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82–503 PDF 2002

S. HRG. 107–584, PT. 2

CONFIRMATION HEARINGS ON

FEDERAL APPOINTMENTS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

OCTOBER 18, OCTOBER 25, NOVEMBER 7, DECEMBER 5, AND

DECEMBER 18, 2001

PART 2

Serial No. J–107–23

Printed for the use of the Committee on the Judiciary

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(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

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 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

(III)

C O N T E N T S 

THURSDAY, OCTOBER 18, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Page

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 2

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 1

PRESENTERS 

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico presenting 

M. Christina Armijo, Nominee to be District Judge for the District of 

New Mexico ........................................................................................................... 14

Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting 

Charles W. Pickering, Sr., Nominee to be Circuit Judge for the Fifth Circuit ......................................................................................................................... 7

Domenici, Hon. Pete V., a U.S. Senator from the State of New Mexico presenting M. Christina Armijo, Nominee to be District Judge for the District 

of New Mexico ...................................................................................................... 13

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting 

Charles W. Pickering, Sr., Nominee to be District Judge for the Fifth 

Circuit ................................................................................................................... 5

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma presenting 

Stephen P. Friot, Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 12

Pickering, Hon. Charles W., Jr., a Representative in Congress from the State 

of Mississippi presenting Charles W. Pickering, Sr., Nominee to be Circuit 

Judge for the Fifth Circuit .................................................................................. 8

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

R. Hicks, Nominee to be District Judge for the District of Nevada ................. 9

Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama presenting Karon O. Bowdre, Nominee to be District Judge for the Northern 

District of Alabama .............................................................................................. 14

STATEMENTS OF THE NOMINEES 

Armijo, M. Christine, of New Mexico, Nominee to be District Judge for the 

District of New Mexico ........................................................................................ 78

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

Bowdre, Karon O., of Alabama, Nominee to be District Judge for the Northern 

District of Alabama .............................................................................................. 112

Questionnaire .................................................................................................... 113

Friot, Stephen P., of Oklahoma, Nominee to be District Judge for the Western 

District of Oklahoma ............................................................................................ 147

Questionnaire .................................................................................................... 148

Hicks, Larry R., of Nevada, Nominee to be District Judge for the District 

of Nevada .............................................................................................................. 189

Questionnaire .................................................................................................... 190

Pickering, Charles W., Sr., of Mississippi, Nominee to be Circuit Judge for 

the Fifth Circuit ................................................................................................... 15

Questionnaire .................................................................................................... 17

QUESTIONS AND ANSWERS 

Responses of M. Christina Armijo to questions submitted by Senator Leahy ... 262

Page

IV

Responses of Karon O. Bowdre to questions submitted by Senator Leahy ........ 264

Responses of Stephen P. Friot to questions submitted by Senator Leahy .......... 266

Responses of Larry R. Hicks to questions submitted by Senator Leahy ............. 268

Responses of Charles W. Pickering, Sr. to questions submitted by Senator 

Leahy ..................................................................................................................... 269

SUBMISSION FOR THE RECORD 

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

in support of Karon O. Bowdre, Nominee to be District Judge for the 

Northern District of Alabama ............................................................................. 271

THURSDAY, OCTOBER 25, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 518

Edwards, Hon. John, a U.S. Senator from the State of North Carolina ............. 273

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 505

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 275

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 502

PRESENTERS 

Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico: 

presenting Harris L. Hartz, Nominee to be Circuit Judge for the Tenth 

Circuit ............................................................................................................ 275

presenting William P. Johnson, Nominee to be District Judge for the 

District of New Mexico ................................................................................. 276

Breaux, Hon. John B., a U.S. Senator from the State of Louisiana presenting 

Kurt D. Engelhardt, Nominee to be District Judge for the Eastern District 

of Louisiana .......................................................................................................... 276

Domenici, Hon. Pete V., a U.S. Senator from the State of New Mexico: 

presenting Harris L. Hartz, Nominee to be Circuit Judge for the Tenth 

Circuit ............................................................................................................ 274

presenting William P. Johnson, Nominee to be District Judge for the 

District of New Mexico ................................................................................. 275

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois 

presenting Sharee M. Freeman, Nominee to be Director of the Community 

Relations Service, Department of Justice .......................................................... 278

Landrieu, Hon. Mary L., a U.S. Senator from the State of Louisiana presenting Kurt D. Engelhardt, Nominee to be District Judge for the Eastern 

District of Louisiana ............................................................................................ 277

Morella, Hon. Constance A., a Representative in Congress from the State 

of Maryland presenting John D. Bates, Nominee to be District Judge for 

the District of Columbia ...................................................................................... 279

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

of Columbia presenting John D. Bates, Nominee to be District Judge for 

the District of Columbia ...................................................................................... 281

Vitter, Hon. David, a Representative in Congress from the State of Louisiana 

presenting Kurt D. Engelhardt, Nominee to be District Judge for the Eastern District of Louisiana ...................................................................................... 280

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

Sharee M. Freeman, Nominee to be Director of the Community Relations 

Service, Department of Justice ........................................................................... 278

STATEMENTS OF THE NOMINEES 

Bates, John D., of Maryland, Nominee to be District Judge for the District 

of Columbia ........................................................................................................... 377

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

Engelhardt, Kurt D., of Louisiana, Nominee to be District Judge for the 

Eastern District of Louisiana .............................................................................. 333

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

Freeman, Sharee M., of Illinois, Nominee to be Director of the Community 

Relations Service, Department of Justice .......................................................... 469

Questionnaire .................................................................................................... 472

Page

V

Hartz, Harris L., of New Mexico, Nominee to be Circuit Judge for the Tenth 

Circuit ................................................................................................................... 283

Questionnaire .................................................................................................... 284

Johnson, William P., of New Mexico, Nominee to be District Judge for the 

District of New Mexico ........................................................................................ 411

Questionnaire .................................................................................................... 412

QUESTIONS AND ANSWERS 

Responses of John D. Bates to questions submitted by Senator Leahy .............. 506

Responses of John D. Bates to questions submitted by Senator Durbin ............ 507

Responses of Kurt D. Engelhardt to questions submitted by Senator Leahy .... 509

Responses of Kurt D. Engelardt to questions submitted by Senator Durbin ..... 510

Responses of Harris L. Hartz to questions submitted by Senator Leahy ........... 511

Responses of Harris L. Hartz to questions submitted by Senator Durbin ......... 513

Responses of Harris L. Hartz to a question submitted by Senator Edwards ..... 514

Responses of William P. Johnson to questions submitted by Senator Durbin ... 514

Responses of William P. Johnson to questions submitted by Senator Leahy ..... 516

WEDNESDAY, NOVEMBER 7, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 519

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 735

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 754

PRESENTERS 

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

Julia A. Robinson, Nominee to be District Judge for the District of Kansas .. 525

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

Danny C. Reeves, Nominee to be District Judge for the Eastern District 

of Kentucky ........................................................................................................... 522

Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma presenting 

Joe L. Heaton, Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 520

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

J. Martone, Nominee to be District Judge for the District of Arizona ............ 527

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

Danny C. Reeves, Nominee to be District Judge for the Eastern District 

of Kentucky ........................................................................................................... 521

Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma presenting 

Joe L. Heaton, Nominee to be District Judge for the Western District 

of Oklahoma ......................................................................................................... 522

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

A. Robinson, Nominee to be District Judge for the District of Kansas ........... 523

STATEMENTS OF THE NOMINEES 

Heaton, Joe L., of Oklahoma, Nominee to be District Judge for the Western 

District of Oklahoma ............................................................................................ 569

Questionnaire .................................................................................................... 570

Land, Clay D., of Georgia, Nominee to be District Judge for the Middle 

District of Georgia ................................................................................................ 600

Questionnaire .................................................................................................... 601

Martone, Frederick J., of Arizona, Nominee to be District Judge for the 

District of Arizona ................................................................................................ 638

Questionnaire .................................................................................................... 639

Reeves, Danny C., of Kentucky, Nominee to be District Judge for the Eastern 

District of Kentucky ............................................................................................. 674

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

Robinson, Julie A., of Kansas, Nominee to be District Judge for the District 

of Kansas .............................................................................................................. 529

Questionnaire .................................................................................................... 530

Page

VI

Rogan, James E., of California, Nominee to be Under Secretary of Commerce 

for Intellectual Property and Director of the United States Patent and 

Trademark Office, Department of Commerce .................................................... 710

Questionnaire .................................................................................................... 712

QUESTIONS AND ANSWERS 

Responses of Joe L. Heaton to questions submitted by Senator Leahy .............. 741

Responses of Clay D. Land to questions submitted by Senator Leahy ............... 744

Responses of Frederick J. Martone to questions submitted by Senator Leahy .. 745

Responses of Danny C. Reeves to questions submitted by Senator Leahy ......... 747

Responses of Julie A. Robinson to questions submitted by Senator Leahy ........ 750

Responses of James E. Rogan to questions submitted by Senator Leahy .......... 752

SUBMISSIONS FOR THE RECORD 

Cleland, Hon. Max, a U.S. Senator from the State of Georgia, statement 

in support of Clay D. Land, Nominee to be District Judge for the Middle 

District of Georgia ................................................................................................ 754

Miller, Hon. Zell, a U.S. Senator from the State of Georgia, statement in 

support of Clay D. Land, Nominee to be District Judge for the Middle 

District of Georgia ................................................................................................ 755

Senate Republican High Tech Task Force, letter in support of James E. 

Rogan, Nominee to be Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office ............ 756

WEDNESDAY, DECEMBER 5, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 757

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 759

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 763

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 758

PRESENTERS 

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

Marcia S. Krieger, Nominee to be District Judge for the District of Colorado ....................................................................................................................... 768

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

presenting Marcia S. Krieger, Nominee to be District Judge for the District 

of Colorado ............................................................................................................ 761

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

James C. Mahan, Nominee to be District Judge for the District of Nevada ... 772

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

Mauricio J. Tamargo, Nominee to be Chair of the Foreign Claims Settlement Commission of the United States .............................................................. 767

Gramm, Hon. Phil, a U.S. Senator from the State of Texas presenting Philip 

R. Martinez, Nominee to be District Judge for the Western District of 

Texas ..................................................................................................................... 769

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Philip R. Martinez, Nominee to be District Judge for the Western 

District of Texas ................................................................................................... 764

Meek, Hon. Carrie, a Representative in Congress from the State of Florida 

presenting Mauricio J. Tamargo, Nominee to be Chair of the Foreign 

Claims Settlement Commission of the United States ....................................... 775

Miller, Hon. Zell, a U.S. Senator from the State of Georgia presenting C. 

Ashley Royal, Nominee to be District Judge for the Middle District of 

Georgia .................................................................................................................. 773

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

C. Mahan, Nominee to be District Judge for the District of Nevada .............. 760

Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the State of 

Florida presenting Mauricio J. Tamargo, Nominee to be Chair of the Foreign Claims Settlement Commission of the United States ............................... 774

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

Callie V. Granade, Nominee to be District Judge for the Southern District 

of Alabama ............................................................................................................ 770

Page

VII

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

Mauricio J. Tamargo, Nominee to be Chair of the Foreign Claims Settlement Commission of the United States .............................................................. 766

STATEMENTS OF THE NOMINEES 

Granade, Callie V., of Alabama, Nominee to be District Judge for the Southern District of Alabama ....................................................................................... 776

Questionnaire .................................................................................................... 778

Krieger, Marcia S., of Colorado, Nominee to be District Judge for the District 

of Colorado ............................................................................................................ 825

Questionnaire .................................................................................................... 826

Mahan, James C., of Nevada, Nominee to be District Judge for the District 

of Nevada .............................................................................................................. 873

Questionnaire .................................................................................................... 874

Martinez, Philip R., of Texas, Nominee to be District Judge for the Western 

District of Texas ................................................................................................... 907

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

Royal, C. Ashley, of Georgia, Nominee to be District Judge for the Middle 

District of Georgia ................................................................................................ 963

Questionnaire .................................................................................................... 964

Tamargo, Mauricio J., of Virginia, Nominee to be Chair of the Foreign Claims 

Settlement Commission of the United States .................................................... 1012

Questionnaire .................................................................................................... 1014

QUESTIONS AND ANSWERS 

Responses of Mauricio Tamargo to questions submitted by Senator Leahy ....... 1033

Responses of Mauricio Tamargo to questions submitted by Senator Durbin ..... 1035

SUBMISSIONS FOR THE RECORD 

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

support of Mauricio J. Tamargo, Nominee to be Chair of the Foreign Claims 

Settlement Commission of the United States .................................................... 1036

Reyes, Hon. Silvestre, a Representative in Congress from the State of Texas, 

letter in support of Philip R. Martinez, Nominee to be District Judge 

for the Western District of Texas ....................................................................... 1036

Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama, statement in support of Callie V. Granade, Nominee to be District Judge for 

the Southern District of Alabama ....................................................................... 1037

MONDAY, DECEMBER 10, 2001

STATEMENTS OF COMMITTEE MEMBERS 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1042

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1039

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 1089

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 1129

PRESENTER 

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

David L. Bunning, Nominee to be District Judge for the Eastern District 

of Kentucky ........................................................................................................... 1048

STATEMENT OF THE NOMINEE 

Bunning, David L., of Kentucky, Nominee to be District Judge for the Eastern 

District of Kentucky ............................................................................................. 1049

Questionnaire .................................................................................................... 1051

WITNESSES 

Famularo, Joseph L., Deputy Secretary, Commonwealth of Kentucky, Frankfort, Kentucky ....................................................................................................... 1126

Forester, Hon. Karl S., Chief Judge, U.S. District Court for the Eastern 

District of Kentucky, Lexington, Kentucky ........................................................ 1121

Page

VIII

Hood, Hon. Joseph M., Judge, U.S. District Court for the Eastern District 

of Kentucky, Lexington, Kentucky ..................................................................... 1124

Trimmier, Roscoe, Jr., Chair, American Bar Association Standing Committee 

on Federal Judiciary; and David C. Weiner, Sixth Circuit Representative, 

American Bar Association Standing Committee on Federal Judiciary; accompanied by Judah Best, American Bar Association Standing Committee 

on Federal Judiciary, Washington, D.C. ............................................................ 1097

Wilhoit, Hon. Henry R., Jr., Senior District Judge, U.S. District Court for 

the Eastern District of Kentucky, Ashland, Kentucky ..................................... 1117

QUESTIONS AND ANSWERS 

Questions submitted to the American Bar Association by Senator Leahy ......... 1131

Questions submitted to the David L. Bunning by Senator Leahy ....................... 1131

Questions submitted to the Judicial Panel by Senator Leahy ............................. 1132

SUBMISSIONS FOR THE RECORD 

Chandler, Hon. Albert B., III, Attorney General, Commonwealth of Kentucky, 

Frankfort, Kentucky, statement ......................................................................... 1133

De Falaise, Louis, Attorney, Fairfax, Virginia, letter ........................................... 1133

Duncan, Robert M., Treasurer, Republican National Committee, letter ............ 1134

Dusing, Gerald F., Attorney, Adams, Stepner, Woltermann & Dusing, 

P.L.L.C., Covington, Kentucky, letter ................................................................ 1134

Famularo, Joseph L., Attorney, Lexington, Kentucky, letter .............................. 1135

Hatfield, Martin L., Somerset, Kentucky, letter ................................................... 1136

Hellings, Harry P., Jr., Attorney, Hellings & Pisacano, P.S.C., Covington, 

Kentucky, letter .................................................................................................... 1136

Jackson, Sarah, Union, Kentucky, letter ............................................................... 1137

Mando, Jeffrey C., Attorney, Adams, Stepner, Wolthermann & Dusing, 

P.L.L.C., Covington, Kentucky, letter ................................................................ 1137

Parry, Ron R., Attorney, Parry Deering Futscher & Sparks, P.S.C., Covington, 

Kentucky, letter .................................................................................................... 1138

Prewitt, Thomas A., Attorney, Graydon Head & Ritchey, LLP, Florence, Kentucky, letter .......................................................................................................... 1139

Rawlins, Robert E., Attorney, Lexington, Kentucky, letter ................................. 1139

Ream, Randy, Attorney, Mt. Washington, Kentucky, letter ................................ 1140

Robinson, William T., III, Attorney, Greenebaum Doll & McDonald, PLLC, 

Covington, Kentucky, letter ................................................................................ 1141

Schaffner, Charles H., Attorney, Covington, Kentucky, letter and attachment . 1142

Smith, J. Stephen, Attorney, Taft, Stettinius & Holllister LLP, Covington, 

Kentucky, letter .................................................................................................... 1143

Storm, Beverly R., Attorney, Arnzen & Wentz, P.S.C., Covington, Kentucky, 

letter ...................................................................................................................... 1143

Taliaferro, Philip, Attorney, Taliaferro, Mehling, Shirooni, Carran & Keys, 

PLLC, Covington, Kentucky, letter .................................................................... 1144

Vesper, Paul J., Attorney, Covington, Kentucky, letter ....................................... 1144

ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS 

Armijo, M. Christine, of New Mexico, Nominee to be District Judge for the 

District of New Mexico ........................................................................................ 78

Bates, John D., of the District of Columbia, Nominee to be District Judge 

for the District of Columbia ................................................................................ 377

Bowdre, Karon O., of Alabama, Nominee to be District Judge for the Northern 

District of Alabama .............................................................................................. 112

Bunning, David L., of Kentucky, Nominee to be District Judge for the Eastern 

District of Kentucky ............................................................................................. 1049

Engelhardt, Kurt D., of Louisiana, Nominee to be District Judge for the 

Eastern District of Louisiana .............................................................................. 333

Freeman, Sharee M., of Illinois, Nominee to be Director of the Community 

Relations Service, Department of Justice .......................................................... 469

Friot, Stephen P., of Oklahoma, Nominee to be District Judge for the Western 

District of Oklahoma ............................................................................................ 147

Page

IX

Granade, Callie V., of Alabama, Nominee to be District Judge for the Southern District of Alabama ....................................................................................... 776

Hartz, Harris L., of New Mexico, Nominee to be Circuit Judge for the Tenth 

Circuit ................................................................................................................... 283

Heaton, Joe L., of Oklahoma, Nominee to be District Judge for the Western 

District of Oklahoma ............................................................................................ 569

Hicks, Larry R., of Nevada, Nominee to be District Judge for the District 

of Nevada .............................................................................................................. 189

Johnson, William P., of New Mexico, Nominee to be District Judge for the 

District of New Mexico ........................................................................................ 411

Krieger, Marcia S., of Colorado, Nominee to be District Judge for the District 

of Colorado ............................................................................................................ 825

Land, Clay D., of Georgia, Nominee to be District Judge for the Middle 

District of Georgia ................................................................................................ 600

Mahan, James C., of Nevada, Nominee to be District Judge for the District 

of Nevada .............................................................................................................. 873

Martinez, Philip R., of Texas, Nominee to be District Judge for the Western 

District of Texas ................................................................................................... 907

Martone, Frederick J., of Arizona, Nominee to be District Judge for the 

District of Arizona ................................................................................................ 638

Pickering, Charles W., Sr., of Mississippi, Nominee to be Circuit Judge for 

the Fifth Circuit ................................................................................................... 15

Reeves, Danny C., of Kentucky, Nominee to be District Judge for the Eastern 

District of Kentucky ............................................................................................. 674

Robinson, Julie A., of Kansas, Nominee to be District Judge for the District 

of Kansas .............................................................................................................. 529

Rogan, James E., of California, Nominee to be Under Secretary of Commerce 

for Intellectual Property and Director of the United States Patent and 

Trademark Office, Department of Commerce .................................................... 710

Royal, C. Ashley, of Georgia, Nominee to be District Judge for the Middle 

District of Georgia ................................................................................................ 963

Tamargo, Mauricio J., of Virginia, Nominee to be Chair of the Foreign Claims 

Settlement Commission of the United States .................................................... 1012

(1)

NOMINATION OF CHARLES W. PICKERING, 

SR., OF MISSISSIPPI, TO BE CIRCUIT JUDGE 

FOR THE FIFTH CIRCUIT; M. CHRISTINA 

ARMIJO, OF NEW MEXICO, TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF NEW MEXICO; KARON O. BOWDRE, OF ALABAMA, TO 

BE DISTRICT JUDGE FOR THE NORTHERN 

DISTRICT OF ALABAMA; STEPHEN P. FRIOT, 

OF OKLAHOMA, TO BE DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF OKLAHOMA; AND LARRY R. HICKS, OF NEVADA, 

TO BE DISTRICT JUDGE FOR THE DISTRICT 

OF NEVADA 

THURSDAY, OCTOBER 18, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 2:06 p.m., in room S–

128, United States Capitol, Hon. Charles Schumer presiding. 

Present: Senators Schumer, Leahy, Kennedy, Durbin, and 

DeWine. 

OPENING STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator SCHUMER. The Committee will be in order. I want to 

thank all of my colleagues and our nominees today for coming. 

First, on behalf of all of us, I want to apologize to everybody that 

we are under such cramped circumstances. We know what an important and happy day this is for the families of those who are 

coming before us. Usually, we have a much nicer room across the 

way, but obviously due to the circumstances you have all read 

about, we can’t be there. This room is more beautiful than the one 

we usually have the hearings in. I think even our Chairman would 

agree with that, but it is not as big, it is not as large. But we thank 

you. 

We wanted to meet today, and that was a decision made by Senators Daschle and Lott, and Senators Leahy and Hatch, because we 

think it is very important that we continue the business of the Senate. We want to set a tone for the Nation, and the fact that we are 

2

here today sends a message that while the terrorists may force us 

to close our buildings for a few days, they won’t close the Senate 

for even one. So we are meeting here, even though our buildings 

where we usually have the hearings are closed. 

So we are getting on with the business of the country and we are 

not going to let the misguided acts of an evil few keep us from 

doing our work for the many. So that is why we are here, Republicans and Democrats, united as Americans, to ensure that our 

courts can continue. 

We appreciate all our colleagues who have come, and we will get 

right on to their statements. And we very much appreciate all the 

families who have come from far away, many of you, to be here 

today. Thank you for understanding where we are at. 

With that, let me call on Senator DeWine. Senator Sessions is 

the ranking member of our Subcommittee, but couldn’t be here 

today and is ably substituted for by Senator DeWine from Ohio. 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF ARIZONA 

Senator DEWINE. Mr. Chairman, thank you very much. I thank 

you for holding the hearing today, and I certainly do not want to 

hold up our colleagues here. It is quite a distinguished group of 

Senators and Congressmen, and I am looking forward to hearing 

the testimony. 

Senator SCHUMER. Thank you. 

Senator Leahy, the Chairman of our Committee. 

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

FROM THE STATE OF VERMONT 

Chairman LEAHY. I appreciate you holding this hearing. This is 

the Appropriations Committee room. A number of us here serve on 

Appropriations and are familiar with it. I also apologize to everybody, but we either held it here or we didn’t have a hearing at all. 

Senator Lott and Senator Daschle are right to have us in session 

today. I understand the police have required the major office buildings where our offices are to be closed, but I agree with Senator 

Schumer that the United States Senate should always be open for 

business; even in a truncated fashion, it should be. We represent 

a quarter of a billion people and we should be here. Just as we can 

ask some 17-year-old to stand sentry duty in Kosovo next to a mind 

field in the middle of the night, U.S. Senators should be here. I am 

glad to have the two Republican Leaders and the Democratic Leader here. 

Actually, we received Judge Pickering’s nomination just before 

the August recess. It was returned and came back on September 

5, so this hearing will be on the September 5 nomination. We have 

had some vacancies in the Fifth Circuit. Since April 7, 1999, the 

seat previously occupied by Judge Duhe has been vacant. 

President Clinton nominated Alston Johnson to fill that vacancy 

on April 22, 1999. He was never given a hearing by the Judiciary 

Committee, under different Chairmanship. I mention this just so 

people understand the history of what is going on here. 

Since January 23, 1997, four years ago, Judge Garwood’s seat on 

the Fifth Circuit has been vacant. President Clinton nominated 

3

Jorge Rangel to fill this vacancy in July of 1997. Mr. Rangel was 

never even given a hearing by this Committee. His nomination was 

returned to the President without Senate action on October 21, 

1998. On September 16, 1999, President Clinton nominated 

Enrique Moreno to fill the same vacancy. This Committee never 

gave him a hearing and it was returned. 

I just mention this because we had 23 months, 2 nominations, 

without action. Finally, President Bush withdrew the last of the 

Clinton nomination names. So in the last 7 years, there has not 

been a nomination hearing on any of President Clinton’s nominees 

to the Fifth Circuit. 

The first nomination hearing on a nominee to the Fifth Circuit 

in 7 years was the one I noticed for October 4, 2001, at which the 

Committee heard from Judge Edith Brown Clement, of Louisiana. 

After 7 years without a single hearing, this hearing for Judge Pickering is the second nomination hearing on a nominee to the Fifth 

Circuit this Committee has held this month. 

I would point out that President Clinton made dozens upon dozens upon dozens of nominations to fill a lot of these vacancies, including on the Fifth Circuit. The predecessor Committee refused to 

even hold hearings on them. We have held two hearings in a 

month. 

I thank the Senator from New York, who, of all people, with all 

that has gone on in New York, would have had every reason to 

cancel these hearings today and gone back to his State, where he 

has done unbelievable service to the people of New York in trying 

to put that State and that city back together, as have Governor 

Pataki and Mayor Giuliani and Senator Clinton, and the Members 

of the House, Republican and Democrat, from that State. I thank 

him for holding the hearing. 

I will put everything else in the record. Because there seems to 

be some confusion from the statistics I have heard on the floor, I 

thought it might be good to put this in the record. 

[The prepared statement of Senator Leahy follows:]

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF

VERMONT

I begin by thanking Senator Schumer, the Chair of the Courts Subcommittee, for 

also chairing this hearing on judicial nominations. This is an extraordinary time in 

the Senate. All three Senate office buildings have been closed in the wake of Senate 

employees testing positive for anthrax. Nonetheless, the Judiciary Committee is 

seeking to proceed with this hearing today. 

Judge Charles W. Pickering was first nominated to a vacancy on the 5th Circuit 

on May 25. Unfortunately, due to the change in the nomination process adopted by 

President Bush, his ABA peer review was not received until late July, just before 

the August recess. At that point we were concentrating on expediting the confirmation hearing of the new Director of the Federal Bureau of Investigation, who was 

confirmed in record time before the August recess. As a result of the objection of 

the Republican Leader to a request to retain nominations pending before the Senate, including all judicial nominations, through the August recess, that initial nomination of Judge Pickering was required by Senate Rules to be returned to the President without action. Judge Pickering was renominated last month, on September 5. 

It is that September 5 nomination of Judge Pickering on which we proceed today, 

less than six weeks after receiving the President’s nomination. 

Judge Pickering is nominated to serve on the United States Court of Appeals for 

the Fifth Circuit, which encompasses the States of Mississippi, Texas and Louisiana. This is one of the many Circuits that were left with multiple vacancies 

through the end of the Clinton Administration. Since April 7, 1999, the seat previously occupied by Judge Duhe of the 5th Circuit has been vacant. Although PresiVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 C:\HEARINGS\82503A.000 SJUD4 PsN: CMORC
4

dent Clinton nominated Alston Johnson to fill that vacancy only 15 days later, on 

April 22, 1999, Mr. Johnson was never granted a hearing by the Judiciary Committee, then chaired by Senator Hatch. Since January 23, 1997, Judge Garwood’s seat on the 5th Circuit has been vacant. Despite the fact that President Clinton nominated Jorge Rangel to fill this vacancy in July of 1997, Mr. Rangel never received 

a hearing and his nomination was returned to the President without Senate action 

on October 21, 1998. On September 16, 1999, President Clinton nominated Enrique 

Moreno to fill the same vacancy. Once again, the nominee did not receive a hearing 

and his nomination was returned to the President without action. 

Over the last several years I have commented on those vacancies as I urged action 

on the nominations of Jorge Rangel, Enrique Moreno and Alston Johnson to fill vacancies on the 5th Circuit. None of those nominees was ever provided a hearing before the Judiciary Committee or acted upon by the Senate. After 15 months without 

action, Mr. Rangel asked not to be re-nominated. After 15 months and two nominations, Enrique Moreno’s nomination was returned to the President without action. 

After nearly 23 months and two nominations without action, Mr. Johnson’s nomination was withdrawn by President Bush in March of 2001. 

For the last seven years there has not been a nominations hearing on any of 

President Clinton’s nominees to the 5th Circuit. The first nominations hearing on a 

nominee to the 5th Circuit in seven years was the one I noticed for October 4, 2001, 

at which the Committee heard from Judge Edith Brown Clement of Louisiana, who 

is another pending nomination of President Bush to the 5th Circuit. After seven 

years without a single hearing, this hearing for Judge Pickering is the second nomination hearing on a nominee to the 5th Circuit that this Committee has held this 

month. 

Since 1999, Chief Judge King of the 5th Circuit has declared the 5th Circuit in a 

state of emergency such that the hearing and determination of cases and controversies could be conducted by panels of three judges selected without regard to the 

qualification in 28 U.S.C. § 46(b) that a majority of each panel be composed of judges 

of the 5th Circuit. That means that 5th Circuit cases are being heard and decided 

by three-judge panels with only one 5th Circuit judge. I recall when delays in the 

confirmation process threw the 2nd Circuit into a similar emergency in March of 

1998, and how hard I worked to get those vacancies filled to end that emergency 

in my Circuit. By proceeding with Judge Clement and Judge Pickering this Committee has adopted a different approach from the last several years and is proceeding to consider President Bush’s nominees to the 5th Circuit. 

Since the Senate was allowed to reorganize and the Committee membership was 

set, we have maintained a sustained effort to consider judicial and executive nominees. Today, at our Executive Session, the agenda contained the names of another 

13 nominees for United States Attorneys, the Assistant Attorney General for the Office of Legal Counsel and four additional District Court nominees from Oklahoma, 

Kentucky and Nebraska. We have already confirmed since July more Court of Appeals nominees than were confirmed during the first year of the Clinton Administration and, for that matter, more Court of Appeals nominees than were reported by 

this Committee in all of last year. With two hearing on two candidates to the 5th

Circuit this month, I hope that we will soon be able to send that Circuit some help, 

as well. 

At this hearing we consider five more judicial nominees. Along with Judge Pickering, we have before us nominees for District Court vacancies in Alabama, New 

Mexico, Nevada and another in Oklahoma. Despite the upheaval we have experienced this year with the shifts in the Senate majority and, more importantly, the 

need to focus our attention on responsible action in the fight against international 

terrorism, we are ahead of the pace for hearings and confirmations of judges during 

the first year of the Clinton Administration and during the first year of the first 

Bush Administration. 

The recent vicious attacks on our people have given all of us a heightened awareness of the critical importance of our civil liberties, of the many possible threats to 

those freedoms, and of the necessity of responding to the challenge of international 

terrorism without sacrificing what is best about America. This is serious and important work and our federal judges will be a key component in guarding our freedoms. 

Our system of checks and balances requires that the judicial branch review the acts 

of the political branches. I will want to be confident that the nominees before us 

today will take this responsibility seriously and will rely on their experience and 

on our rich history of judicial precedent to make wise decisions in the challenging 

times ahead. 

I apologize to the nominees, their families and most importantly to the public for 

the manner in which we are being required to proceed. Our normal hearing room 

is closed to us. This is a beautiful room and one of my favorite Senate rooms. The 

5

distinguished Chairman of the Appropriations Committee has graciously extended 

to us his hospitality. We thank him for making it possible for us to proceed at all. 

Unfortunately, the room does not accommodate the number of people we would like 

and are used to being able to be present. We are doing the best that we can under 

these extraordinary circumstances.

Senator SCHUMER. Thank you, Senator Leahy. 

Senator Kennedy? 

Senator KENNEDY. No, thank you, Mr. Chairman. 

Senator SCHUMER. Then let us move right along to our first 

panel of witnesses. We will be hearing from the nominees on the 

second panel. We thank all of you for coming. We know you are 

very busy, so let’s get right on to the business and let me start with 

Senator Lott to speak about the nomination of Charles W. Pickering for the Fifth Circuit Court of Appeals. 

PRESENTATION OF CHARLES W. PICKERING, SR., NOMINEE TO 

BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. 

TRENT LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI 

Senator LOTT. Thank you, Chairman Schumer, and thank you, 

Chairman Leahy. I am even more honored than usual to appear before this fine Committee, because you are having this hearing 

today in spite of many distractions and in these particular facilities 

which are not quite large enough, but are very historic, and also 

because of the number of judges that you are hearing about today, 

and about Judge Charles Pickering. 

One of the reasons why the room is a little crowded is because 

a few of the very large Pickering clan happen to be in the room, 

including Ms. Pickering who is over here with four or five of the 

grandchildren. I lost count of how many grandchildren they have. 

The son of Judge Pickering, Congressman Chip Pickering, is here 

today, and Chip’s wife, Leisha, is here. This is an outstanding family and I just had to refer to them. 

In view of the fact that we have got so many of my colleagues 

here, I am going to be brief, but let me just say that I have known 

Judge Pickering for, I guess, about 40 years. I know him to be a 

gentleman and a scholar. 

He has had an outstanding record for 11 years now as a Federal 

Judge for the Southern District of Mississippi. He is widely supported by Democrats and Republicans and by plaintiff and defense 

attorneys, and is generally recognized as having been a very active 

judge and has done an awful lot to clear up the backlog on the 

docket. 

When I said he is a scholar, he graduated first in his class from 

law school and received his undergraduate degree with honors. He 

has always been very involved in academic efforts and involved in 

bar association activities, and he is very much involved in religious 

and charitable pursuits, also, in Mississippi. 

He served on the board of directors of the Institute for Racial 

Reconciliation at the University of Mississippi, our alma mater. He 

headed the March of Dimes in his home county. He has headed the 

Red Cross in his home county. He is involved in the Drug Education Council, and the list is endless. 

6

He also, interestingly enough—you might want to know this—he 

was one of the forerunners and founders of the cat food—catfish industry in Mississippi. 

Senator COCHRAN. Cat food? 

[Laughter.] 

Senator LOTT. Cat food, yes. Some people think that is what it 

is good for. 

Chairman LEAHY. Does that qualify him? 

Senator LOTT. Yes, that does qualify him. 

Chairman LEAHY. Senator Cochran has made sure I have gone 

to some of those places. 

Senator LOTT. And raising the catfish and the business aspects 

of it, and also how you can’t fail in some agricultural pursuits. He 

was the first president of the National Catfish Farmers Association. Now, this is an important part of this man’s—

Chairman LEAHY. You keep right on there, Mr. Leader; you keep 

right on there. 

[Laughter.] 

Senator LOTT. He has got a breadth of experience and qualifications, and I am pleased that the President has nominated him for 

the Firth Circuit and eventually he will be credit to the Fifth Circuit. I apologize for the catfish industry for mutilating that. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Lott follows:]

STATEMENT OF HON. TRENT LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI

I am pleased to be here today to personally introduce Judge Charles Pickering to 

this Committee, and to Strongly support his nomination to be a United States Court 

of Appeals Judge for the Fifth Circuit. 

As many members of this Committee will recall, Judge Pickering was unanimously approved by the Committee in September of 1990 to be a United States District Court Judge for the Southern District of Mississippi. He was then unanimously 

confirmed by the full Senate. He has served honorably in this position for 11 years, 

and I am happy that the President has nominated Charles for a promotion to the 

Fifth Circuit. 

Charles and I have known each other for approximately 40 years, which doesn’t 

seem possible, and I can personally attest that there is no other person in the State 

of Mississippi who is more eminently qualified to serve on the Fifth Circuit Court 

of Appeals. 

Charles Pickering graduated first in his class from the University of Mississippi 

Law School in 1961, and received his B.A. degree from Ole Miss with honors in 

1959. He practiced law for almost 30 years in Jones County, Mississippi, serving 

stints as the prosecuting attorney for Jones County the City of Laurel during the 

1960’s. From 1972 to 1980, Charles served in the Mississippi State Senate. This was 

a part time position—with full-time demands I might add—that allowed him to continue his law practice during this period. 

Judge Pickering has had an impeccable reputation on the bench in Mississippi, 

and he is respected by all sectors of the Mississippi and national legal community. 

A substantial majority of the members of the ABA’s Standing Committee on the 

Federal Judiciary found him Well Qualified for appointment as a Fifth Circuit 

judge. 

Furthermore, he is highly respected within the federal judiciary. He served on the 

Board of Directors of the Federal Judges Association from 1997until this year, and 

was a member of the Executive Committee for the final two years of this term. He 

currently serves on the Judicial Branch Committee of the Judicial Conference of the 

United States, having been appointed by Chief Justice Rehnquist in 1997. 

Judge Pickering has been involved in numerous community and public service endeavors. He serves on the Board of Directors of the Institute for Racial Reconciliation at the University of Mississippi, our mutual alma mater, and in the past has 

headed the March of Dimes campaign in Jones County, Mississippi, and served as 

Chairman of the Jones County Chapter of the American National Red Cross. 

7

He has also volunteered for the Jones County Heart Fund, the Jones County Drug 

Education Council, and the Economic Development Authority of Jones County. He 

has always been very active in his church, serving as a Sunday School teacher, 

Chairman of the Deacons, Sunday School Superintendent, and Church Treasurer. 

From 1983–85, he was the President of the Mississippi Baptist Convention. 

In addition to his many professional and civic activities, Charles Pickering has 

also been a good farmer. He was the first president of the National Catfish Farmers 

Association and was a leader in catfish farming during the early days. 

Perhaps most importantly, thought, is the fact that Charles has always put his 

family first, even with the commitments I have just described. He has a wonderful 

wife and four grown children with spouses and families of their own. I want to particularly welcome his son, Congressman Chip Pickering, who is a former member 

of my staff. 

Mr. Chairman, I am pleased that the Committee has moved forward with this 

hearing today, because the Senate needs to act quickly to confirm Judge Pickering. 

He is exceptionally well-qualified for elevation to the Fifth Circuit, and I strongly 

endorse his nomination.

Senator SCHUMER. Thank you, Senator Lott. 

In New York, Judge, we are more familiar with cat food than catfish anyway, so that wasn’t so bad from our point of view. 

Also here to support the nomination of Judge Pickering to the 

Fifth Circuit is Senator Cochran. 

PRESENTATION OF CHARLES W. PICKERING, SR., NOMINEE TO 

BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. THAD 

COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI 

Senator COCHRAN. Mr. Chairman, thank you very much for the 

convening of the hearing and the consideration of this nomination. 

In my view, Judge Pickering is one of the finest district judges 

we have had to serve in our State. He has demonstrated a sense 

of fairness and judicial demeanor that has reflected credit on the 

Federal judiciary. He has become known as somebody who tries to 

do what is right, but he is also guided by the predictable principles 

of law and procedure that he has enforced with a very even hand. 

I think he will serve with distinction on the court of appeals, as 

well, because of his keen intellect and his conscientious approach 

to his duties, as he has demonstrated as a United States District 

Judge. 

Before he became a judge, he was an outstanding and respected 

lawyer in Mississippi. He handled some controversial cases in his 

home county of Jones County. He demonstrated that he had courage and a sense of community responsibility to help make decisions 

that were in the best interests of the entire community. These involved in some cases racial relations, labor union strikes against a 

corporation in his hometown. I remember both instances very well 

and came to appreciate his sense of public responsibility as a private attorney. 

He served with distinction in the Mississippi State Senate. He 

was elected by the people of his district there, and reelected. He 

was Chairman of the Mississippi Republican Party, which duties he 

handled in a way that reflected credit on our fledgling Republican 

Party in Mississippi. It was not the majority party; it probably still 

isn’t. Looking at the number of elected officials, it is a minority 

party. 

He has shown himself capable of rising to the occasion in whatever capacity he has been given in either government, in his 

8

church, in politics, and I think he will do the same in the Federal 

Judiciary on the Fifth Circuit Court of Appeals. So I recommend 

him wholeheartedly to the Committee for confirmation. 

Senator SCHUMER. Thank you, Senator Cochran. 

Before I turn to Senator Reid, we usually don’t hear from House 

members, but we have a special House member. He is the son of 

Judge Pickering, Congressman Pickering, from Mississippi. Just as 

important as both of those qualities, he was a former staff member 

of Senator Lott. 

Senator LOTT. So he has got good Senate roots. 

Senator SCHUMER. Congressman? 

PRESENTATION OF CHARLES W. PICKERING, SR., NOMINEE TO 

BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT, BY HON. 

CHARLES W. PICKERING, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSISSIPPI 

Representative PICKERING. First, thank you for the courtesy of 

allowing me to come and do a very unique and unusual experience, 

or have a unique and unusual experience for me, and that is to introduce my father. Usually, the father introduces the son to the 

world. This is a great opportunity for me to return all the great 

blessings and favors he has given to me in my lifetime. In most 

cases when we introduce someone, we have their bio and their experience. I have a lifetime of experience of watching my father. 

I have three sisters, and on behalf of our family, the 4 children 

and now 18 grandchildren, we want to thank the Senate for leading the charge on the educational savings accounts so that grandparents can contribute to the education of their grandchildren. 

My father has set an example from the courage, commitment, 

and of character. As Senator Cochran mentioned, I was born 38 

years ago, in 1963, August 10. On that day, my father was elected 

as the prosecuting county attorney in Jones County, and that was 

one of the most difficult and turbulent times in the South and in 

our home State. I watched as he took principled, courageous stands 

in fighting the efforts of the Klan. He testified against the Imperial 

Wizard of the Ku Klux Klan, Sam Bowers. 

In 1964, he also took another unusual and courageous step, and 

that is he left the Democratic Party to join the Republican Party. 

Senator REID. You can carry things too far. 

Senator SCHUMER. Yes. Are you trying to win votes for your father, or what? [Laughter.] 

Representative PICKERING. I will say he was defeated in his next 

election. 

Senator SCHUMER. And that is when he went to the cat food industry. [Laughter.] 

Give the Congressman an extra few minutes, please. 

Representative PICKERING. He did that because he believed it 

was in the best interests of the State to have a healthy two-party 

system that could participate not only in building a party in our 

State, but to give our State in national policy and national politics. 

Throughout my life, as we went into integration through our 

public schools, he led the community to maintain support for the 

public school system. All four of his children went through that 

9

public school system, so that it was a fully integrated educational 

experience, and I have been blessed as a result of that. 

His efforts in racial relations, including today his leadership at 

the University of Mississippi and the Institute for Racial Reconciliation—so in his faith he has been active, in his community he has 

been active, and in his public life he has been committed. And it 

has given me, as his son, not only a good name, which is better 

than riches, gold and silver, but has carried me and our children 

and all the grandchildren of the family to a very fortunate place 

and position. 

And so I just want to recommend to this Committee and endorse 

the nomination of my father, a good man, a good father, a good 

husband, a good grandfather, a good judge, a good lawyer, a good, 

committed public servant. 

Thank you for your consideration. 

Senator SCHUMER. Thank you, Congressman, and we all know 

what a proud day this is for you. 

We will now move on to our next witness. 

Just to explain to the audience, sometimes with the press of business some of the Senators who testify on behalf of their nominees 

have to leave, and we understand that you folks have to go, as 

well, and others. 

We are now ready to hear from our colleague, Senator Reid, in 

support of the nomination of Larry Hicks to the District Court for 

the District of Nevada. 

PRESENTATION OF LARRY HICKS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF NEVADA, BY HON. HARRY 

REID, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator REID. My nominee has a cat. 

[Laughter.] 

Chairman LEAHY. And if he doesn’t, he will by the end of this 

hearing. 

Senator REID. Mr. Chairman, thank you very much for holding 

this hearing. I say that because my nominee, that of Senator Ensign and me, Larry Hicks, traveled almost 3,000 miles to get here. 

What a disappointment it would have been for him and his family 

not to have this hearing. 

When I talked to Chairman Leahy last night and inquired as to 

whether there would be a hearing, he said somewhere we are going 

to have the hearing; I don’t know where, but we are going to have 

it. I immediately was very appreciative of the decision made by the 

two of you to have this hearing because, I repeat, what a disappointment it would have been for the Hicks family, who are seated behind me. This is a day—a hearing—for which Larry Hicks has 

waited for such a long, long time. 

While Chairman Leahy is here, I would also like to commend 

him for his work on moving forward these nominations. There are 

many excuses that could have been put forward not to hold this 

hearing, and no one could have criticized you because there was 

every reason in the world not to hold this hearing. 

Your decision to hold this hearing demonstrates your leadership. 

I know that you also held an emergency meeting earlier today to 

report out additional nominations. So I think we should all comVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 C:\HEARINGS\82503A.000 SJUD4 PsN: CMORC
10

mend and applaud you. I know I do, and I think the country should 

be very happy with what you have done. 

In addition—I haven’t had a chance to say this publicly, but I 

will say it—I appreciate the work that you have done on 

antiterrorism legislation. I have been supportive of this legislation 

that you have worked on with Senator Hatch. It hasn’t been easy, 

but we produced a bill that I could proudly vote for, as I did. So 

thank you very much for holding this hearing and for the work 

that you have done generally. 

I would ask permission for my full statement to be part of the 

record, Mr. Chairman. 

Senator SCHUMER. Without objection. 

Senator REID. I am pleased to appear today on behalf of Senator 

Ensign. As you can see, I am here in this row with a number of 

the minority, but all nominations that come from Nevada are supported by both of us. John Ensign does not have to do that, but he 

has done so. Any nominee that he has sent to the President had 

myu approval before hand. 

The first name he submitted to me was Larry Hicks, and that 

was easy. The Hicks family is wonderful, and well-respected. Larry 

Hicks is simply just one of the best. He is presently a partner in 

a very large, prestigious law firm in Nevada, the McDonald Carano 

firm, Where he is Chairman of the litigation section. He is a lawyer’s lawyer. He has an extensive trial court record, and is a stong 

appellate court advocate. 

Larry Hicks is also a settlement judge, and has been since 1998, 

by direction and order of the Nevada Supreme Court. He is admitted to practice in all the State and Federal courts of the State of 

Nevada, the Circuit Court of Appeals for the Ninth Circuit, and the 

United States Supreme Court. 

Larry served as an elected public official in Washoe County— Reno—Nevada. He was elected District Attorney of Washoe County, the chief law enforcement officer of the second largest county 

in the State of Nevada. He received his undergraduate degree 

proudly from the University of Nevada at Reno. He received his 

law degree from the University of Colorado School of Law, in Boulder. 

He has received numerous awards and recognition from a variety 

of organizations, including the Nevada State Bar, where he served 

on the prestigious Board of Governors, and also as president. Larry 

has also been joined here today by his wife Marianne, his brother, 

Don Hicks, and Don’s wife, Judy. 

It is with great pleasure and truly an honor for me to recommend 

the next judge to the U.S. District Court for the District of Nevada, 

Larry Hicks. 

[The prepared statement of Senator Reid follows:]

STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA

Mr. Chairman, I would like to thank you, Chairman Leahy, and the entire Senate 

Judiciary Committee, for holding this hearing today, especially under such trying 

circumstances. 

This Committee should be commended for its work on moving judicial nominations forward in a timely and reasonable manner. 

Senator Leahy, your decision to hold this hearing today when all of the Senate 

Office buildings are closed—including the main hearing room for the Senate Judiciary Committee where this hearing would normally take place—demonstrates your 

11

leadership and genuine desire to move as quickly as possible on all of President 

Bush’s nominees, especially nominations to the Federal bench. 

Futhermore, I, along with every Member of the Senate, knows how hard you have 

been working on comprehensive anti-terrorism legislation that will provide our nation’s law enforcement with the necessary tools to fight the war against terror. 

I know that after several weeks of hard work and intense negotiations, you have 

just reached a compromise with the Administration and your House counterparts 

on a comprehensive counter terrorism package. 

I congratulate you for this critical contribution to our national security and the 

ongoing war against terrorism. 

Yet, Mr. Chairman, despite your leadership and achievements on the anti-terrorism legislation, despite the fact that you have held judicial nominations hearings 

since September 11, and despite the fact that you have lost your offices and hearing 

room until next week yet still found a way to hold this hearing today, there are 

some in the Minority who have charged that you haven’t done enough on judicial 

nominations, and have attempted to literally shut down the Senate until they get 

their way. 

The Minority party has even endangered the war against terrorism by voting 

against cloture on the motion to proceed to the Foreign Operations Appropriations 

bill, legislation that includes not millions but billions of dollars to fight terrorism 

around the world. 

Funding for our key allies in the Middle East, especially Israel and Egypt, both 

of whom will have to play a central role in the war against terrorism, is included 

in the Foreign operations Appropriations bill that Republicans are blocking. 

Mr. Chairman, we have all heard how this Senate and this Committee is moving 

slower that the 1993 Senate during the first year of President Clinton’s first term 

and the 1989 Senate during the first year of President George Bush’s term. 

