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73–675 PDF 2012

S. Hrg. 112–527 

NOMINATIONS OF MARK A. ROBBINS AND ROY 

W. MCLEESE III 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

NOMINATIONS OF MARK A. ROBBINS TO BE A MEMBER, MERIT SYSTEMS PROTECTION BOARD, AND ROY W. MCLEESE III TO BE AN ASSOCIATE JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS 

MARCH 6, 2012 

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

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JERRY MORAN, Kansas 

MICHAEL L. ALEXANDER, Staff Director 

KRISTINE V. LAM, Professional Staff Member 

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

the Federal Workforce, and the District of Columbia 

CHRISTINE K. WEST, Counsel, Subcommittee on Oversight of Government Management, 

the Federal Workforce, and the District of Columbia 

BRYAN G. POLISUK, Counsel, Subcommittee on Oversight of Government Management, 

the Federal Workforce, and the District of Columbia 

NICHOLAS A. ROSSI, Minority Staff Director 

JENNIFER L. TARR, Minority Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk 

LAURA W. KILBRIDE, Hearing Clerk 

(III) 

C O N T E N T S 

Opening statement: Page 

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

Prepared statement: 

Senator Akaka .................................................................................................. 15 

WITNESSES 

TUESDAY, MARCH 6, 2012 

Mark A. Robbins to be a Member, Merit Systems Protection Board .................. 3 

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

Columbia ............................................................................................................... 8 

Roy W. McLeese III to be an Associate Judge, District of Columiba Court 

of Appeals ............................................................................................................. 9 

ALPHABETICAL LIST OF WITNESSES

McLeese III, Roy W.: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 38 

Biographical and financial information .......................................................... 39 

Norton, Hon. Eleanor Holmes: 

Testimony .......................................................................................................... 8 

Robbins, Mark A.: 

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

Prepared statement .......................................................................................... 17 

Biographical and financial information .......................................................... 20 

Letter from the Office of Government Ethics ................................................. 26 

Responses to pre-hearing questions ................................................................ 27 

APPENDIX 

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

statement .............................................................................................................. 60 

(1) 

NOMINATIONS OF MARK A. ROBBINS AND 

ROY W. MCLEESE III 

TUESDAY, MARCH 6, 2012 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:53 p.m., in room 

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

presiding. 

Present: Senator Akaka. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Let me apologize. As you know, we had two 

votes and the vote is still going on. I am the first name. So I was 

able to vote and run. [Laughter.] 

Good afternoon and welcome, everyone. This hearing will come to 

order. 

Today, the Committee on Homeland Security and Governmental 

Affairs meets to consider the nomination of Mark Robbins to be a 

Member of the Merit Systems Protection Board (MSPB). On the 

second panel of today’s hearing, we will consider the nomination of 

Roy McLeese III to be an Associate Judge of the D.C. Court of Appeals. I would like to extend a warm welcome to both of these 

nominees, and I look forward to their testimony today. 

Mr. Robbins has spent most of his professional career in Federal 

service and has significant experience with Federal personnel 

issues. From 2001 through 2006, he served as General Counsel of 

the Office of Personnel Management (OPM) where, among other 

duties, he was responsible for determining whether OPM should intervene in or seek reconsideration of board decisions. 

Mr. Robbins currently serves as General Counsel at the U.S. 

Election Assistance Commission, an independent, bipartisan commission established under the Help America Vote Act of 2002 to 

improve voting systems and voter access across the country. 

Mr. Robbins received his undergraduate and law degrees from 

George Washington University. 

I would like to thank Mr. Robbins for his public service and his 

focus on Federal workforce issues. 

I had a nice visit with Mr. Robbins, and I understand, Mr. Robbins, that your parents, Neal and Janet Robbins, are here and have 

traveled all the way from Arizona to be with us today. I want to 

give you the opportunity to acknowledge them and any other 

2 

friends and family present at this time. Will you please do that, 

Mr. Robbins? 

Mr. ROBBINS. Thank you, Mr. Chairman. 

I would like to recognize my parents, Neal and Janet Robbins. 

They have been supportively behind me my entire life. So it is fitting that they are literally, and figuratively, behind me this afternoon. [Laughter.] 

Senator AKAKA. Thank you very much. Aloha again and welcome 

to you, your family, and your friends. I am happy to see so many 

here today. 

