S. H R G . 1 0 8 – 1 3 5, P . 2

C O N FI R M A TI O N H E A RI N G S O N F E D E R A L

A P P OI N T M E N T S

H E A RI N G S B E F O R E T H E

C O M MI T T E E O N T H E J U DI CI A R Y 

U NI T E D S T A T E S S E N A T E

O N E H U N D R E D EI G H T H C O N G R E S S

FI R S T S E S SI O N

F E B R U A R Y 5, F E B R U A R Y 1 2, M A R C H 1 2, M A R C H 2 7, A N D A P RI L 1, 2 0 0 3

P A R T 2

S e ri al N o. J – 1 0 8 – 1

Pri nt e d f or t h e u s e of t h e C o m mitt e e o n t h e J u dici ar y

( 

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CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

. G O V E R N M E N T P RI N TI N G O F FI C E

W A S HI N G T O N : 

F or s al e b y t h e S u p eri nt e n d e nt of D oc u m e nt s, U. S. G o v er n m e nt Pri nti n g Offic e

I nt er n et: b o o k st or e. g p o. g o v P h o n e: t oll fr e e ( 8 6 6) 5 1 2 – 1 8 0 0; D C ar e a ( 2 0 2) 5 1 2 – 1 8 0 0

F a x: ( 2 0 2) 5 1 2 – 2 2 5 0 M ail: St o p S S O P, W a s hi n gt o n, D C 2 0 4 0 2 – 0 0 0 1

9 0 – 3 0 3 D T P 2 0 0 4

S. H R G . 1 0 8 – 1 3 5, P . 2

C O N FI R M A TI O N H E A RI N G S O N F E D E R A L

A P P OI N T M E N T S

H E A RI N G S B E F O R E T H E

C O M MI T T E E O N T H E J U DI CI A R Y 

U NI T E D S T A T E S S E N A T E

O N E H U N D R E D EI G H T H C O N G R E S S

FI R S T S E S SI O N

F E B R U A R Y 5, F E B R U A R Y 1 2, M A R C H 1 2, M A R C H 2 7, A N D A P RI L 1, 2 0 0 3

P A R T 2

S e ri al N o. J – 1 0 8 – 1

Pri nt e d f or t h e u s e of t h e C o m mitt e e o n t h e J u dici ar y

( 

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(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

MAKAN DELRAHIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

WEDNESDAY, FEBRUARY 5, 2003

STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 201

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 11

prepared statement .......................................................................................... 207

PRESENTERS

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio presenting Gregory L. Frost, Nominee to be District Judge for the Southern District of 

Ohio ....................................................................................................................... 13

Dorgan, Hon. Byron, a U.S. Senator from the State of North Dakota presenting Ralph R. Erickson, Nominee to be District Judge for the District 

of North Dakota ................................................................................................... 9

Ensign, Hon. John, a U.S. Senator from the State of Nevada presenting 

Jay S. Bybee, Nominee to be Circuit Judge for the Ninth Circuit ................... 5

Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland presenting William D. Quarles, Jr., Nominee to be District Judge for the 

District of Maryland ............................................................................................. 7

Pomeroy, Hon. Earl, a Representative in Congress from the State of North 

Dakota presenting Ralph R. Erickson, Nominee to be District Judge for 

the District of North Dakota ............................................................................... 9

Reid, Hon. Harry, a U.S. Senator from the State of Nevada presenting Jay 

S. Bybee, Nominee to be Circuit Judge for the Ninth Circuit .......................... 6

Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland presenting 

William D. Quarles, Jr., Nominee to be District Judge for the District 

of Maryland .......................................................................................................... 4

STATEMENTS OF THE NOMINEES

Bybee, Jay S., Nominee to be Circuit Judge for the Ninth Circuit ..................... 16

Questionnaire .................................................................................................... 23

Erickson, Ralph R., Nominee to be District Judge for the District of North 

Dakota ................................................................................................................... 56

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

Frost, Gregory L., Nominee to be District Judge for the Southern District 

of Ohio ................................................................................................................... 57

Questionnaire .................................................................................................... 130

Quarles, William D., Jr., Nominee to be District Judge for the District of 

Maryland ............................................................................................................... 56

Questionnaire .................................................................................................... 104

QUESTIONS AND ANSWERS

Responses of Jay Bybee to questions submitted by Senator Biden ..................... 157

Responses of Jay Bybee to questions submitted by Senator Edwards ................ 162

Responses of Jay Bybee to questions submitted by Senator Feingold ................ 165

Responses of Jay Bybee to questions submitted by Senator Kennedy ................ 169

Responses of Jay Bybee to questions submitted by Senator Leahy .................... 174

Page

IV

SUBMISSIONS FOR THE RECORD

Blakesley, Christopher L., Professor of Law, University of Nevada Las Vegas, 

Las Vegas, Nevada, letter ................................................................................... 192

Care, Hon. Terry John, State Senator, State of Nevada, Las Vegas, Nevada, 

letter ...................................................................................................................... 195

Conrad, Hon. Kent, a U.S. Senator from the State of North Dakota, letter 

in support of Ralph R. Erickson, Nominee to be District Judge for the 

District of North Dakota ...................................................................................... 196

Garvey, John H., Dean, Boston College Law School, Newton, Massachusetts, 

letter ...................................................................................................................... 197

Gedicks, Frederick Mark, Professor of Law, Brigham Young University Law 

School, Provo, Utah, letter .................................................................................. 198

Green, Stuart P., Professor, University of Glasgow, Glasgow, United Kingdom, letter ............................................................................................................. 200

Johnson, Steve, Professor, E.L. Wiegand Professor of Law, University of Nevada Las Vegas, Las Vegas, Nevada, letter ....................................................... 205

Marshall, William P., Kenan Professor of Law, University of North Carolina, 

Chapel Hill, North Carolina, letter .................................................................... 209

McAffee, Thomas B., Professor of Law, University of Nevada Las Vegas, 

Las Vegas, Nevada, letter ................................................................................... 210

Morgan, Richard J., Dean, William S. Boyd School of Law, University of 

Nevada Las Vegas, Las Vegas, Nevada, letter .................................................. 212

Smith, Rodney K., Herff Chair of Excellence in Law, University of Memphis, 

Memphis, Tennessee, letter ................................................................................. 214

Tobias, Carl, Beckley Singleton Professor of Law, University of Nevada Las 

Vegas, Las Vegas, Nevada, letter ....................................................................... 215

Voinovich, Hon. George V., a U.S. Senator from the State of Ohio, letter 

in support of Gregory L. Frost, Nominee to be District Judge for the 

Southern District of Ohio .................................................................................... 217

Young, Michael K., Dean and Lobingier Professor of Comparative Law and 

Jurisprudence, George Washington University Law School, Washington, 

D.C., letter ............................................................................................................ 219

WEDNESDAY, FEBRUARY 12, 2003

STATEMENTS OF COMMITTEE MEMBERS

Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 258

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

statement .............................................................................................................. 443

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 221

prepared statement .......................................................................................... 446

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 228

PRESENTERS

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee presenting J. Daniel Breen, Nominee to be District Judge for the Western 

District of Tennessee and Thomas A. Varlan, Nominee to be District Judge 

for the Eastern District of Tennessee ................................................................. 227

Allard, Hon. Wayne, a U.S. Senator from the State of Colorado presenting 

Timothy M. Tymkovich, Nominee to be Circuit Judge for the Tenth Circuit . 224

Allen, Hon. George F., a U.S. Senator from the State of Virginia presenting 

Timothy C. Stanceu, Nominee to be Judge of the United States Court 

of International Trade ......................................................................................... 229

Campbell, Hon. Ben Nighthorse, a U.S. Senator from the State of Colorado 

presenting Timonthy M. Tymkovich, Nominee to be Circuit Judge for the 

Tenth Circuit ........................................................................................................ 223

Cannon, Hon. Chris, a Reprsentative in Crongress from the State of Utah 

presenting Marian Blank Horn, Nominee to be Judge of the United States 

Court of Federal Claims ...................................................................................... 233

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

William H. Steele, Nominee to be District Judge for the Southern District 

of Alabama ............................................................................................................ 231

Page

V

Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama presenting William H. Steele, Nominee to be District Judge for the Southern 

District of Alabama .............................................................................................. 226

STATEMENTS OF THE NOMINEES

Breen, J. Daniel, Nominee to be District Judge for the Western District 

of Tennessee ......................................................................................................... 285

Questionnaire .................................................................................................... 294

Horn, Marian Blank, Nominee to be Judge of the U.S. Court of Federal 

Claims ................................................................................................................... 287

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

Stanceu, Timothy C., Nominee to be Judge of the U.S. Court of International 

Trade ..................................................................................................................... 287

Questionnaire .................................................................................................... 359

Steele, William H., Nominee to be District Judge for the Southern District 

of Alabama ............................................................................................................ 285

Questionnaire .................................................................................................... 322

Tymkovich, Timothy M., Nominee to be Circuit Judge for the Tenth Circuit .... 236

Questionnaire .................................................................................................... 264

Varlan, Thomas A., Nominee to be District Judge for the Eastern District 

of Tennessee ......................................................................................................... 286

Questionnaire .................................................................................................... 334

QUESTIONS AND ANSWERS

Responses of Timothy M. Tymkovich to questions submitted by Senator Durbin .......................................................................................................................... 405

Responses of Timothy M. Tymkovich to questions submitted by Senator Feinstein ....................................................................................................................... 409

Responses of Timothy M. Tymkovich to questions submitted by Senator 

Leahy ..................................................................................................................... 418

Responses of William H. Steele to questions submitted by Senator Kennedy ... 430

SUBMISSIONS FOR THE RECORD

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee, prepared statement ...................................................................................................................... 441

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

statement .............................................................................................................. 452

WEDNESDAY, MARCH 12, 2003

STATEMENTS OF COMMITTEE MEMBERS

Page

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia ..................... 455

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 471

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

statement .............................................................................................................. 732

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 740

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

statement .............................................................................................................. 742

PRESENTERS

Allen, Hon. George F., a U.S. Senator from the State of Virginia presenting 

Victor J. Wolski, Nominee to be Judge for the United States Court of 

Federal Claims ..................................................................................................... 462

Bayh, Hon. Evan, a U.S. Senator from the State of Indiana presenting Philip 

P. Simon and Theresa Lazar Springmann, Nominees to be District Judges 

for the Northern District of Indiana ................................................................... 460

Cornyn, Hon. John a U.S. Senator from the State of Texas presenting Ricardo 

H. Hinojosa, Nominee to be United States Sentencing Commissioner ............ 464

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting James V. Selna and Cormac J. Carney, Nominees to be District 

Judges for the Central District of California ..................................................... 457

Page

VI

Hinojosa, Hon. Ruben E., a Representative in Congress from the State of 

Texas presenting Ricardo H. Hinojosa, Nominee to be United States Sentencing Commissioner .......................................................................................... 690

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Ricardo H. Hinojosa, Nominee to be United States Sentencing Commissioner ............................................................................................................... 463

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

Philip P. Simon and Theresa Lazar Springmann, Nominees to be District 

Judges for the Northern District of Indiana ...................................................... 458

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

Victor J. Wolski, Nominee to be Judge for the United States Court of 

Federal Claims ..................................................................................................... 461

STATEMENTS OF THE NOMINEES

Carney, Cormac J., Nominee to be District Judge for the Central District 

of California .......................................................................................................... 465

Questionnaire .................................................................................................... 489

Hinojosa, Ricardo H., Nominee to be U.S. Sentencing Commissioner ................ 691

Questionnaire .................................................................................................... 640

Horowitz, Michael E., Nominee to be U.S. Sentencing Commissioner ................ 692

Questionnaire .................................................................................................... 675

Selna, James V., Nominee to be District Judge for the Central District of 

California .............................................................................................................. 465

Questionnaire .................................................................................................... 502

Simon, Philip P., Nominee to be District Judge for the Northern District 

of Indiana .............................................................................................................. 467

Questionnaire .................................................................................................... 587

Springmann, Theresa Lazar, Nomineee to be District Judge for the Northern 

District of Indiana ................................................................................................ 466

Questionnaire .................................................................................................... 552

Williams, Mary Ellen Coster, Nominee to be Judge for the U.S. Court of 

Federal Claims ..................................................................................................... 467

Questionnaire .................................................................................................... 605

Wolski, Victor J., Nominee to be Judge for the U.S. Court of Federal Claims .. 466

Questionnaire .................................................................................................... 532

QUESTIONS AND ANSWERS

Responses of Cormac Joseph Carney to questions submitted by Senator 

Leahy ..................................................................................................................... 695

Responses of James V. Selna to questions submitted by Senator Leahy ............ 698

Responses of Philip Peter Simon to questions submitted by Senator Leahy ...... 701

Responses of Theresa Lazar Springmann to questions submitted by Senator 

Leahy ..................................................................................................................... 706

Responses of Victor J. Wolski to questions submitted by Senator Durbin ......... 710

Responses of Victor J. Wolski to questions submitted by Senator Schumer ...... 717

Responses of Victor J. Wolski to questions submitted by Senator Kennedy ...... 719

Responses of Victor J. Wolski to questions submitted by Senator Leahy ........... 721

SUBMISSIONS FOR THE RECORD

Alliance for Justice, Nan Aron, President, Washington, D.C., letter .................. 724

American Planning Association, Clean Water Action, Community Rights 

Counsel, Defenders of Wildlife, Earthjustice, Endangered Species Coalition, 

Friends of the Earth, Mineral Policy Center, National Environmental Trust, 

Natural Resources Defense Council, Oceana Sierra Club, Southern Utah 

Wilderness Alliance, joint letter ......................................................................... 726

Boxer, Hon. Barbara, a U.S. Senator from the State of California, statement 

in support of Cormac J. Carney and James V. Selna, Nominees to be 

District Judges for the Central District of California ....................................... 730

THURSDAY, MARCH 27, 2003

STATEMENTS OF COMMITTEE MEMBERS

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 747

Page

VII

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 974

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 757

prepared statement .......................................................................................... 981

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 761

PRESENTERS

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico, presenting Susan G. Braden, Nominee to be Judge for the Court of Federal 

Claims, and Charles F. Lettow, Nominee to be Judge for the Court of 

Federal Claims ..................................................................................................... 750

Cornyn, Hon. John, a U.S. Senator from the State of Texas, presenting 

Edward C. Prado, Nominee to be Circuit Judge for the Fifth Circuit ............. 755

Landrieu, Hon. Mary, a U.S. Senator from the State of Louisiana, presenting 

Dee D. Drell, Nominee to be District Judge for the Western District of 

Louisiana .............................................................................................................. 751

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

J. Leon Holmes, Nominee to be District Court Judge for the Eastern District of Arkansas ................................................................................................... 753

Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland, presenting Richard D. Bennett, Nominee to be District Judge for the District 

of Maryland .......................................................................................................... 749

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

J. Leon Holmes, Nominee to be District Court Judge for the Eastern District of Arkansas ................................................................................................... 755

Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland, presenting 

Richard D. Bennett, Nominee to be District Judge for the District of Maryland ........................................................................................................................ 748

Tauzin, Hon. Billy, a Representatives in Congress from the State of Louisiana, presenting Dee D. Drell, Nominee to be District Judge for the 

Western District of Louisiana ............................................................................. 752

STATEMENTS OF THE NOMINEES

Bennett, Richard D., Nominee to be District Judge for the District of Maryland ........................................................................................................................ 790

Questionnaire .................................................................................................... 798

Braden, Susan G., Nominee to be Judge for the Court of Federal Claims ......... 791

Questionnaire .................................................................................................... 860

Drell, Dee D., Nomineee to be District Judge for the Western District of 

Louisiana .............................................................................................................. 790

Questionnaire .................................................................................................... 818

Holmes, J. Leon, Nominee to be District Court Judge for the Eastern District 

of Arkansas ........................................................................................................... 791

Questionnaire .................................................................................................... 840

Lettow, Charles F., Nominee to be Judge for the Court of Federal Claims ....... 792

Questionnaire .................................................................................................... 902

Prado, Edward C., Nominee to be Circuit Judge for the Fifth Circuit ............... 762

Questionnaire .................................................................................................... 763

QUESTIONS AND ANSWERS

Responses of Susan G. Braden to questions submitted by Senator Leahy ......... 930

Responses of J. Leon Holmes to questions submitted by Senator Durbin .......... 935

Responses of J. Leon Holmes to questions submitted by Senator Leahy ........... 947

Responses of J. Leon Holmes to questions submitted by Senator Schumer ....... 956

Responses of Charles Lettow to questions submitted by Senator Leahy ............ 960

SUBMISSIONS FOR THE RECORD

Allen, Hon. George, a U.S. Senator from the State of Virginia, statement 

in support of Charles Lettow, Nominee to be Judge on the U.S. Court 

of Federal Claims ................................................................................................. 967

Barrera, Roy R., Jr., Attorney, Nicholas and Barrera, P.C., Attorneys and 

Counselors at Law, San Antonio, Texas, letter ................................................. 968

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, statement in 

support of Susan G. Braden, Nominee to be Judge for the Court of Federal 

Claims ................................................................................................................... 969

Page

VIII

Euler, John Lodge, President, U.S. Court of Federal Claims Bar Association, 

Washington, D.C., letter ...................................................................................... 971

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, statement 

in support of Charles Lettow, Nominee to be Judge on the U.S. Court 

of Federal Claims ................................................................................................. 973

Holmes, J. Leon, Letter to Senator Lincoln, dated April 11, 2003 ...................... 976

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas, statement in support Edward C. Prado, Nominee to be Circuit Judge for the 

Fifth Circuit and Charles Lettow, Nominee to be Judge for the U.S. Court 

of Federal Claims ................................................................................................. 979

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

statement on the nomination of J. Leon Holmes ............................................... 985

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

in support of Charles Lettow, Nominee to be Judge for the U.S. Court 

of Federal Claims ................................................................................................. 988

TUESDAY, APRIL 1, 2003

STATEMENTS OF COMMITTEE MEMBERS

Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1000

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 991

prepared statement .......................................................................................... 1313

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1060

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 994

prepared statement .......................................................................................... 1353

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 1068

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 1059

PRESENTERS

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee presenting 

Carolyn B. Kuhl, Nominee to be Circuit Judge for the Ninth Circuit ............. 998

Graham, Hon. Bob, a U.S. Senator from the State of Florida, presenting 

Cecilia M. Altonaga, Nominee to be District Judge for the Southern District 

of Florida ............................................................................................................... 1002

STATEMENTS OF THE NOMINEES

Altonaga, Cecilia M., Nominee to be District Judge for the Southern District 

of Florida ............................................................................................................... 1082

Questionnaire .................................................................................................... 1083

Kuhl, Carolyn B., Nominee to be Circuit Judge for the Ninth Circuit ............... 1004

Questionnaire .................................................................................................... 1005

Minaldi, Patricia A., Nominee to be District Judge for the Western District 

of Louisiana .......................................................................................................... 1106

Questionnaire .................................................................................................... 1107

QUESTIONS AND ANSWERS

Responses of Carolyn Kuhl to questions submitted by Senator Biden ............... 1146

Responses of Carolyn Kuhl to questions submitted by Senator Durbin ............. 1154

Responses of Carolyn Kuhl to questions submitted by Senator Edwards .......... 1160

Responses of Carolyn Kuhl to questions submitted by Senator Feinstein ......... 1168

Responses of Carolyn Kuhl to questions submitted by Senator Grassley ........... 1172

Responses of Carolyn Kuhl to questions submitted by Senator Kennedy .......... 1176

Responses of Carolyn Kuhl to questions submitted by Senator Leahy ............... 1184

Responses of Carolyn Kuhl to questions submitted by Senator Schumer .......... 1198

SUBMISSIONS FOR THE RECORD

Alder, C. Michael, P.C. Law Office, Beverly Hills, California, letter .................. 1206

Alliance for Justice, Washington, D.C., letter ....................................................... 1207

Allred, Kevin S., Los Angeles, California, letter ................................................... 1224

American Association of University Women, Jacqueline E. Woods, Executive 

Director, Washington, D.C., letter ...................................................................... 1226

Antine, Penny, Photographer, North Hollywood, California, letter .................... 1228

Page

IX

Ashmann-Gerst, Judith, Associate Justice, California Court of Appeal, Second 

Appellate District, Los Angeles, California, letter ............................................ 1229

Ball, Sharon A., President, National Women’s Political Caucus of California, 

Walnut Creek, California, letter ......................................................................... 1230

Barzman Norma, Beverly Hills, California, letter ................................................ 1232

Bascue, James A., Presiding Judge, Superior Court, Los Angeles, California, 

letter ...................................................................................................................... 1233

Bitler, Audrea Golding, Santa Monica, California, letter ..................................... 1235

Bliss, Ina Nuell, Attorney, West Hollywood, California, letter ............................ 1236

Boland, Paul, Court of Appeal, State of California, Los Angeles, California, 

letter ...................................................................................................................... 1237

Boxer, Hon. Barbara, a U.S. Senator from the State of California: 

statement .......................................................................................................... 1239

letter, January 31, 2003 ................................................................................... 1241

letter, April 1, 2003 .......................................................................................... 1242

Breiter, Sally, Santa Monica, California, letter .................................................... 1243

Broillet, Bruce A., Green, Broillet, Taylor, Wheeler and Panish LLP, Santa 

Monica, California, letter ..................................................................................... 1244

Brown, Helen, Pasadena, California, letter ........................................................... 1245

California National Organization for Women, Helen Grieco, Executive Director, letter ............................................................................................................... 1246

California Women Lawyers, San Francisco, California: 

letter, dated July 16, 2001 ............................................................................... 1247

letter, dated March 26, 2003 ........................................................................... 1248

Center for Reproductive Law and Policy, Janet Benshoof, President, Rosemary Dempsey, Director, Washington, Office, Washington, D.C., letter ......... 1249

Certor, Marcia S., Santa Monica, California, letter .............................................. 1251

Chavez, Victor E., Judge, Superior Court, Los Angeles, California, letter ......... 1252

Chinese for Affirmative Action, Diane T. Chin, Executive Director, San Francisco, California, letter ......................................................................................... 1253

Colleagues of Judge Carolyn B. Kuhl, Los Angeles, California, joint letter ....... 1255

Committee for Judicial Independence, Susan Lerner, Chair, Los Angeles, 

California, letter ................................................................................................... 1259

Community Rights Counsel, Defenders of Wildlife, Earthjustice, Endangered 

Species Coalition, Friends of the Earth, Mineral Policy Center, Oceana, 

Physicians for Social Responsibility, joint letter ............................................... 1262

Costales, Manuel S., Orange, California, letter .................................................... 1266

Croskey, H. Walter, Court of Appeal, Second Appellate District, Los Angeles, 

California: 

letter, dated July 20, 2001 ............................................................................... 1267

letter, dated March 26, 2003 ........................................................................... 1268

Curry, Daniel A., California Court of Appeal, Second Appellate District, Los 

Angeles, California, letter .................................................................................... 1270

Davis, Eileen, Los Angeles, California, letter ........................................................ 1271

Dawson James R., and Wayne P. Flodman, Torrance, California, joint letter ... 1272

Dell Angelo, Robert L., M.D., Los Angeles, California, letter .............................. 1273

Dworkin, Alice, Glendale, California, letter .......................................................... 1275

Dworsky, Marc T.G., Los Angeles, California, letter ............................................ 1276

Eaton, Daniel E., Esq., Seltzer, Caplan, McMahon, Vitek, San Diego, California, letter .......................................................................................................... 1278

Egenberger, Marghatta J.K., Thousand Oaks, California, letter ........................ 1280

Egerton, Anne H., Los Angeles, California, letter ................................................ 1281

Ehlmann, Grace, North Hollywood, California, letter .......................................... 1284

Epstein, Norman L., California Court of Appeal, Second Appellate District, 

Los Angeles, California, letter ............................................................................ 1285

Escutia, Hon. Martha M., California State Senator, Thirtieth Senatorial District, Sacramento, California, letter ................................................................... 1286

Field, Sheila and Arlen Field, Santa Monica, California, letter .......................... 1288

Fields, Michael S., President, Consumer Attorneys Association of Los Angeles, 

Artesia, California, letter .................................................................................... 1289

Fox, Daniel N., Attorney at Law, Pomona, California, letter .............................. 1290

Fox, Jean, New York, New York, letter ................................................................. 1291

Friedman, Terry, Superior Court, Juvenile Division, Monterey Park, California, letter .......................................................................................................... 1292

Gagliardi, Marina, Psychotherapist, Los Angeles, California, letter ................... 1294

Gans, Jennifer Cross, letter .................................................................................... 1295

Gartenberg, Allan, Culver City, California, letter ................................................ 1296

Page

X

Gault, Joy A., Hawthorne, California, letter ......................................................... 1297

Gavurin, Sylvia, Culver City, California, letter .................................................... 1298

Gender Justice Action Group, Pam Godbout, Women’s Coordinator, Park Forest, Illinois, letter ................................................................................................. 1299

Girardi, Thomas V., Girardi, Keese, Los Angeles, California, letter ................... 1301

Glaser, Patricia L., Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, 

LLP, Los Angeles, California, letter ................................................................... 1302

Goodman, Carolina, Sherman Oaks, California, letter ......................................... 1303

Goodman, Jan, Lawyer, Santa Monica, California, letter .................................... 1304

Grimes, Elizabeth A., Judge, Superior Court, Los Angeles County, Los Angeles, California, letter and attachment ................................................................ 1305

Han, Yong, San Francisco, California, letter ......................................................... 1311

Hastings, J. Gary, California Court of Appeal, Second Appellate District, 

Los Angeles, California, letter ............................................................................ 1312

Henry, Agnes F., Agoura Hills, California, letter ................................................. 1317

Hill, Alice C., Supervising Judge, Superior Court, Los Angeles County, San 

Fernando, California, letter ................................................................................. 1318

Hilton, Linda Ann Wheeler, letter ......................................................................... 1320

Hirsch, Jane, Pacific Palisades, California, letter ................................................. 1321

Hull, Harry E., Jr., Associate Justice, California Court of Appeal, Third 

Appellate District, Sacramento, California, letter ............................................. 1322

Hunter, Nicole, San Francisco, California, letter .................................................. 1324

Japanese American Citizens League, Beth A. Au, Regional Director, San 

Francisco, California, letter ................................................................................. 1325

Judelson, Debra R., M.D., Beverly Hills, California, letter .................................. 1326

Justice for All Project, Los Angeles, California, letter ......................................... 1327

Kanne, Stephen L., and Claudia A., Los Angeles, California, letter ................... 1329

Karpman, Janice, Los Angeles, California, letter ................................................. 1330

Katzman, Eleanor, letter dated June 26, 2001 ..................................................... 1331

Kelly, Colleen O., Belmont, California, letter ........................................................ 1332

Kightlinger, Pamela, North Hollywood, California, letter .................................... 1333

Klein, Joan Dempsey, Presiding Justice, California Court of Appeal, Second 

Appellate Disrict, Los Angeles, California: 

letter, dated April 12, 2001 .............................................................................. 1334

letter, dated April 25, 2001 .............................................................................. 1336

Kolber, Richard, Justice For All Project, letter ..................................................... 1338

Kolkey, Daniel M., Associate Justice, California Court of Appeal, Third Appellate District, Sacrmento, California, letter ........................................................ 1339

Kouzel, Ilene, El Cajon, California, letter ............................................................. 1341

Krauss, Irving, Secretary, Alpin County Democratice Central Committee, 

Markleeville, California, letter ............................................................................ 1342

Kuehl, Sheila James, California State Senator, Twenty-third Senatorial District, Chair, Natural Resources and Wildlife Committee, Sacramento, California, letter .......................................................................................................... 1343

Laemig, Ardi S., letter, dated July 21, 2001 ......................................................... 1344

Landrieu, Hon. Mary L., a U.S. Senator from the State of Louisiana, statement in support of Patricia H. Minaldi, Nominee to be District Judge 

for the Western District of Louisiana ................................................................. 1345

Laskin, Lillian, Los Angeles, California, letter ..................................................... 1347

Laval, Barbara, letter .............................................................................................. 1349

Lawal, Nima T., letter ............................................................................................. 1350

Leadership Conference on Civil Rights, Wade Henderson and Dr. Dorothy 

I. Height, Washington, D.C., letter ..................................................................... 1351

Legal academics, joint letter, dated March 12, 2003 ............................................ 1357

Levich, Stella, Culver City, California, letter ........................................................ 1362

Levin, Bonnie Aaron, Los Angeles, California, letter ........................................... 1363

Libman, Joan, San Francisco, California, letter ................................................... 1364

Los Angeles County Bar Association, Miriam Aroni Krinsky, President, Los 

Angeles, California, letter and attachment ........................................................ 1365

Ludwig, Miriam, Santa Monica, California, letter ................................................ 1368

Luster, Laura, Oakland, California, letter ............................................................ 1369

Mackey, Malcolm H., Superior Court, Los Angeles County, Los Angeles, California, letter .......................................................................................................... 1370

Mahaffey, Lesley, Fullerton, California, letter ...................................................... 1371

Maloney, Ken and Julie Ford-Maloney, Huntington Beach, California, letter ... 1372

Manfra, Lorie, Santa Ana, California, letter ......................................................... 1373

Manpearl, Jerry, Mandel & Manpearl, Los Angeles, California, letter .............. 1374

Page

XI

Marques, Magaly, Executive Director, Pacific Institute for Women’s Health, 

Los Angeles, California, letter ............................................................................ 1375

Martinez, Vilma S., Los Angeles, California, letter .............................................. 1376

McOwen, Carol M., Pasadena, California, letter .................................................. 1378

Members of the Judiciary Committee of the California Assembly, Sacramento, 

California, joint letter .......................................................................................... 1379

Messner, Linda, Culver City, California, letter .................................................... 1381

Miem, Dolores, Thousand Oaks, California, letter ............................................... 1382

Minoo, Parviz and Linda Minoo, Agoura Hills, California, letter ....................... 1383

Moreno, Paul, South Coast Audubon, Mission Viejo, California, letter .............. 1384

Mosk, Richard M.: 

Attorney at Law, Los Angeles, California, letter ........................................... 1385

Associate Justice, California Court of Appeal, Second Appellate District, 

Los Angeles, California, letter ..................................................................... 1386

National Association for the Advancement of Colored People, Hilary O. 

Shelton, Director, Washington Bureau, Washington, D.C., letter and attachment ...................................................................................................................... 1387

National Family Planning and Reproductive Health Association, Judith M. 

DeSarno, President/CEO, Washington, D.C., letter .......................................... 1390

National Women’s Law Center, statement ............................................................ 1391

Natural Resources Defense Council, John Adams, President, letter .................. 1394

Nelson, Gretchen M., Attorney at Law, Los Angeles, California: 

letter, dated May 17, 2001 ............................................................................... 1396

letter, dated February 14, 2003 ....................................................................... 1398

Nelson, Hon. Bill, a U.S. Senator from the State of Florida, statement in 

support of Cecilia Altonaga, Nominee to be District Judge for the Southern 

District of Florida ................................................................................................. 1401

Nieman, Nancy, Ph.D., Southern Director, National Women’s Political Caucus 

of California, letter ............................................................................................... 1402

Okuneff, Peggy, Culver City, California, letter ..................................................... 1403

Olson, Ronald L., Munger, Tolles & Olson LLP, Los Angeles, California, 

letter ...................................................................................................................... 1404

Orfield, Michael B., Judge, California Superior Court, San Diego, California, 

letter ...................................................................................................................... 1406

Pacific Institute for Women’s Health, Lovisa Stannow, Executive Director, 

Los Angeles, California, letter ............................................................................ 1408

Palafoutas, Donna, Santa Ana, California, letter ................................................. 1410

Perluss, Dennis M., California Court of Appeal, Second Appellate District, 

Los Angeles, California, letter ............................................................................ 1411

Petersen, Ann L., Arcadia, California, letter ......................................................... 1412

Planned Parenthood Federation of America, Inc., Washington, D.C., statement ...................................................................................................................... 1413

Pollak, Stuart, Associate Justice, California Court of Appeal, First Appellate 

District, San Francisco, California, letter .......................................................... 1415

Porter, Ann, Los Angeles, California, letter .......................................................... 1416

Project Freedom of Religion, William R. Lakin, Executive Committee, letter ... 1417

Renbarger, Nancy, Agoura Hills, California, letter .............................................. 1418

Reynolds, Patrick, President, The Foundation for a Smokefree America, Los 

Angeles, California, letter .................................................................................... 1419

Reynolds, Susan F., M.D., Ph.D., Managing Partner, Susan Reynolds and 

Associates, Santa Monica, California, letter ...................................................... 1420

Rivera, Phoebe, Oak Park, California, letter ......................................................... 1421

Romero, Enrique, Judge (Retired), Pasadena, California, letter ......................... 1422

Rowe, Thomas D., Jr., Duke University School of Law, Durham, North Carolina, letter ............................................................................................................. 1423

Rule, Wilma, Adjunct Professor, University of Nevada, Department of Political Science, Reno, Nevada, letter ....................................................................... 1424

Sallus, Gerald M., Esq., Attorney at Law, Culver City, California, letter .......... 1425

Salo, Mark, letter, dated Feb. 6, 2003 ................................................................... 1426

Sanchez-Scott, Azucena, letter ............................................................................... 1427

Schorr, Joyce, Sherman Oaks, California, letter ................................................... 1428

Service Employees Internation Union, AFL-CIO, Anna Burger, International 

Secretary-Treasurer, Washington, D.C., letter and attachment ...................... 1429

Sheehan, Katherine C., Professor of Law, Southwestern University School 

of Law, Los Angeles, California, letter ............................................................... 1434

Sloan, Donald E., Lawrence, Kansas, letter .......................................................... 1435

Smith, Christopher Corey, Culver City, California, letter ................................... 1437

Page

XII

Spindel, Blanche, Los Angeles, California, letter .................................................. 1438

Swarez, Sheila, Newbury Park, California, letter ................................................. 1439

Taxpayers Against Fraud, James W. Moorman, President, Washington, D.C.: 

letter, dated July 17, 2001 ............................................................................... 1440

letter, dated April 3, 2003 and attachment .................................................... 1441

Taylor, Lynn O’Malley, Presiding Judge, San Francisco, California, letter ....... 1444

Terrell, Leo James, Attorney at Law, Beverly Hills, California, letter ............... 1445

Travis, Cynthia, letter ............................................................................................. 1447

Turner, Paul, Presiding Justice, California Court of Appeal, Second Appellate 

District, Los Angeles, California, letter .............................................................. 1448

Walker, Cheryl, Venice, California, letter ............................................................. 1451

Wallace, Doris, Rancho Cucamonga, California, letter ......................................... 1452

Ward, James D., Associate Justice, California Court of Appeal, Fourth District, Riverside, California, letter ........................................................................ 1453

Wells, Patricia, Fresno, California, letter .............................................................. 1455

Williams, Thelma, Thousand Oaks, California, letter .......................................... 1456

Williamson, Jan, Venice, California, letter ............................................................ 1457

Women’s and reproductive rights organizations, Los Angeles, California, joint 

letter, dated March 31, 2003 ............................................................................... 1458

Zandecki, Jolanta, Berkeley, California, letter ..................................................... 1461

ALPHABETICAL LIST OF NOMINEES

Altonaga, Cecilia M., Nominee to be District Judge for the Southern District 

of Florida ............................................................................................................... 1082

Bennett, Richard D., Nominee to be District Judge for the District of Maryland ........................................................................................................................ 790

Braden, Susan G., Nominee to be Judge for the Court of Federal Claims ......... 791

Breen, J. Daniel, Nominee to be District Judge for the Western District 

of Tennessee ......................................................................................................... 285

Bybee, Jay S., Nominee to be Circuit Judge for the Ninth Circuit ..................... 16

Carney, Cormac J., Nominee to be District Judge for the Central District 

of California .......................................................................................................... 465

Drell, Dee D., Nomineee to be District Judge for the Western District of 

Louisiana .............................................................................................................. 790

Erickson, Ralph R., Nominee to be District Judge for the District of North 

Dakota ................................................................................................................... 56

Frost, Gregory L., Nominee to be District Judge for the Southern District 

of Ohio ................................................................................................................... 57

Hinojosa, Ricardo H., Nominee to be U.S. Sentencing Commissioner ................ 691

Holmes, J. Leon, Nominee to be District Court Judge for the Eastern District 

of Arkansas ........................................................................................................... 791

Horn, Marian Blank, Nominee to be Judge of the U.S. Court of Federal 

Claims ................................................................................................................... 287

Horowitz, Michael E., Nominee to be U.S. Sentencing Commissioner ................ 692

Kuhl, Carolyn B., Nominee to be Circuit Judge for the Ninth Circuit ............... 1004

Lettow, Charles F., Nominee to be Judge for the Court of Federal Claims ....... 792

Minaldi, Patricia A., Nominee to be District Judge for the Western District 

of Louisiana .......................................................................................................... 1106

Prado, Edward C., Nominee to be Circuit Judge for the Fifth Circuit ............... 762

Quarles, William D., Jr., Nominee to be District Judge for the District of 

Maryland ............................................................................................................... 56

Selna, James V., Nominee to be District Judge for the Central District of 

California .............................................................................................................. 465

Simon, Philip P., Nominee to be District Judge for the Northern District 

of Indiana .............................................................................................................. 467

Springmann, Theresa Lazar, Nomineee to be District Judge for the Northern 

District of Indiana ................................................................................................ 466

Stanceu, Timothy C., Nominee to be Judge of the U.S. Court of International 

Trade ..................................................................................................................... 287

Steele, William H., Nominee to be District Judge for the Southern District 

of Alabama ............................................................................................................ 285

Tymkovich, Timothy M., Nominee to be Circuit Judge for the Tenth Circuit .... 236

Varlan, Thomas A., Nominee to be District Judge for the Eastern District 

of Tennessee ......................................................................................................... 286

Williams, Mary Ellen Coster, Nominee to be Judge for the U.S. Court of 

Federal Claims ..................................................................................................... 467

Wolski, Victor J., Nominee to be Judge for the U.S. Court of Federal Claims .. 466

(1)

NOMINATIONS OF JAY S. BYBEE, NOMINEE 

TO BE CIRCUIT JUDGE FOR THE NINTH 

CIRCUIT; RALPH R. ERICKSON, NOMINEE 

TO BE DISTRICT JUDGE FOR THE DISTRICT 

OF NORTH DAKOTA; WILLIAM D. QUARLES, 

JR., NOMINEE TO BE DISTRICT JUDGE FOR 

THE DISTRICT OF MARYLAND; AND GREGORY L. FROST, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

OHIO 

WEDNESDAY, FEBRUARY 5, 2003

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 9:34 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the committee, presiding. 

Present: Senators Hatch, Kyl, DeWine, Graham, Craig, Leahy, 

and Kennedy. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Okay, we are ready to go. Senator Leahy will 

be here shortly and we will begin. 

I am pleased to welcome to the Committee this morning four excellent nominees for the Federal bench. All of you are to be commended for your impressive qualifications and accomplishments, 

and I think congratulated without question for your nominations. 

Our first panel today will feature an outstanding Circuit Court 

nominee, Jay S. Bybee, who has been nominated to the Ninth Circuit Court of Appeals. Mr. Bybee is no stranger to this Committee 

or to Committee hearings, having appeared most recently before 

the Committee in October of 2001. We will also hear from three 

District Court nominees, Judge Ralph R. Erickson for the District 

of North Dakota; Judge William D. Quarles, Jr., for the District of 

Maryland; and Judge Gregory L. Frost for the Southern District of 

Ohio. And of course I would also like to express appreciation for 

the members who have taken time to come and present their views 

on the qualifications of our witnesses today. We will hear from 

them in a moment. 

2

I am especially honored to have Mr. Jay Bybee here today, who 

has been nominated by President Bush to serve on the Court of Appeals for the Ninth Circuit. Professor Bybee comes to us with a 

sterling resume and a record of distinguished public service. 

Professor Bybee is currently on leave from UNLV’s William S. 

Boyd School of Law, where he has served as a professor since the 

law school’s founding in 1999. He has served as an Assistant Attorney General for the Department of Justice’s Office of Legal Counsel, the OLC, since October 2001. Notably this is a post formerly 

held by two current Supreme Court Justices. As head of the Office 

of Legal Counsel, Mr. Bybee assists the Attorney General in his 

function there as legal advisor to the President and all Executive 

Branch agencies. The office is also responsible for providing legal 

advice to the Executive Branch on all constitutional questions and 

reviewing pending legislation for constitutionality. I am sure Professor Bybee can attest that his work has been more than challenging, especially since he joined the OLC soon after the events 

of September 11th, but without question our Nation is lucky to 

have him. 

Professor Bybee is a Californian by birth, but he made the wise 

choice of attending Utah’s own Brigham Young University, where 

he earned a bachelor’s degree in economics, magna cum laude, and 

a law degree cum laude. While in law school he was a member of 

the BYU Law Review. 

Following graduation, Mr. Bybee served as a law clerk to Judge 

Donald Russell of the Fourth Circuit Court of Appeals before joining the firm of Sidley & Austin. In 1984 he accepted a position with 

the Department of Justice, first joining the Office of Legal Policy, 

and then working with the appellate staff of the Civil Division. In 

that capacity Mr. Bybee prepared briefs and presented oral arguments in the U.S. Courts of Appeals. From 1989 to 1991 Mr. Bybee 

served as Associate Counsel to President George H.W. Bush. 

Professor Bybee is a leading scholar in the areas of constitutional 

and administrative law. Before he joined the law faculty at UNLV 

he established his scholarly credentials at the Paul M. Hebert Law 

Center at Louisiana State University, where he taught from 1991 

to 1998. His colleagues have described Professor Bybee as a first 

rate teacher, a careful and balanced scholar, and a hard-working 

and open-minded individual with the type of broad legal experience 

the Federal Bench needs. 

The recommendations of two individuals in particular deserve 

special note. Bill Marshall, a professor of law at the University of 

North Carolina and a former Associate White House Counsel under 

President Clinton, who also participated in the judicial selection 

process for Clinton Administration appointments while at OLP, 

said of Mr. Bybee: 

‘‘The combination of his analytic skills along with his personal 

commitment to fairness and dispassion lead me to conclude that he 

will serve in the best traditions of the Federal Judiciary. He understands the rule of law and he will follow it completely.’’ 

Stuart Green, a law professor at Louisiana State University, who 

describes himself as a ‘‘liberal Democrat and active member of the 

ACLU’’ has written the committee: 

3

‘‘I have always found Jay Bybee to be an extremely fair-minded 

and thoughtful person. Indeed, Jay truly has what can best be described as a ‘judicious’ temperament, and I would fully expect him 

to be a force for reasonableness and conciliation on a court that has 

been known for its fractiousness.’’ 

We hear a great deal from some Committee members about the 

need for ‘‘balance’’ on the Federal Courts. Here we have a self-described liberal Democrat who testifies that Professor Bybee would 

bring some balance to the Ninth Circuit. I would welcome some 

balance on a court on which 14 of the 24 active judges, including 

14 of the last 15 confirmed, were appointed by President Clinton. 

A court which is seldom out of the news and often seems to court 

controversy with its decisions needs some leavening once in a 

while. 

We are all familiar with the Ninth Circuit’s Pledge of Allegiance 

ruling this past summer, and the Ninth Circuit’s high reversal rate 

by the Supreme Court is well documented, but less known is the 

Ninth Circuit’s propensity for reversing death sentences, some 

judges voting to do so almost as a matter of course. No doubt the 

Ninth Circuit has some of the Nation’s most intelligent judges, but 

some just seem to not be able to follow the law. Just this term the 

U.S. Supreme Court has summarily reversed the Ninth Circuit 

three times in a 1 day, and vacated an opinion 9–0. 

With two judicial emergencies in the Ninth Circuit we need 

judges who are committed to applying and upholding the law. I 

firmly believe Professor Bybee represents this type of judge. I am 

very much looking forward to hearing from Professor Bybee today, 

and to working with this Committee to obtain the committee’s positive recommendation to the full Senate, and to the full Senate’s 

confirmation. He will be a terrific judge, I think by any measure. 

In addition to the nomination of Professor Jay S. Bybee to the 

U.S. Court of Appeals for the Ninth Circuit, we have the privilege 

of considering three District Court nominees. Our nominee to the 

U.S. District Court for the District of North Dakota, Judge Ralph 

Erickson, has carved out a stellar legal career on both sides of the 

bench. Judge Erickson served as a private practice litigator for 

more than a decade before being elevated to the State Court Bench 

in North Dakota 8 years ago. According to a secret poll conducted 

by the Forum, Fargo’s daily newspaper, in 2002, Judge Erickson 

was selected as ‘‘Best Judge in Cass and Clay Counties’’ by a survey of over 300 lawyers in those counties. He also has experience 

as a city prosecutor and attorney in private practice. 

Judge William Quarles, our nominee to the U.S. District Court 

for the District of Maryland, has an impressive record in both the 

private and public sectors. Upon graduating from Catholic University Law School, Judge Quarles clerked for Hon. Joseph C. Howard 

of the U.S. District Court for the District of Maryland. In addition 

to private practice experience in complex commercial, corporate, 

antitrust and products liability litigation, Judge Quarles has served 

as an Assistant U.S. Attorney, primarily focusing on organized 

crime prosecutions. Judge Quarles is currently an Associate Circuit 

Judge for the Circuit Court of Baltimore City, where he has handled more than 4,000 criminal cases and tried more than 150 jury 

trials. That is a great record. 

4

Judge Gregory Frost, our nominee for the Southern District of 

Ohio, has an impressive background in the private and public sectors. Upon graduation from Ohio Northern University Law School 

in 1974, Judge Frost served as an assistant Licking County prosecuting attorney. In this capacity he handled a variety of cases including juvenile and felony prosecutions. From 1974 to 1983 Judge 

Frost was a partner at Schaller, Frost, Hostetter & Campbell, 

where his practice consisted of civil litigation including domestic relations law, oil and gas law, estate planning and personal injury 

law. From 1983 to 1990 he served as a judge for the Licking County Municipal Court, and since 1990 he has served as a judge for 

the Licking County Common Pleas Court. 

I am confident that all three of these fine nominees have the intellect, experience and temperament necessary to serve with distinction on the Federal Courts. I look forward to hearing from them 

today and to working with my colleagues to bring their nominations to a vote very soon. 

So we welcome all of you here this morning. With the understanding that as soon as Senator Leahy arrives, we will give him 

the opportunity of giving his opening remarks. 

I think what we will do is begin with you, Senator Sarbanes, and 

we will go across the table by seniority if I can. I am delighted to 

have you Senators here and Congress people here. It means a lot 

to us, and your recommendations are important to us. 

PRESENTATION OF WILLIAM D. QUARLES, JR., NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND BY 

HON. PAUL SARBANES, A U.S. SENATOR FROM THE STATE OF 

MARYLAND 

Senator SARBANES. Thank you very much, Mr. Chairman and 

Members of the Committee. 

I am very pleased to appear before you this morning to commend 

to you the nomination of William Quarles to become a U.S. District 

Judge for the District of Maryland. 

You have already made comments about Judge Quarles, and I 

agree with those, Mr. Chairman. Judge Quarles is a native of Baltimore, a graduate of Catholic University Law School here in Washington. Following graduation he clerked for 2 years for Judge Joseph C. Howard, who I had the honor and privilege of recommending to this Committee many, many years ago. Judge Howard 

was the first African-American Judge to sit on the Federal District 

Court in our State. 

Following his 2-year clerkship with Judge Howard, Judge 

Quarles practiced shortly with a firm here in the District of Columbia, with Finley, Kumble, Wagner, and then went into the U.S. Attorney’s Office in Maryland and served 4 years as an Assistant 

U.S. Attorney. He then joined the very distinguished law firm of 

Venable, Baetjer and Howard, one of our State’s leading firms, and 

practiced there for 10 years. 

Both the experience in the U.S. Attorney’s Office, trying complex 

criminal matters involving organized crime, and his very complex 

civil legal practice at Venable, Baetjer and Howard, obviously gave 

him I think a very important basis with which to handle trial matters. He then went on the Circuit Court in Baltimore City, which 

5

is a trial court of general jurisdiction in our State, and he has been 

on that trial court since 1996. So I think he brings to this nomination to the Federal Bench the kind of experience in practice, both 

public practice in the U.S. Attorney’s Office, private practice in a 

leading law firm, and then actually sitting on the State Bench himself now for the past 6–1/2 years. It would obviously stand him in 

good stead to be a Federal District Judge. 

We are very proud of our Federal Bench in Maryland. Maryland 

Senators over the years, both Democratic and Republican, have 

worked assiduously to sustain the high quality of our Federal 

Bench. We have been fortunate that we have been able to appear 

before this Committee consistently in support of the nominees, and 

as a consequence I think our bench has gained a reputation as one 

of the finest District Court benches in the country. I believe that 

Judge Quarles will sustain and add to that reputation, and I am 

very pleased to come before the Committee this morning and recommend him to you. I very much hope that in the near future you 

will report him favorably to the floor of the United States Senate. 

Chairman HATCH. Well, thank you so much, Senator Sarbanes. 

That is high praise indeed and we appreciate you being here. 

I will turn to you, Senator Ensign, and then we will turn to Congressman Pomeroy. 

PRESENATION OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT BY HON. JOHN ENSIGN, A 

U.S. SENATOR FROM THE STATE OF NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman. I appreciate you 

having this hearing today. I appreciate you bringing nominee 

Bybee before the Committee today. 

I am here representing myself to recommend Jay Bybee, but also 

Senator Reid. Senator Reid is very strongly behind Jay Bybee as 

well. Both of us have gotten to know Jay on a personal level as 

well as on a professional level over the least several years. 

I would ask that my full statement be made part of the record 

with your consent. 

Chairman HATCH. Without objection. 

Senator ENSIGN. Mr. Chairman, just a few thoughts and a few 

observations on Jay Bybee. First of all, the UNLV Boyd School of 

Law, which is a new law school, looks like it is going to get its full 

accreditation, one of the fastest law schools in history to do that. 

Jay Bybee was an outstanding member of the faculty at the Boyd 

School of Law. 

It is interesting to note, when you talked about the balance needed on the Ninth Circuit, Jay Bybee provided a lot of balance at the 

Boyd School of Law, and talking to some of the people there that 

were more of the liberal professors at the Boyd School of Law, Jay 

Bybee was well thought of by conservatives in the legal community 

as well as liberals in the legal community in the State of Nevada 

I think that the job that he has done since he has been at Justice 

has shown the type of temperament and the type of thoughtful person that he is going to be on the Ninth Circuit. For those of us who 

live in the West, we have not necessarily been pleased by a lot of 

the actions that the Ninth Circuit has brought forward, and I think 

that Jay Bybee is going to be an intellectual giant on that court. 

6

And I do not say that lightly. I think that viewing and reading 

some of his statements and some of his publications that he has 

put out, you can tell how thoughtful he is, how he respects the law, 

and how he respects equal justice under the law. 

So I am here to offer my strongest recommendation to this committee, that you favorably move Jay Bybee to the floor of the Senate, where hopefully we can approve him as quickly as possible. 

I thank you, Mr. Chairman. 

Chairman HATCH. Thank you so much, Senator Ensign. We appreciate that. 

Because of his heavy duties, we will turn to Senator Reid at this 

time, so that he can get back to the floor. 

PRESENTATION OF JAY S. BYBEE, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT BY HON. HARRY REID, A 

U.S. SENATOR FROM THE STATE OF NEVADA 

Senator REID. Thank you very much, Mr. Chairman. These hearings are always very educational, not only for the people on the 

panel and of course the people that are appearing before the panel, 

but for Senators, because, John, I never realized we had a liberal 

member of the faculty at UNLV Law School. 

[Laughter.] 

Chairman HATCH. It would be a very rare faculty if you did not. 

[Laughter.] 

Senator REID. Mr. Chairman, Members of the Committee, I am 

very happy to be here to commend my friend, Jay Bybee, to be a 

member of the United States Court of Appeals for the Ninth Circuit. I am pleased that Mr. Bybee will be given an opportunity to 

discuss his excellent legal qualifications, judicial philosophy and 

other issues with the members of this committee. 

The committee’s work is vitally important to gathering a record 

upon which each and every Senator may rely on discharging the 

constitutional duty we have to consent to the President’s judicial 

nominees. 

Chairman Leahy is not here, but I wanted to commend him for 

his hard work during his 15-month tenure as Chairman of the committee, where he worked to approve 100 judges that were sent forward by President Bush. During Senator Leahy’s chairmanship 

these nominees moved in the order the President sent them to the 

Senate. Time ran out in the 107th Congress without any action on 

Mr. Bybee’s nomination. Under Chairman Hatch’s leadership today 

the Committee will her that Mr. Bybee has received a well-qualified rating from the American Bar Association. His legal skills certainly merit this distinction. 

Mr. Bybee served as legal advisor in the first Bush Administration, and has helped to each a generation of new lawyers as a 

former professor at the University of Nevada at Las Vegas Boyd 

School of Law. I was pleased to introduce with my friend, Senator 

Ensign, Mr. Bybee to the Committee just a short time ago for the 

position he now holds as Assistant Attorney General of the Office 

of Legal Counsel at the Department of Justice. 

And something that is not in my prepared remarks but I think 

will, in my estimation, is more important than all these legal qualifications that this fine man has, and that is what a fine family man 

7

he is. He has a wonderful family. I had the opportunity on a flight 

from Florida recently to spend some time with his wife. She is a 

lovely woman. She has a great understanding of what his job is. 

So I, without any qualification, ask this Committee to approve as 

quickly as possible Jay Bybee to be a member of the Ninth Circuit 

Court of Appeals. 

Chairman HATCH. Thank you, Senator Reid. You and Senator 

Ensign working together, I think make a tremendous difference 

with regard to an nominees that you bring forward, so we are very 

grateful to have both of you here, and grateful to have your testimony here. 

Senator REID. Could we be excused, Mr. Chairman? 

Chairman HATCH. Sure can. 

Congressman Pomeroy, if you can just wait, I think I had better 

finish with Judge Quarles. 

Senator MIKULSKI. Mr. Pomeroy, are you okay? Do you have a 

vote? 

Mr. POMEROY. No, I am good. I am fine, Senator. Thank you. 

Chairman HATCH. If you do, let me know, because I will interrupt anything. 

Mr. POMEROY. I am just fine. 

Chairman HATCH. If we can go to Senator Mikulski, then we will 

do that. 

PRESENTATION OF WILLIAM D. QUARLES, JR., NOMINEE TO 

BE DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND BY 

HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE 

STATE OF MARYLAND 

Senator MIKULSKI. Good morning, Mr. Chairman, and colleagues 

on the Judiciary Committee. 

I know that the advise and consent function that we perform in 

terms of the Judicial Branch is one of our highest and most important duties. When I always look at who should be a judge, I look 

at three criteria, their competence that they bring, their sense of 

integrity as individuals, and also their dedication to protecting core 

constitutional values and guarantees. 

I come here today with real enthusiasm to recommend that this 

Committee approve the nomination for William Quarles to become 

a member of the Federal Bench. I wanted to nominate him 10 

years ago. The Maryland system put forth his when—if you might, 

Bush I or Bush the Elder, or Bush 41, however we do it—Mr. 

Quarles was then up for nomination. Well, time ran out, politics 

changed. So here we are one decade later, and I come with enthusiasm to do this. We have a tradition in Maryland that regardless 

of who is the party in power, we really put forward the best of the 

best to be our judges. 

Mr. Quarles brings great intellect and great integrity. He was 

born in Baltimore, attended Baltimore area schools, City College, 

Catholic University. He comes from a really wonderful family. His 

father was a stevedore and dock worker. He learned the values of 

hard work and the importance of education. His sister is a minister. His daughter, Eloise, is a successful securities lawyer. His 

dear wife, Mary Ann, works for the District Court of Maryland as 

a pretrial service specialist. So you can see what his roots are. 

8

Having learned hard work and excellent education, he went on 

then to be a law clerk for Judge Joe Howard, who was a civil rights 

activist and was the first African-American appointed to the Federal Bench in Baltimore. But he comes not only with a background 

that is personal qualities and values; he comes with a great legal 

career. 

Early on he worked as an Assistant U.S. Attorney in Baltimore, 

handling complex and civil litigation. He coordinated the President’s Task Force on Drug Enforcement, got a lot of awards for 

that. He left that and then went to one of our most prestigious 

white-shoe law firms, Venable, Baetjer and Howard in Baltimore. 

You might recall, Mr. Chairman, that is the law firm that gave us 

Ben Civiletti, who was an Attorney General. At Venable he handled civil litigation, antitrust and appeals. He was promoted to 

manager of the D.C. litigation practice. 

Then in 1996 he was placed on the Maryland Circuit Court in 

Baltimore City. This is Maryland’s highest trial court, where he 

has now served with distinction, presiding over major civil and 

very serious and violent criminal matters. While on the bench he 

chaired the Sentencing Review Panel for the Eighth Circuit, coordinated the electronic filing project. He brings technology to the 

bench. 

And also, how do his peers feel about him? Well, not only is he 

a member of all relevant bars in Maryland, but the American Bar 

Association, with the majority of evaluation, gives him ‘‘very qualified.’’ He has written in Maryland Bar, Inside Litigation. He is active in his church and community and gets awards from everything 

from the Boy Scouts to the DEA. 

So as you can see, I think we have really a wonderful and distinguished person to present to you from Maryland. I do it without 

reservation and with great enthusiasm, and I hope the Committee 

puts him forth to our colleagues. I think you will be proud as Senator Sarbanes and I are of Judge Quarles. 

Chairman HATCH. Well, thank you, Senator Mikulski. Your recommendation means a lot to the committee, along with Senator 

Sarbanes, and we really appreciate you taking time to be with us 

today. 

And I think, Judge Quarles, you have got some pretty heavy firepower behind you. And that is good. 

Senator MIKULSKI. And we are saying this about a member of 

the other party, you know what I mean? 

[Laughter.] 

Chairman HATCH. That really is an exceptional thing, let me tell 

you. We are grateful to see you here. 

Senator MIKULSKI. Thank you very much, Mr. Chairman. 

And, Congressman, thank you for the courtesy. 

Mr. POMEROY. Thank you. 

Chairman HATCH. Senator Dorgan, Congressman Pomeroy has 

been waiting a long time. Can I just have him— 

Senator DORGAN. Absolutely. 

Chairman HATCH. I think he needs to get back over to the 

House. With your permission and deference, I would like to do that. 

Senator DORGAN. Of course. 

9

PRESENTATION OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NORTH DAKOTA BY 

HON. EARL POMEROY, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF NORTH DAKOTA 

Representative POMEROY. Mr. Chairman, thank you. I will be 

brief, but I do want to commend to your attention the President’s 

nomination for the opening in the bench in North Dakota. 

Judge Ralph Erickson is someone I have known for 23 years. 

Prior to his time as the District Bench in 1994, Ralph throughout 

those years was an active Republican and I have been an active 

Democrat, but we have maintained a close friendship. I have enormous respect for him. After assuming his role on the District Bench 

we have really been able to see what a wonderful jurist Ralph has 

proven to be. He is competent, fair minded, hard working, conscientious, has impeccable integrity, and as a result has really demonstrated a superb judicial temperament. 

He has told me that his personal philosophy is to treat lawyers 

like he would like to be treated when he was a lawyer, and that 

means being prepared, listening, understanding the law as best as 

possible. As he has applied these values, it has shown, because he 

has run for re-election to the bench without opposition, and the 

lawyers in this poll you referenced in your introductory remarks, 

Mr. Chairman, a survey of Fargo/Morehead lawyers rated him simply the best, the best of the District Bench. 

So I think the President has made a superb choice in advancing 

for your consideration Judge Ralph Erickson, and I echo my wholehearted support. He will be an excellent addition to the bench in 

North Dakota. 

Chairman HATCH. Well, thank you, Congressman Pomeroy. We 

appreciate you taking time to come over to the lesser body and 

speak to us. We are grateful to have your testimony, and that 

weighs very heavily in favor of the Judge. 

Representative POMEROY. Thank you, Mr. Chairman. 

Chairman HATCH. Senator Dorgan, we are honored to have you 

here. 

PRESENTATION OF RALPH R. ERICKSON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NORTH DAKOTA BY 

HON. BYRON DORGAN, A U.S. SENATOR FROM THE STATE OF 

NORTH DAKOTA 

Senator DORGAN. Senator Hatch, thank you very much. 

I am pleased to be here. I will not add too much to what Congressman Pomeroy said. Congressman Pomeroy, Senator Conrad 

and I feel all pretty much the same about this candidate. Judge 

Ralph Erickson has been nominated. I fully support and enthusiastically support his nomination. I think he will make an excellent Federal Judge in the U.S. District Court in North Dakota, on 

the east side of North Dakota. 

He is a native of Thief River Falls, Minnesota. His J.D. was received with distinction from the University of North Dakota. He 

spent 9 years in private practice before becoming a District Judge, 

Cass County Magistrate first, then a District Judge for the East 

District Judicial District. He has presided over some of the most 

high profile cases in our region, and as you indicated, and as ConVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90303PT2.000 SJUD4 PsN: CMORC
10

gressman Pomeroy did, the largest newspaper in our State indicated that he is the best in the region in their evaluation. 

I think the staff on both sides of the Judiciary Committee received that word when they called around North Dakota as well. 

The kind of reaction they received, fair, hard working, even tempered, thoughtful, good reputation. Those are exactly the kinds of 

things you want to hear about a judge. 

My understanding is he is one of the few people who will come 

before this Committee who has actually been in prison. He as an 

intern at Leavenworth when he was in law school. 

[Laughter.] 

Chairman HATCH. We like to hear that. 

[Laughter.] 

Senator DORGAN. He may want to tell you more about that, but 

he also is someone—I had about 2 months ago the opportunity to 

sit in his courtroom. I asked if I could be allowed to sit in the 

Youth Drug Court that he presides over. And I sat there I guess 

an hour and a half or so that day and watched, late afternoon, and 

watched Judge Erickson deal with some young offenders, young 

men and women who came before him. I must tell you, not only 

is that a terrific idea and a very important part of our system, but 

I was very impressed with the way Judge Erickson handled that. 

He is a credit to the Judiciary, and if we are able to put more and 

more people like Judge Ralph Erickson on the Federal Bench, the 

Judiciary in this country will be in very good hands. 

So I am here to say that this is an excellent nomination. I am 

proud to support him. I think you all will be very proud to confirm 

that with an affirmative vote, and I know that he has been accompanied by his wife and his children and others, and I am sure he 

will introduce them at an appropriate time. 

Mr. Chairman, thank you for holding the hearing and I hope we 

will move this nomination quickly. 

Chairman HATCH. Thank you very much, Senator Dorgan. We 

really appreciate your taking time from what we know is a very 

busy schedule. Thanks for your honoring the judge. 

We will now turn to the distinguished Democratic leader on the 

committee. 

Senator LEAHY. Thank you, Mr. Chairman. 

Like all of us, I was— 

Chairman HATCH. Senator, could you— 

Senator LEAHY. Sure. 

Chairman HATCH. I forgot to do one thing. Senator Conrad very 

much wanted to be here today to introduce Judge Erickson, but unfortunately had a scheduling conflict he just could not change, so 

I am pleased to submit his written statement for the record in 

favor of Judge Erickson. 

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

Chairman HATCH. I am sorry. I just thought that would be better 

to get that in at this time. 

11

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

FROM THE STATE OF VERMONT 

Senator LEAHY. And I am sorry I missed our colleagues, but each 

one of them have talked to me, at one time or another, about the 

nominees who are here. Like all of us, we end up with about three 

different committees going on at the same time. Here, we are going 

to hear four nominees for lifetime appointments to the Federal 

bench—one to the Ninth Circuit Court of Appeals, three to District 

Courts in North Dakota, Maryland and Ohio. 

The arrangement, one Court of Appeals judge, three District 

judges, basically follows years of precedent in the way we schedule 

these. I think it is more reasonable and more sensible than what 

we faced last week, when we had three Circuit Court nominees at 

one time, all three controversial, and there in a hearing until about 

10 o’clock at night, a rather rushed hearing. Here, having one Circuit Court nominee, we are able to give each of the people who 

have traveled here with their families and friends the kind of attention they deserve. 

I compliment the Chairman for doing it this way, as compared 

to last week. I thought having three controversial nominees scheduled together meant that none were adequately discussed. At the 

same time, I do not want to go back to the days, for example, when 

this Committee did not hold a single hearing on a judicial nominee 

until mid–June, as was the case in 1999. I think we could work on 

more fair schedules, as we have had in the past 17 months, where 

we were able to get 100 judges through in that time. 

Today, the Circuit Court nominee before us is Jay Bybee. He is 

currently serving in the Justice Department as an assistant attorney general for the Office of Legal Counsel, OLC, and the head of 

OLC serves as the Attorney General’s lawyer, and advises him on 

legal issues underlying Administration and Department policies. 

In the wake of September 11th, Mr. Bybee’s responsibilities have 

included rendering opinions on many controversial decisions that 

have come from the Justice Department, including its ability to try 

terrorist suspects in military tribunals; its ability to use State and 

local police to make arrests for civil violations of immigration laws; 

its use of gun purchase databases to track terrorist suspects; its decision that, contrary to Secretary of State Colin Powell’s opinion, 

they did not need to declare the al Qaeda and Taliban detainees 

prisoners of war under the Geneva Convention, and I assume other 

controversial policies. 

So I am interested in his views on these questions of law. I am 

concerned the role he may have played in perpetuating the culture 

of secrecy that has enveloped the Justice Department over the past 

couple of years. The office which he heads has long been a leader 

in sharing its work with the American public, and in recent years 

that office even began publishing its legal opinions on a yearly 

basis. Many of these opinions are available in legal databases. I 

think they provide a very valuable tool for lawyers and nonlawyers, 

just to understand how the legal underpinnings of our Government 

work. 

But of the 1,187 OLC opinions that have been published on the 

Lexis legal database since 1996, only three are from the period 

when Mr. Bybee headed the office. Up until now, there has also 

12

been a history of OLC releasing numbers of opinions on the Department of Justice website, where all Americans, from students to 

retirees, can, with the click of a mouse, pick them up. They have 

also responded, of course, to requests by the Judiciary Committee, 

under either Republican or Democratic leadership, but that practice, too, has ended under Mr. Bybee’s leadership at OLC. 

A Government works best when it is open and answers questions, and I am worried that we see a change from both Republican 

and Democratic administrations of openness, and if we go to this 

nondisclosure, then I think it follows this pattern of an expansive 

view of executive privilege that has marked the time that Mr. 

Bybee has been in Government, and I want to hear from him on 

that issue. This is something, this lack of openness, concerns have 

been expressed by me, by Senator Specter, by Senator Grassley, by 

Senator Hatch, by Senator Schumer and by a number of other son 

this committee. 

Now, the District Court nominees from North Dakota, Ohio, 

Maryland appear to be more moderate and bipartisan than the 

President’s Circuit Court nominations. 

Judge Erickson is currently a judge in the East Central District 

Court of North Dakota. He is supported by both of the Democratic 

home–State Senators, well-respected in his community as being a 

hardworking, thoughtful, fair, even-tempered judge. Incidentally, I 

was pleased to see, Mr. Chairman, that Judge Erickson has been 

involved in developing an initiative in Fargo to assist juveniles involved in drug crimes, and he will be joining the other judge from 

North Dakota that we approved when I was chairman, Judge 

Hovland. 

We will hear from Judge Quarles, who is nominated in the U.S. 

District Court for the District of Maryland. He has served as an attorney in private practice, assistant U.S. attorney in Baltimore before becoming a Circuit Judge of the Circuit Court for the City of 

Baltimore. He is supported by both the Democratic Senators from 

his home State. 

And Judge Frost, nominated to the U.S. District Court for the 

Southern District of Ohio, has been on the bench for 12 years. He 

is either currently or formerly a member of numerous charitable 

and civic organizations. I would like to note that he has been very 

principled in ensuring the organizations of which he is a member 

do not discriminate, including, if he thought that they did, to leave. 

I would also note that he is supported by both the Senators from 

his home State, both Senator DeWine, a valued member of this 

committee, and our friend, Senator Voinovich, a highly respected 

member of the Senate. 

So thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Leahy. 

We will now turn, last, but not least, and very importantly, to 

our colleague on the committee, Senator DeWine, to speak about 

our judge from Ohio. 

13

PRESENTATION OF GREGORY L. FROST, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO BY 

HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 

OHIO 

Senator DEWINE. Thank you, Mr. Chairman, very much. It is 

certainly my pleasure to introduce to the Members of the Committee Judge Gregory Frost. My friend and colleague from Ohio, 

Senator Voinovich, certainly wanted to be here with us today, but 

unfortunately will not be able to attend, but he did ask me, Mr. 

Chairman, to submit his statement to the record, and I would ask, 

with unanimous consent, it be made part of the record. 

Chairman HATCH. Without objection. 

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

Senator DEWINE. Judge Frost, as has been pointed out, has been 

nominated by the President of the United States to serve as a 

United States District Judge for the Southern District of Ohio. He 

currently serves as judge on the Licking County Common Pleas 

Court of Newark, Ohio. So I would like to welcome to the Committee several people who are here to support Judge Frost: 

First, his wife Kristina Dix Frost and his son Wes. We welcome 

both of them to the committee. Kris and Wes, thank you very much 

for being here with us today. 

I would also like to welcome Judge Frost’s mother Mildred; his 

mother-in-law Helen Dix; his sister Beth Thomas and her husband 

Kim; as well as Doug McMarlin, a good friend of the Frost family; 

Sarah Barrickman, Judge Frost’s law clerk; and Shawn Judge, a 

friend of Judge Frost. 

Also here to show their support are Mike Nicks, an attorney from 

Newark, as well as Nancy Dillon and a man named Leonard, both 

friends of the Frost family. 

Judge Frost is a 1971 graduate of Wittenberg University. Judge 

Frost received his law degree in 1974 from Ohio Northern University. Judge Frost’s long career in both public service and private 

practice makes him well-qualified for the District Court. 

He has been a Licking County judge for the past 19 years, serving as Municipal Court judge from 1983 to 1990, and then, Mr. 

Chairman, as Common Pleas judge from 1990 until the present. 

While serving on the bench, Judge Frost was selected to take the 

lead in writing the jury instructions for the entire State of Ohio. 

Mr. Chairman, of course, we all know the importance of jury instructions. These jury instructions, of course, provide the framework in which all jury cases in the State of Ohio are deliberated. 

Prior to his service on the bench, Judge Frost was a partner in 

the law firm of Schaller, Frost, Hostetter and Campbell in Newark. 

While with that firm, he also served as an assistant Licking County prosecutor from 1974 until 1978. 

Judge Frost is an excellent jurist whose dedication and graciousness have earned him the respect of those inside and outside of the 

courtroom. 

Now, Mr. Chairman, I was particularly struck by a letter Gary 

Walters, the Clerk of Courts in Licking County, wrote to the Newark Advocate newspaper. This is what he said regarding Judge 

Frost, and I quote: 

14

‘‘He arrives to work well before daybreak and before anyone else 

in the courthouse. He works hard all day, and routinely is the last 

one to leave in the evenings.’’ Similar to you, Mr. Chairman. I note 

that from having an office right next to yours. 

Chairman HATCH. That is a very habit. 

Senator DEWINE. I know. I do not think he plays music as loud 

as you do, though, Mr. Chairman. He probably does not write 

music either, I do not think. 

[Laughter.] 

Senator DEWINE. ‘‘His work ethic is second to none. As Clerk of 

Courts, I am in the courtroom with Judge Frost. He recognizes that 

jury service is difficult and sometimes unpleasant. With his sense 

of humor and his willingness to explain every step of the process, 

he puts the jurors at ease and makes the experience an educational 

one. Many jurors have made a point to tell me that their jury experience was extraordinarily valuable because of the attention Judge 

Frost devoted to preparing them for their duties.’’ 

Mr. Chairman, this statement provides, I believe, an excellent illustration of both Judge Frost’s temperament in the courtroom and 

his dedication to his position. 

