S. HRG. 109–397, PT. 2

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 1 AND NOVEMBER 15, 2005

PART 2

Serial No. J–109–4

Printed for the use of the Committee on the Judiciary

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS 

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29–838 PDF 2006

S. HRG. 109–397, PT. 2

CONFIRMATION HEARINGS ON FEDERAL

APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 1 AND NOVEMBER 15, 2005

PART 2

Serial No. J–109–4

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

TUESDAY, NOVEMBER 1, 2005

STATEMENT OF COMMITTEE MEMBER 

Page

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

statement .............................................................................................................. 151

PRESENTERS 

Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky presenting 

Gregory F. Van Tatenhove, of Kentucky, Nominee to be U.S. District Judge 

for the Eastern District of Kentucky .................................................................. 5

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska presenting 

Timothy Mark Burgess, of Alaska, Nominee to be U.S. District Judge 

for the District of Alaska ..................................................................................... 37

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

presenting Eric Nicholas Vitaliano and Joseph Frank Bianco, of New York, 

Nominees to be U.S. District Judges for the Eastern District of New York ... 2

Stevens, Hon. Ted, a U.S. Senator from the State of Alaska presenting Timothy Mark Burgess, of Alaska, Nominee to be U.S. District Judge for 

the District of Alaska ........................................................................................... 1

STATEMENTS OF THE NOMINEES 

Bianco, Joseph Frank, of New York, Nominee to be U.S. District Judge 

for the Eastern District of New York ................................................................. 6

Questionnaire .................................................................................................... 105

Burgess, Timothy Mark, of Alaska, Nominee to be U.S. District Judge for 

the District of Alaska ........................................................................................... 67

Questionnaire .................................................................................................... 68

Van Tatenhove, Gregory F., of Kentucky, Nominee to be U.S. District Judge 

for the Eastern District of Kentucky .................................................................. 37

Questionnaire .................................................................................................... 39

Vitaliano, Eric Nicholas, of New York, Nominee to be U.S. District Judge 

for the the Eastern District of New York ........................................................... 7

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

QUESTIONS AND ANSWERS 

Responses of Joseph F. Bianco to questions submitted by Senator Schumer .... 129

Responses of Timothy M. Burgess to questions submitted by Senator Schumer ........................................................................................................................ 131

Responses of Gregory F. Van Tatenhove to questions submitted by Senator 

Schumer ................................................................................................................ 133

Responses of Eric Vitaliano to questions submitted by Senator Schumer .......... 134

SUBMISSIONS FOR THE RECORD 

American Bar Association, Stephen L. Tober, and E. Osborne Ayscue, Jr., 

Standing Committee on Federal Judiciary, Washington, D.C., prepared 

statement .............................................................................................................. 136

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

prepared statement .............................................................................................. 149

McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky, prepared 

statement .............................................................................................................. 152

Page

IV

United States Senate, Committee on the Judiciary, conference call regarding 

the nomination of Gregory F. Van Tatenhove ................................................... 157

TUESDAY, NOVEMBER 15, 2005

STATEMENT OF COMMITTEE MEMBER 

Page

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 169

PRESENTERS 

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

Virginia May Kendall, Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 173

Obama, Hon. Barack, a U.S. Senator from the State of Illinois presenting 

Virginia Mary Kendall, Nominee to be U.S. District Judge for the Northern 

District of Illinois ................................................................................................. 172

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

presenting Kristi Dubose, Nominee to be U.S. District Judge for the 

Southern District of Alabama ...................................................................... 171

presenting W. Keith Watkins, Nominee to be U.S. District Judge for 

the Middle District of Alabama ................................................................... 175

Shelby, Hon. Richard, a U.S. Senator from the State of Alabama presenting 

W. Keith Watkins, Nominee to be U.S. District Judge for the Middle District of Alabama ................................................................................................... 170

STATEMENTS OF THE NOMINEES 

Watkins, W. Keith, of Alabama, Nominee to be U.S. District Judge for the 

Middle District of Alabama ................................................................................. 176

Questionnaire .................................................................................................... 178

Dubose, Kristi, of Alabama, Nominee to be U.S. District Judge for the Southern District of Alabama ....................................................................................... 210

Questionnaire .................................................................................................... 211

Kendall, Virginia Mary, of Illinois, Nominee to be U.S. District Judge for 

the Northern District of Illinois .......................................................................... 234

Questionnaire .................................................................................................... 235

SUBMISSION FOR THE RECORD 

Shelby, Hon. Richard, a U.S. Senator from the State of Alabama, prepared 

statement .............................................................................................................. 271

ALPHABETICAL LIST OF NOMINEES 

Bianco, Joseph Frank, of New York, to be U.S. District Judge for the Eastern 

District of New York ............................................................................................ 6

Burgess, Timothy Mark, of Alaska, to be U.S. District Judge for the District 

of Alaska ............................................................................................................... 67

Dubose, Kristi, of Alabama, Nominee to be U.S. District Judge for the Southern District of Alabama ....................................................................................... 210

Kendall, Virginia Mary, of Illinois, Nominee to be U.S. District Judge for 

the Northern District of Illinois .......................................................................... 234

Van Tatenhove, Gregory F., of Kentucky, Nominee to be U.S. District Judge 

for the Eastern District of Kentucky .................................................................. 37

Vitaliano, Eric Nicholas, of New York, Nominee to be U.S. District Judge 

for the the Eastern District of New York, .......................................................... 7

Watkins, W. Keith, of Alabama, Nominee to be U.S. District Judge for the 

Middle District of Alabama ................................................................................. 176

(1)

NOMINATION OF ERIC NICHOLAS VITALIANO, 

OF NEW YORK, TO BE DISTRICT JUDGE FOR 

THE EASTERN DISTRICT OF NEW YORK; 

GREGORY F. VAN TATENHOVE, OF KENTUCKY, TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF KENTUCKY; JOSEPH 

FRANK BIANCO, OF NEW YORK, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF NEW YORK; AND TIMOTHY MARK BURGESS, OF ALASKA, TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF ALASKA 

TUESDAY, NOVEMBER 1, 2005

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 1:35 p.m., in room 

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

presiding. 

Present: Senator Schumer. 

Senator SCHUMER. We are going to call the hearing to order. We 

are under unusual circumstances. So our candidates, their friends 

and family, and all others understand, we have called a special session, which is a closed session, to discuss intelligence matters on 

the floor of the Senate. It was unexpected. I am going to have to 

be on the floor very quickly, so I may have to suspend the hearing 

until we can get someone—Senator Kyl was supposed to be here, 

but he had to stay there, and Senator Specter, in an act of bipartisanship, asked me to be here or asked me to chair it since I was 

here because of our two New York judges. 

I will save my opening statement for a minute because I know 

that Senator Stevens has a statement and has another Committee 

hearing. So I will recognize Senator Stevens first for his statement. 

PRESENTATION OF TIMOTHY MARK BURGESS, OF ALASKA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF 

ALASKA, BY HON. TED STEVENS, A U.S. SENATOR FROM THE 

STATE OF ALASKA 

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

and it is an honor to be here today and an honor to present to the 

2

Committee Tim Burgess, who is the nominee to be district judge 

in Alaska. 

Tim came to our State 30 years ago to play basketball at the 

University of Alaska-Fairbanks, and he never left Alaska. He now 

lives in Anchorage with his wife, Joanne Grace, and four children, 

one of whom is with him here today. 

I first met Tim in 1982 when he served as legislative assistant 

to then-Senator Frank Murkowski. In 1989, he joined the U.S. Attorney’s Office for the District of Alaska as Assistant U.S. Attorney 

working on criminal prosecution and civil litigation. In 2001, President Bush nominated Tim to be the U.S. Attorney for the District 

of Alaska, and he has served as our State’s chief Federal law enforcement officer with great distinction. As a former U.S. Attorney, 

I do appreciate his service there. 

As a U.S. Attorney, Tim also serves as a co-Chair of Alaska’s 

Rural Justice and Law Enforcement Commission, which the Congress created at my request in 2004 to improve the quality of justice in rural Alaska. Tim has demonstrated exceptional leadership 

on rural justice issues. He has been instrumental in organizing the 

process and moving it forward. The commission recently produced 

a draft report of suggestions, which has been distributed for comment across our State. This milestone is in part a reflection of 

Tim’s ability to serve as a unifying force among many differing 

points of view. Tim is a devoted public servant and a talented legal 

mind. His commitment to the rule of law led President Bush to 

nominate him to the position of U.S. District Court Judge for Alaska. 

I am confident Tim will approach this new position with the 

same dedication which he has fulfilled his other assignments, and 

I urge this Committee to act quickly on this nomination. And I 

thank you for the courtesy of taking the Chair. 

Senator SCHUMER. Senator, you have always extended courtesy 

to me and the people of New York, so it is a pleasure to reciprocate 

in a small way. 

OK. Now I will read my opening statement on behalf of two New 

Yorkers. 

PRESENTATION OF ERIC NICHOLAS VITALIANO AND JOSEPH 

FRANK BIANCO, OF NEW YORK, NOMINEES TO BE DISTRICT 

JUDGES FOR THE EASTERN DISTRICT OF NEW YORK, BY 

HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 

STATE OF NEW YORK 

Senator SCHUMER. It is great to have two New Yorkers nominated for positions both on the Eastern District, which covers my 

home borough of Brooklyn and Queens, Nassau County, Suffolk 

County, a very large judicial district. I think it may be the largest. 

It has 7 million people in one judicial district. And so I want to 

thank the Chairman for scheduling this hearing and for considering the nomination of both Eric Vitaliano and Joseph Bianco to 

the Federal Court for the Eastern District of New York. 

I would say that this comes at an opportune time. It is a singular 

week for Italian-Americans in the judiciary, and overlooked in all 

the attention to Judge Samuel Alito’s nomination to the Supreme 

Court—which I will have more to say about in a different forum, 

3

not today—we are considering the nomination of two outstanding 

Italian-Americans nominated to the Federal District Court in the 

Eastern District. 

Now, one of the things that is hard to believe, but there are no 

Italian-Americans sitting in the Eastern District, despite a large 

Italian-American population. And I have to be honest, the Columbian Society and other Italian-American organizations came to me, 

pointed that out, and I agreed with them. And we have had in the 

past, but because of retirements we do not right now. 

And so I have been committed to correcting it, and if all goes 

well here—and we expect that it will—we will be increasing the 

ranks of Italian-Americans in the Eastern District of New York by 

infinity. And for the young children here, the Vitaliano children, 

the Bianco children, that is because anything from zero to something, it goes up by infinity. I think. 

[Laughter.] 

Senator SCHUMER. In any case, first I want to introduce to my 

colleagues and to the entire U.S. Senate Eric Vitaliano. I have 

known Eric Vitaliano for close to two decades, and he is just a class 

act. And everything he has done, he has been a class act. He has 

had an impressive career in the legal profession. He is a true lifelong New Yorker. And, frankly, another thing to his benefit, he is 

from Staten Island. And I always want to see Staten Island recognized—it is also part of the Eastern District—on the bench and everywhere else. I have worked hard. 

First, let me say in New York we have worked out a wonderful 

system for nominating judges to the district court and the circuit 

courts. With all the back-and-forth on judges at the national level 

and in other districts, we have worked it out. The President, Governor Pataki, and I worked together to name highly qualified consensus candidates to the Federal bench. There is often rancor when 

it comes to judges from other parts of the country, but none when 

it comes to New York. And that is because in New York the candidates we select are mainstream, consensus candidates. Some may 

be a little more conservative. Some may be a little more liberal. 

But they are all within the broad mainstream that defines America. 

