S. HRG. 110–138, pt.4 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 7, JUNE 11, SEPTEMBER 9, AND SEPTEMBER 23, 2008 

PART 4 

Serial No. J–110–8 

Printed for the use of the Committee on the Judiciary 

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48–894 PDF 2008

S. HRG. 110–138, pt. 4 

CONFIRMATION HEARINGS ON FEDERAL 

APPOINTMENTS 

HEARINGS 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 7, JUNE 11, SEPTEMBER 9, AND SEPTEMBER 23, 2008 

PART 4 

Serial No. J–110–8 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

May 7, 2008 

STATEMENT OF COMMITTEE MEMBER 

Page 

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

prepared statement and letter ......................................................................... 297 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 4 

PRESENTERS 

Levin, Hon. Carl, a U.S. Senator from the State of Michigan presenting 

Helene N. White, Nominee to be Circuit Judge for the Sixth Circuit, Raymond M. Kethledge, Nominee to be Circuit Judge for the Sixth Circuit 

and Stephen Joseph Murphy III, Nominee to be District Judge for the 

Eastern District of Michigan ............................................................................... 6 

Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan presenting 

Helene N. White, Nominee to be Circuit Judge for the Sixth Circuit, Raymond M. Kethledge, Nominee to be Circuit Judge for the Sixth Circuit 

and Stephen Joseph Murphy III, Nominee to be District Judge for the 

Eastern District of Michigan ............................................................................... 8 

STATEMENTS OF THE NOMINEES 

Kethledge, Raymond M., Nominee to be Circuit Judge for the Sixth Circuit .... 78 

Questionnaire .................................................................................................... 79 

Murphy, Stephen Joseph, III, Nominee to be District Judge for the Eastern 

District of Michigan ............................................................................................. 106 

Questionnaire .................................................................................................... 108 

White, Helene N., Nominee to be Circuit Judge for the Sixth Circuit ................ 9 

Questionnaire .................................................................................................... 10 

QUESTIONS AND ANSWERS 

Responses of Raymond M. Kethledge to questions submitted by Senator 

Grassley ................................................................................................................ 178 

Responses of Stephen Joseph Murphy III to questions submitted by Senator 

Grassley ................................................................................................................ 181 

Responses of Helene N. White to questions submitted by Senators Brownback, 

Coburn, Grassley, Hatch, Kyl, Sessions, Specter and Cornyn ......................... 183 

SUBMISSIONS FOR THE RECORD 

American Bar Association, Chicago Illinois 

Michael S. Greco, October 31, 2005, letter ..................................................... 291 

C. Timothy Hopkins, May 6, 2008, letter ....................................................... 293 

June 11, 2008 

STATEMENTS OF COMMITTEE MEMBERS 

Brwonback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 304 

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 303 

Page

IV 

STATEMENTS OF THE NOMINEES 

Gardephe Paul G., To be U.S. District Judge for the Southern District of 

New York .............................................................................................................. 305 

Questionnaire .................................................................................................... 306 

Matsumoto Kiyo A., To be U.S. District Judge for the Eastern District of 

New York .............................................................................................................. 344 

Questionnaire .................................................................................................... 346 

Seibel Cathy, To be U.S. District Judge for the Southern District of New 

York ....................................................................................................................... 377

Questionnaire .................................................................................................... 378 

Suddaby Glenn T., To be U.S. District Judge for the Northern District of 

New York .............................................................................................................. 412 

Questionnaire .................................................................................................... 414 

SUBMISSIONS FOR THE RECORD 

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

presenting Kiyo Matsumotot, Cathy Seibel, Paul Gardephe and Glenn 

Suddaby to the Federal Bench ............................................................................ 447 

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

Kiyo Matsumotot, Cathy Seibel, Paul Gardephe and Glenn Suddaby to 

the Federal Bench ................................................................................................ 449 

September 9, 2008 

STATEMENTS OF COMMITTEE MEMBERS 

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

statement .............................................................................................................. 720 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 453 

prepared statement .......................................................................................... 735 

Specter, Hon. Alren, a U.S. Senator from the State of Pennsylvania ................. 455 

PRESENTERS 

Allard, Hon. Wayne, a United States Senator from the State of Colorado 

presenting of Christine Arguello, Nominee to be District Judge for the 

District of Colorado, and Philip A. Brimmer, Nominee to be District Judge 

for the District of Colorado .................................................................................. 459 

Bennett, Hon. Robert F., a United States Senator from the State of Utah 

presenting Clark Waddoups, Nominee to be District Judge for the District 

of Utah .................................................................................................................. 457 

Hatch, Hon. Orrin G., a United States Senator from the State of Utah 

presenting Utah of Clark Waddoups, Nominee to be District Judge for 

the District of Utah .............................................................................................. 456 

Salazar, Hon. Ken, a United States Senator from the State of Colorado 

presenting of Christine Arguello, Nominee to be District Judge for the 

District of Colorado, and Philip A. Brimmer, Nominee to be District Judge 

for the District of Colorado .................................................................................. 461 

Specter, Hon. Arlen, a United States Senator from the State of Pennsylvania 

presenting Gregory G. Garre, Nominee to be Solicitor General of the United 

States .................................................................................................................... 463 

STATEMENTS OF NOMINEES 

Anello, Michael M., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 547 

Questionnaire .................................................................................................... 548 

Arguello, Christine M., Nominee to be District Judge for the District of 

Colorado ................................................................................................................ 624 

Questionnaire .................................................................................................... 625 

Brimmer, Philip A., Nominee to be District Judge for the District of Colorado 667 

Questionnaire .................................................................................................... 669 

Garre, Gregory G., Nominee to be Solicitor General of the United States ......... 503 

Questionnaire .................................................................................................... 507 

Page

V 

Scriven, Mary Stenson, Nominee to be District Judge for the Middle District 

of Florida ............................................................................................................... 583 

Questionnaire .................................................................................................... 585 

Waddoups, Clark, Nominee to be District Judge for the District of Utah .......... 465 

Questionnaire .................................................................................................... 466 

QUESTIONS AND ANSWERS 

Responses of Gregory G. Garre to questions submitted by Senator Durbin ....... 698 

SUBMISSIONS FOR THE RECORD 

Clement, Paul D., Acting Solicitors General of the United States, and Walter 

E., Dellinger, III, Theodore B. Olson and Barbara D. Underwood, former 

Solicitors General of the United States .............................................................. 721 

Congressional Research Service, Denis Steven Rutkus, Specialist of the Federal Judiciary and Kevin M. Scott, Analyst on the Federal Judiciary, Government and Finance Division, Washington, D.C. ............................................ 723 

Martinez, Hon. Mel, a U.S. Senator from the State of Florida, statement ......... 743 

Millett, Patricia A., Akin Gump Strauss Hauer & Feld LLP, Washington, 

D.C., letter ............................................................................................................ 744 

Salazar, Hon. Ken, a U.S. Senator from the State of Colorado, statement ........ 745 

September 23, 2008 

STATEMENTS OF COMMITTEE MEMBERS 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, prepared 

statement .............................................................................................................. 965 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 749 

prepared statement .......................................................................................... 970 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 751 

WITNESSES 

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas presenting 

Eric F. Melgren a Nominee to be District Judge for the District of Kansas ... 752 

Casey, Hon. Robert, Jr., a U.S. Senator from the State of Pennsylvania 

presenting C. Darnell Jones, II, a Nominee to be District Judge for the 

Eastern District of Pennsylvania, Mitchell S. Goldberg a Nominee to be 

District Judge for the Eastern District of Pennsylvania, and Joel H. 

Slomsky a Nominee to be District Judge for the Eastern District of Pennsylvania ...................................................................................................................... 753

Roberts, Hon. Pat, a U.S. Senator from the State of Kansas presenting Eric 

F. Melgren a Nominee to be District Judge for the District of Kansas ........... 754 

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

Anthony J. Trenga a Nominee to be District Judge for the Eastern District 

of Virginia ............................................................................................................. 752 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia presenting Anthony J. Trenga a Nominee to be District Judge for the Eastern District 

of Virginia ............................................................................................................. 754 

STATEMENTS OF NOMINEES 

Goldberg, Mitchell S., Nominee to be U.S. District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 841 

Questionnaire .................................................................................................... 842 

Jones, C. Darnell, II, Nominee to be U.S. District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 811 

Questionnaire .................................................................................................... 812 

Melgren, Eric F., Nominee to be U.S. District Judge for the District of Kansas .......................................................................................................................... 907 

Questionnaire .................................................................................................... 908 

Slomsky, Joel H., Nominee to be U.S. District Judge for the Eastern District 

of Pennsylvania .................................................................................................... 869 

Questionnaire .................................................................................................... 870 

Trenga, Anthony J., Nominee to be U.S. District Judge fo the Eatern District 

of Virginia ............................................................................................................. 755 

Page

VI 

Trenga, Anthony J., Nominee to be U.S. District Judge fo the Eatern District 

of Virginia—Continued 

Questionnaire .................................................................................................... 757 

QUESTIONS AND ANSWERS 

Responses of Eric F. Melgren to questions submitted by Senator Kennedy ....... 960 

SUBMISSIONS FOR THE RECORD 

Casey, Robert P., Jr., a U.S. Senator from the State of Kansas, statement ....... 968 

Warner, Hon. John, a U.S. Senator from the State of Virginia, statement ........ 973 

Roberts, Hon. Pat, a U.S. Senator from the State of Kansas, statement ........... 972 

Webb, Hon. Jim, a U.S. Senator from the State of Virginia, statement ............. 977 

ALPHABETICAL LIST OF NOMINEES 

Anello, Michael M., Nominee to be District Judge for the Southern District 

of California .......................................................................................................... 547 

Arguello, Christine M., Nominee to be District Judge for the District of 

Colorado ................................................................................................................ 624 

Brimmer, Philip A., Nominee to be District Judge for the District of Colorado 667 

Gardephe Paul G., To be U.S. District Judge for the Southern District of 

New York .............................................................................................................. 305 

Garre, Gregory G., Nominee to be Solicitor General of the United States ......... 503 

Goldberg, Mitchell S., Nominee to be U.S. District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 841 

Jones, C. Darnell, II, Nominee to be U.S. District Judge for the Eastern 

District of Pennsylvania ...................................................................................... 811 

Kethledge, Raymond M., Nominee to be Circuit Judge for the Sixth Circuit .... 78 

Matsumoto Kiyo A., To be U.S. District Judge for the Eastern District of 

New York .............................................................................................................. 344 

Melgren, Eric F., Nominee to be U.S. District Judge for the District of Kansas .......................................................................................................................... 907 

Murphy, Stephen Joseph, III, Nominee to be District Judge for the Eastern 

District of Michigan ............................................................................................. 106 

Scriven, Mary Stenson, Nominee to be District Judge for the Middle District 

of Florida ............................................................................................................... 583 

Seibel Cathy, To be U.S. District Judge for the Southern District of New 

York ....................................................................................................................... 377

Slomsky, Joel H., Nominee to be U.S. District Judge for the Eastern District 

of Pennsylvania .................................................................................................... 869 

Suddaby Glenn T., To be U.S. District Judge for the Northern District of 

New York .............................................................................................................. 412 

Trenga, Anthony J., Nominee to be U.S. District Judge fo the Eatern District 

of Virginia ............................................................................................................. 755 

Waddoups, Clark, Nominee to be District Judge for the District of Utah .......... 465 

White, Helene N., Nominee to be Circuit Judge for the Sixth Circuit ................ 9 

(1) 

NOMINATION OF HELENE N. WHITE, OF 

MICHIGAN, TO BE CIRCUIT JUDGE FOR THE 

SIXTH CIRCUIT; RAYMOND M. KETHLEDGE, 

OF MICHIGAN, TO BE CIRCUIT JUDGE FOR 

THE SIXTH CIRCUIT; AND STEPHEN JOSEPH 

MURPHY III, OF MICHIGAN, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF MICHIGAN 

WEDNESDAY, MAY 7, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:11 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Cardin, Specter, Hatch, Grassley, Kyl, 

Sessions, Cornyn, Brownback, and Coburn. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. I have been speaking during 

the last several weeks about the progress we have made and are 

making in repairing the terrible damage done to our confirmation 

process and about our progress in reducing judicial vacancies. 

The American people do not want judicial nominations rooted in 

partisan politics. They want Federal judges who understand the 

importance of an independent judiciary. Our independent courts 

are a source of America’s strength, endurance and stability. Our judicial system has been the envy of the world. The American people 

expect the Federal courts to be impartial forums where justice is 

dispensed without favor to the right or the left or to any political 

party or faction. They are the only lifetime appointments in our 

Government, and as a result, these nominations matter a great 

deal. The Federal judiciary is the one arm of our Government that 

should never be politicized or made political, regardless of whether 

we have a Democratic President or a Republican President. 

Now, today we see a demonstration of the progress about which 

I have been speaking and for which I have been working. Today’s 

hearing moves us closer to confirming President Bush’s nominations to the last two vacancies on the Sixth Circuit Court of Appeals. This completes the task I began when I became Chairman 

2 

in the summer of 2001, when the Sixth Circuit was in turmoil and 

nominations had been road-blocked for years. At that point there 

were four vacancies on the Sixth Circuit. I thought I would go 

through some of this history for those who may be new to all this 

or may not remember this. 

When I scheduled a hearing and a vote for Judge Julia Smith 

Gibbons, and then for Judge John Marshall Rogers, we were able 

to break an impasse that had lasted for 5 years. The other party 

had blocked all of President Clinton’s nominees. I quickly moved to 

President Bush’s. And if we confirm Judge White and Mr. 

Kethledge, that would complete the process by filling the two remaining vacancies on the Sixth Circuit. 

I continue in this Congress, and I will continue with a new President in the next Congress, to work with Senators from both sides 

of the aisle to ensure that the Federal judiciary remains independent and able to provide justice to all Americans, without fear 

or favor. 

The Michigan vacancies on the Sixth Circuit have proven a great 

challenge. I do want to commend Senator Levin and Senator Stabenow for working to end the impasse. I have urged the President to 

work with the Michigan Senators and, after 7 years, he has. Last 

month our extensive efforts culminated in a significant development that can lead to filling the last two vacancies on the Sixth 

Circuit, both vacant so long that they have now been classified as 

‘‘judicial emergencies.’’ 

This accomplishment stands in sharp contrast to the actions of 

my friends, the Senate Republicans who refused to consider any— 

any—of the highly qualified nominations to the Sixth Circuit Court 

of Appeals during the last 3 years of the Clinton administration. 

Those nominees included Judge White; also, Kathleen McCree 

Lewis, an accomplished attorney and the daughter of former Solicitor General of the United States and former Sixth Circuit Judge 

Wade McCree; and Professor Kent Markus. Professor Kent Markus 

was supported by his home-State Senators, both Republicans. 

So, accordingly, I am delighted to welcome Judge Helene White 

to the Committee. Judge White has served on the Michigan Court 

of Appeals during the past 15 years, having been elected by the 

people of Michigan in 1992. Before that she served for a dozen 

years on the Wayne County Circuit Court, a court of general trial 

jurisdiction, the Common Pleas Court for the city of Detroit, and 

the 36th District Court of Michigan. But here is how she is described by the Bush White House on their website. President 

Bush’s website described her as ‘‘an experienced and highly qualified judge, who is known for her intellect, work ethic, and demeanor.’’ I do not want to upset President Bush by saying this, but 

I totally agree with the President on this issue. In addition, she 

has been active as a member of the legal community and of community organizations including COTS, the Coalition on Temporary 

Shelter, something my wife and I support in Burlington, Vermont; 

JVS, Jewish Vocational Services; and the Metropolitan Detroit 

Young Women’s Christian Association. 

Now, she was first nominated by President Clinton to a vacancy 

on the Sixth Circuit in January 1997, more than 11 years ago, but 

the Republican-led Senate refused to act on her nomination. She 

3 

waited in vain for 1,454 days for a hearing, before her nomination 

was withdrawn in March of 2001. Hers was one of the scores—actually, about 60—of qualified judicial nominees who were pocket 

filibustered during that time. But as I said, last month President 

Bush reconsidered, renominated her, and according to his website 

has very high praise for her. 

Our second Sixth Circuit nominee is Raymond Kethledge. Mr. 

Kethledge is a young man who has spent 8 years in legal practice 

in Michigan beginning as an associate in the litigation department 

of Honigan Miller Schwartz and Cohn, later as a partner at the 

boutique litigation firm of Feeney Kellett Weinner and Bush and, 

since the summer of 2003, as a founding member of his own firm, 

that of Bush Seyferth Kethledge and Paige. He also spent a year 

as an in-house counsel at Ford Motor Company in their general 

counsel’s office. I am also glad to see that he has performed pro 

bono legal services, something I have always thought lawyers 

should do and something that the managing partner in the law 

firm I was in when I first came out of law school insisted that everybody perform pro bono service, as did he. 

Our third nomination for consideration today is the President’s 

recent nomination of Stephen Joseph Murphy III to be a United 

States District Judge for the Eastern District of Michigan. That vacancy is also classified as a ‘‘judicial emergency.’’ 

When on April 15 he announced the renomination of Judge 

White, I commended the President. Since then I have sought to expedite consideration of these Michigan nominees in recognition of 

the breakthrough represented by the agreement reached between 

the President and the Michigan Senators. The Michigan Senators 

have always been interested in a bipartisan solution to judicial vacancies on the Sixth Circuit. I remember, Senator Levin, you had 

worked, and Senator Stabenow, with former Governor Engler, actually a Republican Governor, and reached an agreement that he was 

strongly in favor of but was rejected by the White House. And you 

had previously proposed a bipartisan commission as a way to reach 

consensus in Michigan. Today, I thank and commend the Senators 

from Michigan, and again I thank the President for finally working 

with them and us. 

In light of that cooperation, we have taken extraordinary steps 

to expedite this hearing. I thank all members for their cooperation. 

I recently received a letter from Senator McConnell and Senator 

Specter in which they note the importance of our receiving updated 

ABA peer reviews for these new nominations. I want Senator Specter to know that I agree with him that those are important. The 

ABA Standing Committee has been working diligently to provide 

reviews on the recent nomination of Justice Steven Agee to the 

Fourth Circuit as well as other nominations. They have been helpful, and we appreciate their efforts. Given the ABA ratings we have 

received in connection with the prior nominations of Judge White 

and Mr. Murphy, I expect the new ratings will not present a concern about qualifications. As I have assured Senators McConnell 

and Specter, I will seek to ensure that we proceed in an orderly 

fashion, that all Senators have a fair opportunity to question the 

nominees, and that we have all the materials we need in order to 

fairly consider these nominations. 

4 

Now, I am sure there are some who prefer partisan fights designed to energize a political base during an election year. I do not. 

The Republican Senate majority during the last 5 years of the Clinton administration more than doubled vacancies on our Nation’s 

circuit courts. They went from 12 to 26 to 32 during the transition. 

We have been able to reverse that trend. We have reduced circuit 

vacancies by almost two-thirds. Today there are fewer circuit court 

vacancies than at any time since the 1996 session. In fact, our 

work has led to a reduction in vacancies in nearly every circuit. We 

are heading toward reducing circuit court vacancies to single digits 

for the first time in decades. With these nominations, we are also 

poised to add the Sixth Circuit to the other five circuits without a 

single vacancy, thanks to our efforts. 

I am determined to prioritize progress, not politics, and focus the 

Committee on those nominations on which we actually can make 

progress, those on which the White House has finally begun to 

work with the Senate. Of course, the alternative is to risk becoming 

embroiled in contentious debates for months and then foreclose any 

of the progress we have made. We saw it happen last year when 

we had a controversial nomination took 51⁄2 months of debate after 

a hearing before Senate action was possible. We saw what happened during the last several months of the last Congress. There 

were many hearings on many controversial nominations, and everything slowed up. I like to make progress, and that is what we 

have tried to do. And during the years that I have been privileged 

to serve as Chairman of this Committee, we have been able to. 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I think that it bears repeating that we are approaching a hearing 

for Judge White which does not conform with the practices of the 

Committee and is an unusual rush to judgment. I begin with the 

letter sent to the Chairman and me yesterday from the American 

Bar Association raising concerns and objecting to the hearing in advance of the ABA report. 

I look at the sequence with Judge White’s nomination on April 

15th of this year, 21, 22 days ago; the questionnaire not completed 

until April 25th; FBI report not completed until April the 25th; and 

at the time sequence where nominations have been handled in the 

past with deliberation and not this racetrack approach. 

The comments in 2001 were noted in the ABA publication which 

said, ‘‘Several key Democratic Senate leadership, most significantly 

Patrick J. Leahy of Vermont, say that’’— 

Chairman LEAHY. Leahy. Not Leehy. Leahy. 

Senator SPECTER. Excuse me, but I have the floor. 

Chairman LEAHY. I just want to— 

Senator SPECTER. Excuse me. I know that is not regarded around 

here, Mr. Chairman, but I have the floor. If you have a correction, 

you may have a chance to do it. 

‘‘ * * * say that they will wait for the ABA’s input before moving 

forward on any nomination.’’ 

5 

When a hearing was scheduled for Peter Keisler 33 days after his 

nomination, all of the Committee Democrats signed a letter to me 

asking for a postponement. One of the concerns was, ‘‘Given how 

quickly the Keisler hearing was scheduled, the ABA has not even 

completed its evaluation of this nominee.’’ The letter said, ‘‘We 

should not be scheduling hearings for nominees before the Committee has received the ABA ratings.’’ 

Senator Schumer said, ‘‘So let me reiterate some of the concerns 

we expressed about proceeding so hastily on this nomination. First, 

we have barely had time to consider the nominee’s record. Mr. 

Keisler was named to this seat 33 days ago, so we are having this 

hearing with astonishing and inexplicable speed.’’ That does not 

compare with the speed of this hearing. 

The situation is even in more stark contrast when we take a look 

at how long people have been waiting for hearings or action by the 

Committee. Peter Keisler’s nomination has been pending for more 

than 675 days. Robert Conrad has waited 290 days for a hearing 

and has been the subject of critical, really defamatory statements 

in this Committee room about being anti-Catholic without being 

given a chance to defend himself. Stephen Matthews, to the Fourth 

Circuit with a judicial emergency, has been waiting over 240 days. 

Since the hearing has been scheduled, the Republican members 

are prepared to proceed. We have accommodated schedules. I met 

for the better part of an hour yesterday with Judge White. But it 

would be my hope that the Committee will schedule hearings for 

others like Conrad and Matthews and others. 

It is hard to see the judicial wars being exacerbated and intensified in the U.S. Senate, but I see that coming if, as stated, this is 

the last of the circuit court nomination hearings. This has been a 

battle to the detriment of the American people for the last 20 

years. In the last 2 years of the Reagan administration, the Democrats controlled and stonewalled. The same in the last 2 years of 

the Bush I administration. And in the last 6 years of the Clinton 

administration, Republicans were even worse. Hard to be worse, 

but Republicans were. And I voted with the Clinton nominations 

when they were qualified. And the Senate almost came apart in 

2005 with the filibusters and the so-called constitutional or nuclear 

option. 

And it had been my hope that Senator Leahy and I would have 

structured a new era in the Senate. In the Roberts hearing, Senator Leahy took a courageous leadership position supporting Roberts for Chief Justice. Counting the Independent in the Senate, a 

majority of the Democrats, 23, voted for Roberts. And it had been 

my hope that we would come to a truce. But the warfare goes on, 

and the American people are in the firing line. 

There are judicial emergencies all over this country, exemplified 

by the Fourth Circuit where people need a day in court and are not 

getting it, people who have automobile accidents and are out of 

work and have medical bills, cannot get redress in the courts. Verdicts cannot be heard on appeal. We do not have to paint a graphic 

picture of what judicial vacancies mean. And this is all to the detriment of the American people. But I tell you, Mr. Chairman, a 

longstanding trend of some 40 years that is becoming very, very 

personal, and if it continues, there is going to be a new Congress, 

6 

there may be a President of a different party, and what has happened will look modest in comparison to what the scorched earth 

may be. 

So I would urge you to reconsider. I would urge you to use some 

of the approach which you and I took to the confirmation of Roberts 

and Alito. When the White House wanted to have the Roberts 

hearings begin on August 28th, I consulted with you, and I thought 

your objections were sound. And the hearings began after Labor 

Day. Your view prevailed because I thought it was right over the 

White House view. Similarly, the White House wanted Alito—I 

know the time, Mr. Chairman. I also know when you arrived. The 

White House wanted Alito confirmed before Christmas, and you objected, and you were right. And I agreed with you. Later, the President personally told me that the timing was correct. So here you 

see, Senator Leahy, you and he have agreed more than once—not 

much more than once, but occasionally more than once. 

But I do hope for the sake of the country and for the sake of the 

Senate that you reconsider this nomination-confirmation process. 

Thank you. 

Chairman LEAHY. Well, thank you. I am glad to hear the President said that about the timing to you. I wish he had said it to me. 

In fact, he seemed surprised several months after the Roberts nomination—when I told him I had voted for Roberts, he seemed surprised to hear that I had. 

I would note on the ABA, we are not going to vote on any of this 

until the ABA reports are in. As you know, there is a precedent for 

this. When you were Chairman, we held five hearings under you 

as Chairman before ABA ratings came in, including one where the 

rating turned out that the person was not qualified. And I know 

that people have been waiting. Judge Helene White has been waiting for 11 years. Mr. Kethledge and Mr. Murphy have been pending longer than Conrad and Matthews that you mentioned on their 

own terms here in Michigan. But let’s hear from one of the most 

senior members of the Senate, Senator Levin—he has been very 

patiently waiting—and Senator Stabenow. 

PRESENTATION OF HELENE N. WHITE, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; RAYMOND M. 

KETHLEDGE, NOMINEE TO BE CIRCUIT JUDGE FOR THE 

SIXTH CIRCUIT; AND STEPHEN JOSEPH MURPHY III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF MICHIGAN, BY HON. CARL LEVIN, A U.S. SENATOR FROM 

THE STATE OF MICHIGAN 

Senator LEVIN. Mr. Chairman, thank you and Senator Specter 

and members of the Committee for holding the hearing today. We 

are pleased to be here to introduce three Michigan nominees: Helene White and Raymond Kethledge, whom the President has nominated to the Sixth Circuit Court of Appeals; and Stephen Murphy, 

whom the President has nominated to the Eastern District of 

Michigan. 

Judge White has been a judge on the Michigan State Court of 

Appeals for 15 years. Before that, she served as judge on the 

Wayne County Circuit Court, which is our top trial court, for 10 

years. She graduated with honors from Barnard College, Columbia 

7 

University, and earned her J.D. at the University of Pennsylvania 

Law School. 

Judge White, as the Chairman mentioned, was previously nominated by President Clinton for a vacancy on the Sixth Circuit starting in 1997. The nominations were returned to the President without a hearing, as was the nomination of Kathleen McCree Lewis. 

And I want to make reference to Kathleen McCree Lewis here 

today for two reasons. First, I want to honor her memory in this 

setting. I also want to make reference to her because there is, in 

a letter which you have received from the widower of Judge Susan 

Bieke Neilson, whose vacancy is up for nomination today, a letter 

to the Chairman and the Ranking Member of this Committee from 

Judge Neilson’s husband. And Judge Neilson served on the Sixth 

Circuit for a tragically short period of 3 months, and, again, it is 

her seat on the Sixth Circuit that is the open seat to which Judge 

White has been nominated. This is a few excerpts from the letter 

from Jeff Neilson, who is the spouse, the widower of Judge Neilson. 

‘‘Senators Leahy and Specter: I thought it appropriate to correspond with you upon my becoming aware of the nomination of 

Judge White to fill the vacancy on the United States Court of Appeals for the Sixth Circuit occasioned by the death of my wife, 

Susan Bieke Neilson, and to state without reservation that Susan 

would be absolutely delighted that Helene would be her successor 

on the Sixth Circuit.’’ And then he makes reference to their fondness for Kathy McCree Lewis, and he closes by saying, ‘‘I believe 

that Helene will reflect the best qualities of both Susan and Kathleen in the performance of her duties, so that although death has 

precluded their presence on the Sixth Circuit, they will be there in 

spirit.’’ 

The second nominee is Ray Kethledge. He is currently a partner 

at Bush Seyferth Kethledge and Paige in Troy, Michigan. Before 

joining the firm, Mr. Kethledge served as a law clerk to Justice Anthony Kennedy on the U.S. Supreme Court, having earlier clerked 

for Judge Ralph Guy of the U.S. Court of Appeals for the Sixth Circuit, a very beloved judge. Mr. Kethledge also served as judiciary 

counsel to Senator Spence Abraham, our former colleague, whom 

we all know, from 1995 to 1997, and Ray Kethledge graduated 

magna cum laude from the University of Michigan Law School in 

1993. 

Finally, Stephen Murphy, who has been nominated to the District Court for the Eastern District of Michigan, currently serves as 

the U.S. Attorney for the Eastern District. Prior to his service as 

United States Attorney, Mr. Murphy was an attorney with General 

Motors’ legal staff in Detroit and worked for the U.S. Department 

of Justice for more than 12 years. He is a 1987 graduate of the St. 

Louis University School of Law. 

Finally, I want to again thank this Committee for your efforts to 

promote a resolution of this long unresolved matter, and I look forward to working with our colleagues to move these three nominations hopefully through the Senate. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much, Senator Levin. 

Senator Stabenow. 

8 

PRESENTATION OF HELENE N. WHITE, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; RAYMOND M. 

KETHLEDGE, NOMINEE TO BE CIRCUIT JUDGE FOR THE 

SIXTH CIRCUIT; AND STEPHEN JOSEPH MURPHY III, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT 

OF MICHIGAN BY HON. DEBBIE STABENOW, A U.S. SENATOR 

FROM THE STATE OF MICHIGAN 

Senator STABENOW. Well, thank you, Mr. Chairman, for holding 

this hearing, and while we all recognize the checkered past as it 

relates to judicial nominations, I would, with all due respect, just 

indicate that we have here today two Democratic Senators that are 

here introducing the President’s nominations. And it seems to me 

this is the process that we want to have happen, for people to be 

coming together. And I hope this is viewed as a positive reflection 

of the process of working together. 

I am very pleased to join Senator Levin in being here to welcome 

and introduce Judge Helene White and Mr. Raymond Kethledge 

and also Mr. Stephen Murphy III and their families. It is wonderful to see their families and children, and we know this is a very 

special day for all of them. 

As has been indicated, Judge Helene White brings 30 years of 

distinguished legal experience to the Federal bench. She has been 

a State judge since 1981, has served on both the 36th District 

Court for the city of Detroit and Wayne County Circuit Court. 

Since 1992, she has served on the Michigan Court of Appeals. She 

is a graduate of the University of Pennsylvania Law School and the 

Barnard College at Columbia University. I want to welcome Judge 

White and her family. It was wonderful to meet her two children 

today. 

Mr. Raymond Kethledge graduated from the University of Michigan and the University of Michigan Law School. I have to say as 

a Michigan State University graduate, this is a real historic moment here that I am supporting a University of Michigan graduate. 

Mr. Kethledge has worked for Senator Spence Abraham as his judicial counsel and followed that by clerking for both Justice Kennedy 

on the Supreme Court and Judge Ralph Guy on the Sixth Circuit 

of Appeals, and he is currently in private practice. So we want to 

welcome Mr. Kethledge and his family as well, and I was so 

pleased to meet his son and daughter today as well. We know it 

is a special day for them. 

And, finally, I would like to introduce Stephen Murphy. He is a 

graduate of St. Louis University School of Law. Mr. Murphy’s practice as both a Federal prosecutor and defense attorney in his practice, business litigation as an attorney for General Motors. Since 

2005, he has served as the U.S. Attorney for the Eastern District 

of Michigan. Mr. Chairman, we welcome Mr. Murphy and his family as well, and very much appreciate your taking the time of the 

Committee for this hearing. 

Thank you. 

Chairman LEAHY. Well, thank you very much, and I know both 

of you, I understand, have other committees you are supposed to 

be at, so I appreciate your being here. Thank you. 

9 

As Senator Levin and Senator Stabenow step down, we will just 

take a minute so we can set up to have the three nominees come 

back up to the table. Thank you very, very much. 