In addition to that, Judge Frost has committed a great deal of 

time and energy to his Licking County community. He has served 

on the board of directors of the Licking County Alcoholism Prevention Program, and the Maryhaven Alcohol and Drug Addiction 

Treatment Center in Columbus. 

He is also an Executive Committee member of the Central Ohio 

Council of the Boy Scouts of America. Indeed, as a lifelong resident 

of Licking County, Judge Frost has made significant contributions 

to his community. Without question, Judge Frost will be a fine addition to the District Court. He has the experience, Mr. Chairman, 

the temperament and the dedication to be an excellent Federal 

judge. 

I might add, Mr. Chairman, on a personal note, that I have 

known Judge Frost for many, many years, and I believe that he is 

the type person that we need to serve on the Federal District 

Court. I strongly support his nomination, and I thank the chair for 

the time. 

Chairman HATCH. Thank you, Senator. 

Before we begin, let me just say that I want everybody here on 

the Committee and all staff to listen very good to what I have to 

say. I was outraged today to read all over the paper today, including in Al Kamen’s column in the Washington Post, information that 

was contained in the ‘‘confidential’’ section of the committee’s file 

on Mr. Bybee. This is wrong. It is outrageous, and it is dirty politics, and it is violative of Committee rules that are very, very important rules that have been abided by. This is the worst I have 

seen since the Clarence Thomas hearings. 

Now, Senator Leahy, when he was chairman, changed the Committee questionnaire to move some of the nominees’ information, 

normally in the FBI files, into the ‘‘confidential’’ section. Now, I 

want everybody to know that we are going to go back to what the 

Committee has always done before. The FBI files are to be held in 

confidence, and nobody is to breach that confidence, and I think 

this is a perfect illustration why we need to do that. 

15

So, just so everybody is put on record, we are just not going to 

put up with that type of stuff, and I am going to investigate it and 

see if we can get to the bottom of it. No nominee should be treated 

any differently than we treated the nominees during the Clinton 

administration. They are to be treated exactly the same, whether 

they are President Bush’s nominees or anybody else’s. 

Having said that, Mr. Bybee, if you could get ready to stand and 

raise your right arm to be sworn. 

Do you swear that the testimony you are about to give before the 

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

truth so help you God? 

Mr. BYBEE. I do. 

Chairman HATCH. Thank you. 

Senator KENNEDY. Mr. Chairman, I wanted to have the opportunity to inquire of Mr. Bybee. We are, as you know, there is an 

important conference on Haitian refugee policy, which is a matter 

of very important consequence to our Refugee Committee here, 

which I was at earlier today, and now I understand that the Secretary of State is going to be addressing the Security Council on 

one of the most important probably moments, in terms of American 

history, which will be very significant on the issues of war and 

peace. 

So I am not going to be able to be here for the time of Mr. Powell’s speech to the Security Council. I think I have a responsibility 

to do that, but I do have questions, so I will try and work this out 

with the chair. I do not have enormous numbers, but I do have 

questions that I would like to ask the nominee at some time. 

Chairman HATCH. Well, we will accommodate the distinguished 

Senator and former Chairman of the committee, of course. 

We would like to finish the hearings as soon as we can, but if 

you could come right back— 

Senator KENNEDY. I would be glad to come over right after Mr. 

Powell’s address when it is finished. 

Chairman HATCH. If you will, that would be great. We will reserve that time for you. 

Senator KENNEDY. Thank you. 

Chairman HATCH. What we may do is ask some questions of Mr. 

Bybee and then bring up the other judges until you come back. 

Senator KENNEDY. That is fine. Thank you. I thank you, Mr. 

Chairman. 

Chairman HATCH. Thank you, Senator Kennedy. 

Well, let us begin then, and we will reserve that time. I would 

like to see that myself, but I think we better move ahead here. 

Mr. BYBEE. Thank you, Mr. Chairman. 

Chairman HATCH. I will be able to see it on C–SPAN, I am sure. 

But I do not blame any Senator for wanting to see that. This is an 

historic moment, and I personally just want to express my regard 

for Colin Powell and the terrific job he is doing as Secretary of 

State and for his resolute strength in this administration. I have 

tremendous respect for him, always have, and it has grown in my 

eyes even more since he has been acting as Secretary of State. So 

this is an important, historic time, and I cannot blame any Senators for wanting to see that. I would like to myself. 

16

But we are going to move ahead here so that we do not inconvenience our judges, and then what we will have to do, Mr. Bybee, if 

we finish with our questions, we will move ahead with the other 

judges and put you in abeyance until Senator Kennedy and any 

other Democrat or Republican who wants to question will come 

back. 

But let me just ask a few basic questions of you so that we uncover some of the things that I think are critical. 

The Founding Fathers believed that the separation of the powers 

in the Government was critical to protecting the liberty of the people. Thus, they separated the legislative, the executive and the judicial powers into three different branches of Government, so-called 

co-equal powers: The legislative power being the power to balance 

moral, economic and political considerations and make law; the judicial power being the power only to interpret laws made by Congress and by other people, which sometimes involve the President, 

through Executive Order and otherwise; the judicial power being 

the power to interpret laws, something that we have really been 

concerned about on this Committee because of the actions of some 

of the judges and the various Circuit Courts of Appeals and, in particular, the Ninth Circuit Court of Appeals. 

In your view, is it the proper role of a Federal judge, when interpreting a statute or a Constitution, to accept the balance struck by 

the Congress of the people or to rebalance the competing moral, 

economic and political considerations? 

Mr. BYBEE. Thank you for that thoughtful question, Mr. Chairman. 

The separation of powers was fundamental to our constitutional 

design, and fundamental to that design was the idea that neither 

of the branches, none of the branches, should exercise any of the 

power of the other branches. When the Federal Courts seek to balance important moral or political decisions, they usurp the power 

of this body, the Congress of the United States, and that is not the 

appropriate role of the courts of the United States. 

They have been given substantial powers under our Constitution, 

but it is the power of interpretation, not the power of decision in 

the first instance, Mr. Chairman. 

Chairman HATCH. Thank you. You know, I have been very rude 

here because I have not given you a chance to even make an opening statement and, above all, I would like you to introduce your 

family and your friends who are here. I apologize to you. I am so 

anxious to get you through that— 

[Laughter.] 

Chairman HATCH. I think sometimes I place that above everything else. So please forgive me, but I would like you to make any 

statement you care to make, and of course introduce your family 

and friends who are here. 

STATEMENT OF JAY S. BYBEE, OF NEVADA, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE NINTH CIRCUIT 

Mr. BYBEE. Thank you, Mr. Chairman. I have many members of 

my family here that I would like to introduce, and I have many 

friends and colleagues who have attended as well. I will forebear 

17

from introducing friends and colleagues in the interest of time, but 

I appreciate the opportunity of introducing my family. 

Seated behind me is my lovely wife Dianna, my wife next week 

as of 17 years. We have four children, and I will ask them to stand 

because they may be a little short. My oldest, Scott, is 15; my son 

David is 12; my daughter Alyssa is 10; my son Ryan is 8. 

Chairman HATCH. That is great. We are glad to have you young 

people with us, I will tell you. 

Mr. BYBEE. My mother, Joan Bybee is here in the front row as 

well. Someplace in the back are my wife’s parents, Harvey and 

Nada Greer, who came in last night from Sacramento, California. 

I appreciate them making the trip. 

Chairman HATCH. Please stand as well so we can see you. 

Great. Glad to have you here. Welcome. 

Mr. BYBEE. I have all of my siblings and their spouses are here. 

My brother David and his wife Rene. 

Chairman HATCH. Please stand. We want to look everybody over. 

These are important positions. 

[Laughter.] 

Mr. BYBEE. My sister Karen and her husband Jeff Holdaway, 

and two of their children, Christopher and Cameron Holdaway. 

Chairman HATCH. Karen worked up here on Capitol Hill and did 

a great job while she was here. 

Mr. BYBEE. My youngest brother Lynn and his wife Melissa. 

Chairman HATCH. Welcome. 

Mr. BYBEE. Have I left anybody out? Oh, my niece Kelli Frazier 

is here. 

Chairman HATCH. Great. Nice to have you, Kelli. 

Mr. BYBEE. We have additional extended family and additional 

friends in the audience, Mr. Chairman. Thank you very much. 

Chairman HATCH. Yes, I see a lot of your friends out there in the 

audience. It is just great. Welcome to all of you. We are grateful 

that you here. I have tremendous respect for Mr. Bybee, and I 

think everybody who has had any contact with him also shares 

that respect. 

Do you have anything else you care to say? 

Mr. BYBEE. No, Mr. Chairman, but I do thank you for holding 

this hearing and affording me the opportunity of talking before the 

Committee today. 

Chairman HATCH. We will give 10 minutes for each person to ask 

questions and maybe some more to others who want to ask some 

more. 

The making of the law is a very serious matter. To make constitutional or statutory law, the text of a proposed amendment or 

statute must obtain a set number of formal approval of the people’s 

elected representatives. Now, this formal approval embodies the express will of the people, through their elected representatives, and 

thus raises the particular words of a statute or constitutional provision to the status of binding law. 

Would you agree that the further a judicial opinion varies from 

the text and original intent of a statute or constitutional provision, 

the less legal legitimacy it has? 

Mr. BYBEE. Yes, Mr. Chairman. This is a very important question, and it is a very important challenge for the judiciary to recogVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\90303PT2.000 SJUD4 PsN: CMORC
18

nize that Congress is a collegial body, representing a diverse group 

of Americans and that Congress has come together and has undertaken a difficult process of arriving at consensus, and that ought 

not to be undone by a single judge or by even a single panel of 

judges who are not representative and have been given certain protections under our Constitution that indeed ensures that they will 

not be subject to the kind of political pressure that this body is 

rightfully subject to, that kind of—that’s a check of the people. 

And for a judge or for any panel of judges to undertake that responsibility is to assume the responsibility of the legislature and 

act as a political body. 

Chairman HATCH. Do you think that it is the proper role of a 

Federal judge to uphold the legitimate will of the people, as expressed in the law, or to basically impose his or her own view of 

what that judge thinks the law to be? 

Mr. BYBEE. Mr. Chairman, the responsibility of the judge, as 

Chief Justice Marshall said as early as Marbury v. Madison, it is 

to say what the law is. 

Chairman HATCH. Well, under what circumstances do you believe 

it appropriate for a Federal Court to declare a statute enacted by 

Congress unconstitutional? 

Mr. BYBEE. Mr. Chairman, that is a very good question. That is 

a question the law professors are always very excited to discuss in 

class, and I think it is a hard challenge for judges to undertake 

that responsibility to review for constitutionality statutes enacted 

by Congress. 

On the one hand, Senator, any judge should begin from the assumption that legislation is constitutional. We must begin from 

that because you have taken the same oath to uphold the same 

Constitution that the judges have. 

Now, aside from that, it is the responsibility of the Judicial 

Branch, from time-to-time, to strike down where it believes that 

Congress has overstepped its bounds in certain legislation. In those 

rare cases, the judiciary should examine carefully the text of the 

statute and ensure that it really does not comport with the plain 

text of the Constitution. 

Chairman HATCH. In general, the Supreme Court precedents are 

binding on all lower Federal Courts and all Circuit Court precedents are binding on the courts within that particular circuit. Now, 

are you committed to following the precedents of higher courts 

faithfully and giving them full faith, and credit and effect, even if 

you personally disagree with these precedents? 

Mr. BYBEE. Senator, any judge who assumes this responsibility 

must set aside his or her personal beliefs as they enter the courtroom door. They are not appointed in their personal capacity as a 

judge, and it is their responsibility to interpret the law faithfully. 

Chairman HATCH. What would you do, if you conclude very honestly, and you believe that the Supreme Court or the Court of Appeals had seriously erred in rendering a decision, would you nevertheless apply that decision or would you apply your own best judgment on the merits? 

Mr. BYBEE. Senator, one of the Framers commented that the 

Constitution was established that it might be a Government of 

laws and not a Government of men. I would faithfully apply the 

19

precedent of my circuit and the precedent established by the Supreme Court. I think to do otherwise would be chaotic, and I think 

disserves the people who then cannot count on understanding what 

the law is. They have no way of knowing what law will be applied 

if a judge is free to ignore the dictates of higher courts. 

Chairman HATCH. It would not be long for the Constitution to go 

down the drain if we had judges just doing what they felt within 

their souls was right, rather than applying the law, as the precedents demand. 

Mr. BYBEE. It would be chaotic, Senator. 

Chairman HATCH. Yes, it would. 

Well, if there were no controlling precedent, dispositively concluding an issue with which you are presented in your circuit, to 

what sources would you apply to obtain persuasive authority? 

Mr. BYBEE. Thank you, Mr. Chairman. 

If I faced a situation in which there were no controlling precedents, then I would begin with the text of the statute. That is the 

clearest record of what Congress meant. I begin with the text of the 

statute. 

In those cases in which there might be some ambiguity that cannot be resolved by referring directly to the text of the statute or 

to the broader structure of the act that it is a part of or to some 

clear understanding or history, then I would look to other tools 

that would help me understand what Congress meant. 

Chairman HATCH. In what circumstances, if any, do you believe 

an appellate judge should overturn precedent within his or her own 

circuit? 

Mr. BYBEE. Mr. Chairman, that’s a hard question, and I think 

that’s one that each judge will have to decide for himself or herself. 

The second Justice Harlan I think took the position that he would 

dissent three times to make his views known where he believed 

that the Court had erred, and then he would accept the circuit 

precedent or the Supreme Court’s precedent. 

In the case where you have a firm belief that the Court has 

plainly made a mistake Circuit Courts may revisit their decisions, 

but I think that would take a very, very careful weighing of what 

compelled the decision in the first place, how long it had been in 

place, what kind of reliance people or companies or States had 

placed upon that decision, and I think one would have to think 

very carefully, long and hard, before one would overturn it. 

Nevertheless, Senator, there certainly are a number of instances 

in the Supreme Court and in the Courts of Appeals where courts 

have been compelled to overturn themselves where they believed 

that they did make a mistake. 

Chairman HATCH. Thank you. My time is up. I am going to turn 

to Senator DeWine. 

Senator DEWINE. Mr. Bybee, Senator Leahy raised some important points about some activities in which the Department of Justice has engaged. As you are aware, this Committee does have jurisdiction over oversight over the Department of Justice. Let me 

ask you whether you feel you have authority to answer questions 

today on behalf of the Department of Justice. 

Mr. BYBEE. No, Senator, I do not. 

20

Senator DEWINE. If you did have authority to answer these questions, would you be able to answer questions regarding your conversations or recommendations to the Attorney General? 

Mr. BYBEE. Senator, it would be inappropriate for me to reveal 

confidences that have been placed in me by my clients. That is fundamental to an attorney’s responsibility. In the event, Senator, that 

there were some kind of an oversight hearing, and the administration had asked me to appear officially here, there would be things 

that I could represent of the administration’s position, but even in 

that circumstance, Senator, I believe it would be inappropriate for 

me as an attorney to reveal the conversations or confidences that 

have been placed in me by my client. 

Senator DEWINE. Mr. Bybee, you served as a law professor, correct? 

Mr. BYBEE. Yes, sir. 

Senator DEWINE. You currently serve in the Office of Legal 

Counsel at the U.S. Department of Justice. 

Mr. BYBEE. It’s been my privilege, Senator, for the last year-anda-half. 

Senator DEWINE. And you aspire to serve on the Circuit Court. 

Mr. BYBEE. If I am so fortunate as to be confirmed by this committee, Senator, it would be a great honor. 

Senator DEWINE. Please, for me, compare and contrast those 

three positions. You have served in two of them. You would like to 

serve in a third. What would be the differences, difference in mindset, difference in role, difference in function. 

Mr. BYBEE. Thank you, Senator. I think it’s important— 

Senator DEWINE. Difference in approach, excuse me. 

Mr. BYBEE. I think it’s important to remind myself of what those 

differences are. I have had the privilege of seeing many different 

aspects of the law. I have been fortunate enough to be an advocate. 

I was an advocate in private practice and with the Department of 

Justice. I was a law professor for 10 years, and now I find myself 

in a position of counsel to the Attorney General and to the White 

House counsel in my current role at the Department of Justice. 

As an advocate, I had an important task to represent accurately, 

but vigorously, the interests of my client in courts of the United 

States. As a law professor, I had a different role. I took on a different set of responsibilities when I first went to LSU and then 

later to UNLV. My responsibility was to teach a new generation of 

law students about the Constitution, about administrative law, the 

Administrative Procedures Act and about civil procedure in the 

Federal Courts of the United States. 

I worked very hard at teaching them what the law says, but one 

of the responsibilities of a law professor is to stretch the minds of 

his students. It is to probe, to push to prod, to make them think 

critically about the decisions that they are reading. That is a different kind of role. 

And, as a faculty member, it was also my responsibility, as a responsible faculty member, to seek to publish. And as an academic, 

one thing that academics do is challenge each other. We seek to explore the law in a way that is not the same that we would in a 

judicial role. My role as a law professor is not necessarily to describe the law as it is, but again to examine critically, just as I 

21

have encouraged my students to do, to encourage myself and my 

colleagues to think more critically about important and sometimes 

controversial topics in the law. 

A judge is neither a vigorous advocate nor a law professor. A 

judge is not responsible for vigorously prodding the law and pushing it in directions that it hasn’t been pushed, but rather for reflecting on what Congress has said and how the Supreme Court 

and other Federal Courts have interpreted that. It is a very, very 

different role, Senator, and I hope that I will always keep that role 

in mind. 

Senator DEWINE. Mr. Bybee, did you feel that when you were a 

law professor that part of the requirement of being a law professor 

was to publish? You indicated that, and I have certainly heard that 

from other professors. Is that part of the job? 

Mr. BYBEE. Yes, Senator DeWine. Most academic institutions 

have a ‘‘publish or perish’’ rule. It is generally a requirement for 

tenure that one have published in responsible law journals, and 

one way of attracting attention in the Nation’s student-edited law 

journals is to take unusual positions or write about things that 

haven’t been covered before, and that was a way, both of informing 

myself as a law professor and challenging my students. 

Senator DEWINE. It is totally irrelevant to today’s hearing, but 

I have always found that to be, as a consumer and a parent of 

eight children who are going to college or about to go to college, I 

always find that to be rather irritating. 

[Laughter.] 

Senator DEWINE. As a parent who wants teachers in the classroom who teach, and I like it that the teachers are challenging, but 

what they publish I find to be rather irrelevant, but that is just an 

aside from a crotchety parent, that is all. 

Mr. BYBEE. As a law professor, Senator, it pains me to hear that, 

but I acknowledge the truthfulness, nonetheless. 

Senator DEWINE. I want you in the classroom challenging my 

student. I do not care what you do outside of the classroom, frankly. 

I found your writings to be rather interesting, and so that is why 

I asked the question about your writings and the difference between your role as a professor and your other two roles. So I think 

I have found your answer to be interesting, but you are in the process of stretching minds at that point. 

Mr. BYBEE. That is exactly our role, and if I wasn’t doing that 

as a law professor, Senator, I’m not doing my job. 

Senator DEWINE. I understand. 

Nothing further, Mr. Chairman. 

Chairman HATCH. Thank you. 

We will turn to Senator Saxby, at this point. 

Senator CHAMBLISS. Thank you, Mr. Chairman. 

Actually, my questions have already been asked and have already been answered by Mr. Bybee with the very probing questions 

that the Chairman had. My main concern, Mr. Bybee, is that both 

our District Court and our Circuit Court judges come before us to 

say that they are willing to interpret the Constitution as it reads, 

and I think you have answered that very succinctly, that you are 

22

not going to be putting your personal impressions into the decisions 

you may make. 

You are obviously very well-qualified, from an academic background, as well as your legal background. And it is encouraging to 

me, as a lawyer, to see individuals of your competence, your quality 

and your background willing to commit yourself to public service. 

We look forward to your confirmation. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Saxby. We appreciate 

that. Senator Chambliss, I mean. I am so used to calling him 

Saxby. But we are happy to have you on this committee. It is going 

to make a great deal of difference to all of us, I think. 

Mr. Bybee, I do not have any further questions. I know you very 

well, and I know what a decent, honorable person you are, and I 

support your nomination very strongly, as I hope everybody will on 

this committee. 

As you know from our meetings today, and earlier, you are aware 

of how thorough this review process on, especially Circuit of Appeals judges really is, but for all judicial nominees, and you put up 

with a great deal, with intrusive and invasive questions and interviews. You have passed very tough scrutiny by the White House, 

the Department of Justice, the FBI, the committee, and the American Bar Association as well, and you have satisfactorily and appropriately answered my questions today, and you will, no doubt, receive some written follow-up questions following today’s hearing. 

As you know, Senator Kennedy has asked to question you after 

the Secretary of State’s remarks up at the U.N. Senator Schumer 

has also asked for time to ask you some questions. He said he will 

be here at 11 o’clock. So I will ask you at this point to step aside, 

so that we can move on to the other three judgeship nominees and 

hear from the second panel, and then we will have you return as 

soon as Senator Kennedy or Senator Schumer or any other Senator 

on the Committee desires to question you. 

Mr. BYBEE. Thank you very much, Mr. Chairman. 

[The biographical information of Mr. Bybee follows.]

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Chairman HATCH. Thank you so much. 

If we could call our three other nominees to the witness table, 

and if you would all raise your hands. Please raise your hands to 

be sworn. 

Do you swear that the testimony you are about to give before the 

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

truth so help you God? 

Judge ERICKSON. I do. 

Judge QUARLES. I do. 

Judge FROST. I do. 

Chairman HATCH. Thank you very much. 

We are delighted to welcome all of you here. It is a signal honor 

to be recommended by this President or any President for a position in the Federal Courts, and we feel very grateful that the three 

of you are willing to accept these positions. We know there is a degree of sacrifice in serving in the Federal judiciary, and you do become kind of very much isolated after a while, but we are grateful 

to all of you for doing that. 

Why do we not start with you, Judge Erickson, then you, Judge 

Quarles, and then you, Judge Frost. Introduce your family and 

friends here and make any statement you would care to make. 

STATEMENT OF RALPH R. ERICKSON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NORTH DAKOTA 

Judge ERICKSON. Thank you, Chairman Hatch. I have no statement that I would like to make at this time, but I would like to 

introduce some members of my family that are present. 

My wife, Michele, and my two daughters, Elizabeth, age 5, and 

Hannah, age 7; my sister Robyn Gonitzke and her daughter— 

Chairman HATCH. Good to have you here. 

Judge ERICKSON. —her daughter, my niece Brittany. 

Chairman HATCH. Brittany. 

Judge ERICKSON. My brother Paul and my lovely sister-in-law 

Katie, and a very dear friend of mine, a member of the bar from 

North Dakota, who is also a priest and teaching in Baltimore, Father Phil Brown. 

Chairman HATCH. Father, we are happy to have you here. We 

are happy to have all of you here, and we hope you enjoy these proceedings. I anticipate that you will. 

Judge Quarles? 

STATEMENT OF WILLIAM QUARLES, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND 

Judge QUARLES. Good morning, Mr. Chairman. 

I, too, have no prepared speech, but I would like to thank you 

and the members of the Commission for providing me and the rest 

of the nominees this opportunity to be heard this morning. 

I also want to thank Senator Sarbanes and Mikulski. They spoke 

about the tradition that they have followed in recommending nominations to the District Court. They have both been extremely helpful and supportive, and I do want to thank them for that. 

I also want to introduce my wife, Mary Ann Quarles, who is 

here. 

Chairman HATCH. Happy to have you here, Mrs. Quarles. 

57

Judge QUARLES. We spared you the trial of bringing our terrier 

Nellie here in the interest of a quieter hearing. 

[Laughter.] 

Judge QUARLES. Thank you for the opportunity, sir. 

Chairman HATCH. Well, thank you, Judge. We welcome you, Mrs. 

Quarles, to the committee. 

Judge Frost? 

STATEMENT OF GREGORY L. FROST, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO 

Judge FROST. Mr. Chairman, thank you for having us here today 

and having this hearing. 

I recognize the hard work that this Committee does. It’s a privilege and an honor for me to be here, and I appreciate all of your 

hard work. 

Although Senator DeWine, in his fine remarks, introduced my 

family and friends, I would like to reintroduce them because if I 

do not, I will hear about it later. 

Chairman HATCH. That is very judicious of you. 

[Laughter.] 

Judge FROST. First, my wife, Kris. Thank you. 

Chairman HATCH. Nice to have you here. 

Judge FROST. My mother Mildred Frost and my mother-in-law 

Helen Dix are present. 

Chairman HATCH. We are honored to have both of you here. 

Judge FROST. My son Wes Frost and his friend Amanda Leonard 

are present. 

Chairman HATCH. Good. Welcome to the hearing. 

Judge FROST. Beth Thomson, my sister, and my sister-in-law 

Kim Thomson. 

Chairman HATCH. Nice to you have Thomsons here. 

Judge FROST. Shawn Judge, a friend, is here, and Sarah 

Barrickman, my law clerk, is here. 

Chairman HATCH. Welcome. Glad to have you. 

Judge FROST. Nancy Dillon is a friend who is here, Doug 

McMarlin, who I believe just arrived and is in the back of the 

room, is here. 

Chairman HATCH. Welcome, Nancy and Doug. 

Judge FROST. And then, finally, Mike Nicks, who is a practicing 

attorney in my hometown of Newark, Ohio. 

Chairman HATCH. Nice of you to come, Mike. Glad to have you 

here. 

Judge FROST. Thank you, Mr. Chairman. 

Chairman HATCH. I am going to turn the hearings over to Senator DeWine. And I am hopeful I can get back, but until I do, Senator DeWine is going to be in charge. 

Senator DEWINE. [Presiding] Let me welcome each one of you. 

Thank you very much for joining us. Let me assure you this will 

be a rather painless experience. 

I am not familiar with two of your States, the judicial system, 

but each one of you, I assume, is the initial trial court judge; is 

that correct? Each one of you has the felony trials? 

Judge ERICKSON. That’s correct. 

58

Judge QUARLES. Yes. As Senator, I believe, Mikulski said, we 

have two trial levels in the State of Maryland; one is the District 

Court level, which is essentially misdemeanors and certain civil 

matters. The next level, the level in which I serve, is the Circuit 

for Baltimore City. Those are the jury trials, serious felonies, and 

general civil jurisdiction. 

Senator DEWINE. Judge Erickson, that would be the same? 

Judge ERICKSON. Yes, our District Court is a general jurisdiction 

court. I like to say we take cases from dog-at-large to murder. 

Senator DEWINE. Of course, Judge Frost, our Common Pleas is 

basically the same. 

Judge FROST. Felony jurisdiction and all civil cases over $10,000. 

Senator DEWINE. Let me ask each one of you, and maybe I will 

start with you, Judge Frost, what, during your time on the bench, 

you have learned that you think will prepare you to serve on the 

District Court? When I look at your background for each one of 

you, what stands out, of course, as your experience? 

I think there are many ways and many different backgrounds 

that people bring when they come to the District Court judge, and 

there is no one given set of backgrounds that is preferable over another, but the advantage each one of you has I think is that you 

do have a record and that we can look at that record, and we can 

judge you, and your peers can judge you, and we can ask your 

peers how do they do on the bench, and so that is at least the advantage that we have with each one of you. 

So let me start with you, Judge Frost, and I would just ask you 

what you have learned in your time on the bench that you think 

will help you to be a better District Court judge? 

Judge FROST. Thank you, Senator. 

Senator DEWINE. And maybe some of the mistakes you have 

made and what you have learned. 

Judge FROST. Thank you, Senator DeWine. 

You do learn from your mistakes. There is no doubt about that. 

I think one of the main lessons I have learned is just to simply, 

on the 20 years of trial-level benches that I have been serving, is 

to treat everyone fairly, to allow the attorneys to do their job, to 

have firm control over the docket, which is I think important and 

will be just as important on the District Court, and to work hard. 

I expect a lot out of the attorneys who appear before me and, 

conversely, I think they expect a lot out of me, and so hard work 

is also that. 

And then, finally, patience, patience, patience. 

Senator DEWINE. Judge? 

Judge QUARLES. One of the blessings of working at the Circuit 

Court for Baltimore City for 6 years is that it is a very busy court. 

We have 24 judicial circuits in the State of Maryland. Our circuit 

handles 24 percent/24 to 25 percent of the criminal matters, and 

an equally large number of the civil matters. 

In any particular week, we have a thousand trials that are 

scheduled in the felony courts. That is 10 judges who have a thousand trials scheduled per week. Obviously, they cannot all be 

heard. 

In the time that I have served, I have served in the various divisions of that court, and whether the matter has been simple or 

59

complicated, whether it has been a relatively minor misdemeanor 

appeal from the District Court or, as in the case that I presided 

over 2 years ago, a quintuple murder, each of the cases is important to the people involved in them, and I think that’s one of the 

things for judges to remember is that there is no routine case to 

the litigants or to the victims or to those who are there. 

The only experience or impressions of the courts are formed by 

these people who are there, and these things are very important to 

them and their lives, and they’re under a particularly great amount 

of stress. As a judge, you have, of course, the responsibility of deciding the immediate case fairly. 

You also have a sort of systemic responsibility to make sure that 

each litigant, each witness, each observer of the court leaves with 

a sense that, regardless of the outcome of the case, it has been 

tried fairly, the matter has received serious attention and that they 

have had an opportunity to be heard. 

I would hope to carryover those feelings and those understandings into the Federal District Court. 

Senator DEWINE. Good. 

Judge Erickson? 

Judge ERICKSON. I would echo much that Judge Frost and Judge 

Quarles have said here this morning. It seems to me that one takes 

the bench with the attitude that every case is important, that everyone has the opportunity to be heard, that the lawyers will be 

afforded the opportunity to argue their case fully, that you’ll be 

prepared, that you will have done the work necessary to take the 

bench prepared to make a decision that’s just, fair and equitable 

in its premises. 

I also think that one of the things that a judge really needs to 

keep in mind is a legal maxim that the law is no respecter of persons. The law doesn’t care whether you’re the most important or 

influential person who lives in the land or you’re a person that’s 

homeless and living under a bridge. The law only cares that you’re 

given a fair and full opportunity to be heard and that the decision 

rendered is consistent with the law. 

And as a judge, if you can do those two things, treat everyone 

the way you want to be treated and make sure that everyone has 

a fair opportunity to be heard, I think that, in the final analysis, 

things will work out the way they are supposed to. 

Senator DEWINE. Judge Erickson, could you comment about settlement procedures and how you do that now and how you would 

anticipate doing that on the Federal bench; pretrials, how do you 

move a civil docket. 

Judge ERICKSON. We work very hard at trying to get our civil 

cases settled. We have settlement conferences in which the judge 

who is not trying the case actually sits down and tries to assist the 

parties in arriving at a resolution of the case. 

There is a more formalized procedure that exists in the Federal 

District, in the District of North Dakota. In that case, the Magistrate Judge spends a great deal of time working on settling those 

cases. There is an active ADR program in our district that has, in 

fact, been well-spoken of around the country, and I would certainly 

embrace those principles. 

60

I look forward to having someone more knowledgeable in those 

areas who can teach me some of those techniques. 

Senator DEWINE. Judge Quarles? 

Judge QUARLES. In our settlement practice in the Circuit Court 

for Baltimore City, we try to view every opportunity where we got 

the parties together as an opportunity to resolve the case. We have 

scheduling conferences fairly early on in civil litigation. This is 

where the cases are assigned to track, depending on the complexity 

of the case, the number of witnesses, how much discovery is anticipated. 

We also have attorney mediators who serve as volunteers who 

come in and agree to take two or three settlement conferences per 

month. We also then have a final pretrial conference, and it is understood that at the pretrial conference, not only will the attorneys 

be present, but they will have their clients or their client’s representatives, and there will be someone on each side who has settlement authority. 

Our civil cases in our court are no different from anywhere else. 

We expect to resolve 85 to 90 percent of the civil cases as, indeed, 

we do 85 to 90 percent of the criminal cases by settlements, pleas, 

negotiations. So there has to be a lot of opportunities along the 

scheduling track to get parties to talk to each other, and you have 

to view each of those opportunities as a possibility for settlement. 

So maybe, again, as a discovery discussion, but the discovery discussion or discovery conference can, of course, turn to, if guided, 

can turn to the subject of settlement. 

Senator DEWINE. Judge Frost? 

Judge FROST. I’m proud of our settlement programs in Licking 

County and on the State bench, in general. We do settle about approximately the same, 80 to 85 percent, or we expect to settle those 

many cases in the civil arena. 

Basically, we have three ways in which settlement is worked in 

Licking County. We have private attorneys who volunteer their 

time, and I am grateful, they do a great job, and we are very happy 

with that program. The attorneys sometimes wish to hire a private 

mediator, and that works out rather well, but only in specialized 

cases where the funding is there for private mediation. 

And then, finally, sometimes the attorneys and the parties ask 

the judge himself to get involved, and on rare occasions I do that. 

I have taken training myself in mediation, and I think that I 

have some background in that, and we have been somewhat successful. 

Senator DEWINE. Judge Frost, how would you describe yourself, 

as far as allowing lawyers to try their own case? 

Judge FROST. That’s a good question. 

Senator DEWINE. You know, the common complaint. 

Judge FROST. It is, and that’s a good question, Senator. 

I think you can ask any of the attorneys in my county, and who 

practice before me from other counties—actually, I think this Committee has asked most of them that. 

[Laughter.] 

Judge FROST. You have got to allow the attorneys to do their job. 

They have a job in the courtroom, just like the judge has a job in 

the courtroom, just like the court reporter has a job. You have to 

61

allow them to do their job, too. The system works best when everyone is allowed to perform their functions and function well. 

So, as far as I’m concerned, the courtroom is not my courtroom, 

the case is not my case. It’s up to the attorneys to present their 

case, and I allow them to do so. 

Senator DEWINE. Judge Quarles, where do you come down on 

that? 

Judge QUARLES. I agree with Judge Frost. 

First of all, as you know from my background materials, I was 

an active litigator, an active trial attorney. 

Senator DEWINE. You have seen it from that side. 

Judge QUARLES. And I’ve seen it from that side, and, for some 

reason, the wisdom echoes in my mind, ‘‘Judge, if you’re going to 

try my case, please don’t lose it for me.’’ 

[Laughter.] 

Judge QUARLES. No attorney wants the judge to be overly involved in trying the case, and I’m not that far removed from being 

an active trial lawyer as to change that. 

We have a wonderful privilege as judges. We get to see the entire 

range of the legal community. We see very good lawyers; we see 

very bad lawyers. Each of them has something to teach the judge, 

as a judge, and I enjoy the vantage point of getting up there and 

an opportunity to watch the process. I enjoy watching the process. 

I feel no need to get in and try the cases any more. 

Senator DEWINE. Judge Erickson? 

Judge ERICKSON. Mr. Chairman, I agree with everything that 

Judge Quarles just said in the sense that when I used to try cases 

I was not always overly pleased when the judge interjected himself 

too forcefully into my case. 

One of the things that a judge needs to remember is that, in fact, 

you are the least-informed person in the courtroom. You know less 

about the facts than anybody else there, other than the jury, and 

if decide to interpose yourself into the case, you can rest assured 

that you will probably make a mess of it. 

So I have learned, through experience, that it is best to stay inside the role that I have, and that is to be the judge. 

Senator DEWINE. You are all in charge, though. 

Judge ERICKSON. Yes. 

Senator DEWINE. I do not think any of you are shrinking violets 

who will not be in charge. 

Judge Erickson, why do you want to be on the Federal bench? 

Judge ERICKSON. You know, I love being a trial judge. I get up 

every morning, and I think this is the best job in America, and I 

have an active caseload that’s both criminal and civil. I can’t think 

of anything else that I’d rather do, except be a Federal trial judge. 

Why? I have a firm belief that the Federal Courts provide a 

judge an opportunity to do this job in the best possible world, a 

place where you have complex cases, with adequate staff and adequate time to make the decisions the right way, to have available 

to you the resources that are necessary to decide those cases in an 

appropriate fashion, and I find it all very exciting. 

And the most important thing is I think the opportunity to do 

this job right. 

Senator DEWINE. I hope you are not disappointed on the time. 

62

[Laughter.] 

Senator DEWINE. I just pray that you have the time. 

Judge Quarles? 

Judge QUARLES. Judge Erickson puts it so well. There are moments when I sort of figuratively step out of myself and look and 

think what a wonderful privilege this is to be a judge. And like 

him, I also anticipate having the joy of doing the job with resources 

that our local court system just can’t spare. 

As I mentioned, we 1,000 criminal cases a week scheduled for 

trial. My average day when I am sitting in a felony assignment is 

somewhere between 15 and 20 cases scheduled for trial. I am sitting in a misdemeanor assignment now. My average day is 20 to 

30 cases scheduled for trial. 

I effectively have lost the morning. I spend the morning trying 

to get pleas and trying to get other cases resolved. So I am reduced 

essentially to trying a half day of cases each week, the afternoon, 

and I am trying hard to save the afternoon. 

There is a luxury in Federal court with criminal matters and 

civil matters in that the cases come one at a time. They come prepared for trial and I have the understanding that I will, in fact, be 

going to trial. 

The facilities—and I don’t mean to disparage the court that I 

serve on. I love the court that I serve on, the people I associate 

with, and I—as Judge Erickson says, you know, I can’t wait to get 

to work every morning to do the job. But it will be nice having the 

greater resources of the Federal system and a little more time to 

spend on each of the elements of the case. 

Senator DEWINE. Judge Frost? 

Judge FROST. I was a municipal court judge for 7 years and I 

found that to be a great job, an exhilarating job. I then left there 

and went on to the common pleas bench and I have been there for 

12 years now and I have found that to be a great job. 

I have been blessed to have a job that I enjoy and really enjoyed 

the people that I work with. But there are times when it is time 

to move on and this opportunity came about, and I think I would 

agree with Judge Quarles is one of the main things is to have the 

resources to study the law well and hard, and to make the decisions in a proper manner. 

Too many times now, I think we are all rushed to get to the judgment and then get to the next case. And so I think this will allow 

us more time for reflection, which I think is important. I want the 

job because I just think it is going to be a great opportunity for me 

to give something back. 

Senator DEWINE. Well, Judge Quarles, Judge Frost, Judge 

Erickson, thank you very much. This Committee has been very impressed by all three of you. I have been very impressed by all three 

of you. I think you are the type of people that should be on the 

Federal bench. You want to be on the Federal bench. All three of 

you have a very good track record. We know what you have done 

in the past. It is a very good predictor of what you will do in the 

future. 

I cannot speak for the chairman, but I think that the Committee 

will move fairly quickly—by Senate standards, at least, fairly 

63

quickly on your nominations and you will certainly be hearing from 

the committee. 

So we appreciate your time. We appreciate you coming to Washington, and thank you very much. 

Judge QUARLES. Thank you, Senator. 

Senator DEWINE. There is a possibility that written questions 

will be submitted to you in the next few days and we would just 

urge you, if that does occur—it may not, but if that does occur, that 

you get those questions back to us immediately, get the answers 

back to us immediately because, of course, that will speed up the 

nomination process. 

So we thank you and you are free to go or free to stay, whichever 

you would like to do, but you are finished for the day. Thank you 

very much. 

The Committee will recess subject to the call of the Chair as far 

as our circuit court nominee. This could occur at any time, so I 

would remind everyone that the nomination of our circuit court 

judge—the Committee could come back into session at any moment. 

Thank you very much. 

Judge FROST. Thank you, Senator, and thank you, staff. 

[The biographical information of Judges Erickson, Quarles and 

Frost follow.]

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[The Committee stood in recess from 11:05 a.m. to 11:58 a.m.] 

Chairman HATCH. Well, if I can have everybody’s attention, Senator Kennedy is not coming, I have been informed. Senator Schumer is not going to come, as well. Senator Feingold was the last 

one we thought would come. 

So with that, I think the three district court nominations and 

you, Mr. Bybee, have had a pretty nice day. We will allow enough 

time for our colleagues to write written questions to you, and I am 

sure a number of these colleagues will do that. 

I have to say that I had to be gone for a while and I caught just 

the last end of Secretary of State Powell’s remarks before the UN 

and I am telling you they were devastating. I have already chatted 

with a few people who heard the whole speech and they said he 

really laid it out, as I expected him to do. 

Let me just say this, Mr. Bybee. I have seen a lot of people 

around here and a lot of judges. Virtually everybody in the Federal 

judicial system has come through here during my 27 years of service and we have had a lot of really wonderful, outstanding people 

who are now serving on the Federal bench. 

I don’t know of anybody who has any more qualifications or any 

greater ability in the law than you have, and that is counting some 

pretty exceptional people. And I think that is one reason why this 

particular hearing has not been as much an ordeal as some of the 

ones others have had. I think there is a tremendous amount of respect for you, as there should be. 

We will try to put your nomination on next Thursday’s, after tomorrow, markup. It has almost become a general rule that the 

Democrats or somebody on the Committee will put over the nominations for at least one week. And generally, if the questions 

haven’t been answered, that will probably occur. 

There is a belief by some that there is a real effort to slow down 

this process. Now, I would be the last who would think that that 

has real merit. Come to think of it, there has been some of that, 

but I am hopeful that in your case and in the case of many, many 

others that we can get you through, get you on the bench and get 

you doing your life’s work, which is really what that will be, in the 

best interests of our country. And I have absolutely no doubt that 

your efforts will be in the best interests of our country. 

The other three district court nominees, we are very proud of 

them as well. 

So with that, we will close the hearing and thank you all for 

being here. 

[Whereupon, at 12:01 p.m., the Committee was adjourned.] 

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

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(221)

NOMINATIONS OF TIMOTHY M. TYMKOVICH, 

NOMINEE TO BE CIRCUIT JUDGE FOR THE 

TENTH CIRCUIT; J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF TENNESSEE; WILLIAM H. STEELE, NOMINEE TO BE DISTRICT 

JUDGE FOR THE SOUTHERN DISTRICT OF 

ALABAMA; THOMAS A. VARLAN, NOMINEE 

TO BE DISTRICT JUDGE FOR THE EASTERN 

DISTRICT OF TENNESSEE; TIMOTHY C. 

STANCEU, NOMINEE TO BE JUDGE OF THE 

UNITED STATES COURT OF INTERNATIONAL 

TRADE; AND MARIAN BLANK HORN, NOMINEE TO BE JUDGE OF THE UNITED STATES 

COURT OF FEDERAL CLAIMS 

WEDNESDAY, FEBRUARY 12, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:43 a.m., in Room 

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

Present: Senators Sessions, Hatch, Specter, Craig, Chambliss, 

Leahy, Kennedy, Feingold, and Schumer. 

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

SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. The Committee will come to order. Senator 

Hatch is on the floor. I think there continues to be debate on one 

of the judicial nominees, Miguel Estrada, an extraordinarily capable lawyer, and that debate is going on, and I think that is where 

he is, and I have been asked to commence the hearing. 

I am pleased to welcome to the Committee this morning six fine 

nominees to the Federal bench. We will be considering the nominations of individuals to the U.S. Court of Appeals for the Tenth Circuit, U.S. District Courts in Tennessee and Alabama, the Court of 

Federal Claims, and the Court of International Trade. So we don’t 

lack for a variety today. 

222

Our first panel will feature an excellent candidate for the appellate court, Timothy Tymkovich, who has been nominated to fill a 

seat on the Tenth Circuit Court of Appeals. Mr. Tymkovich’s hearing has been a long time in coming. He was first nominated on 

May 25, 2001, almost 2 years ago. So I am pleased to see him this 

morning. 

We will then turn to our second panel: Judge Daniel Breen for 

the Western District of Tennessee; Thomas Varlan for the Eastern 

District of Tennessee; Judge William Steele for the Southern District of Alabama; Judge Marian Blank Horn for the U.S. Court of 

Federal Claims; and Timothy C. Stanceu for the Court of International Trade. 

And, of course, I would like to express appreciation for the members who have taken time from their busy schedules to come and 

present their views on the qualifications of our witnesses and nominees today. We will hear from them in a moment. Let me now say 

a few words about each of our nominees. 

Timothy Tymkovich, a graduate of the University of Colorado 

School of Law, has worked as a partner in private practice since 

1996 representing clients in matters involving State licensing and 

regulatory issues. He has also acquired expertise in State and Federal election issues and has represented a variety of political parties and candidates. Mr. Tymkovich has been a great public servant for the State of Colorado, serving from 1991 to 1996 as the 

State Solicitor General where he acted as chief appellate lawyer for 

the citizens of Colorado. In that capacity, he ably represented the 

State in State and Federal courts, including the Colorado Supreme 

Court, the Tenth Circuit Court of Appeals, and the United States 

Supreme Court. 

When he left the Office of Solicitor General, the Denver Post editorialized, ‘‘In an age in which lawyers and government workers 

are often held in low esteem, Tymkovich, a member of both groups, 

has stood in stark contrast to both stereotypes.’’ The Post added, 

‘‘Tymkovich has set a high standard of service.’’ And that is high 

praise. 

Mr. Tymkovich’s nomination has drawn powerful support from 

all corners. He enjoys the unqualified endorsements of Colorado’s 

Senators Campbell and Allard, both of whom I am glad to see here 

today; a number of former Colorado Supreme Court Justices, the 

Colorado Governor, the current Attorney General, and Colorado’s 

major newspapers—the Denver Post and the Rocky Mountain 

News. I firmly believe Mr. Tymkovich will make a great member 

of the Tenth Circuit. 

As I said, we will also consider the nominations of five other individuals to the bench. Our nominee for the Western District of Tennessee, Judge J. Daniel Breen has served with distinction on both 

sides of the docket. An experienced civil litigator, he served as a 

United States Magistrate Judge since 1991. 

Thomas Varlan, our nominee for the Eastern District of Tennessee, currently practices law in the areas of government relations, labor law, and employment law. For 10 years, he was the law 

director for the city of Knoxville. 

Judge William Steele, nominated for the Southern District of 

Alabama, has served as an Assistant United States Attorney—

223

helping a poor U.S. Attorney at that time who needed all the help 

he could get—and as a private practitioner, and since 1990 Judge 

Steele has served as a magistrate judge for the United States District Court for the Southern District of Alabama. Magistrate judges 

are chosen on a very competitive basis by the courts, and they use 

them a lot. 

Judge Marian Horn, nominated to the Court of Federal Claims, 

has served in the Departments of Energy and Interior and is currently an adjunct professor of law at George Washington University School of Law. Since 1986, she served as a judge for the United 

States Court of Federal Claims. 

Last, but not least, Timothy Stanceu, our nominee to the United 

States Court of International Trade, has worked for the Environmental Protection Agency, as a Deputy Director of the Treasury 

Department’s Office for Trade and Tariff Affairs. In 1990, he joined 

the law firm of Hogan and Hartson where he concentrates in the 

field of international trade and customs. 

I look forward to hearing from all our nominees today and to 

working with my colleagues to bring their nominations to a vote 

very soon. Again, I welcome you all. 

As is our tradition or policy in the committee, the Circuit Court 

nominees, the Senators and Members of Congress for them would 

be offered the opportunity to speak first, and then Senators in 

order of their seniority would be allowed to speak on the District 

Court nominees. 

Senator Campbell, would you like to lead off? 

PRESENTATION OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON. BEN 

NIGHTHORSE CAMPBELL, A U.S. SENATOR FROM THE STATE 

OF COLORADO 

Senator CAMPBELL. Thank you, Mr. Chairman. I am going to 

make my statement somewhat brief, partly because I have to chair 

a hearing myself at 10 o’clock and partly because you have already 

mentioned some of the outstanding qualities of Tim Tymkovich, the 

gentleman I am going to introduce, to serve on the Tenth Circuit 

Court of Appeals. 

It is a pleasure to be here with my friend and colleague and relative, Senator Allard, to introduce a very good man who is well 

qualified as a jurist, and I hope you will agree. It is my understanding that you met Mr. Tymkovich in your past life as Attorney 

General of your State and had worked with him on several things. 

I am also pleased that his wife, Suzanne Lyon, and their two 

sons, Michael and Jay, are here with us today to witness this important nomination of their Dad. 

Mr. Chairman, Tim Tymkovich is well qualified to serve on the 

Tenth Circuit. He is a native of Colorado, an excellent jurist, and 

an outstanding person who will be a terrific addition to the Tenth 

Circuit Court. Since he earned his doctor’s degree, his juris doctor, 

as you mentioned, as the University of Colorado in 1982, he has 

had an outstanding career which I consider to be well balanced as 

a combination of both public service and private practice, too. Tim’s 

public service experiences included serving as a clerk for the 

former Colorado Court Chief Justice William Erickson from 1982 to 

224

1983. From 1991 to 1996, as I think you mentioned, he served as 

Colorado’s Solicitor General. And in between those years of public 

service, he earned an excellent reputation in private practice with 

several of our leading firms. 

For the past 2 years, he had served as counsel to Colorado Governor Owens’ Columbine Review Commission, which reviewed the 

public agency and law enforcement response to the tragic Columbine High School shootings of 1999. At the same time, he cochaired the Governor’s Task Force on Civil Justice Reform, which 

has led to improvements of Colorado’s civil justice and practice. He 

currently serves as a partner in the Denver-based law firm of Hale, 

Hackstaff and Tymkovich. 

You mentioned two of Colorado’s leading newspapers have positively endorsed him. You mentioned some of the things they did 

say. They also said that he has gained a local reputation as a 

thoughtful, insightful attorney who knows the law and works hard 

to uphold it. That was in the Denver Post. I know that they have 

given Tim Tymkovich a very serious look, and I agree with them 

when they say that he is someone who combines intellectual heft 

and a steady temperament. 

So I just wanted to add my voice to that, Mr. Chairman, and tell 

you that I think it has been long overdue. You mentioned that it 

has been almost 2 years since he was first nominated, and I would 

hope that he would get the speedy approval of this Committee and 

the U.S. Senate. 

Thank you. 

Senator SESSIONS. Thank you, Senator Campbell. 

I am going to ask Senator Larry Craig to preside for a few moments. I have to leave for the necessity of a quorum just briefly in 

the HELP Committee, and I would recognize Senator Wayne Allard, my colleague, for your comments. 

PRESENTATION OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE TENTH CIRCUIT BY HON. WAYNE 

ALLARD, A U.S. SENATOR FROM THE STATE OF COLORADO 

Senator ALLARD. Thank you, Mr. Chairman. It is a great honor 

to be able to introduce, along with my colleague from Colorado, 

Senator Ben Nighthorse Campbell, Tim Tymkovich to the Judiciary 

Committee. He is the President’s nominee to the Tenth Circuit 

Court of the United States Courts of Appeal. And Mr. Tymkovich 

has tremendous respect in the State of Colorado. You went over 

many of those accolades in your introduction, Mr. Chairman. My 

senior colleague from Colorado went over many of those. I will try 

not to repeat what has already been said. But the fact is he has 

been able to work in a bipartisan way, and he is well recognized 

in Colorado for his ability in his legal profession and is somebody 

that is respected, no matter who you are, because he is such a dedicated professional. 

This hearing has been a long time in the making, several letters 

and several floor statements and indeed several years after the 

date of the nomination. So I thank you again, Mr. Chairman, and 

the Committee for providing this hearing. 

I also want to thank Senator Campbell, the senior Senator from 

Colorado, and congratulate him for his fine remarks. 

225

First, I would like to welcome Mr. Tymkovich’s wife to the hearing, Suzanne Lyon, as well as their two sons, Michael and Jay, and 

their family and the guests. I am sure that he will introduce them. 

I don’t know what exactly is your format here in the committee, 

but frequently we have them introduce their family. I want to 

make sure that is covered. 

The nomination process is indeed a grueling process, and I hope 

it is no more difficult, though, than being elected to the Senate. 

I am sure it has been your family’s continued support and encouragement that has provided the strength and energy Tim has 

needed in order to stand steadfast in pursuit of this most worthy 

endeavor. In a moment, I will share with you some truly stirring 

comments Mr. Tymkovich made to me during a recent conversation, but first, I had some comments I was going to direct to Senator Grassley on the committee. Unfortunately, he is not here right 

now, and many of us are tied up with a lot of other things that are 

going on. But just it is kind of interesting, and the fact is that Tim 

Tymkovich reminded him that Suzanne has actually spent time—

that is Tim Tymkovich’s wife—on Grassley’s staff and is a native 

of Des Moines, Iowa. In fact, I am told Suzanne’s mother, Janet 

Lyon, actually managed one of Senator Grassley’s first campaigns 

for public office. I wish he had been here in the committee. We 

could have made a nice tie-in there with Senator Grassley. 

Mr. Chairman, when considering the nomination, please know 

that Tim Tymkovich has my unequivocal support. The confirmation 

of his nomination by the Senate will prove to be a great service to 

the people of the United States. 

As you know, his nomination has enjoyed broad and bipartisan 

support, support from judges, colleagues, both Democrat and Republican Governors. He is well respected for his approach to the 

law and to problem solving. He manages cases and clients with civility and understanding, setting a high example for the legal community. Tim Tymkovich understands the West, its community and 

its past. In fact, he informed me that he knows where all the outlaws are in the Tenth Circuit and where they hang out, valuable 

insight, I think, for a Federal judge. 

Now, how does he know might be a question this Committee 

would ask. Well, he spent many years traveling with his wife as 

a Western historian and novelist. Together they have traveled extensively, uncovering the old stomping grounds of legendary Western figures, like Butch Cassidy and others. Undoubtedly, this deep 

knowledge of the West will aid in his duties. 

Tim Tymkovich’s commitment to public service is unparalleled. 

Through our conversations, I have developed a strong understanding of Tim’s deep personal commitment to public service and 

his long respect for the rule of law and protecting people and the 

interests of the State. 

Mr. Tymkovich’s legal credentials reveal him a man who values 

independence and fairness in the judicial process and understands 

the implications of a lifetime appointment to our Nation’s courts. 

Mr. Chairman, Tim Tymkovich is a man who truly believes that 

there is no higher calling than to serve the American people 

through the impartial administration of the law. He will serve our 

Nation with the utmost of respect to our country and our ConstituVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00239 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.000 SJUD4 PsN: CMORC
226

tion, and for this reason, I urge you to forward his nomination to 

the Senate with a favorable recommendation. 

Thank you, Mr. Chairman, and our thanks to the committee. 

Senator CRAIG. [Presiding.] Before I turn to Senator Shelby, I 

thank you for those comments, Senator Allard. I wanted to put in 

the record a statement by Senator Grassley, who couldn’t be here 

this morning, who did not want the presence of Mr. Tymkovich and 

his wife, Sue Lyon, to be unnoted in relation to the native Iowan 

and former intern in the Senator’s office that Mrs. Tymkovich was. 

So I will put that statement in the record on behalf of Senator 

Grassley. 

Senator CRAIG. With that, thank you very much. 

Senator ALLARD. Thank you, Mr. Chairman. 

Senator CRAIG. I will turn to Senator Richard Shelby of Alabama 

to visit with us about William H. Steele. Thank you very much. 

PRESENTATION OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE FOR THE SOURTHERN DISTRICT OF ALABAMA 

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

STATE OF ALABAMA 

Senator SHELBY. Thank you, Senator Craig, Senator Chambliss. 

I regret that my colleague and friend, Jeff Sessions, had to leave 

for a minute, but I can tell you he is in big support of William H. 

Steele, who worked with him, as Jeff just said, in the U.S. Attorney’s Office. 

Mr. Chairman, it is a privilege for me to be here on behalf of William H. Steele’s nomination for the United States District Court for 

the Southern District of Alabama. Judge Steele has a long record 

of public service and accomplishment, a distinguished record. Prior 

to entering the legal profession, he served in the United States Marine Corps as an aircraft commander and operations officer. He 

later served in the Alabama National Guard for 18 years as the 

commanding officer of an assault helicopter company. Judge Steele 

is also a founding member of the Child Advocacy Center and currently serves on the board. As a result of his work in the area of 

child abuse intervention, Judge Steele was awarded the City of Mobile’s United Citizen Service Award, a great honor. 

After graduating law school from the University of Alabama, 

Judge Steele served as an Assistant District Attorney for Mobile 

County, where he subsequently attained the position of Chief Assistant District Attorney. He then went on to serve as an Assistant 

United States Attorney, as I said, under Jeff Sessions with the Department of Justice. He later worked in the private law firm of 

Thetford and Steele, during which time he also served as a municipal judge there. Currently, he is a magistrate, a distinguished 

magistrate, at the United States District Court for the Southern 

District of Alabama. And as a magistrate, he is trying cases all the 

time. 

He is well respected at the bar, both sides of the political aisle, 

Democrats and Republicans. His legal experience makes him an 

ideal candidate for the position of Federal District Court judge. As 

a Federal magistrate, he has already handled many full civil trials 

involving issues such as trade secrets, contract disputes, employment discrimination, and torts. You name it. 

227

Mr. Chairman, I support Judge Steele’s nomination without reservation. His extensive judicial experience as a prosecutor and a 

Federal magistrate make him well prepared to assume the responsibilities of a United States District Court judge. I am confident 

that he will serve with honor and distinction in the new role, and 

I urge the Committee to send his nomination to the full Senate as 

soon as possible. 

Mr. Chairman, I ask that my full remarks be made part of the 

record. 

Senator SESSIONS. [Presiding.] Thank you, Senator Shelby, and 

I appreciate your insight into that. I know as a former lawyer, like 

I was, that you take these matters very seriously. 

Senator SHELBY. It is a serious appointment. 

Senator SESSIONS. It is. 

Senator SHELBY. And a very highly qualified appointee for this 

job. 

Senator SESSIONS. Thank you, and I know you talked to a lot of 

mainstream practicing lawyers before you— 

Senator SHELBY. And I mentioned, I don’t know if you heard, but 

I have had a lot of calls from Democrats and Republicans in the 

Mobile area that practice in the bench in the last few days and 

they said please support Bill Steele because he is fair, he is prepared, he will make an outstanding judge. And I think you can’t 

have a better recommendation. 

Senator SESSIONS. Thank you. I agree with that. That is the 

exact reputation that I continue to hear from the lawyers in Mobile 

where I practiced my career. They are very, very high on him. 

Thank you. You can stay with us, or you are free to— 

Senator SHELBY. I am going to leave it up to you, and I know 

he is going to sail through. You are going to help him, and I am 

going to help you. 

[Laughter.] 

Senator SESSIONS. All right. Thank you. 

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

Senator SESSIONS. Senator Alexander? 

PRESENTATION OF J. DANIEL BREEN, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE 

AND THOMAS A. VARLAN, NOMINEE TO BE DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF TENNESSEE BY HON. 

LAMAR ALEXANDER, A U.S. SENATOR FROM THE STATE OF 

TENNESSEE 

Senator ALEXANDER. Mr. Chairman, it is my privilege today to 

recommend on behalf of Senator Frist and myself two outstanding 

Tennesseeans. As the other Senator suggested, I have a lot of respect for this proceeding for two reasons. One, while I was Governor, I appointed about 50 judges, and I found that they outlasted 

me in terms of influence, and so I do this process very carefully. 

And, second, I had the privilege, as you and your families have 

today, of being confirmed by the United States Senate and seeing 

what a remarkable process it is. So I welcome you here and respect 

you for being here. 

228

Senator Frist, our Majority Leader, joins me in that welcome. He 

is at least as enthusiastic as I am about it. He had a lot to do with 

your being here. He has a lot of duties as the Majority Leader 

today, so he sent his warmest wishes and a message which I am 

going to leave with the committee, which will reflect his enthusiasm for your presentation. 

Just very briefly, Dan Breen and Tom Varlan have been nominated to be United States District judges for the two ends of our 

State, the Western District and the Eastern District of Tennessee, 

which are very different parts of the world. But while they represent different parts of our State, they come with many of the 

same kinds of credentials. They both have exceptional academic 

records. They both have lots of practical experience in the practice 

of law and in judging. They both are extremely active in their respective communities. And they both have wide respect among 

members of the bar and in those communities. 

Judge Breen is the United States Magistrate Judge for the Western District of Tennessee now. He graduated first in his class in 

college. He has the highest rating from the American Bar Association. He has been an author and he is well known for his thoughtful judicial temperament, and it is a great privilege to be here to 

recommend him. 

Tom Varlan in the same way graduated with the highest honors 

at the University of Tennessee and Vanderbilt University. He has 

been in the private practice of law. He has been law director of the 

City of Knoxville. He comes to the bench, as does Dan, with real 

practical experience and respect for the law. 

I used to say when I appointed judges that among the things 

that I hope they would remember is that once they ascend the 

bench for a long term, in this case a life term, that they would remember to be courteous to all those who came before them. And 

I think that is important as any other qualification. But on behalf 

of the people of our State and Senator Frist and myself, it is a 

great honor to recommend two such exceptional men as Tom 

Varlan and Dan Breen, and I am delighted they are here with their 

families. 

Senator SESSIONS. Thank you, Senator. 

Senator Specter, I would recognize you for your comments at this 

time and would note that Senator Specter, of course, is a senior 

member of this committee, himself an outstanding practicing attorney and prosecutor, and just a very knowledgeable person in the 

law. Senator Specter? 

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

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chairman. Just a 

comment or two. 

I welcome all of the nominees and their families and others who 

are here today. Do not be surprised at the number of Senators who 

are here because this is a very, very busy day. As you doubtless 

know, we have the nomination of Miguel Estrada on the floor. We 

are finishing up the omnibus appropriations bill. And there are 

many, many competing hearings. But we will follow what is going 

on very, very closely on the nominating process. 

229

Senator Alexander articulated a chord which is worth just a 

minute. When I was here in this room back in 1982 on the nomination of two Pennsylvania judges, Judge Caldwell and Judge 

Mansman, Senator Thurmond, who was the Chairman of the committee, said, in his inimitable Southern drawl, ‘‘If confirmed, do 

you promise to be courteous?’’ And I translated that to be, ‘‘If confirmed, do you promise to be courteous?’’ 

[Laughter.] 

Senator SPECTER. And I said, What an unusual question. What 

does Senator Thurmond expect the nominees to say but yes? And 

then he added to it, ‘‘Because the more power a person has, the 

more courteous the person should be.’’ 

Senator Sessions understands that. 

Senator SESSIONS. That is pretty close. 

[Laughter.] 

Senator SPECTER. He is from the South where they understand 

this dialect, frequently articulate it themselves. The more power a 

person has, the more courteous the person should be. Whenever 

Senator Thurmond is not here—and he has, of course, left the Senate, an extraordinary record—I take a moment to say that, because 

when you become a judge and you have litigants and lawyers who 

appear before you, it is not unusual to be a little distressed with 

some of the things that go on. And that is a great admonition. And 

on the selections which Senator Santorum and I make on our judicial nominating panel for Pennsylvania, we are very, very concerned about that item. 

Senator Allen just walked in, and I always make it a point when 

Senator Allen walks in just to finish the sentence. 

Senator ALLEN. Go ahead. 

Senator SPECTER. I just did. Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you, Senator Specter. Wise comments. 

Senator CHAMBLISS. Mr. Chairman? 

Senator SESSIONS. Senator Chambliss? 

Senator CHAMBLISS. Before you leave Judge Breen and Mr. 

Varlan, as a graduate of the University of Tennessee myself, I notice they are both graduates of that fine institution, so I am very 

confident that their educational background will make them excellent judges. So I am pleased to look forward to their confirmation. 

Senator SESSIONS. I have no doubt of it. 

Senator Allen? 

PRESENTATION OF TIMOTHY C. STANCEU, NOMINEE TO BE 

JUDGE OF THE UNITED STATES COURT OF INTERNATIONAL 

TRADE BY HON. GEORGE F. ALLEN, A U.S. SENATOR FROM 

THE STATE OF VIRGINIA 

Senator ALLEN. Thank you, Mr. Chairman. 

Senator SESSIONS. You didn’t get caught in traffic also, did you? 

Senator ALLEN. No. This is my fourth meeting of the morning. 

Senator SESSIONS. I am hearing that. I had a note here that several of our members are having trouble in some traffic snarl. We 

probably need a new bridge to Virginia, I am sure. 

[Laughter.] 

Senator ALLEN. Or at least widen the 14th Street Bridge. It is 

important for national security and homeland defense. 

230

Senator SESSIONS. I have no doubt. 

Senator ALLEN. This is about the fourth or fifth event of the 

morning for me. I am delayed because I am on the Commerce Committee, and we are having a hearing with Mr. O’Keefe on the 

NASA disaster of the Columbia. So thank you for fitting me in 

here, Mr. Chairman and members of the committee. 

I am here for the privilege of introducing an outstanding gentleman from Arlington, Virginia, for your consideration as the 

President’s nominee to be a judge of the United States Court of 

International Trade. That gentleman is Timothy, or Tim, Stanceu. 

He is an extraordinarily well-qualified individual for the appointment to this important Court of International Trade. He is recognized as an expert in many of the issues that are under the jurisdiction of the CIT through his extensive experience both in Government and in public service as well as in the private sector. 

Mr. Stanceu served in the public sector from 1974 to 1989 in the 

U.S. Department of Treasury as the Deputy Director of Trade and 

Tariff Affairs and as the Special Assistant to the Assistant Secretary for Enforcement and Operations. His responsibilities in 

these positions included regulatory and policy issues involving the 

U.S. Customs Service. 

For the past 13 years, Mr. Stanceu has been with the Washington law firm of Hogan and Hartson. Most of his practice has involved customs laws, antidumping, and countervailing duty proceedings. 

Mr. Stanceu has also represented clients before the Customs 

Service, the Office of the U.S. Trade Representative, the Commerce 

Department, the International Trade Commission, the foreign 

trade zones issues as well, and the Court of International Trade, 

the very court to which he is nominated to serve. 

Mr. Stanceu is also a frequent lecturer and instructor on customs 

and other international trade law topics at the University of Maryland Law School. 

If you all look at his very distinguished career in public and private service in those positions, I cannot imagine the President finding a more qualified person on the face of the earth to be serving 

in this important Court for International Trade. And I understand 

Mr. Stanceu’s family is also with him today: his wife, Mary, who 

is an Assistant U.S. Attorney; Mitzi Mewhinney, his mother; and 

Dick Mewhinney, his stepfather; and Patrician Hallissy, his sister. 

Unfortunately, Mr. Chairman and members of the committee, 

this new job will require Mr. Stanceu to move from Virginia to New 

York City, where the court is located, meaning he will no longer 

be a resident, I suspect, of our wonderful Commonwealth of Virginia. But I am sure the Senator from New York will make him 

feel very welcome in New York City. 

Senator SCHUMER. I will welcome him to New York State. 

Senator ALLEN. Okay, that is a nice way of saying it. If that will 

help move him through expeditiously, Mr. Chairman, again, it is 

my pleasure to present to this Committee an outstanding, truly exceptional individual with the background, the knowledge, and capabilities to serve us on the Court of International Trade. And I think 

that you will recognize that as you interview him, look through his 

231

record, and I hope you will be able to, as promptly as practicable, 

move his nomination for confirmation. 

Thank you, Mr. Chairman and members of the committee. 

Senator SESSIONS. Thank you, Senator Allen. I know you do have 

to get back to the hearing on science. 

Senator ALLEN. Thank you. 

Senators Chambliss or Schumer, do you have any opening comments you would like to make? 

Senator SCHUMER. No. 

Senator CHAMBLISS. No. 

PRESENTATION OF WILLIAM H. STEELE, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA 

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

OF ALABAMA 

Senator SESSIONS. I would make my remarks today in reference 

to Judge William Steele. 

Judge Steele served in the Marine Corps, was a helicopter pilot, 

completed his tour of duty, came to the University of Alabama 

School of Law and got his degree there, did well. He came to Mobile and worked for the District Attorney, Chris Galanos, who was 

a Democratic administration, rapidly rose to his chief assistant. 

During that time I was United States Attorney, and my staff and 

Chris Galanos’ staff worked together on quite a number of cases, 

some big cases, one of them being the terrible murder of Michael 

Donnell and hanging of his body in Mobile by a Klan group, and 

we worked together through those intense days. And Bill Steele, 

according to all the people in my office and my personal observation, was just a rock of integrity and judgment in those times. So 

when we had the opportunity, I was able to hire him as an Assistant United States Attorney. He worked in my office for a couple of 

years and then went into private practice. 

A vacancy became available for the position of United States 

Magistrate Judge, which in the Southern District of Alabama is a 

very important position. It is important in most districts, but I 

don’t think there is a district in America that demands more of the 

magistrate judges, calls on them to do more complex work than in 

the Southern District of Alabama. A very competitive position, 

probably 40 or 50 or 60 people applied. The judges in that district, 

knowing they are going to rely on the magistrates for important 

matters, take that selection process very seriously, and he was selected on merit for that position, and since then has served with 

extraordinary skill and capability, winning support throughout the 

area for his judgment and integrity. 

I just thought I would mention a few things that you hear from 

the local community about his abilities. Virtually all the—the 

present president of the Mobile Bar Association and the other 

members, former presidents of the bar have endorsed him. The 

Vernon Z. Crawford Bay Area African-American Bar Association in 

Mobile gave Bill Steele their unanimous endorsement, saying, ‘‘The 

Association strongly recommends Magistrate Bill Steele for the position because he recognizes and is sensitive to the issue facing African-American lawyers and the African-American community. We 

give Magistrate Steele our highest recommendation.’’ 

232

Major General Gary Cooper, retired from the U.S. Marine Corps, 

the first African-American Marine general, President Clinton’s Ambassador to Jamaica, grew up in Mobile, said, ‘‘As an AfricanAmerican citizen of Mobile and as a retired Marine, I appreciate 

what William Steele has done for his community as a county and 

Federal prosecutor, as a Federal magistrate, and what he has done 

for his country as a Marine helicopter pilot. His record indicates he 

will make a fine judge.’’ 

Carlos Williams, Chairman of the Southern District of Alabama 

Federal Defender Organization, an African American, noted that, 

‘‘During the years I have practice in Judge Steele’s court, I have 

come to know a jurist of integrity, professionalism, and compassion 

and have grown to respect his judgment. I note that every lawyer 

in my office—Christin Gartman Rogers, Kay Lynn, Hillman Campbell, Christopher Knight—in unsolicited comments have expressed 

their support for his nomination. It is, therefore, without hesitation 

that I send this letter of support of Magistrate William Steele’s 

nomination to the United States Court of Appeals.’’ 

That group is the one that defends the criminal cases in Federal 

court. They have an opportunity to know whether a magistrate 

judge is fair or not. And I think that was a strong comment. 

But I will just mention this, one more before I—a couple more 

comments I think I will make. I just have so many. 

Merceria Ludgood, assistant county attorney now for Mobile 

County, and former program director for the Legal Services Corporation in Washington, D.C., and a former executive director of 

the Legal Services Corporation for the entire State of Alabama, an 

African American, made this comment, and it captures him so well: 

‘‘Magistrate Judge Steele is one of the finest men I have ever 

known. Never once have I believed his actions to be motivated by 

politics or ambition. He simply wants to do the right thing for the 

right reasons.’’ And that is the Bill Steele that everybody knows in 

the Southern District of Alabama who practiced before him. 

I would note that he has support from a host of other people, including the bar. Greg Breedlove, on behalf of the law firm of 

Cunningham, Bounds, Yance, Crowder and Brown, a prominent 

Democratic plaintiff firm in Mobile, one of the best plaintiff firms 

in the country, if you want to know the truth, send their unanimous support for Judge Steele, and I have had several members of 

the firm tell me that they are just exceedingly impressed with his 

integrity and ability and strongly support his nomination. 

So I say that to say that his support goes across racial and political bounds. It represents the considered judgment, I believe, of the 

bar and practitioners in the Southern District of Alabama. 

All right. Opening statements are done, and I will offer a formal 

statement for the record. 

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

Senator SESSIONS. At this time I would call on Mr. Tymkovich, 

the Court of Appeals nominee, as our first witness. 

Mr. Tymkovich, would you stand and be sworn, please? Do you 

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

truth, so help you God? 

233

Mr. TYMKOVICH. I do. 

Senator SESSIONS. Thank you. Please be seated. 