Now, I am especially proud to introduce Judge Vitaliano, because 

he was my recommendation for a seat on the Eastern District. The 

administration agreed with my assessment of his integrity, credentials, and excellence, and formally nominated him a few weeks ago. 

And so I am heartened by the strong bipartisan support that you 

have received, Eric. Eric’s nomination is the product of a real consultation process and a strong commitment to choosing moderate, 

diverse, and well-qualified judges in New York. 

Judge Vitaliano is joined today by many members of his family, 

and I know they are all proud. I am not going to introduce his 

brother who moved to New Jersey, but a few of the others I will, 

just his immediate family. Helen is here, who has been by Eric’s 

side for so long and has played such a great role in the success that 

the Vitaliano family has had, and the four children: Michael, who 

is 15; Emma, who is 12; Abigail, who is 9; and Halle, who is 6. And 

I have known them since they have been very, very little. One of 

my great—I really say this. My greatest regret in life, which shows 

4

you God has been good to me, is that Iris and I did not have more 

children. We have two beautiful girls. I wanted four. She wanted 

two. Guess what? 

[Laughter.] 

Senator SCHUMER. We have two. 

Also with Judge Vitaliano, aside from his wayward brother, are 

his sister-in-law, Dorothy Hurley; her husband, John; nephew, Terence; and, finally, I want to make mention of somebody who is a 

close friend of mine who was always whispering in my ear, Eric, 

‘‘Eric Vitaliano, Eric Vitaliano. Come on, Chuck, Eric would be a 

great judge.’’ And that is someone who worked for me for many 

years and now has gone on to much greater things: Michael Cusick. 

Mike is the Assemblyman from one of the four districts on Staten 

Island, and just a wonderful person, and I am sure he is as proud 

as the Vitaliano family as he sits here today, particularly knowing 

that there have been so many judges, including his later father, in 

the Cusick family. 

Let me just give a brief biography. Judge Vitaliano grew up on 

Staten Island, attended Fordham University in the Bronx, NYU 

Law School in Manhattan. He clerked for Judge Costantino, one of 

the Italian-Americans on the Eastern District, who, of course, is no 

longer there. And that is the court he has been nominated to. 

Apart from a brief stint in Washington, he spent his entire life 

in New York. He graduated cum laude from NYU, spent several 

years with one of the most prestigious law firms in New York—

Simpson, Thacher & Bartlett—and then was chief of staff to Congressman John Murphy before beginning his own law practice. 

After that, he spent two decades as a distinguished member of 

the New York State Assembly, representing first the 59th and then 

the 60th Assembly Districts. Redistricting changed the numbers—

same place. And he has more recently been a civil court judge and, 

since 2004, an acting Supreme Court judge in the State of New 

York. 

Here is what the well-read local newspaper and well-respected 

local newspaper, the Staten Island Advance—for those of you not 

from Staten Island, it is not the ‘‘Ad-VANCE’’; it is the ‘‘ADvance’’—has said about Eric Vitaliano: ‘‘Eric Vitaliano is the epitome of the most often misused description of proper judicial temperament.’’ 

This is continuing the quote, but that is a quote in a quote. ‘‘ ‘He 

is one of the most intelligent and analytical public officials we have 

ever had the pleasure to meet. He is fair and reasonable almost to 

a fault.’ ’’ 

I have known Eric—as I said, he is a class act. He is smart. He 

has integrity. He is decent. He is honorable. He will just be a great 

judge. And he is achieving something that he has dreamed about 

for a long time. I am very pleased that the President acted on my 

suggestion in nominating Judge Vitaliano, and I hope the Senate 

will move expeditiously to confirm him. 

Now, second, I would like to introduce to the Committee Joseph 

Bianco. He was nominated by the President as well, another great, 

great guy from New York, and he is joined today by his wife, Melissa, who I saw outside with their little one. I guess she is still 

outside. Nicholas was his name, but he didn’t give me a high five. 

5

But his other children are here, another family of four children, 

making me even more envious. There is Joey, who is 11; Davey, 

who is 8; Stephanie, who is 6; in addition to Nicholas; and a full 

complement of law clerks. 

Joe Bianco was born in Flushing, but we will forgive him for this 

fact because he saw the error of his ways and moved to Brooklyn, 

and he has lived there since he has been 11. I am a Brooklynite, 

first Senator from Brooklyn in 140 years. He graduated as a member of Phi Beta Kappa from Georgetown University here in Washington, went on to earn his degree from Columbia Law School, and 

then clerked for another very fine judge, Justice Leisure of the 

Southern District in New York. 

After a brief stint in private practice, Mary Jo White hired him 

to be an Assistant U.S. Attorney in the Southern District of New 

York, one of the strongest and toughest districts—when you work 

there, you learn everything—from 1994 to 2003. And while at the 

U.S. Attorney’s Office, Mr. Bianco prosecuted mobsters, terrorists, 

violent gang members, and other criminals. 

After a short time, his supervisors, who included David Kelly, 

until very recently the acting U.S. Attorney, and a name that has 

been in the news lately, Patrick Fitzgerald, promoted him to the 

position of Deputy Chief of the unit responsible for investigating 

and prosecuting organized crime and terrorism. And, in fact, Mr. 

Bianco replaced Patrick Fitzgerald as the chief of the Organized 

Crime and Terrorism Unit, I guess when Patrick Fitzgerald went 

over to Chicago to the U.S. Attorney’s Office in Illinois. 

In the U.S. Attorney’s Office, he supervised, among other people, 

my chief counsel, Preet Bharara—it is one happy family here in 

New York—who tells me that Mr. Bianco was among the most beloved and respected prosecutors in that office. And since Preet no 

longer works for Joe Bianco, you can be sure he means those 

words, and Preet’s recommendation is second to none as far as I 

am concerned. 

He has since gone on to be Deputy Assistant Attorney General 

in the Criminal Division of the Justice Department where he now 

serves. I am proud—I did not nominate him originally, but I am 

proud to support someone as outstandingly qualified and well respected as Mr. Bianco. 

We have two great nominees from New York, high quality, and 

I am proud to be here. 

With that, I see that my colleague Senator Bunning—we are sort 

of going on the fly here because of the closed session. So instead 

of—we will break out of the regular order, ask Senator Bunning to 

come forward so he can give his statement on behalf of Greg Van 

Tatenhove. Senator Bunning? 

PRESENTATION OF GREGORY F. VAN TATENHOVE, OF KENTUCKY, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY, BY HON. JIM BUNNING, A U.S. 

SENATOR FROM THE STATE OF KENTUCKY 

Senator BUNNING. Thank you, Senator Schumer. It is a privilege 

to help introduce Greg Van Tatenhove to this Committee. By sending his nomination to the Senate, the President is presenting a topVerDate 0ct 09 2002 08:59 Oct 03, 2006 Jkt 029838 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29838.TXT SJUD4 PsN: CMORC
6

notch candidate for the Federal bench in the Eastern District of 

Kentucky. 

A quick look at Greg’s resume shows me his strong qualifications. Although Greg is not originally from Kentucky—and that is 

a rare bird that gets nominated to the judiciary if they were not 

born there—he made a very smart decision by making a permanent 

move to our Commonwealth. 

Greg is a graduate of Kentucky’s Asbury College and the University of Kentucky College of Law. He has worked two stints for 

members of Kentucky’s Federal Congressional delegation: Senator 

Mitch McConnell and Representative Ron Lewis. 

Greg has served as a judicial law clerk in the U.S. district court, 

and he served in the U.S. Department of Justice’s Civil Division as 

a trial attorney. 

Finally, over the last 4 years, Greg has served admirably as the 

U.S. Attorney for the Eastern District of Kentucky. Clearly, Greg 

possesses the wisdom and character to sit on the Federal bench. 

His time on Capitol Hill, in the Department of Justice, and within our judicial system gives Greg a wealth of knowledge and experience which can only make him a better judge. I hope swift progress 

can be made toward his confirmation, and I appreciate the Chairman’s scheduling this hearing. 

I want to thank you, Senator Schumer, for filling in and doing 

such an admirable job, and I am very happy, along with my colleague Senator McConnell, who is obviously stuck on the floor of 

the U.S. Senate right now, to support the nomination of Greg Van 

Tatenhove for U.S. District Judge for the Eastern District of Kentucky. 

Senator SCHUMER. Thank you, Senator Bunning, and we appreciate your being here, and obviously your recommendation means 

a great deal to the Committee. 

OK. We are now going to call our four nominees: Eric Nicholas 

Vitaliano, to be U.S. District Judge for the Eastern District; Gregory F. Van Tatenhove, to be U.S. District Judge for the Eastern 

District of Kentucky—Vitaliano, of course, is for New York—Joseph 

Frank Bianco, to be U.S. District Court Judge for the Eastern District of New York; and Timothy Mark Burgess, to be U.S. District 

Judge for the District of Alaska. 

Well, we are going to have to improvise since they do not have 

the sheet here. Please raise your right hands, gentlemen. Do you 

solemnly swear to tell the whole truth and nothing but the truth, 

so help you God? 

Judge VITALIANO. I do. 

Mr. VAN TATENHOVE. I do. 

Mr. BIANCO. I do. 

Mr. BURGESS. I do. 

Senator SCHUMER. Please be seated. They said I did it all right. 

OK. Now, we do not have many members here, and all of you 

have not raised many questions of this Committee. So I don’t think 

we are going to do too many questions since there is the closed session. I will ask all of you—let’s see here. I am going to ask you, 

tell us—I will ask you each—because you have each had different 

experiences. Tell us what are the reasons that you seek to become 

7

a Federal judge. We will start with Mr. Vitaliano and work our 

way over. 

STATEMENT OF ERIC NICHOLAS VITALIANO, OF NEW YORK, 

NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK 

Judge VITALIANO. Thank you, Mr. Chairman. It’s certainly an 

honor and a privilege to be here, to be before you and the members 

of this Committee. As you so eloquently put in your remarks on my 

behalf at the beginning of the hearing, I have dedicated most of my 

adult life to public service. I was privileged to begin my public service in the Eastern District of New York, first as a Temporary Deputy United States Marshal, and then later as a law clerk to Staten 

Island’s first Federal judge, Mark Costantino. My public service 

continued as a member of the New York State Assembly, and now 

as a trial judge in the New York State court system. It has allowed 

me to develop a very broad, deep, rich experience, diverse experience in the law, to hone the skills that are necessary to be a trial 

judge in the United States district court. 

By being a judge for now 4 years, I have been able to understand 

in a very palpable way the awesome power of the judiciary, to understand the importance of continuing public service in a way that 

benefits real people with real controversies, to have the temperament to administer justice not only fairly in fact but fairly in appearance. Those are the skills that I have developed over these 

years, and I look forward to being granted the opportunity and the 

privilege to continue that kind of service as a United States District Judge in the Eastern District of New York. 

[The biographical information of Judge Vitaliano follows:]

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Senator SCHUMER. Thank you, Judge Vitaliano. They are now 

calling me over there, so I am going to ask each of our prospective 

nominees to be quick. But I see that Senator Murkowski is here on 

behalf of Mr. Burgess. Senator Stevens was here already. We are 

under real time constraints, but I want to recognize Senator Murkowski to say a few words on behalf of Mr. Burgess. And your entire statement will be read into the record. 

PRESENTATION OF TIMOTHY MARK BURGESS, OF ALASKA, 

NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF 

ALASKA, BY HON. LISA MURKOWSKI, A U.S. SENATOR FROM 

THE STATE OF ALASKA 

Senator MURKOWSKI. Thank you. I so appreciate that. 