Chairman LEAHY. Would you please stand and raise your right 

hand? Do you solemnly swear that the testimony you will give in 

this matter will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Judge White. I do. 

Mr. Kethledge. I do. 

Mr. Murphy. I do. 

Chairman LEAHY. Thank you. Please be seated. 

Traditionally what we do at this point is ask for any opening 

statement from any one of you, and the tradition is I would ask you 

to be brief. But I would ask you in doing that if you would first— 

and let’s begin with you, Judge White—if you have members of 

your family or associates or friends who are here, please introduce 

them, because that actually goes into the record, and someday in 

the White Library or the Kethledge Library or the Murphy Library, 

somebody will look back there and say, ‘‘I was there at that hearing.’’ 

Judge White, go ahead. Do you have family members here? 

Judge White. I do. 

Chairman LEAHY. Please introduce them. There should be a little 

red button. If the light comes on, it is on. He is going to show you. 

Okay. Go ahead. 

STATEMENT OF HELENE N. WHITE, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SIXTH CIRCUIT 

Judge WHITE. Thank you very much, Chairman Leahy. I will 

then begin by introducing the friends and family who have joined 

me today. Over the years, I have been blessed with their love and 

support, and I am honored that they took the time to come today. I have some friends from Michigan who are with me: Jane 

Schelberg, Cathy Radner, and Elaine Fieldman. And I have friends, 

I have extended family: from Washington State Amy Regan, and 

from Washington, D.C., Josh Levin and his family. And, of course, 

I have my immediate family, and that would be my sister and her 

husband, Nancy and Larry Roth, from New York; and my precious 

children, Benjamin and Francesca. And I omitted my friends from 

law school: Nancy Walters from Boston, and Ruth Katz from Washington, D.C. Chairman LEAHY. When you get a copy of the transcript, you can 

double-check the spelling of the names, because they will all be interested in. I am delighted to see your children here. I have a 

granddaughter named Francesca. That is a wonderful name. Judge WHITE. And I would like to thank you, Chairman Leahy, 

Ranking Member Specter, members of the Committee, for this opportunity to appear before you. And I would like to take this moment to express my deep gratitude to President Bush for nominating me to this high office. I am both awed and honored and 

humbled by the trust that he has placed in me by making this 

nomination. 

Chairman LEAHY. Thank you. Is that it? Judge WHITE. Yes, sir. Thank you. [The biographical information follows.] 

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Chairman LEAHY. Thank you. 

Mr. Kethledge, would you please tell us if you have members 

here? 

STATEMENT OF RAYMOND M. KETHLEDGE, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT 

Mr. KETHLEDGE. Yes, thank you, Mr. Chairman. I would like to 

introduce my wife, Jessica; my daughter, Ella; my son, Ray. I am 

also joined by—I am going to get in trouble if I forget anyone here. 

I am joined by— 

Chairman LEAHY. That is why we keep the record open, Mr. 

Kethledge. 

[Laughter.] 

Chairman LEAHY. And at some point, you can say, ‘‘See, you did 

not hear me say your name, but here it is in the record.’’ Go ahead. 

Mr. KETHLEDGE. I am joined by my father, Ray Kethledge; my 

sister, Laura Strasius; and my mom, Diane Kethledge. I am also 

honored to have with me today two of my partners who made the 

trip out from Michigan: Patrick Seyferth, who loves attention, and 

Rick Paige. And I am joined by a whole bunch of other friends: Jim 

Neill, Ward Bobitz, Steve Hessler, Karen Lloyd—now I am going 

to forget somebody. They know who they are, and I am grateful 

that they are here. 

I would like to thank the Chairman, I would like to thank the 

Committee for having this hearing. I would like to thank the President for nominating me. I am deeply grateful for that. I would very 

much like to thank Senators Levin and Stabenow for their gracious 

introduction and for their hard work and openness in getting us to 

this point. And I would very much like to thank my wife for standing by me through this process. 

Chairman LEAHY. Well, thank you, Mr. Kethledge. It has got to 

be great also to have your parents here. I know how thrilled my 

parents were when they were able to see me sworn in several times 

in the U.S. Senate. It was a thrill for me, and I think a thrill for 

them. 

Mr. KETHLEDGE. Thank you. 

[The biographical information follows.] 

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Chairman LEAHY. Mr. Murphy. 

STATEMENT OF STEPHEN JOSEPH MURPHY III, NOMINEE TO 

BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 

MICHIGAN 

Mr. MURPHY. Thank you very much, Chairman Leahy. 

First, I would ask my wife, Amy, and my two precious children, 

Stevie and Natalie, to stand up. There is Natalie and Stevie. Can 

we see you? Come out here so everybody can see you. That is Stevie 

Murphy. 

My mother and father join us from St. Louis. Mom and Dad. And 

my sister, Tina, and her husband John Godar, who is a very close 

friend and lawyer in St. Louis, join us as well. 

Two of my colleagues from the Justice Department, Rita Foley 

and Myra Stith, are here as well. And I think that is it. 

I would like to give thanks, Chairman Leahy, to the members of 

the Committee, to the Ranking Member, and, Senator Leahy, I 

would really like to thank you for scheduling this hearing and for 

treating us fairly, as you have. I am extremely grateful to Senators 

Levin and Stabenow for introducing us and for working to get us 

here today. My great thanks goes to the President of the United 

States for this incredible gift and humbling bestowing of a nomination on me. And, of course, my family I am terrifically grateful for. 

So thank you for everything. 

Chairman LEAHY. Well, thank you very much, and let me ask 

this question of Mr. Kethledge and Judge White. The courts are 

really the only undemocratic branch of our Government, and in the 

Constitution, the Founders set it up that way. So they have a special responsibility to be open to those Americans who have the least 

power. They cannot vote for them or against them. They have—and 

with those Americans who have the least power, they also have the 

need for the greatest protection. I think the nominees have to show 

sensitivity to people of different backgrounds and show they have 

a commitment to equal justice under the law. 

Can you describe any situations where, as either the lawyer or 

as the judge, you have taken difficult positions on behalf of comparatively poor or powerless individuals or members of racial minorities? 

Judge White. 

Judge WHITE. Senator, thank you for asking that question. I 

began my judicial career as a judge on the Common Pleas Court 

and the 36th District Court for the city of Detroit. In that capacity, 

most of the cases that came before me were with pro per litigants, 

and I quickly learned how difficult it might be for someone who is 

uncounseled to appear before the court, how intimidating it might 

be. And in that service, I took great pains to both make people 

comfortable and to help them state what was on their minds, to 

help bring out what brought them before the court. 

In fact, when I was on the traffic court, I saw that the system 

was not responsive to pro per litigants in the sense that they would 

come to court with a number of problems that were just lurking in 

the file room, and they would leave thinking that they had taken 

care of them. And I instituted procedures in my courtroom that 

meant that when they came to court, all of the legal problems that 

107 

they had relating to the matter but not necessarily brought before 

the court because of the problems were addressed. 

I mention it because it was unpopular to those who thought that 

the system should just bring people in and out. But I have to say 

that at the end of my tenure, all the other courtrooms were using 

the same procedures, and I knew when I went home at the end of 

the day that the people that came before me received the justice 

that they were entitled to. 

[The biographical information follows.] 

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Chairman LEAHY. Thank you. 

Mr. Kethledge. 

Mr. KETHLEDGE. Thank you, Mr. Chairman. I would point to a 

couple of experiences that I have had. The first is while I was at 

Honigan Miller, I worked with people in Detroit who were trying 

to take ownership of homes that had been subject to tax foreclosures by prior owners. And it was actually a difficult process to 

clear those prior tax liens from the titles of these folks who were 

trying to renovate their homes. I worked with a number of those 

people to get them clear title so that they could renovate their 

homes. For that work, I was named Pro Bono Lawyer of the Year 

for Community Legal Services in Detroit, and I am very proud of 

that. 

Chairman LEAHY. And as I said, I feel very strongly that lawyers 

should do pro bono. Let me ask you one question, though, Mr. 

Kethledge. The overwhelming majority of your practice focused on 

civil litigation and commercial litigation, civil class action and so 

on. I went through your Senate questionnaire. About 5 percent of 

the cases were criminal. Of course, the Federal criminal docket has 

grown very substantially, and a lot of the appeals that are going 

to the circuit courts are from our criminal appeals. 

What will you draw on, what kind of experience, knowing that 

you are going to be hit with a whole lot of criminal cases when they 

come up on appeal? 

Mr. KETHLEDGE. Well, Mr. Chairman, one experience I will draw 

on is also partly in answer to your earlier question. I did represent 

a man who was charged with negligent homicide. His name was 

Takendra Sharma. He was a man without many resources. He was 

involved in a fatal accident while he was driving a semi truck. I 

represented him, and that gave me a perspective on how important 

criminal litigation obviously is to the person who is the subject of 

the State’s power and the prosecution, and an appreciation for the 

difficulty that an individual finds himself in when they are prosecuted. It humanized that side of criminal law for me. I would 

draw on that personal experience regarding what Mr. Sharma went 

through. He was acquitted. 

The other thing I would draw on, Mr. Chairman, is that when 

I was clerking, I did have very extensive exposure to criminal law 

doctrines. As the Chair mentioned, that is a big part of what Federal courts do. While I was clerking for Judge Guy and Justice 

Kennedy, I did become, I hope, reasonably well versed in the criminal doctrines themselves so that I would be able to draw on that 

legal experience. 

Chairman LEAHY. Thank you. 

Mr. Murphy, I have not ignored you, but my time is up, and I 

have some questions for you on my next round. 

Senator Specter. 

Senator SPECTER. Judge White, in a case captioned People v. 

Santiago, the court of appeals in a panel on which you were a 

member upheld a jury conviction of a defendant for first degree felony murder and armed robbery and his life sentence without parole. You dissented, saying, ‘‘While the evidence supports the conclusion that defendant dropped the two perpetrators who clearly 

committed the robbery and murder off near the house knowing that 

153 

they intended to rob and possibly kill the victim, it is also clear’’— 

referring to the defendant—‘‘did so without any intent or desire to 

assist them in committing the offenses.’’ 

The majority say, ‘‘To convict the defendant on an aiding and 

abetting theory, the prosecution must show that the defendant performed acts or gave encouragement that aided or assisted in the 

commission of the crime, and that he either intended to commit the 

crimes or knew the principal intended to commit the crime at the 

time he gave the aid or assistance.’’ The Michigan Supreme Court 

denied the leave for appeal. 

Judge White, isn’t it really pretty much standard, clear-cut law 

that when somebody drives a co-defendant to a place where there 

is a robbery and a murder, that that kind of assistance constitutes 

guilt on the part of the co-conspirator, accessory before the fact? 

Judge WHITE. Senator, I don’t have the specific case in mind 

other than what you have just related to me. I can tell you that— 

Senator SPECTER. It is your case, isn’t it? 

Judge WHITE. Yes, sir. I have been on the court of appeals for 

15 years and have sat in over 4,300 cases. So I don’t have each one 

of them directly in mind, but I— 

Senator SPECTER. I understand that, but I have given you the 

facts. You have a co-conspirator who drives a co-defendant who 

robs and kills. What is your rationale for saying that that does not 

constitute complicity in the principal offenses? 

Judge WHITE. Senator Specter, I went to law school in Pennsylvania, and the law in Michigan—let me say I approached that case 

by applying the law as enunciated by the Michigan Supreme Court 

regarding guilt for the principal offense. It is very, very true that 

many, many defendants who in that position where some of the 

facts were driving the person to the scene, dropping them off, 

would be—would constitute enough evidence. I don’t have the exact 

evidence in mind, but in Michigan, to be responsible for the principal offense, one has to either share the intent to commit the principal offense or provide aid and support with knowledge that the 

principal offense was going to be committed. 

Senator SPECTER. Judge White, the problem with your explanation is that the Michigan Supreme Court disagrees with it. They 

denied leave for appeal, and the two judges who were sitting with 

you disagreed with it. So what I am looking for is some plausible 

explanation, if you have one, as to how you came to that conclusion. 

Judge WHITE. I will again state that the requirement of Michigan law is that the defendant either has the intent to commit the 

principal offense, which here was the murder, or that there is evidence to show that he aided with the knowledge that that was the 

intent of the perpetrator. 

Senator SPECTER. That is what the court found, that he aided 

with the knowledge that the gunman intended to rob and murder. 

Judge WHITE. Yes, and— 

Senator SPECTER. Let me ask you this, Judge White, because we 

have got quite a bit to cover. Are you standing by this decision? Do 

you think the two judges who formed the majority disagreed with 

your dissent and the Supreme Court which denied appeal were 

wrong? 

154 

Judge WHITE. Sir, I can only assume that if I read the briefs 

again and read the record from cover to cover, as I do, that I would 

have come to the same conclusion, that I had a reasonable legal 

basis for doing so and that based on my best assessment of applying the law to the facts that I read in that transcript, that there 

was a problem with the conviction. Yes, sir. 

Senator SPECTER. Well, my time expired in the middle of your 

answer, so I am going to yield. I thank so many of my colleagues 

for being here, and I think it is important to observe the 5-minute 

rule to give others a chance to question, although there are—we 

will return for a later round. 

Chairman LEAHY. Senator Cardin? 

Senator CARDIN. Thank you very much, Mr. Chairman. And let 

me thank all three of our nominees for their public service and 

thank their families, and we very much appreciate your willingness 

to continue to serve in the public life. It is not easy to serve as a 

Federal judge, and we thank all three of you for being willing to 

do that. 

I want to ask about an area that is a particular concern today, 

and that is, the relationship between the judicial branch of Government and the President, the executive branch, and the legislative 

branch. It is very likely that particularly at the appellate levels you 

are going to have to deal with Article II powers of the President. 

And as a result of the attack on our country on September the 

11th, the administration has sought to use Article II powers in 

order, as they see it, to protect the safety of the people of this country. At times they have said that the urgency of the matter required extraordinary powers of the President. And I just want to 

get at least some indication from you as to how you will go about 

evaluating the requests that come in on Executive power under Article II and the restraints that are imposed either by statute passed 

by Congress or the Constitution. Mr. Kethledge, I would be glad to 

let you start. 

Mr. KETHLEDGE. I would be happy to, Senator. Thank you. 

Clearly, there are limits on the Executive power. There are limits 

on the Commander-in-Chief power. Youngstown Sheet and Tube 

tells us that. That was a case where the President issued an Executive Order to seize steel mills, cited exigent circumstances related 

to the Korean War. The Supreme Court stepped forward and said 

no, you can’t do that. That is a clear example of courts doing, I 

think, what the Senator described. 

How does a court go about that? I think that certainly as a court 

of appeals judge, you start with the Constitution itself. You go to 

Supreme Court precedent, which is obviously binding on any court 

of appeals. You look to the prior precedents of one’s own circuit, 

which would be binding as well. The decisionmaking can also be informed by precedents from other circuits. 

I think you look at those things, and you try to reach a lawful 

result, which is precisely that and which is not a result which is 

driven by passion or considerations of the moment. That is why 

judges have life tenure. 

Senator CARDIN. Thank you, Mr. Kethledge. Let me just point 

out that the circumstances of 9/11 were unprecedented in America, 

and the war against terror is not a traditional war, as we have 

155 

known it over the history of this Nation. And there were really 

some challenging moments, I think, between the judicial branch 

and the executive branch. And obviously we now have court decisions that will help us guide future determinations. 

But we are in unprecedented times, and you may not have a 

clear case and precedent to rely on. And I would like you to expand 

a little bit more as to the respect between the three branches of 

Government. At times there have been some heated moments in 

this Committee between the executive and legislative branches as 

to whether the Congress can limit Article II powers. Ultimately, 

that is going to be determined by the courts. This is an area that 

really does require the independence of the judiciary, but in giving 

a fair ruling as to what our Constitution requires, mindful of the 

responsibilities of each branch of Government. 

Mr. KETHLEDGE. Thank you, Senator. The branches are co-equal, 

and I think what an Article II judge has to do if presented with 

the kind of question that you described is go through the process 

and the materials that I described. An answer may or may not 

emerge from those materials. There may be answers that are implicit in those which haven’t been explicitly rendered in a court decision. But, clearly, Senator, I would say that no one is above the 

law, and that goes in wartime as well as in peacetime. 

Senator CARDIN. Judge White. 

Judge WHITE. I would join in many of the answers of my colleague, and I would just add that obviously the separation of powers is at the bedrock of our constitutional system. And from time 

to time we do have these conflicts. I think it is one of the most precious trusts of the Federal judiciary to rule in those cases, to address the delicate balance between the executive and legislative 

branch. The answers are of importance not just to members of 

those branches, but to the American citizens. And if I were confirmed and such a case would come before me, I would very carefully consider the very reasoned, legitimate arguments on both 

sides, the compelling arguments, apply the precedents, and with 

due regard for the seriousness of the question, come to the decision 

that seems to be appropriate under the applicable rules. 

Senator CARDIN. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Cardin. 

I have a list from Senator Specter of the order of appearance on 

his side. Normally in the order I would follow, I would call first on 

Senator Brownback. But apparently he is not here. Senator Grassley is apparently not here. Senator Coburn had to step out. So, 

Senator Kyl, you are up. 

Senator KYL. Thank you, Mr. Chairman. 

Mr. Chairman, let me just first briefly associate myself with the 

remarks of Senator Specter regarding the need for the Committee 

to apply a consistent standard for consideration of nominees, the 

time that we consider the questionnaires, the timing of the hearings, the ABA investigation and so on. And as part of the leadership, we would just note that the leadership agreement to use the 

best efforts to confirm three nominations by Memorial Day would 

not have required a violation of that standard if other pending 

nominees whose nominations have been pending for a lot longer 

had been moved forward rather than trying to move someone just 

156 

nominated. Senator Specter mentioned who these other nominees 

were, the fact that they could be moved forward, and I would just 

say that there is no reason not to move those nominees forward. 

They are qualified. The ABA has deemed them qualified, and we 

have a constitutional obligation to do so. And I would note that 

from my perspective, anyway, it would be unacceptable for the 

Committee to not have any additional hearings, especially, I would 

note, since there is at least one nominee from Arizona pending and 

ready to be considered by the Committee. 

I generally ask questions that are general in nature about respect for the law, precedent, and so on, so let me ask each of the 

witnesses—and there are basically five questions here, and hopefully we can get through them fairly quickly. They deal with the 

concept that respect for the law is critical for any judge, somebody 

who is going to be judging others, and judgment with respect to 

judging others. So let me just ask each of you in turn, and we can 

start, Judge White, with you and then Mr. Kethledge and then Mr. 

Murphy. 

First of all, is there anything in your background that you believe might disqualify you from serving in the position to which you 

have been nominated? 

Judge WHITE. No, sir, there isn’t. 

Mr. KETHLEDGE. No, sir. 

Mr. MURPHY. No, Senator. 

Senator KYL. Second, is there any public litigation that you have 

been involved in personally that might bear upon your responsibilities to serve as a judge? 

Judge WHITE. No, Senator, there isn’t. 

Mr. KETHLEDGE. No, Senator. 

Mr. MURPHY. No, Senator. 

Senator KYL. Have you had any bad debts, late payments, for example, credit cards, student loans, taxes, tickets, that kind of 

thing? 

Judge WHITE. I take my obligations very seriously. There have 

been no bad debts in the sense of judgments or bankruptcy, anything like that, no liens. I have on occasion gotten notices regarding that the amount of tax that was paid was insufficient. I paid 

those. All my taxes are paid. The same thing with any debts. I may 

have—from time to time there may have been a payment that was 

after a date, but immediately I satisfied that. I have no bad debts. 

I have no liens. I have none of the things that you have asked— 

oh, and you also, I think, said—what was the last one? Tickets? 

Senator KYL. Well, I just said bad debts, late payments, for example, credit cards, student loans, taxes, tickets, and I said any 

similar— 

Chairman LEAHY. If the Senator would yield just for a moment, 

and I obviously will give him more time to respond to this. Any of 

the financial backgrounds of all three of the nominees have been 

thoroughly vetted in the background checks by the White House, 

which is available to every Senator. 

Senator KYL. I appreciate that. 

Chairman LEAHY. Under the Memorandum of Understanding 

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ground. Not only is it a violation of our rules, but that memorandum—and I am not suggesting the Senator from Arizona has, 

but I would hope that if we are going into things that are in the 

backgrounds of any of these three nominees’ financial backgrounds 

or anything else, if it is in the background reports given by the 

White House, that we maintain ourselves to that. The Republican 

and Democratic counsel have been available to all Senators to go 

through any part that— 

Senator KYL. I assure the Chairman I have not read the FBI report. I haven’t talked to the White House about anything. I am not 

interested in financial records. I am mostly interested in, again, 

matters that would demonstrate a lack of respect for the law by not 

complying with the law oneself. And that is all I am getting at 

here. 

Judge WHITE. I just want to— 

Senator KYL. Anything else that you wanted to say? 

Judge WHITE. [continuing.]—finish the answer. And, yes, sir, I 

also take my obligations as a member of the motoring public seriously, and I try to abide by the rules of the road at all times, and 

at times I have had lapses and have received tickets, yes. I am not 

proud of them, but I have. 

Senator KYL. Okay. 

Mr. KETHLEDGE. Senator, I am not aware of any issues except I 

did have a few speeding tickets a long time ago. I can’t remember 

the last one, though. 

Senator KYL. For the record, I will say I have two. Okay? 

[Laughter.] 

Senator KYL. Mr. Murphy. 

Mr. MURPHY. I will, too, Senator. I have definitely sped and paid 

my tickets. And once the IRS told me after April 15th I owed more 

money, and I paid it immediately. So other than that, I have done 

nothing to show disrespect for the law. 

Senator KYL. Okay. Finally, in this regard, respect for the law 

is also illustrated by past conduct, and this question goes to things 

of a public record, whether there has been any matter of public 

record that others may learn that would cast doubt on your respect 

for the law, either State or Federal law. 

Judge White. 

Judge WHITE. No, Senator. 

Senator KYL. Mr. Kethledge. 

Mr. KETHLEDGE. I am not aware of anything, Senator. 

Senator KYL. Mr. Murphy. 

Mr. MURPHY. No, sir. 

Senator KYL. Might I, with the Chairman’s indulgence, since we 

had our little conversation, just ask one-and-a-half other question. 

Could you just in a quick percentage, each of you tell me what your 

extent of experience with the Federal as opposed to State law has 

been in your career, since you are nominated to a Federal law position here? 

Judge WHITE. I have had—as a State judge for 27 years, we do 

have issues that come before us that are issues that might come 

before the Federal courts, first of all, with respect to the—well, the 

diversity jurisdiction would be not Federal issues, but I have dealt 

with preemption issues since 1983. 

158 

Senator KYL. If I could just—I am just trying to do this real 

quickly, just sort of a general percentage— 

Chairman LEAHY. I am indulging the Senator from Arizona. 

Senator KYL. And I indulged the Chairman with his intercession 

a moment ago in my time, too. Just all I am looking for is a general 

percentage. 

Judge WHITE. Oh, a percentage? 

Senator KYL. Yes. 

Judge WHITE. I would say maybe—Okay. I would say probably 

maybe about—including issues of general Federal constitutional 

law, I would say maybe about 10 to 15 percent of the cases that 

have come before me have raised Federal issues in that sense. 

Senator KYL. All right. Thank you. 

Mr. Kethledge. 

Mr. KETHLEDGE. Senator, I would say about 70 percent of my 

private practice has been State law. I would say, obviously, the 2 

years I was clerking was all Federal, almost all. 

Senator KYL. And Mr. Murphy. 

Mr. MURPHY. Ninety-five to 99 percent of my work has been Federal, Senator Kyl. 

Senator KYL. Okay. And, Judge White, you did not practice law, 

right? You have been on the bench your entire judicial career. Is 

that right? 

Judge WHITE. That is correct. I spent 27 years on the bench. 

Chairman LEAHY. Senator Kyl, I would note— 

Senator KYL. Thank you, Mr. Chairman. 

Chairman LEAHY. [CONTINUING.]—Two things for the record. One, 

we had the hearing on your Arizona judge, I think last week. I 

think Senator Cardin— 

Senator KYL. I am appreciative of that. 

Chairman LEAHY. I did not want the impression to be that somehow he was not getting the hearing. 

Senator KYL. No, no. 

Chairman LEAHY. He did. 

Senator KYL. The hearing was held. I appreciate it. 

Chairman LEAHY. And, second, also for the record, I never had 

a speeding ticket. Had a couple of overtime parking tickets. Some 

overtime parking tickets, but never had a speeding ticket. 

Senator Sessions, and I am not asking members to say whether 

they have had speeding tickets or not. Senator Sessions, you are 

next. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. According to the list I received from Senator 

Specter. 

Senator SESSIONS. I did arrive after Senator Hatch, but— 

Chairman LEAHY. I am sorry. I just realized that there is a 

crossout. It is Senator Hatch who is next. I apologize. 

Senator SESSIONS. I think that is correct, Mr. Chairman. 

Senator HATCH. I had no problem with that, but, Mr. Chairman, 

I see for the first time we have two appeals court nominees in the 

hearing. This is a step that I took at least ten times when I chaired 

the Committee during President Clinton’s tenure. I would also say 

that for the first time one of these appeals court nominees is before 

us before the American Bar Association has completed its review. 

159 

As my colleagues know, I have not been the ABA’s biggest fan over 

the years, so I do not mention this because I think the ABA’s evaluation and rating are necessarily the gold standard for judicial 

nominees. And I am pleased with the way the ABA has done its 

job over the last number of years. But others have said that it is 

the gold standard, and you have indicated that before this comes 

to the floor, you will certainly have the ABA report. 

I also see the ABA has expressed its own serious concern about 

setting this precedent, and I recall this is inconsistent with what 

many of my Democratic colleagues have said it is the way they 

want to handle judicial nominees, at least when I was Chairman. 

Now, other appeals court nominees have completed all the normal procedural steps, and their consideration would set an unusual 

or inconsistent precedent. But here we are, so let me just ask a few 

questions of these nominees. 

Mr. Kethledge, I want to welcome you back to the Judiciary 

Committee. You served on this side of the dais as counsel to Senator Spence Abraham when I chaired the Committee, so you are no 

stranger to this room. And I am pleased with what you have done 

since leaving the Judiciary Committee, including your clerking for 

Justice Anthony Kennedy on the Supreme Court. That is a singular 

experience that deserves a lot of credit. 

And I see Judge Ralph Guy, whom you served as a law clerk, remains on the Sixth Circuit as a senior judge. It must be exciting 

to consider serving with him. I note, however, that he took his senior status at the end of your clerkship for him in 1994. I am not 

sure what caused that. 

Mr. KETHLEDGE. I tried to talk him out of it, Senator. 

Senator HATCH. Okay. Now, let me ask you to comment on what 

you believe to be the role of the Federal appellate courts in our 

overall system of Government within the judicial branch, and how 

carefully should the U.S. Court of Appeals tread giving deference 

to the trial courts below and respecting the rulings of the Supreme 

Court above? 

Mr. KETHLEDGE. Well, Senator, obviously courts of appeals are 

bound by the decisions of the Supreme Court. They are for the 

most part bound by prior decisions of their own circuit court. 

I think that the best judges are the ones that seek to apply 

precedent in good faith. I think most judges do that. But that is 

something that has to be done in good faith without skewing the 

precedent one way or the other. At the same time, there has to be 

a respect for the work of the district courts and not take an ivory 

tower approach to the review of what happens there. Those judges 

are the ones that see the people before them. They see the witnesses. The court of appeals just has a cold paper record. I think 

there has to be a reasonable level of deference given to the judgments of the Article III judge who has the trial before him. 

And with respect to all of one’s colleagues in the judicial system, 

I think it is very important for a judge to have almost an 

irrebuttable presumption that every other judge who has looked at 

a particular issue was doing his or her best to discharge his or her 

oath just as well as I might be if I am fortunate enough to be confirmed. 

Senator HATCH. Thank you, sir. 

160 

Judge White, you have served on the State appeals court for 

more than a dozen years, and I am sure that with all of that experience, you already have a perspective or at least a view about how 

a collegial body such as the appeals court should operate. 

Now, in reviewing your opinions, I see that you have written numerous separate opinions, both dissents and concurrences, and 

these include dissents in quite a few criminal cases, criminal law 

cases, and dissents taking positions that the Michigan Supreme 

Court has rejected. 

Now, would you please describe for us your view of whether an 

appellate court should strive for unanimity in its opinions and the 

purpose and effects of your frequent separate opinions? 

Judge WHITE. Thank you, Senator Hatch. I want to preface my 

answer by saying again that in the 15 years that I have been on 

the Michigan Court of Appeals, I believe there were over 4,000 

cases in which I participated with my colleagues, and I would venture to say that probably in 95 percent of those, there was unanimity, and that is the context for this. And in the vast majority 

of those, the trial judge was affirmed. 

Collegiality is very important. One can disagree without being 

disagreeable. In the cases where I have written separately, I tried 

to decide cases narrowly. And there are times when I feel that a 

colleague says too much, and that may be a reason why I concur. 

Regarding dissents, there are sometimes differences of opinion, 

but as I said, in 95 percent of those cases, there was unanimity. 

I have been on the intermediate court for 15 years. It is a role with 

which I am very comfortable. I understand that the trial court is 

accorded deference, and I understand that it is the Supreme Court 

that makes the law. And that has been my job, and that would 

be—if I were to be confirmed, it would be a similar role in terms 

of deference to the trial judge and taking direction from the Supreme Court and, of course, from the legislative body. 

Senator HATCH. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Brownback. 

Senator BROWNBACK. Thank you, Mr. Chairman. 

Chairman LEAHY. And, again, to go through the list on my time, 

to go through the list I have Senators Brownback, Grassley, Senator Coburn, Senator Cornyn, and Senator Sessions. 

Senator Brownback. 

Senator BROWNBACK. Thank you, Mr. Chairman. Thank you, 

nominees, for being in front of us. I appreciate that very much. 

Judge White, I want to really, if I could, focus in on your nomination. I hope you can understand some of the grave concerns that 

many of us have on the rush nature of your nomination here and 

lack of information that we have. On looking at this, I would like 

to have had the information and hold the hearing and being able 

to question in depth about it. We don’t have the ABA rating, but 

I understand you have been rated by the ABA when you were nominated by President Clinton. Is that correct? 

Judge WHITE. Yes, sir. 

Senator BROWNBACK. Do you recall what that rating was? 

Judge WHITE. My understanding is that it was a substantial majority qualified and a minority not qualified. 

161 

Senator BROWNBACK. You have not conducted a private law practice. Is that correct? 

Judge WHITE. That is correct. 

Senator BROWNBACK. But you have worked in the judiciary all of 

your professional career. 

Judge WHITE. That is correct. 

Senator BROWNBACK. You started out clerking not at the Federal 

but you clerked at the State court. Is that correct? 

Judge WHITE. That is correct. 

Senator BROWNBACK. Who did you clerk for? 

Judge WHITE. Justice Charles Levin. 

Senator BROWNBACK. How long did you clerk for Judge Levin? 

Judge WHITE. Almost 2 years. 

Senator BROWNBACK. And then you went from that to the bench. 

Judge WHITE. Yes, sir. 

Senator BROWNBACK. Is that correct? 

Judge WHITE. Yes. 

Senator BROWNBACK. And you were appointed to the bench or 

elected to the bench? 

Judge WHITE. I was elected. 

Senator BROWNBACK. To which bench were you elected? 

Judge WHITE. It was the Common Pleas Court for the city of Detroit. It no longer exists. There was court reorganization, and it became the 36th District Court. 

Senator BROWNBACK. Okay. What did you do after that position? 

Judge WHITE. I was elected to the Wayne Circuit Court, which 

is the general trial jurisdiction court. 

Senator BROWNBACK. And how long did you serve in that position? 

Judge WHITE. For 10 years, Senator. 

Senator BROWNBACK. And what have you done after that position? 

Judge WHITE. Then I was elected to the Michigan Court of Appeals. 

Senator BROWNBACK. And that is where you serve today? 

Judge WHITE. Yes, sir. 