Congressman Cannon, I am glad you finally go through that traffic jam. I appreciate your coming, and I won’t ask Mr. Tymkovich 

to move. Maybe you can sit right there. 

Mr. CANNON. I hope this won’t affect anything that ever happens 

before him in his court. 

Senator SESSIONS. That is the center seat you have. Thank you 

for coming. I know you have some comments about one of our 

nominees. 

PRESENTATION OF MARIAN BLANK HORN, NOMINEE TO BE 

JUDGE OF THE UNITED STATES COURT OF FEDERAL 

CLAIMS BY HON. CHRIS CANNON, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF UTAH 

Representative CANNON. Thank you, Mr. Sessions, Mr. Schumer. 

It is a pleasure to be here today to introduce my dear friend, Marian Horn, whom I think you are going to be considering today for 

an appointment back to the bench for the Court of Claims. 

It is a great honor for me. I have known Marian since 1983 when 

I took her job. She was elevated to become an Associate Solicitor 

at the Department of the Interior for General Law, and I became 

the Deputy Associate Solicitor for Surface Coal Mining. I shortly 

thereafter became an Associate Solicitor, so we were peers, although never equals in our experience with the law or coal mining. 

In that capacity, I got to know Marian and her family well, her 

three daughters, her husband. Our families became close. I was 

trying to think on the way over here. We worked on literally dozens 

of relatively small issues and several major issues together. During 

that period of time, I found that her judgment was exceptional, 

thoughtful, considered, and I can’t recall a time that she was 

wrong. And we also dealt with many, many minor issues, and she 

was right on those as well. 

In thinking about what I could say about Marian, it occurred to 

me that over the course of her judgeship I have run into four or 

five or six people who have clerked for her in the past. And while 

they all said very nice things about her and had different experiences, the one thing that came through that everyone talked about 

was the fact that it was a great learning experience and they 

learned a lot from her. She has taught in a couple of different capacities in law school. I think she understands the law well. I think 

she has done a great job as a judge. And I would recommend her. 

It is my honor to introduce her, and I apologize, Mr. Chambliss. I 

didn’t look over in this direction. But you are on the wrong side, 

aren’t you? 

[Laughter.] 

Representative CANNON. Thank you for your time and attention. 

Senator SESSIONS. Thank you, Congressman. We appreciate 

those comments. 

Our ranking member, Senator Leahy, do you have any comments 

before we call our first witness? 

Senator LEAHY. No. I was tied up over on the floor. You folks 

have a matter over there, and so I was doing that. But I am delighted to see the Congressman and others who are here. 

234

I do have one short statement concerning six nominees for appointments to the Federal bench, and I am glad that we are going 

back to Senator Hatch’s precedent he established when he was 

Chairman before of having one Court of Appeals nominee plus 

whatever other nominees are on. I think that is helpful. It allows 

us to have better attention to it. There is a lot of staff work and 

Senators’ work to go into each one of these hearings preceding 

them and going through the backgrounds. When you toss out, for 

example, three Courts of Appeals nominees in 1 day, it is impossible to do that. And it can be done quickly if you do it right. For 

example, during the less than a year and a half that Democrats 

chaired this committee, we greatly accelerated the pace of nominees from before. During the Clinton era with Republicans in 

charge, nominees were slowed up, I thought unnecessarily. We confirmed 100 of President Bush’s nominees in 17 months, but we did 

it step by step so that both sides of the aisle would know what we 

are doing so we don’t end up like a conveyor belt, which really 

makes the American public wonder just what we are doing. 

We are moving with Tim Tymkovich for a seat on the Tenth Circuit. He is from Colorado. And I am glad to see that he is having 

a hearing. I think he should have. 

I would note that when President Clinton nominated two different people to fill that seat, Jim Lyons and Christine Arguello, 

they were not allowed to have a hearing. And I thought that was 

unfortunate. Mr. Lyons was among the many Clinton nominees 

who had the highest rating, something that, Mr. Chairman, you 

and members of your party have been talking about, people with 

the highest ratings, on the floor. And I think one of you said they 

should at the very least all get a hearing. Well, Mr. Lyons had that 

‘‘well qualified,’’ the highest rating by the American Bar Association. He was never granted a hearing. Ms. Arguello, who is a talented Hispanic attorney whose nomination had significant support 

from her community, including the two Republican Senators from 

her State, she was denied a hearing also, and the seat remained 

open. They had these very highly qualified ratings, but they were 

not allowed to have a hearing by the Republican leadership of the 

committee. 

Mr. Tymkovich has a good record in private practice and Government, seems impressive, and I am interested to know more about 

him. I would note that the American Bar Association gave this 

nominee a partial ‘‘not qualified’’ rating. I am so glad he is having 

this hearing, but I would note that there is a little bit of a double 

standard here when you have two Democratic nominees with the 

highest ratings and they were not even allowed to have a hearing. 

I have more things to say. I will put them in the record so as 

not to hold this up and will look forward to hearing the answers 

from the nominee. 

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

Senator SESSIONS. Thank you, Senator Leahy. I know that some 

nominees did not clear last year. Forty-one were left pending when 

President Clinton left office. Fifty-four had not cleared and were 

left pending when President Bush left office. And only one nominee 

235

was voted down on the floor of the Senate, and none were blocked 

in Committee during the time the Republicans chaired this. But— 

Senator LEAHY. Mr. Chairman, that is not— 

Senator SESSIONS. —I know you feel that there are different ones 

that had different problems that you didn’t feel were fair, but I 

think overall the Congress moved pretty well with the Clinton 

nominees. 

Senator LEAHY. Well, Mr. Chairman, that is not totally accurate. 

For one thing, you say they were not voted down. They were never 

voted. They were never brought up for a hearing. These two with 

the highest qualification ratings from Colorado, one Hispanic 

woman supported by two Republican Senators, was still never allowed a hearing. That is my point. It is easy to talk about who gets 

voted up, who gets voted down, if they are allowed a vote. They 

were not allowed a vote in the committee. They weren’t even given 

hearings. That is the concern. Were there several on the end of the 

first President Bush’s term? Yes, there were. You may recall the 

reason. I don’t know if you were here at the time, but they were 

nominated after the application of the Thurmond rule, named after 

Senator Strom Thurmond, whom you will recall served here for so 

many years. And under that rule, nominees, except in extraordinary circumstances, if nominated in the last 6 months of a President’s term, were not given hearings. This was a Republican-instituted rule that was followed in that case, although I must say the 

Democratic Chairman of the Committee at that time asked and got 

consent for a number of President Bush’s nominees that would 

have fallen under the rule. He still put them through and arranged 

for them to go through. 

There was also the assumption that President Bush was—and I 

think the reason the Republicans were glad to use the Thurmond 

rule was they assumed that President Bush was going to be reelected. He wasn’t. 

But I also know in that case one of those nominees, a Republican 

from my State, the Second Circuit, a conservative Republican, 

when President Clinton became President, I went down and urged 

President Clinton to appoint this conservative Republican to the 

Second Circuit, and he did. 

But I just pass that for history. 

Senator SESSIONS. Well, I will admit there were 41 that were not 

confirmed. With regard to Mr. Lyons, he was nominated, and then 

his nomination was withdrawn because there was no home State 

support. And I know you expect your Democratic Senators to be 

consulted. And Christine Arguello was nominated in late July and 

just did not clear before the election. 

But, anyway, I would say this—and I hope we can get a vote for 

Miguel Estrada. Maybe you can support us on that. 

Senator LEAHY. Well, in fact, we could have a vote very, very 

quickly on Mr. Estrada if Mr. Estrada were to—we have a number 

of others, very controversial nominees of President Bush, very conservative ones, all of whom answered the questions they were 

asked, all of whom got votes when the Democrats were in charge. 

I think of Professor McConnell and others who fall in that category, 

some from your own neck of the woods. As Senator Daschle and I 

told President Bush yesterday, we would urge that we have a vote 

236

on Miguel Estrada as soon as he answers the questions. in fact, he 

stated under oath that he had no objection to answering these 

questions, but the White House told him not to. If they would 

change their view, let Mr. Estrada do what he said under oath that 

he is perfectly willing to do, we could probably have a vote on him 

very quickly. 

Senator SESSIONS. Maybe that will happen. 

I have a letter from Senator Frist, our Majority Leader, with regard to nominees Judge Daniel Breen and Tom Varlan. He concludes saying, ‘‘I am convinced Dan Breen and Tom Varlan are 

ideal candidates, and they have my highest recommendation and 

unqualified support.’’ 

I will place that in the record. 

Mr. Tymkovich, sorry to interrupt you. We are glad you are here. 

STATEMENT OF TIMOTHY M. TYMKOVICH, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE TENTH CIRCUIT 

Mr. TYMKOVICH. Thank you, Mr. Chairman. 

Senator SESSIONS. Mr. Tymkovich, the Founding Fathers believed that the separation of—did you have an opening statement? 

We would be glad to hear that. I didn’t give you that opportunity. 

Mr. TYMKOVICH. Mr. Chairman, I do not. I had a few introductions, if I may. 

Senator SESSIONS. Please, that would be wonderful. 

Mr. TYMKOVICH. Thank you, Senator. With me today is my wife, 

Sue Lyon, the noted Western novelist, I might add, who writes 

about Utah and Wyoming and Colorado and other parts of the 

Tenth Circuit history. 

Senator SESSIONS. If it is not perfectly favorable, that might 

make Senator Hatch nervous because he sees nothing but good in 

Utah. 

[Laughter.] 

Mr. TYMKOVICH. Well, it is about a few bandits, but they had a 

good heart to them, also. 

My sons, Michael and Jay Tymkovich, who are students at Peak 

to Peak High School in Lafayette Colorado. In the back of the room 

are my father and mother, Carla and Michael Tymkovich. Would 

you stand, please? And with them are my two sisters, Jenni 

Tymkovich and Terri Tymkovich. Traveling from Columbia, Missouri, today is Sally Lyon, my sister-in-law, who is a middle school 

principal in the public schools in Columbia, and her son, Jack, who 

is a high school student in Missouri, also. Also, my friends, Mike 

Ibarra and Ray Gifford have joined me here today. 

Thank you, Senator. 

Senator SESSIONS. Well, thank you, and we are glad to have each 

of you here. And it is a special day, I know, to be chosen and be 

nominated by the President for this important position. 

Mr. Tymkovich, the Founding Fathers believed that the separation of powers in a government was critical to protecting the liberty 

of the people. Thus, they separated the legislative, executive, and 

judicial powers into three different branches of government—the 

legislative power being the power to balance moral, economic, and 

political considerations and make law; the judicial power being the 

power to interpret laws made by Congress and the people. 

237

In your view, is it the proper role of a Federal judge when interpreting a statute or the Constitution to accept the balance struck 

by Congress or the people or to rebalance the competing moral, economic, and political considerations? 

Mr. TYMKOVICH. Mr. Chairman, thank you for that question. 

You’ve raised an issue that’s a bedrock to our constitutional structure, the separation of powers doctrine. And as the Senator well 

knows, we have three co-equal branches of government: the legislative, executive, and judicial branches. 

I have had the good fortune in my career to serve or represent 

all three branches of government at the State level and have a 

keen and abiding sense of the proper role of those institutions within that structure of government. 

The job of the judiciary is to interpret the laws that have been 

passed by Congress and apply them against our constitutional 

framework. To do that, we have been given precedent from the 

United States Supreme Court in interpreting the Constitution as 

well as the guidance of Congress in enacting legislation within its 

sphere of power. 

Senator SESSIONS. Making law is a very serious matter. To make 

constitutional or statutory law, the text of a proposed amendment 

or statute must obtain a set number of formal approval by the people’s elected representatives. This formal process embodies the expressed will of the people through their elected representatives 

and, thus, raises the particular words of a statute or constitutional 

provision to the status of binding law. 

Would you agree that the further a judicial opinion varies from 

the text and the original intent of the statute or constitutional provision, the less legal legitimacy it has? And is it the proper role of 

a Federal judge to uphold the legitimate will of the people as expressed in law or to impose his or her view of what is wise or just? 

Mr. TYMKOVICH. Mr. Chairman, a Federal judge has a solemn obligation to leave his personal views behind when interpreting an 

act of Congress or the provisions of the United States Constitution. 

The job of a lower court, inferior court, as the Tenth Circuit Court 

of Appeals in our constitutional structure, is to apply precedents 

that have been given to it by the United States Supreme Court and 

try not to vary from the Congressional dictates as set forth in the 

statutes that have been enacted by this body of Congress. 

I’ve had an experience representing the State of Colorado in various capacities and defending and interpreting State law and have 

a keen understanding of the advocacy and the give-and-take that 

goes into the legislative process and the importance that judges 

apply the law that’s been passed by the legislative branches faithfully and according to the language and intent of the legislative 

process. 

Senator SESSIONS. In general, Supreme Court precedents are 

binding on all lower Federal courts and Circuit Court precedents 

are binding on the District Courts within that particular circuit. 

Are you committed to following the precedents of the Supreme 

Court and giving them full force and effect even if you personally 

were to disagree with those precedents? 

Mr. TYMKOVICH. I am, Mr. Chairman. It’s a critical part of our 

system of government and the furtherance of the rule of law that 

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lower court judges, such as the Tenth Circuit Court of Appeals, follow the binding precedent of the United States Supreme Court. 

And I’m dedicated to applying that important principle if I am fortunate enough to be confirmed as a Tenth Circuit judge. 

Senator SESSIONS. And, just again, would you apply that decision 

as the Supreme Court held even if you personally thought it was 

a seriously erroneous opinion? 

Mr. TYMKOVICH. Even if I believed the Court was wrong, I would 

apply that as binding precedent on the Tenth Circuit, yes, sir. 

Senator SESSIONS. Well, I think that is an important principle. 

We are government of laws and not of men or women or personal 

opinion. And I think that is important. 

Also, I would just note that judges, by being given the extraordinary power of a lifetime appointment, we remove them from politics and the will of the people. Therefore, they must show restraint 

and must allow the policy issues to be set by the legislative 

branches. And if we do that right, we will continue to have this tremendously wonderful rule of law that we have. 

Senator Schumer, do you have any comments or questions? 

Senator SCHUMER. Yes, I do. Thank you, Mr. Chairman. 

First, I want to welcome Mr. Tymkovich and his family. On this 

Committee it is well known we have lots of different views and different opinions, but I think one of the things that binds us together, it just warms everyone’s heart to see a family come from 

all over, and friends, and we welcome you and are glad that you 

are so joyful at your relative’s or friend’s nomination here. 

I have a few questions about some of the issues here today. Mr. 

Tymkovich, when you were the State Solicitor General, you litigated the Romer v. Evans, the Supreme Court case that held that 

a Colorado State statute violated the U.S. Constitution’s equal protection guarantees. And you have been extraordinarily critical of 

the Supreme Court’s opinion in Romer v. Evans. You have called 

the decision ‘‘an important case study of the Supreme Court’s willingness to block a disfavored political result, even to the point of 

ignoring or disfiguring established precedent.’’ 

You have written that the case is ‘‘another example of ad hoc activist jurisprudence without constitutional mooring.’’ 

Will you please explain why you see Romer, a case that held that 

the 14th Amendment’s equal protection guarantee protects the 

rights of gays and lesbians and bisexuals as a case of judicial activism and unmoored jurisprudence? 

Mr. TYMKOVICH. Senator, thank you for giving me the opportunity to clarify my role in the Romer v. Evans case. 

As the Senator knows, as a State Solicitor General it is the job 

of the Office of the Attorney General, of which I’m a member, to 

defend State laws which have been enacted by our State legislature 

or, in this case, by a popular initiative. And I might add that this 

particular provision, like many in our State, are generated through 

a citizens’ petition process, put on the ballot, and then put forward 

to a statewide vote. 

The officials of the State of Colorado and the office in which I 

served had nothing to do with the development or the passage of 

that law. However, once it’s enacted, that provision, like many others that were on the same ballot, fall to the Attorney General’s OfVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00252 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.000 SJUD4 PsN: CMORC
239

fice to defend. And as part of my role as State Solicitor General, 

that was a provision that we were obligated to defend, our constitutional duty on behalf of the State of Colorado. 

I might note Governor Romer, our Democratic Senator, happened 

to be the defendant in that case and understands what it’s like to 

have an institutional obligation in those matters. 

The issue in Romer v. Evans had to do with whether or not the 

statewide provision could repeal or pre-empt certain gay rights 

laws that had been enacted at the local level. Under the constitutional jurisprudence at the time, we put forth what we thought 

were the best arguments to sustain its constitutionality under a rational basis analysis, under the Federal Equal Protection Clause, 

and various State law provisions. 

On appeal to the Colorado Supreme Court, the Supreme Court 

came up with a different analysis of what it believed to be the constitutional problems with Amendment 2, namely, that it had an effect on the voting participation rights of an identifiable group, in 

this case people’s characteristics based on their sexual orientation. 

That issue was appealed to the United States Supreme Court in 

really a bipartisan decision in our State. I don’t think there was 

any question in the State of Colorado that it was an appropriate 

case to be appealed to the U.S. Supreme Court, and I think that 

it was a very controversial and divisive issue at the time, as I think 

the Senator knows from reviewing my background. And the State 

firmly believed that a United States Supreme Court decision would 

bring legal closure to that provision. 

During the course of that appeal, Senator, I want to say that I’ve 

always firmly believed in the doctrine of judicial supremacy of—the 

supremacy of the Federal Constitution even to a State provision 

like Amendment 2. The rule of law applied in that circumstance 

certainly was a vote of—a statewide vote of the people that it was 

entitled to be tested against the Federal Constitution, which was 

what the case was all about. 

At the Supreme Court level, as the Senator knows, the Supreme 

Court did find that it violated the Equal Protection Clause, and it 

was declared unconstitutional. 

I had the opportunity to participate in a symposium about a year 

after the Supreme Court decision with a number of respected scholars from around the country, many from the left, from the right, 

from the middle, to critique the Supreme Court’s decision. And as 

a part of my participation in that symposium, I prepared a Law Review article that described the legal arguments for and against the 

provision and what I thought the applicable legal standards should 

be and how the Court employed the decisionmaking process in that 

case. 

Notwithstanding my observations about the way the Court’s decisionmaking process was employed, Romer v. Evans is binding 

precedent of the United States Supreme Court, and I wouldn’t have 

any problem with applying it faithfully if I am fortunate enough to 

be confirmed as a member of the Tenth Circuit. 

Senator SCHUMER. But it is true that the Law Review article you 

wrote, you were doing not in your official capacity—I don’t even 

know if you were still in the Colorado Solicitor—were you in the 

240

Office of the Solicitor General at the time you wrote the article and 

participated in the symposium? 

Mr. TYMKOVICH. Senator, it was just as I was transitioning off. 

I think the symposium occurred while I was in the late stages of 

my tenure as Solicitor General. 

Senator SCHUMER. Okay. But you wrote it—this was not—no one 

was telling you to write this. This was not part of your duties as 

a State official. Is that correct? 

Mr. TYMKOVICH. No, the University of Colorado, my alma mater, 

had the Byron White Constitutional Law Symposium, and this was 

the issue, and they had asked me to present— 

Senator SCHUMER. So these were your own opinions in this article? 

Mr. TYMKOVICH. Well, it was certainly my reflections on my experience in the case, and my co-counsel in the case, Jean Dubofsky, 

also provided her experiences. 

Senator SCHUMER. But this doesn’t seem to be a reflection of 

what happened. I mean, you tell me if I am misinterpreting these 

words. You said that you thought the Supreme Court ignored or 

disfigured established precedents, and of most interest to me, at 

least, and I think some others on the committee, you called it ‘‘another example of ad hoc activist jurisprudence without constitutional mooring.’’ 

Now, you believe that, right? 

Mr. TYMKOVICH. Well, Senator, I think in the article I was describing what critics have described the decisionmaking process of 

Romer v. Evans, and I wanted to come back to the symposium because I think the unanimous views of the members of the symposium, constitutional professors like Janet Haley and Larry Alexander, had similar criticisms of the decisionmaking process. 

So I certainly was not alone and in good company, left, right, and 

center, in that symposium. 

Senator SCHUMER. I am not arguing with you about the outcome 

of the case, although we would probably—I agree with the outcome, 

but I mean, I am not—at the moment I don’t want to get into a 

discussion; I may a little later. But these were your views. I mean, 

let’s just call a spade a spade. You were writing a Law Review article, and you wrote very strong language. You weren’t saying ‘‘others said.’’ You were the author, and you said, ‘‘is another example 

of ad hoc activist jurisprudence without constitutional mooring.’’ I 

am not asking if others agreed or disagreed. I am just asking, Was 

that your opinion? 

Mr. TYMKOVICH. Well, I think I was describing the overview of 

many critics, and certainly I think, Senator, one of the prerogatives 

of a lawyer who’s had an opportunity to litigate a case of some 

prominence—and this is a case that I lost, but the purpose of the 

article was to present the arguments that were made in the lower 

and appellate courts and why I thought the law should be applied 

in a certain way. Certainly that position was not accepted by the 

Supreme Court, but the purpose of the article was to present those 

arguments as we presented them— 

Senator SCHUMER. Okay. But was your personal opinion about 

the case what you wrote at the time you wrote it? 

241

Mr. TYMKOVICH. My personal opinion was that we thought we 

had a strong argument on the Equal Protection Clause which, Senator, was not accepted by the Supreme Court. 

Senator SCHUMER. As you probably know, because I am sure you 

have been briefed about this, my basic view here is that we ought 

to know the basic judicial philosophy of the people who are before 

us. And there has been too much of a—this is what the whole argument with Mr. Estrada is that my good friend Jeff Sessions 

brought up, that he sort of refused to say how he felt, and he 

hadn’t written any articles or whatever else. And I think that is—

you know, I truly believe it is your obligation to tell us your general views, not about a specific case that might be decided in the 

future, and it is our responsibility as part of the advise and consent 

process that the Founding Fathers so wisely wrote into the Constitution to get some of those views. 

And so, you know, there is nothing wrong with your writing and 

thinking, and there is nothing wrong, in fact, everything right with 

your telling us what you think. And I do think that at least some 

of us on this Committee think there is an effort now that nominees 

shouldn’t tell us what they think. And my guess is they are asked 

about what they think by a lot of other people as they move up the 

process, and somehow when it comes to this committee, you are not 

supposed to say anything. 

So let me just ask you once again. You wrote—I don’t have the 

context here. I don’t know if we have the article. But as I am told, 

you didn’t say this is what other people say, this is what—you said 

this is—you were arguing your own point of view about this case 

after it had been completed. And it is a pretty strong view to say 

that the Supreme Court exhibited ‘‘another example of ad hoc activist jurisprudence without constitutional mooring.’’ 

Just, you know, tell us candidly: Is that what you think? I am 

not saying you won’t follow the law if you get to be a member of 

this very important Court of Appeals. But that is what I would like 

to know. 

Mr. TYMKOVICH. I think I answered the question, and I do believe that the statement in context applied to a range of critics of 

the decision. But certainly I think the article speaks for itself that 

I was critical of the decisionmaking process of the Supreme Court. 

As the Senator knows, it is one case under the Equal Protection 

Clause which generally applies a fairly deferential standard to 

State legislative pronouncements. So in that respect, Senator, 

that’s the basis of the criticism that I made of that case. 

But as I’ve testified— 

Senator SCHUMER. Okay. I appreciate your candor. 

Mr. TYMKOVICH. —I accept it as precedent and it’s binding not 

only on the Tenth Circuit, but— 

Senator SCHUMER. I appreciate your candor, and I think that 

helps in terms of, I think, not only me but some of my colleagues 

here. Let me go on. Do I have a little time? Can I— 

Senator SESSIONS. Your time is out, but if— 

Senator SCHUMER. I won’t go to a second round. 

Senator SESSIONS. Senator Chambliss has been here so faithfully. 

Senator SCHUMER. Okay. 

Senator SESSIONS. But if— 

242

Senator CHAMBLISS. How much longer do you want to go, Chuck? 

Senator SCHUMER. Well, I have a few more questions. 

Senator SESSIONS. Whatever you two agree would be all right 

with me. If he says okay, if you don’t go too long—if you are going 

to go a while, I think you ought to let him. But if you have got a 

few more, just finish up. 

Senator SCHUMER. Go ahead. 

Senator CHAMBLISS. I am not going to be very long. 

Senator SCHUMER. Go ahead, Saxby. 

Senator CHAMBLISS. Mr. Tymkovich, just continuing along that 

line, having practiced law for 26 years myself and tried hundreds 

of cases, some of which I, like you, lost, it ain’t much fun to lose. 

And I have found that practicing law is a lot like athletics. If your 

heart is in it, you want to win. You emotionally get involved in 

your cases. You believe your argument is right. You craft an argument irrespective of which side of the case you are on. And you 

make that argument forcefully, as you obviously did in this case. 

And I assume that you believed that your argument was a correct 

argument and should prevail. Otherwise, you wouldn’t have been 

doing your client justice, and I think it is only appropriate that you 

were able to express yourself not just as an advocate for your client 

but criticizing the decision. There is nothing wrong with that. And 

my reading of what happened following this case—and I want to 

ask you this. Is it a safe statement to say that the legal reasoning 

that took place in the Romer case was very much criticized by both 

liberals and conservatives? Is that correct? 

Mr. TYMKOVICH. Senator, that is correct. There’s been, I think, 

a range of academic assessment of that particular decision, that 

particular ruling. And you also make a good point. Certainly in private practice you have more luxury in picking the cases that you 

might represent as a plaintiff or a prosecutor as a defender. In 

State government, we don’t get to pick and choose our cases. We 

represent them all whether we have a personal agreement or disagreement with them. It’s our solemn duty to really play that role 

in our State structure, and just like the U.S. Attorney’s Office represents acts of Congress, that’s our role as government lawyers at 

the State level. 

Senator CHAMBLISS. You have already been asked this once, but 

I just want to let you reiterate the point. This case has been decided. You were not successful in the case. Precedent has been set 

by the Supreme Court. As a Circuit Court judge, if this issue comes 

before you under whatever circumstance, are you prepared to follow the mandate that was handed down by the Supreme Court? 

Mr. TYMKOVICH. I don’t have any reservations at all, Senator. 

Thank you. 

Senator CHAMBLISS. Okay. The one thing, I guess, that bothered 

me from time to time—and I ask this question of all of our Circuit 

Court nominees—is that sometimes we see judges who tend to legislate from the bench as opposed to interpret the Constitution. As 

a member of the Circuit Court, will you make a commitment to interpret the Constitution as you see the Constitution and based 

upon the precedents set by the Supreme Court versus legislating 

your opinions into decisions that you render? 

243

Mr. TYMKOVICH. Senator, I’ll be sworn to follow the United 

States Supreme Court as interpreted by the Supreme Court. That’s 

my solemn duty as a Circuit Court judge if I am fortunate enough 

to be confirmed and have no reservations whatsoever in applying—

in playing that role within our constitutional structure. 

Senator CHAMBLISS. I think that was all, Mr. Chairman. Let me 

make one...yes, I think that is it, Mr. Chairman. Thank you. 

Senator SESSIONS. Thank you, Senator. 

Senator CHAMBLISS. Thanks, Chuck. 

Senator SESSIONS. Thank you for being with us. 

Senator Schumer? 

Senator SCHUMER. Yes, thank you, and I appreciate your courtesy, as you always are, Mr. Chairman. 

Senator SESSIONS. As you were when the shoe was on the other 

foot. 

Senator SCHUMER. Yes, indeed. 

Senator CHAMBLISS. Mr. Chairman, I was on a TV show with 

him last night, and I thought I had him convinced to switch parties. But obviously I didn’t. 

[Laughter.] 

Senator SCHUMER. That is a long, hard road, Senator Chambliss. 

Actually, we were on—what show? Chris Matthews, whatever it is 

called. ‘‘Crossfire’’? No. 

Senator CHAMBLISS. ‘‘Hardball.’’ 

Senator SCHUMER. ‘‘Hardball.’’ And we were working on something we agree with, which is to try and develop some system so 

if, God forbid, a terrorist uses one of these hand-held stinger missiles that our commercial airlines have a way of avoiding that, the 

way our military planes do. It is really important. Thanks, Saxby. 

Good to see you. 

Okay. Let me ask you, Mr. Tymkovich—and I have asked this 

question of all nominees, and all but one have basically given me 

answers one way or another. Again, I don’t expect us to agree on 

most of them. But given that you were pretty strong in your criticism of Romer, records show that it was decided 6–3 with Justices 

Scalia, Rehnquist, and Thomas dissenting; Kennedy, O’Connor, and 

the other—in other words, the moderates on the Court tended to 

vote—voted for the decision, the three conservatives against, the 

four generally regarded as a little more liberal for it. 

Anyway, so your criticism, which you should do—I think it is 

good that you wrote these articles and push your point of view even 

though I disagree with them. But you were pretty free with the 

criticism of Romer. So could you please identify and discuss three 

Supreme Court decisions that you are critical of or disagree with? 

And I would like to hear about cases that have not been reversed 

by the Supreme Court and on which you haven’t yet taken a public 

position. 

Mr. TYMKOVICH. Senator, thank you for the question. It raises 

sort of— 

Senator SCHUMER. I am sure it comes as no surprise to you that 

I was going to ask that one. 

Mr. TYMKOVICH. No, but it does raise a difficult circumstance for 

a nominee in my position that may have the opportunity to apply 

or have cases based on these types of precedent before it as a judge 

244

on the Tenth Circuit, if confirmed. So I’m a little reluctant to opine 

on recent case law that may develop in my circuit or be an issue 

before me. 

Having said that, I think, you know, it would be fair for me to 

say that when I was State Solicitor General, we had the opportunity to follow cases around the country closely that might affect 

the State of Colorado. I can remember one in particular where the 

State filed an amicus brief in support of a hate crimes law in Minnesota, the case called RAV v. St. Paul, and we urged the Supreme 

Court in that case to uphold the constitutionality of a State provision in that regard. And part of the reason we did that was because 

about at the same time we were defending in Colorado an ethnic 

intimidation law— 

Senator SCHUMER. And you personally agreed with that? 

Mr. TYMKOVICH. And I believe that the arguments that we presented to the Supreme Court through the amicus were, you know, 

the better arguments and were reflective of the interests of our 

State. 

You know, having said that, I certainly don’t believe that it’s my 

role to insert my personal views as a judge in this process. I need 

to set aside the advocacy that we’ve taken in cases both in the private practice and as government lawyers, and I’m firmly convinced 

that I can set aside my personal advocacy in cases and be a fair, 

impartial, and open-minded judge, if confirmed. 

Senator SCHUMER. Right. But I would like still to repeat my 

question here. You have answered one. You have named one. Name 

two other—and I will say that you agree or disagree with. This 

does not violate the canons in any way. These are already decided 

cases. Law professors who are on the Supreme Court, prior Justices 

who have had their records, everyone talks about these. And until 

the last few weeks, so have just about all nominees that we have 

asked. I ask this of judges I interview, you know, when we are 

making decisions in terms of the judges in New York. Just last 

week, I asked a nominee by the President for some cases that she 

agreed with and disagreed with. She gave good answers. I am not 

sure I agreed with her answers, but they helped me understand the 

way she thinks, and that was very positive. 

So why don’t you try to think of a couple of others that—this has 

nothing to do with deciding future cases. This has to do with your 

thoughts on jurisprudence, and as you know, nominees of Democratic Presidents on the courts vote somewhat differently than 

nominees of Republican Presidents—not all the time. So it is not 

simply that we have a machine, a legal machine that applies the 

precedents in the same way. We know that. Everyone knows that. 

Otherwise, we wouldn’t even need a Supreme Court or appellate 

courts or whatever. We could just feed this into some kind of computer. 

So I just want to repeat my question of you. Can you name two 

other cases or two cases you agree with or disagree with, cases that 

have already been decided. 

Mr. TYMKOVICH. Well, Senator, I think I’ve— 

Senator SCHUMER. Have you ever discussed cases with other people now that you are in private practice? Have you ever? 

245

Mr. TYMKOVICH. Certainly I have, and in answering your question, I think I’ve mentioned, you know, two cases that I’ve been familiar with: the equal protection case that we discussed earlier, the 

Romer case, and the hate crimes case. And, again, from a practitioner’s standpoint, I advocate positions on behalf of clients. I did 

have the opportunity in the last couple of years to try to apply a 

case called Buckhannon v. West Virginia that has to do with a prevailing party attorney’s fees claims in a 1983 context and had the 

opportunity on behalf of a client to present arguments somewhat 

different from the U.S. Supreme Court on that as a part of our—

as part of our presentation of that case. 

Senator SCHUMER. Right. What do you think of the Buckley v. 

Valeo decision? Do you think that one was correctly decided? 

Mr. TYMKOVICH. Buckley v. Valeo is certainly binding precedent. 

Senator SCHUMER. I understand. I am assuming that you will follow precedent on the Tenth Circuit. You don’t have to add that. 

What do you think of it? I personally think it is a rotten decision. 

[Laughter.] 

Mr. TYMKOVICH. Senator, it was certainly recently— 

Senator SCHUMER. I am not trying to lead the witness, Mr. 

Chairman. I am just showing him that we all have opinions on 

these things, and he is too smart to be led, anyway. 

Mr. TYMKOVICH. And, Senator, you know, certainly that was reaffirmed last year in the Nixon v Shrink PAC. Senator SCHUMER. I know you will follow it if you become a 

judge. What do you think of it? 

Mr. TYMKOVICH. Well, I had the opportunity as a practitioner to 

try to apply it in an actual case in the Colorado Federal courts and 

District Court and found it very difficult and challenging to apply 

as a practitioner. It’s, I think, the longest decision in the annals of 

the United States Reports. So it’s certainly a challenge for a practitioner, and maybe an admonition for all of us to keep opinions to 

a readable and understandable length. But— 

Senator SCHUMER. Do you believe that the First Amendment protects someone’s right, you know, a multi-millionaire’s right to say 

put a commercial on the air 417 times, as opposed to just getting 

out their view? Because that was the basic—as you know, that was 

the basic premise of Buckley, that the First Amendment said that 

you could—if you had a whole lot of money, no limits were permissible, that, A, the First Amendment protected that right, and, B, 

it prevailed over the countervailing right—the countervailing notion—it is not a right—of trying to see that money didn’t sort of 

dominate our political system. That is why I disagreed with it. I 

think there is a protection by the First Amendment, but no Amendment is absolute. We all agree that you can’t falsely scream ‘‘Fire’’ 

in a crowded theater. I think that was Justice Holmes who said 

that. And that is a limitation on your—no? Well, one of our—it is 

precedent. 

Senator SESSIONS. I thought so. 

Senator SCHUMER. You think it is Holmes? Well, Jeff and I 

agree. See that? Let the recorder underline that, please, that Jeff 

and I agree. 

[Laughter.] 

Senator SESSIONS. I will have to resign here. 

246

Senator SCHUMER. But, in any case, it is not an absolute right, 

and that is why I thought the Court wrongly decided. Just give me 

some thoughts on it, aside from the length of the opinion. 

Mr. TYMKOVICH. Well, Senator, I think I was trying to do so. Certainly that case involved some very thorny issues of public policy 

and the application of the United States Constitution to those 

issues and has been binding precedent for some time. 

As a practitioner and trying to apply that precedent, you know, 

one thing I found is that the circumstances that underlie a case are 

critical. And having briefed and presented trial evidence under the 

Buckley case, I can appreciate as a trial lawyer at that level trying 

to marshall facts and law to present the best case to the— 

Senator SCHUMER. You have some skepticism about it. 

Mr. TYMKOVICH. —trial court. And certainly I understand the difficulty in doing so, and I think the lesson I take from that as a 

nominee to an appellate bench is that you really have to get into 

the record, look at the briefs and arguments that will be presented 

by the advocates in a case, and really approach an issue like that 

with an open mind and a fair mind, realizing, of course, that it’s 

our job to apply faithfully the precedent of the United States Supreme Court in those circumstances. 

Senator SCHUMER. But would it be unfair to say you show some 

skepticism towards that decision? Admittedly, you will follow it to 

the letter of the law and the best of your ability once you are a 

judge, but personally you are a little bit skeptical. 

Mr. TYMKOVICH. I don’t think my personal views come into play 

because I have to tell you— 

Senator SCHUMER. That is where we disagree. 

Mr. TYMKOVICH. —that as a practitioner I’ve had the opportunity 

to apply precedent in that area and others. And sometimes it’s 

easier said than done, Senator, as you know as a lawyer yourself. 

Senator SCHUMER. Let me ask you about another case since—do 

you have any others that you want to offer that you would agree 

with or disagree with? We have talked about now three. You 

named St. Paul. Mr. TYMKOVICH. Nothing additional, Senator. 

Senator SCHUMER. Okay. Let me ask you then about Morrison, a case you are familiar with, I presume, Morrison v. United States, the VAWA case. 

Mr. TYMKOVICH. Yes. 

Senator SCHUMER. Okay. In Morrison v. United States, a 5–4 Supreme Court held that, despite years’ worth of hearings and wellsubstantiated findings proving that violent crime against women 

costs the country between $5 and $10 billion each year in health 

care, criminal justice, and other social costs, Congress didn’t adequately establish the effect of violence against women on interstate 

commerce to justify the use of the Commerce Clause. The four Justices in the minority disagreed, arguing the Court should show deference to Congress’ ample findings and uphold the Violent Against 

Women Act as a rational response to the national threat posed by 

gender-motivated violence. 

The majority’s decision was criticized by many as a real overstepping, judicial activism, something you criticized Romer for. And 

Justice Breyer, who was one of the four Justices who dissented, he 

247

wrote that, ‘‘Since judges cannot change the world, it means that 

within the bounds of the rational, Congress, not the courts, must 

remain primarily responsible for striking the appropriate State–

Federal balance.’’ 

Do you see Morrison as an incident of judicial activism? Again, 

I know you will follow it. 

Mr. TYMKOVICH. And, Senator, I will follow that and the other 

binding precedent of the United States Supreme Court in this area. 

Certainly the Court has applied the doctrine of federalism, which 

has to do with the respective powers between the State and Federal Government. In recent years, through its case law—Mr. Chairman had mentioned the separation of powers doctrine as an adjunct to that. 

As an attorney representing a legislative body, I certainly understand some of the difficulties in the legislative process and certainly, while I haven’t worked for the Congress of the United 

States, I understand the important fact-finding role of this body in 

providing a basis and support for legislation. 

Senator I think that it goes without saying from my experience 

in the State of Colorado that a legislative pronouncement such as 

VAWA has a presumption of constitutionality and is entitled to 

great deference from the judicial branches in its applying of the 

law to that— 

Senator SCHUMER. Do you think the majority showed great deference to the Congress’ finding in that case? 

Mr. TYMKOVICH. I have not read that decision recently, Senator, 

so I don’t have a good feel for exactly what arguments were made. 

Senator SCHUMER. I will ask— 

Mr. TYMKOVICH. So I can’t comment on that. 

Senator SCHUMER. I would ask you to read it, and I will ask a 

question in writing, just that specific question, if you don’t mind. 

Mr. TYMKOVICH. Thank you. 

Senator SCHUMER. Okay. I have one more, Mr. Chairman. 

You know, one other thing which is sort of interesting, obviously— 

Senator SESSIONS. I am enjoying this. It is a good exchange between two good lawyers, and I am glad you are having—I would 

like for you to have full time to ask your questions. 

Senator SCHUMER. Thank you. I appreciate it. 

Senator SESSIONS. Very interesting discussion. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Just tell me a little—and I realize there are different constitutional bases here. But the Romer case, basically the question was: 

Should the State be allowed to overrule local law? It was a State 

referendum that did so. So you are dealing with States to localities, 

and I am not familiar with Colorado law. In New York, the localities are creations of the State, and the State does have a lot of 

benefit of the doubt against the localities. 

Of course, Morrison was a case—or the whole federalism issue is: 

What can the Federal Government do in terms of State law? 

Do you think there are some differences between those two? The 

analogy, you know, if we were doing an analogy in one of these 

tests, they would say Federal is to State law as State is to local 

law in terms of how much deference should be shown. Just give me 

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some thoughts on that. This is not a case, just an interesting question. 

Mr. TYMKOVICH. It sounds like an SAT question, Senator Schumer. 

Senator SCHUMER. Yes, it does. My first job was working for a—

I went to Madison High School in Brooklyn, New York, and I had 

to get a job when I was 14. That is when you could get working 

papers. And I knocked on the door of a little office, and it was a 

Madison High School teacher who was starting a new business. 

And the business was training students to take the SATs. So for 

3 years I ran the mimeo machine that laid out the preparatory materials, and I got very good at them. Actually, his name—I think 

you probably even heard about him in Colorado. His name was 

Stanley Kaplan. 

[Laughter.] 

Mr. TYMKOVICH. Sure, absolutely. 

Senator SCHUMER. This was a little business with five people, 

and I was sort of the go-fer. And he sold it to the Washington Post 

for $50 million 20 years later. God bless America. 

[Laughter.] 

Senator SCHUMER. In any case—it is. I was thinking of the SATs. 

But just give me your thoughts on that. 

Mr. TYMKOVICH. Senator, it is an important question because it 

has to do with sort of the relative sphere of decisionmaking, and 

I think each State has a really different take on that so it is tough 

to come up with a perfect analogy. Certainly in the State of Colorado, we have a structure where the State Constitution, like the 

Federal Constitution, is supreme, although we have a lot more 

interaction between the local and State governments than you 

would find a perfect analogy on the Federal model. And so we don’t 

have the same type of federalism structure in our State Constitution that you see in the Federal one, but I think having said that, 

there are some common themes, including the supremacy of statewide law to a local government, just like the supremacy of the Constitution, both the Congress and the States as well as the supremacy of Congressional laws on State government. 

I think that is an important part of the dialogue between State 

and the national legislature on the types of laws to pass and how 

to accommodate local concerns. And I think that certainly my experience in State government is it’s important for this body to reach 

out to the State governments to understand the effect of legislative 

pronouncements on State and local governments and be sensitive 

to that testimony as a part of their fact-finding basis. 

Senator SCHUMER. And, again, because the Romer case was so 

different because it was, as you say, a statewide referendum, but 

would you say the same thing ought to apply with the States and 

the localities, before a State does something they ought to go 

reach— 

Mr. TYMKOVICH. Without question. 

Senator SCHUMER. Okay. One final question, Mr. Chairman. I 

thank you. It is related. It is the same stream of thought here. 

A few years back, you testified in support of the Tenth Amendment Enforcement Act of 1996, which would have instructed the 

courts to presume that all Federal laws were unconstitutional 

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when they allegedly infringed on States’ rights. You endorsed reversing the normal rule that the Supreme Court presumes Federal 

laws are valid under the Constitution and required Federal agencies to severely limit their regulations when they pre-empted State 

law. 

In your testimony in support of this bill, you objected to Federal 

environmental regulations, Medicaid requirements, and the motor 

voter law as too burdensome on the States. You also argued that 

the bill should go further—this bill would be regarded by many as 

pretty extreme, but you argued that the bill should go further and 

require that all existing Federal regulations be terminated if they 

did not comport with States’ rights principles. 

Your testimony suggests to me, your testimony back then, that 

you have a rather constricted view—‘‘rather’’ would be understating 

it, at least from what I have stated here—of the Commerce Clause, 

of the Spending Clause, and of the 14th Amendment. 

Can you tell us about that testimony? And what can you tell us 

to allay our concerns that your personal views in terms of this federalism issue, which is a very important issue, are not—I am not 

saying right or wrong, but if you had to line people up on this 

issue, you would be sort of way over there on the State—at the far 

end of the State side. 

Mr. TYMKOVICH. Senator, thank you for the question regarding 

the testimony. First, I might add that I was presenting the testimony of the Office of the Attorney General, and the Attorney General was unable to testify personally on behalf of the— 

Senator SCHUMER. Did you help write it? Did you help prepare 

it? Or did you just read it because— 

Mr. TYMKOVICH. Senator, I did not help prepare that testimony. 

It was prepared by other staff within the Office of the Attorney 

General, and I was presenting it on her behalf to this body. 

I might add that I followed Senator Bob Dole, who was the primary sponsor of the bill at the time, and I want to add a few things 

about it. 

First of all, I think I respectfully disagree with some of the application of the statute. As I understand it, it’s quite similar to President Clinton’s federalism order that he issued while he was in office, which asked Congress and the Federal agencies to look, listen, 

and be sensitive about funding issues that would affect State and 

local governments. 

Senator SCHUMER. That is different than a presumption that a 

law ought to be scrapped. 

Mr. TYMKOVICH. Well, it certainly as applied would have a similar effect, and I think the historical context at the time, I think the 

Senator probably appreciates that there were many concerns about 

whether Federal mandates would be funded on State government 

at the time, and I think that the testimony reflects some frustration that some of the States had, and the Attorneys General that 

appeared on the panel with me had similar examples from their 

State. 

I might add that one of the experiences that the commentary 

provided was, you know, this notion that States can be very innovative in certain areas, including the environment regulation. And 

in Colorado at the time, for example, we had two, what I think are 

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very innovative environmental policies, and we were having trouble 

with the Environmental Protection Agency from accepting those as 

sort of alternative forms of regulation. 

So one of the points that we wanted to make in the testimony 

was that you ought not to stifle appropriate innovation below as a 

part of the process. 

Senator SCHUMER. Did you basically agree with the testimony 

you gave? You seem to from your comments here. 

Mr. TYMKOVICH. Senator, I was presenting the testimony of the 

office. 

Senator SCHUMER. I understand, but I am asking you personally. 

Did you at the time personally agree? 

Mr. TYMKOVICH. I think there were parts of that I did and parts 

of it that I did not endorse. But I was the presenter for the Office 

of the Attorney General. It was my job to present the testimony to 

this body. 

Senator SCHUMER. Okay. Thank you, Mr. Chairman. I appreciate 

your giving me the extra time, and I want to thank you, Mr. 

Tymkovich, for your answers and for your being here. 

Mr. TYMKOVICH. Thank you. 

Senator SESSIONS. Thank you, Senator Schumer. 

Mr. Tymkovich, the Law Review article on the Romer case you 

were asked about, let me ask you a few additional questions. It was 

co-authored by you and two other people from the Attorney General’s office. Is that correct? 

Mr. TYMKOVICH. Yes, sir. 

Senator SESSIONS. And were there other attorneys involved in 

the litigation of the case also? 

Mr. TYMKOVICH. They were involved in the litigation of the appellate proceedings before the Colorado Supreme Court and the 

United States Supreme Court, yes. 

Senator SESSIONS. And so you were explaining the position of the 

State of Colorado? 

Mr. TYMKOVICH. That’s correct. 

Senator SESSIONS. And other States that joined in that brief. 

Mr. TYMKOVICH. That’s correct. 

Senator SESSIONS. You know, I was an Attorney General also, 

and I just have to say with absolute clarity that an Attorney General has an absolute duty to defend the laws of the State which he 

works for. There is no one else that can defend the State. There 

was a referendum process established in Colorado, and Colorado 

people voted in this matter, and you have an absolute duty to defend that. And, frankly, I joined in one brief. There were seven 

other States. I know California and Virginia joined in on that brief. 

There was another brief in support of your position that had about 

ten States joining it. So that was not an extreme position, in my 

view. 

With regard to the power of the State over the cities, as Senator 

Schumer says, I assume it is true in Colorado that cities are creatures of the State. Is that right? 

Mr. TYMKOVICH. That’s correct. 

Senator SESSIONS. So it always struck me, when I heard about 

the case, that the State of Colorado has the legal authority to state 

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a State law that would pre-empt local municipal laws and ordinances. Is that a factor in this case? 

Mr. TYMKOVICH. That’s correct. If there is an issue of statewide 

concern, it would pre-empt local provisions that would be contrary 

to it. 

Senator SESSIONS. And in one sense—I know there are a lot of 

implications of the act, but in one significant sense, it seemed to 

me, and I am sure to the other States who joined with you, that 

this diminished State power vis-a-vis the cities, which they create, 

is that a fair statement? 

Mr. TYMKOVICH. I think that is. I think that’s very accurate, Mr. 

Chairman. 

Senator SESSIONS. So, you know, the Supreme Court ruling, in 

fact, diminished the authority a State has over its creatures, the 

cities. It was a tough case, and there has been a lot of criticism of 

it. 

You and your colleagues did not just volunteer to write this article. You were asked to delivery a paper on the State’s arguments 

and the Court’s decision at the Byron White Conference on American Constitutional Study. Is that correct? 

Mr. TYMKOVICH. Yes, Mr. Chairman. 

Senator SESSIONS. And there were a number of other speakers 

and presenters at that conference? 

Mr. TYMKOVICH. That’s correct. 

Senator SESSIONS. So you didn’t just go out and call a press conference to complain. You were asked to make a presentation in a 

prestigious forum on this subject. 

Mr. TYMKOVICH. That’s correct, Senator. We joined scholars from 

around the country, as I said, also joined by the opposing counsel 

in Colorado that handled the other side of that case. 

Senator SESSIONS. But even in that article where you made some 

criticism of Romer, you noted this, for those who are concerned 

about the results of it. A lot of people wanted a different result, but 

I think you were justified in defending the result that the people 

of Colorado voted by referendum. But, at any rate, you said in the 

article, did you not, ‘‘The Amendment 2 litigation is remarkable not 

for its results but for the tangled jurisprudence’’? Does that indicate that you were more concerned about the complexity of the 

Court rulings than you were of the outcome of the case? 

Mr. TYMKOVICH. It certainly was, Senator. We tried to present 

the best arguments to support the amendment as representatives 

of the State, and certainly I think the quote there reflects some of 

my legal experiences as a part of that case. 

Senator SESSIONS. And others at the symposium supported the 

result of the Court’s opinion, but also, those who supported the result, some of them questioned the legal reasoning of that opinion, 

did they not? 

Mr. TYMKOVICH. Yes, they did, in no uncertain terms, Senator. 

Senator SESSIONS. I have one example here. Professor Larry Alexander notes that at two important junctures in the majority’s 

reasoning ‘‘the dog did not bark.’’ That is, important steps ‘‘in the 

ordinary equal protection analysis were omitted.’’ 

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Professor Lynn Baker writes that, ‘‘The majority reached the 

right results, but for the reasons that it articulated only partially 

or not at all.’’ 

Akhil Amar, a respected liberal law professor at Yale, wrote the 

following in a Law Review article supporting the Romer decision. 

He said this—he supported the result. ‘‘Since Romer came down, I 

have had many conversations about it with law professors and students across the country. The initial consensus seems to be that 

while Justice Kennedy’s language soared, Justice Scalia’s logic 

held. Justice Kennedy won their hearts, Justice Scalia their heads.’’ 

The New Jersey Law Journal editorialized, ‘‘We applaud the result in Romer. We regret the manner in which it was reached. The 

dissent’s philosophy is clear, though wrong. The majority opinion 

would have been far stronger and more convincing if it had been 

forthright in explaining why Amendment 2 lacked a rational basis.’’ 

Stewart Taylor, writing in the ‘‘Texas Lawyer,’’ found the decision ‘‘immensely inspiring and intensely troubling.’’ On the one 

hand, he praised the result in the case, liked the result. On the 

other hand, he faulted Justice Kennedy’s majority opinion for its 

‘‘crude, superficial, and evasive’’ reasoning. He went even further 

in characterizing Justice Scalia’s dissent as ‘‘elegantly vitriolic’’—

that is nice language. I am sure Justice Scalia was proud of that 

comment—‘‘pervasive with distortions’’—but not that part—‘‘and a 

resort to bumper sticker jurisprudence.’’ He expressed concern that 

the decision could ‘‘damage the Court’s moral authority and even 

in the long run set back the cause of gay rights.’’ And he pleaded 

with the Court to ‘‘try harder to ground its rulings in constitutional 

language, theory, and precedent.’’ And was not that exactly what 

you criticized the Court for, not grounding the opinion in the Constitution? 

Mr. TYMKOVICH. Yes, Senator, I think those excerpts reflect the 

range of commentary on the result and the reasoning there, and 

certainly our presentation was certainly in line with a lot of the 

analysis of the case. 

Senator SESSIONS. Well, it was a very, very interesting case and 

had a lot of ramifications, and there has been a lot of criticism of 

it. I don’t think you should be held up because of that. 

I would mention this also. Even those who disagreed with 

Amendment 2 understood the role of the State Attorney General in 

defending the measure. The editorial page of the Denver Post, 

which has been extremely critical of the amendment from the beginning—in other words, they editorialized against its passage. Is 

that correct? 

Mr. TYMKOVICH. That’s correct, Senator. 

Senator SESSIONS. Recognized that the State was required to defend the measure. The Post also singled out you in praising the 

State’s handling of the case. They said, ‘‘The Post was consistently 

critical of Amendment 2, but we don’t fault Attorney General Norton’’—now Secretary of Interior Norton, who was your Attorney 

General at that time. Is that correct? 

Mr. TYMKOVICH. Yes, sir. 

Senator SESSIONS. ‘‘...for defending it vigorously. Once it became 

part of the State Constitution, it was her sworn duty to defend it.’’ 

And I agree with that. 

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‘‘For his part, Tymkovich fought doggedly and skillfully, losing 

simply because no amount of advocacy could offset the legal weaknesses of the sloppily drafted and, at times, virtually inchoate initiative itself.’’ 

Now, let me ask you: Did you write the initiative or have anything to do with writing it? 

Mr. TYMKOVICH. No, Senator. Nothing whatsoever. 

Senator SESSIONS. And your office didn’t have anything to do 

with it? 

Mr. TYMKOVICH. None. 

Senator SESSIONS. This was a group of people in Colorado that 

put it together and got it out on the ballot for a vote. 

Mr. TYMKOVICH. It’s part of our process of direct democracy, and 

it can be very difficult to apply sometimes, as those comments reflect. 

Senator SESSIONS. The Denver Post goes on to say, ‘‘In law, as 

in poker, you have to play the cards you’re dealt. We’d say Norton 

and Tymkovich played out their hands pretty well, considering they 

held a pair of deuces.’’ 

Well, that is what you have to do at times to defend the case, 

but I thought it was a little better case than that, frankly. And so 

did about 20 other States who supported Colorado in it. And I’m 

not real—I think one reason the Court’s reasoning has been criticized is if it were real easy to strike down that legally passed act 

by the people of Colorado, maybe it would have been clearer. I 

think it was a little bit difficult for them to justify their position, 

and that is why their logic is not very clear. 

Well, you know, I think Senator Chambliss was exactly correct. 

You know, when you pour your heart in the case and you advocate 

it and you believe in the State, later when you are in private practice and making a comment on it, if you have got a little enthusiasm there for your case, there is nothing wrong with expressing 

it. 

Now, Mr. Tymkovich, the attorney on the winning side of the 

Romer case was Jean Dubofsky. Is that correct? 

Mr. TYMKOVICH. Yes, Senator. 

Senator SESSIONS. And she supports your nomination for the 

tenth Circuit. Is that correct? 

Mr. TYMKOVICH. That’s correct, Mr. Chairman. She submitted a 

letter, along with several other former Colorado Supreme Court 

Justices, including the author of the majority opinion at the State 

Supreme Court level, Chief Justice Rovera, and— 

Senator SESSIONS. Now, did the Supreme Court rule for or 

against the referendum? 

Mr. TYMKOVICH. The Colorado Supreme Court ruled against the 

measure. 

Senator SESSIONS. But even that Justice who wrote the opinion 

against your view supports you. Is that correct? 

Mr. TYMKOVICH. That’s correct, along with a number of other 

Justices that were on the court at the time. 

Senator SESSIONS. Now, Dubofsky was a former Colorado Supreme Court Justice, and certainly no right-winger. The Denver 

Post described her as one of ‘‘a dwindling breed of unabashed liberals.’’ There are few left. Some of them on my left right now. 

254

[Laughter.] 

Senator SESSIONS. I don’t know how dwindling they are, but 

they— 

[Laughter.] 

Senator SESSIONS. They are unabashed, I will tell you that, and 

believe in and fight for what they care about daily. 

Justice Dubofsky, along with a number of other former Colorado 

Supreme Court Justices, has written a letter in support of your 

nomination: ‘‘Based on our professional experience, we are of the 

unanimous judgment that he is well qualified and most able to 

serve as an appellate judge of the United States Court of Appeals.’’ 

So we will put that letter in the record. 

Justice Dubofsky also recognized—well, I will just finish. My 

time is up. She has recognized that you were simply doing your job 

as Solicitor general. She commended your performance. She says 

the Colorado Attorney General’s Office ‘‘dealt with the case as well 

as it could have.’’ She goes on: ‘‘In fact, Justice Scalia got upset 

with him in oral argument because Tymkovich would not answer 

the way he wanted you to answer the case.’’ 

Well, those things happen in court, and that is what litigation is 

all about. 

Senator Feingold, I would recognize you. 

Senator FEINGOLD. Thank you, Mr. Chairman, and especially 

thanks to Senator Kennedy. I have almost 10 years’ seniority on 

this committee, but I think he has got 4 times more than that. So 

the fact that I get to go before him is greatly courteous of you, Senator Kennedy. 

I would like to return to the same subject. First, congratulations 

on your nomination. 

Mr. TYMKOVICH. Thank you, Senator. 

Senator FEINGOLD. I will go back to the issue of gay rights and 

your involvement as Solicitor General of Colorado in the case that 

led to the U.S. Supreme Court’s Romer v. Evans decision. As has 

been discussed by Senator Schumer and Senator Sessions, you defended the ballot initiative on behalf of the State of Colorado. It 

was, I agree, your job to do that and I accept that. But I do want 

to ask you a bit about what perhaps goes beyond the zealous advocacy for your client, and this is the article that we are discussing, 

the 1997 University of Colorado Law Review, that forcefully presents your view that laws against discrimination based on sexual 

orientation in activities like employment, housing, and education in 

places like Denver, Aspen, and Boulder somehow conferred special 

rights or protections on gays and lesbians. 

Let me ask you this: Do you believe that Title VII of the Civil 

Rights Act of 1964, the landmark legislation prohibiting employment discrimination based on race, confers special rights on African Americans? 

Mr. TYMKOVICH. Senator, the anti-discrimination laws in Colorado and at the Federal level are important protections to minorities and others that have faced discrimination. So to the extent 

that the baseline was no, you know, Federal or State protections 

based on ethnicity or race, the addition of those laws to the legislative pronouncement provides a protection, an additional protection 

that would not be available under the common law. So in that 

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sense, certainly under Colorado law, additional protections are provided through the discrimination laws, and I might add that’s an 

important part of the legislative process to identify and protect injustices out there. 

Senator FEINGOLD. But what about my question? Does Title VII 

of the Civil Rights Act of 1964 confer special rights on African 

Americans? 

Mr. TYMKOVICH. I’m not sure exactly what you mean by ‘‘special 

rights,’’ Senator, but I would say— 

Senator FEINGOLD. Well, I am referring to the fact that your article seemed to say that the Colorado law conferred special rights or 

protections on gays and lesbians. I am asking you whether or not 

Title VII of the Civil Rights Act of 1964 in that same spirit in your 

view confers special rights on African Americans? 

Mr. TYMKOVICH. No, Senator. I think it provides a civil remedy, 

some laws provide a criminal remedy, on behalf of discrimination, 

and certainly that’s the intent and purpose of those laws. 

Senator FEINGOLD. In that same spirit, do you think that Title 

VII wrongly protects Americans from employment discrimination 

based on race, ethnicity, national origin, religion, age, disability, or 

gender? Do you believe that an American who brings a claim of job 

discrimination based on any one or more of these categories is 

somehow enjoying special rights or protections? 

Mr. TYMKOVICH. No, Senator. They’re simply enjoying the protections that this body has provided to those particular groups. 

Senator FEINGOLD. As you discussed in your article, you believe 

that the Supreme Court was wrong to be hostile to the political decision of a majority of Colorado voters who supported adoption of 

the Colorado amendment. You state that Colorado voters made ‘‘a 

seemingly good-faith policy choice.’’ 

If I understand you correctly, you agree with Justice Scalia’s dissent in Romer and believe that the Court improperly injected itself 

into a political debate. Is that your view? 

Mr. TYMKOVICH. Senator, that’s an excellent question, and I appreciate the opportunity to clarify and reflect on the issue below. 

As you know from your participation in this body, there are important issues of public policy debate that cross party lines or are 

bipartisan and very difficult issues. In Colorado, the question of 

whether or not to add sexual orientation to State and local antidiscrimination laws has been a very important and ongoing political debate in our State. And certainly Amendment 2 was in part 

within that context and dialogue. And certainly many people respectfully disagreed with the legislative pronouncement there, and 

I think the point I was trying to make in those remarks and certainly in the case is that the courts were not a good forum for airing sort of political or legislative policy-type arguments, and that 

the courts are best able to address a constitutional principle when 

they have the concrete facts and law before them and not sort of 

rhetorical or legislative-type pronouncements. 

The Amendment 2 case had a strong mix of sort of a policy debate in that sense, and I think my comment was that the policy 

debate and certainly the arguments we made to the courts is that 

that would be better left to the political process. 

256

Senator FEINGOLD. I am taking that as a yes, that you agree 

with Justice Scalia that the Court improperly injected itself into a 

political debate. Do you believe that the Court should have—is that 

fair? 

Mr. TYMKOVICH. Senator, I think Justice Scalia accepted some of 

the presentation of the State, but they rejected others. So I don’t 

wholly agree or disagree with the dissent in the case, but it does— 

Senator FEINGOLD. Do you agree with that point? 

Mr. TYMKOVICH. —reflect some of the arguments that were 

made. 

Senator FEINGOLD. Do you agree with that point? 

Mr. TYMKOVICH. I agree—the presentation that the State made 

to the Supreme Court was that it was a policy debate and not subject to the Supremacy Clause of the equal protections. But, again, 

as I testified earlier, that argument, that presentation was not accepted by the Court, and regardless of my personal views, I am 

perfectly capable and willing to impartially apply that precedent. 

Senator FEINGOLD. That isn’t what I am asking. I have asked 

your personal view, and I take it that your personal view is that 

the Court did the wrong thing here and improperly injected itself 

into the political debate. I understand that you would follow the 

law based on the Court’s decision. 

Mr. TYMKOVICH. I would follow the law. 

Senator FEINGOLD. Do you believe that the Court should have 

given more consideration to the privacy, associational, and religious 

rights of persons who do not condone homosexual behavior? 

Mr. TYMKOVICH. Senator, the lower courts in Colorado had identified that there were religious and associational factors that would 

be implicated by the laws that were pre-empted by Amendment 2. 

I think, again, that that, as I’ve tried to explain in my previous testimony, is part of the political give-and-take, the public policy giveand-take in crafting a gay rights law that would accommodate certain interests, and certainly that’s part of the policy debate that 

we’ve seen in our State. Certainly the Amendment 2 provision 

would have required that debate to go at the statewide level, and 

as I recall, even during the judicial proceedings on Amendment 2, 

there was a move to enact a statewide initiative that would— 

Senator FEINGOLD. Okay. I accept that, but I am asking you your 

personal view. You are an expert on this. Do you think the Court 

should have given more consideration—you, do you think the Court 

should have given more consideration to the privacy, associational, 

and religious rights of persons who do not condone homosexual behavior? 

Mr. TYMKOVICH. Senator, I think that in that case, as others, as 

an advocate, as a representative of my client, we were presenting 

what we thought were the best arguments based on the applicable 

case law— 

Senator FEINGOLD. I am asking your view right now. 

Mr. TYMKOVICH. —to the Supreme Court. 

Senator FEINGOLD. I am not asking in your role as an advocate. 

I am asking in your view should the Court have taken that more 

into account? 

Mr. TYMKOVICH. I think, as I’ve testified earlier, indicated in my 

article, that I believe that we had strong arguments based on the 

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existing precedent at the time and asked that the Court accept 

that. 

Senator FEINGOLD. Well, you seem to be refusing to give your 

own view on this, and I don’t know why. This isn’t a pending case. 

This is a case that was resolved by the Supreme Court. You have 

strong opinions indicated I here, and I don’t understand why you 

can’t give me your personal view. 

Mr. TYMKOVICH. I think I’ve reflected the views that we presented to the Court, and as I’ve testified— 

Senator FEINGOLD. You did do that and that is all you have done, 

and you are not answering my question. 

Throughout our Nation’s history, proponents of racial discrimination have used the argument that they should be free to discriminate based on their privacy, associational, or religious rights. In 

Brown v. Board of Education of Topeka, Kansas, the Supreme 

Court injected itself into a contentious political debate where in 

some parts of the country separate but equal schools were defended 

to the point of literally spilling blood over the issue. 

Do you believe that Brown v. Board of Education was wrongly 

decided and that the Supreme Court should not have injected itself 

into the policy question of maintaining school segregation? 

Mr. TYMKOVICH. Senator, it’s an important question because certainly the history of discrimination in this country has had a very 

mixed and very sorry record at times, and the Brown decision is 

certainly a reflection of part of that history. 

One of the reasons I went to law school was the influence of a 

book I read about the Brown case called ‘‘Simple Justice’’ that 

traced the history of the legal development from Plessy v. Ferguson

to the Brown decision, and a very powerful historical book about 

the legal and social and ideological aspects of discrimination in this 

country. 

So certainly Brown is one of the cornerstones of American jurisprudence, and certainly its foundation is a very important part— 

Senator FEINGOLD. So you obviously don’t disagree with that decision, and that is why I want to ask you: What is the difference 

in your mind between African-Americans and gay people in terms 

of whether laws protecting them from discrimination are permissible? 

Mr. TYMKOVICH. Senator, I think that it’s a very important part 

of the public policy debate to analyze the rationale and the reasons 

for a particular legislative judgment. I don’t sit here today as having a legislative agenda. I do not. My goal as a Tenth Circuit judge, 

if confirmed, would be to impartially and fairly and open-mindedly 

apply the law. You’re asking me for a legislative judgment, and I 

certainly— 

Senator FEINGOLD. No. I am asking you your personal opinion, 

having studied this in law school, having the question of discrimination having been one of the inspirations for your going to law 

school, and doing extremely well, I might add, and being a very distinguished lawyer. I am asking you what your thought process is 

here. What is the difference between discrimination against African-Americans and gay people? 

Mr. TYMKOVICH. Senator, I think that, you know, again, to answer your question from a public policy standpoint, I believe that 

258

this body, Congress, which has debated whether or not to add sexual orientation to Title VII or to Federal law, and certainly the debate at the State level would be to take the testimony and the experiences of gay and lesbian Americans and apply that to the particular circumstances at work. 

In Colorado, that’s an important dialogue that is ongoing about 

to what extent the laws ought to be modified and changed to prevent discrimination and violence and harassment against gay and 

lesbian people. I support that legislative debate in our State. I 

don’t think it’s appropriate for me to take a personal view to the 

Federal bench, and I can commit to this body that I’d be able to 

apply the discrimination laws faithfully and carefully as a Tenth 

Circuit judge— 

Senator FEINGOLD. Well, Mr. Chairman, my time is up, but let 

me just say that I certainly respect Mr. Tymkovich and wish him 

well. But this process where we can’t even get at sort of the 

thought process of a nominee on something as simple and important as how you relate discrimination against African-Americans to 

the issue of discrimination against gay people, to me, Mr. Chairman, this is the problem we are having, that we are really not 

being given a chance to examine how these individuals will simply 

go through their thought process as judges, not whether there is 

a right answer or a wrong answer, but how will they go through 

the judicial process and how will they go through that thought 

process. 

I think that is legitimate, and, again, I respect you and certainly 

you have tried to respond to me. But it makes it very, very difficult 

to analyze, especially in light of the fact that this nominee wrote 

an article, an extensive article about this very important subject, 

and all I am trying to do is to get his thought process as it compared to another body of law that he obviously thinks is valid. 

So, with that, Mr. Chairman, I conclude and thank you and 

thank Senator Kennedy. 

Senator SESSIONS. Thank you. I know that what we really expect 

out of a judge is not so much how they feel about the issue but how 

they analyze the applicability or lack of applicability of the law. So 

to that extent, their personal views on political or social issues are 

a little less valid. 

Senator FEINGOLD. I would just add on that point, I wasn’t asking for his personal views. I was asking for his personal view of the 

logical relationship as a matter of law between discrimination 

against African-Americans and gays. It was not literally his own 

personal views about those subjects. 

Senator SESSIONS. Well, you certainly have a right to ask that. 

Senator Kennedy? 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman, and I 

share the concerns that have been expressed by Senator Feingold. 

I was here when we passed those civil rights laws in 1964, and I 

can still hear the echoes of many of my colleagues who said that—

Norris Cotton, who was from the State of New Hampshire, people 

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259

ployees will be congenial, promote good feelings with business. And 

even former Senator Tower talked about employers, employees, any 

freedom to speak or to act on the basis of their religious convictions 

in terms of the issues on discrimination on the basis of race. And 

there are other Senators. I am not meaning to embarrass these 

other Senators, but on March 20th, another of our colleagues had 

similar kinds of statements. Another very distinguished Senator, 

this time from Florida, surely no outsider should be able to tell an 

owner or manager who he must hire or who he must promote. 

Then even our colleague Senator Ervin, the bill undertakes to control the thoughts of American people in respect to racial matters. 

So many of us who have been here over a long period of time 

have heard similar kinds of concerns expressed, as you have, in 

terms of the extension of the protections for gays and lesbians. And 

as the principal author of ENDA, it brings a lot of concern about 

where you are going to come out. We have come very close to passing that law as an amendment to ensure that there wouldn’t be 

discrimination on the basis of sexual orientation. 

On that issue, it is about 60 percent, 65 percent of the American 

people are basically for that, think ought to be evaluated on who 

they are, not on the questions of their sexual orientation. So that 

is why there is a lot of difficulty in trying to understand the fear 

or unwillingness to say, well, if the Congress is going to make this 

as a judgment and decision, I don’t have any problem or trouble in 

terms of enforcing that if that is going to be the judgment that is 

made. 

We have gone all through in the legislative considerations about 

special rights, developed that debate and responded to it. But I 

hear a lingering kind of unwillingness on your position to entertain 

it. I heard the Chairman say that you were one of the co-authors 

of the—I obviously respect your position as a State employee, but 

we went on after that to talk about your position in the Law Review article, which was one of three people. But I don’t see you disassociating yourself from anything that was in it, even though it 

was written with others. So we obviously interpret that to be your 

position as well. 

I wanted to ask you—and I want to just give you an additional 

opportunity if there is anything you want to respond to those kinds 

of concerns that we, or at least I have in terms of considering, you 

know, the nominee and whether those that would be able to come 

before you would feel that they are going to get equal justice. 

Mr. TYMKOVICH. Senator, thank you for that question. I think it’s 

an important question, and I believe that those who know me the 

best in Colorado and with whom I’ve practiced who endorse my 

nomination to the Tenth Circuit firmly believe on a bipartisan 

basis that I can be an effective and fair judge on the Tenth Circuit, 

if confirmed. 

I might add a couple of things about my experience that I think 

might bear on your question, really two cases I wanted to mention. 

One is a case called Hill v. Colorado that was an outgrowth of a 

legislative concern that we had in Colorado regarding protests near 

health care facilities. And I think, Senator Kennedy, you are aware 

of the Federal Access to Clinics Act and either were the prime 

sponsor or major sponsor. 

260

In Colorado, Congressman Degette, who was in the State legislature at the time, helped pass that bill on a bipartisan basis through 

a very evenly split Colorado Legislature, and that provision was 

immediately challenged as unconstitutional. At the time I was Solicitor General, like with Amendment 2, it was an act of our legislature, act of our legislative branches, and the office defended that 

provision. And we fortunately were able to prevail in the State 

court and the Colorado Supreme Court level. 

That case was a very important Federal case. It was appealed to 

the United States Supreme Court after I had left the State government, so my successor as Solicitor General ended up arguing that 

casein the United States Supreme Court. And the United States 

Supreme Court, I think on a 7–2 vote, ultimately upheld that case, 

upheld that law in a case called Hill v. Colorado, which very importantly clarified the ability to enact protective legislation in this 

area. 