I want to welcome a colleague of mine. In fact, Mr. Burgess and 

I were actually sworn in to the Alaska Bar together, so we have 

not only a longstanding professional relationship, but I think it is 

fair to say a longstanding personal relationship. Our kids are participants in YMCA basketball, and Tim is a coach there. I see him 

out on the soccer field. I see him in the real world, being a dad, 

being a community leader, being a participant. 

I want to commend Tim for the acts that he has done as our U.S. 

Attorney General working on drug education initiatives like Red 

Ribbon, something that I am very involved in, in our State; working on programs like Weed and Seed; and more recently the Interagency Terrorist Threat Task Force that we have seen some incredible successes, working with the Federal, the State, the local to 

really bring together those that are involved to make a difference 

in our State. Tim is a leader at the community level, at the State 

level, and I am delighted to stand with him and recommending him 

for this judgeship. 

I appreciate the opportunity to speak here today and to endorse 

him. Thank you. 

Senator SCHUMER. Thank you, Senator Murkowski, and I appreciate your being here. 

I ask unanimous consent—which I guess if I say it is OK, it will 

be. 

[Laughter.] 

Senator SCHUMER [continuing]. For Senator Leahy’s and Senator 

McConnell’s statements to be entered into the record. 

Now I do have to go to this session, so what we are going to do—

and this is no—in fact, the fewer questions you are asked, the better, gentlemen. We are going to leave the record open for 1 week 

for any Senator to submit written questions, which you will be required to answer. 

With that, do any of you want to say anything in particular? Do 

you, Mr. Van Tatenhove and Mr. Burgess, want to introduce your 

families briefly? I introduced Mr. Bianco’s already. 

STATEMENT OF GREGORY F. VAN TATENHOVE, OF KENTUCKY, 

NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

Mr. VAN TATENHOVE. Mr. Chairman, I appreciate the opportunity to do that, and I appreciate the courtesy of the hearing. We 

38

certainly understand the unusual circumstances that we are under 

today. 

You asked about my qualifications. The one that I am proudest 

of is that as a husband and father, so I will quickly introduce my 

family that is here today. 

First of all, my daughter, Catherine, who is a first grader at the 

Lexington School in Lexington, Kentucky; my son, Cooper, who is 

fifth grader at the Lexington School. I am pleased also to have my 

wife of over 21 years, Jane, who is with me here today; and I am 

particularly pleased to have my sister, who I describe as the smartest lawyer in my family, Jana, who is here with her husband, Rick. 

I am also pleased to have my brother-in-law, David Cooper, who is 

here with his friend, Chris Koosher. And I have a number of other 

friends here. It is a privilege to have them here. 

Thank you, Mr. Chairman. 

[The biographical information of Mr. Van Tatenhove follows:]

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Senator SCHUMER. And how about you, Mr. Burgess? Would you 

do us the honor of introducing your family? 

STATEMENT OF TIMOTHY MARK BURGESS, OF ALASKA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ALASKA 

Mr. BURGESS. Thank you, Senator. My son, Foster Burgess, is 

right over here. He was the only one able to make the long trip 

with me for this. 

Senator SCHUMER. We understand. There is no shuttle every 

half-hour, as I understand it, the way there is to New York. 

[Laughter.] 

Mr. BURGESS. No, there is not. But I also have four children, and 

I also have with me three of my Washington family from my many 

years of working here when I was much younger: Mary Maguire, 

Donna Murray, and John Devore. 

[The biographical information of Mr. Burgess follows:]

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Senator SCHUMER. Thank you. 

With that, I want to thank all of you gentlemen for the great 

service that you have done, both in public and private careers, and 

we will see if there are any written questions, and the Committee 

is going to do everything to move, to expedite the process so that 

you can assume a position on the bench, which I am confident each 

of you will receive from the Senate. 

Thank you, and with that, the hearing is adjourned. 

[Whereupon, at 2:20 p.m., the Committee was adjourned.] 

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

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CONFERENCE CALL REGARDING 

NOMINATION OF GREGORY VAN TATENHOVE 

FRIDAY, NOVEMBER 18, 2005

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

The Committee met, pursuant to notice, at 3:06 p.m., in room 

SD–240, Dirksen Senate Office Building. 

Participants: Senator Sessions, Cornyn, Schumer, Stephen Tober, 

Esq., American Bar Association, Ozzie Ayscue, Esq., American Bar 

Association, Robert Evans, American Bar Association, Denise 

Cardman, American Bar Association and Senate Staff present 

Peter Jensen, Chip Roy and Bob Schiff. 

P R O C E E D I N G S 

Senator SESSIONS. I think we are all here. Steve Tober, who is 

the Chair of the Standing Committee on Judiciary for the ABA for 

New Hampshire; and Ozzie Ayscue, who did the work up on 

Tatenhove. He is in Charlotte. 

We have Joe Biden’s staffer and John Cornyn, and a couple of—

Bob Evans and Denise Cardman with the ABA staff people. I 

would just say this. Chairman Specter asked that I conduct this 

conference call to discuss the ABA’s rating of Greg Van Tatenhove, 

who has been nominated for the District Court Judge for the Eastern District of Kentucky. I understand that representatives are 

here, Tober and Ayscue. 

Mr. Tober, I appreciate your presence. 

Senator SCHUMER. Jeff, could I just interrupt? This is being transcribed by a reporter just like at a hearing, right? 

Senator SESSIONS. Yes, that is correct. 

Senator SCHUMER. And when will we get the transcription, a couple of days? 

Senator SESSIONS. Maybe the reporter who is here— 

Mr. JENSEN. Senator, this is Pete Jensen. I work for Chairman 

Specter. We have requested that we get it back later today. 

Senator SESSIONS. OK, very quick turnaround. 

Senator SCHUMER. OK, great, thanks. Go ahead, Jeff. Sorry to interrupt. 

Senator SESSIONS. Mr. Tober, do you have a statement that you 

would like to make at this time? We would be glad to hear any 

thoughts you have on it. 

Mr. TOBER. I do, Senator, and I appreciate the opportunity to do 

that. I know everybody has a very busy schedule. I will try to be 

very brief. 

First of all, I want to thank the Senate Judiciary Committee for 

the opportunity to be heard on this important nomination, and I do 

want to express the hope, the concern, the belief that by doing this 

by teleconference is an isolated and singular event and not some 

precedent that will go on in the future for reasons that as I talk 

further I think will become self evident. 

158

We take the role we play in judicial nominations extremely importantly, and I do not think there is any substitute for the regular 

process within the normal course. And I think you all know, the 

ABA process has been something that has developed over generations of time and effort, and it is a very well-thought-out and very 

good one, and I hope that we can restore the way we were doing 

things. 

Very quickly, I just want to point out that with respect to Mr. 

Van Tatenhove, the nomination, as I understand it, was formally 

announced on September 13th. The evaluation was started upon 

our receipt of the signed waiver forms. That is our regular practice, 

and that occurred on October 5th. The investigation was completed 

within the requisite time and circulated before November 5th, so 

within 1 month, between October 5th and November 5th, the investigation was conducted, written and circulated. And then our vote 

was taken and the rating was released within the next 5 days on 

November 10th. So that is the 30 days plus 5 that we try to adhere 

to rigorously in our process. 

Ozzie Ayscue was good enough to stand in and do this evaluation 

for us. Ozzie served on this Committee as the Fourth Circuit representative from 2001 to 2004. He, in that timeframe, had the opportunity to review, vote on and participate in well over 230 evaluations. Ozzie is one of the most premier and seasoned individuals 

that served on this committee, and I was pleased that he could 

stand in because the regular sitting Committee representative from 

the Fourth Circuit was involved at that time in another process, 

and that was the evaluation of Harriet Miers. So Ozzie was kind 

enough to help us with this. 

There is no question that the evaluation that he conducted was 

thorough. It was thoughtful. It was comprehensive. He maintained, 

as we always do, the confidences of the individuals with whom we 

speak, and during the course of his investigation he contacted 40 

judges, lawyers, other people in the legal community who would 

have contact the nominee, Mr. Van Tatenhove, and he received 

substantial material information from 30 of those 40 contacts within that timeframe. 

Let me get to the point of what the evaluation demonstrated. 

With respect to positive things, Mr. Van Tatenhove presented no 

issues whatsoever with respect to integrity or his potential for judicial temperament. He was found through the investigation to be a 

very bright, capable and honest man, and he is collegial, gracious, 

and has a very good personality from all indications in this investigation. 

What arose, however, was substantial concern regarding his professional competence. I think you are familiar with what we call 

‘‘the backgrounder’’, which is our printed standards that we adhere 

to, The backgrounder talks in terms of professional competency encompassing qualities of intellectual capacity, judgment, writing and 

analytical ability, and most particularly in this case, knowledge of 

the law and breadth of professional experience. 

Some of the sample comments that came from the investigation 

were as follows: ‘‘He hasn’t tried very many cases, is not necessarily the most experienced.’’ ‘‘His lack of trial experience is trouVerDate 0ct 09 2002 08:59 Oct 03, 2006 Jkt 029838 PO 00000 Frm 00164 Fmt 6633 Sfmt 6602 S:\GPO\HEARINGS\29838.TXT SJUD4 PsN: CMORC
159

bling.’’ Those are not isolated comments. They lace throughout the 

investigation from enumerable individuals among the folks who— 

Mr. SCHIFF. Bob Schiff, with Senator Feingold. 

Mr. TOBER. Who were able to pass comment along to Ozzie 

Ayscue in the investigation. 

The backgrounder also has something that we call, if you will, 

the 12-year rule. It is a flexible rule. It is not a hard and fast rule. 

What that means is we have a rule in which we look for at a minimum 12 years of legal experience, practical legal experience as a 

floor, as a base for somebody’s experience in the law, as something 

that we would hope to see when they are nominated to the Federal 

District Court. This 12-year-rule, if you will, has been around for 

quite a period of time. It shows up in our printed backgrounder at 

least back in 1977, and in fact, Senator, back then it was something on the order of 12 to 15 years as a floor. It was revised over 

the course of time to bring it to 12 years, but in reality that rule, 

that standard, if you will, has been around for a lot longer than 

that. 

Senator SESSIONS. As a written standard? 

Mr. TOBER. Yes, sir. It is in our backgrounder. It is in the glossy 

material that we hand out to everybody who is involved, the nominee, the individuals with whom we speak. It is on our web page. 

It is our bible, if you will, of how we try to do things. 

And it refers, Senator, when we talk about this 12-year-rule, 

there are a couple of comments tied around it that I want to bring 

to the attention of this Committee. 

One of the things we look for in determining this 12-year-rule, 

is substantial courtroom and trial experience as a lawyer or a trial 

judge. It is very important for nominees, for both the appellate and 

the trial courts. Now, there are people, Senator, who do not necessarily have exactly 12 years. They may have less than that. They 

may have more than that. It is not meant to be any kind of a litmus test, it is meant to be a generalized standard. So we recognize 

in our backgrounder that there may be, and I am quoting, ‘‘significant evidence of distinguished accomplishment in the field of law 

which may compensate for a nominee’s lack of substantial courtroom experience.’’ 

But let me underscore that in this nomination of Mr. Van 

Tatenhove, he is being nominated for life to the Federal trial 

bench, and so it became very important to see what kind of trial 

experience Mr. Van Tatenhove would be bringing to this job, keeping in mind that we have no issue with integrity or his potential 

for judicial temperament. 

What we found was this: Mr. Van Tatenhove has been— 

Senator SCHUMER. Is this in writing, as if you are reading from 

something, Steve? 

Mr. TOBER. I just have notes I have written to myself. 

Senator SCHUMER. OK. 

Mr. TOBER. We are going to—in fact, thank you for that. We 

would like to submit a written statement after the fact. 

Senator SCHUMER. Please. That would be great. 