The Civil Service Reform Act of 1978 created the Merit Systems 

Protection Board to protect merit system principles and prevent 

unfair practices in the workplace. In addition to appeals of alleged 

prohibited practices and adverse actions, the Board hears cases 

under the Whistleblower Protection Act, the Hatch Act, the Veterans’ Employment Opportunity Act, and the Uniformed Services 

Employment and Reemployment Rights Act (USERRA). 

I believe that the position to which Mr. Robbins has been nominated is among the most important in the Federal Civil Service, 

and I look forward to hearing his views on the many important 

issues affecting the Federal workforce. 

At a time when Federal employees are under-appreciated and 

often disparaged, it is important to take this opportunity to recognize the critical work they do, securing our nation, keeping our food 

safe, caring for wounded warriors, and many other critical tasks. 

These dedicated individuals are among this country’s greatest assets. To provide the best possible service to the American people, 

Federal employees must be able to serve in a workplace without 

fear of discrimination or undue influence. 

Mr. Robbins, if you are confirmed, I expect you to be a strong advocate of the merit system and Federal employees’ rights. You have 

significant experience in this area, and I am hopeful that you can 

make a difference. 

One of the most important functions of the Board is to protect 

the Federal whistleblowers from illegal retaliation. As a sponsor of 

the Whistleblower Protection Enhancement Act, I believe it is vital 

that Federal employees be able to report waste, fraud, and abuse 

without fear. Whistleblowers are essential to accountable, fiscally 

responsible government. 

Last year, according to the Department of Justice, private sector 

whistleblowers reporting fraud against the government were responsible for nearly $3 billion recovered by the government in civil 

cases, but Federal employees who blow the whistle simply do not 

receive the protections they need at this time. I am hopeful that 

Congress will finally pass my bill so Federal employees and taxpayers will have these protections. 

Other responsibilities of the Board include reviewing OPM regulations and conducting studies on the merit systems. I understand 

that the Board is currently conducting studies on important issues 

such as implementing effective telework programs in the Federal 

Government, the importance of protecting against stereotyping of 

and discrimination against women in the Federal workforce, and 

an explanation of each prohibited personnel practice under the law 

with real-world examples. 

3 

1The prepared statement of Mr. Robbins appears in the Appendix on page 17. 

Again, I look forward to Mr. Robbins’ testimony here today. 

Mr. Robbins has filed responses to a biographical and financial 

questionnaire and answered pre-hearing questions submitted by 

the Committee. Without objection, this information will be made 

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

Committee office. 

Our Committee rules require that witnesses at nomination hearings give their testimony under oath. Therefore, I ask you to please 

stand, Mr. Robbins, and raise your right hand. 

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

truth, so help you, God? 

Mr. ROBBINS. I do. 

Senator AKAKA. Thank you very much. 

Let it be noted for the record that the witness answered in the 

affirmative. 

Mr. Robbins, please proceed with your statement. 

TESTIMONY OF MARK A. ROBBINS 1 TO BE A MEMBER, MERIT 

SYSTEMS PROTECTION BOARD 

Mr. ROBBINS. Chairman Akaka and Members of the Committee, 

I appreciate this opportunity to present my qualifications and respond to your questions regarding my nomination to be a Member 

of the U.S. Merit Systems Protection Board. I do have a few brief 

opening remarks and a longer statement for the record, with your 

permission. 

I want to thank the President of the United States for the privilege and honor of this nomination; I want to thank Senator Mitch 

McConnell for his recommendation to the President; and I want to 

thank Senator Susan Collins for her early and very gracious support. If confirmed, I will carry out my responsibilities with the 

highest degree of professionalism and integrity. 

As an historian by both education and avocation, I am particularly pleased to be nominated to a position once occupied by a 

young Theodore Roosevelt, who served as then-U.S. Civil Service 

Commissioner from 1889 to 1895 under Presidents Benjamin Harrison and Grover Cleveland. 

As he wrote to a friend upon assuming his duties in 1889, ‘‘I 

have pretty hard work and work of a sometimes rather irritating 

kind; but I am delighted to be engaged in it. I intend to hew the 

line and let the chips fall where they will.’’ 