And so I want to point out, Senator, that, you know, part of my 

obligation as Solicitor General was to not pick and choose my cases 

but to defend as well as we could cases, whether they came from 

the legislature or from the people, and we thought we did an effective job on that. 

The other issue I wanted to mention— 

Senator KENNEDY. What was your role in that case? 

Mr. TYMKOVICH. I did not argue the case directly but was involved in the briefing on the policy development of that case. 

Again, in my role, I have substantial involvement—limited involvement in a range of cases, but that certainly was an important case 

at the time and had created some controversy at the time because 

it was one of the few State laws that made this legislative determination at the time. 

The other issue I wanted to make that bear on this question of 

impartiality and open justice is the work that the office did while 

I was Solicitor General in taking on a very difficult issue involving 

the Martin Luther King holiday in our State. At the time I became 

Solicitor General, we had had racial protests on the steps of our 

Capitol in Denver, where I know you have been before, Senator, 

and it was creating a very divisive situation because representatives of white supremacists and Ku Klux Klan members were obtaining a parade permit to protest on Martin Luther King Day and 

preventing the Martin Luther King celebrants from having the opportunity to celebrate that holiday on really the most visible forum 

in our State. 

To help defuse racial tensions in our community, the Attorney 

General helped Governor Romer and the State develop regulations 

that allowed for a very careful process on when and how you could 

use that open forum, and as a result of those regulations, the racial 

conflict that we had dissipated, and in the last 10 years we have 

not had any problems in that regard. 

So when I have had the opportunity to work on issues and 

cases— 

Senator KENNEDY. What was your role in that as well? 

Mr. TYMKOVICH. It was also to assist the office in developing 

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gard. It certainly was part of a larger effort of other lawyers in the 

office that undertook that representation. 

Senator KENNEDY. One of the things that we look at in the confirmation process is judicial temperament, and an important part 

of that assessment is whether you respect people’s views that differ 

from yours. It is okay to disagree with someone, but we look at 

whether you respect others’ legal views and whether you label anyone who disagrees with you as having an improper motive or being 

political. And it is especially important to evaluate your respect for 

the Supreme Court cases with which you disagree because we are 

assessing whether we can take you at your word when you promise 

to follow both the letter and the spirit of the decisions of the Court. 

With that in mind, I have some questions about the statements 

that you made in the Law Review article that indicate a seeming 

lack of respect for the Supreme Court and Justice Kennedy in particular. 

You called the six-Justice majority opinion in Romer ‘‘an important case study of the Supreme Court’s willingness to block a 

disfavored political result, even to the point of ignoring or disfiguring established precedent.’’ You state the opinion is ‘‘cause for 

great uneasiness about the health of self-government.’’ 

That opinion was written by Justice Kennedy, hardly one of the 

Court’s more ideological members, whom you criticize by name in 

your article. Can you explain what you meant in calling Justice 

Kennedy’s opinion political? 

Mr. TYMKOVICH. Thank you, Senator, for the question. As I’ve 

testified earlier, the purpose of the article was to reflect the arguments that the State made in the appellate courts and under applicable precedent, we believed that the arguments that we had presented would have sustained a finding of constitutionality. Obviously the Court disagreed and ruled against us. And, again, we believe that the Court had to address in a rather novel way the application of the precedent that was argued below. And as I think I’ve 

testified in answers to Mr. Chairman, certainly a number of academic criticisms of the opinion and analyses of the opinion have 

reached a similar conclusion. I think there’s really a bipartisan and 

non-ideological view about that. 

And so my purpose in the article was to show the arguments that 

we thought were presented under the existing case law that the 

Court rejected— 

Senator KENNEDY. Well, I hear that and you have expressed that 

opinion while I have been here, and I apologize for missing the earlier hearing. Both the Chairman and I are on the Armed Services 

Committee, and we have Mr. Tenet over there, the head of the CIA. 

So I was unable to be here earlier. But I have heard your comments just generally about obviously the holding. But I am getting 

to the nature and the choice of words that are being used, and 

there is one thing about differing with a Supreme Court opinion, 

but it does seem to me that using the words ‘‘important case study 

of the Supreme Court’s willingness to block a disfavored political 

result, even to the point of ignoring or disfiguring established 

precedent,’’ and the opinion is ‘‘cause for great uneasiness about 

the health of self-government.’’ 

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When you are using those kinds of words and stating it to be political, it is more than just a general kind of difference with the 

substance of the argument. I think that those particular words are 

highly volatile, I would think, in terms of the criticism both of Justice Kennedy and of the Court itself. 

Mr. TYMKOVICH. Senator Kennedy, I think I really pride myself 

in my career of having the ability to, I think, demonstrate the ability to work across party lines as a lawyer. As you probably know, 

I represented a Democratic administration. While I was Solicitor 

General, Governor Romer was the chief executive of our State the 

entire time I was in public service, and he has supported my candidacy. And I think as a result of that experience I had an opportunity to work with a lot of people across party lines to really do 

the best possible job we could on behalf of the State of Colorado. 

So I really believe that the bipartisan support of the people that 

have worked with me in Colorado really speak volumes about their 

view that I will have the ability to be a good judge, to be openminded and fair, and provide the applicable civility and temperament to the position if I am fortunate enough to be confirmed. 

Senator KENNEDY. Okay. Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you. 

Mr. TYMKOVICH. Thank you, Senator. 

Senator SESSIONS. On the question of the— 

Senator KENNEDY. I would say to the nominee, I just want to 

congratulate you on the nomination. A number of people I have 

known out there have also communicated with me their support for 

your nomination. 

Mr. TYMKOVICH. Thank you, Senator Kennedy. 

Senator SESSIONS. Thank you, Senator Kennedy. 

I notice that with regard to that brief, it looks like as many as 

15 States actively participated in support of the position of Colorado, including Massachusetts was on one of the briefs. 

You wrote the ‘‘uneasiness about self-government.’’ Well, I think 

that is a very nice lawyerly way to say it. I mean, that is not a 

hot-head comment, that it creates ‘‘uneasiness about self-government.’’ And I will tell you what I felt about it. The people of Colorado passed an amendment, and the Supreme Court struck it 

down. And they are unelected, and they denied the people the right 

to have that statute that they passed become law. 

Now, let me ask you this—I won’t go into that. We have got another panel that is waiting. 

Thank you very much, Mr. Tymkovich, for your testimony. 

Mr. TYMKOVICH. Thank you, Mr. Chairman. 

Senator SESSIONS. You have done an outstanding job, I believe. 

You have an extraordinarily good record, and I would ask this: As 

Solicitor General of Colorado—that was the position you held? 

Mr. TYMKOVICH. Yes, sir. 

Senator SESSIONS. That is a position chosen by the Attorney General to be in charge of appellate litigation for the State of Colorado. 

Is that correct? 

Mr. TYMKOVICH. That’s correct, Senator. 

Senator SESSIONS. State Supreme Court or U.S. Courts of Appeals and the U.S. Supreme Court. 

Mr. TYMKOVICH. Yes, sir. 

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Senator SESSIONS. And I would just say as a former Attorney 

General, that reflects a sincere belief by Attorney General Gale 

Norton, now Secretary of Interior, that you possess extraordinary 

legal skills and an ability to articulate in the appellate courts. And, 

of course, that is what you are seeking, the position that you are 

seeking in the Court of Appeals. And this background and experience as Solicitor General for the State gave you an extraordinary 

ability and opportunity to be active in a lot of appellate court cases. 

Most lawyers in America would never have had that opportunity. 

So you come here extremely well qualified, and I believe you should 

be confirmed, and we thank you for your good testimony. 

Mr. TYMKOVICH. Thank you, Mr. Chairman. 

[The biographical information of Mr. Tymkovich follows.]

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Senator SESSIONS. We will take a 3-minute recess and get ready 

for our next panel, and you can move on up and take your seats. 

[Recess 12:02 p.m. to 12:07 p.m.] 

Senator SESSIONS. Ladies and gentlemen, if you would stand, we 

will do the oath. Do we have everybody or are we missing—no, we 

have everybody. If you would raise your right hand and take this 

oath. Do you swear that the testimony you are about to give before 

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

the truth, so help you God? 

Judge BREEN. I do. 

Judge STEELE. I do. 

Mr. VARLAN. I do. 

Mr. STANCEU. I do. 

Judge HORN. I do. 

Senator SESSIONS. Please take your seats. 

I congratulate you again on being nominated for one of the most 

significant offices an American can have, to receive the support of 

the President and your State Senators, and now you are seeking 

the support of the United States Senate in the confirmation process 

to be a Federal judge. That is a great, great honor, and I know that 

from what we have learned from your background that you are 

worthy of it. You have been reviewed by the American Bar Association. First, of course, the administration has reviewed and the Department of Justice has reviewed your qualifications. The FBI has 

done a full-field investigation and background check on your background, your integrity and competence and ability and see if there 

are any problems there. The American Bar Association has rated 

you qualified for the position after doing the extensive work that 

they do. 

For those of you who may not know, the Bar Association requires 

nominees to submit a large number, I think as many as ten cases 

that you have litigated that are important, and the nominee has 

to list all the attorneys that were involved in that case, and the 

ABA goes and interviews them as well as the judges who may have 

presided over the case. And so they do intensive work. And then 

we at the Senate, through the staff here, review the nominees. We 

receive letters of support, and you have mostly gotten support for 

you for sure, and any questions that arise, and then we have this 

public hearing and you go forward. 

The Senate is very busy now. We are at the last minutes of an 

appropriation process. We also have Armed Services going forward. 

We have the review of the Space Shuttle disaster going on and debate on the floor continuing on the Estrada nomination, and a 

number of members here are there. So that would explain some of 

the absences that we might otherwise not see today. 

Let me start off with general principles. First let me ask each of 

you if you would like to make an opening statement, and I would 

be pleased if you would identify any family members or friends 

that you have here. 

Judge Breen, would you like to start? 

285

STATEMENT OF J. DANIEL BREEN, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF TENNESSEE 

Judge BREEN. Thank you, Mr. Chairman. Let me first of all 

thank you and the other Committee members for considering my 

nomination on today’s hearing. I would like to also, if I could, publicly thank Senator Frist and Senator Alexander for their support 

and kind words on my behalf. 

If I might, I would like to introduce a lady that I know quite well 

and who has traveled with me here. We are celebrating our 30th 

anniversary this year. My wife, Linda, who is seated here behind 

me, and she is certainly here in my support. 

I would also, if I might, although they weren’t able to be here, 

my two sons. One is Daniel in Memphis, working in Memphis, Tennessee, and the other, Phillip, is in Orlando, Florida. He is in 

school there, and certainly they are very supportive of me as well. 

With that, sir, I do not wish to make, other than that, an opening statement at this time, sir. Thank you. 

Senator SESSIONS. Thank you. 

Judge Steele? I am glad to see your wonderful wife, Linda, here 

and your family. Please introduce who you have. 

STATEMENT OF WILLIAM H. STEELE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ALABAMA 

Judge STEELE. Thank you, Mr. Chairman. I am extremely grateful and honored for this opportunity to participate in this important constitutional process. I also would like to publicly express my 

gratitude to you and to Senator Shelby, who made the kind remarks on my behalf earlier, and also to President Bush for nominating me to this position and having confidence in my ability to 

serve as a district judge for the Southern District of Alabama. 

I am honored today to have many members of my family and 

some friends here that I would like to introduce. First of all, my 

wife, who is also my dance partner, my hiking partner, and my 

golfing partner, and my best friend for the last 32 years, Linda. 

Thank you. 

My mother, Martha, who is a member of Tom Brokaw’s greatest 

generation of Americans, and I will tell you that she is a person 

who loves this country almost as much as she loves her family, 

which is considerable. 

Senator SESSIONS. I enjoy seeing your mother at the Whistle 

Stop Restaurant every now and then after church on Sunday. 

Judge STEELE. My son, Chris, who is here today. If you would 

stand, Chris? He is the owner and operator of two of the best, if 

not the best restaurants on the Gulf Coast and a very hard-working restaurateur. We are very proud of him. Thank you, Chris. 

His wife, Rosemary, and his daughter, Madison, who is my only 

granddaughter, are unable to attend. Rosemary is anticipating delivering our second granddaughter in just a matter of days, so 

Chris will be leaving here quite quickly after the hearing today to 

attend to those responsibilities. Thank you, Chris. 

My son, Blake, former Eagle Scout, all-around good guy, also involved in the restaurant business on the Gulf Coast. His wife, 

Ranee, is here, and she is a very good student at one of our local 

universities in Mobile, and we’re very proud of Ranee. 

286

My daughter, Keri, who is a software application engineer for a 

large corporation in New Orleans, and she has done quite well with 

that particular profession. Thank you, Keri. 

My brother, Bob, Major, United States Marine Corps, retired. 

He’s a former helicopter pilot for Presidents Reagan and Bush. He’s 

also the recipient of a Distinguished Flying Cross for acts of bravery in Vietnam, and we’re certainly proud of my brother, Bob. 

Thank you. 

His wife, Valerie. Valerie is engaged in the noble profession of 

school teaching. She teaches first grade just south of here in the 

Stafford, Virginia, area. Thank you, Valerie. 

Their son, Jimmy, who’s a Lieutenant JG with the U.S. Coast 

Guard. He’s also a law student at American University here in this 

area and doing quite well in law school. 

His wife, Melissa, is also involved in the noble profession of 

school teaching in the Falls Church area, around the D.C. area. 

I’m also honored today to have one of my former law clerks, Joy 

Williams. I’m proud to have her today. She was a wonderful law 

clerk for me and one of the nicest people you’ll ever meet anytime, 

anywhere. She informs me that she has just accepted a position 

with the Office of General Counsel for the FBI here in Washington, 

so we’re really proud of Joy. 

Also in attendance from Mobile is Dr. Floyd Windal, one of our 

best friends, and we’re certainly gratified to have him with us here 

today. 

And in attendance is Bill Wynne, chief of the United States Probation Office, a good friend, and we’re proud to have him here 

today. 

Senator SESSIONS. One of the great probation officers in the history of the world. 

Judge STEELE. He is the best, let me tell you. And unable to attend is my sister, Sandy Steele, who is a city clerk in Fort Pierce, 

Florida, and my brother, Jerry Steele, who is a Colonel, United 

States Marine Corps Reserve, also director of the Boys and Girls 

Clubs in Mobile. 

So we’re proud of everyone, and I’m grateful today to be able to 

introduce them to the committee. Thank you. 

Senator SESSIONS. Thank you, Judge Steele. Very good. 

Mr. Varlan? 

STATEMENT OF THOMAS A. VARLAN, NOMINEE TO BE JUDGE 

FOR THE EASTERN DISTRICT OF TENNESSEE 

Mr. VARLAN. Thank you, Mr. Chairman. I, too, want to thank the 

Chair and the members of the Senate Judiciary Committee for consideration of my nomination. I also want to thank Majority Leader 

Senator Frist and Senator Alexander for their kind and gracious 

comments concerning my nomination. As well, obviously, I would 

like to thank the President for his submission of my nomination to 

this body. 

I have with me my wife and two of my four children I would like 

to introduce. My wife, Danni, who’s been so supportive of my professional efforts, in particular this particular quest. My oldest 

daughter, Georgia, who is a sophomore in high school in Knoxvlile. 

287

My daughter, Susanna, who’s in eighth grade, a middle school student. 

And also with us today is one of our very good friends, Amy 

Hartman. I’d ask her to stand. We both lived—our families both 

lived in Atlanta, Georgia, in Senator Chambliss’ home State, for a 

time in the 1980’s, and they moved to the Washington area about 

the same time we moved back to Tennessee, and we’re glad she’s 

here today. 

In absentia, I would also like to mention my two sons—my 12-

year-old son, Alex, and my 9-year-old son, Paul—as well as my father, Alexander Varlan, who are back in Knoxville wishing us well. 

So, again, thank you, Mr. Chairman, for the opportunity to be 

here today. 

Senator SESSIONS. Thank you. 

Mr. Stanceu? 

STATEMENT OF TIMOTHY C. STANCEU, NOMINEE TO BE 

JUDGE OF THE UNITED STATES COURT OF INTERNATIONAL 

TRADE 

Mr. STANCEU. Thank you very much, Mr. Chairman. The President’s nomination of me to the U.S. Court of International Trade 

has been the greatest honor of my career, and I am very grateful 

for the opportunity to be here today before the committee. I am 

also, of course, very grateful to President Bush for my nomination. 

I’m also very proud to be joined here today by members of my 

family. First of all, let me introduce my wife, Mary Incontro. Mary 

is in public service. She is an official with the Department of Justice and now working with the Federal Bureau of Investigation. 

My mother, Mitzi Mewhinney, is here, and her husband and my 

stepfather, Richard Mewhinney. They have come all the way from 

Florida to be with us here today, and I’m very pleased to say that, 

and also very, very pleased that my sister, Patricia Hallissy, has 

also traveled from Florida to be with us here today. 

And I sincerely thank you, Mr. Chairman. 

Senator SESSIONS. Thank you. 

Judge Horn? 

STATEMENT OF MARIAN BLANK HORN, NOMINEE TO BE 

JUDGE OF THE UNITED STATES COURT OF FEDERAL CLAIMS 

Judge HORN. Thank you, Mr. Chairman, and I want to thank you 

and Chairman Hatch for allowing me the opportunity to appear 

here this afternoon, and I want to thank the President for placing 

his trust in me and re-nominating me to another term on the Court 

of Federal Claims. I’ve been there for 16-plus years and enjoyed 

every day of that opportunity, and I hope to do another 15 years 

plus with the same kind of dedication that I think I’ve given to the 

job in the past. 

I do want to take the opportunity to introduce my husband who 

is here with me today, Robert Horn, a partner at Patton Boggs firm 

here in Washington, who is known to many of the members of this 

committee, and also my daughter, Carrie Horn, who is an associate 

at the law firm of Hunton and Williams here in D.C. Her two sisters, her twin sister, Rebecca, could not be with us here today. 

She’s a fourth-year medical student, and they don’t let her out of 

288

the hospital. And my other daughter is a holder of an MBA degree 

and works as a consultant in New York, in Senator Schumer’s 

State, in which I was born and raised. And I want to thank you 

all and hope that I could answer any questions, and I appreciate 

the opportunity. 

Senator SESSIONS. Very good. Well, you know, the Court of 

Claims and the International Court of Trade, and these three are 

for Federal district judgeships, I guess with regard to all of them, 

I know with the Federal judges, that management is a key requirement, that this is not a retirement job, that the modern challenges 

of a Federal judge are enormous. The caseloads are heavy. Lawyers 

have a right to expect that when they have submitted briefs properly and that sort of thing that the court will rule promptly. Delays 

cost parties extra money. They deny justice and that sort of thing. 

I remember when Judge Steele was Chief Assistant United 

States Attorney, I was District Attorney there for Chris Galanos in 

Mobile. He was a good administrator, and I remember we had some 

actually not very well thought out procedures in Federal court dealing with the processing of cases. Actually, I had thought for some 

time it was something that should be changed, and several years 

later, when Judge Steele was appointed magistrate judge, the court 

asked him to study the case processing in the court and to develop 

a plan to improve that. 

Judge Steele, it was a stunning improvement. Everybody that 

practiced regularly in the Federal court in Mobile appreciated the 

changes, and you orchestrated that. 

I will ask you, based on your experience as a magistrate judge 

and as an observer of Federal judges, do you feel a burden to move 

cases in a fair and prompt way? And is management something 

that we need to look for in our nominees? 

Judge STEELE. Thank you, Mr. Chairman, for the opportunity to 

answer that question. Yes, sir, I do think it’s something—management is a skill that is absolutely required of any nominee to the 

Federal district bench. Not only do you have to manage your own 

caseload, but you have to be conscious of the other judges’ caseloads as well and offer to help when needed to move the cases fairly and efficiently through the court. And I think we’re pretty successful at doing that in the Southern District of Alabama. We’ve 

had occasions where the caseload was just so excessive that it was 

difficult to do so. But I come from a court that has just a history 

of having judges who have great relationships with each other, who 

work with a sense of purpose and a goal to do the good—do justice 

for the good of the people. And they stay focused, and I think that’s 

the important part to a case management plan, is to have a plan 

that allows the judges to focus on the purpose of the court, and 

that is to do justice effectively and efficiently. 

Senator SESSIONS. So the plan shouldn’t drive the system. The 

plan should help you achieve justice. 

Judge STEELE. Yes, sir. 

Senator SESSIONS. I think that is a good observation. 

Judge Breen, do you agree with that? Do you have any thoughts? 

Judge BREEN. Yes, Mr. Chairman. Thank you again for the opportunity to answer the question. Rule 1 of the Federal Rules of 

Civil Procedure in civil cases obviously calls for us to have a fast, 

289

certainly efficient disposition of our cases, and I think that certainly applies equally in the criminal area. Obviously we have the 

Speedy Trial Act, so those cases are moved—certainly in your experience, I’m sure, as U.S. Attorney, to move those cases. 

In the Memphis area, which is one of the locations I sit now presently, we have a rotation docket that allows and assists us in moving the criminal cases because all the judges are participatory in 

that process of able to move those. 

In the civil area, I think it certainly is a collaborative effort in 

the sense that it takes the judge’s staff or the attorneys, the litigants, to set up deadlines and set up certain trial dates so that the 

lawyers will know, the litigants will know when their day in court 

is going to occur. 

In our area, we are trying to move those cases somewhere between 12 and 14 months from the date of filing. One of the aspects 

that certainly I’ve been involved in, and I’m sure other magistrate 

judges have, is in the area of ADR. And one of the things that is 

usually set in one of the scheduling orders is the use of ADR. And 

I think— 

Senator SESSIONS. That is alternative dispute resolution. 

Judge BREEN. Yes, sir, alternative dispute resolution, mediation, 

settlement conferences, things of that nature. And I think along 

with Judge Steele, I’m sure he’s been involved in a number of 

them. But many of our cases are resolved in that area. I don’t 

think it’s— 

Senator SESSIONS. Is that a factor, the use of that, in the decline 

in the number of cases actually going to trial in Federal court? 

Judge BREEN. I think it is. I think, again, I don’t think it’s a 

forced resolution. It’s a matter that, at least in my experience, is 

one that the lawyers and I think the litigants are becoming more 

accustomed to and are willing to involve themselves in, because 

they realize that, first of all, it’s less expensive. I always tell them 

it’s less traumatic than having to go through a full-blown trial, and 

certainly it’s less time-consuming because obviously the matter can 

be resolved at an earlier point in the life of a case. 

And so all of those factors that I’ve just described, along with 

what Judge Steele has said, I think is the role of our court, the role 

of the magistrate judges, the district judges, to collaborate with the 

litigants and with the lawyers to have a speedy and efficient disposition of cases. 

Senator SESSIONS. Well said. 

Mr. Varlan, do you have any comments? Have you given any 

thought to that? 

Mr. VARLAN. I have, Mr. Chairman, and thank you for the opportunity to respond. Certainly, going back to your original question 

or premise, certainly management of the caseload is a key consideration for district court judges as well as magistrate judges. I have 

not had the perspective of being a magistrate judge as Judge Steele 

and Judge Breen have been. But from the standpoint of a practicing attorney, it is a key consideration. 

In discussions with various attorneys, as my nomination was 

being considered, over and over again I hear from attorneys, you 

know, what do they want out of district court judges? They want 

to be treated fairly, they want to be treated even-handedly, and 

290

they want their cases to move in a fair and efficient manner, which 

somewhat almost similarly echoes the words of the Chair at the beginning of your question. 

And from my perspective, it takes hard work. It takes managing 

your docket. It takes adhering to deadlines, rendering prompt decisions. Certainly alternative dispute resolution, ADR, is a very useful tool, as Judge Breen mentioned. In the Eastern District we 

have a voluntary ADR program where many attorneys sign up to 

serve on a list of approved mediators. As a practicing attorney, I’ve 

had several cases in Federal court that we have utilized that mediation program, and although I don’t have statistics for the Chair, 

we tend to find that many of those cases that are mediated are settled. They may have been settled without mediation, but certainly 

mediation and ADR has been a useful, an extremely useful tool 

with respect to cases pending in Federal court, as well as State 

court for that matter. 

Senator SESSIONS. With regard to precedent—and I will ask all 

of you this—do you recognize that even though you have been 

given, for three of you lifetime appointments, long appointments for 

the others, that you have a solemn personal duty to restrain your 

personal impulses and to be a neutral arbiter of the law and the 

facts as fairly have been found by you as you make your opinions 

and that you will be faithful to the binding authorities in defining 

the laws and statutes? Judge Breen, just briefly, would you comment on that? 

Judge BREEN. Yes, thank you, Mr. Chairman. Certainly the issue 

of precedent, of stare decisis, is an extremely important concept in 

our jurisprudence. I think it’s the backbone of our system. Certainly lawyers and litigants both look for some predictability, something that they know that—stability in the sense that they can go 

into court and have some basis or some idea of what precedent has 

been involved here. And I think we as judges have a duty, we are 

duty-bound certainly by oath, to look at that precedent, certainly 

from the Supreme Court standpoint and then from our own circuit, 

in my case, obviously, the Sixth Circuit. But certainly that is, 

again, a bedrock, I think, of what we as judges must look to and 

utilize whenever we are ruling on matters in our courts. 

Senator SESSIONS. Judge Steele? 

Judge STEELE. Yes, sir. Certainly it’s not the role of a Federal 

district judge or a Federal judge of any level to legislate. And a 

judge is obligated by the rule of law to follow the precedent that’s 

available to him in the circuit that he’s in, or if there is Supreme 

Court precedent, to follow that. 

I’m reminded of the language in the—I think it’s a recent case, 

the United States Supreme Court in Hatter, in which the Court admonished the lower court that you will follow our law whether you 

agree with it or not, and you will follow it until we tell you that 

it’s different. 

Well, that admonishment, I think, is well taken and— 

Senator SESSIONS. Well, that is important because one party has 

had to appeal because the court is not ruling correctly, they had 

to go to all that expense and all that delay through a system that 

really wasn’t necessary if they had followed the law to begin with. 

291

There are a lot of reasons why lower courts should follow the superior courts. 

Judge STEELE. I agree with that. I think I’ve selected somewhere 

in the neighborhood of 200 juries in my capacity as a magistrate 

judge, maybe 250 juries, and each time I charge them that you 

must follow the law whether you agree with it or not. And I think 

that same charge applies to me. I have to follow the law whether 

I agree with it or not. 

Senator SESSIONS. And that is the standard charge given to all 

the juries. 

Judge STEELE. Right. 

Senator SESSIONS. Mr. Varlan? 

Mr. VARLAN. Thank you, Mr. Chairman. I, too, agree that the 

principle of stare decisis and adherence to precedent is extremely 

important to our judicial system and our rule of law. As the Chair 

stated, our role as judges is to act as a neutral arbiter of the facts 

and the law, and that principle, that bedrock principle, provides 

the predictability to the lower court in terms of following the Sixth 

Circuit, in my case, as in Judge Breen’s, and the U.S. Supreme 

Court, as well as some measure of predictability to the litigants 

and the attorneys and parties that come before us. 

Senator SESSIONS. Mr. Stanceu? 

Mr. STANCEU. Thank you, Mr. Chairman. I would agree with the 

views that have been expressed here, and I would add that I would 

view a judge’s most solemn duties are to uphold the rule of law and 

to do impartially and fairly. Judicial activism—and those are two 

words that I don’t believe go together. Judicial activism is not 

being impartial. Activism is for the parties and their attorneys who 

must zealously represent them within the bounds of the law. I 

would see the judge’s duty as to uphold the rule of law and achieve 

fairness. 

Senator SESSIONS. The light is fading on us. 

[Laughter.] 

Mr. STANCEU. And with the specific respect to the U.S. Court of 

International Trade, that would mean loyalty and fidelity to the decisions of the Supreme Court and, of course, to the U.S. Court of 

Appeals for the Federal Circuit, in which circuit the U.S. Court of 

International Trade is located. 

Senator SESSIONS. What special challenges do you think you will 

face as a Court of Trade judge? 

Mr. STANCEU. I would say that in fulfilling the responsibilities of 

a judge of the Court of International Trade, if I am fortunate to be 

confirmed, one thing we must always guard against is to make sure 

that all parties have a full and fair opportunity to be heard. I want 

to make a couple of points on that. 

First, you mentioned—the excellent remarks that you had mentioned, Mr. Chairman, about managing the docket. Wholeheartedly 

I agree, and I believe that that responsibility will require continued 

diligence and dedication. 

I can commit to this Committee and to the bar of the Court of 

International Trade that I will do my utmost to move the docket 

along, but never at the expense of fairness or giving every party 

the opportunity to be heard. For example, I do not believe it is 

proper for judges to pressure parties into settlements as a means 

292

of managing the docket. The Congress has created the Court of 

International Trade under its Article III powers under the Constitution to give importers, domestic parties, and other interested 

parties the right to be heard in front of this court. And if it is their 

desire to go to trial, then that right must be upheld. 

Thank you. 

Senator SESSIONS. Judge Horn, tell me about your experience 

and what do you look forward to next. 

Judge HORN. Well, I can honestly say I’ve had 16 marvelous 

years on the court. 

Senator SESSIONS. Is that the term? 

Judge HORN. The term is 15. I’m now in senior status until hopefully the Committee sees fit to have the re-nomination confirmed. 

The term is 15 years in and of itself. 

I think that the beauty of the caseload on our court is the complexity of many of the cases, which is why I enjoy the challenge. 

We, of course, have an entirely civil docket, and we get cases in a 

variety of areas, many of which are multi-count, large-dollar volume, and pretty complex, which is why it is challenging. 

I believe just in answer to the questions that have been asked 

that case management is obviously an important part of any 

judge’s responsibility, and in a sense time is money, particularly 

since we have a civil docket and our responsibility is to make sure 

to get to the just, fair, and proper answer in as expeditious manner 

as possible. 

With respect to following case precedent, I think it’s the sworn 

duty of any judge to follow case precedent. I try to do that and 

have tried to do that in all of the cases that I’ve decided, including 

some in which—the few that the Court of Appeals for the Federal 

Circuit has seen fit to overturn, which has been on an average of 

about one a year in about 16 years. So, so far, we’ve done okay. 

Senator SESSIONS. Let me ask you, do you think judges sometimes can become too timid in honestly evaluating the law and 

facts and worry about reversals? Is that something you should—

how should you evaluate calling it and worrying about reversals? 

Judge HORN. Well, Mr. Chairman, I welcome that question because I preached for a long time— 

Senator SESSIONS. Well, you have taught. I know you taught at 

George Washington and American University Schools of Law, so I 

am sure you have thought about it. 

Judge HORN. I have thought about it, and I honestly believe that 

that is something a judge should never think about. You are there 

to do the best you possibly can with the case precedent, with the 

facts that come before you in a particular case, and I think it would 

be inappropriate for a judge, frankly, to worry about whether or 

not he or she will be reversed. 

It happens on occasion. Reasonable men and women disagree. 

But that should never be the driving force. 

Senator SESSIONS. Well, you three Federal district judge nominees, I will ask you this. I hope Judge Steele hasn’t forgotten his 

brief tenure as an Assistant United States Attorneys, 2 years or so. 

But my question is: Will you give the prosecutors the same fidelity 

to fair rulings that you do to the defendant? As Judge Horn suggested, you really need—I think the law requires you to call the 

293

shots fairly. It is a fact, however, that a lot of people in America 

do not know that if you rule against a prosecutor, they can’t appeal. If you rule against a defendant, they might. So I have observed—and there have been criticisms of judges tending to rule for 

the defendant just so they might—there will be no chance of being 

reversed on appeal. Will you be faithful and give the prosecutor a 

fair chance, the three of you? Yes or no, or any brief comment you 

might have. 

Judge BREEN. Mr. Chairman, again, I have been on the bench 

now about 12 years, and I think that there have been opportunities 

and occasions when I have ruled against the government. There 

are many opportunities that I have ruled in their favor. Certainly 

I pride myself on being impartial and fair and willing to listen to 

all parties, whether they’re the government, whether they’re private individuals, corporations, or whatever persons, you know, certainly who are not even represented, are representing themselves. 

So I feel that I can unqualifiedly give the government and any 

other litigant who comes into my court a fair hearing and certainly 

the decision I make is not based upon who it is or what their status 

in life is. 

Senator SESSIONS. Judge Steele? 

Judge STEELE. Yes, sir, I have a similar experience with 13 years 

as United States magistrate judge. I have had many opportunities 

to rule for and against the government and for and against the defendants in cases, and each time my rulings were based on the 

facts and the law as they were presented to me in my best judgment of what the result ought to be. 

Senator SESSIONS. Mr. Varlan? 

Mr. VARLAN. Thank you, Mr. Chairman, and I have—in my legal 

career, approximately half has been public from a civil standpoint 

in terms of being city attorney and the other half in private practice. And I believe and I know that I can be fair and impartial to 

those who appear before me, and that would obviously include the 

government and prosecutors as well as defendants and other litigants. 

Senator SESSIONS. Well, I will just say to all of you congratulations, you have cleared one more hurdle, I suppose you can call it, 

in this weird process. I am not sure there is any real justice in it, 

but it is a process that we go through and historically has resulted 

in good judges going on the bench. And I don’t think it makes any 

difference if you are Senator Leahy’s campaign Chairman or a 

former Assistant United States Attorney that you know. What we 

want is the best judges that we can get who, when they put that 

robe on, will try to rule right and fair, following the law and following the facts. 

We will keep the record open for one week to allow follow-up 

questions. The questions are due by 5:00 p.m. next Wednesday. 

[The biographical information of Judge Breen, Judge Steele, Mr. 

Varlan, Mr. Stanceu, and Judge Horn follow.]

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Senator SESSIONS. If there are no other matters, we will stand 

adjourned. 

[Whereupon, at 12:38 p.m., the Committee was adjourned.] 

[Additional material is being retained in the Committee files.] 

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

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NOMINATIONS OF CORMAC J. CARNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; JAMES V. 

SELNA, NOMINEE TO BE DISTRICT JUDGE 

FOR THE CENTRAL DISTRICT OF CALIFORNIA; VICTOR J. WOLSKI, NOMINEE TO 

BE JUDGE FOR THE UNITED STATES COURT 

OF FEDERAL CLAIMS; THERESA LAZAR 

SPRINGMANN, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

INDIANA; PHILIP P. SIMON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF INDIANA; MARY ELLEN COSTER 

WILLIAMS, NOMINEE TO BE JUDGE FOR 

THE UNITED STATES COURT OF FEDERAL 

CLAIMS; RICARDO H. HINOJOSA, NOMINEE 

TO BE SENTENCING COMMISSIONER; AND 

MICHAEL E. HOROWITZ, NOMINEE TO BE 

SENTENCING COMMISSIONER 

WEDNESDAY, MARCH 12, 2003

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 2:05 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Saxby Chambliss, 

presiding. 

Present: Senators Chambliss, Feinstein, Cornyn, Feingold, and 

Schumer. 

OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. 

SENATOR FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. The Committee will come to order. It is my 

pleasure to welcome to the Committee this afternoon eight outstanding nominees. This is the first time I have had the privilege 

of chairing a hearing before the Senate Judiciary Committee and 

I, for one, am pleased that this is a confirmation hearing. 

456

One of the most important responsibilities that we have as Senators is to exercise our constitutional duty of advice and consent. 

As yesterday’s floor debate illustrates, there is substantial disagreement among us about what precisely the Constitution demands in the fulfillment of that duty, but I have no doubt that 

each and every member of the United States Senate takes that responsibility just as seriously as I do. This is why it is a particular 

honor for me to be here today chairing this hearing. 

Whether by design or by default, it seems that this hearing is 

structured in pairs. We have before us two nominees for the Central District of California, two for the Northern District of Indiana, 

two for the U.S. Court of Federal Claims, and two for the U.S. Sentencing Commission. 

I know that for our first panel of witnesses, we will have many 

things to say about the superb qualification of the nominees, so I 

will keep my remarks brief. 

Let me first say a word or two about our first four District Court 

nominees, three of whom are sitting judges. Our nominees for the 

Central District of California are Cormac Carney and James Selna, 

who are both Orange County Superior Court judges. Judge Carney 

and Judge Selna have another experience in common. They were 

both partners in the prestigious law firm of O’Melveny and Myers 

before entering judicial service. While their confirmation will bring 

a wealth of experience to the Federal bench, it will undoubtedly inflict a loss upon the State bench. 

The nominees for the Northern District of Indiana are Philip 

Simon and Theresa Springmann. Mr. Simon has already spent the 

bulk of his career in public service as a Federal prosecutor. Given 

the high volume of criminal cases our Federal courts handle, this 

experience will no doubt serve him well. 

Judge Springmann began her legal career as a law clerk for a 

judge on the very court she now seeks to join. She has extensive 

experience on both sides of the bench, first as a lawyer in private 

practice, and then as a Federal magistrate judge. 

In addition to our four district nominees, we will consider two 

more judicial nominees, these for the Court of Claims. This court 

hears most of the high-dollar lawsuits against the Federal Government. Our first Court of Claims nominee is Mary Ellen Coster Williams, who has been an Administrative Judge on the General Services Administration Board of Contract Appeals since 1989. Prior to 

that, she worked for 8 years in private practice and for more than 

3 years as an Assistant United States Attorney, where she gained 

valuable experience handling matters involving government contracts, employment law, torts, and commercial litigation. 

Like Judge Williams, Victor Wolski comes to us with excellent 

qualifications. He has worked as a law clerk for a Federal district 

judge and as an attorney in both private practice and public service. His career includes a stint as a Capitol Hill staffer, and I am 

told that many of his fellow staffers are here today in support of 

his nomination. I am confident that he will make a fine addition 

to the Court of Claims. 

Our final panel of the day will consist of two nominees for the 

Sentencing Commission, which sets sentencing practices and policies for the Federal courts. Judge Ricardo Hinojosa has served as 

457

Federal District Court Judge for 20 years and has presided over 

hundreds of sentencing proceedings. This is an important perspective to bring to the Commission. 

Michael Horowitz served in the Criminal Division of the Department of Justice in both the Clinton and President Bush administrations, and prior to that as a Federal prosecutor in Manhattan. He 

already has familiarity with the operation of the Sentencing Commission since he presently serves as a member of its advisory 

group. 

This is obviously an incredibly talented group of nominees before 

us today. I commend President Bush for nominating them and I 

look forward to hearing their testimony. 

Our first panel is a very distinguished group of Senators, and 

you know since they are all colleagues of mine, I would love to put 

them all under oath and ask them a few questions about some 

issues that I would like to know about— 

[Laughter.] 

Senator CHAMBLISS. —but we always exempt this panel from 

being put under oath. 

Senator Feinstein, I know, has another commitment and we have 

agreed that she will go first, so Senator Feinstein, we look forward 

to hearing from you. 

PRESENTATION OF JAMES V. SELNA AND CORMAC J. CARNEY, 

NOMINEES TO BE DISTRICT JUDGES FOR THE CENTRAL DISTRICT OF CALIFORNIA BY HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. In 

particular, I am here to make a few comments about two California 

judges, both of them to be District Court Judges for the Central 

District of California, and in no particular order, the first one I will 

introduce is Judge Selna. 

Judge Selna passed through the screening committee, as did the 

second judge, Judge Carney, with a unanimous six-zero vote. The 

Committee gave him a rating of ‘‘exceptionally well qualified.’’ As 

you know, Mr. Chairman, the Committee is composed of three Republicans and three Democrats, so they have to agree, and all six 

did agree on this. 

Judge Selna is joined today by his wife Harriet and daughter 

Christine. He has impressive academic and legal credentials. He 

graduated Phi Beta Kappa from my alma mater, Stanford, in 1967, 

where he was Editor-in–Chief of the Stanford Daily. Now, this is 

the only thing that makes me question his credentials— 

[Laughter.] 

Senator FEINSTEIN. —because when I went to Stanford, the Daily 

was a very controversial Daily, and now I assume under his Editorin–Chief, it is much more mild than it was in my days. 

Three years later, he obtained his law degree at Stanford, earning the Order of the Coif. He also received the Urban Sontheimer 

Prize for graduating second in his class. After a brief stint in the 

military, Judge Selna joined the Los Angeles law firm of O’Melveny 

and Myers, where he has practiced law for 25 years. He specialized 

in litigating complex commercial disputes, typically involving highVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00471 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.001 SJUD4 PsN: CMORC
458

tech issues and companies. He also developed an expertise in antitrust and trade regulation, as well as trade secret law. 

After a highly successful career in private practice, he was appointed to the Superior Court in 1998 and he has served with distinction on that bench and enjoys great respect from the trial bar. 

I would put the rest of my statement, if I may, not to take more 

time on this distinguished individual, in the record, and will go 

quickly to Judge Carney. 

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

Senator FEINSTEIN. Judge Carney is joined here today by his 

wife, Mary Beth, his son, Thomas, age 13, his son, John, a fifth 

grader, and his daughter, Claire, age nine. His father and his 

mother and his sister are here today, as well. Perhaps you could 

all stand and we will welcome you, since you are such a nice large 

family. We are delighted to have you here today. 

[Applause.] 

Senator FEINSTEIN. Now, this judge also comes before this Committee with impressive credentials. He received his undergraduate 

degree from UCLA Cum Laude in 1984. While at UCLA, he played 

varsity football and earned all–American recognition. After playing 

1 year of professional football in the United States Football League, 

Judge Carney attended Harvard Law School and obtained his law 

degree in 1987. An all–American from Harvard—that is wonderful. 

Judge Carney spent his entire legal career in the private sector 

until he was appointed to the Superior Court in 2001. From 1987 

to 1991, Judge Carney worked as an associate at the firm of 

Latham and Watkins, where he practiced business litigation on behalf of Fortune 500 companies. He subsequently moved into another prestigious Los Angeles firm, O’Melveny and Myers, and became a partner in the firm. He remained there until his appointment to the Superior Court. 

Again, I have a list of very qualified people, appellate justices 

recommending him very strongly, and I will put those in the 

record, Mr. Chairman. 

I thank you and I thank my colleagues for the courtesy. I serve 

on five committees and 12 subcommittees and I have found that it 

is a full deck of cards, so thank you very much. 

Senator CHAMBLISS. Thank you, and on all five of those committees, she is a good one, too. 

Senator FEINSTEIN. Thank you. 

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

Senator CHAMBLISS. Senator Lugar? 

PRESENTATION OF PHILIP P. SIMON AND THERESA LAZAR 

SPRINGMANN, NOMINEES TO BE DISTRICT JUDGES FOR THE 

NORTHERN DISTRICT OF INDIANA BY HON. RICHARD G. 

LUGAR, A U.S. SENATOR FROM THE STATE OF INDIANA 

Senator LUGAR. Thank you very much. 

Senator CHAMBLISS. We are pleased to have you here. 

Senator LUGAR. I appreciate, Mr. Chairman, your chairing this 

meeting and it is a real pleasure to present to the Senate Judiciary 

Committee two outstanding District Court nominees from the 

459

Northern District of Indiana. I would like to thank especially 

Chairman Orrin Hatch and Ranking Member Pat Leahy for holding this hearing and moving so quickly on these nominations. 

Early last year, Judge William Lee and Judge James Moody informed me of their decisions to assume senior status after distinguished careers of public service. Both of these individuals are remarkable leaders on the Federal bench and I applaud their leadership for Indiana and to the legal profession. 

Immediately upon hearing of these decisions, I notified the White 

House and was asked by the President to help find the most qualified candidates to fill these two important positions in Hammond 

and Fort Wayne, Indiana. I took this role very seriously and selected the candidates who would best serve the Northern District 

of Indiana, and after sharing these selections with my friend and 

colleague, Senator Evan Bayh, I submitted the names and applications of three outstanding candidates to the White House for their 

consideration. The President recently selected Assistant United 

States Attorney Philip Simon and United States Magistrate Theresa Springmann. 

Philip Simon is joined here today by his wife, Jane; his children, 

Claire, Matthew, and Sarah; his parents, Robert and Bonnie 

Simon; and his mother-in-law, Sally Mayes. I am very pleased they 

were able to come to today’s hearing and I would like to recognize 

them if they would stand. Thank you. 

[Applause.] 

Senator LUGAR. Philip Simon has a remarkable record as an Assistant United States Attorney. As Chief of the Criminal Division, 

he is responsible for overseeing all criminal prosecutions in the 

Northern District of Indiana. He has supervised and participated 

in prosecutions involving large-scale drug distribution rings, illegal 

firearms trafficking, white collar fraud cases, environmental crime, 

and mob-related racketeering cases. In addition, he is in charge of 

a public corruption task force in Lake County, Indiana. 

Philip has been the recipient of a number of awards and commendations. In 1995, the Mutual Insurance Companies of Indiana 

presented the Sherlock Award to Philip for his work to combat insurance fraud. In 1999, Philip was given the Director’s Award by 

Janet Reno, the highest award given to an Assistant United States 

Attorney by the Justice Department. 

Aside from his outstanding public service, he is a dedicated community leader with an interest in assisting children and families 

with autism. 

Judge Theresa Springmann is joined here today by her husband, 

David; her two sons, Gus and Tony; and by her mother, Mary 

Lazar. I would like to recognize their appearance here today and 

ask them to stand for your recognition. 

[Applause.] 

Senator LUGAR. Theresa was the first woman to be made partner 

at Spangler, Jennings, and Dougherty, the largest law firm in 

Northwest Indiana. She followed up this distinction by becoming 

the first woman judicial officer in the Northern District of Indiana. 

Judge Springmann has served as United States Magistrate Judge 

since March of 1995, where she has presided over 30 civil jury 

460

trials, ten civil and criminal bench trials, and conducted over 300 

settlement conferences for the District Court. 

She has received a number of high performance ratings throughout her tenure as a magistrate judge, including the ‘‘AV’’ rating 

from Martindale–Hubbell and the highest judicial rating from the 

Lake County Bar Association. Like Philip Simon, she is involved in 

a number of community activities and civic organizations. 

I want to thank again you, Mr. Chairman, for conducting the 

hearing, the Chairman and Ranking Member for these opportunities to present these two outstanding nominees to the committee. 

I believe they will demonstrate remarkable leadership in Northern 

Indiana and will appropriately hold and defend our laws under the 

Constitution. I thank the chair. 

Senator CHAMBLISS. Thank you, Mr. Chairman. 

We are also pleased to have your colleague, Senator Evan Bayh, 

here with us. Senator Bayh, we look forward to hearing from you. 

PRESENTATION OF PHILIP P. SIMON AND THERESE LAZAR 

SPRINGMANN, NOMINEES TO BE DISTRICT JUDGES FOR THE 

NORTHERN DISTRICT OF INDIANA BY HON. EVAN BAYH, A 

U.S. SENATOR FROM THE STATE OF INDIANA 

Senator BAYH. Thank you very much, Mr. Chairman. I, too, 

would like to thank you and your colleagues on the Committee for 

moving sos expeditiously with regard to these nominees and I hope 

you will share our gratitude with Chairman Hatch and Ranking 

Member Leahy for your quick work in this regard. We are very 

grateful. 

I would also like to thank my friend and colleague, Senator 

Lugar. He has been, as always, the embodiment of comity and reason during this process. As he described, he established a procedure early on for narrowing the number of applicants down to a 

final number. He called me into his office, personally reviewed the 

qualifications with me before forwarding all of the names to the 

White House, and so I would just like to say, Mr. Chairman, while 

the recommendations to the President were his, I felt fully consulted throughout this process, and for that, I am most grateful to 

Senator Lugar. 

I am pleased, Mr. Chairman, to lend my wholehearted and unqualified support to these nominees. Theresa Springmann and Philip Simon will be outstanding jurists in the finest tradition of our 

Federal judiciary. Both have outstanding academic credentials, 

having graduated from fine Indiana legal institutions. Both have 

extensive legal and public service backgrounds, one first as a clerk 

in the Federal courts and now as a U.S. Magistrate, the other as 

a longtime Federal prosecutor with an exemplary record. Both have 

been rated highly qualified by the American Bar Association. 

So, Mr. Chairman, it is without reservation and with a full heart 

that I support these nominees. I thank the Committee for your indulgence, and again my colleague, Senator Lugar, for his courtesy. 

Senator CHAMBLISS. We thank you very much for being here and 

we look forward to hearing from these nominees. 

Our dear friend and my Committee Chairman on the Armed 

Services Committee, Senator Warner. We are pleased to have you 

with us today and look forward to hearing from you. 

461

PRESENTATION OF VICTOR J. WOLSKI, NOMINEE TO BE 

JUDGE FOR THE UNITED STATES COURT OF FEDERAL 

CLAIMS BY HON. JOHN W. WARNER, A U.S. SENATOR FROM 

THE STATE OF VIRGINIA 

Senator WARNER. Thank you very much, Mr. Chairman. It is a 

pleasure to see you in the chair there, presiding. I have got to keep 

an eye on you in my committee. You are so enthusiastic, you might 

try and bump me out one of these days. 

[Laughter.] 

Senator WARNER. Mr. Chairman and members of the committee, 

as I listened to my colleagues here and the summary by the distinguished Chairman of the nominees today, I thought how fortunate 

we are as citizens of this great nation to have a President who has 

very, very carefully gone into the selection process and made these 

splendid selections. 

My dear friend and co-equal partner here in the Senate, Senator 

Allen, and I have the privilege today of introducing Victor Wolski 

for nomination as a judge on the United States Court of Federal 

Claims. I would ask, Mr. Chairman, that my entire statement be 

placed in the record and Senator Allen and I are going to share on 

the distinguished background of this individual in our introduction. 

Senator CHAMBLISS. Certainly, we will do that. 

Senator WARNER. As you may know, the Federal Court of Claims 

is an Article I court that is authorized to hear primarily money 

claims founded upon the Constitution, Federal statutes, executive 

regulations, or contracts with the United States. Twenty-five percent of the cases before this court involve complex tax issues. The 

judges on this court serve for a term of 15 years. In my view, Mr. 

Wolski’s background makes him well qualified to be a member of 

this specialized court. He has had extensive training in a broad 

range of areas and most particularly the emphasis on taxation. 

He graduated from the University of Virginia, where my distinguished colleague and I were privileged to graduate, and then went 

on to serve as a Federal law clerk for a U.S. District judge sitting 

in California. Subsequent to his clerkship, Mr. Wolski worked for 

5 years as a litigator for the nonprofit Pacific Legal Foundation. 

He then came to Capitol Hill, where he served for 3 years as tax 

counsel for Senator Connie Mack. I was privileged to serve 

throughout the tenure of Senator Mack here in the Senate and few 

attained the recognition and the respect on both sides of the aisle 

as did our dear friend Senator Mack, who is still very active. I saw 

him just the other day. But his heart is still here in the Senate, 

and for this fine man to have been selected by that outstanding 

member of the United States Senate says a lot about Mr. Wolski’s 

credentials. 

After leaving Senator Mack’s office, Mr. Wolski joined the Washington, D.C. law firm of Cooper and Kirk and he currently works 

at that firm, practicing law in a number of diverse areas including 

consitutional law, land use regulations, and tax law. 

Clearly, Mr. Chairman and members of the committee, he is eminently qualified and I heartily give my unqualified endorsement to 

this distinguished nominee. 

Senator CHAMBLISS. Thank you very much. 

462

Senator CHAMBLISS. We are very pleased that you brought along 

your sidekick and my good friend, Senator George Allen. 

Senator WARNER. Oh, yes. 

Senator CHAMBLISS. Senator Allen, we are glad you are here and 

look forward to hearing from you. 

Senator WARNER. When it got to that all–American qualification 

in one of the nominees— 

Senator CHAMBLISS. He got excited, didn’t he? 

Senator WARNER. —he jumped six inches out of his seat over 

here. 

[Laughter.] 

Senator CHAMBLISS. He may sign him up as a Redskin here before he leaves. 

Senator WARNER. His heart is still to become a football player. 

I mean, he has tried several times in college, but you will make it 

one of these days. 

[Laughter.] 

PRESENTATION OF VICTOR J. WOLSKI, NOMINEE TO BE 

JUDGE FOR THE UNITED STATES COURT OF FEDERAL 

CLAIMS BY HON. GEORGE F. ALLEN, A U.S. SENATOR FROM 

THE STATE OF VIRGINIA 

Senator ALLEN. Well, I am glad I am here, Mr. Chairman, and 

thank you all. It is wonderful to be with Senator Feingold, Senator 

Cornyn, and it is my pleasure to be introducing and support my 

colleague, Senator Warner, in support of Victor Wolski of Virginia 

to be judge for the U.S. Court of Federal Claims. 

I do think Judge Carney would be great. He was in the USFL. 

My father coached in the USFL. He played with Reggie White and 

Pepper Rogers coached him, and you know Rogers was at Georgia 

Tech, so that should give you a few added points for Judge-to-be 

Carney. 

Senator CHAMBLISS. And the Falcons need some help. He looks 

like he is still in pretty good shape, George. 

[Laughter.] 

Senator WARNER. Well, let’s kill the nomination and send him 

back, then. 

[Laughter.] 

Senator ALLEN. I have to look out for the Rangers these days. At 

any rate, back to the matter at hand, Victor Wolski. 

Victor Wolski is someone who I knew when I was in the House 

of Delegates in the Charlottesville area. He was a law student at 

the University of Virginia School of Law and that is when I first 

got to know him. That was probably before his life was made much 

better by his bride, Lisa, who is here with him, as well as his mother, Jean, of course, who brought him into this world. And so if Lisa 

and Jean are here, I would ask that they would arise and be recognized by the committee. 

[Applause.] 

Senator ALLEN. Mr. Chairman, I am happy to report in the years 

since he left the University of Virginia, Mr. Wolski has distinguished himself as a leader in the legal profession and also as an 

accomplished legislative aide and, obviously, a very well qualified 

nominee. He served as general counsel to the Joint Economic ComVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00476 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.001 SJUD4 PsN: CMORC
463

mittee in the 106th Congress and later as tax counsel, as Senator 

Warner said, to Senator Mack. 

During his time on Capitol Hill, Mr. Wolski worked closely with 

staff on both sides of the aisle to advance Senator Mack’s bipartisan tax agenda, which was a wide variety of bills covering many 

areas of the tax code, including low-income housing tax credit, the 

District of Columbia’s first-time home buyer tax credit, defense industry taxation, capital gains taxes, and the research and development tax credit. 

He established himself not just as a man of good ideas, but also 

one who could work on the tax code in a variety of issues with people on both sides of the aisle. As Senator Warner talked about his 

experience in the private sector with a law firm, what you have 

here before you, Mr. Chairman and members of the committee, is 

an outstanding individual with legislative experience, litigation experience, with a proper balanced perspective for the issues that 

come before this court and I am confident he will make an outstanding judge and he has my highest recommendation and I request that you move as quickly as possible for his confirmation. 

Thank you all for your indulgence and your care. 

Senator CHAMBLISS. I thank both of you very much, and we look 

forward to hearing from your nominee. 

Senator Hutchison, we are glad to have you with us and we look 

forward to hearing from you. 

PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE 

UNITED STATES SENTENCING COMMISSIONER BY HON. KAY 

BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF 

TEXAS 

Senator HUTCHISON. Mr. Chairman, I am here to introduce 

Judge Ricardo Hinojosa. He has been my friend for a long time. He 

has served as a U.S. District Judge for the Southern District of 

Texas in McAllen for nearly 20 years and he is nominated today 

for the U.S. Sentencing Commission. 

Judge Hinojosa sentences an astounding 400 people per year. 

The average is only 70 people per year. He earned his law degree 

from Harvard in 1975 and served a year as a briefing attorney for 

the Texas Supreme Court, and then returned to the Rio Grande 

Valley to practice law for 7 years. 

Over the years, Judge Hinojosa has received numerous honors 

and awards for his leadership and community service, including 

being named one of the 100 Most Influential Hispanics in the country by Hispanic Business Magazine in 1984 and 1985. He received 

the 2001 Distinguished Alum Award from the University of Texas 

Students’ Association, and he is a former President of that association. He also teaches at the University of Texas Law School as an 

adjunct professor, teaching sentencing. 

His outstanding term of service on the Federal Court system certainly qualify him to serve on this Sentencing Commission and I 

do hope that you will be able to put his nomination through in an 

expedited way. He is a wonderful person, a friend that I have 

known personally for a long time working with him in the UTX 

Students’ Association, excusing me, Senator Cornyn, who is a 

464

Baylor graduate—no, Trinity graduate, excuse me. But anyway, he 

is a longtime friend and would be great in this position. 

Senator CHAMBLISS. And he couldn’t have a better recommendation than coming from you. Thank you very much, Senator 

Hutchison. 

Senator HUTCHISON. Thank you. 

Senator CHAMBLISS. Senator Cornyn, we are pleased to have you 

as a member of the panel to give your recommendation on Judge 

Hinojosa. 

PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE 

UNITED STATES SENTENCING COMMISSIONER BY HON. 

JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman, and I would like to 

add my voice to that of my colleague, the Senior Senator from 

Texas. 

I have learned in the short time that I have been in the United 

States Senate the truism that while everything has been said, not 

everybody has said it yet, so really, I don’t want to repeat what 

Senator Hutchison has said because she has done a good job of 

talking about Judge Hinojosa’s qualifications for this important job. 

But, of course, if I wasn’t here, then I would have to explain to my 

friend, Judge Hinojosa, why I wasn’t here adding my voice in support of his nomination and people might get the wrong idea, so I 

am delighted to be here with Senator Hutchison to recommend to 

the Judiciary Committee and hope that we will act promptly to 

vote this nomination out to the full floor and have Judge Hinojosa 

confirmed as one of the newest members of the United States Sentencing Commission. 

Judge Hinojosa, as Senator Hutchison has observed, knows about 

sentencing because he does it daily. While guilt is rarely in doubt 

in many of the cases that come before a Federal District Judge, 

sentencing is one of those things that weighs most heavily on the 

minds and the hearts of judges because they know the consequences of their judgment. 

And so the Sentencing Commission was created, of course, to 

give some uniformity, some standard guidelines that would allow 

judges to assess proper punishment in those cases where guilt is 

already established. It is, I think, important to have judges like 

Judge Hinojosa, who are experienced, who know how it works in 

real-life application, because, of course, they are writing the rules 

that have to be applied by judges all across this country and it is 

important to have those who are there where the rubber meets the 

road and who understand the practical implications of these important guidelines. 

So in closing, let me just say how delighted I am the President 

has chosen such an outstanding individual for this great honor and 

how much I look forward to Judge Hinojosa’s excellent service on 

the United States Sentencing Commission. Thank you. 

Senator CHAMBLISS. Thank you, Senator Cornyn, and again, we 

look forward to the presentation of these nominees. 

At this time, we are going to ask the first panel of nominees, Mr. 

Carney, Mr. Selna, Mr. Simon, Ms. Springmann, Ms. Williams, and 

Mr. Wolski, to please come forward. Before you sit down, we are 

465

going to ask all of you to be sworn, and would you remain standing 

to be sworn, please. Would each of you raise your right hand, 

please. 

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

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

truth, so help you, God? 

Judge CARNEY. I do. 

Judge SELNA. I do. 

Mr. SIMON. I do. 

Judge SPRINGMANN. I do. 

Judge WILLIAMS. I do. 

Mr. WOLSKI. I do. 

Senator CHAMBLISS. Thank you. You may be seated and we will 

put a name tag in front of you. 

We will start with you, Judge Carney, and I will ask each of you 

if you have any opening statement you wish to make, we will be 

glad to hear your opening statement. Or if you have your family 

here, even though they may have been recognized, we would love 

for you to recognize them again. So, Judge Carney, we will start 

with you. 

STATEMENT OF CORMAC J. CARNEY, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge CARNEY. Thank you, Mr. Chairman. I do not have an 

opening statement, but I would like to take you up on your offer 

to introduce my family again. 

First, if I could introduce my wife, Mary Beth. Do you want to 

stand up? And my daughter, Claire, my son, John, my son, Thomas, my mother-in-law, Mary Fagerson, my father, Padraig Carney, 

and my sister, Sheila Thalimer. 

Senator CHAMBLISS. We are glad to have all of you here. 

Judge CARNEY. Thank you. 

Senator CHAMBLISS. Judge Selna? 

STATEMENT OF JAMES V. SELNA, NOMINEE TO BE DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge SELNA. Thank you, Mr. Chairman. My wife, Harriet, is 

here and I would like to acknowledge her, if she would stand, 

please. And our daughter, Christine, is here with us, as well. She 

is pursuing a degree in psychology while working at Disneyland, as 

well. 

With the chairman’s permission, I would also like to acknowledge 

several folks who couldn’t be here today, my brother, Terry Selna, 

and my sister-in-law, who live in Danville, California, and my 

courtroom staff who sent me here with their best wishes and wishes for good luck. 

The courtroom is a difficult place, and to run smoothly it requires 

a diligent and loyal staff and I certainly have that. I would like to 

acknowledge my court clerk, Sarah Ochoa, who is on pregnancy 

leave with her third child, my relief clerk, Larry Brown, my court 

reporter, Heidi Stewart, my courtroom assistant, Becky 

Chumpitazi, and my bailiff, Derrick Webb, and my research attorney, Cathy Fair. Thank you, Mr. Chairman. 

466

Senator CHAMBLISS. You are a smart man, Judge. None of us 

could do without great staff. 

Mr. Wolski? 

STATEMENT OF VICTOR J. WOLSKI, NOMINEE TO BE JUDGE 

FOR THE UNITED STATES COURT OF FEDERAL CLAIMS 

Mr. WOLSKI. Thank you, Mr. Chairman. Having served as a 

staffer for a member of the Senate for three-and-a-half years, it is 

always a great privilege and great pleasure to be back here at the 

United States Senate and it is a tremendous privilege to be sitting 

here rather than sitting back there, which is where I am used to. 

I would like to again recognize my family who is here, my mother, Jean, who came down from Philadelphia, and my wife, Lisa, 

who lives with me in Virginia. 

[Laughter.] 

Mr. WOLSKI. My brother, Charles, unfortunately wasn’t able to 

make it here. He made it about a quarter of the way. He went from 

Brooklyn to Philadelphia, but then he was not feeling well, so I 

would like to acknowledge that he would have liked to have been 

here. 

Also having worked on the Hill for so many years, I have got a 

number of friends here. I don’t know if I could possibly go through 

and mention them all, a lot of people who worked on the Joint Economic Committee staff with me for Senator Mack, people who 

worked in Senator Mack’s personal office, people who worked for 

members of the Senate Finance Committee, because I did Senator 

Mack’s tax work for the Finance Committee and knew quite a number of those. 

I would also like to acknowledge my friend, Richard Beneke [ph.] 

from college, from the University of Pennsylvania. Dick, do you 

want to stand up? Here is your chance. 

[Laughter.] 

Mr. WOLSKI. Also, several of my colleagues from Cooper and Kirk 

are here, and I also would like to acknowledge my friend and cocounsel, John Cuneo, who is also back there somewhere. I do appreciate the support. 

Senator CHAMBLISS. Thank you. 

Judge Springmann? 

STATEMENT OF THERESA LAZAR SPRINGMANN, NOMINEE TO 

BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF INDIANA 

Judge SPRINGMANN. I have no opening statement, Mr. Chairman. 

However, I would like to introduce the family that is with me 

today. 

Senator CHAMBLISS. Certainly. 

Judge SPRINGMANN. First, I would like to introduce my husband, 

David. We have been married for 23 years this year and I met him 

when I was a sophomore in college, so that goes back to age 19. 

He has been my number one supporter all during that time and in 

the different positions that I have held as an attorney and a wife 

and a mother. 

467

I would also like to introduce my mother, Betty Lazar, who is 

here. Mom? She didn’t want me to say anything, but she is going 

to be celebrating her 80th birthday next month. 

Senator CHAMBLISS. All right. 

[Applause.] 

Judge SPRINGMANN. And she was bound and determined, with a 

sore back and other things, to make it here today to be a part of 

this experience. 

I also want to introduce my two sons, my son, Tony, who is 10 

years old, and my son, Gus, who is 12 years old. 

Senator CHAMBLISS. Guys, it is not that rough in here. You are 

all going to be okay. 

[Laughter.] 

Senator CHAMBLISS. That was an effort for Tony to get up there, 

I could tell. We are glad to have you all. 

Judge SPRINGMANN. This has been the quietest they have been 

for this period of time in years. 

Senator CHAMBLISS. Mr. Simon? 

STATEMENT OF PHILIP P. SIMON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF INDIANA 

Mr. SIMON. Thanks, Mr. Chairman. I also have no opening statement. I have quite a few people in the room I would like to acknowledge, as well. 

First and foremost is my wife, Jane Simon. She is a law clerk 

to a Federal judge in Chicago. My daughter, Claire, is sitting next 

to her, and my other daughter, Sarah, is also here. My son, Matthew, couldn’t be here today. I am also fortunate to have my Mom 

and Dad here, Bob and Bonnie Simon, and my sister, Jeanine 

Swick, and her two daughters, Mary and Margaret, my Aunt Mary 

Beth Hyland, and her daughter, my cousin, Christina, and last but 

not least, the world’s greatest mother-in-law, Sally Mays. Thank 

you. 

Senator CHAMBLISS. Great. 

Judge Williams? 

STATEMENT OF MARY ELLEN COSTER WILLIAMS, NOMINEE 

TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL 

CLAIMS 

Judge WILLIAMS. Thank you, Mr. Chairman. I have no opening 

statement, but I would like to thank the Committee for convening 

this hearing. 

With me today, I am very proud to introduce my family, my husband of 20-plus years, Mark Calhoun Williams, who has encouraged me in all that I have been able to do; my son, Justin Williams, who is 15 years old and luckily happens to be on spring 

break from the Woodbury Forest School, so he is able to be with 

us; my daughter, Jackie Ann Williams, who is a sixth grader at 

Pyle Middle School in Montgomery County, and she is here with 

us despite the fact that it is an unexcused absence. 

[Laughter.] 

Judge WILLIAMS. Also, I am very proud to introduce my mother, 

Rosemary Coster, who has traveled here from New York to be with 

us today, as well as my brother, Joseph Gerard Coster, who is here 

468

from New York. Missing from our huge family are several other 

brothers and a sister. My brother John and James and my sister 

Pat are all up in New York working hard. My brother, Gerard, 

lives in Jacksonville, Florida. And my 13 nieces and nephews are 

busy in school. 

But I do have several friends who are here, as well, my dear 

friends Scott and Peggy Ann Technay, and Kent Morrison and did 

Stefan Lapaskiewicz make it? Well, he may join us later. Thank 

you, Mr. Chairman. 

Senator CHAMBLISS. Great. We are glad to have all of your family 

and friends here supporting you today. 

Senator CHAMBLISS. I want to start with you, Judge Carney, and 

we will just go down the row, if each of you will take these questions. We may give you a break, Judge, and let somebody else go 

first on this end. 

First of all, each of you are nominated to be a trial judge, even 

though it may be different courts and different levels of court in 

the Federal Court system. But each of you are nominated as trial 

judges. Under what circumstances do you believe it appropriate for 

a Federal Court to declare a statute enacted by Congress unconstitutional? Judge Carney? 

Judge CARNEY. Thank you, Mr. Chairman. Obviously, with any 

statute drafted and enacted by Congress, there is a presumption of 

constitutionality. It would seem to me that I would be very reluctant to declare anything unconstitutional. Obviously, the court who 

should be making law or evaluating that is a court that is superior 

to me, the Ninth Circuit or the Supreme Court. 

Senator CHAMBLISS. Judge Selna? 

Judge SELNA. Clearly, the legislation which Congress passes begins with a presumption that it is constitutional. I think it is the 

extraordinary circumstance where a District Court would hold that 

a law passed by Congress is unconstitutional. I think it would require a clear deviation of the precedents—from the precedents of 

the United States Supreme Court and I think that is a rare circumstance. 

Senator CHAMBLISS. Mr. Wolski? 

Mr. WOLSKI. Well, for the Court of Federal Claims, actually, the 

jurisdiction, I don’t believe, would allow a judge to declare an act 

of Congress unconstitutional. The Claims Court would be able to 

give money damages to people. I guess the constitutionality of a 

provision could come up in some of the tax areas. But I agree that 

the acts of Congress that we review do have a presumption of constitutionality. There is a very heavy burden that somebody must—

who is challenging that constitutionality must reach in order to 

carry the day and I would, of course, follow very carefully the binding precedents of both the United States Supreme Court and the 

Federal Circuit in making these determinations. 

Senator CHAMBLISS. Judge Springmann? 

Judge SPRINGMANN. Mr. Chairman, I would concur in the comments of my colleagues, that when posed with that issue, you 

would first look to the statute, and particularly an act of Congress, 

and begin with the presumption that it is constitutional. It is very 

rare, indeed, that a judge, a trial judge would be faced with a cirVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00482 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.001 SJUD4 PsN: CMORC
469

cumstance of determining that a statute is unconstitutional and 

rule on it in a vacuum. 

A trial court must look to the precedents that have been set out 

by the United States Supreme Court as well as the circuit in which 

that trial judge sits, and in our situation, that would be the Seventh Circuit situated in Chicago. We would look to those courts for 

guidance in how to interpret similar statutes and take that guidance and apply it to that situation. It would, indeed, be a very rare 

occurrence to ever declare such an act of Congress unconstitutional. 

Senator CHAMBLISS. Mr. Simon? 

Mr. SIMON. Mr. Chairman, I totally agree with that. I think that 

any District Court judge has to start from the premise that Congress is acting in a constitutional way when it is passing or enacting statutes. So I would certainly start from that bent. 

I really believe that it would be my obligation to look to my circuit and the Supreme Court and follow those precedents, but I really feel as if that acts of Congress deserve considerable deference in 

the laws that they pass and it would be a very, very rare circumstance indeed where I could envision finding something unconstitutional. 

Senator CHAMBLISS. Judge Williams? 

Judge WILLIAMS. Thank you, Mr. Chairman. I would echo the 

sentiments of all my colleagues up here today, especially those of 

Mr. Wolski, noting that the United States Court of Claims is a 

court of very limited jurisdiction. It would be highly unusual for us 

to be asked to judge a statute unconstitutional, but were we to be, 

I would certainly apply that strong presumption in favor of the constitutionality. 

Senator CHAMBLISS. In general, Supreme Court precedents are 

binding on all lower Federal courts and Circuit Court precedents 

are binding on the District courts within the particular circuit. Are 

each of you committed to following the precedents of higher courts 

faithfully and giving them full force and effect, even if you personally disagree with such precedents? 

Judge CARNEY. Yes, Mr. Chairman. 

Senator CHAMBLISS. If I can get a positive response from each of 

you. 

Judge SELNA. I can give you that assurance without qualification, Mr. Chairman. 

Mr. WOLSKI. Absolutely, Mr. Chairman. 

Judge SPRINGMANN. Absolutely, Mr. Chairman. 

Mr. SIMON. I concur. 

Judge WILLIAMS. Absolutely. 

Senator CHAMBLISS. Ms. Williams, we will start with your end 

this time. There may be times when you will be faced with cases 

of first impression. What principles will guide you, or what methods will you employ in deciding cases of first impression? 

Judge WILLIAMS. Well, Mr. Chairman, in fact, I have had that 

happen to me already in my life as a judge for the last 14 years 

on the Board of Contract Appeals. Back when this board was deciding bid protests, we had a very unusual statute and no one else 

had ever interpreted it before. Largely, the questions entailed questions of jurisdiction that the board had, and the way I approached 

it then and the way I think I would continue to approach it was 

470

to look at the clear language of the statute first and to attempt to 

understand the law that way and apply it and decide the case as 

best I could that way. 

Senator CHAMBLISS. Mr. Simon? 

Mr. SIMON. I agree. I think what a District Court judge has to 

do is to read a statute and determine, based on the plain meaning 

of the statute, using ordinary usage, or applying ordinary usage to 

the words that are in the statute, and apply it to the facts and circumstances of the case before you. I think it is fair for judges in 

cases of first impression to look to analogous situations to try to 

determine how or to see how the Supreme Court or the Seventh 

Circuit has addressed perhaps a similar situation and to try to follow that lead. But the guiding principle should be, what does the 

statute say and what does it mean and to apply it to your facts and 

circumstances. 

