURYEAR. Thank you, Senator. Thank you for holding this 

hearing. I appreciate the Committee’s and staff’s hard work in preparing for this hearing. 

Senator FEINSTEIN. Is your mic on? 

Mr. PURYEAR. It is now. 

Senator FEINSTEIN. OK. Good. 

Mr. PURYEAR. Thank you, Senator. I appreciate your holding this 

hearing. I want to thank the Committee and the staff for all the 

hard work that they do in getting ready for this hearing. I particularly would like to thank Senators Alexander and Corker for coming by and lending their support, and for their friendship through 

the years. 

I’d also like to introduce you to my wife, Jennifer, who is here, 

and my daughters, Ruth and Mary. I also have my mother, Mary 

Puryear, who’s here. And I’m blessed to have my in-laws, Joe and 

Marion Herndon, coming to the hearing as well. So I want to thank 

all of them for their love and support throughout this process, and 

I look forward to answering any questions you may have. 

Senator FEINSTEIN. Welcome to the family, and particularly to 

the little ones. You’re so well behaved. 

[Laughter.] 

Please, thank you. 

[The biographical information follows.] 

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Mr. Miller. 

STATEMENT OF BRIAN STACY MILLER, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS 

Mr. MILLER. Thank you, Senator Feinstein. Thank you so much 

for taking the time to have this hearing this afternoon. We know 

it got bumped from this morning. 

Senator FEINSTEIN. I don’t think your mic is turned on. 

Mr. MILLER. Is that it now? The light is on. 

Senator FEINSTEIN. Yes. If the light’s on, it’s on. Pull it a bit closer to you. Thank you. 

Mr. MILLER. Thank you, Senator. 

I wanted to thank you for taking the time to have this hearing 

this afternoon. Also, I want to thank President Bush for giving me 

this opportunity, and my two home State Senators. I told Senator 

Lincoln—I hugged her as she left—that I almost cried when she 

said those words about me. It’s kind of difficult sometimes to sit 

up and listen to people say such nice things. But I want to thank 

Senator Lincoln and Senator Pryor. 

Today I have my children with me and I have my wife with me. 

My wife’s name is Monique, and both of my daughters’ names are 

Alexandria and Arianne. They’re 13-year-old twins. They were very 

thankful to be here today also. 

Senator FEINSTEIN. Well, we welcome them. It’s great to have 

you here. Thank you. 

That completes it? 

Mr. MILLER. Yes. 

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Senator FEINSTEIN. All right. 

Now for the hard part. I’m going to begin with Mr. Puryear, if 

I might, with a question. In a 2004 article in Corporate Legal 

Times—excuse me. I wanted to ask another question here. 

Your current employer, the Corrections Corporation of America, 

has apparently been named as a defendant in more than 400 cases 

since 2000 in the Middle District of Tennessee. That is the same 

court to which you’ve been nominated. How would you handle the 

obvious conflict of interest posed by cases involving CCA? 

Mr. PURYEAR. Senator, thank you for the question. Let me say 

as an initial matter, that there’s no question, as a shareholder in 

the company and as an executive officer of the company in the immediate past, during my initial term on the bench, if I were fortunate enough to be confirmed, I would not be hearing any cases involving Corrections Corporation of America, for obvious reasons. 

Perhaps somewhere with the passage of time and not having any 

shares that could change, but I can’t envision a set of circumstances under which it would in the near term. 

Senator FEINSTEIN. That’s the next question. So you would 

recuse yourself from any case involving the corporation. Is that correct? 

Mr. PURYEAR. Correct. 

Senator FEINSTEIN. And you would maintain your shares? 

Mr. PURYEAR. At present I have shares. 

I do not intend to—there are some shares that are bound up by 

resale agreements and things like that. But over time I would plan 

to divest from the company. 

Senator FEINSTEIN. Over what period of time? 

Mr. PURYEAR. Well, I have divested, as of today, I believe, all of 

the shares—except for restricted shares and shares that are subject 

to a resale agreement—that I can, pursuant to a planned sale over 

the last 6 months. So I anticipate quickly, after the separation of 

my employment, being able to dispose of the rest of those shares. 

Let me add this, Senator. I believe that the numbers that were 

provided to the Committee might be slightly exaggerated. Our 

records, and the public records that I’ve examined, show about 181 

cases against CCA since 2000. Over that same period of time, 

15,000 cases were filed in the Middle District of Tennessee. We average about 27 cases a year against CCA in the Middle District 

since 1992. During that same time period, there’s more than 2,000 

cases, on average, filed each year. 

So shifting those cases that involve CCA to other judges will not 

likely present any sort of undue hardship to them, in my taking on 

other cases that they would otherwise handle. I think that could 

be easily accomplished, Senator. 

Senator FEINSTEIN. Do you have any other potential conflict of 

interest? 

Mr. PURYEAR. Obviously, any companies in which I have any direct-share ownership in, I would recuse myself from consideration 

of those cases. Any company that I’ve served as a fiduciary, such 

as I’m on the board of directors of a local bank, a small community 

bank in Nashville, I would not hear cases involving that institution. Any nonprofits that I am also in a fiduciary relationship with, 

I’d recuse myself. I don’t think that any of those entities have ever 

351 

been sued in the Middle District of Tennessee, so I don’t anticipate 

that would require recusal, only if a case came up would it. 

Senator FEINSTEIN. Thank you. So I just want to understand. 

Your plan is to recuse yourself for the duration of time that you 

own an interest in this company. 

Mr. PURYEAR. Correct, Senator. I would do so. 

Senator FEINSTEIN. However long that may be. 

Mr. PURYEAR. However long that may be. I think, without knowing when that could change, if ever, it would not be my intent, as 

somebody who is closely associated with the management of that 

company, to hear cases concerning that company for an extended 

period of time, even if I were divested. 

Senator FEINSTEIN. I appreciate that. Thank you. Mr. Puryear. 

Thank you, Senator. 

Senator FEINSTEIN. Mr. Honaker, if I might, I think it’s fair to 

say right up front that your nomination has become quite controversial. So without a softball, let me jump right to the heart of 

it. As a State legislator, you were the author of the Human Life 

Protection Act. You introduced the bill in 1991, and when it was 

defeated you reintroduced it in 1992. You told a press conference 

that Rowe was ‘‘in shambles’’ and that your bill was ‘‘a direct challenge to Rowe’’. 

As you know, the Rowe decision recognized a constitutional right 

to privacy. Did your legislation adhere to the constitutional right 

of privacy recognized in Rowe? 

Mr. HONAKER. Thank you for that question, Senator. I might 

begin by saying that it was a great honor to serve three terms in 

the Wyoming legislature and to serve with great people who were 

interested in the best interests of the State of Wyoming. 

I introduced that bill in 1991, together with 20 other co-sponsors, 

Democrat and Republican, men and woman, African Americans, 

Hispanics, and whites. That bill, it’s true, was a challenge to existing precedent. I did that in my role as a legislator. The role of a 

legislator is so far different from the role of a judge, as you well 

know, with the separation of powers. 

As a sitting District Judge, if confirmed, I can commit to you— 

and I do—under oath that I have great respect for the rule of law, 

that I would faithfully apply the precedent of all higher courts, 

whether it be Rowe v. Wade or whether it be any other existing 

precedent of the higher courts. That is the duty of a District Judge. 

I recognize the right to privacy and I recognize the precedent of the 

U.S. Supreme Court. 

Senator FEINSTEIN. My time is up. But, respectfully, you didn’t 

answer my question. My question was, did your legislation adhere 

to the constitutional right of privacy recognized in Rowe. 

Mr. HONAKER. Senator, the legislation, as you correctly stated, 

was a legislative challenge to Rowe v. Wade. A legislator properly 

observes the rule of law by bringing issues before the courts that 

can be properly reconsidered or revisited by the courts. The role of 

a District Judge would be absolutely contrary to that. A District 

Judge would honor and apply the precedent of higher courts. So I 

believe in either context, which are two very different contexts, 

that I respected the rule of law in my respective roles. 

352 

Senator FEINSTEIN. That’s actually not my question either, but if 

that’s your answer, so be it. 

Senator Specter. 

Senator SPECTER. Thank you, Madam Chairwoman. By your response, were you seeking to take the issue back to the Supreme 

Court of the United States? 

Mr. HONAKER. Senator, the purpose of the legislation in that 

time period, which was not introduced only in Wyoming but was 

introduced in many States, was to allow the Supreme Court to reconsider that precedent, should they have wished to have done so. 

Senator SPECTER. When you say there was an effort made in 

other States, how many States? 

Mr. HONAKER. I recall, Senator, that Utah, Idaho, and South Dakota, in our region, also considered similar legislation within that 

timeframe. 

Senator SPECTER. When you say ‘‘consider’’, was similar legislation introduced in other States? 

Mr. HONAKER. I believe so, Senator, but I can’t say that for sure. 

Senator SPECTER. There has been considerable publicity about 

South Dakota. Do you recollect what happened in South Dakota? 

Mr. HONAKER. I’m sorry, Senator. I didn’t understand your question. 

Senator SPECTER. There was considerable publicity about what 

happened in South Dakota. Do you recall what occurred with respect to legislation coming out of South Dakota? 

Mr. HONAKER. The Wyoming legislation was in 1991. I know that 

this South Dakota legislation was much more recently than that. 

I believe that it was similar. But I have to say, Senator, since I left 

the legislature, I have not been involved in that issue at all. 

Senator SPECTER. And when did you leave the legislature? 

Mr. HONAKER. I left the legislature in 1993. 

Senator SPECTER. And you’ve had no further contact with the 

issues involved in Rowe v. Wade? 

Mr. HONAKER. I really haven’t, Senator. The only further involvement I would have had was in 1994, when a political action committee took that 1991 legislation and sought to put it on the ballot 

as an initiative, and there was a civil action filed by Maryland 

Planned Parenthood to keep it off the ballot. I was retained, for a 

fee, by the Pro-Life Political Action Committee to defend that action, which I did in the Supreme Court of Wyoming, and prevailed. 

However, the issues in that case were access to the ballot issues 

and did not, per se, deal with the issue of abortion. 

Senator SPECTER. You say you prevailed? 

Mr. HONAKER. We did. 

Senator SPECTER. So that it was placed on the ballot? 

Mr. HONAKER. The initiative was placed on the ballot where the 

people of Wyoming could vote on it, and then it was voted down 

at the next general election. So far as I know in Wyoming, Senator, 

that was the end of this issue. 

Senator SPECTER. And are you saying that that was the end that 

you had anything to do with this issue? 

Mr. HONAKER. It was, Senator. I’ve practiced law in the Federal 

courts of Wyoming for 32 years. My involvement in the abortion 

issue was not other than the initiative case in the courts. It’s not 

353 

a major part of my career. It was one issue that came up during 

my service as a legislator. It was a personal political viewpoint that 

I took. I’ve checked those viewpoints at the door of the courthouse 

for 32 years as a lawyer. As a judge, I would check those personal 

viewpoints at the door of the courthouse as well. 

Senator SPECTER. There are occasions where an interpretation of 

facts before the court has nuances. What is the strongest assurances you can give this Committee that you would follow not only 

the letter, but the spirit, of the law as interpreted by the Supreme 

Court of the United States? 

Mr. HONAKER. I think, Senator, the strongest assurance that I 

can give you is that I have tried cases in the courts over 32 years. 

I understand the need for lawyers on both sides of an issue, particularly a controversial issue, to make it a complete and full record 

if a case were to be appealed. 

I would, as a District Judge, if confirmed, give lawyers great latitude in making the record they need to make and in presenting the 

evidence that they need to present. My part would be to make sure 

that all relevant and admissible evidence came into the record, and 

then to apply as faithfully as possible the precedent of the Supreme 

Court in the Tenth Circuit. 

Senator SPECTER. Well, my question to you was the letter and 

spirit of the Rowe v. Wade decision and the cases which have followed it. 

Mr. HONAKER. I think, Senator, that the spirit of that case is the 

right to privacy, and I recognize the right to privacy. I would apply 

the precedent of the Supreme Court with regard to that right. 

Senator SPECTER. And again, the letter and the spirit? 

Mr. HONAKER. Yes, sir. 

Senator SPECTER. And beyond the Tenth Circuit, the Supreme 

Court of the United States? 

Mr. HONAKER. Absolutely. 

Senator SPECTER. Thank you. Thank you, Madam Chair. 

Senator FEINSTEIN. You’re very welcome, Senator. Just to continue this, a few more questions on the subject. This Human Life 

Protection Act which you authored, Mr. Honaker, does not include 

an exception for the health of the mother. As you know, Rowe requires such an exception. 

Do you believe—I’m asking you for your personal belief right 

now—that both the life and the health of a mother must be protected in order for a law regulating abortion to be constitutional? 

Mr. HONAKER. That’s a very fair question, Senator. Certainly, I 

have always had the personal belief that the life of the mother 

should be protected. I have had the personal concern that the 

health of the mother is not defined specifically enough that I have 

accepted, in a political context, that viewpoint. As a District Judge, 

if confirmed, if that is the law of the land, then I would apply it. 

Senator FEINSTEIN. Well, it is the law of the land and it’s the 

way it is in Rowe, which is the health of the mother. So you are 

saying, if I understand you, that the term ‘‘health’’ is sufficiently 

vague for you, that you do not include it. 

Mr. HONAKER. Senator, you asked me for my personal viewpoint. 

My legal viewpoint is that the health of the mother is included in 

354 

the Rowe framework, and I would apply it. I would honor and respect that part of the Rowe decision, as well as all of the decision. 

Senator FEINSTEIN. All right. 

Now, you wrote a letter back to Sharon Breitweiser, and I wanted to ask you about a part of that letter. After you were nominated 

to be a Federal Judge, you wrote this letter. In it, you wrote that 

if a case involving abortion came before you, ‘‘the losing party 

would appeal to the Tenth Circuit, and perhaps on to the U.S. Supreme Court, and nobody would remember what the trial judge did 

anyhow.’’ 

Now, this sounds to me like you believe that the District Court 

judgment doesn’t make a difference because it could always be appealed and no one would remember what the District Court actually did. That’s the way it sounds to me. Is that a correct interpretation? 

Mr. HONAKER. I appreciate the opportunity to clarify what I said, 

Senator. The intent behind what I said was to clearly convey to Ms. 

Breitweiser that I was absolutely committed to the rule of law and 

to applying a precedent of higher courts. Any litigant on the abortion issue, or any other issue, who would come into my court would 

receive the full benefit of the precedent of the U.S. Supreme Court 

and the Tenth Circuit. Certainly if someone disagreed with the 

precedent they could appeal. 

I’ve always said, as in the Gideon cases, or the Miranda cases, 

or the Rowe case, none of us can name who that District Court 

judge was or which way he ruled. But the truth is, that in my 

court, if confirmed, precedent would be faithfully applied. If someone appealed, it would be up to a higher court to overturn or modify precedent, but it wouldn’t be up to me. 

The letter, I hope read as a whole, clearly conveys that impression. I feel that that one particular part perhaps was not well written and was misinterpreted. 

Senator FEINSTEIN. Well, it’s a very strange phrase to use in a 

letter after you were nominated for a Federal District Court, to say, 

well, the findings of the District Court won’t be remembered by 

anyone, because it’s just simply not true. 

Mr. HONAKER. Having spent my life in the courts representing 

the interests of all sorts of people of all sorts of walks of life, I have 

great respect for the decisions and findings of our Federal and 

State courts. If I conveyed any impression that I didn’t respect the 

findings of a Federal District Court judge, that would be inconsistent with everything I’ve done in my career. I entirely do. 

Senator FEINSTEIN. You were quoted in the Daily Rocket Miner 

newspaper as saying that the abortion issue is ‘‘not settled until it’s 

settled right’’. What did you mean by that? 

Mr. HONAKER. I, as a politician and as a State legislator, expressed my personal viewpoint that the abortion issue should be 

settled in a pro-life way. That was a personal viewpoint that legislators and individuals take in this country. There are people on 

both sides of this issue that are good people and good citizens, and 

I took that position as an individual and as a legislator. 

As a judge, in a separate branch of government, honoring the 

separation of powers, I would certainly apply the precedent of the 

U.S. Supreme Court, including Rowe v. Wade. 

355 

Senator FEINSTEIN. My time is up. 

Senator, would you like an opportunity? 

Senator SPECTER. One additional item, Madam Chairwoman. 

That is, there is a letter from one of his colleagues, a man named 

Eric M. Alden from Wheatland, Wyoming, a letter which appeared 

in the Casper Star Tribute on March 28, 2007 endorsing the candidate, the nominee, and noting as follows: ‘‘I served in the State 

House in 1991 along with Mr. Honaker and I was on the other side 

of the abortion issue from him.’’ 

Then the final paragraph: ‘‘I was pleased to see that Dick 

Honaker had been selected to this position. I believe he has the potential to be one of the finest trial judges ever to serve in the State. 

His commitment to fairness is second to none. I can truthfully say 

there is no person I would rather have as a judge on a case, no 

matter what side of any issue I was on, than Dick Honaker.’’ 

I would ask consent that the full text of the letter be included 

in the record. 

Senator FEINSTEIN. Without objection. 

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

Senator SPECTER. Thank you. Senator Feinstein. I feel badly that 

we’ve left a couple of people out of this conversation. I’m trying to 

think of some hard balls to throw at you, but I don’t come up with 

any. 

So let me ask one question to both of you. This Committee’s recent investigation into the Department of Justice has uncovered 

evidence of political considerations improperly entering into the administration of justice. 

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 cases only 

on the law and the facts before you? Who would like to go first? 

Mr. Miller. 

Mr. MILLER. Senator, I’ll take that one. What I would say to this 

Committee, is look at my record. Look at the opinions I’ve written 

while serving on the Arkansas Court of Appeals. What you will 

find, as I believe you will find, is that I have followed the law and 

have been fair. In cases involving large companies, I have ruled in 

favor of large companies, I’ve ruled in favor of—I’ve written opinions in favor of plaintiffs, depending on where the law is and what 

the rules are. 

I believe you can look at my record, both on the bench and before 

I began serving on the Arkansas Court of Appeals. What you will 

find is, and the same thing that Senator Lincoln was speaking of, 

my colleagues will speak to that, that I’ve always been fair. I’ve 

never taken one side over the other. I can assure this Committee 

that I’ll do the same, if you approve me. 

Senator FEINSTEIN. Thanks, Mr. Miller. 

Anybody else? Mr. Hall. 

Mr. HALL. Thank you, Senator. 

It is the bound duty of every District Court judge to apply the 

law, follow the rule of law, and to set aside all personal and political concerns. I take that responsibility and that oath very seriously, and will if I am lucky enough to be confirmed. I have spent 

some part of my life in the political arena and complained about 

356 

activist judges that made decisions based upon political or their 

personal considerations. It affects the credibility of our judiciary. It 

strikes at the heart of our separation of powers. You have my commitment that I would follow the duty as a trial judge and I would 

simply set those concerns aside and apply the law. 

Senator FEINSTEIN. Thank you. 

Mr. Puryear, would you like to make a comment? 

Mr. PURYEAR. I would just like to echo what Mr. Hall said. I 

commit to the Committee that, if confirmed, I would follow the law, 

the relevant precedent, and the Constitution, which is the oath 

that a judge takes as to the Constitution as the highest authority, 

and will do my level best to ensure fairness to all litigants that 

come before me. 

Senator FEINSTEIN. OK. 

Mr. Honaker. 

Mr. HONAKER. Senator, in many cases the trial judge stands between a citizen and his government. Whether the government is on 

one side of a case or not, it’s the duty of the District Judge to apply 

the law fairly and impartially without respect to persons and I’m 

committed to doing that. 

Senator FEINSTEIN. Thank you. 

Now, Mr. Hall, you raised the question of judicial activism. Retired Supreme Court Justice Sandra Day O’Connor, of whom I am 

a great fan, has written ‘‘the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history.’’ She added that ‘‘this situation presents a grave 

threat to the independent judiciary.’’ 

How do each of you define ‘‘judicial activism’’? Mr. Hall? 

Mr. HALL. In my opinion, judicial activism is simply a judge ignoring precedent and rendering a decision that is based upon either political views or their own personal view of how society 

should exist or operate. As I previously said, I think there is no 

place for that in a judicial setting. 

The rule of law is clear. My duty is to apply the law established 

by acts of Congress, by the Supreme Court, and by the Eleventh 

Circuit Court of Appeals, in my case. So I realize that it is important for me to make a commitment both to this Committee, but to 

myself, that I can very quickly set aside any political or other opinions and simply deal with the facts that are before me in the case 

and apply the law of the land as it exists at that time. 

Senator FEINSTEIN. Thank you. 

Mr. HALL. Thank you. 

Senator FEINSTEIN. 

Mr. Honaker? We’ll go right down the line. 

Mr. HONAKER. Senator, I think that a judicial activist can be conservative, liberal, moderate, or of any viewpoint. But the essence 

of judicial activism is the substitution of one’s own personal viewpoints or opinions for the laws written by Congress. I would not 

legislate from the bench, I would apply the law as written by Congress and as interpreted by the higher courts. 

Senator FEINSTEIN. If I might just make one editorial comment. 

I remember the Ranking Member, distinguished as he is, asking 

some very piercing questions of Supreme Court nominees on the 

357 

subject of precedent. I think you even used the word ‘‘super precedent’’. 

Senator SPECTER. Super-duper precedent. 

[Laughter.] 

Senator FEINSTEIN. Super-duper precedent. And everybody said 

they would agree with it. Then, of course, they didn’t. But, anyway. 

Senator SPECTER. Well, I’m glad you brought that up, Madam 

Chairwoman, because that opens up this hearing probably well into 

the evening. 

Senator FEINSTEIN. Well, I don’t want to do that. 

Senator SPECTER. I’ll withdraw the comment. 

Senator FEINSTEIN. Going right down the line. Mr. Puryear? 

Mr. PURYEAR. Thank you, Senator. I think I would define judicial 

activism as when a judge substitutes his or her own political beliefs, regardless of the nature of those beliefs, for duly enacted laws 

in the Congress or for the Constitution of the United States. In all 

things, I will be guided by the Constitution and the enacted laws 

of Congress in what I do, if confirmed as a District Judge, as applied to the facts in front of me. Thank you. 

Senator FEINSTEIN. Mr. Miller? 

Mr. MILLER. Senator, I can’t improve upon what my colleagues 

have already said. I would just echo exactly what they’ve said before me. 

Senator FEINSTEIN. Thank you. Thank you. 

Senator. 

Senator SPECTER. Thank you, Madam Chairwoman. 

Mr. Puryear, the Alliance for Justice sent a letter dated October 

30, 2007 opposing your nomination on two grounds. It charged that 

you have made ‘‘public comments’’ that ‘‘indicate hostility toward 

civil rights lawsuits in general, and to those—prisoners in particular.’’ The one-sided example was a quote from a legal periodical: 

‘‘Litigation is an outlet for inmates,’’ and said it’s ‘‘something they 

can do in their spare time.’’ 