And you know, Mr. Chairman, we have heard a lot of numbers to make that 

claim. 

Well, I have some interesting numbers as well. 

This year, under Senator Leahy’s leadership, the Senate Judiciary Committee, 

which was not reorganized until June 29, 2001—51 legislative days ago—has held 

hearings on 14 judicial nominees and has confirmed 8–4 to the Circuit Courts of Appeals and 4 to the District Courts. 

During the 71 legislative days that Republicans were in control of this Committee 

and the Senate, you know how many hearings were held on judicial nominations—

ZERO. 

You know how many judicial nominees were confirmed—that’s right, ZERO. 

Moreover, when compared to this same time in 1989 and in 1993—the Senate has 

confirmed twice as many judges. 

In 1989 and in 1993, the Senate had confirmed only 4 judges by this time, as compared to the 8 that this Committee has confirmed under a shortened calendar and 

during such trying times for this nation. 

In summary, Mr. Chairman, the record speaks for itself. 

This Committee has worked extremely hard to move President Bush’s judicial 

nominations, and this Committee is to be commended for its efforts. 

I am pleased to appear before this Committee in support of one of those nominees—Mr. Larry Hicks of Reno, Nevada, to be the next judge on the United States 

District Court for the District of Nevada. 

May I say on behalf of our colleague, Senator Ensign, who is unable to be here 

today, that Larry Hicks has the unequivocal support of both Senators from Nevada. 

IN fact, Senator Ensign and I have discussed every candidate that he has recommended to President Bush, and I fully support his selections. 

It has truly been a bipartisan approach with respect to the federal bench in Nevada. 

Larry Hicks is currently a partner in the Reno law firm of McDonald, Carano, 

Wilson, McCune, Bergin, Grankovich & Hicks. 

The Chairman of the litigation section, Larry has been with the firm since 1979. 

He has extensive trial court, appellate court and settlement experience, having 

served as a settlement judge since 1998 for the Nevada Supreme Court. 

Larry is also admitted to practice in all state and federal courts of the State of 

Nevada, the Circuit Court of Appeals for the Ninth Circuit and the United States 

Supreme Court. 

Prior to his private practice, Larry served the people of Northern Nevada for 11 

years in the Office of the Washoe County District Attorney. 

In 1975, he was elected District Attorney of Washoe County. 

12

Larry received his undergraduate degree from the University of Nevada in Reno 

and received his law degree from the University of Colorado School of Law in Boulder. 

He has also received numerous awards and recognition from variety of organizations, including the Nevada State Bar, where he has served on the Board of Governors—and as President—the American Bar Association, the Association of Trial 

Lawyers of America and the International Association of Gaming Attorneys. 

Larry has also been blessed with a beautiful family and is joined here today by 

his wife Marianne, his brother Don Hicks and Don’s wife, Judy. 

He and Marianne are the proud parents of three children, Carrie, Amy and Christopher, all of whom are graduates of the University of Nevada in Reno. 

He is a fine man, a fine Nevadan, and I am sure that he will be a find judge. 

Larry Hicks enjoys my full support, and I would urge the Senate to confirm his 

nomination to the District of Nevada as quickly as possible. 

Thank you Mr. Chairman.

Senator SCHUMER. Thank you very much, Senator Reid, and we 

very much appreciate your testimony and your making the time to 

come. 

Chairman LEAHY. I thank you for those very kind words. 

Senator SCHUMER. Our next witness is Senator Nickles, who is 

here to testify on behalf of the nomination of Stephen Friot to the 

Western District of Oklahoma. 

PRESENTATION OF STEPHEN FRIOT, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA, 

BY HON. DON NICKLES, A U.S. SENATOR FROM THE STATE 

OF OKLAHOMA 

Senator NICKLES. Thank you, Mr. Chairman, and Chairman 

Leahy, Senator Kennedy and Senator DeWine. Thank you very 

much for holding this hearing, especially under these rather unusual circumstances. Also, thank you for reporting out a few nominees earlier today. 

On behalf of Senator Inhofe and myself, we are delighted to introduce to the Committee Mr. Friot. We are very excited about his 

nomination. We think he will be an outstanding District Judge for 

the Western District of the State of Oklahoma. 

His son, Andrew, is here. He is an ROTC cadet, right behind us 

back here. 

Senator SCHUMER. From Syracuse University. 

Senator NICKLES. He happens to be at Syracuse, that is right. He 

is an outstanding young man, and his father, as you will get to 

know, is an outstanding attorney and he will be an outstanding 

district court judge. 

He is an attorney in the law firm of Spradling, Alpern, Friot and 

Gum; he has been their for the last 29 years, serving as a partner 

for 26. His practice has included corporate defense and aviation 

litigation. Fifty-eight percent of his court appearances for trial were 

in Federal court. 

He has also served as a judge on the temporary court of appeals 

for the State of Oklahoma, as a judge pro tem for the Oklahoma 

Court on the Judiciary, and has as an adjunct professor at the University of Oklahoma. In addition to that, he has been president of 

the county bar association, and I have every confidence that he will 

be an outstanding member of the court, representing, I think, this 

country extremely well. He is admitted to practice before the Supreme Court and the U.S. Courts of Appeals for the Fifth, Eighth 

and Tenth Circuits. 

13

Mr. Chairman, it is a great pleasure and privilege for me, and 

Senator Inhofe as well, to introduce to the Committee Mr. Friot, 

who will do an outstanding job as a U.S. District Court Judge for 

the Western District of Oklahoma. 

Senator SCHUMER. Thank you, Senator Nickles, very much. We 

appreciate it. 

Our next nominee is M. Christina Armijo, for the District of New 

Mexico, and here to testify on behalf of Ms. Armijo are both Senator Domenici and Senator Bingaman. 

Senator Domenici? 

PRESENTATION OF M. CHRISTINA ARMIJO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY 

HON. PETE V. DOMENICI, A U.S. SENATOR FROM THE STATE 

OF NEW MEXICO 

Senator DOMENICI. Mr. Chairman, thank you so much for holding the hearing and for placing the name of Ms. Armijo before you 

for confirmation. 

I am very pleased that Senator Bingaman has been supporting 

our nominee from the very beginning, and that he has indeed spoken to the Chairman of his personal considerations. I thank him 

personally and publicly for that. 

Out in the West and in parts of the country where the first settlers were Hispanic, and not as they were on the East Coast, you 

have before you a nominee who is a 12th-generation Hispanic 

American from northern New Mexico. She also, incidentally, comes 

from a lineage that loves the law, in that her grandfather served 

as a judge for the longest period of time of any judge in the history 

of New Mexico, actually for 35 years. It was broken by a 6-year 

piece when he was not a judge, but he served for 35 years as a 

judge. No one comes close to that in New Mexico. 

That means that if any of us believe in the laws of passing talents down to some extent, we ought to conclude that we have a 

very talented nominee who has the qualities of judgeship. 

There is no doubt in my mind that when you confirm her and 

send to New Mexico a Hispanic woman to sit on the bench at the 

U.S. District Court, that will do all of us justice. I personally want 

to thank you for that. I think New Mexicans will feel very proud 

that at the highest level of judgeship they have one of their own, 

one of the original Hispanics that came to our State. 

I am sure my friend, Senator Bingaman, will talk a little bit 

about her record. I would just say she serves in an appellate position within the New Mexico system, and she was elected to that. 

She was appointed prior to that, and frankly has a very excellent 

reputation in terms of academics. Her degree is a good, solid one. 

Everybody knows her to be very, very fair. And while the word 

‘‘compassionate’’ is being bandied around a great deal, I don’t think 

there is any question that her record, both of service as a lawyer 

for 22 years and being on the bench for a number of years—fairness and firmness are just part of this woman’s life. She will do 

a special job in that regard, and I am hopeful that her nomination 

which came forth from our President some time ago will end soon 

and we can confirm her in the Senate and send her to New Mexico, 

where the dockets are so full because of the border problems. 

14

Mr. Chairman, it has reached the point where the judges who 

are sitting there are writing to us and calling us, asking that we 

hurry because they are almost unable to handle the docket. Thank 

you for helping with that. That is helping with justice. 

I appreciate being before you, and thank you, Senator Kennedy, 

Mr. Chairman, and Senator DeWine. 

Senator SCHUMER. Thank you, Senator Domenici. 

Senator Bingaman? 

PRESENTATION OF M. CHRISTINA ARMIJO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY 

HON. JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE OF 

NEW MEXICO 

Senator BINGAMAN. Thank you, Mr. Chairman. Thanks again for 

having the hearing, and thanks to all of you for taking the time 

to do this. 

I join Senator Domenici in supporting Christina Armijo, our 

court of appeals judge in New Mexico now. She was appointed to 

our court of appeals and then she was elected to that position. She 

is extremely well-respected in our State. 

She went through the University of New Mexico and the University of New Mexico School of Law. In fact, I think she was a student of my wife’s when she was at the University of New Mexico 

School of Law. She has a very respected record of public service, 

in addition to her time in private practice and her professional career. 

I am persuaded, as Senator Domenici stated and as he indicated, 

that she has the character and the temperament and the reputation that we need for a position of this importance. So I recommend 

her, just as Senator Domenici did, and I hope we can move quickly 

to confirm her here in the Senate. 

Senator SCHUMER. Thank you, Senator Bingaman, and the fact 

that you are both here is a real tribute to Judge Armijo. 

Last but not least, we have the nomination pending of Karon 

Bowdre for the Northern District of Alabama, and here to speak in 

support of that nomination is Senator Richard Shelby of Alabama. 

PRESENTATION OF KARON BOWDRE, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA, 

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

STATE OF ALABAMA 

Senator SHELBY. Thank you, Senator Schumer, Senator DeWine, 

Senator Kennedy. First of all, I don’t mind being last in a situation 

like this. As a matter of fact, I appreciate the Judiciary Committee 

coming to the Appropriations Committee and holding today’s hearing. As a matter of fact, I am sitting in my normal seat in the Appropriations Committee, but not at the proper place for the Judiciary Committee. 

Having said that, I want to thank Senator Leahy, I know he just 

left, but I want to thank him for holding this hearing, and I don’t 

mind at all coming to your Committee in a situation like this with 

Senator Lott, Senator Nickles, Senator Reid, Senator Domenici, 

Senator Bingaman, all senior to me. 

Senator SCHUMER. Yes. I hope I got it in the right order here. 

15

Senator SHELBY. Absolutely, you got it right. 

It is a distinct honor and privilege for me to introduce and to recommend Karon Owen Bowdre to be a Federal District Judge for 

the Northern District of Alabama. I have known Karon Bowdre 

since she was an undergraduate student. She had a distinguished 

record as an undergraduate and in law school. 

She clerked for a Federal district judge upon graduation from 

law school. She then entered and became a partner in a prestigious 

law firm in Birmingham, where she as a young woman became 

very accomplished as a litigator. Subsequent to that, she went and 

became a law professor and she has distinguished herself again 

with her many publications, and also in the classroom. 

It is without any reservation, Senator Schumer, that I recommend, and Senator Sessions, who is not here, joins me in recommending Karon Owen Bowdre to be Federal District Judge for the 

Judical vacancy we have in Birmingham. I am hoping that your 

Committee will act upon her favorably and report her to the full 

Senate and we can confirm her in the fall because we have a lot 

of cases that need to be heard in Birmingham, in the Northern District of Alabama. 

Senator SCHUMER. Well, thank you, Senator Shelby. 

Senator SHELBY. She is here with her husband and others. 

Senator SCHUMER. Well, thank you, Senator Shelby. 

Senator SHELBY. Thank you. 

Senator SCHUMER. Thank you for your patience and your statement. We appreciate it. 

Now, I would like to call our five nominees forward. Would they 

please come forward? I think they will have little name plates for 

you. Please remain standing because I will just administer the 

oath. 

Would the nominees please come forward? Please raise your 

right hand and repeat after me. 

[Witnesses sworn.] 

Senator SCHUMER. Thank you. Please be seated. 

Now, I am going to call on each of our nominees to make a brief 

statement, and they may also, if they choose, introduce their family 

members who are here with them. So we will start with Judge 

Pickering. 

STATEMENT OF CHARLES W. PICKERING, SR., NOMINEE TO BE 

CIRCUIT JUDGE FOR THE FIFTH CIRCUIT 

Judge PICKERING. Mr. Chairman, I would certainly like to thank 

you and Chairman Leahy and the other members of the Committee 

and staff for scheduling this hearing today, and especially after 

things happened yesterday and the buildings were closed, not only 

to show that you all are about doing the people’s business, but the 

inconvenience and the courtesy extended to the five of us to allow 

us to go ahead and have the hearing while we were here today. 

I would be remiss if I didn’t thank Senators Cochran and Lott 

for their friendship over the years and for the kind words that they 

shared here today. 

What does a father say about a son? And I am delighted to have 

with me today not only my son, Charles Pickering, Jr., Chip Pickering, but his wife, Leisha, and my wife, Margaret Ann. About 42 

16

years ago, I married my high school sweetheart, who was the principal’s daughter, and the best day of my life was when I married 

my high school principal’s daughter. 

In addition to my wife and daughter-in-law, we have 5 of our 18 

grandchildren—Will, Ross, Jack, Asher and Harper. And I would 

be remiss, after having mentioned these grandchildren, not to mention our regret that due to school and distance that my three 

daughters and their families are not able to be here: my oldest 

daughter, Mrs. Rick Dunkerton, their children, Aubrey, Jeremy, 

Elise, Sara, Hannah and Emily and Jeremy—or excuse me—Thomas. I knew that somewhere down the line I was bound to twist my 

tongue, as they were fooling around with catfish and cat food. 

Incidentally, Mr. Chairman, you were right. Catfish farming did 

come when I was out of politics and the catfish farmers needed free 

legal services, so that is how I wound up being president of the 

Catfish Farmers of America. 

The other two children are our middle daughter, Mrs. Jerry 

Montgomery, their children John, Mary Ivon, Robert and Margaret 

Anne. And our youngest daughter, if she were here, Mrs. Clint 

Chapman, from Alabama, would have brought their two children, 

Allie and Emma, and she would have also brought our as yet unborn 19th grandchild. 

So, Mr. Chairman, thank you very much for the hearing and the 

courtesies that you have extended thus far. 

[The biographical information of Judge Pickering follows.]

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Senator SCHUMER. Thank you. 

Judge Armijo? 

STATEMENT OF M. CHRISTINA ARMIJO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO 

Judge ARMIJO. Thank you, Mr. Chairman, Senator Kennedy, 

Senator DeWine. Let me first express my gratitude to my Senators 

Domenici and Bingaman. I greatly appreciate the courtesies that 

each of them has extended to me throughout this very, very long 

process, and especially the encouragement. 

I am very, very proud to be here, especially under the circumstances when the business of our country must go on and this 

particular profession that we all represent here on this side of the 

table is so critical to that process. I am honored to be here. 

I would like to introduce the family members that are with me 

today: my mother, Mary, who is here. Mom is from Las Vegas, New 

Mexico, the first Las Vegas. That is my hometown, 1836. 

Senator SCHUMER. I am glad Senator Reid left before you said 

that. 

[Laughter.] 

Judge ARMIJO. And my brother Luis Armijo, here. Luis lives in 

Albuquerque. I have two sisters, Patricia and Francesca, who are 

unable to be here, but are here in spirit. 

I do have, Senator Schumer, two good friends from your State, 

the State of New York, and I am so happy that they traveled 

through the late hours last evening, Fran and Jim Lieu, good 

friends of mine with a New Mexico connection. 

Senator SCHUMER. Welcome. 

Judge ARMIJO. I am very, very honored to be here and wish to 

thank you. 

[The biographical information of Judge Armigo follows.]

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Senator SCHUMER. Thank you, Judge Armijo. 

Ms. Bowdre? 

STATEMENT OF KARON O. BOWDRE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA 

Ms. BOWDRE. As everyone else, I want to thank you again for 

holding this hearing under these adverse circumstances. I think it 

is very important that the business of Government go on, and 

thank you for having this hearing. 

I also want to thank Senator Shelby for speaking on my behalf, 

and for Senator Sessions who could not be here, but has been so 

supportive during this whole process. 

And I must thank my husband, who is here with me, Birch 

Bowdre, who has lent his support throughout this, and my sons, 

Beau and Barrett, who were very upset about missing school to be 

here. 

[The biographical information of Ms. Bowdre follows.]

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Senator SCHUMER. Thank you. 

Mr. Friot? 

STATEMENT OF STEPHEN P. FRIOT, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA 

Mr. FRIOT. Senator, I echo what has been said about holding this 

hearing under these circumstances. I think it speaks to everything 

that you spoke to a few minutes ago, and I am very, very appreciative of holding this hearing under these circumstances. I also am 

very grateful for the support of Senators Nickles and Inhofe, and 

for the introduction from Senator Nickles. 

My wife, Nancy, is the most dedicated kindergarten teacher in 

the State of Oklahoma, and for that reason she could not be here, 

but she is here in spirit. My son, Andy—if you will stand—is here. 

He came down from Syracuse and I am glad he is here because he 

can take the straight story home after we are through here. 

I sincerely appreciate the opportunity to be here under these circumstances. 

[The biographical information of Mr. Friot follows.]

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Senator SCHUMER. Thank you, Mr. Friot. 

Finally, Mr. Hicks. 

STATEMENT OF LARRY R. HICKS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF NEVADA 

Mr. HICKS. Thank you, Senator Schumer, Senator Kennedy and 

Senator DeWine. From a personal standpoint, I obviously thank 

you for your consideration in continuing with this hearing under 

circumstances which obviously were not convenient. But I think, 

more importantly, I salute you for getting on with the business of 

Government under these circumstances. I speak on behalf of all my 

family and friends when I say your actions in continuing this hearing today are deeply appreciated. 

It is my pleasure to introduce my family who are here today: my 

wife of 36 years, Marianne. Would you stand, please? 

My brother, Don, standing back here with the camera—He is the 

cameraman in the family—and his wife, Judy, over here. And I 

have to say that my other brother, Bud, would have been here but 

for the uncertainties of yesterday in the travel schedule from the 

West. And he and his wife, Suzette, both would have been here and 

are sad not to be here. 

I also very much appreciate that two of my law partners from 

Nevada have attended this proceeding today, Mr. Bill Magrath, 

who is the partner in the next-door office to me in my office in 

Reno, and Mr. Brian Clark, who is a partner in the Las Vegas section of our office. And I am honored that these men would travel 

this great distance to be here for this hearing. 

Thank you very much. 

[The biographical information of Mr. Hicks follows.]

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Senator SCHUMER. Thank you, Mr. Hicks. 

Now, we will begin the questioning. I know that Senator Kennedy has to leave. 

Senator KENNEDY. No, no, that is all right. 

Senator SCHUMER. Well, thank you, and we are going to try to 

move this along as quickly as possible and each of us may say a 

few words. I have just a few questions of the witnesses, but before 

I do I just want to make a couple of points about at least my view 

in terms of selection of judges, since this is the first time I am 

chairing the hearing for the full Committee. 

Before the September 11 tragedy, we had a number of hearings 

in our Subcommittee, Senator Sessions and I, talking about the 

role of Federal judges and the role of the Senate in the nomination 

of those judges, and we touched on the role of ideology in the judicial selection process. At least I came to the conclusion that one’s 

judicial philosophy, one’s judicial ideology, is, has been and should 

be a part of the process; that we shouldn’t sweep that under the 

rug and simply play ‘‘gotcha’’ politics, look back 30 years and say, 

oh, somebody did something back then, and knock them out, when 

the real reason was we didn’t agree with their philosophy. We 

ought to have an open discussion of that above-board. 

We also addressed the question of whether nominees bear a burden of proving themselves worthy of confirmation or they should 

come before the Senate with the presumption that they should be 

confirmed. Again, I came to the conclusion that, given the importance of the position to which you are nominated, as well as the 

lifetime nature of it, the burden really falls on the nominee to 

prove that he or she is worthy of being a judge. 

We have also talked a little bit about how we choose judges. I 

have three criteria that I usually use when I play a role in selecting judges in New York and help guide me here. They are: excellence, moderation and diversity, excellence meaning legal excellence. I prefer moderate judges, not too far left, not too far right. 

I don’t like idealogues on the bench. And diversity, meaning that 

we ought to not just have white males on the bench. So that is 

where I am coming from in this process, just to give you a little 

knowledge of that. 

Now, I guess the major questions I have are for Judge Pickering, 

so I would like to first focus here. 

Judge we recently had the pleasure of hosting your colleague, 

Judge Edith Brown Clement. As you know, she is a district court 

judge, like yourself, nominated to the Fifth Circuit, and the two of 

you have been on the trial bench for about the same period of time. 

She has published approximately 1,400 cases. You have published about 95. I don’t think that is necessarily an issue because 

I realize that many district court judges decide not to publish opinions when they deal with cut-and-dried matters of law. But at least 

my opinion is 95 is a little too few to choose somebody for the court 

of appeals. 

So I guess what I am asking is do you know actually how many 

unpublished opinions you have had? Do you have an idea? Give us 

a ball-park; it doesn’t have to be—

Judge PICKERING. Senator Schumer, when the request came from 

Chairman Leahy two days ago while I was leaving to come for this 

242

hearing, I went back and the best records that we have available— since I was appointed to the bench 11 years ago, I have disposed 

of somewhere between 4,000 and 4,500 cases. 

Senator SCHUMER. Right. 

Judge PICKERING. My best judgment is that there were opinions 

of some kind that were written in about 1,100 of those cases. I 

think I probably have published—our count was, I think, around 

92 or something like that. 

Senator SCHUMER. Okay. 

Judge PICKERING. And so that would leave approximately a little 

over 1,000 unpublished opinions. 

Senator SCHUMER. Right. 

Judge PICKERING. If I may give the reason for that—

Senator SCHUMER. Please. 

Judge PICKERING. John Nesbitt, in his book Megatrends, at the 

beginning of the last decade of the last century, wrote that Americans were drowning in information and starving for knowledge. I 

have thought about the volumes and volumes of law that have been 

written since I start practicing law in 1961, and we have absolutely 

too much. No lawyer can read it all. 

If you are not establishing precedent, why make lawyers have to 

read, and judges—and if they don’t they could be sued for malpractice? I just think there is too much being written out there. 

Senator SCHUMER. So, generally, you decided to publish the opinions that you thought were of some precedential value. 

Judge PICKERING. That is correct. 

Senator SCHUMER. Is that your general guideline? 

Judge PICKERING. Yes, that was generally my criteria. 

Senator SCHUMER. Okay. Let me ask you this: In your responses 

to the Committee’s questionnaire you reported 28 cases in which 

you were—this is a standard question, by the way, just to inform 

the audience here, but there were 28 cases which you were reversed or sharply criticized in the Fifth Circuit. 

Now, as I understand it, 21 of those 28 are unpublished. That 

is at least the record we have, 75 percent. So I don’t know whether 

that is a high percentage or not because we have never really done 

a detailed study, but if the unpublished ones are supposed to be 

non-controversial, cut-and-dried, it does raise a question. 

So I guess a request that I would make as Chairman of the Subcommittee on Courts is could you get to us within a quick-as-possible period of time, because we don’t want to delay this, certainly 

the 21 cases, the unpublished cases, for which there was reversal, 

and do your best to give us the bulk of the unpublished opinions. 

Now, there are a lot of them, but again this is such an important 

position, in such an important circuit, and you do have a record as 

a judge, which I always regard as the best way to regard somebody 

when you take the awesome responsibility of voting on a lifetime 

appointment for an Article III judge. Give us an idea of how we can 

get hold of certainly those 21 and then the vast bulk of the rest. 

Judge PICKERING. Certainly, those 21, if they are available and 

we can get them, I will get to the Committee. When Senator Leahy 

first relayed the request, I stopped my staff from doing other work 

and we were in—the first request was not for copies of the unpublished opinions. It was for a list of those 1,100 cases. 

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And I wrote Senator Leahy and I told him that it would be impossible for us to get the entire list, but that we would do the best 

we could. And I am not sure how many that would have been, several hundred. In fact, I think it would have probably been most of 

them because after a while you dispose of these matters. 

Let me touch back on—you mentioned the 28 reversals. You 

know, when the Senate asks you to give a summary of all the cases 

that have been reversed, you read 28 times and you read this; you 

can get a little depressed. And I looked back and sort of did the 

figures, and that was less than 1 percent of the cases I disposed 

of. 

Senator SCHUMER. Yes. 

Judge PICKERING. And as far as the cases that were appealed to 

the Fifth Circuit, in whole or in part I was affirmed 91 percent of 

the time. 

Senator SCHUMER. Right. 

Judge PICKERING. And affirmed totally some 83 or 84 percent of 

the time. 

Senator SCHUMER. Right. 

Judge PICKERING. Now, some of the opinions where the reversals 

came in came where the people did not appear in my court. I entered an order and then there was an appeal taken. So at the time 

the decision was made, it did not seem that significant or that important. 

And in most of them, I look back over and, you know, as some 

of my colleagues on the Fifth Circuit have told me, they said, you 

know, we reversed you; that doesn’t mean we are right, it means 

we have the last say. Some of those opinions, I still think my position was correct. On some of the others, I think, gee, I goofed there, 

I missed that one. And I think that happens in life, in general, but 

certainly I try. 

Now, as far as getting you copies of all of these, since I have been 

on the bench we have changed computer systems three times. 

There is no system of keeping those opinions. What we did yesterday to get you—in fact, you asked for four areas. We got all of 

those, and in those four areas I have not been reversed by the Fifth 

Circuit, to my knowledge, a single time in any of those four areas. 

But we reproduced those from searching our computer hard disk 

and we will do the same thing and get you copy of every one of 

them that we can find. 

Senator SCHUMER. The areas, just to inform my colleagues, I 

think—I don’t have the four, but one was employment discrimination. 

Judge PICKERING. Yes. 

Senator SCHUMER. And one was voting rights. Was it voting 

rights? 

Judge PICKERING. No, sir. I think it was—

Senator SCHUMER. What were the four? 

Judge PICKERING. The ADA, the ADEA, Title VII, and equal pay. 

Senator SCHUMER. Okay. 

Judge PICKERING. And those were the four areas that I— Senator SCHUMER. We may have a few others. I mean, in order 

to make your search a little easier, perhaps what we could— Judge PICKERING. That does make it a lot easier. 

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Senator SCHUMER. I would add voting rights to that list, if we 

could get those, and my colleagues may want to add a few others. 

But if we can focus on those areas and get all your opinions on 

those, that would make it a little easier, plus the reversible ones. 

Judge PICKERING. That would make it much easier for me. 

Senator SCHUMER. Right. 

Judge PICKERING. And I did send you some voting rights cases. 

Senator SCHUMER. Great. I appreciate that. 

I have spoken with Chairman Leahy. He has agreed, since it will 

be hard for us to judge, to invite you back for a second hearing, 

hopefully under better circumstances than we have today, after we 

have had a chance to review these unpublished opinions and conduct a more thorough evaluation. So we will try to pick a mutually 

convenient time. 

Judge PICKERING. Certainly, if that is necessary, I will do whatever I am requested. 

Senator SCHUMER. Great. 

Judge PICKERING. I would hope that that would not be necessary, 

but I am certainly going to do everything I can to get the Committee all of the information they want and be responsive totally 

to what you request. 

Senator SCHUMER. We very much appreciate that. 

I am going to have a few more questions for the witnesses and 

maybe for Judge Pickering, but let me now call on my colleague, 

Senator DeWine, and then go to the other Senators. 

Senator DEWINE. Mr. Chairman, I apologize that I had to slip 

out for just a moment, and I wonder if you could repeat what I 

heard as I was coming back in the door in regard to a second hearing. 

Senator SCHUMER. Yes. We didn’t try to do it while you were out. 

Senator DEWINE. No, no, no. I understand that. We are all operating on a strange day. 

Senator SCHUMER. What we were saying was because Judge 

Pickering has such a high percentage of unpublished opinions, 

which is not a reflection on what those opinions say or his quality 

as a judge, we have asked that, first, the 21 cases where he was 

reversed that are unpublished be given to us, and he has agreed. 

He has agreed to do everything we have asked. 

Second, all the unpublished opinions in certain particular areas. 

Voting rights, employment discrimination, ADA, and I think ADEA 

were the four that were mentioned. There may be one or two others. Then, when the Committee had a chance to review those, we 

would invite Judge Pickering back, if people that it was necessary, 

to go over those. That was basically it. 

Senator DEWINE. I wonder if I could inquire of the chair how 

many published opinions do we have now? 

Senator SCHUMER. Ninety-five. 

Senator DEWINE. We have 95. 

Senator SCHUMER. Out of 1,400. 

Senator DEWINE. Let me ask the judge—and you may have already asked the judge. I apologize. 

Senator SCHUMER. Please, go ahead. 

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Senator DEWINE. How long does the judge think it will take to 

find the 21 specific cases where you were reversed and all the other 

unpublished opinions in regard to voting rights, ADA? 

Judge PICKERING. You know, the 21, as far as the reversals, if 

we have them, if I had left them—I am not sure whether I have 

them in my briefcase or whether they were left in my office, but 

I will get them to you tomorrow if they are still in my office. 

Senator DEWINE. That would be good. 

Judge PICKERING. If I brought them in my briefcase, it would be 

Monday before I could fax them back to you. Now, some of those 

actually were not even opinions. One of them, I know, was just a 

bench opinion, where there was an argument before the court, I 

ruled, and it was appealed. 

Senator DEWINE. Judge, what about the other ones? How long 

will that take? 

Judge PICKERING. If they are limited to subject matter, we can 

search our computers and we can pull up—on the subject matters, 

we can pull those up in a few days. If they are not, you know, unless we get 900 cases—and, of course, we jammed the fax machine 

over at the Justice Department the other night trying to send them 

up here. And there is a volume of paperwork because these opinions are going to be 10 to 20 pages long, so it is going to be a tremendous amount of paperwork. It is going to take some time. If 

they are limited subject matter, it will make it a lot easier and we 

can get them a lot quicker. But if—

Senator DEWINE. Judge, are you clear what the subject matter 

is from the Chair? 

Judge PICKERING. I understand they are going to give me that. 

Senator SCHUMER. Yes. Why don’t we, by tomorrow, get you just 

a list of the—I mean, I think we would want to ask our colleagues 

who are not here if they have any particular subject matters, but 

as far as I know, there are four or five. 

Judge PICKERING. Does that then mean that it will be the whole 

list? 

Senator SCHUMER. Probably not, no. 

Senator DEWINE. Mr. Chairman, I just wonder if we couldn’t get 

that—while we are here, get that list down so we know before we 

adjourn for today. I think the judge is more than willing to find the 

cases, but we are dealing with a lot of cases. 

Senator SCHUMER. We couldn’t say it is a complete list because 

I would want to talk to Senator Leahy and a few of my other colleagues who have expressed interest. But we will give you the list, 

and my guess is those five, six, seven topics will be the bulk, because I think we are all interested in the same areas. 

Senator DEWINE. Mr. Chairman, I don’t know what the precedent is on the Committee for a second hearing. I would assume 

that the precedent is—and I don’t know this—I assume that there 

has to be a pretty compelling reason to have a second hearing. And 

I assume that if there something that comes out of these cases that 

we would not have had an opportunity to question about today, 

then that would be reasonable. But the judge is here, and it seems 

to me that now is the time to ask questions. 

Senator SCHUMER. Well, I do intend to ask some questions on the 

subject matter. 

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Senator DEWINE. I know you do. 

Senator SCHUMER. I just want to give you all a chance first. 

Senator DEWINE. Well, I appreciate that. But, again, I guess I 

want to say that I think the decision about whether we need a second hearing is something that this Committee certainly needs to 

talk about. And I think we all would want to be heard on that because I think there is not a great deal of precedent for bringing the 

nominee back here. 

Senator SCHUMER. Well, again, I would say that if, when we get 

these opinions, there are no questions, we are not going to have a 

second hearing. But certainly that option Senator Leahy made explicit to me and asked me— Senator DEWINE. Well, I understand. I guess I just want to make 

it plain that my position is that there ought to be a compelling reason to do that. I suspect that that has been the precedent in the 

Committee. I mean, I don’t have the precedents for the last hundred years of the Committee, but I suspect that that is basically 

the precedent. There has to be a pretty compelling reason to come 

back here, and it is not just that people want to get into an issue. 

I will yield to the Chair. 

Senator SCHUMER. Thank you, Senator. 

Senator Kennedy? 

Senator KENNEDY. Thank you very much, and I thank Senator 

DeWine. 

I congratulate all of you on very wonderful, warm statements of 

support. I was particularly touched, as I think all of us have been, 

to have your son, Mr. Pickering, make that presentation. I think 

that was very impressive indeed. 

I would like to just give a partial response to Senator DeWine 

and just elaborate perhaps on what our Chairman has said about 

the unpublished cases. The division between published and unpublished is dramatic in these circumstances, and there have been 

those who will not have the opportunity to testify who have raised 

questions about the nominee’s commitment to some of the core constitutional values, particularly in the areas of civil rights and women’s issues. 

They have looked over those that make up this whole circuit, and 

45 percent of the inhabitants are Latino or African American. So 

these issues of civil rights and commitment to these core values are 

enormously important to them. 

I think, just following what Senator Schumer, the Chairman, has 

said, no one is saying that these are going to be reflective of an attitude that is going to be hostile necessarily, but we ought to at 

least carry forward the responsibility and have the chance to examine those. 

People have suggested, although certainly not in this case—and 

I want to make it very clear, not in this case—that in some instances some have, and I think it has been demonstrated, not filed 

the cases or published the cases because they didn’t want to give 

the reasons and the rationale for their decisions. I am not suggesting that in this, but some have. 

I think rather than to leave this out there, the idea of just having the cases that Senator Schumer has mentioned—and I am not 

certainly, for one, interested in prolonging the search list, but I 

247

would hope that they would include the cases on housing and housing discrimination. Civil rights cases, I believe, are included, and 

the voting rights, the privacy, which would be reproductive rights, 

and any labor cases with regard to workers. 

I raise the labor cases because, as I understand it, out of all of 

the cases that have been published, only one of your published decisions was a Title VII employment discrimination decision. This 

published decision involved a white male filing a so-called reverse 

discrimination case. 

So while you have published no employment discrimination cases 

other than one involving reverse discrimination, I don’t know 

whether they haven’t come up through the courts. We have seen 

these cases pursued there. I don’t know whether you remember 

having them. 

I am not trying to fly-speck you, really, on these kinds of cases, 

if you can remember them, but that would be an area that I was 

interested in. I don’t know whether you want to make any general 

kind of comment, or we can just say we will wait until we see these 

results and you can add whatever comments you like on them. 

Judge PICKERING. Senator Kennedy, I will be happy to send all 

of those in the areas that you have mentioned. I have been thinking while you were asking the question, and to the best of my 

knowledge I have not been reversed in any of the areas that I have 

heard discussed here today. My opinions, whether they were published or unpublished, have been in accordance with the law, or 

there would have been some reversal, with one exception. 

There was a labor case that came up that dealt more with arbitration than it did with labor law, and in that instance, while I had 

some questions about the facts of the decision, I affirmed the arbitrator’s award, ordered reinstatement of the employee, and stated 

in my opinion that if she was entitled to reinstatement, she was 

entitled to back pay. But the arbitrator had specifically said no 

back pay, and I understood Fifth Circuit law to say that if the arbitrator said no back pay, that was it, that I didn’t have any discretion, and I said so in the opinion. 

The Fifth Circuit did say that she should have been given back 

pay, and to my knowledge that is the only reversal I have. 

Senator KENNEDY. Good. 

Judge PICKERING. And that one you have; you already have that 

opinion because that was a published opinion. And that is the only 

reversal in any of this area that I am aware of. 

You know, I never dreamed that I would ever get in a controversy for not publishing. Again, I just think there is too much 

out there, and I must confess that I published more when I first 

went on the bench. And I think part of it—the novelty wears off, 

and then again if you don’t have anything to add to it that is going 

to be helpful to somebody, you are just cluttering up the information. 

Senator KENNEDY. Well, I would appreciate it just in those areas, 

and we can narrow those. 

Let’s get to an area where you were overruled. 

Judge PICKERING. Yes, sir. 

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Senator KENNEDY. I am concerned that at times you appeared to 

show an impatience in dealing with some cases, particularly those 

involving prisoners, many of whom did not have counsel. 

In 1995 you wrote in Rudd v. Jones, ‘‘Law-abiding citizens also 

have rights. Those rights involve not having court calendars 

clogged with frivolous proceedings, not having their elected or appointed officials at taxpayers’ expense spending a disproportionate 

amount of time defending frivolous lawsuits in Federal court.’’ You went on to state, ‘‘It is likewise clearly obvious that many 

inmates and their sometimes almost professional jailhouse writers 

have abused the process merely to go through the exercise to challenge the system, again to get a trip out of the penitentiary for a 

court hearing.’’ In reading a few of your opinions, I wonder if that concern about 

frivolous lawsuits by prisoners has led you to unfairly give short 

shrift to even those claims by prisoners that may have merit or 

that, at minimum, warrant additional examination. In several such 

cases, you were reversed by the Fifth Circuit. 

For instance, in Heptinstall v. Blount, the Fifth Circuit held that 

you abused your discretion in dismissing, with prejudice, a case of 

a pro se litigant who had brought a claim that his arrest, pre-trial 

detention and subsequent conviction violated his constitutional 

rights. In finding that you abused your discretion, the Fifth Circuit 

stated that the sanction of dismissing a complaint with prejudice 

was a drastic remedy that should only be used a a last resort. 

Similarly, in the case of Johnson v. Forrest County Sheriff’s Department, in 1999, you were reversed pro curiam by the Fifth Circuit for dismissing an inmate’s First Amendment challenge to a 

policy that prevented inmates from receiving any magazines, including religious material, in the mail. 

In another case, Garlotte v. Mississippi Department of Corrections, you were reversed by the Fifth Circuit for dismissing the constitutional claims of three inmates without providing them a 

chance to amend their complaint or to submit affidavits in support 

of their claims. 

I am not asking you to remember the facts or specific rationale 

of each of these cases. I am interested, however, in how you respond to the concern that in your haste to deal with frivolous lawsuits you unfairly dismiss claims by pro se litigants. 

Judge PICKERING. Senator Kennedy, the question of pro se complaints has been something which I have a concern about from the 

procedures that we have in place today, and I have really even 

thought about publicly speaking on that issue. 

I do think that there are some legitimate complaints that prisoners have in prisons, and I sometimes think that those complaints 

are not really brought out in these complaints. I have sometimes 

wondered if maybe an ombudsman working in those areas would 

be better than just bringing lawsuits, because I think nationwide, 

if you studied the statistics, percentage-wise I doubt if more than 

1 percent of those cases across the entire Nation are ever successful. 

There are a lot of frivolous lawsuits out there, a tremendous 

number of frivolous lawsuits out there now. Again, I think in this 

three instances—and I would have to go back—those were recVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00260 Fmt 6633 Sfmt 6602 C:\HEARINGS\82503A.000 SJUD4 PsN: CMORC
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ommendations from, I think, a magistrate judge in all three of 

those cases. They conducted the hearings and, you know, without 

looking at them, I don’t know of anything else that I could say to 

you except—

Senator KENNEDY. Is this the standard if they have these kinds 

of abuses? Do other judges have these kinds of reversals or these 

kinds of conclusions that were made by the Fifth Circuit where 

they talked about the fact that it was a drastic remedy that should 

only be used as a last resort? These were reversed with a considerable statement or comment by the circuit court in finding trouble 

with your logic in those kinds of cases. 

Judge PICKERING. Senator, I would need to see the opinion before 

I—

Senator KENNEDY. Okay. Let me, if I could, go to another area, 

and that is in 1976—I know you have been over this subject—you 

chaired the Human Rights Responsibility Subcommittee of the Republican Party which approved a plank in the party protesting the 

Supreme Court decision in Roe v. Wade and calling for an amendment to the Constitution to ban abortion. 

In examining your opinions since you have been on the district 

court, I have not seen any involving reproductive rights. Have you 

had an occasion to deal with that issue? 

Judge PICKERING. Sir, I cannot recall a single case involving 

that. In some of these other areas that you have mentioned, I have 

not had that many cases percentage-wise. 

Senator KENNEDY. So you don’t remember having any cases. 

There might have been, but they don’t come to mind? 

Judge PICKERING. Yes, sir, that is correct. 

Senator KENNEDY. And do you have any opinion on Roe? Have 

you made a decision about whether that was correctly or wrongly 

decided? 

Judge PICKERING. Senator, the Supreme Court of the United 

States has made its ruling on that, and it would be my duty as an 

appellate, just as a district judge, to follow the law as the Supreme 

Court has interpreted it, and I would do that. 

Senator KENNEDY. Just another minute, Mr. Chairman. 

Senator SCHUMER. Keep going. 

Senator KENNEDY. In recent years, the district and appellate 

courts have addressed the question of—and maybe I would hear 

from you, if I could, Judge Pickering, and the panel just on this one 

question—have addressed the question of when a public university 

can constitutionally consider race as a factor in admissions. The 

issue in these cases is whether Justice Powell’s decision in Bakke

v. University of California, which stated that a university has a 

compelling interest in pursuing racial and ethnic diversity, should 

be followed. 

So, in your view, under what circumstances can a public university constitutionally consider race as one factor in admissions, and 

do you believe that racial and ethnic diversity is a compelling government interest in public education? 

Judge PICKERING. Senator, I think my job on the appellate Fifth 

Circuit, if I should be fortunate enough to be confirmed, would be 

to follow the precedents of the Supreme Court, and I would do that 

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in that area. That would be the guide that I would follow in that 

area. 

Whether legal or not, beginning when I testified against the Imperial Wizard of the White Knights of the Ku Klux Klan and on 

numerous other occasions I have tried to build bridges between, because I think the future of America is not nearly as great if we 

don’t solve racial problems. And I think that attempts to reach out 

and bring in and recruit are entirely appropriate. 

I think that there need to be efforts to, you know, solve some of 

the problems that are out there from that standpoint. So I think 

from a moral perspective—but, again, I can’t make decisions based 

on what I morally think is right and we should be doing. They 

would have to be in accordance with the precedents of the Supreme 

Court. 

Senator KENNEDY. Judge Armijo? 

Judge ARMIJO. Senator Kennedy, I think the approach that I 

would use in looking at a question like that is to recognize that we 

apply a strict or heightened level of scrutiny, that there must be 

some demonstration that there is no alternative means of achieving 

that particular right that is trying to be enforced; that is, the admission based on a classification such as race. I would follow, of 

course, the rulings of our Supreme Court in that regard and look 

at that matter very carefully. 

Senator KENNEDY. Judge Pickering gave his own sort of personal 

view about life experience that troubled him in the past and expressed sort of a moral position, although obviously he reflected 

that he would follow the law. I was interested in whether you had 

anything you could say about the nature of the make-up of a university in terms of one of the principal vehicles in terms of education and the future of our society. 

Judge ARMIJO. Well, education is our future, and I guess I have 

to reflect back on my own life experiences, really, almost to my 

grandfather, who struggled very much to become an attorney. He 

was licensed in 1915, but educational opportunities were very rare, 

extremely rare. It was very, very difficult, particularly in New Mexico which did not have many universities at all. So if families could 

not afford to go out of the State or procure some form of private 

opportunity, education simply was not available. So I think that 

from the point of view of a public institution, those opportunities 

need to be there and those doors need to be open. 

Senator KENNEDY. Thank you. 

Ms. Bowdre? 

Ms. BOWDRE. Well, I would have to echo the comments of my colleagues. Certainly, on any matter that would come before me, if I 

am fortunate enough to be confirmed, I would follow the law. And 

on a personal level, while teaching at Cumberland, our school has 

made great strides in trying to attract a diverse student body, as 

well as a diverse faculty. And in my own position as Director of 

Legal Research and Writing, I have tried to hire minorities to be 

both teaching assistants and also instructors in our program. 

I believe that diversity in education is very important, and as the 

first graduate of college from my family I certainly understand the 

importance of having educational opportunities available to all. 

Senator KENNEDY. Good. 

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Mr. Friot? 

Mr. FRIOT. Senator, in addition to echoing what has been said by 

my colleagues, I would state my personal view that just as diversity is, in my opinion, one of the strengths of our country, it should 

be one of the strengths of any college campus. And I think any college campus would be really a less attractive place for everyone if 

it were not reflective of the various constituencies and minorities 

that make up our country. 

Senator KENNEDY. Mr. Hicks? 

Mr. HICKS. Senator, I agree with the comments of my colleagues. 

Certainly, education is a very important opportunity throughout 

the United States. My role as a district judge would be to follow 

the law and that would be the guideline I would follow, and not 

just the guideline. I would feel that I was compelled to follow that, 

and particularly the mandates of the United States Supreme 

Court. 

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

Senator SCHUMER. Thank you, Senator Kennedy. 

I just wanted to let the record read in reference to Senator 

DeWine’s question, in the 8 years that President Clinton was President, we had 9 second hearings. So it is not unprecedented, it is 

not common. 

Senator DEWINE. Not unprecedented, but not common. 

Senator SCHUMER. Right. 

Senator Durbin? 

Senator DURBIN. Thank you very much, Senator Schumer, and I 

might also add that, of the 9, it appears that 6 of them were circuit 

court judges. Also, some of them were delayed for periods of time 

of up to two-and-a-half years between the two hearings under 

Chairman Hatch. I am certain that that is not going to occur under 

this leadership. I hope it does not. 

Judge Pickering, since 1960, America has changed a great deal 

and we have all changed personally a great deal, those of us who 

remember those days. You were a law student back in that period 

of time and you were writing law review articles about Mississippi 

statutes involving miscegenation, interracial marriage. America is 

a lot different today. I would like for you to reflect on who you were 

then and who you are today when it comes to that issue. 

Judge PICKERING. Senator Durbin, the article you are talking 

about had to do with miscegenation, and let me say first off that 

I firmly believe that who ones marries is a personal choice and that 

there should not be legislation on that. 

The particular note that you referred to was a miscegenation 

statute, and at that time more than half of the States in the Nation 

had those. The Supreme Court had declined to review those twice 

in the 5 years before that. I predicted in that article that those 

statutes would be changed in the future, and suggested what was 

sufficient as far as the legislature was concerned. 

I also wrote—I only wrote two notes. They were what we call 

notes, law journal notes, and the other one was on the right of privacy. But certainly things have changed tremendously since this. 

Even then, I had a sense in the early 1960s that I would not say 

that things have drastically changed in the South. My thought 

252

processes have changed, everyone’s thought process—just like September 11 has greatly changed us as a Nation. 

But even back in the 1960s, I spoke out against the mistreatment of minorities as far as the Ku Klux Klan. I testified earlier 

I testified against it in 1967, which was a tough thing for a 30-

year-old prosecutor with four children to do. 

But I attended the FBI briefings, because they trusted me, when 

they were looking for the folks who were trying to do violence to 

those who were trying to assert their civil rights—voting primarily 

at that time. And I am committed to equal rights for all Americans, 

certainly. 

Senator DURBIN. Thank you. I would like to ask the other members of the panel, as well. One of the most serious challenges we 

face in terms of justice in America is, I guess, characterized by the 

shorthand ‘‘racial profiling,’’ where minorities in this country feel 

that they are disproportionately arrested, convicted and incarcerated for certain crimes, particularly in the area of drug crimes, and 

I think the statistics are rather overwhelming in that area. 

I have made it a policy of asking every Attorney General and 

every Assistant Attorney General with jurisdiction in this area 

what they thought about the fact that although we have 12 percent 

of our American population African American and only 11 percent 

whom we can say commit drug crimes, when we look at the rates 

of arrest and conviction they approximate 50 percent of the convictions for drug crimes are African Americans and over 58 percent 

of the incarcerations are African Americans. 

If we hope to maintain credibility in our system for all Americans 

so that the laws are seen as just, what is the responsibility of a 

judge in this context? Are you only to take the cases as they are 

brought to you or do you have a larger responsibility when it comes 

to the issue of racial profiling? 

Judge ARMIJO. Senator, certainly statistics, as those you have 

quoted, raise red flags, and I don’t think any of us can ignore statistics like that. The question is what can a judge do. I think in 

a very practical sense and in a very basic sense, you take each case 

one by one and very carefully attend to the issues in that case, and 

I think as a judge ensure very, very carefully that there is due 

process in the proceedings that are under your control as a jurist, 

whether it is pre-trial matters, whether it is the course of a lengthy 

trial. 

But I think first and foremost as a judge you ensure that the 

process is fair and you attend to the immediate litigant, the defendant who is before you. It is a tougher question on a broader scale 

how you as a judge influence perhaps circumstances that are not 

immediately before you. I think you do, in a sense, by doing your 

job the way it should be done. 