Mr. TOBER. Which will cover all this. But these are my notes that 

I am just looking at. 

Senator SCHUMER. OK, sure. 

160

Mr. TOBER. He was licensed in 1990, and of those 15 years in 

which he has been continuously licensed, eight of them constitute, 

in the opinion of the committee, the practice of law. And those 

eight were 4 years with the Department of Justice at the beginning 

of his career, and then 4 years as United States Attorney for the 

Eastern District of Kentucky. He has a 7-year period, much more 

contemporaneous period, in which he was working for Congress. 

Even he admitted in his interview with Ozzie Ayscue that he was 

not practicing law in a formal sense while he was working in Congress. And so the Committee drew the judgment, as did the investigator, that Mr. Van Tatenhove presented with 8 years of legal experience. 

So that means that we had to look around for that other significant evidence of distinguished accomplishment. What we did is, for 

one place, we look at his trial work, what did he do for those 8 

years that would have brought him to a courtroom? 

And here is the troubling part. As you all know, when they fill 

out Senate questionnaires nominees indicate their 10 most significant cases. Mr. Van Tatenhove did that. Of his 10 most important 

cases, first of all, all of them were civil and all of them go back to 

his time at the Department of Justice, which puts them back 11, 

12 years in time at a minimum. Of those 10 cases— 

Senator SCHUMER. So it is a fair guess he did not try any cases 

as U.S. Attorney. 

Mr. TOBER. He tried—that is correct. He did not try any cases 

as U.S. Attorney, Senator. He was—and I believe he admits to 

this—he was an administrator for most of his time, if not all of his 

time as U.S. Attorney. And then Ozzie Ayscue can weigh in on 

that. 

But of the 10 cases, five of them were still pending when he left 

the Department of Justice and moved on. Two of the 10 were dismissed on motion; two were settled before they ever were adjudicated; and one he tried. And the one he tried was a 2-day evidentiary hearing to a Federal Magistrate. So we have an extremely 

limited capacity for experience in the courtroom. 

The bottom line that this Committee determined is that this 

nominee, while a very nice gentleman of no question integrity and 

no question temperament, has the experience of one 2-day trial 12 

years ago in the process of the practice of law, and that was a civil 

case. He has never tried a criminal case. He has never been before 

a jury. He has never done anything along those lines other than 

that one trial. 

Senator CORNYN. Mr. Tober, may I ask a question at this point? 

This is John Cornyn. 

Mr. TOBER. Sure, Senator. 

Senator CORNYN. Just so I am clear, so the ABA does not credit 

any time that a lawyer works on Congressional staff. For example, 

each of us have lawyers who work to advise us on the Senate Judiciary Committee on everything from nominations to legislation, you 

name it, but would it be correct to say that the ABA would not 

credit any of that kind of experience either as time served as a lawyer that would meet the ABA’s standard? 

Mr. TOBER. No, Senator. That would not be a fair statement of 

a general nature. It may well be a fair statement in this particular 

161

case. And the reason I say that—and Ozzie Ayscue talked to Mr. 

Van Tatenhove about that very issue—is that Mr. Van Tatenhove’s 

personal particular experience working for Congress was not of the 

type that would have exposed him to the kind of trial experience 

that one was looking for when you are nominated to the trial 

bench. While he did talk in terms, Senator, of having worked on 

Congressional—excuse me—constitutional issue and some other 

parts that were component parts of the practice of law—we do not 

deny that—it was not within the setting of having a command of 

rules of evidence, of rules of civil procedures, of rules of criminal 

procedure, of having to rule on objections. None of that really 

would have come from his experience working within the context 

of Congress. 

Senator CORNYN. Just to followup on that real quickly and then 

we can move on, just so we are clear, none of our counsel who 

would advise us on nominations, legislation, constitutional amendments and the like would have that kind of experience either. The 

day-to-day procedural matters, ruling on matters of evidence, or arguing cases to juries, so it is not clear to me how Mr. Van 

Tatenhove’s experience would be distinguished, let’s say, from the 

staff of the Senate Judiciary Committee in terms of crediting time 

for this purpose. 

Mr. TOBER. Well, I cannot speak to what others may do or not 

do, Senator. Obviously, you can do that with far more understanding than I can, but I want to underscore, we take these one 

case at a time, and we look at the individual as they present himself or herself. And we talk to them about our concerns, and this 

is one of the things that indeed we did do. 

Senator CORNYN. Thank you. 

Senator SCHUMER. Let me ask this. Are you finished, Steve, with 

your— 

Mr. TOBER. I just wanted to do one more thing. 

Senator SCHUMER. Go ahead. Why don’t you finish? 

Mr. TOBER. One more thing. The vote, as you know from our letter, was a majority ‘‘not qualified’’ and minority ‘‘qualified.’’ And I 

guess I wanted to say that I want the Senate Committee to understand that every member of my Committee recognizes that there 

is a very real person on the receiving end of a ‘‘not qualified’’ rating. It is not anything we miss, that in fact these nominations have 

faces. I asked my committee, and I have asked my committee, and 

I will continue to ask my committee, to vote their conscience when 

they in fact have one like this, to look very hard at it, particularly 

if it is going to be a ‘‘not qualified’’ result in their mind, because 

it obviously affects people’s lives. 

Having said that, this Committee came up with a majority ‘‘not 

qualified.’’ 

Senator SCHUMER. Can you tell us the vote, Steve, number? 

Mr. TOBER. I can only tell you, Senator, that it was a majority 

‘‘not qualified,’’ but I can also tell you—I do not mean to be disingenuous—our backgrounder defines it, and it says that ‘‘when the 

nominee receives a specific rating from a majority (8 or 9 members), or a substantial majority (10 to 13 members).’’ This was a 

majority. 

Senator SCHUMER. OK, got it. And there are 13 total? 

162

Mr. TOBER. There are 14 members on the Committee plus me, 

but I take my role to be the vote in the case of a tie. 

Senator SCHUMER. So you do not vote? 

Mr. TOBER. Only in a tie. 

Senator SCHUMER. OK. So it could have been 8–6 or 9–5. 

Mr. TOBER. That is correct. 

Senator CORNYN. Mr. Tober, may I ask one other question about 

this standard. The mentioned the 12 years trial experience standard would apply for both a Federal District Court and a Circuit 

Court; is that correct? 

Mr. TOBER. The 12 years is the practice of law, but— 

Senator CORNYN. It is practice of law, OK. 

Mr. TOBER. Yes. 

Senator CORNYN. Now, would this also apply to a nominee for the 

U.S. Supreme Court? 

Mr. TOBER. Well, I do not know why it would not. The Committee believes—I am reading from our backgrounder, Senator—

’’The Committee believes that ordinarily a nominee to the Federal 

bench should have been admitted to the bar and engaged in the 

practice for at least 12 years.’’ But if I can continue to finish the 

paragraph? 

Senator CORNYN. Sure. 

Mr. TOBER. ‘‘In evaluating the experience of a nominee the court 

recognizes that opportunities for advancement in your profession 

for women and members of minority groups may have been limited. 

Substantial courtroom and trial experience as a lawyer or a trial 

judge is important for nominees for both the appellate and the trial 

courts. Additional experience that is similar to in-court trial work, 

such as appearing before or serving on administrative agencies, or 

arbitration boards, or teaching trial advocacy or other clinical law 

school courses, is considered by the Committee in evaluating a 

nominee’s trial experience. Significant evidence of distinguished accomplishment in the field of law may compensate for a nominee’s 

lack of substantial courtroom experience.’’ 

Senator CORNYN. So just one last question in that vein. If you 

are a law professor, let’s say, would that qualify as the kind of 

legal experience that would satisfy the 12-year rule? 

Mr. TOBER. I think Louis Brandeis probably thought it did but—

I do not mean to be cute about it—I would think if someone was 

teaching law it would be in a related sense, and it could well be 

considered as the distinguished accomplishment in the field of law 

that would compensate for the lack of trial experience. 

Senator CORNYN. OK, thank you very much. 

Senator SCHUMER. Just following up on John’s, I have a few 

more myself. I understand this is not a rigid rule but sort of a 

guideline. Do you look for more trial experience for a person in the 

district court level than at the appellate court level? It seems to me 

a professor of law is better suited at the appellate—who has never 

practiced and never been on trial—might be better for the appellate 

law than at the district court level. 

Mr. TOBER. Senator, I can say for myself, having been on this 

Committee for 3 years before chairing it, I gave that active consideration. I thought that someone who was going to be sitting on a 

trial bench should understand the smell of the courtroom, so to 

163

speak, and that someone who is going to be sitting on an appellate 

bench could perhaps have come there from a slightly different place 

in their life’s experience. 

Senator SCHUMER. OK. My other questions, if I might continue, 

Jeff, if you do not mind? 

Senator SESSIONS. Chuck, go ahead. I have a few, but you can 

go ahead while you are at it. 

Senator SCHUMER. How often do you recommend people positively without the 12-year experience? I mean are there five examples in the time you have been—how long have you been chairman, 

Steve? 

Mr. TOBER. For about 3 months, Senator. 

Senator SCHUMER. So you have been on about three and a half 

years. 

Mr. TOBER. That is correct. 

Senator SCHUMER. And Mr. Ayscue—am I pronouncing that 

right? 

Mr. AYSCUE. Correct. 

Senator SCHUMER. How long have you been on? 

Mr. AYSCUE. I was on the Committee for 3 years. I am an alumnus who was called back to active duty in the Van Tatenhove case. 

Senator SCHUMER. And did your 3 years overlap, each of you? 

Mr. AYSCUE. Yes. 

Mr. TOBER. Yes. 

Senator SCHUMER. OK. So how many times in that time did you 

give someone a positive recommendation who did not have the 12 

years, out of how many? There may have been very few people recommended without the 12 years. 

Mr. TOBER. Anecdotally, I know we have done it. I do not know 

that I can come up with the numbers. Ozzie, do you have any 

sense? 

Mr. AYSCUE. I do recall several who were obviously outstanding 

and had substantial trial, intense trial experience, who did not 

have that many years in the practice, plus with respect to whom 

the Committee did not bat an eyelash about. 

Senator SCHUMER. So in other words, if someone got out of law 

school, went to the U.S. Attorney’s Office, started off doing trials, 

became a Bureau Chief and did that and got great recommendations for 8 years or 9 years, that would not stand in their way, just 

hypothetically, somebody like that who had done lots of trials, was 

a Bureau Chief and trial lawyer before that. 

Mr. TOBER. I am trying to think. I did the evaluation of Jeffrey 

Howard for the Circuit Court of Appeals in the First Circuit, and 

I believe that was sort of similar to his background. That is on a 

trial bench, obviously, but I think if you totaled up his active years 

in practice it was probably below 12, but he had many other things 

of a distinguished nature going for him, and he was found qualified. 

Senator SCHUMER. Right. And how often have you found people 

not qualified at least in your experience, who did not have the 12 

years in addition to Mr. Van Tatenhove? 

Mr. TOBER. I would say that it was a very low number, but 

again, Senator, I do not know—we can probably get this information for you. 

164

Senator SCHUMER. You know, since you are going to do a written 

statement, if you could, that would be great. 

Mr. TOBER. Let me suggest that I will ask our staff to come up 

with numbers from both of the questions you asked. 

Senator SCHUMER. Great. I think that is it. 

Senator SESSIONS. That is good. I remember Bonnie Campbell, 

that it had come up, from Iowa, and had never tried a case at all. 

But I do feel like this individual was involved pretty significantly 

in some litigation. 

First let me ask you, did you count the year—you did not mention it, but did you count the year that he was a clerk to a Federal 

District Judge? 