Senator BROWNBACK. And how long have you served on that 

court of appeals? 

Judge WHITE. For 15 years. 

Senator BROWNBACK. You were nominated by President Clinton. 

When were you nominated by President Clinton? 

Judge WHITE. I believe it was January of 1997. 

Senator BROWNBACK. Okay. And so you have just recently been 

nominated by President Bush. Is that correct? 

Judge WHITE. Yes, sir. 

Senator BROWNBACK. I think you answered with Senator Kyl 

your experience in handling Federal cases. You have not handled 

direct Federal cases in any private practice? 

Judge WHITE. No, sir. 

Senator BROWNBACK. You have not handled any Federal cases as 

a judge? 

Judge WHITE. No, sir. 

Senator BROWNBACK. I am curious then. I should give you this 

as open because we haven’t had a chance to meet privately, either, 

162 

which normally would be the process. But what do you believe 

makes you qualified for this position? This is the Sixth Circuit. The 

circuit court of appeals is next to the Supreme Court. It is a phenomenal position of importance. I would like to hear your thoughts 

on your qualifications as you look having not handled Federal cases 

before for this position. 

Judge WHITE. Let me start by saying that I agree with you, it 

is a position of enormous importance. My professional path has 

been in the judiciary, and this is what I would bring to the position. I was in a limited jurisdiction court for 2 years. After that, 

I moved to the general jurisdiction court. I brought with me the experience of that position. What I brought to the court of appeals 

was the experience of being a trial judge for 10 years. 

There is something in the process of judging that—judges are 

generalists. It has been a long time since I have been in law school. 

It has been a long time since most judges were in law school. We 

learn skills on the bench. We learn how to approach the task of 

judging, which is to decide individual cases. I brought that experience of being a trial court judge, which I think is very valuable for 

an appellate judge, to the appellate court. 

If I am confirmed, what I would bring to this is 27 years of judicial experience in terms of the process. I bring the experience of 

reading briefs, reading briefs in an area of law with which I may 

not yet be familiar, because that is the nature of litigation. The 

lawyers are far more expert at the time that the case begins than 

the judge. The experience of studying those briefs, the experience 

and the ability to understand difficult legal issues, to thoughtfully 

consider them, to understand the arguments of both sides, to respect the importance of the position, to distill the legal arguments, 

address the issue in written manner, to carefully decide the case, 

going through the process of deference to the precedents, understanding how to treat legislation, and basically how one comes to 

a decision in a particular case that is presented to the judge. 

Senator BROWNBACK. Thank you. 

Chairman LEAHY. Senator Sessions. 

Senator SESSIONS. Mr. Chairman, I would offer for the record a 

letter of May 6th from the Standing Committee on the Federal Judiciary, Mr. Timothy Hopkins, Chair, to you and Senator Specter, 

although it is pretty clear Senator Specter agrees with it. Mr. Hopkins says, ‘‘On behalf of the American Bar Association’s Standing 

Committee on the Federal Judiciary, I write to express our concern 

that you have decided to proceed with the confirmation hearings of 

Helene White to be United States Circuit Judge for the Sixth Circuit and Stephen Joseph Murphy III before completion of the evaluations. Under our normal timetable, it would be reasonable for 

you to expect to receive our evaluations by the close of this month. 

It is unfortunate that during confirmation hearings your Committee members will not have the benefit of the answers.’’ 

Chairman LEAHY. Without objection, that letter will be included 

in the record. Also without objection, my response would be included in the record. And without objection, the similar letter written by the ABA to then-Chairman Specter objecting to the five 

hearings without the ABA being completed will be included in the 

record so that we can have it all before us. And I thank the Senator 

163 

for raising the issue. It gave me a chance to put the other letters 

in. 

Senator SESSIONS. I would just observe that that letter is indicative of the fact that this is an extraordinarily fast-moving nomination. Of that I think there is little doubt. And there are questions 

that we have, and I for one do not believe this hearing, with just 

a day or two notice, basically, to me, allows us to be properly prepared to ask the kind of questions that ought to be asked of a position one step below the U.S. Supreme Court. 

I would note that we could have had hearings on Judge Conrad 

of North Carolina who has been unanimously rated well qualified 

by the ABA, the chief judge of the Western District of North Carolina, a Federal prosecutor under both Republican and Democratic 

administrations, and it is a judicial emergency circuit. And Mr. 

Steve Matthews of South Carolina, nomination to the Fourth Circuit, graduate of Yale, distinguished private practice career, managing director of a South Carolina law firm, strongly supported by 

both his State Senators and rated highly qualified by the ABA also. 

So this is troubling to me, I have just got to tell you. 

No. 2, Judge White, I presume you misspoke, but let me ask you. 

You said a moment ago the Supreme Court makes the laws. What 

would you say about that? 

Judge WHITE. The Congress makes the laws in the Federal system, and the legislature passes the laws. If I said that, I misspoke, 

and I was referring to the common law. And if I said ‘‘laws,’’ I 

would have misspoke and would not have meant to refer to legislative laws. 

Senator SESSIONS. Well, I think that is very important because 

one of the things that is causing the delays and tension in the confirmation process at its most fundamental level is more than politics and more than numbers. It is really about what kind of judges 

we want on the courts. 

President Bush has a philosophy of judging that I share. I think 

it was ably articulated by Chief Justice John Roberts in his confirmation hearings. And there are others in this Congress that 

have different views. They prefer to have judges in rulings that affect their political agenda that cannot be won at the ballot box, in 

my view. So I just want to tell you that is a concern to me. 

Judge White, your entire legal career of almost 30 years has been 

in the Michigan State system. I think I am correct that you have 

never spent a single day of your legal career in private practice, except maybe a summer internship. And you have never represented 

a client, never litigated a case, and never appeared in Federal court 

at all. Is that correct? 

Judge WHITE. That is correct. 

Senator SESSIONS. Now, I believe that that is not an automatically disqualifying thing, but I think it is a lack that is worthy of 

concern on the confirming body to analyze what other strengths 

you have to justify the appointment without the kind of experience 

we would normally expect in this high appointment, which is, as 

I said, one step below the U.S. Supreme Court. 

Mr. Chairman, my time has expired. I would share with you, Ms. 

White, my concern about this aiding and abetting case that Senator 

Specter asked you about in the sense that to me that is fundaVerDate Nov 24 2008 10:03 May 29, 2009 Jkt 048894 PO 00000 Frm 00171 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48894.TXT SJUD1 PsN: CMORC
164 

mental law that if you drive the car to assist the people in a crime, 

you are chargeable for that offense. And in your own opinion, you 

concluded that the defendant knew what was about to occur and 

aided in the action by delivering them to the scene of the crime. 

Chairman LEAHY. Thank you, Senator Sessions. 

Judge White— 

Senator SESSIONS. She was prepared to answer, but that is Okay. 

She has answered it previously. 

Chairman LEAHY. Earlier— 

Senator SESSIONS. It is a concern to me as a prosecutor. 

Chairman LEAHY. Earlier you had said something about the percentage of cases, the rough percentage of cases where you have 

been in concurrence with the rest of the court. Approximately what 

percentage are you in concurrence with them? 

Judge WHITE. Well, I would say that probably 95 percent of the 

cases are decided unanimously, would be my guess. 

Chairman LEAHY. And, Mr. Kethledge, you don’t have any experience—I mean, we speak about experience. You have no experience managing a docket as a judge. You have not worked in a prosecutor’s office or a defender’s office where you would have had to 

manage a very high volume of cases. What do you say about being 

able to successfully manage the docket of a United States circuit 

judge? You have not had judicial experience like Judge White has 

in managing dockets, but what would you say about that? 

Mr. KETHLEDGE. That is true, Mr. Chairman. What I would say 

in response to that is two things: 

First, hard work. A court of appeals judge from my observation 

and clerking has some latitude as far as when things are due. You 

do not have briefing deadlines the way you do in private practice. 

And it is the conscientiousness of the judge, I believe first and foremost, which is responsible for moving the cases along and clearing 

the docket at the court of appeals. 

The other thing I would say is just the example I have had of 

the judge that I worked for, and I was part of his system. I got a 

sense of how things work, and I think I could make use of that experience as well. 

Chairman LEAHY. Thank you. 

The question I was going to ask you before, Mr. Murphy, I served 

on this Committee for decades with former Senator Strom Thurmond. And there is a question I heard him ask, whether it was 

nominees of Democratic administrations or Republican administrations, that was always the same about judicial temperament. And 

it was basically something like this: When you go into a Federal 

court, a Federal judge is very powerful. It is a lifetime position. The 

only way he is going to be out of there is if he is impeached or resigns. And very few are ever impeached. And if he shows bias one 

way or the other toward plaintiffs or defendants or based on the 

nature of the case, it is devastating to the person who may—this 

may be the only time in their life they will be before the Federal 

court. We all have a responsibility to keep the Federal courts independent, but also to have the respect of them. Courts do not command armies. They do not command great forces. They exist and 

command respect only if they show respect. 

165 

How do you feel about that? There are times when you have 

some people who attack Federal courts as being out of touch for 

whatever political purpose. You have people running for office and 

so on. What would you do so people would look and say, you know, 

‘‘One thing about Judge Murphy, I may agree or disagree with his 

opinions, but, boy, I sure agree that he is a good judge’’ ? 

Mr. MURPHY. I would first of all thank the Senator for that comment, endorse the sentiments of both the Chair and Senator Thurmond. I would hope that however many years from now, should I 

be confirmed, that that sort of evaluation was made, that that 

would be exactly what they would say about me. I have striven to 

have that reputation as a Federal prosecutor, and I think that neutrality, detachment, fairness, and moderation are the hallmarks of 

a Federal judge. And should I be confirmed by this Committee, 

those are the traits that I would demonstrate in my daily work. 

Chairman LEAHY. Thank you. Let me ask this question of both 

Judge White and Mr. Kethledge. We are at the sort of pivotal moment in American history of trying to keep that careful balance between the branches of Government. The President has made unprecedented claims of nearly unchecked Executive powers. Congress and the courts have traditionally acted as curbs on any President who might do that, whether it is cases like Iran-contra or 

warrantless spying on American citizens. But we should also have 

a self-check on abuse of the congressional power, looking at ethical 

violations or corruption, for example, Jack Abramoff’s influence of 

a Member of Congress. 

Do you believe that congressional oversight, not just judicial but 

congressional oversight, is an important means of creating accountability in all branches of Government? We will start with you, Mr. 

Kethledge. You have been here. You understand the question. 

Mr. KETHLEDGE. I do understand the question, Senator. I don’t 

think I am knowledgeable to answer it, frankly, in a specific way. 

What I would say is that each branch is co-equal. Congress clearly 

has powers of oversight. Those powers are important ones, just like 

other powers that Congress has. Some of those oversight powers 

are derived from the power of the purse that Congress has ultimately. 

Certainly, Senator, I would agree that those are important powers, safeguards on Congress’ other core powers. 

Chairman LEAHY. Judge White. 

Judge WHITE. I would agree. The powers of each branch of Government are important and must be respected by the other 

branches. 

Chairman LEAHY. I would agree, I think all of us would agree, 

there have to be these checks and balances. Our Nation is powerful. It is awesome in its power and its potential as the United 

States. 

Senator Specter. 

Senator SPECTER. Thank you, Mr. Chairman. 

Judge White, I now turn to a case captioned People v. Hansford, 

decided in 1997. You served on a three-judge panel which decided 

that a 40- to 60-year term was inappropriate and remanded for resentencing. And my question goes to your judgment in disagreeing 

166 

with that sentence for the defendant who has a record that I am 

about to specify. 

On October 11, 1976, he was convicted of attempted larceny from 

a building and sentenced to 2 years’ probation. 

June 14, 1977, convicted of attempted receiving and concealing 

$100 and sentenced to 1 to 5, did 21⁄2 years in prison. 

Two months later, August 22, 1977, convicted of attempted larceny from a motor vehicle, sentenced 11⁄2 to 21⁄2. 

September 4, 1980, convicted of fleeing and eluding, sentenced to 

a fine of $185 or 19 days. 

Convicted of receiving and concealing stolen property and sentenced to 6 months, March 26, 1981. 

August 3, 1982, convicted of two counts of receiving and concealing stolen property, over $100, sentenced to 3 years’ probation 

on April 15, 1985. 

November 5, 1985, convicted of a violation of probation, sentenced to 90 days in jail. 

July 17, 1988, convicted of larceny, 3 to 7 years. 

Escaped from correction center, July 1990, returned February 

1991. Paroled on March 31, 1992, listed as an absconder on July 

9, 1992. Still on parole when he committed the instant offense. 

Now, the procedural history of this case is that on initial review, 

the court of appeals determined that the sentence of 40 to 60 years 

for a fourth offender was disproportionate. On remand, the Supreme Court ordered reconsideration in light of a recently decided 

case. The court of appeals on which you sat, another judge determined the sentence constituted an abuse of discretion. The Supreme Court reversed saying there was not an abuse of discretion, 

two Justices dissenting, concluding that because the defendant had 

demonstrated his inability to conform his conduct to the laws of society, the court’s sentence was not an abuse of discretion. 

Now, the first opinion, which was unanimous, by your court that 

it was an abuse of discretion was unpublished. I am advised by 

staff that there was an opinion. What are the standards for publishing an opinion? It seems to me pretty important for the public 

to know why that sentence was vacated, and the public only knows 

it if there is a published opinion. What are the standards of that 

court for not publishing an opinion so the public knows what is 

happening? 

Judge WHITE. Senator Specter, we are an intermediate appellate 

court with a very, very heavy volume. The vast majority, more than 

the majority of our cases are unpublished. The criteria for publication is that it— 

Senator SPECTER. The vast majority unpublished, even a matter 

of this severity, this kind of a record, to send somebody back for 

resentencing? 

Judge WHITE. Senator, every single case is important. I don’t intend to minimize any type of case, but— 

Senator SPECTER. Well, Judge White, some cases are— 

Chairman LEAHY. I think you should at least let her answer the 

question. 

Senator SPECTER. Well, I think you should let me question. 

Chairman LEAHY. Let her answer the question. 

167 

Senator SPECTER. We have considerable latitude, at least when 

I was Chairman— 

Chairman LEAHY. And you always used to remind us to let the 

witness answer the question. 

Judge WHITE. Given the volume of the cases— 

Senator SPECTER. If you are going to answer, try to be responsive. 

Judge WHITE. I am sorry, sir. I have been trying— 

Senator SPECTER. My question to you was: Aren’t some cases 

more important than others? 

Judge WHITE. Yes, some cases are more significant jurisprudentially than others, and our directive is that those are the cases that 

should be published. We have many, many, many sentence appeals. 

We have judicial—we have guidelines. At one point they were legislative—they were judicial sentencing guidelines. Now there are legislative guidelines. We have many sentence appeals, and it would 

be the most, most rare circumstance that a case, even one reversed, 

would ever be published under these circumstances. That is not the 

practice of the court. 

Senator SPECTER. Okay, Judge White. Now down to the merits. 

I read you this record in detail. The habitual offender statutes are 

designed, as I am sure you know, to take habitual offenders off the 

streets for life. There are customarily three offenses. Seventy percent of the crimes are committed by habitual offenders. 

What was your reasoning and thinking that a man with the 

record I just enumerated did not deserve to be off the streets for 

life? 

Judge WHITE. Senator Specter, crime is a terrible problem in this 

society, and everybody should recognize that. And sentencing is a 

solemn obligation. 

I don’t have the facts specifically in front of me. I don’t even 

know what year it is. But I can tell you that the case was either 

decided under the judicial guidelines or the legislative guidelines. 

And there is a guideline within which a judge must sentence. If the 

judge doesn’t sentence within that guideline, then that sentence is 

subject to review. 

Chairman LEAHY. Thank you. 

Senator Cardin. 

Senator SPECTER. One more. One more minute, Mr. Chairman. 

Chairman LEAHY. I will give you as a matter of courtesy one 

more minute. You are now over your time. 

Senator SPECTER. I told you what the year was. It was 1997. And 

I told you what the facts were. Two-part question. Are you saying 

that it was outside—you weren’t saying it was outside the sentencing guidelines because the State Supreme Court said 40 to 60 

was fine. 

Now, as you listened to the recitation of these facts, which come 

from the Supreme Court’s opinion, are you standing by the judgment you made twice that a 40- to 60-year sentence was inappropriate for this career criminal? 

Judge WHITE. I want to say first that I don’t know from the facts 

that you gave me whether it was within the guidelines or not. It 

may have been outside of the guidelines and, nevertheless, affirmed. I accept the Supreme Court’s decision, and that is the final 

168 

decision in the matter. And I accept that the sentence was appropriate, and it was appropriate because the Supreme Court has said 

it is appropriate. And I said that. 

Senator SPECTER. The pending question is whether you today say 

that you were right, listening to this record, in saying the sentence 

was inappropriate. 

Judge WHITE. What I would say is that I read the case, applied 

the law as I understood it, and the sentence was appropriate. The 

Supreme Court said it was appropriate, and the panel and I were 

wrong. 

Senator SPECTER. Let me ask you one more time if you think sitting here today, listening to this record, that you were right in saying that 40 to 60 years was an inappropriate sentence. 

Judge WHITE. At the time I decided the case, the—I have to have 

been wrong, sir. The Supreme Court reversed. I was wrong. The 

Supreme Court reversed. There are times when an appellate judge 

is reversed. There are times when a circuit judge is reversed. And 

once you are reversed, there is no question whether you were right 

or wrong. The higher court said you were wrong. 

Senator SPECTER. I think the record is clear you have not answered the question. 

Chairman LEAHY. Well, I disagree, and I gave the Senator a 

great deal of extra time so she could. Any one of us who practice 

law or who have been prosecutors have been reversed. We know 

what that is like. 

Senator Cardin. 

Senator CARDIN. Thank you, Mr. Chairman, and let me first 

make an observation. I am a new member of this Committee, and 

I was looking forward to getting involved particularly in one of the 

most important responsibilities of the U.S. Senate, and that is the 

confirmation of judges to lifetime appointments. And I take the 

confirmation hearings very seriously, which is part of a total process on confirmation, including your records that we have and the 

reports that have been made available to us. And my observation 

is that I want to compliment all three of you for the manner in 

which you have responded to our Committee’s questions. I am impressed by all of your—the way that you have answered the questions. 

Judge White, I just can’t imagine what is going through your 

mind as you hear us talk about rushing your nomination through 

when you waited 4 years since your last appointment. You have 

shown tremendous restraint, which I think bodes well for your judicial temperament. 

Mr. Kethledge, I want to follow up on Senator Brownback’s point 

on qualifications, because I think it is a very important point, and 

I think he raises a very valid point about Federal experience. I 

don’t disagree. I think that is a very important point for us to 

evaluate. 

The difficulty I have had with some of the more recent appointments from President Bush is that he has selected individuals who 

don’t have a judicial background, so, therefore, you don’t have the 

traditional cases in which we can question as to how you ruled on 

a particular case, which is very interesting to see how you went 

about making decisions. Or we don’t have a lot of writings in which 

169 

we can look at the way that you evaluated a particular legal issue 

because of your background. Instead, you come to this appointment 

with a relatively short background in law, and if I have read your 

background correctly, it has been mostly as a private attorney handling product liability issues for companies such as auto manufacturers, drug manufacturers, and in at least one case a tobacco company. 

And I guess my question to you is, you know, we all come to this 

with life experiences to whatever we do in our future in life. And 

I want to give you a chance to express your views as to how you 

would rule on these types of matters that may come before you, including product liability and consumer rights. You have represented the company point of view. There is obviously another 

point of view, the consumer point of view, as represented in some 

of these cases. And I just want the record to be clear as to how you 

will approach matters that may be brought by individuals looking 

at rights for non-smokers, looking for rights for consumers, recognizing that product liability issues are important ways of defending 

those types of interests. 

Mr. KETHLEDGE. Thank you, Senator. I understand really two 

questions to be part of what you are asking, the first being what 

kind of approach would I take, because I agree, you don’t have the 

kind of written record to review that Judge White has provided. I 

don’t have that kind of judicial experience, and I admit that. So the 

question of what approach would you take is an important one. 

First and foremost, Senator, I think the approach I would take 

recognizes the fact that, in my opinion, the fact that judges are 

unelected I think is really the defining characteristic of Article III 

judges and the characteristic that circumscribes their power. We 

are a democracy. Nobody elects Article III judges. I think that 

means that Article III judges don’t get to impose their policy views, 

their opinions on the people of this country because that is not democracy. The folks in this body do, and it is the job of Article III 

judges to enforce your will, not the will of the judges themselves. 

I feel very passionate about that, and I tell you that, to the extent 

of my ability, that is what I would do if I were a judge. 

Regarding experience, I have been out of school 15 years, and I 

recognize that is a relatively brief time. I am over 40 now, and I 

actually celebrated that birthday anticipating this question perhaps. I would hope that I have tried to pack an awful lot of relevant experience into my 15 years: 

Clerking for Judge Guy on the court to which I am nominated. 

He is someone whom I revere, whose example I think would be of 

indescribable benefit to me if I were to be a judge. 

Clerking for Anthony Kennedy, a man who comes to his job with 

extraordinary dedication and conscientiousness, and who is also a 

kind and decent man. Those examples would be very helpful to me. 

I had the privilege of working in this institution, oftentimes in 

this room— 

Senator CARDIN. That worries us a little bit. 

[Laughter.] 

Mr. KETHLEDGE. I really better not say anything about that, Senator. 

170 

But I think that that experience gives me the perspective of the 

legislative branch and being inside the legislative branch. A number of the Senators today have talked about separation of powers 

issues. I think that experience, that perspective, would be extremely valuable. 

And then I have been a lawyer in private practice. I have seen 

the impact that these cases can have on the parties and individuals 

that are involved. Yes, I have had corporate clients, but not all of 

my clients have been corporate clients. I understand that these are 

not abstractions that are behind these cases. These are people. And 

I respect that, and I would have a sensitivity to that. 

The other thing I would point out is that I have had the experience of starting my own law firm with two partners and, shortly 

thereafter, three. There were 15 people that chose to come with us. 

We were responsible in a large sense for their economic well-being. 

That was a responsibility I took very seriously, and, frankly, I 

think that was an experience that makes one grow up. 

So I would hope that those things that I would draw on would 

allow me to be a judge that would do the job in the way the Committee would hope. 

Senator CARDIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you very much. 

Senator Brownback, did you have any other questions? 

Senator BROWNBACK. Yes, I do, Mr. Chairman. Thank you. And 

thank you for allowing us to go another round. There are individuals here who get a chance to question the first time. 

Ms. White, I want to go back—Judge White—and ask you a few 

other things, if I could, and this is, I think, uncomfortable for everybody, just the way this has come forward, so I apologize for 

that. But they are things we really need to know. 

Just without the Federal work, I would just like to know your 

view of the Constitution, just to—I know you cannot tell us how 

you decide individual cases, but do you see generally the Constitution as a more organic document, or do you see it more as a strict 

constructionist, or do you put yourself somewhere in between? 

Judge WHITE. Senator Brownback, I have never placed labels on 

my judicial philosophy. I have never thought of it in those terms. 

I decide individual cases, and when the Constitution is implicated, 

I look to the precedent, and I find my way within the precedent 

that has been given. And I don’t take a particular role. My role as 

a judge—my role is to be a judge in that case, and that is the way 

I approach it. 

Senator BROWNBACK. Then what do you understand this current 

state of the law to be on Establishment Clause cases? 

Judge WHITE. Senator Brownback, in my 27 years I have not had 

Establishment Clause cases—well, I must have had some. I haven’t 

had it recently. 

Senator BROWNBACK. I understand that, but you are going onto 

the Sixth Circuit Court of Appeals. This is a big area of the law. 

I am just asking you your understanding of the current status of 

the law in Establishment Clause cases. 

Judge WHITE. I am—I haven’t read the cases recently enough to 

be comfortable giving you an answer, and if a case came before me, 

171 

then I—if I were confirmed and a case came before me, then I 

would be an expert in all of the Supreme Court decisions to date. 

Senator BROWNBACK. Judge White, the Chairman brought up— 

and I thought this was appropriate to ask about—case management, saying that another nominee had not been a judge so does 

not know about case management. But you have been on the 

bench, and you have dealt with case management. The Sixth Circuit is one of the busiest per judges’ cases, caseloads, so this will 

be very important. Have you ever thought you have had problems 

managing your cases or issuing your opinions in a timely fashion? 

Judge WHITE. When I first became a court of appeals judge, I 

had a period of adjustment in the sense that it is an extremely 

heavy docket, and I had to learn that although I gave each case 

careful consideration, I couldn’t write the way one would normally 

want to write in each case. And that was a process where I came 

to understand that. It took a while, and the 15 years have been 

very valuable. 

I think that if one thinks about the important traits in an appellate court judge, timeliness is certainly one of them, and I try to 

balance timeliness with considered judgment, with scholarship, giving each case attention. I try to put all of that together, and that 

is the way that I manage my docket. 

Senator BROWNBACK. So I take it from what you are telling me, 

you have had a problem in this, but you feel like you have grown 

over the years in this area? 

Judge WHITE. Yes, I would say when I first went on the bench, 

I did have a problem with that. It is something that one learns in 

the 15 years. 

Senator BROWNBACK. Mr. Kethledge, just in a short period of 

time, I would be curious about your view of the Constitution, 

whether you see it as—just as your overall view, as a living document or as a strict constructionist. Do you have a view on that? 

Mr. KETHLEDGE. Senator, I don’t really have a label that I can 

put on myself. What I would say is that, obviously, first and foremost I would follow Supreme Court precedent. 

The other thing I would say is that, again, I would make sure 

that the values that I would be enforcing if I were a judge are not 

just my values, that I am not striking something down simply because I don’t like it. That is a countermajoritarian aspect of our 

system of Government. I would start with the text. I would say 

that, sir. 

Senator BROWNBACK. And I would just, with that answer, because we are apparently not going to be able to understand further—although clerking for the people that you did gives us some 

opinion on your idea. But what do you understand the current 

state of the law to be on Establishment Clause cases? 

Mr. KETHLEDGE. Senator, I would have to give pretty much the 

answer Judge White did. That is not an area that I have recent experience in in my practice. If I were presented with an issue along 

those lines, obviously I would carefully study Supreme Court and 

other applicable precedent. I believe that is where the Lemon v. 

Kurtzman case comes in, but I could be getting the wrong clause, 

and that is why I shy away from being too definitive in this regard. 

172 

Senator BROWNBACK. Have you handled any Establishment 

Clause cases? If I could on this, Mr. Chairman. 

Chairman LEAHY. Yes, take one more minute. The reason is we 

were going to end this round, but Senator Specter has asked to be 

able to go until about 12:20, 12:25. And I want to make an exception to the time so that he can. He is a highly respected, knowledgeable person here. We will do it. But if you could finish with 

whatever this question is, Senator Brownback. 

Senator BROWNBACK. Have you handled any Establishment 

Clause cases in any of your clerkships or any of the work that you 

have done? 

Mr. KETHLEDGE. Senator, I cannot remember offhand whether 

the courts that I worked on had any Establishment Clause cases 

while I was there. There isn’t one that comes to mind. I have not 

handled that issue in my private practice. It is simply not possible 

to handle every issue that might arise under the Constitution in 

one’s practice. 

I will say that that is obviously a very important issue where 

some of the most deeply held views of our citizens come into play, 

and I would take that very seriously. 

Chairman LEAHY. Thank you very much. And, of course, the 

record will be kept open for followup questions. 

Senator BROWNBACK. I appreciate that. I am going to, as the appropriate time, move that we go into closed session, Mr. Chairman. 

I would like us to be able to do that. 

Chairman LEAHY. If you move that, then we will have to come 

back later today to do that so we can accommodate Senator Specter 

now. 

Senator BROWNBACK. I just wanted to put you on notice of that, 

Chairman. 

Senator SPECTER. Judge White, we have a very limited time. I 

am trying to accommodate to the Chairman’s schedule. So if you 

could answer my questions briefly and directly, I would appreciate 

it. 

In a case captioned People v. Ryan, which there is a Supreme 

Court opinion in 1996, you were one of a three- person panel where 

you affirmed the dismissal of a drug dealer’s conviction. The Supreme Court reversed you. Your description of the case is as follows: 

Defendant was arrested with a kilogram of cocaine by Federal 

agents, but was charged and convicted in State court after DEA 

agents turned over their file to the State. Defendant argued the decision to pursue a State prosecution was vindictive. A panel of the 

court of appeals where you were not a member concluded that the 

case was vindictive and remanded for an evidentiary hearing. In an 

evidentiary hearing, the trial court found vindictive conduct. On 

appeal, you were a member, finding that the trial court’s findings 

were not clearly erroneous and affirmed. 

The State Supreme Court said that, ‘‘The mere threat to refer 

the case for State prosecution does not amount to objective evidence of hostile motive.’’ 

Do you think that you were correct in deciding that the evidence 

was sufficient for a finding of vindictiveness when all that happened was for the Federal DEA authorities to do was to turn the 

173 

matter over to State prosecutors, which is a very commonplace 

practice? 

Judge WHITE. Again, Senator, my familiarity, my recollection is 

refreshed by what you have said, by only by what you have said. 

I cannot say that those were the only facts involved. I can say that 

the prior panel found that there might be vindictiveness, that there 

was, sent it back. We had a hearing. I applied the law in terms of 

review, deference to be made to a trial court, concluded that it 

wasn’t an abuse of discretion for the trial court to so find, and that 

was the extent of my participation. 

Again, the Supreme Court reversed, and because the Supreme 

Court reversed, it meant that I, among others, got it wrong. 

Senator SPECTER. Do you stand by your judgment today that you 

rendered at the time? That is my question, again. 

Judge WHITE. The Supreme Court said I was wrong. I stand by 

the Supreme Court. 

Senator SPECTER. Well, let the record show again you haven’t answered the question. 

In a 1996 case captioned People v. Thomas, the panel issued the 

decision—you were a member the panel—reversing a conviction of 

a gang member who was charged with second-degree murder and 

found guilty by a jury of voluntary manslaughter, carrying a concealed weapon, and felony firearm. The panel opinion reversed the 

conviction saying that the gang member’s assertion was correct, 

being denied a fair trial because the prosecution called a witness 

knowing the witness would refuse to testify. Your panel based its 

opinion on the violation of the defendant’s confrontation right. But, 

of course, when the witness didn’t testify, there was no opportunity 

for confrontation. 

The Supreme Court of the State reversed your panel’s opinion 

saying that there was no constitutional error, found evidentiary 

error but harmless error. 

Judge WHITE. Can you repeat that? I am sorry. I didn’t hear the 

last sentence. 

Senator SPECTER. The Supreme Court found there was evidentiary error, but the error was harmless because the State had 

‘‘proved that it was highly probable that the errors did not contribute to the verdict.’’ 

Question: Do you stand by the judgment you made at that time? 

Judge WHITE. Well, apparently the decision on the evidentiary 

and constitutional issue was determined to be correct, but the 

harmless error analysis was determined to be erroneous. So, again, 

I would stand with the Supreme Court and conclude that my analysis on the constitutional and evidentiary issue was correct, and 

the panel, of which I was one, our conclusion regarding the harmless error was erroneous. 

Senator SPECTER. The Supreme Court concluded your panel was 

wrong. They reversed you, for the reason I stated, on harmless 

error. Now, my question to you is: Do you stand by the judgment 

that you made at that time? 

Judge WHITE. No, sir. Again, I stand by the judgment of the Supreme Court. 

Senator SPECTER. You think the Supreme Court was right? I am 

still trying to get an answer. 

174 

Judge WHITE. The issue— 

Senator SPECTER. I know the Supreme Court has the final word. 

Judge WHITE. They do, sir. 

Senator SPECTER. They are not necessary correct. I am just asking you for your judgment. I am trying to evaluate your judgment. 

Do you think you were right in the judgment—you were part of the 

panel—or that the Supreme Court was right in reversing for the 

reasons I have gone into? 

Judge WHITE. Sir, I thought I was right at the time I made the 

decision, and I accept the conclusion of the Supreme Court. 