Certainly, my caseload is not going to be limited to one defendant. It would be broad. As I grow into this position as a trial judge, 

and it being a lifetime appointment, there are many defendants, 

many cases, a multitude of cases that are going to be influenced 

by the way in which I conduct myself as a jurist. 

Senator DURBIN. Yo were involved, were you not, in defense of 

criminal defendants? 

253

Judge ARMIJO. Yes. Early in my career, I shared a contract with 

another attorney with the New Mexico Public Defender Department. They did not have in-house counsel in a tri-county area 

where I lived, and so we shared a contract and for three years handled all felony cases, misdemeanors, and a number of murder 

trials. So I have some familiarity with that. 

And also touching on that to some extent, although not quite in 

the arena of criminal law, was a 7-year stint where, by contract, 

in addition to my civil practice, I prosecuted child abuse cases on 

behalf of the State. 

Senator DURBIN. Would you mind responding as well, Ms. 

Bowdre? 

Ms. BOWDRE. Certainly, the statistics that you mentioned give 

pause and should give pause, I believe, in the administration of 

justice in our country. If confirmed as a district judge, I would do 

my best to make sure that everyone who came before me, regardless of race, received a fair trial. Beyond making sure that every 

person got a fair trial, I don’t know what I as an individual judge 

would really be able to contribute to that consideration. 

Senator DURBIN. Within that definition of ‘‘fair trial,’’ I assume, 

as you noted, it would involve an adequate defense. 

Ms. BOWDRE. Absolutely, absolutely. 

Senator DURBIN. In our State where our Republican governor has 

suspended the imposition of the death penalty, it was because in 

so many cases defendants were not adequately represented in capital cases. I would hope that all of us could learn a lesson from 

that. 

Mr. Friot? 

Mr. FRIOT. Senator, in addition to agreeing with what has been 

said by my colleagues, I would add only that there is a fairly welldeveloped body of law on the subject of selective prosecution, and 

I would, without hesitation, apply the Tenth Circuit and Supreme 

Court precedents on that subject if I were so fortunate as to be confirmed as a district judge. 

Senator DURBIN. Mr. Hicks? 

Mr. HICKS. I would concur with the previous comments, particularly those of Judge Armijo. I feel that she has very well spoken 

to the issue. This is clearly an issue that I am sure has been developing in the courts, will be developing further in the courts. And 

as a district judge, I will follow the lead of the Supreme Court and 

the Ninth Circuit. 

Senator DURBIN. Mr. Pickering, would you like to comment on 

that? 

Judge PICKERING. Senator Durbin, I recently gave a talk and one 

of the things that I said in that talk was that I am tired of sending 

people to the penitentiary. You are right on the statistics, and it 

leaves a devastating hole in the African American community when 

you take out that many young men. 

The Sentencing Guidelines for youthful offenders are too severe. 

I think sometimes they don’t weigh enough for career offenders. 

But every time that I have been able to—when I have had young 

African Americans before me, if there were any chance that they 

could under the Guidelines qualify for something less than jail 

time, I try to do that. 

254

Recently, I convened a group in Laurel that we dubbed ‘‘Working 

for Kids at Risk,’’ and I made that same statement to them. We 

need to do something in our communities where the disadvantaged 

are and try to have some programs where there are not so many 

that I have to send to the penitentiary. 

So I share your conviction in that area, but we only sentence 

under the laws that are passed by Congress, and that situation has 

been caused as a result of the law we are called upon to enforce. 

Senator DURBIN. Well, thank you. 

Judge PICKERING. But I do share your concern about that. 

Senator DURBIN. Thank you very much, and thank you, Mr. 

Chairman. 

Senator SCHUMER. Thank you, Senator Durbin. 

I will just have a few more questions and then either of my colleagues who have others may go, as well. 

This is to everybody: Chief Justice Rehnquist while he was in 

President Nixon’s Department of Justice provided a definition of 

strict constructionism. He said, and this is a quote from him, ‘‘A 

judge who is a strict constructionist in constitutional matters will 

generally not be favorably inclined toward claims of either criminal 

defendants or civil rights plaintiffs, the latter two groups having 

been the principal beneficiaries of the Supreme Court’s broad constructionist reading of the Constitution.’’

In other words, what he was saying is that if rights are not expressly written into the Constitution, strict constructionists are unlikely to find them there. That would include, for example, the 

right to privacy, never mentioned in the Constitution once; the 

right to interracial marriage, an issue that Senator Durbin and 

Judge Pickering discussed; the right to education, and many other 

rights that I think, at least, Americans have come to rely on as our 

Constitution has grown. 

So my question to each of you is do you consider yourself a strict 

constructionist, and if so do you agree with that definition of strict 

constructionism. If you disagree with Chief Justice Rehnquist’s definition, how does your definition differ from his? 

Judge Pickering? 

Judge PICKERING. I would be hesitant to label myself anything 

in that area. I do think that we do need to rely on the plain meaning of language. I would certainly not want to be associated with 

the definition that you gave in that regard. 

But, again, I think that from the standpoint of appellate judges, 

most of those areas have been spoken to by the Supreme Court. So 

we are guided by precedent and I will follow those precedents. 

Senator SCHUMER. Judge Armijo? 

Judge ARMIJO. Senator, I too would hesitate to label myself in 

any such category, but I have to wonder how much of the passage 

of time we must erase or should we erase in terms of trying to say 

things ought to be the way they were 50 or 60 years ago, or 30 

years ago. 

We are an evolving society. Issues present themselves almost 

daily that could not have been imagined these days, 5, 10, 20, 30 

years in the past. I think we have to apply initially the plain language rule, look very carefully at. I don’t think we need to try to 

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haps that would compel use of other tools in interpreting a statute. 

Precedents must be a guidance. Where that is lacking, I think we 

must look to analogous cases or examples within our circuit, for example, outside of the circuit where none exist, to be guided. But I 

think that we are far beyond the situation where we pigeon-hole 

ourselves anymore. I think that door is open. 

Senator SCHUMER. Ms. Bowdre? 

Ms. BOWDRE. Well, in my opinion, certainly the starting point 

would be the Constitution and its language. But we have 200-something-plus years of precedent from the United States Supreme 

Court interpreting that Constitution, and my role as a district 

court judge would be to apply the law as the Supreme Court has 

pronounced it to be. And I would agree with my colleagues about 

not being labeled or pigeon-holed into the label of strict constructionist, as defined there. 

Senator SCHUMER. Thank you. 

Mr. Friot? 

Mr. FRIOT. Senator, if I were called upon to address a constitutional issue that had not authoritatively been resolved by the Supreme Court, I would look to the closest available precedents from 

the Supreme Court, the precedents from the Tenth Circuit, also for 

that matter to the policy apparently sought to be advanced by the 

provision in question. And I would try to be informed by all of 

those sources rather than taking any one narrow approach. 

Senator SCHUMER. Mr. Hicks? 

Mr. HICKS. Senator, I too would be leery of any labels. I feel that 

construction or definition of the law is probably in almost situation 

involving a district court judge very well-defined, and it is my duty 

to follow that law. 

Senator SCHUMER. Let’s turn to a specific one that has aroused 

lots of controversy. It is not in the Constitution, at least in those 

words, and that is the right to privacy. Do each of you—and I will 

let you elaborate later, but I prefer a quick, succinct, even yes or 

no answer—believe the Constitution guarantees a right to privacy? 

Judge PICKERING. The Supreme Court has said yes. I will follow 

that. 

Judge ARMIJO. Yes. 

Ms. BOWDRE. Yes. 

Mr. FRIOT. Yes. 

Mr. HICKS. Yes. 

Senator SCHUMER. Do you believe that right to privacy includes 

a woman’s right to choose whether to have an abortion? 

Judge PICKERING. You know, as to personal feelings, I would—

Senator SCHUMER. No. I mean the constitutional right. 

Judge PICKERING. The constitutional, yes. 

Senator SCHUMER. Your interpretation of the Constitution. 

Judge PICKERING. Well, the Supreme Court has given two decisions on that and they are the law and I would follow it. 

Judge ARMIJO. I would follow that law. 

Ms. BOWDRE. I would follow the controlling precedent of the Supreme Court. 

Mr. FRIOT. I would do the same. 

Mr. HICKS. Casey and those decisions would be controlling on me. 

256

Senator SCHUMER. So at the district court level or even up on appeal, because some district court decided differently, if somebody 

brought a case to overturn Roe v. Wade, you would overrule that, 

is that correct? 

Judge PICKERING. I would follow Supreme Court precedent. 

Senator SCHUMER. And do you believe the Supreme Court precedent—Judge PICKERING. The Supreme Court has spoken very plainly in 

Roe and Casey. Senator SCHUMER. And so you would vote to overrule it? 

Judge PICKERING. I would apply that law in ruling. 

Judge ARMIJO. As I would. I am bound by that precedent. 

Ms. BOWDRE. I would be, too. 

Mr. FRIOT. I think the prerogative of overruling Supreme Court 

decisions rests exclusively with the Supreme Court. 

Mr. HICKS. I could and would follow that law. 

Senator SCHUMER. Thank you. Now, I want to turn to something 

that—again, this is a while ago—Judge Pickering, you brought up. 

In a speech to the Mississippi Baptist Convention, in 1984, you 

stated that the Bible should be ‘‘recognized as the absolute authority by which all conduct of man is judged.’’

You are, by all accounts, a man of deep faith. I respect that. I 

am a person of faith myself. I would assume that if you were at 

the bar association of Mississippi, you would make a different 

statement than at a religious convention. In other words, I don’t 

take your comments to mean that the Bible would trump the 

United States Constitution in a court of law, although, of course, 

our Constitution relishes, as it should, the freedom of religion and 

the practice of religion. 

Judge PICKERING. Senator, you are absolutely correct. That was 

a meeting of how we as Christians should live. I do think it is not 

quoted exactly as I said it and I am not absolutely of that because 

I don’t have it, but I think the exact quote was ‘‘by which we 

should live and teach.’’ I think that is what I probably said. 

Now, that same Bible I said we should live by says render to 

Caesar that which is Caesar’s and render to God that which is 

God’s. That means that whenever you take an oath to follow the 

Constitution, you follow the Constitution, and I will do that. So I 

don’t see any conflict in there. And I did provide you another 

speech on jury nullification and said exactly what you said, that we 

should have a rule of law and we should abide by that. 

Senator SCHUMER. Okay, thank you. 

Let me ask each of you another question. Again, I believe these 

help us understand your reasoning as judges. 

In the past few years, there has been a marked change in the 

way the Supreme Court handles federalism. This may relate to 

some interpretation of strict constructionism. I don’t know. Part of 

what has concerned me is that these cases lack deference to Congress as a coequal branch of us making our own findings and acting legislatively to address compelling needs. 

Judge Breyer wrote what I would regard, and many others, I 

think, as an eloquent dissent in the Broncalla case, the Violence 

Against Women Act case, in which he said, ‘‘Since judges cannot 

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gress, not the courts, must remain primarily responsible for striking the appropriate State/Federal balance.’’

First, I would like to know if each of you agrees with Justice 

Breyer’s comment. And then, second, in overturning congressional 

acts, especially in the area of civil rights, the courts have created 

what some have called a new federalism that fundamentally alters 

the structure of our Government, and at least in the view of me 

and others, is altering it for the worse in the sense that they want 

to go back—this is the Supreme Court—to the 1930s, 1890s, and, 

say, Congress’ interpretation of the Commerce Clause. Remember, 

the Commerce Clause back in the 1890s and through the 1920s 

stopped things like child labor laws and other kinds of things, the 

Supreme Court interpreted it. 

So I would like for each of you to just postulate a little, so we 

can see how you think, on this new federalism and on the Supreme 

Court’s recent decisions—and precedent here is changing all the 

time, so your opinions are going to matter—the Supreme Court’s 

view that Congress has exceeded its bounds when it has made a 

whole number of laws related to the Commerce Clause, 11th 

Amendment, and things like that. 

Judge Pickering? 

Judge PICKERING. Mr. Chairman, I think that our Nation would 

not have lasted 200 years if it were not for the separation of powers. I think that is one of the real beauties of our system to keep 

any one body from having absolute power. I think we would have 

real difficulties if that occurred. 

I think that Acts of Congress should be presumed constitutional. 

We should start off with that deference to them. Without any question, I think when Congress states an intent as a part of the preamble, as part of the bill, that that intent should be controlling in 

the situation. I think the courts should be very careful before they 

find any statute to be unconstitutional. 

Senator SCHUMER. I just wanted to follow up a little bit on that. 

Does what you are saying apply to the deferring to the findings of 

Congress in terms of the national need? In this case that I mentioned, there was a view, well, Congress said we needed this under 

the Commerce Clause, but we don’t think their findings really justify it. That sent a good number of us in a bit of a tizzy, and there 

were lots of findings. 

I mean, it seemed to me in that instance the Court was really 

seeking to replace its own judgment in terms of the finding for 

Congress’. I helped write that law and I will tell you, Senator 

Biden, who is on this Committee but couldn’t be here today, spent 

years of his life writing it. And we came to a pretty strong conclusion that violence against women did impede our national commerce in lots of different ways, and here was the Court saying not 

that we didn’t have findings, but basically saying those findings 

weren’t good enough. It was really substituting its judgment for 

ours, and that is what created such a strong dissent on the part 

of the Court. 

Judge PICKERING. As best I could, I have tried—I have given you 

some personal opinions, but I have tried not to do those in the 

areas that I thought were not settled by the Supreme Court and 

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there might be an issue, so that there wouldn’t be a disqualification. 

Let me say that I feel very strongly that any findings by Congress should be given great deference. Now, to go further than that, 

I feel, might prejudice my being able to sit on a case such as that, 

and I would like to see the briefing and would like to see what the 

facts are. And I think that would be as far as I would feel comfortable, but I certainly do feel that the findings of Congress are 

entitled to great deference. 

Senator SCHUMER. Judge Armijo? 

Judge ARMIJO. Senator Schumer, I too believe very strongly that 

statutes are presumptively constitutional, that we need to look at 

that and understand that initially, and that great deference should 

be given to the findings. 

I have to just think about the potentials here of domestic violence in a different way. Some years ago, I did a fair amount of 

work in the area of stalking, and again that touches in a similar 

vein where you don’t have limitations to one’s State necessarily. 

And I think that the decision you refer to can affect other scenarios. 

As I think about that, what I also have to look back on is how 

does one afford protection to those that the congressional statute 

was intended to protect or to serve. And I have to look back under 

the current state of the law that we look to our States and hope 

that within our structure, perhaps under own constitutions—and I 

must say that New Mexico is a State which has relied very heavily 

on its own constitution to secure protections for individuals. Perhaps that may be at this point the remedy or the place to look for 

the protections that we feel that we have lost or that have been 

lost as a result of the cases which you have mentioned. 

Senator SCHUMER. Ms. Bowdre? 

Ms. BOWDRE. Certainly, our forefathers did us a great service in 

putting together the Constitution that they did, and I think that 

the separation of powers is such a strong part of our Government. 

In their wisdom, certainly they saw that the legislative branch 

would have the resources available to make findings and to announce legislation for the country. 

And I agree with my colleagues that the findings of Congress and 

the enactments of Congress certainly are due a presumption of constitutionality. At the same time, though, our forefathers did set up 

the checks and balances and the opportunity to test the enactments 

of Congress to see if they meet with the provisions of the Constitution. 

There is a fine tension there between those two powers. But as 

a district court judge, if I am fortunate enough to be confirmed, I 

would first look to the legislation, look to any pronouncements of 

the Supreme Court that would be binding upon the decision in 

making my judgment in the case. 

Senator SCHUMER. Mr. Friot? 

Mr. FRIOT. Senator, in addition to associating myself with that 

which has been said by my colleagues, I would only add that I 

think from the perspective of a district court judge, it would be especially presumptuous for a district court judge to set him or herself up as a reviewing court, if you will, to critique congressional 

259

findings underlying legislation either under the Commerce Clause 

or section 5 of the 14th Amendment or otherwise. 

Senator SCHUMER. Mr. Hicks? 

Mr. HICKS. I agree strongly with the comments of Mr. Friot and 

my colleagues who have preceded me. 

Senator SCHUMER. I am finished with questions. I thank each of 

you for bearing with us. 

Senator DeWine? 

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

With the exception of Judge Pickering, who, if confirmed, will go 

to the appellate court, each one of you will be at the trial court and 

you will certainly be dealing with important legal issues, but you 

will also be dealing with people on a daily basis. 

You will be really for many people their only real, meaningful 

contact with the Federal Government. You will undoubtedly make 

a lasting impression on every person that comes into your courtroom. 

Describe to me how you see your role as a Federal judge, and in 

doing so give me an example—I certainly would not want you to 

attach a name to it, but give me an example of the conduct of a 

Federal district court judge that you would not like and talk to me 

a little bit about what a Federal court judge should do. 

Judge Pickering, I am going to start with you because you have 

had the opportunity to practice this for a long time, and the type 

of district court judge you are today is probably a pretty good indication of what kind of circuit court judge you will be. 

Judge PICKERING. Senator, when I started out practicing law, I 

was in the Federal court from time to time and they used to have 

a procedure where all the lawyers that were going to come before 

them for motions that day had to get there and sign up and you 

waited, if necessary, all day. Lawyers would get there as early as 

six o’clock in the morning to sign up and they would be there all 

day. 

When I went on the bench, I determined that I was not going to 

keep everybody sitting around, so I scheduled motions and things 

of that nature 45 minutes apart, trying to make it as convenient 

to the attorneys to where they didn’t waste any more time that is 

necessary. 

I also felt that judges took up too much time with the lawyers 

after the jury was selected handling matters that they should have 

handled before the jury ever got there. So I was very mindful of 

jurors’ time and tried to make sure that we disposed of it, and tried 

to run a pretty tight ship of lawyers to say we are going to take 

care of our business beforehand. Sometimes, that wasn’t easy, but 

it worked out most of the time. 

Senator DEWINE. Good. Thank you. 

Judge ARMIJO. Senator, approximately 5 years ago the New Mexico State Bar undertook a study of public confidence in the courts 

and it was very enlightening in our State. Certainly, one thing that 

was realized is when we talk about that, we certainly don’t limit 

ourselves to the judge, the courtroom, the courthouse. We look at 

the courtesies extended, we look at witnesses, we look at preparation of attorneys, how we might facilitate a fair hearing. 

260

I think there is always a temptation, particularly at the Federal 

level, as I perceive it—and this a very personal answer—that you 

lose touch at that level. I think there has to be great care taken 

to ensure that you always remember your responsibilities as a public servant, always. 

I think when I have heard of example—and I have not heard of 

many, but a sense that perhaps the ivory tower has become too 

high, it has been in situations where perhaps one has lost touch 

with the reasons why you are before the public in that profession. 

I think temperament is important. Collegiality—even though as 

a district judge we don’t maintain the same contact that I would 

have with my current colleagues on the appellate court, we are 

part of the team and I think that is extremely important. 

But I think that when we talk about how we appear, we do not 

limit ourselves to the courtroom and our chambers. I think every 

witness is important, and every attorney, and I would certainly 

commit and have committed to taking that very, very seriously and 

never losing touch. 

Senator DEWINE. Thank you. 

Ms. BOWDRE. Senator, when I first started practicing law, I had 

been clerking at the Federal district court and so I was kind of designated the Federal court associate and got to be involved in just 

about all the cases we had in Federal court. I also had a lot of 

cases in our State court, and I must preferred being in Federal 

court because the judges that we had on the bench in Federal court 

made sure that everybody played by the same rules. In State court, 

it often depended upon who had contributed to the judge’s campaign as to what rules were applied there. 

So one thing I would like to further, assuming I am confirmed, 

would be that same approach that everyone in the court plays by 

the same rules and knows what the rules are going in. One thing 

that I noticed that our State court judges do who are elected is, 

after every jury trial, they write letters thanking the jurors for participating. Of course, there is a political motive for doing that, but 

I would like to do that as a Federal judge. It is not done often there 

as far as I know, but I think it is important that we thank our citizens who do take the time out to participate in that most valued 

role as a juror. 

Senator DEWINE. Thank you. 

Mr. FRIOT. Senator, I believe that the—not to over-dramatize it, 

but I believe that the highest calling of a Federal district judge is 

to do right those things which can only be done right at the trial 

level, and many of them are effectively unreviewable. 

I think that a misguided Federal district judge can deny justice 

in a way that can never be rectified, and for that reason, as an example, I would not emulate those judges with whom I have had experience who have prided themselves on being absolutely inflexible 

on scheduling matters. That can be a tool of oppression that can 

force unfair settlements in situations in which a little more leeway 

would have let justice be done. And that is the kind of thing with 

which I would hope never to be associated as a Federal district 

judge, if I should be so fortunate as to be confirmed. 

Senator DEWINE. Thank you. 

Mr. Hicks? 

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Mr. HICKS. In my view, the Federal district court is the trial 

court and is the court which will have the greatest contact with the 

citizens of these United States. I believe it is absolutely important 

that there be as much respect for the court as possible, and I believe that that respect starts with respect by the judge toward the 

people who are in the courtroom. It extends to the litigants and it 

extends to the counsel, and respect for our judicial system and a 

level playing field by the judge is all-important. 

Senator DEWINE. I appreciate your answers. I believe there are 

many good lawyers out there who are certainly intelligent enough 

to be Federal district court judges. What we have a hard time, I 

think, sometimes sorting out, whether it is a home State or in 

cases like today where you are on a panel and taking your testimony, is what your demeanor is going to be and what your judicial 

temperament—you used the term ‘‘judicial temperament.’’ I have 

never seen a good definition of it. 

It is kind like the Justice from the State of Ohio on the Supreme 

Court, Potter Stewart, said about obscenity; you know when you 

see it. It is kind of hard to define. The same way with judicial temperament. We certainly know it when we see it, and let me just say 

as one Senator I certainly appreciate it when I see it. I think it is 

very, very important and it is ultimately what will assure fairness 

in your courtroom. 

You all are intelligent and you all know the law. The question 

is how you conduct that courtroom and what your demeanor is and 

your relationship with the attorneys. As you all have pointed out, 

the relationship with the attorneys will ultimately impact the jury 

and it will ultimately affect the clients of those lawyers who are 

maybe innocent of the transgression that might have been committed by a lawyer on a particular day. 

Judge Pickering, let me close with you. Tell us again why you 

would give up a position as a trial court judge, which many judges 

think is the greatest job in the world, to go into a situation where 

you have less contact with litigants, no contact with litigants, really, and less contact with anybody to render decisions—a lot of 

hours of reading, a lot of hours of isolation. Why do you want to 

do it? 

Judge PICKERING. Senator DeWine, shortly after it was known 

that I was to be recommended for this position, one of my colleagues who is on the Fifth Circuit called even before I had finished breakfast the day it got out and wanted to know if I had lost 

my mind. 

Senator DEWINE. Well, maybe that is what I was saying. 

[Laughter.] 

Senator DEWINE. I was a little more subtle. I don’t know you as 

well. 

Judge PICKERING. You know, I think at different stages of one’s 

life, different positions hold more attraction. I must confess that 11 

years ago when I was nominated for this position, I declined an opportunity at that time to be considered for the appellate position 

because I did not think that—I had been in the courtroom trying 

cases and I realized that there would be more of an ivory tower on 

the appellate level and I just felt like I didn’t want to do that at 

262

that stage of my life. So I have had 11 years on the bench and I 

feel that I am ready to move up to the next level. 

Senator DEWINE. Thank you. Mr. Chairman, thank you very 

much. 

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

Senator DeWine. 

Just a couple of notes and then we will close. Senator Sessions 

asks that his submitted statement on behalf of Ms. Bowdre be submitted into the record. Without objection, I will do that and leave 

the record open for introductory statements of any other Senator 

for a week. 

Senator SCHUMER. In addition, I just want to let each of you 

know that we are going to keep open for the purpose of submitting 

questions the record for one week for the four district court nominees. So you may get written questions within the next week and 

then have to submit them to us. We may need more time—we will 

see—in terms of Judge Pickering as soon as we get the production 

of some of the unpublished cases that we talked about. 

With that, let me thank each of you and your families—I know 

they are very proud—for being here today under these difficult circumstances. But, again, I would like the people halfway around the 

world to watch that they can’t stop us from doing our job, no matter what they try to do to us, even if we have to move the room 

or do whatever else. 

So I thank you for being here and we are adjourned. 

[Whereupon, at 3:59 p.m., the Committee was adjourned.] 

[Questions and answers and a submission for the record follow.]

QUESTIONS AND ANSWERS

Responses of M. Christina Armijo to questions submitted by Senator Leahy 

PUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background information reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation report prepared on me, I respectfully direct you attention 

to that report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: A sitting trial judge should strongly adhere to the doctrine of share decisis. I believe that a trial judge should interpret the law and not make it. If confirmed, I will follow governing precedent of the Circuit and the Supreme Court. At 

the same time, I recognize that there is sometimes a lack of precedent for cases that 

present new or novel issues or questions, statutes and regulations. Where there is 

no direct precedent, a judge should look to analogous situations and try to draw 

from these a solution that most closely follows what the law has been in his or her 

jurisdiction. A judge should resist second-guessing what the legislative body intended.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

263

Answer: When national security is threatened, every citizen’s freedom is at risk. 

There is a delicate balance here, as between the right to individual liberties and the 

significant interest in national security. Every instance of tipping that balance 

against a citizen’s liberty interest must be done with the greatest of care and scrutiny. I believe, however, that the magnitude of the risk to national security and the 

extreme consequences as occurred on September 11, are proper, significant factors 

in assessing how this delicate balance is affected.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: In reviewing recent opinions of the Supreme Court, I agree that some federal legislation which has been struck down resulted in the narrowing of the scope 

of Congress’ power. 

If confirmed, I will faithfully apply governing Supreme Court and Circuit precedent to these issues, while also respecting the strong presumption of constitutionality applicable to all acts of Congress.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: On aspect of the expansion of sovereign immunity is whether States may 

be sued in federal courts. The case of Seminole Tribe vs. Florida dealt with a federal 

law which required the Indian tribes be able to negotiate in good faith with state 

governments to allow gambling on reservations. The law imposed a duty upon the 

states to negotiate in good faith. The Supreme Court in Seminole said that Congress 

can authorize suits against the states only when it acts under Section Five of the 

Fourteenth Amendment, and not when it is using any other power. In City of Boerne

vs. Flores, the Supreme Court addressed the scope of Congress; authority under Section Five of the Fourteenth Amendment. The Court has said that if Congress provides remedies to prevent a violation of an existing right, such remedies must be 

in proportion to the nature or extent of the violation. In reviewing this case, and 

others, one important factor this is apparent is the extent of the legislative record 

available (including documentation) to support the proposed legislation intended to 

remedy a violation of a right. I believe that where Congress has made a record, including findings supported by documentation, that those finding and owned deference by the courts to the extent consistent with applicable Supreme Court precedent. 

If confirmed, I will faithfully apply governing Supreme Court and Circuit precedent to these issues, while also respecting the strong presumption of constitutionality applicable to all acts of Congress.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: In South Dakota vs. Dole, 483 U.S. 203 (1987) the Supreme Court upheld 

the constitutionality of federal legislation which required the states to set a twentyone year old drinking age in order to receive federal highway funds. In the case, 

the court stated that such conditions may be placed on grants as long as the conditions are expressly stated and so long as the conditions relate to the purpose of the 

particular spending program. 

While I do not have an opinion, nor will I speculate, as to whether the holding 

in Dole night be reconsidered at some future time in light of the Court’s more recent 

‘‘federalism’’ cases, I do not a recent Tenth Circuit case, Kansas vs. United States, 

214 F.3d 1196 (10th Cir. 2000) This case involved the federal welfare program. As 

a condition of the states receiving monies under this program, the states are required to consider certain conduct, including child support enforcement, as conditions. The State of Kansas argued that such conditions violated the Tenth AmendVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00275 Fmt 6633 Sfmt 6621 C:\HEARINGS\82503A.000 SJUD4 PsN: CMORC
264

ment. The Tenth Circuit upheld the constitutionality of this federal law. The Tenth 

Circuit did not depart from the holding in Dole and once again declared and reaffirmed the holding in Dole that federal laws that place strings on grants are constitutional where the terms are clearly stated and where the conditions imposed relate to the purpose of the program. 

If Congress provides money to a state and places conditions on the funding, and 

if those conditions are clearly stated and relate to the purposes of the program funded, then I believe the Congress may enforce those conditions consistent with the 

principles set forth in Dole and other related Supreme Court precedent.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

I presume that all federal states are constitutional, and any review or consideration of the constitutional merits of such a law must, first and foremost, begin with 

that presumption. I am unable to address the merits of the constitutionality of any 

particular statute because, as a sitting judge, such a question may come before me.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: I presume that all federal statutes are constitutional and any review or 

consideration of the constitutional merits of such a law must, first and foremost, 

begin with that presumption. I am unable to address the merits of, or render an 

opinion as to, the constitutionality of any particular statute because as a sitting 

judge, such a question may come before me.

Responses of Karon O. Bowdre to questions submitted by Senator Leahy 

fPUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation report on me, I respectfully direct your attention to that 

report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: For eleven years, I have taught law students that the doctrine of share 

decisis forms the bedrock of our legal system. Other components of that foundation 

include the supremacy of the Constitution as interpreted by the Supreme Court, and 

the rule of law. The only authority to overrule or modify prior Supreme Court decisions lies with the Supreme Court itself. Similarly, the circuit courts can overrule 

or modify their own rulings in accordance with their procedures and if the Supreme 

Court has not addressed the issue. But a federal district court judge must follow 

binding precedent of the controlling circuit and the Supreme Court. 

If confirmed as a district court judge, I would be bound to follow controlling precedent from the Supreme Court and the Eleventh Circuit Court of Appeals. Not to adhere to the critical role of share decisis would put me at odds with what I have 

taught and what I firmly believe is a central part of our system of justice.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: On questions of such magnitude, the legislative branch of government is 

uniquely suited with the necessary resources and the knowledge to address issues 

that affect all Americans so greatly. Without addressing specifics and running the 

risk of prejudicing myself should such an issue come before me, a balance must be 

struck between the civil right of the individual and the national need for measures 

to increase security. The most important role of the federal government, however, 

is to provide for national security while respecting constitutional rights.

265

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: Certainly, as stated above, the decisions of the United States Supreme 

Court bind district court judges on the issues decided in those cases. Supreme Court 

precedent on analogous issues should also be consulted. However, enactments of 

congress carry a presumption of constitutionality with the burden resting heavily 

on the opponent of the legislation to establish that it contravenes the Constitution. 

At the same time, the separation of powers and the checks and balances system 

have generally worked well for centuries, with some exceptions. 

On matters challenging the constitutionality of legislation on which the Supreme 

Court has not ruled, if confirmed, I would first thoroughly examine the legislation 

itself and any relevant legislative history, including Congressional findings and 

statements of purpose. I would then compare the legislation with the Constitution, 

the supreme law of our land, and any controlling or analogous pronouncements by 

the Supreme Court. In making a decisions, I would give deference to the Congressional findings and to the presumption of constitutionality.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: The Supreme Court has stated that when Congress seeks to subject 

states to private suits to enforce constitutional rights, the legislation must have ‘‘a 

congruence and proportionality between the injury to be prevented or remedied and 

the means adopted to that end.’’ City of Boerne v. Flores, 521 U.S. 507, 520 (997). 

More recently, in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 

356 (2001), the Court elaborated on the restrictions on Congress’ ability to abrogate 

states’ immunity. When no suspect class is involved, the legislation subjecting states 

to private lawsuits for money damages must be supported by evidence of a pattern 

of discrimination by the states. The remedy crafted by Congress must be congruent 

and proportional to the wrong sought to be remedied. 

When Congressional action meets this test, it can subject states to private suites 

for damages for discrimination that does not involve strict scrutiny. Because this 

question involves issues that may well be presented to me should I be fortunate to 

be confirmed, I hesitate to make any statement that might prejudice my ability to 

rule on such a case. Should such an issue be presented to me, if confirmed, I would 

first thoroughly examine the legislation itself and any relevant legislative history, 

including Congressional findings and statements of purpose. I would then compare 

the legislation with the constitution, the supreme law of our land, and any controlling or analogous pronouncements by the Supreme Court. in making a decision, I 

would give deference to the Congressional findings and to the presumptions of constitutionality.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: The Supreme Court, in South Dakota v. Dole, 483 U.S. 203 (1987), held 

that Congress in certain circumstances can condition receipt of federal funds on specific state action. Those conditions include that the exercise of the spending power 

as an inducement of state action be in pursuit of the general welfare; that the 

means chosen be calculated to advance the general welfare; that the condition of the 

states’ receipt of federal funds be stated unambiguously so that states can make a 

knowing choice; and that a national concern be addressed by the condition of funds. 

The Court also cautioned that such exercise of the spending power must not be independently barred by some other constitutional provision, and must not be so coercive as to turn into compulsion. 

266

Any action of Congress to condition receipt of federal funds on a waiver of sovereign immunity would have to meet these constitutional standards. Because this 

question involves issues that may well be presented to me should I be fortunate to 

be confirmed, I hesitate to make any further statement that might prejudice my 

ability to rule on such a case. Should such an issue be presented to me, if confirmed, 

I would first thoroughly examine the legislation itself and any relevant legislative 

history, including Congressional findings and statements of purpose. I would then 

compare the legislation with the Constitution, the supreme law of our land, and any 

controlling or analogous pronouncements by the Supreme Court. In making a decision, I would give deference to the Congressional findings and to the presumption 

of constitutionality.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Federal statutes are contained in fifty Titles, filling numerous volumes of books. 

I have not studied or even read all the hundreds of thousands of statutes. Therefore, 

I could not presume to know whether any of those statutes for constitutional scrutiny but to only rule on those issues brought before me. On matters challenging the 

constitutionality of legislation itself and any relevant legislative history, including 

Congressional findings and statements of purpose. I would then compare the legislation with the Constitution, the supreme law of our land, and any controlling or analogous pronouncements by the Supreme Court. In making a decision, I would give 

deference to the Congressional findings and to the presumption of constitutionality.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: Federal statutes are contained in fifty Titles, filling numerous volumes 

of books. I have not studied or even read all the hundreds of thousands of statutes. 

Therefore, I could not presume to know whether any of those statutes violate the 

Constitution. Moreover, if confirmed, my job as a judge would not be to ferret out 

statutes for constitutional scrutiny but to only rule on those issues brought before 

me. On any such issues, if confirmed, I would first thoroughly examine the legislation itself and any relevant legislative history, including Congressional findings and 

statements of purpose. I would then compare the legislation with the Constitution, 

the supreme law of our land, and any controlling or analogous pronouncements by 

the Supreme Court. In making a decision, I would give deference to the Congressional findings and to the presumption of constitutionality.

Responses of Stephen P. Friot to questions submitted by Senator Leahy 

fPUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely addressed the type of 

information called for by this question. Without waiving the confidentiality of the 

FBI background investigation report prepared on me, I respectfully direct your attention to that report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: In my opinion, a United States District Judge should faithfully adhere 

to the doctrine of Stare decisis. It is well established that, in some situations, the 

United States Supreme Court is somewhat less constrained by the doctrine of Stare 

decisis. However, the fact that the Supreme Court is, in some situations, relatively 

less constrained by Stare decisis should be of no moment to a District Judge. If confirmed, I will follow the precedents of my circuit and the Supreme Court as the doctrine of Stare decisis requires.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

267

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: In my opinion, if we strip ourselves of our civil liberties, the terrorists 

will have won an important battle. For that reason, although I believe that there 

is now some justification for enhanced investigative powers, I believe that it would 

be advisable to treat the most intrusive of the new investigative powers as being 

experimental and subject to stringent oversight.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: A common thread which may be found in most of the Supreme Court’s 

recent federalism decisions is that the Court’s rationale is frequently based, at least 

in part, upon either an absence of Congressional findings satisfactory to the Court 

or upon the presence of Congressional findings which the Court concluded were unsupported by the legislative record. See, e.g., United States v. Lopez, 514 U.S. 549, 

at 562 (1995) (absence of findings); City of Boerne v. Flores, 521 U.S. 507, at 531 

(1997) (legislative record insufficient to support findings); and Kimel v. Florida 

Board of Regents, 528 U.S. 62, at 89 (2000) (conclusion, based upon the legislative 

record, that legislation was ‘‘an unwarranted response to a perhaps inconsequential 

problem’’). In my opinion, a Federal District Judge should proceed with utmost restraint when confronted with a claim calling upon the District Court to critique, review or otherwise weight the propriety of Congressional findings or the sufficiency 

of the evidence in the legislative record supporting those findings. Indeed, federal 

statutes are presumed to be ‘‘constitutional exercise[s] of legislative power.’’ Indeed, 

federal statutes are presumed to be ‘‘constitutional exercise[s] of legislative power.’’

Reno v. Condon, 528 U.S. 141, 148 (2000) (internal quotation omitted). Among the 

many important duties of a trial judge, the foremost obligation is, in my view, to 

serve as the guarantor of the integrity of the process by which disputed issues of 

fact are tried and reduced to judgment by way of verdict of judicial findings. This 

is not a philosophical exercise and cannot be accomplished at any other level in our 

judicial system. In my opinion, trial judges serve the public interest best when they 

concentrate their time and energies upon the numerous tasks (many of which are 

tedious and time-consuming) which collectively result in the fair and trustworthy 

discharge of those judicial duties which are unique to the trial court level.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: ‘‘Congress is not limited to mere legislative repetition of this Court’s constitutional jurisprudence. Rather, Congress’ power to enforce the [Fourteenth] 

Amendment includes the authority both to remedy and to deter violation of rights 

guaranteed thereunder by prohibiting a somewhat broader swatch of conduct, including that which is not itself forbidden by the Amendment’s text.’’ Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, at 963 

(2001) (internal quotation omitted), citing City of Boerne v. Flores, 521 U.S. 507 

(1997) and Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). In my opinion, 

the Supreme Court’s recent decisions dealing with the scope of Congressional authority under Section 5 of the Fourteenth Amendment were not intended to, and do 

not, render the Section 5 grant of remedial legislative power illusory. In City of 

Boerne, the Court after reaffirming several basic tenets of Section 5 jurisprudence, 

id. at 520, In Kimel, the Court (i) reaffirmed that Congressional intent to abrogate 

Eleventh Amendment immunity must be made ‘‘unmistakably clear.’’ 528 U.S. at 74. 

(ii) held that the Section 5 power will indeed trump Eleventh Amendment immunity 

if the Section 5 legislation is found to be ‘‘appropriate legislation,’’ id. at 644, and 

(iii) concluded, applying the Boerne congruence and proportionality test in light of 

the legislative record before it, that the legislation in question was so ‘‘out of proportion to a supposed remedial or preventative object that it cannot be understood as 

268

responsive to or designed to prevent, unconstitutional behavior,’’ Id. at 86 (internal 

quotation from Boerne omitted). It is clear that the perceived ‘‘indiscriminate scope 

of the Act’s substantive requirements’’ was crucial to the Court’s decision. Id. at 650. 

Garrett clarified the analytical framework and reiterated the principle that Section 

5 legislation must comport with the contours of the constitutional guarantee at issue 

as defined by the Court. 531 U.S. at ——: 121 S. Ct. at 963. Under Garrett, the first 

analytical step is to ‘‘identify with some precision the scope of the constitutional 

right at issue..’’ Id. The next step is to determine whether Congress identified a history and pattern of unconstitutional state conduct sufficient to support the exercise 

of Section 5 legislative power. Id. at 964. The Court concluded, in Boerne, that the 

record did not reveal ‘‘a pattern of [unconstitutional] discrimination by the States’’ sufficient to support the exercise of Section 5 power. Id. at 967. If confirmed, I will 

apply the principles of these and future Supreme Court cases to any cases before 

me that raise these issues.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: The Supreme Court has held that Congress may encourage states to consent to suit by offering them funding if they waive sovereign immunity. See South 

Dakota v. Dole, 483 U.S. 203 (1987); cf. Oklahoma v. United States Civil Service 

Commission, 330 U.S. 127 (1947).

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

I am aware of none.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: I am aware of none. If confirmed. I will apply the presumption of constitutionality to all acts of Congress.

Responses of Larry R. Hicks to questions submitted by Senator Leahy 

fPUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation routinely address the type of information called fro by this question. Without waiving confidentiality of the FBI background investigation report prepared on me. I respectfully direct your attention to 

that report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: A federal district court judge is bound to follow the doctrine of Stare decisis and the doctrine is not subject to variance.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: It is evident that there is a great public concern and focus upon the need 

for legislation to address the risk of more terrorist attacks. However, I do not believe that constitutional rights can be ‘‘traded-off’’ by the legislature regardless of 

the alternative. Any legislation designed to provide greater security will have to fall 

within constitutional limitations.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

269

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: My view is that the district court judge is obligated by the doctrine of 

Stare decisis to follow the law as pronounced by the Supreme Court. If the district 

judge’s personal views should vary from the law established by the Supreme Court, 

the Judge’s obligation is to set side his or her personal views and be bound by the 

law established by the Supreme Court. If confirmed, I would apply the presumption 

of constitutionality to all Act of Congress.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Based upon the United States Supreme Court’s decision in Bd. of Trustees of the Univ. of Alabama v. Garrett 531 U.S. 356, 121 S. Ct. 955 (2001), it would 

appear that Congress can subject states to private suits for damages for discrimination where it can identify a history and pattern of unconstitutional discrimination 

by the states. When a pattern of discrimination is shown, the rights and remedies 

which may be enacted by Congress must then be congruent and proportional to the 

targeted violation. This reflects my impression of the Bd. of Trustees of the Univ. 

of Alabama v. Garrett decision which appears to be the controlling authority relative 

to this question. If confirmed, I would examine all relevant authority on this issue 

carefully and would follow the law established by my district’s Circuit Court of Appeals and the United States Supreme Court. I would also apply the presumption of 

constitutionality to all Acts of Congress.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: The United States Supreme Court’s decision in South Dakota v. Dole, 483 

U.S. 203, 107 S. Ct. 2793 (1987) is relevant precedent in responding to this question. 

However, without further definition of the certain ways in which federal funds 

might be used by the state, the extent of the state’s waiver of sovereign immunity, 

the elements of a private action and definition concerning what constitutes misuse 

of such funds, this is a question which I cannot answer in a simple yes or no fashion. If my nomination is confirmed, I assure the Committee I would follow all controlling precedent of my district’s Circuit Court of Appeals and the United States 

Supreme Court. And, as stated above, I would apply the presumption of constitutionality to all Acts of Congress.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

I know of now such law. If confirmed, I would apply the presumption of constitutionality to all Act of Congress.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: I know of none. All federal statutes and sections thereof are presumed 

to be constitutional and, in the event that I should be fortunate enough to have my 

nomination confirmed, it would require a clear and convincing showing before I 

would allow the presumption of constitutionality to be overcome.

Responses of Charles W. Pickering, Sr. to questions submitted by Senator 

fLeahy 

PUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

270

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation report prepared on me, I respectfully direct your attention 

to that report for response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: In our legal system the doctrine of stare decisis is very important. It provides stability and continuity in the law. It helps fulfill the maxim that we are ‘‘a 

government of laws, not men.’’ In my opinion, district courts are firmly bound by 

the doctrine of stare decisis as to cases decided by their circuit and the U.S. Supreme Court. Circuit judges are firmly bound by the decisions of the Supreme Court, 

as well as the Circuit’s precedent, unless overruled by the en banc court.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: Our Constitution was adopted to create a government to provide appropriate services, and basic protection to our citizens, while at the same time guaranteeing them great freedom and liberty under the Bill of Rights. There will always 

be tension between the need to protect our citizenry in times of peril and to protect 

constitutional rights of individuals at the same time. Although there is great need 

to protect our nation from terrorism, we must not change the character of our nation which makes our people the freest people on earth.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: The circuit courts are bound to follow Supreme Court precedents in this 

area as in all others. Congressional acts are nevertheless presumed to be constitutional. If confirmed, I will adhere to these basic principles.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Again, circuit courts are bound to follow the precedents established by 

the Supreme Court in this area. In a case of first impression, the circuit courts, 

under the doctrine of stare decisis, should try to determine what the Supreme Court 

would do based on previous Supreme Court precedent. The Supreme Court has announced the standard by which states can be subject to private suits for money 

damages. If that standard is met, then a state can be subject to the type of suit 

suggested in this question.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: Under Supreme Court precedent, Congress can require that states do certain things as a condition of receiving federal money. If the conditions of waiver of 

sovereign immunity meet the standards outlined in Supreme Court precedent, then 

it should be upheld.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

271

Answer: The Federal Code now consist of 50 titles and over 250 volumes. It would 

take an analysis of a specific statute to determine whether it violates the sovereign 

immunity doctrine. Further, acts of Congress are presumed to be constitutional.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: The Federal Code now consists of 50 titles and over 250 volumes. It 

would take an analysis of a specific statute to determine whether it violates the sovereign immunity doctrine. Further, acts of Congress are presumed to be constitutional.

SUBMISSION FOR THE RECORD

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

in support of the Nomination of Karon Owen Bowdre 

I am pleased to introduce to the Committee a first-rate judicial nominee. Karon 

Bowdre has been a student, practitioner, and professor of the law. She graduated 

cumlaude from Cumberland School of Law. She served as the associate editor of the 

Cumberland Law Review. 

Mrs. Bowdre also served as a law clerk for the Honorable J. Foy Guin, Jr. in the 

Federal District of Northern Alabama, the court to which she has been nominated. 

So she is very familiar with the federal district court. 

Prior to becoming a full-time professor, Mrs. Bowdre spent several years as an 

associate and partner, practicing law at the well respected law firm of Rives & Peterson. During a substantial part of that practice, she litigated a number of cases 

in the federal court system. 

Mrs. Bowdre has spent the last eleven year’s teaching students about the rule of 

law. As a professor and the Director of the Legal Research and Writing Program 

at the Cumberland School of Law, she has authored numerous articles on insurance 

law and legal ethics. 

In addition, she has been called to testify as a legal expert on insurances issues. 

And she has been involved in lecturing at Continuing Legal Education seminars. 

Mrs. Bowdre knows how to deal with lawyers, with witnesses, and with parties. 

These experiences have no doubt prepared her for service on the federal bench. 

Mrs. Bowdre’s reputation as a lawyer and as a scholar has earned her broad support. I would like to quote a letter submitted by one of the most successful plaintiff 

lawyers in the State of Alabama, Jere Beasley. Even though Mrs. Bowdre, as an 

insurance defense attorney, was generally arguing the opposite position of Mr. 

Beasley, he had this to say on her behalf: 

‘‘I have known Karon for a number of years and believe that she will be an outstanding U.S. District Judge. She will have wide acceptance from lawyers. . .regardless of whether they represent plaintiffs or defendants. While my 

practice is one that represents plaintiffs or defendants. While my practice is one 

that represents plaintiffs only, I am convinced that Karon will be fair and competent 

to all concerned and that is all that any lawyer should ask of a judge. She is highly 

qualified and, in my opinion, will do an outstanding job.’’

Karon Bowdre’s integrity, experience, and commitment to the rule of law are outstanding. I commend Chairman Leahy for placing her on the agenda for today, and 

I recommend her to my colleagues on the Committee without reservation.

(273)

NOMINATION OF HARRIS L. HARTZ, OF NEW 

MEXICO, TO BE CIRCUIT JUDGE FOR THE 

TENTH CIRCUIT; KURT D. ENGELHARDT, OF 

LOUISIANA, TO BE DISTRICT JUDGE FOR 

THE EASTERN DISTRICT OF LOUISIANA; 

JOHN D. BATES, OF MARYLAND, TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA; WILLIAM P. JOHNSON, OF NEW 

MEXICO, TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF NEW MEXICO; AND SHAREE M. 

FREEMAN, OF VIRGINIA, TO BE DIRECTOR 

OF THE COMMUNITY RELATIONS SERVICE, 

DEPARTMENT OF JUSTICE 

THURSDAY, OCTOBER 25, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 2:18 p.m., in Room 

SR–385, Russell Senate Office Building, Hon. John Edwards presiding. 

Present: Senators Edwards, Leahy, Hatch, and Kyl. 

OPENING STATEMENT OF HON. JOHN EDWARDS, A U.S. 

SENATOR FROM THE STATE OF NORTH CAROLINA 

Senator EDWARDS. Welcome, and thank you all for being here. 

Before we get started, I want to thank and commend Senator 

Leahy, who is not here at this time, for keeping this train running 

at a very stormy time. You won’t find another Committee in the 

Congress that has been more productive than the Judiciary Committee, which Senator Kyl and I both serve on, over the last 6 

weeks. 