And Mr. Chairman, I think we can agree that the chips fell well 

for Theodore Roosevelt. 

The future President brought to this position a passion for and 

dedication to a spoils-free, merit-based Federal Civil Service. However, he brought little in the way of practical experience with the 

Federal workforce. 

Like the colleagues I hope to join, Chairman Susan Grundman 

and Vice Chairman Anne Wagner, and the member I would succeed, Mary Rose, I bring to the MSPB a career of experience with 

the issues I will face, if confirmed. 

4 

Mr. Chairman, as your kind introductory remarks highlighted, 

with my career, I have been involved with Federal Civil Service 

issues most of my adult life, going back almost to the passage of 

the Civil Service Reform Act in 1978. I began covering Civil Service 

issues as a young staffer for the House of Representatives and did 

two stints with the White House Office of Presidential Personnel. 

And I was very privileged and honored to serve 5 years as General 

Counsel at the U.S. Office of Personnel Management. 

The next few years are going to be an exciting time to serve at 

the MSPB. The last Congress passed updates to the Uniformed 

Services Employment and Reemployment Rights Act. 

Mr. Chairman, I know the importance, we have discussed together the importance, you place in enhancing Federal whistleblower protections. I note that both this Committee and the House 

Oversight and Government Reform Committee have passed 

versions of the Whistleblower Protection Enhancement Act. I am 

also aware that the Office of Special Counsel has proposed legislative initiatives to update the Hatch Act. 

My previous experiences with these and other relevant issues 

have either been as an attorney advisor or in public policy and Administration positions. I fully understand that, if confirmed, I will 

be taking a new and unique role as an impartial, objective adjudicator. I believe I am qualified for that responsibility, and I am excited at the possibility. 

During this confirmation process, I have been asked several 

times whether I bring to public service generally, and this appointment specifically, a governing philosophy. And I do. 

No one states it better than then-President Theodore Roosevelt 

in 1909 when he wrote, ‘‘The national government should be a 

model employer. It should demand the highest quality of service 

from each of its employees, and it should care for all of them properly in return.’’ 

The MSPB is a modern, necessary component of that philosophy, 

and I am honored to be considered for appointment to it. 

Before concluding, I would like to thank those who have assisted 

me in this process—my parents, the rest of my family, friends, and 

colleagues who have given me advice and moral support. And I am 

very appreciative of the shepherding process work that the staffs 

at the White House, in the Senate, and at the MSPB have done on 

my behalf. 

Mr. Chairman, I want to thank you again for this opportunity, 

and I look forward to responding to any questions the Committee 

may have. 

Senator AKAKA. Thank you very much for your statement. 

I will begin with the standard questions that this Committee 

asks of all nominees. 

Is there anything you are aware of in your background that 

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

which you have been nominated? 

Mr. ROBBINS. No, sir. 

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

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

nominated? 

5 

Mr. ROBBINS. No, sir. 

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

duly constituted committee of Congress if you are confirmed? 

Mr. ROBBINS. Yes, sir. 

Senator AKAKA. Thank you very much for your responses. 

Mr. Robbins, please discuss how your experience in Federal service, and in particular as General Counsel at the OPM, will assist 

you as a member of the Board if you are confirmed? 

Mr. ROBBINS. Thank you, Mr. Chairman. As I alluded to in my 

opening remarks, I do have a lifelong career of experience with 

Federal Civil Service issues. I think that is important because it 

will allow me to assume my responsibilities without a learning 

curve. I am going to be dealing with them now from a slightly different angle than I have in the past, but the issues remain the 

same. 

I have been out of Federal Civil Service issues and policy for 

about 4 or 5 years, but it will not take me long to get back up to 

speed on the issues that face the Federal Civil Service as an institution and the MSPB as an agency. 

As you mentioned in your opening remarks, one of the responsibilities I had as General Counsel at OPM was to coordinate the 

agency’s Title V, Chapter 77 statutory rights to intervene in and 

seek reconsideration of MSPB decisions. I had a wonderful staff 

that helped me with that, and it was one of the more enjoyable exercises of responsibility I had at OPM. It is a little like playing a 

mini solicitor general, deciding where OPM is going to intervene 

and seek reconsideration. 