Senator SPECTER. Okay. Same answer, same conclusion. The 

question hasn’t been answered. 

Judge White, would you care to amplify in any way your record 

in handling criminal appeals? Because on the basis of the cases 

that I have cited—and we are under very tight time constraints— 

I would like to go into a lot more of your cases, very frankly. But 

I haven’t had time to read all your cases, and I am a fast reader, 

but there have only been a few days. So I want to give you an opportunity to comment or explain your attitude toward appellate 

work on criminal cases. Are these cases that I cited characteristic 

of your work on the bench? 

Judge WHITE. Thank you for the opportunity to address my 

record on criminal cases. As I said, there are over 4,300 cases. I 

would say that over—probably about 60 percent of them are criminal. I would have affirmed in maybe 98 percent of the cases. 

There is an appellate system applying both to criminal and civil 

cases. When a case comes before me, I apply the law as stated by 

the Supreme Court. In each of those cases, I endeavor to do so. 

I am also confident in saying that both prosecutors and defense 

lawyers regard me as being fair and impartial. I think that lawyers 

on both sides are pleased to come into the courtroom when I am 

on the panel, and that in each of these cases, even the prosecutor 

would have thought that there was a reasonable basis. And as in 

some of these cases, my colleagues shared my opinion. 

The bottom line is in most cases, 98 percent of the cases, convictions are affirmed. Part of my duty as an intermediate appellate 

judge is to be open to the possibility that there was error below. 

And I take criminal cases very seriously. I take the rights of citizens to be free of crime very seriously. I also take the rights of defendants seriously, and I have decided each one of those cases to 

the best of my ability. 

Senator SPECTER. Now, Judge White, Senator Brownback asked 

you about the Establishment Clause, and you said you hadn’t had 

any experience with it. Have you had any experience with the Free 

Exercise Clause of the First Amendment, freedom of religion? 

Judge WHITE. Let me say I recognize that the Establishment 

Clause and the Free Exercise Clause are parts of the First Amendment. I understand that in many respects they are two sides of the 

same coin and that from time to time cases come to the court— 

Senator SPECTER. Have you had any cases on these issues or any 

experience as a lawyer? 

Judge WHITE. Okay. I don’t recall specific cases on either of those 

clauses. That doesn’t mean I haven’t had them. I just don’t recall 

them. 

175 

Senator SPECTER. Have you had any experience on the issues of 

freedom of speech, assembly, freedom of the press? 

Judge WHITE. I have had some cases implicating the press, mostly under our State FOIA statute, Freedom of Information statute. 

Maybe in terms of the press in the courtroom, it has come up in 

that context. 

Senator SPECTER. Have you had any experience on holding reporters in contempt, a contentious issue? 

Judge WHITE. I have not had them directly, no. 

Senator SPECTER. Have you had any experience on the attorneyclient privilege, now a contentious issue, where the Federal Government is extracting waivers or tougher sentences and tougher 

charges? 

Judge WHITE. We— 

Senator SPECTER. Have you had experience in that field? 

Judge WHITE. I am sorry to interrupt. I have had cases dealing 

with the attorney-client privilege, not in that context, but certainly 

attorney-client privilege issues have come before me. 

Senator SPECTER. Have you had any experience in the issue of 

Executive power? The Sixth Circuit had the appeal coming out of 

the Detroit United States District Court for the Terrorist Surveillance Program which constituted an analysis of the Foreign Intelligence Surveillance Act. Are you familiar with the Foreign Intelligence Surveillance Act? 

Judge WHITE. Only to the extent that any citizen would be. I 

haven’t had any Federal Executive power cases. I have had State 

Executive power cases. I understand the importance of these issues 

and would address them accordingly. 

Senator SPECTER. Have you had any experience with the cases 

now pending in the Federal court seeking to grant retroactive immunity to the telephone companies? Any experience with issues 

like that? 

Judge WHITE. I don’t recall cases that would be directly on point 

with immunity for telephone companies. No, sir. 

Senator SPECTER. Have you had any experience with the state 

secrets doctrine? 

Judge WHITE. It wouldn’t be something that would come to the 

State court system, no. 

Senator SPECTER. Well, let me ask you—let me give you an opportunity to respond, pretty much the same question Senator 

Brownback asked. With no experience in these areas, on these 

front-line issues—the Sixth Circuit just had the Terrorist Surveillance Program—what are your qualifications to sit on the court of 

appeals for the Sixth Circuit, finality of decision short of the Supreme Court? 

Judge WHITE. At the risk of being redundant, there are elements 

that go into being a judge. One is knowledge of the subject matter. 

The other is the process of deciding cases. I venture to say—and 

I could be wrong—that there are judges on the Sixth Circuit now 

who have not had cases dealing with some of the issues that— 

Senator SPECTER. Do you think that ought to be considered by 

the Senate in whether to confirm you or not? These other judges 

you allude—these other unnamed, unspecified judges you allude to, 

176 

do you think we ought to consider that in evaluating your qualifications? 

Judge WHITE. I didn’t mean to be speaking—I would say that 

they are qualified in the same way that I am qualified because you 

are in the job of addressing these issues every day as Members of 

the Congress. As judges, whether it is in the State or the Federal 

system, judges decide cases, individual cases, and they become expert in the subject matter through the case. As one has been on 

a particular court for a length of time, one becomes more familiar 

with certain types of cases. But there is always a first time with 

any subject matter, and the question is how the judge approaches 

it and whether the judge thoroughly familiarizes him- or herself 

with the law and whether the judge is familiar with the general 

principles of judging. 

Senator SPECTER. Judge White, I am going to finish up with you 

in the next 2 minutes, by 12:25, as the Chairman has requested. 

And I am going to reserve some questions for the closed sessions, 

which Senator Brownback has already mentioned, which I think we 

do need. But I want to pick up on two things you testified to. 

You said in your earlier testimony, I quoted you, that sometimes 

your taxes were ‘‘insufficient.’’ Could you amplify that, please? 

Judge WHITE. When I pay my taxes, which is something that I 

am proud to do, I do not compute my taxes. I give all of my information to an accountant. That happened— 

Senator SPECTER. Did you ever get a bill that you didn’t pay for 

a protracted period of time, a tax bill? 

Judge WHITE. Senator, I think I know what you are referring to. 

This past year, I got a notice that the amount that I had sent in 

apparently wasn’t sufficient. I sought advice on whether it was, 

and when I was told that it wasn’t, I sent it in. I paid what I believed to be my taxes at the time, and if it turns out it is not correct, then I pay whatever I am supposed to pay. 

Senator SPECTER. Judge White, you testified that you ‘‘abide by 

the rules of the road, but sometimes you have not.’’ Could you expand upon whether you—when and under what circumstances you 

have not? 

Judge WHITE. I have tried to abide by the speed limit. There are 

times when I— 

Senator SPECTER. Have you on occasion not abided by the speed 

limit? You mentioned that. 

Judge WHITE. Yes, sir, there are times when I have exceeded the 

speed limit. 

Senator SPECTER. Anything else related to the rules of the road? 

Chairman LEAHY. You know, if you want to ask further questions, we can wait until that closed session. I hope we do not set 

a standard that nobody can be a Federal judge if they have ever 

driven over the speed limit or that nobody can be a United States 

Senator if they have ever driven over the speed limit, because it 

is going to be a pretty darn empty chamber around here if that is 

a standard. 

Mr. Kethledge, we were talking about—have you had any experience with the Terrorist Surveillance Act? 

Mr. KETHLEDGE. No, sir, I have not. 

177 

Chairman LEAHY. Or with the Federal Rules on attorney-client 

privilege that is under debate now, the— 

Mr. KETHLEDGE. Not the Federal. I have only experienced that 

to the extent I have been subject to it. 

Chairman LEAHY. And how about the reporter’s shield law? Have 

you done a lot in that regard? 

Mr. KETHLEDGE. No, sir. 

Chairman LEAHY. So you are so like Judge White in that regard. 

Mr. KETHLEDGE. That would be correct, Chairman. 

Chairman LEAHY. I know that I agree with what President Bush 

has on his website, Judge White, that you are experienced and 

highly qualified. I was thinking that you—about 98 percent of 

these district attorneys see their sentences upheld. Anybody who 

has ever been a district attorney would be delighted to have 98 percent of their cases upheld. And I also, even though you have been 

an appellate judge longer than Mr. Kethledge has been a lawyer, 

I think you are both highly qualified. 

We will— 

Senator BROWNBACK. Mr. Chairman, I do want to move that we 

go into closed session. 

Chairman LEAHY. We will set a time so we can have other members here at a time when that can be done. The record will stay 

open in the meantime, and I can assure the Senator from Kansas 

he will have his opportunity to make that request. 

Senator BROWNBACK. Thank you. 

Chairman LEAHY. We stand in recess. 

[Whereupon, at 12:27 p.m., the Committee recessed, to reconvene 

at 5 p.m., and went into closed session.] 

[Questions and answers and submissions follow.] 

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(303) 

JUDICIAL NOMINATIONS: PAUL G. 

GARDEPHE, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

NEW YORK; KIYO A. MATSUMOTO, NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF NEW YORK; CATHY 

SEIBEL, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

NEW YORK; GLENN T. SUDDABY, NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE 

NORTHERN DISTRICT OF NEW YORK 

WEDNESDAY, JUNE 11, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, Pursuant to notice, at 2:17 p.m., in room 

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

presiding. 

Present: Senator Brownback. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. The Committee will come to order. 

I want to welcome all the nominees and their families. We have 

an all-New York panel this afternoon, and that warms my heart. 

In New York, we have worked out a really wonderful system of 

nominating judges to the District and Circuit courts, in which the 

President and I have worked extremely well together to name highly qualified consensus candidates to the Federal bench. 

We all know there’s often rancor when it comes to judges from 

other parts of the country, but there’s been virtually none in the 

7-years of George Bush’s term, in the 7-years I’ve been here in the 

Senate when we have served together and that’s because in New 

York we select mainstream consensus candidates for the bench. 

It’s my honor to introduce to the Committee today four such candidates to serve as judges in the District Courts across the great 

State of New York. All four of our nominees have unanimously 

been rated ‘‘Well Qualified’’ by the Bar Association. 

And so now I would like to ask the nominees to come forward. 

Okay. Now, Congressman Walsh was going to be here to give an 

304 

introduction, particularly to Mr. Suddaby, but he isn’t. So if he 

comes we’ll let him do his introduction after the introductions. 

[Laughter.] 

Now, will you please raise your right hand? 

[Whereupon, the nominees were duly sworn.] 

Senator SCHUMER. Please be seated. 

Now, before I introduce the judges, the witnesses, Senator 

Brownback? I can sit down, I guess. Would you like to say something, Senator Brownback. 

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR 

FROM THE STATE OF KANSAS 

Senator BROWNBACK. Yes. Thank you. I wanted to thank Chairman Leahy for holding this hearing and moving these forward. As 

you know, this has been a controversial issue, the slow pace of 

judges getting approved, both at the District and the Circuit levels. 

I’m pleased to see us getting this moving forward, and hopefully 

these will get floor time to be able to get approved on through the 

process. We are historic low levels on Circuit Court judges, and my 

hope is that we can start to get some of those to move, as well as 

District Court judges. 

I am pleased we are getting these four in the hearing today. I 

have looked through some of your backgrounds; quite impressive. 

We have even got one here from Manhattan, Kansas. Or was it 

Manhattan, New York? Okay. Well, I get those mixed up. 

Senator SCHUMER. Six of one, half dozen of the other. 

Senator BROWNBACK. Big Apple, Little Apple. I get those confused sometimes. But glad to have you here, and glad to be a part 

of the hearing. 

Senator SCHUMER. Well, thank you, Sam. We in New York were 

proud to name our center island of New York City after Manhattan, Kansas. 

Anyway, let me first—I am pleased to introduce Paul Gardephe. 

He’s nominated to be a District Court judge for the Southern District of New York. Mr. Gardephe has an impressive and eclectic 

legal resume ́ that includes work in both the public and private sectors in work on criminal prosecution, criminal defense, civil litigation, and corporate law. 

After graduating magna cum laude from the University of Pennsylvania and from Columbia Law School, Mr. Gardephe served as 

a clerk to Judge Albert Engel on the Sixth Circuit. He then worked 

as an associate with Patterson, Belknap, Webb & Tyler before 

working 9-years in the U.S. Attorney’s Office in the Southern District of New York. 

Mr. Gardephe then left to work for the Inspector General at the 

Department of Justice, where he worked to review the Department’s performance in the Robert Hanson and Aldritch Ames spying cases. After the Inspector General’s Office, Mr. Gardephe returned to the private sector, first to work as an in-house counsel, 

and ultimately vice president and deputy general counsel to Time, 

Inc. Mr. Gardephe later returned to Patterson, Belknap, Webb & 

Tyler, where he is now a partner and chair of the Litigation Department. 

305 

Among other things, Mr. Gardephe has represented a death row 

inmate pro bono who was eventually released after years of litigation. For his work, Mr. Gardephe was honored with the Thurgood 

Marshall Award for Pro Bono Death Penalty Representation. 

Mr. Gardephe, I understand your wife and four children are here 

with us today. Would you like to introduce them and make any remarks to the Committee? 

STATEMENT OF PAUL G. GARDEPHE, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

Mr. GARDEPHE. Thank you, Mr. Chairman. I would like to thank 

you, I’d like to thank Senator Specter, Senator Brownback, and all 

of the members of the Committee for the privilege of appearing before you today. I’d also like to thank the President of the United 

States for giving me the honor of nominating me to this position. 

I am fortunate to have with me today my wife of 27 years, Colleen Davis, along with our four children. 

Senator SCHUMER. When is your anniversary, Mr. Gardephe? 

Mr. GARDEPHE. 12/27/81, Mr. Chairman. 

[Laughter.] 

Senator SCHUMER. Because my wife and I are married—we celebrate our 28th on September 24th. 

Mr. GARDEPHE. I have with me today, in addition to my wife, my 

four children: Tess, who just graduated from high school, and I 

have three other children. They’re triplets, 12 years old. 

Senator SCHUMER. Ooh. 

Mr. GARDEPHE. Emma Kate, Paul William, and Sophie Elayna. 

In addition, I have two friends with me today. 

Senator SCHUMER. Why don’t we first have your family stand up 

so we can just acknowledge them? Mrs. Gardephe. And hi, triplets. 

[Laughter.] 

Thank you. Welcome. 

Please continue. 

Mr. GARDEPHE. I have two friends with me, Mr. Chairman. 

Susan Woodside, who I worked with on the Ames and Hanson investigations at Department of Justice, and also Amanda Kramer, 

who is an Assistant U.S. Attorney in the Southern District of New 

York. 

[The biographical information follows.] 

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Senator SCHUMER. Thank you, Mr. Gardephe. 

Now let’s move on. Next, I am particularly proud to introduce 

Judge Kiyo A. Matusumoto because she was my recommendation 

to fill the seat on the U.S. District Court for the Eastern District 

of New York, which covers all of Long Island, which includes 

Brooklyn and Queens, where I live. Before becoming a well-respected U.S. magistrate judge in the Eastern District, Judge 

Matsumoto’s impressive career included work in the private sector, 

in academia, and in public service. 

After graduating with high honors from the University of California at Berkeley and receiving her J.D. from Georgetown, Judge 

Matsumoto worked as an associate at McDonald, Hogue & Bayliss 

from 1981 to 1983. She then worked as an Assistant U.S. Attorney 

in the Eastern District, and has also taught as an Adjunct Professor of Law at NYU. 

As a magistrate judge since 2004, Judge Matsumoto has earned 

an unimpeachable reputation, and only on one occasion has a reviewing District Court declined to adopt her report and recommendations. I am not only pleased with Judge Matsumoto’s 

nomination because of her integrity and qualifications, but I also 

believe Judge Matsumoto will contribute to a diversity of perspectives to the Federal bench. Outside the Ninth Circuit, Judge 

Matsumoto will be only the third Asian American appointee to the 

Federal courts, and only the second in 14 years. 

Judge Matsumoto’s father is here with us today. He and Judge 

Matsumoto’s mother spent time in an internment camp during 

World War II, and I’ve always been hopeful that by ensuring that 

the Federal bench is filled with men and women of principle from 

a diverse range of backgrounds and experiences, we can avoid repeating such tragic mistakes of the past. 

Judge Matsumoto and her husband have three beautiful children. So, Judge, why don’t you introduce your family and make any 

brief remarks you wish to make? 

STATEMENT OF KIYO A. MATSUMOTO, NOMINEE TO BE U.S. 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW YORK 

Judge MATSUMOTO. Senator Schumer, I would like to thank you 

and the Committee for hearing us today, and thank Senator 

Brownback for being here. I would also like to thank the President 

for his nomination to the U.S. District Court for the Eastern District. 

I’m very pleased to introduce my family. I have here my father, 

George Matsumoto, and my brother Ken Matsumoto, both from 

California. And I have my husband of 23 years, Colin Lee, along 

with our three children, Kimi Lee, Liam Lee, and Miya Lee. 

In addition, I am pleased to note that seven of my present and 

former law clerks are present here. 

Senator SCHUMER. Why don’t we first have your family stand so 

we can acknowledge them? It’s always nice to see the proud families. Welcome. And particularly for you, Mr. Matsumoto. I’m sure 

you’re very proud of your daughter today. 

Judge MATSUMOTO. Thank you, sir. 

Senator SCHUMER. Please continue. 

345 

Judge MATSUMOTO. I do have, as I said, seven present and 

former law clerks here today: Ameet Kabrawla, Tomoko Onozawa, 

Kristin Mattiske, Alvin Lin, Ellen Blain, Jenny Kim, and Joseph 

Loy, as well as representatives of the Asian American Bar Association of New York and the National Asian-Pacific American Bar Association. 

Thank you, sir. 

[The biographical information follows.] 

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Senator SCHUMER. Thank you, Judge Matsumoto. 

Next, we’re going to move on to another nominee who I enthusiastically recommended to the President, and that is Ms. Cathy 

Seibel. She is nominated for the District Court of the Southern District of New York. She spent 21 years as a Federal prosecutor, 

mostly in New York. She developed a reputation for fairness and 

effectiveness. Currently, she’s the First Assistant U.S. Attorney for 

the Southern District, and she’s also served as Deputy U.S. Attorney and Assistant U.S. Attorney in Charge during her tenure. 

She has prosecuted a number of high-profile tax fraud cases, including the Leona Helmsley case, as well as the very first case 

when the Violence Against Women Act was used for a murder 

charge. I was the author in the House of that law, so it is good to 

see it going into effect in a good way. 

Despite the demands on her time as a prosecutor, Ms. Seibel also 

finds time to teach a course on trial practice at Columbia Law 

School and has previously taught courses at Fordham. And, I 

would add that while at the Southern District she has trained several generations of lawyers, and not the least of whom is my own 

chief counsel, the well-known and outstanding Preet Barara, who 

is sitting behind me making sure I make no mistakes. 

Ms. Seibel graduated magna cum laude from Princeton, received 

her J.D. from Fordham University where she was editor-in-chief of 

the Fordham Law Review. She clerked for Judge Joseph 

McLaughlin in the Eastern District after graduation, and so she 

has truly been working to protect the rule of law in New York since 

the beginning of her career as a lawyer. 

Ms. Seibel, I know you are, too, joined by your family today. 

Would you like to introduce them to the Committee and make any 

brief statement? 

STATEMENT OF CATHY SEIBEL, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK 

Ms. SEIBEL. Thank you, Mr. Chairman. I’d like to thank you and 

Senator Brownback for convening this hearing today, and particularly, Senator Schumer, thank you for recommending me to the 

White House. I’d like to thank President Bush for accepting that 

recommendation. It is an honor to be here. 

I have with me today my mother, Ellen Seibel, my husband of 

almost 18 years, Barron Lerner, our two children, Ben, who is 15, 

and Nina, who is 13. 

Senator SCHUMER. Will you please rise, Seibel family? Welcome. 

Glad you’re here. I can see how proud your mother is by the smile 

on her face. 

Ms. SEIBEL. And also some friends from DC are here: Eric Biel, 

Michael Bosworth, and Christine Parker. 

[The biographical information follows.] 

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Senator SCHUMER. Great. Okay. Thank you. 

And finally, last but not least, I’d like to introduce the current 

distinguished U.S. Attorney for the Northern District of New York 

and the President’s nominee to the bench for that same District, 

Mr. Glenn T. Suddaby. 

Mr. Suddaby has been a U.S. Attorney since 2002, but his ties 

to the Northern District go much further than that. He received his 

B.A. from Suny at Plattsburg, then received his law degree from 

Syracuse University, and then began his career as a prosecutor in 

Onondaga County, which is the county that the city of Syracuse is 

in. 

After a short stint in the private sector at the Syracuse law firm 

of Mentor, Ruben, and Trivelpiece, Mr. Suddaby returned to the 

Onondaga County District Attorney’s Office as the First Chief Assistant District Attorney, and he served in that position for 10 

years. Between college and law school, he served for several years 

as a legislative aide in the New York State legislature. 

Mr. Suddaby has earned his reputation as a hard- working prosecutor who has, in particular, targeted corruption throughout his 

District. Mr. Suddaby’s impressive career in law enforcement and 

his commitment to placing the rule of law ahead of ideology make 

him a fine choice for New York and for the Northern District. 

Mr. Suddaby and his wife Jane have two children. 

Mr. Suddaby, please make any remarks you wish to make, and 

introduce your family. 

STATEMENT OF GLENN T. SUDDABY, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF NEW YORK 

Mr. SUDDABY. Thank you, Mr. Chairman. Thank you for the opportunity to be here today. I want to thank Senator Leahy and the 

Committee for the opportunity to be here. Senator Brownback, I 

want to thank you, sir, for being here as well. 

I want to particularly thank you, Senator Schumer, for your support now for the second time. I would like to thank the President 

for the nomination for the ability to sit here today. Thank you. 

My family is here. My wife Jane, of almost 19 years on August 

25th, and my oldest son, Conor, and my younger son, Ryan. 

Senator SCHUMER. Please stand so we may say hello. Welcome. 

Thank you all for being here. 

Okay. Well, great. Now let’s begin some questions. 

Here is my first question to all four nominees. There’s been an 

age-old debate about how exactly a free society should balance security and liberty. I’ve always been a strong believer we can have 

both, that we can continue to exercise the liberty guaranteed by 

our Constitution without hampering the ability of government to 

protect us from those who would do us harm. We know there are 

plenty of people like that, particularly these days. 

I believe that our constitutional system requires checks and balances. The most important check on over-reaching executive power 

is the Federal judiciary. As a judge you will be on the front lines 

of the debate of how to balance liberty and security. How should 

a judge approach this question? How will you go about balancing 

these interests on the bench? We’ll start with Mr. Gardephe and 

work our way to my right. 

413 

Mr. GARDEPHE. Thank you, Mr. Chairman. The place I would 

begin, of course, is with our Constitution and laws that govern our 

country, and have governed it for the last 200 years. I would be 

guided by the fact that we have been able to maintain our principles through war and peace for the last 200 years, and most recently by the experience of the prosecutions in the Southern District of New York regarding the first attack on the World Trade 

Center, as well as the seditious conspiracy involving Sheik 

Rahman. 

I believe in both of those cases the judges involved were able to 

balance those important—indeed, vital—considerations that you 

just mentioned, and that we can be confident in the future that 

those critical values can be balanced. 

[The biographical information follows.] 

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Senator SCHUMER. Judge Matsumoto. 

Judge MATSUMOTO. I agree with my colleague, Mr. Gardephe. I 

also would start with the Constitution that has governed all of the 

courts’ considerations of issues where one must balance the interests of liberty and due process against the vital national interest 

of national security, particularly in times as we have experienced 

recently. 

I do believe that a judge, when making those delicate balances, 

must pay due deference to the executive and understand that in 

certain circumstances the executive does have certain prerogatives. 

However, when individual liberties are affected, I do believe that 

the court must look at the due process considerations to ensure 

that an individual is given fair notice of the charges and adequate 

protection of his constitutional rights. 

Senator SCHUMER. Thank you. 

Ms. Seibel. 

Ms. SEIBEL. Thank you, Mr. Chairman. The question you raise 

is probably the pressing issue of the day. Government has no higher function than to protect its citizens. At the same time, the rights 

in the Constitution are of utmost importance, and have been, as 

Mr. Gardephe said, for 200-plus years. If issues involving the conflict between those two principles came before me, I would look to 

what the higher courts have said on the subject and attempt to 

achieve, as you said a moment ago, the maximum security with the 

minimal abridgement of individual liberties based on that body of 

law. 

Senator SCHUMER. Mr. Suddaby. 

Mr. SUDDABY. Thank you, Mr. Chair. I think it is, without question, a critical area that we really have to continue to show the 

world that we will continue to do it the right way and that individual rights will be protected. The judiciary has its role. We have 

a responsibility to make sure that we follow the law of the Constitution and that those rights are protected, at the same time assuring the public that justice will be done in our country for those 

who would threaten our liberties and safeties. 

Senator SCHUMER. Thank you. 

Now, for each of you, a second question. Can you name a judge 

or a justice whom you admire, and tell us why? 

Mr. GARDEPHE. Yes, Mr. Chairman. 

Senator SCHUMER. Mr. Gardephe. 

Mr. GARDEPHE. There is a judge in the Southern District of New 

York when I first began as a lawyer named Edward Weinfeld, a 

District Court judge. Judge Weinfeld was admired greatly by lawyers practicing at the time for his legal scholarship, his work ethic, 

and his commitment to justice. He, in particular, when citing his 

opinions, it was the common practice after the citation to list in a 

parenthetical ‘‘Weinfeld, J.’’ because of the imprimatur that came 

along with any decision he had written. He is someone I admire 

greatly and would hope to emulate. 

Senator SCHUMER. Judge Matsumoto. 

Judge MATSUMOTO. Thank you, Senator. I would have to say that 

I have always had a great deal of respect and admiration for Circuit Judge Rena Radja of the Second Circuit. She served briefly as 

the U.S. Attorney before her appointment to the U.S. District Court 

442 

in the Eastern District, and throughout her career as a jurist has 

demonstrated a high level of scholarship, clear writing, very strong 

awareness of protecting the rights of the accused, and ensuring 

that he or she receives a fair trial. She is also, I think, as a Circuit 

judge, continued her tradition of writing clear, scholarly decisions 

and providing guidance for judges to follow. 

Senator SCHUMER. Ms. Seibel. 

Ms. SEIBEL. I had the good fortune after law school to clerk for 

Judge Joseph McLaughlin, who was then a District Court judge in 

Judge Matsumoto’s court in Brooklyn. He, to me, is a wonderful example of a judge who is scholarly and yet practical, who runs a 

tight ship but never loses his humanity, and his recognition that 

the parties before him are there on what is, in their lives, an incredibly important matter, and I would try to emulate him. 

Senator SCHUMER. Mr. Suddaby. 

Mr. SUDDABY. Yes. Thank you, Mr. Chairman. 

I met the Chief Judge in the Northern District of New York 

when I was in law school, Judge Munson, who was revered as a 

very clear-thinking, hard-working, hard-charging, practical judge. 

He works—you know, took the time to work with law students. He 

reached out to the community and he was really very well-known 

for his recall. In the middle of the trial he would quote testimony 

back to people from a week before. He was just what a District 

Court should be. He just retired last month after, I think it was, 

30-some plus years on the bench. It was a great honor to know him 

and to have him as a role model. 

Senator SCHUMER. Thank you. 

I have two more brief questions. My time is up, but with Senator 

Brownback’s indulgence, first, for Judge Matsumoto, you have 

spent most of your career representing the government, defending 

it from civil litigation. One of the hallmarks of our legal system is, 

all citizens have the opportunity to seek redress from their government when it has violated their rights. 

What can you tell the committee to assure us that, if confirmed, 

you’ll be able to fairly consider the claims and rights of plaintiffs 

against the government? 

Judge MATSUMOTO. Thank you, Senator. In my capacity as an 

Assistant U.S. Attorney, I also had occasion to bring suits on behalf 

of the Federal Government. As a magistrate judge, I certainly do 

have many cases before me where I must carefully weigh the arguments, both factual and legal arguments, of both parties. I believe 

that I have attempted, and have in fact achieved, the ability to 

come to every case with an open mind, read the papers submitted 

by the parties, research the law, and follow the law to the best of 

my ability. 

I do believe that in my capacity as a magistrate judge, when I’ve 

had to select jurors, I try very hard to probe the jurors and ensure 

that they come to the jury box with an open mind with no pre-conceived prejudices or notions about the outcome of a case or that 

may affect their ability to be fair and impartial in considering the 

facts before them. 

Senator SCHUMER. Thank you. 

And now for both Ms. Seibel and Mr. Suddaby, you both spent 

the bulk of your legal career as prosecutors, Federal prosecutors. 

443 

By all accounts you’ve been both fair and tough, but you have spent 

little or no time representing the other side in the criminal justice 

system. What can you tell the Committee to assure us that, if confirmed, you will be able to fairly consider the claims and rights of 

criminal defendants who come into your courtroom? 

Ms. SEIBEL. Thank you, Senator. I regarded as part of my job as 

a prosecutor to look at the case from both sides, to make sure that 

the process is fair, to make sure that the defense has the rights— 

in fact receives the process to which it’s entitled under our laws, 

and I would like to think, if you spoke to opposing counsel on the 

cases I’ve handled, they would tell you that I have succeeded in 

what I hope I’m achieving, to be open-minded and fair, and I would 

certainly do my best to continue that if I am fortunate enough to 

be confirmed. 

Senator SCHUMER. Mr. Suddaby. 

Mr. SUDDABY. Thank you, Senator. 

As in my supervisory capacity, both in the District Attorney’s Office of Onondaga County as a U.S. Attorney, I often spoke to our 

young prosecutors about the fact that they have a high responsibility as prosecutors to do justice, and that means they should be 

just as happy and satisfied with the dismissal of a case if that warrants—if that accounts for justice as a jury verdict. I think I can 

say that people who know me understand that that’s the way that 

I look at it, and that if I am fortunate enough to take this next step 

and be confirmed as a Federal District Court judge, that every person that walks into that courtroom will be treated fairly and just 

the same as anyone else. 

Senator SCHUMER. Thank you. I’m finished with my questions. 

Senator Brownback. 

Senator BROWNBACK. Thank you very much, Mr. Chairman. 

Welcome, all of you. I’m delighted to have you here. I was sitting 

up here feeling a little bit left out, so I wanted to tell you all, I 

have been married 25 years to a wonderful wife. 

[Laughter.] 

I have five children, and August 7th is my anniversary date. 

[Laughter.] 

So I’m delighted to have all of you here. You’ve got great records. 

I’ve just got one specific question for each of you I’d like to go 

through, if we could. 

Mr. Gardephe, you worked for the Justice Department as Chief 

Investigator of the FBI’s performance in connection with the Ames 

and Hanson espionage cases. I just wondered, and this is just for 

personal consumption more than anything, what did we learn as a 

country through your investigation in coming out of that on the 

other side? 

Mr. GARDEPHE. Thank you, Senator. We learned, I think in part, 

from both the Ames and the Hanson experiences that it is important to have deterrents in place to make people who are contemplating espionage think about the risks. And I think what we 

learned from the Ames and the Hanson affairs is that we did not 

have adequate deterrents in place, we did not have financial disclosure requirements, we did not impose polygraph examinations with 

the frequency perhaps they should have been. We did not have adequate deterrents in place to prevent people like Ames and Hanson 

444 

who attempted to betray their country to think about the consequences and the risks if they went forward with that betrayal. 

Senator BROWNBACK. This doesn’t have anything to do with your 

appointment, but have we put those safeguards in place since then? 

Mr. GARDEPHE. There have been great improvements in the security regimes at both the CIA and the FBI since Ames and Hanson. 

While we cannot be certain that there are no moles in these organizations today, there are certainly far more deterrents in place now 

than there was back when Ames was a CIA officer and Hanson was 

an FBI agent. 

Senator BROWNBACK. Judge Matsumoto, you have an impressive 

background and impressive family history. I jog or walk around 

Capitol Hill and will go by the memorial where we recognize the 

internment, and it’s always, I guess, great to see people succeed 

through difficulty. You and your family, and your father, certainly 

have a lot to be proud of. 