Are you hostile toward civil rights lawsuits? 

Mr. PURYEAR. Senator, I am not. The question that provoked the 

answer that you read was about some of the more extreme examples of frivolous inmate litigation, which examples do exist. That 

does not diminish the fact that there are numerous meritorious 

claims that inmates file. In fact, as the general counsel for CCA, 

I have authorized significant payments in some of those cases. I’ve 

implemented a compliance program to try to prevent those cases 

from arising, and to ensure that we have an anonymous means of 

reporting for staff, so that those abuses do not occur. 

As a member of the National Prison Rape Elimination Commission, on which I serve as a volunteer, I’m well aware of the abuses 

and the losses of life that can occur in correctional facilities. There 

are human beings on both sides of the sliding doors and mistakes 

can happen. So, I am not hostile to prisoners rights, Senator. 

Senator SPECTER. So do you say that you think that the courthouse doors ought to be open to people who have complaints about 

civil rights? 

Mr. PURYEAR. Yes, Senator, they should. 

Senator SPECTER. And then how do you define ‘‘frivolous’’? 

358 

Mr. PURYEAR. Frivolous, I think, is a difficult thing to define. I 

leave it to Congress to enact statutes that address those issues. I 

know that— 

Senator SPECTER. Well, it’s not a matter of leaving it to Congress. You may have to leave it to the inmate. How does an inmate 

know what frivolous is— 

Mr. PURYEAR. Correct. A frivolous lawsuit, Senator, would be a 

lawsuit that—for example, applying the Rule 11 standard, that either lacked a factual basis for being brought or lacked a factual 

basis for— 

Senator SPECTER. I don’t know that the inmates understand Rule 

11. 

Mr. PURYEAR. Right. 

Senator SPECTER. Not many lawyers understand Rule 11. Not 

many people know what Rule 11 is. 

On this statement that ‘‘litigation is an outlet for inmates, it is 

something they can do in their spare time’’, is it your position that 

you think the courts ought to be open for civil rights litigation and 

that—well, tell me what your position is. 

Mr. PURYEAR. My position is that the courts should be open for 

civil rights lawsuits of all types, including those brought by inmates. In fact, prior to coming to CCA I represented an inmate, 

pursuant to a court appointment, in a civil rights case. 

Senator SPECTER. Did you win? 

Mr. PURYEAR. We did not win. But I fought as zealously as I 

could on behalf of my client. 

Senator SPECTER. What was the essence of the complaint? 

Mr. PURYEAR. The essence of the complaint was two-fold. The 

first component of the complaint dealt with the fact that his security classification was being altered in an upward manner because 

of a conviction shown on an FBI rap sheet that he contended were 

false, and indeed some of them were false. Once learning of the falsity of some of those convictions, the prison administrators had not 

inquired reasonably to confirm whether the other rap sheet convictions were, in fact, true. 

The second component of this lawsuit was a claim for retaliation. 

He asserted that he’d been placed into administrative segregation, 

denied access to his legal materials as a consequence of his raising 

issues around what was contained in his rap sheet. 

We tried that case through a jury in District Court in Nashville, 

and ultimately the jury was not persuaded by the claims that we 

made. But it was a hard-fought contest. I was proud to be a part 

of it, and I did everything that I could to try to secure victory, as 

any lawyer would, for his client. 

Senator SPECTER. The Alliance for Justice also contended that 

your position with Corrections Corporation of America would cause 

‘‘docket management problems’’ by requiring recusal in numerous 

cases. What’s your response to that? 

Mr. PURYEAR. Well, Senator, the numbers that were provided to 

the Committee by the Alliance for Justice, I don’t know what their 

source was, but it’s not consistent with the numbers that I’m aware 

of. In fact, since 2000, 181 lawsuits have been filed in the Middle 

District of Tennessee against CCA. Over that same time period, I 

359 

believe over 15,000 cases have been filed in the Middle District of 

Tennessee. 

Right now, when I last checked a month ago, CCA has six cases 

pending in the Middle District of Tennessee, with four active District judges and four senior District judges. I do not think it will 

work an undue burden to allocate those cases involving CCA to the 

other judges within the District, and I would take other cases in 

which there was not an apparent conflict in order to equalize the 

caseload. 

Senator SPECTER. Do you think the number is sufficiently small 

as not to be a problem so that other judges can handle it, even if 

you have to recuse yourself? 

Mr. PURYEAR. Yes, Senator. In fact, I think the number is probably much smaller than it would be for some of the large law firms 

in Nashville that undoubtedly have more than six cases pending at 

any one time in the District Court of Tennessee. 

Senator SPECTER. The Private Corrections Institute, further, 

raises a question about your lack of sufficient litigation experience 

for the job. How much litigation experience have you had? 

Mr. PURYEAR. Well, Senator, my experience directly in litigation 

and related to litigation has been many—fold and diverse. I’ve 

spent 7 years as the general counsel for a large public company. 

Senator SPECTER. How many cases have you tried? 

Mr. PURYEAR. I’ve tried two cases, two jury trials, one as the sole 

trial lawyer and one as the associate counsel. 

Senator SPECTER. Non-jury trials? 

Mr. PURYEAR. Pardon me? 

Senator SPECTER. Non-jury trials? 

Mr. PURYEAR. Non-jury. Well, there was a component of one of 

those jury trials that was decided by the judge. I cannot think of 

any—there was one non-jury trial where we had to withdraw on 

the eve of trial because a rule that would no longer apply concerning calling of a partner as a witness in a case. There was a 

bench trial where we sat behind the trial lawyers and assisted 

them as they tried the case, but no additional trial experience beyond those. 

Of course, as a law clerk in the Fifth Circuit, we spent a year 

reviewing District Court cases. That was what we did, is we reviewed the record, we reviewed evidentiary rulings, and that was 

certainly an instructive experience at the outset of my legal career. 

More recently, as general counsel at CCA, we’ve had to make a 

number of decisions, and I’ve attended trials where I’ve not actually been the counsel of record, where I’ve had to make decisions 

about whether to settle cases or not. 

Senator SPECTER. Well, thank you very much, Mr. Puryear. I 

wanted to give you a chance to respond to these issues which were 

raised, and I appreciate your answers. 

Mr. PURYEAR. Thank you, Senator. 

Senator SPECTER. Thank you for the extra time. 

Senator FEINSTEIN. You’re very welcome, Senator. 

I have something I’d like you to respond to, too. ‘‘As CCA’s general counsel’’, this is a statement that the Committee has received, 

‘‘Mr. Puryear has taken an active role in hiding damaging information about the company from the public, including the governVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00369 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
360 

mental agencies that contract with the company. Such actions are 

antithetical to the ethical qualities that should be displayed by a 

Federal judge.’’ 

There are two examples that they cited. ‘‘Following a hostagetaking at CCA’s Boyd County Florida jail in 2004 which resulted 

in a prisoner and a nurse hostage being shot by a S.W.A.T. team 

member, CCA refused to release an After-Action Report related to 

the incident. Mr. Puryear arranged to have a private law firm conduct the report to protect CCA from liability and stated that the 

proprietary report would never become a public record.’’ This was 

reported in the News Herald November 14, 2004. 

‘‘Further, Mr. Puryear put the company’s Quality Assurance Division under CCA’s Legal Department so any quality assurance audits would not be subject to public records laws due to attorney/client privilege. While Mr. Puryear may have been just doing his job 

as CCA’s chief lawyer, this certainly is not behavior worthy of a 

Federal judicial candidate.’’ 

Could you respond, please? 

Mr. PURYEAR. Yes. Thank you, Senator. The hostage-taking episode, as I understand it, what the author of that comment is accusing me of, is accusing me of attempting to protect the work product 

protections of the company which I represent, and to that I plead 

‘‘guilty’’. After an incident that occurred within the prison, we knew 

litigation was going to be coming. We sent in a group of outside 

lawyers to figure out what happened and what the underlying facts 

were to share their impressions about the defensibility of that lawsuit. 

The only request that I received was a telephone call, asking me 

if I would turn over the report from a third party, the private—affiliated with Private Corrections Institute, and I said that I would 

not. The issue was never litigated. That is the position. So I was 

doing my best to protect the work product privileges that attach to 

investigations performed under the supervision of lawyers in anticipation of litigation. 

The Quality Assurance Division was moved to my office several 

years ago, primarily to move it out of the Operations Division of 

the company so that there would be an independent reporting 

mechanism for quality assurance to the Board of Directors and the 

CEO of the company through me. The reason was to improve the 

quality of our operations. Our quality assurance audits, the raw 

audits, are available. 

To my knowledge, I don’t know that we’ve ever denied those to 

any public entity that has requested them, any governmental entity or any customer. There may be mental impressions that get 

shared by the auditors about possible litigation concerns which 

would not be a part of the underlying audit report, but I’m not 

aware that we’ve ever withheld an audit report from any customer. 

Senator FEINSTEIN. Actually, there are a number of allegations 

here. I’m going to ask that you review them and respond in writing 

to the Committee. 

Senator FEINSTEIN. Could I ask this question? How much stock 

do you own in CCA? 

Mr. PURYEAR. As of right now, I think I own— 

Senator FEINSTEIN. In a percent, please. 

361 

Mr. PURYEAR. Oh. In a percentage of the company? 

Senator FEINSTEIN. If you can. 

Mr. PURYEAR. I couldn’t. It is minuscule as of right now. But I 

couldn’t even begin to approximate the percentage. It’s not a percent of the company, it’s way, way south of that. It’s a large, you 

know, multi-billion dollar capitalized company and I have only the 

shares that are restricted shares and a few stock options that are 

tied up with resale agreements until my separation of employment. 

And by ‘‘few’’ I mean whatever that number is. I don’t know exactly 

what the number is, but I’ve liquidated the other holdings. 

Senator FEINSTEIN. Yes. 

Let me ask you about another case. This goes back to 2004, while 

you were serving as the lawyer for CCA. Apparently a female prisoner at the company’s Metro Division in Nashville was beaten to 

death. Estelle Richardson, 34, was in a solitary confinement cell 

when she was found unresponsive. An autopsy revealed a skull 

fracture, four broken ribs, and liver damage. A medical examiner 

ruled her death a homicide, saying her injuries were consistent 

with blunt force trauma and could not have been self-inflicted. 

In 2005, four CCA guards were indicted on murder charges in 

connection with Richardson’s death. The charges were dropped by 

prosecutors because they could not determine the exact time the injuries were inflicted. CCA quietly settled a civil lawsuit by Richardson’s family in ‘06. 

So the question this individual is raising is, who murdered Estelle Richardson? Mr. Puryear, who had inside knowledge about 

Richardson’s death through internal CCA records and a suit filed 

by her family, was only interested in protecting CCA’s interests. 

What about the public interest in knowing who beat Estelle Richardson to death? What about bringing her killers to justice, whether they were CCA guards or other prisoners? 

Mr. PURYEAR. There are a range of possible explanations for 

what happened to Ms. Richardson. It was awful, what happened. 

I remember getting the phone call informing me about the death 

of an inmate in one of our segregation units in my hometown. We 

did settle that case with the family of Ms. Richardson. I’m not at 

liberty to discuss the amount; there are minors involved, and that’s 

one of the main reasons why that settlement has been kept confidential. But there were a range of alternative explanations, many 

of which would not have involved a beating death that could have 

explained what happened. 

Senator FEINSTEIN. So you settled it for money. Is that what 

you’re saying? 

Mr. PURYEAR. CCA settled the case. I can’t comment beyond 

that. But I can say that the four correctional officers who were 

originally charged with homicide in connection with the death, I 

can say this. The plaintiff’s expert, the family’s expert, and the 

company’s expert that examined the medical records concluded that 

the medical examiner made a mistake, that it was not a death that 

resulted from a beating within anything close to the timeframe 

that had been assumed by the medical examiner. 

So, four innocent correctional offices who had nothing whatsoever 

to do with her death, which is clear from the record, were exonerated. It’s to the great credit of the District Attorney General of 

362 

Nashville that he chose to drop those charges in the face of evidence from both the family and from us that those four offices had 

nothing to do with her passing. And again, there are a variety of 

possible explanations for what happened. I don’t know what happened, Senator, but I do know that those four correctional officers 

were not involved and that the District Attorney General did a courageous thing to not charge innocent people after that evidence was 

brought to light. 

Senator FEINSTEIN. Well, when you say there are a variety of explanations for what happened, I trust you’re not saying that this 

inmate fractured her own skull, and damaged her own liver, and 

broke her own ribs. 

Mr. PURYEAR. Senator, the rib fractures, for instance, would be 

consistent with CPR being performed, which was performed, and 

the liver injury could also be explained that way. That does commonly happen. The head injury was— 

Senator FEINSTEIN. Common? Common? 

Mr. PURYEAR. The head injury— 

Senator FEINSTEIN. You said it commonly happens giving CPR? 

Mr. PURYEAR. Having ribs broken, if it’s administered. It happens. At least, that’s what I am told by the experts. 

Senator FEINSTEIN. It’s common? 

Mr. PURYEAR. That’s what I’m told by the experts who were engaged in this case. The head injury was of indeterminate length before her death, at least more than a few days before the inmate 

passed away, according to some of the medical experts that were 

engaged to work on this on both sides. They agreed on that point, 

so there was not a beating the night before, which is what the 

original charges were. 

There is the possibility—well, there are any number of possible 

explanations, including fights with other inmates, a fight with unknown correctional officers, self-inflicted wounds, medication 

issues. She had a history of seizures. I do not know what happened, Senator. I don’t think that the family knows what happened. The case was settled. The civil case was settled, and fortunately four correctional officers, that everyone involved agreed were 

innocent, were cleared of responsibility by the District Attorney 

General. 

Senator FEINSTEIN. So a finding of blunt force trauma by a medical examiner and a finding of homicide, you are essentially saying 

you dispute. 

Mr. PURYEAR. The family’s medical expert would dispute the 

finding of homicide on the grounds that the medical examiner 

found it. Yes. Yes, Senator. 

Senator FEINSTEIN. OK. 

Do you have any other questions, Senator? I’m finished. 

Senator SPECTER. Thank you very much. I have no further questions. 

Senator FEINSTEIN. All right. I have no further questions either. 

Gentlemen, thank you very much. 

The hearing is adjourned. Oh, if I may, I’d like to, before I do 

that, put in the record a statement by the Chairman of the Committee, Senator Leahy, and indicate that we will keep the record 

open for 2 weeks for written questions. 

363 

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

Senator FEINSTEIN. The hearing is adjourned. 

[Whereupon, at 3:51 p.m. the Committee was adjourned.] 

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

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(521) 

NOMINATIONS OF CATHARINA HAYNES, OF 

TEXAS, NOMINEE TO BE U.S. CIRCUIT 

COURT JUDGE FOR THE FIFTH CIRCUIT; 

JOHN A. MENDEZ, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF CALIFORNIA; STANLEY THOMAS ANDERSON, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF TENNESSEE 

THURSDAY, FEBRUARY 21, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 10:04 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy 

(Chairman of the Committee) presiding. 

Also present: Senator Warner. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, everyone. I want to thank everybody for being here. I especially want to welcome the senior 

Senator from Virginia who’s joining us today and makes it possible 

to have the second hearing on judicial nominations in 2 weeks. 

Senator Warner has always appreciated the importance of the judiciary and the significance of judicial nominees. I was pleased to 

work with Senator Warner when his support for Roger Gregory 

helped the Senate finally to confirm the first African-American to 

serve on the Fourth Circuit. Judge Gregory was the first judicial 

nominee confirmed during my earlier chairmanship in 2001. 

Let me just say on a personal basis, for those of you that may 

be from Virginia, you have been privileged to have John Warner as 

your Senator. I say this as a member of the other party. I told Senator Warner, when he announced his retirement, that I’ve served 

here now with, including incumbent Senators, about 300 Senators. 

Some have resigned, some have died, some have left, some have 

been defeated. Some I have missed when they have left, some I 

have found it interesting that they have left. 

John Warner is one I will miss as much as anybody I’ve ever 

served with. He is not only a true gentleman, he’s a Senator’s Senator. He is a man who does what Mike Mansfield, who was our MaVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00531 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
522 

jority Leader when I first came here told me on my very first day: 

you always keep your word. He has done that. Sometimes it’s been 

on very difficult issues for him where he’s had to take a very independent position. 

I think, John, it’ll probably be OK if I tell them that I’ve always 

referred to you, because I—of course, I’m a Vermonter, live in 

Vermont, but I have a home also in Northern Virginia that my 

family and I use when the Senate is in session. I’ve always referred 

to Senator Warner as my Senator-away-from-home. John, even 

after you retire, you will still be my Senator. 

Senator WARNER. Thank you very much for those remarks. We 

indeed have had a wonderful relationship. This is my 30th year 

here in the Senate and we’ve traveled together in different parts 

of the world. I’ve sat in that seat I don’t know how many times, 

but every single member of the Federal bench in Virginia, I’ve been 

involved in their confirmation and advise-and-consent procedure. 

Chairman LEAHY. I might note that every time Senator Warner 

has recommended somebody and has come here and endorsed that 

person, whether we’ve had a Republican or a Democratic President, 

whether we’ve had a Republican-controlled Senate or Democraticcontrolled Senate, when John Warner has recommended the person 

they’ve all been confirmed. 

Senator WARNER. I thank the Senator for your remarks. 

Chairman LEAHY. And today we’re going to hear from Catharina 

Haynes, who I just met. She’s been nominated from Texas for a 

judgeship on the Court of Appeals for the Fifth Circuit. I know that 

Senator Cornyn is very interested in seeing her nomination proceed. I told Judge Haynes that the reason we’re doing this during 

a recess, is with the Senate schedule the way it is, there was a 

question whether we would be able to fit a time otherwise. 

For those who have been watching the Today Show this morning, 

it’s taking place just a few miles from my home in Vermont, the 

Sugarbush ski area. It’s gorgeous up there and I want you to know 

it’s only to fit this in that I was willing to come back during probably the best skiing time of the year. But I also told Senator Cornyn that we would have a hearing for you. One, I always keep my 

word on those things, and I just knew that otherwise, if we didn’t 

do it now, it might not happen. 

We’re also going to hear from Stanley Thomas Anderson, whose 

nomination for U.S. District Court for the Western District of Tennessee, is one that Senator Alexander raised with me. Then we’ll 

have John A. Mendez for appointment to the U.S. District Court 

for the Eastern District of California. 

Each of these nominations have the support of their home State 

Senator. Recently, the President and several Republican Senators 

held, I thought, an unfortunate partisan political rally with judicial 

and executive nominees at the White House, insisting that they 

have these hearings. 

I was surprised to see Judge Haynes at that photo opportunity. 

I thought it was unfortunate that she did that and allowed herself 

to be used in such a partisan political way, especially as I’d already 

announced her hearing for today. I mention that, because the facts 

are that during the last 7 years, despite the efforts of the administration to pack the Federal courts and tilt them sharply to the 

523 

right, this Committee and the Senate have worked hard to consider 

judicial nominees. 

The fact that we are proceeding today during a congressional recess is yet another indication of our efforts. Last year, the Senate 

confirmed 40 judicial nominees. That topped the total achieved in 

any of the three preceding years when the Republicans controlled 

this Committee. 

I mention that, not for bragging rights, but unfortunately there 

are some at the White House who think that when Democrats have 

been in control of this Committee that their nominees are slowed 

down, and of course they went fast under Republicans. It’s been 

just the opposite. Nominees have gotten faster under Democratic 

control for President Bush than they did under Republican control. 

There’s also actually more judges than were confirmed in 1996, 

1997, 1999, or 2000, when President Clinton was here and the Republicans slowed down his nominees. In the almost 3 years I’ve 

chaired the Committee, the Senate has confirmed 140 of President 

Bush’s lifetime appointments to our Federal courts. We did 140 in 

3 years. During 4 years with Republican leadership, they did 158. 

We actually moved faster year by year. 

I said that we would treat this President’s nominees more fairly 

than Republicans treated President Clinton’s. I told President Bush 

that. I told him I had no intention of doing as his party had when 

they pocket filibustered more than 60 of President Clinton’s nominees. I made it very clear to my own caucus, if I’m going to be 

Chairman of this Committee, I would not repeat that. I thought it 

was a shameful, wrong thing to do. 

I would not want it done to a Republican President, I would not 

want it done to a Democratic President. So the other thing is, in 

the past, you could secretly hold up somebody by what you did in 

the so-called blue slips. For the first time in the history of the Senate under my chairmanship I’ve made such blue slips public, so 

we’ve done everything on the record. I also proceeded with a number of nominations I opposed, something that had never been done 

before under Republican leadership. 

So we’re going to consider a nominee to the Fifth Circuit, a court 

to which 12 of the 16 active judges have been appointed by Republican Presidents. We moved forward, as Democrats, on that. It’s unfortunate that when President Clinton nominated people to that 

court they were blocked. Judge Jorge Rangle of Texas, or Enrique 

Moreno of Texas, or Allison Johnson of Louisiana were never given 

the kind of hearing that Ms. Haynes is having today. 

In fact, those on the other side of the aisle refused to proceed on 

any nomination to the Fifth Circuit during President Clinton’s entire second term. That’s why I said, Ms. Haynes, I thought it was 

unfortunate that you allowed them to use you as a political poster 

person at the White House, especially as we had already noted 

your hearing. 

President Clinton’s Fifth Circuit nominees were pocket filibustered. I held hearings on all six of the Fifth Circuit nominees of 

this President during my chairmanship, and the Committee has 

voted on all the previous five. Vacancies on the Fifth Circuit are 

at an all-time low because we have not pocket filibustered as our 

predecessors did. Indeed, the vacancy for which Ms. Haynes has 

524 

been nominated is the only one that exists on the Circuit. That’s 

a lot different than when the chief judge of the Circuit had to declare a judicial emergency when previous Presidents’ nominees are 

being pocket filibustered. 

I mention that because the Circuit vacancies rose to 26 at the 

end of President Clinton’s second term. They rose to a high of 32 

with the additional resignations during the change of administration. By contrast, we have helped reduce those from 32 Circuit 

Court vacancies across the country to as low as 13 last year. 

This may seem to be going long on this, but I do it because almost every week I hear from the White House, faxes from whatever 

the young person’s name is, the President’s press secretary, that 

are oftentimes in error that I want to give everybody the benefit 

of the doubt, that it’s simply an error in arithmetic and not a flatout lie. 

So, unfortunately, valuable time has been wasted on nominations, such as the recently withdrawn nomination of Duncan 

Ghatto for one of Virginia’s two vacancies on the Fourth Circuit. 

I mention that because we lost a year there, when the President 

had bipartisan recommendations from the two outstanding Senators from that State, for another nomination. 

So, I’d hope you’ll work with Senators Warner and Webb to name 

well-qualified consensus nominees before the Thurman rule comes 

into force. I’d much rather work with the White House. I realize 

we’re in a political season, and I have to realize that the President’s press secretary will not tell the truth on this, but I thought 

it was a good time to just lay it out. 