We do so, or OPM does so, if two criteria are met. The first is 

that the issues being considered have to involve rules, laws, or regulations over which OPM has jurisdiction, and the potential decision of the MSPB has to have a significant impact on those rules, 

laws, and regulations. 

So I am familiar with how the MSPB operates. I am familiar in 

terms of the legal issues that might come before the body itself. 

And also on a wider, sort of broader level I suppose, I understand 

the policy considerations that go into what constitutes the rules 

and regulations that I will be charged with enforcing. 

Senator AKAKA. Mr. Robbins, as I noted in my opening statement, Federal employees provide a valuable service to our country 

and save taxpayers money when they expose waste, fraud, and 

abuse in the government. 

What is your view of the role whistleblowers play in strengthening the merit system and improving the effectiveness of Federal 

Government? 

Mr. ROBBINS. Whistleblower protections are, above all else, a 

good government tool. They bring transparency to the process. As 

you mentioned, they target waste, fraud, and abuse, and promote 

the health and safety not only of the Federal Civil Service but of 

the American public. 

I am a strong supporter of whistleblower protections, and I do 

look forward to, with Senate confirmation, joining the Board and 

enforcing the enhancements that you are shepherding through the 

Senate at this point. 

6 

Senator AKAKA. Thank you. 

Mr. Robbins, as you know, the Board adjudicates claims under 

the Uniformed Services Employment and Reemployment Rights 

Act and the Veterans’ Employment Opportunity Act. As a senior 

member of the Senate Veterans Affairs Committee, I am strongly 

committed to promoting veterans’ employment. 

Please describe any experience you have with these statutes and 

discuss what you will do to ensure our Nation’s veterans are given 

the opportunities to which they are entitled. 

Mr. ROBBINS. Mr. Chairman, veterans’ preference and USERRA 

are issues of personal importance to me. I had the privilege of serving my country with the State Department for 19 months in Iraq 

as a Senior Rule of Law Advisor in Babil Province. And I was 

working with men and women who were from the National Guard 

and the Reserves, called up to come to Iraq and fight a war on behalf of their country. I am pleased that one of my colleagues is here 

with me today. 

I know from personal experience the anxiety that goes through 

these soldiers’ minds when they are not sure they have a job waiting for them when they come back. I also note, with chagrin, that 

according to recent press reports in the Washington Post, one of the 

biggest offenders of USERRA rights as an employer is, in fact, the 

Federal Government. 

Now I do not believe that people would necessarily, or intentionally, violate USERRA and veterans’ preferences. There are 

those that will, but the overwhelming problem I believe is education. I think people need to know what the law says and how it 

applies to men and women who are leaving their jobs with the Federal Government and going to serve their country. 

I have to be careful because I will be the adjudicator of these 

claims, so I cannot be an advocate, but I am a very strong supporter of those two pieces of legislation and their effective use within the Federal Civil Service. 

Senator AKAKA. Well, thank you for that response. 

Mr. Robbins, as you know, most Federal employees are not represented by counsel during the MSPB process. In your answers to 

the Committee’s pre-hearing questions, you referenced the importance of complying with my Plain Writing Act of 2010. 

How do you believe the Board can make complicated legal rules 

and regulations, along with its decisions, more easily understood by 

Federal employees who are unfamiliar with the legal process? 

Mr. ROBBINS. Asking lawyers to uncomplicate issues is always an 

interesting topic to raise. But you know, I think a good deal of 

progress can be made if decisions and instructions for practitioners 

before the Board are done in plain English, as plain as can be 

when you are dealing with legal processes and issues. 

I also believe that the use of standardized documents and automation through the Web is a handy tool for making the process 

more user-friendly and accessible. 

I note, although I do not know much about it, that the MSPB has 

begun to move a lot of its appellate process online so that those 

who believe they may have a claim that they can take to the MSPB 

can get online, take a look through the MSPB’s Web page at what 

7 

some of the issues they are going to have to address before they 

can file, and then some of the forms are there, too. 

And if confirmed, I am looking forward to talking with staff to 

see how that has sped up the system, how it has made it more 

user-friendly for practitioners, and whether there are criteria that 

actually are able to measure that movement forward. 

Senator AKAKA. Thank you. 

As you know, Mr. Robbins, one of the Board’s statutory responsibilities is to conduct studies relating to the Civil Service and report to the President and Congress. I would like to know the issues 

on which you believe the Board should focus future studies. 