You’ve done pro bono work for several women’s organizations, I 

noted, including for a community group who provides assistance 

and shelter for abused women and their children. What have you 

learned through that work that we should know about here in dealing with that type of situation of abused women and children? 

Judge MATSUMOTO. I think the overriding concern, Senator, in 

that situation was to provide a safe shelter for women who were 

trying to remove themselves from the abusive situation so that she 

and her family could seek adequate support, whether it’s legal or 

from the social services agencies, and to give her a place where she 

could decompress and have some distance from an abusive relationship, which oftentimes would be highly charged. My work there 

was primarily to assist organizations that would try to set up shelters for these women so that they could receive safe shelter from 

a situation until those support services were put into place. 

Senator BROWNBACK. Are we adequately addressing that situation now? This has no bearing on your appointment, but I just was 

noting it in your resume ́ and I just was curious. 

Judge MATSUMOTO. This was an organization in Seattle in my 

first 2 years of practice that I worked with. I haven’t ever been 

back to practice in Seattle, but I do believe that certainly the public 

awareness of this problem has increased and I do believe that, at 

least in New York City and other metropolitan areas, there is more 

attention being focused on the problem of domestic violence and the 

need to provide shelter for families who may wish to extricate 

themselves from a difficult situation. 

Senator BROWNBACK. Ms. Seibel, you’ve worked—there was an 

article on you while you were serving as a Special Assistant U.S. 

Attorney on bankruptcy and tax fraud crime cases. I think you said 

in one article, if they quoted you right, said this ‘‘made your blood 

boil’’. I like it when people get their blood boiling; we do that a lot 

around here. 

[Laughter.] 

In your view has the Federal law enforcement been paying 

enough attention in recent years to bankruptcy fraud cases? Do law 

enforcement officers and prosecutors have sufficient tools to effectively attack bankruptcy fraud? 

445 

Ms. SEIBEL. Thank you, Senator. I think that quote sounds like 

me. I think I probably was correctly quoted. There have been improvements since I was doing that work back in the early 1990s. 

I believe it’s Section 152, which is the main criminal bankruptcy 

fraud statute, that has been amended and rationalized. I think, 

like anything else, it is a matter of resources. Many bankruptcy 

frauds are not huge frauds. 

It is always difficult in allocating resources: Do you focus on a 

few huge frauds? Do you try to look at a bunch of little frauds? I 

think, as in most areas of law enforcement, you can’t possibly prosecute everybody who’s doing it. You have to try to bring enough 

cases that it will deter other people who might be thinking of that. 

But to me, since bankruptcy is a privilege created by government, 

it does make my blood boil when people abuse it. 

Senator BROWNBACK. That undermines the system, as you note, 

that privilege, if it is abused. 

Mr. Suddaby, you mentioned in your written answers to the 

Committee’s question, you personally prosecuted over 80 homicide 

cases. That’s a lot of cases to prosecute. You’ve represented Department of Justice on a border enforcement team on setting policy at 

the border with Canada. We generally focus on the southern border 

a lot more than the northern border here. What do you see as the 

greatest security threats we have on that northern border, and are 

they being addressed? 

Mr. SUDDABY. Thank you, Senator. Yes. I’ve had the great opportunity to serve as the Attorney General’s chair on the Border and 

Immigration Subcommittee, and it’s mainly because I was up there 

on the northern border yelling about all the resources going to the 

southern border, and that we had another border up north and 

there was a different type of threat, but I thought, and still believe, 

a very real threat that we have to be aware of. 

I’m happy to tell you, I think we’ve made a lot of progress in our 

work with the Canadian Government and Canadian law enforcement. Our CMP has worked with our border law enforcement agencies terrifically. One of the committees I sit on is the International 

Joint Management Team for IBETs, which means Integrated Border Enforcement Teams, where provincial in Canada, Federal in 

the U.S., State and local, all the way through work together on the 

border, come together as a task force and share intelligence and do 

what they can to secure that border. 

Now, we still have a lot of work to do and there is a threat there 

that we need to realize is real and pay attention to, but I think 

we’re doing a good job and we’re making great progress. 

Senator BROWNBACK. I would ask all of you a narrow question 

on your background because I guess we tend to look at judges as 

going into a cloistered life now, and it’s okay, now you remove 

yourself from living and you just sit on a bench and you dispense 

justice from there. I don’t think it’s fair to you. I don’t think that’s 

good for the system. You each bring different experiences. They 

may be fairly far back in your background, it may be fairly recent, 

but those are useful things. 

I just want to encourage each of you to continue to do those to 

the degree you can and maintain your independence on the bench. 

If it’s spending the night at a homeless shelter or checking yourself 

446 

into jail sometime—not for breaking the law but for experience 

basis—I just find, for me, it really changes your outlook when you 

get a sense, and a smell, and a feel and you can really see the system rather than hear about it through somebody else. 

I spent a couple nights in jail of my own volition, not having 

committed any crime or being held there against my will. Fabulous 

experience. Just the smell and the feel, it just makes all the difference in the world. So I just urge you to follow some of your instincts on some of those when you get a chance to, because it just 

will really broaden that background of experiences you have. 

Too often when we put people up in your positions, it’s okay, 

that’s it, now you’ve just got to sit here and be a judge and stop 

experiencing these things, when we really need you to experience 

a lot more things because you’re going to have odd cases come in 

front of you. You don’t know what case is going to come in front 

of you, but we expect you to be able to make a good judgment once 

that case comes in front of you. I’ve you’ve had a background of experiences to be able to mesh with it, that’s just all that much more 

helpful to be able to do. 

My final thought and admonition is just that, in government positions, I think we need a lot of humility, that we just don’t know 

everything. Certainly in my position you can’t say that sort of stuff 

because people expect you to know things, but we don’t. I think we 

just need a good, good dose of humility, of listening to what people 

have to say, realizing we need wisdom. We’ve been put in these 

great positions to be able to do what’s right, and the people trust 

the system. If they ever lose trust in the system we are in real 

trouble, and you are a big part of that trust in the system. 

God bless you. I appreciate all of you, and I appreciate your families, too, for being a part of this because these are key jobs and it 

requires the whole family to do it. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Well, thank you, Senator Brownback. 

I want to thank all our witnesses. Before ending, I’d like to put 

into the record the statements of Chairman Leahy, who couldn’t be 

here today—he’s got many responsibilities, as you can imagine— 

and Senator Clinton. So, without objection, their statements will be 

entered into the record. 

[The prepared statements of Senator Leahy and Senator Clinton 

appear as a submissions for the record.] 

Senator SCHUMER. We’ll keep the record open for one week for 

written questions. 

With that, our hearing is adjourned. 

[Whereupon, at 2:53 p.m. the Committee was adjourned.] 

[Submissions follows.] 

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(453) 

NOMINATION OF CLARK WADDOUPS, OF 

UTAH, NOMINEE TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF UTAH; MICHAEL M. 

ANELLO, OF CALIFORNIA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA; MARY STENSON 

SCRIVEN, OF FLORIDA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA; CHRISTINE M. 

ARGUELLO, OF COLORADO, NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF 

COLORADO; PHILIP A. BRIMMER, OF COLORADO, NOMINEE TO BE DISTRICT JUDGE 

FOR THE DISTRICT OF COLORADO; AND 

GREGORY G. GARRE, NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES 

TUESDAY, SEPTEMBER 9, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

SD–562, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Specter, and Hatch. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. The hearing will come to order. Senator Hatch 

is a former Chairman of this Committee, and he knows that many 

times these little colloquies between the members is where half the 

work gets done. 

I have been concerned—and I am not saying anything here that 

I have not said before—about the number of filibusters, Republican 

filibusters, we faced this year and the refusal to give consent to 

proceed even on important bills. We had a number of bills out of 

this Committee that went out with virtually every Republican and 

every Democrat supporting them, and yet they still get blocked. We 

do have the Republican Thurmond rule which says no judges 

454 

after—certainly after the 1st of July. But I have gone the extra 

mile by proceeding with another confirmation hearing, and I hope 

that I will not get the objections from our Republican colleagues on 

breaking the Republican Thurmond rule by still having judges this 

late in the game. 

The hearing will include the President’s nominee to be Solicitor 

General. This will almost complete our efforts to expedite consideration of replacements—the entire leadership of the Justice Department resigned in the wake of the scandals of the Attorney General 

Gonzales era, and so this will bring about almost the replacement 

of the entire leadership team at the Department of Justice. 

We are going to include five additional judicial appointments. 

Their tenure, of course, is for a lifetime and will not expire in 5 

months when the President leaves office. I mentioned the Thurmond rule. That dates back to 1980, Senator Strom Thurmond, the 

Republicans were in the minority, he was Ranking Minority Member, and he called for shutting down the judicial confirmation process. There was a Democratic President. Republicans were in the 

minority, and Democrats conceded to the Thurmond rule, which I 

know everybody on this panel strongly supports. 

Then the Republicans used it in another recent Presidential election year, 1996, when the Republican Senate majority did not confirm a single judge after the August recess and no circuit judges 

during the whole 1996 session. I mention that because I saw something in the press recently that suggested otherwise, and it is unfortunate when reality gets in the way of the rhetoric. 

We have confirmed more judges already in this Congress than 

during the entire 109th Congress, when a Republican Senate majority and Republican Chairman of the Committee did not have to 

worry about the Thurmond rule and an abbreviated session due to 

a Presidential election. In the 37 months I have served as Judiciary 

Chairman, the Senate has confirmed 158 of President Bush’s judicial nominees. That is the same number confirmed by the Senate 

Republican majority in the more than 4 years it controlled for the 

Republican administration. 

But I will work with everybody. It is possible that you know at 

this time there had been over the year rare exceptions to the Thurmond rule, but it has required the consent of both the Democratic 

and Republican Leader and the Democratic and Republican leaders 

of this Committee to do that. And I want to thank Senator Specter 

who agreed to these judges: Clark Waddoups—am I pronouncing 

that correctly, Senator Hatch—of Utah; Michael Anello of California; Mary Stenson Scriven of Florida; and two nominees from 

Colorado: Christine Arguello and Philip Brimmer. They have the 

support of their home-State Senators, Republicans and Democrats. 

Senator Salazar called me so many times at my home last week 

in Vermont, I think he had me on speed dial. Both my wife and 

I are friends of the Salazars, and she was always happy to hear 

from you, and I was always happy to hear from you. At least on 

one occasion when the phone rang, I said, ‘‘Look, I have got a pile 

of work I have got to do. I do not care who that is. Tell them I am 

not here.’’ And she answers and she said, ‘‘Oh, this is different. 

Patrick, it is Ken Salazar. You take that call,’’ which I did. And I 

want to commend you, Senator Salazar, on working it out with 

455 

Senator Allard so we could have these judges before us. As you 

know, they were not originally on the list, and at your request we 

asked consent to do it. I want to thank Senator Specter, too, because even though the time was not the normal time given for notice, the Republicans did not object, and we were able to put them 

on. 

Ms. Arguello had been nominated before by President Clinton to 

the Tenth Circuit, but was pocket-filibustered in 2000. So we are 

trying to get through these, so Ms. Arguello, like Judge Helene 

White, has now been nominated by Presidents of both parties. We 

have reduced Federal judicial vacancies from the 10-percent level 

they hit after the pocket filibusters before, during President Clinton’s time, to less than half that number, and have done even better with the circuit vacancies. We have reduced those by more than 

two-thirds. And so we have actually improved—one of the areas we 

have improved. 

I will put the rest of my statement in the record. 

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

Chairman LEAHY. I will yield, of course, to Senator Specter, and 

again I thank Senator Specter for making it possible for us to add 

the two from Colorado at the request of Senator Salazar and Senator Allard. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you, Mr. Chairman. I was pleased 

to consent to the additions, notwithstanding the technical rule requirements, and we thank you for listing these judges for the confirmation hearing today. 

I think that the agreement between Senator Allard and Senator 

Salazar is a good barometer of moving ahead with the appointment 

of their judges, and it is my hope that the example which they have 

set will provide the basis for some additional confirmation hearings. Certainly when two Senators, one a Republican and one a 

Democrat, come to an agreement, that takes the issue of ideology 

out of the picture and provides a principled basis for moving ahead, 

notwithstanding the fact that it is September. 

There are some other situations which I have been discussing 

with the Chairman where the same thing has happened, where 

Senators of different parties in other States have come together, 

and it is my hope that it will provide a basis for moving ahead with 

some additional confirmation hearings. 

When the Chairman cites the practices of the past, I agree that 

there has been certain actions taken by the Republican Caucus 

which I think were unfortunate and said so at the time. I think the 

same thing has happened with the Democrats. The Chairman and 

I have engaged in a very extensive discussion on statistics, which 

I will not do here today. We have also engaged in discussions about 

the application of the so-called Thurmond rule, and I would just 

put in the record a CRS study which raises questions about the 

Thurmond rule, citing examples where confirmations were held. 

Perhaps the most notable was now Supreme Court Justice Breyer 

confirmed to the First Circuit after the 1980 election when PresiVerDate Nov 24 2008 10:03 May 29, 2009 Jkt 048894 PO 00000 Frm 00463 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\48894.TXT SJUD1 PsN: CMORC
456 

dent Reagan was elected and the Committee acted and the Senate 

confirmed First Circuit Court Judge Breyer at that time. 

But I think that it is fair to say that the Judiciary Committee 

of late has acted in a bipartisan, collegial manner, and I think that 

has been to the benefit of the country. And that is illustrated today 

by the Chairman setting these hearings, and even though it is September. So I hope we can proceed, and I hope we will one day reach 

a point where the ideology will be put behind us and we will try 

to move ahead on qualification only. 

Thank you, Mr. Chairman. 

Chairman LEAHY. I thank you. 

Of course, as Senator Specter knows, we try to work together of 

every one of these things and try to have them together. So I will 

go by seniority in calling on the Senators: first, from Utah, Senator 

Hatch, one of the most senior members of the Senate. 

PRESENTATION OF CLARK WADDOUPS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF UTAH, BY HON. ORRIN 

G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. 

Chairman LEAHY. I knew him when he had dark hair. He knew 

me when I had hair. 

[Laughter.] 

Senator HATCH. And I like you better without hair. As long as 

your wife likes you, I am going to love you, I tell you that. 

Well, thank you, Mr. Chairman, for scheduling this hearing. It 

is very important to us in Utah, as well as the other States involved here today. Let me just take a few moments to introduce to 

the Committee Clark Waddoups, who is nominated to the U.S. District Court for the District of Utah. And I will just take a few minutes because my colleague Senator Bennett is also here to speak 

about this exceptional nominee. 

When Judge Paul Cassell stepped down from the U.S. District 

Court last year, Senator Bennett and I set out to find a replacement with legal experience that is both wide and deep. Clark 

Waddoups truly stood out. It became obvious to us why the Utah 

Chapter of the Federal Bar Association recognized Clark in 1999 

as Utah’s Outstanding Lawyer, because that is exactly what he is. 

Clark has been practicing law for nearly 35 years, the last 27 years 

as head of his own firm in Salt Lake City. Before that, he was a 

partner in the law firm of O’Melveny & Myers, but he did come 

home to Utah. 

He has been involved in virtually every aspect of law in our 

State, including serving on the Board of Visitors of the Law School 

of Brigham Young University, and for 17 years on the Advisory 

Committee to the Utah Supreme Court on the Rules of Evidence. 

He has been involved in legal practice at the Federal as well as 

State level, having clerked for the distinguished Ninth Circuit 

Judge Jay Clifford Wallace and twice chairing the Merit Selection 

Panel for the U.S. Magistrate Judges. 

I might mention Judge Wallace was always in contention to be 

placed on the Supreme Court. That is how well thought of he was 

by both parties. And Clark Waddoups is the type of person any appellate judge would love to have work. 

457 

The majority of Clark’s extensive litigation experience has been 

in Federal court, and I am confident that his confirmation will be 

a smooth transition from before to behind the Federal bench. 

Mr. Chairman, I know this is a somewhat chaotic time of the 

year in Congress, and we have just a few weeks to get a lot done. 

Utah has only five U.S. district court seats, and our population has 

increased by more than 50 percent since the last one was created 

in 1990. That kind of population growth, among the fastest in 

America, means more cases and more pressures on the court. 

Since Judge Cassell resigned to go back to teaching, he is not 

available to pitch in the way senior judges do. So it is very important that this seat be filled, and I am so pleased with the excellent 

nominee the President has sent to the Senate. 

Mr. Chairman, I know Clark Waddoups very well. We looked at 

the whole Utah Bar, and there are a number of very, very fine 

judges and lawyers there from whom we could have picked this 

seat. And I have to say that none is finer than Clark Waddoups. 

Clark Waddoups is truly a lawyer’s lawyer. He is somebody that 

I think everybody on this Committee would respect and will respect. He is a person who I expect to be nonpartisan in every way. 

He is a person I expect to be one of the pillars of the district court 

bench in not only Utah but throughout the country. And I believe 

that he will add a great deal to our Federal courts. 

He is here with his wife and son, and I hope that you will get 

him to introduce them to you. I am very proud of this family, very 

proud of the services given, very proud of the legal capacity that 

he has. He is one of the great lawyers in this country, and I know 

that. 

So once again, Mr. Chairman, I appreciate your scheduling this 

hearing and hope that each of these nominees will be confirmed before our work is finished this year, and I am grateful to you. 

Chairman LEAHY. Well, thank you very much, and he should 

know that the nice things you have said about him here you said 

to me privately several times, and you have been a very active 

backer of his and talked to me quite a bit. And, of course, with your 

support and Senator Bennett’s support, two Senators I respect 

greatly, this has helped a lot. 

Senator SPECTER. Thank you. 

Chairman LEAHY. Senator Bennett. 

PRESENTATION OF CLARK WADDOUPS, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF UTAH, BY HON. ROBERT F. BENNETT, A U.S. SENATOR FROM THE STATE OF 

UTAH 

Senator BENNETT. Thank you very much, Mr. Chairman. I am 

very pleased to join with Orrin in recommending Clark Waddoups, 

and we did conduct a search together. I had some names, Orrin 

had some names. We sat down and went through them. And Clark 

Waddoups’ name rather quickly rose to the top of the list, and he 

became ultimately our only choice as the one to recommend to the 

President. And I am honored, as is Orrin, that the President has 

chosen to respect our recommendation and make the nomination to 

the Senate. 

458 

He is a named partner at one of Utah’s leading law firms. I am 

not a lawyer, but I have paid a lot of legal bills in my life. 

[Laughter.] 

Senator BENNETT. And this is a law firm that the company with 

which I was associated used in its legal activities, and they were 

searching for the best, and this is where they went. 

He is ranked 26th in this year’s list of Best Lawyers in America. 

Orrin talked about best lawyers in Utah, but he has a reputation 

that is national. He is an active member of the Utah Supreme 

Court Advisory Committee on Rules of Evidence, and his educational background shows how ecumenical he is in the primary 

collegiate competition within Utah. He graduated cum laude from 

Brigham Young University in 1970 and then graduated Order of 

the Coif from the University of Utah Law School in 1973. So he has 

covered both of those bases that demonstrates, I think, a very wise 

kind of political balance for this man. While in law school, he 

served as President of the Utah Law Review, and Orrin has mentioned that he clerked for Judge Wallace on the Court of Appeals 

in the Ninth Circuit. 

He has earned the praise of a lot of his colleagues. Let me dip 

into a few publications and share with you some of the comments 

that have been made. 

In the ABA Journal, it says in an article that he possesses ‘‘that 

rare ability to teach and inspire.’’ 

Another colleague said, ‘‘He is intellectually strong and doesn’t 

allow himself to be pushed around or walked over. But at the same 

time, I have never seen him be belligerent with opposing counsel 

or an opponent or belittle them.’’ 

And finally, this quote: His style of legal practice reflects ‘‘an unflinching commitment to honesty and professionalism.’’ 

These are the comments of those who have worked with him, and 

I am proud to support his nomination and hope that the Committee 

will report it out in a judicious and rapid fashion. 

Thank you. 

Chairman LEAHY. Well, thank you very much, and I know, Senator Bennett, both you and Senator Hatch have other committees 

that are meeting and going on. You are welcome to stay, of course, 

but also with the understanding if you have to leave at this point. 

Chairman LEAHY. Senator Allard and Senator Salazar, first I 

might say that my wife and I spent several days in Denver, Colorado, this past month. Senator Allard, understandably you were 

not there, but— 

Senator ALLARD. I was fishing, Mr. Chairman. 

[Laughter.] 

Chairman LEAHY. Well, there was part of the time I wish I could 

have been there fishing, and part of the time I wish I was there 

fishing with you. But I must say that anytime I have ever been in 

Colorado, I feel so much at home—the friendliness of the people. 

I live on the side of a mountain in Vermont, nowhere near the 

height of the Rockies, of course, but just being there I feel very 

much at home. So I thank all Coloradans, Republican and Democratic alike, for the hospitality they showed us at our convention. 

Senator Allard, please go ahead, sir. 

459 

PRESENTATION OF CHRISTINE ARGUELLO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, AND 

PHILIP A. BRIMMER, NOMINEE TO BE DISTRICT JUDGE FOR 

THE DISTRICT OF COLORADO, BY HON. WAYNE ALLARD, A 

U.S. SENATOR FROM THE STATE OF UTAH 

Senator ALLARD. Well, Mr. Chairman, thank you for your very 

gracious remarks on Colorado, and I am glad that you had a good 

time while you were there. I thought it was a well-run convention 

and was proud to have you in the State of Colorado. 

Also, Ranking Member Specter, thank you for being willing to 

move forward with these two nominees. Distinguished members of 

the Committee, I am joined today by my colleague and friend Senator Salazar to speak on behalf of Christine Arguello and Philip 

Brimmer, two individuals nominated by President Bush to fill judicial vacancies in the United States District Court for the District 

of Colorado. Again, I just want to state how profoundly thankful I 

am for both of you being willing to move with both of these nominees. 

Christine Arguello, rated as qualified by the American Bar Association, and Phil Brimmer, rated as well qualified by the ABA, 

would capably and honorably serve the citizens of Colorado and the 

United States if confirmed. 

I would like to begin by thanking Chairman Leahy for holding 

this hearing. I look forward to the Committee continuing the tone 

of expediency set by the Chairman by swiftly reporting the nomination to the floor for an up-or-down vote. It is critical to the administration of justice that the vacancies on Colorado’s Federal district 

bench, with a total of three vacancies—two have existed since last 

year—be filled immediately. And then one was added this spring 

with the untimely death of Phil Figa on the Colorado district court. 

I am pleased that we are joined today by Senator Salazar in 

what I hope is an early indicator of broad bipartisan support for 

these nominees. 

I would like to welcome to the United States Senate Mr. 

Brimmer’s and Ms. Arguello’s family who are here today. All of you 

no doubt played an important role in Christine’s and Phil’s being 

here today. Speaking from my own experience in public service, you 

are all embarking on this journey together, and your love and support will continue to be instrumental to your spouse’s ability to perform his or her public duties. 

Mr. Chairman, Mr. Brimmer is an outstanding attorney. He is a 

graduate of Harvard and Yale Law School, institutions that provided him with tremendous analytical tools and an arsenal of 

knowledge which has served him well in his career. Upon graduation from law school, Mr. Brimmer spent 2 years clerking with the 

U.S. District Court for the District of Colorado. Thereafter, he 

joined a Denver law firm where he spent 7 years in private practice 

before making a decision to devote his career to public service. This 

decision led Mr. Brimmer to the Denver District Attorney’s Office, 

serving first as Deputy District Attorney and later promoted to 

Chief Deputy District Attorney. 

Former District Attorney and current Governor of Colorado, Governor Bill Ritter, wrote, ‘‘Throughout Mr. Brimmer’s service at the 

Denver District Attorney’s Office, he upheld the highest standards 

460 

of integrity, fairness, honesty, hard work, and a dedication to public service.’’ Governor Ritter felt he could trust Phil Brimmer with 

the most challenging cases that came before the office, and Phil 

Brimmer did not disappoint. 

Current Denver District Attorney Mitch Morrissey recently wrote 

about his former colleague in a similar fashion: ‘‘Phil Brimmer 

never failed to impress me both with his work ethic and his knowledge of the law. He was one of our most valued attorneys.’’ 

The sentiments of Governor Ritter and District Attorney 

Morrissey are reflected in numerous other letters sent to my office 

from people who worked with Mr. Brimmer throughout the years. 

Similar to his experience as Deputy District Attorney, Mr. Brimmer has been exceptionally successful as a Federal prosecutor. Almost 7 years ago, he joined the U.S. Attorney’s Office as Assistant 

U.S. Attorney and has worked on an assortment of criminal cases 

as chief of the Major Crimes Section and now as chief of the Special Prosecutions Section. As chief of Special Prosecutions in the 

U.S. Attorney’s Office, Mr. Brimmer handled very challenging and 

procedurally complex cases, dealing with an assortment of crimes 

including child exploitation, cyber crimes, capital crimes, and prison crimes. Attorney General of Colorado John Suthers hired Phil 

Brimmer in the fall of 2001, recognizing his excellent work ethic 

and his tremendous intellectual capability. It seems Mr. Brimmer 

continues to impress everyone he works beside as he continues to 

serve Colorado’s legal community with great distinction. 

Anyone familiar with Phil Brimmer’s professional credentials can 

attest to his intelligence and his talent. Anyone familiar with Phil 

Brimmer as an individual would certainly observe that he is respectful, loyal, and good humored. His integrity, honesty, and professional dedication to public service also contribute to making Phil 

Brimmer a rare find. 

From my conversations with Mr. Brimmer, it is clear that he recognizes the proper role of the judiciary. His personal qualities and 

character, coupled with his professional experience and an ABA 

rating of well qualified and outstanding bipartisan recommendations from within Colorado’s legal, make Phil Brimmer ideally suited to service on the Federal district court. 

I would also like to welcome Ms. Christine Arguello to the United 

States Senate. This is not my first endorsement of Ms. Arguello. In 

1999, I made a recommendation to then-President Clinton to nominate Ms. Arguello for a seat on the U.S. District Court for the District of Colorado. This past January, I again offered her name to 

President Bush and urged he consider nominating Christine 

Arguello to fill a vacant judgeship on Colorado’s Federal district 

court. 

I speak before this Committee today in support of the nomination 

of this fine lawyer for service on the Federal bench. In her more 

than 25 years of legal experience, she has worn many different 

hats. She is experienced as a trial lawyer, in-house counsel, law 

professor, and public servant. She is a skilled attorney with impressive credentials and a diverse professional background. 

Ms. Arguello earned her undergraduate degree from the University of Colorado and her law degree from Harvard. She began her 

distinguished professional career working as an associate for a law 

461 

firm. She moved to a public service career after 19 years of private 

practice when she joined the Colorado Attorney General’s Office, 

where she served as Chief Deputy Attorney General under former 

Attorney General and now my current Senate colleague Ken Salazar. In 2003, she returned to private practice as a civil litigation 

attorney. In 2006, she assumed her current job as managing senior 

associate counsel for the University of Colorado at Boulder. 

Described by many as a trailblazer, Ms. Arguello and the wideranging experiences and accomplishments she brings with her 

would make her a great asset to the Federal bench. In addition to 

being the first Hispanic from Colorado to be admitted to Harvard 

Law School and the first Hispanic to be promoted to partner at one 

of the ‘‘Big Four’’ law firms in Colorado, Ms. Arguello has added 

law professor to a long list of accomplishments. She became a 

tenured professor at the University of Kansas Law School and 

joined the faculty at the University of Colorado School of Law and 

the University of Denver College of Law as an adjunct professor 

and a visiting professor, respectively. 

Christine Arguello is a top-flight nominee whom I am proud to 

introduce to the distinguished members of the Committee. 

I look forward to a fair and dignified confirmation process, the 

outcome of which I am confident will reveal two highly qualified 

nominees deserving of confirmation. 

I would like to congratulate Phil and Christine, and on behalf of 

the citizens of Colorado, thank each of you for your willingness to 

serve this great country. 

Thank you, Mr. Chairman, and thank you, Senator Specter. 

Chairman LEAHY. Thank you, Senator Allard. 

Senator Salazar. 

PRESENTATION OF CHRISTINE ARGUELLO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO, AND 

PHILIP A. BRIMMER, NOMINEE TO BE DISTRICT JUDGE FOR 

THE DISTRICT OF COLORADO, BY HON. KEN SALAZAR, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Senator SALAZAR. Thank you very much, Chairman Leahy, for 

holding this hearing this morning, and thank you for your leadership and your example as a statesman in your position as Chairman of this Committee. Thank you for the numerous telephone 

conversations that we engaged in over the weekend, and I appreciate Marcelle’s patience in always answering the telephone. Thank 

you for your example. 

Senator Specter, you as well, as Ranking Member of this Committee, I very much have enjoyed my 31⁄2 years here in the U.S. 

Senate, in part because I have had the honor of working with Senator Leahy and you, Senator Specter. 

Senator Hatch, thank you for your service on this Committee, 

and, Senator Whitehouse, thank you as well. I appreciate working 

with all of you, my colleagues. 

To Senator Allard, I want to thank you for what has been a journey that has taken us to where we are today. Some people said 

that it could not be done, but at the end of the day, I think our 

working together and recognizing the inherent qualities of the two 

nominees from Colorado resulted in both of us being able to stand 

462 

before this Committee this morning saying that we both unequivocally endorse both of these nominees. 

Let me make a comment very briefly about each of the nominees, 

and I will submit the formal statement that I have written for the 

record. 

First, with respect to Christine Arguello, her life story really is 

the personification of the American dream. She was born in southern Colorado in a place called Thatcher, far away from where anybody ever expected her to graduate from high school. Her father 

worked on the railroad, and for a part of her life, she actually grew 

up in a boxcar on the railroad as they moved from town to town. 

She became the first Latina, first Hispanic, ever admitted to Harvard Law School, went on to graduate from Harvard Law School 

and work with some of the most prestigious law firms in the Rocky 

Mountain West, including Holland & Hart, and later on becoming 

a partner at Davis, Graham & Stubbs. 

But that was not enough in terms of achievement for her because 

she also wanted to do some other things in terms of teaching and 

public service. She went on to the University of Kansas, where she 

became a tenured law professor, and while there also wrote one of 

the books that is most often used now in courses on evidence in law 

schools around the country. 

When I became Attorney General for Colorado, I looked for the 

best and the brightest to come to work for me in that Office of Attorney General. Christine Arguello joined me and served as the 

Chief Deputy Attorney General for the State of Colorado, working 

on cases that involved both Federal courts as well as the Colorado 

courts, arguing a number of cases before the Colorado Supreme 

Court, and the district court and the Tenth Circuit as well. She is 

a lawyer’s lawyer and always tries to make sure that it is the rule 

of law which she upholds as she does her work in all the various 

capacities that she has held. 

She has most recently been serving as senior counsel for the University of Colorado in Boulder and has done a tremendous job. She 

also happens to be a wonderful mother of four, including the two 

youngest of her children which she adopted about 6 or 7 years ago, 

and I am very proud of what she does within the community beyond her work as a great lawyer. 

The story of Phil Brimmer likewise is a remarkable story. Coming from a place in Wyoming named Rawlins, Wyoming, this young 

man found his way to Harvard and then Yale Law School, and 

from Yale Law School moving to work for a great judge known to 

all of us who practiced law in Denver, Zita Weinshienk, and 

clerked for her for a period of 2 years. She told me just last week 

she thought Philip Brimmer was one of the very best law clerks 

who had ever worked with her while she served in that position of 

U.S. district court judge. 

He went on to work with a national law firm, Kirkland & Ellis, 

and then left Kirkland & Ellis because he reached a point in his 

own life where he decided that the road that he wanted to take was 

one of public service. He went on to distinguish himself in the positions in the Denver District Attorney’s Office that Senator Allard 

has mentioned. His bosses there, both current Democratic Governor 

Ritter for the State of Colorado as well as the Democratic District 

463 

Attorney for Denver Mitch Morrissey, have given him their absolutely highest ratings. He is a star in the work that he did on behalf of the people that he represented in the Denver District Attorney’s Office. 