Mr. TOBER. Ozzie, you want to answer that? 

Mr. AYSCUE. I can answer that. After having four years, the Federal clerkship, first year, 4 years at Department of Justice, between 

11 to 15 years ago, a 7-year hiatus when he was not actually practicing law, and the 4 years in the U.S. Attorney’s Office in which 

he was a supervisor and not trying cases. I brought this to his attention, urged him to suggest avenues of inquiry that might help 

me evaluate any experience he had that might be considered a surrogate for actual trial experience. I looked at his exposure, his judicial clerkship for a trial judge, his work as a Congressional staffer, 

a member of the Attorney General’s Advisory Committee, all of 

which seemed to enhance the overall gravatus of his resume, but 

none of these experiences other than what he observed during his 

clerkship, which was from 1989 to 1990, the first year after he finished law school, really involved anything that appeared to qualify 

as a surrogate for trial experience. 

Senator SESSIONS. But you would normally count, do you not, 

clerking for a Federal judge as just one of the 12 years? 

Mr. AYSCUE. Yes, I would. 

Senator SESSIONS. That would make it nine, as I would add up 

here, four DOJ, four as a United States Attorney, and one. 

Let me just say this in general. I respect you for having standards. We do hope that you will try to apply them equally across the 

board whatever nominee comes forward. But I respect that, and it 

definitely provides valuable information to us as we evaluate nominees. I am one who believe that a nominee for a district judge 

should have some trial experience unless they have extraordinary 

other capabilities that they could bring to the office. So I do not 

dispute how particularly how you calculate it. But we in the Senate 

obviously have a different standard. We are charged with trying to 

determine whether or not this person would make a good Federal 

judge, and as you noted, there are a lot of positive qualities that 

he has been noted for. 

With regard to his trial record, it should not be, I think, diminished too much. We had a hearing yesterday or the day before, and 

we found that only 1.6 percent of civil cases go to trial. 

There has been a real change in the work of a Federal judge. 

They manage litigation, they manage discovery, pre-trial motions 

on summary judgment and those kinds of things. And cases are 

being disposed of well over 95 percent, and I think over 95 percent 

of Federal cases disposed of by plea. 

165

So he was in this Attorney General’s honors program, in a Federal programs branch that was noted for handling especially complex and even precedent-setting cases. And he won the Department 

of Justice Special Achievement Award and he handled quite a number of cases; that a number of them settled, I don’t think might be 

as significant, Mr. Ayscue, as maybe it would have been for a practicing attorney 20 years ago, 30 years ago, when I was starting out. 

But will you comment on that? I mean, he represented the ArmyAir Force Exchange Service in a Title VII case, which is good experience for what they do in Federal court today. He represented the 

FBI in a large and complex Freedom of Information case, which 

tends to come up a lot, those regulatory matters. 

The Department of State he represented in a complex matter involving historic preservation regulations, the Foreign Missions Act, 

demolition of property owned by the Republic of Turkey. The Corps 

of Engineers he represented in a recreational use of property condemned as part of a waterway project for the region. 

So he listed ten cases, but I don’t think those were the only ten 

cases he ever handled, is that correct? I mean, these were just ten 

he listed as significant cases. 

Mr. AYSCUE. He was asked to list the ten most significant litigated matters which he personally handled. 

Senator SESSIONS. Yes. 

Senator SCHUMER. And how many did he actually have trial experience on on that? You said that before, one or two, I think. 

Mr. AYSCUE. One. 

Senator SCHUMER. One, right. 

Senator SESSIONS. Well, yes, a trial, but when you— 

Senator SCHUMER. Jeff, I understand that. I mean, we are not 

here making the arguments. 

Senator SESSIONS. Sure. 

Senator SCHUMER. We just want to hear what the ABA has to 

say and then let each person read the transcript and evaluate it 

for him or herself. 

Senator SESSIONS. I think that— 

Senator SCHUMER. I mean, I am not going to get up and argue 

with you on this. 

Senator SESSIONS. All right. 

Senator SCHUMER. But let me say this: I mean, I would just ask, 

I guess, you, Jeff, and Senator Specter’s staff person that the 

record be kept open so we can get other members who might wish 

to submit questions, and that this transcript be distributed to people. 

I just want to let you all know that I am not going to let this 

go through this afternoon. I mean, I think this is enough of an 

issue—I am not sure how I come down on it, but it is enough of 

an issue that we ought to wait until we come back in December. 

I don’t think that does any undue harm, and so I would like the 

record to be kept open, members to submit questions, the ABA to 

submit a written statement. And then we will distribute it and dispose of this on the 12th of December— 

Senator SESSIONS. All right. 

Senator SCHUMER [continuing]. When we return, or whenever it 

is, the 13th or whatever it is. 

166

Mr. TOBER. Can I just ask a clarifying question? 

Senator SCHUMER. Yes. 

Mr. TOBER. Would you like us to be submitting our present statement in advance of the questions or all at once? 

Senator SCHUMER. Probably do it, yes, as soon as you can. The 

written statement should be as soon as you can and the answers 

to the questions anytime up to December 12th, I guess. 

Mr. TOBER. We would be happy to do that. 

Senator SCHUMER. OK. 

Senator SESSIONS. One final question I would ask and that is 

with regard to the role of a United States Attorney in the Eastern 

District of Kentucky. As a United States Attorney, you also are responsible for everything that occurs in the office and are, by necessity, drawn into the plea negotiations, the settlement negotiations, 

the legal issues that are pending and how they may come out and 

how that may affect the strategy that the attorneys may have. 

Did you consider that, that even though he may not have been 

a trial United States Attorney that he gained sometimes broader 

experience by being responsible for supervising a wide variety of 

cases that came before him? 

Mr. TOBER. Do you want me to answer that, Ozzie, or would you 

like to answer it? 

Mr. AYSCUE. The answer is we certainly did. That is part of the 

mix. One of the things I found was that whether or not his predecessors tried cases depended on whether they had been trial lawyers before they became the United States Attorney, because he 

had some predecessors who were well known for cases as the U.S. 

Attorney and others who were administrators. But we did take that 

into consideration very much so. 

Senator SESSIONS. Well, it is a just a factor, I think, that we can 

all give evaluation to. 

Chuck, on written questions, why don’t we try to have those 

questions in within 1 week? Otherwise, we wouldn’t be able to get 

the answers back probably in time for the 12th. 

Mr. TOBER. Senator Sessions, could I just offer one other 

thought? 

Senator SESSIONS. Yes. 

Mr. TOBER. And I think it comports with what you are asking us. 

In our backgrounder we define professional competence in a very 

broad, embracing way. It encompasses—and I am reading from it—

’’such qualities as intellectual capacity, judgment, writing in the 

analytical ability,’’ and then on it goes, ‘‘through knowledge of the 

law and breadth of professional experience.’’ 

We don’t necessarily say you have to be a trial lawyer to be a 

trial judge. I want to make that clear if it wasn’t. 

Senator SESSIONS. I know you haven’t in the past. 

Mr. TOBER. I mean, someone could be a real estate lawyer or a 

probate lawyer. If they bring special talents to this and they are 

going to serve a lifetime on the bench and they are fair and honest 

and open, I mean you can’t ask for much more. But this one caught 

the attention of this committee, with the understanding that it was 

a difficult vote, because— 

Senator SCHUMER. Hello. I am sorry. 

167

Mr. TOBER. I am sorry—just because of the nature of the experience demonstrated in the report. 

Senator SESSIONS. Thank you for the time that you give. It is a 

public service. The insight of the bar is a valuable to us. Obviously, 

we have our own ultimate responsibility under the Constitution to 

vote aye or nay to the President’s nominee, and we will consider 

that carefully. 

So we will have any questions in by December 5th. Then we will 

be in shape to close this out, I think. 

Senator SCHUMER. Well, I just wanted to go over that. I had to 

drop off for a second because I had to take another call. So we are 

saying the ABA report—your written report gets to us by next Friday. Is that what we were saying? 

Mr. TOBER. You give me a deadline, Senator, and we will make 

it. 

Senator SCHUMER. OK. Well, how about by Wednesday, is that 

all right? I mean, Thursday and Friday are—is Friday better for 

you? I don’t care. 

Mr. TOBER. We will have it to you by Wednesday, by the end of 

the day. 

Senator SCHUMER. By Wednesday, and then let’s have the questions submitted by the following Monday. And that way you can 

have a week to answer them and that will still give people a week 

to look at it all by the time the 12th rolls around. 

Does that sound OK, Jeff? 

Senator SESSIONS. The questions that I am referring to, I think, 

are the questions from any of the Senators— 

Senator SCHUMER. Yes, me, too. 

Senator SESSIONS [continuing]. To the nominee by December 

5th—I mean the ABA. 

Senator SCHUMER. Yes, that is right. 

Senator SESSIONS. OK. 

Senator SCHUMER. So in other words—I don’t have a calendar in 

front of me, but by Wednesday the report comes out. Senators submit questions by the following Monday, the 28th. 

Senator SESSIONS. Yes. 

Senator SCHUMER. And your answers come back the 5th and that 

gives people a week before the 12th. 

Senator SESSIONS. It makes good sense. 

Senator SCHUMER. OK, great. 

Senator SESSIONS. Thank you. We appreciate your— 

Senator SCHUMER. Mr. Tober and Mr. Ayscue, thank you very 

much for taking the time here. And I just want to tell you, Mr. 

Tober, I completely agree with you that we should not do this this 

way. We had unusual circumstances, but I am going to try to make 

sure we do it the normal course henceforth. 

Mr. TOBER. I appreciate that very much, Senator. Thank you. 

Senator SESSIONS. Thank you all. 

Senator CORNYN. Thank you, gentlemen. 

Senator SCHUMER. Thanks, everybody. 

[The conference call was concluded at 3:39 p.m.] 

(169)

NOMINATIONS OF VIRGINIA MARY KENDALL, 

OF ILLINOIS, TO BE UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; KRISTI DUBOSE, OF 

ALABAMA, TO BE UNITED STATES DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

ALABAMA; AND W. KEITH WATKINS, OF ALABAMA, TO BE UNITED STATES DISTRICT 

JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA 

TUESDAY, NOVEMBER 15, 2005, 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:32 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions, presiding. 

Present: Senators Sessions and Durbin. 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. The meeting will come to order. 

I am delighted to welcome and chair this panel of outstanding judicial nominees, two from my home State of Alabama. I will defer 

my opening remarks until other Senators arrive, and they may 

want to speak also. 

With the appearance of Senator Shelby, our senior Senator from 

Alabama, I would like to recognize him at this time, and would just 

note that Senator Shelby is a skilled attorney who has practiced 

law in his career before his governmental experience. He understands the importance of the Federal Judiciary. He understands 

what it is like for a lawyer to practice before a judge, and he takes 

these matters very, very seriously. 

Richard, it is a pleasure for me to have you here ando receive 

your remarks at this time. 

170

PRESENTATION OF W. KEITH WATKINS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA, 

BY HON. RICHARD SHELBY, A U.S. SENATOR FROM THE 

STATE OF ALABAMA 

Senator SHELBY. Thank you, Mr. Chairman. Senator Sessions, I 

appreciate working with you as my colleague, and I also appreciate 

the work you do on the Judiciary Committee. We are on different 

committees. You are a Chairman of a Subcommittee on the Armed 

Services Committee, Chairman of the Subcommittee, and of course 

a member of the Judiciary Committee. I am on the Appropriations 

Committee and the Banking Committee, but we cannot serve on 

the same Committees. So I think overall we try to work together. 

I am here today, I am just going to focus on Keith Watkins, if 

I can, because I do not think Kristi needs any introduction to you 

or to the Judiciary Committee. But she has got my blessing, as you 

well know, both of us. 