Mr. ROBBINS. The studies responsibility of the MSPB is an important one. It is obviously provided for in Title V. The process on 

how those studies are adopted has changed over the years, and a 

lot of that depends on who the chairman is and the constituency 

of the Board, who the members are. 

I note that they have recently adopted a 5-year plan identifying 

studies they want to engage in. I do know that, like all other Federal agencies, budget issues and staff attrition and the inability to 

backfill positions is becoming a problem. 

One of the things I would encourage the Board to do in considering what studies it should undertake is to focus on that area 

where the Board brings unique strength—those particular issues 

where we have specific, credible knowledge based primarily on the 

adjudication function—so that if, for instance, let us say the last 

20 cases that came before the Board all have one common element 

to them, we should be able to study that, analyze it, and make recommendations to the policy arm of the Federal Civil Service management team, which would be OPM, and to Congress, how addressing that commonality that we have been able to identify will 

ease the process. It will lessen the burden. It will erase ambiguity 

in the process and bring better government. 

Senator AKAKA. Thank you for that response. 

We have discussed many important issues the Board faces. If 

confirmed, what will be your long-term priorities as a Board member? 

Mr. ROBBINS. Mr. Chairman, I do not come to this job with an 

agenda. I would like at the end of my tenure to have people say 

he exemplified the service of Commissioner Theodore Roosevelt; his 

opinions were well written, well reasoned, easily understood, timely; he brought management and administrative experience to the 

table to assist the chair when she thought it was prudent; and that 

in the end I brought honor to my family and friends in doing so. 

Senator AKAKA. Well, I thank you very much and thank you for 

visiting me. We had a nice personal and friendly chat about your 

background. And we look forward to the Committee making the decision on your nomination and trying to move it as quickly as we 

can so you can get to work as a Board member. 

Mr. ROBBINS. Thank you, Senator. I would appreciate that. 

Senator AKAKA. Thank you very much, and I really appreciate 

your bringing your parents and also your friends here. I am sure 

your parents are proud of you and what you have been doing all 

of these years. 

8 

The Merit Systems Protection Board makes important decisions 

affecting some of the most valuable assets of our country, our Federal workers. 

I thank you very much for coming and wish you well. 

Mr. ROBBINS. Thank you, Senator. 

Senator AKAKA. Thank you very much and thank you for your 

testimony. There are no further questions. 

Thank you, Mr. Robbins. 

The hearing record will remain open until the close of business 

Tuesday, March 13, for Members of this Committee to submit additional statements or questions. Any questions will be submitted to 

you in writing. 

I would like to call up our second panel, please. As we consider 

the nomination of Roy McLeese III to be Associate Judge of the 

District of Columbia Court of Appeals, I am so glad the timing is 

perfect for Congresswoman Norton. She is a busy woman, and I am 

always delighted to have her come and talk about those who will 

be within her realm of Washington, DC. So I would like to welcome 

Congresswoman Norton to the Committee and will yield for her introduction of Mr. McLeese. 

Congresswoman Norton, please proceed. 

TESTIMONY OF HON. ELEANOR HOLMES NORTON, A 

DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA 

Ms. NORTON. Well, thank you very much, Mr. Chairman, and I 

thank you for all of your help for the city and especially the help 

you are giving us with our courts at the present time. 

I am pleased to strongly recommend Roy Wallace McLeese III for 

the highest court for the District of Columbia, the District of Columbia Court of Appeals. 

Mr. McLeese serves now as Chief of the Appellate Division in the 

Office of the U.S. Attorney for the city. He supervises criminal appellate litigation not only for the District of Columbia Court of Appeals, but also for the U.S. Court of Appeals for the District of Columbia Circuit Court. 

He began his career as an Assistant U.S. Attorney in this city. 

He has since also served in the Office of Solicitor General, including as Acting Deputy Solicitor General. 

Mr. McLeese has argued cases in the court on which he seeks to 

serve as well as in the District of Columbia Court of Appeals and 

the Supreme Court of the United States. 

He is a graduate of Harvard University and NYU Law School, 

where he was editor-in chief of the law review. He clerked for Justice Antonin Scalia when the Justice was a judge on this circuit 

and for the Justice when he became a Justice of the U.S. Supreme 

Court. 