Since taking leadership of this Committee in July, the Chairman 

has held 8 hearings; he has held 4 after September 11 and he has 

held 2 since our offices were shut down last week, all at the same 

time that all of us were working on a massive antiterrorism bill. 

He has held more hearings and moved more judges through the 

Committee than the Judiciary Committee moved by the same date 

in 1989 and 1993, the last time we had a first-term President, and 

he has broken those tallies in spite of the events of September 11. 

274

One final comment. We are now holding hearings at a time when 

many people, myself included, do not have access to our offices. 

While we have been able to prepare for this hearing, I am not certain whether all my colleagues on the Committee have been able 

to do that. So we are going to ask to leave additional time for written questions after this hearing. 

I will now ask Senator Domenici to introduce our nominee from 

New Mexico. 

PRESENTATION OF HARRIS L. HARTZ, NOMINEE TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT, BY HON. PETE V. 

DOMENICI, A U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator DOMENICI. Thank you very much, Mr. Chairman. Do you 

want me to do the circuit court first? 

Senator EDWARDS. That is fine. 

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

Senator Kyl. I will be very brief. 

First of all, I want to say that we have a very distinguished lawyer in our State, a very distinguished, and while we know that he 

would do wonderful work in New Mexico, where he has served on 

our circuit court and been a pinnacle of everything a judge should 

be, we are now prepared today to share him with our country. He 

is going to be a great circuit court judge. His name is Harris Hartz. 

He has with him today some very dear people and I just want 

to have them stand up very quickly: his wife, Deborah; his mother, 

Muriel; and his son, Andrew. They are as pleased as any of us to 

be here. Even though our buildings are not exactly what they 

thought, they are delighted to be here and very grateful to you for 

permitting their son and husband to be confirmed today. 

Senator EDWARDS. Welcome. We are happy to have you all here. 

Senator DOMENICI. Mr. Chairman and Senator Kyl, let me just 

say if you are looking for somebody to be on the circuit court of appeals who has many academic credentials as you can possibly vest 

in a human being—if that is what you are looking for, he has got 

that. He is a very brilliant lawyer. 

Wherever he attended either undergraduate school or law school, 

both at Harvard University, he graduated at or near the top of his 

class; in undergraduate, magna cum laude from Harvard, in the 

very, very highest echelons, and editor of one of their student papers. 

From our standpoint, whenever we look around and say is there 

a Republican that can please the judiciary, be they Democrat or 

Republican, one who stands head and shoulders over most lawyers 

in every respect, including ethics, we are very pleased to have this 

man in our midst. 

All I want to say today is you won’t go wrong. I don’t want to 

take any more of your time because this is as right a candidate as 

I could produce from New Mexico, and I am so grateful that Senator Bingaman has done an awful lot to help move this along and 

support him. 

Senator EDWARDS. Thank you very much. 

Senator Bingaman, I want to go to you next, but before I do let 

me see if my colleague had a statement he would like to make. 

275

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Mr. Chairman, in view of the time, let me just put 

my statement in the record, but commend all of the nominees for 

being here, and welcome all of the witnesses. We have an impressive array of witnesses to introduce them. I will not impinge on 

their time. 

I also congratulate them, welcome their families, and just note 

in advance that the fact that there are not a whole bunch of Senators up here ready to spend a lot of time grilling these witnesses 

is not an expression of disinterest, but rather a confirmation of 

your qualifications and the fact that they have been thoroughly vetted. You wouldn’t be sitting here today if you weren’t in a very 

good position to be confirmed quickly, and that is the reason why 

I hope and imagine that this will go very quickly for you. 

Senator EDWARDS. Senator Bingaman? 

PRESENTATION OF HARRIS L. HARTZ, NOMINEE TO BE CIRCUIT JUDGE FOR THE TENTH CIRCUIT, BY HON. JEFF 

BINGAMAN, A U.S. SENATOR FROM THE STATE OF NEW MEXICO 

Senator BINGAMAN. Thank you very much, Mr. Chairman. I am 

very pleased to be here with Senator Domenici in support of this 

nomination. 

Harris Hartz is one of our very best lawyers in New Mexico and 

is recognized as that by all members of the bar as far as I know. 

He is admired for his contributions to our State and our community, as well, and I know that in all respects he has strong support, 

Democratic support, Republican support, non-partisan support, 

throughout our State. 

So I compliment the President on nominating him, I compliment 

Senator Domenici on recommending the nomination, and I urge the 

Committee to act quickly on his nomination and get him confirmed. 

PRESENTATION OF WILLIAM P. JOHNSON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO BY 

HON. PETE DOMENICI, A U.S. SENATOR FROM THE STATE OF 

NEW MEXICO 

Senator DOMENICI. Mr. Chairman, could I continue with the district court nominee from New Mexico? 

Senator EDWARDS. That is fine. 

Senator DOMENICI. Thank you very much. I will be very brief. 

We have a district court judge who serves in the district court 

in the 5th Judicial District of New Mexico. That is a court of general jurisdiction, Senator Kyl. 

Recently, I went down to that part of New Mexico to see what 

he did, and we are going to have a United States District Judge 

that has been at every level of courts of general jurisdiction. He 

will have a special empathy wherever the United States Government has relationships in their court to young people because he 

has been head of the juvenile court down there for part of his judicial career. He has been in arduous trials, where he has come out 

of them with both plaintiffs and defendants thinking that they 

couldn’t find a better person sitting behind the bench than him. 

276

I know, in particular, Senator Kyl, you are always concerned 

about judges and the quality of them. And, Senator Edwards, that 

is where you made your life for a long time. You had to have good 

judges. You had to have judges that understood the law, applied it 

fairly, and let the jury decide when they are supposed to. We have 

got a man here that is going to do that in the Federal system for 

a long time. 

He has with him some people very dear to him. I am just going 

to quickly mention them. His wife, Loretta, is here from New Mexico; his father, John; his mother, Shirley; and his brother-in-law, 

Errol Chavez. I just introduce them to you. 

I now yield to Senator Bingaman, whom I thank profusely for 

helping with these nominees. He will not be sorry, New Mexico 

won’t, and you won’t. 

Thank you. 

Senator EDWARDS. Thank you, Senator Domenici. 

Senator Bingaman? 

PRESENTATION OF WILLIAM P. JOHNSON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO, BY 

HON. JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE OF 

NEW MEXICO 

Senator BINGAMAN. Well, thank you again, Mr. Chairman and 

Senator Kyl. I also strongly support this nominee. 

In the case of Harris Hartz, I have known him for nearly 30 

years and have had the opportunity to observe him for all that period and admire his abilities. But in the case of Judge Johnson, I 

have not known him for any period of time. I did get a chance to 

meet with him and I know him by reputation in the communities 

that he has served in, particularly in Roswell, where he is a district 

court judge. He is extremely well respected by the bar in the community. I know of his interest in delinquent youth, in particular, 

and his work with Camp Sierra Blanca, which is a model for the 

kind of rehabilitation program we need to see much more of in this 

country. 

So I believe that he will be an excellent addition to the Federal 

bench and I recommend that the Committee go ahead with his confirmation as quickly as possible. 

Senator EDWARDS. Thank you. Senator Domenici and Senator 

Bingaman, thank you both very much. 

Senator Breaux? 

PRESENTATION OF KURT D. ENGELHARDT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. JOHN B. BREAUX, A U.S. SENATOR FROM 

THE STATE OF LOUISIANA 

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

Landrieu and I and Congressman Vitter are all here to strongly 

support the nomination of President Bush of Kurt Engelhardt, to 

be a Federal district judge for the Eastern District of Louisiana. 

Kurt will bring to this position, I think, the type of qualifications 

that are very important in the sense that he is a graduate of Louisiana State University Law School. All of your nominees will have 

a great deal of academic experience and legal qualifications, but he 

277

also has a history of having a local practice in two of the major 

firms in the greater New Orleans area, in Metairie and in New Orleans, and really brings an understanding to the bench of what it 

is like to have a local practice dealing with everyday, real problems 

in the real world. 

In addition to that, he also has experience in the academic world, 

having clerked and worked for one of our distinguished professors 

of law at Louisiana State University. So he has had the academic 

experience, he has had the real-world experience, and he has also 

had experience which I think is very important from the judicial 

side in having clerked for a Federal district judge from Louisiana. 

I think it is important to note that, in addition to that judicial 

experience, Kurt served with great distinction as the Chairman of 

the Louisiana Judiciary Commission, which was a very difficult position in the sense that you had to look at ethical complaints 

against sitting judges, something that obviously is not an easy 

task, and Kurt served with great distinction. 

So I think he will bring to this position both practical, real-world 

experience, a good academic background and academic experience 

in the teaching profession, as well as actually serving the judicial 

system through his work as Chairman. 

The only thing that I can note that caught my eye of his earlier 

errant ways is when Kurt served as the Chairman of the Louisiana 

Term Limits Campaign. Of course, now that he is getting a lifetime 

appointment, I know he sees the error of his earlier days. 

[Laughter.] 

Senator BREAUX. I enthusiastically support Kurt and am delighted to have his wife, Ann, with us today, as well. 

Senator EDWARDS. Thank you, Senator Breaux. 

Welcome, Ann. We are glad to have both of you here. 

Senator Landrieu? 

PRESENTATION OF KURT D. ENGELHARDT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. MARY LANDRIEU, A U.S. SENATOR FROM 

THE STATE OF LOUISIANA 

Senator LANDRIEU. Thank you. I am going to submit my statement to the record, Mr. Chairman, because you have been very gracious to have three Louisianians here before you. And because our 

Congressman is a very, very good friend of the nominee, he can 

give us more detail. 

Let me just support the comments of my senior Senator, send my 

statement for the record, and say that this nominee has my full 

support. I am confident, based on his academic credentials, his reputation as a lawyer, and his civic involvement in our community, 

that he will be an excellent addition to the bench. 

Thank you very much. 

Senator EDWARDS. Thank you very much, Senator Landrieu and 

Senator Breaux. 

Congressman Vitter, with your permission, I am going to go to 

Senator Warner, who needs to leave to go to a briefing. 

Senator Warner, I couldn’t see you over there hiding behind the 

bench. 

Senator WARNER. That is fine, Mr. Chairman. 

278

Senator EDWARDS. We are glad to hear from you now. 

PRESENTATION OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR OF THE COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE, BY HON. JOHN W. WARNER, A U.S. 

SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. I am about to start a hearing of the Armed 

Services Committee as the ranking member, but this is a privilege 

that we have here in the United States Senate in the confirmation 

process to appear on behalf of distinguished Americans who are 

willing to step up and serve as public servants, and we have an extraordinary one today in Sharee Freeman. While I have not known 

her that well, this curriculum vitae tells the story of accomplishment. 

As a courtesy to the Chairman of the International Relations 

Committee in the House, for whom she worked for these many 

years, I would like to have my statement appear in the record following the Members of the House who are here on her behalf. 

She is undertaking a job which will place her on the front lines 

of challenges in America. It is called the Community Relations 

Service. It helps local communities resolve serious racial and ethnic 

conflicts. That is a challenge, particularly at this point in our history where this Nation is at war and a particular sect of people, 

Muslim-Americans, who are wonderful Americans, who are now 

subjected in ever-increasing numbers to this problem. This will be 

among her earliest tasks. 

So I shall leave it to our distinguished Chairman and ask that 

my statement appear behind the House Members on behalf of this 

distinguished American, Sharee Freeman. 

Thank you very much. 

Senator EDWARDS. Thank you very much, Senator. We appreciate 

you being here. 

Welcome to all of our colleagues from the House. We are very delighted to have you here. 

Congressman Hyde, I think we will start with you, please. 

PRESENTATION OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR OF THE COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE, BY HON. HENRY J. HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Representative HYDE. Thank you very much, Senator. Senator 

Warner did it exactly right. Sharee Freeman is the nominee for the 

important post of Director of the Community Relations Service and 

currently is a counsel for the International Relations Committee, 

where we kidnapped her from the Judiciary Committee where she 

served 4 years as one of the leading counsel over there. She was 

responsible for civil rights issues, fair housing, crime, religion, and 

the Constitution, and did a brilliant job. 

She came to the Hill from the Department of the Interior, where 

she served as Acting Assistant Solicitor for General Indian Legal 

Activities and as an attorney adviser. She spent 13 years with the 

Department of the Interior, and worked intimately and extensively 

with Indian tribes throughout the U.S. concerning education, the 

ADA, housing, civil rights, welfare, and social service issues. 

279

She developed an expertise in appropriations law and Government contract work, and I am proud to say she was an assistant 

district attorney in Philadelphia from 1982 to 1984. She is a native 

New Yorker. She received her bachelor of arts from St. Lawrence 

University and her juris doctorate from Georgetown. 

As soon as she finished law school, she became a clerk to the 

Honorable Norma Holloway Johnson, of the U.S. District Court for 

the District of Columbia. 

What I am most proud of about Sharee is she is an advocate of 

community service and she regularly cooks and serves dinner for 

the homeless of the metropolitan area with the Step Ahead program. She is a mentor volunteer for Hispanic, black and Indian 

high school and college students. She assists them in securing employment, internships, higher education, advanced degrees, and financial aid. 

Let me just say this: I know Sharee very well. She has been on 

my staff on the Judiciary Committee for 4 years, and a year on 

International Relations. She takes the tough jobs, she does the 

heavy lifting. She does it willingly and she does it well. I am very 

proud of her and I am very proud that the President named her 

for this important post. 

Senator EDWARDS. Thank you very much. That is a ringing endorsement. 

Congresswoman Morella, please. 

PRESENTATION OF JOHN D. BATES, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. CONNIE 

MORELLA, A REPRESENTATIVE IN CONGRESS FROM THE 

STATE OF MARYLAND 

Representative MORELLA. Thank you, Mr. Chairman. I thank you 

for the opportunity to come before you to introduce my constituent, 

John D. Bates, who has been nominated by President Bush for the 

position of United States District Judge for the District of Columbia. 

It is a great privilege to introduce him because he is a constituent. I am very proud of him. He is an extremely well qualified 

attorney and he has considerable experience. He has served his 

community with distinction, and I am confident he will make an 

excellent judge. 

Mr. Bates has a long and distinguished resume, and in the interests of time I will only highlight some of the impressive qualifications for the Committee. 

He is currently a member of the law firm of Miller and Chevalier 

in Washington, D.C. He received his B.A. from Wesleyan University, his J.D. from the University of Maryland School of Law, and 

from 1968 to 1971 he served in the United States Army, including 

a tour in Vietnam. He was awarded the Bronze Star for exemplary 

service. 

For almost 20 years, Mr. Bates served in the office of the U.S. 

Attorney for the District of Columbia as an Assistant U.S. Attorney. He tried a wide variety of Federal cases and argued over 30 

appeals in the U.S. Court of Appeals for the D.C. Circuit. 

He has handled many sensitive cases dealing with national security and constitutional issues. From 1987 through 1997, he was the 

280

chief of the Civil Division of the U.S. Attorney’s office. He served 

on detail as deputy independent counsel from 1995 to 1997, and received very wide praise for his fair and thorough approach to his 

judicial work. 

I just wanted to point out that I happened to see the Legal 

Times, two issues, June 21 of this year and July 16, and I would 

call to your attention, Mr. Chairman, the fact that he has received 

applause, approbation, high praise on both sides of the aisle; for example, Eric Holder, Jr.; David Kendall; Joseph Sellers, who is a 

noted civil rights lawyer; Mark Tuohey, III, a former D.C. Bar 

president, and I could go on and on. This says something about the 

feeling and the sentiment that others have who have worked side 

by side with him and who have seen his work. He brings outstanding credentials educationally, through his experience both in 

the private sector and in the public sector, in the military, as well 

as in the community. 

He is here with his wife, Carol Ann Rhees, his daughters and his 

son, and I wonder if they might just stand. 

Senator EDWARDS. Welcome. We are glad to have you. 

Representative MORELLA. Imagine two partners, both being lawyers, and I have often said behind every successful man is a surprised mother-in-law. Well, I don’t think that that was the case in 

this situation. 

Mr. Chairman, I am confident that John Bates will perform his 

very important duties as a U.S. District Judge for the District of 

Columbia with the utmost integrity and fairness. With his past experience, his long record of service, his commitment and his judicial 

temperament, he will serve our Nation with honor. So it is my 

pleasure to present him to you. 

Thank you. 

Senator EDWARDS. Thank you very much. 

Congressman Vitter, thank you very much for your patience. 

PRESENTATION OF KURT D. ENGELHARDT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, BY HON. DAVID VITTER, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF LOUISIANA 

Representative VITTER. Absolutely, Mr. Chairman. Thank you 

very much for the courtesy of allowing me to be here and speak 

briefly. Because my two Senators have already outlined Kurt 

Engelhardt’s qualifications, I will be very brief and just hit a couple 

of high points. 

First of all, let me say I have known Kurt very, very well for 15 

years, and I couldn’t think of anyone I would rather be here on behalf of and anyone I could recommend more highly in terms of professionalism and professional capacity, in terms of intellectual capacity for the job, and most importantly to me in terms of personal 

integrity. I say that very sincerely, so I couldn’t recommend him 

more highly. 

I think there are two things about his background and resume 

which I would like to point out, and I won’t go through it exhaustively. You obviously have his resume and the Senators have 

touched on it more broadly, but I wanted to pinpoint two things. 

281

First of all, Senator Breaux mentioned something that is very 

important. He served on what is called the Louisiana Judiciary 

Commission, and for part of that service he was Chairman of the 

Commission. That is a body established under State law to deal 

with alleged ethical violations of State courts judges, and so obviously it is a very important and very delicate position. 

Kurt, by all accounts, by everyone’s account, handled himself 

really, really well in that capacity. First of all, he did the difficult 

work that had to be done, including recommending and following 

through on the censure of certain judges, even as he was a practicing attorney. As a former practicing attorney yourself, you can 

imagine that that is not an easy role to fill. He did that and made 

tough decisions, along with his fellow Commission members. 

But he also did something which hadn’t been done on the Commission before. He worked very proactively on a widespread education effort, reaching out to the judiciary, quite frankly to avoid 

problems from arising, nipping problems in the bud, educating the 

judiciary about all aspects of the Louisiana Code of Judicial Ethics 

so that problems would not arise and have to come to the enforcement stage. He gets very, very high marks in Louisiana on both aspects of that service, and I think that is very important in terms 

of his qualifications for a judgeship. 

The second thing I would point out is his very broad practice in 

the law and, as a result, his very broad-based support for this position. As you know, his file is full of very sincere recommendations 

from across the spectrum, Democrats and Republicans and folks he 

has met in every aspect of his practice—defense bar members, trial 

bar members, judges and others. I think that speaks very, very 

highly, a truly broad spectrum of support which in part recognizes 

his broad practice. 

I think that is also evidenced by the exceedingly smooth process 

his whole appointment has been. In every stage of vetting, whether 

it is the White House or the FBI or our two Democratic Senators 

or hearing from the local bar, there has been really unanimous 

praise and not even a speed bump along the way, which I think 

speaks very highly of him. He was the consensus choice by all of 

the folks in Louisiana whom the President asked for recommendations. He was the first choice for an Eastern District judgeship and 

he was immediately agreed to by our two Democratic Senators. 

So those are some highlights. I thank you for your courtesy and, 

of course, I encourage you to move as expeditiously as possible on 

his nomination. 

Thank you. 

Senator EDWARDS. Thank you very much, Congressman Vitter. 

Congresswoman Norton, welcome. We are honored to have you 

here. 

PRESENTATION OF JOHN D. BATES, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF COLUMBIA, BY HON. ELEANOR HOLMES NORTON, A DELEGATE IN CONGRESS FROM 

THE DISTRICT OF COLUMBIA 

Delegate NORTON. Thank you very much, Mr. Chairman. I am 

here to recommend to you John Bates for the United States District Court for the District of Columbia. I am here because it is our 

282

district court, but the District of Columbia has no Senators. I will 

call that anomalous, to be polite about it. 

President Clinton granted me senatorial courtesy. The Chairman 

of this Committee has agreed to consult with me on all nominees 

for the district court in my district, and I am very pleased to say 

that the White House has agreed to do that as well. 

It is in that capacity that I was asked to meet with Mr. John 

Bates and became impressed with him. He is now associated with 

a major law firm in this city. What recommends him best as far 

as I can see to you is his experience, Mr. Chairman, as a trial lawyer, something I think you will understand is important if one is 

going to be a district court judge. One wonders if one is even qualified to be a district court judge if the lawyer has not been a trial 

lawyer. 

Mr. Bates is essentially a career United States Attorney. He 

spent 17 years in the office of the United States Attorney here in 

the District of Columbia, trying a broad variety of cases so well 

that he rose to be Chief of the Civil Division of the U.S. Attorney’s 

office. 

He was detailed for a couple of years to the Independent Counsel’s office while still at the U.S. Attorney’s office, and won high 

marks there for balance and impartiality. He is well regarded by 

the bar of this city, for example, as Chairman of the Litigation Section of the Federal Bar Association. He serves on the board of directors of the Washington Lawyers Committee for Civil Rights 

Under Law. He is well educated, a B.A. from Wesleyan, a noted 

editor of the Maryland Law Review, Order of the Coif. 

This is a well-qualified nominee, Mr. Chairman. I am pleased to 

support his nomination. 

Senator EDWARDS. Thank you very much, and I thank my colleagues. Your support of these nominees is very helpful to us. We 

appreciate your comments and appreciate your testimony. We are 

honored to have you with us. 

Could I ask, when of this panel has left, all the nominees to come 

forward, please? 

If you would stand, please, and raise your right hand? 

Do you swear 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 HARTZ. I do. 

Mr. ENGELHARDT. I do. 

Mr. BATES. I do. 

Judge JOHNSON. I do. 

Ms. FREEMAN. I do. 

Senator EDWARDS. Judge Hartz, would you remain, and if the 

rest of the panel would step back for now? 

Judge WELCOME. We are happy to have you here. We heard the 

testimonials from those who came before you who obviously have 

a very high opinion of you, and you have a very impressive file. 

Let me ask you first whether you have an opening statement and 

whether you have members of your family that you would like to 

introduce for us. 

283

STATEMENT OF HARRIS L. HARTZ, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE TENTH CIRCUIT 

Judge HARTZ. Thank you very much, Mr. Chairman. I do not 

have an opening statement. I just wanted to thank you for conducting this hearing today in the extraordinary circumstances facing the country. I am very grateful to Senator Domenici and Senator Bingaman for their kind words and their support. 

If I may introduce my family, my wife, Debby—

Senator EDWARDS. And ask them to stand, if you don’t mind. 

Judge HARTZ. Please stand. 

My son, Andrew, and my mother, Mrs. Hartz. 

Senator EDWARDS. Good afternoon, and welcome. I know you all 

are proud to be here and I know how proud you are of your husband, father and son, and we are glad to have him here. 

[The biographical information of Judge Hartz follows.]

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Judge let me start by asking you just a few questions. As you 

well know, there is a substantial disagreement about how some of 

the broad guarantees that are embodied in our Constitution, like 

equal protection and freedom of speech, are to be interpreted. 

Some judges believe that the constitutional provisions stand for 

principles or values, and that judges should have some leeway or 

discretion in interpretation of those provisions. Others think that 

that kind of approach gives judges too much discretion. 

I just wonder if you can tell me generally what your feeling is 

about that issue. 

Judge HARTZ. Well, as a member of the New Mexico Court of Appeals, and I hope as a member of the Federal court, my duty would 

be to follow the approach taken by the United States Supreme 

Court. They have the very difficult decisions you are talking about, 

but the role of any inferior judge would be simply to apply the laws 

set forth in opinions of the U.S. Supreme Court. 

Senator EDWARDS. Can you tell me whether you have a view in 

terms of your judicial approach about protection of privacy in cases 

like Roe v. Wade and Griswold v. Connecticut? 

Judge HARTZ. My approach as a judge would be to apply the decisions by the United States Supreme Court to the best of my ability. 

Senator EDWARDS. And what about the same issue with respect 

to equal protection, particularly in the context of race? Do you have 

any particular approach to that? 

Judge HARTZ. I think all of us in this country feel very strongly 

about racial discrimination and oppose that, and that is the way 

the United States Supreme Court has been ruling for the most 

part. But in any event, I feel committed to apply the decisions 

handed down by the United States Supreme Court. 

Senator EDWARDS. I noticed in looking at a note that you had 

written while you were—I guess you edited it, a note while you 

were at Harvard Law School, where you said, and I am quoting you 

now, ‘‘Equal protection is about the elimination of stigmatizing 

State action.’’ Does that remain your view today? 

Judge HARTZ. If that is the one I—I assume that is the case note 

on Palmer v. Thompson. 

Senator EDWARDS. I don’t have the citation here, so I don’t know. 

Judge HARTZ. I expect that is the case. As the editor, I am not 

responsible for writing the language. 

Senator EDWARDS. I understand that. 

Judge HARTZ. My friend, Peter, Bombush, who is an attorney 

here in town, is the author of that, and I would just be there to—

my role would be to make sure that it is properly analyzed. We 

would discuss matters, but those would represent his views, not 

mine. So I don’t remember that particular sentence, I am afraid, 

in any event. 

Senator EDWARDS. That is actually not surprising. Having been 

involved in writing and editing law review notes, I don’t remember 

anything that was in them. That probably says good things about 

you. 

One of the questions that was on the judicial questionnaire had 

to do with the issue of judicial activism, and I think I am quoting 

your answer now. You said, ‘‘Every judge must always keep in 

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mind that the judiciary is just one branch, the non-political branch 

of government.’’ With that comment in mind, could you tell me what your view 

is about recent Supreme Court decisions? The New York Times 

has—I am quoting the New York Times now—has said that the 

present Supreme Court has ‘‘struck down more Federal laws per 

year than any Supreme Court in the last half century.’’ Do you have any view with respect to that? 

Judge HARTZ. In my work as a judge, I always employed a very 

strong presumption in favor of the constitutionality of legislative 

enactments, and I think that general presumption is applied by the 

United States Supreme Court, also. But to the extent that the U.S. 

Supreme Court has ruled statutes unconstitutional and applied certain doctrines to strike down those statutes, a member of any inferior court would be obligated to do the same. 

Senator EDWARDS. Cass Sunstein, who is a well-known law professor—I don’t know if you are familiar with him or not. 

Judge HARTZ. I am familiar with the name. 

Senator EDWARDS. He wrote in the Times that we are now in the 

midst of a remarkable period of right-wing judicial activism. Do 

you agree with that statement? 

Well, let me ask it another way. Let me ask it a little more innocuously. 

Judge HARTZ. Thank you. 

Senator EDWARDS. Do you personally have some explanation for 

why there has been such a high invalidation rate over the last few 

terms of the Court? 

Judge HARTZ. I hadn’t thought about that. I am sure a lot of new 

doctrines in law usually come about because academics and others 

think about policy issues and write about it, and eventually it 

seeps its way into the judiciary. But I don’t have a theory behind 

it, no, Mr. Chairman. I am sorry. 

Senator EDWARDS. For years, the prevailing view seemed to be 

that the sovereignty of States—this is on the issue of federalism— received enough protection from the political process from the influence of governors and Senators, for example, so courts didn’t need 

to intervene to try to protect State authority. It seems that the 

present Supreme Court has rejected that view. 

Do you have a view about whether the—or what is your sense— I guess I will ask it that way—about whether the political process 

is adequate to protect States’ rights? 

Judge HARTZ. Again, I said I think it is important for the judiciary to be very deferential to the legislative branch. I don’t think 

it would be appropriate for a lower court judge to comment on the 

propriety of what the Supreme Court has done in that area. I don’t 

know that I can say more about that. 

Senator EDWARDS. Let me ask you, if I could, Judge, about—we 

have looked at some of the opinions you have written on the New 

Mexico Court of Appeals. They are well-reasoned and well-written, 

I might say, first of all. 

Judge HARTZ. Thank you very much. 

Senator EDWARDS. You have got a strong body of work, but in 

some of the opinions that we have seen—some of the opinions were, 

of course, majority opinions and some were your opinions as disVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00341 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.001 SJUD4 PsN: CMORC
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sents. There were six dissents that you listed in constitutional 

cases. I looked at each of those and in all six of the dissents, if I 

understood them correctly—this is what I want you to comment 

on—you seem to argue that the majority of the court made a mistake in finding that the government had violated an individual’s 

constitutional rights. In other words, the majority found there was 

a violation and you did not believe there was a violation. 

Can you comment on that in terms of anyone who might have 

a concern that that was an indication that you had a view that was 

out of the mainstream on that particular issue, which is an issue 

that is obviously one that we think is critically important? 

Judge HARTZ. I think someone familiar with my entire body of 

work would not find me to be at all out of the mainstream, and 

some of my dissents in areas have been maybe not formally, but 

in practice adopted in our court. I know I wrote some dissents in 

speedy trial cases where I thought New Mexico courts had gone beyond what other jurisdictions had done, and my impression has 

been that the decisions of our courts in recent years have been 

more in line with the approach I took in my dissents, although I 

wasn’t that far removed from what the majority said. 

If you look at the opinions I have written in criminal cases where 

the supreme court has reversed, I think you will find that in two 

of those cases my opinion was in favor of the defendant and the 

supreme court reversed in favor of the government. And of the 

other two, one was really procedural where my opinion, the opinion 

I wrote for the court, we said that the issue should be resolved on 

remand—or not on remand—there should be a hearing on whether 

the attorney had provided the defendant adequate representation. 

But—

Senator EDWARDS. In a couple of—excuse me. 

Judge HARTZ. I am sorry, sir. 

Senator EDWARDS. No. I am sorry. I don’t want to interrupt you. 

I apologize. 

Judge HARTZ. I am through. 

Senator EDWARDS. Okay. There were a couple of the opinions 

that did deal with speedy trial, and then there were a couple that 

appeared to deal with the issue of double jeopardy. One was New 

Mexico Taxation and Revenue Department v. Whitener. Do you remember that case? 

Judge HARTZ. Yes. 

Senator EDWARDS. And another was the State v. Gaddy case, 

which apparently had to do with habitual offender sentencing enhancement. 

Judge HARTZ. Yes. 

Senator EDWARDS. Can you just comment on those cases? It appears that in the New Mexico Taxation and Revenue Department 

case the supreme court rejected your view, although only by a fiveto-four vote. 

Judge HARTZ. Yes. My decision in Whitener was wrong. In that 

case, I was trying to interpret U.S. Supreme Court decisions on 

double jeopardy in the context of a forfeiture. And the U.S. Supreme Court, when it addressed the issue in the same type of statute as involved in Whitener, changed its analysis completely. Its 

prior analysis was not workable, so I don’t feel too bad at having, 

331

I have to admit, goofing in that case because I was trying to figure 

out what they would rule. 

Senator EDWARDS. Hard work sometimes, isn’t it? 

Judge HARTZ. Yes. In Gaddy, I still think I was right in that 

case. 

Senator EDWARDS. And then there were a couple of cases that 

had to do with—State v. Vasquez was one of the cases you listed, 

which had to do with the court granting a motion to suppress based 

on the Fourth Amendment. 

Judge HARTZ. Yes. 

Senator EDWARDS. And you found no violation. Would you like to 

comment on that? Do you remember the case? 

Judge HARTZ. Is that the case involving Border Patrol agents? I 

am sorry. 

Senator EDWARDS. I can’t tell from what I have here. 

Judge HARTZ. I can see someone nodding, yes. I don’t think I differed from the court in whether there was a violation or not. I 

think the majority agreed that there was no violation of the Federal Constitution. The question was whether the U.S. Border Patrol 

officers had violated the State Constitution of New Mexico, and if 

so what remedy there would be. 

And my opinion was—and, again, I am afraid I still think I was 

right—was that the New Mexico constitution did not control the 

conduct of U.S. Border Patrol agents. The New Mexico constitution 

did not control the conduct of United States Border Patrol agents 

at a Border Patrol checkpoint in New Mexico. That is where I differed, and then the question was whether suppression would be appropriate. 

Senator EDWARDS. Two other areas I want to ask you about very 

quickly. We are in the midst in the Congress now of obviously dealing with the events of September 11 and the aftermath, and trying 

to make sure that the Attorney General has the necessary tools to 

fight this war on terrorism which we all as Americans feel very 

strongly about. In fact, we just passed the bill in the United States 

Senate just before I came over here. 

There is little doubt in any of our minds that there will probably 

be constitutional challenges to some of the provisions of the 

antiterrorism legislation that we just passed. There has been a fair 

amount of history in this country where the courts have taken different roles at different times with respect to the protection of civil 

liberties in the context of war time situations. 

Can you just comment on that for me and sort of tell me what 

your perspective is on that? 

Judge HARTZ. My involvement in that issue goes back a long 

ways because when I was in law school, I was the developments 

editor of the Harvard Law Review and the president of the Review, 

and I decided that the developments issue would be on national security and civil liberties. I was the editor of that, so again I did not 

write material in that developments issue of a couple hundred 

pages. 

Basically, the reason for having that work as a couple hundred 

pages, as I think I said, was because there hadn’t been an overall 

analysis of the issue in any legal journal, and we felt we could add 

some perspective to the issue, to a lot of related issues. And a point 

332

made in that developments issue was courts, and the political 

branches as well, need to be very careful about infringing on civil 

liberties in the name of national security. 

There are very important interests of protecting our Government 

and our way of life, but we shouldn’t jump hastily to remedies that 

may infringe civil liberties, and I think that approach should guide 

any judge and any Senator and any Member of Congress in addressing the issue. 

Senator EDWARDS. I agree with that. 

Let me ask you one last question. Can you identify for me two 

or three Supreme Court opinions over the years that you have 

found to be particularly important, well-written, well-reasoned, 

that you think have made a real impact on the country? What are 

your favorites? That is really what I am asking. 

Judge HARTZ. Well, some of my favorites are not the most important. One of my favorites last term was an eight-to-one decision by 

Justice Breyer in Illinois v. McArthur because it adopted essentially the views in my law review note of 30 years earlier. But I 

don’t think anyone would say that is a very important case. 

Senator EDWARDS. It is important to you. 

Judge HARTZ. Yes. 

The most important cases in my lifetime would be Brown v. 

Board of Education, certainly, for obvious reasons. That has been 

so important to the Nation. Mapp v. Ohio— Senator EDWARDS. Did you think Brown was a well-reasoned 

opinion? 

Judge HARTZ. I have not read Brown recently and I have heard 

some people criticize its rambling, and so on, but sometimes being 

best-reasoned is not necessarily the best opinion. There were very 

important political issues there and Chief Justice Warren had to 

work together, get a unanimous Court and try to explain the importance of this issue to a lot of people in the country who didn’t 

believe that way. So I would not fault it if it were not as tightly 

reasoned as one would try to make one’s own opinions as a judge. 

Senator EDWARDS. And you were about to identify another opinion. 

Judge HARTZ. One where you certainly couldn’t say—I think it 

is extremely important—well, I mentioned Mapp v. Ohio, and that 

was very important because it increased judicial supervision of the 

law enforcement community in the States. 

And one that I don’t think you could say is well-reasoned because 

there were so many opinions, but the Pentagon Papers case was extremely important in establishing the high regard the First Amendment has in our political system. 

Those would be the ones I would think would be the most important ones in my lifetime. 

Senator EDWARDS. Judge, thank you very much. We appreciate 

your testimony. I actually got a telephone call about 10 minutes before I walked over here from someone in North Carolina who was 

a strong supporter of yours. 

Judge HARTZ. That is nice to hear. 

Senator EDWARDS. You are obviously held in high esteem by a lot 

of people and I think you will make a terrific member of the bench. 

So thank you for being here. 

333

Judge HARTZ. Thank you very much. 

Senator EDWARDS. Judge Hartz, you are free to go if you would 

like. You are more than welcome to stay if you would like, too. But 

we have finished your portion of the hearing, so you are free to go 

if you would like. 

Judge HARTZ. I think will leave, then. 

Senator EDWARDS. Absolutely. 

Now, if we could have Mr. Bates, Mr. Engelhardt, and Judge 

Johnson, please. 

Mr. Engelhardt, we will start with you. Do you have either an 

opening statement or members of your family or friends you would 

like to introduce? 

STATEMENT OF KURT D. ENGELHARDT, NOMINEE TO BE 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA 

Mr. ENGELHARDT. Thank you, Senator Edwards. I have no opening statement, except to thank the Committee, and in particular 

Senator Leahy, for allowing me this opportunity to attend the hearing, and to thank you for being here today to Chair the hearing. 

I also want to thank Senators Breaux and Landrieu for their remarks earlier today, and Congressman Vitter for his kind remarks 

as well. 

My guest is my wife, Ann, who is seated directly behind me. 

[The biographical information of Mr. Engelhardt follows.]

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With that, I will defer to the next nominee. 

Senator EDWARDS. Well, thank you, and we welcome Ann. We 

welcome you to Washington and to this hearing. 

Mr. Bates? 

STATEMENT OF JOHN D. BATES, NOMINEE TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF COLUMBIA 

Mr. BATES. I have no opening statement, Mr. Chairman. I would 

like to thank the Committee and you for having us here today, affording us this opportunity especially in these extraordinary times, 

and thank Chairman Leahy as well for the work that he is doing. 

I have a few introductions, if I might—

Senator EDWARDS. Please. 

Mr. BATES. —in addition to thanking, of course, Congresswoman 

Morella and Congresswoman Norton for their kind introductions 

today. 

My wife, Carol, is with me, as well as my three children, who 

were introduced earlier. 

Senator EDWARDS. Why don’t they stand? 

Mr. BATES. In reverse chronological order: Kelly, a freshman at 

Walt Whitman High School. 

Senator EDWARDS. Now, you are going to have to tell us who is 

who. This is Kelly. Your wife is telling us. 

Mr. BATES. My son, Brian, who is a senior at Walt Whitman 

High School, and my daughter, Lauren, who flew down from New 

Hampshire where she is a junior at Dartmouth. I am most proud 

of all of them and happy to have them with me today. 

Senator EDWARDS. Welcome. We are happy to have you all here. 

Mr. BATES. I also have a few other family members. My brother, 

Richard D. Bates, Jr., is here. He is a professor of chemistry at 

Georgetown University, and his two children, my nephew, Spencer, 

who is a senior at Northwestern University, and my niece, Dunlea, 

who is a junior at Bethesda–Chevy Chase High School. 

Senator EDWARDS. Are they all here? 

Mr. BATES. They are here. 

Senator EDWARDS. Would you all please stand? Come on, you can 

stand. Welcome. We are glad to have you here, too. 

Mr. BATES. I have a number of friends here from my law firm, 

as well as Neille Russell, who will be working with me, I hope, if 

the Senate sees fit to confirm me. And I am very happy to have 

them here as well. 

Senator EDWARDS. Thank you, Mr. Bates, very much. 

[The biographical information of Mr. Bates follows.]

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Judge Johnson? 

STATEMENT OF WILLIAM P. JOHNSON, TO BE DISTRICT 

JUDGE FOR THE DISTRICT OF NEW MEXICO 

Judge JOHNSON. Mr. Chairman, I am very honored to be here 

today. I don’t have any formal remarks other than to say I thank 

Senator Leahy and I thank you for chairing me this Committee and 

affording me the opportunity to be here. I am also very grateful 

and honored for the support of Senator Domenici and Senator 

Bingaman. 

As far as my guests today, my wife, Loretta, is here. 

Senator EDWARDS. Welcome, glad to have you. 

Judge JOHNSON. Because of the time and distance and school 

commitments, our four children could not travel with us from New 

Mexico. But my mother and father, John and Shirley Johnson, are 

here. 

I might add that all my mother’s relatives hail from Salisbury, 

North Carolina. So, Mr. Chairman, Salisbury was my home away 

from home growing up. 

Senator EDWARDS. You have got a leg up already, I will tell you 

that. 

[Laughter.] 

Judge JOHNSON. My brother, John, he is an attorney in Roanoke, 

Virginia. He could not be here today, but I am very honored that 

my brother-in-law, Errol Chavez, is here. Errol is the special agentin-charge of the San Diego field office for the Drug Enforcement 

Administration. 

[The biographical information of Judge Johnson follows.]

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Senator EDWARDS. Terrific, terrific. Welcome. Thank you for 

what you are doing. Well, thank you all. Thank you for being here. 

Most of these questions will be directed to all three of you, so we 

will just ask you each to comment on them. 

As all three of you know, I am sure, for years Federal judges had 

a wide discretion in sentencing criminal defendants, and that discretion has been fairly severely limited through the Sentencing 

Guidelines, although they do continue to have the authority in extraordinary circumstances to make changes. 

I would just like for each of you, if you would, to comment on 

how you perceive the responsibility of a Federal district court judge 

should play out in trying to deal with the tension between fairly 

restrictive sentencing guidelines and a need you may feel in an individual case to deal with the particular circumstances of the case. 

Judge why don’t we start with you? You obviously have some experience in this area. 

Judge JOHNSON. Well, Mr. Chairman, from, I guess, a personal 

standpoint, I like the idea of having, you know, the guidelines, and 

I believe they came about because of, you know, wide discrepancies 

in sentencing that were being handed down by Federal district 

judges. And certainly what could be a light sentence in one area 

of the country, another area could be, you know, a very lengthy 

sentence. So I think the uniformity is good. 

I am in a jurisdiction where there are for some offenses mandatory minimums that the legislature has enacted, and quite frankly 

I think that is good. It tends to promote more uniform, you know, 

and consistent sentencing patterns, and I think overall that is 

good. 

And I would certainly have no difficulty in following the Sentencing Guidelines, although, again, I haven’t, you know, been in 

the Federal system. But as I understand, there are procedures for, 

you know, departing either upwards or downwards based on factors 

that are set forth in the Guidelines. 

Senator EDWARDS. Thank you very much, Judge. 

Mr. Bates? 

Mr. BATES. The Sentencing Guidelines are obviously an important issue, and they sprang from very important considerations 

that Congress took into account. And they don’t always play out 

perfectly in every instance, I am sure. I would attempt, if confirmed as a district judge, to apply them under the rule of law, consistent with what is required as enacted, but certainly bringing to 

bear where I could my desire to have fair, impartial justice administered through the criminal justice system. 

Senator EDWARDS. Mr. Engelhardt? 

Mr. ENGELHARDT. Yes. Mr. Chairman, I would echo my colleagues’ comments and I would point out, too, that I have had the 

opportunity to discuss the Sentencing Guidelines with some of the 

members of the bench in my jurisdiction and they seem to believe 

that the uniformity that has come about as a result of them is 

something that is very desirable on their behalf. 

As you pointed out, they do afford some departure one way or the 

other in certain limited circumstances, and I think it is important 

that the judge have the discretion within the Guidelines. And from 

what I have been told by judges in my jurisdiction, they believe 

465

that that discretion is something that affords them the degree of 

flexibility that they like. 

Senator EDWARDS. Okay, thank you very much. 

In Griswold and Roe v. Wade, the U.S. Supreme Court found 

that there was a constitutional right to privacy. I have a couple of 

questions related to that. 

First, do you believe there is a constitutional right to privacy? 

Second, do you believe that constitutional right to privacy includes 

a woman’s right to have an abortion? 

Judge Johnson? 

Judge JOHNSON. Senator, Roe v. Wade, Griswold v. Connecticut, those Supreme Court cases—that is well-settled precedent. Roe is 

almost approaching 30 years. I believe Griswold was decided in 

around 1965 or 1966. 

Senator EDWARDS. In the 1960s, yes. 

Judge JOHNSON. But, again, you know, they were part of a line 

of cases dealing with the privacy rights and it is well-settled precedent. And if I am confirmed to be—fortunate enough to be confirmed by the United States Senate, then I would certainly follow 

that binding and controlling Supreme Court precedent. 

Senator EDWARDS. Thank you, Judge. 

Mr. Bates? 

Mr. BATES. I agree with Judge Johnson. It is well-settled precedent. Privacy rights have been identified in a number of contexts 

by the Supreme Court, and as a district judge I would certainly 

abide by the rulings of the Supreme Court and follow them very 

faithfully. 

Senator EDWARDS. Mr. Engelhardt? 

Mr. ENGELHARDT. Yes. Mr. Chairman, I also agree that it is wellsettled law; both of those cases are well-settled law. I think the Supreme Court has cited those cases in opinions that have followed 

over the years, and I would have no qualms or reservations certainly about applying those concepts were I to be confirmed on the 

district court level. I would certainly apply those to the letter and 

the spirit in which they have been rendered by the U.S. Supreme 

Court. 

Senator EDWARDS. Thank you all. 

As you all know very well, we have had a real problem with Federal judges having huge caseloads. While nobody understands better than you and I how important it is for individual cases to get 

the attention they need and they deserve, it is also true that when 

justice is delayed, it is justice denied in many cases. It is important 

for these cases to move. 

I wonder if I could get each of you to sort of tell me what your 

view, your perspective is on how you balance the need to move 

cases, particularly given the caseloads that Federal judges carry 

today, against the need to have each case receive the attention that 

it deserves. 

Judge JOHNSON. Senator, I have got, I guess, a little bit of experience in the State court system. In my court, we have a very high 

criminal caseload and I know some of the procedures I have used. 

I mean, I have gotten a case to the jury on a Wednesday afternoon, 

and then while the jury is deliberating Thursday morning I will 

start the next case. 

466

So I mean part of it may mean, you know, burning the midnight 

oil and having the lawyers, you know, get the case tried. I think, 

again, docket control, the use of techniques such as trailing dockets—and I am sure from your days as a litigator, you know, you 

probably didn’t like if you had cases set on a trailing docket. But 

that avoids a situation where if the case settles right in advance 

or if there is a plea in a criminal case, then there is another case 

to step up and to move it. So, you know, there are ways you can 

do that. 

In the civil cases, again, you know, you give the attorneys 

enough time to do the discovery and get the case, but don’t grant 

continuances. Lots of times, you know, a firm trial setting is the 

best way for a case to get resolved or to get settled. 

In New Mexico—and certainly the work that this Committee is 

doing by having the confirmation hearing last week of the other 

nominee from New Mexico, and certainly giving me an opportunity 

to have a confirmation hearing—in New Mexico, the United States 

District Court, according to the Administrative Office of the Courts, 

has the third highest caseload per judge of any Federal district in 

the Nation. 

A lot of that is attributable to increased caseload in Las Cruces, 

and it is border-related activity. But the current judges now—you 

know, they are extensively using senior judges. We also—and, 

again, this is what I understand; a lot of districts don’t do this, but 

the Federal magistrates a very valuable there. 

They are involved in the rotational assignment on civil cases, so 

they are assigned a civil case. And, of course, if a party wishes to 

have an Article III judge hear the case, then they can strike the 

magistrate. But the Federal magistrates in our district, many of 

them have former experience as State judges. 

Senator EDWARDS. Magistrates are trying jury cases? 

Judge JOHNSON. They are trying jury in civil—

Senator EDWARDS. With the consent of the parties? 

Judge JOHNSON. With the consent of the parties, and many times 

the parties, you know, will consent to that because otherwise they 

are going to get a quicker trial setting. 

Senator EDWARDS. Do you have any particular techniques to get 

cases settled? Alternative dispute resolution—do you involve yourself in that process? What is your approach to that? 

Judge JOHNSON. In a State court system, I do a lot of civil mediation for—I am in an 8-judge district, and obviously I don’t think 

it is appropriate for a trial judge to mediate the case that is pending before him. 

Senator EDWARDS. They do it all the time. 

Judge JOHNSON. They do. I don’t. 

[Laughter.] 

Senator EDWARDS. In my experience, they do. 

Judge JOHNSON. My colleagues, they will refer cases to me. We 

mediate cases for one another, particularly on the civil cases. 

Senator EDWARDS. But generally speaking, you don’t mediate 

and get involved in the mediation if you are going to actually try 

the case? 

Judge JOHNSON. I don’t think it is right because the mediation 

techniques that I use—basically, there is an order entered by the 

467

judge, say, if I am the mediator. Both sides have to submit a confidential settlement paper where they lay their cards out on the 

table. I don’t let the attorneys see what the other side is presenting, but as a mediator it helps me to see if there are some 

areas where I can push the parties toward mediation and then I 

kind of do some shuttle diplomacy and go back and forth. So with 

that kind of disclosure, I personally feel it is inappropriate for the 

trial judge, you know, to have that information ahead of trial. 

Senator EDWARDS. I agree with that. 

Judge JOHNSON. But we have gotten a lot of cases settled that 

way. There is mandatory mediation in the Federal courts, and I 

think that is good. The only reservation I have about that is, you 

know, some cases—I mean, you can force the parties to go to mediation, but there are just some cases that aren’t going to settle. So 

I think you need to get a sense from the attorneys whether or not 

it is a waste of time. 

Senator EDWARDS. Sure. 