Then moving to the United States Attorney’s Office, he worked 

on a number of very important and different cases, but it led to the 

point where he became the chief of the Special Prosecutions Unit 

and distinguished himself there as well. He is joined today by his 

wife and his brother in the audience. 

I would say in conclusion, Mr. Chairman, two things. 

First, I think the common theme among both Phil Brimmer and 

Christine Arguello is they are the kinds of people that we should 

be supporting for positions in our Federal judiciary system. They 

are lawyer’s lawyers. They understand the importance of fairness 

and judicial temperament and the rest of the qualities that make 

great judges. I appreciate their willingness to sacrifice the other 

route that they could have taken, which is to make a lot more 

money in the private sector, to come and be servants of the public. 

Second, Mr. Chairman, once again to you especially for holding 

this hearing at this point in time in our political season to address 

what is a judicial emergency in the State of Colorado, I am very, 

very personally appreciative of your efforts in doing so, and I appreciate the cooperation of Senator Specter in getting this done. 

Thank you very much, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator Specter. 

Senator SPECTER. I have the pleasure of introducing Gregory— 

Chairman LEAHY. Just before we do this, I also know that both 

Senator Allard and Senator Salazar have other committees meeting, and if you want to leave, I am sure it will not be seen as any 

snub of the two fine nominees, who I suspect are not going to have 

that difficult a time before the Committee today. 

Senator ALLARD. Thank you, Mr. Chairman. 

Chairman LEAHY. I thank you both very much for being here. 

Senator SALAZAR. Thank you, Mr. Chairman. 

Chairman LEAHY. Go ahead. 

PRESENTATION OF GREGORY G. GARRE, NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES, BY HON. ARLEN 

SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. I have the pleasure 

to introduce Gregory G. Garre to the position of Solicitor General 

of the United States Department of Justice. Mr. Garre comes to 

this position with a very distinguished academic record, distinguished professional record, and very extensive service already in 

the Solicitor General’s Office. 

Academically, he graduated cum laude from Dartmouth in 1987; 

his law degree with high honors from George Washington University Law School; Order of the Coif; editor-in-chief of the Law Review there. After graduation, he clerked for the chief judge of the 

Third Circuit, Anthony Scirica, and then for Chief Justice 

Rehnquist. He has worked with the prestigious law firm of Hogan 

& Hartson where he became a partner and served there for 5 years 

464 

in that capacity. He has been with the Solicitor General’s Office as 

Principal Deputy Solicitor General, and most recently Acting Solicitor General. He has had 23 cases before the United States Supreme Court, which is quite a record and background for coming 

to this position. 

So I am pleased to introduce him, also to note that he has Pennsylvania connections, was born in Bryn Mawr, Pennsylvania, and 

his grandparents live there. 

Chairman LEAHY. Where is that? Where is Bryn Mawr—oh, Bryn 

Mawr. I know where Bryn Mawr is. Sorry. 

Senator SPECTER. It is a little hard to understand Bryn Mawr 

with either a Kansas or a Vermont accent. 

When I first came to Philadelphia years ago and met somebody 

from Bryn Mawr, I spelled it B-r-i-n-m-a-r, and I soon found out 

how to spell Eastern style. 

[Laughter.] 

Senator SPECTER. Mr. Chairman, before excusing myself, I want 

to ask consent to enter into the record a statement by Senator Martinez for the nomination of Mary Scriven. 

Chairman LEAHY. Without objection. Senator Martinez had 

asked me, too, on that, and that will be part of the record. Thank 

you. 

Well, then, if nobody else has anything to say, I would ask Mr. 

Waddoups, Mr. Anello, Ms. Scriven, Ms. Arguello, Mr. Brimmer, 

and Mr. Garre to come forward. Before we start, if you would all 

stand and raise your right hand and repeat after me. Do you solemnly swear that the testimony you will give in the matter before 

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

so help you God? 

Mr. WADDOUPS. I do. 

Judge ANELLO. I do. 

Judge SCRIVEN. I do. 

Ms. ARGUELLO. I do. 

Mr. BRIMMER. I do. 

Mr. GARRE. I do. 

Chairman LEAHY. Let the record show that all responded in the 

affirmative. Please sit down. 

As has been noted, Mr. Waddoups is a partner at the Salt Lake 

City, Utah, law firm of Parr, Waddoups, Brown, Gee & Loveless; 

prior to that at O’Melveny & Myers. We have had over the years 

a number of judicial nominees who worked at O’Melveny & Myers 

who have come before us. 

I also had the pleasure a few years ago at the opening of the new 

Air and Space Museum meeting General Myers, who was the original partner, just recently passed away. He was at that time about 

90 years old. He had flown his own airplane in for the event, and 

he was ramrod straight. That has absolutely nothing to do with 

your hearing, but an interesting bit of esotericism. 

Mr. WADDOUPS., please go ahead. 

STATEMENT OF CLARK WADDOUPS, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF UTAH 

Mr. WADDOUPS. Thank you, Mr. Chairman. It is an honor to be 

here, and I look forward, if confirmed, to serving in this position. 

465 

I would like to introduce my wife, Vickie Waddoups, and my son, 

Doug Waddoups, who are here with me. 

Thank you, Senator. 

Chairman LEAHY. Thank you, and I should have asked you to do 

that to begin with. I will, when each one comes, I will ask for their 

names, because someday when somebody goes to the Waddoups archives, they will note in our official record that you were there. 

Incidentally, on introducing everybody, you will be given a 

chance to see the transcript and to add names or correct spellings 

or anything else, because it is not a bad thing to have in the 

record. 

Please go ahead, Mr. Waddoups. Did you want to add anything 

further? 

Mr. WADDOUPS. No; just that I am honored to be here, am thankful for the Committee to consider this hearing at this time, and I 

look forward to being able to respond to any questions you may 

have. 

[The biographical information follows.] 

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Chairman LEAHY. Let me ask you this: The courts, the Federal 

courts, is the only undemocratic branch in our system, and it was 

intended to be that way. They are not elected. They are appointed, 

given lifetime appointments—entirely different from the other two 

branches of our Federal system. If you go all the way back to reading the Federalist Papers on there, it is to give them the independence without fear or favor of either political party. 

I have always looked, when I am going to vote on a judge—I 

spent a number of years in a courtroom, as many of us did. I ask 

myself, this person, if they are Federal judge, would I feel comfortable coming into their court, whether I was plaintiff or defendant, whether I represented somebody rich or poor, no matter what 

my political background or my race or my gender or my religion, 

would I feel that that judge will hear the case without any preconceived notion about either the attorney or the litigant? Could 

you give those assurances, that you would look at a case and say 

whether this person is a plaintiff or defendant, criminal, government, or whatever, you would look at that case and say, ‘‘You are 

going to get the fairest trial you could ever have before me’’ ? 

Mr. WADDOUPS. Without any qualification at all, I can give you 

that representation. I can tell you that as a litigant, when I appear 

in courts with clients, that is what they are looking for. They want 

a court that will hear their case without bias and without prejudice. That is a principle on which I am firmly committed and would 

assure you that that is exactly what I would attempt to do to the 

best of my ability. 

Chairman LEAHY. And do you have any background that can 

show that kind of equal respect to people no matter what their gender, no matter what their background? 

Mr. WADDOUPS. I would hope—I think Senator Hatch referred to 

the work I have done with my colleagues. I believe I enjoy a reputation among the lawyers in our community as having treated everyone with respect. Part of my service has been to serve on the 

Board of the Family Support Center in Salt Lake City, in which 

our principal mission was to look out for mothers who are in abusive situations or who are abusive with their children. I found that 

to be meaningful and important service. I think that kind of service 

needs to continue over and be carried on the bench. 

Chairman LEAHY. Also, the courts serve as a check on either a 

runaway executive or a runaway legislature. We had a memo for 

a while, a secret memo, that once it came to light, it was withdrawn by the White House, which said basically the President 

could put people outside the law on questions of torture. He could 

say that the law would not apply to him or anybody he said it does 

not apply to. 

Do I have your assurances that you feel the laws of this country 

apply to everybody, whether it is a Federal judge, a U.S. Senator, 

or a President or anybody else? 

Mr. WADDOUPS. Without any question at all. 

Chairman LEAHY. And you know Federal judges have great abilities that they—on questions of conflicts of interest, basically they 

have to make this decision, whether they recuse themselves. What 

would be the kind of thing, do you believe, would require a recusal? 

500 

What kind of case do you think that might come before you that 

would require you to just say, look, I should not sit on this case? 

Mr. WADDOUPS. I would be guided by the Rules of Judicial Conduct, but let me give you some illustrations that would seem clear 

to me. 

Any kind of case that came before me from members of my existing law firm, I would be required, at least for a number of years, 

to recuse myself. I would also feel that I would recuse myself if 

there were cases in which adversaries, lawyers who have been advocates of mine in the recent past—that would be a shorter period 

of time, but I would not want anyone to feel that because we had 

been opposite each other they somehow were mistreated. And the 

same with recent clients. 

Beyond those kinds of clear conflicts, as guided by the Rules of 

Judicial Conduct, I think a judge has a responsibility to hear the 

cases that come before him, whether they are hard or easy. And I 

do not think recusing yourself simply because of the nature of the 

case would be appropriate. But if there is an appearance that 

someone feels that they may not be treated fairly because of a past 

relationship, I would recuse myself. 

Chairman LEAHY. Emphasize that last one just a little bit. You 

feel if the appearance would be that because of a Judge Waddoups, 

this plaintiff or this defendant might not be treated fairly, you feel 

that that is cause for recusal? 

Mr. WADDOUPS. If there was a factual basis in terms of facts, 

somebody that was an adversary, somebody that was on the opposite side of me in a case before, somebody whose client was opposed 

to a client of mine, those kinds of situations. Simply an unsupported factual assertion would not be sufficient. 

Chairman LEAHY. I understand. But what you are saying—and 

I do not want to put words in your mouth, but what you are saying 

is that your use of recusal would be also to support the integrity, 

the impression of the Federal court as being independent and openminded to the American public. Is that correct? 

Mr. WADDOUPS. Yes, sir. 

Chairman LEAHY. I must say that I find this so important, because, I mean, a court cannot—a court does not have an army or 

anything else. It has to rely and the whole system breaks down if 

it cannot rely on the respect the American people have. I have tried 

an awful lot of cases. I am sure my colleagues here have. But sometimes you win and sometimes you lose, but you have to be able to 

say to your clients, you have to be able to say to the public, ‘‘But 

it was a fair trial.’’ And I think that is very important. 

Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. I appreciate 

your courtesy and your kindness and your effort to bring these 

folks before the Committee, get them through the Committee, and, 

of course, to the floor. And I am going to help you every step of 

the way. 

This is an impressive group of nominees, and I want to commend 

each and every one of you for being here today. It means a lot to 

me to have good people on the bench, and, Mr. Garre, you are terrific. You have the support of Democrats and Republicans in this 

501 

town and across the country who have watched you in action and 

know how good you are. 

Having said that, I just want to say that we are very proud to 

have Clark Waddoups here. We know he is one of the great lawyers 

in this country. We know that he has an impeccable reputation. He 

is a leader in one of the great law firms in Utah, and I personally 

have a great deal of fondness and admiration for him. And I expect 

him to become one of the great district court judges in this country. 

With regard to Mr. Garre, I hope we can confirm Mr. Garre to 

the position of Solicitor General by the time the Supreme Court begins its hearings when it comes in on October 6th. The 4 months 

that would remain in this administration would actually be more 

than half of the time the Supreme Court devotes to oral arguments, 

which conclude in May. Mr. Garre is eminently qualified, highly respected, and I see no reason why he could not begin the Supreme 

Court’s term with the public backing of the executive and legislative branches. 

I ask consent that a letter by a bipartisan group of former Solicitors General on behalf of Mr. Garre’s nomination be entered into 

the record, Mr. Chairman. 

Chairman LEAHY. Without objection. 

Senator HATCH. Let me quote small portion of that letter. ‘‘We 

have worked with Mr. Garre in the Office of Solicitor General or 

as co-counsel in cases before the Court. We have observed at close 

range his vast legal talents, and we are unanimous in our conclusion that by any measure he has been an extraordinarily effective 

advocate on 

behalf of the United States. Mr. Garre’s nomination is in keeping 

with the finest traditions of the Office of Solicitor General.’’ 

I certainly agree with that assessment, and I commend you for 

the reputation that you have been able to develop over these years, 

and it is a well-earned reputation. 

Let me turn to the judicial nominees. By my count, the district 

court nominees before us today have more than 90 combined years 

of private practice experience. That is pretty impressive. As somebody who has been on this Committee for 32 years and has held 

an awful lot of these hearings, this is an impressive group of people. That does not count experience as prosecutors and judges, and 

that means that each of you has seen many State and Federal 

judges do what they do. 

Now, Mr. Chairman, I do not have any questions because I have 

looked at the resumes and the information about these terrific people who are before us today. I am going to support every one of 

you, and I hope that we can do this quickly and get you through 

and confirmed quickly. And, above all, Mr. Garre, I hope you can 

continue doing the excellent job you have been doing, only as Solicitor General, at least during the 4 months that remain in this administration, and hopefully even after, regardless of who wins the 

election come this November. 

Mr. Chairman, I personally want to thank you. It is tough being 

Chairman of this Committee. It is a very partisan Committee in 

many respects. When I was Chairman, I had a very difficult time 

from time to time, and I understand how difficult it is, and I am 

502 

very grateful that you would hold this hearing today and be willing 

to push these people. 

Chairman LEAHY. Thank you very much. 

Senator Whitehouse, did you have anything? 

Senator WHITEHOUSE. Yes, if I may. I have some questions that 

I would like to ask of Mr. Garre, and let me preface them by assuring my colleagues that I do not intend to object to Mr. Garre’s nomination. But as the Chairman indicated earlier, we have had a very 

unfortunate episode in the history of this country and in the history of the Department of Justice that has largely come to its conclusion with the replacement of the entire leadership of the Department of Justice, to which the Chairman referred. 

My concern is that the cleanup is not complete. As I have indicated in many other forums, my concern is that the Office of Legal 

Counsel in particular remains what I have called the ‘‘George Bush 

Little Shop of Legal Horrors.’’ And while I applaud Attorney General Mukasey for many of the steps that he has undertaken to set 

the Department of Justice right, I do believe—and I am not, of 

course, Mr. Garre, asking you to accept this belief. I am just stating it to you. I do believe that the OLC remains a very troubled 

part of the Department of Justice into which the broom that has 

cleaned up so much else of the Department of Justice still needs 

to sweep. 

You and I probably disagree on a great number of legal issues, 

and we would probably have a good academic and intellectual combat were we arguing cases against each other. But I think we also 

agree that there is a basic level of legal competence and scholarship that, irrespective of what the position you choose to take in 

a case is, is a baseline. And you should never go below that, and 

you should certainly never go below that if you are the Department 

of Justice of the United States of America. And I think that after 

the unfortunate episode that we have been through, you will probably also agree that every officer of the Department of Justice, no 

matter what their station, has an interest in seeing to the integrity 

of the entire Department of Justice. And it is off those two principles, to which I see you nodding, that my concern about OLC— 

it is on those two that the concern stands. 

I have recently had an exchange with a member of the Department in the Intelligence Committee on which I serve. Regrettably, 

that transcript is classified. My efforts to have it be declassified 

have been resisted by the administration, are unsuccessful. We are 

still asking for an explanation of what it is about this exchange 

that contains anything that would reveal any sources or methods 

of intelligence gathering. I think that the denial of it is, frankly, 

just a desire to keep the issue out of the public and stands on no 

legitimate national security footing. But, in any event, we are still 

engaged in that, and as a result, I cannot in this forum even tell 

you the name of the person who I had the exchange with. But if 

you ask within the Department, it will be easy—it is perhaps even 

obvious. 

I would like to ask you—I know how busy you are going to be. 

I know what it is like to be an appellate attorney with a vast 

amount of reading to do. I would ask you to take a look at that 

transcript—I am sure you can get clearance to do it—and to take 

503 

a look at the torture memoranda that the OLC wrote, specifically 

focusing on its failure to treat with a case named United States v. 

Lee, which is a Fifth Circuit Court of Appeals decision in which the 

court, in a prosecution brought by the Department of Justice, on 

the conviction of a Texas sheriff and his deputies for waterboarding 

prisoners to get convictions, found over and over in the opinion that 

this technique was torture—referred to it as ‘‘water torture.’’ The 

word ‘‘torture’’ I think appears eight times, sometimes quoting the 

Government’s own indictment, sometimes using the court’s own 

language. 

For the life of me, I cannot understand how in the lengthy opinions that support the administration’s position on torture which 

went so far afield legally as to quote standards out of health care 

reimbursement statutes, they were unable to find or unwilling to 

discuss a case bang on point, discussing the procedure at issue, 

calling it ‘‘torture,’’ by a circuit court of appeals of the United 

States of America, a court in which the Department of Justice itself 

was the prosecutor and the proponent of the theory that this was 

torture. To me, that shows that something went seriously, seriously 

awry. 

In the context of that, I would like you to also take a look at the 

treatment of a decision called United States v. Hilldow, which involved a course of abuse at the hands of the Marcos regime of an 

American citizen. The course of treatment included waterboarding. 

The course of treatment was referred to as torture, and the distinction that was drawn was that it was a course of treatment that included other forms of abuse than waterboarding. And, therefore, 

the case could not stand for the proposition that waterboarding 

alone was torture. 

Well, there stands Lee. I do not see how from a pure point of 

craftsmanship you could ever write an opinion on that subject without addressing Lee. I submit to you that if you wrote that opinion 

to the United States Supreme Court as a brief and left out a case 

that on point, it would make the recent episode with respect to the 

omission of the statute on the death penalty look like child’s play. 

I am not going to ask you any more than that. Have a look at 

it. Don’t tell me—don’t talk publicly, but let ye Deputy Attorney 

General, let your Attorney General know what your opinion on that 

subject is. If you agree with me that there is no legitimate standard of advocacy and scholarship that would allow that case to be 

omitted, then I think that is a sign we need to take a second look 

at OLC. And I frankly do not see how reasonable lawyers who are 

well trained and professional frankly could see this any other way. 

So that is my request to you. 

STATEMENT OF GREGORY G. GARRE, NOMINEE TO BE 

SOLICITOR GENERAL OF THE UNITED STATES 

Mr. GARRE. Thank you, Senator, and thank you, Mr. Chairman, 

for including this in this hearing. I feel very privileged and honored 

to be here. 

Senator, I will absolutely look at the items that you asked me to 

look at and follow through in the manner that you requested. 

Senator WHITEHOUSE. I appreciate that. 

504 

Mr. GARRE. I also agree with you wholeheartedly that the integrity of the Department of Justice and the integrity of the lawyers 

who work in the Department of Justice is critical for the American 

people and for the duty that we have for those of us privileged 

enough to work there. 

A former Solicitor General, Solicitor General Soboloff, said that 

the duty of the Solicitor General’s Office and the lawyers in that 

office is not simply to advocate on behalf of a client but to do justice. And I certainly agree with that. And if I were privileged 

enough to be confirmed, that is something that I would have foremost in my mind in carrying out my responsibilities with respect 

to all matters, including the matters that you referred to. 

Senator WHITEHOUSE. I appreciate and accept that. I thank you. 

Mr. GARRE. Thank you, Senator. 

Chairman LEAHY. If I actually could follow up on that just a little bit, because the Solicitor General’s Office is very unique. It has 

the capacity as friend of the court. It is sometimes referred to as 

the ‘‘tenth Justice,’’ and it has to speak and lay out what is best. 

Can you assure us that a Solicitor General, whether you had a 

Democrat or Republican in the White House, you would not serve 

a partisan interest but, rather, a judicial interest or a judicious interest in your work as Solicitor General? 

Mr. GARRE. Absolutely, Senator. I have been privileged to work 

in the office under two different administrations, and in both administrations, it was made clear to the lawyers of that office that 

our duty is to represent the best interests of the United States, irrespective of the political administration of that time. And I think 

that is critical for the Solicitor General to perform his obligations 

to the Court and to the country to provide the best representation 

that he can, and to have the courts accept the candor and arguments of the Solicitor General as a representation of what is in the 

best interests of the United States as opposed to the political interests of any particular time. 

Chairman LEAHY. I think we would all agree with that answer, 

but let us just go to a specific. As Principal Deputy Solicitor General, you signed the amicus brief in Ledbetter v. Goodyear. And for 

those who are not aware of that, that was a case where Lilly 

Ledbetter for nearly two decades was paid a lot less than her male 

counterparts. As a supervisor, she was paid less and did not realize 

it until after she had left employment. But in the brief you signed, 

you contended she was not eligible for Title VII protection against 

discriminatory pay because she did not file her claim within 180 

days of their repeated discriminatory pay decisions, even though, 

of course, she was not aware of the pay decisions. And that view 

contradicted the position of the Equal Employment Opportunity 

Commission, the EEOC. And some have called your position even 

more draconian than the Eleventh Circuit. 

Did you decide to file an amicus brief as a result of a request of 

the EEOC, which obviously disagreed with that position? 

Mr. GARRE. Senator, the determination to file an amicus brief in 

that case was made in the same manner it is in any case, and it 

is a very collaborative process where we, the Solicitor General— 

Chairman LEAHY. Was the EEOC involved in that collaborative 

process? 

505 

Mr. GARRE. It was, Senator. 

Chairman LEAHY. And did the EEOC agree with your brief? 

Mr. GARRE. I believe, as was indicated in the brief, and certainly 

as made clear through the briefings, that the EEOC had by regulation or policy statement taken a contrary position. The position 

that we laid out in the brief we believed was consistent with prior 

positions that the Supreme Court had taken in a number of decisions. 

Chairman LEAHY. Who made the final decision to file an amicus 

brief? 

Mr. GARRE. The final— 

Chairman LEAHY. I mean, this was Ledbetter v. Goodyear. It was 

not Ledbetter v. the United States. Why was the decision made to 

file an amicus brief? 

Mr. GARRE. Senator, the Solicitor General makes that determination. He looks to the interests of the United States in a particular 

question pending before the Court if the United States is not a 

party, and he looks to whether or not reasonable arguments can be 

made in support of that position. 

The Federal Government has both the responsibility to enforce 

the civil rights laws, including Title VII, and is also an employer 

who is subject to suit under Title VII. 

Chairman LEAHY. As you know, there has been some very strong 

criticism—in fact, we came, I think, within about one vote of overturning it, in fact, of overcoming a Republican filibuster to restore 

rights for subsequent people in a situation like this. But what I 

cannot seem to understand is you have a company that hides the 

fact that they are paying a woman less. The matter is up in litigation, and somebody in the U.S. Government steps in to say we have 

got to protect that company, not the woman who was being paid 

less all those years. You write the brief. I still do not fully understand why this administration, why your office, why it was so necessary to weigh in on behalf of Goodyear and not this woman who 

was given such a bum deal. 

Mr. GARRE. Certainly, Senator, no one—and certainly no one in 

the Department of Justice—condoned discriminatory practices that 

were alleged in that case. The legal principle that we were focused 

on was when does the statute of limitations begin to run when 

someone has suffered a discrete act of discrimination. 

Chairman LEAHY. But having taken the position the EEOC had 

taken, and you taking a contrary position, I mean, you could just 

as well have just stayed out of the case. Is that not correct? 

Mr. GARRE. That is always an option, Senator, that the Solicitor 

General has. The Solicitor General of the United States had participated in a number of prior cases involving the same— 

Chairman LEAHY. Who made the final decision? 

Mr. GARRE. The Solicitor General did, Senator. The Solicitor 

General at that time was Paul Clement. 

Chairman LEAHY. Was there any influence from the White House 

or from the Attorney General in making that final decision? 

Mr. GARRE. Senator, in every case there is input from all interested components. 

Chairman LEAHY. Was there in this case from the White House 

and the Attorney General? 

506 

Mr. GARRE. I am not personally aware of that. The Solicitor General would make a final determination in that case, listening to all 

interested parties, because we are interested in representing the 

views of the United States to the best we can, taking into account 

all different interests of the interested agencies and components. 

Chairman LEAHY. Even though in this case the views were contrary to the views at EEOC, which is the part of the Government 

that would normally be involved in this. 

Mr. GARRE. That is correct, Senator. And certainly it is not uncommon that different components within the Department of Justice or even different agencies may have different perspectives, regulatory perspectives or enforcement perspectives or policy perspectives. 

Chairman LEAHY. Some of us were concerned that this may have 

been political, including to the point when Ms. Ledbetter came here 

to testify, and her testimony was cut off by a Republican objection. 

But I just throw that out for what it is worth. 

[The biographical information follows.] 

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Chairman LEAHY. Let us go to Mr. Anello. I want to mention to 

you that both Senator Feinstein and Senator Boxer told me of their 

strong support for you and that you have their support. I would 

ask you a similar question to what I asked Mr. Waddoups. You are 

already a superior court judge in San Diego, and you were a partner with the San Diego law firm of Wingert, Grebing, Anello & 

Brubaker and deputy city attorney. You were a captain on active 

duty in the United States Marine Corps, as the father of Lance 

Corporal Mark Patrick Leahy. That does not influence me a bit. 

Judge ANELLO. I hope we did not meet back then. Did we? 

Chairman LEAHY. No. He is now a former Marine. As you know, 

there are no ex-Marines, only former Marines. Special Courts Martial Military Judge, graduated from Bowdoin, graduated from 

Georgetown University Law Center, where I did. Do you have 

members of your family here today? 

STATEMENT OF MICHAEL M. ANELLO, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF CALIFORNIA 

Judge ANELLO. I do, and thank you very much, Mr. Chairman, 

and I also would like to express my personal appreciation to you 

and the other members of the Committee for having this hearing, 

especially at this late date in the session. I know the Senate is 

busy, obviously, these days, to put it mildly, and I most appreciate 

the opportunity to be here and appear before you today. 

I do, with your permission, have folks here that I would like to 

introduce, if I might at this point. 

Chairman LEAHY. Please do. 

Judge ANELLO. Perhaps they could each stand as I announce 

them. First of all, my wonderful wife, Pam, who has put up with 

me for 35 years, is here—thankfully, I should add. We have with 

us also, thankfully, our three sons, starting with the oldest: Andy 

is here with his friend, Jane McCormick; and No. 2 son by age is 

Dan, he is here; and our youngest son, Chris, is here. 

Also, I am pleased to have here today my sister, Diane Anello, 

who has also been a source of wonderful support to me over the 

years. And, in addition, we have her boss from the Aspen Institute, 

former Iowa Senator Dick Clark. 

And last, but not least, we have a very— 

Chairman LEAHY. I served with Senator Clark, and I did not see 

him there. I should have recognized that shock of white hair back 

there. Dick, it is always, always good to have you back here. 

Judge ANELLO. And last, but not least, we have a very dear 

friend of ours, Liz Armstrong, from California, recently having 

moved to the area, and it is a pleasure to have her here today also. 

Thank you. 

[The biographical information follows.] 

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Chairman LEAHY. Well, if I might ask the same question I asked 

before—and it is the sort of thing that I think all of us have in 

mind when we vote on a lifetime judgeship. This is an area where 

you are outside of politics. It is the undemocratic part, and rightly 

so, the undemocratic branch of our three branches of Government. 

If you walk into a courtroom, if you have any respect for our Federal courts around the Nation, you have to walk in and think, okay, 

I am going to be treated the same as the person on the other side; 

my race, my color, my creed, plaintiff, defendant, wealth, nonwealth, it is not going to make a difference. 

Can you give that assurance that when somebody comes in and 

sees you sitting there as the judge, they are not going to say, ‘‘We 

are in trouble,’’ but, rather, ‘‘We are going to get a fair hearing’’ ? 

Judge ANELLO. I can certainly give you that assurance without 

qualification, Senator. I have endeavored to do that through the 10 

years plus that I have been sitting on the State court, and should 

I be fortunate enough to be appointed to this position, I would hope 

to continue that. So I certainly agree with that and those sentiments 100 percent. 

Chairman LEAHY. Have you had occasion to do things where you 

would show your commitment to equal treatment of people? 

Judge ANELLO. Well, I have. Like, I would say, most lawyers, I 

have volunteered to perform legal services for indigent people as a 

public service. In my many years in the military—I remained in 

the Marine Corps Reserve after getting off active duty—one of our 

missions was to provide legal assistance to the young semi-indigent, unfortunately, men and women of the Marine Corps. And we 

would go to the local bases on Saturdays. With some notice they 

would show up. We would do the best we could to help them deal 

with their personal and legal problems. So that is one thing that 

we did often over the years throughout my entire military reserve 

career. 

Chairman LEAHY. I like to think the country has reached a point 

where people are treated the same. I think of the stories I remember from my maternal grandparents when they emigrated to this 

country from Italy, and having difficulty first with the language 

and treated differently. And some of the things they had to put up 

with even as they established a business and then helped many 

others who were not able to get the kind of—or who were being 

treated much the same. I like to think in our State that is no 

longer the case. But I think that immigrants’ rights are extremely 

important. You do not think of Vermont so much as being a State 

with that, although we share a border with Canada. My parentsin-law emigrated from Canada, had to learn a new language, as did 

my grandparents and my mother. 

You are in San Diego. One only needs to look at the map. Can 

you assure people who come into your court, the Federal district 

court, that they are going to be treated fairly, whether it is an immigration or a civil case? 

Judge ANELLO. I can certainly give you that assurance, Senator. 

You are correct. Obviously, we are a border State. We have immigration issues. We have not dealt with them so much in the State 

court. Certainly, if I were fortunate enough to be confirmed to the 

Southern District Court, we would deal with those issues on a more 

583 

daily basis. But certainly you have my assurance that, if confirmed, 

I would agree 100 percent with those sentiments and act accordingly. 

Chairman LEAHY. And you heard Mr. Waddoups’ comments before about the need to recuse oneself to preserve the integrity of 

the court. Now, you might have a case that would come to Federal 

court for post-conviction relief or something like from the court you 

now sit on. That should be fairly easy, I would assume. But do you 

agree with what Mr. Waddoups said about protecting the integrity 

of the court and the appearance of conflicts? 

Judge ANELLO. I do absolutely, and the appearance aspect of 

that, of course, is most important for the citizenry to retain their 

respect for the courts. Obviously, the appearance is important. 

Again, I have faced those issues over the past 10 years, and I have 

not found it difficult. But as Mr. Waddoups says, if someone appears before me who is a former client, that is pretty easy; a former 

law partner, that is pretty easy. Where it gets a little dicey is 

someone who perhaps is a friend, a casual friend. So we try to 

draw lines there, make whatever disclosures are necessary. But as 

he also indicates, and as I agree, we also are duty-bound and required to try cases that come before us unless there is a real reason 

to recuse. 

Chairman LEAHY. Well, disclosure is always a very good thing. 

I mean, you can—certainly in my own years of practice, we would 

have the kind of friends or associations, a neighbor or whatever, 

and matters that would come up. And when the court has made the 

disclosure, it is not unusual to have the lawyers on both sides say 

we have discussed this with our clients and we have no problem. 

And it certainly takes care of the problem later on when somebody 

says, ‘‘Well, wait a minute. I lost.’’ 

Senator Hatch, did you want to— 

Senator HATCH. No. Thank you, Mr. Chairman. 

Chairman LEAHY. And I would assume you would say the same 

to the earlier question that no one is above the law, not the President, not a judge, not a U.S. Senator. 

Judge ANELLO. Absolutely. We have a rule of law, not a rule of 

man. Absolutely, I agree 100 percent. 

Chairman LEAHY. Thank you very, very much. 

Ms. Scriven, we have already put the letter of support in from 

Senator Martinez for you. You spent 11 years serving as a magistrate judge in the U.S. District Court for the Middle District of 

Florida, taught contracts, banking law, associate professor at 

Stetson University College of Law; partner at the Tampa, Florida, 

law firm of Carlton Fields; graduate of Duke, Florida State. 

Do you have members of your family here with you? 