I want to thank you for allowing me to be here today and to introduce Keith Watkins. Keith has been nominated by President 

Bush to serve as a judge on the U.S. District Court for the Middle 

District of Alabama. I am also proud to support his nomination. I 

have known him for many, many years, since he basically was in 

law school, and I knew he was practicing some in Tuscaloosa. 

I believe he will make an outstanding Federal judge. He is a native of Alabama. He received his undergraduate degree from Auburn University, his law degree from the University of Alabama. 

He has been in private practice of law, practicing law, Senator Sessions, every day since 1976, and is currently a partner at the firm 

of Calhoun, Faulk, Watkins and Faircloth in Troy, Alabama. 

He has represented his clients, everybody believes, in a fair and 

deliberate manner, and I believe he is an intelligent and honest 

man who will serve our Nation well. 

I encourage my colleagues to treat him fairly, and to give him an 

opportunity to show you that he will interpret the law and not 

make the law. I believe he will also prove to this Committee and 

to the Senate and to the people of Alabama on his ability to be fair 

and impartial in hearing cases before him, should he be allowed to 

serve on the U.S. District Court for the Middle District of Alabama. 

Again, I want to thank you for holding this hearing today, and 

I hope that you will vote him out of this Committee and allow the 

full Senate to consider his nomination. 

Mr. Chairman, I also want to recognize his family. He is joined 

here by his wife, Terri, his two children, Scott and Emily, as well 

as his parents, Harold and Joanne Watkins. 

I am glad to support him, and I believe I am allergic to something here. 

[Laughter.] 

Senator SHELBY. Thank you very much. 

Senator SESSIONS. Very good, Senator Shelby. I know you have 

to chair the hearing for the new Federal Reserve Chairman. What 

a special event that is also, very important nomination. I think we 

have a good nominee, and I know your Committee will delve into 

that deeply. 

Thank you very much for your comments. 

Senator SHELBY. Thank you. 

171

PRESENTATION OF KRISTI DUBOSE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA, 

BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 

OF ALABAMA 

Senator SESSIONS. I also am pleased to share with Senator Shelby his remarks about Keith Watkins, but I would like to say that 

welcoming Judge Kristi DuBose to the Committee marks one of the 

best days of my Senate career. In most instances when you introduce a nominee, you know his or her reputation and legal acumen 

based upon recommendations by others, but with Judge Lee, I have 

firsthand experience. From my experience, I know that she is first 

rate in all issues across the board. 

She graduated magna cum laude from my alma mater, Huntingdon College, where she remains active in the Alumni Association, I am pleased to see, with a double major in history and business. In 1986 she graduated from the Emory University School of 

Law with distinction in the top 10 percent of her class. 

After law school she clerked for a Federal District Judge in New 

Orleans, Judge Beer, for the Eastern District of Louisiana, which 

is very good experience for the job she holds today, since she 

worked for the very kind of judge she would now be. 

Then in August 1990, I made the wise decision to hire her to be 

an Assistant United States Attorney in the Criminal Division in 

the Southern District of Alabama. During her 3 years of service in 

the United States Attorney’s Office, Judge Lee excelled in every capacity. I know that during that period, she tried close to, if not 

more, than 20 jury criminal cases, filed an equal number of appeals 

before the Eleventh Circuit Court of Appeals, writing those briefs 

herself. So she has been exposed to a great deal of the aspects of 

Federal practice as an attorney. 

Remember in 1991 when she successfully prosecuted, at the time, 

one of the largest marijuana cultivating cases in the United States. 

She also prosecuted bank fraud cases, conspiracy cases and public 

corruption cases. In one case she prosecuted as a sole prosecutor 

six defendants on the charge of manufacturing and distributing 

methamphetamine. 

After spending a brief stint in a District Attorney’s office in Covington County, Alabama—a good experience to have that perspective—in 1994, when I was elected to the Attorney General’s job of 

the State of Alabama, she joined me as one of my Deputy Attorney 

Generals. She served there for 2 years, focusing primarily on important public corruption cases and working with the State legislature to implement a Speedy Trial Act, a General Fraud Statute, 

and to revamp the State ethics law. 

When I was fortunate enough to be elected to the Senate, I 

brought Kristi with me to serve as my Chief Counsel on this Judiciary Committee, and she also served as my counsel on the Senate 

Ethics Committee. And by the way, there is no one I know that has 

any higher standards of probity and ethics than Judge Lee. I know 

that in this capacity, as Senate Judiciary Committee staffer, she 

won the respect of colleagues on both sides of the aisle. In fact, 

when I mentioned to Senator Leahy, our Ranking Member, that 

she might be under consideration for this appointment, he told me 

he would be pleased to lend his support. 

172

In January of 2000, Judge Lee was appointed a Magistrate Judge 

in the Southern District of Alabama, so for the past 5 years she has 

been doing the actual job of judging, and doing it well. In the 

Southern District of Alabama, the Magistrate Judges, pursuant to 

an agreement by the parties, can actually try a case and carry it 

all the way through the trial process. She has full experience as a 

Federal Judge. She will be able to hit the ground running, once 

confirmed. 

I have talked to the judges in the Southern District, and I know 

that they look forward to Judge DuBose joining them in this new 

capacity. They tell me that she has the proper judicial temperament, is faithful to the rule of law, and a pleasure to work with. 

Of course, they did not have to tell me those things because I know 

it firsthand. 

Judge DuBose will do well on the Southern District. Her integrity is impeccable. She has a keen intellect, a respect for the rule 

of law, and I look forward to supporting her nomination. 

Senator Obama, it is great to have you with us. I know you have 

a busy schedule. I have some remarks I would like to make about 

our nominee, Keith Watkins, from Alabama, but I will withhold 

those at this time, and would be delighted to hear from you on 

nominee Virginia Kendall. Thank you for sharing your time with 

us. 

PRESENTATION OF VIRGINIA MARY KENDALL, NOMINEE TO 

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

ILLINOIS, BY HON. BARACK OBAMA, A U.S. SENATOR FROM 

THE STATE OF ILLINOIS 

Senator OBAMA. Thank you so much, Senator Sessions. I very 

much appreciate the opportunity. Senator Durbin is waylaid. He 

will be here soon, but I wanted to go ahead and take the opportunity to introduce Virginia Kendall, who is the nominee to the 

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

I would like to first of all acknowledge that our hopefully soonto-be judge has her family here today, her daughter and her son, 

two of Virginia’s three children, if I am not mistaken. We have her 

husband, mom and brother, and a sister, so we have got the full 

complement here. 

Ms. KENDALL. is a native of the great State of Illinois. She spent 

her entire career working in the State. She received her bachelor’s 

and master’s degree from Northwestern University, her law degree 

from Loyola University. 

It is extraordinarily fitting that Ms. Kendall has been nominated 

to the Northern District since she severed as an intern for District 

Court Judge George Marovich while in law school, and after graduation worked in his office as a clerk. 

After he clerkship, Ms. Kendall joined the U.S. Attorney’s Office 

in Chicago, where she has dedicated herself to representing the interests of some of the most vulnerable members of our society, 

namely our children. As Deputy Chief of the Criminal Division, she 

coordinates Federal and State investigations of child exploitation 

cases, and as Senator Durbin I am sure will mention, she has prosecuted some of the ground-breaking cases around the Nation on 

this issue, including the Nation’s first Internet kidnapping case. 

173

Not only has Ms. Kendall distinguished herself as an outstanding 

lawyer and public servant, she is an outstanding member of the 

community. She has been active in community service activities, 

experiences that I believe will inform her work as a judge and will 

benefit both plaintiffs and defendants appearing in her courtroom. 

Ms. KENDALL. brings to the bench what she has brought to her 

long legal career, boundless energy, a sense of fairness, and a 

strong commitment to the rule of law. 

Just to make mention, Mr. Chairman, of how we came about this 

decision, Senator Durbin and myself interviewed a number of candidates. We have a wonderful tradition in Illinois of bipartisanship 

in trying to select appropriate judicial nominees. I think it is fair 

to say that Senator Durbin and I were both extraordinarily impressed with not only Ms. Kendall’s wonderful resume, but more 

importantly I think, her enormous passion for the issues that she 

has worked on. She is a true advocate, in the best sense of the 

word, and I think her temperament is one that will be very well 

suited to the bench. 

I am just so proud that she is here with us today, and I know 

Senator Durbin shares my pride. 

Let me just thank the Committee for holding this hearing, and 

I look forward to Ms. Kendall’s swift confirmation. 

Senator SESSIONS. Thank you, Senator Obama, for those good 

words. We hear good reports on Ms. Kendall, and look forward to 

the hearing proceeding, and I am sure to confirmation. We would 

be glad to have you stay, but if you have to go, we will understand. 

I will recognize Senator Durbin to make some comments, and he 

is a skilled attorney himself, a passionate advocate for the legal 

system in this country, and I am always pleased to work with him. 

PRESENTATION OF VIRGINIA MARY KENDALL, NOMINEE TO 

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

ILLINOIS, BY HON. RICHARD DURBIN, A U.S. SENATOR FROM 

THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Senator Sessions. I want to thank 

you for chairing this, and especially thank Senators Specter and 

Leahy. We are near the end of the session. Any excuse will do not 

to have a hearing, and yet they were kind enough to give us this 

hearing for these judicial nominees. I think it reflects the fact that 

they are people of quality, they are nominees that come to us without political controversy, and we feel confident that the Senate, 

when hearing your qualifications, will join us in supporting them. 

I also want to join with Senator Obama, and thanking him personally, for his role in this process. And, Senator Sessions, I would 

like to tell you that we had House input as well. Speaker Dennis 

Hastert, because he is the ranking Republican on the House side, 

was an important part of the process. Most of you know that the 

President approves nominees for the court, and usually the highest 

Ranking Member of his party is part of that process. I had agree 

long ago with Senator Fitzgerald, a Republican, my Republican colleague for 6 years, that we would share this task, and that every 

fourth nomination would go to the minority Senator, a Senator not 

likely to have a nomination otherwise. Senator Fitzgerald appointed several people when there was a Democrat in the White 

174

House, and I appointed several with a Republican in the White 

House, with his concurrence. 

And so I turned to Speaker Hastert and said, ‘‘Now you are the 

ranking Republican. Shall we carry on in this tradition?’’ He said 

yes. I noted to him that the next vacancy was mine, so it was a 

real test as to whether it would be bipartisan. It was completely. 

From start to finish, through all the nominees, Speaker Hastert 

was involved in reviewing their background, preparing questions, 

having the final word on the names that were submitted. 

The White House asked—and this was a little unusual—that we 

submit two names so that they could choose between them at the 

White House level. We sent the names of two extremely qualified 

people. I felt confident either one could do this job and do it well. 

And the White House made the decision to choose Virginia Kendall. 

I could not be happier. 

She is an exceptional person. You have heard about her background. You certainly heard about her family, and I hope you 

heard about her mom, who is here today, and I had a chance to 

meet with her earlier and her wonderful family, and as she said, 

the only regret is that her dad could not be with us, and I wish 

he could be, but I bet he is looking down and smiling that his 

daughter has reached this level of achievement. 

She has done such a great job, not only in working with her family and doing things that are necessary in her community and 

neighborhood, but also becoming someone highly respected in the 

legal community. It is amazing all of the accolades that poured in 

when she was nominated, and they came from so many different 

levels. The first I heard of her was from some of her former students in law school, who thought she was the best professor they 

had. That speaks very well of Virginia Kendall’s ability not only to 

understand the law, but to teach it, which is part of this learning 

experience. 