Senator Warner, again, I can’t tell you how—I should also mention that Senator Warner had a distinguished career in the Justice 

Department and as Navy Secretary. We first met when he was 

head of the Bicentennial Commission. I still have in my home in 

Vermont a plaque signed by you to the Bicentennial Commission. 

Senator Warner, it’s all yours. 

STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM 

THE STATE OF VIRGINIA 

Senator WARNER. Your State had a lot to do with the history of 

our great Nation. Mr. Chairman, I’d just ask unanimous consent 

that any remarks that the distinguished Ranking Member, Senator 

Specter, may wish to make be placed in the record at the appropriate place. 

I’ve enjoyed—this is my 30th year in the Senate. You are about 

4 years senior to me, in my recollection. We’ve always had a very 

cordial and strong working relationship. As you stated for the 

record, all of the nominees that I’ve been privileged to participate 

in the advice-and-consent role have been confirmed by this Committee and are now sitting in Virginia. 

You mentioned the Fourth Circuit. I do hope that the White 

House will be forthcoming, and I thank you for your offer the other 

day, as Senator Webb and I have submitted a list of five nominees. 

We have sort of stuck by that list and I’m still optimistic that we 

can replace some vacancies on the Fourth Circuit. 

But I wonder if the Chair would indulge me in a short personal 

story. 

525 

Chairman LEAHY. I’ll indulge the senior Senator from Virginia, 

the cradle of our country, with anything he wants. 

Senator WARNER. Well, thank you. But I co-sponsored a bill to 

increase the salaries for the Federal judiciary. I think it’s extremely important that Congress address that issue early on. I 

mention it for two reasons. First, is that I think it’s a slightly 

amusing story. As you all know, all of us interview very carefully 

individuals before we forward the names to the President recommending they be appointed to the Judiciary. I had a marvelous 

man in the office about 3 months ago. 

Coincidentally, he is now a partner in a firm that I was a partner in before I became Secretary of Navy. I jokingly asked him as 

we concluded our discussion and I said, what does your firm offer 

a law student coming out of my old school, where I went to law 

school, to enter your firm? And he said about $162,000 a year. I 

just sort of said to him jokingly— 

Chairman LEAHY. I wish you wouldn’t say that in front of my 

staff here! 

[Laughter.] 

Senator WARNER. But I’ve been in the Senate now, this is the 

30th year, and I haven’t advanced any salary-wise since when I left 

law school. But we’ve tied our salaries, in many respects, to the 

Federal judiciary. I also, Mr. Chairman, regrettably, for the first 

time experienced a very fine individual that I recommended, was 

confirmed by the Senate, has served several years in the Federal 

District Court, who came in to advise me of his retiring early on 

because of the need to work with his family expenses and so forth. 

So I think it’s timely that we do this, and I commend you for your 

leadership on this subject. I would hope—the bill was reported out 

of the Committee this January, was it not? 

Chairman LEAHY. It was. It was a very interesting thing. We had 

to kind of almost corral people to stay in here for a quorum, which 

I did. I said we would not take up anything else in the Committee 

until that bill was finished. It was finished. I’ve spoken with the 

chief justice. He actually called me at home to thank me, and I’ve 

spoken with him and my counterpart in the House. Both our Leaders, Republican and Democratic Leaders, are sponsors of it. I’m 

hoping we can get that through quickly. 

Senator WARNER. Good. Well, I commend the Chair, and I do 

hope that can be achieved because it’s extremely important. 

The Senate has a unique role. It really creates the third branch 

of our government, the Federal judiciary, by virtue of the adviceand-consent process and the nominations coming from the President, so we have a particular responsibility for the welfare of those 

who publicly step up to do this service. 

We are fortunate today. I had the opportunity to visit yesterday 

with Ms. Haynes and meet her husband this morning, a very distinguished career, my gracious. I had no law school career of my 

own that parallels that, I assure you. Judge Mendez, you went to 

the U.S. Attorney’s Office where I spent a goodly number of years, 

and I value those years. Honorable Anderson, you also have been 

a magistrate and administrative law judge. 

Indeed, I think the President has selected well with the three 

nominees we have before the Committee this morning. I find it a 

526 

particular privilege to be participating in your advice-and-consent 

process. 

I thank the Chair. 

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

Chairman LEAHY. Thank you. I’m going to put in a statement 

from Senator Cornyn on Judge Haynes. As I said, he talked to me, 

a respected member of this Committee. As I said, I told him we 

would work a time. Senator Alexander has a statement that I will 

put in on Mr. Anderson. Senator Feinstein is another respected 

member of this Committee and has a statement on Judge Mendez, 

and I’ll put all of those in the record. Of course, we’ll leave open 

the record for any other Senators. 

[The prepared statements of Senators Cornyn, Alexander, and 

Feinstein appear as a submission for the record.] 

Chairman LEAHY. Why don’t the three of you step forward? I’ll 

administer the oath, then I want you to introduce your family. 

That’s not to suggest you wouldn’t be able to introduce them without being under oath. 

[Laughter.] 

[Whereupon, the witnesses were duly sworn.] 

Chairman LEAHY. Thank you. Please sit down. 

Judge Haynes, could you introduce your family? The reason I always like to do this at these hearings, someday in the Haynes, 

Mendez, or Anderson archives they will have their names on this 

record. We will double-check with you for the spelling of all the 

names and everything. 

But Ms. Haynes, please go ahead. 

Ms. HAYNES. Thank you, Mr. Chairman. I appreciate it very 

much. I’m very honored to have with me some colleagues and 

friends from my first, as well as three members of my family: my 

brother-in-law, Roger Haynes, my nephew, Travis Haynes, and 

last, but certainly not least, my husband, Craig Haynes. My sister, 

Wydad Doubleday-Ruthberg had very much wanted to come and 

had her plane ticket from California, and then came down with a 

horrible case of the flu that I’m sure you’re glad she’s not here giving to all of us. But she just simply couldn’t make the trip. My parents also were unable to make the trip, but they send their great 

thanks to you for holding this hearing. 

Chairman LEAHY. And we will put the names of the members of 

your firm also in the record so that we’ll have that. 

Ms. HAYNES. Thank you. 

Chairman LEAHY. The staff will work with you, or Mr. Kim will 

work with you and we’ll make sure we get those names. 

Judge Mendez? 

Senator WARNER. Mr. Chairman, if I might interject, I wonder if 

the young man would kindly stand and be recognized? It’s very important he attend this hearing today, and I want everybody to take 

a good look at him. Could you introduce him? 

Ms. HAYNES. My nephew, Travis Haynes. He’s 14, and taking a 

day or two from school to come and learn something first-hand 

about government. 

Senator WARNER. Well, that’s important. 

527 

Chairman LEAHY. And I hope, Travis, you’ve had an opportunity 

to get a tour around the Capitol, too, because this is the seat of democracy. You go ahead and sit down. I just want to tell you a story, 

a brief story. 

I have a friend of mine from overseas, older than I am. Shortly 

after 9/11, he was here visiting and we were walking down the 

steps of the Capitol and it was just about dusk. This Capitol building is so inspiring, the sky turns this kind of deep bluish purple 

and the dome was all lit up. I said to him, ‘‘Isn’t that beautiful?’’ 

He said, you know, in World War II when we were being bombed 

by the Nazis in home area, he said, my father had a picture of the 

Capitol, the U.S. Capitol. He told us, don’t worry, the Americans 

will come to help out, and they did. It was interesting. 

Senator Warner, I told him, I was pointing to the police around 

and I said how much they do to protect all of us here. He went 

around and obviously with an accent, not an American, and shook 

hands with each one of them and thanked them. It was very moving. So I hope you get a chance to go through that because it is 

a place that has protected our liberties. During the Civil War, 

President Lincoln wisely kept the building going on of it. It was 

burned in 1814, but rebuilt. It’s an amazing place. 

Judge Mendez? 

STATEMENT OF HON. JOHN MENDEZ, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF CALIFORNIA 

Judge MENDEZ. Senator, unfortunately, coming from California, 

my wife and three daughters were unable to make the trip with 

me, but I know they’re here in spirit: my wife Susan, my daughters, Mary, Caroline and Elizabeth. And as Judge Haynes indicated, my 80-year-old father wanted to make the trip but just 

wasn’t able to, but I know he’s here in spirit as well, too. Thank 

you for allowing me to be here today. 

Chairman LEAHY. What are the ages of your daughters? 

Judge MENDEZ. My daughter is—the oldest is 20, a junior in college. I have an 18-year-old daughter, and I have a 13-year-old 

daughter who acts like a 20-year-old daughter. 

[Laughter.] 

Chairman LEAHY. You’re very fortunate. I’ve reached an age now, 

we count the grandchildren. In fact, I was helping to baby-sit two 

of them last night. 

Judge Anderson? 

STATEMENT OF STANLEY THOMAS ANDERSON, NOMINEE TO 

BE U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 

TENNESSEE 

Judge ANDERSON. Thank you, Mr. Chairman. I’d like to introduce 

to you my wife Lori, and also my son, six-year-old Hunter. Hunter, 

we are very glad could be with us today. 

Chairman LEAHY. There we are. 

Judge ANDERSON. And I have two daughters. One is 19, who’s in 

college, and one who’s 13, as John said, who believes that she’s 

close to 20 also. But I think it’s a common situation. 

Chairman LEAHY. Well, thank you. Thank you very much. 

528 

Our first witness will be Catharina Haynes. She’s been nominated for a Texas seat in the U.S. Court of Appeals for the Fifth 

Circuit. She’s a former State trial court judge for 8 years. Is that 

correct? 

Ms. HAYNES. Yes, Mr. Chairman. 

Chairman LEAHY. And I do have this right, that 191st District 

Court for the State of Texas? 

Ms. HAYNES. That’s correct. 

Chairman LEAHY. Coming from a little, tiny State like mine, we 

talk about our 14 districts. This is amazing. She’s currently a partner in the law firm of Baker & Botts in Dallas, Texas. She graduated valedictorian with highest honors from the Florida Institute 

of Technology, graduated second in her class at Emory University 

School of Law. My eldest son is a graduate of Emory School of Law, 

and I noted that. Prior to her service on the State bench, Ms. 

Haynes worked in private practice for 12 years at the Texas law 

firms of Thompson & Knight and Baker & Botts. What year did 

you graduate from Emory Law School, just out of curiosity? 

Ms. HAYNES. 1986. I think I was a little ahead by a few years. 

Chairman LEAHY. Would you like to make any kind of opening 

statement? You’re most welcome to. 

Ms. HAYNES. Mr. Chairman, if I could, I just want to say a few 

words of thanks, if that would be acceptable. 

Chairman LEAHY. Please. 

STATEMENT OF CATHARINA HAYNES, OF TEXAS, NOMINEE TO 

BE U.S. CIRCUIT COURT JUDGE FOR THE FIFTH CIRCUIT 

Ms. HAYNES. Mr. Chairman, I want to start by thanking you very 

much. I realize this is a recess week. It is a time when there are 

a lot of other things that you could be doing, not the least of which 

was the skiing you mentioned. But I know you also have a great 

many commitments to your constituents, to the Senate, and to this 

Committee that you could be attending to, and I very much appreciate that you took time to hold this hearing here today. 

I want to thank Senator Warner very much for being here as 

well. I realize you had many other obligations and I appreciate 

your time yesterday, and your graciousness in being here. 

I want to thank the staffs as well. I realize they work extremely 

hard to gather information that’s necessary to this important role 

of advice and consent, and I do thank them very much. 

I also thank the President for nominating me, and Senators 

Hutchison and Cornyn for their support and encouragement. I 

thank very much all of my colleagues and friends in Dallas, including those at Baker, Botts. I particularly thank my family. They’ve 

been a tremendous source of strength and encouragement, not the 

least of which is my husband Craig, whom I introduced, and has 

been a tremendous support and help to me and a great role model 

to me as a lawyer and a person. So, thank you again. 

Chairman LEAHY. Well, thank you very much. The Fifth Circuit 

is an intriguing circuit. It covers one of the most ethnically, racially, and economically diverse regions of the country. But it’s also 

historically been the vanguard of protecting the civil rights of 

Americans. In the wake of the groundbreaking Brown v. Board of 

Education decision, it was Fifth Circuit judges who took a prime 

529 

role in tearing down Jim Crow society in a region that had many 

areas highly segregated. They extended the Brown’s promise of 

equality for education to other areas, transportation, voting rights, 

and so on. 

So I think that a nominee to this court has a great obligation to 

demonstrate sensitivity to people of different backgrounds, a commitment to equal justice under the law. You would face many 

issues that, for example, a judge in my own State of Vermont may 

not in a lifetime, or many other States similarly situated as mine. 

Now, you served in a court that normally does not produce written 

opinions, so it’s hard to go into that kind of a paper trail. 

Have there ever been times, either as a lawyer, an advocate, or 

as a judge when you’ve taken difficult or unpopular positions on 

comparatively poor or powerless individuals or members of racial 

minorities, and taken that position when they may be up against 

a government or a large corporation? 

Ms. HAYNES. Mr. Chairman, I am so fortunate to have been born 

into a multi-cultural family long before I knew what that word 

meant. My parents are both immigrants from two different parts 

of the world, and I had a front seat on the world just sitting in my 

own living room growing up. I have brought that understanding of 

different backgrounds to my work as a lawyer and as a judge. 

As a judge, I was fair to everyone. Everyone that walked in the 

room, I realized I was the face of justice to them. The people of the 

least means and the people of the greatest means all had equal justice under the law in my court. I have had the privilege and honor 

of working in the Vickery Meadow area of Dallas, which is a three 

square mile area that is full of many wonderful people of many diverse backgrounds, many of whom are low-income and come from 

all across the world. I had a concern about this area, because when 

you drive around you see a lot of different stores, but you see no 

law offices. 

So in the last year after I returned to private practice, I went 

about trying to do something about that. It was a little bit of a difficult issue because the existing structure for pro bono legal services really couldn’t serve that community, and I was able to bring 

together a coalition of several different agencies throughout Dallas 

County to join together to form the Vickery Meadow Legal Clinic 

that had its inaugural— 

Chairman LEAHY. The Victory? 

Ms. HAYNES. Vickery Meadow Legal Clinic, that had its inaugural clinic 3 weeks ago tonight. We had a number of clients appear. We had 25 volunteer attorneys or more. We had non-attorney 

volunteers. We had folks from the National Council of Jewish 

Women come and act as leaders. It was a wonderful collaboration 

of community organizations to help people who not only are lowincome, but also many times have language difficulties and cultural 

barriers to seeking legal help. 

Chairman LEAHY. I ask this because, I’m sure you’d agree that 

as a judge, you have to leave any kind of political bias behind. You 

have to be—you can’t look at somebody as Democrat or Republican, 

poor, rich, no matter what their racial background. What would 

you say—and let me back up a little bit. When I voted for judges, 

and I’ve voted for thousands of them over the years, I always ask 

530 

myself the question: if I had to appear before that judge would it 

make any difference who I was, plaintiff, defendant, rich, poor, 

anything else? 

Can you sit here this morning and just say you’re ready to do 

that? I’m not asking you to never be political in your thinking or 

your voting or anything else like that, but when that person, that 

litigant, that issue is before you, can you sit there and say I’m 

going to be fair, I’m going to be fair no matter what, and the other 

judge says on here, I’m going to be my own person? 

Ms. HAYNES. Mr. Chairman, I can not only say I will be fair, I 

can point to 8 years of a court in which there were never any 

Democrats or Republicans, there were only litigants seeking justice 

and for whom I was that face of justice. I believe I have a very good 

reputation for being fair and impartial to all, whatever their background and whatever their political indications. 

Chairman LEAHY. Thank you. 

[The biographical information follows.] 

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645 

Senator Warner. 

Senator WARNER. Thank you very much, Mr. Chairman. I was 

particularly interested when you talked yesterday about your pro 

bono work, and I’m glad that you covered that this morning. I 

think it’s a dimension of growing importance for the Bar Associations and members of the Bar Associations to step up and help because of the cost to engage attorneys today, and so many people 

simply can’t do it. So, you have a very credible record in that context. 

There were some questions raised apparently in your work with 

the staff and others about written opinions. The question is, apparently on your court it’s not a practice to write opinions. Is that correct? 

Ms. HAYNES. That is correct, Senator. We are not blessed with 

law clerks. We do all our own research, our own preparation of orders. Sometimes they’re prepared by lawyers, but if it’s going to be 

prepared by the court, it’s myself who would have done it, including typing it. 

Senator WARNER. What about other documents such as speeches 

and so forth? In other words, is there some material out there by 

which it would reflect some of your views in your capacity as a 

member of the bench, and indeed when you practice law? 

Ms. HAYNES. Senator, I, of course, have a long record of 8 years 

of service as a judge which is well-known to the community, and 

thousands of litigants and jurors and lawyers came through my 

court over those 8 years. In addition, I sent copies of my speeches 

and writings and so forth, and my memory is, if I’m remembering 

correctly, I sent five sets and it was a 30-pound box. So that is, by 

my calculation, six pounds. So there’s a great many speeches that 

I’ve given that are in written form. I have had some very short 

speeches that don’t have notes because they were so short there 

was no need of notes. 

Senator WARNER. Well, I’ve been sitting here 30 years and I don’t 

know where I’d go to look for any of my old speeches either. 

[Laughter.] 

So I haven’t got any recollection. 

It’s interesting. Your record reflects the following: as a State 

court judge you presided over hundreds of trials, including more 

than 190 jury trials, 100 bench trials, and decided more than 7,000 

cases. That, I think, is an extraordinary record, coupled with your 

academic achievements. I think you were second in your class. Is 

that correct? 

Ms. HAYNES. I was, Senator. Thank you. 

Senator WARNER. In law school. And your husband was first in 

his class. 

Ms. HAYNES. He was, indeed. In fact, he courted me by pointing 

that out. 

[Laughter.] 

Chairman LEAHY. And you still went out with him. 

[Laughter.] 

Senator WARNER. Well, as I said, Mr. Chairman, we’re fortunate 

that this lovely jurist is stepping forward for further public service 

and a most important responsibility on the Circuit Court of Appeals. 

646 

Ms. HAYNES. Thank you. 

Senator WARNER. That court is—those following this hearing understand that it’s just below the Supreme Court of the United 

States, and those decisions combined—let’s see. Texas, Louisiana, 

and Mississippi. Is that the three States that this circuit covers? 

Ms. HAYNES. Yes, Senator, it is. 

Senator WARNER. Right. Well, I thank you again. 

I’ll put one or two additional questions into the record, Mr. 

Chairman. 

Chairman LEAHY. Thank you, Senator Warner. 

Chairman LEAHY. You know, let me go back to this issue of race. 

Last year, the U.S. Supreme Court heard two cases involving the 

use of race as a factor in student assignments to public schools. I 

realize that any member of any Court of Appeals is of course bound 

by stare decisis, bound by decisions of the Supreme Court. 

In Parents Involved in Community Schools v. Seattle School District, the combined case, in a 5:4 decision the court struck down 

school assignment plans from school districts in Seattle, Washington, and Louisville, Kentucky, that they were used to achieve diversity in public education. 

Now, Justice Kennedy provided the crucial fifth vote to strike 

down the school plan issue, but he wrote a concurring opinion accepting that achieving diversity and overcoming racial isolation in 

public schools have compelling interests. Have you had a chance to 

read that decision and do you agree with what Justice Kennedy 

said? 

Ms. HAYNES. I have a great passion for education as the way out 

of a lot of difficulties. In my particular case, my parents came here 

as immigrants with little or no money, but blessed with a Ph.D. in 

the case of my father in physics and a master’s in chemistry in the 

case of my mother, and this was a tremendous help to them in 

making their way in this new world. So, I respect education a great 

deal. 

If a case were presented to me in this area, we’d have to very 

carefully review the precedents you mentioned that I’m familiar 

with, but if the case were presented to me I would want to review 

them very carefully against that backdrop of passion for education 

and address the particular circumstance presented. 

Chairman LEAHY. There are some who have felt that the Supreme Court almost nonchalantly overturned Brown v. Board of 

Education, others have looked at the concurring opinion and say 

they did not. Do you feel that Brown has been overturned? 

Ms. HAYNES. It would take a majority of the Supreme Court to 

state that they’re overruling Brown v. Board of Education, to take 

away a precedent such as that. As a judge on the Fifth Circuit, if 

I were confirmed, I would have to look at all of the opinions and 

follow that of the majority, which under the Marks case is the narrowest ground that would support the decision. 

Chairman LEAHY. Chief Justice Roberts had said in that case, 

the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. That statement by itself is one I 

would assume you would agree. 

647 

Ms. HAYNES. That statement was in the plurality. If I were confirmed on the Fifth Circuit, I would have to look at the majority 

holding to address on a case that might be presented. 

Chairman LEAHY. When people go to the courts, oftentimes as a 

last resort to protect their constitutional rights, especially less powerful who may not have the kind of political clout and legislative 

bodies that others might have. The Supreme Court defined the special role for the courts in stepping in where the political process 

fails to police itself. 

They did this in U.S. v. Carolene Products back in 1938. They 

held the legislation which restricts those political process which 

can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under 

the general prohibits of the 14th Amendment than are most other 

types of legislation. Now, that’s actually a footnote. But do you read 

that as saying that litigants can expect the courts to look very, very 

carefully at what has been done, including in the legislative process? 

Ms. HAYNES. We’re very fortunate, in my view, to be in a country 

that has the checks and balances of three branches of government. 

The judiciary has to give respect to the other two branches, and 

particular respect to the laws passed by the legislature. 

At the same time, it is necessary for the judiciary to hold government accountable where those rules are not followed. In my particular case, I had numerous situations where someone was suing 

the government, or the State was suing, and I had to address the 

question of whether or not government had followed the rules. I 

had a specific case involving plaintiffs suing the Dallas Independent School District, alleging that they had not followed the 

Open Meetings Act in connection with redistricting, which is a very 

sensitive and difficult issue in Dallas, and probably beyond. 

I made a very careful scrutiny of hundreds of pages of transcripts 

myself—again, no law clerk—of these closed sessions that were alleged to have been improperly held in closed session, and found 

that some had been improperly held in closed session and required 

that they be made public and open, and therefore held government 

accountable. 

Chairman LEAHY. I appreciate that. So often, as indicated—and 

I’ll have a couple other questions for the record—we find that the 

courts really are the last resorts. I mean, we have seen it in the 

past when legislatures or Congress has failed to act, and sometimes 

is a right that needs to be under the Constitution, needs to be enforced, and we have to go there. At the same time, we have to show 

judicial restraint and temperament. 

I feel like in saying that that I’m channeling Senator Thurmond, 

who used to state very clearly here, don’t forget, it’s a lifetime position. You go there, you’re the most powerful person in the courtroom. You have to treat everybody the same. I mean, in your law 

practice you’ve seen people that did not have what you call judicial 

temperament, I’m sure. We all did when we were practicing law. 