Senator CHAMBLISS. Judge Springmann? 

Judge SPRINGMANN. With regard to a case of first impression, 

and during my tenure as a Magistrate Judge, I have had that situation happen in one or two cases, the standard principles apply in 

viewing such a case, and that is that you apply standard legal principles. You look first to see whether or not it is, in fact, a case of 

first impression by looking to, again, United States Supreme Court 

decisions, decisions within the circuit in which you are situated, as 

well as any other case decisions within that circuit or within our 

district. 

Likewise, if there are any analogous cases to which you can—

which you can review and analogize the facts and legal principles 

to apply to a case of first impression, that is what would be appropriate for a trial court judge to do and that is what I would promise 

to do. 

Senator CHAMBLISS. Mr. Wolski? 

Mr. WOLSKI. Thank you, Mr. Chairman. Certainly, I concur with 

the comments of my colleagues on this panel. When you are presented by a case of first impression as a judge, if the question deals 

with a statutory interpretation, you start first with the text of the 

statute, look at the language that was employed by Congress, use 

the ordinary meaning of that language. If it is ambiguous at all, 

then repair to aids such as legislative history, conference reports. 

If instead this is a matter that involves a contract, that would be 

the document that you would first be construing, that you would 

do the same, starting with the text. 

And then, of course, you would look carefully to see if there are 

analogous situations, try to determine what the legal principle that 

was followed by the Supreme Court and the Federal Circuit Court 

in the most analogous situations was and try to adapt that to the 

facts that are presented to you in the case. 

I believe that also you should read very carefully the briefs that 

are filed by both parties and look very carefully at the cases that 

they cited. That might be a very good place to start to try to determine analogous cases, and also, it is the respectful thing to do in 

treating very courteously the submissions of the parties. 

Senator CHAMBLISS. Judge Selna? 

Judge SELNA. Mr. Chairman, I agree with the hierarchy of analysis suggested by my colleagues. I think that it is the rare day 

471

when you have a truly question of first impression and that the 

farther one digs, the more likely one is to find an answer, going 

back in the case of legislation to the floor debates, to the reports, 

to try and divine, to the extent it is unclear from the face of the 

statute, what Congress had in mind. I think diligence will limit the 

number of first impression cases as true questions of first impression. 

Senator CHAMBLISS. Judge Carney? 

Judge CARNEY. Mr. Chairman, to avoid sounding like a parrot, 

can I adopt all the answers of my colleagues here? 

[Laughter.] 

Senator CHAMBLISS. Whatever. 

[Laughter.] 

Senator CHAMBLISS. It certainly speeds up the process, Judge. 

Judge CARNEY. I think I will, because what they said makes 

sense to me and I agree with it. 

Senator CHAMBLISS. Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. I would like to welcome all the witnesses and 

all your lovely families. One of the oddest parts about this job is 

that you come to a setting like this with the nice families and you 

still have a job to do, so I have to rain just a bit on the parade 

here and make a few comments about this hearing and the situation we are in in the Committee on nominations. 

I am concerned that we are proceeding with another nominations 

hearing when we have not resolved the serious breach of the Committee rules that took place a few weeks ago when we voted on 

Justice Deborah Cook and John Roberts. The entire episode came 

about because this Committee refused to schedule another hearing 

for those two nominees who many on the Committee felt were not 

adequately examined at the unprecedented hearing held on January 29 with three Circuit Court nominees. And yet, despite our concerns with that, there is a hearing scheduled just a day after this 

hearing on eight lower court nominees with Justice Priscilla Owen, 

who had an extensive hearing last year. 

I think we need to restructure our priorities on this committee, 

Mr. Chairman. We are shortchanging the Senate’s constitutional 

responsibility to advise and consent on judicial nominees with this 

extraordinary case. 

Two of the nominees on the agenda today are for the bipartisan 

U.S. Sentencing Commission. It is my understanding that there 

has been no consultation at all with the Democratic Congressional 

leadership on the choice for a Democratic seat for this Commission. 

Now, this continues a disturbing pattern that can only lead to more 

delay and controversy on the floor for these two nominees. 

And we have two nominees to an Article I court, the Court of 

Federal Claims. This court has also traditionally been treated in a 

bipartisan manner, but again, the administration has chosen to 

break with tradition and is moving forward to fill all the vacancies 

without consulting with the Democratic leadership or with this 

committee. That, too, could cause delays on the floor, as well, if not 

in this committee. 

472

I note also that one of the nominees on the agenda today is the 

most recent of the nominations to that court. The other nominees 

might wonder why he has been moved to the front of the line, and 

frankly, Mr. Chairman, so do I. 

I would like to ask Mr. Wolski a few questions. Congratulations 

on your nomination. 

Mr. WOLSKI. Thank you, Senator. 

Senator FEINGOLD. I am told that in 1999, you told the National 

Journal that, quote, ‘‘Every single job I have taken since college 

has been ideologically oriented, trying to further my principles. I 

am essentially a Libertarian. I believe in limited government, individual liberty, and property rights,’’ end of quote. 

I would be shocked if you told us you view this next job that you 

have been nominated to as ideologically oriented based on the answers that you just gave. In fact, I am sure you are going to assure 

us, and I think you really have already, that you would put your 

personal views aside and simply apply the law, and that is what, 

of course, all nominees say when they come before this committee, 

so let me ask you a few specific questions in light of your earlier 

writing. 

Do you understand why it would concern at least some members 

of this Committee that a self-professed idealogue has been appointed to be a judge? 

Mr. WOLSKI. Well, Senator, I do appreciate the question and I 

appreciate the opportunity to, if I may, qualify the remarks from 

the National Journal article. 

Senator FEINGOLD. Go right ahead. 

Mr. WOLSKI. As I remember the question, and those particular 

remarks actually came from a profile of the Joint Economic Committee in the, I guess it’s called the ‘‘Hill people’’ issue that comes 

out every 2 years, or I assume it comes out every 2 years, and I 

can say I am not certain what exactly language I used in discussing with the reporter, but I do recall the question that I was 

asked, which was why I was willing to relocate from California to 

come to Washington, D.C., to work for a Senator from Florida, 

which is a reasonable thing to inquire. 

And the sentiment I tried to express, and perhaps I didn’t use 

the best words, was that unlike my colleagues at the University of 

Pennsylvania, where I was an undergraduate in the Wharton 

School, or a lot of my colleagues at the University of Virginia 

School of Law, particularly people who had District Court clerkships, to me, trying to get the highest-paid job possible was never 

a concern of mine. Money was never the be all and end all for me. 

I was very—I had a tremendous opportunity to be able to go to 

college, and the first in my family. My mother and my father didn’t 

have that opportunity, and I have always felt very strongly that 

somebody should give something back to the community and that 

somebody should, when they are given such an opportunity and 

such a privilege of higher education, to do something good for the 

community. And that is why the jobs I have taken were jobs in the 

public sector, which I believe very strongly in, jobs in the nonprofit 

world, jobs that related to matters like tax policy, which interested 

me. 

473

And the point that I was trying to make was just that this—my 

decision to come here and work for Senator Connie Mack, a tremendous opportunity, very respected member of the Senate, to do 

the tax work for his Finance Committee responsibilities, was a tremendous opportunity that was consistent with my commitment to 

the public sector and was consistent with my commitment to nonprofit interests, and that is really the only point I wanted to make 

in that— 

Senator FEINGOLD. Well, let me first say that I respect those 

comments in terms of your observations and your commitment to 

public service. I remember having a similar reaction at law school 

to what choices others were making. But if I could get a direct answer to the question, given that explanation— 

Mr. WOLSKI. I am sorry, Senator. 

Senator FEINGOLD. I think that is fair, the explanation you gave. 

Let me just ask you, do you understand why it would concern at 

least some members of this Committee that a self-professed 

idealogue has been appointed to be a judge? 

Mr. WOLSKI. Yes, I certainly can understand that and I guess the 

reason I went into the extended explanation was just that I don’t 

consider myself an idealogue. I’m not somebody who rigidly sticks 

to one position. I’m not somebody who’s inflexible. I think the people that know me and have worked with me on Capitol Hill could 

attest to that. I have worked closely with people in staff of Senate 

offices on both sides of the aisle on a number of bipartisan initiatives, things like the low-income housing tax credit or the D.C. Economic Recovery Act— 

Senator FEINGOLD. Let me ask you another question. Do you understand the concern that some have about someone who proclaimed with some pride that he is a Libertarian who believes in 

limited government and property rights being appointed to be a 

judge on this particular court? Do you understand why it would 

lead to some concern? 

Mr. WOLSKI. Oh, certainly, Senator. I could understand why the 

first part of that might concern somebody. Again, by Libertarian, 

all that I meant was in the context of the economic policies that 

we were pursuing at the Joint Economic Committee to try to maintain prosperity, I had a free market orientation. I didn’t—certainly 

did not mean that I was a Libertarian in the sense that I believe 

that government is bad and we should get rid of government. In 

fact, I wouldn’t have spent so many years working in government 

if I believed that. 

But on the second part of that, I actually must say that it 

shouldn’t concern—I think it shouldn’t concern anybody that a 

nominee to the Court of Federal Claims supports the notion of 

property rights and supports the notion that there are limits to 

government, because if you think about it, there couldn’t be a 

Court of Federal Claims, there couldn’t be a place for citizens to 

go to get money damages against the government unless there was 

a recognition that there are property rights, unless there was a recognition that there were some limits to government— 

Senator FEINGOLD. Well, I think there is some truth to that, so 

let me— 

474

Mr. WOLSKI. —whether that is through the Constitution or by 

the government entering into a contract. 

Senator FEINGOLD. I think there is some truth to that. Let me 

ask it another way, then, in fairness to you. Do you agree that if 

you testified here today that you view this appointment to the 

bench as yet another opportunity to further your principles of limited government and property rights, that in that context, Senators 

would be justified in voting against your confirmation on that 

basis? 

Mr. WOLSKI. Thank you for that question, Senator. I certainly 

can assure you that I don’t view the Court of Federal Claims as 

a place for somebody to be furthering any political or policy views 

that they have. It is very important in our society under the rule 

of law that judges not ever consider their personal views, not ever 

consider their personal beliefs or the positions that they have argued earlier as a counsel when they become a judge. It is a very—

that is exactly the wrong thing to do and— 

Senator FEINGOLD. Fair enough. Let me ask you about a specific 

case. In a brief for the Pacific Legal Foundation, Cargill, Inc. v. 

United States, you argued that it was far beyond Congress’s power 

under the Commerce Clause to protect ponds that served as a habitat for migratory birds. In the brief, you described wetlands as, 

quote, ‘‘puddles,’’ unquote, and you raised concerns regarding the 

longstanding national interest in protecting migratory birds. 

In fact, this brief states, quote, ‘‘Jurisdictions over puddles was 

justified by the Ninth Circuit on the basis that birds might frolic 

in these puddles,’’ unquote. You also stated, quote, ‘‘Will one fewer 

puddle for the birds to bathe in have some impact on the market 

for these birds,’’ unquote. You also praised the Supreme Court for 

its five-to-four decision in United States v. Lopez for beginning to 

reign in the abuses of the Commerce power justification for acts of 

Congress. 

As you know, the Supreme Court decision in Penn Central requires courts to assess the importance of the governmental interest 

involved in determining if regulations affect a taking. If you were 

asked to decide a takings case that involved the protection of wetlands or the protection of migratory birds, do you believe that you 

could rule impartially and not enjoin legislation giving the government the ability to protect the environment? Do you continue to believe, as you asserted in your brief, that Federal environmental 

laws passed under authority of the Commerce Clause, such as the 

Clean Water Act, are unconstitutional? 

Mr. WOLSKI. Thank you for that question, Senator. At the outset, 

I would like to point out that the brief you are mentioning was an 

advocacy brief on behalf of a client. I was taking the position on 

their behalf and I obviously was living up to my duties to make a 

zealous representation of their interests. It is certainly no reflection 

of what I would do as a judge and it is no reflection of my personal 

views. 

I would point out also that in that particular case, when the 

United States Supreme Court ultimately did consider the issue of 

the Clean Water Act and what Congress intended the Clean Water 

Act to do, the Supreme Court said that whether migratory birds 

could be protected did raise significant constitutional issues. So it 

475

certainly wasn’t a frivolous argument. It certainly wasn’t an unreasonable argument to make and raise on behalf of a party. 

I can assure you, though, if I am fortunate enough to be confirmed to be a judge of the Court of Federal Claims that I will consider very seriously the important purposes of government behind 

every single regulation that anyone has based a takings claim 

upon. As you may know, the Court of Federal Claims actually 

couldn’t invalidate any laws. You take as given that the law is legitimate. You take as given that it has got a good purpose. And instead, what you are doing is looking to see the impact on the property owner. 

As you mentioned, you are correct. Under Penn Central, I would 

certainly look at the economic impact on the property owner. I 

would certainly look at whether the government action interfered 

with reasonable investment-based expectations. And also, I would 

consider the nature and character of the government action. In one 

of the more recent Supreme Court cases, I believe it was the Taos 

Sierra case, the decision by Justice Stevens explains quite clearly 

that under the character and nature prong of the Penn Central

test, you have got to consider the important interests of the government. 

Senator FEINGOLD. But you do not go into this job believing that 

the Clean Water Act passed under the authority of the Commerce 

Clause is unconstitutional, do you? 

Mr. WOLSKI. No, I do not. That is—that is not the case. The 

Clean Water Act has been upheld and I certainly believe that that 

is a constitutional act. 

Senator FEINGOLD. Thank you, Mr. Chairman, and I thank the 

witness. I know my time is up. I would just like to ask unanimous 

consent that two letters expressing concern about the nomination 

of Mr. Wolski be included in the record. 

Senator CHAMBLISS. Without objection. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Senator CHAMBLISS. My friend from New York has joined us and 

we are glad to have you here, Chuck. Senator Schumer? 

Senator SCHUMER. Glad to be here. I have been watching it on 

TV from my office and I have enjoyed your comments. 

I also want to welcome all of the nominees here today, and particularly—as I understand it, Judge Williams is no longer from 

New York but hails from New York, although they didn’t tell me 

where. Whereabouts, Judge? 

Judge WILLIAMS. Flushing, New York. 

Senator SCHUMER. Flushing? That is known as part of Queens to 

most of you— 

[Laughter.] 

Senator SCHUMER. —and it is where the New York Mets play 

baseball. Isn’t that nice. 

Judge WILLIAMS. I must tell you that I worked at Shea as a 

young person. 

Senator SCHUMER. Did you? 

Judge WILLIAMS. Yes, indeed. 

Senator SCHUMER. I have been a Yankee fan— 

Judge WILLIAMS. Oh well. 

[Laughter.] 

476

Senator SCHUMER. —but that won’t interfere with my— 

Judge WILLIAMS. Please, you can strike that comment. 

Senator SCHUMER. —impartiality as we look at your nomination. 

[Laughter.] 

Senator SCHUMER. I have questions of Victor Wolski. The other 

folks, you can relax. 

[Laughter.] 

Senator SCHUMER. Maybe you can relax, too, Mr. Wolski. 

I think my position on judges is well known. I have three standards in the selection of judges, excellence, in other words, legal excellence. You have to be really good. These are important jobs. 

Moderation, I don’t like judges too far right or too far left because 

I think judges who are at the extreme feel so passionately about 

what they do that they tend to make law rather than interpret law, 

which is what the Founding Fathers wanted us to do. And third, 

diversity. I don’t think the bench should all be white males. 

The excellence qualification, I don’t have any problems with any 

of the nominees in that regard. It is the moderation that I am worried about with you, Mr. Wolski, because you are known not as 

somebody who is moderate, particularly on taking issues, but someone who has a decided point of view. 

And to me, for a nominee to just simply say, I will follow the law, 

is not sufficient, because if everyone followed the law in the same 

way, we could have a computer do our judging. If everyone followed 

the law in the same way, it wouldn’t matter which President nominated you or what your political views were. You would rule cases 

the same. But study after study has shown nominees from Democratic Presidents rule different than nominees from Republican 

Presidents, and while there are exceptions to every rule, people’s 

personal views always enter into the way they follow the law. 

So I have some concerns about your nomination, Mr. Wolski, 

given that you have been quite far over, at least in my judgment, 

on many of the issues that the Court of Claims would have to 

judge, and here is a quote from you. You have said, ‘‘Every single 

job I have taken since college has been ideologically oriented, trying to further my principles. I am essentially a Libertarian. I believe in limited government, individual liberty, and property 

rights.’’ 

Now, I think I believe in—I know we all believe in those things, 

too, but read in the context of what you have said and put up 

against the kind of cases you have reached out to take in order to 

advance this ideological agenda, I am pretty confident that your beliefs are not sort of in the shades of gray which most of the world 

really exists in. 

So first, I would like to ask you, you have said, well, I was representing clients and that is why I took this and this position when 

my friend from Wisconsin questioned, but on the other hand, you 

have said, ‘‘every job I have taken has been ideologically oriented.’’ 

Just tell me how you can reconcile those two views. 

Mr. WOLSKI. Thank you for the question. 

Senator SCHUMER. First, you did say that, right? 

Mr. WOLSKI. I can’t be sure that those are my exact words, but 

I do remember the question and I do remember the sentiments I 

was trying to express, and as I explained earlier to Senator FeinVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00490 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.001 SJUD4 PsN: CMORC
477

gold, the—maybe I didn’t use the best words. First, let me state 

flat out, I don’t consider myself an ideologue. I am not somebody 

who takes a rigid position on things and can’t be flexible. People 

who have worked with me on Capitol Hill, I think know that. I 

have worked with people on both sides of the aisle, staff members 

for the Democrat as well as Republican members of the Finance 

Committee, on Senator Mack’s bipartisan agenda and things like 

low-income housing and tax credit, the D.C. Economic Recovery 

Act, and a number of bipartisan bills. 

That particular comment, what I was trying to get—trying to 

convey was just that I have never chased the highest-paying job. 

I have never been somebody who wanted to go work on Wall Street, 

work for the big firms. I have been interested in public sector work. 

I have been interested in nonprofit work. I think it is very important that people do give something back to the community and that 

is how I did that. I was merely explaining that coming to work for 

Senator Mack is consistent with my background of having done 

public sector work and having done nonprofit work— 

Senator SCHUMER. And that is— 

Mr. WOLSKI. —and that I do believe that those things are important. The use of that word, it was probably a poor choice of words. 

Certainly, I recognize that now. But that is not—that is not what 

I meant to convey. 

Senator SCHUMER. Are you saying you didn’t say that? 

Mr. WOLSKI. I am not certain. I could have. It is possible I could 

have misspoken. That is not what I meant, though. By ‘‘ideological,’’ I did not mean I am somebody who is an ideologue. I mean 

I am somebody who has taken public sector jobs and nonprofit jobs, 

jobs that involve public issues, idea-oriented public issues jobs. 

And anyone who is familiar, I think, with my record over the last 

few years and who knows the sort of cases I have taken, I think 

would agree that I am not a rigid, closed-minded person. I am an 

attorney representing a class of Medicare beneficiaries who are 

suing the tobacco industry to try to recover reimbursement to the 

Medicare system. 

Senator SCHUMER. Let me ask you, have you taken any cases in 

the environmental law area where you have been on the other side, 

where you have been on the so-called non-taking side or the environmental side? 

Mr. WOLSKI. Well, yes, Senator. As a matter of fact, I have been 

involved in two over the last few years. In fact, the only land use 

matter that I have been involved with in the last 6 years has been 

on the side of local governments who were trying to prevent commercial development from taking place near them. The county had 

approved the development and they thought that there were going 

to be traffic and safety problems and they wanted to stop it. We 

looked at that for them. That was something I worked on— 

Senator SCHUMER. What case was that? Was that a case that 

was litigated? 

Mr. WOLSKI. We ended up not filing any Federal action on it, but 

we looked at it and did the legal work for the—actually, for some 

towns in New York. 

Senator SCHUMER. Which towns were those? Not Flushing, I presume. 

478

[Laughter.] 

Senator SCHUMER. No, they don’t have a legal— 

Mr. WOLSKI. No, towns in Westchester County. 

Senator SCHUMER. Okay. If you can get us some information on 

that, I would like to know some details about that so I can figure 

that out. 

Mr. WOLSKI. Certainly. Certainly. But in any event, that was a 

case in which, obviously, the side we were on was seeking to prevent commercial development. 

Senator SCHUMER. Right. 

Mr. WOLSKI. Another instance is my representation for the State 

of Nevada in its efforts to resist the placement of a nuclear repository in Yucca Mountain, and in this particular matter, I think that 

probably every single environmental group in the country, at least 

that I am aware of, is on our side, is on the side I am taking. And 

those are two examples. 

Senator SCHUMER. Okay, thanks. I still, I think you are going to 

have a hard time saying, ‘‘I meant I enjoyed public service when 

I said every single job I have taken since college has been ideologically oriented, trying to further my principles. I am essentially a 

Libertarian. I believe in limited government, individual liberty, and 

property rights.’’ It strikes me as if you wanted to say, ‘‘I want to 

serve the public and I enjoy being in public service,’’ it wouldn’t 

have quite come out that way, but let me ask you another one. 

Mr. WOLSKI. Sure. 

Senator SCHUMER. This is a letter that you wrote in 1992. It is 

a letter to the editor to the San Francisco Examiner, and this is 

signed by Victor Wolski, Victor J. Wolski. It says, ‘‘Admitted, it 

is’’—you are talking about the electoral college. ‘‘Don’t trash States’ 

roles in the electoral college system,’’ and then you go on to talk 

about the electoral college, and the final paragraph reads as follows. 

‘‘Admittedly, it is ironic in all of these years when people are 

thoroughly disgusted with a rogue Congress’’—this was 1992—

‘‘that raises taxes, raises spending, raises its pay’’—by the way, are 

you against pay raises for Congress members? 

Mr. WOLSKI. Not any more, Senator. 

[Laughter.] 

Senator SCHUMER. Not any more. They are tied to judges’ salaries, you might know. 

[Laughter.] 

Senator SCHUMER. ‘‘—and is so used to the unconstrained use of 

other people’s money that its members don’t bother to balance their 

own checkbooks. We might see the Presidential election decided in 

the House. However, there are two silver linings. Many of the current bums will be gone, and the importance of the individual States 

in our system of government will be underscored.’’ Did you write 

that? 

Mr. WOLSKI. I certainly—I do remember writing a letter to the 

editor. I think that was in response to, was it Chris Matthews’ column, I believe? 

Senator SCHUMER. Yes, it was, because you mentioned Chris 

Matthews being upset to have discovered any vestige of State sovVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00492 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.001 SJUD4 PsN: CMORC
479

ereignty. So it was. What do you think of those words 11 years 

later? 

Mr. WOLSKI. I certainly think the use of hyperbole was a bit 

much. I meant—certainly didn’t mean to—didn’t mean any disrespect to you as a member of the House at that time, Senator. 

[Laughter.] 

Senator SCHUMER. You mean I wasn’t one of the current bums? 

[Laughter.] 

Mr. WOLSKI. No, no. Even though I am a Mets fan and you are 

a Yankees fan, no. 

Senator SCHUMER. Well, the Dodgers were known as the bums, 

frankly. 

Mr. WOLSKI. That was my father’s team. 

[Laughter.] 

Senator SCHUMER. Well, go ahead. Why don’t you elaborate a little and tell me what you think of this. Again, it strikes me as 

somebody who has a passion on one side of the fence. That is not 

a bad thing. I just am not sure it is the right place for a judge. 

So do you want to say anything else about that? 

Mr. WOLSKI. Senator, just that I—among the principles that I do 

believe in is the notion of judicial restraint, and I believe very 

strongly that a judge should not try to make law, that a judge 

should not try to make policy. I particularly appreciate that having 

served here in Congress. If I had served in Congress before I had 

written that letter, I am sure that the tone would have been different. In fact, I probably wouldn’t have written it. I have come to 

appreciate even more than I ever did the important role that Congress plays in our society and the important role of the legislature. 

I very much enjoyed my time working here in the Senate and I 

would certainly never try to usurp the law-making or the policymaking role of the Congress or the policy-making role of the executive branch, for that matter. 

Senator SCHUMER. Okay. That does seem at odds with the statement that ‘‘every job I have taken since college has been ideologically oriented.’’ It does again. You know, I will follow the law. 

Given that you are taking this job now, people change. I am the 

first to admit that. I am worried about that. 

Let me ask you this one. In light of the positions you took in 

briefs for the case in Cargill v. United States, would you please describe your understanding of Congressional powers under the Commerce Clause to regulate under the Clean Water Act and the understanding of the term ‘‘navigable waters.’’ Your brief is—it is contentious, I guess. People might describe it as sarcastic. You pose 

such questions as, is the color of the houses the next subject, since 

certain colors might deter birds from an otherwise cozy resting 

spot. 

And another example of the statement is Congress nowhere 

found that the viability of migratory fowl or endangered species 

populations is dependent upon the preservation of such isolated 

wetlands. However, as I understand it, in the Migratory Bird Treaty Act and the North American Wetlands Conservation Act, Congress made just those two findings. 

So would you comment on your views on the Commerce Clause 

and the term ‘‘navigable waters.’’ 

480

Mr. WOLSKI. Certainly, Senator. 

Senator SCHUMER. Navigable, however. I don’t know how to pronounce that word, to be honest with you. 

Mr. WOLSKI. I guess it is navigable. 

Senator SCHUMER. Navigable. 

Mr. WOLSKI. I am from the same general section of the country, 

so I— 

Senator SCHUMER. Flushing. 

Mr. WOLSKI. Well, actually, I am from New Jersey originally, 

Sayreville, near Perth Amboy. 

Senator SCHUMER. Right. 

Mr. WOLSKI. Now, I must confess at the outset that this is not—

that Commerce Clause area is not really something that I have litigated in much over the years and looked at much. It is not actually 

something that could come before the Claims Court, either, since 

we take—we accept as valid the laws that are before us and don’t 

look to see whether or not there is a—it was a permissible exercise 

of Congressional power. 

Having not looked at the Supreme Court cases in this area very 

recently, as I understand it, the test that the Supreme Court employs is whether something is—for something to be regulated under 

the Commerce Clause power of Congress, it either has to be—has 

to involve an article that has been in or traveled through commerce 

or something that might substantially affect commerce, and in light 

of that, obviously, the United States Supreme Court in the Wickerd

v. Filburn case had held that one way to determine whether there 

is some substantial effect on commerce is to consider the aggregation of all the impacts or all of the—I guess impacts is probably the 

best word—on commerce from any particular—in that case, it was 

a farmer growing wheat. 

In the Cargill case you have mentioned, the Clean Water Act and 

the scope of the Clean Water Act was what was at issue. I understand that the—I believe the United States Supreme Court in the 

Solid Waste Agency of Northern Cook County case had said that 

there were significant constitutional issues involved in trying to determine whether Congress’s power would extend under the Commerce Clause to protect migratory birds in a particular circumstance. Certainly, under the treaty power, Congress can protect 

migratory birds, as they have—I think Missouri v. Holland was the 

case that recognized that. 

Senator SCHUMER. So how does that square with, in your brief, 

that Congress nowhere has found that the viability of migratory 

fowl or endangered species populations is dependent on the preservation of such isolated wetlands? 

Mr. WOLSKI. Well, Senator, I don’t believe that in the Clean 

Water Act there were any such findings. In fact, I might be mistaken on this, but I believe that, as I remember it, the Clean Water 

Act was dealing with pollution and was concerned with pollution 

to the navigable waters to the United States and there was nothing 

in the legislative history and certainly nothing in the language of 

the Clean Water Act that would make reference to the migratory 

birds, and this was a case concerning jurisdiction that was asserted 

under the Clean Water Act. The jurisdiction wasn’t asserted under 

the Migratory Bird Treaty Act or some other act of Congress. 

481

Senator SCHUMER. But you said Congress nowhere found. You 

meant nowhere in the Clean Water Act, I presume? 

Mr. WOLSKI. That must be what I meant, Senator, nowhere that 

was relevant to that particular case, because again, the jurisdiction 

that was invoked was the jurisdiction under the Clean Water Act. 

It wasn’t under some other act. 

And on navigable waters of the United States, I understand 

those to mean, getting back—I think that was part of your original 

question—I understand those to be waters, not only waters that 

are navigable, but also waters that are adjacent to or have some 

connection to navigable waters. So it is a very broad jurisdiction. 

Senator SCHUMER. Okay. Thank you, Mr. Chairman. 

Senator CHAMBLISS. You know, having practiced law for 26 years 

and having been involved in any number of trials and appeals of 

cases, I have been a little bit frustrated being on this Committee 

and having folks look at briefs that nominees have written over the 

years. In one case, I remember we went back as long as 12 years 

and a phrase was taken out of a brief that one of our nominees 

wrote, and I am sure this happened during the years when we 

weren’t in control or we didn’t have a Republican President, so I 

am not picking on anybody, but it is a frustration to me, having 

practiced law and having taken positions as an advocate for my client that, number one, went against any number of precedents that 

were in case law, and I don’t think it is right to hold somebody accountable to that. 

It is all right to hold them accountable or let them explain what 

they meant by it, and my question to each of you is, you have all 

practiced law or you are practicing law. You have been in that position before, but the role of an advocate is distinctly different from 

the role of a judge. I want to make sure that we don’t have nominees who necessarily have their minds made up on an issue that 

they advocated as a lawyer that they are going to take as a judge, 

and Judge Carney, I would like to start with you. 

If you will, each of you just comment on that aspect of your being 

nominated and confirmed to the bench, with respect to how you are 

going to deal with a case on an issue that maybe you have advocated the other side of. Where are you going to be with respect to 

how you decide that case from the bench? 

Judge CARNEY. Well, Mr. Chairman, I don’t see my role as a legislator or as a prosecutor or as an attorney. I am a judge to make 

sure that there is fairness in the process and to apply the law as 

I understand it from a statute or from what the Ninth Circuit or 

the United States Supreme Court has said. I do not let my personal 

views get into the picture, and I agree with your earlier comments 

as a lawyer, for just to make a point or make it entertaining, you 

sometimes say things that you don’t really mean, and I would hate 

to be held to some of the things that I have said in the past. 

Senator CHAMBLISS. Judge Selna? 

Judge SELNA. Mr. Chairman, I think there is clearly a different 

mindset from an advocate to moving to a judge. I experienced that 

transition over the last 4 years and I think the most significant 

part of that transition is to listen to lawyers and let lawyers try 

their cases. Listen to both sides. Whether you have dealt with that 

issue in the past, generally speaking, having been an advocate, you 

482

know that there are two sides to an issue. You know what arguments the other side will put forth. I think the role of the judge 

is to listen and to make his or her best judgment as to what the 

correct view of the law is. 

Senator CHAMBLISS. Mr. Wolski? 

Mr. WOLSKI. Thank you for the question, Mr. Chairman. Certainly, I believe that a judge has an obligation and a duty to keep 

an open mind, to not let any positions they have taken in the past, 

any arguments, any position they have taken in argument on behalf of a client in the past, not to allow that to affect in any way 

their understanding and their analysis in a particular case, and 

that I certainly agree with the sentiments of my colleagues that 

that does not play a role in the judicial function whatsoever. A 

judge’s duty is to follow the law. A judge’s duty is to follow the 

binding precedents of higher courts and to put aside any past work 

they have done, put aside any past advocacy they have done in fulfilling that obligation. 

Senator CHAMBLISS. Judge Springmann? 

Judge SPRINGMANN. Mr. Chairman, you are correct that as an 

advocate representing your client, that that client expects you to be 

passionate in representing their side in a case. But when you become a judge, you have to set aside passions and, in fact, become 

dispassionate when you are interpreting the law. You have to remain impartial, open minded, and fair for all the people that come 

before you in a court so that they can have confidence in the integrity of the system in which you are as a trial judge representing. 

That is not to say, though, that a judge should not lose all compassion for human frailty when that becomes an issue in a case. 

Mr. SIMON. Mr. Chairman, I have spent the last 13 years of my 

life as a Federal prosecutor and the last 4 years as the Chief of the 

Criminal Division in the United States Attorney’s Office. I have 

never been a judge and should I be fortunate enough to be confirmed, I can only promise you, Mr. Chairman, and this Committee 

that I will do my level best to be fair and impartial. 

I, candidly, have some concerns of—not that I can’t be fair, I 

know that I can, but that there may be some perception that I have 

spent so much time as a prosecutor, but I am very confident that 

over a period of time, that I will be able to demonstrate that I am 

a fair and reasonable person and that I will impartially decide the 

cases that come before me if I am fortunate enough to be confirmed. 

Senator CHAMBLISS. Judge Williams? 

Judge WILLIAMS. Thank you, Mr. Chairman. You are absolutely 

right that the role of an advocate is very different from the role of 

a trial judge. In particular, an advocate has a responsibility, an 

ethical obligation to most zealously present the position of his or 

her client as possible, and in the context of zealously representing 

your client, you should use every tool at your disposal to make arguments. You should use rhetoric. You should use the law to the 

extent that you can. You are required to under the canons of ethics. 

But a judge’s role is very, very different. You—I think I view it 

as a two-fold role. It is ensuring that the process of the decision 

making is fair as well as the decision itself. In the process side, we 

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483

ness, giving them a full opportunity to be heard, and as one of my 

colleagues eloquently put it, listening. That is the biggest thing, is 

just listening and making sure you understand. 

And I have often in my situation as a trial judge gone into a case 

or a trial or an argument thinking one way about a case and coming out thinking just the opposite way and ready to go and do my 

own homework, go back over the briefs, go back to the library, so 

that I can come up with my own independent decision. Thank you. 

Senator CHAMBLISS. Thank you. Senator Durbin, we are glad to 

have you join us, my friend from Illinois, Senator Durbin. 

Senator DURBIN. Thank you very much, and I apologize for coming in a little late with all the things we are trying to juggle here. 

I thank you all for being here, and I would like to ask a general 

question. How many of you are members of the Federalist Society? 

[Mr. Wolski raised his hand.] 

Mr. WOLSKI. I am. 

Senator DURBIN. Mr. Wolski. Is anybody else here a member? 

Could you explain it to me for the record, what the—the reason I 

ask this is when we map the DNA of Bush nominees for court positions, we always come across the Federalist Society chromosome in 

so many of them and I am just trying to get to the bottom of this, 

about what it is that makes Federalist Society membership an important consideration with some nominees, and perhaps, for the 

record, if you could explain to me how you view the Federalist Society and its philosophy. 

Mr. WOLSKI. Certainly, Senator. On the penultimate question 

that you asked, I am the pickee, not the picker, so I really couldn’t 

say why the administration chooses to nominate certain people and 

not others. 

But on the first question, as to what the Federalist Society is, it 

is an organization, primarily a student organization, although 

there are also lawyer chapters, which has open forums and debates 

and sponsors speakers on a wide range of issues that relate to the 

Constitution, issues that relate to the legal process. 

When I was at the University of Virginia School of Law, I was 

the President of the Student Chapter of the Federalist Society 

there and we had a number of very good events. They were well 

attended by people from all political walks of life and all thought, 

very well attended, debates on topics such as the constitutionality 

of certain activity—I actually can’t remember what—well, let me 

see, it must have had something to do with—well, let us put that 

one aside. And then we had a debate on drug legalization, for instance. We had a debate on the Ninth Amendment and whether it 

means anything. The Society tends to look at—and sponsor debates 

and look at issues often in the perspective of the historical role of 

the Constitution and what the Framers were doing when they put 

it together, and that is I think as best as I can explain it. 

Senator DURBIN. I know where I would put the ACLU in the political spectrum. Where would you put the Federalist Society? 

Mr. WOLSKI. I would be reluctant to try to characterize it as one 

sort of group or another. It is not—it doesn’t take positions on political issues. It doesn’t take positions on legal or constitutional 

issues, for that matter. So since it is a group that doesn’t take posiVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00497 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.001 SJUD4 PsN: CMORC
484

tions and doesn’t litigate, doesn’t get involved in advocating one position or another, I don’t really think you could do that. 

Senator DURBIN. You have been rather outspoken. I think some 

of my colleagues have already questioned you about your pride and 

your ideology, your political ideology. In fact, I think you were 

quoted in the National Journal as saying you have—you would like 

to take that quote back, wouldn’t you? 

[Laughter.] 

Senator DURBIN. You are quoted in the National Journal as saying you are always looking for jobs that let you further your ideological—I don’t want to misquote you, but could you tell me what 

you said to the National Journal and then if you would like to explain it. 

Mr. WOLSKI. I wish I could remember with certainty what I said. 

Senator DURBIN. I could probably find it in these notes. 

Mr. WOLSKI. Well— 

Senator DURBIN. Go ahead. Give it your best. 

Mr. WOLSKI. As I explained earlier to the previous Senators who 

were here, the question was— 

Senator DURBIN. Go ahead. 

Mr. WOLSKI. The question, I believe, that was posed to me—I 

guess to actually put things in context, the National Journal piece 

in question, I think, is from the ‘‘Hill people’’ special issue that 

comes out every 2 years that does a profile of the new Congress, 

what committees each member is assigned to, and talks about 

Committee staff and does a little profile on each committee. 

And in the profile on the Joint Economic Committee, they had 

a—I think it was one paragraph about me that primarily talked 

about my tax work and how the work I do for Senator Mack is tax 

oriented. And the person who was interviewing me asked me, why 

was I willing to relocate from California to come to D.C. to work 

for a Senator from Florida, and the answer I tried to express, 

again, was—I may not have used the best words. I am not sure 

that that was a precise and accurate quote, but it certainly has 

been reported, so I will stick with that quote. 

All that I meant to convey was that the sort of jobs that I had 

taken since college have not been ones designed to try to earn the 

most money. Unlike my friends out of the Wharton School, I didn’t 

try to get a job on Wall Street and make a lot of money. I was the 

first person in my family to go to college, and my mother is the 

granddaughter of Lithuanian immigrants. My dad is the son of 

Lithuanian immigrants and— 

Senator DURBIN. Are you trying to get on my good side here? 

[Laughter.] 

Mr. WOLSKI. and I understand that you might have something— 

Senator DURBIN. Someone has done some homework for you. 

Mr. WOLSKI. It is one of the—the DNA of the Senators that we 

do before we come. 

[Laughter.] 

Mr. WOLSKI. But no, in all seriousness, Senator, I had an opportunity that my parents didn’t have. I was able to go to college. I 

was able to go to law school. And I believe very strongly that people should give something back to their community. People should 

try to make society better and take advantage of the opportunity 

485

that they have had to do that. And all that I meant to express was 

the type of jobs I had had were public sector job and nonprofit jobs, 

jobs that related to tax policy. 

The use of the word ‘‘ideological,’’ if that is what I had said, I 

wasn’t trying to characterize myself as an ideologue because I 

think people who know me and know my record know that I am 

open minded, that I am not rigid. When I worked for Senator 

Mack, it was on a bipartisan basis on a number of tax issues that 

had support widely across the aisle, things like the low-income 

housing tax credit, the D.C. Economic Recovery Act. 

Senator DURBIN. What about this whole takings question? If you 

are going to argue for ideology under law, that seems to be a ripe 

issue for the conservative right, this whole question of takings. And 

you have had quite a few cases, have you not, involving this issue? 

Mr. WOLSKI. I guess six, seven, 8 years ago when I worked at 

the Pacific Legal Foundation, I did—I was a member of the Property Rights Section and I had a number of cases involved in that 

section that involved takings. Typical clients included Bernadine 

Suitum. I don’t know if you are familiar with her Supreme Court 

case, but she was an elderly lady who had a plot of land in a fully 

developed subdivision in Incline Village, Nevada. Hers was the last 

plot that hadn’t been built on. She wanted to build a house on it 

and she was told that, because of the regulations, she couldn’t 

build anything on it. 

So she tried to get into court and sue for just compensation since 

she couldn’t make any use at all of her property. And the argument 

was raised that her claim wasn’t ripe yet, because while she 

couldn’t make any use of her property, under the regulations, she 

could transfer to somebody else the right to make more extensive 

use of their own property, and that, therefore, her case wasn’t ripe 

because she could still help somebody else out. That was used to 

kick her out of court. 

I did a petition for writ of certiorari to the United States Supreme Court and the Supreme Court granted the case, reviewed 

the case. I didn’t do the argument before the Supreme Court, but 

we—Mrs. Suitum won nine-to-nothing, again, a unanimous opinion 

written by Justice Souter said that she could have her day in court. 

One other case I did in the land use area was for Montereyans 

for Affordable Housing, which is a nonprofit organization that was 

challenging a procedural hurdle that was put in their place that 

would prevent rezoning—actually, it wouldn’t prevent rezoning. It 

made it very difficult in Monterey to rezone land to allow apartments to be built. If somebody wanted to do that, they had to first 

get the city council approval, then they had to go put it on the ballot themselves, pay for the election, and win an election just in 

order to have apartments. As I said, I represented an affordable 

housing group and we got that law struck down. That is the sort 

of work that I did. 

Senator DURBIN. Were you primarily representing property owners who were resisting either government regulation or government 

taking? 

Mr. WOLSKI. No. Actually, in the takings context, a lot of the 

cases would be seeking just compensation. It is—resistance is futile, I guess, after a certain point and you have got to choose 

486

whether you are going to seek compensation or not. In the Court 

of Federal Claims, for instance, the cases that are brought under 

the Takings Clause are people who accept as given the law or the 

regulation or the government decision that restricted the use of 

their land and accept that as proper and don’t challenge the purpose, don’t challenge the legitimacy of that action, but instead say 

the impact on this has been so great as to require just compensation under the Constitution. Those are the sort of cases— 

Senator DURBIN. You mentioned the Pacific Legal Foundation. Is 

that connected at all with the Federalist Society? 

Mr. WOLSKI. I am sure that there are probably members of the 

staff of the Pacific Legal Foundation who might also be members 

of the Federalist Society. When I was a staff attorney at Pacific 

Legal Foundation, I had also joined the Sacramento Chapter of the 

Federalist Society and I know that there were at least a few others 

who were. 

Senator DURBIN. So let me ask you this question. The Court of 

Claims deals with takings and environmental issues and you will 

come now to a position where you will be sitting in judgment. You 

have prided yourself on your political beliefs, political philosophy, 

political ideology. Should I not have some concern as to whether or 

not you are going to be dispassionate and objective when it comes 

to this Court of Claims position or whether you are bringing a political agenda to this position? 

Mr. WOLSKI. I appreciate that question, Senator, and I think the 

answer is no, actually, and the reason why I think you shouldn’t 

be concerned is taking the broader perspective of my career, looking at everything that I have done, not just what—not just a job 

that I took as a young lawyer right out of my clerkship seven, 

eight, 9 years ago, but look what I have done over the whole 

breadth of my career, the bipartisan work I did for Senator Mack 

on things like the low-income housing tax credit, the sort of cases 

that I have litigated over the last few years. 

I represent a class of Medicare beneficiaries who are suing the 

tobacco industry, trying to get reimbursement to the Medicare 

Trust Fund for smoking-related illnesses. I represent the State of 

Nevada in its efforts to resist the placement of the nuclear repository in Yucca Mountain. So I have represented governments, I have 

represented the Governor of Puerto Rico, I have represented the interests of government in a number of cases, as well, and I think 

I have demonstrated that I am a person who can see things fairly 

and does understand and appreciate the importance of government. 

Senator DURBIN. Thank you, Mr. Wolski. I may have a few written follow-up questions, and to the other nominees who are before 

us, let me thank you for your patience. You come with great recommendations. 

I would just say, if I might, Mr. Chairman, by way of closing, 

that this last weekend, I was privileged to join a group of my colleagues from the House and Senate to travel to Alabama with Congressman John Lewis. Some of you know John Lewis, from Atlanta, 

Georgia, is one of the real heroes of the civil rights movement. He 

was, as a young man, marching across Edmund Pettis Bridge in 

Selma when that terrible bloody Sunday occurred. 

487

John took a group of us, a bipartisan group, down to Alabama. 

For me, it was the first time to visit the State, and we went to 

Montgomery and Selma and Birmingham. We went to the corner 

where Rosa Parks got on the bus and refused to give up her seat 

and we marched across the Edmund Pettis Bridge and we went to 

the 16th Street Baptist Church in Birmingham where the four little girls were killed by the bomb. 

It was a moving experience for me. At my age, this was a formative part of my life and my values, the civil rights movement, and 

to see it firsthand and to meet the people involved in it made a difference. 

At one point while we were traveling, I talked to John Lewis 

about how it all worked out, ultimately it worked out. There is still 

a lot to be done, but ultimately, it worked out. The civil rights 

movement was successful in passing historic legislation. And he 

said to me at one point, there never would have been a march from 

Selma to Montgomery if there wasn’t a Federal District Court 

judge named Frank Johnson. Frank Johnson from Northern Alabama, a Republican appointee under President Eisenhower had the 

courage to stand up to the establishment, to the State courts, and 

to many of his Federal judges and to say, we are going to put an 

end to this discrimination once and for all. 

As a result, he was threatened, his life was threatened, his mother’s home was under protective surveillance for years and he was 

shunned by the society he lived in. When he passed away a few 

years ago, the tributes and praise were universal from everyone 

who looked back and said, this one Federal District Court judge 

changed history in America. 

And it was a reminder to me as I sit in this Judiciary Committee 

and see literally scores of candidates come through here that you 

never know which one of you, if you are fortunate enough to come 

to the bench, will have that moment, that opportunity in history. 

And I hope, as I hope that the Senator and myself will have the 

courage to see that moment and to seize it, even if it is unpopular, 

that each of you will have that wisdom, too. 

Thank you very much. Thanks, Mr. Chairman. 

Senator CHAMBLISS. Thank you, Dick. I hope you held your hand 

over your heart as you flew over Georgia on the way to Selma. 

[Laughter.] 

Senator CHAMBLISS. I am not a member of the Federalist Society, 

but just like Senator Durbin, I have heard that an awful lot during 

the hearings that we have had and I have heard Senator Hatch, 

who is a member of the Federalist Society, delineate exactly what 

the Federalist Society is. And while some want to paint a different 

picture, the fact of the matter is that the Federalist Society is a 

mainstream organization with no articles of faith or litmus test. 

Members range from pro-choice to pro-life, from those who believe 

in the original meaning to those who focus more on precedent and 

evolving tradition. 

The Federalist Society has hosted speeches by the likes of Justice 

Stephen Breyer, Alan Derschowitz, Kathleen Sullivan, and Nadine 

Strossen, among others. The Federalist Society has also received 

the input and praise of such noted liberal legal scholars such as 

488

Harvard Professor Lawrence Tribe, Chicago law professor Martha 

Nusbaum, and Yale law professor Ian Ayers, among others. 

So I do not believe the Federalist Society membership should disqualify anyone from the Federal bench anymore than an ABA 

membership should. I always appreciate all of our questions, but 

that one does seem to come up an awful lot. 

I am sorry my friend Senator Schumer is not here, but he made 

the comment about Republican judges seeming to decide cases differently from Democratic judges. But as I look at this group, we 

have got some Republicans here. Mr. Wolski, your statement that 

you have been asked about a number of different times, you state 

in there that you are a Libertarian. I had a Libertarian opponent 

in my last election, and Judge Williams, I understand you are a 

Democrat and that you actually were considered for this position 

by the Clinton administration. Am I correct in that? 

Judge WILLIAMS. Yes, Mr. Chairman, I was. I didn’t get quite 

this far there, but I am told I did get pretty far along in the process. 

Senator CHAMBLISS. Well, we have got a good bipartisan group 

of nominees is my point, and I will tell you that as a former lawyer, 

I would certainly look forward to practicing before each and every 

one of you. 

We are going to conclude this panel. The process will continue. 

We are going to move to the next panel and we appreciate each of 

you being here today to provide us with your testimony. Thank you 

very much. 

Judge CARNEY. Thank you, Mr. Chairman. 

Judge SELNA. Thank you, Mr. Chairman. 

Mr. SIMON. Thank you, Mr. Chairman. 

Judge SPRINGMANN. Thank you, Mr. Chairman. 

Judge WILLIAMS. Thank you, Mr. Chairman. 

Mr. WOLSKI. Thank you, Mr. Chairman. 

[The biographical information of Judge Carney, Judge Selna, Mr. 

Wolski, Judge Springmann, Mr. Simon and Judge Williams follow:]

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Senator CHAMBLISS. I thank my former colleague over on the 

House side. Ruben Hinojosa is here, and Ruben, we look forward 

before this next panel is seated to you coming forward and making 

some comments about a nominee that I know you have an interest 

in. We are glad to have you here, Ruben, if you will just have a 

seat right there in the center. I will tell you that Senator 

Hutchison and Senator Cornyn have already spoken and gave accolades with respect to Mr. Hinojosa. By the way, is he kin to you? 

PRESENTATION OF RICARDO H. HINOJOSA, NOMINEE TO BE 

UNITED STATES SENTENCING COMMISSIONER BY HON. 

RUBEN E. HINOJOSA, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF TEXAS 

Representative HINOJOSA. Not yet. 

[Laughter.] 

Representative HINOJOSA. Mr. Chairman, I am pleased to have 

the opportunity to introduce a gentleman from the great State of 

Texas, U.S. District Judge Ricardo Hinojosa, who has been nominated to serve on the U.S. Sentencing Commission. I want to thank 

Chairman Hatch and Ranking Member Leahy for having given me 

this opportunity to address the Senate Judiciary Committee, and 

furthermore, I wish to acknowledge and thank you for allowing me 

this opportunity. I wish that Senator Durbin could have stayed just 

a few more moments so that he could have learned about this great 

gentleman that I am introducing. 

Judge Hinojosa is one of the most highly respected Federal 

judges in the State of Texas. He is a judge who is fair and impartial. Since 1983, he has served as the United States District Judge 

for the Southern District of Texas. A graduate of Harvard School 

of Law, Judge Hinojosa has been active in the legal community, 

serving on the Committee on Defender Services of the Judicial Conference of the United States, the Magistrate Judges’ Committee of 

the Judicial Council of the Fifth Circuit, and the Judicial Liaison 

member of the Texas State Bar Board of Directors. 

He has combined his service to the law with his outstanding 

service to his local community. He has served as Chairman of the 

Board of Regents of the University of Texas–Pan American and as 

Chairman of the Texas Commission on the Bicentennial of the 

United States Constitution. 

As you know, the U.S. Sentencing Commission is a unique body 

charged with establishing sentencing guidelines for those individuals convicted of Federal crimes. Judge Hinojosa’s recent position 

as a member of the American Law Institute Advisors Group to the 

Model Penal Code Sentencing Project has given him experience and 

insight into the challenges that the Sentencing Commission faces 

in recommending policy. 

Born and raised in South Texas, I have known Judge Hinojosa 

for over 20 years. Although we are not related, he grew up in my 

wife’s hometown, Rio Grande City. I have always found him to be 

tough, but fair, in his judicial decisions. 

In closing, I wish to say that, as I am sure you are aware, Judge 

Hinojosa’s nomination has the strong support of Senator John 

Cornyn and Senator Kay Bailey Hutchison. Without any reservations, I strongly recommend Judge Ricardo Hinojosa. This country 

691

will be well served if Judge Hinojosa’s nomination is approved by 

your committee. 

Thank you again for allowing me the privilege of testifying on behalf of this outstanding American, and I welcome any questions 

that you might have. 

Senator CHAMBLISS. Well, thank you very much, Congressman 

Hinojosa. Coming from you, that is a strong recommendation in my 

book and we look forward to the nominee coming forward and 

speaking and having an opportunity to ask questions. 

Representative HINOJOSA. Thank you, sir. 

Senator CHAMBLISS. Thank you very much. 

Representative HINOJOSA. Thank you very much for the opportunity and I look forward to visiting with you again. 

Senator CHAMBLISS. We will now ask that Judge Hinojosa and 

Mr. Horowitz come forward, please. Before you take your seats, if 

each of you will raise your right hand, please. 

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

before this Committee shall be the truth, the whole truth, and 

nothing but the truth, so help you, God? 

Judge HINOJOSA. I do. 

Mr. HOROWITZ. I do. 

Senator CHAMBLISS. Thank you. Let me ask each of you if you 

have any opening statement you want to make or if you have any 

family or friends here that you want to recognize. We certainly 

want to give you the opportunity to do that. Judge Hinojosa? 

STATEMENT OF RICARDO H. HINOJOSA, NOMINEE TO BE 

UNITED STATES SENTENCING COMMISSIONER 

Judge HINOJOSA. Senator, thank you very much. First of all, I 

don’t really have an opening statement, but I do want to thank the 

President for this nomination and this Committee for this hearing. 

I do want to thank Senators Hutchison and Cornyn and Congressman Hinojosa for their nice remarks this afternoon. 

I do have in the audience today a Godchild of mine, Emily 

Williford [ph.] from Austin, Texas, who is presently working here 

in Washington, D.C., and I appreciate her showing up here this 

afternoon. 

And there is another person in the audience I would also like to 

thank and that is Ms. Sheila Joy, who works with the Justice Department, and 20 years ago, she held my hand through the nomination and confirmation process. She has done it again this year 

and she has done it throughout this period of time for all these administrations and for all these people that go through this process 

and she makes it a lot easier and I appreciate her help. 

Senator CHAMBLISS. It sounds like she is your good luck charm. 

Judge HINOJOSA. I hope so. And I also want to thank the people 

I work with who I believe are listening and possibly watching as 

we are having this hearing. Thank you very much, Senator. 

Senator CHAMBLISS. Thank you. 

Mr. Horowitz? 

692

STATEMENT OF MICHAEL E. HOROWITZ, NOMINEE TO BE 

UNITED STATES SENTENCING COMMISSIONER 

Mr. HOROWITZ. Mr. Chairman, I do not have an opening statement. I want to echo what Judge Hinojosa said. I am certainly honored that the President has nominated me. I am honored that the 

Committee is having this hearing. 

I do have some family members with me that I would like to introduce to the committee. With me is my wife, Alexandra, my 

mother, Ann, who came from Florida, and my mother-in-law, Sandra Kaufman [ph.], and my father-in-law, directly behind me, 

Charles Kaufman [ph.], so hopefully, he won’t throw anything at 

me during the hearing. 

[Laughter.] 

Senator CHAMBLISS. All right. Great. We are happy to have all 

of you here. 

Mr. Horowitz, let me start with you. You have served for many 

years as a prosecutor, first in the U.S. Attorney’s Office for the 

Southern District of New York, then in the Criminal Division of the 

Department of Justice. I understand that you now work for a major 

law firm and engage in criminal defense work. What is your view 

as to the general appropriateness of the sentencing guidelines and 

what perspective will you bring to the Sentencing Commission as 

a former prosecutor who now does defense work? 

Mr. HOROWITZ. Well, Mr. Chairman, I believe that the experiences I have had, first as a law clerk and then as a prosecutor for 

11 years, representing clients who have been under investigation, 

both before I became a prosecutor and since, will hopefully give me 

a breadth of experience in viewing the guidelines, in looking at 

them. The Commission has right now an interesting array of experiences among their Commissioners. There are a number of judges. 

and hopefully, I can add to that through the perspective of my experience. 

I know, as you know, the current head of the Criminal Division, 

Mike Chertoff, who I work for, as well as his predecessor, Jim Robinson, who I worked for, both served as defense lawyers and as 

prosecutors and U.S. Attorneys and I think it does allow you to 

look at problems from a big picture and understand from all sides 

of the issue what these guidelines mean and how they should be 

considered and applied. 

Senator CHAMBLISS. Judge Hinojosa, as a sitting Federal District 

Court judge, you have been called upon to apply the sentencing 

guidelines countless times. I am sure you have also gotten earfuls 

from many of your colleagues about the guidelines. I know you 

have gotten an earful from those of us who did defense work from 

time to time. What is your view as to the general appropriateness 

of the sentencing guidelines, and specifically, do you think it works 

well or does it work most of the time? 

Judge HINOJOSA. Senator, I guess I am one of the group that gets 

smaller as each year goes by that actually has done sentencing 

both under the old system as well as under the guidelines system. 

From 1983 to 1987, I actually sentenced individuals under the old 

system, and I have to say that I find the Sentencing Commission 

guidelines very helpful for the system. 

693

Under the old system, we would spend a lot of time, or at least 

I did, trying to figure out what I had done with a particular kind 

of case and a particular kind of defendant with certain characteristics that were similar to the present defendant and the amount of 

drugs involved in a drug case, for example, and trying to make 

things work on in an equal fashion and in a fair fashion. So you 

would spend a lot of time trying to go back, trying to find other 

cases that you had worked on and sometimes talking to other 

judges about the same kind of cases. 

Under the guidelines, we have a totally different system because, 

as you know, the Commission guidelines set the procedure and the 

parameters that the judges are to follow. And I have to say that 

I find them helpful because, in many ways, they basically have the 

same factors I used to consider myself when I had to make a decision with regards to a particular sentence as far as the role in the 

offense of an individual, the involvement in the crime itself, in a 

drug case, for example, the amount of drugs, whether there was a 

firearm involved and the relevant conduct involved and acceptance 

of responsibility, all these factors that are put into the Commission 

guidelines which makes us think about these in every single case 

and I find them to be helpful. 

Senator CHAMBLISS. Do you think the guidelines give you enough 

flexibility? That was a question that I raised a lot of time with 

judges, and I didn’t do an extensive amount of Federal criminal 

work, but I occasionally did and the guidelines—I practiced under 

the old system as well as under the guidelines themselves, just like 

you having been on the bench, and I sometimes had a problem with 

the judge not having flexibility, particularly with a defendant or an 

accused who, in trying to negotiate some sort of settlement of the 

case, there just—the judge’s hands were somewhat tied. Have you 

ever been in those kind of positions, where you didn’t feel like you 

had enough flexibility? 

Judge HINOJOSA. To some extent, I guess in some cases, you 

might feel that way, Senator, but I have to say that within the 

guidelines themselves, there are a lot of fact findings that a judge 

has to make that give you the discretion within the guidelines 

themselves, and, of course, in the very unusual situations where 

someone is cooperating with the government, as you well know, the 

government can file a motion to depart based on cooperation and 

assistance. I say unusual, which really it is not, because that does 

happen and it is a tool that is used to help make bigger cases. 

In the situations where one finds that it is totally out of the 

heartland of the cases, a judge has the opportunity to depart. In 

the Koon case, the U.S. Supreme Court certainly gives a judge an 

opportunity to do that. 

Senator CHAMBLISS. Let me ask to both of you, do you believe 

that a member of the Sentencing Commission should implement 

the sentencing guidelines in a way that he or she believes that 

Congress would have intended even if the member disagrees with 

that Congressional intent? Is there any question in your mind 

about that? 

Mr. HOROWITZ. No question about that at all. 

694

Judge HINOJOSA. I do feel that part of the responsibility of the 

Sentencing Commission is to look at the directives from the Congress, sir. 

Senator CHAMBLISS. Okay. Would you agree with me that the 

central premise of the Sentencing Reform Act was to create uniformity of sentences and try to eliminate disparities in the sentences handed out by different judges for similar offenses, and do 

you think that is a fair and desirable goal? 

Mr. HOROWITZ. Mr. Chairman, I do believe that eliminating the 

unwarranted disparities that existed before the system was put in 

place is the correct goal of the guidelines and would certainly be 

part of my responsibility in serving in this position. 

Judge HINOJOSA. I agree with that also, Senator, and I think 

that is the reason that the Congress saw fit to create the United 

States Sentencing Commission, because there was a viewpoint from 

all segments and members of Congress that that was important, 

and I think that is the viewpoint of the public in the United States. 

Senator CHAMBLISS. Gentlemen, let me assure you, the fact that 

none of my colleagues are here in no way diminishes what we know 

to be the importance of the job to which you have been nominated. 

You both have the kind of experience and you obviously, from just 

looking and talking to both of you, you have the right kind of temperament to be confirmed for this position. So let me assure you 

that we take this seriously. We know you are going to take your 

job seriously and we appreciate very much you being here today 

and sitting through the previous panel and having a little patience 

with us to do that. So thank you very much for being here and 

thank your family members for being here, also. 

[The biographical information of Judge Hinojosa and Mr. Horowitz follow.] 

Senator CHAMBLISS. I would like unanimous consent to insert 

Senator Hatch’s statement for the record, and without objection, 

that is done. 

I would also like to insert into the record statements from Senator Leahy and Senator Boxer. 

I announce to all of my colleagues on the Committee that the 

record will remain open until 5:00 p.m. one week from today, 

Wednesday, March 13, for anyone to submit additional questions or 

additional matters for the record. Excuse me, I said the 13th. The 

19th. The record will remain open until the 19th. 

This hearing is concluded. Thank you. 

[Whereupon, at 4:00 p.m., the Committee was adjourned.] 

[Additional material is being retained in the Committee files.] 

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

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(747)

NOMINATIONS OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH 

CIRCUIT; RICHARD D. BENNETT, NOMINEE 

TO BE DISTRICT JUDGE FOR THE DISTRICT 

OF MARYLAND; DEE D. DRELL, NOMINEE TO 

BE DISTRICT JUDGE FOR THE WESTERN 

DISTRICT OF LOUISIANA; J. LEON HOLMES, 

NOMINEE TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF ARKANSAS; SUSAN 

G. BRADEN, NOMINEE TO BE JUDGE FOR 

THE COURT OF FEDERAL CLAIMS; AND 

CHARLES F. LETTOW, NOMINEE TO BE 

JUDGE FOR THE COURT OF FEDERAL 

CLAIMS 

THURSDAY, MARCH 27, 2003

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 3:07 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. 

Present: Senators Cornyn, Sessions, and Leahy. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. The Senate Committee on the Judiciary on judicial nominations will come to order. It is my pleasure to be 

chairing this and I am certainly pleased to be with the ranking 

member, Senator Leahy, on this important occasion. We have a 

number of distinguished members who are here before us who I 

know are on tight schedules. We are here, of course, to consider the 

nominations of Edward Prado, to be a United States Circuit Judge 

for the Fifth Circuit; Richard D. Bennett, to be United States District Judge for the District of Maryland; Dee D. Drell to be United 

States District Judge for the Western District of Louisiana; J. Leon 

Holmes, to be United States District Court Judge for the Eastern 

District of Arkansas; Susan Braden, to be Judge of the Court of 

Federal Claims; and Charles F. Lettow, to be Judge of the Court 

of Federal Claims. 

748

Senator Leahy and I have both agreed that we will reserve our 

statements, in the interest of time, and because we know our colleagues who are here to introduce these judges are on a tight 

schedule, themselves. 

We will, in the order of seniority, recognize Senator Sarbanes for 

his introduction. 

PRESENTATION OF RICHARD D. BENNETT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY 

HON. PAUL SARBANES, A U.S. SENATOR FROM THE STATE OF 

MARYLAND 

Senator SARBANES. Mr. Chairman, Senator Mikulski and I are 

pleased to be here to present Richard Bennett to the Committee. 

Understanding the press on your time, I will try to be brief. But 

let me say it is a pleasure to appear today on behalf of this distinguished member of Maryland’s legal community. 

Dick Bennett was educated in Maryland at the Severn School in 

Severna Park. Actually, he is now on the Board of Trustees of the 

school. He went to the University of Pennsylvania, where he had 

high academic honors and was also honorable mention All-Ivy 

League Lacrosse. That may not mean much to you, but it means 

a lot in Maryland, I want you to know. 

[Laughter.] 

Senator SARBANES. And then he went from the University of 

Pennsylvania to the University of Maryland School of Law, where 

he was on the Maryland Law Review. 

I am not going to go through all of his legal background. He has 

been associated with three Baltimore law firms, two very large 

ones. He is now a partner at Miles and Stockbridge, which is one 

of our leading law firms. But early on in his legal career, he went 

into the U.S. Attorney’s Office as an Assistant U.S. Attorney and 

worked there for a little more than 4 years. This was not too long 

after he graduated from law school. 

At the same time, he was in the Army, the U.S. Army, and then 

in the Army Reserve and subsequently in the Maryland National 

Guard, serving in the Adjutant General’s Division. He rose to be 

a major in the National Guard. 

I just want to mention a couple of things about him because he 

came back to become the U.S. Attorney for the District of Maryland 

and to serve with distinction in that office. We have had a string 

of very good U.S. Attorneys in our State and Dick was certainly 

among the top of the group. In fact, he is now on the Board of Directors of the National Association of Former U.S. Attorneys, which 

is obviously some recognition with respect to his abilities on the 

part of his peers. 

I want to mention for just a moment his political involvement. 

That may sound a little strange here, but I think it is important. 

It helps to make a point I want to make. 

He went on the Baltimore City Republican Central Committee, 

which is kind of a lonely place, I have to say, to succeed Fred 

Motts, who became a U.S. District Judge and just stepped down as 

the Chief Judge not too long ago of our District Court. In 1982, he 

ran for the Maryland State Senate, was defeated. In 1994, he was 

the Republican candidate for Attorney General. That didn’t prove 

749

out. And in 1998, he was a candidate for Lieutenant Governor. In 

a way, I think we may have done him a favor in those elections. 

Otherwise, I am not sure he would now be here to be a Federal 

District Judge. 

The important point I want to emphasize, though, is I respect 

this political involvement on his part. It was always done in an 

honorable way. As is important in our system, he was contributing 

to the functioning and the workings of our political democracy. I 

have known him a long time. We have been on opposite sides of 

the political fence, but I certainly respect him personally and professionally and I believe he will make a good Federal District 

Judge. 

We have a very good bench in our State and we are very proud 

of it. We work very hard at trying to protect its quality. Dick Bennett, I think, reflects the respect for others, an open mind. I think 

he will be fair. I think he will hear people out. He has had extended trial experience. He is really a very experienced litigator, 

much of it in the Federal Court. So he knows the workings of the 

Federal Court and he knows how the system operates and I think 

he will be a very effective judge. 

He has taken a strong interest in our community. He has been 

on the Board of Directors of the Kennedy Krieger Institute in Baltimore, one of the leading institutions in the world dealing with the 

problems of disabled children. 

So I am pleased to come today to speak on behalf of someone 

with whom I contended politically over the years, but for whom I 

have a high regard and whom I am convinced will make a very fair 

and honorable Federal District Judge. I very much hope that the 

Committee, after hearing him out, will see fit to report him favorably to the United States Senate. Thank you very much. 

Senator CORNYN. Thank you very much, Senator, for those comments. 

Senator Mikulski, we would be delighted to hear from you. 

PRESENTATION OF RICHARD D. BENNETT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND, BY 

HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE 

STATE OF MARYLAND 

Senator MIKULSKI. Thank you very much, Mr. Chairman and 

members of the Committee. I am here today to really enthusiastically support the nomination of Dick Bennett to be a Federal District Court judge in Maryland. 

I sat at this table in 1990 to support his nomination to be the 

U.S. Attorney under President Bush’s dad, and I will tell you, as 

U.S. Attorney, he did not disappoint us. He was an outstanding 

U.S. Attorney and the way he conducted himself, conducted the office, and brought honor and integrity to the U.S. Attorney’s office. 

When I look to how am I going to support a Federal judge, I have 

three criteria: Judicial competence, highest integrity, and demonstrated dedication to protecting core constitutional values and 

guarantees. Dick Bennett is more than well qualified in all three 

of those areas. He has been recognized as one of the best trial lawyers in America. He has received numerous awards from professional legal organizations. And at the same time, he has been honVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00763 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.002 SJUD4 PsN: CMORC
750

ored for his work in the field of victims’ rights, so he brings balance. 

In terms of integrity, he has decades of community service that 

Senator Sarbanes has talked about. He served for 20 years in the 

Army National Guard. 

When you look at his family background, you will see that he is 

a product of the greatest generation. He dad was an electrician. His 

dad fought at Okinawa and then came home to raise a family, and 

his mom was a school teacher. Mr. Bennett put himself through 

law school by coaching sports at a local Catholic high school. So it 

has been just hard work, dedication, values around patriotism, and 

then really developing outstanding skills as a lawyer. 

I am just going to submit my statement for the record. Senator 

Sarbanes covered it, and I note others. 

When you have got someone who was honored by the Maryland 

State Attorneys’ Association, by getting an award from a Democratic Governor for his work on victims’ rights, for also being a volunteer at a soup kitchen, and found time to be a U.S. Attorney, to 

be a dad. I think this is the kind of person we want, and his peers 

say this man is tough, fair, balanced, and one smart lawyer, and 

I think he will be a terrific judge. 

Senator CORNYN. Thank you very much, Senator Mikulski and 

Senator Sarbanes, for your introductions. We appreciate that very 

much. 

I know that a number of members both on the Senate side and 

the House side have other conflicts. I am trying to accommodate 

your schedule the best I can. I know, Senator Bingaman, I know 

you have a pressing engagement elsewhere, but we would be delighted to hear from you and any comments you might have. 

The CHAIRMAN. Mr. Chairman, before he starts, I just couldn’t 

help but notice all the Senators here endorsing President Bush’s 

nominees. They are all Democrats. It is just somewhat unusual because we so rarely were able to get a lineup like that when President Clinton was here for Republicans to endorse his nominees. I 

am glad to see bipartisanship is back. 

Senator CORNYN. It is refreshing. I am happy, as you are, to see 

such consensus selections and such bipartisan support. 

Senator Bingaman? 

PRESENTATION OF SUSAN G. BRADEN, NOMINEE TO BE 

JUDGE FOR THE COURT OF FEDERAL CLAIMS, AND 

CHARLES F. LETTOW, NOMINEE TO BE JUDGE FOR THE 

COURT OF FEDERAL CLAIMS, BY HON. JEFF BINGAMAN, A 

U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator BINGAMAN. Thank you, Mr. Chairman. I will be very 

brief, but enthusiastic, in speaking on behalf of two of the nominees, the two nominees before you today for the U.S. Court of Federal Claims, Charles Lettow and Susan Braden. 

Chuck Lettow and I became acquainted—he and my wife and I 

became acquainted when we were all in law school at Stanford over 

35 years ago. He is a superb lawyer. He has been with the Cleary 

Gottlieb firm for over 25 years. He has had raw litigation experience. He clerked for the Supreme Court and for the Court of Appeals before that. His reputation as a lawyer, as a litigator, as a 

751

fair, balanced, even-handed individual, I think, is unparalleled. So 

we are very fortunate to have him as a nominee for this position. 

Susan Braden, I have also known for a long time, not as long as 

I have known Chuck, but she is also extremely accomplished and 

respected in her field. She has over 30 years of litigation experience, both in the Federal Government and the private sector. She 

is now with Baker and McKenzie, practices in antitrust, intellectual property, tax and property rights areas, and specializes in 

complex civil litigation. She, again, is an extremely qualified nominee for this important position. 

I commend both nominees to the Committee and I urge you to 

act favorably upon them and do so quickly. Thank you very much 

for allowing me to speak today. 

Senator CORNYN. Thank you very much, Senator Bingaman. We 

appreciate your testimony here today. 

Since we have such a distinguished panel and I know everybody 

has got various other pressing engagements, I understand Congressman Tauzin has an appointment at 3:30. Senator Landrieu, 

would you mind if we turn to our colleague from the House first? 

Senator LANDRIEU. Go right ahead. 

Representative TAUZIN. It is not necessary. I always yield to my 

colleague. 

Senator LANDRIEU. Ooh, he is being so nice today. 

[Laughter.] 

Senator LANDRIEU. Thank you, Mr. Chairman. 

Senator CORNYN. We would be delighted to hear from you, Senator. 

PRESENTATION OF DEE D. DRELL, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA, BY 

HON. MARY LANDRIEU, A U.S. SENATOR FROM THE STATE 

OF LOUISIANA 

Senator LANDRIEU. I will just be very brief, and I thank the Congressman. I will submit this statement on behalf of actually Senator Breaux and myself and the Congressman will add his own personal words. But we are all pleased to be here today to really enthusiastically support this nominee, Dee Drell, for the Western District. 