She and her husband have been involved in Cristo Rey Jesuit 

High School in Chicago, which is an amazing success story of a 

high school in the area of Pilson, low income, Hispanic area that 

has just been a dramatic success, and it speaks well of her family 

commitment to them. 

One of her biggest supporters is her boss, Patrick Fitzgerald, well 

known to most as a U.S. Attorney in the Northern District of Illinois, in addition to a few other assignments. He has written about 

her, and I want to quote, ‘‘Virginia Kendall,’’ he says, ‘‘I can also 

assure you that Ginny is a warm and compassionate person who 

is very attentive to the human needs of those she works with and 

supervises. Ginny’s combination of legal talents, experience as a 

prosecutor, supervisor and instructor, and commitment to bettering 

the communities most in need of help, would stand her in great 

stead if she were selected as a Federal Judge in this district.’’ That 

is from her boss, and you expect kind words from a boss or she 

might not be working there. 

But we also heard some great words from her opposing counsels, 

attorneys who were on the other side in a lawsuit, and what they 

had to say, some of them, was just nothing short of amazing. One 

of her opposing counsels described her as, quote, ‘‘honorable, decent, ethical, someone with an ideal temperament.’’ As an attorney 

175

who has practiced before judges, I love to hear that last phrase, 

ideal temperament. 

Another opposing counsel said Virginia was, quote, ‘‘down to 

earth, honest, straightforward, reliable and full of integrity.’’ 

Mr. Chairman, it does not get much better than that. I am honored to join Senator Obama and Speaker Hastert in presenting her 

nomination to the Senate Judiciary Committee. Thank you. 

Senator SESSIONS. Thank you, Senator Durbin. 

PRESENTATION OF W. KEITH WATKINS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA, 

BY HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 

OF ALABAMA 

Senator SESSIONS. I am also pleased to introduce to the Committee, Keith Watkins, a native of Pike County, Troy, Alabama, 

and an individual destined to be an outstanding jurist. He graduated from Auburn University in 1973—had a pretty good game 

this weekend. Got his law degree from University of Alabama in 

1976—which was not so good for Alabama this weekend. 

Dick, you watched the Auburn game Saturday, I believe you told 

me. 

Senator DURBIN. Yes. 

Senator SESSIONS. I dare say there are few people who bring 

more wealth of actual legal and human experience to the District 

Court than will be brought by Keith Watkins. He is more than a 

practitioner, which he has done exceedingly well for many years. 

He is an arbitrator and a mediator. This alternative dispute resolution experience is the kind of experience I believe that could be 

helpful to the District Court, and I have no doubt it will be an 

asset to the parties and other judges in the Middle District of Alabama. 

Since graduating from law school in 1976, Mr. Watkins has been 

in the private practice of law except for a 3-year stint when he 

served as a public defender for the city of Troy between the years 

of ‘80 and ‘83. That practice has panned the spectrum of legal 

issues. He has represented criminal defendants, filed cases on behalf of plaintiffs, defended businesses from lawsuits, engaged in 

real estate law, as well as business and estate planning, drafted 

wills, handled domestic cases and represented foundations, churches, businesses and political organizations. 

In short, he is a super legal practitioner. In recent times Mr. 

Watkins has placed an emphasis on mediation and has mediated 

more than 200 cases. I believe that this experience is something 

that will help him help parties resolve disputes quickly without unnecessary delay and cost. 

He has done more than his share of community service, both locally and abroad, from building houses for Habitat for Humanity 

and working to start a local Boys and Girls Club, to doing carpentry work on the Jamaica Baptist Women’s Union Orphanage in 

Jamaica. I believe he has made a number of trips outside the country to assist others. His pro bono record is very impressive. 

When I first met him, he told me he had just completed a will 

codicil for an elderly lady, and that her payment was in the form 

of baking him a pie. 

176

[Laughter.] 

Senator SESSIONS. I have been impressed with Mr. Watkins since 

Senator Shelby brought his record to my attention. I have talked 

to judges and lawyers in the Middle District, and they tell me he 

will do an outstanding job. He has a reputation for character and 

integrity and hard work. I have not met anyone that has made any 

complaint against him. 

So I am pleased to add my strong support to Mr. Watkins. He 

comes from the heart of the Middle District of Alabama. I know he 

is excited about the opportunity of this position. 

Both of the Alabama nominees, from my experience and investigation are hard working; they are intelligent; they have great integrity; they can manage a caseload; and I think they both can 

make a decision, which is an important thing in a judge. So I am 

pleased to have them here. 

We would ask that the three of you, if you would, step forward, 

and before you sit down, if you would raise your right hand, I will 

administer the oath. 

Do you swear or affirm that the testimony you are about to give 

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

help you God? 

Ms. KENDALL. I do. 

Judge DUBOSE. I do. 

Mr. WATKINS. I do. 

Senator SESSIONS. Thank you. Please take your seats. 

I know Senator Durbin had a number of things on the floor, but 

I will recognize him at this time to go first. 

Senator DURBIN. Thank you very much, Senator Sessions. It is 

going to be tough to ask hard questions of Virginia Kendall, because I have asked her these questions and I know her answers, 

and so I will direct them to the panel, just kind of general statement of your feelings about the role of a judge. I mentioned earlier 

the question of temperament. Senator Strom Thurmond used to always make a point of raising that question when people were about 

to take a lifetime position on the Federal bench. What he was looking for, and I think we all look for, is some sort of indication of 

your feeling about your role in this judgeship and how treating clients and attorneys is an important part of it. 

Mr. Watkins, as the man who received the pie as your compensation, I know that you are a humble man, so let me ask you to start 

off if you would, please. 

STATEMENT OF W. KEITH WATKINS, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA 

Mr. WATKINS. Thank you, Senator Durbin. I do appreciate the 

President’s confidence in me to nominate me for this position, and 

the Committee having this hearing, and thank you for your question. 

I think temperament is the key ingredient for the running of a 

courtroom and for engendering respect for the Judicial Branch 

among the folks who come forward. A former partner of mine sent 

me an e-mail a couple of weeks ago, and he said that, remember, 

should I be confirmed, that people will remember being mistreated 

long after they have forgotten being ruled against. And I believe 

177

that is the truth, and as a practicing attorney for 29 years, in I 

cannot tell you how many courthouses, with few exceptions I have 

been treated the way I needed to be treated and wanted to be 

treated as an attorney, and I would do likewise. I can appreciate 

that situation with attorneys and litigants. They will receive fair 

treatment from me and equal justice under the law. 

[The biographical information of Mr. Watkins follows:]

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Senator DURBIN. Judge DuBose? 

STATEMENT OF KRISTI DUBOSE, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA 

Judge DUBOSE. Thank you, sir. For the last 6 years it’s been my 

job to try to provide a place for the litigants and the attorneys to 

be able to come and get a fair and equitable hearing. And they 

leave the courtroom, I hope—my goal—when they leave the courtroom is they understand that I have applied the law the way the 

legislature intended me to apply the law. 

[The biographical information of Judge DuBose follows:]

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Senator DURBIN. Thank you. 

Ms. Kendall? 

STATEMENT OF VIRGINIA MARY KENDALL, NOMINEE TO BE 

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

Ms. KENDALL. Thank you, Senator, and thank you for your kind 

introduction. 

It is foundation for our system that people have access to the 

courts and that they feel that they can address their grievances to 

the court, and that can only be done if they are assured that their 

rights will be protected, that they are assured that they will be 

treated with respect when they appear before the judiciary, and 

that is the type of judge that we need in the judiciary, the type of 

judge that is only appropriate in this system. Thank you. 

[The biographical information of Ms. Kendall follows:]

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Senator DURBIN. Let me just ask one other question if I can in 

the short time remaining. 

Senator Sessions knows that one of my heroes is an Alabama 

Federal Judge by the name of Frank Johnson, and when I visited 

Alabama with John Lewis, Congressman from Atlanta, Georgia, 

and he took me to Montgomery and Birmingham and Selma and 

talked about that stormy period of civil rights emergence in America. He said one person who does not receive enough credit is 

Frank Johnson, who had the courage to rule that we could have a 

march in Selma. 

For his courage, Judge Johnson was ostracized by many in his 

community, faced threats on his life, threats on his family. Courage 

is an element which we all like to believe we have when it is needed, but I would like you to address that element because there are 

times when a judge has to do what is right even if it is unpopular. 

Ms. Kendall? 

Ms. KENDALL. Thank you, Senator. Well, certainly as a judge 

you’re always addressing every issue from the perspective of the 

precedent that came before you. And so in most instances you will 

have the ability to rely on that precedent and feel comfortable with 

a decision. And in those unique circumstances, those very unique 

areas where for once there is an issue that you need to address 

probably by first impression, for example, I think courage will come 

into play to apply the law, to look to the legislative intent, determine what was necessary and to make that correct decision. 

Senator DURBIN. Judge DuBose? 

Judge DUBOSE. Well, it’s been my experience that I had to learn 

that I had to give up the hope of popularity back in high school, 

and that I have to have the courage to apply the law the way you 

intended, and that’s what I have been doing, and that is what I intend to continue if I am fortunate enough to be confirmed. 

Senator DURBIN. Mr. Watkins? 

Mr. WATKINS. Senator, I am a witness to that era. I lived in the 

Middle District at the time, and actually, Representative Lewis is 

from my county. I don’t know him personally, but I know his brothers who live in Troy. 

I have to say that I admire that level of courage, and that I think 

that is an absolute prerequisite to a judge at this level. And I 

would give you my word that I have the courage to do exactly what 

I believe is right. 

Senator DURBIN. Thank you. 

Thank you, Mr. Chairman. 

Senator SESSIONS. Good questions, Senator Durbin. Oftentimes 

the choices become difficult, and it will be a lonely time for you, 

but we believe you have those qualities of integrity and character 

and strength of conviction to do the right thing. It is interesting 

that we have discussed Rosa Parks and her death in the last week 

or so, and gone through that, and talk about Judge Frank Johnson’s role in that first case, and the courthouse that he presided in 

so long, Judge to be—we think—Watkins will be serving in. 

I forgot to ask you to identify your families. Ms. Kendall, would 

you take a moment to identify for us and introduce us those that 

are with you? 

266

Ms. KENDALL. Thank you, Senator. I appreciate that. I have a 

large contingent from Illinois. I have my husband, Preston, almost 

25 years; and my son, Preston; my daughter, Maeve, who came 

down from Madison, Wisconsin; and I have another son, Connor, 

who is studying hard up at Marquette today, and is here in spirit; 

my mother, Marie Cowhey; and my brother, Jim Cowhey; and one 

of my sisters, Cathy Cowhey; and two good friends, John and Kris, 

Krasnodebski and Boyaris. 

Thank you for having us. 

Senator SESSIONS. Very good. 

Judge DuBose? 

Judge DUBOSE. Thank you. I have with me my daughter, Hannah, who turned 13 yesterday; and my husband, Ben Hatfield of 

48 hours; friend Chuck Diard—

Senator SESSIONS. Making a number of lifetime commitments. 

[Laughter.] 

Judge DUBOSE. In 1 week. Gail Linkins, Sheila Jacoby and Lisa 

Welch. 

Senator SESSIONS. Very good. 

And Mr. Watkins? 

Mr. WATKINS. Yes, sir. I have my wife, Teresa; and my daughter, 

Emily from Nashville; son, Scott Watkins and his fiancee, Jenny 

Webb; my nephew Jacob Watkins—stand up, Jacob—and his father, my brother, John Watkins; and my father, Harold Watkins, 

a Navy veteran and a member of the greatest generation; and my 

mother, Joanne Watkins; and my uncle, T. Bob Davis; and good 

friends Sam and Jill Casey from up here; and Todd and Pam 

Perlstein from Troy, Alabama. 