There’s no way of putting a definition of that, but it’s more, you 

know it when you see it. 

If you’ve ever had the temptation, if you’re confirmed, to abuse 

your position, think of judges in your own practice or our own caVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 00657 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
648 

reer, especially when you were a young, beginning lawyer, when 

you looked at them and thought, who do they think they are? 

That’s probably the best way of doing it. Look at them and just 

think, a lawyer would be sitting there saying, who the heck do they 

think they are? It’s not a bad test. 

Senator Warner, did you have any other questions? 

Senator WARNER. No, that’s all. Thank you. I will put in, for the 

record, a few questions. 

Chairman LEAHY. Well, then let me lead into, for both of the District Court nominees, just starting with that same question. Judge 

Mendez, let me ask you, have you, in your practice of law, seen a 

judge act where you were thinking, who the heck does he or she 

think they are? 

Judge MENDEZ. I have. 

Chairman LEAHY. I’m not going to ask you to say who it was. 

[Laughter.] 

Judge MENDEZ. I will not. 

Chairman LEAHY. But if you’re confirmed, this is a lifetime position. I mean, you can tell me or anybody else what you think of 

us, and that’s fine. But do you feel that you can go on a bench and 

remember that lawyers are there to advocate for clients and that 

the issues have to be treated fairly? 

Judge MENDEZ. I’m reminded of that every day as a State court 

trial judge. Having been a State court trial judge for 7 years, that’s 

been excellent training, great experience for a move to the Federal 

District Court, if I am confirmed. I am constantly reminded of that. 

In California, we are constantly reminded of that when we attend 

judicial education programs over and over again. 

I do remember being a lawyer in Federal District court and, just 

as you said, thinking if I am ever fortunate enough to become a 

judge, I’m going to remember what it’s like to be a lawyer. I’ve 

taken that to heart every day as a State court trial judge. 

Chairman LEAHY. Over a period of about 10 years, I had the 

privilege of actually trying more cases than anybody else in our 

State of Vermont. I saw some very, very good judges. I saw some 

others I wondered, how in heavens name did they ever get where 

they are. In the Federal system, it is so important. I mean, our 

whole—this is the third branch of our government and this is 

where it works only if people have faith in the courts. You don’t 

have armies. You don’t have anything else like that. People have 

to have faith and respect for the courts. If you lose that, we’ve lost 

the ability to have checks and balances in our government. 

I’d tell, if I might, Senator Warner, a short story. Shortly after 

the break-up of the Soviet Union, a group of jurists and lawyers 

were here visiting and going around the Capitol, talking to different people. As part of their business, they came in the conference room in my office and they were asking me questions. One 

said, is it true that in your country people have actually gone in 

and sued the government? I said, yes, it happens all the time. And 

is it true that there are time that the government loses? I said, it 

happens all the time. And do you then replace the judge? 

[Laughter.] 

It was like, you know in the cartoons where a light bulb goes on? 

It was like that as we explained. 

649 

We’ve had lawyers, and even members of our Supreme Court, 

who have taken part in exchanges with, now Russia, formerly the 

Soviet Union, in talking about courts. That is the one thing they 

keep emphasizing, the independence of it. We see it every time we 

read about other countries, where suddenly the President or Prime 

Minister is arbitrarily firing judges because he didn’t like their decisions. We can’t have that. 

Let me ask Judge Anderson, what about you? Is there anything 

here that you disagree with? I mean, here’s your chance to tell me. 

Judge ANDERSON. No, sir, there is not. I think it comes down basically to a matter of respect, respect not only that the litigants 

have for the court, but respect that the court has for the litigants, 

and the attorneys, and everyone who appears. I have tried as best 

I could to conduct myself as a magistrate judge in that fashion, and 

as an administrative law judge it was the first time in Tennessee’s 

history that citizens had the right to sue the State, so I was the 

first judge—one of the first three judges to serve in that capacity, 

so I got to deal frequently with issues involving State liability. 

Chairman LEAHY. And would it be safe to say you realize the 

State can lose? 

Judge ANDERSON. Yes, sir. I do realize the State can lose. 

Chairman LEAHY. And do you agree—I mentioned Carolene Products. The footnote said all citizens have to have fair and effective 

representation. Do you agree with that? 

Judge ANDERSON. I do agree with that, Senator. 

Chairman LEAHY. When I was a prosecutor, I always used to 

think one of the most difficult things was when we had basically 

incompetent counselors show up on the other side, because I 

thought I had a duty in the court to basically try their case as well 

as my own case. It’s a lot better, I think you’d both agree, as trial 

judges, if you’ve got two basically equal—or basically equal representation on both sides. 

Judge ANDERSON. Yes, sir. 

Chairman LEAHY. I think the checks and balances is important. 

It can come at all levels. In 2002, the Office of Legal Counsel at 

the Justice Department issued a secret legal opinion that concluded 

that the President of the United States had the power to override 

domestic and international laws outlawing torture and said he has 

complete authority to do that. It seemed to assert the President 

could immunize people from prosecution for a violation of U.S. 

criminal laws that may prohibit torture. 

I’m not talking about the President’s obvious and complete constitutional power to issue pardons, but just to immunize and say, 

OK, you can break the law, but you can’t. Now, after it became 

public—after the secret memo became public, it was withdrawn. Do 

you believe that—not just this President, but any President, can 

immunize illegal conduct? 

Judge ANDERSON. Senator, I believe that in a situation like what 

you’re talking about, it comes back for someone—if I’m fortunate 

enough to be confirmed as a District judge, it comes back to Supreme Court authority, the statutes that have been passed by this 

Congress, and any other body of law that might apply to the situation. That’s the way I would try to administer the law, if I’m fortunate enough to be confirmed. 

650 

Chairman LEAHY. Would you take the basic proposition to at 

least begin with that nobody in the United States is above the law? 

Judge ANDERSON. Yes, sir. I would. 

Chairman LEAHY. Judge Mendez. 

Judge MENDEZ. I agree with Judge Anderson. In thinking about 

this, too, as a trial judge, one of the benefits I think you have as 

a trial judge is the ability to create a record. You can call for witnesses. You have the ability to ask for briefs. You need to follow 

precedent. You can make—again, that’s why I like being a State 

trial court judge. You can take your time on decisions that are incredibly important and get all the information you need to do your 

job as a judge, and that’s what you need to do as a judge. Make 

a record, explain your decisions, and get as much information as 

you can and apply specific facts of the case to precedent. 

Chairman LEAHY. Judge Haynes, would you agree that the life 

of an appellate judge is at least easier if you’ve got a complete 

record coming up? 

Ms. HAYNES. Each level— 

Chairman LEAHY. I mean, you’re still going to have—you may 

have a hard decision on the issue. 

Ms. HAYNES. Yeah. 

Chairman LEAHY. But it’s a little bit easier if you don’t have to 

try to create the record yourself. Is that correct? 

Ms. HAYNES. Each level has its own challenges. I certainly know 

the challenges that are faced in a District court, at least a State 

District court, and they are substantial. 

Chairman LEAHY. Senator Warner. 

Senator WARNER. To Judge Mendez, you have always found a lot 

of time to speak to young people. You’ve taken an interest in that. 

Would you share with us some of the principles that you lay down 

when you explain the importance of the third branch of government, namely the judicial system? 

Judge MENDEZ. Thank you for pointing that out. I actually spent, 

as I indicated in my questionnaire, 5 years on our juvenile delinquency court. I found that to be the best assignment I’ve had as 

a judge. In terms of laying down principles, one of the reasons I 

really enjoyed juvenile court is you not only get to be a judge, quite 

frankly, you can bring your parenting skills to that court as well. 

It’s very unique in terms of what you do for young people who obviously are there because their life is in crisis. 

The most important principle I lay down is education, quite 

frankly. The way out of juvenile delinquency, the way out of the 

life that most of them aren’t responsible for, their parents are responsible for creating this situation, is education. I emphasize that 

over and over again, including learning about government, participating in the process. 

I always tell them, anyone that complains about the branches of 

government, and particularly elected officials, the first question you 

ask is, did you vote, have you registered to vote? People that complain about—we get a lot of questions about jury duty. It’s important to participate in the process, but the way out, and the main 

message I give is what my parents gave me, and that is the way 

to succeed in life is through education. 

651 

Senator WARNER. The Chairman was recounting the demise of 

the Soviet Union and the excitement of former Soviet citizens, now 

Russian citizens, and others in learning about our judicial system. 

You have no reluctance to hold the President of the United States, 

if he’s adjudged to have misconstrued his constitutional powers, to 

hold him accountable. Is that correct? 

Judge MENDEZ. I think the Chairman pointed out well, as a 

judge it doesn’t matter who comes into your court: everyone is 

equal, everyone has to be treated fairly. As a judge, that’s the way 

you have to approach every case, and that’s the way I would approach this. 

Senator WARNER. One of the landmark cases certainly in our lifetime, was the time of Truman, who was held accountable in, what, 

1944? 

Chairman LEAHY. On the Youngstown Steel case. Yes. 

Senator WARNER. The Youngstown Steel case. 

Chairman LEAHY. Yes. 

Senator WARNER. But you know, it’s interesting. People don’t realize, if you look at the Constitution and the protection of liberty 

and rights, the U.S. District judge has, I think, the most powerful 

position. It certainly in many ways is equated to that of the President in finding fact and holding people accountable under the law, 

and I hope each of you are fully aware of the awesomeness of your 

power and how, as the Chairman pointed out, it has to be administered with a sense of fairness to all and equal justice to all. 

Judge Anderson, again, you’ve done a lot of work in the pro bono 

field. I think it’s important that you lay before us this morning 

some of the things that you did in that field. 

Judge ANDERSON. I was fortunate to serve on the Pro Bono Panel 

for my local Bar Association. My area of focus was civil rights. I 

was amazed at times at the number of cases that we were called 

and consulted about regarding various civil rights violations, or 

perceived violations. It, in many ways, was one of the most rewarding aspects of my private practice. 

Also, in serving as a judge you see a lot of litigants who, it may 

be their very first time to be in the court and the first time to see 

how the process works, and I’ve tried to use that as much as I 

could to help educate young people and those that come into court 

for the first time. 

Senator WARNER. Thank you. 

Mr. Chairman, I think that concludes my question in open hearing here this morning with our distinguished panel of nominees. 

Chairman LEAHY. I was chuckling a little bit, thinking of judicial 

demeanor. I’m a member of the Vermont Bar, I’m a member of the 

District of Columbia Bar, the U.S. Supreme Court Bar. These are 

all bars I’ve appeared before in the Second Circuit. But I’ve only 

appeared once in court since I—when the Senate has to appear before a judge, the District judge in Vermont, whom I had recommended to President Clinton, he was now our chief district 

judge. It was a young law graduate who had clerked for him from 

Emory Law School, my son Kevin. Now it is his time to be—he’s 

already admitted to the Vermont Bar. There, the admission is 

moved by the head of the Board of Bar Examiners for anybody who 

has passed the bar. 

652 

In the District court, you had to have a member of the bar move, 

so I appeared in court. He was clerking for that judge. I made the 

usual motion, put into the record all—admitted to the Vermont bar, 

and here is who it was. So I said, Your Honor, may it please the 

court, I’d move his admission. He looks at me and goes, hmmm. I’m 

like, what do you mean, hmmm? He said, motion granted. 

[Laughter.] 

He told me, how creative. He said, you know, Patrick, I just 

wanted to remind you who’s boss here in this court. But thank you. 

We’ll stand in recess. We’ll leave the record open for an appropriate period of time if anybody has questions. 

Senator Warner, I can’t thank you enough for this. 

Senator WARNER. I thank you, Mr. Chairman. It’s been a great 

privilege for me, and to have the opportunity to meet Mrs. Haynes. 

I have to say, the Chairman talked about my modest career in the 

Senate. I recommended to a President the first woman Federal jurist in the history of Virginia. Just think: it was 200 years of history by the time I got around to that nomination. She later became 

the chief judge of our District court in her region. 

So I congratulate you, and I congratulate each of you for your 

past public service, and hopefully with the confirmation of the Senate, your future public service. 

Chairman LEAHY. Thank you. 

Senator WARNER. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. I really appreciate it. 

[Whereupon, at 11:05 a.m. the Committee was adjourned.] 

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

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(1063) 

NOMINATION OF MARK S. DAVIS, TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; DAVID GREGORY KAYS, 

TO BE U.S. DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF MISSOURI; DAVID J. 

NOVAK, TO BE U.S. DISTRICT JUDGE FOR 

THE EASTERN DISTRICT OF VIRGINIA; STEPHEN N. LIMBAUGH, JR., TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF MISSOURI; AND ELISEBETH C. COOK, TO 

BE ASSISTANT ATTORNEY GENERAL FOR 

THE OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE 

THURSDAY, APRIL 3, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 2:20 p.m., in room 

SD–106, Dirksen Senate Office Building, Hon. Herb Kohl, presiding. 

Present: Senators Specter and Kyl. 

OPENING STATEMENT OF HON. HERB KOHL, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator KOHL. The Committee will come to order. 

We welcome a distinguished panel of five nominees before us 

today, as well as the nominees’ families and friends who are here 

in support. 

We also welcome the home State Senators who are here to introduce them: Senator Warner and Senator Bond, who are here now, 

and Senator Webb and Senator McCaskill, who may arrive. 

Judicial nominations are among the most important duties of the 

Senate Judiciary Committee. The Senate has a responsibility to ensure that any nominee possess the qualifications, integrity, and the 

independence necessary to carry out his or her responsibilities to 

the American people. 

A Federal judgeship is a lifetime appointment, so we take this 

responsibility most seriously. Today the committee will consider 

four District Court nominations, two in Virginia and two in MisVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 01073 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
1064 

souri. All four enjoy the strong support of their home State Senators. We will also consider the nominee for Assistant Attorney 

General for the Office of Legal Policy in the Department of Justice. 

We will proceed in the following manner. After opening statements from any Committee members, we would like for the Senators present to introduce their nominees. Then we will invite the 

nominees themselves to take the oath, as well as present any opening remarks or introduce their family and their friends. Then we 

will take the time for questions. 

Senator Specter is here, and we ask him for his comments. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you very much, Mr. Chairman. I 

am delighted to see our colleagues, Senator Warner and Senator 

Bond, here today for purposes of making introductions. Senator 

Webb has just joined us. We welcome the nominees and their families and we will do our best to process these nominations through 

the Committee for up-or-down votes. 

Earlier today in this room we had an extended discussion on the 

confirmation process. I think it is only fair to let all the nominees 

and others interested in what is going on, candidly, about the difficulties of the confirmation process. We have had a practice of 

slow-downs during the last 2 years of a presidency. It happened in 

the last 2 years of President Reagan, the last 2 years of President 

Bush the first, and happened in the tenure of President Clinton, 

where Republicans were in control for 6 years. 

In 2005, we had very extended filibusters and challenge of changing the rules on filibustering with the so-called Constitution, or nuclear, option. It is my hope we’ll be able to process these nominees. 

We’re obviously concerned about the qualifications. As the Chairman, Senator Kohl, has commented, lifetime appointments are 

very, very important. But I do believe we need to proceed with the 

hearings and evaluation and vote up or down on these nominees. 

I will do my best to move the process forward. 

So, on with the show, Mr. Chairman. 

Senator KOHL. Thank you very much, Senator. 

Senator SPECTER. Senator Warner is next to you. 

Senator KOHL. If you would like to make your introduction, Senator Warner. 

PRESENTATION OF MARK DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

AND DAVID J. NOVAK NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JOHN 

WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. Thank you, Mr. Chairman, and my lifetime 

friend, Senator Specter. Senator Specter and I have been here, 

we’re going into our 30th year in this institution. I value the 

friendships that I’ve had with you, sir, and Senator Specter, and 

the chairman of this Committee, Chairman Leahy, and many others. I’ve appeared before this Committee, I’m not sure how many 

times, Mr. Chairman, but I know that I have either introduced or 

1065 

sat here on behalf of every member of the Federal judiciary in the 

Commonwealth of Virginia. 

I just think it’s one of the most important functions of a United 

States Senator to work with the President, to work with his colleagues in the Senate, in the advice and consent process. I commend you, Mr. Chairman, for the dedicated work that you had. 

Today, our two nominees are from Virginia. It’s an unusual situation. I’m privileged to introduce Chief Judge Spencer, the Federal 

District Court of the Eastern District of Virginia, who has come on 

behalf of the candidates today. I’d ask if Judge Spencer might rise 

to be recognized. Thank you, Your Honor. 

We also have Judge Morrison of the State Court of Virginia who 

has come on behalf of—Judge Morrison, we thank you. 

Now, Mr. Chairman, I would like unanimous consent to place 

into the record my statement. I see my colleague is here. I can be 

very brief, because the records speak for themselves and need not 

have this old, crackly voice here, which is not working too well 

today, to cover it. 

The first nominee I’d like to address is Judge Davis. He’s Chief 

Judge on a division of our State Court. This young man started in 

my office as an intern, Mr. Chairman, and then came back and 

worked on the staff in my office. His whole judicial career, up 

through his position as Chief Judge, is carefully outlined in this 

statement. Without any hesitation, I unequivocally back this nomination and am very, very proud to see one of my staff members 

come before the U.S. Senate to be recognized under the advice and 

consent constitutional procedures for elevation to the judiciary. I 

thank you. 

Next, is a gentleman, Mr. Novak, whom I have come to know in 

the process with my good friend, Senator Webb and I. We work together as a team and we interview extensively many, many individuals carefully before we first submit the names to the President, 

and then before we come here. I wish to thank Senator Webb. I’ve 

worked in a similar capacity with all of my partners here in the 

Senate and the State of Virginia, be they Republican or Democrat, 

to see that we put forward for the judiciary only those we deem 

qualified. 

Now, this young man, having been a Federal prosecutor myself 

many, many years ago, I would call him the prosecutor’s prosecutor. He has done so much in his lifetime in the prosecutorial 

work to see that people are fairly prosecuted and to carry out the 

law of the land, which allegedly has been broken in the various 

prosecutions. Again, his entire biography and all the important positions that he’s held are captured in detail in my statement. Likewise, I put my unequivocal support behind this fine gentleman. 

I wish to also bring to the Chairman’s attention and that of the 

distinguished Ranking Member that I have spoken to either the 

Senators themselves or their senior staff on behalf of this Committee. There is a matter with Mr. Novak. It’s being reviewed within the Department of Justice. There’s knowledge in here with your 

staff, and I’m confident that this matter will be completely resolved 

prior to the action of this Committee. 

And last, Mr. Chairman, I introduce Ms. Elisebeth Cook. Now, 

each of these distinguished candidates has their family here. PerVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 01075 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
1066 

haps, I think your protocol is, when they come they introduce their 

own families. She’s joined by members of her family today. This 

fine nominee is nominated to serve as the Assistant Attorney General responsible for leading the Office of Legal Policy, or the OLP, 

as we know it. That serves as the principal office for the planning, 

development, and coordination of high-priority policy initiatives 

from the Department of Justice, and works closely with the President on the selection process for the Federal judiciary. 

Again, Phi Beta Kappa. I need not go further. It’s all in here, an 

extraordinary career for this magnificent female professional. 

I thank you, distinguished Chairman and the distinguished 

Ranking Member, and ask again that my full statement be placed 

in the record. 

Senator KOHL. Thank you, Senator Warner. It shall be done, 

without objection. 

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

Senator KOHL. Senator Webb, would you like to speak? 

PRESENTATION OF MARK S. DAVIS, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

AND DAVID J. NOVAK, NOMINEE TO BE U.S. DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JIM 

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

Senator WEBB. Thank you, Mr. Chairman and Ranking Member 

Specter. I would like to begin by associating myself with all the remarks of our senior Senator from Virginia. Actually, as he was giving his remarks, I was sitting here remembering that, 24 years ago 

this very month, Senator Warner sat next to me during my confirmation hearing to be Assistant Secretary of Defense, and introduced me. So when we’re talking about trying to move things forward in a bipartisan manner here in the Senate, that is one example among many of how we have been able to work over many 

years together. 

I would like to add my own strong support for the nominations 

of Judge Mark Davis and Mr. David Novak, and also I’m pleased 

to join Senator Warner in introducing Elisebeth Cook Collins, who 

is a Virginian who has been nominated as Assistant Attorney General for Legal Policy at the Department of Justice. We all know the 

role that the Constitution assigns the Senate in the advice and consent process with respect to our judgeships. These are lifetime appointments. 

Virginians expect our Senators to take very seriously our constitutional duties and to look beyond party affiliations to impartial, 

balanced, fair-minded criteria in examining those people who we 

are going to trust in those fiduciary responsibilities. 

Senator Warner and I, early on, undertook a careful and deliberative joint process in order to find the most qualified judicial 

nominees. This process involved a thorough records review, rigorous interviews jointly held, asking for the opinions of the bar associations, many different bar associations in Virginia, and through 

that process we jointly concurred in the high qualifications of 

Judge Davis, and also Mr. Novak. 

1067 

So, without going into any duplicative detail in terms of qualifications, I would ask that my full statement be inserted into the 

record of this hearing, and I would like to associate myself in full 

measure with what Senator Warner has already said. 

Senator KOHL. Thank you, Senator Webb. Without objection, it 

will be done. 

Senator WEBB. Thank you, Mr. Chairman. 

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

Senator KOHL. We have two Senators from Missouri with us at 

this point. Senior Senator Chris Bond? 

PRESENTATION OF DAVID GREGORY KAYS, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI AND STEPHEN N. LIMBAUGH, JR., NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI BY HON. CHRISTOPHER S. BOND, A U.S. SENATOR 

FROM THE STATE OF MISSOURI 

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

Specter. 

I, too, would associate myself with the general comments made 

by the distinguished senior Senator from Virginia. He always says 

it well, and he did again today. I thank the members of the Committee for holding this hearing to consider the nominations for the 

Eastern and Western Federal District Court benches in Missouri, 

the Honorable Stephen Limbaugh and the Honorable Greg Kays, or 

as he’s known in the formal papers, as David Gregory Kays, so 

there is no confusion about referring to him by his middle name. 

Your holding these hearings today, reporting these nominees favorably, and ensuring the full Senate approve their nomination will 

help show that the Federal judicial nominating process can work 

to provide Federal judges our courts so desperately need. 

I’m so pleased and proud to be able to be here today, along with 

my colleague, Senator McCaskill, to introduce such outstanding 

nominees to the Federal bench. Both Judge Kays and Judge 

Limbaugh share bipartisan support, both have fine judicial minds, 

and are public servants. They both represent the values and character of my Missouri constituents. 