Mr. Bates, same issue. How do you balance the need to move 

cases with the heavy caseload? Also, the second question: Do you 

have ideas about how you can participate and be involved in helping cases get resolved? 

Mr. BATES. I think that participation is very important. A district judge needs to be a participant in the management of the 

cases and to come up with ideas, but also prompt the parties to 

move things. 

It is fortunate in the district court that I have been nominated 

for that there are some very valuable tools available. There are excellent magistrate judges for part of the process, not just to try 

some cases with the consent of the parties, but also in handling 

discovery issues and other things along the way in cases. 

Also, there is a mediation program that I think is very valuable 

to the court, using local practitioners to try to resolve cases as impartial mediators or early neutral evaluators. And I would certainly expect to use all the tools available to me, but the primary 

one is probably hard work. I think a judge needs to be very aggressively involved in prompting the movement of cases towards speedy 

resolution. 

Senator EDWARDS. I agree with that. Thank you, Mr. Bates. 

Mr. Engelhardt? 

Mr. ENGELHARDT. Yes. Senator, we have in my jurisdiction a 

very strong magistrate system that I find greatly aids in the discovery process. An issue is joined, trial dates are assigned and cutoff dates are assigned promptly. Cases are moved through, with the 

help of the magistrates on discovery type of issues, and trial dates 

are honored. 

As a matter of fact, some of the attorneys in my area, in the New 

Orleans area, don’t enjoy practicing in Federal court for that reason. However, I as a practitioner have always enjoyed that and 

have found it to give a lot more certainty to the process. And I 

think it cuts down on a lot of the more expensive aspects of litigation because it forces the parties to fine-tune the issues very, very 

promptly in the litigation. 

With regard to trying to resolve cases, I think that one of the 

things that district court judges should do is to try to mediate each 

468

other’s cases, and I guess this goes back to something that Judge 

Johnson mentioned in his State jurisdiction. 

We have magistrates in my jurisdiction that do mediate cases, 

where the judge refers the case to the magistrate for that purpose. 

But I think it is also important—if the parties feel more comfortable with a district judge mediating the case, I, if confirmed, 

would be willing to do that for other members of the bench because, as was indicated earlier, a lot of parties don’t want the 

judge—especially if it is not a jury trial, don’t want the finder of 

fact exposed to the arguments of counsel and perhaps some evidence that may or may not be admissible once you get to trial. 

But I think that in my jurisdiction we have got a good record of 

moving cases forward, and I certainly want to uphold that, along 

with the system that our clerk of the court has developed and that 

our judges have employed up to this point. 

Senator EDWARDS. Well, I want to say thank you to all of you. 

You all come with impressive backgrounds. You are obviously held 

in high esteem by your colleagues. Your family friends who are 

here and your family and friends who are not here should take 

great pride in the service you have provided and the service you 

are going to provide to your country. 

On a personal note, I would hope that when you are confirmed, 

as I believe you will be—Senator Hatch has just appeared and he 

may want to ask a question or two—when you are sworn and you 

begin your service, the need to move cases, which we all know is 

important—it is also critically important that everybody get their 

day in court and that everybody be treated exactly the same. It is 

something that I personally feel very strongly about, the little guy 

having a fair chance and a fair day in court. So I am confident from 

what I have heard from all of you and from all the wonderful 

testimonials and testimony that we have had about you that all 

three of you will do that. 

Senator Hatch, did you want to make a comment or ask questions? Welcome, we are glad to have you here. 

Senator HATCH. It is nice to be with you, Senator Edwards. 

Let me just make a comment because I believe all three of these 

gentlemen are tremendous candidates and nominees. I have done 

a lot of checking and I have done a lot of work on it, and I just 

want to compliment each of you for being willing to serve because 

I know it is a sacrifice to serve on the Federal bench. It is not only 

a sacrifice of time and effort, it is a sacrifice for those of you who 

are as successful as you have been to go on the bench and frankly 

make less than a number of first-year law review graduates. 

If it was money, we probably wouldn’t serve, if that were the 

issue. The issue is service to our country, and I don’t know of any 

branch of service in this country that does more to save and preserve and protect the Constitution of this country than the judicial 

branch. So I just want to personally thank each of you for being 

willing to serve, and I am going to support you and hopefully we 

can get you through as quickly as we can. 

Thank you, Senator Edwards. 

Senator EDWARDS. Thank you, Senator. 

Thank you all very much for being here. 

Judge JOHNSON. Thank you, Mr. Chairman. 

469

Mr. BATES. Thank you, Mr. Chairman. 

Mr. ENGELHARDT. Thank you, Mr. Chairman. 

Senator EDWARDS. You are free to go, if you would like. 

Ms. Freeman, if you will come up, please. 

Do you have either an opening statement and/or members of 

your family and friends you would like to introduce? 

STATEMENT OF SHAREE M. FREEMAN, NOMINEE TO BE DIRECTOR OF THE COMMUNITY RELATIONS SERVICE, DEPARTMENT OF JUSTICE 

Ms. FREEMAN. I have an opening statement. My family is not 

here, but I claim the rest of the room. They are all my supporters 

and I thank them for coming. 

Senator EDWARDS. We are glad to have them and we will be 

happy to hear from you. 

Senator HATCH. It looks like a suspicious bunch to me. 

[Laughter.] 

Ms. FREEMAN. Mr. Chairman and Senator Hatch, good afternoon, 

and thank you for scheduling this hearing in view of the pressing 

matters that confront this Nation as we proceed forward from the 

tragedy of September 11. Please also allow me to extend my humble and sincere thanks to Senator Warner and Chairman Hyde for 

their kind and gracious words. 

That I sit before you here today to be considered for the position 

of the Director of the Community Relations Service is a testament 

to the dreams and struggles that so many of you embraced in the 

1950s and 1960s. I wish that my parents were alive to see this day. 

They played a definitive role in leading me to the path of public 

service. 

Before the United States Supreme Court rendered its opinion in 

Brown v. Board of Education, Ralph and Leona Freeman were 

overcoming and surviving racial prejudice and discrimination. My 

father, a John F. Kennedy devotee, would often echo the President’s inspirational words and remind my older brother, Rene, and 

myself that the world and times were changing. 

He would pat my head and say, ‘‘Let the word go forth from this 

time and place to friend and foe alike that the torch has been 

passed to a new generation of Americans, born in this century, 

tempered by wars past, disciplined by a hard and bitter peace.’’

At 6 years of age, his words resonated, but were not clear. As I 

matured, I held tightly to his dream of a new generation committed 

to service to this country. My father died when I was 7 and left 

a young widow to raise two children in a world that practiced segregation, from the water fountains to the restrooms and everyplace 

else in between. 

My mother worked as a transit clerk for the New York City subway, and cleaned homes after hours to ensure that I could attend 

parochial elementary and high schools. Sometimes, I tagged along 

with her. Though my mother’s highest academic achievement was 

a GED, she used to press wrinkled dollars in my palm after a long 

day’s work and fervently whisper in my ear, ‘‘This is for college.’’

My mother also made time to be active in and about the community, particularly in Birmingham, Alabama, where her family had 

its roots. When other children were attending swim meets and takVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00481 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.001 SJUD4 PsN: CMORC
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ing ballet lessons, it was not uncommon for my mother to take me 

and my brother to a freedom fight march. I grew up on the words 

of Reverend Martin Luther King. 

After attending a peaceful demonstration, we would gather at a 

relative’s home and talk about everything from politics to how a 

sit-in participant covers one’s head to avoid fatal blows if hit by a 

billy club of an over-zealous State trooper. 

While my mother had no delusions about the world in which she 

lived, she clung to her dreams of a better world for her children. 

She used to tell me, ‘‘You must be the change you wish to see in 

the world,’’ and then remind me that Gandhi was a fine example 

of practicing what you preach. 

I was already enrolled in college at St. Lawrence University 

when my mother died, but she left a legacy of service and hard 

work and a believe that I could accomplish anything. 

For me, this nomination is a crossroads and a culmination of a 

career devoted to public service. When attending Georgetown University Law School, I had the opportunity to intern in the Criminal 

Division for Roger Adelman, of the U.S. Attorney’s Office for the 

District of Columbia. I gleaned firsthand the nuts and bolts of 

interaction between metropolitan law enforcement and the interaction with Federal law enforcement. Never has such cooperation 

become more poignant as now, in the aftermath of September 11. 

After graduation, I had the privilege of clerking for Norma Holloway Johnson, in the U.S. District Court for the District of Columbia. This provided me the opportunity to observe some of the country’s finest trial lawyers in action. I had a bird’s eye view of the 

intricacies of civil practice, some of which included racial discrimination cases filed against Federal Government agencies. 

At the conclusion of my clerkship, I joined the Philadelphia district attorney’s office in 1982, prosecuting cases at the lowest level 

of the legal totem pole. I handled the regular fare of cases—theft, 

forgery, robbery, aggravated assault and sexual assault. 

For me, the highlight of this position was the opportunity to 

mentor the local high school students and serve as a manager for 

a fledgling victim witness assistance program. These positions allowed me constructive interaction with the community and local 

residents. 

Mentoring has been part of my personal life for a long, long time. 

I have mentored students from Philadelphia, to Anacostia High 

School, to California. These children have the sheer determination 

and guts to leave behind rough backgrounds and overcome tough 

personal hurdles and graduate from college, in some cases graduate 

school, land good jobs and start stable families of their own. 

In 1984, I joined the U.S. Department of the Interior as an attorney adviser for the Indian Division of the Solicitor’s Office. In the 

early 1980s, Indian gaming did not exist and resources were severely limited. Tribes and tribal members were struggling for selfpreservation and self-determination in harsh and very prejudiced 

environments. 

That these good people were treated with loathing and contempt 

was an eye-opening and unforgettable lesson for me. Every time I 

visited the West, I was given an American history lesson, a lesson 

taught by the other side, the Indian side. I learned of cultures 

471

steeped in history and enduring traditions that resisted assimilation, not out of pride, but out of a sense of preservation of customs 

and heritage. 

It was during my tenure at Interior that I first became acquainted with the Community Relations Service. The Washington 

magazine refers to CRS as ‘‘the pint-size agency with a world-class 

mission, rated as one of the seven best places to work in the Federal Government.’’ I worked closely with CRS regional offices regarding an Indian tribe and allegations concerning education-related discrimination against a group of Indian students. CRS came 

through with flying colors. 

Four years ago, I joined the House Judiciary Committee as a 

counsel for the full Committee, and was responsible for fair housing, ADA, hate crimes, racial profiling, voting rights, and a host of 

other civil rights issues. This position provided me with an opportunity to work on some of the most emotionally-charged and controversial issues that came before the Committee. I worked with a 

diverse group of people with even more diverse political views. 

It is indeed a special honor for me to be considered for this position. I extend my serious gratitude to the President and the Attorney General for the confidence and honor that they have bestowed 

upon me by selecting me to be the Director of the Community Relations Service. 

My personal thanks to Chairman Hyde and his chief of staff, 

Tom Mooney, for having faith in me and encouraging me to expand 

and explore my horizons. I thank the members from both sides of 

the aisle, the civil rights organizations, the minority community, 

and my family and friends for their patience and support. 

The Community Relations Service is an important cog in the Department of Justice and I am committed to its mission. From a Birmingham jail in 1964, the Reverend King wrote, ‘‘Injustice anywhere is a threat to justice everywhere. We are caught in an escapable network of mutuality, tied in a single garment of destiny. 

Whatever affects one directly affects all indirectly. We must maintain our vigilance in pursuit of justice.’’

Finally, Mr. Chairman, be assured that I recognize and fully appreciate the importance of working closely with you and your colleagues in Congress on issues and situations that impact the wellbeing of our constituents. If confirmed, I would be honored to serve 

as the Director of the Community Relations Service. 

I look forward to answering your questions. 

[The biographical information of Ms. Freeman follows.]

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Senator EDWARDS. Thank you very much, Ms. Freeman. That 

was a very impressive statement, and I can tell you that your 

mother and father would be very, very proud of you today. 

Ms. FREEMAN. Thank you, Mr. Chairman. 

Senator EDWARDS. Our Chairman has now arrived and I want to 

give him an opportunity to make a statement or anything he would 

like to say. 

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

FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you, Mr. Chairman. I am going to be 

here for about two minutes and then I am going to have to leave 

again. Senator Hatch and I have both been on the floor with the 

terrorism legislation and I need to return shortly. 

However, I just wanted to thank Senator Edwards. Senator 

Hatch and I and our staffs and everybody have been operating 

under strange situations in the last few days, everybody kind of 

crowding in my office, which is upstairs. We have one room that 

looks like a strange action central, with computers and wires and 

everything else hanging all over the place and everybody pushed 

together. 

Senator Edwards hasn’t been able to get into his office and Senator Hatch hasn’t been able to get into his in the Dirksen Building, 

and the Judiciary Committee staff hasn’t been able to get back to 

the Dirksen Building. I think it is a compliment to our staffs to be 

able to put together all the hearings today, because we could have 

very easily canceled all of this and everybody would have understood. I compliment the staffs on both sides of the aisle for working 

hard to get it put together, and Senator Edwards, who is operating 

everywhere he can find, anything from an empty phone booth to 

the cloak room. 

Senator EDWARDS. The car. 

Chairman LEAHY. And the car, that is right. As a matter of fact, 

I have seen you out there. So it has been a strange thing and I just 

came by to thank you and Senator Hatch for his cooperation in 

doing this so we could go forward with these hearings because otherwise they all would have had to be canceled, and with our schedule it would have been hard to get them back. So I thank you all 

very much. 

[The prepared statement of Senator Leahy follows:]

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF

VERMONT

I begin by thanking Senator Edwards for agreeing to chair this hearing involving 

judicial nominations. This is an extraordinary time in the Senate. Our Committee 

offices and hearing room have been unavailable to us for more than a week in the 

wake of Senate employees testing positive for anthrax exposure. Senator Edwards 

had not had access to his Senate office over that time. Nonetheless, the Judiciary 

Committee is seeking to proceed with this hearing today. 

This will be the eighth hearing involving judicial nominees since July 10 when 

the Committee membership was set. This will be the fourth hearing involving judicial nominees since the terrorist attacks on September 11 and the third hearing for 

judicial nominees this month. Since the Senate was allowed to reorganize, we have 

maintained a sustained effort to consider judicial and executive branch nominees. 

At this hearing we will consider four additional judicial nominees, including one 

for the Court of Appeals for the 10th Circuit, as well as the President’s nomination 

to head the Community Relations Service at the Department of Justice. 

503

This Committee has reported and the Senate has confirmed 12 judges so far this 

year, including four to the Courts of Appeals. The running total of 12 confirmations 

as of October 23 this year is well ahead of the pace in the first year of the first 

Bush Administration, when seven of President George H.W. Bush’s judicial nominations had been acted upon, and well ahead of the pace in the first year of the Clinton Administration, when by that date eight of President Clinton’s judicial nominees 

had been confirmed. 

Since July, we have already confirmed more Court of Appeals nominees than were 

confirmed during the first year of the Clinton Administration, more than were confirmed in all of 1996 and, for that matter, more Court of Appeals nominees than 

were reported by this Committee last year, when only three were reported all year. 

The Senate is only one Court of Appeals confirmation short of the total achieved 

in all of 1989, the first year of the first Bush Administration. I have confidence that 

we will match that record and, with cooperation from all Senators, we can exceed 

it by the end of the year. 

Instead of cooperation, however, we have seen unprecedented obstructionism. The 

Senate was prevented from proceeding to consideration of the Foreign Operations 

appropriations bill for three weeks by a Republican filibuster. Republicans twice 

voted as a block to filibuster proceeding to the appropriations bill that funds our 

nation’s foreign policy. They reversed course late Tuesday. I am glad that the Republican caucus decided to reverse itself. 

The Foreign Operations appropriations bill relates to America’s security. The bill contains $5 billion in assistance for Israel, Egypt and Jordan, all critical allies and 

vital to the prospects of long-term peace and stability in the Middle East. It contains 

$175 million to strengthen surveillance and response to outbreaks of infectious diseases overseas, programs that help provide the United States with early warning 

against some of the world’s deadliest infections, including anthrax and other agents used in bioterrorism. It contains $327 million for non-proliferation and anti-terrorism programs which help foreign countries strengthen the security of their borders as well as programs to get rid of land mines. It contains $450 million for programs to combat HIV/AIDS, the worst global health crisis in half a millennium. It 

has $3.9 billion in military assistance, which includes aid to NATO allies and nations in Eastern Europe and Central Asia. It has $1 billion in refugee and disaster 

assistance to deal with humanitarian crises around the world from Afghanistan to 

Sudan, to help with circumstances that has left millions at risk of starvation, exposure and disease. It has $856 million in export assistance to help U.S. companies 

find markets for their products and generate jobs during this economic downturn. 

It is an important bill, a vital appropriations bill. It is hard to imagine what was 

gained by the weeks of delay caused by the Republican filibuster. 

In addition to the 12 judges confirmed so far this year another seven have participated in hearings and four more will participate today. With this hearing we will 

have held more hearings involving judicial nominees than were held during the entire first year of the first Bush Administration and more than were held during the 

entire first year of the Clinton Administration. Thus, despite the upheaval we have 

experienced this year with the shifts in the Senate majority, the need to focus our 

attention on responsible action in the fight against international terrorism, and the 

need to overcome Republican efforts to obstruct the work of the Senate, we are 

ahead of the pace for hearings and confirmations of judges during the first year of 

the first Bush Administration and during the first year of the Clinton Administration. 

Today we will meet nominees to fill vacancies on the United States Court of Appeals for the 10th Circuit and District Courts in Louisiana, New Mexico and the District of Columbia. The 10th Circuit is one of many Courts of Appeals with multiple 

vacancies, and which has had multiple vacancies since before I became Chairman 

of this Committee this summer. My recollection is that President Clinton had at 

least two nominees for vacancies on the 10th Circuit pending before this Committee 

in 1999 and for several months last year, but neither ever was accorded a hearing 

before this Committee or a vote before the Judiciary Committee or before the Senate. Had they been acted upon favorably in years past, of course, the circumstances 

in the 10th Circuit today would not be so dire. I hope that Judge Hartz, who is 

strongly supported by both Senator Domenici and Senator Bingaman, will meet with 

approval of this Committee and the Senate had help us finally to send help to the 

10th Circuit after years of neglect. 

Among the District Court nominees, I note that Mr. Bates is nominated to a vacancy that has existed in the District of Columbia since 1996. I recall President 

Clinton’s nomination of James Klein to that vacancy in 1998 and his renomination 

in 1999. Unfortunately, that nomination was another on which no hearing was ever 

held and on which no vote of the Committee or the Senate was ever allowed by the 

504

Republican majority. I recall another nominee to a vacancy on that court, Rhonda 

Fields, who was nominated in 1999 and never received a hearing or vote before the 

Committee or a vote by the Senate. By contrast, I convened a hearing on the nomination of Reggie Walton to a vacancy on this District Court during the August recess and he has already been confirmed. 

The recent vicious attacks on our people have given all of us a heightened awareness of the critical importance of our civil liberties, of the many possible threats to 

those freedoms, and of the necessity of responding to the challenge of international 

terrorism without sacrificing what is best about America. This is serious and important work and our federal judges will be a key component in guarding our freedoms. 

Our system of checks and balances requires that the judicial branch review the acts 

of the political branches. I want to be confident that the nominees before us today 

will take this responsibility seriously and will rely on their experience and on our 

rich history of judicial precedent to make wise decisions in the challenging times 

ahead.

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

thank you, by the way, for letting my staff use your office. Very 

helpful to us. 

Ms. Freeman, I just have a couple of questions. I echo what our 

Chairman said that you are absolutely very well-qualified. 

Can you tell me what you believe the top priorities are for CRS? 

Ms. FREEMAN. I think the top priorities are going to be trying to 

balance the work that they were already doing in communities 

with now the situation that has been created after the September 

11 tragedy and the number of attacks and incidents that have happened with our Arabic American, Muslim and Sikh brothers and 

sisters. 

I think all of us are dealing with the load that the September 

11 tragedy has put on our offices. 

Senator EDWARDS. Actually, you just covered two or three of my 

questions in that answer because I am concerned about some of the 

acts of violence we have seen against our Sikh and Muslim, as you 

say, brothers and sisters. 

Tell me what role you see CRS playing in that. 

Ms. FREEMAN. CRS has already started, as I understand, an educational program to familiarize and work with some of the other 

agencies in the Government in terms of customs and cultures of the 

Arabs, the Sikhs and the Muslim Americans. There has also been 

a 20-plus–1 pamphlet put out, advising police forces how to deal 

with and understand better those cultures. 

There also is some work, I understand, being done with the Department of Education to put out a brochure for school administrators in dealing with harassment and comments made in school situations. So that is the start and it is a good step in the right direction, I think. 

Senator EDWARDS. Tell me what experience you have in the area 

of mediation and negotiation. 

Ms. FREEMAN. I actually look back to my time in the Department 

of the Interior, in which I worked as the lawyer for the Secretary 

on negotiating a set of rules that would control how Indian tribes 

would contract all kinds of programs, which was quite a bit of a 

back-and-forth struggle in order to figure out what those rules were 

going to be because we had full-blown negotiated rulemaking. And 

that was done with 500 or so Indian tribes, with their representatives. 

Senator EDWARDS. What about mediation? Have you been involved in mediation? 

505

Ms. FREEMAN. I haven’t done that much in terms of mediation. 

Senator EDWARDS. Is it something you are interested in learning 

more about as you go forward? 

Ms. FREEMAN. Yes, absolutely. 

Senator EDWARDS. Good, good. Thank you very much, Ms. Freeman. 

Senator Hatch? 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Ms. Freeman. We are really proud 

of you and proud of the service you have given. I know Chairman 

Hyde thinks the world of you, and we all think the world of him 

as well as you, so I am really pleased to have you here. 

I like that quote that your mother gave you. I didn’t get it written down, the one about ‘‘you must be’’—

Ms. FREEMAN. I am sorry, sir. 

Senator HATCH. The quote that your mother gave you. Can I remember it? You gave it in your speech. 

Ms. FREEMAN. She used to quote Gandhi quite often and she 

used to tell me, ‘‘You must be the change you wish to see in the 

world.’’ Senator HATCH. Well, I think that is a great quote, and I just 

want to write that down because I really enjoyed that. 

I notice that you were a Nu Skin distributor at one time. 

Ms. FREEMAN. A long time ago, yes, out of Utah. 

Senator HATCH. That is one of our companies out there in Utah, 

yes. 

Ms. FREEMAN. There you go. 

Senator HATCH. Well, you can’t be all bad, then, is all I can say. 

[Laughter.] 

Senator HATCH. I am very proud of you and you will do a great 

job here. You have tremendous experience. 

Ms. FREEMAN. Thank you, Senator. 

Senator HATCH. I have been very proud of the way you have 

come through all of your hardships in life and you have reached 

this pinnacle of working for Chairman Hyde. He is one of the people I most admire in the whole Congress and I know that he 

doesn’t tolerate fools gladly very often, so you have to be good to 

work with him. He is about as good as they come around here. 

I am just grateful that the administration has chosen you for this 

position, and I really don’t have any questions. I know how good 

you are and I just want to do everything in my power to help you 

to be able to fill this position and to continue to expand your horizons and your abilities to serve your country. 

Ms. FREEMAN. Thank you, Senator. I look forward to working 

with you and your staff. 

Senator HATCH. Thank you. 

Ms. FREEMAN. I am going to miss working with your staff on the 

other side of the fence. 

Senator HATCH. I just want to thank Senator Edwards for 

chairing this hearing and for the good work he does in our Committee. It meets a lot to me. 

Senator EDWARDS. Thank you very much, Senator Hatch. 

506

Thank you, Ms. Freeman. We thank you for the service you have 

given so far and the service you are going to give. 

Ms. FREEMAN. Thank you, Mr. Chairman. 

Senator EDWARDS. This hearing is adjourned. 

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

[Questions and answers and a submission for the record follow.]

QUESTIONS AND ANSWERS

Responses of John D. Bates to questions submitted by Senator Leahy 

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely addressed the type of 

information called for by this question. Without waiving the confidentiality of the 

FBI background investigation report prepared on me, I respectfully direct your attention to that report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: Stare decisis is a fundamental part of our judicial process. As a District 

Judge, if confirmed I would strictly adhere to and apply the controlling decisions 

of the Supreme Court and the D.C. Circuit. Unlike those courts, which have prescribed (but limited) methods for reexamining their prior precedents, the District 

Court is bound by controlling decisions of superior federal courts.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: Balancing liberty and security in the context of legislation addressing the 

risks posed by terrorist attacks can present difficult but important issues. It is vital 

to preserve the protections required by the Constitution even where extraordinary 

measures to protect our national security and safety are warranted. As a District 

Judge, I would review such issues carefully and impartially, giving due weight to 

the deference normally accorded to Congressional judgments and assessments regarding relevant factors and bearing in mind the presumption of constitutionality 

of Congressional enactments.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: These are important issues involving the confluence of jurisprudence 

under the Commerce Clause, the Tenth Amendment and the Eleventh Amendment. 

The evolving developments reflected in the Supreme Court’s decisions in these areas 

may reflect some enhancement of state autonomy and authority. A District Judge 

is, of course, bound to follow and apply the decisions of the Supreme Court in these 

as well as other arenas, regardless of the judge’s personal views.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: The Supreme Court has recently grappled with this issue under the Fourteenth and Eleventh Amendments in the context of the Age Discrimination in EmVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00518 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.001 SJUD4 PsN: CMORC
507

ployment Act in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), and the Americans with Disabilities Act in Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 

U.S. 955 (2001). As a District Judge, I would attempt to apply carefully, fairly and 

impartially the ‘‘congruence and proportionality’’ standard established by the Supreme Court were I called upon to review legislation that raised this issue, giving 

due regard to Congressional assessments of relevant factors within the proper Constitutional framework.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: If Supreme Court has recognized that congress may, consistent with state 

sovereignty and immunity principles embodied in the Tenth and Eleventh Amendments, use funding incentives to obtain state cooperation in certain contexts, which 

may in the future be held to include Congressional inducements to states to consent 

to suits by private parties through offers of federal funding in exchange for the 

waiver of state immunity from suit. Any legislation in this area should be reviewed 

carefully by a District Court in appropriate cases through examination of the relevant language of the Constitution and the statute and the application of controlling 

Supreme Court or Circuit precedent. Such fair and impartial judicial review should 

also include a careful assessment of the relevant facts, mindful of general principles 

of deference to Congress’s weighing and balancing of material factors, before any 

judgment on the constitutionality of a particular funding incentive to the states can 

properly be rendered.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

I am not aware of any at this time, although I have not been called upon to review, and thus cannot claim to have scrutinized, all possible federal statutes under 

the pertinent provisions of the Constitution and controlling Supreme Court precedent.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: I have had no occasion to review, and thus cannot claim to have scrutinized, all possible federal statutes under the pertinent provisions of the Constitution 

and controlling Supreme Court precedent in order to determine whether any federal 

statute goes beyond Congress’s enumerated powers under the Constitution. In assessing a specific federal statute or section thereof, a District Court should thoroughly review and analyze the relevant language of the Constitution and the statute 

and apply controlling Supreme Court and Circuit precedent, while being appropriately reluctant to overturn carefully considered Congressional judgments embodied in legislation.

Responses of John D. Bates to questions submitted by Senator Durbin 

f Question 1: Describe your work in the Office of Independent Counsel. What conclusions did you draw about the feasibility of the Independent Counsel Law, since 

expired? What is your reaction to the widespread consensus, in reaction to Ken 

Starr’s investigation and others, that the government should not have federal prosecutors who are wholly independent from the Justice Department? 

Answer: I was detailed to the Office of Independent Counsel from my position as 

a career Assistant United States Attorney upon the approval of then—United States 

Attorney Eric Holder and Attorney General Janet Reno. As the Deputy Independent 

Counsel for the initial stages of the Whitewater Investigation from 1995 through 

mid-1997, I coordinated and conducted a broad range of criminal investigations involving allegations of obstruction of justice, false statements, perjury, mail and wire 

fraud, bribery, conflicts of interest, and other possible offenses. This was the ‘‘preLewinsky’’ portion of the Whitewater Independent Counsel investigation. My responsibilities included not only managing large portions of the investigation and the 

office, but also personal responsibility for certain aspects of the investigation focused 

on activities in the White House. I had extensive appearances before the Grand Jury 

as well as other significant criminal investigative experience relating to sensitive 

issues involving the highest levels of the Executive Branch, and I handled complex 

issues before the District Court and on appeal. My responsibilities included being 

508

the principal contact with the President’s counsel, both his private counsel and the 

White House Counsel, as well as dealing directly with the Attorney General and her 

designees and many of the other most significant figures involved in the investigation. I was also principal liaison with both the Senate Whitewater Committee and 

the relevant House committees. 

Although I recognize that there are some countervailing arguments, my view both 

before and since my experience in the Office of the Independent Counsel has been 

that the career, professional prosecutors in the Department of Justice (including 

United States Attorneys’ offices) are best suited to handle investigations and prosecutions of possible violations of federal law, including matters within the scope of 

the since-expired Independent Counsel law.

Question 2: Washington, D.C. is one of the locales exempted by law from the requirement that federal judges live within the district in which they serve. Do you 

think that your place of residence outside the District will affect or possibly inhibit 

your performance? Do you have any intention of moving to the District? 

Answer: I have worked in the District of Columbia for virtually my entire professional career (over 25 years), primarily in the Office of the United States Attorney 

for the District of Columbia serving the country and the citizens of the District of 

Columbia. That experience, I believe, will significantly enhance my performance as 

a United States District Judge for the District of Columbia, should I be confirmed, 

and I do not believe my place of residence just outside the District will adversely 

affect my performance in any way. My two teen-aged children are deeply rooted and 

involved in their current public high school experience, which would make it difficult for us to move at this time.

Question 3: Please cite examples in your career as a judge or a practitioner that 

show that you have a demonstrated commitment to equal rights for all and that 

your are committed to continuing the progress made on civil rights, women’s rights, 

and individual liberties? 

Answer: I believe my professional experiences are reflective of my commitment to 

equal rights and the continued advancement of civil rights, women’s rights and individual liberties. For example, I have always attempted to find time for appropriate 

participation in activities serving the disadvantaged, in both my personal and professional lives. While in law school, I worked at Legal Aid. During my brief time 

in private practice from the fall of 1977 to the spring to 1980, I handled several 

time-consuming pro bono cases. In one, I obtained political asylum in 1979 for a 

black South African woman who was in legitimate fear of persecution if forced to 

return to the apartheid conditions existing in South Africa at the time. In another, 

I assisted in persuading the federal government to change its policy and permit our 

client to treat a serious medical condition with government-produced and controlled 

marijuana. 

I was in public service with the federal government from 1980 through 1997. Beyond that public service itself, during that period I focused considerable attention 

on bar activities, including those that supported programs assisting the disadvantaged. I served on the Board of Governors and on several key committees of the District of Columbia Bar and was Chair of the Litigation Section of the Federal Bar 

Association, in addition to serving both the United States Court of Appeals for the 

District of Columbia Circuit and the United States District Court for the District 

of Columbia on committees dealing with court rules and procedures. 

Since I have been in private practice at Miller & Chevaliers starting in 1998, I 

have been a leading supporter of our pro bono program; for example, I have well 

over 250 hours of pro bono service this year alone. I have also served on the Board 

of Directors of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. I have personally handled two substantial pro bono cases with the Washington 

Lawyers’ Committee involving race discrimination and hostile work environment 

claims. In the first, we achieved through settlement one of the largest recoveries to 

that date in an individual discrimination case brought by the Washington Lawyers’

Committee. As part of the resolution of the case, the employer agreed to substantial 

programs and changes in policies that benefit all of the its minority employees. The 

second case was recently tried in the United States District Court for the District 

of Maryland, and the jury returned a $2.4 million judgment for our client, which 

is the largest individual award ever in any case involving the Washington Lawyers’

Committee, and one of the largest awards ever nationally in a case of this kind. 

These efforts are indicative of my commitment to equal rights and the advancement 

of civil rights and liberties.

f509

Responses of Kurt D. Engelhardt to questions submitted by Senator Leahy 

PUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that the background investigation reports on nominees 

prepared by the Federal Bureau of Investigation (FBI) routinely address the type 

of information called for by this question. Without waiving the confidentiality of the 

FBI background investigation report prepared on me, I respectfully direct your attention to that report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of share decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: The doctrine of stare decisis is the fundamental bedrock of our system 

of justice. In order for not only the Bar, but also our citizenry to appreciate the law 

and adjust our conduct accordingly, there must be a certain degree of predictability, 

which comes from the doctrine of stare decisis. Indeed, the ability to follow precedent is an important characteristic of a good judge. I do not believe that the commitment to stare decisis should vary depending on the court, but rather is a concept 

that permeates our system of justice. If confirmed, I will follow the precedent of the 

Fifth Circuit and the U.S. Supreme Court.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: Although I am aware of the important debate of the recent anti-terrorism 

bill on Capitol Hill. I am not privy to the particular arguments for and against the 

provisions of that bill. Of course, as Americans, we greatly value the liberties which 

have been protected and handed down through the years. On the other hand, one 

of the primary obligations of our federal government is to ensure our security. 

Hence, the ‘‘trade-off’’ as reflected in the recent anti-terrorism bill is not an issue 

to be taken lightly, however, as a judicial nominee, I do not have a particular opinion of what the trade-off should be, but will respect the intentions of Congress as 

reelected in its legislation, and will afford such legislation the strong presumption 

of constitutionality. If confirmed, I will follow the precedent of the Fifth Circuit and 

the U.S. Supreme Court.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: I have viewed these developments with great interest, as this is obviously 

an evolving area of the law of critical importance. I would assume my duties as district court judge with the strong presumption of the constitutionality of all Congressional enactments. Moreover, Supreme Court jurisprudence reflects that some areas 

of our society must be subject to federal regulation in order to be effective, while 

respect must be given to the authority of the states in other areas. If confirmed, 

I am duty-bound to follow the Supreme Court’s rulings on this and any other issues, 

and will do so.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

510

Answer: Congress has the authority to subject non-consenting states to suit pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment, 

under existing Supreme Court precedent governing this issue. Moreover, private individuals may recover damages from a state, under circumstances wherein a pattern 

of discrimination by a state exists in violation of the Fourteenth Amendment.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: Congress may exercise its power under the spending clause to place restrictions or obligations on states that choose to accept federal funding. The Supreme Court has touched upon this issue in South Dakota v. Dole, 483 U.S. 203 

(1987). If confirmed, I will follow the Supreme Court precedent in this area.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: I have not undertaken a review of any particular federal statutes or sections thereof with the intent to formulate such an opinion, and I, as a district court 

nominee, would be reluctant to offer such an opinion when a case involving such 

issue might be presented to me as a district court judge. Moreover, I believe that 

this questions presents a constitutional issue which will ultimately be addressed by 

the Supreme Court, and which ruling I as a district court judge am prepared to follow, and remain duty-bound to follow.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: Federal statutes enacted by Congress and signed into law by the President have a strong presumption of constitutionality, and I am unaware of any such 

statutes that go beyond Congress’s enumerated powers, except those which have already been deemed unconstitutional, As to those holdings, I fully intend to follow 

the controlling authority of the U.S. Supreme Court and the U.S. Fifth Circuit.

Responses of Kurt D. Engelhardt to questions submitted by Senator Durbin 

f Question 1: According to your questionnaire, you are a member of Louisiana Lawyers for Life. What is the extent of your involvement? What efforts have you undertaken to promote the goals of the pro-life movement? 

Answer: My membership in Louisiana Lawyers for Life consists of paying $25.00 

per year in order to be a member. The group meets on an occasional basis, perhaps 

two or three times a year. I have never been to a meeting. I hold no officership, 

directorship, or any other positions with the organization, except for my membership. Thus, the extent of my involvement has been payment of annual dues in order 

to maintain membership. 

Aside from my membership in Louisiana Lawyers for Life, I have not been involved in any litigation surrounding the issue of the pro-life/pro-choice debate. Accordingly, I have personally not undertaken any efforts to promote the goals of the 

pro-life movement, nor with regard to the issue in general. 

In connection with my nomination and prospective confirmation, I have recently 

resigned my membership in Louisiana Lawyers for Life, as I think it appropriate 

under the Code of Judicial Conduct to avoid event the appearance of an affiliation 

with any particular group which might be identified with one side or another of any 

particular issue.

Question 2: Do you agree with the Supreme Court’s decisions in Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey? Do you agree that the doctrine of stare decisis counseled the Court against overruling Roe in 1989, As a judge, 

would you be able to apply the law as it stands now, including the constitutionally 

recognized right to terminate an unwanted pregnancy? 

Answer: I agree that the Supreme Court’s decisions in Griswold v. Connecticut, 

Roe v. Wade, and Planned Parenthood v. Casey are well-settled law as enunciated 

by the Supreme Court. I further agree that the doctrine of stare decisis counseled 

the Court against overruling Roe 1989, thus reaffirming the correctness of those decisions. If confirmed as a district court judge, I will, without reservation, apply the 

law as enunciated by the Supreme Court, in all respects, including the constitutionally-recognized rights set forth in Griswold, Roe and Casey. As a district court 

511

judge, I am duty-bound and ethically-bound to follow superior authority from the 

U.S. Supreme Court, as well as the U.S. Fifth Circuit, on this issue and any others.

Question 3: Please cite examples in your career as a lawyer that show that you 

have a demonstrated commitment to equal rights for all and that you are committed 

to continuing the progress made on civil rights, women’s rights, and individual liberties? 

Answer: In my career as a lawyer, my most exposure regarding equal rights would 

come in connection with the Americans with Disabilities Act. As I indicated in my 

Senate Questionnaire, I have been involved in negotiating with the local public 

school board to afford disabled students equal opportunity in the school system. I 

have represented numerous parents of disabled children in that endeavor, many on 

a pro bono basis. 

In addition, I have supported my law firm’s efforts to seek out and hire qualified 

minority attorneys. In addition, my personal clientele includes several minority 

business owners and individuals. I have represented an African-American client in 

the real estate business with regard to discrimination in a fair housing issue, visa-vis the local municipal authorities. He is a regular client of mine of other issues. 

With regard to women’s rights, I and other members of my firm have had the opportunity to confer with clients regarding discrimination in the workplace, and to 

assist corporate clients in developing and establishing appropriate guidelines to 

make the workplace comfortable and acceptable to women, including payment of 

equal wages and other benefits for similar work, and removal of other workers 

whose behavior did not respect the rights of women to participate in the workplace.

Responses of Harris L. Hartz to questions submitted by Senator Leahy 

fPUBLIC QUESTIONS

Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for in this question. Without waiving the confidentiality of the FBI 

background investigation report prepared on me, I respectfully direct your attention 

to that report for a response to this question.

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of stare decisis? Does the commitment to share decisis vary depending on 

the court? 

Answer: Respect for stare decisis is essential to the proper functioning of a wellordered society. Lower courts must be scrupulous in complying with precedents 

handed down by superior courts. And panels of appellate courts should not overturn 

decisions of prior panels—such overruling should occur only after en banc consideration. Although there may be occasions when a court should set aside its own precedents, those occasions are rare.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: Our nation has the right of self-preservation. But that right does not require the abrogation of civil liberties. On various occasions civil liberties have been 

unnecessarily infringed in the name of national security. All branches of the government must take great care before deciding the national security justifies a particular 

restriction on a liberty interest that would otherwise be recognized.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new auVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00523 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.001 SJUD4 PsN: CMORC
512

thority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: The Supreme Court’s decisions certainly bear upon the balance of power 

between state governments and the federal government. As an appellate judge, my 

role would not be to evaluate the merits of the decisions but only to apply them with 

the great care that the importance of the subject demands.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Recent decisions of the United States Supreme Court concerning state 

sovereign immunity (such as the Seminole Tribe case) and the scope of Congressional authority under the Fourteenth Amendment (such as City of Boerne) will 

have a significant impact on how courts analyze this issue. As an appellate judge, 

my duty would be to begin with the presumption of constitutionality afforded all federal statutes and then determine whether that presumption has been overcome in 

light of applicable precedents of the United States Supreme Court.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: As recognized by the United States Supreme Court in South Dakota v. Dole, Congress can use its spending power to induce action by the states that Congress cannot directly. The Supreme Court has, however, recognized some limitations 

on this power. Whether a particular exercise of such power is constitutional would 

depend on the specifics of the statute involved and the application of Supreme Court 

precedent, always giving the deference to Congress provided by the presumption of 

constitutionality.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: There are thousands of federal statutes, and I am not familiar with most 

of them. All are presumed constitutional. As a judge, I would need to consider the 

specifics of each statute and rule it unconstitutional only if Supreme Court precedents made clear that the presumption of constitutionality had been overcome.

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: Again, there are a great many federal statutes, and I have had occasion 

to become familiar with only a small fraction of the total. Judges must presume that 

each federal statute was enacted within the bounds of Congress’ constitutional authority. As a judge of the court of appeals, my duty would be to uphold the statute 

unless the precedents of the United States Supreme Court compel a ruling that the 

presumption of constitutionality has been overcome.

Question 9: In 1972, you wrote an article for the Harvard Law Review entitled ‘‘Health Regulation of Naturally Hazardous Foods: The FDA Ban on Swordfish.’’ In 

this article, you argued that the Food and Drug Administration had gone too far 

in its 1970 action of removing swordfish from commercial markets after two weeks 

of FDA testing had shown higher than recommended methyl mercury levels in the 

food. You equated this action to a ‘ban’’ that destroyed the industry and, while acknowledging that FDA acted within the law, strongly argued that FDA should have 

gone through a formal, public rulemaking on swordfish mercury tolerances rather 

than adjudicate the issue in private meetings. You also noted that, except in emergency situations, the FDA should fully educate consumers about any food risks— possibly with warning labels such as those on tobacco—but ultimately give them the 

final choice about whether or not to consume certain foods. 

I agree with you that FDA, and all other regulatory agencies, should fully educate 

consumers about the risks of products. I also agree that warning labels would be 

a good interim effort for many consumables. 

Yet, based on your writing in this case, I am interested in what you consider the 

standards of evidence needed for an agency to Implement protective regulation on 

consumer products. While you believe the FDA went too far in the swordfish case 

of 1970, I would argue that the agency has not yet gone far enough. FDA’s own 

records show that the agency stopped monitoring domestically-caught seafood for 

mercury contamination in 1998 despite the fact that their own 1997 data shows that 

513

several samples of domestically-caught tuna, swordfish, and shark exceeded their 

own action level.’’

(A) During the past 30 years, how do you think the legal and regulatory 

system could have provided sensitive populations with better protection 

from harmful methyl mercury levels in seafood? 

(B) Where might you set evidence standards today for regulating a possibleharmful contaminant in consumable products? 

(C) How would you try to balance the concerns of a possibly-harmful contaminant in a consumable product against industry pressures to keep a 

product on the market until all scientific studies have been completed? 

Answer: The law review article was written by another student. My role was to 

edit the article. The views expressed are those of the author and are not necessarily 

the views of the editor or of the Harvard Law Review itself. Regulation of potentially dangerous food is a matter of the highest importance. But I have had very 

little occasion to think carefully about the subject during the past 30 years, so any 

position I expressed now would be much closer to a tentative guess than a well-considered view.

Responses of Harris L. Hartz to questions submitted by Senator Durbin 

f Question 1: During your tenure as a judge in New Mexico, you were appointed 

by the Governor, you were retained by the voters, and you ran in a partisan election. The federal judiciary is quite different in its selection process. What lessons 

do you draw from your first hand experience as an elected judge? If confirmed, how 

will your life tenure affect you judicial outlook? 

Answer: I have thought a great deal about the process of selecting judges, although I have not reached any firm conclusions. Election of judges may make judges 

more responsive to the views of the electorate, but that is not always good. My 

greatest concern about election of judges is the election process itself. Fund raising 

can, at the least, create cynicism about how judges decide cases; and judges are 

pressed opinions on matters that may well come before them. Perhaps most importantly, many men and women who would make excellent judges are unwilling to 

campaign for office. 

As for the effect on me personally, I do not think the manner of selection influenced my work as a judge. I did my best to exercise sufficient self-discipline to keep 

political interests from affecting my decisions. As a federal judge, I hope (and expect) to maintain that self-discipline; given life tenure, that task should be easier 

than it was on an elected state court.

Question 2: Please describe your recent work for the Teamsters Union. Do you feel 

that you have had success in helping to reform that institution and rid it of corruption? Have you completed your assignment? 

Answer: Although the project I have been working on included some efforts to attack remnants of corruption in the Teamsters Union, my own efforts have focused 

almost entirely on the future. In my view, the fundamental task of ending the influence of organized crime on the union is essentially complete. In such a large institution there will always be some miscreants, but the present Teamsters leadership is 

committed to running a clean union. 

My role has been to work with a 22-member Teamster task force to create a code 

of conduct and a system for compliance and enforcement so that future attempted 

encroachments by organized crime and other systemic corruption will be thwarted. 

I am very proud of the code and system that has emerged from our work. Once they 

are implemented, the Teamsters will be a model for integrity within the labor movement. There is still plenty of work to do in coordinating with the Justice department 

and instituting the Task Force’s plan, but I have no doubt that this work can be 

done quite well without my further involvement.

Question 3: Please cite examples in your career as a judge or a practitioner that 

show that you have a demonstrated commitment to equal rights for all and that 

your are committed to continuing the progress made on civil rights, women’s rights, 

and individual liberties? 

Answer: As a first-year law student I worked with the law school’s Voluntary Defenders and then joined the first group in the Prisoner Legal Assistance Project. 

Those experiences taught me that the best way to protect civil liberties was to be 

a government lawyer who respected the law. As a result, my first job was not as 

a public defender but as an assistant U.S. Attorney. Later, I served with the New 

514

Mexico Governor’s Organized Crime Prevention Commission and the New Mexico 

State Racing Commission. I am proud that in each of those jobs I aggressively protected the public interest while being scrupulous in observing the rights of those 

being investigated or prosecuted. 

In my capacity as a judge, I endeavored to keep my personal views from influencing my decision-making. But I believe that my record shows a clear respect for 

civil rights, women’s rights, and individual liberties. New Mexico is a wonderfully 

diverse state. I am proud that in each of my campaigns for judicial office I received 

strong support from leaders in the Hispanic, Black, and Native American communities within the state; and women were the backbone of my campaign support.

Response of Harris L. Hartz to a question submitted by Senator Edwards 

f Question 1: Shortly after your appointment to the Court of Appeals, you sensitively commented that ‘‘what struck me most is that on the Court of Appeals, we 

make law every day. . . .There’s no way to get around it.’’ Last week, at your hearing, I asked you how you would construe broad constitutional guarantees like ‘‘equal 

protection.’’ You answered that the Supreme Court must make those kinds of ‘‘very 

difficult’’ interpretive decisions; you would simply ‘‘follow the approach taken’’ by the 

Supreme Court. 

In ‘‘making law every day,’’ do you think that a court of appeals judge can follow 

the Supreme Court approach and nothing more? And would you care to elaborate 

on your answer to my question—do guarantees like ‘‘equal protection’’ stand for general principles that judges have leeway in articulating, or do those guarantees instead embody their framers’ specific intentions and expectations? 

Answer: When I made the quoted comment early in my judicial career, I suspect 

that I was simply reacting to the surprising number of undecided issues that came 

before the state court of appeals. I do not believe that a judge should ‘‘make law’’ in the sense of imposing his or her personal policy preferences in resolving the 

issues presented in a case. Reliance on personal policy preferences is not only improper, it is also unnecessary. When novel issues arise, judges are not writing on 

a blank slate. They must carefully study the pertinent texts and judicial precedents. 

In my experience as an appellate judge, such study provides sufficient guidance to 

determine the decision. 

I am aware of the continuing debate regarding the generality with which constitutional language should be interpreted. But numerous opinions of the Supreme Court 

have addressed the various provisions, so a federal appellate judge would receive 

considerable guidance in resolving constitutional questions ranging from the scope 

of the Equal Protection Clause to the extent of the right of confrontation in criminal 

trials. My statement that I would follow the approach taken by the Supreme Court 

was intended to convey that I would endeavor to apply the reasoning of Supreme 

Court precedents rather than imposing any personal view I may have regarding how 

to interpret the Constitution.

Responses of William P. Johnson to questions submitted by Senator Durbin 

f Question 1: You have spent the last six years as a trial judge in the New Mexico 

state judiciary. Based on that experience, how would you assess the quality of legal 

representation provided to indigent criminal defendants? As a judge, what steps 

have you taken to assure that all defendants received competent counsel? If confirmed as a federal judge, what steps would you take in the future? 