STATEMENT OF MARY STENSON SCRIVEN, NOMINEE TO BE 

DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA 

Judge SCRIVEN. Thank you, Senator Leahy. Yes, I do. Chairman, 

I have with me almost my entire family. I have my parents, who 

are here from Georgia: Reverend Marshell Stenson and Dr. Mary 

Stenson, if they would stand. 

I have my younger brother, Joel Stenson and his wife, Kartika 

Stenson. 

584 

I have my dear friend, Jaye Ann Terry; a friend of the family and 

a colleague, Fred McClure; and a young guy that my husband has 

mentored, Romeo Domdii Cliff, who is also here. He lives here in 

D.C. 

And last, but not least, I have my immediate family. I have my 

daughter, 15-year-old Sarah; and Charles, who is enjoying a day 

out of school but getting an education nonetheless. 

[Laughter.] 

Chairman LEAHY. I bet you he hated to miss school today. 

Judge SCRIVEN. And I have my husband of 20 years and my best 

friend, Lansing Scriven, who is an attorney in Tampa, Florida. 

Chairman LEAHY. Thank you very much. I appreciate that. Did 

you want to give any opening statement? 

Judge SCRIVEN. I just want to say, as my colleagues have already 

said, that I am honored and humbled by the opportunity to be here. 

I thank the Chairman and the Committee for convening this hearing. I thank the home-State Senators, Senator Martinez and Senator Nelson, for working together across lines to bring this nomination forward. And I thank the President for nominating me for 

what I hope will be a confirmation to serve as United States District Judge for the Middle District of Florida. 

[The biographical information follows.] 

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Chairman LEAHY. Well, I appreciate that, and both Bill Nelson 

and Mel Martinez have talked to me privately in support, doing, 

as I said, what Senator Hatch and Senator Bennett have for Mr. 

Waddoups, and the Senators from California with Judge Anello. 

Let me ask you the same thing. I walk into your court as a litigant. Can I look at a Judge Scriven—and you have your reputation 

as a magistrate judge, and I have gone through those cases. Can 

I look at you and say, ‘‘I am going to be treated the same no matter 

who I am, rich, poor, Democrat or Republican, white, black, Hispanic, whatever, male, female, plaintiff, defendant, am I going to 

be treated the same’’ ? 

Judge SCRIVEN. There is no question, Senator, that you are going 

to be treated the same without respect of who you are, and I think 

there is a great deal of assurance in the context of my consideration here, because I have come to you as a candidate from a nonpartisan, bipartisan judicial nominating committee that has presented my name forward for consideration. 

In addition to that, I have 11 years on the bench, and as a magistrate judge, you do not serve a lifetime term. You get terms. And 

I served one term, and then I had to be questioned and evaluated 

by the people who had come in front of me, and I had unanimous 

approval from the Retention Committee after an extenuous review 

in the community for the service that I had provided to the court. 

And I was humbled and challenged by the respect that people had 

shown as part of the process. 

And so, yes, I think anyone coming before me could feel confident 

that they would be given fair and just treatment under the law. 

Chairman LEAHY. Judge, I looked at that retention, and I must 

admit I was impressed with it. Do you have any question on being 

able to recuse yourself? It would be an obvious case if your husband’s law firm— 

Judge SCRIVEN. He would be grateful that I would recuse myself. 

[Laughter.] 

Chairman LEAHY. You do not want somebody coming forward in 

the court and instead of calling you ‘‘Judge,’’ and they call you 

‘‘Honey,’’ or something like that. 

Judge SCRIVEN. He calls me ‘‘Your Honor’’ at home, too. 

[Laughter.] 

Chairman LEAHY. I do not even want to get into that. I do not 

get called ‘‘Senator’’ at home, let me tell you right now. 

Judge SCRIVEN. No, seriously, Senator, I have faced the question 

of recusal throughout my tenure as a magistrate judge. I recused 

from my law firm of Carlton Fields that I had practiced for years, 

for the first 5 years of my tenure as a magistrate judge. And if my 

husband has cases before me, or his firm does, or if any—he serves, 

for example, on the board of the Tampa General Hospital. I do not 

handle cases that the hospital handles. And, more importantly, as 

I think you have indicated, it is not just the impropriety of serving 

on cases, but the appearance of impropriety that courts must observe, because lay people, more than lawyers, look to what is happening in the court and how judges comport themselves. And if we 

do not avoid the appearance of impropriety, it sort of falls on deaf 

ears when we occasionally recuse ourselves. 

623 

Chairman LEAHY. And I think the appearance—the public has 

to—we went through this, and I do not mean to be picking on either Justice Scalia or Vice President Cheney. But I remember the 

dispute. Senator Lieberman had made the original complaint where 

Vice President Cheney and Justice Scalia were going hunting together at a time when a case involving Vice President Cheney was 

before the Supreme Court. And I think you have to—and courts get 

attacked, ofttimes unfairly, just because somebody disagrees with 

an opinion. To overcome those attacks, we have to be able to say 

these courts are impartial. We have had Members of Congress who 

have said we should impeach these judges because we disagreed 

with this decision. Of course, maybe somebody on the other side 

disagreed with other judges. And the reason that law is somebody 

sent out a press release but goes no further is that people respect 

our Federal judges and respect the impartiality of it. And I think 

that everybody who comes on the Federal bench has an enormous 

responsibility for that. 

I have had the honor of being able to recommend both Democrats 

and Republicans to various Presidents to go on the Federal bench 

from our State. But the point I have made in my reviews of every 

one of them: Can you be, will you be impartial? 

Now, we are a very small State, and if you are anything but impartial, it becomes pretty obvious very quickly. You are probably 

the fastest-growing State or one of the two fastest-growing States 

in the country, but it is still important because many people, the 

only time they will ever know about the Federal courts is when 

they come before you. And, obviously, this is directed at all of you 

because—and I am sure you all feel that way. 

Did you have anything, Orrin? 

Senator HATCH. No. I am just grateful to all these folks for being 

willing to serve, and I think we ought to introduce Mr. Garre’s family as well, if you would. 

Chairman LEAHY. Mr. Garre, we questioned you, and you did not 

get a chance to mention your family, as Senator Hatch just pointed 

out. Would you, please, for the Garre archives? 

Mr. GARRE. Thank you, Mr. Chairman. I would be thrilled to do 

that. 

I am very proud to say that my wife, Lorane Hebert, is here 

today, and— 

Chairman LEAHY. They put you way in the back out there. 

Mr. GARRE. Our two children: our little daughter, Natalie, who 

is going to be 3 in October; and our newest member, Sawyer, who 

is going to be 3 months later this week, who I think just wheeled 

in. They are really the reason I am here today, and my inspiration. 

I am proud to say that my parents, Sam and Maryjo Garre, are 

not only here today, but celebrating their 47th wedding anniversary today. 

Chairman LEAHY. Congratulations. My wife and I celebrated our 

46th when we were in Denver at the convention. It was not quite 

the way we normally would, but youngest son, whom I mentioned 

earlier is a Marine—a former Marine—is now a pilot for a large 

corporation, their jets—he flew a number of their executives out 

and joined us for dinner on our 46th. I am always delighted to see 

people with long marriages like that. I will not even give Senator 

624 

Hatch a point to point out that he has been married longer than 

all the rest of us—of course I will. 

Senator HATCH. Well, let me just say that I really believe 

Marcelle deserves a medal for bearing this heavy cross all these 

years. 

[Laughter.] 

Senator HATCH. She is a wonderful person. Elaine and I celebrated our 51st wedding anniversary on August 28th, so this is a 

crusty old judiciary with a lot of us being married for a long time. 

Chairman LEAHY. Our wives are bearing the brunt. 

Do you have anybody else? 

Mr. GARRE. I am very happy to say my sister flew here from 

Minneapolis to be here today, and I am grateful that many friends 

and mentors and colleagues in the Office of Solicitor General made 

time to be here today. And I am particularly grateful that you included me in this hearing and feel very privileged to be here. 

Chairman LEAHY. Thank you. 

Chairman LEAHY. Ms. Arguello, do you have family members 

here? 

STATEMENT OF CHRISTINE M. ARGUELLO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO 

Ms. ARGUELLO. Unfortunately, I did not get the news with 

enough time to—I was lucky to bring myself out. But I would like 

to— 

Chairman LEAHY. But you did not object to coming out. 

Ms. ARGUELLO. I did not object at all. 

Chairman LEAHY. Would you like to put their names in the 

record just so it can be— 

Ms. ARGUELLO. I would love to recognize them: my husband, Ron 

Arguello, husband of 34 years; my older son, Ronnie; my older 

daughter, Tiffany; my younger daughter, Jennifer; and my son, 

Kenny. And I would just like to thank them for their love, their 

support, and their patience with me. 

Chairman LEAHY. Good. And you should know that we talked 

about it here, but Senator Salazar was—as I said, I think he has 

my farmhouse in Vermont on speed dial. He was calling me from 

home. He was calling me from the road. He was calling me elsewhere to make sure you would be here, and I committed to him 

that we definitely would. 

Ms. ARGUELLO. Well, I definitely appreciate the fact that you and 

this Committee have taken the time in what I know is a very busy 

schedule. 

I would also like to thank Senator Allard and Senator Salazar 

and President Bush for having confidence in my ability to serve 

them well. 

[The biographical information follows.] 

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Chairman LEAHY. Well, thank you. You are one of those rare 

people that has the distinction of having been nominated by both 

a Democratic President and a Republican President. I am glad you 

are here. 

Let me ask you the same questions. You are in a State, a beautiful, wonderful State, but a State of great diversity in income, 

races, creed, everything else. Can somebody come before a court 

where you preside and look at you, no matter who they are, no 

matter their background or religion, gender, or anything else, can 

they look at you and say, ‘‘Okay, if I have got a winning case, I 

win; if I do not, I lose; but it will be solely on what the case I have 

is’’ ? 

Ms. ARGUELLO. Absolutely. I believe that my reputation in the 

community for fairness and objectivity is very strong. I have lived 

my life or I have attempted to live my life by the Golden Rule, to 

do unto others as I would have them do unto me. And so I treat 

everyone with respect. And the No. 1 lesson I taught my trial lab 

students was treat everyone as if they were a very important person. It does not matter at what level they interact with them. 

Chairman LEAHY. I mentioned my grandparents, and I still remember the details of them coming here from Italy, speaking a different language and having to overcome that, and eventually becoming one of the most respected members of the community for 

what they had overcome. Is it fair to say that nobody is going to 

have to overcome those kind of hurdles if they come before your 

court? 

Ms. ARGUELLO. Absolutely not, and that would be very fair to 

say. I recall—although I was not an immigrant, my family has 

been in the United States for four or five hundred years. I was bilingual, but I remember being told not to speak Spanish on the 

playground at school and being punished for having done so. So I 

am very sensitive to those issues. 

Chairman LEAHY. My wife’s first language is not English, even 

though she was born here in the United States. She remembers 

that. Now, of course, it is a great advantage to be bilingual. I had 

to learn the same language when we started dating as teenagers 

because I wanted to know what her parents were saying about me. 

[Laughter.] 

Chairman LEAHY. And they still let her marry me. 

On the recusal issue, do you have any different answer than 

what has already been given on recusal? 

Ms. ARGUELLO. I would say my answer would be exactly as 

Judge Anello had stated. 

Chairman LEAHY. You could possibly have in your career at 

times when a court has to step in because everything else has 

failed—the political process and everything else has failed. Do you 

have any problem with that? I am thinking back to U.S. v. 

Carolane Products. It is now a 60-, 70-year-old case, but the Supreme Court held that legislation which restricts those political 

processes which can ordinarily be expected to bring about repeal of 

undesirable legislation is to be subjected to more exact judicial 

scrutiny under the general prohibitions of the 14th Amendment 

than are most other types of legislation. In other words, if an unVerDate Nov 24 2008 10:03 May 29, 2009 Jkt 048894 PO 00000 Frm 00674 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\48894.TXT SJUD1 PsN: CMORC
667 

fair result is coming about in legislation, do you believe that the 

court has a duty for stronger scrutiny of such legislation? 

Ms. ARGUELLO. I believe if a case were to come before me and 

I were fortunate enough to have been confirmed by the Senate, my 

job would be to review the controlling precedent and attempt to 

come to a decision that would be within the rule of law. 

Chairman LEAHY. Senator Hatch 

Senator HATCH. I have to say that I am pleased with this whole 

set of nominees, and, frankly, I think you have covered the basic 

questions that need to be covered. 

Chairman LEAHY. Thank you. 

. Now, Mr. Brimmer, you have not had a chance to introduce 

your family. I mentioned that he was chief of the Special Prosecutions Section in the U.S. Attorney’s Office in the District of Colorado, and I mentioned Chief Deputy District Attorney in the Denver District Attorney’s Office. Those of us who had the opportunity 

to be district attorneys, or as we call them in Vermont ‘‘State’s Attorneys,’’ appreciate that; Harvard and Yale, obviously a great 

background. But we have not heard whether you have family members here, and I realize you are here on short notice, but do you 

have family members here? 

STATEMENT OF PHILIP A. BRIMMER, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF COLORADO 

Mr. BRIMMER. I do, Mr. Chairman, and I would like to take this 

opportunity to introduce them to the Committee. 

Chairman LEAHY. Please. 

Mr. BRIMMER. My wonderful wife, Dana Brimmer, is here. My 

brother Andy Brimmer is here. And my cousin Rob Wallace is also 

here. 

Chairman LEAHY. Thank you all for being here. 

Mr. Brimmer, you have been in private practice. You have also 

been a prosecutor. You could have litigants before you on criminal 

matters as well as private matters. Let us go first with the criminal matters. Would you be able to fairly look at a criminal case, 

even though you have been a prosecutor, would you be able to fairly judge it on the merits without a bias toward either side? 

Mr. BRIMMER. Yes, I absolutely could do that. As you know from 

being a prosecutor, prosecutors wear different hats. One of the hats 

is being not just an advocate but being a minister of justice. And 

so in a role as a prosecutor, you need to look at fairness to the defendants in deciding whether to charge them, whether to offer 

them a plea bargain, or whether you have sufficient evidence to 

proceed. So I am confident that I can do that and not simply be 

in the role of an advocate on behalf the Government. 

Chairman LEAHY. And you have been in private practice, and 

you have been in the prosecutor’s office. Do you have any doubts 

of being able to recuse yourself if a case came up that might have 

involved directly matters that you had handled before? 

Mr. BRIMMER. No. In fact, if I were lucky enough to be confirmed, 

I would set up a procedure with the clerk’s office so that I could 

be informed if there were any matter that my name is associated 

with from the U.S. Attorney’s Office, and also given the fact that 

I am the chief of the Special Prosecutions Unit, if any case came 

668 

from one of those attorneys, I would in all likelihood recuse if it 

seemed to be one that arose during the time that I was there. 

Chairman LEAHY. And do you agree that no one is above the 

law? And I am thinking back to the infamous torture memo that 

we can immunize—Presidents can immunize people from legal action itself. Would you agree with me that no one is above the law? 

You would not be as a Federal judge. Senator Hatch and I would 

not be as U.S. Senators. And the President would not be and nobody else would be. 

Mr. BRIMMER. I strongly agree with that, Mr. Chairman. 

Chairman LEAHY. That it keeps our system of Government working. 

Mr. BRIMMER. Absolutely. If it were something else, then the system would not be fair. 

Chairman LEAHY. Thank you. 

Senator Hatch. 

Senator HATCH. Again, very happy to welcome you to the Committee. I frankly support you very strongly, and I look forward to 

seeing you be confirmed. 

Mr. BRIMMER. Thank you. 

[The biographical information follows.] 

Chairman LEAHY. With this grueling part to have somebody 

show up here on short notice, especially Ms. Arguello and Mr. 

Brimmer, I appreciate you all being here. I appreciate your family 

coming. Sorry we had to take you out of school, young man, but— 

[Laughter.] 

Chairman LEAHY. If you are like my grandchildren, you probably 

did not mind that. 

We will stand in recess subject to the call of the Chair, and we 

will keep the record open, and I would hope that we could get cooperation on both sides of the aisle to move quickly. I appreciate 

Senator Hatch, who is sitting here, I appreciate his efforts in helping move this forward, and I appreciate Senator Specter’s willingness to waive the notice on the two nominees from Colorado. I realize that meant you have to move very quickly in getting out here, 

but you were probably willing to do that under the circumstances. 

We stand in recess. 

[Whereupon, at 11:42 a.m., the Committee was adjourned.] 

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

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(749) 

JUDICIAL NOMINATIONS ANTHONY J. 

TRENGA, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

VIRGINIA; C. DARNELL JONES, II, NOMINEE 

TO BE U.S. DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA; 

MITCHELL S. GOLDBERG, NOMINEE TO BE 

U.S. DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF PENNSYLVANIA; JOEL H. 

SLOMSKY, NOMINEE TO BE U.S. DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA; ERIC F. MELGREN, NOMINEE TO BE U.S. DISTRICT JUDGE FOR THE 

DISTRICT OF KANSAS 

TUESDAY, SEPTEMBER 23, 2008 

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

The Committee met, Pursuant to notice, at 3:09 p.m., in room 

SD–562, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Brownback and Specter. 

Also present: Senators Warner, Webb, Casey, and Roberts. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. There are rather extraordinary things going on 

on the Hill and we get one request after another to vote for a blank 

check on a ‘‘just trust us’’ basis involving Wall Street. Unfortunately, the form of the blank check tends to change all the time, 

so there’s been some skepticism raised, I think as much on the Republican side of the aisle as the Democratic side. But I’m holding 

this exceptional hearing this late in a Presidential election year as 

an accommodation to Senator Specter, who is the Ranking Republican member of our Committee and a former Chairman. 

The Thurman rule, which was certainly established and followed 

by Republicans when there’s a Democratic President in the White 

House, calls for Senate consideration of judicial nominations to stop 

750 

in the last several months before a Presidential election until we 

see the outcome of the election. 

Senator Hatch followed that practice in both 1996 and 2000 

when he chaired the Judiciary Committee. In fact, in the 1996 

Presidential year, no one nominated after June 6th was considered 

and there were no judicial confirmations after the August recess. 

In 2000, there were none after July 25th. 

I have said throughout my chairmanship I would treat President 

Bush’s nominees better than Republicans treated President Clinton’s, and I’ve done so. This hearing is another example of that. 

This is the second hearing I’ve held for judicial nominees in September of this Presidential election year. 

I’ve included the five judicial nominees from Utah, California, 

Florida, and Colorado, who participated in our September 9 hearing on the Committee’s agenda for consideration in our business 

meeting later this week. 

Today we are going to hear from five additional nominees for lifetime appointments to the Federal bench in Pennsylvania, Virginia, 

and Kansas. I have consistently said this time of the year I will 

work with the Majority Leader and the Republican Leader in order 

to be able to proceed on consensus nominees. 

Progress on judicial nominees requires consensus and the cooperation of all Senators, I think something that is one of those 

things that both Republicans and Democrats would agree on. I 

want to thank Majority Leader Reid, with whom I’ve consulted, for 

his willingness to have us proceed with this. 

Now, three of the nominees are included at Senator Specter’s request: C. Darnell Jones, Mitchell Goldberg, and Joel H. Slomsky, 

and they all have the support of the other distinguished Senator 

from Pennsylvania, Senator Casey. 

President Bush did not nominate these men until just before the 

August recess. At the time I set this hearing last week we still had 

not received ABA ratings, but based on peer reviews of all of them. 

We are expediting these proceedings as a courtesy to Senator Specter, and he’s agreed with me to waive the 1-week notice required 

by our Senate rules. 

I am also happy to accommodate the request of the senior Senator from Virginia that we include the nomination of Anthony J. 

Tringa to a judicial vacancy in Virginia. Senator Warner is one of 

our most distinguished members, and he’s retiring at the end of 

this Congress. In this case he’s been helped by Senator Webb, who 

has worked with him on the nomination and supports this nomination as well with his bipartisan support of the nominee. I compliment Senator Webb, who’s sitting right here, for that, for making it possible to go forward. 

The final nominee is Eric Melgren of Kansas. I am accommodating the requeste of Senator Brownback by including this nomination. I must say to my friend Senator Brownback, I did so notwithstanding his rather constant criticism of my efforts in expediting other nominees, including when I worked to provide consideration of long-delayed judicial nominations for Michigan earlier 

this year. 

I talked to him about having his delaying of Senate consideration 

of first one, and then as a result a dozen other, of President Bush’s 

751 

nominees at the end of the last Congress. He’s explained his reasons for doing that, and of course he was within his rights to, 

whether I agree with him or not. 

There’s more that I could say, but I understand we’re going to 

have to go back on the floor very soon. I would note, we’ve cut the 

judicial vacancies that I encountered in the summer of 2001 by 

more than half. A lot of those vacancies occurred because of the 

pocket filibuster by Republicans of President Clinton’s nominees. 

Right now, we are proceeding with this hearing when we’re facing 

what the White House describes as the worst financial crisis since 

the Great Depression, and many of us have to get back to that. 

We’ll go for opening statements by seniority of those who are 

here. I think the only person senior to Senator Specter is Senator 

Warner, and he’s not here at the moment. So I will yield to you. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. Senator Warner is 

not here because he is still at the Republican conference. When I 

exited just a few moments ago, he asked me to explain his absence 

and his assurance that he will be along shortly. 

Today is a very complicated day on Capitol Hill because of the 

economic crisis. I did not use the word ‘‘tumultuous’’, which I used 

earlier today, commented on by the Chairman. 

We have a Republican luncheon, as the Democrats do. It starts 

at about 12:30 and usually goes to 2:15. When I left a few moments 

before 3, it was still in process. Secretary Paulson was supposed to 

be there early and didn’t finish up the hearing until past 2. I left 

a few minutes before 3, even though I didn’t have a chance to ask 

a question, or questions, that I wanted to. Senator Warner remained. 

I had planned to meet with three of the Pennsylvania nominees 

earlier today and just arrived a few moments ago here. But the 

schedule is very involved. We were scheduled to have a series of 

votes starting at 2:15, 2:30 and the photograph of the Appropriations Committee, and all of that has been deferred. The Senators 

may be interrupted at any time to go to the floor for votes, depending upon what happens there. 

I thank Chairman Leahy especially for scheduling this hearing. 

It is very unusual to have judicial hearings on the week when the 

Senate is scheduled for termination. The reasons are very complicated and we don’t have time to discuss them now. But suffice 

it to say that Chairman Leahy has gone the extra mile, the extra 

two miles, the extra 25,000 miles around the globe to accommodate 

this proceeding. 

I also thank Senator Reid, the Majority Leader, for his 

acquiesence, for his support of this proceeding. It is my hope—really, my expectation—that we will be able to complete these nominations. That, of course, in the final analysis rests with the Majority 

Leader who sets the agenda for confirmation. But we do have a 

very distinguished panel of lawyers who are here. 

If I may, Mr. Chairman, I will just proceed with very brief introductions of the three Pennsylvania nominees. 

Chairman LEAHY. I see Senator Warner is here. 

752 

Senator SPECTER. Senator Warner. 

Chairman LEAHY. I’d like to hear from Senator Casey before we 

introduce people from Pennsylvania. 

Senator Warner, we’ve already given you glowing accolades as 

one of the most senior members of the Senate, and praised your 

work, your bipartisan work, with Senator Webb. That’s why we’re 

here. 

With that, I’ll go to you because apparently we’re going to have 

votes fairly soon. I doubt if we’ll come back to this hearing once 

those votes start, so we’re going to see how many judges we get 

done before the votes start. I’m not suggesting that anybody—put 

speeches in the record. 

PRESENTATION OF ANTHONY J. TRENGA, A NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE 

OF VIRGINIA 

Senator WARNER. Mr. Chairman, you and I have been here together 30 years, and the man on your right, 28 of those years he’s 

been with us. 

Chairman LEAHY. That’s right. 

Senator WARNER. I think it’s just important to say that I have 

had the privilege of introducing many, many, many individuals before the U.S. Senate, particuarly this Committee. In the first place, 

I thank the courtesy that the Chairman and the Ranking Member 

extend to all members of the Senate as they deal with these situations, because each of us has nominations coming up for the judiciary. 

I was a former lawyer and prosecutor myself, so I’ve had some 

modest experience. I can cut to it right away. This gentleman that 

I have the privilege of introducing, Anthony Trenga, is a lawyer’s 

lawyer. He has tried and proven his skills. He has the highest ratings of our State Bar Association and of the American Bar Association. His career is what every young lawyer I think dreams about 

when they finally make their way through law school and pass the 

Bar. So I will simply put in my statement, but first I would ask 

that he introduce his family. 

Chairman LEAHY. I was thinking, because we have not heard 

from— 

Senator WARNER. Senator Webb joins me in this nomination. 

Whatever the pleasure of the Chair might be. 

Chairman LEAHY. Well, I’ll tell you what. Because of the time— 

normally I would, but because of the time thing, why don’t I go to 

Senator Brownback, Senator Casey, and Senator Webb for any 

comments they want. Then we’ll introduce all the nominees. 

Senator Brownback. 

PRESENTATION OF ERIC F. MELGREN, A NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF KANSAS BY HON. SAM 

BROWNBACK, A U.S. SENATOR FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you very much, Mr. Chairman. 

Chairman LEAHY. I’m just afraid, if we run out of time, some of 

these people will have to wait till next year and take their chances 

with a new president. 

753 

Senator BROWNBACK. Thank you very much, Mr. Chairman. I appreciate that. I appreciate your accommodating this on the schedule and the nominee. I visited with you about policy concerns on 

prior nominees, but more than anything I want to thank you for 

holding this hearing and putting up Eric Melgren in this. I think 

it is an extraordinary act on your part and I deeply appreciate it, 

and I want you to know that. 

If I could—and I will cut to the chase on this as well. Eric 

Melgren is somebody I’ve known for a number of years. He was 

born in Minneola, Kansas, which probably the only other person 

that would even know about that in this room would be the Ranking Member of where that is. It’s a very small community near 

Dodge City, not far from Russell, Kansas. He’s been married for 30 

years. He’s got four kids. 

But he’s also a lawyer’s lawyer as well: graduated Washburn 

University. He was student body president first at Wichita State, 

magna cum laude at his law school, top 5 percent. Then he went 

out and clerked for the very judge and on the bench on which he 

seeks to go now, on the Federal court bench in Wichita, where we 

have three senior judges that are helping us carrying our cases— 

I mentioned last week in the hearing, the oldest of which is 100 

years old, who is still hearing cases. We’re just a little concerned 

about his work ethic at this point in time at that age. 

He joined a major law firm in Kansas, did a great job there. He’s 

been U.S. Attorney for the last 6 years, very publicly involved. I 

think he’s earned the highest ranking from the Bar Association of 

Unanimously Well Qualified. I urge his consideration. 

Chairman LEAHY. Thank you. We’ll put the full statements in 

the record. I apologize for rushing, but we would not have this 

hearing if we couldn’t do it otherwise. 

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

Chairman LEAHY. Senator Casey. 

PRESENTATION OF C. DARNELL JONES, II, A NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, MITCHELL S. GOLDBERG, A NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND JOEL H. SLOMSKY, A NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY 

HON. ROBERT CASEY, JR., A U.S. SENATOR FROM THE STATE 

OF PENNSYLVANIA 

Senator CASEY. Mr. Chairman, thank you very much. I appreciate the time you’re putting into holding this hearing and scheduling it so late in the legislative year. I want to thank Senator 

Specter for his work that went into today’s proceeding. 

I’m going to be very brief but I wanted to say, in summary fashion—I know that Senator Specter and the record will reflect more 

detail about the records of all of these individuals. I want to say, 

first of all, by way of support for all three individuals, Judge C. 

Darnell Jones, Mitchell Goldberg, and Joel Slomsky, all of them in 

one way or another have the requisite legal experience, in some 

cases—in two cases they are judges. 

754 

Each of them has some other kinds of experience, including experience as prosecutors. I think they’re all ready to assume the important responsibilities of being not just a judge, but a judge on the 

Federal District Court in the Eastern District of Pennsylvania. I 

am honored to stand here—to sit here, I should say—in this hearing and to be able to support them. It is an honor to work with 

Senator Specter to bring them forward, and we look forward to 

their confirmation. 

Chairman LEAHY. You and Senator Specter, like Senator Warner 

and Senator Webb, have shown the way a bipartisan effort can be 

done to bring about judges, and I commend both of you. 

Senator Webb. 

PRESENTATION OF ANTHONY J. TRENGA A NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA 

BY HON. JIM WEBB, A U.S. SENATOR FROM THE STATE OF 

VIRGINIA 

Senator WEBB. Thank you, Mr. Chairman and Ranking Member 

Specter. I have a longer statement I would ask be inserted in the 

record at this point. 

Chairman LEAHY. All statements will be. 

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

Senator WEBB. I appreciate very much the unusual step of having this hearing. Senator Warner and I, as you know, have worked 

hard, jointly, in a bipartisan way to come up with highly qualified 

candidates. I think a lot of that work would have been for naught 

if you had not given us the courtesy of this hearing. 

Mr. Trenga enjoyed a long career. He’s earned the respect of colleagues and clients. He received a rating of Highly Qualified by the 

Virginia Bar. His nomination was, as I said, the result of a very 

rigorous process that Senator Warner and I jointly participated in. 

I am very proud to be supporting him, along with Senator Warner. 

He has a number of family members who are with him today; this 

is a big day for their family. We wish him the best as a judge. 

Chairman LEAHY. Thank you very much. We will put the full 

statements of everybody in the record. 

Senator Roberts, did you wish to speak? I noted before, anybody 

who doesn’t get heard by the time we have our roll call votes probably will not get heard this year. 

Go ahead. 

PRESENTATION OF ERIC F. MELGREN A NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF KANSAS BY HON. PAT 

ROBERTS, A U.S. SENATOR FROM THE STATE OF KANSAS 

Senator ROBERTS. Mr. Chairman, I used to, when I was chairman of the Intelligence Committee, say that people would have 1 

minute and if they exceeded that they would be taken to Dodge 

City and hung by the neck until they’re dead. 

Chairman LEAHY. You’ve used up about half of that 1 minute. Go 

ahead. 

Senator ROBERTS. I’ve got it. I support the President’s nomination of Eric Melgren as Federal District Judge for the District of 

755 

Kansas. I associate myself with the remarks of my distinguished 

colleague and the senior Senator from Kansas, Senator Brownback. 

Simply put, Eric Melgren is qualified for this important responsibility. On the other side of it, we are in desperate need of active 

judges as opposed to senior judges and he would do a great job. 

Thank you. 

Chairman LEAHY. Thank you very much. 

Senator Specter, do you and Senator Casey wish to note who is 

here? Maybe their families may want to stand up and be recognized. 

Senator SPECTER. Thank you, Mr. Chairman. That’s a good idea. 

If the families of the three nominees from Pennsylvania would 

stand, you’d be recognized. 

Chairman LEAHY. It would be Mr. Jones, Mr. Goldberg, and Mr. 

Slomsky. Thank you. And when the individual nominee testifies, 

we’ll make sure we put in the names of all the families so that 

someday in the Jones, Goldberg, and Slomsky family archives, we’ll 

know exactly who was here. 

Senator Warner and Senator Webb. 

Senator WARNER. Thank you. As Senator Webb said so eloquently, we both worked on this and it was a pleasure to have 

interviewed this nominee who is right here with his family. If he’d 

stand with the family, and then we’ll get all the names in due 

course. Wonderful. 

Chairman LEAHY. Thank you. 

Senator WARNER. And could I add one note? Throughout this 

process and others, I just want to compliment the dignity of the 

staff. They were always responsive, both Majority and Minority, in 

working on this and other nominations this year. 

Chairman LEAHY. You instill that in everybody, Senator Warner, 

and I mean that very seriously. 

Senator Brownback, Senator Roberts. 

Senator BROWNBACK. Eric Melgren’s family is not here, but obviously he is here and will be testifying. 

Chairman LEAHY. Thank you. Well, I know that all Senators 

have about four other hearings they have to go to. If you want 

you’re welcome to stay, but if you want to leave, feel free also. The 

statements are all going to be put in the record. 

All the nominees, Trenga, Judge Jones, Judges Goldberg, 

Slomsky, and Melgren, please come. 