Dee has practiced law for over 30 years. He started out as an Advocate General for the Corps with the Army and then spent 30 

years with the Gold law firm. But his career has not only spanned 

30 years, Mr. Chairman, but he has done almost every aspect or 

practiced every aspect of law from criminal prosecution to criminal 

defense, insurance defense, plaintiffs’ work, and has a wide array 

of other litigation cases. 

In addition to this broad and very deep understanding of the law, 

he has also served his community in many special ways. I particularly was impressed with his commitment as a lay preacher with 

the Episcopal Church in his home district, as well as volunteering 

a great many hours to the Louisiana Task Force on Racial and Ethnic Fairness in the Courts. He is a board member for the Family 

Mediation Council, which I think is also very impressive as we try 

to keep our families together and strengthen them and minimize 

the conflict in divorce and separation. I think that goes a long way. 

752

He stepped out, Mr. Chairman, many years ago, before we really 

had come together as a community to understand how to advocate 

for those stricken with AIDS and spoke out in this community and 

advocated for their legal defense and their fair shake under the 

law. 

With that, I will submit the rest of my statement. His wife, 

Susannah, is here, and I know Congressman Tauzin joins me in 

saying how pleased and proud we are to support someone with 

such excellent legal credentials, but also has shown such a compassion and a heart for the people that he represents and seeks to 

serve. Thank you. 

Senator CORNYN. Thank you, Senator Landrieu. We will certainly 

make your statement, as well as Senator Breaux’s in support of 

this nominee, part of the record, without objection. 

Congressman Tauzin, we would be delighted to hear from you. 

PRESENTATION OF DEE D. DRELL, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA, BY 

HON. BILLY TAUZIN, A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF LOUISIANA 

Representative TAUZIN. Senator, thank you and greetings from 

the Governor. I have to tell you, I recently had the pleasure of 

cooking him a gumbo at his mansion in Austin, and I am becoming 

an honorary Texan, I think. 

[Laughter.] 

Representative TAUZIN. Let me thank Mary and John for their 

excellent statements in support of our candidate, Dee Drell. He is 

truly, as Mary said, a remarkable individual. 

How many nominees do you find who have practiced both as trial 

attorneys and as defense council for insurance firms, and criminal 

defense, as well? His background is truly extensive in that regard. 

It includes, by the way, service in the United States Army in the 

JAG Corps, stationed in Fort Benning. 

He and Susannah are the proud parents and even grandparents 

now of three children and two grandchildren. They are sort of the 

rock-bed people you want to live next door to, just great individuals, dedicated to his work and service to the bar and to legal counsel. 

Mary has articulated some of the most, I think, sterling qualities 

about Dee personally, and that is his commitment to community, 

his work with his church and his work for those less fortunate, his 

defense of indigents in his community on the Indigent Defender 

Board, his work with the AIDS victims in his community and their 

legal rights, and his work for families in trouble and trying to help 

them out through difficult times. 

He has got what we would all want in a judge if we were ever 

called before the bench, and as someone who knows the law, loves 

the law, respects it, and at the same time has a sterling heart and 

understands human nature. He is the kind of person, I think, that 

the Senate will feel extraordinarily proud the day you bring him 

up and vote him into the membership of the United States District 

Courts. 

He is going to make our State proud, too. We produce some pretty interesting and very dramatic personalities in our politics, but 

753

we also produce some incredible jurists. He would be one of those. 

I predict that once you take our recommendation to heart and act 

on it and the Senate acts on it, that there will be a day when you 

look back on this and say, boy, that was a good move we made because we put a great person on the Federal bench who is going to 

serve this country well and be a model for other jurists around the 

country. 

I really feel good about this nominee. Our whole delegation 

worked hard in selecting him. We work as a team, Democrats and 

Republicans, when we make our nominations, and as you can see 

with John and Mary’s support, that is evident here today. We hope 

that you will act speedily on his nomination and present him to a 

life of service on the Federal bench. Thank you. 

Senator CORNYN. Thank you. 

Senator LEAHY. Merci. Merci. 

Representative TAUZIN. I don’t talk French any more, Senator. 

[Laughter.] 

Representative TAUZIN. In fact, I apologize for the fleur de lis on 

my tie today. 

Senator LEAHY. You never spoke it very well to begin with. 

[Laughter.] 

Representative TAUZIN. Well, I didn’t speak that real French. We 

speak a Cajun variety. 

Thanks again. 

Senator CORNYN. Congressman Tauzin, thank you very much. 

We appreciate your appearance here today and your contribution 

on the House side and certainly here today, as well. Thank you. 

Representative TAUZIN. Thank you very much. 

Senator CORNYN. I would be delighted to hear from our colleagues from Arkansas. Senator Lincoln, we would be delighted to 

hear your testimony. 

PRESENTATION OF J. LEON HOLMES, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, 

BY HON. BLANCHE LINCOLN, A U.S. SENATOR FROM THE 

STATE OF ARKANSAS 

Senator LINCOLN. Thank you, Mr. Chairman, and I will try to be 

brief, as well. To the Chairman and members of the Judiciary Committee, I certainly appreciate the opportunity to appear before you 

this afternoon to introduce Leon Holmes, who has been nominated 

to be United States District Judge for the Eastern District of Arkansas. 

As the senior Senator from Arkansas— 

Senator PRYOR. She likes to rub that in. 

[Laughter.] 

Senator LINCOLN. Well, I am the last of four children. I never got 

to be senior anything. 

[Laughter.] 

Senator LINCOLN. I am very pleased to support Mr. Holmes for 

this very important post. 

We are joined today by his wife, Susan, and two of his five children, J. Frank and Hannah, and I know they are very, very proud 

of their father and I certainly know why, having visited with him, 

754

and I am sure the Committee will be, as well, as they finish these 

proceedings. 

After reviewing his record and speaking with many of his friends 

and colleagues in Arkansas, I can assure the Committee that Leon 

Holmes is not only a superb lawyer and a distinguished scholar, he 

is also a very trusted friend by many. They hold him in high regard, and that goes for many people across our great State. 

Mr. Holmes is a native of Hazen, Arkansas, which isn’t too far 

from my hometown of Helena over in East Arkansas. After high 

school, Leon graduated with special distinction from Arkansas 

State University in 1973. Not satisfied with only a baccalaureate 

degree, he continued his education by earning a law degree from 

the University of Arkansas, a master’s degree in political philosophy from Northern Illinois University, and a doctorate in political 

science from Duke University. 

Leon’s professional career is equally as impressive. In addition to 

being named as a partner at the law firm of Quattlebaum, Grooms, 

Tull and Burrow in Little Rock, Mr. Holmes has held a variety of 

positions, including law clerk for Justice Frank Holt on the Arkansas Supreme Court, also as assistant professor at Augustana College in Rock Island, Illinois, and adjunct facility member of the 

University of Arkansas at Little Rock School of Law. 

Additionally, which I found to be very interesting, you all may 

also find as interesting, that while pursuing his education, Mr. 

Holmes worked as a door-to-door salesman, a newspaper carrier, a 

carpenter’s helper, and my favorite, a pea picker. 

[Laughter.] 

Senator LINCOLN. Well, as a farmer’s daughter, let me tell you, 

I hold that in great esteem, having worked the land myself. And 

I also believe the fact that Mr. Holmes knows the value of an honest day’s work, both as a lawyer and as a laborer, I think it is a 

good indication that he has the life experience required to administer the law in a fair and impartial manner regardless of who the 

litigants before him may be. 

Even though Mr. Holmes and I may not agree on every issue, 

that is not the only test I apply to determine an individual’s fitness 

for the Federal Judiciary. I evaluate judicial nominees based on 

their willingness to cooperate with the Senate during the confirmation process. Then in addition, I carefully consider a nominee’s 

skills, their experience, intellect, and ability to understand and 

apply established precedent. 

Fundamentally, I am very interested in knowing that a nominee 

can fulfill his responsibility under the Constitution to apply the law 

fairly, without political favor or bias. Having visited with Mr. 

Holmes in my office extensively, I am satisfied that Mr. Holmes 

has met that standard. 

In closing, I want to thank Chairman Hatch and Senator Leahy 

for working with Mr. Holmes and with me and my staff in preparing for this hearing today. I appreciate the consideration of this 

nominee and I encourage members of the Committee to support his 

confirmation and do it in an expeditious way, and I would like to 

take this opportunity to congratulate Mr. Holmes and his family 

for such much in terms of the achievements they have already 

755

made and the many ways I know that they will make all Arkansans very proud. Thank you, Mr. Chairman. 

Senator CORNYN. Thank you very much, Senator Lincoln. 

We would now be delighted to hear from the junior Senator from 

Arkansas, Senator Pryor. 

[Laughter.] 

PRESENTATION OF J. LEON HOLMES, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, 

BY HON. MARK PRYOR, A U.S. SENATOR FROM THE STATE OF 

ARKANSAS 

Senator PRYOR. Thank you, Mr. Chairman. It is an honor for me 

to be here today and introduce to the Committee Leon Holmes. 

One thing I have to disclose on the front end is that I have 

known Mr. Holmes since 1986, when I was a summer law clerk at 

his law firm of Wright, Lindsey and Jennings in Little Rock. After 

I graduated from law school, I joined that firm as an associate and 

he and I worked together there until he left a year or two later. 

I consider him a friend. He has gained the reputation in the last 

several years as being one of the finest lawyers in Arkansas and 

I am very, very proud of his career and very proud to have watched 

him develop and grow as a person and as a lawyer over the years. 

There is no question in my mind that Leon is very qualified for 

this position. Also, I have no question and no doubt about the fact 

that he will be fair and impartial. I have talked to a number of 

lawyers in Arkansas. They are very pleased with President Bush’s 

selection here. There are a lot of lawyers and a lot of people in the 

State that may not agree with him completely on some issues, but 

they certainly feel like he is qualified to be on the bench, he will 

set his personal feelings aside, and he will administer justice fairly 

and impartially. 

Whenever you talk to lawyers in Arkansas about Leon Holmes, 

there is one word that keeps coming up. First, they always say how 

smart he is and how hard he works and just what a decent human 

being he is. But the one word that keeps coming up is ‘‘integrity,’’ 

and he has it, and I am very proud that President Bush has nominated him and I am proud to support his nomination today. Thank 

you. 

Senator CORNYN. Thank you, Senator Pryor, and thank you, Senator Lincoln. We are glad to have you here today. 

Chairman Hatch, who was not able to be here, does have a written statement for the record which will be entered in the record, 

without objection, as does Senator Grassley supporting Charles 

Lettow. Senator DeWine has a statement supporting Susan 

Braden. Senator Hutchison has a written statement concerning 

Judge Edward Prado and Susan Braden, as well. It is without objection, each of those will be entered in the record. 

PRESENTATION OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. JOHN 

CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. I am happy that Chairman Hatch has asked 

me if I could help fill in today to chair this proceeding for many 

reasons, but especially because of my admiration for and support 

756

for President Bush’s nomination of Edward Prado to the U.S. Court 

of Appeals. 

I have known Ed and Maria and their son, Edward, for many 

years, since we are natives of San Antonio, Texas, and I can say 

that in the years that Ed Prado has served on the bench, first as 

a State District Court judge and in recent years as a United States 

District Court judge, he is an exceptional jurist and I am confident 

he will continue to serve with great distinction on the Fifth Circuit 

Court of Appeals. 

There are actually three vacancies on the Fifth Circuit, and two 

vacancies from Texas, alone. President Bush has nominated Priscilla Owen to fill one of the others and her nomination was acted 

on favorably by the entire Judiciary Committee this morning and 

will now be reported to the floor. 

The Judicial Conference has designated both of these vacancies 

on the Fifth Circuit as judicial emergencies. The American Bar Association, which has sometimes been referred to as the gold standard, has unanimously rated Judge Prado ‘‘well qualified,’’ a rating 

that he is certainly deserving of. 

So I look forward to today’s hearing and my hope is that Judge 

Prado’s nomination will be acted on favorably not only by the entire Judiciary Committee, but then he will be swiftly confirmed and 

will be serving soon on the Fifth Circuit Court of Appeals. 

Prior to his service, or, I should say, after he served on the State 

District Court bench, Ed Prado served as a public defender in the 

Western District of Texas and then as U.S. Attorney from 1981 to 

1984. He is a graduate of the University of Texas, receiving both 

his undergraduate and law degrees there, and started his career as 

an Assistant District Attorney in Bexar County, of which San Antonio is the county seat, and also served in the U.S. Army Reserves 

from 1972 to 1987. 

Throughout his two decades of service, both to the State of Texas 

and to the nation while in the Federal system, Judge Prado has 

served with compassion, respect for the law and for the lawyers 

and litigants who come before him, and, I might add, with good 

humor, something he is especially noted for. His courtroom demeanor not only has served to help put litigants, witnesses, and jurors at ease, which is an important characteristic of a trial judge, 

but it has not detracted from the appropriate seriousness of the 

proceedings in which he has presided. 

Those same characteristics, each of those characteristics, I am 

confident, would serve him well in his new role in the Federal Judiciary on the Fifth Circuit. Obviously, he would be interacting not 

only with counsel, but with his colleagues on the court and with 

others who come in contact with the court, should he be confirmed. 

I urge all the members of this Committee to give Judge Prado 

favorable consideration. 

At this point, I am going to withhold any further sort of general 

statement and ask the ranking member, Senator Leahy, to make 

any remarks that he may wish to make. Senator Leahy? 

757

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. We kind of have to 

be here, but our colleagues wanted to leave, so I wanted to give 

them a chance to speak first. 

This is our sixth Judiciary Committee hearing for the 29th judicial nominee held in the last 2 months. We have moved expeditiously. We have confirmed 11 judicial nominees, a couple more 

next week, which will bring us to about 15. I commend my colleagues on the other side of the aisle, because I remember the last 

time the Republicans were in the majority in the first session of a 

Congress, they didn’t confirm 15 judges until September. In fact, 

they didn’t have the sixth hearing until the end of October. It is 

probably coincidence that there was a Democratic President at that 

time and that is why it took until September to get 15 judges, a 

Republican President now, and I just mention that for whatever it 

is worth. 

I am pleased to see a new nominee from Texas to the Fifth Circuit, Judge Prado, and I have read with a great deal of interest his 

background, especially a couple of the trials he held. It has been 

a long time since we have had a Latino nominee to the Fifth Circuit. I think it was Chairman Biden who had the last nomination, 

and that was for Judge Benavides 9 years ago. 

Of course, President Clinton did nominate two talented Hispanic 

nominees to vacancies in the Fifth Circuit, Enrique Moreno and 

Judge Jorge Rangel, and you were referring to the ABA. They had 

the highest possible ratings, but it wasn’t that they got voted down, 

they just never had a hearing. They never had a vote, never had 

a hearing. Actually, there was a third nominee of President Clinton’s to the Fifth Circuit, Alston Johnson of Louisiana, with strong 

support of both his home State Senators, but he was never allowed 

to have a hearing, either. 

I mention this because sometimes there is a question of how 

hearings go. None of these Fifth Circuit nominees were ever allowed to have hearings. There are a lot of others. Ricardo Morado 

was never given a hearing, Christine Arguello another. Judge Richard Paez, Sonia Sotomayor, and Hilda Tagle were held up. 

We have tried to do different here. In fact, in 17 months when 

I was Chairman, we whipped through about 100 judges, setting an 

all-time record, an all-time record at least during the last two 

Presidencies. 

So I congratulate you, Judge Prado and the others. Judge Ruben 

Castillo, who is a U.S. District Court judge in Illinois and a member of the Sentencing Commission, speaks very highly of you, and 

he came in and told me that. I have a high regard for him, so I 

was pleased with that. The Congressional Hispanic Caucus is impressed with you, sent the Committee a letter supporting your confirmation. 

Then we have the three District Court nominees, Richard Bennett, Dee Drell, and Leon Holmes. Mr. Holmes’ record does leave 

me with some concern, and I will submit a number of questions for 

the record. I know it was, Mr. Chairman, when your party controlled this Committee during the Clinton Presidency, we were told 

that if you had somebody with a record of activism like Mr. 

758

Holmes, that they would not be allowed to have a hearing, and 

your side was always very consistent on that. They didn’t. 

I take that back. There was one of Senator Specter’s former aides 

who said she was an activist, Mary McLaughlin, and made her 

really fight to get out of Committee. But then, of course, an anonymous hold was put on by your side, so she was never allowed a 

vote. Apparently, it appeared that in private practice in a firm in 

Philadelphia where they handled pro bono cases, she dared to handle one involving choice issues. I don’t think anybody is going to 

do that on Mr. Holmes, but I am sure we will be told if we do that 

we are resorting to inflammatory rhetoric. 

I mention this because there seems to be very, very much of a 

double standard. We have two more of this President’s nominees to 

the Court of Federal Claims. As I explained at our last hearing, appointments to this court have—I have been here with six Presidents—have always had a tradition of bipartisan cooperation. Federal Claims have had a certain number of Democrats, a certain 

number of Republicans. The first time—I have been here with 

President Ford, President Carter, President Reagan, former President Bush, President Clinton, now this President Bush. 

All the other Presidents always followed what had been the practice for Presidents long before I came here of having that accommodation and compromise, both parties. This has not been here. For 

more than 2 years, Republicans blocked President Clinton’s appointment, Larry Baskir, until a compromise could be reached. 

They refused to give him a hearing, refused to allow any other vacancies to be filled until the administration promised to keep conservative Judge Loren Smith as the Chief Judge. 

Finally, Senator Hatch agreed to allow President Clinton’s nominees to have hearings and votes if the administration named a staff 

member of his to the court. Shortly after President George Bush 

was inaugurated, he removed the court’s chief judge and installed 

Senator Hatch’s staff member as the new and current chief judge. 

It may be fine and all that, but it is different than the way it was 

done. 

Last fall, the Democrats were in the majority. We took the exceptional action of moving the nomination of Larry Block, another 

staff member for Senator Hatch, to the Court of Federal Claims at 

the request of the ranking Republican, even though it was a turn 

for a Democrat. We thought we would have some kind of bipartisan 

fairness. We didn’t get it. In fact, Judge Sarah Wilson, who was 

serving with distinction on the Court of Federal Claims, well respected, talented lawyer, graduate from Columbia and so on, was 

bounced out by the President and Senate Republicans refused to 

accommodate a request to consider her nomination for a continued 

position there. 

I say this because we see the same thing with respect to the Sentencing Commission, Parole Commission, and others, and I worry 

that we are allowing that kind of accommodation, the kind of bipartisanship that usually moves things along very well, something I 

tried to do by setting a record, I don’t think during the 6 years that 

the Republicans controlled this Committee and President Clinton 

was there, I don’t think there was ever a time in 17 months when 

they moved as many judges as I did for President Bush. They cerVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00772 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.002 SJUD4 PsN: CMORC
759

tainly didn’t for the 17 months prior to me taking over. We thought 

there would be some recompense, but there has not been. 

I will point out what Senator Sessions, who is here, and Senator 

Grassley have argued, that vacancies on courts such as the D.C. 

Circuit remain open due to the enormous costs that are involved 

in filling that position. 

Senator SESSIONS. That still may not need to be fully filled. 

Senator LEAHY. I believe their report was that it costs about $1 

million per judge. The Washington Post wrote today the Court of 

Federal Claims should be eliminated altogether. They do have a 

case load that is about an eighth that of the District Court. 

So I just mention that. It is funny how some of these things that 

are raised, depending upon who is in the White House, suddenly 

change. I would urge the White House and Chairman Hatch to 

work with us to assemble the type of bipartisan panel that Senator 

Hatch helped assemble in 1997 and 1998 when President Clinton 

was there to fill the remaining vacancies that showed balance. 

I am hopeful by nature. In my faith, we always believe in redemption. In this Lenten season, I just pray for such redemption, 

Mr. Chairman. Now that the white-haired group have taken over 

the thing, I will leave you to your own devices, but I will submit 

a number of questions for the record. 

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

Senator CORNYN. Thank you, Senator Leahy. 

I want to recognize Senator Sessions in just a moment, but your 

comments do provoke a few thoughts of mine that are not new— 

Senator LEAHY. I thought they might. 

Senator CORNYN. —not new to you, since we have discussed 

them previously. I must tell you that for somebody who is new to 

this institution, but somebody who has been in public service before 

at the State and local level, I really think that the judicial confirmation process needs some serious work. I think we need a fresh 

start. 

I do not see that we are doing the job that we should be doing 

for the American people in a bipartisan way by pointing to past 

grievances on both sides, and I realize that for every one that Republicans might point to, Democrats would point to some that they 

perceive as being wrong. I really would not—and I am sure it goes 

both ways—I would not really want to make any judgment about 

that because, frankly, I think there is nothing that I could say or 

that anybody else could say that would probably convince either 

side that they are wrong. 

All I would say is that as somebody who is new to the Senate 

and somebody who is an eternal optimist, as you are—I think you 

have to be an optimist to be in public life today because you have 

to look for opportunities toward the future and hope rather than 

get bogged down into the sins of the past—that we could, on a bipartisan way, come up with some process that would be a tremendous improvement over the current judicial confirmation process. 

I think the depths to which the process has sunk at this point 

is really one that does not reflect well on this institution. I don’t 

think it serves the interests of the American people well. I think 

it also does not serve the people who are nominated by the PresiVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00773 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.002 SJUD4 PsN: CMORC
760

dent, whether they be a Republican or a Democrat office holder, 

well. I think it probably discourages people who are nominated or 

who might be nominated to serve in these important positions 

when their nominations are left pending for so long or when, as 

you point out, they don’t get a vote, an up-or-down vote either in 

the Committee or, as we see now, on the Senate floor in the case 

of Miguel Estrada. 

I wish, and this is maybe just an expression of my hopefulness 

and my optimism, that we can look beyond what has happened in 

the past and look forward and try to find a way that we can do 

the job that we have been elected to do here in the Senate better 

than we have done in the past. 

I understand, since you have been here longer than I have, much 

longer, you have a knowledge and an experience that I do not have 

in terms of how the process has worked in the past, but I would, 

rather than look to the past, I would look to the future as an opportunity to perhaps break with that past to the extent that this process has not served the American people or the United States Senate very well. 

Senator LEAHY. Mr. Chairman, if I could just respond to that 

very briefly, the Senator from Texas comes from a great State. He 

has one of the finest backgrounds of any Senator here, having 

served in all three branches of government and having done that 

with distinction. I mean that very seriously and I think he is a welcome addition to the Senate and improves the gene pool to the extent that we have that. And again, I mean that very seriously. 

I take to heart what he has said. I find myself in agreement with 

almost all of it, or probably all of it. The only thing I would look 

to for the past is it has been my experience, and my experience 

with five of the last six Presidents of both parties, that there was 

always an effort, a real effort on the part of the White House to 

work with both parties in the Senate when it came to judicial 

nominations. 

In talking when I was first here with Senators, again from both 

parties, who had been here at that time a long time, they told me 

that had always been their experience. At that time, when I was 

first here at the age of 34, some of the much older ones at that 

time had served in the time of President Truman and said that 

through all those Presidents, Truman, Eisenhower, Kennedy, Johnson, Nixon, there had always been this effort on judicial nominations. 

I could say honestly that this White House, there has not been 

that effort, and I think that if there was, I think that there would 

be, certainly among the Senators in both parties who care, as the 

Senator from Texas obviously does, there would be a response to 

it in such a way that most of these problems would not exist, and 

I have discussed this with a number of senior members of the Senator’s party as well as senior members of my party who are no 

longer here, who have just observed it from the outside. They all 

feel the same way. 

I pass that on because I share his hope that that may change, 

but it is a change that has to come from both ends of Pennsylvania 

Avenue. It can’t be simply a case of dictating. The Constitution 

does say ‘‘advise and consent,’’ not ‘‘advise and rubber stamp.’’ I 

761

think it could be better, especially as I find with our personal 

friendships. The Senator Alabama, who is here, and I are not ideological soul mates, but time and time again, we have accommodated each other on things of interest to each other because we realize that life has to go on. 

I pass that on. We are waiting to talk to these nominees, and I 

would be glad to work with the Senator from Texas in the future 

on this. 

Senator CORNYN. Thank you, Senator Leahy. I appreciate that. 

I will take you up on that. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Senator Leahy, I would nominate Judge 

Cornyn. Maybe we can nominate Judge Cornyn and find him a 

partner and lead us out of this thicket, smooth over some of the 

difficulties we have had. 

Senator LEAHY. If you didn’t have white hair before, you would 

after that. 

[Laughter.] 

Senator SESSIONS. I would just like to say in brief response that 

in President Clinton’s administration, there were 377 judges confirmed, only one voted down. None were ever filibustered on the 

floor. None were ever voted down in Committee on a party-line 

vote. And when he left office, there were only 41 nominees left 

pending unconfirmed. When former President Bush left office and 

the Democrats controlled the Senate, there were 54 nominees 

unconfirmed. 

I think the record is—there has been far too much criticism of 

the Republican record on confirmation of President Clinton’s 

judges. The numbers do not justify that. But we can discuss that, 

and maybe it is time for us to see if we can reach some more harmony. Judge Cornyn, I nominate you to maybe lead us into a more 

happy day. 

Senator CORNYN. Thank you for your vote of confidence, Senator 

Sessions. I appreciate that. It is my hope that we can do better 

than we have in the past. 

The Committee will now hear from Judge Edward Prado of San 

Antonio, who has been nominated to the U.S. Circuit Court for the 

Fifth Circuit. Judge Prado, if you come forward, and if you would 

please raise your right hand before you sit down so that I can administer the oath. 

Do you swear that in the testimony you are about to give before 

the Committee, you will tell the truth, the whole truth, and nothing but the truth, so help you, God? 

Judge PRADO. I do. 

Senator CORNYN. Thank you. Please have a seat. 

Judge Prado, if you would like to give an opening statement or 

introduce perhaps your better half or any other friends or supporters you have here with you, please feel free to do so. 

762

STATEMENT OF EDWARD C. PRADO, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE FIFTH CIRCUIT 

Judge PRADO. Thank you, Senator, and thank you for the opportunity—thank the Committee for the opportunity of accommodating 

us today and hearing us. I know that the Senate has a very busy 

schedule this week, a hectic schedule, and I know I speak for the 

other nominees and we appreciate you taking the time to accommodate us and giving us the opportunity to appear before the Committee today. 

With me today is my wife of 29-and-a-half years, my best friend, 

the judge at home. She is the one that wears the robe, Maria 

Prado. Some dear friends from the Administrative Office of the 

Courts, the Chief of the Defender Services Division of the Administrative Office of the Court, Ted Lidz, two of my dear friends that 

are in that office with him, Merrill Friedman and Dick Wolfe, and 

also from the Administrative Office, Richard Jaffee is here and I 

appreciate them coming over. 

I would like to also recognize our son, who is not here today. He 

is in college and could not be here, Edward. He is here in spirit. 

Hopefully, he is hitting the books and studying, as well. 

Also, my parents who could not be here. My father, who is 87 

years old, my Little League coach, my soccer coach, disabled veteran from World War II and past President of his DFW Post, and 

up until last year, he was still driving to the bingos and helping 

run the bingos at his DFW Post every night. My mother, who is 

84. She was my Den Mother when I was a Cub Scout, was PTA 

President when I was in elementary school, was PTA President 

when I was in high school. So I would like to recognize my parents 

who have done a lot for me and I appreciate it. 

Senator CORNYN. Thank you, Judge Prado. 

[The biographical information of Judge Prado follows:]

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Senator CORNYN. Since you and I know each other very well and 

have for, as best I can figure, about the last 23 years— 

Judge PRADO. I won’t tell on you if you won’t tell on me. 

[Laughter.] 

Senator CORNYN. I want to recognize Senator Sessions, I guess, 

for any questions he may have at this point and I will reserve. 

Judge PRADO. Senator Sessions and I also go back a long way. 

We were part of the Department of Justice and we were U.S. Attorneys in our respective divisions some time back. 

Senator CORNYN. That is what I hear, so he may have some 

questions for you. 

Senator SESSIONS. Judge Prado, it is a delight to see you in this 

position. It was all of us in the U.S. Attorney team who were so 

happy when you were appointed to the District bench. I can say 

without hesitation, Senator Cornyn, that there were none of the 94 

United States Attorneys better liked and more respected than 

Judge Prado and it was a real day of celebration when he ascended 

to the bench and left the pit of the United States Attorney’s Office. 

He did a great job as United States Attorney and I really—he was 

well known for that. So I salute you and congratulate you, Judge. 

I notice you have written about the courtroom and technology. I 

go back to my old courtroom in Alabama now and they have got 

it wired and Assistant United States Attorneys are using all kinds 

of things. Do you think that is helpful, and what can we do to improve technology in the courtroom? 

Judge PRADO. I am fortunate enough that the Administrative Office of the U.S. Courts has its national training center for judges 

in San Antonio and Federal judges from around the country come 

to San Antonio for computer training. As part of that program, 

they were able to put all sorts of technology in my courtroom. We 

have real-time instant transcript for the lawyers, videotaping ability, videoconferencing ability, Internet access and computers for the 

lawyers. It has really made trials easier, quicker. The juries understand. The lawyers are able to make their presentations through 

use of the technology and get their points across a lot easier and 

I think it has really helped the justice system having all this technology that makes it easier for everyone. 

Senator SESSIONS. Judge, one thing that I think is important to 

the democratic process, since you will be, I am confident, receiving 

a lifetime appointment, will not be subject to the voters or the public in any way, do you have a philosophy that properly respects the 

democratic branches of government that pass the laws and make 

the laws? I know Judge Paez was brought up. I was concerned 

about that. I voted for cloture and voted against his confirmation, 

but he had written, well, judges have a right to act when the legislature fails to act. It is incumbent on judges to act, he wrote, and 

that troubled me. 

Do you think, Judge, that the judicial branch is bound to the orthodox interpretation of language in statutes and that they should 

not reach beyond that to impose personal views through the court? 

Judge PRADO. Senator, the law means what it says. It should be 

clear on its face what it means. We as judges are called upon to 

interpret the law. We are not there to set our judgment as to what 

is right or wrong. The laws are there to decide what is right and 

788

wrong and we are not there to clean up everything that we perceive as being wrong. That is not our responsibility. Our responsibility is to interpret the law as best we can that has been passed 

by the Senate, signed off by the President. Two branches of government had decided this is the law and we are, as judges, are bound 

to follow that law unless it is clear to us that for some reason that 

law is unconstitutional and violates the Constitution. 

I have always given due deference to laws passed by Congress 

and assumed that when the House of Representatives, the Senate, 

and the President have said that this is the law of the country, 

that myself as a District judge should give due deference to that 

law, and unless it is clear on its face to me that I am convinced 

that it is unconstitutional, I will follow the law as it was intended 

to be followed by Congress and the President. 

Senator SESSIONS. Thank you, and I think that is correct. In fact, 

I believe we are in some ways maybe having more of a confirmation and a deeper understanding of that, maybe not in this Senate, 

but I believe among the Bar as a whole, people are realizing that 

a lifetime-appointed judge must be neutral on political issues and 

it must be an arbiter of the law as written, and that does mean 

sometimes you may have to declare a statute unconstitutional. If 

it violates the Constitution, that is following the law. We do need 

to show restraint, I think. 

One more question. You have been a District judge now for a 

number of years. Do you have any thoughts about being a Circuit 

judge and some things you might be different than you have been 

subjected to over the years? 

Judge PRADO. I think I will be more sympathetic and understanding of what took place at the District Court level, and I think 

that is what I bring to the Circuit Court. Nineteen years ago—19 

years and one week ago, I had my confirmation hearing before this 

Committee for my District Court bench, and so it has been 19 years 

that I have sat there and I think I bring the practical experience 

of a trial judge to the Circuit Court and that will be invaluable experience that enables me to better understand what took place on 

the District Court level to determine if it was appropriate or not, 

and I think that experience that I have is going to be invaluable 

to me on the Circuit Court. 

Senator SESSIONS. I think it will, too. Judge, congratulations. I 

think your integrity, your work ethic, your commitment to America 

are going to stand you in good stead. I know you are going to be 

a great judge on the Court of Appeals and we are proud of you. 

Judge PRADO. Thank you. 

Senator CORNYN. Thank you, Senator Sessions. 

Judge Prado, I, of course, know you appreciate the important distinction between your role as a trial judge and the role that you 

will now serve when confirmed as an appellate judge. I have heard 

appellate judge defined as a person who hides in the hills while the 

battle rages below, and when it is over, swoops down to shoot the 

wounded. 

[Laughter.] 

Senator CORNYN. Seriously, how do you regard the difference in 

the way that you will approach your job as a District judge with 

789

the collegial decision making process on an appellate court, where 

you will be a member of a panel, perhaps, in an en banc court? 

Judge PRADO. It will be different, but I think my experience in 

different avenues is going to be invaluable. I talked with Senator 

Sessions about my experience on the District Court level, but having been an assistant Federal public defender and attempting to 

defend people in Federal Court was a humbling experience. Then 

running the U.S. Attorney’s Office and seeing it from the avenue 

was very valuable. The short time I was on the District Court 

bench, the short time I was an Assistant District Attorney on the 

county level, bringing all those avenues of experience to the Circuit 

Court, I think is going to be invaluable. 

It will be a different job, dealing with—trying to work with other 

judges in reaching a decision. You won’t be seeing as many people. 

It certainly will be a more isolated position. But I am looking forward to the challenge of doing something different and using all 

this experience I have to try to make as good a decision as I can 

on the cases that will be coming before me as a Circuit judge. 

Senator CORNYN. Thank you, Judge. I don’t have any more questions myself personally, but as you can imagine at this time in our 

Nation’s history, there is a lot going on here in Washington and 

particular here at the U.S. Senate. I know there are other members 

of the Committee who would like to be here today that are unavoidably absent who may want to submit questions to you in writing, and so the record will be left open for that process. 

But unless we have any further questions today from Senator 

Sessions, then we thank you for being here and would be glad to 

excuse you at this time. 

Judge PRADO. Thank you. 

Senator SESSIONS. Congratulations. 

Senator CORNYN. Now, the Committee will hear from Richard D. 

Bennett, nominated to be the United States District Judge for the 

District of Maryland; Dee D. Drell, nominated to be United States 

District Judge for the Western District of Louisiana, which is within the Fifth Circuit; J. Leon Holmes, nominated to be U.S. District 

Court Judge for the Eastern District of Arkansas; and Susan G. 

Braden and Charles F. Lettow, who have both been nominated to 

serve as judge on the U.S. Court of Federal Claims. 

Before we get started, ladies and gentlemen, if you would please 

raise your right hand so you can be sworn. 

Do each of you swear that the testimony you are about to give 

before this Committee is the truth, the whole truth, and nothing 

but the truth, so help you, God? 

Mr. BENNETT. I do. 

Mr. DRELL. I do. 

Mr. HOLMES. I do. 

Ms. BRADEN. I do. 

Mr. LETTOW. I do. 

Senator CORNYN. Thank you very much. Please, have a seat. 

If any of you would like to give an opening statement or introduce any family member or friends who have come here to support 

you here at this hearing, I know that joining the bench, ascending 

to the bench, as sometimes people refer to it, is a momentous event 

in the career of any lawyer and certainly I am glad that those of 

790

you who have been able to do so have brought friends and family 

with you to observe this hearing and to celebrate this important 

milestone in your career. 

I would like to go ahead and first recognize Mr. Bennett for that 

purpose, for any statement you might have or any introductions 

you might like to make. 

STATEMENT OF RICHARD D. BENNETT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF MARYLAND 

Mr. BENNETT. Thank you, Mr. Chairman. I would first like to 

thank President Bush for nominating me for this position and I 

certainly want to thank the strong support I have received here 

today from my two home State U.S. Senators, Senator Paul Sarbanes and Senator Barbara Mikulski. I am, indeed, humbled by 

their comments. 

My family, due to the confusion between yesterday and today, is 

not able to be here. My wife, Jane, daughter Ridgely, daughter 

Lizzy, and son Craig cannot be here. Particularly Craig is disappointed because he was able to cut classes yesterday for college, 

but I said 1 day is enough, so he is back up at college. My sister, 

Jackie, and particularly my mother, Mary Lou Bennett, to whom 

Senator Mikulski made reference earlier today. Today is her 85th 

birthday, so I will be with her later and would like to pay tribute 

to my mother on her 85th birthday. 

I thank you, Mr. Chairman. 

Senator CORNYN. Very good. Thank you, Mr. Bennett. 

Mr. Drell? 

STATEMENT OF DEE D. DRELL, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA 

Mr. DRELL. Thank you, Senator. I want to, first of all, acknowledge the presence of my wonderful wife, Susie, who is right behind 

me here, literally standing or sitting behind me on purpose. She 

and I have been married for 33 years and we have three great children who could not be here. We had some friends here, as well, but 

they had to unfortunately fly home today. 

I have three wonderful children, as I said. Brad, my won, is an 

attorney, as well. He is back home holding down the fort at the 

firm, fielding my phone calls. I have another child who is in the—

at the University of Texas in Austin, I might add, and my daughter 

graduated from there and is actually doing graduate work at LSU. 

So we have lots of connections there. 

I want to also express my gratitude to the President for the nomination, for the Congressional—to the Louisiana Congressional Delegation for its support. 

And I want to just say one other thing, and that is that I really—

I had occasion to visit some folks ta a newspaper not too many 

moons ago and they asked me my impressions about the process 

for being nominated as a District judge, and the first words I could 

think of were that I was very pleased that the process really had 

a lot of integrity, and I mean that sincerely. I have been very 

pleased to see the manner in which I have been dealt with through 

certainly kindness, understanding, and I am most appreciative of 

being here today. Thank you. 

791

Senator CORNYN. Thank you, Mr. Drell. 

You and Mr. Bennett have both alluded to the fact, I believe, 

that we were supposed to proceed at a different time for this hearing and had to reschedule because of what is affectionately called 

the vote-a-rama during the budget resolution at which the Senators 

were required to vote every ten minutes on numerous amendments 

offered to the budget resolution, and so we appreciate your understanding of that and your flexibility. 

One of the things I have had to learn, being new to the Senate, 

is that once you become a member of the Senate, you no longer 

have any control whatsoever over your schedule, and so you are experiencing perhaps what Senators experience on a daily basis and 

it can be a little disorienting at times, but we appreciate your patience and your understanding on behalf of all your families and 

those who would have loved to have been here but cannot be here 

now. 

Mr. DRELL. Thank you. 

Senator CORNYN. Mr. Holmes? 

STATEMENT OF J. LEON HOLMES, NOMINEE TO BE DISTRICT 

COURT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS 

Mr. HOLMES. Thank you, Senator. I want to introduce my wife 

of 31 years, Susan, who is with me here. Two of our children are 

here, Hannah and J. Frank. Also with me is my secretary from my 

law firm, Lisa Cox, and Lisa tells me that she has met you, Senator Cornyn, when she worked for John Casey, and she refers to 

you as Justice Cornyn, so— 

Senator CORNYN. I am known by many names and titles. 

Mr. HOLMES. It is always with great respect and affection in the 

way that you—in the kind and respectful way that you introduced 

yourself to her when you met her in John Casey’s office when she 

was employed there. 

I do have a son who is married and has three children and lives 

in Michigan. They could not come. I have a son who is married and 

has two children and lives in the great State of Wisconsin. I have 

a daughter who is in college and as we speak is in Austria studying, I hope. 

I want to thank Senator Tim Hutchinson for submitting my 

name on a list to the President of the United States for consideration for this position. I want to thank the President for nominating me. And I do know that before the nomination, the President consulted with Senator Lincoln and with then Senator-elect 

Pryor and spoke with both of them before I was nominated, and it 

was before Senator Pryor was sworn in, and they both told him 

that they would support me and I very much appreciate their gracious and enthusiastic support through this process and the words 

that they said for me today. 

Senator CORNYN. Thank you. 

Ms. Braden? 

STATEMENT OF SUSAN G. BRADEN, NOMINEE TO BE JUDGE 

FOR THE COURT OF FEDERAL CLAIMS 

Ms. BRADEN. I would like to thank the President for this great 

honor— 

792

Senator CORNYN. There is a little button there you need to press. 

There you go. 

Ms. BRADEN. I would like to thank the President for the honor 

of nomination to this interesting and very special court, and I think 

one that will be even more important to the country in the aftermath of the war and in the war on terrorism. 

I would like to mention, I was nominated for the seat of Roger 

Anderwalt, who was a colleague of mine in the Justice Department 

who passed away 2 years ago. We grew up together. We were 

friends. We had—our children were in school together. They were 

in bar or bat mitzvah classes together. It was very special to me 

to be nominated for Roger’s seat. I will have a lot of work to do 

and big shoes to fill if I am fortunate enough to be confirmed 

through this process. 

I am very grateful to Senator Sessions and Senator Hutchinson, 

Senator Thurmond, who is not here, Senator Bingaman, all of 

which wrote letters to help me advance to become nominated by 

the President. Senator Cornyn, obviously, you have been a supporter, and all of their staffs. You know, the truth of the matter 

is, without them, all of this would have never been possible for me. 

I have had so many people who have been very helpful and I am 

very grateful for that. 

I would like to introduce my husband who is with me, Tom Susman, who is the Bruce Willis look-alike over here. 

[Laughter.] 

Ms. BRADEN. Tommy is going to have to leave because his daughter, Shana, is being—getting married, and he is going to run out 

of the hearing as soon as this is finished, I think, to get an airplane 

to see her. Our daughter, Daley Susman, is a freshman—a sophomore—excuse me, a junior at Yale, and she is currently in Madrid 

studying at NYU abroad for this semester and I am grateful that 

she is there and safe. And I am very grateful for all of you to make 

this hearing possible today and the great folks at the Justice Department who helped us prepare. 

Senator CORNYN. Thank you very much. 

Mr. Lettow, because of my last name, I am sensitive to mispronouncing others’ last names and I hope I haven’t butchered yours. 

Would you pronounce it for me? 

STATEMENT OF CHARLES F. LETTOW, NOMINEE TO BE JUDGE 

FOR THE COURT OF FEDERAL CLAIMS 

Mr. LETTOW. Mr. Chairman, you have done just fine, in fact, perfectly. It is Lettow. 

Senator CORNYN. Lettow, okay. Very good. Thank you very much. 

please proceed with any statement or introductions you would like 

to make. 

Mr. LETTOW. Mr. Chairman, I am especially grateful for the 

hearing. I know it has been a difficult hearing for the members of 

the Committee and so on, but I am actually very, very grateful that 

we are able to appear before you today. I am especially appreciative of the support of Senator Bingaman. We have known each 

other a long time and have been friends throughout that time. I am 

also especially grateful for the support of Senator Grassley, because 

our families have known each other also for even longer. And I am 

793

very grateful, as well, for the support of the Virginia Senators, 

John Warner and Senator George Allen. 

It happens that I am lucky, living in the immediate area, to have 

most of my family here. I actually am fortunate enough to have a 

bride. We have been married not quite 40 years. It shows a little 

bit about my age, but in any—probably hers, too— 

Senator CORNYN. Your good judgment, no doubt. 

Mr. LETTOW. Well, it has all worked out very well. And my wife, 

Sue, is here, and most of our children are here, as well. 

Our daughter, who is a law professor in this city, had to teach 

class. She teaches criminal procedure, a favorite topic of hers, and 

has to teach this afternoon, so she is not here. 

Our eldest son, Carl, is here. He happens to be a litigator. I don’t 

know how he got that particular profession in mind, but he is a litigator with a firm in the Virginia area. 

Our next son, John, is here. He is a scientist and engineer. John 

is accompanied by his wife, Phoebe, who is a graphic artist. They 

did not bring along their little son, Eli. That might have caused a 

little more disruption to the Committee than the Committee might 

want. 

And then, finally, our youngest son, Paul, who is in law school, 

but this happens to be his spring break, so he is in quite good 

shape. 

I also have been very fortunate in having had the same secretary 

for—I am going to say it, I am not sure she will appreciate it—29-

and-a-half years. Cheyenne Cashin is here, and she doesn’t look 

like we have been working together for that long, but she has been 

of great help to me and my colleagues. 

And I am also very lucky in having one of my colleagues here 

with whom I have worked for many years, Matthew Slater, and he 

is a fellow who has experience in all three branches of government 

and, in fact, served the last administration as the principal Deputy 

General Counsel of the Air Force, but has been a fellow with whom 

I have litigated cases for a long time. 

Senator CORNYN. Thank you very much. 

I just have really one question for each of you, and as I said, you 

have already been through a very extensive process, FBI background investigation, thorough vetting by the Justice Department 

obviously before the President chose to nominate you. There has 

been a thorough investigation of your qualifications and experience 

and I commend each one of you for meriting the confidence of the 

President for these important positions that you have been nominated to fill. 

I can tell you from personal experience that changing roles from 

that of a practicing lawyer to that of a judge is, indeed, a transformation, certainly a transformation in attitude and approach because, of course, the role that you will play once confirmed is different from the role that you have performed in the past as a practitioner. 

But I would just like to ask each one of you to comment in turn 

on this question, really. As you know well, the role of judge in our 

Federal constitutional system is unique. The people choose their 

Representatives in Congress and the President and Vice President 

in large part because of their position on a variety of political 

794

issues, both large and small, and, of course, they are frequently 

controversial, the positions that candidates for Congress or the executive branch may take. 

Judges are different. Judges are selected for their legal skills and 

for their ability to set aside your personal views in order to interpret and apply the law as written by others. What can each of you 

do to assure this Committee that, if confirmed, you will be able to 

put aside any personal views you may have, whether they be political or just deeply held personal convictions, on any particular matter and interpret and apply the law as written by others, whether 

it be the acts of Congress or precedents of a higher court? 

Mr. Bennett, if you would start with that. 

Mr. BENNETT. Yes, Mr. Chairman. I just had the privilege of finishing reading David McCullough’s book John Adams and was 

greatly moved by the passages there with respect to Chief Justice 

Marshall and the ultimate impact of Marbury v. Madison and what 

is the judiciary stays out of the political fray and merely interprets 

the law. 

And having been a U.S. Attorney on one side of the aisle in the 

courtroom and then having been an active lawyer on the other side, 

having been a counsel to a Congressional Committee before, I have 

a strong respect for the judiciary and its role and that is not to be 

a super-legislature, and I don’t believe it is the role of a judge to 

aggressively try to impose his or her views, but merely to interpret 

the law, and indeed, to the extent that judges don’t do that, it 

throws the whole system out of kilter. 

So I think it is very important to observe the fact that people arrive to this Congress, a strong presumption of constitutionality 

should be given to all the laws passed by Congress and all the emotions that are brought to the floor of the Congress and it is merely 

the role of a judge to interpret the law and apply the law as best 

he or she can. 

Senator CORNYN. Thank you, Mr. Bennett. 

Mr. Drell? 

Mr. DRELL. Thank you, Mr. Chairman. What Mr. Bennett has 

said, of course, is correct, and interestingly, I come from the only 

what we call civil law State in the Union, Louisiana. Louisiana has 

always had the concept that the judge’s role was to interpret the 

law as written by the legislature. The legislature has been deemed 

from the earliest days as the ground bulwark from which the other 

part springs, and interpretation comes second. 

The role of a judge is indeed to put one’s personal business aside. 

The role of a judge is indeed to follow the law as is proclaimed by 

the legislature. It is not much different moving up to a Federal District Court in terms of the way I understand the role of a judge to 

be. It comes from that Louisiana background. 

So it is always—it is always possible, of course, for a judge to 

think about his or her personal feelings. The key is the ability to 

look at both sides of an issue, to be absolutely fair, to give the deference that is due to the statute, to the will of the legislature, if 

you will. And it is not that hard to do if you take your role and 

your duty and your oath seriously. So that is where I come down 

on it. 

Senator CORNYN. Thank you. 

795

Mr. Holmes, I would like to know whether you agree with the 

comments of Mr. Bennett and Mr. Drell, but I would also like to 

know, if you do agree, why in the world would you want to serve 

in a position where you would have to exercise restraint and you 

could not, if you were true to your convictions about what that role 

as a judge should be, how you could feel like you have done everything you could in order to perhaps achieve justice in any given 

case. 

Mr. HOLMES. Senator, thank you very much for the question and 

for giving me the opportunity to say something about that topic. 

Let me say that, first of all, I know it is going to be difficult for 

this Committee to assess that question, and I know it is a very important question. The judiciary, above all, needs to be impartial, 

and it needs to not only to be impartial, but also to appear impartial. 

And the question that you asked really relates to integrity. It 

really relates to how seriously do you take your oath to be a judge 

and the recognition of the difference between the role as a judge 

and the role as a lawyer, an advocate, the role as a citizen participating in the democratic process and advocating sometimes views 

that are controversial for the sake of what that particular individual believes to be creating a better and more just society. 

I have always taken my obligations very seriously. I believe that 

I have the reputation in Arkansas, as reflected by the support of 

my Senators and the support that they reflected—they said that I 

have from the Bar, of taking my obligation seriously. One of the 

obligations that we have as citizens is to participate in the democratic process and try to advance beliefs that we think will create 

a more just society, and I have taken that obligation as a citizen 

seriously. I have taken my obligations as a member of my church, 

as my faith, seriously, and all the other obligations that I have 

done as a lawyer, I have done that. 

I have represented the parents of staff members of both of my 

Senators, and so they know how seriously I take my obligation to 

represent my clients, and I will bring that same commitment to fulfill my obligations to the judiciary. I will honor my oath. I will set 

aside my personal views. And I will enforce the law as decided by 

the Congress, as interpreted by the Eighth Circuit Court of Appeals 

and the United States Supreme Court. 

And let me say on that, you asked us, what could we tell you 

that would—tell the Committee that would help show that we can 

set aside our personal views, and I want to tell you one thing and 

then I will pass on. But my uncle, my oldest—my mother’s oldest 

brother, Morris Greenwald, was a part-time policeman. When he 

was the age that I am now, he was murdered by prison escapees. 

My wife’s oldest uncle on our mother’s side was murdered by prison 

escapees. For the last 4 years, I have represented a man who has 

been twice convicted of killing a State policeman while he was an 

escapee for prison. I can and I will and I have set aside my personal views. 

Senator CORNYN. Thank you, Mr. Holmes. 

Ms. Braden? 

Ms. BRADEN. I think your question also relates to the earlier one 

that Senator Sessions asked in the prior panel, which is I underVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00809 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.002 SJUD4 PsN: CMORC
796

stand your respect for separation of powers. The court in which I 

have been nominated has even more restricted jurisdiction than my 

colleagues on the District Court. We have very limited jurisdiction. 

And it is also trial court. So it would be quite unusual for our 

court, at least, to have an opportunity to consider a constitutional 

question. Perhaps, we were thinking hypothetically, that perhaps 

in a tax case. But otherwise, simply, we don’t have jurisdiction. 

That is the answer to that question. 

Certainly, we have no question as trial judges to be other than 

totally obedient to the Supreme Court and our Circuit Court, which 

is the Federal Circuit. However, I must say that if I disagreed with 

a decision of the Federal Circuit in some respects, having total obedience for the case, I would probably take the time to put in a 

paragraph why I would differ, or perhaps because the court may 

reconsider the issue in a different case down the road and may find 

that perspective to be helpful. But in terms of the decision before 

you, I mean, it is not—it is a non-starter. I mean, it is a total obedience question. 

The last thing I was going to say was, you know, among the institutions in our government that share high public opinion is the 

bench, the judiciary and our Supreme Court. People in our country 

believe that our judicial system is fair and the responsibility for ensuring that that continues rests on our shoulders for the remainder 

of our generation to preserve that for our children. 

I would say that one final thing my—I have a relative who 

signed the Declaration of Independence, and so I guess it is something I do think about. He gave his fortune to the army, to General 

Washington, essentially, to support his troops, and died bankrupt 

because of it. And so I have to think about the fact that I was given 

this legacy, the freedom that I share today to be able to walk up 

and down the street in this city and to enjoy the privileges of freedom that we hope to bring to other nations. So I have got a job to 

ensure that the judicial branch continues that reputation in our 

country. 

Senator CORNYN. Mr. Lettow? 

Mr. LETTOW. I think, Mr. Chairman, there are at least three 

things that anyone who is offered or contemplated the task of being 

a Federal judge ought to keep in mind. The first, I think, is certainly to be not only fair and even-handed in addressing facts and 

the law, but to be perceived as such. That just goes without saying. 

Certainly, one’s own attitude and approach toward that has a lot 

to do with how the courtroom actually works, and Judge Prado, 

who was here earlier, is a very good example of that. I think he 

is sensitive to the people who are in his courtroom. 

The second thing is there has to be a sense of equal justice, that 

there is justice for each person individually that is equal. 

And third, there has to be a respect for separation of powers, as 

Ms. Braden said. I happened to be lucky enough to clerk for two 

people who believed quite strongly in separation of powers, Chief 

Justice Burger and Judge Dunaway on the Ninth Circuit, and, in 

fact, sorted through Chief Justice Burger’s jurisprudence in the 

context of administrative law in an article that I had written because he felt so strongly about it and adopted canons of construction that would enhance or ensure that that separation was mainVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 00810 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.002 SJUD4 PsN: CMORC
797

tained, and certainly the respect for Congressional enactments 

through plain meaning and the Chevron case, for example, in administrative construction, and I happened to be counsel, not lead 

counsel, but a counsel in the Chevron case, so I was particularly 

happy that that has been a lodestar for administrative law jurisprudence. Thank you. 

Senator CORNYN. Thank you very much. 

Senator Sessions? 

Senator SESSIONS. Thank you, Mr. Chairman. It is a delight to 

be with you. To all of you, I say congratulations. You have gone 

through, as Senator Cornyn said, reviewed by Senators and the Department of Justice and the President of the United States and the 

ABA, the FBI, and then the people on this Committee, and don’t 

think they don’t scour through everything. Sometimes, they don’t 

have to find anything, really, to cause a ruckus. But this time, you 

have cleared all of those hurdles. It is a thing to celebrate and I 

congratulate you for it. 

Richard Bennett, good to see you again. 

Mr. BENNETT. Good to see you again, Senator. 

Senator SESSIONS. You came in as United States Attorney at the 

end of my tenure, and Judge Prado came in at the beginning, and 

both of you are extraordinary members of that fine group of United 

States Attorneys. You had a terrific reputation. I know the ABA 

has given you the highest rating and I have the strong feeling, the 

support from your Senators, it speaks so well of you. 

Mr. BENNETT. Thank you, Senator. 

Senator SESSIONS. Susan Braden, it is good to see you. 

Ms. BRADEN. It is good to see you. 

Senator SESSIONS. I remember when you were battling for truth 

and justice for an Alabama corporation and I enjoyed talking with 

you about it and seeing your passion for the employees and everybody involved in that and tried to do something good, and it almost 

worked. I really admired you greatly for that. 

Mr. Chairman, I think these are fine nominees. You have asked 

an important question and they have answered it truthfully. Their 

backgrounds speak for themselves. I have no doubt that each of 

them will be tremendous members of the judiciary. 

Senator CORNYN. Thank you, Senator Sessions. 

I share your view about each of these nominees and am hopeful 

that they will be voted on favorably by the entire Judiciary Committee when we have that opportunity, hopefully very soon, and 

then will be referred to the floor for a vote of the entire Senate and 

hopefully confirmed to the important positions that you have been 

nominated to serve in. 

[The biographical information of Messrs. Bennett, Drell, Holmes, 

Ms. Braden, and Mr. Lettow follow.]

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Senator CORNYN. We will leave the record open until 5:00 p.m. 

on Wednesday, April 2, for any Senators who wish to submit written questions to any of the nominees appearing before the Committee this afternoon. 

With that, ladies and gentlemen, this hearing on judicial nominations is now adjourned. 

[Whereupon, at 4:37 p.m., the Committee was adjourned.] 

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

[Additional material is being retained in the Committee files.]

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90303.846
(991)

NOMINATIONS OF CAROLYN B. KUHL, OF 

CALIFORNIA, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT; CECILIA 

M. ALTONAGA, OF FLORIDA, NOMINEE TO 

BE DISTRICT JUDGE FOR THE SOUTHERN 

DISTRICT OF FLORIDA; AND PATRICIA A. 

MINALDI, OF LOUISIANA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA 

TUESDAY, APRIL 1, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., in room 

SD–226, Dirksen Senate Office, Hon. Orrin G. Hatch, Chairman of 

the Committee, presiding. 

Present: Senators Hatch, Sessions, Chambliss, Leahy, Kennedy, 

Feinstein, Schumer, and Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. All right, we will begin. 

It is a pleasure to welcome before the Committee this morning 

three exceptional nominees for the Federal bench. 

Our circuit nominee is Carolyn Kuhl, who has been nominated 

to fill a judicial emergency on the Ninth Circuit, which is the most 

notoriously liberal Federal court in the United States. This is the 

court that gave us the infamous Pledge of Allegiance case, which 

held that the Pledge of Allegiance is unconstitutional because it 

contains the word ‘‘God’’ in it. As a result, public school children 

in nine Western States and two territories that constitute the 

Ninth Circuit will be forbidden from pledging allegiance to the flag 

of the United States, even as their mothers and fathers, uncles and 

aunts, other relatives and friends are fighting in Iraq to preserve 

our National security and the ideals that we most treasure in this 

Nation. As my esteemed colleague Senator Schumer put it, this 

case is ‘‘way out of the mainstream on the left side.’’ 

Unfortunately, the Pledge of Allegiance case is not an anomaly. 

Just last month, the Ninth Circuit decided to ignore and distort 

controlling Supreme Court precedent in order to skew the playing 

field in favor of criminal defendants. The Court concluded that a 

992

key law prohibiting child pornography was unconstitutional as applied to certain criminal defendants. Amazingly, the panel handed 

down this ruling to a defendant who had knowingly and voluntarily 

pled guilty to violating the child pornography law with materials 

that traveled across State lines. As a result, child pornographers 

can flock to the Ninth Circuit to practice their trade unfettered by 

Federal criminal law. As the author of the PROTECT Act and the 

Comprehensive Child Protection Act of 2003—bills that will toughen laws against child pornography, child abuse, and child victimization—I shudder for the welfare of the millions of children who 

live in the Ninth Circuit. Decisions like these are the perfect examples for why our country needs good, constitutionalist judges on the 

Federal bench. 

The Ninth Circuit has also held in recent years that California’s 

so-called three-strikes law, which imposes life sentences on career 

criminals, was unconstitutional. It held that a prisoner who was 

convicted of making terroristic threats had a right to procreate 

through artificial insemination. This case, which became known as 

the procreation by FedEx case, was later reversed by an en banc 

panel of the Ninth Circuit, but just barely. Yet another gem from 

the Ninth Circuit held that prisoners have a constitutional right to 

pornography, which had been banned because inmates had used it 

to harass women guards. Fortunately, saner heads prevailed, and 

this case was reversed en banc. 

Plenty of Ninth Circuit Court opinions and decisions, however, 

are not corrected en banc, which has led to the Ninth Circuit holding the dubious distinction of having the highest and widest Supreme Court reversal rate in the country among Federal courts of 

appeals. Over the past 7 years, the Supreme Court has reversed an 

average of 80 to 90 percent of the Ninth Circuit cases it hears. Just 

last term, the Supreme Court reversed the Ninth Circuit in 15 of 

19 cases, 8 times unanimously. And so far in the current term, the 

Ninth Circuit has been reversed in 8 out of 11 cases. Three of these 

were unanimous summary reversals, which means that the Court 

simply reversed on the basis of the petition for certiorari, without 

asking for briefs or even oral arguments. 

This pattern of decisions, some of which can be described as 

downright wacky, and its high reversal rate has led to the perennial introduction of legislation seeking to split the Ninth Circuit, 

given that so many of its States seek to disassociate themselves 

from such inherently illogical rulings. 

I have taken the time to recite the state of affairs on the Ninth 

Circuit in brief because I think that it will benefit from the confirmation of such an esteemed and experienced jurist as Carolyn 

Kuhl, whose record demonstrates her commitment to following 

precedent and steering clear of judicial activism. At the same time, 

I want to make clear that I, for one, do not believe that the ideological composition of a court should have any determination on 

whether an otherwise qualified nominee should be confirmed. As I 

have said before on numerous occasions, I do not believe that ideology has any role, constitutional or otherwise, in the advice and 

consent process. 

I recognize, however, that some of my Democratic colleagues disagree with me. They place great importance on achieving what 

993

they have referred to as appropriate balance on a court in determining whether to vote to confirm a judicial nominee. So I know 

that they will find it interesting that of the 25 active judges on the 

Ninth Circuit, 17 of them were appointed by Democratic Presidents 

and 14 of them were appointed by President Clinton alone. In fact, 

four Clinton nominees to the Ninth Circuit were confirmed in 2000, 

a Presidential election year. Despite this record, only one of President Bush’s three nominees to the Ninth Circuit was confirmed in 

the last Congress. So much for achieving the so-called balance. And 

while we just confirmed Jay Bybee to the Ninth Circuit last month, 

it is high time that Carolyn Kuhl is afforded a hearing before this 

Committee. 

Judge Kuhl has an exemplary record that includes service as 

both a committed advocate and an impartial jurist. The American 

Bar Association has rated her well qualified for this position. Although the ABA used to be the gold standard as far as my Democratic colleagues were concerned, I am only half joking when I say 

that the ABA rating of well qualified seems to have become the 

kiss of death for President Bush’s judicial nominees. The two nominees blocked in Committee last year, Charles Pickering and Priscilla Owen, both received well qualified ratings, as did Miguel 

Estrada, whose nomination has been filibustered on the Senate 

floor now for nearly 2 months. Carolyn Kuhl deserves to fare better, and I certainly hope she does. 

I expect that we will hear a great deal about Judge Kuhl’s qualifications during our next panel of witnesses, so I want to focus on 

the widespread support for her nomination, because the ABA is not 

alone in its judgment that she is well qualified for the Ninth Circuit. 

Since 1995, Judge Kuhl has served as a judge on the Los Angeles 

County Superior Court. Nearly 100 of her fellow judges on that 

court have written to the Committee to voice their ardent support 

for her nomination. Here is what they have to say: ‘‘We are Republicans, Democrats, and Independents and have all had the opportunity to observe the leadership and demeanor of Judge Kuhl...We 

know she is a professional who administers justice without favor, 

without bias, and with an even hand. We believe her elevation to 

the Ninth Circuit Court of Appeals will bring credit to all of us and 

to the Senate that confirms her. As an appellate judge, she will 

serve the people of our country with distinction, as she has done 

as a trial judge.’’ 

Another letter came from the officers of the Litigation Section of 

the Los Angeles County Bar Association. With more than 3,000 

members, this is the largest voluntary bar association in the 

United States. They write, ‘‘By reputation and our personal experience, Judge Kuhl is extremely intelligent, hard-working and 

thoughtful. She gained the prestigious appointment as Supervising 

Judge of the Complex Courts after only a few years on the bench 

because of those traits. In addition, she has a well-deserved reputation as being a fair-minded judge who follows legal precedent...On 

a personal level, we have come to know her as a warm, witty and 

deeply caring person. We could not recommend her more highly for 

nomination to the Ninth Circuit Court of Appeals.’’ 

994

I will submit copies of these letters for the record, without objection, along with copies of other letters of support we have received 

for Judge Kuhl’s nomination. 

Unfortunately, no judicial nominee these days seems to escape 

criticism, at least circuit nominees, by the liberal special interest 

groups. Judge Kuhl is no exception. I expect that we will hear attacks on her record as an attorney for the Justice Department during the Reagan administration, when she was doing her duty to 

represent the position of the United States. We will probably hear 

attacks on her record in private practice stemming from the types 

of clients she represented and the positions she took on their behalf. And I expect that we will hear some unfounded criticism of 

decisions she has made as a California State court judge. 

These types of attacks on President Bush’s judicial nominees 

have become so commonplace, and often bear so little relationship 

to the nominees’ actual records, that they bring to mind the children’s story of the boy who cried wolf. After 2 years of smear campaigns, with each consecutive nominee being declared more antithis and pro-that than the former, these groups have simply lost 

credibility, especially when you consider their poor track record in 

predicting what kind of judges nominees will turn out to be. 

Two cases in point are Supreme Court Justices David Souter and 

John Paul Stevens. The left-wing groups predicted that both of 

these nominees would roll back decades of protections for women, 

minorities, and the general population. Of course, the test of time 

has told a different story: Justice Souter and Justice Stevens are 

considered stalwart votes on the Court’s liberal wing. We should 

keep this in mind as we consider the claims of the left-wing groups 

who oppose Judge Kuhl and other Bush nominees. 

In addition to Judge Kuhl, we will hear from two nominees for 

the Federal district court bench: Cecilia Altonaga, who has been 

nominated for the Southern District of Florida, and Patricia 

Minaldi, who has been nominated for the Western District of Louisiana. And I will reserve my remarks on these nominees until 

after Judge Kuhl’s testimony. 

I look forward to hearing from all of our nominees on today’s 

agenda, and I commend President Bush for nominating each of 

them. 

We will now turn to the Democrat leader on the Committee. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you. 

Today we are meeting, as you have said, to consider the nomination of California Judge Carolyn Kuhl. I note you have already attacked anybody who would question her qualifications. There are 

some who might think that her very, very strong support of Bob 

Jones University, a university where they teach, Mr. Chairman, 

that both your religion and mine are basically cult religions, had 

a very segregationist background, but has been strongly endorsed 

by a number of members of your party, so I suspect that that is 

something that can be overlooked. 

I am delighted to see the distinguished Majority Leader here. 

When you were talking about how badly treated Republicans have 

995

been, I think you probably overlooked the fact that the Senate has 

confirmed five Tennessee judicial nominees since President Bush 

took office—one circuit court nominee, four district court nominees. 

In fact, when I moved the Julia Smith Gibbons nomination through 

this Committee in record time and on to the floor, it was the first 

nominee confirmed to the Sixth Circuit in almost 5 years. We have 

since confirmed two of President Bush’s nominees to that court. 

I mention this, Mr. Chairman, because under the fairness of your 

reign as Chairman during the Clinton years, you refused to even 

allow hearings or votes on three of President Clinton’s nominees to 

that same court. There is now just one vacancy in Tennessee, and 

that is for the seat of Thomas Gray Hull for the Eastern District. 

President Bush has said that he is going to nominate people to fill 

vacancies within 180 days. He is probably not aware of the fact 

that that became vacant way over 180 days ago. 

I mention this because sometimes the practice does not match 

the rhetoric. The rhetoric is printed in the press. The press, unfortunately, rarely picks up the practice, with some notable exceptions. 

The district court nominees have the support of their home State 

Senators, although, as I will discuss in a moment, Senators 

Graham and Nelson have had a most difficult time getting the 

White House to agree to continue the tradition of the Florida bipartisan selection commission and have only recently come to a meeting of the minds with the White House. 

The circuit court nominee before us today, Judge Carolyn Kuhl, 

is not supported by both of her home State Senators. Her appearance before this Committee, despite that clearly stated opposition, 

is the latest in a string of transparently partisan actions taken by 

the Senate’s new majority since the beginning of this Congress. In 

each of these actions—each of them unprecedented—Republicans 

have done something that they never did while in the majority 

from 1995 to 2001. Of course, then there was a Democratic President. Then they were willing to follow the rules as they saw them, 

especially if those rules worked against a Democratic President. 

Now they will ignore the rules if following the rules would not 

work to the benefit of a Republican President. They have taken 

every one of those steps—every one of those steps of ignoring past 

precedent, of ignoring our rules, has been done in lockstep with the 

White House further politicizing the whole question of picking 

judges. I believe the Republican majority has shown a corrosive 

and raw-edged willingness to change, bend, even break the rules 

they followed before when it was a Democratic President there. 

They will break, bend, and change the rules to help a Republican 

President. And lest some observers wrongly conclude that this sudden and orchestrated—and it orchestrated with the White House—

series of rules changes is just politics as usual, it is not. 

First, in January, one hearing was held for three controversial 

circuit court nominees, scheduled to take place in the course of a 

very busy day in the Senate. There were also three other judges 

on that, six in all. There was no precedent for this in the years that 

Republicans served in the majority and a Democrat was in the 

White House. In 6 years during the Clinton administration, never 

once were three circuit court nominees, let alone three very conVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01009 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
996

troversial ones, brought before this body in a single hearing. Why 

the change in practice? There is a Republican in the White House. 

When there was a Democratic President in the White House, circuit nominees were delayed and deferred, and vacancies on the 

courts of appeals more than doubled when the Republicans were in 

charge of this Committee, from 16 in January 1995 to 33 when the 

Democratic majority took over partway through 2001. 

Then in 17 months, we held hearings on 20 circuit judges. Now, 

while Republicans averaged seven confirmations to the circuit court 

every 12 months, the Senate under Democratic leadership confirmed 17 in its 17 months in the majority. We did that with a 

White House that was more uncooperative than any of the six 

Presidents I have served with. So we have gone from idling during 

the time this Committee had during the time when President Clinton was in office to full speed ahead. 

That is not the only politicized action. The Republican majority 

supported and facilitated the renomination of Priscilla Owen to a 

seat on the U.S. Court of Appeals for the Fifth Circuit even though 

she had been rejected by this Committee. Then they brought it 

back during a hearing where no new facts of significance were 

issued, but a lot of rhetoric about unfairness and so on, a lot of 

leading questions asked, carefully orchestrated with the White 

House. 

Now the Republican majority has scheduled this hearing for a 

nominee who does not have blue slips returned from both her home 

State Senators. Now, we will surely hear today a long recitation of 

the history of the blue slip. We will hear how unfairly it may have 

been used before. We will hear how other Chairmen, Senators Kennedy and Biden, modified their policies to allow for more fairness. 

And we will hear how the Chairman’s real objection during the 

Clinton administration was the so-called lack of consultation with 

Republican Senators and how fairly and successfully President 

Bush’s White House has consulted. And I am sure the Chairman 

will tell us he is the heir to Democratic traditions, that he has followed these policies, et cetera, et cetera, et cetera. 

Well, it is true various Chairmen of the Judiciary Committee 

have used the blue slip in different fashions. I will refer to how this 

Chairman has. Today is the first time that this Chairman will ever 

have convened a hearing for a judicial nominee who did not have 

two positive blue slips returned to the Committee. The first time, 

ever. Of course, we now do have a Republican President. And despite protestations that this has been the Chairman’s consistent 

policy over time, it hasn’t been. The facts show exactly the opposite. 

These pieces of blue paper are what the Chairman uses to solicit 

the opinion of home State Senators about the President’s nominees. 

When President Clinton was in office, this was the blue slip sent 

to Senators asking their consent. It says, ‘‘Please return this form 

as soon as possible to the nomination office. No further proceedings 

on this nominee will be scheduled until both blue slips have been 

returned by the nominee’s home State Senators.’’ 

When President Bush began his term and Senator Hatch took 

over, the blue slip was then quickly changed. It simply says to return it as soon as possible. The blue slip that was good enough for 

997

Chairman Hatch when there was a Democratic President suddenly 

changed to benefit a Republican President. 

The new blue slip contains no requirement that the President 

may have to engage in sufficiently meaningful consultation with 

home State Senators. All it has is a 180-degree turn from what it 

used to be. 

The blue slip was strictly enforced by the Chairman during the 

Clinton administration. It operated as an absolute bar to the consideration of any nominee to any court unless both home State Senators had returned positive blue slips. I remember going down to 

meet with President Clinton with the distinguished Chairman with 

me, and he made that very, very clear in our meetings in the Oval 

Office with the President. Until both blue slips came back, there 

would be no hearing. He said that is the way it is, that is the way 

it has always been, that is the way it always will be. Ah, but then 

the Presidency changed, and suddenly all the rules changed. 

Remember, in the 106th Congress alone, more than half of President Clinton’s circuit court nominees in the 106th Congress were 

defeated through the operation of the blue slip. Maybe the most 

vivid is the story of the United States Court of Appeals for the 

Fourth Circuit. Senator Helms was permitted by this Committee to 

resist President Clinton’s nominees for 6 years. The distinguished 

Chairman told me personally that we couldn’t go forward with 

those nominees, I believe African-Americans and others, because 

Senator Helms would not return a blue slip. James Beaty was first 

nominated to the Fourth Circuit for North Carolina by President 

Clinton in 1995, but there was no action on his nomination in 1995, 

1996, 1997, or 1998 because one Senator had not sent back a blue 

slip. Another Fourth Circuit nominee from North Carolina, Rich 

Leonard, was nominated in 1995, but no action was taken in 1995 

or 1996. James Wynn, again, a North Carolina nominee to the 

Fourth Circuit, sent to the Senate by President Clinton in 1996, sat 

without action in 1999, 2000, and 2001 because both blue slips 

were not back. 