I think you will agree when you hear from him, Mr. Chairman, 

that he is highly qualified to serve on our own highest court here 

in the District of Columbia, and I thank you, sir. 

Senator AKAKA. Thank you very much, Congresswoman Norton. 

It is always good to see you here. You are welcome anytime. 

It is good of you to take time off to be here to help us with this 

nomination. We really do appreciate your being here today to introVerDate Nov 24 2008 11:57 Sep 18, 2012 Jkt 073675 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 P:\DOCS\73675.TXT SAFFAIRS PsN: PAT
9 

1The prepared statement of Mr. McLeese appears in the Appendix on page 38. 

duce Mr. McLeese, despite your busy schedule. So, thank you 

again. 

Ms. NORTON. Thank you, Mr. Chairman. 

Senator AKAKA. Mr. McLeese has a distinguished legal career, 

devoted to public service. He is currently the Chief of the Appellate 

Division of the U.S. Attorney’s Office for the District of Columbia 

and has twice been detailed to the Office of the Solicitor General 

to argue complex cases before the U.S. Supreme Court. Mr. 

McLeese also clerked for the Federal Court of Appeals for the D.C. 

Circuit and U.S. Supreme Court. 

This Committee consistently receives excellent candidates nominated by the President from those recommended to him by the nonpartisan Judicial Nomination Commission. Like others who have 

appeared before the Committee, I believe Mr. McLeese is well 

qualified and has much to offer the District bench. I hope we can 

act quickly to confirm him. 

I understand, Mr. McLeese, you have loved ones here with you 

today, and I would like to give you an opportunity to introduce 

them at this time. Please proceed. 

Mr. MCLEESE. Thank you, Mr. Chairman. 

I would like to introduce my beloved wife, Virginia Seitz; my son, 

Roy Seitz-McLeese. We also have two dear family friends who traveled from Connecticut to attend the hearing—Katie Fine and Jonas 

Rosenbruch. 

Senator AKAKA. Welcome to the Committee. 

Thank you. I am sure they are proud of all you have accomplished and look forward to this new chapter in your life. 

The nominee has filed responses to a biographical and financial 

questionnaire submitted by the Committee. Without objection, this 

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

available for public inspection in the Committee office. 

Our Committee rules require that all witnesses in nomination 

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

I will ask Mr. McLeese to please stand and raise your right hand. 

Do you solemnly swear the testimony you are about to give this 

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

truth, so help you, God. 

Mr. MCLEESE. I do. 

Senator AKAKA. Thank you. Let the record note that the witness 

answered in the affirmative. 

Mr. McLeese, please proceed with your statement. 

TESTIMONY OF ROY W. MCLEESE III1 TO BE AN ASSOCIATE 

JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS 

Mr. MCLEESE. Thank you. Mr. Chairman, and Members of the 

Committee, I am grateful for the opportunity to appear before you 

as the Committee considers my nomination to be an Associate 

Judge of the District of Columbia Court of Appeals. 

I thank the District of Columbia’s Judicial Nomination Commission and the President for the honor of the nomination. 

10 

I also thank the Committee and its staff for all the work that 

goes into preparing for and conducting the hearing. 

I also wanted to thank Congresswoman Norton for taking time 

out of her schedule to appear and to make a statement on my behalf. 

I did have a chance a moment ago to introduce family members 

and dear friends who are present. I also have family members who 

are using technology to watch from afar. My daughter, Miranda 

Seitz-McLeese, is at college in Chicago and could not attend, but 

she is hopefully, technology willing, watching the proceedings from 

there. My mother, my brother, my sister, and their families are all 

in St. Louis, Missouri, and again, hopefully are watching from afar. 

I also have a number of friends and colleagues who are here and 

attending the hearing, or who are watching from elsewhere, and I 

appreciate all of them coming, or watching, as their schedules permit. 

Since I graduated from law school in 1985, I have spent my entire career in government service. I have spent that entire career 

working in or appearing before the courts in the District of Columbia. 

For over the last 20 years, I have been a supervisor in the Appellate Division at the U.S. Attorney’s Office here in Washington, DC, 

and in that capacity, I have practiced primarily in the D.C. Court 

of Appeals, arguing and briefing cases myself, and supervising others who are arguing or litigating in that court. 