Answer: I am a district judge in New Mexico’s Fifth Judicial District which comprises the three counties in Southeastern New Mexico. Chaves County, the county 

in which I sit, has a very high crime rate and so the District attorney’s office ends 

up filing a lot of felony cases. I share the Chaves County criminal docket with two 

other judges and the three of us meet routinely to discuss case management and 

docket control issues in order to maintain a consistent and uniform approach for the 

criminal docket. If there is an issue regarding representation of indigent criminal 

defendants, then the three judges usually act in concert and this has the advantage 

of not pitting one judge against a particular attorney. For example, there was concern amongst the judges that the public defenders were not meeting frequently 

enough with their clients in the detention center and that defendants were not reviewing their plea agreement paperwork well enough in advance of court hearings 

515

to make a truly informed decision whether to accept the plea agreement. The judges 

met with the public defender supervisor and implemented a uniform policy where 

no pleas would be accepted unless the defense attorney had met with his or her client outside of the courtroom and in advance of the plea hearing. Other issues the 

three judges have dealt with collectively concerned expanding the attorney visitation 

hours at the detention center, establishing uniform procedures and guidelines for 

setting bail and conditions of release, developing alternatives to detention and community service for misdemeanor defendants and expanding the availability of substance abuse treatment programs. 

The Sixth Amendment right to counsel for a criminal defendant includes effective 

assistance of counsel and the trial judge has the duty to ensure that a criminal defendant is afforded his Sixth Amendment right to counsel. If I am confirmed by the 

Senate and become a federal judge, then I will work with the other judges, the Clerk 

of the Court, the U.S. Marshal and the federal public defender to ensure that the 

necessary resources are devoted to criminal cases so that due process is afforded to 

all criminal defendants.

Question 2: You are a graduate of the Virginia Military Institute. What is your 

opinion of the Supreme Court’s decision in Virginia v. United States, requiring that 

VMI cease its practice of excluding women cadets? Do you agree with the Court’s 

reasoning? 

Answer: I made the decision to attend the Virginia Military Institute (‘‘VMI’’) in 

the fall of 1976 when I was seventeen years old and in my senior year of high 

school. I chose VMI because the school was founded on the concept of the citizen 

soldier which appealed to me and because of the unique aspects of the VMI educational experience. VMI’s all-male admissions policy if anything was a factor 

against attending VMI; however, the fact that my father was a VMI graduate and 

the fact the there are several all-female colleges in close proximity to VMI negated 

what I perceived in 1976 as disadvantages of VMI’s all-male admissions policy. 

Last April, I had the occasion to go to VMI to attend my 20th class reunion. From 

all accounts and from my own observations, VMI has made the transition to co-education as demonstrated by the number of female cadets who have earned rank and 

other positions. Applications for admission to VMI have increased and I recently received a letter from VMI’s Superintendent mailed to all alumni expressing pride in 

how VMI scored in the U.S. News & World Report’s Annual Survey on Colleges and 

Universities. Finally, if I am confirmed then I will follow Supreme Court precedent 

in the VMI case and all other Supreme Court and applicable circuit precedent.

Question 3: Please cite examples in your career as a judge or a practitioner that 

show that you have a demonstrated commitment to equal rights for all. 

Answer: During my years in private practice and as a judge, I have devoted a significant amount of my time and effort in helping disadvantaged or at-risk youth. In 

1987, I accepted a pro bono appointment for an abused and neglected child as her 

guardian ad litem. I was a commercial litigator at the time and was accustomed to 

litigating on behalf of an against large corporations which were represented by very 

effective counsel. I was shocked over what I felt was a lack of resources devoted to 

helping abused and neglected children. This experience prompted me to become involved in organizations that help at-risk or disadvantaged youth and I have been 

involved with the following organizations: 

A. CHAVES COUNTY CASA PROGRAM

CASA stands for court appointed special advocate and a CASA is a trained volunteer who advocates for and assists the child’s attorney in child abuse and neglect 

cases. The Chaves County CASA Program, a non-profit entity, was formed in 1988 

and I helped form the Board of Directors and served on the Board from 1988 to 1994 

in the capacity of Board Chairman, Vice-Chairman and Member. The Chaves County CASA Program has expanded from not only advocating for children in abuse and 

netglect cases, but also advocating for children in domestic violence, juvenile delinquency and domestic relations cases. 

B. JUVENILE JUSTICE ADVISORY COMMITTEE (‘‘JJAC’’)

The New Mexico JJAC as created by statute and the members are appointed by 

the Governor. I served on JJAC from March of 1995 until October of 2001 as a 

member and as Vice-Chairman. Under the Federal Juvenile Justice Act, each state 

receives certain federal funds to be disbursed by each state through grant funding 

for juvenile delinquency and prevention grants. In New Mexico, JJAC is the entity 

which awards units of local government grant awards for delinquency prevention 

and intervention initiatives. During the time I served on JJAC, the members develVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00527 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.001 SJUD4 PsN: CMORC
516

oped a strategy of funding communities that were committed to building a continuum of services for at-risk youth. 

CAMP SIERRA BLANCA (‘‘CSB’’) AND ASSOCIATED MARINE INSTITUTES (‘‘AMI’’)

In 1997, CSB was formed as a non-profit organization whose mission is to help 

delinquent male youth develop into responsible, productive citizens through a disciplined, value oriented and supportive learning environment. I was recruited to 

serve as CSB’s Board Chairman and have served in that capacity from November 

of 1997 until the present. AMI, a non-profit organization headquartered in Tampa, 

Florida, operates CSB pursuant to a contract with the State of New Mexico which 

requires CSB to provide residential programming for 50 adjudicated, non-violent delinquent make youth, ages 14 to 18. Residents stay at the program from six to 

twelve months. CSB is an accredited high school and residents can earn their GED. 

Since CSB opened up in August of 1997, 18 residents earned their high school diploma and 112 residents earned their GED. The three year recidivism study showed 

that 80% of the residents who left CSB did not re-enter the juvenile justice system. 

The three year recidivism study also showed that for the first three years of CSB’s 

operation, 56% of the residents were Hispanic, 6% were African-American, 14% were 

Native American, 22% were Caucasian and 2% were other races or ethnicities. During my tenure as CSB Board Chairman, I served as the Vice-Chairman of the AMI 

Program Development Committee. During this time, AMI opened up the Wings Program in San Antonio, Texas for delinquent female youth who are pregnant and give 

birth to children while in custody of the Texas Agency which houses delinquent female youth. This program is designed to allow delinquent teen mothers to bond with 

their children, go to school and learn parenting skills while they are serving their 

juvenile sentence.

Responses of William P. Johnson to questions submitted by Senator Leahy 

f Question 1: Please state whether you have ever been arrested for, charged with, 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition, and 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (‘‘FBI’’) routinely address the type of 

information called for by this question. Without waiving the confidentiality of the 

FBI background investigation report prepared on me, I respectfully direct your attention to that report for a response to this question

Question 2: In you opinion, how strongly should judges bind themselves to the 

doctrine of stare decisis? Does the commitment to stare decisis vary depending on 

the court? 

Answer: Federal district judges must strongly bind themselves to the doctrine of 

stare decisis, as the trail judge has the duty to apply the law enacted by the Congress and to follow Supreme Court and precedent of the circuit in which the trial 

judge sits. Circuit judges likewise must follow Supreme Court and precedent of the 

circuit precedent. While the doctrine of stare decisis is equally important to the Supreme Court, it is the final authority on interpretation of the Constitution and may 

depart from or overrule established precedent.

Question 3: I’m sure that you have followed debate here on Capitol Hill and, in 

fact, across the country, about the need for legislation to address the risk of more 

terrorist attacks. Without getting into any specific proposals, what do you think the 

trade-off needs to be between liberty and security? 

Answer: On September 11, 2001, over 6,000 Americans and citizens of other countries were viciously killed in terrorists attacks associated with the hijacking of four 

commercial airplanes. Since September 11th, various entities and institutions of government including all three branches of government have come under biological attack through anthrax contaminated mail. Part of the response to all of these attacks 

included the President proposing and the Congress recently enacting anti-terrorism 

legislation which the President has now signed into law. While I am not familiar 

with the specific provisions of the anti-terrorism legislation, as an act of Congress 

the legislation is presumptively constitutional. The President and the Congress have 

the power to take actions to protect this Country and its citizens even if such actions result in the curtailment of some of the freedoms Americans enjoy provided 

517

that such actions do not violate the fundamental liberties provided by the Constitution. The Congress is uniquely situated to evaluate the appropriate balance between 

liberty and security in evaluating legislation.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’ power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably, in the environmental arena, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: The Constitution in all its brilliance created the three branches of government with a system of checks and balances that has and continues to serve this Nation. I strongly believe in the concept of separation of powers and if I am fortunate 

enough to be confirmed by the Senate as a federal district judge, I can assure you 

and your distinguished colleagues that I would have the utmost respect for the work 

of the Congress. Legislation enacted by the Congress is the product of hard work 

by both chambers of the Congress often occurring after lengthy public hearings and 

public debate. Legislation enacted by the Congress is presumptively constitutional 

and I believe the role of a district judge is to apply the law as enacted by the Congress and to follow precedent of the Supreme Court and precedent of the circuit in 

which the district judge sits.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Under current Supreme Court precedent, Congress may, under Section 

five of the Fourteenth Amendment, enact legislation that override states’ sovereign 

immunity provided there is a ‘‘congruence and proportionality between the injury 

to be prevented or remedied and the means adopted to that end. City of Boerne v. Flores, 521 U.S. 507, 521 (1997). The Supreme Court has held that states are immune from state employees’ age discrimination and Americans with Disabilities Act 

lawsuits although age and disabilities are not suspect classes entitled to ‘‘strict scrutiny.’’ With regard to other classifications, such as gender that have been held not 

to be suspect classes entitled to ‘‘strict scrutiny,’’ I am not aware of Supreme Court 

precedent as this question posed and thus am reluctant to state an opinion on an 

issue that could come before me as federal district judge if I am fortunate enough 

to be confirmed by the Senate.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

funding to waive its sovereign immunity to private actions for money damages if the 

state is misusing such funds? 

Answer: Congress may include the states to consent to suit by offering them federal funds in exchange for the states’ waiver of sovereign immunity provided that 

the federal statute is consistent with the Supreme Court’s spending clause jurisprudence, although historically any such waiver has been limited to remedies such as 

injunctive or declaratory relief as opposed to monetary damages. I am not aware of 

any prohibition against the Congress offering the states federal funds in exchange 

for a waiver of sovereign immunity to private actions for money damages if states 

misuse such funds although resolution of this issue will require further guidance 

from the Supreme Court.

Question 7: Are these any federal statues, or sections thereof, concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: Question 7 asks if there are any federal statutes or sections thereof of 

which the Supreme Court has not yet ruled that violate the Eleventh Amendment. 

If I am fortunate enough to be confirmed by the Senate and become a federal district judge, I will follow Supreme Court precedent and circuit precedent from the 

circuit in which I sit. I am, however, reluctant to offer an advisory opinion on matters that could possible come before me or could come before the Supreme Court. 

Additionally, if confirmed, I would faithfully apply the presumption of constitutionality accorded to any act of Congress under the law.

518

Question 8: Are there any federal statutes, or actions thereof, that go beyond Congress’ enumerated powers under the Constitution? 

Answer: There are literally thousands and thousands of federal statutes or sections thereof the constitutionality of which has never been challenged. When Congress enacts a federal statute, there is a presumption in favor of its constitutionality. If I am fortunate enough to be confirmed by the Senate and become a federal district judge, I will follow Supreme Court precedent and circuit precedent from 

the circuit in which I sit. I am, however, reluctant to offer an advisory opinion on 

matters that could possibly come before me or could come before the Supreme Court.

SUBMISSION FOR THE RECORD

f Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of 

Illinois 

Thank you, Mr. Chairman. I have a few brief remarks. I want to thank you for 

chairing this hearing, and thank the nominees for traveling out here at a time when 

many people would probably prefer to simply stay home. Terrorists, whether international or home grown, are clearly trying to disrupt the workings of our government. It is important that we send a signal that the business of the people of the 

United States will continue as before. 

Today marks the third judicial nominations hearing this month. It is a rather extraordinary event, because only twelve times in a recent span of over six years did 

this Committee hold as many as two hearings in the same month. Since the Democrats assumed control of the Senate, the Committee has held multiple hearings on 

judicial nominations in July, within days of taking over; in August, when the Senate 

was in recess and none of the President’s nominations were pending before it; and 

in October, when the building that houses the Committee offices and hearing room 

was closed. Chairman Leahy has demonstrated impressive resolve in moving forward with judicial nominations. 

Today also marks the eighth judicial nominations hearings this year. That is an 

extraordinary achievement, more hearings than were held in 1989 and 1993, the 

first years of the elder President Bush’s term and President Clinton’s term. It is 

even more extraordinary when one considers that all eight of these hearings have 

occurred since July, when the Democrats assumed control; that these hearings continued even while this Committee consumed with work on anti-terrorism legislation 

in response to the September 11 attacks; and that these hearings continue today 

even while our offices and hearing room have been quarantined for over a week. 

Today’s judicial nominees are an example of the type of selections we would like 

to see more of. They are individuals of real experience and accomplishment. They 

enjoy widespread bipartisan support. They are not ideologues, bent on frustrating 

the popular will and imposing a stilted form of federalism on the American people. 

I look forward to hearing from them. 

I also look forward to hearing from Sharee Freeman, the President’s choice to 

head the Community Relations Service. That office has played an important role 

since its creation in 1964, mediating racial and ethnic conflicts that have afflicted 

local communities. The employees of CRS bring experience and expertise to bear, 

as well as an outside perspective that is often crucial to resolving long-simmering 

disputes. Off course, it is unfortunate that the services of CRS are still very much 

in demand, even in the wake of September 11. But I am confident that Ms. Freeman 

is committed to the mission of the office.

(519)

NOMINATION OF JULIE A. ROBINSON, OF 

KANSAS, TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF KANSAS; JOE L. HEATON, OF 

OKLAHOMA, TO BE DISTRICT JUDGE FOR 

THE WESTERN DISTRICT OF OKLAHOMA; 

CLAY D. LAND, OF GEORGIA, TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT 

OF GEORGIA; FREDERICK J. MARTONE, OF 

ARIZONA, TO BE DISTRICT JUDGE FOR THE 

DISTRICT OF ARIZONA; DANNY C. REEVES, 

OF KENTUCKY, TO BE DISTRICT JUDGE 

FOR THE EASTERN DISTRICT OF KENTUCKY; AND JAMES E. ROGAN, OF CALIFORNIA, TO BE UNDER SECRETARY OF 

COMMERCE FOR INTELLECTUAL PROPERTY 

AND DIRECTOR OF THE UNITED STATES 

PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE 

WEDNESDAY, NOVEMBER 7, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:05 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Dianne Feinstein, 

presiding. 

Present: Senators Feinstein, Leahy, Hatch, Kyl, Brownback, and 

McConnell. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Good morning, everyone. This hearing of the 

Judiciary Committee will come to order. 

I am delighted that we have so many distinguished Senators 

here. I am informed that we will go down the line in strict seniority, so if I may just indicate what that is, it is Senator Nickles, if 

he is present, first, Senator Inhofe second, Senator McConnell 

third, Senator Bunning fourth, Senator Kyl fifth, Senator 

520

Brownback sixth, and Senator Roberts seventh, Senator Cleland 

eighth, and Senator Miller ninth. So we will follow that order unless I hear objection from someone on the Committee. Hearing 

none, we will proceed. 

Is Senator Nickles present? He is not. Senator Inhofe? 

PRESENTATION OF JOE L. HEATON, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA 

BY HON. JAMES INHOFE, A U.S. SENATOR FROM THE STATE 

OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chairman. I think it is the 

first time since 1994 that I have gone first by seniority, so I am 

not used to that. 

Senator FEINSTEIN. Time marches on. 

Senator INHOFE. That is right. 

Senator MCCONNELL. That first ten years I was here really did 

not count. 

Senator INHOFE. Yes, that is right. I was thinking about that, 

too. Anyway, I will be glad to defer to you, Senator McConnell. 

Senator MCCONNELL. No, go ahead. 

Senator INHOFE. Let me just briefly say that quite often, Madam 

Chairman, when the Senators have this perfunctory, sometimes obligation, sometimes privilege to present someone for the bench, it 

is more of a duty. In this case, this is one that it is a real honor 

for me because this guy that I used to call this young guy was Joe 

Heaton, who is right behind me here. 

I can remember the first time I met him. I was in the State Senate of Oklahoma and I was asked to attend an event where they 

honored the outstanding students at a school that is called Northwestern Oklahoma State University, where he was recognized as 

the outstanding business and professional graduate of that school, 

and I knew a lot of people who knew him and everyone said he was 

going to have a great future in law and in the courts. 

In 1976, he was here in Washington. We were talking about how 

it has changed since then. But he was here working for Senator 

Dewey Bartlett. Senator Dewey Bartlett was actually the reason I 

got involved in politics in the first place, when he ran and created 

a vacancy and I ended up running. At that time, there was a good 

friend of mine in Oklahoma who was a Federal judge. His name 

is Ralph Thompson. Ralph Thompson said he really believed that 

this young man who was working for Dewey Bartlett by the name 

of Joe Heaton has the intelligence and temperament to be a really 

great judge someday. 

So he got involved in the Western District of Oklahoma at a very 

early age with the U.S. Attorney’s Office. He served as Special Assistant to the U.S. Attorney. He held the position for quite a number of years. He also had other positions in the Western District. 

Early on, he served as the Chairman of the Civil Justice Advisory 

Committee for the U.S. District Court for the Western District of 

Oklahoma, so he is very familiar with that district and he was 

nominated by the President to be the District Court Judge for the 

Western District of Oklahoma and I am here today to introduce 

him to you and heartily recommend him as someone who is a great 

find and is going to have a great future of service for his country. 

521

Senator FEINSTEIN. Thank you very much, Senator Inhofe. I appreciate those comments. 

Let me correct my prior statement, because I look at this list and 

as Senator Kyl just reminded me, the seniority list needs to be revised. 

Senator INHOFE. Let me remind you, Madam Chairman, I have 

three days’ seniority over Senator Kyl. 

Senator FEINSTEIN. And you will not let him live it down. 

[Laughter.] 

Senator FEINSTEIN. Senator McConnell, you are speaking on behalf of— Senator MCCONNELL. Judge Reeves, or Judge-to-be Reeves. 

Senator FEINSTEIN. Why do you not go ahead, if you do not mind. 

PRESENTATION OF DANNY C. REEVES, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

BY HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 

STATE OF KENTUCKY 

Senator MCCONNELL. Thank you, Madam Chairman. It is my 

pleasure to introduce to the Committee Danny C. Reeves, President 

Bush’s nominee for a seat on the U.S. District Court for the Eastern District of Kentucky. Danny is a well respected lawyer in our 

State and possesses the legal experience, character, and personal 

qualities that will enable him to be an outstanding Federal jurist. 

He grew up in Southeastern Kentucky and demonstrated his 

strong work ethic early on by putting himself through both college 

and law school. He graduated with honors from Eastern Kentucky 

University in just three years and received his law degree from 

Salmon P. Chase College of Law. 

After law school, Danny clerked for two years with Judge Eugene 

Siler when Judge Siler was on the U.S. District Court for the Eastern and Western Districts of Kentucky. Judge Siler, who now sits 

on the U.S. Court of Appeals for the Sixth Circuit, was one of Kentucky’s most respected trial judges. No doubt the insight and experience Danny gained from Judge Siler were invaluable. 

Danny then joined Greenebaum, Doll and McDonald, one of Kentucky’s largest and most prestigious law firms. He became a partner in 1988 and has distinguished himself in private practice, representing companies such as Ashland Oil and Newport Steel in 

major commercial litigation and representing the Kentucky High 

School Athletic Association in a whole range of matters. 

Danny’s peers have recognized his sound judgment and have 

trusted him with important responsibilities in several legal organizations in Kentucky. He served on the Kentucky Bar Association 

Judicial Concerns Commission, which makes recommendations to 

the KBA on various administrative issues, including questions regarding the selection and retention process for State judges. For 

five years, he was an officer of the Kentucky Chapter of the Federal Bar Association, including serving as its President. 

So, Madam Chairman, Danny Reeves is an accomplished litigator 

with extensive Federal Court litigation experience. He possesses a 

sound legal mind and is held in high regard by the judges in the 

Eastern District with whom he has worked and before whom he 

has practiced. He will be a valuable addition to the Federal Court 

522

in Eastern Kentucky and I am confident he will serve with distinction. I enthusiastically support his nomination and commend President Bush on an outstanding choice. 

Senator FEINSTEIN. Thank you very much, Senator McConnell. 

Senator Nickles, would you like to proceed at this time. 

PRESENTATION OF JOE L. HEATON, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA 

BY HON. DON NICKLES, A U.S. SENATOR FROM THE STATE 

OF OKLAHOMA 

Senator NICKLES. Madam Chairman, thank you very much, and 

I appreciate your conducting this hearing and appreciate my colleague, Senator Inhofe, introducing my friend, Joe Heaton, nominee 

to be the Western District Court judge in Oklahoma. 

I have had the pleasure of knowing Joe Heaton for a long time. 

He served in the Oklahoma House of Representatives for several 

years, eight years, I believe, including ten years as assistant and 

also as minority leader. He did an outstanding job in that capacity. 

It was my pleasure to recommend that he be U.S. Attorney for the 

Western District back in 1992 and he did a fantastic job in that capacity. He has also served for the last several years as First Assistant U.S. Attorney for the Western District. In addition to that, he 

has had several years in private practice. 

He is well regarded in the legal community. He has done an outstanding job in the U.S. Attorney’s office, both as U.S. Attorney 

and First Assistant, and I am very confident that he will do an outstanding job as a Federal District Court Judge for the Western District of the State of Oklahoma. 

I would, one, thank the Committee for having this hearing. I 

urge you to move forward as quickly as possible and thank you for 

doing that. I have every confidence that Joe Heaton will make an 

outstanding Federal District Court Judge for the State of Oklahoma. 

Senator FEINSTEIN. Thanks very much, Senator Nickles. I appreciate that you took the time to be here. 

We will now go to Senator Bunning, also on behalf of Mr. Reeves. 

PRESENTATION OF DANNY C. REEVES, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

BY HON. JIM BUNNING, A U.S. SENATOR FROM THE STATE 

OF KENTUCKY 

Senator BUNNING. Madam Chairman, I am pleased to join Senator McConnell in introducing Danny Reeves to the Committee. 

Earlier this year, we recommended Danny to fill one of the vacancies in the Eastern District and we are proud that the President 

saw fit to nominate him. 

Danny is a Kentucky native, born and bred. He grew up in Eastern Kentucky and went to school at Chase Law School in Northern 

Kentucky. Later, he clerked in the Eastern District for one of our 

finest judges ever, Gene Siler. Since then, over the past 20 years, 

Danny has worked on a variety of complex civil litigation matters 

for a prominent Kentucky law firm. 

To be honest, I did not know Danny before we began talking to 

prospective candidates, but early on, it was easy to see that he had 

523

the temperament, intellect, and demeanor to make a real difference 

on the Federal bench. He is going to be a fine judge and I strongly 

recommend him to the Committee. 

Madam Chairman, this hearing today is especially important to 

us in Kentucky. The Chief of the Eastern District, Judge Forrester, 

has written to Senator McConnell and myself, as well as this Committee, about judicial emergencies facing the Eastern District of 

Kentucky right now. There have been a number of vacancies on the 

bench there and the backlog has become critical. By quickly confirming Danny Reeves, the Committee can help make sure that justice is handed down more swiftly and evenly for the people of Kentucky. 

Thank you, and I urge the Committee to move the nomination 

as quickly as possible. 

Senator FEINSTEIN. Thanks very much, Senator Bunning. I appreciate it. 

Senator Kyl, we will now go to you on Frederick Martone. 

Senator KYL. Madam Chairman, could I defer to my colleagues 

who are at the dias, since they may need to go and I can stay for 

a little while. 

Senator FEINSTEIN. You certainly can. That is very helpful. Senator Brownback, you are next on the list. 

Senator BROWNBACK. I will defer to my colleagues. I will let my 

colleagues go forward, because I will be here. 

Senator FEINSTEIN. All right. Senator Roberts, would you proceed, please. 

PRESENTATION OF JULIA A. ROBINSON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF KANSAS BY HON. PAT 

ROBERTS, A U.S. SENATOR FROM THE STATE OF KANSAS 

Senator ROBERTS. First, Madam Chairman, I want to thank Senator Kyl and my senior Senator for yielding. I might add that Senator Brownback is, indeed, the senior Senator from Kansas, but he 

refers to me as the dean of the delegation. 

[Laughter.] 

Senator BROWNBACK. That is how we parsed it. 

Senator ROBERTS. I am more than happy to join—

Senator BROWNBACK. It is age before beauty. 

[Laughter.] 

Senator ROBERTS. I am more than happy to join my senior Senator as dean and say with a great honor that I introduce and support the President’s nomination of Julie A. Robinson as our Federal 

District Judge for the State of Kansas. 

Madam Chairman, one only has to glance very briefly at her extensive record, spanning over two decades, to know she is highly 

qualified for this important responsibility. She is a skilled litigator, 

fully schooled in both criminal and civil areas of the law. Judge 

Robinson served with distinction as an Assistant U.S. Attorney for 

11 years, ultimately attaining the position of the Senior Litigation 

Counsel. 

Then in 1994, she ascended to the bench as our United States 

Bankruptcy Court Judge, and shortly thereafter, she sat on the 

United States Bankruptcy Appellate Panel of the Tenth Circuit. 

Her transition from being an advocate of the law to the interpreter 

524

of the law certainly came naturally, with very thoughtful opinions 

and judicious applications and unquestioned professionalism. She 

gained deep respect that she has now within the entire Kansas 

legal community. 

Judge Robinson does command respect from all who have been 

with her in the courtroom and in her courtroom, both losers and 

winners. Just as important, she commands respect, admiration, 

and affection from all who know her, both personally and professionally. 

An observation, Madam Chairman. Our task of confirming 

judges, in my opinion, is vitally important. Everybody on this Committee knows that. More so than ever in recent history, the landscape of our law is changing rapidly and is taking us further and 

further into new, uncharted territory. So our judicial vacancies 

must be filled by individuals that really possess more than just 

highly developed legal minds. 

Our nation’s system faces serious challenges. On the one hand, 

we demand the toughest of legal actions against those who attack 

our country. On the other, we look to our courtrooms and our 

judges to protect our basic individual liberties and our freedoms. 

This is a very difficult balancing act, but I am very confident that 

Judge Robinson is the right nomination at the right time. 

Now, more than ever, we need judges who understand the 

human element within the law. A judge’s ruling not only affects the 

primary participants in a case but the future, as well. Unforseen 

lives can be changed drastically by a single opinion. 

With so many changes occurring in the law, we need judges such 

as Julie Robinson who grasp this concept. It is this foresight that 

is needed now more than ever in these volatile times. 

Above all, it seems to me that this position requires a steward 

of the law with an impenetrable character. I assure my colleagues 

you will find no dissent with—

Chairman LEAHY. If the Senator could withhold just for a moment, we have a medical problem, and if you could withhold just 

for a moment. 

[Pause.] 

[Recess.] 

Senator FEINSTEIN. Thank you very much for your patience. We 

will resume the hearing. 

I would like to quickly just state how we will proceed. I would 

like to introduce for the record the statements of Senator Cleland, 

the finishing statement of Senator Roberts, the statement of Senator Miller, and also a letter that Senator Leahy is submitting on 

behalf of Mr. Rogan. That will be the order. 

[The prepared statement of Senator Roberts follows:]

STATEMENT OF HON. PAT ROBERTS, A U.S. SENATOR FROM THE STATE OF KANSAS

Mr. Chairman, it is with great honor that I introduce and support President 

Bush’s nomination of Julie A. Robinson as Federal District Judge for the state of 

Kansas. 

One only has to glance briefly at her extensive record spanning over two decades 

to know she is highly qualified for this important responsibility. A skilled litigator 

fully schooled in both criminal and civil areas of the law, Judge Robinson served 

with distinction as Assistant U.S. Attorney for 11 years, ultimately attaining the position of Senior Litigation Counsel. 

525

In 1994, she ascended to the bench as United States Bankruptcy Appellate Panel 

of the Tenth Circuit. Her transition from advocate of the law to interpreter of the 

law came naturally. With thoughtful opinion, judicious applications, and unquestioned professionalism she gained deep respect with in the Kansas legal community. 

Judge Robinson commands respect from all who have been in her courtroom-both 

losers and winners. Just as important, she commands respect, admiration and affection from all who know her, both personally and professionally. 

Our task of confirming Judges is vitally important—more so than ever in recent 

history. The landscape of the law is changing rapidly, taking us further and further 

into new, uncharted territory. Judicial vacancies must be filled by individuals possessing more than just highly developed legal minds. 

Our nation’s judicial system faces serious challenges. On the one hand, we demand the toughest of legal actions against those who attack our country. On the 

other, we look to our courtrooms and our judges to protect our basic individual liberties and freedoms. 

We know this is a difficult balancing act. However, I am confident that Judge 

Robinson is the right nomination at the right time. 

Now, more than ever, we need judges who understand the human element within 

the law. A judge’s ruling affects not only the primary participants in a case, but future litigants. Unforeseen lives can be changed drastically by a single opinion. With 

so many changes occurring in the law, we need judges such as Julie Robinson who 

grasp this concept. It is this foresight that is needed now more than ever in these 

volatile times. 

Above all, this position requires a steward of the law with an impenetrable character. I assure my colleagues you will find no dissent within the state of Kansas 

as to her moral fitness or professionalism. Character envelopes the core of her keen 

intellect—not to mention her down-to-earth good natured common sense. 

The Senate has both the duty and privilege to confirm Judge Robinson. Her abilities will benefit not only the state of Kansas, but the entire country. It is with great 

pride that I can come before you today in support of this remarkable woman. With 

so much cynicism directed towards the legal community today, Julie Robinson elevates this position to new levels. Supported by the entire Kansas Congressional delegation and the state of Kansas, she is ready for this challenge. Examine her record, 

consult her colleagues, but more importantly look closely at her character. You will 

be more than satisfied. 

Again, I urge her confirmation at the committee’s earliest convenience. An emergency exists within the Kansas district caused by a vacancy in Topeka. We need 

Judge Robinson and board as soon as possible to erase what is becoming a serious 

backlog of cases.

Senator FEINSTEIN. Directly following the statements made by 

Senators Kyl and Brownback, we will begin the hearings and all 

the judge candidates will come forward. You will be sworn in en 

banc. We will take Judge Robinson first, and then go down the line 

of other judges. Mr. Rogan will then follow. 

This room apparently is wanted at 12:30 for another Judiciary 

Committee meeting, so we are going to try to move as rapidly as 

we can and hopefully truncate our statements and our questions. 

Let me proceed, then. I would also like to incorporate in the 

record all opening statements of those who wish. 

Senator Roberts has left, so if we can proceed now with the Senator from Arizona, Senator Kyl. 

Senator KYL. Since the candidate from Kansas was being discussed, would Senator Brownback like to go ahead and finish that, 

and then I will make my statement. 

Senator FEINSTEIN. Senator Brownback, please, go ahead. 

PRESENTATION OF JULIA A. ROBINSON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF KANSAS BY HON. SAM 

BROWNBACK, A U.S. SENATOR FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you very much for yielding. I appreciate that from the Senator from Arizona. Thank you very much, 

526

Madam Chairman, for helping out in the difficult circumstance. I 

am happy to tell everybody it appears as if she will be fine. She 

is headed to the hospital for some routine tests, but thank you for 

your quick response to her. 

Senator FEINSTEIN. You are welcome. 

Senator BROWNBACK. That was Judge Robinson’s aunt, who lives 

back here in the Baltimore area, whose son is a cardiologist, so will 

be in good hands here in a short period of time. 

Senator Roberts had already mentioned about Julie Robinson’s 

background, which I am delighted to support for this judicial nomination position. If I could, I want to put my entire statement in the 

record and I just want to add a few bits of personal information. 

Judge Robinson and I were in law school together at the University of Kansas, the always fighting, every might Jayhawks, particularly in basketball, better there than in football, but she was an 

outstanding student at the University of Kansas. She clerked for 

a District judge in Kansas. She then went to the U.S. Attorney’s 

Office and was a lead litigator there and was appointed by President Clinton to the Bankruptcy Court and has served as a bankruptcy judge. So her legal pedigree is outstanding. 

Her blood line is incredible. She is a fourth generation Kansas 

from the Exoduster tradition, and for those people who do not know 

what an Exoduster is, it was a group of freed slaves that had 

moved out of the deep South after the Civil War. So in the 1860s, 

her family lineage came to Kansas and settled there and have been 

in Kansas ever since, fourth generation. They have shown themselves outstanding. Her father was a veteran of both the Korean 

and Vietnam conflict, was an intelligence warrant officer in the 

Army. He has since deceased, but I am certain that he is looking 

down from heaven today and quite pleased with his daughter, Julie 

Robinson. 

She is married. They have two children. They live in Kansas. She 

is very active in her community. She has been a disciple buddy 

Bible study facilitator. She works on racial reconciliation at her 

church. The American Bar Association has given her a unanimous 

‘‘well qualified’’ recommendation. 

Suffice it to say, Madam Chairman, I think what we have here 

is a candidate that is both qualified with her qualifications in the 

legal profession and qualified by her heart, by what all she has already done and the pedigree and the legacy that she carries on in 

an excellent, outstanding family, and I am very pleased to be here 

to support her candidacy. 

Senator FEINSTEIN. Thank you very much, Senator Brownback. 

[The prepared statement of Senator Brownback follows:]

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE OF KANSAS

Madame Chairman, fellow members of the Judiciary Committee, thank you for allowing me to appear before you on this side of the dais to introduce an outstanding 

nominee for the District Court for the District of Kansas. As the senior Senator from 

Kansas, I take great pride in her nomination, and I am thrilled to be here today 

to introduce Judge Julie Robinson and her Beautiful family to you. 

As a new member of the Judiciary Committee in this Congress, I took very seriously the job of finding a the best candidate to suggest to the President to fill the 

seat vacated by Judge Van Bebber for the District Court in Kansas. I undertook a 

lengthy process to interview candidates for this position, enlisting the assistance 

and input of excellent advisors in Kansas from both the private sector and acaVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00538 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.002 SJUD4 PsN: CMORC
527

demia. I pleased to state before this Committee, that Judge Robinson stood head 

and shoulders above all the other candidates I considered for the position of District 

Judge for the District of Kansas. 

Julie Robinson is a fourth-generation Kansan, whose roots in Kansas go back to 

the 1860s, when her father’s mother’s family, the Bakers, moved west as part of a 

movement known as the Exodusters, and settled in Hiawatha, Kansas, where they 

reside to this day. Julie Robinson in the great-granddaughter of those pioneers. 

Many of my colleagues from the East may not have heard of the Exodusters. Between the mid- 18602 and the 1880s, thousands of African-Americans settled in 

Kansas Oklahoma, and other part of the American West. Nicodemus, Boley, and 

other black towns where the product of long-distance migration of blacks from the 

Deep South. These were newly-freed slaves drawn to the American West to create 

new communities for people desperately seeking opportunity. In fact, the oldest and 

only remaining black settled town in the West is Nicodemus, Kansas, now a notional historical site. 

Judge Robinson’s parents served their country with distinction, a tradition which 

she has already followed in her current position, and a tradition which I am sure 

she will continue as a federal district judge for Kansas. Judge Robinson’s late father 

was a veteran of Korea and Vietnam, and served for many years overseas as a Intelligence warrant officer in the Army. I am sure he is very product of his daughter 

today. Judge Robinson’s mother, Charlene Robinson, who is here with here daughter 

today, served many years overseas as a nurse-practitioner with the Department of 

Defense, and also with the Veterans Administration here in the States. Due to her 

family’s service to their country, Judge Robinson grew up in places as diverse as 

Germany and the Panama Canal Zone. 

Judge Robinson’s family finally settled back in Kansas, where she had the opportunity to earn both an undergraduate degree in journalism and a law degree from 

the University of Kansas. I must not here that Julie’s brother Thomas Robinson, 

who is also here today, is also a graduate of the University of Kansas Law School. 

After graduating from law school in 1981, Judge Robinson clerked for the Honorable 

Benjamin E. Franklin, then the Chief Bankruptcy Judge for the District of Kansas. 

From 1983 to 1994, Judge Robinson was an Assistant U.S. Attorney in the District 

of Kansas, litigating both civil and criminal cases. From 1992 to 1994, Judge Robinson was designated Senior Litigation Counsel for the U.S. Attorney’s Office. Judge 

Robinson also taught trial practice at the University of Kansas law School from 

1989 to 1990. In February, 1994, President Clinton appointed Julie Robinson to her 

current position as a United States Bankruptcy Judge for the District of Kansas. 

She also currently serves as a Judge on the Tenth Circuit Bankruptcy Appellate 

Panel. 

Finally, Judge Robinson is active in here church as a leader of Disciple Bible 

Study, a facilitator on racial reconciliation, and she serves as a member of the South 

Africa mission team as well as several other ministries. 

Madame Chairman, fellow members of the Committee, it is my distinct honor and 

great pleasure to know Judge Julie Robinson, and to give here my highest recommendation to the Committee for the position of District Judge for the District of 

Kansas. Kansas is indeed blessed to have such a wonderful human and outstanding 

attorney willing to serve in the Third Branch of our nation’s federal government. 

I strongly urge the Chair and my colleagues on the Judiciary Committee to act 

swiftly to approve the nomination of Judge Julie Robinson, and to quickly confirm 

here as the newest District Judge for the District of Kansas before the 107th Congress adjourns. 

Thank you Madame Chairman.

Senator FEINSTEIN. Senator Kyl? 

PRESENTATION OF FREDERICK J. MARTONE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA BY HON. 

JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA 

Senator KYL. Thank you, Madam Chairman. I am a little bit biased because I have known Justice Frederick Martone now for almost 30 years and know his family. His son is an avid hiker of the 

same mountain that I hike when I can, and he can go up and down 

about four times for every one time I can. 

But Frederick Martone is known as one of the brightest legal 

minds in the State of Arizona, and he came to Arizona after growVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00539 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.002 SJUD4 PsN: CMORC
528

ing up in the East. He was an officer of the United States Air 

Force. He clerked for a judge on the Supreme Court of Massachusetts after his school, which began with a bachelor’s degree from 

Holy Cross University, his law degree from Notre Dame Law 

School, and then a Harvard Law School L.L.M. I will not get into 

all of the awards and the achievements in school, but would note 

that he was an editor of the Notre Dame Law Review. 

But he came to Phoenix, because that is where his wife’s family 

was from, in 1973 and joined one of the most prestigious and largest law firms in the State of Arizona, where he practiced for 12 

years. He had an extensive practice in Federal court. I am very familiar with that practice. That is, I think, where he acquired, as 

I said, a very strong reputation for keen legal mind and also, I 

would say, for being a superb writer. 

He was appointed to the Superior Court in Arizona, which is the 

trial court for the State, where he served for seven years, and then 

was appointed by the Governor of the State of Arizona to the Supreme Court of the State of Arizona, and he has served on the Arizona State Supreme Court now for nine years. He naturally has 

chaired many judicial type positions and is a leading member of 

the bar in the State of Arizona. 

In view of the circumstances, I will not further describe his qualifications except to say that, as I said, I have known Justice 

Martone now for almost 30 years, all of that time as a lawyer or 

judge, and I can truthfully say that there is nobody in the State 

of Arizona that I can think of that would come to the Federal District Court with higher qualifications, better experience than Justice Fred Martone. 

Therefore, I am very pleased to be able to introduce him here 

today and to say that my colleague, John McCain, who could not 

be here this morning, also strongly endorses Justice Martone for 

this position, and I am just delighted that the President has nominated him for the Federal District Court in Arizona. 

Senator FEINSTEIN. Thank you very much, Senator Kyl. 

I believe this completes the statements of the Senators on behalf 

of the nominees, and now if the nominees would please come forward and take their places at the table. The clerk will put out a 

little identity sign. Judge Robinson, you are over on the far left. 

Mr. Heaton is next, Mr. Land, Justice Martone, Mr. Reeves, and 

Mr. Rogan on the far right, you will be happy to know. 

[Laughter.] 

Senator FEINSTEIN. Since you are here we will talk with you as 

soon as we finish with the judges, if that is agreeable. If the judicial candidates could come forward, please. If you will remain 

standing and raise your right hand and simply affirm the oath 

after I complete its reading by saying either, ‘‘I do’’ or ‘‘I will.’’

Do you swear that the testimony you are about to give before 

this Committee is the truth, the whole truth, and nothing but the 

truth? 

Judge ROBINSON. I do. 

Mr. HEATON. I do. 

Mr. LAND. I do. 

Judge MARTONE. I do. 

Mr. REEVES. I do. 

529

Mr. ROGAN. I do. 

Senator FEINSTEIN. Thank you very much. Please be seated. 

Now, I will ask each of the nominees if they have a brief statement. We would appreciate your brevity, but by all means, we 

would love to have you introduce your family or friends who are 

here. Judge Robinson, if you would go first, please, and then we 

will go right down the panel. 

STATEMENT OF JULIE A. ROBINSON, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF KANSAS 

Judge ROBINSON. Thank you, Madam Chairman. I would like to 

introduce my family members that are here, my husband, William 

Thurman, my children, Jordan and Brooke Thurman, my mother, 

Charlene Robinson, my brother, Tom Robinson. My aunt and uncle 

have previously left, Uncle Lawrence and Aunt Ruth, and I have 

some bankruptcy judge colleagues who are also here, Tom Cornish, 

Marcia Krieger, and Dana Rasher. 

Senator FEINSTEIN. Terrific. I think we should give you all a big 

round of applause. Thank you very much. 

[Applause.] 

[The biographical information of Judge Robinson follows.]

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Senator FEINSTEIN. Mr. Heaton? 

STATEMENT OF JOE L. HEATON, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF OKLAHOMA 

Mr. HEATON. Senator, my wife and sons are not here. They have 

told me they expect a full report, but they are not with me today. 

[The biographical information of Mr. Heaton follows.]

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Senator FEINSTEIN. Thank you very much. 

Mr. Land? 

STATEMENT OF CLAY D. LAND, NOMINEE TO BE DISTRICT 

JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA 

Mr. LAND. Thank you, Madam Chairperson. I have a five, eight, 

and 11-year-old and I have found that their schedules are far more 

complicated than mine. 

Senator FEINSTEIN. I am sure that is right. 

[Laughter.] 

Mr. LAND. Neither they nor my wife were able to be here. My 

five-year-old gave me some good advice as I left, I believe it was 

yesterday or the day before. He said, ‘‘Daddy, just don’t mess up,’’

so I will try not to do that. 

[Laughter.] 

Senator FEINSTEIN. Thank you. 

[The biographical information of Mr. Land follows.]

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Justice Martone? 

STATEMENT OF FREDERICK J. MARTONE, NOMINEE TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA 

Judge MARTONE. Madam Chairperson, my wife, Jane, and my 

children, Jonathan and Anne, are not here today, but I know they 

are very supportive of me and thinking of me at this time. Thank 

you. 

[The biographical information of Judge Martone follows.]


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Senator FEINSTEIN. Thank you very much. 

Mr. Reeves? 

STATEMENT OF DANNY C. REEVES, NOMINEE TO BE DISTRICT 

JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

Mr. REEVES. Thank you. My wife is here with me today, Cindy 

Reeves. 

Senator FEINSTEIN. Welcome. 

Mr. REEVES. I am certainly pleased to have her here. My children could not make it today, Adam, who is 16, and Joseph, who 

is 11. They are both in school and are looking forward to a full report also. 

[The biographical information of Mr. Reeves follows.]

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Senator FEINSTEIN. Thank you very much. 

Mr. Rogan? 

STATEMENT OF JAMES E. ROGAN, NOMINEE TO BE UNDER 

SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY 

AND DIRECTOR OF THE UNITED STATES PATENT AND 

TRADEMARK OFFICE, DEPARTMENT OF COMMERCE 

Mr. ROGAN. Madam Chair, my wife, Christine, is here with me. 

Senator FEINSTEIN. Christine, if you would stand. 

Mr. ROGAN. My nine-year-old twin daughters, Dana and Claire, 

figured they have heard enough of their daddy’s speeches to last a 

lifetime. 

[Laughter.] 

Mr. ROGAN. I would like to introduce to the Committee also, and 

I am very pleased to have him join me, the Deputy Secretary of 

Commerce, Dr. Samuel Bodman, is also here. 

[The prepared statement and biographical information of Mr. 

Rogan follow.]

STATEMENT OF THE HON. JAMES E. ROGAN, NOMINEE TO BE UNDER SECRETARY OF

COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES

PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE

Madame Chairman and Members of the Committee: 

It is a great honor to join you today as President Bush’s nominee for the position 

of Under Secretary of Commerce for Intellectual Property and Director of the United 

States Patent and Trademark Office. I am grateful to the President for nominating 

me to this important post, and to Secretary Evans for his recommendation and support. 

Madame Chairman, I am especially blessed to be joined by my wife Christine and 

our young twin daughters, Dana and Claire. 

I want to thank Chairman Leahy and you, Madame Chairman, for scheduling this 

hearing. My gratitude is magnified when I reflect upon the unprecedented and 

grave issues with which this Committee must grapple following the cowardly attack 

on our people two months ago. 

Madame Chairman, we cannot overstate the importance of intellectual property 

in today’s global economy. For over 200 years American intellectual property has 

fueled our economic growth and will continue to do so. We need to do all we can 

on both the domestic and international level to promote and protect this invaluable 

resource. The individual confirmed by this body to be Under Secretary of Commerce for Intellectual Property plays a significant role in that effort. Not only does the Under 

Secretary oversee the issuance of patents and trademarks, but he or she also advises the President, through the Secretary of Commerce, and our Federal agencies, 

on all national and international intellectual property policy issues. Those issues include the negotiation and implementation of international treaties and improvements to those treaties; review of intellectual property provisions in trade agreements; dispute resolution; and consultation with foreign governments that look to 

develop or improve their intellectual property systems. 

If confirmed, Madame Chairman, my priorities will include working to improve 

the quality of patents granted and trademarks registered, and to minimize the processing times. USPTO customers deserve a quality product delivered in the shortest 

possible time. Since that requires substantial human and technical resources, I will 

work to ensure that USPTO has appropriate funding to do the job. I know the Administration and Congress already are working toward that important goal. 

On the international side, we need to continue reaching out to our foreign trading 

partners to encourage their support for strong intellectual property laws and enforcement systems. U.S. industries suffer enormous losses overseas through piracy 

and ineffective enforcement. 

As the record of this Committee shows, intellectual property-related matters traditionally are addressed in a bipartisan manner. The same holds true for the House 

Judiciary Committee, where I was privileged to serve during the 105th and 106th

Congresses. If confirmed, I will work diligently to continue that spirit of bipartisanship and cooperation as we deliberate on intellectual property-related policies. 

711

Madame Chairman, we already have the best intellectual property system in the 

world. If confirmed, I will do all I can to work with your Committee and with my 

former colleagues in Congress to make it even more effective and cost-efficient. 

Again, Madame Chairman, thank you for holding this hearing. I thank this Committee for its consideration of my nomination. I am pleased to answer any questions.

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Senator FEINSTEIN. Thank you very much. Thanks very much, 

Mr. Rogan. 

I am going to begin with one question to ask the entire panel, 

and if you would just answer it, we will just go right down the 

table, of course, with the exception of Mr. Rogan, who is not required to answer these questions. The question is, in your opinion, 

how strongly do you believe judges should bind themselves on the 

doctrine of stare decisis? Does the commitment to stare decisis vary 

depending on the court? 

Judge ROBINSON. Madam Chairperson, I believe that judges, it is 

their sworn duty to be bound by the doctrine of stare decisis and 

to be bound by those courts who sit in positions relative to their 

court by which their precedent would be binding. 

Senator FEINSTEIN. Thank you very much. 

Mr. HEATON. I agree, Senator. There may be some difference in 

the circumstance for Supreme Court Justices, but certainly for 

those of us who seek to be on the District bench, we are bound to 

follow the decisions of the higher appellate courts and I would certainly do that. 

Senator FEINSTEIN. Thank you. 

Mr. LAND. Madam Chair, I also agree that trial judges should be 

bound by prior precedent in their circuit and of the Supreme Court 

and do accept and understand the doctrine of stare decisis. 

Senator FEINSTEIN. Thank you. 

Judge MARTONE. Madam Chairperson, I agree. I think the doctrine of stare decisis is an important component of the rule of law 

itself. I think every judge takes an oath to support that. 

Senator FEINSTEIN. Thank you. 