That was the rule, and I was told very forcefully and told by the 

distinguished Chairman in the presence of the former President in 

the Oval Office because that is the rule. Suddenly, the rule was 

changed. 

I think now we see a bit of revisionism fit for study by 

Sovietologists saying there was insufficient consultation. 

There were many times when the White House under President 

Clinton made nominations at the direct suggestion of Republican 

Senators, and there are judges sitting today on the Ninth Circuit, 

the Fourth Circuit, and the district courts in Arizona, Utah, Mississippi, and many other places only because the voices of Senators 

in the opposite party were heeded. In fact, in one case, at least one 

case, in Utah went forward because I went down and personally 

sat down with the President and urged him to go forward. But, instead, since the beginning of his time in the White House, the Bush 

administration has sought to divide, not unite, has sought to overturn traditions of bipartisan nominating commissions. 

They changed the systems in Wisconsin, Washington, and Florida that had worked so many years. They ignored the protests of 

Senators like Barbara Boxer and John Edwards who wanted to 

998

reach a true compromise and they even suggested Republican alternatives. They were told they were irrelevant. 

Ignoring bipartisan judicial nominating commissions is just another step in the march to entirely politicizing the Federal judiciary. It is exactly what the Bush White House did to the State of 

Florida. Last year, Senators Graham and Nelson were compelled to 

write in protest to the White House Counsel’s flaunting of the timehonored procedures—a procedure that had been followed when 

there were both Republican and Democratic Senators in Florida 

and Republican and Democratic Presidents. A process that had 

worked to fill 29 district court vacancies over 10 years was bypassed by this President. I am glad the White House has finally 

agreed to the Florida Senators’ proposals so we can get on with 

processing the nomination of Cecilia Altonaga. And I hope the 

White House will start working with other Democratic Senators 

and increase the almost non-existent level of consultation. I have 

been here during the Ford administration, the Carter administration, the Reagan administration, the former Bush administration, 

the Clinton administration, and now this administration. I have 

never—and I can state this categorically—never been here with an 

administration that has shown less interest in working with Senators on judicial nominees than this one. 

I object to this hearing being held, but I will participate in the 

questioning of Judge Kuhl. I understand the distinguished Chairman has completely turned on end what has been his rule when 

there was a President of the other party, but he has called it up 

and we will go forward. 

We will talk about her past advocacy for aiding educational institutions which discriminate on the basis of race, like Bob Jones, or 

on religion, something of interest, I would assume, to Catholics, to 

Mormons, and others who have been greatly discriminated against 

by Bob Jones, as well as her work on the case involving fundamental constitutional rights, including the right to privacy. So we 

will look forward to it, and I think it will be an interesting time. 

So nice to be here with you, Mr. Chairman. 

Chairman HATCH. Well, it is so nice to have you. I understand 

you disagree with me somewhat here and, as usual, I think, have 

misstated the rules and the cases. 

Now, we have Hon. Bill Frist, the Majority Leader, who I know 

has to leave in a short time, so we are going to turn to him next. 

Then we are going to turn to the distinguished Senator from California who would like to make a statement, and then we will go 

back to Senator Graham, and then we will go to the witnesses. 

PRESENTATION OF CAROLYN B. KUHL, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT, BY HON. BILL FRIST, 

A U.S. SENATOR FROM THE STATE OF TENNESSEE 

Senator FRIST. Mr. Chairman, it is with great pleasure that I am 

here to commend Carolyn Kuhl to this Committee’s consideration, 

and I thank the Chairman and the Ranking Member and all the 

members of the Committee for allowing me this opportunity to give 

you my brief testimony. 

I realize that it is unusual for a Senator who is not from a nominee’s home State to make such an introduction, but if this helps, 

999

I can tell you that Carolyn Kuhl is as bright as anyone I know in 

Tennessee, and I can say that because I have known her for 30 

years, and a number of classes, but one in particular, a chemistry 

class, at Princeton University, and everything that I struggled 

with, she sailed. 

I was delighted to read, Mr. Chairman, that along with everyone 

else the—I was able to read that the President has nominated my 

friend and classmate, Carolyn Kuhl, to serve on the Ninth Circuit, 

and that is why I am here. 

Judge Kuhl and I attended Princeton University at a time, a 

unique time in the history of that university, a time of change and 

formation as an institution, and then also for us as individuals. I 

can tell you, Mr. Chairman, that a woman graduating from Princeton in those early 1970’s with a chemistry degree, and, I should 

add, with honors, signifies an achievement greater than many may 

understand. Certainly the fact that Judge Kuhl went on to graduate from Duke Law School in the Order of the Coif makes clear 

why she sits here today and why I have no doubt she is eminently 

well qualified. 

Like many Senators of late, I have turned for guidance to the 

Founding Fathers, and especially to the father of the independent 

Judiciary, John Adams, to find the right standard by which to give 

advice/consent on a judicial nominee. Adams was clear. He memorialized for us what the standard should be for the men and women 

who should be our judges: men of experience on the laws, of exemplary morals, invincible patience, unruffled calmness, an indefatigable application, who will be appointed for life and subservient to 

none. 

This is a high standard. It is a standard which knows no politics. 

It is a standard devised when there were no organized parties. It 

is a standard both for the nominees and for the Senate as stewards 

of the independent judiciary. And this is a high standard, but one 

that Judge Kuhl meets in every single respect. 

In reviewing Judge Kuhl’s record, I was most struck by the wide 

support she has received, referred to by the Chairman, without regard to partisan politics. I was impressed by the letter from 23 

women, all of whom sit as judges on the Superior Court of Los Angeles, the letter dated February 22, 2002. They write, and I quote, 

‘‘Judge Kuhl is seen by us and by members of the bar who appear 

before her as a fair, careful, and thoughtful judge who applies the 

law without bias. She is respected by prosecutors, public defenders, 

and members of the plaintiffs’ and defense bar. She is conscientious, scholarly, courteous, and willing to listen with an open mind 

to the arguments of counsel. Judge Kuhl approaches her job with 

respect for the law and not a political agenda. Judge Kuhl has been 

a mentor to new women judges who join our court. She has helped 

promote the judicial careers of women, both Republican and Democrat.’’ 

Mr. Chairman, these judges also point out that Judge Kuhl, and 

I quote, ‘‘supported Hon. Margaret Morrow when Judge Morrow 

was awaiting a hearing. She also wrote in support of President 

Clinton’s nomination of Hon. Richard Paez.’’ 

Her colleagues go on to say in this letter, ‘‘Carolyn Kuhl is also 

a very decent, caring, honest, and patient human being who is a 

1000

delight to have as a professional colleague and friend. As sitting 

judges, we more than anyone appreciate the importance of an independent, fair-minded, and principled judiciary. We believe,’’ they 

conclude, ‘‘that Carolyn Kuhl represents the best values of such a 

judiciary.’’ 

Mr. Chairman, as you well know, there are two types of praise 

that are most significant in public life: the honest praise of your 

opponents and the informed praise of your colleagues. 

In closing, I am pleased to commend to you the nomination of 

Carolyn Kuhl, and I will leave you with this request: I hope that 

today you ask her tough questions. I seem to recall that these are 

the ones she most enjoys answering. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Leader. We appreciate you 

taking time from what we know is a tremendously busy schedule 

to be with us today, and we are glad to have you here. We will 

allow you to go. 

Senator FRIST. Thank you. 

Senator LEAHY. I might note, Mr. Chairman, I am a great admirer of John Adams. I love the David McCullough book on him. 

I would also point out to the distinguished Majority Leader, John 

Adams was the first President who tried to pack the Federal 

courts. I just thought I would mention that. 

Chairman HATCH. All right. We will turn to the distinguished 

Senator from California, and then I am going to turn to the distinguished Senator from Florida. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman, and I 

really appreciate this opportunity. I really want to be here during 

this hearing, particularly for Judge Kuhl. Unfortunately, Senator 

Byrd has called a meeting of Ranking Members of the Appropriations Committee at 11:00 on the supplemental, and the emergency 

supplemental is being marked up, as you know, at 2 o’clock this 

afternoon. That presents real logistical problems for me. 

I wanted to say something— 

Chairman HATCH. Would it be helpful to you if I turn to you first 

for questions? 

Senator FEINSTEIN. It would. I would appreciate that very much. 

Chairman HATCH. With the permission of the ranking member, 

I will do that so that we can accommodate you. 

Senator FEINSTEIN. Well, if that is possible. If not, I can try to 

work it out some other way. But I have been asked to submit letters from my colleagues Senator Barbara Boxer and Senator Bill 

Nelson for the record, and with your permission I would like to do 

that. 

Chairman HATCH. Without objection, we will put them in the 

record. 

Senator FEINSTEIN. I want to just make a couple of comments 

about Judge Kuhl because I think in her nomination we see the 

classic dilemma. I have never had more letters from sitting judges 

in support of a candidate than I have with respect to this judge, 

Carolyn Kuhl. Every one of them went out of their way—and I am 

1001

a reader of letters and I know when they pro forma and I know 

when they are not. And they clearly are not in this case. 

I have received a letter from the Los Angeles County Bar Association representing 20,000 Los Angeles lawyers, and I think the 

letter says something that we ought to take note of, and that is, 

and I quote, ‘‘The recent trend in attacking the qualifications of judicial candidates on the basis of positions advocated on behalf of 

clients is misguided for a variety of reasons.’’ And then they point 

out the reasons. And I think we ought to think a little bit about 

this. I would like to put that letter, if I might, in the record. 

Chairman HATCH. Without objection, it will go into the record. 

Senator FEINSTEIN. I think it is very rare that we have an appellate court nominee that has this kind of background. Clearly, this 

is an extraordinarily bright woman. I think it is very rare that we 

have an appellate court nominee that has the kind of experience 

that she has had on the court, the most diverse court in the United 

States, the Los Angeles Superior Court. 

I want to just read into the record on e paragraph from one letter 

from Judge Paul Boland, and you correctly stated there are 94 superior court judges from Los Angeles who have signed in support, 

and there are 24 other separate letters from judges in support. But 

I think this paragraph has to be considered, and I would like to 

read it. 

‘‘Judge Kuhl is widely regarded as one of the most dedicated, 

knowledgeable, skillful, and thoughtful judges sitting on the Los 

Angeles Superior Court. In criminal and civil judicial assignments, 

she has distinguished herself as a judge who is highly intelligent, 

renders balanced, reasoned decisions, is intellectually honest, and 

is even-handed and fair. In criminal cases, prosecutors and criminal defense lawyers alike single her out for praise. In civil matters, 

the plaintiffs’ bar and the defense bar universally respect her. During our years of service together on the superior court, I have never 

heard any criminal or civil lawyer express the view that Judge 

Kuhl issued a ruling or rendered decisions that were in any way 

influenced by a particular judicial philosophy or political ideology 

or were motivated by a judicial or political agenda. As a member 

of the superior court, she has consistently strived to make decisions 

that are legally correct and devoid of bias.’’ 

And then he goes on, as a Supervising Judge of Complex Litigation, to describe how she came into that area and within 6 months 

ended up supervising the area. You know, clearly this is an outstanding judge. 

Now, on the other hand, we have a wide array of letters from socially connected organizations in strong opposition to this nominee. 

These letters, I would say from my reading, 100 percent point out 

their concerns, all of which go back to the time before she was a 

judge and about which I hope to ask a number of questions when 

my time comes. 

I think the job for this Committee is really to reconcile those social viewpoints with her performance over a substantial period of 

time as a Los Angeles Superior Court judge. 

Now, when I have asked questions of people that have come in 

to see me, well, she didn’t demonstrate that as a judge. They would 

1002

say to me, ‘‘Well, she didn’t have a case that would cover that 

point.’’ So what we have is sort of a complete polarization. 

Now, what has concerned me in the time I have sat on this Committee is those judges about which there is the least, we know the 

least. Those judges that go through very often are those judges that 

haven’t written, haven’t spoken, really don’t have much record; 

therefore, there is nothing to pin the tail on the donkey. And what 

concerns me about the Federal judiciary is what I call the dodo 

head syndrome, that we end up getting a lot of judges about which 

we know very little but who are not necessarily the brightest and 

the best, which I believe the Federal system should be. 

So this is a hard case in point, and it may be well that Judge 

Kuhl is really the one, I think, that is going to make the outstanding point in this regard. 

So I guess what I want to say, Mr. Chairman, is that this is a 

very big hearing, indeed, because the sides are well polarized. On 

one bench, you have virtually the entire Los Angeles sitting superior court, and on the other, you have some of our finest and best 

social organizations throughout the United States. It is going to be 

very interesting to see how it turns out. 

I say this as someone that has an open mind. I have not taken 

a position, but I hope to ask a number of questions. 

Also, to kind of identify it, there is one additional letter I would 

like to read, and it was a surprising letter to me because it is from 

a Vilma Martinez, who is a Democrat, is a veteran of civil rights 

battles. She is well known to me. She testified against Judge Robert Bork’s nomination to the Supreme Court, and she says, and I 

quote, ‘‘Like others dedicated to the independence of our judiciary, 

I certainly do not want ideologues serving as judges on our Federal 

courts. That is why I think Judge Kuhl would make a great addition to the Ninth Circuit. She served for 7 years in the California 

Superior Court, et cetera.’’ And she says, ‘‘Before that, she and I 

were law partners for 9 years. Judge Kuhl is what I think of as 

an old-fashioned judge. She cares about due process for everyone. 

During her service on the superior court, she has shown that she 

is careful to hear both sides. She doesn’t try to influence the outcome of a case in favor of one side or the other. She is serious 

about her oath to follow the law, whatever the result.’’ 

And so I would like to add that record, if I may, as well to the 

record. 

Chairman HATCH. Without objection, we will put it in the record. 

Senator FEINSTEIN. I thank you for this courtesy, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator. 

We will turn to our distinguished friend from Florida, Senator 

Graham. 

PRESENTATION OF CECILIA M. ALTONAGA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA, BY HON. BOB GRAHAM, A U.S. SENATOR FROM THE 

STATE OF FLORIDA 

Senator GRAHAM. Thank you very much, Mr. Chairman and 

members of the Committee. In deference to the Committee’s very 

heavy and important agenda today, I am going to abbreviate my 

1003

remarks and would ask that my full statement be included in the 

record. 

Chairman HATCH. We will put the full statement in the record, 

Senator. 

Senator GRAHAM. Thank you very much, Mr. Chairman. 

I also wish to thank you for your prompt scheduling of this hearing. As I have said before, the Southern District of Florida is one 

of the largest in terms of case filings and busiest in terms of the 

complexity of those cases judicial districts in the country, and I appreciate your concern to see that it continues to be fully staffed. 

Chairman HATCH. Thank you, Senator. 

Senator GRAHAM. Mr. Chairman, on behalf of Senator Bill Nelson 

and myself, I am pleased to introduce to the Committee Hon. 

Cecilia M. Altonaga. She currently serves as a judge on the State 

of Florida’s Eleventh Circuit, the highest trial court in our State. 

Judge Altonaga is joined today by her husband, George Mencio, 

Jr., also a lawyer, specializing in international law. Her three 

daughters—Natalie, 13, Caroline, 10, and Gabriella, 4—are at 

home in Miami, and I know they are very proud of their mother 

today. 

Mr. Chairman, I am honored to introduce you to this nominee 

not only because she is an able jurist who hails from our State of 

Florida, but also because her confirmation will further realize our 

shared commitment to the goal that our judiciary should be as varied as our society. I would like to submit for the record and read 

a portion of a letter which I have received from Mr. Victor M. Diaz, 

Jr., who is the president of the Board of Directors of the Cuban 

American Bar Association in Miami, Florida. Mr. Diaz writes, 

‘‘Judge Altonaga is an outstanding jurist who is extremely well 

qualified for the position to which she has been nominated. Judge 

Altonaga’s appointment also will bring much needed diversity to 

our local Federal court judiciary. Most importantly, Judge Altonaga 

represents the highest aspirations of our profession from a personal 

and ethical standpoint and will serve as a role model to all who 

will come before her.’’ 

I ask that the full letter be included. 

Chairman HATCH. Without objection, we will put it in the record. 

Senator GRAHAM. Today, with Senator Nelson, I support the 

nomination of Cecilia M. Altonaga, who is about to become the first 

Cuban American woman to serve as a Federal judge. Judge 

Altonaga’s solid qualifications make her an ideal candidate for 

service on the Federal bench. A graduate of Florida International 

University in Miami and the Yale University School of Law, Judge 

Altonaga has served her community as assistant county attorney in 

Miami–Dade County and as a judge on the county court of Florida’s 

Eleventh Circuit prior to her ascending to the circuit court. 

Beyond these impressive credentials, Judge Altonaga possesses 

the temperament that the job requires. Her college alumni publication reports that her professor remembers her as a disciplined, 

goal-oriented student who wasn’t afraid to work hard. And, Mr. 

Chairman, I think maybe one of the best qualifications for a Federal district judge is this statement by her professor: ‘‘She was one 

of the best listeners I ever had.’’ 

1004

She is clearly suited for this challenge work. Judge Altonaga is 

an intelligent, committed, well-respected candidate for the Federal 

bench, and I appreciate the Committee’s consideration of her nomination and have every expectation that both this Committee and 

the full Senate will act on this nomination without delay. 

Chairman HATCH. Well, thank you, Senator. We appreciate you 

taking time from your busy schedule to be here, and that is high 

praise indeed for Judge Altonaga. So we appreciate you being here. 

Senator GRAHAM. Thank you. 

Senator LEAHY. It is nice to have you back. 

Chairman HATCH. It sure is. We have two members of this Committee who need to go to the meeting with Senator Byrd, so we will 

call on Senator Leahy first and then we will call on Senator Feinstein from California second, and I will defer my questions until 

after the two of them. We are going to have ten-minute rounds, so 

Senator Leahy? 

I forgot to ask you to give any statement you would care. We will 

do that, as well. 

Senator LEAHY. You can do that first. 

Chairman HATCH. Would you raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the 

truth, so help you, God? 

Judge KUHL. I do, Senator. 

Chairman HATCH. Thank you. Judge Kuhl, we are very grateful 

to have you before us today and we look forward to hearing your 

testimony. Do you have a statement you would care to make before 

we get into— 

STATEMENT OF CAROLYN B. KUHL, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE NINTH CIRCUIT 

Judge KUHL. I don’t have a statement that I have brought to 

make. I would like to introduce my family, but being aware of the 

time, perhaps I could— 

Chairman HATCH. No, please do. No, we want you to do that. 

Judge KUHL. All right. Thank you. I have with me here today my 

husband, Hon. William Highberger, who is a judge also on my 

court and my partner in all things. I have my daughters, Helen 

and Anna Highberger. Helen is the elder and I am very proud of 

them— 

Chairman HATCH. We are happy to have you here. 

Judge KUHL. —and they are here today. And also my father and 

my brother, who have come from Fort Worth, Texas, to be here. My 

father is a retired railroad executive and my brother is a computer 

consultant and they are both learning to fly. My brother soloed last 

week, so I really proud to have them. 

Chairman HATCH. We are really proud to have you here, and 

that is great that you can do that. Thank you. We are so happy 

to have your family here with you and we welcome you and hope 

you can enjoy this hearing. 

[The biographical information of Judge Kuhl follows:]

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1041

Chairman HATCH. We will to go Senator Leahy first. 

Senator LEAHY. Thank you, and I welcome you, too. I am glad 

your family could be here. I have thought of the thousands of judicial nomination hearings I have been at, and most of them, there 

have been—it actually is thousands now—most of them have had 

family members. I have often felt that somewhere in the archives, 

wherever that family is, somewhere, someday they will pull out the 

transcript and find who is there, and I think it is a nice thing to 

do. We even had one judge who had the transcript from about 35, 

45 years before when his father had become a judge and he was 

there. 

Judge Kuhl, as an aide to Attorney General William French 

Smith, who was Attorney General then, you were one of a small 

group of lawyers who pressed for what I believe is a radical change 

in policy to allow private nonprofit schools that discriminate based 

on race to receive tax-exempt status, and that was a drastic departure from the policy that had been in place. 

In 1970, the Nixon administration, following the Court decision, 

adopted Internal Revenue Service rules denying tax exemption for 

schools that racially discriminate. Many of us feel that President 

Nixon was right in that, but the Congress, and I was not in the 

Congress at the time, left those rules standing. 

In 1981, the U.S. Supreme Court agreed to review two decisions 

of the Court of Appeals for the Fourth Circuit which upheld IRS 

actions denying tax-exempt status to Bob Jones University and 

Goldsboro Christian Schools, Inc. The Reagan Justice Department 

prepared to and initially did defend the IRS actions and rules. In 

other words, the Reagan administration took the same position the 

Nixon administration had. 

But in January 1982, the Justice Department suddenly announced a change in its position. It found the IRS had no legal authority to deny tax-exempt status and agreed to give the schools, 

despite their blatant policies of racial discrimination, the tax exemption, aside from any other questions of religious discrimination. 

This was specifically on—they did discriminate on religious, but on 

the racial discrimination. 

Now, according to news articles and Congressional hearings, you 

were one of three lawyers characterized as part of the Bob Jones 

team who opposed the prevailing policy and pressed for the legal 

switch to give Bob Jones its tax exemption. In other words, you 

wanted to change what had been policy since 1970, and you wrote 

a memo along with Charles Cooper to Assistant Attorney General 

Brad Reynolds that was shown at the House Ways and Means 

Committee in which you argued that the IRS policy was simply 

wrong. 

You wrote, ‘‘The Commissioners’ ruling denying tax-exempt status to these racially discriminatory private educational institutions 

is supported by neither the language nor the legislative history of 

Section 501(c)(3).’’ I want to note that that point, the IRS nondiscrimination policy, had been approved by two United States 

Courts of Appeals in three separate appeals. 

Now, Judge, at the time you authored the memo to Assistant Attorney General Reynolds urging this drastic change in policy, were 

1042

you aware that more than 200 lawyers in the Justice Department 

Civil Rights Division objected to that change of position? 

Judge KUHL. Senator, I am glad that you have asked this question right at the outset of the hearing— 

Senator LEAHY. I knew you wouldn’t be surprised that I would. 

Judge KUHL. —because I am grateful for an opportunity to address this issue. I regret having taken the position that I did in 

support of the government’s change of position at that time and I 

would like to explain that, if I may take the time to do that. 

Senator LEAHY. When you do, would you also respond to the 

charge of the New York Times that you and your two other coworkers were a band of ‘‘young zealots,’’ their words, in forcing a 

change in policy that was so strongly opposed by many senior officials in various executive branches during a Republican administration? 

Judge KUHL. Certainly. I will address that, Senator. 

I do want to state at the outset, though, you had mentioned in 

your opening statement about some of them, I would call them abhorrent policies of Bob Jones University, and you can be sure that 

I had no sympathy for those policies. I share the same religion that 

you do, and I— 

Senator LEAHY. Judge Kuhl— 

Judge KUHL. Yes? 

Senator LEAHY. First off, your religion, I want you to know, I 

have never asked, never would, and don’t even know the religion 

of 99 percent of the people that come here. That is—we don’t—none 

of us have religious tests here. 

Judge KUHL. I appreciate that, and I think that is very appropriate, Senator, but I wanted to say that so that you would understand in response to your comment that I had absolutely no sympathy for Bob Jones, either with respect for its racially discriminatory policies or with regard to its teachings with respect to other 

religions. 

The issue as I saw it, as it was considered during the Reagan administration, was whether the IRS was overstepping and taking an 

overly broad interpretation of its authority under its governing 

statute as it asserted that it had the authority to define public policy and to then deny tax exemptions on the basis of that public policy. That was the issue. 

I told you that I regret taking the position that I did at the time, 

and that is the case for two reasons. First, I did not at that time 

understand the traditional role of the Justice Department, which is 

to defend the positions of the agencies as long as there is a reasonable argument that can be made in defense of those agencies, and 

I don’t think that I—well, I didn’t as a very young staffer fully understand that, and I was—I had only been in Washington for a few 

months when this came up and I was a young staff assistant— 

Senator LEAHY. But that is almost hornbook law. 

Judge KUHL. I am sorry? 

Senator LEAHY. You didn’t learn that in law school? I mean, I— 

Chairman HATCH. Why don’t you let her answer the question 

and maybe she will answer it. 

Senator LEAHY. I am surprised what you are saying, because— 

1043

Judge KUHL. Well, I had never worked for the government before, so it wasn’t apparent to me. 

The second and the more important reason why I think that the 

decision was wrong is because it did not properly put the nondiscrimination principle that should have been primary in this decision first. I was concerned about the IRS policy giving the IRS, 

of all agencies, the authority to interpret public policy and enforce 

it, and I was particularly concerned about all-girls’ schools. I had 

attended an all-girls’ school and I did not want to see a precedent 

created that would have meant that tax exemptions could be taken 

away from all-girls’ schools because they discriminated against 

men. But— 

Senator LEAHY. Let me— 

Judge KUHL. If I could just say a couple other things— 

Senator LEAHY. Go ahead. 

Judge KUHL. —because I do want to get to the ‘‘band of zealots’’ 

point that you asked me about. 

Senator LEAHY. I am not—I realize you wouldn’t filibuster on an 

answer, but time runs out and I want time to follow up on this, 

but please go ahead. 

Judge KUHL. Well, perhaps if the time runs out, Senator Hatch 

would give you a little more time, but—as much time as you want, 

I should say. 

Senator LEAHY. Kind of you to ask. 

Judge KUHL. But I did want to finish this explanation and to say 

that focusing on the narrow legal issue was not the right thing to 

do in that situation. The nondiscrimination principle and the importance of enforcement of the civil rights laws by the executive 

branch should have taken sway and should have been primary in 

making that decision. 

As to the ‘‘band of zealots’’ point, the Deputy Attorney General 

and the head of the Civil Rights Division both advised the Attorney 

General to change positions in the Bob Jones case. So as far as the 

memorandum I wrote, I am sure that the Attorney General looked 

at that memorandum, but there were senior officials, including also 

the Under Secretary of the Treasury, which I didn’t know at the 

time, but I found out later the Under Secretary of the Treasury 

urged that the President take that position, as well, or that the 

Secretary of Treasury take that position, and, of course, it was the 

Attorney General’s decision, and thank you, Senator, for allowing 

me to make that explanation. 

Senator LEAHY. Because you wrote to Senator Boxer that you felt 

the traditional role of the Department of Justice is to defend regulations issued by executive branch agencies when the regulations 

are challenged in litigation. That was not the way you felt then. 

That is the way you feel now as you are up for—now that you are 

appearing for the confirmation hearing, that is your opinion today, 

but that was not your opinion when you were at the Justice Department. 

Judge KUHL. Well, I wrote that letter to Senator Boxer 2 years 

ago, but I also came to the conclusion that the Bob Jones ruling 

or change of decision was wrong while I was at the Justice Department. I had conversations with people as I went along, and by the 

time I was in the Solicitor General’s Office, I had reached that conVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01057 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
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clusion and discussed that with Solicitor General Fried, who was 

my boss, and he has mentioned that in an article he wrote for the 

New York Times a brief while ago. 

Senator LEAHY. It just seems strange, of all the issues you could 

have taken on, you take this one, whether ‘‘band of zealots’’ is an 

adequate term or not. You chose one that seems hard to defend 

both legally and socially, waged a fierce campaign, 200 career lawyers saying, and these are people who came in in both Democratic 

and Republican administrations, saying you are wrong. It just—

were there other cases during your tenure at the Justice Department in which you recommended that the U.S. confess error in the 

Supreme Court? 

Judge KUHL. I can’t think of any, Senator. 

Senator LEAHY. So we just have this. I am looking at the material that was turned over to the Senate Finance Committee and the 

House Ways and Means Committee concerning legislation to deny 

Federal tax-exempt status, a number of Justice Department memoranda. At least during the Reagan administration, they could be 

turned over. Apparently, they are not allowed now. These were 

turned over 2 months after they were written. 

One of the documents was a memorandum written by you on December 8, 1981, to Solicitor General Kenneth Starr noting then–

President Reagan and then–Vice President Bush’s campaign statements on private schools. That memo had an excerpt from President Reagan’s campaign platform stating he opposes the IRS attempt to remove the tax-exempt status of private schools by administrative fiat. Did that influence you in your arguing for this 

change? 

Judge KUHL. Senator, that didn’t have any part of the memorandum that I wrote, which was a legal analysis. I did forward it 

to the Attorney General, because as his staff assistant, I felt that 

it was information that he should have. 

Senator LEAHY. But you didn’t include that in your argument, 

the political position? 

Judge KUHL. No, Senator, I didn’t put that in my memorandum. 

Senator LEAHY. My time is up. I will have other questions, either 

in a follow-up or in questions for the record, and Mr. Chairman, 

I appreciate your courtesy in allowing me to go first. 

Chairman HATCH. Happy to do it. I will also extend the same 

courtesy to the Senator from California, who can ask her questions 

now. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. Judge 

Kuhl, good morning. 

Judge KUHL. Good morning, Senator. 

Senator FEINSTEIN. In 1985, you argued in the Thornburgh case 

that the Supreme Court should overturn Roe v. Wade. Your brief 

claimed that stare decisis is a principle of stability—I am quoting 

now. ‘‘A decision as flawed as we believe Roe v. Wade to be becomes 

a focus of instability, and thus is less aptly sheltered by that doctrine from criticism and abandonment.’’ 

In the case of UAW v. Brock, you argued that the Supreme Court 

should reverse a decades’ old doctrine of associational standing 

which allows associations to represent constituent members in 

court in some circumstances. Specifically, you argued that, and I 

1045

quote, ‘‘At the least, absent a showing of particularized need, an organization should not be allowed to bring suit to assert the individual rights of its members.’’ 

Can you explain to me in these two cases why you thought it was 

appropriate to overturn Supreme Court precedent? When, in your 

view, should an attorney advocate for the overturning of Supreme 

Court precedent? Why should the Committee believe that, upon appointment to the Circuit Court, you will not again attempt to shape 

the law instead of just interpreting it? 

Judge KUHL. Okay. I understand the importance of that question, Senator, and I am going to give a brief answer to one part 

and then try to explain each case. 

As an attorney, I think it is appropriate to advocate to overturn 

Supreme Court precedent when it is in your client’s interest. In 

other words, as attorneys, we are really not constrained in what we 

argue so long as it is within the bounds of ethics. We do what—

we argue what is best to represent our client. 

As judges, that is not what we do, and so I know how important 

it is to you and to other women in this country to understand that 

I am fully committed as a judge to following the law. Since the 

Thornburgh case, the Casey case has completely looked at Roe

again and has reaffirmed the Roe decision, and understand that I 

am fully committed to fully and fairly and properly enforcing a 

woman’s constitutional right to reproductive freedom. 

Senator FEINSTEIN. Do you believe it was correctly decided? 

Judge KUHL. Do I believe that Casey was correctly decided? 

Senator FEINSTEIN. Casey and Roe. 

Judge KUHL. Casey and Roe? As an advocate at the time that I 

wrote the Thornburgh brief, and maybe I should turn back to the 

Thornburgh brief now. The Thornburgh brief was in 1985. Casey

was decided reaffirming Roe in 1993. That was a considerable period later. 

In the Thornburgh brief, I was representing the Reagan administration. President Reagan had taken the position publicly, both before and after he was elected, that Roe v. Wade should be overruled. Also, prior to the Thornburgh brief, the Justice Department 

had filed a brief in Akron. Akron occurred before Thornburgh. And 

in Akron, the Justice Department had argued for a severe narrowing of Roe v. Wade by saying the States should have—well, 

there is a right to privacy, but States should have a great deal of 

leeway and be given deference in their interpretation of that right. 

In other words, the States’ interpretation of the right should be 

looked at carefully by the Supreme Court. 

That argument was very poorly received by the Supreme Court. 

Justice Blackmun said, if you are not asking that Roe v. Wade

should be overruled, are you asking that Marbury v. Madison

should be overruled? And so it seemed to me that, given the position of the President, the Justice Department should argue forthrightly what the President’s position was. And at that time, there 

was considerable academic criticism of Roe v. Wade by Paul 

Freund, Archibald Cox, Alexander Bickel, and Ruth Bader Ginsburg. I am not sure whether her criticism was before or after that 

time, but she also criticized the reasoning of Roe, and I thought 

1046

those arguments should be presented as advocacy on behalf of the 

President. 

Senator FEINSTEIN. You didn’t quite answer my question. Do you 

believe that Roe was correctly decided? 

Judge KUHL. Senator, I am not comfortable with giving my opinion with respect to any particular precedent as to whether it was 

correct or not. My job as a judge—and I am performing that job 

now—I take percent and apply it fully, completely, and fairly, 

whether or not I agree with it. 

As an advocate for the President, I thought that those criticisms 

of Roe were well taken. In the passage of time between Roe and 

Casey, however, stare decisis became much more important. In 

other words, there continued to be cases decided under the Roe v. 

Wade principle, and certainly after Casey, stare decisis is paramount. That is to say that Roe v. Wade and Casey are some of the 

most fully established precedent that I can think of in our jurisprudence. 

Senator FEINSTEIN. Okay. Let me go to some of the comments 

that Charles Fried made, and I am sure you probably know about 

that, made in 1985. He recalled how he made his decision as Solicitor General to file an amicus brief in Thornburgh v. American College of Obstetricians and Gynecologists. The United States, since it 

was not a party to the case, was not obligated to file a brief. Fried 

recounted how he received recommendations from the various divisions of Justice, Civil Rights, Civil and Legal Policy on how to proceed. 

Let me just quote him directly. ‘‘The most aggressive memo came 

from my friends Richard Willard and Carolyn Kuhl in Civil, who 

recommended that we urge outright reversal of Roe.’’ Did you, in 

fact, write a memo to the Solicitor General urging the outright reversal of Roe? 

Judge KUHL. Yes, Senator, and the reasons for that are that this 

was not the first time that the government had entered the dialogue in the Supreme Court on abortion. In the Akron case, which 

came up before Thornburgh, the United States had already taken 

a position on abortion and on the right to privacy. 

In the Thornburgh case, then, it seemed to me the issue was 

would we continue this argument that undercut Roe, or in light of 

the President’s position, strongly held and strongly taken that Roe

should be overruled, would we present to the Court the academic 

criticism that had been—that was out there. And I thought that it 

was important to be honest with the Court and to be forthright 

about what the President’s position was. 

Senator FEINSTEIN. Well, let me ask this question. When, generally, do you believe it is acceptable to overturn Supreme Court 

precedent? 

Judge KUHL. Well, certainly as a Circuit Court judge, I would 

never do that. That would never be my job, to overturn Supreme 

Court precedent. For the Supreme Court, stare decisis is extremely 

important. Our government is a government of laws. It can’t—the 

result in a case can’t be different depending on which parties come 

before the Court, and so, therefore, stare decisis must be very important and overturning a precedent must be very rare because we 

must build on what has gone before. That is what we do as judges. 

1047

Senator FEINSTEIN. Okay. In 1989, you authored a brief on the 

issue of choice. By then, you had left the government and joined 

the private law firm of Munger, Tolles and Olson, and in your capacity as a private lawyer, you wrote a brief in the Rust v. Sullivan

case on behalf of the American Academy of Medical Ethics, and at 

the beginning of your brief, you again criticized the Supreme 

Court’s abortion jurisprudence by quoting a dissent from Justice 

O’Connor in the Thornburgh case, and the quote is as follows. ‘‘The 

Court’s abortion decisions have already worked a major distortion 

in constitutional jurisprudence. No legal rule of doctrine is safe 

from ad hoc nullification by this Court when an occasion for its application arises in a case involving abortion.’’ 

Would it be fair to say that in 1989, when you drafted the American Academy brief, you were still a critic of the Supreme Court’s 

jurisprudence on abortion? 

Judge KUHL. Senator, the brief in that case was written by me 

on behalf of a client. The client came to me and requested that that 

brief be drafted, and that brief primarily addresses the First 

Amendment issue there, the First Amendment issue being whether 

the government could place restrictions on speech, if you will, in a 

Federal agency program. 

I took on the representation because I was trying to build an appellate practice. Filing briefs in the Supreme Court is a prestigious 

thing to do, and the—and in First Amendment issues, they are particularly prestigious. 

Justice O’Connor did make that statement in a—I can’t remember, was it a concurring or a dissenting opinion, but she did make 

that statement. And again, her statement was pre-Casey. That is 

to say, I think there was—the terms that are coming to mind are 

too strong, but the Court was making its way with some difficulty 

pre-Casey, I think, in the abortion area, and it seems to me that 

with Casey, the Court came to rest, looked at Roe again, and firmly 

rearticulated the rights of Roe v. Wade and a woman’s right to reproductive freedom, and so I think those earlier criticisms that Justice O’Connor had would not be pertinent subsequent to Casey. 

Senator FEINSTEIN. Was this a pro bono client? 

Judge KUHL. No, Senator. 

Senator FEINSTEIN. Thank you. Would I have time for one more 

question, Mr. Chairman? 

Chairman HATCH. Sure. 

Senator FEINSTEIN. I wanted to ask you a question on the subject 

of sexual harassment. While you served as Deputy Solicitor General in the Reagan administration, you co-authored an amicus brief 

in the sexual harassment case Meritor Savings v. Vinson. The 

plaintiff, a bank teller, alleged that her supervisor, the branch 

manager, forced her to submit to unwelcome sexual advances over 

a 4-year period, during which time she feared she would lose her 

job if she refused. 

Your brief on behalf of the United States and the EEOC took the 

side of the employer. You argued in support of the District Court’s 

ruling that what occurred was simply a voluntary personal relationship between coworkers and that that would not be actionable 

under Title VII of the Civil Rights Act. Your brief ignored the 

power held by a supervisor over subordinate in these cirVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01061 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
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cumstances, as well as the EEOC’s own guidelines providing that 

sexual harassment can be actionable as long as the advances are 

unwelcome. 

The Supreme Court unanimously rejected your position in an 

opinion written by Justice Rehnquist. Were you involved in the decision to file a government brief taking the side of the employer in 

this case? 

Judge KUHL. I was involved— 

Senator FEINSTEIN. Instead of the plaintiff? 

Judge KUHL. I was involved in that decision, Senator. Actually, 

the brief—the Supreme Court’s decision in Meritor closely tracked 

the brief that we filed. The reasoning is nearly identical to what 

we were urging on the Court. 

The only reason that the Justice Department was not—was urging a reversal had to do with the very technical interpretation of 

the Court’s findings of fact. We were not arguing, that is, the Justice Department was not arguing that that relationship she had 

was voluntary. That was the finding of the trial court. The District 

Court had found that the relationship was voluntary. That was the 

fact we were given to work with. 

That was a technical issue on which the Supreme Court and we 

disagreed. It was, in my opinion, much more significant that this 

was the first case in which the Justice Department had argued in 

the Supreme Court that sexual harassment was prohibited by Title 

VII, and I am proud that we took that position and I stated after 

the Supreme Court’s decision came down, I stated publicly that the 

Justice Department was very happy with the decision in the 

Meritor case. 

Senator FEINSTEIN. I guess I—of course, I am not an attorney, 

but I am puzzled by—the EEOC is charged with enforcing Title VII 

and, as I understand it, had guidelines in place setting the 

unwelcomeness standard, and yet you chose not to accept that 

standard. 

Judge KUHL. Well, this issue of voluntariness being—the question was whether the trial court’s finding of voluntariness was 

equivalent to a finding of unwelcomeness. The Supreme Court 

found that it was not equivalent to a finding of unwelcomeness and 

we were very happy with that position. But the District Court had 

found that it was a voluntary relationship, and so that is what we 

were working with. And as I say, we were very happy with the Supreme Court’s decision and stated that—and stated that at the 

time. 

Senator FEINSTEIN. Thank you. Mr. Chairman, I don’t want to 

take any more time, but I have some questions. Perhaps I can send 

them— 

Chairman HATCH. You take whatever time you would like. I am 

happy to wait and I will ask my questions later. 

Senator FEINSTEIN. All right. If I may, I will ask another one, 

then. 

Chairman HATCH. Sure. 

Senator FEINSTEIN. Environmental groups, such as the Sierra 

Club and the National Resources Defense Council, have written to 

me to express serious concerns about your nomination. These organizations argue that you would bring, and I quote, ‘‘extreme viewVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01062 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
1049

points to the Federal bench if conferred by the Senate.’’ I would 

like to submit the NRDC’s letter dated January 28, if I may, into 

the record. 

Chairman HATCH. Without objection. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

In particular, there is concern about your legal advocacy in the 

Supreme Court case UAW v. Brock while an attorney at the Solicitor General’s Office. In that case, you urged the Supreme Court to 

overturn the doctrine of associational standing, and we talked 

about it and know what it is. 

Specifically in the case, you argued that, and I quote, ‘‘Representative standing by an association should generally not be recognized.’’ The Supreme Court rejected your position. 

According to the NRDC letter, associated standing, ‘‘serves as a 

basis for standing for every other environmental group that proceeds to court to protect the environment for all Americans.’’ Can 

you explain your opposition to associational standing? 

Judge KUHL. Senator, the position of the United States in UAW

v. Brock, I believe was set before I came to the Solicitor General’s 

Office. I argued that case. I had just recently come to the office and 

I argued it, but I am not on the brief. If you look at the brief in 

that case, I am not on the brief. 

So again, I didn’t have any trouble arguing the position. It was 

a position that—well, the government had won in the court below, 

so we were defending a winning argument in the court below in 

that case. But again, that was an argument made on behalf of a 

client. 

I can tell you that under California law, which is what I enforce 

every day, we basically have no standing requirements. A person 

without any injury whatsoever can come into court and sue. You 

may be familiar with the 17–200, Business and Professions Code 

17–200 cases, and those are purely private attorney general cases. 

There is no standing requirement whatsoever. And I enforce that 

law all the time. Maybe I have a—up until a few months ago, when 

I became supervising judge, I had a 17–200 case before me probably once a week. 

And so this is an example. I don’t carry the advocacy that I made 

in the interests of the United States. The United States often argues for narrow standing, not just in the Reagan administration, 

often argues for narrow standing to protect the executive branch 

discretion, if you will. And I don’t take those arguments and carry 

them into my work as a judge. 

As far as environmental cases generally, I have support from Mr. 

Tom Girardi, eminent plaintiffs’ lawyer in the area who was counsel in the Erin Brokovich cases, and he had some similar cases in 

front of me until recently when I took over my supervisory job. So 

I think that the litigants who have appeared in front of me in that 

area are very comfortable. 

Senator FEINSTEIN. Perhaps you would respond to this, in view 

of what you have just said. In his memoirs, Order and the Law, Charles Fried wrote about the active role you played in attempting 

to limit the doctrine of associational standing, and let me read an 

excerpt from his book, and I quote. ‘‘My deputy and counselor, 

Carolyn Kuhl, launched a frontal attack on this trend, arguing that 

1050

groups should not have standing to make claim except as they 

could show themselves to be representatives of classes of individuals in traditional class actions. A vast array of organizations, 

ranging from the Chamber of Commerce through the AMA to the 

NAACP, opposed our submission. It was rejected by the court with 

no dissent.’’ 

Now, do you still oppose the doctrine—I am asking you now for 

personal view—of associational standing? 

Judge KUHL. Well, I really—I don’t have, in a sense, personal 

views about cases anymore. I have no problem with what the Court 

did in that case. I accept the Court’s rejection of what was a kind 

of a novel argument. I will recognize that the UAW v. Brock case 

was kind of a novel argument. The reason it was made was because, first of all, we were defending a ruling that had been made 

by the lower court. But secondly, the thought was that applying 

class action standards would assure that when an association came 

before a court, that its members actually were being represented, 

all of its members’ interests were being represented if the organization itself was not injured. 

But the Supreme Court rejected that. I have no problem with 

that. I would have no problem applying that standard in Federal 

Court, and as I say, in State Court, we have a much lesser standard. We have pretty much no standing. I mean, you don’t even 

have to be a member—it doesn’t even have to be an association filing on behalf of its members. It can just be an uninjured individual 

suing as a private attorney general, and I enforce that law all the 

time. 

Senator FEINSTEIN. Okay. I would like to read you an excerpt 

from a letter I received from Mark Kleiman, an attorney who appeared before you in the case of Lou v. Moore. Mr. Kleiman writes, 

and I quote, ‘‘I represent a whistleblower named Deborah Moore. 

Ms. Moore worked as a medical office biller for a physician. After 

discovering irregularities in Medicare and other insurance billing, 

an outright falsification of patient charting, Ms. Moore reported 

what she had found to various government agencies. She was then 

sued by her employer’s business partner. California State law includes a provision to protect whistleblowers and others who speak 

out to government agencies or in public fora from being subject to 

frivolous lawsuits. These lawsuits are commonly known as SLAPP 

suits, Strategic Litigation Against Public Participation. California 

laws give defendants who are the victims of frivolous lawsuits, such 

as SLAPP actions, the right to move for dismissal and to obtain attorney’s fees and costs. The defense of Ms. Moore involved a significant amount of work and Ms. Moore incurred nearly $40,000 in 

legal fees. Then the plaintiff voluntarily dismissed his action 

against Ms. Moore just days before a crucial hearing. Judge Kuhl, 

however, refused to award Ms. Moore the attorney’s fees to which 

she was entitled.’’ 

Mr. Kleiman goes on to say that the appellate court reversed 

you, holding that your decision, ‘‘constitutes a nullification of an 

important part of California’s anti–SLAPP litigation and relieved 

the plaintiffs of the punishment which the anti–SLAPP statute imposes on persons who use the courts to chill others’ exercise of their 

constitutional rights.’’ 

1051

Could you please respond to Mr. Kleiman’s and the appellate 

court’s criticism of your decision in this case? 

Judge KUHL. I would be glad to try to do that, Senator. That was 

an issue of first impression and Mr. Kleiman properly describes 

what the SLAPP statute is designed to accomplish. In that particular case, what is called a SLAPP motion was brought by this 

whistleblower defendant, saying that there was no basis for the litigation. Now, ordinarily, litigation can be filed and we don’t test at 

the beginning of the litigation whether there is a basis for the lawsuit. But when it is a SLAPP lawsuit, in other words, when someone is exercising their First Amendment rights or reporting something to the government, then there is a higher standard involved. 

So in this case, the defendant’s motion was that the lawsuit 

should be dismissed because it didn’t have an adequate factual 

basis. I never got to hear that motion because the case was dismissed by the plaintiff. No doubt seeing this motion, they thought 

they couldn’t defend it perhaps, and they dismissed it. 

The issue of first impression was what power remains to the 

court at that point. The statute said that when a motion is granted, 

when a SLAPP motion is granted, fees may be awarded. I never 

had a chance to decide that SLAPP motion, so could I award fees 

or not? And so it was an issue of statutory construction and an 

issue of first impression. 

I struggled a good bit with the issue of, well, what is the jurisdiction of the court when the case has gone away? The court of appeal 

handled that, I thought, well, and not in a way that was argued 

to me on the trial court, and the court of appeals said the court always has authority to decide adjunct issues that remain when the 

case is dismissed. 

As I say, it was an issue of first impression. Justice Walter 

Croskey wrote the decision and you have a letter from him in support of my nomination, and I thank you also for having recognized 

those letters in my support, Senator. 

Senator FEINSTEIN. Thank you. While you were in private practice, did you participate in any litigation on a pro bono basis, and 

if so, could you tell us which cases and the general subject matter? 

Judge KUHL. Yes, I can, Senator. I took on matters that were referred by public counsel, and these were matters—one was on behalf of Enorma Mays and one was on behalf of Leonore Gonzales. 

Each of these cases involved the very sad situation where people 

with—in lower socio-economic brackets may be preyed upon by people trying to take their home, a kind of—they would fraudulently 

record a deed or forge a deed, and both of those cases were variations on that situation. I filed suit on behalf—in the separate 

cases on behalf of each and, happily, was able to get title back in 

the hands of my clients and have their homes restored to them. 

Senator FEINSTEIN. Any other pro bono cases? 

Judge KUHL. Those would have been the ones, Senator. For the 

9 years that I was in practice after I was in public service with the 

government, I was having my children, and they are here, and I 

am very proud of them. I think I have done pretty well. But I was 

trying to hold down a partnership in a major law firm and to raise 

my children. But what I am happy to say is that there came a 

1052

point when I was able to undertake public service again and to go 

on the bench and become a Superior Court judge. 

Senator FEINSTEIN. In 1993, when you drafted a brief for Mary 

Baldwin College in support of the constitutionality of the exclusion 

of women from the Virginia Military Institute, were you working 

for the organization on a pro bono basis, and how did you decide 

to take on Mary Baldwin as a client instead of another public interest organization? 

Judge KUHL. That brief actually, in the VMI case, was not a brief 

in support of the constitutionality of VMI. The position taken in 

that brief was that the court should accept the VMI case. It was 

a brief in support of the petition for certiorari. It was asking the 

Supreme Court to take that case so as to clarify that all-women’s 

schools could—were not unconstitutional, essentially. 

The brief, if you look at it, mostly is a defense of all-women’s 

schools and the value of single-sex education for women. It does—

it is in support of VMI in the sense that says, yes, Supreme Court, 

please take this case, but it does not offer any constitutional argument in support of what VMI was doing. So it was a narrow brief 

under those circumstances. 

It was filed on behalf of the women’s organizations. It was referred to me through counsel who was representing VMI; in other 

words, the VMI, perhaps, had found three colleges in Virginia who 

wanted to file a brief, but their brief was limited, and the major 

portion of it was kind of a, we call them ‘‘Brandeis briefs,’’ in support of women’s education, as women’s single-sex education. 

Senator FEINSTEIN. What was the group that you represented 

that Mary Baldwin was part of? What was the organization? 

Judge KUHL. I may be wrong, but my recollection is it was just 

the three colleges. It wasn’t a group. It was the three women’s colleges in Virginia. 

Senator FEINSTEIN. So you are saying the point of the brief was 

to sustain three women’s colleges? 

Judge KUHL. The point of the brief was these women’s colleges 

said we feel that the decision of the Court of Appeal has made us 

uncertain about the constitutionality of what we do and maybe 

whether we can keep getting tax exemptions. So, please, Supreme 

Court, take this case and clarify that single-sex education for 

women is not unconstitutional. 

Senator FEINSTEIN. Do you happen to recall what the three women’s—these were private women’s colleges? 

Judge KUHL. They were private women’s colleges. It was Mary 

Baldwin—I’m just not remembering, Senator, I’m sorry. 

Senator FEINSTEIN. Perhaps you could get that to me. 

Judge KUHL. Surely, I would be glad to. 

Senator FEINSTEIN. I would like to read the brief. 

Judge KUHL. Yes, I would be glad to get the brief to you, Senator. 

Senator FEINSTEIN. Thank you very much. 

I see Senator Durbin. Thank you very much, Mr. Chairman. I appreciate the time. Thank you. 

Chairman HATCH. Thank you, Senator. I know you take these 

matters seriously, and I was glad to be able to give that time to 

you. 

1053

Let me take my time for questions now and just ask a few, along 

the same lines, if I can. 

Judge Kuhl, in response to written questions from Senator 

Boxer, you stated that, ‘‘The Federal Government has, and should, 

play an aggressive, vigorous role in fighting discrimination.’’ 

You also stated, ‘‘The civil rights laws have had a major impact 

in changing our society for the better, including by giving the Executive Branch the power to punish unlawful discriminatory conduct 

in employment, housing, Government contracting and Federal programs. The Government must continue to be a force for change by 

rooting out discrimination under its statutory mandates and bringing actions to compensate victims of discrimination.’’ 

Now, your record and reputation as a judge supports this commitment to following our civil rights laws. Let me ask you about 

one specific case, and I hope I am pronouncing this correctly. It is 

Frances Iwekaogwu—is that about right? 

Judge KUHL. I think that’s about right, Senator, yes. 

Chairman HATCH. It is close enough.—v. City of Los Angeles. Do 

you recall this case? 

Judge KUHL. Yes, I do Senator. 

Chairman HATCH. Can you please just tell us about it a little bit. 

Judge KUHL. Yes, this was a case—and I think the pronunciation 

is Iwekaogwu. That’s the way I pronounce it—but this was a case 

that came before me during about a three-month period that I sat 

as a pro tem justice of the California Court of Appeal, and I wrote 

the opinion in that case. 

It was about a Nigerian-born African–American employee—engineer—who was an employee at the County of Los Angeles, who the 

jury found had been discriminated against and had been retaliated 

against for complaining about discrimination. And in that case, the 

jury’s fact-findings were being challenged, and my opinion recites 

the evidence in favor of the plaintiff in order to support the position of the jury award, and it also affirmed an award, a rather substantial award, of emotional distress damages for the plaintiff. 

We published the decision—my colleagues and I published the 

decision—because it takes some Ninth Circuit precedent speaking 

to the issue of what evidence may be offered in support of a race 

discrimination claim and takes that law into California law. So 

that is why we published it. 

Leo James Terrell, the attorney for Mr. Iwekaogwu, has written 

a letter strongly supporting your nomination. In his letter he said 

that he is an attorney for the NAACP and a life-long Democrat. He 

also say that you were, ‘‘A major factor in the successful resolution 

of that case.’’ 

He continued on saying, ‘‘During the lengthy litigation process, 

I found that Judge Kuhl was fair, impartial, competent and at all 

times extremely professional. I, personally, have no problem with 

the appointment of a Republican judge to the Ninth Circuit bench 

as long as that judge is fair and impartial. Judge Kuhl is just that 

person.’’ 

‘‘I submit that your decision regarding the appointment should 

be based solely on the competency of the judicial candidate, not on 

politics. I will do everything in my power to ensure that Judge 

1054

Kuhl receives a nomination and to see that this nomination obtains 

the advice and consent of the Senate, as well as the public.’’ 

I will submit that letter for the record, without objection. 

Now, Judge Kuhl, I would like to ask you a few questions about 

your role in the Bob Jones University case, since that has come up. 

Let us get one thing clear at the outset, your views in 1982 on the 

position of the United States in the Bob Jones case were never 

meant to endorse racially discriminatory policies of Bob Jones University, were they? 

Judge KUHL. That’s correct, Senator. We were focusing on the 

narrow legal issue of the IRS’s statutory authority. 

Chairman HATCH. And you have never agreed with those discriminatory activities of Bob Jones University. 

Judge KUHL. I certainly have not, Senator, and I hope that my 

performance as a judge shows that I value the diversity of the legal 

community and the community at-large in which I work and that 

I strive to continue to work of enforcing the civil rights laws that 

have been such a wonderful force for change in our society in the 

last 40 years. 

Chairman HATCH. What was your position at the Justice Department at the time the Bob Jones case arose? 

Judge KUHL. I was a special assistant to the Attorney General. 

Chairman HATCH. How old were you at that time? 

Judge KUHL. I was 29. 

Chairman HATCH. Twenty-nine. How long had you been out of 

law school at that time? 

Judge KUHL. I’m going to say I think it was about two-and-a-half 

years, perhaps closer to three. 

Chairman HATCH. Did you have any decision-making authority 

at the Justice Department at that time in that position? 

Judge KUHL. No, sir. 

Chairman HATCH. In a recent Legal Times article, Charles Cooper, a highly respected Washington lawyer, who worked with you 

at the Justice Department, supported the fact that you were a junior lawyer at the Department at the time of the Bob Jones case. 

He characterized the left-wing group’s description of your role in 

the decision-making process as ‘‘unfair,’’ and ‘‘grossly incomplete.’’ 

Now, speaking of your role, Mr. Cooper said that Judge Kuhl, 

‘‘Wasn’t making policy. She was taking notes when she and I were 

even in the room.’’ 

Now, it is now 21 years later from when you, as a young lawyer, 

without any real authority, were in the Justice Department. You 

have been a State trial judge for 7 years, since 1995. Prior to that, 

you were a partner in a well-regarded Los Angeles law firm, really 

well-recognized all over the country. You now believe that your position on the Bob Jones case in 1982 was wrong, for a variety of 

reasons, and you have so stated that. 

If I understand your answers correctly, you believe that it was 

wrong because it appeared insensitive to minorities, regardless of 

the nondiscriminatory motives of the persons advocating or advancing this position. 

If I understand you correctly, you also believe it was wrong because, indeed, it was the duty of the Justice Department to defend 

Federal agencies, which it did not do here. 

1055

Now, is my understanding basically correct here? 

Judge KUHL. Yes, Mr. Chairman, it is. 

Chairman HATCH. I want to share the Committee an op-ed that 

you have mentioned, written by Harvard law professor, and former 

Solicitor General Charles Fried, for whom you worked several 

years after the Bob Jones case was decided. 

Now, in that op-ed, which was published on January 17th of this 

year in the Los Angeles Times, Professor Fried says, ‘‘The left-wing 

rap against Kuhl is that more than 20 years ago, as a 29-year-old 

junior member of the U.S. Attorney General William French 

Smith’s staff, she expressed a view that, however odious the practices and beliefs of Bob Jones University, it was not the job of the 

IRS to make social policy by deciding which nonprofits would enjoy 

the tax exemptions mandated by Congress.’’ 

Now, is that a fairly accurate summary of your views at that 

time? 

Judge KUHL. Yes, Senator. 

Chairman HATCH. Mr. Fried continued, ‘‘Certainly, Kuhl, a devout Roman Catholic, could have harbored no personal sympathy 

for the virulently anti–Catholic University. By the time Kuhl came 

to the Office of the Solicitor General as my deputy in 1985, I knew 

she had come to believe, as did I, that she had been wrong if, for 

no other reason, than seeming to side with Bob Jones confused the 

Reagan administration’s message that we were strongly committed 

to civil rights and racial equality, while opposed to quotas.’’ 

I will submit a copy of that editorial for the record, without objection. 

Now, Judge Kuhl, is Professor Fried right when he says that by 

the time you began working for him in 1985, you had already determined that your position on the Bob Jones case was wrong? 

Judge KUHL. Mr. Chairman, yes, Professor Fried is correct in 

stating that. 

Chairman HATCH. And it was a narrow position at that time, basically one that you did not think that the IRS should be setting 

policy. 

Judge KUHL. That’s correct, Mr. Chairman. 

Chairman HATCH. Now, I think it is important to note that you 

have long held your belief that your original position on the Bob 

Jones case was wrong. Now, this is not a so-called ‘‘confirmation 

conversion,’’ and anybody who tries to make it that is—to use the 

word again—wrong. 

Now, you have carried this belief with you for 21 years. Now, it 

takes an honest person of great integrity to admit when she is 

wrong, and I commend you for it here. 

Now, just to clarify. Judge Kuhl, the memo you wrote, to which 

Senator Leahy referred on the Bob Jones case, was not an appeal, 

a recommendation on appeal certiorari or amicus curiae matter or 

it certainly was not a recommendation in those areas, was it? 

Judge KUHL. That’s correct. It was a memorandum to, I believe, 

the assistant attorney general, and I was at that time a special assistant to the Attorney General. 

Chairman HATCH. The reason I bring that up is because we get 

continuously this argument that the seven living former Solicitors 

General should be ignored in the Miguel Estrada case and that cerVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01069 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
1056

tain Democrats should be allowed to have a fishing expedition into 

the recommendations on appeal certiorari and amicus matters, 

which of course this was not; is that correct? 

Judge KUHL. That’s correct. 

Chairman HATCH. Judge Kuhl, my time is up. I will turn to the 

esteemed Senator from Illinois, Senator Durbin. 

Senator DURBIN. Thank you very much, Mr. Chairman. 

Thank you, Judge Kuhl, for joining us. 

I was out at another meeting, and I came back to hear both Senator Feinstein and Senator Hatch say that you do not hold to the 

position on Bob Jones University, in which you wrote in a memo 

21 years ago as an employee of the Department of Justice; is that 

true? 

Judge KUHL. That is correct, Senator Durbin, yes. 

Senator DURBIN. Let me ask you if positions that you have taken 

relative to affirmative action, where you referred to it as ‘‘a divisive 

societal manipulation,’’ have you changed your position on that? 

Judge KUHL. Well, Senator, since I wrote that article, first of all, 

the primary thrust of that article was to state the importance of 

individual remedies and of putting persons who have been discriminated against back in the place where they should have been, absent that discrimination, and that was the thrust of that article. 

Since I wrote that article, however, the Supreme Court—that article was written at a time when the Supreme Court was very 

much up in the air about race-based remedies when there had been 

prior discrimination. Since that time, the Supreme Court has come 

to rest on that issue in the Adarand case and has held that in appropriate circumstances, race-based remedies can be used to remedy past discrimination. 

Senator DURBIN. Have you changed the position you stated in the 

Thornburgh case, in which you called on the Supreme Court to 

abandon Roe v. Wade? 

Judge KUHL. Well, Senator, since the Thornburgh brief was written, the Casey case has been decided. Casey looked at Roe again, 

considered the criticisms that had been made of that decision and 

reaffirmed that decision. Casey is the law of the land. It strongly 

reaffirms the right, the constitutional right to women’s reproductive freedom, and I would apply that precedent fully and completely. I have absolutely no trouble with that, Senator. 

Senator DURBIN. So it is a basis of, I mean, do you accept the 

Court’s premise of the privacy issue here? 

Judge KUHL. Yes, certainly. 

Senator DURBIN. Then, let me ask you about a specific case, 

which I have found to be the most troubling of anything you have 

been involved in, Sanchez-Scott v. Alza Pharmaceuticals. 

In this case, a breast cancer patient went to her oncologist for 

a routine visit. During this visit, the doctor brought a man, described only as ‘‘a person who was looking at Dr. Polonsky’s work’’ 

into the examination room. This man turned out to be a drug salesman for Alza Pharmaceuticals, as the patient later found out. This 

man, this drug salesman in the doctor’s office, watched the examination, which included removal of the patient’s shirt and bra. Citing an invasion of privacy, the patient sued the salesman and the 

pharmaceutical company. 

1057

You rejected the invasion of privacy claim by the breast cancer 

patient, when this drug salesman was invited into the room to 

watch this woman disrobe for the medical evaluation. 

On appeal, the Court of Appeals unanimously found in favor of 

the plaintiff, reversing your decision. 

Would you like to explain your concept of privacy, as it applies 

to that fact situation? 

Judge KUHL. Yes, Senator. 

First of all, I think it’s important to recognize, in that case, that 

the woman, I’m sure, was very upset with her doctor, and had a 

right to be upset with her doctor, for allowing this third person into 

the examining room. She did have a tort claim against the doctor 

that was part of the lawsuit, but was left standing by my decision, 

and was not interfered with at all. In other words, her claim 

against the doctor that he didn’t get her consent to allowing this 

person to come in, that claim was going to go forward. 

Senator DURBIN. But I take it you rejected her claim against the 

salesman in the room and the pharmaceutical company that he 

worked for. 

Judge KUHL. That claim was the claim that was before me, and 

the Court of Appeal had I think a closer focus in that situation on 

the seriousness of the invasion, not just because of the presence in 

the room, but because of what also happened in the room, and they 

also— 

Senator DURBIN. It is a pretty outrageous situation, is it not? 

Judge KUHL. I think it is an outrageous situation. 

Senator DURBIN. But you did not see it as an invasion of privacy? 

Judge KUHL. Well, I was trying to interpret California law. What 

was being cited to me was Michigan precedent. I think that the 

Court of Appeal has clarified the law in this area. I am happy that 

it has been clarified. I have certainly no problem with what the 

Court of Appeal did. 

And Justice Paul Turner, who wrote the decision in that case, 

has written in support of my nomination, and I think addresses, in 

some detail, this decision and states that, although he overturned 

it, there were strong arguments to be made in support of it. 

But let me restate again, I think that the woman had very good 

reason to be upset, and good reason to be upset with her doctor for 

letting this third person in the room. 

Senator DURBIN. But had no right to a claim of action against 

the person who was brought into the examining room, nor the company he worked for. 

Judge KUHL. After looking at the law was presented to me, that 

was the conclusion that I reached, but the Court of Appeal has 

clarified that. I am very happy with the Court of Appeal’s decision, 

and I certainly would follow that in the future. 

Senator DURBIN. I would think common sense would have clarified that. 

Let me ask you about an article that you wrote in the New York 

Times on June 16, 1993. Were you working for the Department of 

Justice at that time? 

Judge KUHL. No, Senator, that—I’m sorry—was— 

Senator DURBIN. After your— 

1058

Judge KUHL. I can see it through the paper. I think I know what 

you are referring to. 

Senator DURBIN. ‘‘Clinton dithered, Reagan didn’t.’’ 

Judge KUHL. I was in private practice at that time. 

Senator DURBIN. You have got an interesting paragraph in this 

story, and I think the Chairman should take a look at this, as well 

as other members, and here is what it says, and I quote, ‘‘President 

Ronald Reagan knew what he was looking for and how to find what 

he wanted. He had a clear view of how he wanted Supreme Court 

jurisprudence to change and had an intelligent, discreet and trusted advisory, William French Smith, his first Attorney General, who 

knew how to organize the selection process.’’ And then you go on 

to talk about the process followed by President Reagan in filling 

Supreme Court vacancies and the process followed by President 

Clinton. 

Is it fair to conclude from that paragraph that you are saying 

that President Reagan—you speak in positive terms here, that he 

did not dither—had at least a concept of an ideology that he was 

seeking? And, if so, is your ideology part of the issue that we 

should consider here as you seek this important position? 

Judge KUHL. Senator, what I was talking about in that article 

was the selection—President Reagan’s side of it—what I was talking about was the selection of Justice Sandra Day O’Connor. And 

I know that President Reagan, I know that Attorney General—I 

certainly know that Attorney General Smith was very proud of that 

nomination, and I assume the President was as well. 

I think it was clear that President Reagan and Attorney General 

Smith wanted judges who would follow the law, who would interpret, as best they could, what the legislator enacted and who would 

not themselves legislate, and that’s what I was talking about. 

Senator DURBIN. Strict constructionism? 

Judge KUHL. I would reject that label, Senator. I think that I am 

just a constructionist, if you’re applying it to me. 

Senator DURBIN. I am just asking. What— 

Judge KUHL. What I try to do, and maybe this can— 

Senator DURBIN. Was Justice William Douglas a constructionist? 

Judge KUHL. Well, maybe this can help, Senator 

When I was sworn in seven-and-a-half years ago as a judge of 

the Los Angeles Superior Court, I quoted Justice Felix Frankfurter 

as the type of judge that I wanted to be. And Justice Frankfurter 

said that the highest duty of a judge is to put aside one’s personal 

will and one’s private views and follow the law, and that’s what I 

believe. I said that then, seven-and-a-half-years ago, on the occasion of my swearing in as a judge of the court I am now on, and 

that is my model. 

Senator DURBIN. I would like to submit some questions for the 

record, since I do not have enough time to get into them here, 

about your views as a constructionist. Usually, people try to say 

what kind of constructionist they are, but you are now in a generic 

category, and I assume there are strict constructionists, and flexible constructionists, and liberal constructionists, and conservative 

constructionists, but you are just a constructionist. 

1059

And I am going to ask some questions, if I can, to follow up in 

writing as to what that really means and how that might apply to 

a given case. 

Let me just close, Mr. Chairman, with your permission, I would 

like to ask that a letter from Senator Boxer, as well as several organizations, relative to this nomination be made part of the record. 

Chairman HATCH. Without objection. 

Senator DURBIN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman HATCH. We will turn to Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. 

First, I would like to say I did not hear all of the distinguished 

ranking member’s comments about the ‘‘blue slip’’ policy with regard to Circuit Court of Appeals, but it is clear that it has never 

been the policy of this Committee that one Senator who happened 

to be in the circuit could block a nominee. 

In fact, I remember very distinctly, not long after I came to the 

Senate, that when President Clinton was President, and you were 

Chairman of the Committee, and that a Republican member said 

we should adopt such a policy, and there was a debate within the 

Republican Conference, and you spoke forcefully and aggressively 

that it was not a good policy, and there was a vote, and your position prevailed. 

And it has never been the policy of this Senate that, with regard 

to Courts of Appeals nominees, a single blue slip is a decisive factor. In fact, the Presidents have always asserted that they have 

much less need, with regard to a regional appointment like a circuit judge, to seek home State approval even. 

We just had one from Alabama, one from the Eleventh Circuit, 

and the President makes his own pick, basically, and I think that 

is a healthy thing. So I just would want to defend you on that. 

Judge Kuhl, with regard to this matter that you were just being 

asked about, about the doctor and the drug company representative 

being in the examining room, let me just say it is amazing to me 

how much drug company representatives are involved in medical 

practice. Sometimes they know more than the doctor. Sometimes 

they are known to come in and give advice on operations and 

things of that nature. So it is an odd thing to me that that occurs, 

but do I understand that the doctor had approved this man coming 

into the room? 

Judge KUHL. The doctor had brought the third person into the 

examining room. 

Senator SESSIONS. So the doctor, who had the care of the patient 

under his control, invited this person to come into the room; is that 

correct? 

Judge KUHL. That was my understanding of the facts, yes. 

Senator SESSIONS. And you allowed the lawsuit to go forward 

against the physician, but did not allow it to go forward against the 

third party who the doctor had allowed to come into the room. 

Judge KUHL. Yes, Senator. 

1060

Senator SESSIONS. Well, that, to me, is a close call at best. I 

think that is what law is all about—who is responsible for the bad 

act occurring. You allowed the case to go against the responsible 

party, it seems to me, and I am not sure that—I think a good case 

can be made that if he was asked into the room or allowed to come 

into the room by the physician that the person should not be held 

liable under these circumstances. I just do not know, but I do not 

think that is an extreme opinion at all. 

Mr. Chairman, I have to go to the floor to preside, and I would 

yield back my time. 

I would just say this nominee’s record is extraordinary. She has 

got a tremendous background and not only has the academic background, she clerked for Justice Anthony Kennedy on the Ninth Circuit, which is the circuit you will be going on, a great justice, and 

in the course of that, that is the finest experience that a court 

judge can have, to clerk on that very same court. She finished academically with the highest honors and has had just a terrific record 

on the bench in California. 

All of these judges writing on your behalf has got to be a source 

of great comfort and affirmation for you. So I congratulate you, and 

I think she will make an outstanding member of the bench. 

Chairman HATCH. Thank you, Senator. 

We will turn to Senator Kennedy. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much. 

Welcome, Judge. 

Judge KUHL. Thank you, Senator. 

Senator KENNEDY. I regret that I was not here earlier. 

I took the opportunity this morning to go to the Supreme Court 

and to hear the University of Michigan case, and as I sat in the 

court, I was mindful that next year we are going to have the 50th 

anniversary of the Brown v. Board of Education. And I am also very mindful that I think the issue of discrimination, and racism, and bigotry are—America will never be America 

until we free ourselves from it. That is why I believe that this case 

is so important because I believe that if it is decided in certain 

ways, with the Voting Rights Act coming up in another year, the 

extension for the Voting Rights Act, it could perhaps have profound 

implication on this and really be perhaps a watershed kind of decision, in terms of how this country is going to proceed with issues 

of discrimination in our society. 

It was, obviously, extremely well-argued by both sides, but it 

still, I think, underlies really, at least for me, the importance of 

civil rights in our society. As you well understand, we wrote discrimination into the Constitution, we fought a Civil War. Dr. King 

led us, in a very important way, over a long period of time, but we 

are still wrestling with this problem, and there has been a variety 

of different, obviously, decisions which have had important implications in the recent times, but it is an area which I am very interested and strongly committed to. 

So I hope you will just understand if you will come back and revisit at least the Bob Jones situation. I know that I listened to the 

1061

comments of our Chair and also your responses to that situation, 

and it was some time ago. 