Would you please stand, raise your right hand, and repeat after 

me. 

[Whereupon, the witnesses were duly sworn.] 

Chairman LEAHY. The record can show they all were sworn in. 

STATEMENT OF ANTHONY J. TRENGA NOMINEE TO BE 

DISTRICT JUDGE FOR THE EATERN DISTRICT OF VIRGINIA 

Mr. Trenga, would you please just put in, for the record, those 

of your family and friends who are here? Later we’ll make sure we 

get all the spelling right for the Trenga archives. 

Mr. TRENGA. Yes. Thank you, Mr. Chairman. I’m very fortunate 

to have here today with me my family and some very close friends 

and colleagues. First and foremost is my wife, Rita. We have been 

married 25 years and we have two children. My daughter Elizabeth 

756 

is here with me. Unfortunately, my son Anthony was unable to be 

here. Also with me are my two siblings: my sister, Marilyn McClain 

and her husband Charles; and my brother, Larry Trenga, who 

came in from Philadelphia today. 

I also am very fortunate to have with me my brother-in-law, 

Colonel Ken Dahl, who is currently here in this area. 

I am also very fortunate to have with me a number of my very 

good colleagues and friends from my law firm: Mr. Charles 

McAleer, Elizabeth O’Keefe, Megan Ellis, Pat Hackman, and also 

very good friends, Agnes Dover and Mary Hanigan have joined us. 

Also, very good friends, Tom Hylden and Shelley Davis. 

[The biographical information follows.] 

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Chairman LEAHY. Which indicates he is—being from Virginia 

and nearby. I appreciate that. I’d note that we’ll put in the record 

your background and the fact that you’re a partner at the DC law 

firm of Miller & Chevalier, and so on. 

STATEMENT OF C. DARNELL JONES, II, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Then if I could have Judge Jones, who is a judge on the Philadelphia Court of Common Pleas, the highest trial court in the Commonwealth of Pennsylvania. He’s been there 21 years. He was 

elected president judge by the judges of the Court of Common Pleas 

in 2006. Prior to becoming a judge, he was an Office Assistant in 

the Citizens Crime Commission and practiced law at the Defender 

Association of Philadelphia. And down through—and I will put, 

again, in the record his whole background, which is significant. 

I would note that Judge Srika, Tony Srika, took me aside at the 

Supreme Court the other day and praised you—not very much— 

Judge Jones. 

Could you please introduce any members of your family who are 

here? 

Mr. JONES. Yes, sir. Good afternoon, Mr. Chairman. Thank you 

again for the honor of being here, Senator Specter. My wife, Evelyn 

Jones, my daughter, Sheinelle Jones, my daughter, Dr. Keesha Elliott, my daughter, Antonia Jones, and my son-in-law, Uche Ojeh. 

And my close friend from law school, Judge Reggie Walton and his 

daughter Dannin. 

[The biographical information follows.] 

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Chairman LEAHY. Thank you all for being here. 

Judge Goldberg, who’s next, is a judge in the Bucks County 

Court of Common Pleas. He was appointed in February 2003, elected into office for a 10-year term in November of 2003. He was a 

former Assistant U.S. Attorney for the Eastern District of Pennsylvania, a senior partner at the Philadelphia law firm of Cousin 

O’Connor, Assistant D.A. for the Philadelphia District Attorney’s 

Office, one office that I first knew about when the distinguished 

senior Senator from Pennsylvania was the District Attorney there. 

Would you like to indicate, Judge Goldberg, do you have family 

members here? 

STATEMENT OF MITCHEL S. GOLDBERG, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Mr. GOLDBERG. I do. Thank you, Chairman Leahy and Senator 

Specter. My wife, Helene Goldberg, is here. My children are not. 

My daughter is attending Boston University, her first year. My son 

Sam, hopefully is in school right now. 

[Laughter.] 

My sister-in-law, Sandi— 

Chairman LEAHY. When he reads this record he’s going to pray 

he was. 

[Laughter.] 

Mr. GOLDBERG. I’m going to show it to him. My sister-in-law, 

Sandi Widlitz, who—really, sister-in-law is just a term. Sandi 

Widlitz is like a sister to me. She is here. And my sister, who lives 

in Bethesda, Maryland, Aileen Kantor, is also here. I hope I 

haven’t missed anybody. 

I did have a brief opening statement. The lawyer in me wanted 

to give it, but you’ve emphasized brevity so I’ll waive my opening 

statement, Senator. 

Chairman LEAHY. That shows you’re a very good lawyer. 

[Laughter.] 

[The biographical information follows.] 

[The prepared statement of Judge Goldberg appears as a submission for the record.] 

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[The prepared statement of Judge Goldberg appears as submission for the record.] 

Chairman LEAHY. Joel Slomsky, for the past 38 years, has been 

a Federal prosecutor, a partner in a law firm, a sole practitioner, 

a Federal prosecutor with the Criminal Division of the Organized 

Crime section with the U.S. Department of Justice in Washington, 

and down through. Again, your whole background, Mr. Slomsky, 

will be in the record. Of course, you know that having two former 

prosecutors up here, we both read that part of your background. 

Do you have members of your family here? 

STATEMENT OF JOEL H. SLOMSKY, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

Mr. SLOMSKY. I do. I just want to thank you also for holding the 

hearing and giving us this opportunity, and also thank Senator 

Specter, and certainly Senator Casey. 

I have here today my wife, Paula. Next March, we celebrate our 

40th anniversary, and I’ve been truly blessed. Also, my daughter 

Mona, who is here, who we both love dearly. 

[The biographical information follows.] 

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Chairman LEAHY. Thank you very much. 

The last one will be Eric Melgren, who’s currently the U.S. Attorney for the District of Kansas, a position he’s held since 2002. He 

graduated magna cum laude from Wichita State University, was 

student body president, has a law degree from Washburn, graduating cum laude. 

STATEMENT OF ERIC F. MELGREN, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF KANSAS 

Mr. Melgren, I understand that with the short notice, you do not 

have family here with you. Is that correct? 

Mr. MELGREN. That’s correct, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Mr. MELGREN. They’re very supportive, but in absence. 

Chairman LEAHY. No, I understand. We could have waited a couple of weeks to give them a chance, but I don’t think you wanted 

to do that. 

Mr. MELGREN. We’re much happier with the way it is. I would 

join the remarks. I’m very grateful to you for scheduling this hearing, Mr. Chairman. 

[The biographical information follows.] 

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Chairman LEAHY. Let me ask sort of a basic question of all of 

you. Again, both Senator Specter and I have been trial lawyers. 

Those who have, when you come into a courtroom, you look at the 

judge and you say, whether on plaintiff, defendant, government, or 

non-government, no matter who I’m representing, I kind of look at 

that judge and say, okay, I’m going to get a fair trial. Win, lose or 

draw, it’s going to be a fair trial. 

What assurances—and I’m going to ask the same question of 

each of you—that everybody coming into your courtroom—because 

we ask this question because you’re the only undemocratic branch 

of our government. You’re not elected and it’s a lifetime appointment. What assurances that they’ll be treated fairly regardless of 

race, gender, religion, political beliefs, or anything else? Can you 

point to anything specific in your background that would demonstrate that commitment? I’ll start with you, Mr. Trenga. 

Mr. TRENGA. Thank you, Mr. Chairman. I can certainly give you 

that assurance without any reservation or qualification. I’ve 

worked with people and have lived in a variety of circumstances 

that have allowed me to work with a wide diversity of people. 

Within the community, I have attempted to participate in activities 

that were dedicated to the proposition of treating people fairly and 

to address inequalities. 

Within my own practice, I have attempted to represent all people 

of whatever means they may have. My practice has been broad. I’ve 

represented plaintiffs, I’ve represented defendants, I’ve represented 

indigent defendants, I’ve represented defendants of means, plaintiffs of means. 

I’ve represented large corporations, small corporations, employees, managers, and I’ve not restricted my practice in any way to 

either plaintiffs or defendants, whether it be securities fraud cases, 

or employment cases, or personnal injury cases. I think it is an 

enormous—of utmost importance that the process be perceived as 

credible, and in order to be credible the process has to be—the person involved in the process has to do precisely what you say, and 

that is treat all people fairly and without regard to station or office. 

Chairman LEAHY. I wish to underscore that, because if courts— 

Federal courts especially—give the impression that they won’t treat 

you fairly, the whole system breaks down. When people lose respect 

for the courts, it totally breaks down in this country. We are a 

country of the rule of law. If we can’t trust our courts, they get 

their reputation, then we’ve all lost. It makes no difference what 

our political parties are or our position in the country. 

Judge Jones, the same question to you. Can you give that assurance? Can you point to things in your own background that would 

demonstrate commitment to that assurance? 

Mr. JONES. Without any equivocation whatsoever, I can make 

that commitment, Chairman Leahy. Thank you again for the opportunity to be here and participate in this process. 

Two things. First, my reputation. I trusted my reputation 

through all of the reports that have been returned from the endorsements by the various Bar Associations, the questionnaires, 

the American Bar Association. All of those things combined would 

demonstrate my reputation for being an individual who has always 

951 

been fair and equitable in treatment of all persons who appeared 

before me, and all entities which appeared before me. 

I also know that by reason of my experience many, many years 

ago as an Assistant Public Defender, I always promised myself, if 

I was ever able to achieve the level of being a judge, I would treat 

lawyers and litigants the same way I would want to be treated as 

a lawyer, and if I ever was a litigant, the same way. I am dutybound to do that, sir. 

Chairman LEAHY. That is important. I remember one thing that 

Senator Thurmond would say to everybody, and it didn’t care who 

was President. He said, remember your power as a judge. A lot of 

litigants will only be in a Federal courthouse once. They’re not like 

those of us who may practice law. They’re only going to be there 

once, and their whole view of the criminal justice or the civil justice 

system of our country is going to be based on that one time. That’s 

an awesome responsibility a judge has, an awesome responsibility 

of the lawyers as litigants, too, but also for the judge to demonstrate clearly that he’s not favoring one side or the other. 

Judge Goldberg, how would you answer that question? 

Mr. GOLDBERG. First, Senator, you have my word that I will be 

fair and impartial, and I’ll give you an example that I’m very proud 

of. When I first came to the Court of Common Pleas of Buck’s 

County in the Commonwealth of Pennsylvania, I had previously 

been an Assistant United States Attorney, a Federal prosecutor for 

some time, and further back in my career, a State prosecutor. So 

when I came to the Buck’s County Courthouse, as you can imagine, 

the Public Defender’s Office, they were a little bit wary of, what 

kind of sentencer was I going to be, was I going to be pro-prosecution, pro-defense. 

We have proceedings in our courthouse, trials go to certain 

judges, and then those persons who want to plead guilty go to other 

judges. Initially, there was a reluctance—I think rightly, because 

the lawyers and the public defenders didn’t know much about me. 

They were reluctant to plead in front of me. 

But shortly after I took the bench, the head of the Public Defender’s Office came to our president and judge and said, we have a 

great comfort level with Judge Goldberg. We know that he is going 

to—has put aside his prior background as a prosecutor. He’s been 

fair. He’s exhibited that fairness and we’re comfortable bringing 

our clients in front of him for plea proceedings. Even as a former 

State and Federal prosecutor, that was a very high compliment to 

me. 

The other—the second way I’d answer that question, Senator, is 

I’ve represented a wide range of litigants, not only as a State and 

Federal prosecutor, but I’ve also, in private practice, represented 

criminal defendants, and in civil practice, small business owners up 

to large corporations. So, I have the perspective of all kinds of litigants that would come into my courtroom. 

Chairman LEAHY. Thank you very, very much, Judge Goldberg. 

Mr. Slomsky. 

Mr. SLOMSKY. Thank you, Mr. Chairman. I can assure you also 

that I will be very fair and very courteous to all litigants and lawyers that come into my courtroom. I have practiced law for 37 

years in our Federal courts. I was a prosecutor, I’ve been a defense 

952 

attorney. I have represented people from practically every socioeconomic level in this country, different ethnic backgrounds. I’ve 

interacted with so many people and I’ve learned the necessity of 

treating everyone fairly, and not only my clients, but also prosecutors I’ve interacted with, and fellow lawyers. I can assure you that, 

based upon my experience, everyone will be treated fairly in my 

courtroom. 

Chairman LEAHY. Thank you. 

Mr. Melgren, I might put extra emphasis on the question that 

Judge Goldberg responded to. You’re going to be going, if you’re 

confirmed, from a U.S. Attorney to a judge who will, the way our 

dockets go today, have to be handling a lot of cases from a U.S. Attorney. 

Now, I assume it’s easy enough to answer the obvious questions 

about recusal in cases that you may have been involved with. But 

how do you demonstrate your impartiality, and what is there in 

your background that would give credibility to that? 

Mr. MELGREN. Well, thank you, Mr. Chairman. And thank you 

for the question, because I do think the issue of both judicial impartiality and a comfort with the litigants before the jurist that he 

or she is impartial goes to the heart of the integrity of our process. 

It has been my honor to represent the U.S. Government for the 

last 6 years as a U.S. Attorney, but prior to that in my days of private practice, my practice was characterized principally as a tax 

litigant. As was noted when I was sworn into this office, in that 

role I typically was adverse to the U.S. Government, so I actually 

have probably had more years of suing them than of defending 

them. 

I’ve been pleased, as this process has progressed along, to have 

been stopped several times in our courthouse, even by our Federal 

public defenders, to wish me well and to tell me that they believed 

and had every confidence that I would be a good judge and they 

wished me well in the process. 

I was pleased to discover in the American Bar Review that several people had made comments, and I was told one that included 

a longstanding, well-regarded senior attorney in our community, a 

member of the American College, who I have on many occasions debated various issues with in public forums, Rotary Clubs and such. 

He told the Bar Review that he and I may be on opposite ends of 

an ideological spectrum, but he would have no hesitation at all in 

entrusting a matter to me as a judge and believing he’d be treated 

fairly. 

Chairman LEAHY. I read the Bar Association—you had the highest rating they can give. 

Senator Specter. 

Senator SPECTER. The critical questions which are customarily 

asked are whether you will interpret the law as opposed to making 

the law, and whether you will follow the statutory requirements, 

or if the matter is governed by appellate decisions, will you follow 

those without regard to your own personal opinions? 

Mr. Melgren. 

Mr. MELGREN. Thank you, Senator Specter. Certainly you and 

this Committee have my commitment that, if I am confirmed in 

this as a judge, my commitment is to follow the law. I have great 

953 

pride in the fact that we are a Nation of laws and that we are governed by laws, and that as a trial judge it would be our duty to 

interpret the law as this Congress has passed it and has been 

signed into law as it is written. It’s my commitment that that 

would be my highest goal and obligation, if I were confirmed. 

Senator SPECTER. Mr. Slomsky. 

Mr. SLOMSKY. Senator Specter, I certainly concur. I think a 

judge’s job is to apply the law and put aside any personal feelings 

and to follow the language of the law, and to make sure that it’s 

followed. I will do that. I assure you it will be done, and I will respect the process of the law. 

Senator SPECTER. Judge Goldberg. 

Mr. GOLDBERG. Senator Specter, I have the greatest respect for 

the separation of powers. I understand and respect that a judge’s 

role is not to be a policymaker or to legislate. That is the role of 

the legislature. You have my commitment that I will strictly apply 

the statutes and the precedent. 

Senator SPECTER. Judge Jones. 

Mr. JONES. Senator Specter, I concur again with my colleagues 

here. I also commit that I have demonstrated that same kind of 

commitment for the last 21 years as a member of the bench in 

Philadelphia. 

Senator SPECTER. Mr. Trenga. 

Mr. TRENGA. Senator Specter, you also have my commitment. It 

is the role of the court to decide cases based on the law in a transparent, principled way. The statutes that we’re called upon to interpret reflect the legislative judgments that are entitled to respect 

and deference, and I give you my commitment that I’ll do precisely 

that. 

Senator SPECTER. Judge Goldberg, there was a removal of a polling place in Buck’s County where you sat on a three-judge panel 

to decide the matter. There were some concerns expressed that 

there was an effort to deprive people of the right to vote by moving 

it from what I believe was a housing project to a more affluent 

neighborhood because of concerns that there had been a high incidence of crime at the housing project. 

Would you explain what happened there, what your role was and 

why your decision was made as it was? 

Mr. GOLDBERG. Sure. The Board of Elections in Buck’s County 

made a recommendation to move a polling place. I believe the distance was less than one-half a mile. Their recommendation, as I 

understood it, was based on the fact that there had been high incidence of crime in the one polling place. That decision has to be affirmed by the Commissioners of Buck’s County. But it was during 

an election year, so for obvious reasons they could not stand in and 

affirm that recommendation. 

I believe what occurred then, is the president judge of our court 

asked myself and two other judges, Judge Lawlor and Judge Mellon, to hear the evidence and decide whether the Board of Elections 

was acting properly. We heard the evidence. I won’t go into great 

detail here, but it was, as I said, that there had been high incidence of crime, and also that the move was only a half-mile and 

that would not cause a huge inconvenience to the voters who had 

to move from one polling place to another. 

954 

Given that evidence, I deferred to—and I don’t believe technically 

I was sitting as a judge. I was sitting as a member of the Board 

of Elections. Given that evidence, I did what I do in all the cases 

that I sit: I weighed the evidence, I listened carefully, and decided 

that the Board of Elections was acting properly. That was my vote, 

and that was the vote of Judge Lawlor and Judge Mellon as well. 

Senator SPECTER. I think we have time for one question on the 

substance. 

Chairman LEAHY. Ask all the questions you want. 

Senator SPECTER. Well, when they ring the bells and you have 

15 minutes to get to vote, there’s 5 minutes of grace period. But 

they haven’t rung the bell yet, so I will ask a question which we 

customarily reserve for Supreme Court nominees. Chairman Leahy 

and this Committee and I have been engaged in very heavy lifting 

on the question of the warrantless wire tap program which the 

President has instituted on his Article 2 powers as Commander in 

Chief, which is in violation of the Foreign Intelligence Surveillance 

Act which requires judicial approval. 

When the matter came before the District Court Judge in Detroit 

who declared it unconstitutional, that’s a pretty big decision for a 

District Court judge, when the Congress and the President are battling over expansion of executive authority. 

How would you tackle an issue like that, Judge Goldberg? 

Mr. GOLDBERG. It’s a very complicated issue, obviously, Senator. 

I would approach it, I think, like I approached all cases, which is 

to study the statute first, know it backwards and forwards, and 

then study all of the precedent around that and try to give the truest meaning to the statute. 

Senator SPECTER. I’ve already told you it’s a violation of the statute. Now you have to decide whether the President’s Article 2 powers are sufficient. That’s a judgment call on Al Qaeda, the atmosphere, and all the surrounding circumstances. You don’t have a 

whole lot to go on here. Will you have any hesitancy in declaring 

it unconstitutional because you’re only a District Court judge and 

you’re bucking the President of the United States? 

Mr. GOLDBERG. I’d have to read and study the statute, Senator. 

But after doing that, if I concluded that the statute was unconstitutional, even though the ramifications would be significant, I would 

do my job. 

Senator SPECTER. How about it, Mr. Trenga? 

Mr. TRENGA. If I were confirmed as a District Court judge, I, of 

course, would look for comfort in the case law as best I could find 

it in the Supreme Court cases, and in the cases of the Fourth Circuit. 

Senator SPECTER. You might not find any comfort in the case 

law, in the Sixth Circuit, or in the Tenth Circuit. Let’s see. You’re 

in the Fourth Circuit? 

Mr. TRENGA. Fourth Circuit. If there were an absence of guidance, I would, of course, examine what the precise constitutional 

challenge was. I don’t think it’s ever an easy matter to invalidate 

a legislative judgment based on a constitutional challenge. Likewise, I would examine the actions that were being challenged as 

a violation of the Constitution. If, in fact, I was convinced under 

955 

the law that there was in fact a constitutional violation, I would— 

I would so declare. 

Senator SPECTER. A first cousin, Judge Jones, has been the controversy over habeus corpus and the Combat Status Review Board 

which has been set up by Congress, which involved the abrogation 

of habeus corpus. When the case came to the Supreme Court, the 

Miller case—we don’t have time to go into great detail on it, but 

how would you approach an issue like that as to whether the congressional decision to have a review board was sufficient to guarantee the rights of someone in detention to have a reason stated 

as to why they were held in detention, contrasted with the customary habeus corpus where the Federal judge makes a determination as opposed to a review board? 

Mr. JONES. Mr. Senator, I, if confirmed, would first recognize the 

very, very high bar of congressional legislation, that it is not something that would be taken lightly, recognizing the status of this 

great body. It would be, as has been discussed, something that 

would be taken into consideration based upon all of the requisite 

applications of constitutional dimension as espoused by the U.S. 

Supreme Court, and certainly thereafter entertaining all the arguments of all sides. Then I would address the issue. 

Senator SPECTER. Mr. Slomsky, which one of those two questions 

would you prefer to answer? 

[Laughter.] 

Chairman LEAHY. Because you’ve got to answer one or the other. 

Mr. SLOMSKY. Senator Specter, I believe in an independent judiciary. I have been before many independent judges in my career. 

I think when you have a constitutional question, a judge has to act 

with restraint, has to study the law very carefully. I agree with 

Judge Jones, there is a high bar set. I would want to read the 

precedent, study the Supreme Court decisions on that area and listen to the arguments of counsel and read the submissions, and 

then make a decision on what I think is the right thing to do. It’s 

never easy for a District Judge, I believe, to declare a statute unconstitutional, or something the President did unconstitutional. I 

think that power has to be used very judiciously. 

Senator SPECTER. Mr. Melgren, do you look forward to being a 

Federal judge to have an opportunity to weigh these lofty issues? 

Mr. MELGREN. Well, certainly, Senator Specter, both of your scenarios raise questions of greatest weight that are vested in a judiciary. I think I would join many of the comments of my colleagues, 

that I believe when we’re reviewing, if I’m confirmed, when a 

judge—any judge—is reviewing an act of Congress, acting under 

the broad powers that Article 1 of the Constitution gives the Congress, great respect and deference is due to those actions. 

Likewise, I think the President, under Article 2, is given broad 

powers and respect and deference is due to those as well. But the 

courts, under Article 3, do have both the authority and the responsibility to uphold and enforce the Constitution. And although those 

would not be easy decisions nor ones taken lightly, if I were confirmed as a judge and a matter came before me either from a— 

from either a congressional enactment or a Presidential action, that 

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956 

vinced me was unconstitutional, I believe it would be my responsibility to so hold. 

Senator SPECTER. Mr. Melgren, which is your town in Kansas, 

your residence? 

Mr. MELGREN. Minneola, Senator. It’s probably 100, 120 miles 

south of Russell, population 700. My father farmed there and my 

mother was a nurse in our little 18-bed hospital. 

Senator SPECTER. Well, I knew it was small because I didn’t 

know about it. 

[Laughter.] 

And where do you have your office? 

Mr. MELGREN. As U.S. Attorney? 

Senator SPECTER. As U.S. Attorney. 

Mr. MELGREN. The District of Kansas is all one district, but 

there are three Federal courthouses: Wichita, Topeka, and Kansas 

City. My principal office is in Wichita—hat’s the headquarters office of U.S. Attorneys—but we have Assistant U.S. Attorneys at all 

three courthouse locations. 

Senator SPECTER. I will conclude by a short Senator Thurmond 

story. Senator Thurmond left the Senate 1 month after his 100th 

birthday. He still casts a long shadow over our proceedings. The 

Chairman has quoted him, and I will quote him as well. 

On one of the early hearings that I attended on this Committee, 

Senator Thurmond, in his inimitable voice, said, ‘‘Do you promise 

to be courteous’’, which is interpreted to be ‘‘do you promise to be 

courteous? ’’ 

[Laughter.] 

And then he said, ‘‘The more power a person has, the more courteous a person should be.’’ The more power a person has, the more 

courteous the person should be. 

In Senator Thurmond’s absence, I always—or whenever I can— 

repeat that admonition, because it’s like Chairman Leahy’s point 

about impartiality. Judges wear black robes. Fortunately, as Mr. 

Slomsky talked about, judicial independence is the hallmark of the 

system. Those of us who have to run for elected office are envious 

of those of you who enjoy lifetime appointments. Not sufficiently 

envious so we’d give up the Senate to become a judge. 

[Laughter.] 

Chairman LEAHY. I was going to say, I have, three times, turned 

down the possibility of being a judge. 

Senator SPECTER. But nonetheless, envious. But when you put on 

that black robe and you get up in the morning and things haven’t 

gone exactly your way, there’s a real temptation to not be courteous, a real temptation not to be courteous. Nominees have come 

to me years after these hearings and have said, I remember what 

Senator Thurmond said. Keep it in mind. 

Thank you, Mr. Chairman. 

Chairman LEAHY. And I appreciate you doing that. I’m going to 

turn to Senator Brownback in just a moment, but I feel very much 

the same way, the courteous—the treating everybody alike. I can’t 

emphasize enough the fact that the people who come in there— 

there’s some lawyers in there all the time. That’s fine for them. 

Most litigants will be in there once in their lifetime, and their 

957 

whole view of the third branch of government is going to be based 

on that. 

When the Soviet Union broke up, a group from Duma in Russia 

came to visit with me. They were trying to study something about 

the independence of our judiciary. I remember very well, one of 

them said, is it true that people in your country sometimes sue the 

government? I said, happens all the time. They said, is it also true 

that sometimes the government loses? I said, yes, it happens often. 

And do you then replace the judge? 

[Laughter.] 

I’m serious. It was almost like a lightbulb went on in the room 

when I explained, no, we don’t. I think what Senator Specter—the 

questions on the Constitution are very, very important because, in 

these particular things—and I’m not being partisan in saying it. 

I have a great deal of concern. Both Senator Specter and I have 

made comments about this, on habeus corpus, on wire tapping, and 

everything else. Without going into all the cases, the fact is, in 

many of them the changes came about only when the judge had the 

willingness to stand up and say, no matter how much pressure— 

political pressure or anything else—is being brought, as I read this 

statute, as I read what is happening, what is happening is unconstitutional and it must stop. 

As a practical matter, once those positions were taken, then 

changes came about. It’s because the Federal judiciary stepped in 

and showed that kind of courage. Among those who have shown 

the courage are people who have been both Republican and Democratic judges. 

Senator Brownback, did you wish to add something? Then I had 

one other question. 

Senator BROWNBACK. Yes, if I could, just briefly. More, it’s just 

a statement following up. First, congratulations to each of you 

making it this far. This is something that a number of people aspire to and dream about in law school or other iterations, so it’s 

really quite a compliment to you and to your families as well if this 

moves on through. 

Then just, finally, really is a comment along the lines of what 

Senator Specter said, just a kind of a mentality approach. When 

you go on to the bench, that’s one of the highest positions that the 

government—the highest positions in the land, and just to maintain a humility about that, that while you are in one of those vaulted positions and it’s a position for life, if you’re able to make it all 

the way through the process, just that humility of what that power 

brings to it. I would hope you would think about it. 

I think about that often in a great Nation and where we are one 

of 100 in this body, which is a fabulous honor. It’s a great blessing, 

but it’s a trusteeship more than anything else. I’m entrusted with 

a certain level of power and authority that is far beyond me as an 

individual, and after I’m gone will continue to be there. I need to 

be as good a trustee as I possibly can with that so that it maintains 

the dignity of the system, maintains the dignity of the human individual that’s in front of me, and it maintains the wisdom of the 

founders of this country. 

You are possibly going to be in one of those vaulted positions, 

and I just would urge you all to contemplate on that on a fairly 

958 

regular basis. If you don’t, I would hope your family that’s here 

would remind you about that. Mine regularly does, and it’s a nice 

help that they do. 

Thanks, Chairman. 

Chairman LEAHY. Thank you. 

Judge Goldberg, when your name came up here we had a lot of 

people raise the Buck’s County voting booth place. One thing that 

occurred to me, would it not have worked just to keep it where it 

was, but just say we’ve got to have more law enforcement in there, 

more law enforcement presence? Was that an option? 

Mr. GOLDBERG. I probably, Senator, shouldn’t speculate, so I 

preface this answer with, I’m not sure that this is 100 percent correct. But I believe, under the Pennsylvania Voting Act laws, the 

Board of Elections cannot order law enforcement to be at the polling places. And because it was such a short distance, I again defer 

to the wisdom of the Board of Elections. 

Chairman LEAHY. Now, every judge has to make a decision when 

there’s a conflict of interest. Some conflicts of interest are very easy 

and you have to recuse yourself. Chief Justice Rehnquist said many 

times that the standard for recusal was not subjective, but rather 

objective. Your brother brings a case before your court, a member 

of your family is a litigant, that’s very easy. You can do that. It’s 

in the gray areas. 

I know that in 2004, I remember Senator Lieberman was very 

critical of Justice Skalia, as was I, for not recusing himself from a 

case about Vice President Cheney, even though, after he refused to 

recuse himself, he went on a duck hunting trip with the vice president and rode in his airplane, and everything else, and then wrote 

a harshly worded opinion in which he said that there’s no way ‘‘his 

impartiality might reasonably be questioned.’’ People are still 

scratching their heads over that. 

Without going into the Scalia case, you’ll be coming from either 

private practice or a different judgeship. Do I have the assurance 

of all of you that you will bend over backward, especially when you 

first get on the bench, to be prepared to recuse yourself if there is 

the appearance of conflicts of interest? 

Mr. Trenga. 

Mr. TRENGA. Thank you, Mr. Chairman. This is an issue that 

goes to the integrity of the process. You do have my assurance that 

I would—I would seriously consider any suggestion of conflict and 

recuse myself in those circumstances. 

Chairman LEAHY. Thank you very much. 

Judge Jones. 

Mr. JONES. Absolutely, I would, Mr. Chairman. In fact, I did just 

that in a case in Philadelphia involving a Democratic chairman 

who was also a candidate for mayor not too long ago. I recused my 

entire bench. 

Chairman LEAHY. That’s a big recusal. 

[Laughter.] 

Judge Goldberg. 

Mr. GOLDBERG. You have my assurances, Senator. I think you— 

you honed in on the most important words: the appearance of impropriety. I’m well aware that if I am lucky enough to be confirmed, it’s not only do you have a direct conflict, but is there an 

959 

appearance of a conflict; how the public views the court and the 

trust in the court is very important. 

Chairman LEAHY. Mr. Slomsky. 

Mr. SLOMSKY. You have my assurance, Mr. Chairman. My reverence for institutions is such that any appearance will be completely avoided, and I would recuse myself whenever necessary. 

Chairman LEAHY. Thank you. 

Mr. Melgren. 

Mr. MELGREN. Certainly, Mr. Chairman. Your opening question 

to this panel went to the trust of the litigants before it, and I believe these issues address not only whether a judge is impartial, 

but whether he may be reasonably viewed to be impartial by those 

before him. I take that very seriously. Certainly you and this Committee have my word that, if I am confirmed, I will take those 

issues seriously and do so to further the trust and integrity of the 

process of those who appear before us. 

Chairman LEAHY. Thank you very much. 

Senator Specter. 

Senator SPECTER. Again, Mr. Chairman, thank you for scheduling and conducting these hearings, and so efficiently as to have 

concluded them before the vote bell has rung. 

Chairman LEAHY. And I want to thank you, of course, and Senators Warner, Brownback, Roberts, Casey and Webb. I know they 

all had long statements praising all of you, and I normally never 

cut off any Senator who wants to give a statement. But I did urge 

them to do that because I was afraid we might not complete these 

hearings. Obviously the record will stay open for any statement 

they want to add, or any further statement you want to add, because we also rushed you, too. 

With that, we’ll stand in recess subject— 

Senator SPECTER. Mr. Chairman, I’d just like unanimous consent 

to put in resumes from each of the nominees. 

Chairman LEAHY. Oh, sure. Of course. They will be put in. And 

if there’s anything further that the staff sees has been left out, resumes or anything else, those will be added to the record. 

With that, we’ll stand in recess, subject to the call of the Chair. 

Thank you all. 

[Whereupon, at 4:11 p.m. the Committee was adjourned.] 

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

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