And over those years, I have had an opportunity to develop the 

highest respect for that court and for the significance of its work. 

It would be a great privilege to continue in public service as a 

member of that court. 

Mr. Chairman, I thank you for considering my nomination, and 

I look forward to answering your questions. 

Senator AKAKA. Thank you very much. 

I will begin with the standard questions this Committee asks of 

all nominees and would like you to answer each question. 

Is there anything you are aware of in your background that 

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

which you have been nominated? 

Mr. MCLEESE. No, Mr. Chairman. 

Senator AKAKA. Thank you. 

Do you know of anything, personal or otherwise, that would in 

any way prevent you from fully and honorably discharging the responsibilities of the office to which you have been nominated? 

Mr. MCLEESE. No, Mr. Chairman. 

Senator AKAKA. Do you agree, without reservation, to respond to 

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

Mr. MCLEESE. Yes, I do, Mr. Chairman. 

Senator AKAKA. Thank you for your responses. 

Mr. McLeese, you have impressive credentials and spent your entire legal career with the Federal Government. I commend your decision to continue public service by joining the D.C. Judicial System. Please elaborate on why you are seeking the appointment to 

become an associate judge at this point in your career? 

11 

Mr. MCLEESE. Mr. Chairman, as I mentioned in my opening remarks, I have had the opportunity to practice in front of that court 

primarily for the last 20 years, and I think that the longer you do 

that, the more you develop background and experience that might 

allow you to make a contribution to that court. And I think over 

the years, I have come to be very familiar with the Court’s law and 

its procedures. And so, I think one component of it is I feel as 

though I now have the background and experience to hit the 

ground running or make a contribution to that court if I were to 

be confirmed. 

Senator AKAKA. Mr. McLeese, the Court of Appeals handles a 

heavy caseload, and judges must rule on complex issues, both 

quickly and correctly. At the same time, litigants must feel they received a fair hearing where they were heard and respected. Please 

describe how your experience qualifies you to meet these challenges. 

Mr. MCLEESE. The U.S. Attorney’s Office Appellate Division also 

has a very heavy burden, a very heavy caseload. In any given year 

in recent times, the Appellate Division has filed somewhere in the 

neighborhood of 500 to 750 briefs or substantive pleadings. And the 

process of preparing some of those pleadings myself, a small proportion of them, and then managing and supervising the filing of 

the rest of them has given me a full opportunity to do appellate 

work, to try to maintain high quality as we do that appellate work 

but to do it under conditions that mean we have to work hard and 

we have to work efficiently in order to keep up with the heavy burdens. 

I think a lot of those challenges are very similar to the challenges that the judges on the D.C. Court of Appeals face. 

Senator AKAKA. Mr. McLeese, as we have discussed, associate 

judges review a high volume of cases and must be able to prioritize 

and delegate certain tasks. Please describe your management style, 

including the role you envision for law clerks in the chamber. 

Mr. MCLEESE. One of the most enjoyable parts of being a supervisor at the U.S. Attorney’s Office Appellate Division is getting the 

chance to work with the young attorneys who are oftentimes starting in the U.S. Attorney’s Office. One of the first places some start 

is in the Appellate Division. 

One of the jobs of the supervisors in the Appellate Division is to 

help those young lawyers do two things. One is to produce good 

briefs that we can file in court at high quality but also to learn how 

to become good appellate lawyers and good government lawyers. 

I think the process of working with young attorneys to produce 

high quality appellate work—again, very busy context—is very 

similar to the relationship that an appellate judge would have with 

his or her law clerks in working with them to, again, get the benefit of their contribution but also to try to teach and develop them 

as young lawyers. 

Senator AKAKA. Mr. McLeese, during your time with the U.S. Attorney’s Office, you have, no doubt, become familiar with the Court 

of Appeals’ rules and possibly some ways it could improve. What 

do you think the Court’s biggest challenge is, and if confirmed, 

what role would you play in addressing that challenge? 

12 

Mr. MCLEESE. I think the Court’s biggest challenge is something 

that you mentioned earlier, Mr. Chairman, which is the difficulty 

of continuing to provide high quality opinions and decisions in 

cases while governing a very heavy caseload. 