Judge Kays hails from Lebanon, Missouri, a mid-sized city in 

Southwest Missouri. Folks from Southwest Missouri are hardworking, God-fearing, family loving. Of course, I like to think of all 

Missourians that way, but they’re particularly proud to do so. But 

you will see today, as I see, that Judge Kays’ sharp legal mind and 

record of experience as a State Circuit Court judge—that’s a trial 

judge—are matched equally by a midwesterner’s modesty, earnestness, and commitment to duty and service. 

Now, Kansas City is in the Western District of Missouri and produces many big-city lawyers and judges, some of whom I was also 

proud to recommend, but I am especially happy that this occasion 

will allow the nomination and hopeful confirmation of a judge from 

Laclede County. 

Judge Limbaugh also hails from a mid-sized city, Cape 

Girardeau, on the Mississippi River in southeastern Missouri. 

Judge Limbaugh and his entire family, which includes more than 

1068 

one greatly distinguished judge, represents the excellence that can 

be achieved and produced in Missouri. 

I would note that his grandfather, one of the leaders of the Bar 

for many years in southeast Missouri, I heard him speak when he 

was 100 years old, a very compelling speaker who told me at the 

time that he had practiced law with my grandfather some 50 years 

before, Judge Rush Limbaugh, Sr. was still a very active and effective advocate at that time. 

Judge Stephen Limbaugh is a gentleman. Even his colleagues on 

the Supreme Court, who from time to time disagree with him, believe there to be no finer man or judge than Steve Limbaugh. They 

believe, and I agree, that Judge Limbaugh has the attributes necessary to be an outstanding Federal judge. So, this process thus far 

has worked as it should. 

Outstanding candidates with fine legal minds, exceedingly fine 

character, and bipartisan support are here before you today. I urge 

you to embrace these models of integrity and excellence. You will 

be proud, I assure you, of the service they provide to the Federal 

court, and we are especially proud of them in Missouri. 

I thank you and the Committee. 

Senator KOHL. Thank you for your statement, Senator Bond. 

Senator McCaskill. 

PRESENTATION OF DAVID GREGORY KAYS, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI AND STEPHEN N. LIMBAUGH, JR., NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI BY HON. CLAIRE M. MCCASKILL, A U.S. SENATOR 

FROM THE STATE OF MISSOURI 

Senator MCCASKILL. Thank you, Mr. Chairman, and thank you, 

Senator Specter, for being here. 

I want to first—maybe the right word today would be to say 

‘‘ditto’’ to the words of the other Senators from Virginia, and certainly my senior citizens— 

[Laughter.] 

Senator BOND. Senator. Senator. 

Senator MCCASKILL. Excuse me. The senior Senator from Missouri. 

Let me tell you that I have a connection to both of these nominees. Greg Kays is from my mother’s hometown and where I spent 

part of my childhood. And although I don’t know him as well personally as I do Judge Limbaugh, I will tell you that there has been 

an outpouring of support for Greg Kays from his community. 

It’s a small-knit community and there are a lot of people that live 

in Lebanon that don’t share my politics, but even those who share 

my politics said, listen, this is a good man. He has been a fine trial 

judge. As someone who has spent some time in a courtroom, as I 

know my colleague from Pennsylvania has, what you want from a 

trial judge is respect for lawyers in the courtroom and respect for 

the law, and an understanding that the judge is there to serve the 

public and not their ego. In fact, Greg Kays has that reputation 

among everyone who appears in his courtroom, and I think he 

would be an outstanding member of the Federal bench and he 

would be, in fact, replacing another trial judge from Lebanon, MisVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 01078 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
1069 

souri, a fairly small community in southwest Missouri that I feel 

very close to. 

As to Judge Limbaugh, I consider him a friend. I think that I 

would quote briefly from a letter that was sent to me by Judge 

Wolfe of the Missouri Supreme Court: ‘‘Judge Limbaugh has served 

with distinction on the Missouri Supreme Court for many years, 

and two judges that are on the court that came to the court 

through Democratic Governors have expressed publicly what a fine 

judge he is.’’ This letter is particularly meaningful because not only 

was he appointed by Governor Carnehan, but he had served in 

Governor Carnehan’s administration. He wrote this letter, referring 

to Judge Limbaugh, ‘‘He is a magnificent judge. He is civil, he is 

polite, he is extremely conscientious and hardworking. Most of all, 

he truly cares about the law. He is the kind of judge with whom 

you can disagree and the matter is never disagreeable.’’ 

There have been many kind words said about Judge Stephen 

Limbaugh in terms of his work, his collegiality, but once again, he 

is a former trial judge. He came to the Supreme Court, the highest 

appellate court in our State, from a courtroom. I think it’s wonderful that he wants to return to a courtroom, because I think the essence of a trial judge is one who understands that the battle before 

him is one that it is an honor to be in a position to make decisions 

as to the law and to try to make sure that law is applied fairly, 

regardless of who comes to the courtroom. 

So I think these are two outstanding nominees and I’m proud of 

the bipartisan manner in which my colleague, the senior Senator 

from Missouri— 

Senator BOND. Thank you. 

Senator MCCASKILL.—has worked with me on these nominations. 

I recommend them to the Committee, I recommend them to the 

Senate, and I appreciate your time today. 

Thank you very much. 

Senator KOHL. Well, we thank both the senior and the junior 

Senator from Missouri. We appreciate your being here. 

At this point we’d like to call all five nominees to come forward 

and to remain standing. If you’ll raise your right hand, I’ll administer the oath. 

[Whereupon, the nominees were duly sworn.] 

Senator KOHL. You may be seated. 

Starting with Ms. Cook, we will ask each nominee to introduce 

themselves, make any brief comments you’d like to make, and introduce members of your family as you may see fit. 

Ms. Cook. 

STATEMENT OF ELISEBETH C. COOK, NOMINATED TO BE ASSISTANT ATTORNEY GENERAL FOR THE OFFICE OF LEGAL 

POLICY, DEPARTMENT OF JUSTICE 

Ms. COOK. Thank you, sir. First, I wanted to take you for taking 

the time to chair this hearing today, and Senator Specter, for being 

here today. I also wanted to thank the Chairman for scheduling 

this hearing. I wanted to thank the President for this nomination 

and the Attorney General for the faith that he has placed in me. 

I also wanted to take the opportunity to introduce my family 

members who are here. My parents, Tom and Martha Collins, and 

1070 

my husband, Jim Cook. Jim’s parents, Ron and Maryann, were 

hoping to come today, but Maryann’s mother is not well so they 

were unable to make it. 

Senator SPECTER. Would you ask your relatives to stand so we 

can greet them? 

Ms. COOK. Please stand. 

Senator SPECTER. Nice to have you all here. 

Ms. COOK. And I also wanted to thank my friends and colleagues 

who have taken time out of their busy schedules to be here today. 

Senator KOHL. Thank you, Ms. Cook. 

Mr. Davis. 

[The biographical information follows.] 

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STATEMENT OF MARK S. DAVIS, NOMINATED TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

Mr. DAVIS. Thank you, Mr. Chairman. Thank you for scheduling 

this hearing. I want to thank the President, and also thank Senator Warner and Senator Webb for recommending me to the President. 

I am honored to have here today my parents, Barbara and Ralph 

Davis. I’d ask them to stand. I also have my brother, Mike Davis, 

and his wife Donna. I’d ask them to stand. And my nephew, Dustin 

Davis. I’m honored to also have, as you heard Senator Warner introduce, one of my fellow colleagues from the Circuit Court where 

I sit, Judge Morrison. I have numerous friends here and I won’t 

burden you with all the names, but I’m very appreciative of all of 

them being here. 

Thank you. 

Senator KOHL. Thank you, Mr. Davis and the other members of 

your family and friends who are here. 

[The biographical information follows.] 

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Mr. Kays. 

STATEMENT OF DAVID GREGORY KAYS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI 

Mr. KAYS. Good afternoon. I’d like to take this opportunity to 

thank the Chairman for chairing this hearing today, and the Committee for scheduling the hearing. I’d like to express my gratitude 

to Senator Kit Bond and Senator Claire McCaskill for their support, and the President for his support and his nomination. 

At this time I would like to introduce my family. My wife, Julie 

Kays, my 11-year-old daughter, Slone Kays, who’s missing the 

sixth grade today. My mother, Nancy Kays, my father, Darrell 

Kays, my sister, Terri Griffith, my brother-in-law, Greg Griffith, 

and my nephew, Corey Renken, who is a senior in high school. I 

have a laundry list of friends who traveled all the way from the 

great State of Missouri to be here. There are about 16 of us. 

Thank you, sir. 

Senator KOHL. Thank you, Mr. Kays. We appreciate your family 

and friends who are here with you today. 

[The biographical information follows.] 

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Mr. Novak. 

STATEMENT OF DAVID J. NOVAK, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

Mr. NOVAK. Thank you, Senator. I’d like to thank you and Senator Specter for holding this hearing today. I’d also like to thank 

the President for nominating me, and also thank Senator Warner 

and Senator Webb for their support throughout this process. 

With me today is my wife Martha, who’s in the front row. I’m 

going to ask her to stand. And my two young daughters, Nicole and 

Katie, who are also missing school today. I think they’re pretty 

happy about that. Also, Chief Judge James Spencer from the Eastern District of Virginia. I’d ask them to rise. As well as a number 

of friends. Again, I’m not going to burden you as well with their 

names. 

Senator KOHL. Thank you, Mr. Novak. We appreciate your family 

and friends who are here. 

[The biographical information follows.] 

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Mr. Limbaugh. 

STATEMENT OF STEPHEN N. LIMBAUGH, JR., NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI 

Mr. LIMBAUGH. I, too, am grateful to the President for the nomination and for this Committee’s consideration of the nomination. I 

am especially grateful to Senator Bond and Senator McCaskill for 

their support and friendship. 

I have my wife, the love of my life, with me here, Marsha. And 

also my parents are in the back, my mother and father. My father 

is a senior U.S. District Judge in St. Louis. Even though he’s been 

senior status for a number of years now, he keeps a full caseload. 

Twenty-five years ago when he was before this body for his own 

confirmation hearing, the Honorable Strom Thurmond presiding, 

he had his own father in tow with him. His father was, at the time, 

91 years old, still a practicing lawyer. 

Thank you. 

Senator KOHL. Thank you, Mr. Limbaugh. We appreciate your 

family and friends who are with you here today. 

[The biographical information follows.] 

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Senator Leahy has a statement to be entered into the record. 

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

Senator KOHL. At this time I’d like to call on the Ranking Member, Senator Specter, to begin the questioning. 

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

Welcome, all. I’m not going to be able to be here very long. We’re 

scheduled to start a vote at 2:45, which is just in another couple 

of minutes. Another Republican is scheduled to come here. 

I wanted to take a few moments, Mr. Novak, to go to an issue 

which has been raised with respect to your handling of the prosecution of the Massaoui case. Would you tell us about the issue and 

what happened? 

Mr. NOVAK. Yes, Senator. To the best of my ability, I certainly 

would be glad to. You know I prosecuted Zacarias Massaoui, one 

of the 9/11— 

Senator SPECTER. Senator Warner has raised the matter with me 

and it is a matter under inquiry. It will doubtless be a matter discussed when your nomination is considered by the Committee. So 

it would be very helpful for me to hear it so that I can comment 

about it when the issue arises at that time. 

Mr. NOVAK. Thank you, Senator. Again, I had the honor of being 

selected to be one of the prosecutors of Zacarias Massaoui after the 

9/11 attacks, and at that time I am quite proud of my work that 

I did during the prosecution of Mr. Massaoui. I’m also proud of the 

fact that, at the end of the trial our esteemed trial judge, Judge 

Brinkema, was quite kind in saying some very nice things about 

the work that I did, as well as my fellow prosecutors, and particularly talked about our integrity. 

One of the issues that came up, as I think, frankly, the world 

knows at this point, is there was a violation of a sequestration 

order by a TSA attorney by the name of Carla Martin, and I’m the 

person that reported that to the court. After the trial was over, her 

parent organization, DHS, did an investigation of her and she was 

fired. After she was fired she made a complaint to— 

Senator SPECTER. She was taken off the case? 

Mr. NOVAK. Yes. 

Senator SPECTER. And what caused the controversy? There was 

a violation of a sequestration order? 

Mr. NOVAK. Yes. 

Senator SPECTER. And what did that sequestration order provide? 

Mr. NOVAK. That there was to be no communication of trial transcripts with witnesses, sir. 

Senator SPECTER. And there was a communication with one of 

the witnesses? 

Mr. NOVAK. A number of witnesses. She had sent e-mails to a 

number of the witnesses, Senator. 

Senator SPECTER. How many? 

Mr. NOVAK. I believe, six. 

Senator SPECTER. Anything besides e-mails? 

Mr. NOVAK. She might have had some oral communications, I believe. 

Senator SPECTER. Might have? 

1247 

Mr. NOVAK. What I recall was, we had an evidentiary and I 

think some of the witnesses said she had spoken to them as well. 

Senator SPECTER. How did you find out about that? 

Mr. NOVAK. I found out from a witness and I disclosed it to the 

court, sir. 

Senator SPECTER. You disclosed it to the court. And what action 

did the court take? 

Mr. NOVAK. The court had an evidentiary hearing, found that 

she’d engaged in egregious misconduct, took action against the 

United States, which we then had to reconsider, and the court was 

effusive in explaining that my colleagues and I had done the right 

thing by learning of misconduct and disclosing it right away. She 

was then removed from the case. Thereafter, her parent organization did a thorough internal background and determined to remove 

her, and then thereafter she decided to file a complaint against me 

which has yet to be resolved. 

Senator SPECTER. And later she filed a complaint? 

Mr. NOVAK. Against me. Yes, sir. 

Senator SPECTER. And tell us about that. 

Mr. NOVAK. Sir, the complaint remains—a person can file a complaint against a prosecutor in the Office of Professional Responsibility, and that complaint is pending. It’s been pending for a year. 

Senator SPECTER. And what was the essence of her complaint? 

Mr. NOVAK. Her complaint—well, Senator, I will tell you, because 

the matter is pending within the Office of Professional Responsibility, I’m under the understanding that I don’t have the ability to 

talk about it because it’s a confidential—it’s a confidential complaint, in fairness to Ms. Martin. I mean, I’m obviously not happy 

with the fact that she filed a complaint against me, but she has 

rights and I don’t think it would be appropriate for me to say anything disparaging against her in terms of that—that complaint. It 

remains pending. I’m sure the Department of Justice will notify 

you as soon as it’s— 

Senator SPECTER. Well, how is the Committee and the Senate to 

evaluate the matter? 

Mr. NOVAK. Senator, I would tell you, I am glad to answer any 

questions about this. But my problem is, I’m in a situation where 

it is a confidential matter in the Department of Justice. I’m still 

a Department of Justice attorney with responsibilities to protect 

the confidentiality of the OPR process. I have selfish interests. I 

would like to sit here and talk all about it. But at the same time, 

I have responsibilities. I have responsibilities to Ms. Martin and I 

have to protect her. 

Senator SPECTER. For the time being, we will respect your position on it. We may need to revisit it at a later time, and if we do, 

we shall. Anything else you wish to tell us about the matter? 

Mr. NOVAK. No, sir. I would look forward to answering your 

questions as soon as the investigation is concluded. I’m quite proud 

of my conduct. I’m proud of what Judge Brinkema said about our 

conduct throughout. I had a responsibility to make the disclosures 

to the court, and I did. 

Senator SPECTER. OK. Thank you, Mr. Chairman, for permitting 

me to go out of sequence and discuss this with Mr. Novak. I note 

your record. I note your Pennsylvania connection. I note you were 

1248 

an Assistant D.A. in a very good District Attorney’s Office. Not as 

good as when I was District Attorney, but very good. 

[Laughter.] 

The vote has started. I’m going to excuse myself, Mr. Chairman. 

Senator KOHL. Thank you. 

Senator SPECTER. I expect to have a replacement Republican 

Senator arriving shortly. 

Senator KOHL. Thank you, Senator Specter. 

There is a vote, as he said, so we’ll recess for perhaps 10 minutes. I’ll get back here as soon as I can and then we’ll proceed with 

questions. 

[Whereupon, at 2:49 p.m. the hearing was recessed.] 

AFTER RECESS [3:07 p.m.] 

Senator KOHL. The hearing will resume. We will commence questioning for Ms. Cook. 

Ms. Cook, one of your primary responsibilities at the Office of 

Legal Policy is the selection of judicial nominees. With time is very 

short before the next election, what has your office done to encourage the White House to identify consensus nominees like the ones 

who are before us today who can be confirmed? Do you believe that 

it is important to consult and get the approval of home State Senators before nominations are made? 

Ms. COOK. Thank you for that question. The Office of Legal Policy within the Department of Justice does play a supporting role 

in the selection process for judicial nominees. Ultimately the decision of whether or not to nominate an individual is the President’s 

decision, but the Department, and my office in particular, does play 

a supporting role in that process. 

You had asked specifically about consultation. The consultation 

process is one out of the White House council’s office. It is not one 

of the areas where the Department of Justice would play a role. 

Senator KOHL. Ms. Cook, during the tenure of Attorney General 

Gonzales there was a perception that politics played a significant 

role in the decisions made at the Department. Was there a similar 

problem at OLP? What will you do to ensure that this does not become a problem, should you be confirmed? 

Ms. COOK. Let me explain a little bit about how the Office of 

Legal Policy is currently staffed. I am the Acting Assistant Attorney General right now, there are three Deputy Attorney Generals, 

and a Chief of Staff on the senior staff. They are all career attorneys. They have all been at the Department longer than I have. 

One of my goals, if confirmed, would be to make the Office of Legal 

Policy a place where they will want to stay long after I am gone. 

If confirmed, in any of my decisions, I would hope to have their 

input and their experience in that decision-making process. 

Senator KOHL. Thank you. 

Ms. Cook, while OLP is known primarily for its role in filling judicial vacancies, it also plays a role at the Justice Department in 

conducting policy reviews of legislation implementing Department 

initiatives, among other things. Can you tell us what your priorities will be in that area for the rest of this administration? 

Ms. COOK. If confirmed, my priorities would be to institutionalize 

the gains that we have made in areas such as combatting violent 

crime, combatting child exploitation, combatting identity theft, and 

1249 

combatting human trafficking. These are areas where my office has 

been very involved in the past in the development of initiatives, in 

assessing legislation, and I would hope to continue to prioritize 

those, if confirmed. 

Senator KOHL. What will be your biggest challenge, do you imagine, over the next several months? 

Ms. COOK. I think the biggest challenge that we will face is the 

fact that the administration is ending. But from my perspective, 

now is the time to institutionalize the gains that we have made in 

numerous areas and to make sure that the Department continues 

to be a place where great professionals want to work. 

Senator KOHL. Where do you think you may have some problems 

that you will have to deal with, that you might warn us? 

Ms. COOK. I’m not aware of any specific areas, but I can tell you 

that, should areas arise where we feel we could use, for example, 

additional authorities, we would welcome the opportunity to work 

with this committee. 

Senator KOHL. Thank you, Ms. Cook. 

Ms. COOK. Thank you. 

Senator KOHL. Judge Davis and others, during Chief Justice Roberts’ nomination hearing, much was made of his suggestion that his 

job as a judge was little more than that of an umpire calling balls 

and strikes. I’m sure you recollect that. Some of us, in response, 

suggested that this analogy might be a little too simple, because all 

umpires, after all, have different zones with respect to balls and 

strikes. That is because they bring their own unique life experiences to the bench. No two people are exactly similar. 

So would you comment on the Chief Justice’s comparison to the 

role of a judge being like that of an umpire? 

Mr. DAVIS. Well, Senator— 

Senator KOHL. Would you agree with him or do you think the 

Chief Justice was wrong? 

[Laughter.] 

I dare you to answer that question, yes or no. 

[Laughter.] 

Mr. DAVIS. Senator, it is a metaphor, I guess, that he chose to 

use. I would say that I see the role of a judge as to uphold the rule 

of law. That’s what I’ve tried to do in the past 5 years while I’ve 

served, and to look to the Constitution, to look to the statutes that 

are passed by this body, and to try to do the best job possible to 

make sure that everybody in the court is heard, they’re heard in 

a fair manner, and that the process plays out in an open and fair 

manner. 

I think that’s the way that I see the role of the judge, to make 

sure that in the courtroom that happens, that everyone in the adversarial process has the opportunity to be heard and to make sure 

that the rule of law is what governs the outcome. 

Senator KOHL. All right. 

Judge Kays. 

Mr. KAYS. Thank you, Senator. I agree with much of what Judge 

Davis has stated. You know, one of the challenges that I think people on the bench—judges have is to ensure that when people leave 

the courtroom they have a sense that they were treated fairly and 

1250 

there was a, pardon my metaphor, level playing field for everyone 

who comes before the court, no matter their station in life. 

Thank you. 

Senator KOHL. Mr. Novak. 

Mr. NOVAK. Thank you, Senator. I would also agree that one of 

the key aspects is to ensure a level playing field, and that playing 

field will exist solely by a judge applying the laws that he is given, 

either through statute or by previous precedent. If I were confirmed, that’s what I would do. 

Senator KOHL. Judge Limbaugh? 

Mr. LIMBAUGH. I got out of the use of Chief Justice Roberts’ metaphor that he was simply using an example of an umpire as someone who is, by the very office that the umpire holds, someone who 

is impartial and even-handed, and that he is someone who should 

not try to inject his personal policy preferences into the game, so 

to speak. 

Senator KOHL. Thank you. 

For the judicial nominees, the following question: the debate 

around judges in the Senate can often get quite heated become 

some believe that nominees are brought forward because of a specific set of beliefs which conform to one political ideology or another. We can all agree that the overriding belief for any judge 

should be that he or she is independent and eager to apply the law 

in an even and fair way. 

Could you respond to the thought that judges are brought forward because of a specific set of ideological beliefs? Mr. Davis? 

Mr. DAVIS. Yes, sir, Senator. Senator, once you—it’s almost 5 

years that I’ve served on the bench and I’ve been honored to do 

that. It was amazing to me, once I started that process, the seriousness of it. When you know that people are coming before you, it’s 

their day in court. They’ve been preparing for it for a long time. 

It may be the most important day in their life. When that seriousness hits, I’ve found it, frankly, easy to be very objective about 

what I was doing to take it seriously. 

When I say ‘‘easy’’, it was just the seriousness of it that made 

me step back and say, it’s not my personal views, it’s nothing that 

I’ve done in the past. What governs here is the Constitution, to the 

extent that that’s an issue, any statutes, any laws that we’re dealing with, and any precedent, binding precedent that I have to follow, and then treat everyone fairly. I think, for me at least, I found 

that a fairly easy transition from private practice to doing that because it was such a serious thing. 

Senator KOHL. OK. Judge Kays, why is it that there is this controversy when it comes to nominees, that they’re either ideologically to the left or to the right, and so Republicans might support 

one, Democrats might support another? Do you think there’s merit 

in that or do you think that it is much over-blown? 