It is one thing to have an opinion about the Bob Jones case and 

have a view about it, but I am looking through your activity during 

this period of time as a high-level Government lawyer in the administration—the Reagan—you worked to reverse the longstanding 

policy granting the tax exemption of racially discriminatory private 

schools, and you sought to reverse the policy, over the objections 

of the head of the IRS, and the acting Solicitor General, and then 

the head of the Office of Legal Counsel, Ted Olson. 

And more than 200 employees of the Civil Rights Division signed 

letter opposing the Reagan administration position in the Bob 

Jones case, as casting serious doubt upon the Division’s commitment to enforce vigorously the Nation’s civil rights. 

I remember this case very, very clearly, and it was a major, 

major cause celebre, in terms of the consideration and the judgment on it. 

And then the Supreme Court rejected the arguments that you 

had sought to put forward, to deny tax-exempt status to racially 

discriminatory schools. Only one justice, one justice only, Justice 

Rehnquist, dissented. 

And then in response to the written questions from Senator 

Boxer, you said that you had no decision-making authority with respect to the Government’s position and that the decision was made 

by the Attorney General. 

I am sure it is correct the Attorney General made the ultimate 

decision, but it appears you took a prominent role. You co-authored 

a 40-page memoranda. The then head of the Civil Rights Division, 

Bradford Reynolds, arguing the IRS policy of denying tax-exempt 

status to racially discriminatory schools should be changed. 

You wrote a memo to Ken Starr, collecting Reagan campaign material, showing that Reagan, as a candidate, had opposed IRS attempt to remove the tax-exempt status of these schools, and statements from the 1980 Republican platform, opposing the IRS’s position policy. 

And in a book written about the role of the Solicitor General, it 

is noted that the Reagan administration’s interest in the case bubbled up from the middle ranks, especially from you and another attorney. You are described as a key member of the Bob Jones team, 

that you sought to reverse the IRS policy, circumventing the acting 

Solicitor General to do so. 

So the issue is why you felt that you had to play such an unusually active role in getting the Government to restore the tax-exempt status to the racially discriminatory schools. I know it has 

been a long time, and as I believe you have answered that in terms 

you did not believe the IRS ought to be making that judgement. If 

there is anything you want to— 

Can you cite a case in which you have held for civil rights’ plaintiffs? Have you had any cases? 

Judge KUHL. Yes, Senator, I can, and I appreciate your saying, 

harking back to that time of Bob Jones and saying it was such a 

big case. It was way over my head at the time. I really, as I have 

said in my answers to Senator Boxer, it was wrong because the 

Justice Department should have been defending the traditional poVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01075 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
1062

sition of the IRS, and it was wrong because it didn’t put nondiscrimination first, and that’s where the emphasis should have 

been, despite the concerns about what the IRS might do in the future to all-women schools or whatever, which was what was in my 

head. 

But with respect to my current record, Senator, I’m very proud 

of the decision that I wrote during the time that I sat on the Court 

of Appeal in the case called Iwekaogwu, and in that case the Court 

of Appeal—I was writing for them—affirmed the jury verdict in 

favor of a civil rights plaintiff, an African-American who had been 

discriminated against in the workplace in county employment, and 

upheld a very significant emotional distress award in his favor. 

In that case, we took Ninth Circuit precedent that is very strong 

in favor of the types of evidence that can be presented in discrimination cases in favor of the plaintiff and put into that State law. 

So I’m very proud of that decision, and I’m also proud that civil 

rights lawyers who know my work, such as Leo Terrell, who was 

counsel in that case, have written on my behalf and Vilma Martinez, whom I have known for many years. 

Senator KENNEDY. Well, again, that is impressive because I have 

very high regard for her. I know her well. 

If you have other cases on this, we would welcome them. 

You said, as I understand this morning, that while you are still 

the justice, you expressed regret to Charles Fried about the Bob 

Jones case. As I understand, Fried had said that you did come to 

him and tell him that the position you took was wrong politically 

because it sent the wrong message. What do you remember, when 

you said you took the wrong position, did you believe it politically 

because it was just basically wrong in terms of the underlying values of the consideration of the case. Do you remember? 

Judge KUHL. There wasn’t any one particular conversation that 

I recall, but I know that we had discussion about Bob Jones, and 

certainly we did say that taking that position had been really a disaster for the Reagan administration, absolute disaster. 

But I also felt—I don’t know whether I expressed this to Charles 

Fried—but I also felt that we really had had the wrong focus there 

for the reasons I have stated and that the policies of nondiscrimination should have come forward, and any problems we 

had about potential IRS overbreadth should have been taken care 

of through legislation or regulations, but I didn’t have the breadth 

to see that at that time. 

Senator KENNEDY. Let me just continue on this point. 

This is not the only case that gives me concern. The Reagan administration actually rolled back protections for minorities in cases 

such as school desegregation and affirmative action. 

While working in the Solicitor General’s Office, you signed onto 

briefs that opposed remedial affirmative action in that Local 28 of 

the Sheet Metal Workers’ case. The union in that case had egregiously violated Title VII, they administered discriminatory entrance exams, paid for cram courses for relatives of members that 

were unavailable to minorities, favored white applicants, while denying transfers of qualified blacks, and issued temporary work permits to white members of distant construction unions, but despite 

1063

the evidence of intentional discrimination, you opposed affirmative 

action programs to remedy this discrimination. 

Then, in private practice, you wrote an article making plain your 

opposition to affirmative action. Indeed, you criticized Affirmative 

Action as a divisive societal manipulation. 

Is there anything you want to tell us about that Sheet Metal case 

or your views about affirmative action. The real question I have is 

how can you give us assurance, based on your record, that you will 

be fair on civil rights cases, and you will be able to set aside your 

political views? 

Judge KUHL. Certainly, Senator. I want to emphasize that in the 

article, the primary thrust of that article had to do with my feeling 

that there needed to be a real insistence on seriously taking individual remedies seriously; that is, sometimes in class actions, there 

will be an overall remedy, but the people who should have been 

given jobs and who lost those—didn’t get those jobs because of discrimination, need to be put where they should have been, and that 

was the point of that article. 

But with respect to my current perspectives now, I have minorities—plaintiffs—come before me all the time. I am proud that this 

is a record that I have, that I have the support of the bar, both 

sides of the bar. And more importantly, having lived in Los Angeles 

now for some period of time, this is a very multicultural environment that I live in and one that I’m really very proud of. 

I was recounting, to some of my friends, that I had bene to a Chinese–American Bar Association event about a week-and-a-half ago, 

and this was on a Friday evening. It was crowded and so forth. But 

here at this event, Justice Carlos Moreno, a recent appointee to the 

California Supreme Court was there. I was sitting at the table with 

my former colleague, Enrique Romero, and I was sitting next to my 

colleague, George Wu, Karen Nobumoto, who is former president of 

the State bar, former president of African–American Lawyers, who 

was receiving an award, local political figures, local and statewide 

officeholders were there. 

And it was just, it really made me smile because here was an example of a way to affirm cultural identity, but yet open up, in this 

professional context, and have all groups come together in harmony, knowing each other, respecting each other and working together. And that is the kind of society that I would hope for, Senator. 

Senator KENNEDY. Well, I think I could not agree with you—I 

think if you look back over the history of a lot of those nominees, 

you would find out that a lot of them had a lot of difficulty in getting to where they are and are now serving with great distinction. 

That is not, in terms of your kind of situation, but it does, I think 

it is important, and that is what we are attempting to achieve. 

I would just ask you a global question, and it is along the lines 

of what I have mentioned before. We, obviously, entrust the Federal judges with protection of the highest ideals of our republic. 

They should actively protect the rule of law and play a special role 

in advancing the civil rights and civil liberties, and they should 

stand against discrimination in our society, and they should prevent the personal views of anyone from interfering with the rights 

of people. 

1064

Now, let me, if I can, make this point. You, however—and then 

get your reaction—appear to be an activist—I want to hear how 

you respond to this—an activist for your political goals. You have 

taken extraordinary steps, while a Government employee, to push 

the Government to call for overturning the Roe v. Wade. You have 

chosen to defend restriction on a woman’s right to choose, even 

when those restrictions were clearly contrary to Federal law. 

You have been specifically named as one of a band of the young 

zealots who tried to have the Federal Government weigh in on the 

side of racially discriminatory policies of higher education. You 

argue in favor of the Virginia Military Institute policy of discriminating against women. You argued that a woman who suffered 

humiliating sexual harassment at work was not entitled to any 

compensation under antidiscrimination laws. As a judge, you dismissed a case brought by a breast cancer victim after her doctor 

invited a drug salesman into the examination room while the doctor examined her. The two men apparently mocked the patient. 

In all of these cases, the position you supported, was rejected. If 

you become a judge of the Ninth Circuit, how can we be sure that 

you will not continue this sort of lack of sensitivity on issues of 

civil rights and women’s rights issues? 

Judge KUHL. Senator, the positions that I took as an advocate, 

I put those aside, and I put aside my role of advocacy when I became a judge seven-and-a-half years ago. I now have a record as 

a bench officer that I am very proud of, in support of the rights of 

all people who come before me. 

And as a trial judge, you know, you see these people face-to-face 

that come into your courtroom, and it is so apparent to me how important it is that people who come into my court not only are fairly 

treated, but feel fairly treated, and that is the sensibility that I 

bring to my job as a judge, following the law, whether or not I 

agree with the law, and treating everyone who comes before me 

fairly, without regard to their social station, without regard to their 

race or their ethnicity. 

And I take great joy in working with our highly diverse juries 

that we have in Los Angeles, who come together and just do such 

a wonderful job putting aside who they are, what their social station is and working together to make our jury system work so well. 

So those are some of the things that I am committed to, Senator. 

And I think that the support that I have from my colleagues, from 

the Court of Appeal justices who know my work and have written 

on my behalf, from 23 women colleagues who have written on my 

behalf, and from the bar, generally, including the plaintiff’s bar, 

even though I was a defense lawyer, I think all of that speaks to 

my performance as a jurist and to the fairness that I bring to the 

job. 

Senator KENNEDY. I believe my time is up. 

I will yield to Mr. Chambliss, if I can do that, before Senator 

Hatch comes back. 

[Laughter.] 

Chairman HATCH. I am here, but did you have any further questions? 

Senator KENNEDY. No, that is fine. Thank you. 

Chairman HATCH. We will go to Senator Chambliss, then. 

1065

Senator CHAMBLISS. Thank you, Mr. Chairman. 

Judge Kuhl, I notice that you are a graduate of Duke, and I will 

have to tell you that I am not going to let it cloud consideration 

of your nomination that the Duke women beat my University of 

Georgia women over the weekend. But it was a great ball game. 

I don’t want to leave hanging what Senator Durbin was talking 

to you about because I can see the argument on the floor right now. 

Somebody is going to take your comments about being a constructionist of the Constitution. I want to give you an opportunity to expand on that a little bit. 

If anybody asks me, after practicing law for 26 years, what category I would fit in with respect to the Constitution, I tend to think 

I would be more of a strict constructionist. As I judge, I am hearing 

you say that maybe you are a little more moderate than that, but 

I don’t want to put words in your mouth. I want to give you an opportunity to say what you really mean by that. 

So let’s start off talking about the Constitution and how you as 

a member of the Ninth Circuit bench would approach any case that 

has constitutional issues. What would be your response to any case 

coming before you with respect to constitutional issues and your interpretation thereof? 

Judge KUHL. Well, perhaps I wasn’t too clear in my response to 

Senator Durbin, mainly trying to avoid labels because I don’t find 

them to be very helpful. But I think in approaching a constitutional 

issue, one approaches it first with the language of the Constitution, 

the history of the enactment in that provision in the Constitution, 

and importantly also the precedents that have evolved under that 

constitutional provision. And those, I think, have to be the foundation of where one turns for beginning a constitutional analysis. 

Senator CHAMBLISS. I think you could not have been clearer in 

your statement about precedents, irrespective of what personal 

feelings you have. You obviously have a terrific reputation as a 

trial judge on the Los Angeles Superior Court bench and I just 

want to confirm the fact that, as you have already stated, whatever 

your personal feelings may be, you would look at what the law 

says, what the precedent is with respect to any issue, be it a social 

issue, a criminal issue, or a constitutional issue, and that is how 

you would interpret—or you would abide by those precedents in interpreting the set of facts that might be before you. 

Judge KUHL. That is correct, Senator. That is what I have taken 

on as my responsibility as a judge and a responsibility I hope I 

have discharged well. 

Senator CHAMBLISS. I don’t want to go back and belabor the 

point again, but Mr. Durbin asked you about the case SanchezScott v. Alza Pharmaceuticals, and also Senator Sessions did. There 

were some comments about the letter from Judge Paul Turner, who 

is the Presiding Justice on the California Court of Appeals. He was 

the author of the opinion that overturned your decision in this 

case. 

Very honestly, he writes a pretty good opinion in this letter regarding that case and he talks about how you made a very wellreasoned decision and it was a very touch call for you to make. And 

his decision overturning your decision, he gives again some pretty 

1066

good rationale as to why you thought the way you thought and how 

your opinion was written, and also how his opinion was written. 

Mr. Chairman, I would like to enter this letter in the record. 

Chairman HATCH. Without objection, we will put it in the record. 

Senator CHAMBLISS. I want to go to another case, Judge Kuhl. I 

understand that some of the opposition to your nomination stems 

from claims that you represented Shell Oil Company in defending 

the company against having to pay for clean-up of contaminated 

land. I understand that your role in this case did not have anything to do with whether or not Shell Oil Company was liable to 

the plaintiffs. 

Could you please clarify what your role was in the Nelson v. 

Shell Oil case? When did you become involved in the case and what 

issues did your argument focus on? 

Judge KUHL. Yes, Senator, and in Nelson v. Shell Oil I was 

hired, I think, after the first appellate decision had come down. In 

other words, there had been a trial, there had been an appeal. 

There was a partial reversal on the appeal, there was another opinion. This case was up on appeal on appeal about three times. 

I was hired as appellate counsel on the case to address the issue 

of the amount of the punitive damages award, and I made arguments to the court of appeal about the amount of that award and 

that was arguing on behalf of the defendant that it should have 

been a smaller award. And that was the extent of my involvement 

in that particular case. 

Senator CHAMBLISS. I understand in 1993 you represented three 

private women’s colleges in an amicus curiae brief before the U.S. 

Supreme Court regarding the constitutionality of the exclusion of 

women from Virginia Military Institute. 

First, can you tell me how you became involved in that case, and 

could you please tell me what position you took regarding the constitutionality of denying women admission to the VMI? 

Judge KUHL. Yes. In the VMI brief that I wrote, I was contacted 

and requested to write a brief on behalf of the three women’s colleges. And primarily what the women’s colleges wanted to address 

in that brief was the importance of single-sex education for women. 

I am familiar with that topic because I myself went to an all-girls 

school for high school and my two daughters are in all-girls—well, 

one is in an all-girls school now; one will be next year. So I feel 

pretty strongly about the helpfulness of that to women as preparation for professional lives. 

But in any event, the brief primarily described the literature that 

supports the value of single-sex education for women and asked the 

Supreme Court to take the VMI case in order to clarify that whatever it said with respect to VMI, single-sex education for women 

would not be unconstitutional. 

The women’s colleges felt insecure, if you will, based on—with respect to the court of appeal opinion and if that had been left standing, they were concerned that arguments could be made that they 

might lose their tax exemption or that they were being discriminatory in not admitting them. 

Senator CHAMBLISS. Judge Kuhl, I understand from your statement and previous statements by other folks up here that you have 

strong bipartisan support on your nomination, including bipartisan 

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support of 23 female judges on the Los Angeles Superior Court 

bench. Is that correct? 

Judge KUHL. That is correct, Senator. 

Senator CHAMBLISS. I think that is all I have, Mr. Chairman. 

Chairman HATCH. Thank you. 

Before I turn to Senator Schumer, let me just clarify one thing. 

Some of your critics certainly on the outside have tried to paint the 

picture that you are insensitive to civil rights. I don’t think anybody here has tried to do that; at least I hope not. 

Didn’t you find for the plaintiff in the Grobeson case? 

Judge KUHL. Yes, that is correct. 

Chairman HATCH. Can you elaborate for the Committee on that 

case and explain that to us? 

Judge KUHL. Yes, Senator. The Grobeson case was a case involving a police officer with the Los Angeles Police Department who 

was openly gay. And he had prior litigation with the police department, but in this particular case the issue had to do with his being 

disciplined for several situations, one of which was wearing a police 

officer uniform in a gay rights parade without the, allegedly—I 

mean, there was a factual dispute—without the permission of 

LAPD. 

Another one had to do with, I believe, his attendance at a funeral 

for an AIDS victim in uniform. There were several incidents such 

as that and he had been disciplined by the department, and the 

issue before me in that case was the discipline that had been given 

to him. And I reversed the discipline on the ground that he had not 

been adequately given notice of the charges against him in a particular instance, and so that discipline was reversed. 

Chairman HATCH. Well, I will put into the record an Associated 

Press article about the Grobeson case. The article was dated September 6, 2001. It just said, ‘‘A judge has ordered the police department to reverse a suspension of a former officer who won a landmark legal settlement that dealt with alleged discrimination and 

harassment toward gays within the agency. Superior Court Judge 

Carolyn Kuhl said Tuesday the department must provide former 

Sergeant Mitchell Grobeson with pay, plus interest, for a 195-day 

suspension in which he received no salary. The judge’s order didn’t 

specify the amount owed to Grobeson.’’ 

And it goes on to say that he wore his police uniform without 

permission while attending a gay pride festival, and in a magazine 

advertisement recruited homosexuals to the LAPD. ‘‘Police officials 

couldn’t be reached for comment Thursday. Grobeson and two other 

officers won $770,000 in a civil suit in February 1993. As part of 

the damages, the department promised to improve its hiring and 

training of gay officers. But Grobeson claims the department failed 

to follow up with the reforms and filed another suit in January 

1996. In the second suit, he also alleges that fellow officers and supervisors harassed him. The department filed misconduct charges 

against Grobeson in June 1996. He later retired on a stress disability claim and challenged the suspensions in court. In 1999, 

Kuhl threw out the suspensions because the department’s Board of 

Rights modified the formal charges against Grobeson without giving him fair notice. Negotiations between Grobeson and the departVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01081 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
1068

ment for possible settlement broke down and his attorney sought 

an order asking for back pay,’’ unquote. 

Is that a fairly accurate account? 

Judge KUHL. As best I remember, Senator, yes, Mr. Chairman. 

Chairman HATCH. Okay, thanks. 

We are going to turn to Senator Schumer, and perhaps he will 

be our last questioner today. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. I thank you for 

the courtesy. If I hadn’t been able to make it back, you were willing 

to wait and I very much appreciate that. 

Judge Kuhl, I want to welcome you and your family here today. 

I want to congratulate you on the nomination. 

Judge KUHL. Thank you, Senator. 

Senator SCHUMER. I am sorry that this is going to be—that it is 

already an adversarial and contentious process, but I am sure you 

appreciate the magnitude of the job you have been nominated for, 

obviously a lifetime appointment, and the importance of us fulfilling our constitutional duties in this process, not to ourselves but 

to the people I represent. 

As I was reading your record this weekend, and in particular I 

was looking at one of the cases, the most contentious one, Azucena 

Sanchez-Scott v. Alza Pharmaceuticals, I began thinking about the 

pattern of nominees we have seen from the White House. 

Anyone who thinks that the nominees are just chosen on the 

basis of legal excellence and don’t have a view just has to look at 

the nominees who are before us. They are not mainstream moderate by and large. They are people any objective observer would 

say are way over. 

The Ninth Circuit is one that I give special consideration to. I 

voted for Mr. Bybee to come to the Ninth Circuit because it is 

largely a Democratic circuit and I believe in balance. And so my 

inclination would be to be supportive of you, but when I had read 

some of these things, they cry out for explanation and that is why 

I have to ask you these because just because we want balance 

doesn’t mean you give a carte blanche to everybody. 

I have been thinking about the nominees that we have seen, in 

general. We on our side of the aisle have talked about, as I said, 

how many of these White House judicial nominees are out of the 

mainstream, in general. But when you go over the record one after 

the other, it becomes even clearer. And the clearer it gets, I think 

the more worried mainstream Americans will get. 

I believe that 10 or 15 years from now, there is going to be a rebellion if the Presidents gets his way and puts every one of his 

nominees on the court because they are going to be doing things 

that most people find outrageous. And it is especially frightening 

when it comes to women’s rights. I think it is fair to say that, 

viewed collectively, many of these nominees are engaged in a campaign to roll back the clock on women’s rights. 

Let’s look at the facts. Jeffrey Sutton, a Sixth Circuit nominee, 

sought out the opportunity to represent an employer who had discriminated against a woman because she had become disabled by 

1069

breast cancer. The woman’s name is Patricia Garret. Ms. Garret 

was head of the ob/gyn neonatal unit at the University of Alabama–Birmingham Hospital. She took a leave of absence. When 

she returned, she had been demoted. Mr. Sutton apparently believed this was the right thing to do and sought out the opportunity 

to fight Ms. Garret’s effort to get her job back. 

Priscilla Owen, a Fifth Circuit nominee who has just been, without a second hearing, renominated by this Committee after she was 

defeated the first time, always on a party-line vote—if the President is seeking unity, I don’t think we would get so many partyline votes. Anyway, she invented additional hurdles blocking a 

woman’s access to her constitutional right to choose. Judge Alberto 

Gonzales, now the White House Counsel, said that Justice Owen’s 

opinion in that case was an instance of unconscionable judicial activism. 

By the way, we did, of course, have a second hearing for Justice 

Owen, but renominated her. It didn’t change the votes. The membership had changed. 

And then we have Deborah Cook, a Sixth Circuit nominee. She 

ruled against a widow in a claim against Wal-Mart for the wrongful death of her husband. The widow’s initial suit had been dismissed for insufficient evidence, but then it became clear that WalMart had instructed employees to lie and hide the evidence. The 

widow won her effort to reinstate the suit based on evidence that 

Wal-Mart had covered up, but Justice Cook dissented, holding that 

the widow shouldn’t be allowed. 

Just last week, in addition to this confirmation hearing today, we 

held a confirmation hearing for James Leon Holmes. Now, he is a 

nominee for the district court. Usually, we give more deference to 

the district court, but Mr. Holmes has said that rape leads to pregnancy about as often as it snows in Miami. Is that the kind of person anyone wants on the bench? Is that the kind of person who is 

mainstream? 

According to the best estimates out there, we have 30,000 rapeor incest-induced pregnancies each year in America. It snowed in 

Miami exactly once in the last century. Is that the kind of sensitivity, whatever your ideology, that someone who is being elevated 

to the Federal court should show? Of all the people out there, why 

do we have so many of these situations, not just one, but one after 

the other? 

And if that weren’t offensive enough, Mr. Holmes has also said 

that women are obligated to subjugate themselves to their husbands. That is the kind of 19th century thinking we are seeing 

from these 21st century nominees. 

So, Judge Kuhl, I hope you will understand why I am concerned 

about the ideology and agenda that these nominees are taking with 

them to the Federal bench, because they get out from the Congress 

they are gone; they are there for life. I hope you understand why 

I am reviewing the records closely and fully to figure out what kind 

of judges they will be. 

I have voted for close to 95 percent of the President’s nominees, 

even though I don’t agree with most of them on choice or on any 

of the other issues. But some are just too far over. 

1070

I am disappointed to say that your record gives me real cause for 

concern. I am deeply concerned that you not only believe Roe v. 

Wade is wrongly decided—it is not good enough for me to say ‘‘I 

will follow the law.’’ We have had that before. We had Mr. Thomas 

come before this Committee and say he had never discussed Roe

v. Wade, and it is clear that he has not been a down-the-middle interpreter of that. 

But when you were a Government lawyer and then your job was 

defending the Constitution, you pushed the U.S. Government to 

ask the court to reverse Roe. Now, if you were following the law 

as Solicitor General, you wouldn’t have done that. And just because 

you are here before us today under these circumstances and say 

you will follow the law, that is not assurance enough; it shouldn’t 

be assurance enough. 

I am going to cover the Roe area—my colleagues have—in a second round or in writing, but I want to take this time to ask you 

about Azucena Sanchez-Scott v. Alza Pharmaceuticals. I just want 

to review the case so it is in the record, so people know what it 

is. 

Ms. Sanchez-Scott was a breast cancer patient. She was undergoing chemotherapy treatment. One day, she went to see her doctor 

for a checkup and was escorted to a private examination room to 

wait. When the doctor arrived, he was accompanied by another 

man. The doctor introduced the other man as Mr. Martinez and 

said that Mr. Martinez was, quote, ‘‘a person who was looking at 

the doctor’s work,’’ unquote. 

The doctor instructed Ms. Sanchez-Scott to undress from the 

waist up. He had her get up on the examination table, into the examination position, and then rolled down the waistband of her 

skirt so he could examine her abdomen. 

And now I am reading from the appellate court opinion, quote, 

‘‘During the examination, Ms. Sanchez-Scott began to feel extremely hot and flushed. She carried a pocket fan with her for such 

occasions. She took the fan out of her purse and began to fan herself to feel cooler. At this point, the doctor took the fan from Ms. 

Sanchez-Scott and gave it to Mr. Martinez. Mr. Martinez was told, 

quote, ‘it would give him something to do.’ Mr. Martinez began fanning Ms. Sanchez-Scott, who became extremely’’—I am quoting 

from the case—‘‘who became extremely uncomfortable because the 

doctor and Mr. Martinez both started to laugh. The plaintiff told 

Mr. Martinez she would fan herself, but Mr. Martinez refused her 

request and continued to fan her. Mr. Martinez watched the doctor 

examine Ms. Sanchez-Scott’s’’—they are specific, but I will just say 

body. 

‘‘As the examination continued in Mr. Martinez’ presence, Ms. 

Sanchez-Scott continued to become more comfortable.’’ This is still 

the case. ‘‘As soon as the examination was concluded, Ms. SanchezScott got up and tried to cover herself because she was embarrassed and uncomfortable.’’ 

Then the doctor told Ms. Sanchez-Scott, with Mr. Martinez still 

present, she would need a chest x-ray and a mammogram. When 

Ms. Sanchez-Scott went to the receptionist to schedule her procedures, she was asked—by the way this part, I am just summarizing 

the facts, when I started with ‘‘Then the doctor.’’ 

1071

Ms. Sanchez-Scott went to the receptionist to schedule her procedures and she asked who Mr. Martinez was. The receptionist responded Mr. Martinez was a sales representative from a pharmaceutical company. 

Now, I think, and I believe most Americans think, regardless of 

their political ideology, that this is outrageous conduct on the doctor’s part. To bring a sales representative from a drug company 

into a private examination room, without explaining to the patient 

what is happening and getting her explicit permission, is unconscionable. It is not just a close question. 

My God, I don’t know who Judge Turner is, I don’t know what 

his views are, but if he thinks that this is a close question—it was 

reversed unanimously by the court of appeals—he ought to talk 

to—I have asked five or six women. To a person, they are outraged, 

outraged. And when I told them that a letter was sent in saying 

it is a close question, they were amazed. They said who pulled the 

strings for that one? 

I don’t know if that is the case, but I don’t think anyone thinks 

this is a close question. It is a gross violation of Ms. Sanchez-Scott’s 

privacy. And God bless her. Unlike so many other women who 

might face this humiliation, she found herself a lawyer and she 

filed suit. And the case came to you and you dismissed it, at least 

pertaining to Mr. Martinez and the drug company. 

You said, as I understand it, that because she didn’t ask questions and object, Ms. Sanchez lost any right to privacy she may 

have had. You also agreed with the defendants that no reasonable 

person would have found Mr. Martinez’ presence to be highly offensive, and that this was nothing more than—and these are your 

words—‘‘a situation which she found socially uncomfortable,’’ socially uncomfortable. 

The appellate court that sits above you unanimously reversed 

you in this case, and I have to say I can see why they did. I don’t 

think I have seen a more disturbing ruling from a judicial nominee 

since I have been in the Senate. 

I think most Americans would be horrified to hear that your view 

of privacy rights, particularly in that situation, depended on someone who was scared and upset having to ask questions. And then 

to hear that you are being considered for a lifetime appointment on 

the Federal bench demands not just a letter from another judge 

that we don’t know about saying it was a close question, even 

though he ruled against you. I need a lot more than that to have 

confidence that you will be a judge who is fair to women. 

So I have to ask you this: How do you explain the ruling issued 

in this case, and what can you tell us to assuage so many of my 

colleagues’ concerns that you have too narrow a view of privacy 

rights? 

Judge KUHL. Well, Senator, first of all, with respect to the 

Sanchez-Scott case, I can certainly understand the upset that the 

woman had and her feeling of betrayal, perhaps, because of what 

her doctor had done. And the fact of the matter is that she had a 

lawsuit, a tort action, against her doctor for failure to obtain her 

consent to bring a third party into the examining room, and that 

that cause of action went forward and was left standing and was 

not at issue in the case. 

1072

With respect to women’s rights, I— 

Senator SCHUMER. Can I just ask you a few more questions? Do 

you stand by her words that to protect her privacy rights, she had 

an obligation to ask questions? 

Judge KUHL. Well, Senator, it is the case that if she had given 

consent—and the court of appeal opinion says this—if she had 

given consent that there wouldn’t be a privacy cause of action. But 

I think the important thing here was— 

Senator SCHUMER. Well, wait. Had she given consent? 

Judge KUHL. No, Senator, she had not given consent, and that 

is why I say that her claim against the doctor was really at the 

forefront here because he was the one who had control of the examination room and he was the one who invited this third party in. 

And that is why she had a tort action, a tort claim against the— 

Senator SCHUMER. Do you have any evidence that the third party 

was coerced to come into the room? 

Judge KUHL. No, I don’t think that was my point, Senator. 

Senator SCHUMER. Well, explain it to me. You said that the doctor invited him in. 

Judge KUHL. That is right. It was the doctor’s decision to bring 

this third party into the examination room, and therefore it was—

she was very legitimate in being upset at his not having obtained 

her consent to bring this person into the examination room that 

was in his doctor’s office. 

Senator SCHUMER. Yes. I don’t follow your—in other words, you 

are thinking that Mr. Martinez was blameless? 

Judge KUHL. That is not my point, Senator, but I am saying that 

she had a claim which went forward against the doctor. 

Senator SCHUMER. Right, but you were reversed. How many 

judges were on the appellate panel that reversed you? 

Judge KUHL. There are three on our appellate court who do so, 

and I think in that— 

Senator SCHUMER. Just let me ask you this. 

Judge KUHL. Go ahead, Senator. 

Senator SCHUMER. No. Please. 

Judge KUHL. Well, I think that the appellate court in doing that 

clarified the law in what was a rather unclear area, and I welcome 

that and certainly would follow that law in the future. 

Senator SCHUMER. And one other thing. You say it was a situation which she found socially uncomfortable. I don’t even get that 

one. 

Judge KUHL. I really don’t recall that from the transcript. I 

would be glad to look at it, if you like. I am not saying it wasn’t 

there, but I just don’t recall those words, so I really can’t comment 

on the context. I am sorry. 

Senator SCHUMER. Well, in the defendant’s motion to dismiss, 

that is what you said. 

Judge KUHL. In the defendant’s motion to dismiss. 

Senator SCHUMER. You sustained the motion to dismiss. 

Judge KUHL. That probably would have been a demurrer, yes, I 

think. 

Senator SCHUMER. Do you think you made a wrong decision in 

this case? 

1073

Judge KUHL. Yes. I think the appellate court was correct, Senator, and I also think you have mentioned me—grouped me in with 

others and suggested that mainstream and moderate is something 

that would not apply to me. And I think that the many letters of 

support from people who have worked for me— 

Senator SCHUMER. You know, I— 

Judge KUHL. —who have reviewed— 

Senator SCHUMER. Please. 

Judge KUHL. —who have reviewed my decisions, people who 

have worked with me on a commission appointed by the chief justice to restate all of California law in easily understandable jury 

instructions—if ever there was an opportunity to twist the law, it 

would be in that committee. And six members, six of my colleagues 

on that Committee have written and said this is somebody who 

looks straight down the middle at the law. 

And Justice Carlos Moreno, of the California Supreme Court, has 

written on my behalf. Civil rights lawyers Leo Terrell, Vilma Martinez, former head of MALDEF, have written on my behalf. And I 

think those who know my work have great confidence and have expressed that very clearly that I am a judge who follows the law and 

applies justice without reference to persons. 

And certainly on women’s issues, Senator, a number of women 

have mentioned in their letters, including the 23 women colleagues 

who have written on my behalf, that I am someone who mentors 

other women. I am proud of that. I have been lifted up by other 

women who have gone before me and have established the principles of equal rights for women that I enjoy the benefit of, and I 

hope to pass that tradition on to my daughters. And I have tried 

to as best I can in my professional life assist other women as they 

travel the path that I have traveled. 

Senator SCHUMER. Do you think your own views on Roe v. Wade

are right down the middle? 

Judge KUHL. Well, Senator, my views on Roe v. Wade are that 

I would enforce the law, that I would follow the Casey decision— 

Senator SCHUMER. Do you think your personal views, your personal views—we have learned, despite when people say they will 

enforce the law, personal views influence that and that is what 

leads to why we don’t have nine-nothing decisions on the Supreme 

Court. That is why every analysis shows that people’s philosophy 

and who appointed them has a huge difference in how they vote. 

I think what we are trying to establish here is simply saying ‘‘I 

will follow the law’’ is not good enough because that is what people 

now who reportedly have strong views on things tell us and it just 

doesn’t work that way on the bench. 

Judge KUHL. I know that you— 

Senator SCHUMER. Otherwise, we would have a computer that 

will follow the law. Individual judgments actually determine how 

you would follow the law. I mean, in this case clearly you did something—and I appreciate your admitting it was a mistake—that 99 

out of 100 people, in my judgment, wouldn’t have come up. 

Judge KUHL. Senator, I appreciate your view and understand 

your view with respect to how judges work, but my view of how 

judges work is consistent with Justice Felix Frankfurter. 

1074

When I went on the bench, I took a quote from Frankfurther and 

I stated to the people who were there 71⁄2 years ago that that was 

my judicial philosophy, and he said that the highest exercise of judicial duty is to subordinate one’s personal will and one’s private 

views to the law. 

Senator SCHUMER. So why do you think that appointments by 

Democratic Presidents and appointments by Republican Presidents 

have such differences in how they decide, and there has been study 

after study that shows it, if we all just follow the law? 

Judge KUHL. Well, going back to the article that was referred to 

earlier, I think that President Reagan, for example, attempted to 

pick judges who were committed to following the law, not legislating, trying to find out as best as they could—and this is what 

I try to do—what it is that the legislation means and implementing 

that without regard to what I think. Sometimes, you have to make 

a conscious choice in your mind to put something aside, and you 

do it and you go forward. 

Senator SCHUMER. Why in the Solicitor General’s office did you 

urge that they move to overturn Roe v. Wade, when your job as Solicitor General to follow the law and urge the Solicitor General to 

follow the law? 

Judge KUHL. My job in the Solicitor General’s office was one of 

several roles—one of two roles I guess I held as an advocate. And 

as an advocate, one certainly needs to take precedent into account, 

but one’s primary job as an advocate is to make arguments that 

support the interests of one’s client. And in that case, President 

Reagan as the President had very clearly stated his position that 

Roe v. Wade should be overruled. It is very different from— 

Senator SCHUMER. Don’t you swear to uphold and defend the 

Constitution in that job? 

Judge KUHL. I think so. 

Senator SCHUMER. I think so, too, and the law of the land was 

Roe v. Wade. Judge KUHL. Well, Senator, the law of the land is also that a 

lawyer may ask a court to overrule a precedent. I mean, it has 

never been the case, or it certainly has never been my understanding that one may never ask a court to overrule a prior ruling. 

Senator SCHUMER. So did you then think that Roe v. Wade

wasn’t the law of the land? 

Judge KUHL. No, I am not saying that. I am saying— 

Senator SCHUMER. Shouldn’t have been the law of the land is a 

better way to put it. 

Judge KUHL. No. What I am saying is that the advocacy there 

was that the President and the executive branch had a position 

with respect to that and we asked the Supreme Court to do so. One 

of the reasons why we did so—or in my mind, one of the reasons 

to do so was because the Government had already in the Akron

case previously taken a position on Roe v. Wade and it was a position that said that States should be given significant deference in 

legislating in the abortion area. 

And Justice Blackmun, sitting on the bench in that case in the 

Supreme Court, had asked Solicitor General Rex Lee, well, are you 

asking that Roe should be overruled? And General Lee said no. 

And Justice Blackmun said, well, then, should Marbury v. Madison

1075

be overruled? And he was very concerned about the argument and 

I can understand that. I thought that if this was the position of the 

executive branch and the position of the President that it should 

be presented in a credible fashion forthrightly. 

Senator SCHUMER. Yes, but here is the contradiction, I think, in 

what you are saying. If you are defending the Constitution and Roe

v. Wade is constitutional law, how can you urge its reversal? 

I would just make one other point here. Charles Fried was then 

the Acting Solicitor General and he also signed the brief, but he 

said that some of the—I believe this is a quote from him—‘‘Some 

of the political people in the Department’’—that is his quote—unquote, were to eager to do so and, quote, ‘‘the most aggressive 

memo came from Carolyn Kuhl in the Civil Division, who recommended that we urge outright reversal of Roe.’’ 

No one else, even the Solicitor General himself, I guess, went 

that far, and you say you were sort of on your own helping President Reagan when so many of the others in the Department higher 

up than you didn’t think we ought to go that far? 

Judge KUHL. Oh, Senator, the— 

Senator SCHUMER. And it was not the law, it was not the law of 

the land. 

Judge KUHL. Professor Fried, then–General Fried was the Acting 

Solicitor General. He eventually was confirmed as Solicitor General. He certainly was senior to me and it was his decision to file 

the brief. Richard Willard was the Assistant Attorney General. He 

was senior to me and it was his recommendation to file the brief. 

So I am not exactly sure I am answering your question, but perhaps I don’t understand it. 

Senator SCHUMER. Were you one of the most aggressive in urging 

in the Solicitor General’s office that Roe be overturned when you 

were there? 

Judge KUHL. I was not in the Solicitor General’s office at that 

time. That is Professor Fried’s characterization. I did urge that the 

Department be forthright with the Court and, since it was the position of the President, present that view to the Supreme Court, and 

present to the Supreme Court the arguments of the many constitutional scholars who at that time had taken that position—Alexander Bickel and Ruth Bader Ginsburg, Harry Wellington. 

Senator SCHUMER. Judge, I am not asking what other people 

think. I am not even asking what President Reagan thinks because 

the position—we are looking at you as you are coming here and 

saying you will uphold the law. 

You also, when you had this job, said you would uphold the law. 

I think you are asked to do that, and back then you said—and Roe

v. Wade was clearly the law of the land, and here you are not an 

elected President at the top of the Government, not even on the 

U.S. Supreme Court— 

Chairman HATCH. Nor was she a judge at the time. She was an 

advocate for the President. 

Senator SCHUMER. But, Orrin, it is the analogous position. 

Chairman HATCH. But you are talking to her as a judge. 

Senator SCHUMER. Well, you are being asked to and you swear 

an obligation to uphold the law. And I would say if you asked most 

people to look at your record and what you have said that at least 

1076

it is reasonable to doubt, given this and given some of the other 

things, that once you got on the bench, you would see upholding 

the law as most Americans do, which means keeping Roe v. Wade. Judge KUHL. Well, Senator, I have already said that I see upholding the law and my job as a judge as applying Roe v. Wade and 

applying Casey. I just may not understand your premise about the 

job of the Solicitor General. 

As a judge, I don’t like it when people ask me questions, so I 

shouldn’t really be asking you questions. 

Senator SCHUMER. You can. 

Judge KUHL. But my question would be is your premise that as 

a lawyer for the United States, one should never argue that precedent should be overruled, because that is not my understanding of 

the job of a lawyer for the Government. 

Senator SCHUMER. If you think the precedent is not in consonance with the law of the land, you should argue that it be overruled. But you are saying two things that are different. One is you 

are saying you argued that Roe should be overturned, but at the 

same time you argued that your job there would be to—your stated 

your job there is to uphold the law of the land. 

I think, Orrin, it is analogous to being a judge. 

Chairman HATCH. Well, if you will yield, that is not what she 

said. 

Senator SCHUMER. Well, why don’t you say it again? How do you 

square the idea that you swore an oath to uphold the Constitution, 

that Roe v. Wade was the established law of the land, and you were 

among the most vigorous in urging that it be overturned? That is 

the question in a nutshell. 

Judge KUHL. Well, I think, Senator, when as a lawyer one takes 

an oath to uphold the law of the land, what one is saying is that 

as an official of the Government, one is going to follow the law. In 

other words, if the Supreme Court interprets a statute in a particular way and you are advising an agency as to how to act, you 

tell that agency, you act in accordance with the law. I have never 

understood it to mean as an advocate that one cannot ask a court 

to overrule a prior precedent. 

Senator SCHUMER. So you are saying you were an advocate when 

you were in the Solicitor General’s office? 

Judge KUHL. That is correct. 

Senator SCHUMER. But you will not be an advocate as a judge? 

Judge KUHL. That is correct. 

Senator SCHUMER. Even though in each case, you were asked to 

swear an oath to uphold the law of the land? 

Judge KUHL. I think one’s duty is different in the two cases. 

Senator SCHUMER. I will leave it at that. 

Chairman HATCH. That is my point. 

Judge KUHL. Thank you, Senator. 

Chairman HATCH. Okay, thank you, Senator. 

I am going to finish up with— 

Senator SCHUMER. Mr. Chairman, could I just ask unanimous 

consent that the letter from Ms. Azucena Sanchez-Scott to Senator 

Leahy of March 3, 2003, be added to the record? 

Chairman HATCH. Without objection. 

Senator SCHUMER. Thank you, Mr. Chairman. 

1077

Chairman HATCH. We are going to wind up with you and then 

we will have to recess for the two district court judges until two 

o’clock. 

As you previously noted, Judge Kuhl, there are plenty of respected legal scholars who believe that Roe v. Wade was a poorlywritten opinion and as a matter of constitutional law it was wrong, 

some of whom are pro-choice advocates, such as Archibald Cox, 

John Hart Ely, and others, and you have mentioned a few. 

Each of the abortion-related cases that you have been asked 

about were before the Supreme Court’s seminal opinion in Casey. 

Is that correct? 

Judge KUHL. That is correct, Mr. Chairman. 

Chairman HATCH. That needs to be brought out. Anybody who 

says that once the Supreme Court rules, we just always have to follow it no matter what anybody says, just doesn’t understand the 

law because there have been Supreme Court precedents overruled 

from time to time because they have been wrong. 

So to just say that because the Supreme Court rules that that 

is within the Constitution—well, it is until it is overruled. 

Judge KUHL. Well, Mr. Chairman, it just occurred to me that 

Brown v. Board of Education would be such a case, overruling 

Plessy v. Ferguson. 

Chairman HATCH. Well, sure. That means that if you were up for 

a judge before Brown v. Board of Education, with this reasoning 

you would have to uphold Plessy v. Ferguson. I mean, that is crazy. 

That is the trouble with getting into ideology, and that is why 

those who come before this Committee—I expect you to uphold the 

law regardless of your personal views. Your personal views are irrelevant. 

Now, do your personal views ever affect any litigation? I imagine 

every context of your life might affect a case, but that is true of 

every judge. Every judge has to think, but that doesn’t mean that 

you would violate the law in your thought processes. 

Now, Judge Kuhl, let me just ask you some follow-up questions 

about the Sanchez-Scott case that you decided. It is my understanding that the particular motion to dismiss that you had granted had nothing to do with the claims against the doctor and that 

your ruling would have allowed the claims against the doctor to go 

forward. Is that right? 

Judge KUHL. That is correct, Mr. Chairman. 

Chairman HATCH. Well, that is right. Now, please explain which 

claims were involved in the motion you ruled on and what your ruling meant for the ultimate disposition of the case. 

Judge KUHL. The claims against the doctor were tort claims for 

failure to obtain consent from the woman in the examining room 

that was the doctor’s examination room. 

Chairman HATCH. Right. 

Judge KUHL. And the claim against the third party who came 

into the room was an invasion of privacy claim. 

Chairman HATCH. Well, that is right. Now, to my knowledge, the 

case settled before trial. Is that correct? 

Judge KUHL. That is correct, the case did settle before trial. 

Chairman HATCH. That is right. It is my understanding that 

those of us hearing about the facts of Sanchez-Scott case for the 

1078

first time might be troubled by the conduct of this particular doctor 

and the pharmaceutical representative. But I think we need to 

keep in mind that judges do not decide cases based on their personal responses to the behavior of the litigants, but based on the 

law. 

Now, Judge Kuhl, I understand that you dismissed the constitutional right of privacy claim and were affirmed by the appellate 

court on that issue. Is that correct? 

Judge KUHL. That issue actually was not appealed, was not 

taken up on appeal. 

Chairman HATCH. Okay. 

Judge KUHL. It was dropped, I think is the way of saying it. 

Chairman HATCH. As I understand it, there were additional invasion of privacy claims brought under California State law. 

Judge KUHL. That is right. The invasion of privacy claim that 

went up on appeal was State common law. 

Chairman HATCH. Can you elaborate on the State law involved 

in the claims and how the law led you to your ruling? 

Judge KUHL. Well, the common law in that case was not wellarticulated by the courts of appeal and the primary case that was 

being cited to me was an 1881 case from Michigan. Now, the appellate court relied heavily on that case, but as I think Justice Turner 

indicates in his letter, my job was to follow California law. And the 

appellate court imported that Michigan case into California law 

and clarified the law in a way that I think is helpful going forward 

in the future. 

Chairman HATCH. Now, some of my colleagues have implied, or 

at least have created the impression that the appellate court’s reversal in that case somehow demonstrates that you are insensitive 

to litigants who come before you. 

I just want to share with all of my colleagues and with everybody 

watching this and with you, Judge Kuhl, a letter that Senator 

Chambliss has already mentioned but which bears repeating. This 

letter is from Judge Paul Turner, who authored the appellate court 

opinion in the Sanchez-Scott case, for which you have been somewhat criticized here by a colleague. 

Judge Turner wrote, quote, ‘‘I can tell the difference between a 

trial judge making a tough call in the context of competing legal 

interests on one hand and bias or prejudice on the other hand,’’ unquote. 

He went on to state that, quote, ‘‘A strong argument can be made 

that Judge Kuhl correctly assessed the competing societal interests 

the California Supreme Court requires all jurists in this State to 

weigh when determining whether the tort of intrusion has occurred,’’ unquote. 

He concluded by stating, quote, ‘‘With all respect to those who 

have criticized Judge Kuhl as being insensitive or biased because 

of my opinion in Sanchez-Scott, they are simply incorrect,’’ unquote. 

Now, I am going to read just a little bit more about it because 

I think it is quite unfair to try and imply, because you were reversed in this case, a reversal that you accept and you said probably was right, that you were insensitive or biased. 

He is what he says, and this is right out of the letter which I 

put in the record, without objection. ‘‘First, there was no issue in 

1079

the Sanchez-Scott case involving the constitutional right of privacy. 

Footnote 1 of the opinion expressly states that there was no issue 

of the constitutional privacy right before our court when we considered the Sanchez-Scott case. Second, the plaintiff’s tort claim 

against the doctor himself for failing to obtain his patient’s fully informed consent was not at issue before Judge Kuhl and this court. 

Ms. Sanchez-Scott’s claim against the physician was to be litigated 

in any case, even if the drug salesperson and his employer did not 

remain in the case. Third, the Sanchez-Scott case involves some 

issues of first impression under California law involving the tort of 

intrusion, as defined in the Restatement Second of Torts, Section 

652(b), which even as of this date have not been clearly defined 

with identifiable bright line rules by California courts.’’ 

That is what you meant when you said ‘‘I think the appellate 

court got it right,’’ even though you were trying to do your best to 

try to define this area. Am I right? 

Judge KUHL. Yes, Mr. Chairman, absolutely. 

Chairman HATCH. He goes on to say, ‘‘The California Supreme 

Court has described the tort of intrusion as involving, quote, ‘degrees and nuances to societal recognition of our expectations of privacy,’ unquote, and, quote, ‘relative,’ unquote, concepts. Much of 

the analysis in our decision was premised upon the 1881 Michigan 

Supreme Court decision of the DeMay v. Roberts case. In ruling on 

the demurrer, Judge Kuhl was required to apply what the California Supreme Court has characterized as degreed and nuanced 

rules of law involving relative concepts. Fourth, attached to the 

complaint filed in Superior Court was a letter explaining why the 

drug salesperson was in the examining room during the breast examination. That letter explained that he was present because he 

was participating in an oncology mentorship program. The purpose 

of the program was to allow the salesperson to, quote, ‘better learn 

how an oncologist attends to patients, manages medications, and 

generally oversees administrative functions of the office,’ unquote.’’ 

‘‘In other words,’’ the judge goes on to say, ‘‘the purpose of the 

mentorship program was to ensure better delivery of health care 

services to breast cancer patients. Under California law, in evaluating whether the tort of intrusion has occurred, a court must 

weigh the reasons for the intrusive conduct. When Judge Kuhl concluded that the mentorship program, which was designed to improve treatment for breast cancer patients, was a sufficient justification for allowing the drug salesperson to be present during the 

examination, she did not demonstrate bias or insensitivity. In fact, 

a strong argument can be made that she correctly assessed the 

competing societal interests the California Supreme Court requires 

all jurists in this State to weigh in determining whether the tort 

of intrusion has occurred. Now, with all respect to those who have 

criticized Judge Kuhl as being insensitive or biased because of my 

opinion in Sanchez-Scott, they are simply incorrect.’’ 

That is Justice Paul Turner, the Presiding Justice, who comes 

down rather heavily on your side. Now, this is the second time we 

have put this letter in the record, so I kind of resent the misuse 

of this type of information to try and imply that you might have 

been insensitive or biased. 

1080

It is my understanding that the appellate court ruling merely 

held that the claims the plaintiff alleged were sufficient to state a 

cause of action. Am I right? 

Judge KUHL. That is correct, Mr. Chairman. 

Chairman HATCH. It did not make a determination about whether or not the invasion of privacy had occurred. Is that correct? 

Judge KUHL. That is correct, Mr. Chairman. 

Chairman HATCH. Now, Judge Kuhl, this was probably an emotionally-charged case for the plaintiff. But as we know, judges have 

to rule on the law, to the best of their ability. 

Now, how will you in the future handle cases that involve particularly sensitive issues? 

Judge KUHL. Well, in particularly sensitive issues I always try 

to—in all cases, I try to follow the law. That is my primary goalpost. I do it with understanding of the difficulties that may face 

that individual plaintiff. In the trial court, we have those people in 

front of us and it is important that they always be treated with 

dignity, with understanding, with sympathy, and then the law is 

applied. And the decision goes according to what the law demands, 

as applied to the facts. 

Chairman HATCH. What more could we ask of a judge than that? 

Now, Judge Kuhl, you have been asked repeatedly about briefs 

you wrote on behalf of your clients both as a Government lawyer 

and as a lawyer in private practice. Now, I want to remind my colleagues of a fundamental principle, which is that the arguments a 

lawyer makes on behalf of her client should not be taken as evidence of her personal views. 

Lawyers have an ethical obligation to provide the best possible 

representation to their clients and to make all of the reasonable arguments in support of their clients’ positions. 

You agree with that, don’t you? 

Judge KUHL. Yes, Mr. Chairman. 

Chairman HATCH. Now, Rule 1.2(b) of the ABA Model Rules of 

Professional Conduct provides, quote, ‘‘A lawyer’s representation of 

a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or 

moral views or activities,’’ unquote. This principle is as equally applicable whether the lawyer is in private practice or is in government service. 

Now, Judge, this has been a rather long hearing. It has been difficult to sit through and you have been there a long time. I have 

to say this, that I have not seen a better witness for any appellate 

court, circuit court of appeals appointment— 

Judge KUHL. Thank you, Mr. Chairman. 

Chairman HATCH. —in my whole 27 years in the United States 

Senate. I would have to say that I think Priscilla Owen and you 

are two of the best witnesses I have ever seen. Now, I am not just 

saying that. I mean, I am not trying to be kind here. I am just saying that you have handled yourself very well. 

I can’t for the life of me see why anybody would not want you 

to serve on the Ninth Circuit Court of Appeals. I personally believe, 

with your approach to the law, maybe that circuit will start getting 

it right for a change rather than being reversed almost every time 

the Supreme Court reviews their decisions. 

1081

So I want to compliment you. You have handled this hearing 

very, very well. You answered every question forthrightly. You covered the law well. You made it very clear that regardless of your 

personal ideologies or beliefs or anything else, you are not going to 

let that interfere with your obligation as a judge to provide justice 

and to uphold the law as it is written, regardless of how stupidly 

sometimes we legislators write it. I think that is a fair appraisal. 

Now, I just want to say that because, for the life of me, I can’t 

imagine why we have had to wait until now, 21 months later, to 

give you a hearing, and even now some of my colleagues are complaining about it. Actually, I don’t like to overrule colleagues, but 

the fact of the matter is there is a justice in this country that ought 

to be followed even on this Committee, and people who are nominated by the President ought to be given a chance, to the extent 

the Committee can hold the hearings. And I have to say that I 

have always tried to do that, even though some have criticized, because I have had all kinds of problems getting colleagues to go 

along with me. 

I think it is absolutely ridiculous to say that any case is constitutional law and can never possibly be reconsidered. Perhaps 

Marbury v. Madison, and I can name a number of other cases that 

probably should never be reconsidered, but most cases sometimes 

have to relooked at. 

And I think we can trust you to look at your job in the light of 

doing it in the best possible way you can, within the law, while upholding the precedents of the Supreme Court. Now, you have said 

you will do that. I am counting on you doing that. I am counting 

on you being a great member of the Ninth Circuit Court of Appeals. 

And I hope my colleagues will look at this record and look at 

your testimony today and quit obstructing—only a few have done 

this. I am hopeful that the colleagues on this Committee will not. 

But those who have obstructed your consideration of even having 

a hearing I think are so wrong that it is just pathetic. 

So, with that, I want to thank you for being here. I want to 

thank your family. We really appreciate having all of you with us. 

You young daughters should be very proud of your mother. I know 

your father is very proud of her as his wife, and your grandfather 

and uncle here at very proud of her as well. 

Thank you for being here. I apologize to the district court nominees, but we will recess until 2 o’clock when we will hear the testimony of the district court nominees. 

With that, we will recess until 2 o’clock. 

[Whereupon, at 1:12 p.m., the Committee recessed, to reconvene 

at 2:00 p.m., this same day.] 

AFTERNOON SESSION [2:05 p.m.] 

Senator SESSIONS. [Presiding.] All right, we shall begin. Senator 

Hatch asked me to chair the afternoon hearing, and if our nominees would come forward, we will commence. 

Would you raise your right hand? Do you swear to tell the truth, 

the whole truth, and nothing but the truth, so help you God? 

Judge ALTONAGA. I do. 

Judge MINALDI. I do. 

Senator SESSIONS. Please take your seats. 

1082

We are delighted that you are here today. Congratulations on 

going through quite a lengthy process. As you know, Senators look 

at nominees, and they call lawyer friends, and they check on qualifications. Then those names are floated to the Department of Justice, and they do background checks, and then the Department of 

Justice and the White House will look at it. The FBI is required 

to do a background check on you. The ABA conducts their background analysis, and they talk to lawyers you have litigated with 

or litigated against or who have been before you in court, and they 

ask how well you do, which I think is a valuable contribution to 

the process. And eventually this Senate takes all your paperwork 

and all the answers to all the questions that are submitted, and 

staffers pore through it all. And as you have seen from this morning, it doesn’t take much to have someone find an objection if they 

want to find one. 

So I would congratulate both of you on getting this far, number 

one, and number two, not having any controversies that are likely 

to slow down your nomination, at least none that I know of. 

So we are delighted you are here. Would you like to make any 

opening statement or introduce any family members that are with 

you? Judge Altonaga? 

STATEMENT OF CECILIA M. ALTONAGA, NOMINEE TO BE 

DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA 

Judge ALTONAGA. Mr. Chairman, thank you. I don’t have any 

opening statement, but I would like to introduce my husband, Attorney George Mencio. 

Senator SESSIONS. We are delighted to have you. Very good. 

Judge ALTONAGA. Thank you. 

Senator SESSIONS. Is he in private practice? 

Judge ALTONAGA. Yes, he is. 

Senator SESSIONS. That is good. He can remind you what it is 

like to meet a payroll and have to appear before judges. Sometimes 

judges forget what that real-life world is like. 

[The biographical information of Judge Altonaga follows:]

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Senator SESSIONS. Judge Minaldi? 

STATEMENT OF PATRICIA A. MINALDI, NOMINEE TO BE 

DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA 

Judge MINALDI. Mr. Chairman, I want to thank you very much 

for the opportunity to be here. I don’t have an opening statement. 

I don’t have any family here to introduce, although my husband 

and my two boys are with me in spirit. 

Senator SESSIONS. Very good. 

[The biographical information of Judge Minaldi follows:]

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Senator SESSIONS. Judge Altonaga, I was impressed with your 

background and going to Florida International with highest honors, 

Yale Law School, and law clerk to Judge Edward B. Davis in the 

Southern District of Florida. That is a good experience for a wouldbe Federal judge, and, of course, you have served as a judge now 

for a number of years. 

And, Judge Minaldi, likewise, you went to Wesleyan University 

and graduated with honors and Tulane Law School, a fine law 

school, and have been a district attorney and a prosecutor and a 

judge now since 1997. Is that right? 

Judge MINALDI. That’s correct, Mr. Chairman. 

Senator SESSIONS. Both of you, I think, have excellent backgrounds for the position that you would be seeking. 

We always ask some questions relating to what has come to be 

known around here as judicial activism. I think that is a legitimate 

series of questions on inquiry to be made of nominees because this 

is the last political accountability you have. After confirmation, 

then if you do not have a proper respect for the legislative branch, 

the branch that is asked to confirm your nomination, or the executive branch that nominates you, then the system is not working 

correctly. So we need to know fundamentally: Do you respect the 

separation of powers? Do you understand the role that courts have 

in interpreting the law? Do you understand that you have not been 

politically empowered by the voters, which is traditionally the 

source of power in a democracy, but have been given a lifetime appointment, unaccountable to voters; and, therefore, if you do not 

show personal restraint and, by nature, you don’t understand the 

role of the judiciary, then that is an upsetting thing, that can cause 

serious trouble. 

And we have had on the bench and still have on the bench 

judges who just seem to enjoy causing turmoil, reinterpreting the 

meaning of the Constitution, it seems to me, to declare statutes unconstitutional or to take other actions that are dubious under traditional interpretations of the law. 

So I guess I would ask both of you: Have you thought about that? 

Do you understand that if you want to be in politics now is your 

last chance to get out of the judicial branch and go into that? And 

are you willing to follow the law even if you don’t like it, to enforce 

those statutes and the constitutional requirements even if they are 

not the best? I will start with you, Judge Altonaga. 

Judge ALTONAGA. Thank you, Mr. Chairman. I would say that 

my primary obligation as a trial court judge is to interpret and 

study the law and to apply it, and whenever I am called upon to 

review an act of our legislature, begin the endeavor with a presumption of constitutionality. 

I might add that my background as a litigator was to serve as 

an assistant county attorney representing local government, and I 

represented local leaders of our government, the commissioners 

and the mayor, and we assisted them in drafting local legislation, 

ever mindful that it could be subject to scrutiny by the courts and 

would very frequently be called upon to go into court to urge that 

the ordinance in question be deemed constitutional, reminding the 

courts that it was the commissioners and the mayor that made policy and that the courts were there to review the constitutionality 

1141

of the particular legislation but not the wisdom or the efficacy necessarily of the ordinance. 

So I’m very mindful of what the role is, especially of a trial court 

judge. My role is not to make law. I am certainly not elected or 

placed into this position that I currently have. And if I am confirmed, that would not be my role or the mandate that I would 

have. 

Thank you. 

Senator SESSIONS. Judge Minaldi? 

Judge MINALDI. Mr. Chairman, I actually welcome the opportunity to get out of politics and have nothing to do with politics 

anymore. I am a firm believer in the concept of separation of powers. I think it is a fundamental concept in our society and to be absolutely respected by judges. 

I have absolutely no intention of doing anything other than applying the law as it exists, as legislated by Congress and as interpreted on those occasions by the Supreme Court. I don’t have any 

desire to be a judicial activist. I think when I made my transition 

from being an advocate to being a judge on the State court, I knew 

what my responsibilities were in that regard, and I put those—the 

robes of advocacy aside and put on the robes that were appropriate 

for the bench; and that once you take your responsibility seriously, 

I think that’s—it can be very easy for people who take that responsibility seriously to do. 

Senator SESSIONS. And how long were you a prosecutor? 

Judge MINALDI. Thirteen years, sir. 

Senator SESSIONS. And were you a prosecutor, Judge Altonaga? 

Judge ALTONAGA. I was a local government lawyer. My practice 

was civil. 

Senator SESSIONS. I want to ask you this as a person who has 

spent the better part of a professional career as a prosecutor, Federal and State. I know you are committed to giving the defendant 

a fair trial, and, in fact, the appellate courts look over your shoulders to make sure you do give them a fair trial and will reverse 

a trial court if they make an error. But, really, it needs to be in 

your heart to give the defendant a fair trial. 

But, also, I would ask you to think about this and ask you 

whether or not you will commit to give the prosecution a fair trial, 

because a prosecutor cannot appeal many of the rulings, most of 

the rulings that a trial judge makes. And there have been judges, 

when faced with questions, maybe they don’t want to take time to 

research the law or they are not real sure what the law is and they 

just sort of routinely rule for the defendant on the theory that if 

they rule for the prosecutor they might get reversed or the case 

would have to be tried again. 

I believe a prosecutor, if they have evidence that is worthy of 

being admitted in the court, ought to be able to have it admitted, 

and the judge shouldn’t be erring, trying to level the playing field 

or be afraid to so rule. 

Would you give the prosecutor a fair chance, Judge Altonaga? 

Judge ALTONAGA. Mr. Chairman, I give both sides—it is my goal 

and it’s my wish that in every case I give both sides a fair chance. 

And just by way of example, motions to suppress are routinely 

heard prior to trial, and the defense clearly has the right to seek 

1142

appellate review of an adverse ruling after the conclusion of the 

case, but the prosecution does not. 

It is my practice in my courtroom to require that motions to suppress be heard before trial to give the prosecution, if it’s my intention to suppress any evidence, time to consult and to file and seek 

extraordinary relief with the appellate court. So I am ever mindful 

that both sides are entitled to a fair trial, and I strive to do that 

in every case. 

Senator SESSIONS. Well, I have been before great judges that consistently have adhered to that ruling, but I have seen judges who 

rule during trial, making it impossible to appeal. And sometimes 

I have thought or heard others talk about other judges who believed that the judge did that deliberately. So that would be wrong, 

I think. 

Judge Minaldi, would you comment on that? 

Judge MINALDI. Yes, Mr. Chairman. As you said, as a prosecutor 

for 13 years, I saw those kinds of judges, too. So I am very familiar 

with that, and I think it is an unfortunate thing. 

I think we all have to be mindful of the awesome power that a 

prosecutor’s office has, the ability to obtain arrest warrants, indictments and charging by bills of information, and it’s an awesome 

power and can affect people’s lives. I took that seriously when I 

was a prosecutor, but I take equally as seriously as a judge the 

awesome power and responsibility that a judge has in making sure 

that there is a level playing field for—that the State gets a fair 

trial, that the defendant gets a fair trial, and that the appropriate 

burdens of proof are applied in an appropriate manner. 

Senator SESSIONS. I think you stated that very well, and as a 

young prosecutor, some of the Federal judges taught me a lot of 

lessons in court and made me better at my work because they 

didn’t allow prosecutors to get away with anything, and I think 

that is certainly important. 

But as you know, Judge Minaldi, when the government rests, an 

unelected Federal judge with a lifetime appointment can dismiss 

the case, grant a judgment of acquittal, and there is no appeal 

whatsoever and the defendant is released forever on that charge. 

So it is an august responsibility. 

Judge MINALDI. It most definitely is, and one that I would take 

very seriously, Mr. Chairman. 

Senator SESSIONS. Case management is something that I believe 

is important in a Federal judge, and maybe you can share some of 

your ideas about that. And, additionally, I would just ask for your 

commitment to work hard to manage the cases that will come before you. If there ever was a time when being a Federal judge was 

a pretty easy job, that is no longer the case. There are constant demands, cases are increasing in numbers, and for the most part, our 

judges are doing a good job of handling more cases and disposing 

of more cases. 

So are you committed to managing your docket? And do you have 

any ideas about what you would like to do to improve case management? 

Judge ALTONAGA. Mr. Chairman, I’ve been on the bench almost 

7 years now, and during the course of that time, I have served in 

different divisions within our circuit, both in the county, at the 

1143

county level and at the circuit level. And every time one enters a 

new division, you learn about different ways of case management 

because the caseload is different depending on the division that 

you’re in and the way of getting a case to final conclusion varies 

depending on the nature of the case. 

So every time I’ve entered a new division, I’ve learned about 

ways to effectively case manage and move cases along so that 

they’re not delayed, and that there’s final resolution to the case in 

a timely manner. 

In the criminal division where I currently am assigned, my last 

count was that I was the second lowest judge in terms of caseload. 

I effectively manage my cases by, number one, working very hard, 

by not simply setting the cases out in a long time period so I don’t 

see the litigants or hear about the case until it gets called, but by 

bringing them in to check on the status, have the attorneys report 

to me what it is they are doing to make sure we are going to meet 

the anticipated date of trial, and work with the lawyers, if we’re 

going to reset a trial, how much work is left to be done, how much 

time do you need to do it in, and to get some commitments. I think 

effective case management means that the judge needs to have a 

hands-on role with the lawyers and with the litigants and letting 

the lawyers know I know about what’s happening in this case and 

I expect you to tell me if you’re encountering some delay. 

Senator SESSIONS. Judge Minaldi? 

Judge MINALDI. Mr. Chairman, I’m currently on the court of—excuse me, the Docket Management, Case Delay Reduction Task 

Force that is a statewide task force throughout the State of Louisiana, and we are attempting to come up with some new and innovative methods for helping to decrease what is a widespread problem in most of the courts across the State and one that the public 

complains, I think, the most about, the delay that it takes in coming to a final conclusion in court. 

I would like to stress, though, that no matter what we find or 

what we do, I don’t think there’s any magic formula for making 

cases go quickly because any solution that we find requires the 

hard work and tenacity of judges in making sure that they are 

available to do the work, that they pay close attention to their caseloads, and that they do everything they can to move those cases 

forward. 

Unfortunately, I don’t think that always happens, and I do commit to you that that is the type of judge I am right now, and if I’m 

lucky enough to be confirmed in this position, that is the kind of 

judge I will continue to be. 

Senator SESSIONS. Well, you are right on there. We certainly 

need to emphasize case management. 

Are you aware that in the Federal court the Congress has established very tight sentencing guidelines? I remember being at one 

Eleventh Circuit conference when I was United States Attorney, 

and one of the senior judges said, ‘‘The truth is, gentlemen, Congress does not trust you to sentence.’’ 

There was a real serious debate in America in the last 1970’s 

about the efficacy of incarceration, even, and we went through a 

big, tough debate over that, and the Congress concluded and the 

American people concluded that punishment does make a difVerDate 0ct 09 2002 10:38 Jan 23, 2004 Jkt 090303 PO 00000 Frm 01157 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\90303PT2.003 SJUD4 PsN: CMORC
1144

ference. And I have no doubt in my mind that one of the great 

causes of the reduction in crime is the fact that we are identifying 

repeat offenders and they are serving longer time. 

I guess my question to you, though, is this: Having had your own 

standards of sentencing, being used to evaluating cases in State 

systems according to your own subjective analysis about what sentence ought to be imposed, which I am sure has validity, I ask you 

to recall that the Congress has narrowed your discretion dramatically. A tough sentence in a big drug case may be, if you like the 

defendant and feel sorry for them, 25 years; if you don’t like them 

and you want to give them a heavy sentence, it is 28 or 29, and 

that is about all the range you have got. 

And so there have been some judges that are so personally committed one way or the other about the sentence that they attempt 

to manipulate the guidelines, to twist them in a way that allows 

them to more nearly effect the sentence they think is appropriate. 

So, again, you still have a chance to get out of this job. Are you 

willing to follow the guidelines that the Congress put forward even 

if you think they are stupid? 

Judge ALTONAGA. Senator, first of all, I would certainly follow 

the law in all respects, and that would include the guidelines. In 

my current position, although I do have certain discretion in sentencing a certain category of defendants, my discretion has also 

been taken away by the Florida Legislature in many respects. We 

have minimum mandatories. We have mandatory sentencing in 

many areas. For those who have prior convictions and have a 

criminal record, sometimes we have absolutely no discretion. 

So I am right now in the position of having both areas where I 

do exercise discretion and areas where I do not. I am comfortable 

in adhering to the laws that I apply now as a State judge, and if 

I am lucky enough to be confirmed, I am comfortable that I will 

similarly follow the guidelines and mandatory sentencing as established by Congress. 

Judge MINALDI. Mr. Chairman, I am sure I would never think 

that the sentencing guidelines were stupid, but I will tell you that 

although there is probably a little bit more discretion in the Louisiana State courts that there are in the Florida State courts, we 

do have certain crimes for which there are mandatory minimums. 

We do have certain laws regarding repeat offenders which prescribe mandatory minimums as well. So I’m not unused to that system. 

We did at one point have sentencing guidelines. They were later 

repealed. However, I don’t—I’d have to say that I think one of the 

most onerous duties a judge has is to attempt to effect an appropriate sentence for any defendant, and in Louisiana, we are told 

that we must absolutely individualize and particularize those sentences to the defendant and the facts of the crime. 

So it will be different, but I don’t think I will have any trouble 

whatsoever applying the sentencing guidelines as Congress has felt 

appropriate to hand down. 

Senator SESSIONS. In many ways, it is a freeing thing. If somebody comes before you and you can give them 20 years or probation 

in a State court system, here the Congress objectively, before this 

case ever came before you, set out the factors that would narrow 

1145

that range, and I guess in some ways it can free your conscience 

rather than burden your conscience. But I have seen judges make 

their lives miserable by feeling that if they were writing the guidelines, it wouldn’t have been the same. And I think you have just 

got to follow them because if judges don’t, then the system begins 

to break down. And if the U.S. Attorneys don’t believe you are 

going to follow them, then they don’t follow them, and the whole 

thing begins to collapse. 

Before the guidelines, we had tremendous diversity in sentencing. So that was why Senator Thurmond and Senator Kennedy 

came together and passed the guidelines. It provides uniformity of 

sentences based on objective factors that treat the poor, the rich, 

the black, the white, the same. 

Well, this has been an interesting discussion. I know that you 

will do well on the bench. Your records certainly indicate that. I 

believe and I hope that your nominations would move forward in 

an expeditious way, that you won’t be left in limbo for too long. If 

there is anything we can do here on this Committee to answer any 

questions, I hope that you will ask them. And if you become a 

judge and you think there is something wrong with the guidelines, 

write me. Don’t violate them, would be my suggestion. In fact, I 

have offered legislation with Senator Hatch to narrow what we 

think is an extreme difference between crack and powder cocaine. 

I think if the Congress is going to take over sentencing, we ought 

to constantly monitor it to make sure that it is making sense in 

the real world and not ask judges to enforce rules that sounded 

good 15 years ago but, as history has disclosed, may be not quite 

so healthy. 

Anything else that you have before the Committee? 

Judge MINALDI. No. Thank you. 

Judge ALTONAGA. Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you. Congratulations on getting this 

far. 

We are adjourned, and we will note the record will remain open 

until Tuesday, April 8th at 5:00 p.m. for follow-up questions. We 

are adjourned. 

[Whereupon, at 2:27 p.m., the Committee was adjourned.] 

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

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