Senator SESSIONS. Very good. Thank you for introducing those 

for us. 

I would like to pursue a little bit more about the first question 

that Senator Durbin had, and to seek a commitment from you that 

as Judge Thomas in Mobile used to say, ‘‘Remember, you are appointed, not anointed.’’ And each of you, we hope, will serve quite 

a long time. Have you given thought to your role as a servant; yes, 

a courageous tough decisionmaker managing the court, but also as 

a individual who serves the public and the parties that come before 

it, and would you share some thoughts about that? 

Ms. KENDALL. Thank you, Senator. I have been privileged to 

serve only in the public sector in the Northern District of Illinois, 

in Chicago, for my entire career. And I have been privileged to 

serve as an Assistant United States Attorney. And each day when 

I—even on the most hectic of days, when I am running from courtroom to courtroom, there are moments when I sit back and I look 

out at the courtroom and I think, This is remarkable, this is really 

remarkable that the Founders thought of this and it is really working and it’s playing out. Every day, little justices and very significant justices every day. 

And I can only think that it would be the greatest of honor to 

serve as a judge within that system, and I believe that over the 

years working in the prosecutor’s office of service that I will have 

the next level of service in that position if the Committee and the 

Senate would be so kind as to move me to that next level of service. 

Senator SESSIONS. Well, good. 

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Judge DuBose? 

Judge DUBOSE. I certainly made the commitment to continue 

what I hope I’ve been doing for the last 6 years. I practiced in the 

Southern District of Alabama in front of some very fine judges, and 

I appreciated the way I was treated, and I tried to extend the same 

respect to the attorneys as well as the parties. 

I realize every day when a party appears in front of me, they, 

too, have families—daughters, husbands, wives—and this affects 

their life. This is probably the most important thing that is happening in their life, and I should pay them attention and I should 

pay them the respect that they deserve. And that is what I hope 

to continue to do, and I make that commitment to you. 

Senator SESSIONS. Good. Mr. Watkins? 

Mr. WATKINS. Thank you, Senator. I echo the remarks of my colleagues. The only thing I would add would be that there is a model 

of leadership called servant leadership, and that is a model I subscribe to. I think that’s the best form of leadership. And I think by 

serving, that engenders respect for the system and for the court 

and for the decisions of the court. And I give you my commitment 

to be a servant leader. 

Senator SESSIONS. Judge DuBose, we are going to have a hearing 

later this week on the Federal judiciary and the caseload that they 

carry. And one of the things we will discuss is the role of the magistrate judge. You have been a magistrate judge now over 5 years. 

What thoughts have you to share with us about how you might use 

a magistrate judge or how the magistrate judges are used in the 

Southern District of Alabama? 

Judge DUBOSE. Well, in the Southern District of Alabama, I have 

had the opportunity to be what we call fully utilized. We are allowed to participate in all cases. I handle all discovery in all civil 

cases that are assigned to me. I am often—if they consent to me, 

I even try the civil cases. 

Senator SESSIONS. If both parties consent, then you sometimes 

try those cases as a Federal district judge would. 

Judge DUBOSE. I sit as a district judge to try those cases. In 

criminal cases, we handle from the arrest, search warrants, arrest 

warrants, from arrest all the way through sitting, presiding over 

the jury selection, the natural jury selection. Then it goes to the 

district judge. And I have handled summary judgments, motions to 

remand, motions to dismiss on what we call a report and recommendation, where basically we do the legal research and we 

write the opinion and we give that report and recommendation to 

the district judge. 

The parties are allowed an opportunity to object or further comment, and the district judges often adopt the report in full without 

revision. 

So I have been given a lot of opportunities. It is very helpful. In 

the Southern District, as you well know, we only had one district 

judge for a time period, and the magistrate judges were allowed to 

participate fully in the system. 

Senator SESSIONS. Are you a believer in that? Do you recommend 

that other Federal judges use magistrate judges more? 

Judge DUBOSE. I think it’s the most efficient way to move the 

court docket and to give the parties—we’re able to give most of our 

268

parties a trial within a year, which is probably a record. I need to 

ask my clerk of court here, but we move the cases and it is because 

of the magistrate judges and their help that we are able to do so. 

Senator SESSIONS. Ms. Kendall, have you done much work before 

a magistrate? Have you got any thoughts—well, first of all, I understand when you say ‘‘full utilization,’’ in the Southern District 

magistrates are allowed to do almost everything that——

Judge DUBOSE. Everything that the statute and the Constitution 

allows us to do. 

Senator SESSIONS. I don’t know how broadly they are used in 

Northern Illinois, but do you have any thoughts on that? 

Ms. KENDALL. Yes, Senator. We have a very talented magistrate 

judge group in Chicago. The only difference, it appears to me, from 

what Judge DuBose said is that we don’t have magistrate judges 

do jury selection. That would be only for the district court judge, 

if it was a felony case. Other than that, all of the other issues that 

she mentioned are issues that we also present, and in my clerking 

years, I know that it was a wonderful thing to be able to rely on 

some of these very seasoned civil litigators to resolve discovery disputes and other matters and write the reports and recommendation, and they always moved the case along at a faster pace. So 

they are very efficient and helpful to the district court judge. 

Senator SESSIONS. I tend to agree. We do not want to have an 

exponential increase in the number of Article III judges. One way 

to do that is to allow some of the work to be done by the magistrate 

judges, also providing ultimately that right of every litigant to be 

before an Article III, senatorially confirmed, lifetime-appointed 

Federal judge. 

Mr. Watkins, you have been a senior partner in a firm, and you 

have had lots of different works and clients and demands on your 

time. I believe that case management is an important aspect of a 

good judge. You have practiced before probably hundreds of judges, 

appeared before a hundred or more, probably several hundred 

judges in your career. What are your thoughts and what commitment can you give us that you will manage your docket, make sure 

that people have a prompt ruling when appropriate, and that justice is dispensed as speedily as possible? 

Mr. WATKINS. Thank you, Senator. I have had the experience in 

court, as I shared with you before, of a case being delayed many 

years for a decision after it was tried. And I think not to be just 

trite, but justice delayed is justice denied, in criminal cases and in 

civil cases. 

You don’t make it in a small-town practice if you don’t manage 

your work. I don’t have law clerks. I don’t have paralegals. The witnesses, I interview the witnesses, I write the briefs, I do the pleadings, I try the case, handle the appeals, whatever comes up. 

So I have 29 years of surviving by managing my own personal 

docket. I can’t tell you how delighted I am to think, should I be 

confirmed, that I would have a staff to help with that. 

[Laughter.] 

Mr. WATKINS. Including law clerks. And so I give you my commitment to keep the docket current. I understand there are a lot 

of cases already there for refer to Judge ‘‘X.’’ There are over 250 

already assigned to Judge ‘‘X.’’ 

269

Senator SESSIONS. And be sure that all the dogs will be assigned 

to Judge ‘‘X,’’ too, when each of you get there. That is part of the 

ritual, I think. 

Tell us, Mr. Watkins, about your observations on mediation that 

maybe our other nominees would benefit from, and also we will be 

thinking about that perhaps as we go forward this week to discuss 

the Federal judiciary’s caseload. 

What are your observations and insights from your extensive mediation experience? 

Mr. WATKINS. First, I will note that our judges in the Middle District do encourage mediation, and it’s a very active practice. I have 

mediated several Federal cases. Probably a majority of my cases 

have been State cases. 

Mediation is assisted settlement negotiation. Senator, 98 percent 

of cases in the Federal system, civil jury cases, are not tried. A lot 

of them go out on summary judgment. But only 2 percent of the 

cases, according to current statistics, are tried; in Alabama State 

courts, only 3 percent. 

Unfortunately, a lot of cases settle on the courthouse steps after 

expense, time, delay, aggravation, tempers, and those kinds of 

things. And I like to tell litigants that that is not an atmosphere 

of the courthouse that you would buy an old pick-up truck in. Why 

would you settle a major case in that kind of an atmosphere? 

Mediation takes you into a private office, usually, or into private 

rooms in the courthouse, separate the parties, and do the Henry 

Kissinger back-and-forth to convince them of why it is necessary—

or why it is appropriate to settle a case. 

Each side has a good advocate. As a mediator I advocate, too. I 

advocate settlement because that is the probabilities on the case. 

It is a good thing, and Alabama was actually late coming to a lot 

of use of mediation, but it will help tremendously keep the dockets 

clear. 

Senator SESSIONS. Is there time in the process when a Federal 

judge could initiate the appointment of a mediator? Do you have 

any thoughts on that? 

Mr. WATKINS. Yes, sir, the magistrate judges handle that in our 

district, and private mediators like myself do likewise, usually by 

agreement of the parties, and they are paid privately by the parties. But at some point in mediation or at a point when the parties 

can agree to it—I’m sorry, at some point in discovery or at a point 

when the parties can agree to it is when it should be done. When 

discovery is relatively, roughly complete, if the plaintiff has survived the motion for summary judgment, then it’s a good time for 

mediation at that time. The parties should be encouraged prior to 

that to cut expense in the judicial system and in the private litigation system. 

Senator SESSIONS. Ms. Kendall, you, like Judge DuBose, had the 

honor of standing up in court and representing the United States 

of America, which is a thrill to be able to do. But you also, I noticed, have become an expert and have written on child abuse problems. Would you share some of your thoughts on that problem? 

Ms. KENDALL. Certainly, Senator, and I believe I share your 

background, as well, as a prosecutor someplace, right? It is such a 

270

privilege to serve as a Federal prosecutor and stand up and say 

that you represent the people. 

The work that I have done in the area of child exploitation started happenstance, really, by a case that came on a duty day. But 

over the years, I have had to explore how to investigate and initiate prosecutions primarily that have involved the Internet and 

that have involved that class of children that is between 12 and 18 

years of age, which is an at-risk group. And I have had the pleasure of working with the Department of Justice in helping them to 

look at the statutes that we had in the past that may not have addressed that group, and I have had the pleasure of working with 

victims and trying to show them all of the statutory rights that 

Congress passed for them to aid them in the process. And it has 

been an absolute honor to be able to say that there is some change 

in that area and that the victims in these cases are being helped. 

Senator SESSIONS. Good. Well, I would just say this to you: You 

have gotten the nomination of the President of the United States. 

You have had extensive support in your home districts. You have 

won the respect of your fellow practitioners and those who have 

known your professionally. And each of you have a tremendous 

background of public service and a commitment to helping and 

serving others. So I think those are qualities that are important. 

I guess most of all we pay you for your judgment. That is what 

you will be dispensing, judgment, but I am impressed with all of 

you. I think that the Senate will be also. As we wrap up this year’s 

session, I am not sure how it will develop, but if there is a way, 

maybe there will be an opportunity to move you through before we 

recess for the year. 

Do any of you have anything else that you would like to say, any 

complaints that you would like to offer? 

[Laughter.] 

Senator SESSIONS. I will ask you—a ‘‘yes’’ would be sufficient—

do you know the salary that you will be paid and are you willing 

to work for it? 

Ms. KENDALL. Absolutely. 

Judge DUBOSE. Yes, sir. 

Mr. WATKINS. I don’t know the salary, but I’m willing to work. 

[Laughter.] 

Senator SESSIONS. Well said. Well, you will probably receive 

some raises, but perhaps not as many as some on the bench would 

like. But it is a demanding job. We look forward to your service, 

and we will conclude the hearing at this time. I look forward to 

chatting with you for a few moments after we conclude. 

If there is nothing else to come before the Committee, we will be 

adjourned. 

[Whereupon, at 3:16 p.m., the Committee was adjourned.] 

[A submission for the record follows.]

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