Mr. KAYS. Thank you, Senator. I understand that different people have different ideas on backgrounds of the judiciary. Senator, 

we’re called to check our personal views at the door once we put 

on our robe, sir. Only then can we ensure uniformity, predictability, and stability in our court system. To do less does undermine the confidence of the entire judicial branch, in my opinion. 

Senator KOHL. All right. 

1251 

For the other two, there really is a difference, isn’t there, between the Federal court that you are up for and, for example, the 

Supreme Court in terms of your responsibilities and duties as you 

see it versus what a Supreme Court justice might be called upon 

to do in interpreting the Constitution. Is that correct or incorrect? 

Mr. Novak, then Judge Limbaugh. 

Mr. NOVAK. Well, I can’t speak for others, but I can speak for the 

process here in Virginia. As you heard from Senators Warner and 

Webb, Mark Davis and I were selected from a bipartisan interview 

process with both Senators. I think that was guided by recommendations from the local Bar organizations as to who they believed the people that are best qualified, those that are committed 

to applying the rule of law regardless of any type of political connection whatsoever. And again, I can’t speak to others, but I can 

tell you, Senator, if I am fortunate enough to be confirmed I’m 

going to apply the rule of law, end of story. It doesn’t matter what 

anybody’s political connections are. 

Senator KOHL. Thank you. 

Judge Limbaugh. 

Mr. LIMBAUGH. Senator, I’m not sure I understand the question 

exactly. As an appellate court judge, I’m bound by the precedents 

of our cases, the statutes, and Constitution, and on Federal matters, of course, the pronouncements of the U.S. Supreme Court. As 

a trial judge, I’m still bound by those same things. 

Senator KOHL. Right. 

Mr. LIMBAUGH. It is a different role, though, altogether as an appellate judge. 

Senator KOHL. Thank you. 

Judge Limbaugh, some people have criticized this President for 

the excessive use of signing statements. As you know, signing 

statements are the President’s contemporaneous interpretations of 

the legislation that he signs into law. This administration has 

issued many more of these statements than any administration in 

the past. Would you discuss the appropriate deference that a Federal judge should give to a signing statement when you are interpreting the statute? 

Mr. LIMBAUGH. Well, as a trial judge I would hope that I would 

have some guidance at some point from the Federal circuits and 

from the U.S. Supreme Court on just how we are to use those matters, if at all. I hope that’s the situation, in the event I am confirmed, that we’ll have some guidance. Frankly, I had not considered that issue, myself. I don’t know the answer. 

Senator KOHL. Well, you three are familiar with signing statements and what they are and how the President uses them. I’d like 

to hear a word or two from the three of you on that whole issue, 

starting with you, Mr. Davis. 

Mr. DAVIS. Mr. Chairman, obviously I think the obligation from 

me, if I were to be confirmed, would be to look to the precedent 

from the Supreme Court. Obviously there is case law out there on 

legislative history and the degree to which legislative history is to 

be consulted by the court in reaching an outcome. To the extent 

that there are similar statements either from the Supreme Court 

or from, in my case, the Fourth Circuit Court of Appeals, that 

would be the binding precedent in Virginia and I would follow that. 

1252 

I have a healthy respect for the separation of powers and for the 

constitutional role of the Congress. So, I think that is an over-arching principle that I would also keep in mind in any such situation. 

Senator KOHL. Thank you. 

Mr. Kays. 

Mr. KAYS. Thank you, Mr. Chairman. The beginning point for a 

trial judge is with the text of the statute and the expression of the 

legislative branch. As a State trial judge for the last 14 years, I’m 

not familiar with any precedents that would require me to review 

the signing statements. I, frankly, am unable to give you an answer because I don’t know of any precedent or legal authority related to that at this time. 

Senator KOHL. All right. 

Mr. Novak. 

Mr. NOVAK. Senator, like my colleagues, I would first look to 

precedent as well. My understanding, particularly under the separation of powers, my limited knowledge of signing statements, is 

that a signing statement really applies to the execution of the law, 

which is an executive branch function, as opposed to rewriting the 

law, which is a legislative function. 

Obviously the people speak through the Congress when the statutes are drafted, and the statutes speak for themselves. My understanding—my limited understanding—of a signing statement really—my view is that it really applies to how the executive decides 

to carry out the law. 

Senator KOHL. All right. 

Comments from each of you, please. In the past few years there’s 

been a growth in the use of so-called protective orders in product 

liability cases. We saw this, for example, in the settlements arising 

from the Bridgestone/Firestone lawsuits. Critics argue that these 

protective orders sometimes prevent the public from learning about 

the health and safety hazards in the products that they use. 

Now, I ask you, should a judge be required to balance the 

public’s right to know against the litigant’s right to privacy when 

the information sought to be sealed could keep secret a public 

health and safety hazard? Who wants to speak first on that? I will 

ask all four. Should a judge be required to balance public health 

and safety with a litigant’s right to privacy when considering a protective order? You will be sitting and you will have the judgment 

to make. You can decide then. When these cases come up, will you 

use that balancing test? If so, to what extent? It’s an issue that I’ve 

been pushing for several years, so you can also balance your response to the fact that I’m sitting before you. 

[Laughter.] 

Who’d like to speak first? Mr. Davis, why don’t you try that one? 

Mr. DAVIS. OK. Senator, I will tell you, I don’t—I don’t know— 

I’ve never had that issue during my practice in the Federal court— 

Senator KOHL. OK. All right. 

Mr. DAVIS [CONTINUING].—before I went on the State court 

bench. In the State court system, we have a case, for example, that 

prevents us from sealing wrongful death settlements, a State Supreme Court case that emphasizes the importance of the public 

being able to know what the terms are. So I have had the opportunity, when attorneys have tried to present me with those kind of 

1253 

documents, to remind them that that is not something that we can 

do in Virginia, and I’ve refused to do it. 

So, I can only tell you that I would look to the precedent, any 

statutory framework that is provided, and precedent. And to the 

extent that anyone raised a constitutional issue about it, I would 

certainly look to the text of the Constitution and any precedent 

that governed. But I would certainly be—it would be my role to 

look for that precedent to determine how to handle those issues, 

and I would do that. 

Senator KOHL. Mr. Kays. 

Mr. KAYS. Thank you, Mr. Chairman. I have not dealt with an 

issue of that nature. I will tell you, in Missouri, we generally lean 

toward openness in everything we do in our court system and we 

don’t have, that I’m aware of, any secret judgments or anything 

like that. Our judgments are all open to the public. 

I will tell you that this sounds like an issue that is addressed in 

the legislative branch, perhaps, about whether or not we should be 

making things secret, or unknown, or undisclosed to the public. I 

would review the statute, the applicable precedent, and the rules 

and follow those. 

Senator KOHL. Thank you. 

Well, as it now stands, if you’re a sitting judge in your court, if 

you will be a sitting judge in your court, you would have the opportunity to make that decision and you could go either way on that 

with respect to allowing protective orders to be sealed, even though 

we may be talking about public health and safety. So when you say 

you look at the precedent, you can, but you will have the opportunity to make that judgment. 

There are some Federal judges who very strongly believe that 

protective orders should not be sealed when there’s public health 

and safety involved. They believe that as a principle and they conduct their court that way. Others go in the opposite direction. 

I guess what I’m interested in is what your inclination would be 

when you are in a situation where you can go either way with respect to protective orders, keeping them secret, or if you believe 

that there are many people that might be injured by keeping them 

secret, not to allow that. 

Now, Mr. Novak, what would be your inclination? 

Mr. NOVAK. Well, Senator, I also have not been confronted with 

such a situation. Of course, if I were fortunate enough to be confirmed, I would turn to the precedent. I do know that in a criminal 

context, which I’m much more familiar since I’ve been a prosecutor 

for a number of years, that the Fourth Circuit case law creates 

quite a presumption in terms of openness of documents and access 

to the public, and I think that I would start with a view of what 

the Fourth Circuit case law is. 

Senator KOHL. Judge Limbaugh. 

Mr. LIMBAUGH. Of all the many hundreds of cases that I’ve addressed, I don’t remember having this issue head on. It’s a fascinating issue. I would hope, as a U.S. District Judge, that I would 

have some guidance from the courts by the time that I would have 

to address it. Perhaps, too, it is more appropriate a matter for legislation. But in Missouri, our court system is very open, like Judge 

Kays suggested. I know of very few examples where the parties 

1254 

have been successful in closing the records of a case, other than in 

juvenile court cases, and once in a while in a domestic case. 

Senator KOHL. Well, we have had, and I’m sure you remember, 

situations like the Bridgestone/Firestone case where the protective 

order was granted in terms of a defective product that then continued to be sold and wound up killing many, many people, as well 

as others. There were breast implant cases where a protective 

order was granted and the product was defective and the protective 

order prevented people from knowing, and the manufacturer continued to sell their product protected by the order. 

Now, to me this is a matter of common sense. If I were a judge, 

I’d have a hard time allowing that to occur if, in granting that protective order, I knew that many people were going to continue to 

be injured. I’m not sure what I’ve heard from you all today, but I’ll 

try once more. 

Mr. DAVIS. Senator, if I could. 

Senator KOHL. Judge Davis. 

Mr. DAVIS. I’m sorry. Thank you. You have laid it out for me so 

that I think I have a better understanding of what the issue really 

is. To the extent that, as you say, there is discretion in the judge 

to make that decision, and as I said, I honestly don’t know what 

the law is on that in the Fourth Circuit, but to the extent that 

there’s discretion, I think when there’s a danger, an issue of danger 

to the public, that has to be a factor that you weigh heavily. So, 

I guess I can pledge to you that I would look very carefully at any 

such situation. 

There’s certainly an interest in trying to resolve litigation. To the 

extent that—it was the situation that I had before me in the State 

court, as I recall, in a wrongful death case. The parties said, we’re 

not going to—we may not be able to resolve this case if we can’t 

seal the result. It was a much easier case for me there because the 

Supreme Court of Virginia had said you can’t do it. You can’t do 

it because there are public health and public policy interests that 

encourage those orders to be open. But I think the wisdom of that 

decision speaks for itself. There’s great wisdom in that. 

Senator KOHL. Thank you. 

Mr. Kays. 

Mr. KAYS. Mr. Chairman, since—if the court does have the ability to balance the harm, certainly I’m reminded quite often that I 

am a public servant, and certainly I would have an interest in protecting the public from harms which they may be exposed to. I 

think each case would probably be different absent some legislative 

expression, but I can see where, if it would be in the public’s best 

interests to protect the public from some known evil, that that 

would be appropriate not to issue a protective order in that case, 

sir. 

Senator KOHL. Thank you. 

Mr. Novak. 

Mr. NOVAK. Senator, as somebody who has spent their entire career in public service, as I have, I certainly would not want to do 

anything that would harm the public, in fact, quite the opposite. 

You can begin with the presumption in that favor, as I think all 

of us would do. We’d just be in a position where we don’t know 

1255 

what the law is at this point, at least I do not, having not been 

confronted with that. 

But assuming that there is the relevant law in the Fourth Circuit that affords you discretion, I think you’re going to obviously 

want to lean toward protecting the public. Everyone wants to do 

that because I don’t want to be harmed. I don’t want my beautiful 

young daughters being harmed, nor my wife harmed from somebody else’s misconduct. 

Senator KOHL. Thank you so much. 

Judge Limbaugh. 

Mr. LIMBAUGH. I understand well your concern. I have a concern 

of my own, and that is, so many settlements—most settlements are 

entered into without any admission of liability by one party or the 

other. So I’m trying to figure out what kind of mechanism could be 

used to address your concern and still protect the legitimate interests of the other side. It is something that needs to be addressed. 

Perhaps legislation is the right way. 

Senator KOHL. Yes. Thank you. 

If there are no other comments, I think you have all done a very 

good job. 

Senator Kyl, before we end the hearing, we’ll come to the most 

interesting part, which is Senator Kyl and his comments and questions. 

[Laughter.] 

Senator Kyl. 

Senator KYL. Thank you, Senator Kohl. 

I was sent here by Senator Specter, who indicated that he had 

to leave. 

Senator KOHL. Right. 

Senator Kyl. He did not want the hearing to be concluded without a Republican member present. 

Senator KOHL. Good. 

Senator Kyl. So, we have certainly guaranteed that. What I can 

do, Mr. Chairman, is if there are any other questions that either 

Senator Specter or other members on my side have, we’ll obviously 

be submitting them to you. We appreciate your being here. I apologize for being here late, Mr. Chairman. Thank you. 

Senator KOHL. Thank you very much for being here for the moment, Senator Kyl. We appreciate it. 

Folks, we’ll keep the record open for 1 week for Senators who 

may want to submit written questions or make statements. But 

again, we thank you for being here. You’ve done an excellent job 

and we look forward to, hopefully, your confirmation. Thank you. 

[Whereupon, at 3:34 p.m. the hearing was adjourned.] 

[Questions and answers and submissions follows.] 

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(1289) 

NOMINATIONS OF G. STEVEN AGEE, NOMINEE 

TO BE U.S. CIRCUIT JUDGE FOR THE 

FOURTH CIRCUIT; WILLIAM T. LAWRENCE, 

NOMINEE TO BE U.S. DISTRICT JUDGE FOR 

THE SOUTHERN DISTRICT OF INDIANA; AND 

G. MURRAY SNOW, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF 

ARIZONA 

THURSDAY, MAY 1, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, Pursuant to notice, at 2:15 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senators Specter, Kyl, and Brownback. 

First, let me thank Senator Leahy for allowing me to chair today’s hearing. In today’s hearing, we will consider for U.S. Circuit 

Court Judge for the Fourth Circuit Justice George Steven Agee; for 

the U.S. District Court for the Southern District of Indiana, Judge 

William Thomas Lawrence; and for U.S. District Court for the District of Arizona, Judge Gene Murray Snow. 

Before I give my opening statement, with the permission of Senator Specter, we’re going to recognize Senator Kyl for an opening 

statement. 

PRESENTATION OF G. MURRAY SNOW, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA BY HON. 

JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA 

Senator KYL. Mr. Chairman, I very much appreciate your courtesy, and apologize in advance to my colleagues, as well as to those 

nominees who are here. I am not feeling well and I’m going to be 

leaving immediately after I introduce Judge Snow. So, please forgive me. 

But I did want to be here to commend Judge Snow to the members of the Committee. I strongly support his nomination to the 

U.S. District Court for the District of Arizona, and would note that 

Senator McCain joins me in this strong recommendation. 

Judge Snow has served on the Arizona Court of Appeals since 

the year 2002. Prior to that, he was a partner at the firm of Osborn 

& Maladon in Phoenix. He received his bachelor’s degree magna 

1290 

cum laude, and his law degree magna cum laude, both from 

Brigham Young University, and was Order of the Coif. 

He clerked for the Tenth Circuit for Judge Steven Anderson after 

his graduation and was an Adjunct Professor of Political Science at 

Arizona State University for 7 years. He also served 4 years on the 

State Bar of Arizona Ethical Rules Review Group, and for 6 years 

on the Committee on Rules of Professional Conduct. The American 

Bar Association unanimously gave Judge Snow its highest rating 

of ‘‘Well Qualified’’. 

As I say, Mr. Chairman, both Senator McCain and I offer our 

strongest recommendation for the confirmation of Judge Snow, and 

I appreciate, again, the courtesy of you and my colleagues. 

Senator CARDIN. Thank you, Senator Kyl. 

STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 

FROM THE STATE OF MARYLAND 

Senator CARDIN. Today the Senate Judiciary Committee meets to 

undertake one of its most serious duties, and that is the confirmation of Federal judges to a lifetime appointment. 

Today, part of the hearing, of course, is the testimony that we’ll 

hear from the nominees. We also have had submitted to our Committee detailed information, which is also available to all the members of the U.S. Senate. 

I want to thank all three of our nominees for their commitment 

to public service, and particularly want to acknowledge their families for the sacrifices that they have made. 

Let me just, if I might for the record, make a quick comment 

about the confirmation process, since there’s been much stated 

about this. I really want to compliment our Chairman, Senator 

Leahy, and our Ranking Member, Senator Specter, because I think 

the record of this Congress has been a strong record on the confirmation process and I do compliment both the Chairman and Senator Specter. 

At the end of the Clinton administration there were 32 vacancies 

that were unconfirmed for the Circuit Court of Appeals. Right now, 

we have 12 Circuit Court judges that have not been filled. We are 

acting on one today by hearing, and Senator Leahy has announced 

that there will be hearings on two additional Michigan Circuit 

Court of Appeals judges; on May 7, we’re going to have a public 

hearing. So, we are moving forward on the Circuit Courts. 

Including the District Court vacancies, there was an overall vacancy rate of 80 at the end of the Clinton administration, and we 

now have about 46. I mention that just so we can try to set the 

record straight and move forward on the hearings of three judges 

today, and I do look forward to their testimony. 

With that, I would recognize Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. Let the record 

show that I begin with the observation that I do not object to these 

hearings. It would be foolhardy to object to any judicial confirmation hearings in this Congress under the prevailing facts. 

1291 

But I do think it important to express some concerns. We are 

now seeing the continued exacerbation of the balance between the 

two parties. In the last 2 years of a Presidential administration, 

where the White House is controlled by one party and the Senate 

by the other. 

In my personal experience, going 20 years back, in the last 2 

years of President Reagan’s administration, inappropriate tactics 

were used by the Democrats, who controlled the Senate. The same 

prevailed in the last 2 years of President Bush the first. It got 

worst around Clinton. Let me agree with you, Mr. Chairman, when 

you said that there are fewer vacancies now than there were during the Clinton administration. The pattern has been to exacerbate: 

at one level during Reagan, higher in Bush, higher still in Clinton, 

and I said so at the time. 

As the record shows, I voted for Clinton judges who were qualified, and I expressed myself on the Senate floor to that effect and 

I stood against the Republican caucus, which I thought was wrong. 

Now I think the Republican caucus is right and I am prepared to 

leave the caucus. That’s my given position as Ranking Member on 

this Committee. It is fresh in our memories, what we went through 

in 2005 when we had the repeated filibusters—I shall not elaborate 

upon them. They’re etched indelibly on the public record. 

The confrontation with the so-called constitutional, or nuclear, 

option to upset a longstanding tradition of the Senate on filibuster, 

narrowly—to changing the procedures in the Senate, whose procedures have maintained the independence of the Federal judiciary 

and the impeachment proceeding of Justice Chase in 1805 and the 

power of the presidency and the impeachment proceeding in President Johnson in 1868. So we’ve been on the edge. 

I do disagree, Mr. Chairman, with the characterization that the 

record is a good one. I will not burden the record with the lengthy 

statistics and long speeches and the extraordinary exchange of letters which have taken place, all of which prove nothing. You can 

manipulate the statistics any way a speaker likes. 

We have, today, a commitment—perhaps it’s a commitment of a 

sort—to confirm three Circuit judges by Memorial Day. Maybe it’s 

only a best-efforts commitment, but there is some tenuousness as 

it’s expressed by the Majority Leader and the Chairman of the 

Committee. 

Now we’re looking at three nominations, the nomination of Justice Agee, whom I saw briefly yesterday, and I greeted him in a 

rather unusual fashion. I said, ‘‘Justice Agee, I think you’re in a 

pretty good position on the confirmation process because there are 

other nominees who I dislike more than you.’’ That is sort of a 

strange way to put it, but that happens to be a fact. Justice Agee, 

and perhaps Justice White and Judge Kethledge—I’m not sure I 

have all the titles straight—are in preferred position because Peter 

Keisler, Judge Robert Conrad, and Mr. Matthews are more heartily 

rejected than any other Republican nominees. 

There are some statistics which are worth noting very, very briefly. I will only use Helene White for illustrative purposes. She was 

nominated on April 15th. Let’s see. This is May 1st. That’s 16 days. 

She has a hearing scheduled for May the 7th. That’s 22 days. Peter 

Keisler has been waiting for a Committee vote for over 670 days; 

1292 

Judge Conrad has been waiting for a hearing for over 285 days; 

Mr. Steve Matthews has been waiting for a hearing for over 235 

days. 

Now, a concern that I express, but I do not intend to dwell on 

it, is that the regular order of the Senate cannot be maintained on 

the hearing schedule, illustratively, for Helene White. Her nomination date was April 15th. Her questionnaire was received on April 

25th. The FBI investigation started the same day, April 25th. Her 

ABA rating has not been received, and is not be expected prior to 

the hearing. 

With the hearing on May 7th, the hearing record would be open, 

customarily, 7 days until May 14th. The earliest mark-up, if there 

were no questions for the record, which there customarily are, 

would be May 15. The earliest mark-up, if there are questions for 

the record, would be May 22nd. The earliest mark-up, if no questions and held over for 1 week, would be May 22nd. There is scant 

time to confirm before we adjourn for Memorial Day. 

Now, that sequence I’ve gone into in a, believe it or not, abbreviated fashion to point up what the regular order is for this Committee to give due consideration to the qualification of a Circuit 

judge for a lifetime appointment. I don’t have to emphasize the importance of that position. 

Faced with not having confirmation or having a hurried confirmation, we Republicans will take a hurried confirmation. That’s 

only because we don’t have any realistic choice. But I don’t think 

it should pass without having it known for the record, and noted 

emphatically, that regular order is not followed. When you don’t 

follow regular order, there’s enormous potential to get into trouble. 

But I repeat: I do not object to this schedule. I don’t want to hear 

any reason to cancel this unsatisfactory schedule. Unsatisfactory as 

it is, it’s better than no schedule. 

I ask consent that a series of letters from Senator McConnell and 

me to the Leader and Chairman Leahy be made a part of the 

record, and I will only make a very brief reference to one. 

Senator CARDIN. Without objection, they will be made part of the 

record. 

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

Senator SPECTER. Dated yesterday from the Majority Leader to 

the Republican Leader and to me, where he notes that ‘‘No one presumed to instruct Senator Specter about the sequence of nominations during the years he served as Chairman of the Judiciary 

Committee.’’ Well, that’s true. No one did presume to instruct me 

because no one had any call to do so. 

I refer to only two illustrations. We had two Supreme Court 

nominations and I consulted in great detail with the Chairman of 

the Committee, with the Ranking—now Chairman, Senator Leahy, 

then Ranking—and meetings involving Senator Reid and Senator 

McConnell as well. The White House was insistent on having the 

hearing for Chief Justice Roberts begin on August 24th, insistent— 

a meeting in the living quarters of the White House attended by 

the President, the Vice President, and all the Republican leadership, and that was what was to be done. 

And I didn’t think it was a good idea to start a hearing in August 

for the Supreme Court, consulted with Senator Leahy, and began 

1293 

in regular order after Labor Day. On the confirmation of Justice 

Aleto, the White House insisted on having it done before Christmas. Without getting into the number of opinions and the details 

and the timing, it didn’t make sense. I consulted with Senator 

Leahy and it was scheduled after January. So, there’s no need to 

instruct Arlen Specter, serving as Chairman, as to what to do. 

There was total consultation with the Minority. 