Mr. REEVES. I would certainly agree with the comments that 

have been expressed previously and understand the importance of 

stare decisis, especially at the District Court level. 

Senator FEINSTEIN. Thank you very much. 

I am sure that you followed the debate here in Capitol Hill, and, 

in fact, across the country, about the need for legislation to address 

the risk of more terrorist attacks. Without getting into any specific 

proposals, what do you think the trade-offs—this is an interesting 

question—what do you think the trade-offs need to be between liberty and security? Please, Judge Robinson? 

Judge ROBINSON. Madam Chairperson, I do not know that I can 

be specific in my answer. The Supreme Court has given us direction in terms of our liberty interests under the United States Constitution and those should be foremost in our mind. But at the 

same time, our country is facing a serious problem. I do think that 

is something that would have to be answered in the context of a 

case that has been prosecuted or indicted under a particular statute and the language of that statute. 

Senator FEINSTEIN. Thanks very much. 

Mr. Heaton? 

Mr. HEATON. I agree with that, Senator. I certainly appreciate 

the need for us to strike the appropriate balance in making sure 

that our responses to the security threats to the country do not undercut our civil liberties or cause us to lose our commitment to 

those. Certainly as a District judge, if I am confirmed, I would approach any issue that might come before me of that sort from the 

727

presumption that an act of Congress is constitutional but would 

apply the accepted constitutional norms to evaluate that in a particular case. 

Senator FEINSTEIN. Thanks very much. 

Mr. Land? 

Mr. LAND. Madam Chair, this body and Congress has that awesome responsibility, I believe, of balancing those different interests. 

As a judge, I believe that if I were to be confirmed, my job would 

be to try to determine the most analogous precedent that exists 

under the doctrine of stare decisis and apply it to any law that is 

applied. I do not believe the judge should be making the law in 

that area, but the judge’s job would be to interpret what this body 

and what Congress does in that area and should follow precedent 

that is closely analogous to what would be before the judge and try 

to follow in that way. 

Senator FEINSTEIN. Thanks very much, Mr. Land. 

Justice? 

Judge MARTONE. Madam Chairperson, liberty and security are 

two sides of the same coin and it goes back to really political 

science in terms of how we order society. You cannot have liberty 

without order and you cannot have order without liberty. And I 

agree with what has been said, that it really is up to bodies like 

this to properly reflect the will of the American people in terms of 

striking the appropriate balance at any given moment in history. 

Senator FEINSTEIN. Thank you. 

Mr. REEVES. Again, I certainly agree with all the comments that 

have been made by the other nominees and would agree certainly 

to evaluate any liberty interest under the legislation that has been 

passed. 

Senator FEINSTEIN. Thanks very much. I appreciate it. 

Now after those softball questions, I am going to turn to a very 

tough questioner and really observe seniority. Senator Kyl? 

Senator KYL. Thank you, Senator Feinstein. I might add that 

Senator McConnell has seniority in his tenure in the Senate, but 

by the Committee process, I got on this Committee first, and that 

might clear up a little bit of confusion for those of you who are 

aware of his longer service here in the Senate. 

Rather than ask a question, I am going to make a brief statement, primarily for the benefit of those of you who are in the audience who care about one or more of the nominees who are at the 

table here. 

This hearing should be viewed as literally the tip of the iceberg. 

All of the work that has gone into the President’s decision on who 

to nominate for these important positions, the Committee staff, all 

of these people, primarily younger people sitting behind us, have 

spent a great deal of time going over all of the material that has 

been submitted in the applications and from the White House and 

Justice Department relative to the nominations here. The American Bar Association has done its evaluation of the nominees, and 

other groups that may have an interest have submitted to us. 

So by the time we get to the hearing, in fact, the mere scheduling 

of the hearing itself is a recognition in almost every case that the 

candidate is ready to move forward, that nobody has a problem 

with that. Now, there are a few rare exceptions to that, and, in 

728

fact, the hearings that you have seen on television or read about, 

perhaps, are those rare exceptions where there is a real question 

about a particular nominee and all of the Senators gather around 

and we really have a good old knock down, drag out questioning 

period with tough questions and debate and then we reach our conclusion and have a vote, however that might come out. 

But for most of the nominees, the genius of our process here is 

that the President does a great deal of vetting. He communicates 

with the Senators from the State and then the process in the Committee here advances in the same way so that by the time we get 

to this hearing, all of the tough questions have been asked and the 

cream rises to the top. These are the very best, and so the chances 

are we do not need to ask a lot of tough questions. You have already seen from Senator Feinstein’s questions, every one of these 

nominees knows exactly why they are here, what the law is, and 

how they will apply it. 

So if you were expecting a huge crowd of Senators here or a long 

hearing, a lot of questions and that kind of thing, the reason you 

are not seeing it is because you are here in support of a very qualified candidate who we have already figured out is very qualified. 

In that sense, this is part of the process that we have to go 

through, but you should not view it as one in which we are trying 

to trip anybody up. 

All of these people are supremely qualified, and I just want you 

to know that the fact that we may be able to conclude this hearing 

in a relatively quick form and without a great deal of fireworks 

does not suggest a lack of interest on our part, but rather the degree to which these nominees have already been found to be highly 

qualified. So that is my statement without a question. 

Senator FEINSTEIN. Thank you, Senator Kyl, very much. 

Senator McConnell? 

Senator MCCONNELL. Senator Feinstein, let me also echo what 

Senator Kyl has said. Congratulations to all of you for having run 

the gauntlet and having gotten to this stage. The inquisition is 

really not necessary at this point. You have all been through that 

at a prior stage and I want to congratulate you all for having gotten to this point, particularly, of course, Danny Reeves, the President’s nominee from Kentucky. I am proud of your record over the 

years which has earned this appointment and we fully anticipate 

that you will be an outstanding District Judge in the Eastern District of Kentucky. 

Mr. REEVES. Thank you, Senator, very much. 

Senator KYL. [Presiding.] I might say that the vote that was 

scheduled for 11:15 has now commenced and Senator Hatch and 

Senator Feinstein will go vote. I plan to stay here, and then when 

they come back, I will go vote and they will continue to chair the 

meeting. 

Senator McConnell, did you have anything else at this point? 

Senator MCCONNELL. No, I do not think so, Senator Kyl. 

Senator KYL. Senator Brownback? 

Senator BROWNBACK. Thank you very much, Senator Kyl. 

I want to put forward a statement, as well, because of the nature 

of the questioning that has already been conducted in a great deal 

of thoroughness with all the background checks that have been 

729

done on each of you and the vetting that each of you have gone 

through. 

The position that you will hopefully soon attain, and you will, I 

think is one of the most important ones within our government. 

You hold decisions over people’s lives that are a very personal and 

a very real impact. My wish for each of you is just for wisdom in 

being able to do these in a way that is right for the people involved 

in the litigation and right for the people that are impacted by the 

broad swath of the decision that you make, and a lot of these decisions will move on up the tree, whether it is appellate court or Supreme Court and shape, then, our land in a non-legislative way, in 

many regards, and yet we retain for the legislative vehicle to really 

be the one to change our land. 

So you have an enormous impact directly on the people’s lives 

that you are going to be involved with in the litigation and indirectly through the laws that you help shape that we pass here. 

I hope that none of you ever get stale in the job. A number of 

you are younger. I still consider myself in that category, as well. 

To be on the bench for a lifetime, I hope you will be, I hope that 

50 years from now when you are still deciding cases that you will 

walk into that same courtroom with the same zest and yearning to 

do the right thing that I know you will enter into it right now. 

There is a tendency, I think, for some us, after a while, we get used 

to it and think, well, it is not that big of a deal, but it is a big deal 

and it really touches people’s lives and souls in a very key way. 

This is one of the most important positions that we put people 

into in the Federal Government, one of the most important positions in government outside of a county commissioner. I guess I always think they touch people’s lives about as much as anybody 

does, as well. 

But all the best to each of you and to your families in going 

through this and the sacrifices that you will have in our land in 

making these tough calls and interpreting the laws and their impact on people. My wish is just all for the best for each of you. Godspeed. 

Senator KYL. Thank you, Senator Brownback. 

There are a couple of questions I would like to ask. One is a 

more practical question, perhaps. Given the fact that a lot of our 

courts are not fully staffed, and even with your accession to the 

bench will continue not to be fully staffed, and we are seeing increasing caseloads, some of you have already served as judges, but 

a general question for any of you who would like to volunteer and 

answer first. Given the inevitability of increasing caseloads and yet 

the need to do justice, do you have any specific ideas or experience 

in handling cases, in handling your caseload in such a way as to 

provide perhaps suggestions to others or to give us an idea of how 

you will manage that difficult balancing act. Is there anybody who 

would like to volunteer for that? 

Mr. REEVES. Senator Kyl, I will go first, if that is appropriate. 

Senator KYL. Sure. 

Mr. REEVES. As a practitioner now for nearly 18 years, I have observed in Federal Court, in particular, that the judges who take 

control of cases early, understand the cases, and use the civil rules 

and the other rules that are available, are able to manage their 

730

dockets a little better. The Federal Rules of Civil Procedure certainly give us an opportunity to do that, with Rule 16 and with 

other rules for conducting hearings and scheduling conferences 

early, and I would hope that if my nomination is confirmed that 

I would certainly be able to do that and to take charge and take 

control early in the process. 

Senator KYL. As a fellow litigator who had the same frustrations 

sometimes, I appreciate that answer. Thank you. 

Mr. Heaton? 

Mr. HEATON. Senator, in the Western District of Oklahoma, in 

addition to that, which I certainly agree with, ten or 15 years ago, 

we had precisely the experience that you have described of substantial caseloads and so on, and as a result, our district became 

very aggressive in its use of alternative dispute resolution techniques in making sure that the various opportunities for settlement 

were at least fully explored with the parties. I do not think that 

is something that should necessarily supplant the litigation process, but it is an available option, and I think as a part of the early 

intervention by the Court, those are options that can help to move 

cases along quickly. 

Senator KYL. I appreciate that. Do any others want to add something, or I will move on to another question. 

I have always been fascinated, of course, when you a District 

Judge, as all of you have said, you follow the Supreme Court precedents, but occasionally there is something that we like, at least 

some lawyers will characterize as a case of first impression. Sometimes they are not really. But if you see a case that at least appears to you to be a case of first impression, how then do you approach that in terms of precedents of the Supreme Court, general 

rules of construction, and so on? What is your philosophy about approaching a case with constitutional aspects that at least appears 

to be a case of first impression? Again, I will just ask the question 

generally for anybody who would like to address it. Justice 

Martone? 

Judge MARTONE. Well, I think one would first look to the text, 

and if the text is clear or if you think it is clear, then that should 

be the end of the inquiry. If a consideration of the text leads to an 

absurd result, then it might take you down a different avenue. 

If consideration of the text is insufficient to produce a sensible 

answer to the question, then one would look at the context in 

which the statute exists, the statute taken as a whole, try to get 

a feel for what the legislative purpose was articulated either in 

that particular statute or the chapter of which it is a part, look to 

what precedents may exist to give sort of guidances to at least 

what the general framework of analysis is. 

And then in the end, apply reason and common sense to see if 

reason and common sense can ultimately have an influence and 

come to bear on a resolution that makes sense. 

Senator KYL. Any other— Judge ROBINSON. I agree fully with what Justice Martone said. 

The only other thing I would add is that if it does have constitutional implications, and I am assuming we are talking about statutory construction, the canon that you begin with a presumption 

that the statute is constitutional is a very important one. 

731

Senator KYL. As a legislator, I appreciate that. 

Let me ask you a question about judicial temperament. One of 

the things that is difficult for us to measure objectively when we 

read the resumes and we get the reports from folks is just what 

kind of judicial temperament a candidate will have, and that is not 

always easy to measure. But in the interviews that are conducted 

about each of you, one of the questions that is asked is, how about 

this matter of judicial temperament, how they will treat litigants 

who come before them in the court, how they will deal with colleagues and so on, a very important matter in the qualifications of 

a judge. 

It is an open-ended thought or question, but do any of you have 

any thoughts or advice to others about how to approach this question of judicial temperament in order to do your job, pressing the 

lawyers, for example, as Mr. Reeves said, within the bounds of the 

law, but doing it in a way that enhances the respect for the bench? 

Mr. LAND. Mr. Chairman, I will try that one. I think that a judge 

not only needs to be fair and unbiased but he needs to have the 

appearance of being fair and unbiased. I think that he needs to 

present himself in a way on the bench to where the litigants feel 

that the judge is fair and unbiased, and I think that means being 

courteous. I think it means being respectful and understanding 

that every person there in the courtroom has a job to do. 

I think that those things can be done while maintaining the decorum and order in the courtroom. But I think that the judge needs 

to demonstrate that type of demeanor so that every person that has 

come before that judge realizes that the judge, regardless of the 

final decision, has been fair and has been unbiased in deciding the 

particular case. 

Senator KYL. The rule of law that Justice Martone referred to 

earlier is such a basic component of our society as a whole. If people accept a decision even though it may be counter to their interests, that enhances the rule of law. Today, there are so many 

young people coming before the court on criminal charges, many of 

them who are—well, in fact, in my own State of Arizona, many who 

came from another country very recently, maybe legally, maybe not 

legally, and so you end up with a lot of cross-currents in terms of 

the kind of people who appear before you as a judge. 

I wonder if any of you have any thought about how you maintain 

the temperament in that situation in a way as to maybe even perhaps influence that young person’s life for the better, though he or 

she stands before you accused of a crime. That is an additional 

challenge that the judge really bears heavily in our society today, 

it seems to me. Any thoughts about how you assume that extra responsibility, I guess we will put it that way? Mr. Heaton? 

Mr. HEATON. Senator, I think the answer is essentially what was 

just described to us, and that is that we need to be mindful of the 

need to even-handedly and fairly deal with everybody in the courtroom, regardless of their circumstances or the job that they are 

there to play, because that ultimately does contribute greatly to the 

public confidence in what we are doing and public confidence in the 

judicial system. 

Senator KYL. I think especially with a lot of these young people 

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room, wherever they are going, is very, very important for the future of our country. 

Just one final question. We are talking here about the Federal 

District Court and most of you had experience in the State Court 

system in one way or another. We are very desirous of protecting 

that proper relationship between the Federal Government and the 

States, and as a Federal District judge, obviously your primary responsibility is dealing with Federal statutes, but I know the Federal judiciary frequently complains about Congress federalizing 

more and more and more in terms of the legal requirements. 

Do you have any thoughts about this proper balance between the 

Federal and the State and how, as a Federal District judge, you 

would deal with some of the conflicts that come about, where you 

may have a State Court case and a Federal Court case, for example, or particular State interests but you are dealing with a Federal 

statute. Any general thoughts on that from any of you? 

Judge MARTONE. Senator Kyl, let me at least begin by saying 

that in Arizona, and I think in most States and in most circuits, 

there are State Federal Judicial Councils consisting of Federal 

judges and State judges who meet together, go over areas of common concern that exist between and among the various courts. 

Ours meets twice a year. We have addressed such things as capital 

case litigation, trial conflicts between the State and Federal Courts, 

the disruptive effect of bankruptcy stays on proceedings in the 

State trial court, and it has been absolutely marvelous in terms of 

the coordination and communication that goes on and now exists 

between the State and Federal judges in the State. 

Senator KYL. Thank you. I appreciate that, and I presume other 

States have that same kind of coordination. I would hope that they 

do. 

Senator Feinstein had some questions, and since she will be back 

here in just a moment, let me just maybe refer to one or two of 

them, so I will ask these questions on her behalf. 

Mr. Land, she was going to ask you this question. Noting your 

legal experience focusing on civil matters, most notably insurance 

litigation, she asks, if you are confirmed, how you respond to the 

challenge of handling the criminal matters that will be before you, 

and particularly she also wondered what led you to sponsor a bill 

in 1996 to create a Civil Justice Reform Commission and what you 

learned as Chairman of that commission. 

Mr. LAND. Thank you, Mr. Chairman. First of all, with regard to 

the first part of the question regarding my criminal litigation experience or lack thereof, you are correct that my practice has been 

primarily in the civil litigation area, but I have had exposure to the 

criminal justice system and those issues, having served in the Senate Judiciary Committee during the entire time that I was in the 

Georgia General Assembly. Ninety-five percent of the litigation, or 

the legislation that affected the criminal justice system came 

through our Committee and, therefore, I did have exposure to analyzing those issues, those proposed statutes, how they were affected 

by our Constitution, and those types of things. So I have had some 

exposure as a member of the Senate Judiciary Committee. 

Second, I was also chairperson of the Georgia Indigent Defense 

Council, which is an agency in Georgia that provides—is a mechaVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00744 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.002 SJUD4 PsN: CMORC
733

nism for providing funding for indigent defendants who are accused 

of crime and it also provides certain guidelines, minimum guidelines for providing criminal defense for indigents. In that capacity, 

I have had exposure to those types of issues involving our criminal 

justice system, so I think I do have some exposure to those issues. 

Thirdly, although not presumptuous but as a matter of preparation for hopefully being confirmed, I have taken it upon myself 

with a law professor who is now an associate dean at the University of Georgia Law School who has provided me with a couple of 

good treatises on Federal criminal procedure and I have taken it 

upon myself to try to review those. The law professor said that the 

worst thing that could happen is, if you are not confirmed, at least 

you will have learned a little something. 

[Laughter.] 

Mr. LAND. So I have done those things with regard to trying to 

get up to speed in the area of the criminal side of the equation, understanding that my experience has been on the civil side. 

With regard to the question about the Civil Justice Reform Act 

that I sponsored in 1996 and, in fact, it was a bipartisan piece of 

legislation, there were cries in the State of Georgia, as there are 

in Congress, I am sure, about our civil justice system and whether 

there are any improvements that should be made. 

There were a number of legislators on both sides of the aisle in 

the State of Georgia who felt that in order for us to make decisions 

that were that important, we needed information, and in order for 

us to find that information, we needed to establish a commission 

or the civil justice—this was a Civil Justice Improvement Commission, I think, to analyze those issues, and we did that. Although 

the General Assembly was Democratic at the time, the Lieutenant 

Governor at that time appointed me as chair to look into that. It 

was a broad bipartisan effort. 

We held hearings and tried to determine an analysis of our civil 

justice system in Georgia, and what we basically concluded was we 

did not have a data collection system that could give us the information we needed to make good decisions. So the ultimate recommendation of our commission was to establish a data collection 

system that would allow us to obtain the necessary data from the 

courthouse, from the filing to the end result with verdicts and 

those types of things so that we could look and see what our system was rather than making decisions solely for maybe political 

reasons but base it on fact, and that is what we ended up doing. 

I am proud to say that I subsequently sponsored the bill to establish that data collection system and it has made its way through 

the legislative process and we are starting now to collect better 

data so that legislators can make those decisions. I am long-winded 

and I apologize. 

Senator KYL. No, I will just ask you to repeat everything you just 

said for Senator Feinstein. I have to run to vote now, Senator Feinstein. Thank you. 

Senator FEINSTEIN. [Presiding.] Thank you very much, Senator 

Kyl. I appreciate it. 

Senator McConnell, do you have questions? 

Senator MCCONNELL. I do not, Senator Feinstein, at least until 

I hear what you might have to ask. 

734

Senator FEINSTEIN. All right. If I may, then, Mr. Heaton, I have 

got a couple of questions for you. Among a number of your actions 

in the Oklahoma legislature, you voted against tabling a bill that 

sought to ban all post-viability abortions except to save the life of 

a woman. You also voted for a bill that would require a young 

woman to wait 48 hours after a parent had been notified that she 

is seeking abortion services. Could you explain the rationale for 

these votes? 

Mr. HEATON. Well, Senator, I frankly do not remember the specifics of those bills. There has been a fair amount of water under 

the bridge since I cast those votes. I would just say that, in general, I certainly recognize that Roe v. Wade is the law of the land, 

as it has been modified in the Casey and other decisions, and if I 

am fortunate enough to be confirmed, I certainly would follow those 

decisions. There is nothing in my personal viewpoint that would 

preclude me from following the law as articulated in those decisions. 

Senator FEINSTEIN. I see. Thank you. That is very helpful. I appreciate that. 

Mr. Reeves, hello. 

Mr. REEVES. Hi. 

Senator FEINSTEIN. If I may, in Griswold v. Connecticut, the Supreme Court for the first time recognized the constitutional right 

to privacy. It went on to reaffirm and expand this right in 

Eizenstat v. Baird. Following these decisions, the Supreme Court 

then recognized a constitutional protectional for a woman’s right to 

choose in Roe v. Wade, as you well know. Do you support and believe in a constitutional right to privacy? 

Mr. REEVES. I certainly recognize the Supreme Court cases and 

the cases in my circuit that have recognized a right to privacy. As 

the other nominees have said, I would certainly apply and enforce 

those decisions. 

Senator FEINSTEIN. So how would you quantify your understanding of the constitutional right to privacy? 

Mr. REEVES. Well, as you indicated, I think the first case you 

mentioned was the contraceptive case, the Griswold decision, which 

clearly has been enforced and should not be in any doubt at this 

point, as well as subsequent decisions that recognize a right to privacy, not only for contraceptive issues but the right to choose, as 

Mr. Heaton had indicated in Roe v. Wade and the Casey decision 

and the other cases that have followed. That provides the contours 

of the right to privacy that has been recognized. 

Senator FEINSTEIN. One more question, if I may. In your 1993 

brief for the case of Horner v. Kentucky High Schools Athletic Association, you mentioned Congressional intent a number of times. For 

example, you state that, and I quote, ‘‘Simply because Congress 

may have intended to broaden the coverage of Title IX does not invalidate the approach used in the Kleczek court determining whether an entity is a recipient for Title IX purposes.’’ You also wrote that, quote, ‘‘While the Kentucky High School 

Athletic Association does not dispute that Congress may have intended to provide broader coverage to Title IX, it does not follow 

that the Kentucky High School Athletic Association is subject or 

has violated its provisions via its actions.’’

735

What degree of investigation into Congressional or legislative intent do you think Federal judges have a duty to pursue? 

Mr. REEVES. Well, certainly if there is an ambiguity or if there 

is some question, for example, in the case that you mentioned, the 

Horner case, the whole issue of the programmatic approach that 

was discussed in the Kleczek case from Rhode Island was really an 

open issue at that time. There had only been a couple of cases that 

had really discussed that issue. And under those circumstances, 

when there is such an open issue, such an open question, and we 

are really not sure, then I think it is certainly appropriate to look 

at what the legislature intended. 

Senator FEINSTEIN. As a Federal judge, how would you give deference to legislative intent? 

Mr. REEVES. Well, certainly the cases have helped us determine 

when that would occur, especially some of the recent cases where 

we look at congruence and proportionality when we are examining 

a statute under the 14th Amendment, Section 5, and that is certainly important. But it is the court’s analysis that really has to 

take place. The court has to examine those issues and to reach the 

right decision based upon the precedent. 

Senator FEINSTEIN. Thank you very much. 

Senator McConnell, any questions? 

Senator MCCONNELL. Let me just point out that in the case to 

which Senator Feinstein was just referring, you were representing 

your client, were you not, the Kentucky High School Athletic Association? 

Mr. REEVES. Absolutely. 

Senator MCCONNELL. and arguing as best you could on behalf of 

your client the various points you thought might apply. 

Mr. REEVES. Certainly. 

Senator MCCONNELL. But, in fact, you have no hostility to Title 

IX, I—

Mr. REEVES. Oh, none whatsoever. As a matter of fact, I have 

and do speak frequently on those issues. I volunteer a lot of time 

to discussions among various school groups, boards of education, 

booster clubs—

Senator MCCONNELL. Trying to help them understand how to 

comply with Title IX, is that correct? 

Mr. REEVES. Yes, exactly. 

Senator MCCONNELL. Thank you. 

Senator FEINSTEIN. Senator Hatch, you are up. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. We are happy to welcome all of you to the Committee. I am sorry I have been so pressured today I have not been 

able to be here for most of this hearing. We have been working on 

the Job Protection Act, the stimulus package, and a whole raft of 

other things, as well. 

But I know each and every one of you and I just want to tell you 

that we are very proud that you have been nominated to these positions. These are important positions, among the most important 

in our whole society, and we are grateful that you are willing to 

736

make the sacrifices and that you are so well qualified to be able 

to fulfill these positions. 

So we are grateful to have you all here. I do not have any questions. I think I know enough about each of you to be a strong supporter. That is all I care to say. We wish you the best and we will 

do everything we can to get you through as soon as we can. 

Senator FEINSTEIN. Thanks very much, Senator. 

[The prepared statement of Senator Hatch follows:]

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

It is both an honor and a pleasure to be here this morning with six extremely 

well-qualified nominees for important positions in the Federal Judiciary and the department of Commerce. I congratulate all of you on being selected by President 

Bush to serve in high office. After reviewing your distinguished records, I have no 

doubt that you will do great service for the citizens of this country upon confirmation. 

First, our judicial nominees. Joe Heaton is a native Oklahoman with an outstanding record of legal experience and public service. After graduating from the 

University of Oklahoma College of Law—where he was Order of the Coif—he maintained a general civil practice with an emphasis in business and commercial matters. For eight years, Mr. Heaton served as a member of the Oklahoma House of 

Representatives, including several years as Minority Leader. Then in 1996, Mr. 

Heaton began serving in his current position as the First Assistant U.S. Attorney 

for the Western District of Oklahoma, where he has earned a good reputation while 

handing a wide variety of legal matters. 

Clay D. Land, our Nominee for the Middle District of Georgia, brings to the bench 

extensive legal experience gained from a career blending private practice and public 

service. After graduating cum laude from the University of Georgia law school in 

1985, Mr. Land returned to his home town of Columbus, Georgia, where he has 

maintained a general civil practice. In 1993, he served as chairman of the Georgia 

Indigent Defense Council, which is charged with the responsibility of overseeing the 

funding and implementation of indigent criminal defense programs in the state. 

From 1993 to 1994, he served on the Columbus City Council, where he was a strong 

advocate for anti-drug programs in poor neighborhoods, and led the effort to provide 

transportation for disadvantaged children to attend Saturday tutorial programs. 

And from 1995 to 2000, he served as a Georgia state senator, where he was a member of the Judiciary Committee. 

Today’s nominee for the District of Arizona is no stranger to the bench. Justice 

Frederick J. Martone currently serves on the Supreme Court of Arizona, Justice 

Martone was educated further East; he graduated from Holy Cross College, from the 

Notre Dame Law School, and earned and LL.M. from the Harvard Law School. 

Danny C. Reeves is our nominee for the federal bench in the Eastern District of 

Kentucky. He began his legal career as a law clerk for then-district Judge Eugene 

Siler, who now sits on the Sixth Circuit. Mr. Reeves then joined the Lexington office 

of Greenebaum, Doll & McDonald, where he rose to the rank of partner in 1988. 

Despite his busy legal carrier, he has served as a director of the Volunteer Center 

of the Bluegrass, the Kentucky Museum of Natural History, and the Bluegrass 

Youth Hockey Association. 

Julie A. Robinson, today’s nominee for the District of Kansas, graduated from the 

University of Kansas School of Law and then went to work as a law clerk to the 

Chief Bankruptcy Judge for the District of Kansas. She must have liked the clerkship—for the last six years, she has been sitting as a Bankruptcy Judge on that 

very same court, and also currently serves as a Judge on the Tenth Circuit bankruptcy Appellate Panel. In between, Judge Robinson gained a wealth of both criminal and civil experience as an Assistant U.S. Attorney in the District of Kansas. 

Now, I’ll turn to our Administration nominee. James E. Rogan has been nominated to serve as Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office at the Department of Commerce. The 

position of Undersecretary for Intellectual Property is an exceptionally important 

position, being the Administration’s primary intellectual property policy maker, and 

overseeing the Patent and Trademark Office in its mission of serving and protecting 

American innovators and businesses plays a crucial role in keeping America on the 

leading edge of technology and competitive in the global marketplace. I am pleased 

that the President has nominated Mr. Rogan, and that Mr. Rogan has chosen to 

737

serve, in these important roles. In his service in the House of Representatives, he 

became familiar with many of the issues he will face in this new role. 

The pace of American innovation is continuing to increase. Consequently, the Patent and Trademark Office faces daunting challenges as it seeks to improve the quality and efficiency of its work while the volume of that work continues to climb in 

an era of increasing technological complexity. Many of the issues the patent office 

faces—retention of good examiners, good databases to support the issuance of quality patents in complex areas such as biotech patents, business methods, or other developing areas, harnessing technology for a more user-friendly and convenient interface through electronic filing—these and many other issues require resources to be 

addressed adequately. 

The resources that support the Patent and Trademark Office come entirely from 

user-fees have been siphoned off to serve other governmental purposes. This is a 

practice that I have worked against together with Chairman Leahy over the years. 

We agree that it ought to stop, and the fees collected from American innovators be 

used to serve them better so that their work can benefit all of us and our economy. 

Mr. Rogan is perhaps uniquely qualified among nominees to this office to address 

this issue, to raise the visibility of intellectual property issues, generally, and to 

help lead the way into a new ear of innovation through the protection of the intellectual property rights of Americans. I look forward to seeing him confirmed soon and 

working with him on these important issues. 

Again, it is a great pleasure to welcome all of you to the Committee. I look forward to this hearing, and to working with the Chair, with Chairman Leahy, and 

with others to make sure the Committee and the full Senate hold timely votes on 

your nominations.

Senator FEINSTEIN. If any of the other judicial candidates wishes 

to address the Committee in any way, please do so now. Otherwise, 

I am going to dismiss this panel and we will go to Mr. Rogan. 

[No response.] 

Senator FEINSTEIN. If not, then thank you very much for being 

here. We appreciate it. 

As you are leaving, if people can do so reasonably quietly, I 

would like to welcome former Congressman James Rogan. Jim is 

a fourth generation San Franciscan now nominated to head the 

United States Patent and Trademark Office. Congressman Rogan 

arrives at this nomination after a very long and diverse career, 

from a high school dropout to a member of the House of Representatives, from stacking tires and scrubbing toilets to prosecuting the 

impeachment trial of a President on the floor of the United States 

Senate. 

He did not come from the easiest of backgrounds, but Jim Rogan 

put himself through UC–Berkeley and then UCLA Law School. 

Later, he prosecuted gang murders in Los Angeles. He was named 

by California Lawyer magazine as one of the State’s most effective 

prosecutors for his work. He was subsequently appointed by Governor George Deukmajian to the Glendale Municipal Court as California’s youngest sitting judge, and at age 35, he was unanimously 

elected by his colleagues as the court’s presiding judge. 

Mr. Rogan then ran for and won a special election to the California State Assembly, where he was unanimously elected during 

his freshman term to serve as the first Republican majority leader 

in almost 30 years. In 1996, he won the first of two consecutive 

terms to the United States Congress, where he served on the 

House Judiciary Committee, including time as a member of the Intellectual Property Subcommittee of that Committee, a position 

that will serve him well in his new capacity, should he be confirmed. 

Many Americans now know Mr. Rogan only as one of the House 

prosecutors in the Senate trial, but his years of service to the peoVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00749 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.002 SJUD4 PsN: CMORC
738

ple of California show him to be much more than that, and I warmly welcome him before this Committee today. 

Mr. ROGAN. Madam Chairman, thank you so much for that wonderful introduction. Of all those qualities that you have articulated, 

the one that you left out is that I never showed the incredibly poor 

judgment of running for the U.S. Senate against you. 

[Laughter.] 

Mr. ROGAN. As you ponder my nomination, I hope you will keep 

that in the back of your mind. 

[Laughter.] 

Mr. ROGAN. Thank you. Thank you for that introduction. 

Senator FEINSTEIN. Thank you. Senator Hatch? 

Senator HATCH. Welcome to the Committee, Mr. Rogan. 

Mr. ROGAN. Thank you, Senator. 

Senator HATCH. We have a great deal of respect for you. This position happens to be one of the most important positions in government. Of course, it is basically administering something that even 

the Constitution recognizes as that important. 

The intellectual property that you will be supervising is one of 

our real balance of trade surpluses and it is important that we 

handle it correctly, that we do it right, and that we set an example 

for the rest of the world. In many cases, we do have piracy of intellectual property that really should not exist in a civilized world. 

The countries that do that basically are going to have a difficult 

time really coming into this century the way they should. 

But I will not go through all of the incredibly important things 

about your appointment and your background. We all know you. 

We have respect for you. You are a person of integrity, a person 

who stands up for what he believes. To me, that is very important 

and I particularly appreciate you and your family willing to make 

this sacrifice and to do these things to help you serve in this position. 

The Patent and Trademark Office faces daunting challenges as 

it seeks to improve the quality and the efficiency of its work while 

the volume of that work continues to climb in an era of increasing 

technological complexity. Many of the issues the Patent Office 

faces—retention of good examiners, good databases to support the 

issuance of quality patents in complex areas, such as biotech patents, business methods, or other developing areas, and harnessing 

technology for a more user-friendly and convenient interface 

through electronic filing. These and many other issues require resources in order to address them properly. 

The resources that support the Patent and Trademark Office 

come entirely from user fees, but a large portion of those user fees 

have been siphoned off to serve other governmental purposes. Now, 

this is the practice that I have worked against, together with 

Chairman Leahy, over the years. We agreed that it ought to stop, 

and that the fees collected from American innovators ought to be 

used to serve them better so that their work can benefit all of us 

and our economy. 

I believe you, Congressman Rogan, are uniquely qualified, among 

nominees to this office, to address this issue, to raise the visibility 

of the intellectual property issues generally, which is important, 

739

and to help lead the way into a new era of innovation through the 

protection of the intellectual property rights of all Americans. 

I look forward to seeing you confirmed soon and I look forward 

to working with you on these important issues. So, it is a great 

pleasure to have you here. I am very proud of you and we will do 

everything we can to assist the Chairman and others in getting you 

through the Senate as soon as possible. 

Mr. ROGAN. Senator, thank you. I had the privilege during my 

tenure in Congress to work with you and Senator Leahy and members of this Committee on that very issue which you addressed, the 

diversion of funds. I cannot tell you how the administration is 

going to come down on the subject. What I can tell you is that the 

administration is committed to ensuring, one way or another, that 

the U.S. PTO has the appropriate funds to do the job, so that as 

you so rightly said, the examining board, the examining members 

would be able to do the job and help move us into the 21st century. 

Senator HATCH. Thank you. 

Senator FEINSTEIN. I am going to ask you, if I may, one question 

along those lines. The Patent and Trademark Office has reported 

that in 2000, patent applications were up 12 percent over the prior 

year. Trademark applications were up 27 percent. The number of 

issued patents increased by 15 percent, and issued trademark registrations was up 21 percent. They expect that the rate of increase 

will continue, and it is now taking about 14 months to process a 

patent application and six months to process a trademark registration request. 

How do you intend to address that situation, which some have 

characterized as an impending crisis? I know you will be new to 

the job, but I would be very curious if you have any thoughts on 

that. 

Mr. ROGAN. Madam Chairman, I think the first thing that the 

next director should do is view it exactly as you just said, an impending crisis. In fact, the information I have seen from the Commerce Department and from the Patent and Trademark Office 

paints even a more bleaker picture than what you have just described. I think the average pendency right now is about two-anda-half years, and by 2006, they expect that pendency rate to go to 

about three-and-a-half years. That makes it very, very difficult for 

entrepreneurs, for investors, and for particularly those that are investing resources in high-tech patents to basically sit and wait to 

see if their investment is going to pay off. 

In a large way, we are a victim of our technological successes, because as we move to more high-tech patents, the examination process becomes far more complex. I read of one patent that was sent 

over to the U.S. PTO with background materials that filled up 12 

disks that would be the equivalent of six million pages of supporting material. 

These are very, very technical issues, and on top of that, we have 

run into the problem of losing a very highly trained examination 

core to the private sector. Whoever has the privilege of being confirmed by this body to that position is going to have to work very 

hard, first, to see that we have the resources to hire and to retain 

qualified examiners and also to find ways that we can give them 

740

more flexibility in reviewing the materials that they have to go 

through so that we can turn out a quality product. 

Senator FEINSTEIN. So, of course, your position as a former 

House member would put you in a rather unique position to do the 

necessary lobbying for the funds you might require for your staff. 

Mr. ROGAN. Yes and no, Madam Chairman. I think had I never 

served in the House, I would perhaps approach the job with the illusion that it would be easy to talk to appropriators to give up 

their power. 

[Laughter.] 

Mr. ROGAN. That is a double-edged sword. 

Senator FEINSTEIN. Thanks very much. 

Senator Hatch, do you have any questions for Mr. Rogan? 

Senator HATCH. I know Mr. Rogan very, very well, and frankly, 

I do not have any questions for him. We have chatted about these 

areas and I have every confidence that he is going to do a great 

job and we are going to help him. 

I appreciate you, Madam Chairman, and your fairness on this 

Committee. I think you have been a pillar of decency on the Judiciary Committee during good times and bad and it has always meant 

a lot to me. 

Senator FEINSTEIN. Thank you. 

Senator HATCH. But I fully and strongly support Mr. Rogan. I believe he will be one of the greatest heads of this Department who 

has ever sat there, and I am counting on him being there because 

I take a tremendous interest, as do Senator Leahy and other members of this Committee, in all the intellectual property issues because we think that is where an awful lot of where we are going 

in this country really is, and in the world. 

Mr. ROGAN. Thank you, Senator. 

Senator HATCH. It is extremely important that we have good people there, and I consider you very highly qualified for this job, one 

of the best to ever be nominated for it. So I am grateful to be with 

you and I am grateful to support you. 

Mr. ROGAN. One lesson I have learned in politics is quit while 

you are ahead, and I do not think I will add anything else. 

Senator HATCH. I think you have shown a number of lessons 

here today in some of your comments. I particularly enjoyed those 

ones about Senator Feinstein. 

[Laughter.] 

Mr. ROGAN. Senator Hatch, I do not know if you were there for 

the initial introduction, but I want to assure everybody that when 

I sent my biographical materials over to the chairwoman’s office, 

it was no accident that I put in that I am a fourth generation San 

Franciscan. 

[Laughter.] 

Senator HATCH. Will you stop at nothing? 

[Laughter.] 

Senator FEINSTEIN. You are very good on the uptake today. 

Senator HATCH. Thank you. We are grateful to have you serving, 

grateful for your wife and family, and we will be there with you. 

Mr. ROGAN. Thank you, Senator. 

Senator FEINSTEIN. Thanks very much, Jim. 

Mr. ROGAN. Thank you, Madam Chairman. 

741

Senator FEINSTEIN. Much of the best, and thank you, ladies and 

gentlemen, for bearing with us during this morning’s hearing. The 

candidate is excused. 

Before I adjourn, we will keep the record open for one week, until 

the close of business on November 14, for written questions. Thank 

you all. The hearing is adjourned. 

[Whereupon, at 11:54 a.m., the Committee was adjourned.] 

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

QUESTIONS AND ANSWERS

Responses of Joe L. Heaton to questions submitted by Senator Leahy 

Question 1: Please state whether you have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes’’, please provide the relevant dates of arrest, charge, and disposition and then 

describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation report prepared on me, I respectfully direct your attention 

to that report for a response to this question.

Question 2: Throughout your legal career, you have served in both legislative and 

executive capacities and at both the state and federal level—first as a member of 

the Oklahoma House of Representatives and now as First Assistant U.S. Attorney 

in the Western District of Oklahoma. What perspective have these experiences given 

you on the relationship between the federal judiciary and the states? Between the 

judicial and executive branches of the federal government? 

Answer: These varied experiences have given, me a heightened appreciation for 

the separate roles played by the various branches and levels of government and for 

the importance of respecting the functions and prerogatives of each branch. These 

experiences should help to keep me mindful of the proper limits of judicial power, 

including the need to defer to the policy judgments of the legislative branch so long 

as constitutional standards are met. I believe the diffusion of power in our government, including the separation of powers doctrine and the federal system, is important to the preservation of our freedoms. I would be conscious of the need to maintain the appropriate balance between branches and levels of government, in accordance with the standards articulated by the higher courts.

Question 3: As you know, the role of legislator and federal judge are very different. As a state lawmaker, you weigh policy concerns, your own personal ideology, 

and even politics in writing bills and voting on proposed legislation. As a federal 

judge, you are charged with a far different task: decide a case oar controversy based 

on the facts in front of you and apply the controlling legal authority without regard 

to your own personal views. 

Answer: I am in complete agreement with this statement.

Question 4: Press reports indicate that in 1990, as a state legislator, you opposed 

a bill that would provide a private cause of action to any individual who had been 

intimidated or harassed by hate groups because of his race or their religion. Many 

of your colleagues apparently supported the legislation because they felt it would 

provide compensation to people who had been injured by such hurtful behavior and 

would drive hate groups out of business. 

Do you believe that civil causes of action against private citizens or groups are 

appropriate tools for enforcing individuals constitutional and civil rights? 

Do you believe that as a district judge you would have any problem fairly adjudicating claim such as the one contemplated by this legislation? 

Answer: My view is that private rights of action are one of several tools which 

might be appropriately employed to provide an enforcement mechanism for constitutional, civil or other rights. As a policy matter, whether a private cause of action 

is the appropriate remedy for a particular class of rights or in a particular set of 

circumstances would depend on any number of factors, including the effectiveness 

of criminal enforcement or the existence of some other statutory enforcement 

scheme. Once a legislature has made a judgment on these factors, I am confident 

I could, if confirmed, fairly adjudicate a claim based on a statute or legislation like 

that described in the question or any other duly enacted legislation. I do not recall 

742

the specific basis for my vote on the bill alluded to, but assume my objection would 

have been based on preferring other means of attacking hate crimes. I had earlier 

supported legislation imposing criminal penalties for intimidating or harassing others on the basis of race, religion and other factors.

Question 5: In 1989, in Texas v. Johnson, 491 U.S. 397 (1989), the United States 

Supreme Court held that the First Amendment does not allow states to criminally 

prosecute people who burn American flags as a political protest. The Court said 

that, ‘‘IMP there is a bedrock principle underlying the First Amendment, it is that 

the government may not prohibit the expression of an idea simply because society 

finds the idea itself offensive or disagreeable.’’ Johnson, 491 U.S. at 414. Immediately following the ruling, you called the Supreme Court’s decision ‘‘out of whack’’ and advocated for a state resolution urging Congress to propose a constitutional 

amendment banning flag desecration. (Source: Ron Jenkins, Lawmakers Ponder 

Proposed Flag-Burning Amendment, Tulsa World, July 2,1989, at A2.] 

Do you continue to adhere to this characterization of the Supreme Court’s opinion 

that the majority was ‘‘out of whack?′′ Do you believe that flag burning is a form of political expression, which, no matter 

how offensive we might find it, is protected by the Constitution’s free speech guarantees? 

Would you have any difficulties adhering to the letter and the spirit of this decision if it provided controlling legal authority in a case before you? 

Answer: In light of the decision in Johnson, the law is clear that flag burning is 

a form of political expression protected by the Constitution’s free speech guarantees 

and I would certainly have no difficulty in applying that rule and standard in any 

case coming before me. My earlier characterization of the Supreme Court decision 

as a legislative policy matter would have no bearing on my rulings if confirmed as 

a district judge. 

I recognize the critical, central role of free speech (including expressive conduct) 

in our constitutional scheme and in our society generally, and would have no difficulty in adhering to the letter and spirit of the controlling authorities in this area.

Question 6: Also during your tenure in the Oklahoma state legislature, you advocated for a bill that would require death sentences to be carried out within 60 days 

of a court’s decision in a prisoner’s last appeal unless a court or the Governor granted a stay. 

As you may know, since 1973, 98 people in 22 states have been released from 

death row after evidence of their innocence was discovered. While some of these 

cases were in the federal habeas process, many were on appeal in state court. In 

a recent high profile case, prisoners were exonerated after journalism undergraduates—not lawyers or even law students—uncovered exculpatory evidence. In light 

of these disturbing statistics, do you continue to support such a legislative proposal? 

What role, if any, do you believe a federal district court judge plays in balancing 

a criminal defendant’s right to a full and fair trial, especially in capital cases, and 

the state’s interest in punishing the convicted in an expeditious manner? 

Answer: My recollection is that the referenced bill would have applied only if direct appeals and collateral review had been exhausted. It was designed to assure 

that if arguable grounds for stay of the judgment existed at that point, they be actively pursued either by presentation to a court or to the Governor rather than allowing indefinite delay in execution of the sentence. 

Any instance of the wrongful conviction of an individual is disturbing. That is particularly so in capital cases. Given the obvious difference between the death penalty 

and other types of punishment, the Supreme Court has in various ways required 

heightened reliability in the adjudicative process leading to a death sentence. Moreover, Congress and state legislatures are uniquely qualified to consider other means 

by which DNA evidence or other facts for determining a defendant’s guilt or innocence are available during trial and post-conviction proceedings. In light of governing precedent and statutes, I believe it is appropriate for me to defer to legislative judgment on these matters. If confirmed as a nominee to the federal bench, I 

would take very seriously the need to assure a full and fair trial through rigorous 

application of all applicable constitutional and statutory procedures.

Question 7: During your career as a state legislator, you were a strong proponent 

of right-to-work legislation and supported a number of legislative initiatives that 

would make it more difficult for workers to secure basic protections from their employers. 

How will you set aside these views in your capacity as a district court judge if 

matters involving federal labor laws or workers’ rights come before you? 

Answer: I don’t view my legislative record as one of denying basic protections to 

workers. However, regardless of how a particular legislative initiative might be 

743

characterized, the fundamental answer to the question is the same in this area as 

in others: I recognize that a judge’s job is to put aside personal policy preferences 

or personal ideology, to decide the cases on the basis of the facts in the case before 

him or her, and to apply the controlling legal authority without regard to his or her 

personal views. I am committed to that principle and will follow it in matters involving federal labor laws or workers rights, as well as in any other area of the law.

Question 8: While you were serving in the state legislature, you said that ‘‘Goldwater was my original hero, later supplanted by Reagan.’’ [Source: Jim Meyers, New 

House GOP Leader a Fast Mover, Tulsa World, Jan.17,1989, at Al.] Now that you 

have been nominated to serve as a federal judge, who do you consider your judicial 

hero and why? 

Answer: I don’t know that I have thought of him as a ‘‘hero’’ but, since reading 

many of his opinions in law school, I have greatly admired former Supreme Court 

Justice John M. Harlan as a model of what a good appellate judge should be. His 

opinions seemed to me to consistently reflect excellence in the judicial craft—mastery of the record, incisive analysis and discussion of the legal issues involved in 

the case, and clear explanation of his decision and the basis for it. His opinions 

tended to stay focused on the specific issues raised by the case before the court and 

avoid dicta. His opinions also reflected respect for the principle of separation of powers and for the federal system, as well as the limitations inherent in being a judge 

rather than a policymaker.

Question 9: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental area, granting states significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: The determination of the outer limits of Congressional power in various 

areas has always been difficult and I recognize that the Supreme Court has struck 

down several significant acts of Congress in recent years. In evaluating the constitutionality of any .legislation which might come before me as a District Judge, I would 

start from the presumption that an Act of Congress is a constitutional exercise of 

legislative power. In determining whether there was a basis for overcoming that 

presumption, I would be bound by and apply the applicable constitutional tests as 

set out by the higher appellate courts.

Question 10: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: My general understanding of applicable precedent is that Congress has 

the power to abrogate a state’s sovereign immunity where it unequivocally expresses 

the intent to do so and where it acts pursuant to a valid grant of constitutional authority. Kimel v. Florida Bd of Regents, 528 U.S. 62 at 73 (2000). Section 5 of the 

Fourteenth Amendment potentially provides such a grant of power. Kimel at 80. 

Congress’ power to enforce the Amendment’s protections against discrimination extends to prohibiting a ‘‘broader swath of conduct’’ than that proscribed by the 

Amendment itself. Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 

at 363 (2001). Whether particular legislation is a permissible exercise of this power 

depends on whether the legislation exhibits ‘‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’’

City of Boerne v. Flores, 521 U.S. 507 at 520 (1997). Garrett and other cases address 

the question of how the ‘‘congruence and proportionality’’ standard would be applied. 

Whether an enforcement scheme involving a private right of action for discrimination could theoretically meet this standard would have to be evaluated under the 

constitutional tests set forth in Garrett and other cases.

Question 11: If Congress provides money to a state on condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing the funds? 

744

Answer: The Supreme Court has held Congress may, in the exercise of its spending power, giant funds to States on condition that the States take some action which 

Congress could not directly require them to take. South Dakota v. Dole, 483 U.S. 

203 (1987). This would appear to include a condition that the States voluntarily 

waive their immunity to suit, although there is some suggestion in the cases that 

the financial inducement offered by Congress could conceivably be so coercive as to 

undercut the voluntariness of the waiver of immunity. College Savings Bank v. Florida Prepaid Post secondary Education Expense Board, 527 U.S. 666 (1999); Dole, supra, at 211. The specific condition addressed in the question would have to, be 

evaluated in the context of a specific case raising the issue.