The District of Columbia Court of Appeals has appeals as of 

right. It does not have discretionary authority to control its caseload, and it is supervising judgments from a very busy city judicial 

system that generates quite a lot of work. And so, I think the 

Court’s biggest challenge is to continue to maintain the quality of 

its decisions but to be timely and efficient in getting those cases 

resolved. 

If I were confirmed, I think judges can contribute to that challenge of the Court in two ways. One is individualized to the judge’s 

own chambers, and that is working with respect to the particular 

cases that you are assigned and are working on to try to make sure 

that you and your chambers are meeting that challenge of getting 

those decisions out quickly but at a very high quality. 

I think that it can help to have similar experiences in producing 

a similar kind of work, and a lot of that is just putting in the hours 

and the work to try to make sure that you are getting all of that 

done and getting it done efficiently. 

I do think judges also can contribute to that in a more systemic 

way. There are issues of policy about things like how the Court 

moves into electronic case filing and case management, which can 

add efficiency, how the Court works with the other entities the 

Court interacts with. 

The issues of speed and decision are not only about the time that 

it takes from when a case is ready for the judges to resolve until 

the time the judges resolve it. There are a lot of earlier steps in 

the process, involving the getting of transcripts and the filing of 

briefs by the parties, about which the Court has an administrative 

set of responsibilities. 

If I were confirmed, I would be quite interested in attempting to 

contribute to the problem from a more administrative or managerial perspective as well as simply from the perspective of getting 

decisions out timely from an individual chambers. 

Senator AKAKA. This is my final question. During your career, 

you have appeared before many judges and, no doubt, learned a 

great deal from observing them. Describe some of the qualities you 

hope to emulate as a judge and those you hope to avoid. 

Mr. MCLEESE. The qualities I most admire in judges circle 

around words like fairness and civility, those two words. 

I am focused right now on appellate judges. That is my experience, and that is our current context. 

Generally, the litigants’ first exposure to an appellate judge is at 

the oral argument. So in the context of oral argument, I think 

judges do best when they are polite, respectful of the lawyers; they 

are well prepared so that they can ask questions that are the questions that are helpful to resolve the case, but they are interested 

in listening to the litigants’ answers and are, again, respectful in 

manner and tone, both to the litigants and to the parties and the 

issues that bring the parties into the litigation. 

I think there are similar attributes in the opinion-writing process. That is the other time when litigants primarily, and parties 

13 

1The prepared statement of Mr. Strauss appears in the Appendix on page 60. 

and lawyers, are exposed to judges and are formulating reactions 

to them. 

I think, again, the same set of principles are important—opinions 

that are thorough and that address each of the arguments that the 

parties are making so that the parties correctly feel as though their 

case has been given fair and respectful consideration, that acknowledge the pros and cons and deal with each part of a case in a fair, 

even-handed way, and that are respectful in tone, both about the 

litigants and about counsel. 

I think those things are all quite important. 

And relatedly, I think those same characteristics also serve well 

in judges’ interactions with their colleagues in terms of being civil 

on the bench in your opinions when you are dissenting from one 

of your colleagues’ opinions, or vice-versa. I think a calm, respectful 

tone is a key characteristic that I would like to emulate if I were 

confirmed. 

And obviously, I would hope to avoid the converse of most of 

those attributes. 

Senator AKAKA. Thank you. Thank you very much for your testimony and your responses to my questions. There are no further 

questions at this time. 

Members of the Committee may submit additional statements or 

questions, which will be given to you in writing. The hearing record 

will remain open until the close of business Tuesday, March 13. 

I want to, again, thank Congresswoman Norton for introducing 

you and for taking time to be with us today. 

I want to note for the record that Paul Strauss is submitting a 

statement of support for your nomination,1 Mr. McLeese. 

It is my hope that this Committee and the Senate will be able 

to act quickly on both of today’s nominations. 

I thank you very much for coming, and it is great to meet your 

family. I know they are proud of you. I like to say that you are as 

good as you are because of them. 

Mr. MCLEESE. Certainly true. 

Senator AKAKA. You have great supporters, and I am sure they 

will continue to support you. So, it is good to meet your family and 

friends. 

So, thank you very much. This hearing is adjourned. 

[Whereupon, at 3:43 p.m., the Committee was adjourned.] 

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