On this schedule, there has been none, N-O-N-E. Just for the 

record, and let it be noted that the President personally told me 

after the confirmations of Chief Justice Roberts and Justice Aleto 

that the proper schedule was followed. 

Mr. Chairman, I’m delighted to proceed. 

Senator CARDIN. Thank you, Senator Specter. 

Without objection, Chairman Leahy’s statement will be made 

part of the record, with the opportunity to add some additional letters that would complete the letters that Senator Specter has entered into the record. 

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

Senator CARDIN. Let me just briefly comment that it seems like 

the Democratic leadership is criticized when it moves too slow or 

when it moves too fast. Yes, we are moving quickly, thanks to the 

cooperation of the two Senators from Virginia and the two Senators 

from Michigan. We are trying to move as quickly as we possibly 

can without compromising the appropriate Senate responsibilities 

on the confirmation process of judges to the Circuit Court of Appeals. We will move as quickly as we can, knowing full well that 

any member has certain prerogatives on both sides of the aisle. 

I just want to point out also, Senator Specter, for the record that 

we have confirmed, the U.S. Senate, three appointees to the appellate court that were objected to by Democrats. One was a very contested situation. The delay in the confirmation of that judge was 

as a result of the Republicans, who wanted additional time in order 

to try to get the necessary votes for confirmation. The strategy was 

successful. You were able to obtain the necessary support for an affirmative vote in the Committee and on the floor. 

In two other cases, one in which I chaired the hearing, there 

were objections, but no efforts made at all to delay the process. I 

again repeat the numbers. I think those who are watching this can 

judge by the performance. But I will point this out: there have been 

over 60 filibusters led by the Republicans this year. The most recent was the FAA, Federal Aviation Administration, reauthorization bill that’s on the floor of the U.S. Senate as we speak. 

We’re unable to bring it to a vote because the Republicans are 

using their prerogatives to require filibuster votes and the time to 

run on different procedural votes. This is not the first time, it’s 60 

times. I would say that the failure of us to act on the FAA reauthorization bill has real consequences on the safety of those who 

use our air traffic system. 

There has not been one filibuster on the floor of a judicial appointment. Not one. So I just think you should look at the way this 

has been handled. I’m a new member of the U.S. Senate, but I 

deeply respect the manner in which Chairman Leahy has exercised 

his responsibilities as Chairman in handling judicial nominations 

1294 

from this administration, and I think the record will speak for the 

fact that the Senate has carried out its responsibility. 

With that, I’m going to recognize, first, Senator Lugar to introduce one of our nominees. 

Oh. If I could just correct the record. I just want to correct one 

more thing in the record with Judge Agee. I just want to make it 

clear, I don’t know of anybody on our side that thinks you’re objectionable, so I just want to make sure—there’s not a scale here. We 

very much respect your background. I just want to correct that 

from Senator Specter’s point of view. 

Thank you. 

PRESENTATION OF WILLIAM T. LAWRENCE, NOMINEE TO BE 

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

HON. RICHARD LUGAR, A U.S. SENATOR FROM THE STATE 

OF INDIANA 

Senator LUGAR. Mr. Chairman, I bring good news to the Committee. My esteemed colleague, Senator Bayh from Indiana, and I 

have consulted about our nominee today, and we’re privileged to be 

here together to introduce an outstanding District Court nominee 

for the Southern District of Indiana, namely, William Thomas Lawrence. 

I would first like to thank the Senate Judiciary Chairman, Senator Pat Leahy, the Ranking Member, Senator Arlen Specter, and 

the presiding Chairman, Senator Ben Cardin, for holding this hearing today and for moving so promptly on this nomination. 

I am pleased that Bill is joined here today by his wife Jeanie, his 

daughter Kate Simons, and his brother Tony, who are right beside 

us here. 

Mr. Chairman, on December 18, 2007 the Senate voted to confirm the nomination of John Tinder to serve on the Seventh Circuit 

Court. John was a distinguished leader on the Indiana Southern 

District Court, and I know that his successor will need to possess 

the same degree of integrity and intelligence. Given this need for 

strong leadership, I was pleased to commend William Lawrence to 

President Bush for consideration. 

This selection was the product of a bipartisan process and reflective of the importance of finding highly qualified Federal judges to 

carry forward the traditions of fair, principled, and collegial leadership. 

I have known Bill for many years and I have always been impressed with his high energy, his resolute integrity, and his remarkable dedication to public service. 

William Lawrence attended Indiana University, where he received both his undergraduate and law degrees. He then entered 

private practice, but also devoted time to serve as a public defender 

in the Marion County, Indiana courts. Subsequently, he served 

part-time as a master commissioner for the Marion County Circuit 

Court. 

In 1996, Judge Lawrence was elected to the Marion County Circuit Court. In this position he built a reputation for fairness and 

efficiency. The Marion County Circuit is one of the busiest in the 

State of Indiana. In less than 3 years, Judge Lawrence reduced the 

number of pending cases by 20 percent. This impressive performVerDate Nov 24 2008 12:21 Apr 06, 2009 Jkt 047450 PO 00000 Frm 01304 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\47450.TXT SJUD1 PsN: CMORC
1295 

ance on the bench led to his appointment in 2002 to serve as a U.S. 

magistrate judge. 

Throughout his year, his reputation for personal courtesy, fairness, decency and integrity was equally well-earned and widespread among colleagues and opposing counsel alike on both sides 

of the political aisle. I am also pleased that Bill’s experience and 

professionalism were recognized by the American Bar Association, 

which rated him, by a substantial majority of the committee, ‘‘Well 

Qualified’’. 

I would like to thank, again, the Chairman for this opportunity 

to present William Lawrence to the Committee. I believe he will 

demonstrate remarkable leadership and will appropriately uphold 

and defend our laws under the Constitution. 

I thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Lugar. 

Senator Warner, if you don’t mind, I think we’ll hear from Senator Bayh next. 

Senator WARNER. Absolutely. 

Senator CARDIN. Senator Bayh? 

PRESENTATION OF WILLIAM T. LAWRENCE, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA BY HON. EVAN BAYH, A U.S. SENATOR FROM THE 

STATE OF INDIANA 

Senator BAYH. Thank you, Mr. Chairman. It is a privilege for me 

today to appear before this Committee, for several reasons. First, 

as Senator Specter will recall, my father served on this Committee 

for 18 years and loved the business of the Judiciary Committee, including the process of confirming judges. So, we have a great deal 

of respect in our family for the work you so ably do. 

Second, I’m just happy to talk about something other than the 

Indiana primary coming up next Tuesday. 

[Laughter.] 

The reason for that, is that we in Indiana care about, frankly, 

a lot more important things than politics, and one of them is ensuring that justice is dispensed here in our State and across our country. 

I regret, as both of you have outlined, the course of events over 

the last 30 or so years. Dick, I had the feeling we had wandered 

into the congressional equivalent of the ‘‘War of Roses’’ here today. 

But regardless of how all this started, we need to find a better path 

to get our way out of it. 

I want to publicly thank my colleague and friend, Senator Lugar, 

for the respect and the comity with which he has conducted this 

process. He reached out to me, consulted with me, asked me to do 

my own due diligence, and not surprisingly, I ended up reaching 

the same conclusions about the nominee that he did. 

Judge Lawrence has served our community in a variety of capacities, always intelligence, always with honor, and always with what 

we would call the highest standards of judicial temperament. He 

enjoys my full and unqualified support. I hope that perhaps the 

kind of cooperation that we have here and that our colleagues from 

Virginia apparently have can perhaps set a better example going 

forward. 

1296 

The final thing I would say, Mr. Chairman, just on a personal 

note, my first job out of law school was to be a law clerk in the 

Southern District of Indiana, where I hope Judge Lawrence will 

soon serve. As a young lawyer, I looked up to those judges. They 

were men not only who were learned, but tried to do right by the 

people who came before them, people like Judge Nolan, Judge 

Steckler, Judge Dillon. I have no doubt in my mind whatsoever 

that Judge Lawrence will serve in a similar capacity for the people 

of Indiana, and I am proud to come before you and second the high 

regard of our colleague, Senator Lugar. 

Senator CARDIN. We thank both of you for your introductions. 

Senator Warner. 

PRESENTATION OF G. STEVEN AGEE, NOMINEE TO BE U.S. 

CIRCUIT COURT JUDGE FOR THE FOURTH CIRCUIT BY HON. 

JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. Might I just say that I was very touched by the 

remarks of Senator Bayh on behalf of Senator Lugar. Senator 

Lugar is one of the great icons in this institution, and I, too, am 

privileged to enjoy his friendship and his confidence. To see the two 

Senators from the State of Indiana here joined on this, I think, is 

a clear indication of how this institution can, and often does, work 

in a truly bipartisan way. 

I am privileged to be joined by my colleague, Senator Webb, and 

had it not been for his concurrence in certain views on this, we 

would not be here today on behalf of this distinguished individual, 

Mr. Agee. 

I would also like to pay recognition to someone in the audience, 

Susan Magill. Susan was my administrative assistant for many 

years, but in total served in my office for almost 25 years of my 

30. She grew up with the nominee, and he and her late brother 

were law partners. She was the one to bring to my attention this 

outstanding nominee for the bench. 

Now, I want to ask unanimous consent to put my full statement 

in. 

Senator CARDIN. Without objection, it will be. 

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

Senator WARNER. I think that will cover the points, and I think 

that time is sliding by here. 

I also indicate that in my years here I’ve enjoyed support of the 

Chairman of this Committee in the nominations that I’ve made. 

I’ve had a hand in working with every single Federal judge now sitting in Virginia, and I would not have been able to achieve that 

without the cooperation of both the Democrats and the Republicans 

in seeking to get those nominations through. 

So, I thank Chairman Leahy, I thank my old friend, Chairman 

Specter, and indeed the presiding officer here today. I note that 

this is for the Fourth Circuit, and that the great State of Maryland 

is an integral part of the Fourth Circuit, so indirectly the Chair has 

a special interest in this nomination. 

1297 

I think we have come forth, Senator Webb and I, with an outstanding individual. He is joined by his lovely wife today. Nancy, 

would you stand? And their son, Zach. Thank you very much. 

This fine man has had an extraordinary career in the academic 

world, and indeed, I think I’ll get right to the point. He was a 

magna cum laude graduate from Bridgewater College in Virginia. 

He subsequently took his law degree at my school, the University 

of Virginia law school. His academic record at that school, I might 

add, was considerably better than mine, which indicates why he is 

there and I am here. 

Since his graduation from law school, he has been engaged in the 

legal community for 30 years. He found time to serve in the U.S. 

Army Reserve as a Judge Advocate General, rising to the rank of 

major. 

From 1982 to 1994, he was a member of the Virginia House of 

Delegates in the General Assembly. That’s our State legislature. 

Then, of course, in 2000, the General Assembly unanimously confirmed him for the Virginia Court of Appeals, and subsequently 3 

years later the General Assembly once again unanimously confirmed him to a seat on the Virginia Supreme Court. 

Mr. Chairman and members of the Committee, this is a very 

eminently qualified individual to serve America on the Federal Circuit Court, Fourth Circuit. 

Senator CARDIN. Senator Warner, thank you very much. 

Senator Webb. 

PRESENTATION OF G. STEVEN AGEE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE FOURTH CIRCUIT BY HON. JIM 

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

Senator WEBB. Thank you, Mr. Chairman and Senator Specter. 

It’s my pleasure to join with our senior Senator from Virginia in 

offering our support for this nomination. All of us are acutely 

aware of the vitally important role that the Constitution assigns to 

the Senate in this process and I am very grateful for the guidance 

and the cooperation that Senator Warner has shown over the past 

year and a half on these issues. We undertook a very careful and 

deliberate joint process in order to find the most qualified nominees, and this process involved a thorough records review and rigorous interviews which we conducted jointly. 

We, I think, are both of the opinion that Justice Agee not only 

met these standards, but exceeded them. He is on the joint list of 

recommended nominees that we submitted to the President last 

year and I am pleased that the President has chosen to respect all 

of the diligence and bipartisan work that went into this. 

Justice Agee is regarded as a jurist of superior intellect and judicial temperament who exhibits the highest degree of integrity and 

professionalism. I won’t repeat his qualifications. I would ask that 

my full statement be submitted as a part of the record. 

Senator CARDIN. Without objection. 

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

Senator WEBB. But I want to thank the Chairman and Senator 

Specter for this opportunity to come before you and for the expeditious way that you have moved, at least this nomination, through 

1298 

the process. I am very proud to be sitting with Senator Warner 

here, recommending this candidate. 

Thank you. 

Senator CARDIN. Well, let me thank all four of our colleagues. 

The way that you have handled these nominations, working together, putting partisan politics aside, makes it a lot easier for our 

committee and for the U.S. Senate. So, my applause to all four of 

you for what you’ve done for Indiana, for Virginia, and Senator 

Warner, you pointed out, it affects my State of Maryland. We very 

much appreciate the manner in which you have brought forward 

these nominations. 

Thank you. 

Senator SPECTER. Mr. Chairman, just a word of comment. Let me 

congratulate our four distinguished colleagues for their presentations. It is always a treat to hear Senator Lugar on any subject. 

Senator Lugar established a record in Indiana by being elected to 

a sixth term in 2006, but then he held the record which he’d established when being elected to a fifth term in the year 2000. So, it’s 

just one record after another. I saw your father yesterday, former 

Senator Birch Bayh, in the corridor. He looks like he stepped right 

out of your age bracket, Evan, fit and ready to go. He would pass 

as a brother, and not necessarily a younger brother. But he could 

be a brother. 

I compliment Senator Warner and Senator Webb for coming together. It’s been contentious. You worked it out, and it ought to be 

a model. It ought to be a model for the Fourth Circuit, which is 

so desperately in need of judicial manpower. It’s always a treat to 

hear Senator Warner. The problem is, we’re not going to be treated 

to it much longer. Senator Webb has already established himself in 

this body. But when you have Senator Lugar and Senator Warner 

on the podium on the same day, it’s a good day, notwithstanding 

one or two other problems which I’ve already mentioned. 

[Laughter.] 

Thank you. 

Senator CARDIN. Thank you all very much for your testimony. 

If I can now ask our nominees, Justice George Steven Agee, 

Judge William Thomas Lawrence, and Judge G. Murray Snow to 

come forward, and I will first administer an oath. If you would 

please remain standing, and we’ll swear you in under an oath. 

[Whereupon, the nominees were duly sworn.] 

Senator CARDIN. Thank you. Please be seated. 

We would welcome a brief opening statement in which we would 

hope that you would introduce your family that may be here today. 

We’ll start off with Judge Agee. 

STATEMENT OF G. STEVEN AGEE, NOMINEE TO BE U.S. 

CIRCUIT JUDGE FOR THE FOURTH CIRCUIT 

Judge AGEE. Thank you, Mr. Chairman. I am privileged to have 

with me today my wife Nancy and my son Zach, who Senator Warner introduced just a few moments ago, a number of other friends, 

including Susan McGill, who Senator Warner introduced, and some 

of my former law clerks. I’d like to take this opportunity to thank 

you, Mr. Chairman, for the opportunity to appear before the Committee. I appreciate the nomination from President Bush, and in 

1299 

particular I appreciate the confidence that’s been expressed in my 

by Senator Warner and Senator Webb. Last, I’d like to thank my 

family for standing by me through this. 

[The biographical information follows:] 

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Senator CARDIN. Thank you. 

Judge Lawrence. 

STATEMENT OF WILLIAM T. LAWRENCE, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF INDIANA 

Judge LAWRENCE. Mr. Chairman, thank you. 

First of all, I’d like to thank you and the Committee for the invitation to appear at this hearing this afternoon. I’d like to thank the 

President for this nomination. I would certainly like to thank Senator Lugar and Senator Bayh for their support and stewardship 

through this process. 

I would like to acknowledge and introduce, I guess, again, my 

family, who is here supporting me, including my wife Jeanie, my 

daughter Kate, and my brother Tony. I appreciate them being here 

this afternoon. 

Thank you. 

Senator CARDIN. Thank you. 

[The biographical information follows:] 

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Judge Snow. 

STATEMENT OF G. MURRAY SNOW, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA 

Judge SNOW. Mr. Chair, I, too, appreciate the Committee and 

you taking the time to consider my nomination. I’m thankful to the 

President for that nomination, and also to Senator Kyl and Senator 

McCain, especially under the circumstances of his health, appearing and presenting me today. 

Although I have a wife and children of whom I am very proud, 

they’re unable to be here today. I do have my brother-in-law with 

me, Keith Teel. I’m glad to have him here, and some friends from 

Phoenix, Anna Duran-Krauss and Tim Eckstein. 

Senator CARDIN. Well, we welcome you and we welcome your 

families and friends. Again, we understand that there is a tremendous sacrifice in serving in the public sector and the families have 

a huge part of that, and we thank you for the commitment that all 

of you have made. 

I just want to start off with a general question to each one of 

you. If you would comment briefly on your commitment to pro bono 

access to the legal system and your philosophy as it relates to those 

that otherwise could not afford a lawyer or a legal system as to 

what we as attorneys and the courts have responsibility to provide 

equal justice to our courts? 

[The biographical information follows:] 

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We’ll start with Judge Agee. 

Judge AGEE. Mr. Chairman, when I was in private practice I participated for all of my private practice years in the local Bar Association’s pro bono programs, which provided primarily domestic relations and bankruptcy services for the indigent. 

I also served throughout my career in private practice doing 

court-appointed work in the Federal system, which isn’t quite the 

same as pro bono, but it gave me a look both on the civil and the 

criminal side. 

As a member of the Supreme Court of Virginia, I’ve worked with 

my other colleagues on the court and the chief justice in trying to 

implement better pay conditions for those who represent the criminally indigent. We’ve been working on a system to provide a bank 

of attorneys and appellate cases for indigent and pro se civil litigants, and that’s a commitment, if I’m accorded the high privilege 

of serving on the Court of Appeals, that I would continue to carry 

on. 

Senator CARDIN. Thank you. 

Judge LAWRENCE. Mr. Chairman, thank you. As previously 

noted, I was a public defender in the Marion County criminal 

courts in the Major Felony Division for 9 years at the beginning of 

my practice. At that period of time the public defender office was 

my office. I handled cases as they came in, obviously from indigent 

clients. I was not only the trial attorney, but I was also the paralegal, the witness coordinator, the investigator, and the secretary. 

I think I was paid $5,700 back there in the mid-1970’s. I did that 

for 9 years, and probably over-stayed my welcome as far as my own 

practice was concerned. 

Thereafter and in the late 1970’s, I was part of a Bar Association 

task force, Pro Bono Task Force, if you will, that organized the Pro 

Bono Panel that is now in effect in Indianapolis, and has been for 

the last several years. So not only did I organize it, I was also a 

participant for many years, handling pro bono cases at either no 

fee or a reduced fee. 

Third, during my early years as a Circuit Court judge, a State 

court judge, if you will, in Indianapolis, I saw a need for a consolidated paternity court. I think it might have been the first, or one 

of the first, consolidated paternity courts in the Nation at that 

point. Essentially what we did, is we provided a forum to establish 

paternity and for essentially welfare individuals to come forward 

and try to collect support. 

At the beginning, we believed that we could maybe collect $30 

million. I’m happy to report that, in 2004, that court was directly 

responsible for putting $80 million of money into the pockets of single head-of-household custodial parents of children born out of wedlock, and I’m proud of that. 

Senator CARDIN. You should be. 

Judge Snow. 

Judge SNOW. Mr. Chairman, a substantial part of my private 

practice, when I was a private practice lawyer, was always dedicated to pro bono work. I received several awards from different organizations, including the Maricopa County Bar Association and 

the Arizona Association for Providers for Persons with Disabilities, 

1415 

for my pro bono work on behalf of various people and enjoyed that 

very much. 

I also believe that Maricopa County, the Phoenix area, and the 

Arizona court systems have done a lot with the Internet, with 

available resources in the courthouses so that litigants who can’t 

afford the services of a lawyer can, nonetheless, have the process 

to file and to bring about a lawsuit, explained to them in plain 

English, and help them step-by-step through the process. I’ve been 

a supporter of those efforts. 

The American Bar Association has just put out new rules, or canons, model canons, for judges and they’ve emphasized in their proposed model rules rule changes which would make it clear that 

judges that explain the process to pro-per litigants are not violating 

their responsibilities in any way. I’ve been involved in Arizona in 

adopting those new rules, and they’re currently proposed. 

Senator CARDIN. Well, thank you. I appreciate those answers. 

Judge Agee, in regards to existing precedents and judicial restraint, could you just share with me your philosophy of when you 

think it’s appropriate to overrule precedent to move in a different 

direction in the courts? 

Judge AGEE. Stare decisis is a foundational principal of our justice system and it is an obligation of members of the judiciary to 

follow the stare decisis in most all circumstances. 

In looking at my career as a member of the Supreme Court of 

Virginia and of the Court of Appeals of Virginia, I have followed 

precedent and looked at stare decisis as a very high principle that 

we are to follow. There have been a few occasions where we have 

overruled cases. Those are very rare cases, usually on very narrow 

points and where it can be determined that the prior decision was 

plainly wrong. But as a member of the Court of Appeals, if I’m accorded that privilege by the Senate, it would be my responsibility 

to apply the precedent as it is handed down from our Supreme 

Court. 

Senator CARDIN. Sometimes the plain meaning of a statute is difficult to determine. What standards do you use if you need to go 

beyond the language of a statute in rendering a judgment? 

Judge AGEE. In those circumstances there are canons of construction that judges use as part of the discharge of their duties. Hopefully the statute would have sufficient plain meaning that that 

would not be necessary, but there are canons of construction that 

judges use which may begin with simply going to a dictionary definition of terms. But those are fairly well laid out, and I think that 

in my opinions as a member of the Supreme Court of Virginia 

where those circumstances have been necessary, I have followed 

those. 

Senator CARDIN. One of those tools would be legislative intent. 

I’ve always wondered how judges determined legislative intent, because I’m not sure what we all mean when we pass the laws 

around here. Maybe Senator Specter has a different interpretation 

there. But when you try to interpret the intent behind statutes, 

how do you go about doing that? 

Judge AGEE. That’s often a very interesting question. Coming 

from my background, having served 12 years in the legislature, I 

suppose I have a way of looking at the separation of powers that’s 

1416 

more empirical than perhaps some members of the bench having 

been able to serve in that branch of government as well. 

At least on the State level, there are very rare circumstances 

where there would be any type of legislative history that we could 

use in terms of interpretation. I know that’s different on the Federal level to a certain extent. But in looking at plain meaning 

again, you would go back to canons of construction that may start 

from as simple a standpoint as going to dictionary definitions to interpret terms. 

Senator CARDIN. You do have the advantage of having served in 

the legislature and of serving in the judicial branch. There are 

times that there are direct conflicts between the executive branch, 

and the judicial branch, and the legislative branch. I guess my 

question to you is, what importance do you give to the independence of the judicial branch? 

What is an appropriate involvement with the executive branch? 

We have national security issues. We have a lot of issues around 

here in which the policies of this country become vitally important, 

but the independence of the judiciary has been tested, certainly, 

since 9/11. Would you just share with the Committee your views 

as to how the independent judiciary works in checks and balances 

with the executive branch, but still mindful of the awesome responsibility that each of us has to our Nation? 

Judge AGEE. Well, as a Virginian, I’ve always held in high regard 

our first Chief Justice, John Marshall, who was instrumental in 

our history in establishing the independence of the judicial branch 

as a co-equal branch of government. As a former legislator, I have 

deep respect for the separation of powers and see that the judiciary’s job, while it is an independent branch, our job is to apply 

the law as adopted by the Congress or the State legislature, as the 

case may be. There is a distinction between those two branches. 

As far as the relation with the executive branch is concerned, 

that’s a topic that has not often arisen that I can recall in my experience on the State court. 

Senator CARDIN. Well, at the national level, you’re correct, there 

would be more testing of the independence of the judicial branch 

as it relates to matters involving the Presidential powers, which is 

an area that we have had some disagreement within this Committee as to how far the legislative branch can go in regards to the 

powers of the President. 

I think that many of us here are very interested in maintaining 

the independence of the judiciary to make sure that the emotion of 

the moment does not cause permanent damage to our Constitution 

or to the powers of the different branches of government. If you 

could share a little bit more on this, I would appreciate it. 

Judge AGEE. The independence of the judiciary is fundamental in 

our system of government. It is the judiciary that becomes the 

basic, fundamental conservator of the rights that are in the Bill of 

Rights. That is a duty that I take very seriously, from the first moment when I took the oath of office as a judge in the Court of Appeals of Virginia, and that would carry through for the remainder 

of my career, particularly if I’m accorded the privilege of serving 

on the Federal Court of Appeals. 

1417 

Senator CARDIN. Thank you. I’m going to have some additional 

questions, but let me yield, if I might, to Senator Specter. 

Senator SPECTER. Judge Agee, on the issue of judiciary independence and the treatment of the expansion of executive authority, 

have you had any occasion in your career to take a look at the 

State Secrets doctrine? 

Judge AGEE. No, Senator, I have not. 

Senator SPECTER. Have you had an occasion to become involved 

in any way in any of the judicial review on the Foreign Intelligence 

Surveillance Act? 

Judge AGEE. No, Senator. That’s not been anything that’s come 

across my duties in Virginia. 

Senator SPECTER. On your State court duties, have you had any 

activities with respect to habeas corpus? 

Judge AGEE. Yes, Senator. We have a fairly significant habeas 

corpus docket. 

Senator SPECTER. What is your evaluation of the importance of 

habeas corpus, the so-called—emanating from the Magna Carta in 

1215. It was a way of ensuring that there is sufficient evidence to 

warrant detention of individuals to await trial? 

Judge AGEE. Habeas corpus has a long and distinguished history 

in our system of justice. It is a process that has been with us 

through the centuries and was foundational when our Constitution 

and the Bill of Rights were adopted in this country. On the Supreme Court of Virginia, we have a significant amount of our staff 

that’s devoted to the review and assistance to the justices in habeas cases. It’s something that we take very seriously and devote 

a fair amount of attention to. 

Senator SPECTER. Well, those are all major issues. On the Fourth 

Circuit, you’re in a very key position to rule on those matters. A 

great many of those cases come before the Fourth Circuit, perhaps 

because they originate in the Northern District of Virginia, finding 

their way to that Circuit. It is a tough job balancing security interests versus executive authority. What we have seen since 9/11 is 

a very substantial increase in executive authority. 

I think an increase of executive authority has been necessary to 

deal with terrorism, which is a major problem which confronts us 

right up to this moment in the United States as well as in the reports of Al Qaeda involvement and the attempted assassination of 

the leader of Afghanistan. But there have to be—there have to be— 

limits and there have to be balances, and we have not yet had a 

determination as to whether the President was right in taking the 

position that his constitutional authority under Article 2 superseded the legislation of the Foreign Intelligence Surveillance Act. 

There is no determination as to whether the President was right 

in ignoring the National Security Act of 1947 in not informing the 

Intelligence Committees of the Terrorist Surveillance Program. So 

I call those matters to your attention as very, very major items to 

be considered. I will not go into the State Secrets doctrine, but 

there may well be legislation, if it can overcome a Presidential veto, 

which will give the courts a balancing say in what is a legitimate 

state secret and what is not. I would encourage you, and Federal 

Judge-to-be Lawrence, and Federal Judge-to-be Snow, your records 

are very strong, but I do not want to make any predictions that 

1418 

could get you into trouble. But I think your confirmations are very 

highly likely at that time. 

But I commend to you this issue of strength on the judiciary, on 

maintaining a check and balance. Congress has been totally ineffective at doing the job. Right now we’re in the midst of reauthorization of the Foreign Intelligence Surveillance Act and the issue is 

immunity for telephone companies. Well, I think the telephone 

companies have been good citizens and I think they ought to be 

protected, although I have to tell you that, for the record, nobody 

knows exactly what they’ve done. 

In a sense, Congress is being asked to give a pig-in-a-poke immunity without knowing what we’re immunizing. Those of us in key 

positions have some information. I think it is important for the 

government to have cooperation from the telephone companies, but 

that can be maintained on an amendment which would substitute 

the government as the party defendant so the courts are not closed 

and the telephone companies are protected. But I urge you to 

weigh that very, very heavily because the beauty of America is our 

ability to maintain civil rights, at the same time protecting our security. 

Senator Brownback has arrived and he is my replacement here, 

so I’m going to be moving on to other duties. I wanted at least one 

Republican here to guard you against the Chairman. 

[Laughter.] 

Against whom you need no guarding. But as a matter of protocol, 

there ought to be a member of the Minority here at all times. 

Senator Brownback. I just want to thank the Senator for his confidence. 

[Laughter.] 

Senator SPECTER. It is total, and it is well placed. 

I leave you with one question for the three of you, on the answer 

I know. In 1982, I was joining Senator Thurmond, who was Chairman of the Judiciary Committee, on the confirmation of two Pennsylvania Federal District Court judges. Senator Thurmond asked 

the two of them in unison, ‘‘If you are confirmed, do you promise 

to be courteous?’’ That’s South Carolina for, ‘‘If you’re are confirmed, do you promise to be courteous?’’ I thought to myself, that’s 

not exactly a hard-hitting question. What do you expect them to 

say? Both replied, ‘‘Yes.’’ Then Senator Thurmond went on to say, 

‘‘If you’re confirmed, the more power a person has, the more courteous a person should be.’’ The more power a person has, the more 

courteous a person should be. 

Whenever I participate in one of these confirmation hearings— 

Senator Thurmond is not around—I ask his question. Years later— 

decades, as a matter of fact—nominees have approached me and 

have said, I was really impressed by the Thurmond question that 

you asked because that black robe is the guard-all shield in front 

of the rest of the world when you’re presiding. All those litigants 

have problems, all those lawyers have problems. Courtesy is something that cannot be overly exercised. There may be, just conceivably, some occasion when you’re out of sorts someday and you 

might be inclined to be a little tougher on somebody before you. Remember Strom Thurmond. 

Thank you, Mr. Chairman. 

1419 

Senator CARDIN. We won’t require you to answer that because 

you’re under oath. 

[Laughter.] 

Senator Brownback? 

Senator Brownback. Thank you very much, Mr. Chairman. I 

want to thank Senator Specter, too, for the thoughts and his courage that he’s shown to all of us, and is showing us again. 

Gentlemen, thank you very much for being here. 

I mostly wanted to come over to thank the Majority for moving 

these forward. I was presuming that Senator Leahy would be here, 

but that’s fine. My good friend, Senator Cardin, I know can receive 

this as well. But thank you for moving these forward. I know it— 

Senator CARDIN. We sort of heard that from Senator Specter, but 

he put a couple of different twists in it. 

Senator Brownback. Yes. Well, I’m going to leave that for whether you move any more. But these, we’re very happy that we’re finally getting some moving on forward. I know several of you have 

waited for some lengthy period of time. 

I also want to thank your families that I know are here. I wasn’t 

here for the introduction. But these are family affairs. I mean, 

when you go into this, the family goes onto the bench, too. Everybody has their different activities, but it’s all part of the family 

now, and it’s part of the family lineage, too. It’s a beautiful thing 

to go into these family records and you can see somebody was a 

judge, a Federal judge, a Circuit Court judge. I mean, that’s really 

is something significant for a family tree to have. So, I congratulate 

you and I thank the family members that are here for being a part 

of this as well. 

I don’t have any hard-hitting questions. I looked briefly at the 

papers here. I do think, just as a very quick admonition, like what 

Senator Specter was saying, it is an amazingly important position, 

being a judge in this society. When you consider that here the people rule, and then all of a sudden in this system when we get a 

dispute, how do we get that resolved? The people rule here. Well, 

you can’t just kind of, well, let’s get all the people together and 

we’ll have them vote on this. That doesn’t quite work. 

So, well, let’s empower somebody. Well, who do we empower? 

Well, we’ve got to empower somebody we really trust here to resolve this, that the people will trust within the system, because 

there’s not enough law enforcement to go around. If the people decide they don’t start trusting the system, things don’t work. You 

are one of the key areas of resort to justice. You are the key area 

of resort to justice that the people have. 

That question of courtesy, I think is actually a pretty good one, 

because you’re going to be in a position where you could get up, 

and get up on the wrong side of the bed, and maybe not have your 

second cup of coffee before you’re going out, and you’ve got a full 

docket and you’re maybe kind of cranky that day. Just, I would 

hope one would remember that the people have entrusted you with 

this incredible position in this society and that it’s like we are. 

We’re entrusted with an incredible position in this society. I just, 

every day, wake up really happy that I get to be in this sort of job, 

and I hope you can look at it as well and treat people with courtesy 

and respect, and I also might add, a big dose of humility. My view 

1420 

is, the further up you get called in these systems, the more humility I think a person needs to have, because you’ve just got to realize we aren’t the be-all and end-all. While we’ve got these great positions, there’s a whole bunch of people beside us and behind us 

and just a good dose of humility is, perhaps, one of the best things. 

I had a businessman that I thought had the greatest thought 

that somebody in public office can’t use. But he said, you know, in 

business, we really don’t know anything about the future. We don’t 

know anything. We’re kind of looking at probabilities of what’s 

going to happen, and you’re trying to project and make the best decision you can for your company. 

Well, you’re going to have a lot of facts in front of you, but you’ve 

just got to have a lot of wisdom with those items that come in front 

of you. Going on a Circuit Court where you’ve got a precedent-setting body, even more so. It affects a whole bunch of people in this 

country, and around the world. I always think just a big, good dose 

of humility is one of the best things, just to realize I need a lot of 

help to be able to figure this stuff out and to rely on that help and 

assistance that’s around. 

Mr. Chairman, thank you again for moving these nominees forward on the hearing. We really appreciate that, and I hope we can 

get you confirmed through the full Senate. Godspeed to you. 

Senator CARDIN. Thank you, Senator. I join you and Senator 

Specter in your observations on the importance of judicial temperament and courtesy. 

Judge Agee, I have just a couple more questions, if I might. The 

Fourth Circuit has the largest number of African-American citizens 

of any circuit in the Nation. It was the last Circuit to be integrated 

as far as the judges’ appointments. It wasn’t until President Clinton’s recess appointment of Judge Roger Gregory in 2000 that the 

Fourth Circuit finally had an African-American judge. 

Given the history, I think it’s particularly important that this 

Circuit’s sensitivity to minority rights, and the rights of all the citizens, are represented on the Court of Appeals. 

My question is somewhat related to a 1990 op-ed that you wrote 

in the Roanoke Times, commenting on the Virginia Employment 

Commission’s ruling that gave extra weight to minority employment applicants in which I believe you expressed disdain for use 

of a system that adjusts the score solely on the basis of race. You 

used the comparison to a plot of George Orwell’s 1984. 

My question to you, and you can certainly go beyond affirmative 

action, but I am interested in your views as to the appropriateness 

of affirmative action and the matters that are attempts to make 

sure that all citizens of our State are included in all aspects of our 

society. At times, it’s up to the courts to help in that regard. 

Judge AGEE. Thank you, Senator. The obligation of an appellate 

judge, and mine if I’m accorded the privilege by the Senate to serve 

on the Court of Appeals, is to apply the precedent. That is what 

I have done as a member of the Supreme Court of Virginia, and 

would continue to do if accorded that opportunity. 

I have been privileged to serve on two courts that have a wide 

diversity in terms of age, gender, geography, and race. I think that 

has enriched my experience as a member of the judiciary. In the 

approximate same period of time, I was the author of a floor 

1421 

amendment in the General Assembly of Virginia that passed the 

legislature, indicating to the Supreme Court that they should adopt 

judicial canons that prohibited judges from belonging to any discriminatory club or organization. 

The concern that I think was raised in the op-ed piece that you 

referenced was not so much that the activity was done, but it was 

done without the knowledge of other parts of government so there 

was no opportunity for input from the legislative branch, for instance. 

Senator CARDIN. Well, I appreciate that answer. That clarifies 

that for me, and I thank you for that because practices have been 

upheld by the courts to try to deal with diversity. There has been 

some erosion, many of us think, over recent years. But it is important that the courts are prepared to enforce our laws, and I thank 

you for that response. 

There was one part of your questionnaire that I want to give you 

a chance to clarify for the record, if you would, and that’s your 

membership in the Shenandoah Club, which is Virginia’s oldest 

continuously operated private club. In your Senate questionnaire, 

in response to a question about whether you ever held membership 

in an organization that discriminates on the basis of race, sex, or 

religion, you answered that the Shenandoah Club ‘‘probably discriminated, in fact, during the time I was a member.’’ Although you 

resigned from this club in 1987, which is several years ago, you 

held membership in the club for 8 years prior to your resignation. 

I just want to give you a chance to clarify or add to the record 

in regards to your membership in that organization. 

Judge AGEE. I think what is stated on the questionnaire is accurate. I think, in fact, the club probably did have discriminatory 

policies during that period of time, and after a period of time I resigned. 

Senator CARDIN. Were you aware that the club discriminated 

when you joined the club? 

Judge AGEE. I can’t recall if I had specific knowledge of that. 

Certainly as time went on, it seemed more likely than not that that 

occurred. After some period of time, I resigned. 

Senator CARDIN. What was the reason that you resigned? 

Judge AGEE. There were a multitude of reasons, and lack of 

openness to the full community was one of them. 

Senator CARDIN. Thank you for that response. 

Judge Lawrence, if I could ask you a question about one point 

in your background. You, in 2002, responded in the Indianapolis 

Star that you were looking forward to working in a Federal court 

as opposed to a State court. You said, ‘‘The administration of a 

State court often gets caught up in partisan politics.’’ I thought 

that was an interesting comment. 

Could you just, perhaps, clarify for us how you see being a Federal judge, following on Senator Specter’s point where you’re going 

to be called upon to judge, the appropriateness of executive actions, 

which clearly could be interpreted to have some partisan aspect to 

it? Right now, again, we’re struggling with executive power during 

extraordinary times. If you could just help clarify for us your view 

as to the politics of being on the Federal bench. 

1422 

Judge LAWRENCE. Well, I don’t think there is politics. I think 

when you are a judge—and in all candor, any type of judge—that 

you pretty much leave your agenda at the front door. I think part 

of the responsibilities of a judge is to provide a canvas that the 

lawyers can try their case. A judge’s ideology, preferences, dislikes 

play no part in the decisionmaking process that a judge must 

render. 

Senator CARDIN. And I don’t want to get into too much detail 

about your home State, but I take it you do not find that comfort 

level at the State level? 

Judge LAWRENCE. The judges in Marion County, Indiana were 

elected on a strictly partisan basis. We ran in primaries, we attended local political functions, and such as that. We also had to 

raise money, which I was very vocal about not particularly caring 

for. Clearly, the people we were running—we were asking for 

money were the very people that were going to be appearing in 

front of us after the election. I thought that was very distasteful 

and I was very vocal about my opposition to that. 

Senator CARDIN. I appreciate that. I think that clarifies it, and 

I thank you very much for that. 

Judge Snow, I wanted to go back to one of the articles that you 

wrote in 1986. I know that’s a long time ago, but it just brings up 

an issue for me that I find interesting. 

This is criticizing a 1984 California decision that decriminalized 

public employee strikes. You said something that I just would like 

to have you at least clarify for me. You said, ‘‘A court should not 

merely consider whether legitimate rights are unduly abridged, but 

whether the court is capable of realistically fashioning remedies for 

their deprivation.’’ 

Then you go on, ‘‘When, as in this case, granting such rights will 

require constant judicial supervision over an area in which the judiciary has little experience and in which the judiciary’s role is not 

practically limited by legislation, the remedy may be worse than 

the injustice.’’ 

I just thought that was an interesting comment. Again, I know 

it was written in 1986. I’d just like you to clarify for me. It seems 

to me that some of the most dramatic court decisions dealing with 

the rights of the disabled, dealing with integration of our schools, 

dealing with the protection of constitutional rights, were decisions 

that were extremely difficult to implement and we still haven’t gotten that right. 

So I just want to give you a chance, if you might, to clarify a 

statement that was written over 20 years ago, if you still remember 

that statement. 

Judge SNOW. Thank you, Mr. Senator. I don’t remember the 

statement, but I certainly don’t disavow it. I’m sure, as a secondyear law student, I wrote it. That is—and I still believe that if I 

am fortunate enough to be nominated—and I guess over the course 

of years I’ve had some experience. If I’m fortunate enough to have 

my nomination confirmed, I’ll be in a District Court capacity. I 

guess I still do hew to that statement in this respect. It is occasionally the case that a judge who oversteps his bounds can do more 

damage than he does good if his remedy sweeps more broadly than 

the harm. 

1423 

Certainly you’re correct, that many times—and there are instances in our history where a broad remedy has been required. We 

still have a hard time implementing that. The advantage you get 

in being in a District Court is usually you’re presented with a single problem and you can, I hope, as a judge find a single solution 

to that problem that fits the problem and doesn’t overstep the judicial bounds, while at the same time meeting the requirements of 

the law. 

Senator CARDIN. Well, I thank you for that clarification. I will 

point out that some of the most far-reaching decisions have been 

reached by District Court judges. 

Judge SNOW. That’s true. 

Senator CARDIN. So you are going to be confronted with the issue 

of implementation of a judicial order, which may not be easy, it 

may be difficult to determine, but the overriding constitutional 

issues may require you to seek a remedy that the legislature and 

the executive branch have not done. So, I don’t think you can avoid 

this. I’d just urge you to be passionate about the Constitution. 

Judge SNOW. Thank you. I will do my best. 

Senator CARDIN. Thank you. 

Senator Brownback, anything further? 

Senator Brownback. Yes, if I could, Mr. Chairman. One more just 

for Judge Agee, if I could. 

You were asked about your membership in the Shenandoah 

Club. I was curious, and I appreciate your actions that you took 

after that. Are there any other actions you’ve taken to show commitment to equality for all people in the various positions or social 

activities you’ve been involved in? 

Judge AGEE. Thank you, Senator, for the question. During my 

time in the General Assembly of Virginia, I introduced an amendment to a particular piece of legislation that dealt with the judicial 

canons with respect to judicial membership in discriminatory clubs. 

That was about 1990 or 1991. I had the privilege, during my private practice, to represent some plaintiffs in race discrimination 

cases. 

I think my record on the Supreme Court of Virginia and on the 

Court of Appeals of Virginia demonstrates my commitment to equal 

access and equal opportunity to present the case before the court. 

I’ve had a long private involvement with a number of charitable organizations that deal with wide segments of society. 

I’ve been on the Board of Directors of the Free Clinic in the Roanoke Valley for over 20 years that serves a large economically disadvantaged group of folks. I’ve been very active with my Rotary 

Club for over 25 years in all of the community activities it undertakes. I’ve been a member of the Board of Trustees of my undergraduate college now for over two decades, and we have also taken 

significant action with respect to increasing the diversity of the student body at the school, and also the diversity of the faculty. 

Senator Brownback. Thank you very much. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator. 

A couple final points from me. That is, Judge Agee, the Miranda 

rights decision, you have been critical about. I want to give you a 

chance, if you might, to express your views as it relates to the 

1424 

courts’ requirements in regards to Miranda rights for criminal defendants. 

Judge AGEE. I have always applied the precedent set by the Supreme Court of the United States in my decisions as a member of 

the Supreme Court of Virginia and the Court of Appeals of Virginia. I can’t recall any particular instance of criticism of Miranda. 

In particular cases there may be fact-driven instances that may 

stand out for peculiar treatment, but I’ve always accorded the decisions of the Supreme Court the precedent that they’re due in my 

judicial decisions, and would continue to do so if accorded the privilege of sitting on the Court of Appeals. 

Senator CARDIN. Thank you. 

My staff has informed me that you have been critical at times 

of the Attorney General of Virginia on giving the advice that the 

Governor always wanted rather than independent advice. I take it 

from that, it’s a good sign of what Senator Specter was talking 

about as far as the independence of the judiciary. We’ve had some 

problems with the secret opinions given by the Attorney General to 

the President, which has been the basis of what we call secret 

laws, allowing the President certain powers that we don’t know 

about, no one knows about, because these are opinions that are 

classified and are never brought to light. 

I would hope that the judicial branch of government would be 

sensitive to the legitimate needs of the President and the executive 

branch to conduct affairs of this country during very extraordinary 

times, but that we have a Constitution for a good reason. The need 

for openness is very important. I was impressed, Judge Agee, with 

your view on the affirmative action decision, that it was not a 

transparent process. I agree with you, it should be a transparent 

process. 

People should know what is going on and have a chance to review it. But that also holds for executive power. I would hope that 

the responses that you’ve given today are an indication of each of 

your commitments to the independence of the judicial branch of 

government, and to do what is right under our Constitution, not 

just because one branch or another, whether it’s the legislative 

branch or the executive branch, believes it’s right, although I certainly hope you would uphold any statute that I happen to be the 

sponsor of. 

Senator Brownback, any further questions? 

Senator BROWNBACK. I don’t think so. Thank you, Chairman. 

Senator CARDIN. Let me point out that the record will remain 

open for written questions that may be propounded by members of 

the Committee to you, and we would ask that you try to get those 

responses back as quickly as possible, if questions are propounded, 

so that we can schedule action on your nominations as soon as we 

can get all that information together. 

If there are no further questions, the Committee will stand adjourned. Thank you all very much. 

[Whereupon, at 3:34 p.m. the hearing was adjourned.] 

[Submissions for the record follows:] 

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474501.331
1444 


474501.332
1445 


474501.333
1446 


474501.334
1447 


474501.335
1448 


474501.336
1449 


474501.337
1450 


474501.338
1451 


474501.339
1452 


474501.340
1453 

Æ 


474501.341