Question 12: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: I am unaware of any such statutes or sections. As noted previously, I 

would, if confirmed, apply the presumption of constitutionality to all acts of Congress.

Question 13: Are there any federal statutes or sections thereof that go beyond 

Congress’ enumerated powers under the Constitution? 

Answer: I am unaware of any such statutes or sections. As noted previously, I 

would, if confirmed, apply the presumption of constitutionality to all acts of Congress.

Responses of Clay D. Land to questions submitted by Senator Leahy

f Question 1: Please state whether you, have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination., other than a minor 

traffic violation, that is reflected in a record available to the public, If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition anal 

then describe the particulars of the offense. 

Answer: I am informed that background investigation reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation. report prepared on. me, I respectfully direct your attention to that report for a response to this question.

Question 2: In response to a question about ‘‘Judicial activism’’ in your questionnaire, you wrote that ‘‘Judges should interpret the law based upon their discernment of the drafters’ intent.’’ If confirmed, as a judge what factors would you consider iii discerning legislative intent? 

Answer: First, one should look at the plain’ language of the statute. If that language is unclear, then a review of other cases interpreting the provision in question 

may be helpful. General rules of statutory construction may also aid in the interpretation of legislative intent. Finally, legislative history of the provision in question 

may aid in the interpretation of the statute.

Question 3: In. ,the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights arid prerogatives of our snore vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted by the Commerce Clause. These cases have 

been described as creating a new power for state governments, as federal authority 

is being diminished. At the same time, the Court has issued several decisions, most 

notably in the environmental arena, granting states’ significant new authority over 

the use of land anal water, despite long-standing federal regulatory protection of the 

environment. Taken individually, these cases have raised concerns about the limitations imposed on Congressional authority; taken collectively, they appear to reflect 

a ‘‘new federalism’’ crafted by the Supreme Court that threatens to alter fundamentally the structure of our government. What is your view of these developments? 

Answer: Judges should exercise restraint understanding their proper role in our 

system of government. In deciding the constitutionality of a statute, judges should 

approach their inquiry with a presumption of constitutionality and a genuine respect for the constitutional role assigned to the other two branches of government. 

In deciding cases under the Commeree Oat and under Section 5 of the Fourteenth 

Amendment as a federal district court judge, I would be bound to follow the legal 

precedent set by the United States Supreme Court and the United States Circuit 

Court of Appeals for my circuit.

745

Question 4: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: If. confirmed, I would be bound by the legal precedents set by the United 

States Supreme Cow and the United States Circuit Court of Appeals for my circuit. 

It is my understanding that under the current state of the law, Congress can address the sovereign immunity issue by offering federal funds in exchange for a waiver. of sovereign immunity (South Dakota vs. Dole, 483 U.S. 203 (1987)) and/or by 

enacting legislation under Section 5 of the Fourteenth Amendment to remedy or 

prevent constitutional violations. It is my understanding that the Supreme Court 

has stated that for this type legislation under Section 5 of the Fourteenth 

.Amendment, there needs to be a ‘‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’’ (City of 

Boerne vs. Flores. 521 U.S, 507, 520 (1997)). The Supreme Court has further expanded on the application of this standard in subsequent cases. See Kimel vs. Florida Bd. of Regents, 528 U.S. 62 (2000)) and Bd. of Trustees of the Univ. of Alabama

vs. Garrett, 531 U.S. 955 (2001)). If I am confirmed, I would be required to apply 

the standard set forth by the Supreme Court to the individual case before me.

Question 5: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing funds? 

Answer: It is my general understanding that Congress nay induce states to consent to suit by offering them federal funding in exchange for the state’s waiver of 

immunity. South Dakota vs. Dole. 483 U.S. 203 (1987). However, the Supreme Court 

has also explained that Congress’ power to place conditions on funding is not unlimited. Id. If confirmed, I would apply the governing precedent in thus area, as well 

as Supreme Court precedent regarding abrogation of state sovereign immunity cited 

above in response to question 4. I would also approach an inquiry as to a statute’s 

constitutionality with the presumption that Acts of Congress are constitutional.

Question 6: Are there any federal statutes of sections thereof concerning which the 

Supreme Court has not yet ruled that violate the state sovereign immunity doctrine 

under the U.S. Constitution? 

Answer: Not that I am presently aware of If confirmed, I would approach any inquiry as to the constitutionality of an Act of Congress with a presumption as to its 

,constitutionality.

Question 7: Are there any federal statutes of sections thereof that go beyond, Congress’ enumerated powers under. the Constitution? 

Answer: I am presently unaware of any federal statutes or sections thereof concerning which the Supreme Court has not yet ruled that go beyond Congress’ enumerated powers under the Constitution. The Supreme Court has nailed in previously decided cases that there are limits on Congress’ Commerce Power. See 

United States vs. Lopez, 514 U.S. 549 (1995). If confirmed, I would be bound by the 

precedents established by the Supreme Court and the Circuit Court of Appeals for 

my Circuit. When confronted with a constitutional question, I would also approach 

the constitutional inquiry with a presumption as to the constitutionality of the statute in question.

Responses of Frederick J. Martone to questions submitted by Senator 

fLeahy

Question 1: Please state whether you have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes’’ please provide the-’relevant date of arrest, charge, and disposition and their 

describe the particulars of the offense. 

I am informed that background investigation reports on nominees prepared by the 

Federal Bureau of Investigation (FBI) routinely address the type of information 

called for by this question. Without waiving the confidentiality of the FBI investigation report prepared background on me, I respectfully direct your attentions to that 

report, for a response to this question.

Question 2: You have extensive experience on the bench in Arizona, and I believe 

your, record on the state Superior and Supreme Courts is commendable. What are 

746

the most important lessons you learned in these positions that are relevant to service on the federal district court? 

Answer: A judge must be patient anal consider the views of others, but also must 

be decisive and have the moral courage to make difficult decisions. A judge should 

be mindful that even though we are doing serious work, we should not take ourselves too seriously. A judge, must be diligent but flexible. With experience; one can 

grow in wisdom. A judge should be prompt and not fear reversal. In our aspiration 

for justice, fairness and common sense count for much.

Question 3: As you may know, I support enacting legislation to reform the death 

penalty as it applied in this country. Since 1973, 98 people in 22 states have beer 

released from death row with evidence of their innocence. Many of these cases were 

on appeal in state court, others were in the federal habeas process. Some prisoners 

were exonerated after journalism undergraduaties—not lawyers or even law students—uncovered exculpatory evidence. 

Answer: In 1995 you gave a speech at a symposium sponsored by the Goldwater 

Institute and the Federalist Society. In it, you discussed the slow pace of capital litigation from state courts to federal habeas review. You, said, ‘‘it’s scandalous for (the 

Arizona Supreme Court) to be reviewing cases that are eighteen and twenty years 

old.’’ You continued, ‘‘it raises the question that if we can’t do it any better than 

that, consistent with fundamental fairness, then maybe we shouldn’t be doing it at 

all.’’

Please explain what you meant in the above-quoted statement. 

By the quoted sentences, I meant to suggest that back in 1995 our court was considering cases in which the time elapsed between the offense and the carrying out 

of the sentence (18–20 years) was nearly a generation. I was suggesting that we 

needed to examine ways in which we could reduce unnecessary delay without compromising fundamental fairness or the rights of the defendant. In 1996, Congress 

enacted the Antiterroism and Effective Death Penalty Act (AEDPA), P.L. 104–132, 

to address these issues. It further adjustments are necessary, Congress is especially 

equipped to make additional amendments to the federal habeas provisions. I would 

be bound by any such enactments and the decisions of the Supreme Court construing them.

Question 4: What role, if any, do you believe a federal district court judge plays 

in balancing a criminal defendant’s right to a full and fair trial—especially in capital cases—against the state’s interest in punishing the convicted in an expeditious 

manner? 

Answer: An effective trial judge can properly balance the interests of both sides 

to a capital case. The trial judge has an obligation to ensure that the defendant has 

a full and fair trial and sufficient time and resources to mount an appropriate defense at both the guilt and penalty phase of, a capital case. If the government is 

going to seek the death penalty, then it must ensure that the system has the proper 

resources, including competent; defense counsel, investigators, and expert witnesses, 

to ensure a full and fair proceeding. The trial court can also be sensitive to the 

needs of victims of crime and treat them with dignity and respect. Legitimate delays 

in the processing of a case should be explained to them so they will understand that 

the case is proceeding in a fair way.

Question 5: In 1995, you observed that perhaps the time had come to abandon 

diversity jurisdiction in the U.S. District Courts. You quoted others as calling diversity jurisdiction ‘‘a federal social program that subsidizes otherwise well-financed 

non-federal litigation.’’ You said that state courts would not be greatly burdened by 

absorbing the litigation of diversity cases then in the U.S. District Courts. Is this 

an opinion that you still hold? Would you elaborate on this view? 

Answer: Federal diversity jurisdiction had its origin in the understanding that at 

one time in America it was thought that state courts might have. difficulty in being 

fair to out-of-state litigants. While that may have been true at one time in America, 

it does not comport with my own experience as a lawyer or judge in Arizona. As 

a lawyer, I selected a federal forum, not because of fear of local prejudice, but for 

other tactical reasons. As a judge, I have never seen or had a case in which anyone 

ever suggested unfairness as a result of the state residency of a litigant. Of course, 

I acknowledge the existence of diversity jurisdiction and its constitutional basis, and 

would protect and respect its exercise as an Article III judge.

Question 6: In the past few years, the Supreme court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have bean described as creating new power for state governments, as federal 

747

authority is being diminished. At the same time, the Court has issued several decisions most notably in the environmental arena, granting states’ significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: All legislation is presumed) to be constitutional. The governing precedents in this area include City of Boerne v. P.F. Flores, 521 U.S. 507, 117 S. Ct. 

2157 (1997) and United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). Under 

Boerne, Congress has the power to enforce the provisions of the Fourteenth Amendment, where there is congruence and proportionality between the injury to be prevented and the means adopted to that end. Under Lopez, Congress has the power 

to regulate the use of the channels of interstate commerce, the instrumentalities of 

interstate commerce persons or things in interstate commerce, and activities having 

a substantial effect on interstate commerce. I would be bound to follow precedent 

established by the Supreme Court.

Question 7: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: Board of Trustees of the University of Alabama v. Garrett,——U.S.—— , 121 S. Ct. 955 (2001), Kimel v. Floresda Board of Recents, 528 U.S. 62, 120 S. Ct. 

631 (2000), and City of Bourne v. Flores, 521 U.S. 501–7, 117 S. Ct. 2157 (1997) 

address these issues and better de-fine the power of Congress. While Congress is 

the final authority on public policy, in order to authorize actions for money damages 

against a state, consistent with the Eleventh. Amendment and section 5 of the Fourteenth Amendment, there must bee pattern of discrimination which violates the 

Fourteenth Amendment and the remedy; imposed must be congruent and proportional.

Question 8: If congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is missing such funds? 

Answer: Under South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793 (1987) , Congress may condition the receipt of funds on the adoption of legislation under Congress’ spending power. The exercise of the spending power most be in pursuit of the 

general welfare. Deference should be given to Congress. The conditions must be 

stated unambiguously so a state may know the consequences of its choice and must 

be related to a federal interest. Finally, there must be no other provision of the Constitution that independently bars a conditional grant.

Question 9: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: I am unaware of any. All legislation is presumed to be constitutional.

Question 10: Are there any federal statutes or sections thereof that go beyond 

Congress’ enumerated powers under the Constitution? 

Answer: 

Responses of Danny C. Reeves to questions submitted by Senator Leahy

I am unaware of any. All legislation is presumed to be constitutional.

f Question 1: Please state whether you have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected is a record available to the public, If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition and then 

describe the particulars of the offense. 

Answer: I am informed that background investigation reports an nominees prepared by the Federal Bureau of ’Investigation (FBI) routinely address the type of 

information called for by the question- Without waiving the confidentiality of the 

FBI background investigation report prepared on me, I respectfully direct your attention to that report for a response to this question.

Question 2: You represented the Kentucky High School Athletic Association in a 

Title IX case that went on for a number of years, Horner v. Kentucky High School 

Athletic Association (‘‘KHSAA’’). When this case went before the Sixth Circuit in, 

748

1994 (Hornet I), your brief contained a number of arguments, including the following: (1) You argued that KHSAA was not subject to Title XX, even though the 

association performed the statutory duties of a recipient of federal funds (the management of into interscholastic athletics) pursuant to state law. (1) You argued that 

only programs that directly received federal funds are covered by Title IX, every 

though Congress had passed the Civil Rights Restoration, Act of 1987 with the clear 

intent to ensure that Title IX (and the other analogous civil rights statutes), would 

be interpreted broadly. The Sixth Circuit rejected your arguments and found that 

KHSAA was covered by Title IX. Your argument that the specific program or activity must receive federal financial assistance appears to ignore that in passing the 

Civil Rights Restoration Act of 1987, Congress clearly stated that the ‘‘purpose of 

the Civil Rights Restoration Act of 1987 is to reaffirm the pre-Grove City College 

judicial and executive branch interpretations and enforcement practices which provided for broad coverage of the anti-discrimination provisions of [the] civil rights 

statutes.’’ S.Rep. No. 100–64, at 2 (1987). 

Do you agree that in passing the Civil Rights Restoration Act of 1987, Congress 

clearly expressed its intent to overturn the program-specific reading of the Grave 

City case, even though you appear to have asserted this program-specific interpretation in your brief? 

Answer: Arguments made as an advocate in this and other matters do not necessarily reflect my personal feelings or opinions, If confirmed, I agree to follow the 

doctrine of stare decisis and faithfully apply all applicable precedents to the facts 

presented in all cases regardless of Whatever personal feelings or opinions I might 

have. 

Review of relevant authorities indicates that Congress intended to expand the 

scope of Title IX beyond the holding of Grove City College v. Bell, 465 U.S. 555 

(1984) through the Civil Rights Restoration Act of 1957. However, I do not believe 

that the arguments made in Horner are inconsistent with Congressional intent. 

Questions remained after 1987 concerning the extent of Title IX expansion as it related to entities such as the Kentucky High School Athletic Association (KHSAA), 

which do not directly receive federal funds. For example, four years after passage 

of the 1987 amendments, the court in Kleczek v. Rhode Island Interscholastic 

League, 768 F.Supp, 951 (D.R.I. 1991), concluded that the provisions of the statute 

did not extend beyond the entity actually receiving the federal funds. In Horner the 

court recognized that no program or activity of the KHSAA received federal funding. 

Further, no evidence was presented that any member of the KHSAA used federal 

funds to pay membership dues. Likewise, as the Sixth Circuit explained, the party 

delegating authority to the KHSAA (the Kentucky State Board of Elementary and 

Secondary Education) also did not directly receive federal funds. Horner 43 F.3d 

265, 272 (6th Cir. 1994). Therefore, the question in did not raise the same question 

that had been presented earlier in Horner. Instead, the issue presented involved 

separate entities. Review of relevant authorities decided before Grove City also supported the arguments made on behalf of the KHSAA in Horner. See Yellow Spring 

Exempted Village School Dist. Bd. of Educ. v. Ohio High School Athletic Ass’n, 647 

F.2d 651 (6th Cir. 1981). 

Question a: Do you agree, as the Sixth Circuit in Homer ruled, that Title IX properly reaches entities such as KHSAA, that perform the duties of a recipient of federal funds? 

Answer: For the reasons outlined above, it would be incorrect to characterize the 

KHSAA as performing the duties of a recipient of federal funds inasmuch as the 

Sixth Circuit hold that the Kentucky State Board of Education (as contrasted with 

the Department of Education) was not a federal funds recipient. However, I understand and appreciate the basis of the Sixth Circuit’s ruling in Hornet concerning direct versus indirect recipients of federal funds. I would follower and other relevant 

decisions if my nomination Is confirmed.

Question b: Additionally, do you agree, as the Sixth Circuit indicated, that Congress has made it clear that the scope of Title IX’s equal education opportunity obligations go to ‘‘the furthest reaches of an institution’s programs? ’’

Answer: As noted above, I understand and appreciate the basis of the Sixth Circuit’s ruling and would follow it in any applicable cases that would come before me 

if my nomination is confirmed.

Question 3: In Horner II, you argued, in part, that the appellants disparate treatment claim should fail because they ‘‘failed to offer any evidence of gender-based 

discriminatory animus or conduct on the part of KHSAA.’’

Do you believe that animus is part of the required showing in a disparate treatment cast, despite the Supreme Court’s decision in UAW v. Johnson Controls holdVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00760 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.002 SJUD4 PsN: CMORC
749

ing that a sex-based classification policy constituted intentional discrimination regardless of motivation? 

Answer: As an initial matter, the issues presented in Horner II are distinguishable from UAW v. Johnson Controls. Horner II involved an implied cause of action 

for monetary damages under Title IX, a statute enacted under the Spending Clause. 

For the reasons outlined and explained in Franklin v. Gwinnett County Public 

Schools 503U.S. 58 (1992) and Pennhurst School and Hospital v. Halderman 451 

U.S.1 (1981) monetary damages are not appropriate for unintentional violations of 

the statute. Based upon these authorities, evidence of intentional discrimination is 

necessary in order to seek recovery of monetary damages for an alleged violation 

of Title IX is the athletic context. Conversely, the plaintiff asserted that monetary 

damages could be recovered absent such proof of intentional discrimination. The 

Sixth Circuit agreed with the KHSAA’s position. In relevant part, the court held 

that the case was the ‘‘Title TX equivalent’’ of Guardians Assn. v. Civil Serv. Conn’n 

of New York City, 463 U.9. 582 (1983). While holding that the plaintiffs had not provided any evidence of intentional discrimination (applying either a discriminatory 

animus or deliberate indifference standard), the court also held that the plaintiffs 

had failed to establish the elements of a Title IX claim. 

On the other hand, International Union UAW v. Johnson Controls, 499 U.S. 187 

(1991) involved a challenge under Title VII to an employer’s policy of barring fertile 

women from jobs involving exposure to lead exceeding OSHA standards. Unlike 

Title IX, Title VII applies to employers without regard to federal funding and was 

not enacted under the Spending Clause. Therefore, Title VII does not have the attendant notice requirement for Title IX claims requiring a showing of intent to discriminate. Title VII aims to compensate injured parties through monetary damages 

not to control federal funding of an activity. See (Gebser v. Lago Vista Independent 

School District, 524 U.S. 274, 286–290 (1998). 

Again, if confirmed, I will follow the doctrine of stare decisis and apply all governing Supreme Court and Sixth Circuit precedent with respect to all such issues.

Question: In the athletics context, do you agree that intent can be established as 

a matter of law by the facial sex-based classification of separate men’s and women’s 

programs? 

Answer: In considering whether discriminatory intent can be established as a matter of law solely based on having separate athletic programs for men and women 

a court would be required to consider that ‘‘a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon 

competitive skill or the activity involved a contact sport.’’ 45 CFR § 86.41. See also 

Yellow Springs Exempted Village School District Board of Education v. Ohio High 

School Athletic Ass’n., 647 F.2d 651, 657 (6th Cir. 1981) (‘‘Separate teams may to a 

large extent aid in this [gender] equalization not only because they provide more 

opportunities but also because they make monitoring of the opportunities provided 

easier.’’) If confirmed, I will follow all governing Supreme Court and Sixth Circuit 

precedent with respect to such issues.

Question 4: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The supreme court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, granting states’ significant now authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: As an initial matter, I understand and appreciate the limitations imposed 

by the United States Constitution upon all branches of the Federal government. The 

powers delegated by the Constitution, to the federal government are limited and defined, whereas those which remain with the states are numerous and undefined. 

The framers intended that this balance would ‘‘reduce the risk of tyranny and abuse 

from either front.’’ Gregory v. Ashcroft, 501 U.S. 452 (1991). Beginning in Gibbons

v. Odgen, 9 Wheat 1 (1824), the Court has attempted to define the nature, scope 

and extent of Congress’ commerce power. While subsequent decisions may be viewed 

as either expanding or limiting Congressional power and authority in this area, all 

cases recognized that the effect upon interstate commerce should not be so remote 

750

or indirect that the distinction between what is national and what is local is rendered a nullity. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). I am 

also familiar with recent cases which have imposed certain limits on legislative 

power in areas traditionally reserved to the states. See, e.g., United States v. Lopez, 

514 U.S. 549 (1995), City of Boerne v. Flores 521 U.S. 507 (1997) and United States

v. Morrison, 529 U.S. 598 (2000). 

As a general rule, Federal statutes come to the courts with a presumption of constitutionality, absent a binding judicial determination that the statute is unconstitutional. If confirmed, I would be mindful of this presumption. In addition, I would 

be bound by the doctrine of stare decisis.

Question 5: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: To abrogate the States’ Eleventh Amendment immunity, Congress must 

unequivocally intend to do so and must act pursuant to a valid grant of constitutional authority such as Section 5 of the Fourteenth Amendment. Further, legislation enacted under Section 5 which exceeds the scope of the guarantees enumerated 

in Section 1 of the Fourteenth Amendment must exhibit congruence and proportionality between the injury to be prevented and the means adopted to that end. Board 

of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001); Kimel v. 

Florida Bd, of Regents, 120 S.Ct. 631 (2000). 

Again, Federal statutes come to the courts with a presumption of constitutionality, absent a binding judicial determination that the statute is unconstitutional. If confirmed, I would be mindful of this presumption.

Question 6: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

Answer: Whether Congress may abrogate state sovereign immunity in the circumstances described will depend upon the application of principles developed in related Supreme Court cases to a specific set of facts. If confirmed, I will faithfully 

apply governing precedents while respecting the presumption of constitutionality applicable to all acts of Congress. See South Dakota v. Dole, 483 U.S. 203 (1987); College Saving Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 

U.S. 666; 689 (1999).

Question 7: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: I am unaware of any specific federal statutes or sections of statutes that 

are unconstitutional. If confirmed, I will faithfully apply governing precedents while 

respecting the presumption of constitutionality applicable to all acts of Congress.

Question 8: Are there any federal statutes or sections thereof that go beyond Congress’ enumerated powers under the Constitution? 

Answer: I am aware of cases decided by the United States Supreme Court holding 

that particular federal statutes or sections exceed Congress’ enumerated powers. 

Several of those cases are cited above. If confirmed, I will faithfully apply governing 

precedents while respecting the presumption of constitutionality applicable to all 

acts of Congress.

Responses of Julie A. Robinson to questions submitted by Chairman Leahy 

f Question 1: Please state whether you have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ Please provide the relevant dates of arrest, charge and. disposition and 

then describe the particulars of the offense. 

Answer: I am informed that background investigative reports on nominees prepared by the Federal Bureau of Investigation (FBI) routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI 

background investigation report prepared on me, I respectfully direct your attention 

to that report for a response to this question.

Question 2: In February of this year, I offered an amendment to the Bankruptcy 

Reform Act to increase the number of bankruptcy judgeships. You might be interVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00762 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.002 SJUD4 PsN: CMORC
751

ested to know that the amendment was accepted and is part of the bill that passed 

the Senate and is now in conference with the House. 

In addition to increasing the number of bankruptcy judgeships, are there other 

reforms that you believe we should consider to help the federal courts better handle 

the heavy docket of bankruptcy cases? 

Answer: As bankruptcy case filings continue to escalate each year, additional 

bankruptcy judgeships will significantly foster the efficient handling and adjudication of bankruptcy cases. Because both the Senate and House versions of the Bankruptcy Reform Act include a number of changes that will substantially affect the 

administration of bankruptcy cases, it is important that the final legislation include 

a means of evaluating the effect of these changes.

Question 3: In the past few years, the Supreme Court has struck down a number 

of federal statutes, most notably, several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state government, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, granting states’ significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they, 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Answer: In a series of cases, the Supreme Court has interpreted the Commerce 

Clause of Article I, as well as the scope of sovereign immunity under the Eleventh 

Amendment, as placing contain limitations on federal legislation as applied to 

states. In Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 955 (2001) 

and City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court has addressed 

the scope of Congress’s power to abrogate sovereign immunity under Section 5 of 

the Fourteenth Amendment. If confirmed as a United States District Judge, I would 

follow the precedent of the United States Supreme Court in these cases, also respecting the strong presumption of constitutionality applicable to all Acts of Congress.

Question 4: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Answer: In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled 

that Congress may use its power under Section 5 of the Fourteenth Amendment to 

abrogate sovereign immunity from legislation that remedies or prevents constitutional violations; but there must be a ′′congruence and proportionality between the 

injury to be prevented or remedied card the means adopted to that end.′′ The Court 

has not ruled per se, that Section 5 of the Fourteenth Amendment may not be the 

basis for legislation creating a private cause of action against states for discrimination analyzed under rational basis scrutiny. While the cases that have come before 

the Court to date have implicated classes requiring strict or heightened Scrutiny, 

the Court presumably will have occasion to consider the application of the congruence and proportionality test to other legislation.

Question 5: If Congress provides money to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

Answer: The Supreme Court has ruled, with respect to the Tenth Amendment, 

that while Congress may not enact legislation that appropriates or controls the functions of state government, it may gain a state’s cooperation in accepting duties imposed by federal law by providing the incentive of federal funding. This-question 

raises an interesting issue, Congress’s ability to enforce such an agreement with a 

state who later violates the agreement. If confirmed, I would follow the precedents 

of the Supreme Court in this, as in all areas.

Question 6: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Answer: It is possible that a state may claim sovereign immunity from one of the 

hundreds of other federal statutes, as to which the Supreme Court has not yet 

ruled; but it is only the in context of an actual case or controversy, brought by affected parties with standing, when the matter is ripe for decision, that judges should 

752

endeavor to determine the constitutionality of a statute. Statutes should generally 

be presumed constitutional, in recognition of the separation of powers and the judiciary’s role of interpreting and applying legislation.

Question 7: Are there any federal statutes or sections thereof that go beyond Congress’ enumerated powers under the Constitution? 

Answer: Judges must start with the canon that statutes represent the will of the 

people as expressed through their elected representatives; and as such, statutes 

have a presumption of constitutionality. If confirmed, I will apply this principle of 

construction to any challenge to a federal statute on this basis.

Responses of James E. Rogan to questions submitted by Senator Leahy 

f Question 1: Please state whether you have ever been arrested for, charged with 

or convicted of a crime, within twenty years of your nomination, other than a minor 

traffic violation, that is reflected in a record available to the public. If your answer 

is ‘‘yes,’’ please provide the relevant dates of arrest, charge, and disposition and then 

describe the particulars of the offense. 

Answer: No.

Question 2: The development and commercialization of useful intellectual property 

has been one of the most critical hallmarks of American leadership in the global 

economy. The PTO has reported that in 2000, patent applications were up 12% over 

the previous year, and trademark applications were up 27%. The number of issued 

patents increased by 15%, and issued trademark registrations was up 21%. The 

PTO expects that rate of increase to continue, but at the same time, it is taking 

about fourteen months to process a patent application and six months to process a 

trademark registration request. How do you intend to address this situation, which 

some have characterized as an impending crisis, of ever more applications and ever 

longer delays in addressing them? 

Answer: My understanding is that, in fact, the filing of trademark applications 

has decreased. I would work within the Administration and with Congress to ensure 

adequate funding for the USPTO to support its investments in human and technological resources. 

The USPTO is fully fee-funded by its customers. It does not receive a nickel of 

taxpayer money. USPTO, however, remains subject to the appropriations process, 

and not all fees collected are appropriated back to the USPTO. This adversely affects the agency’s ability to meet increased workload demands. The most obvious effect of the current, unpredictable funding scheme is the agency’s inability to process 

the work it has received or to make critical investments in staff and automated systems to improve services or manage future workloads. Since the USPTO does not 

generate a surplus, examination time is escalating, service to fee-paying customers 

is suffering, and automation programs designed to streamline operations are being 

postponed. 

During my congressional service I was pleased to work with you, Mr. Chairman, 

in fighting to end the diversion of funds. I strongly support adequate funding for 

the USPTO, and I am troubled by the diversion of USPTO fees to other government 

programs. People who pay fees for a particular USPTO service should not have a 

portion of that transferred to unrelated programs. 

USPTO customers deserve a quality product delivered in the shortest possible 

time. I recognize that the USPTO, like any other government agency, must be held 

accountable. USPTO needs to effectively communicate just what resources it needs 

and how it will use them to provide the very best service to its customers.

Question 3: What are your views about whether the PTO has any role to play in 

assisting the Federal Trade Commission in its investigations of possible abuses of 

patent protection, to the detriment of consumers and the competitive process, by 

pharmaceutical companies? 

Answer: Consistent with the provisions of the American Inventors Protection Act, 

I would advice any Federal department, as necessary, on matters of intellectual 

property policy in the United States and intellectual property protection in other 

countries. I would look forward to working with all agencies within the Administration on any issues involving intellectual property.

Question 4: While in the House of Representatives, you served on the Court and 

Intellectual Property Subcommittee of the House Judiciary Committee. What did 

you learn about the PTO from that experience, and how do you intend to bring that 

experience to bear as Director of the PTO? 

753

Answer: I learned that the PTO is an organization consisting of dedicated individuals committed to delivering quality products and services to its customers. The 

PTO is the lynch pin for the best intellectual property system in the world. I would 

work within the Administration, with Congress, and with PTO’s customers to maintain and improve it to make it even more efficient and cost-effective.

Question 5: As intellectual property issues are increasingly at the forefront of 

global marketplace debates, what is your view about whether the United States 

should join the rest of the world’s nations in adopting a system for awarding priority 

of invention based strictly on application on filing dates, rather than on a determination through lengthy interference proceedings about who is the first inventor? 

Answer: The merits of a first-to-file system versus our current first-to-invent system have been debated for many years. I would hesitate to endorse any change in 

our patent laws without a thorough exchange of views and discussions within the 

Administration and with Congress and representatives of the patent community. I 

would always be willing to consider adoption of suggested best practices that could 

serve to improve the quality of our intellectual property system.

Question 6: How do you intend to attract talented and dedicated individuals to 

serve as patent examiners, especially in the computer software, biotechnology, and 

other high technology areas, particularly when people with the relevant skills are 

likely to be highly sought after in the private sector? 

Answer: I would build on the many employee-friendly initiatives currently underway at PTO, including pay incentives, recruitment bonuses, flexible work schedules, 

tuition reimbursement and a telecommuting pilot program. 

Question 7: There have been some worrisome rumors that examiners are rewarded or compensated based on how many applications they grant, rather than on 

the actual quality of those applications. Is that the case, and if it is, how do you 

intend to address the issue? 

Answer: My understanding is that the PTO’s current evaluation system includes 

quality considerations. I would work to ensure that an examiner’s performance rating and related compensation continue to be based on standards that focus on qualitative as well as quantitative factors.

Question 8: During the recent anthrax crisis here on the Hill, Senator Schumer 

had suggested that the federal government should over-ride Bayer’s patent rights 

in Cipro and pay a number of other manufacturers to start producing that antibiotic. What is your view about whether and when such actions—subsuming intellectual property rights in the name of the public interest—would be appropriate? 

Answer: I believe there is sufficient flexibility under our laws, international agreements, and alternative medical supplies to deal with any current emergency. Any 

future contemplated action should be thoroughly deliberated and should strike a 

balance that promotes distribution of life-saving drugs while maintaining incentives 

to innovate, develop and commercialize those drugs.

Question 9: While trademarks and patent are dealt with at the PTO, copyrights 

are another tremendously important variety of intellectual property, especially as 

we move to an ever more global economy. What is your view of the role of the Copyright Office in international and domestic copyright policy? 

Answer: The USPTO has, within the Executive Branch, the lead responsibility for 

policy formulation in all areas of intellectual policy patents, copyrights and trademarks. In that capacity, I would ensure that the PTO maintains close contact with 

the Copyright Office of the Library of Congress to make certain that these two entities with responsibility for copyright policy formulation work together to the greatest extent possible. In discharging our executive responsibility for the conduct of 

international policy formulation, we would consult regularly with the Copyright Office to ensure their participation. 

Some three months ago I met informally with the Registrar of Copyrights to personally assure her that if I am confirmed I will look forward to working with her 

as part of a team.

Question 10: Business method patents have been the topic of considerable press 

in recent months, as fewer patents are sought for ‘‘widgets’’ and more are sought 

for business methods, particularly in the arena of electronic commerce. Last year, 

the PTO initiated some efforts to enhance the quality of its review of these applications, and sought to involve the e-commerce and other high tech communities in 

that effort. Do you believe this effort has been successful? More generally, what is 

your view on such patents, and how they should be viewed and handled within the 

existing patent system? 

Answer: My understanding is that the PTO is pleased with the results so far of 

its Business Methods Patent Initiative, and that feedback from industry has been 

positive as well. I believe we should be very careful before we carve out any area 

754

of technology for special treatment under patent law. Patent law is generally technology neutral and has served our nation quite well over the past two hundred 

years. 

The statutory standard for patentability requires the invention be new, useful and 

nonobvious. I would expect any business methods patents that issue to meet that 

standard, rather than merely reducing to software that which has been anticipated 

or used previously. If some special attention is necessary, it would be my hope that 

it could be handled administratively.

SUBMISSIONS FOR THE RECORD 

f Statement of Hon. Max Cleland, a U.S. Senator from the State of Georgia 

Thank you, Madam chairwoman for giving me the opportunity to introduce Clay 

Land to this Committee during his confirmation hearing. 

It is my pleasure to recommend him for the position of United States District 

Court Judge for the Middle District of Georgia. 

Mr. Land has had over 16 years of experience as a litigator and has earned the 

respect of his colleagues in the legal and political communities and is, therefore, 

well qualified to serve as District Court Judge. Clay graduated magna cum laude

from the University of Georgia and, subsequently, attended the University of Georgia School of Law where he served on the Law Review and was inducted into the 

Order of the Coif. 

Following graduation from law school, Mr. Land returned to his home town of Columbus where he practices as a civil litigator, first, with the firm of Hatcher, 

Stubbs, Land, Hollis & Rothschild and, then, with the firm he co-founded, Buchanan 

& Land. At the age of 32, Mr. Land succeeded his father as a member of the Columbus Consolidated City Council. After serving a brief time on the City Council, Mr. 

Land was elected to the Georgia State Senate. Mr. Land served as a State Senator 

for three terms, but retired after the 2000 session in order to spend more time with 

his young family. 

As a State Senator, Mr. Land served on the Judiciary Committee and was Chairman of the Study Committee on Civil Justice Reform. In 1990 and 1991, he served 

as the co-Chairman of the Columbus Pro Bono Project Committee and in 1993 was 

chairman of the Indigent Defense Council. Mr. Land is currently on the Advisory 

Board of the Columbus Bank & Trust Company and on the Board of Directors of 

Land, Inc. of Columbus, of the Springer Opera House, Inc., and of Twin Cedars 

Youth Services, Inc. 

Clay Land has proven himself to be an excellent attorney and public servant to 

the state of Georgia. I believe that Mr. Land would make a solid District Court 

Judge for the Middle District of Georgia, and, as such, I have given him my full 

support. I hope that he will be approved by the Committee and confirmed by the 

full Senate as soon as possible. 

Thank you, Madam Chairwoman.

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

fVermont 

I want to thank Senator Feinstein for chairing this important hearing. In addition 

to hearing from James Rogan, the nominee to head the Patent and Trademark Office and serve as Under Secretary of Commerce for Intellectual Property, we will 

hear from five judicial nominees. 

I had a productive meeting with Mr. Rogan a few weeks ago and have spoken 

with Secretary Evans about this nomination. Senator Feinstein and I both know the 

importance of intellectual property to our economy and look forward to working with 

the new Under Secretary in the days and months ahead. 

Since July 10, 2001, the Senate has confirmed 16 judges, including four to the 

Courts of Appeals. We have already confirmed more District Court judges this year 

than were confirmed in the entire first year of the first Bush Administration in 1989 

and more Court of Appeals judges than were confirmed in the first year of the Clinton Administration in 1993. 

755

Within two days of the terrible events of September 11, I chaired a confirmation 

hearing for the two judicial nominees who drove to Washington while interstate air 

travel was still disrupted. Then on October 4, 2001 we held another confirmation 

hearing for five judicial nominees, which included a nominee from Nebraska who 

was unable to attend the earlier hearing because of the disruption in air travel. 

On October 18, in spite of the closure of Senate office buildings in the wake of 

the receipt of a letter containing anthrax spores and Senate staff and employees 

were testing positive for anthrax exposure, the Committee proceeded under extraordinary circumstances in the United States Capitol to hold a hearing for five more 

judicial nominees. The building housing the Judiciary Committee hearing room was 

closed, as were the buildings housing the offices of all the Senators on the Committee. Despite these disruptions, we stayed on course. 

Two weeks ago, while the Senate Republicans were shutting down the Senate 

with a filibuster preventing action on the bill that funds our nation’s foreign policy 

initiatives and provides funds to help build the international coalition against terrorism, the Judiciary Committee nonetheless proceeded with yet another hearing for 

four more judicial nominees on October 25, our third hearing involving judicial 

nominees in October. 

Today we convene the fifth hearing for judicial nominees within eight extraordinary weeks—weeks not only interrupted by holidays, but by the aftermath of the 

terrorist attacks of September 11, the receipt of anthrax in the Senate, and the closure of Senate office buildings. In addition, during the same time we devoted our 

attention and efforts to expedited consideration of anti-terrorism legislation. Far 

from taking a ‘‘time out’’ as some have suggested, this Committee has been in overdrive since July and we have only redoubled our efforts since September 11. 

We could not make this progress without the commitment and dedication of Senators like the Senator fromCalifornia, who volunteered to chair this hearing, and 

the Senators from North Carolina, New York and the Senior Senator from Wisconsin, who each chaired a hearing during this difficult time. I thank them and commend them for their work.

Statement of Hon. Zell Miller, a U.S. Senator from the State of Georgia 

f Thank you, Madam Chairman, for allowing me to say a few words in support of 

the nomination of my fellow Georgian—Ashley Royal. As Sen. Cleland has already 

stated, Mr. Royal is well qualified to be a United States District Judge for the Middle District of Georgia. It is my pleasure to recommend him to the committee today. 

Senator Cleland has outlined some of the details of Mr. Royal’s distinguished career. I would like to focus on Mr. Royal’s experience, which I believe shows him to 

be uniquely qualified public defender. His experience in private practice includes 

work on a wide array of civil matters including insurance defense, asbestos litigation, employment discrimination, and Section 1983 cases. Further, Mr. Royal’s extensive experience trying cases in state and federal courts dates all the way back 

to his third year of law school. Mr. Royal also has significant experience in mediating cases and has taught at the University of Georgia Law School. All of this work 

history will serve him well on the Federal bench. 

In short, Madam Chairman, I join Senator Cleland in giving Ashley Royal my full 

support. Throughout his career, he has shown himself to be a committed public 

servant. He is a smart, honest, and able attorney. He will be an exceptional judge. 

I hope that the Committee will approve his nomination and he will be confirmed 

by the full Senate as soon as possible. 

Thank you, Madam Chairman.

f

756

SENATE REPUBLICAN

HIGH TECH TASK FORCE

October 31, 2001

The Hon. Patrick J. Leahy 

Chairman, Senate Committee on the Judiciary 

224 Dirksen Building 

Washington, D.C. 20510

Dear Mr. Chairman:

As members of the Senate Republican High Tech Task Force (‘‘HTTF’’), we respectfully urge you to schedule prompt Committee consideration of the nomination 

of James E. Rogan to be Under Secretary of Commerce for Intellectual Property and 

Director of the United States Patent and Trademark Office (‘‘PTO’’), whom the 

President nominated on May 24. We know of your substantial efforts to modernize 

the U.S. patent system and bolster our intellectual property laws, and know that 

you share our desire to have an effective and dynamic leader at the helm of the 

PTO. We believe that Mr. Rogan is exactly that type of leader. 

When the HTTF released its Policy Agenda earlier this year, the issue of PTO 

funding was a top priority: ‘‘The Task Force believes that the explosion of technology 

patents has made it more necessary than ever to ensure that the PTO has adequate 

fund through its own fee mechanisms, rather than siphoning off these fees for general government use.’’ Also in April we wrote the Appropriations Committee requesting that no PTO funds be diverted to general revenue use. 

The Senate version of the Commerce, Justice, State and the Judiciary Appropriations bill predicates increased funding for the PTO on its ability to produce a longterm strategic plan by January 15, 2002. Having Jim Rogan promptly confirmed as 

PTO Director and able to contribute to such a plan would be a major step forward 

for the PTO in its quest for full use of its collected fees. 

Mr. Rogan offers unique experience with intellectual property issues, having 

served on the House Judiciary Committee’s Courts and Intellectual Property subcommittee. His service was marked be effective work on technology and intellectual 

property issues which should serve him well as PTO Director in addressing cutting 

edge issues such as biotechnology and business method patents. 

Earlier this month, a coalition of 25 leading intellectual property and technology 

associations wrote you in support of the Rogan nomination. They commented that: 

‘‘Prompt action on Mr. Rogan’s nomination will help ensure that the PTO has the 

tools necessary to produce quality patents and trademark registrations on a timely 

basis.’’

We agree and respectfully ask that you schedule a hearing for Mr. Rogan as the 

first step towards his confirmation this year. 

Sincerely, 

SENATOR GEORGE ALLEN

Chairman, Senate Republican 

High Tech Task Force

SENATOR WAYNE ALLARED

SENATOR SAM BROWNBACK

SENATOR JOHN ENSIGN

SENATOR GORDON SMITH

SENATOR RICK SANTORUM

SENATOR ORRIN HATCH

Ranking Member 

Senate Committee on the Judiciary

SENATOR BOB BENNETT

SENATOR SUSAN COLLINS

SENATOR KAY BAILEY HUTCHISON

SENATOR KIT BOND

SENATOR JEFF SESSIONS

(757)

NOMINATION OF CALLIE V. GRANADE, OF 

ALABAMA, TO BE DISTRICT JUDGE FOR 

THE SOUTHERN DISTRICT OF ALABAMA; 

MARCIA S. KRIEGER, OF COLORADO, TO BE 

DISTRICT JUDGE FOR THE DISTRICT OF 

COLORADO; JAMES C. MAHAN, OF NEVADA, 

TO BE DISTRICT JUDGE FOR THE DISTRICT 

OF NEVADA; PHILIP R. MARTINEZ, OF 

TEXAS, TO BE DISTRICT JUDGE FOR THE 

WESTERN DISTRICT OF TEXAS; C. ASHLEY 

ROYAL, OF GEORGIA, TO BE DISTRICT 

JUDGE FOR THE MIDDLE DISTRICT OF 

GEORGIA; AND MAURICIO J. TAMARGO, OF 

VIRGINIA, TO BE CHAIR OF THE FOREIGN 

CLAIMS SETTLEMENT COMMISSION OF THE 

UNITED STATES 

WEDNESDAY, DECEMBER 5, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 10:00 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Richard Durbin, presiding. 

Present: Senators Durbin, Leahy, and Sessions. 

OPENING STATEMENT OF HON. RICHARD DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Good morning. I would like to call this hearing 

to order, if you will please take seats. This is a hearing of the full 

Senate Judiciary Committee to consider five of the President’s 

nominees for the U.S. District Court and the President’s choice to 

head the Foreign Claims Settlement Commission. 

I want to welcome the nominees, their families, friends, and the 

sponsors from the Senate and the House who will be with us today. 

Many of our visitors today have traveled significant distances and 

we appreciate that. 

This is the tenth judicial nominations hearing since the Senate 

reorganization in July. It is the 14th time we have considered execVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00769 Fmt 6601 Sfmt 6601 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
758

utive branch nominees during that same time period. You might 

not know it from the newspapers, but this Committee has been 

working very hard. We have held unprecedented nomination hearings, two of them during the August recess, which may turn out 

to be the last recess we ever have. We held nomination hearings 

through terrorist attacks and the closure of our offices due to anthrax contamination. We continued to approve nominees even while 

we debated comprehensive anti-terrorism legislation in response to 

September 11. 

A lot has been written and devoted to the subject of judicial 

nominations. Let me be the first to pay tribute to the five nominees 

for the Federal bench who join us today. Based on everything I 

have read and seen, they are men and women of exceptional integrity and accomplishment. They enjoy widespread, bipartisan support, records which demonstrate a commitment to our values as a 

nation, including the protection and advancement of civil rights 

and liberties for everyone. Simply put, we would not have disputes 

over judicial nominees if the President continues to send us nominees like the five before us today, especially for the Federal Courts 

of Appeal. This basic fact is many times lost in the din of partisan 

rhetoric. 

My colleagues across the aisle have taken Chairman Leahy to 

task for not approving all of the President’s nominees. I would just 

say, in five months, we have overcome many obstacles in the Senate. Chairman Leahy has held more judicial nomination hearings 

than the other party held in all of 1996, 1997, 1999, and 2000. 

When all is said and done, the Senate will confirm more judicial 

nominees this year than were confirmed during the first year of 

President Clinton’s and former President Bush’s terms in office. 

I am going to make the rest of this statement a matter of record 

without reading it in detail because we have an exceptional situation here. 

Our Senate Majority Whip, Senator Reid from Nevada, is here 

and he can inform me if my information is correct, but I think we 

have two roll call votes which are scheduled to start around 10:15, 

if I am not mistaken. So what we are going to try to do is to invite 

our panel of House and Senate members to make their statements 

and put other statements in the record before we break for a vote, 

and I apologize to everyone in attendance if this is a bit disjointed. 

We will start and stop a couple times here today, but we will get 

the job done, so bear with us. 

We will now move to our first panel of witnesses, and I ask, Senator Sessions, do you want to make an opening statement? 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Mr. Chairman, we are delighted that this excellent panel is brought forward. There are some great nominees 

who I think will be a real asset to the Federal Bench and I thank 

you for your leadership in moving this forward. 

Senator DURBIN. Thank you, Senator Sessions. 

I would like to insert into the record a statement from Senator 

Hatch. 

[The prepared statement of Senator Hatch follows:]

759

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

It is both an honor and a pleasure to be here this afternoon with six extremely 

well qualified nominees for important positions in the Federal Judiciary and the Department of Justice. I congratulate all of you on being selected by President Bush 

to serve in high office. After reviewing your distinguished records, I have no doubt 

that you will do great service for the citizens of this country upon confirmation. 

Before I say a few words about each nominee, however, I’d like to make a more 

general comment about the current status of the nominations process. Believe it or 

not, I am not the only one who has noticed that the Committee is making slow work 

of its job this year. 

The Washington Post editorialized last week that the Committee should hold more 

judicial confirmation hearings, concluding that ‘‘[f]ailing to hold then in a timely 

fashion damages the judiciary, disrespects the president’s power to name judges and 

is grossly unfair to often well-qualified nominees.’’ The Washington Times, after reviewing a raft of statistics it had received in a letter to the editor, wrote on December 3rd that it had concluded that the Committee ‘‘must have confirmed about 223 

judicial nominees, give or take a take a dozen hearings.’’ As we know, this is far 

from the actual case. As the Wall Street Journal observed on November 27, there 

is a ‘‘pattern of judicial obstruction that has left 108 current vacancies on the federal bench. . . .With only days to go before the Senate adjourns for the year, only 

28% of George W. Bush’s nominees have been confirmed.’’

Among the nominees being held back by this Committee is Michael McConnell, 

whom the President has nominated to serve on the Tenth Circuit. Professor McConnell has received the ABA’s highest rating, and he has tremendous bipartisan support in the Senate. It seems to me that holding hearings and votes on the persons 

whom President Bush has nominated to the bench would be much more helpful to 

the war against terrorism than our ongoing effort to determine whether Osama bin 

Laden is entitled to the benefit of Miranda warnings. 

but non of what I just said takes anything away from my support and appreciation for the tremendously talented nominees before the Committee today. 

Callie Virginia Grande clerked for Judge Godbold of what was then part of the 

Fifth Circuit. She then embarked on what was to become a 24-year career as a federal prosecutor. She has served in just about every capacity in the U.S. Attorney’s 

Office—line prosecutor, senior litigation counsel, criminal division chief, First Assistant U.S. Attorney, and now interim U.S. Attorney. 

Chief Bankruptcy Judge Marcia Krieger attended Lewis & Clark College, from 

which she graduated after three years Summa cum laude, and earned her law degree from the University of Colorado School of Law. She began her legal career in 

a general practice, and eventually developed a specialty in bankruptcy. She has 

served as a Bankruptcy Court Judge since 1994. 

Judge James Mahan practiced law at the same firm in Law Vegas for 17 years, 

primarily focusing on business and commercial litigation, and in the process earned 

an ‘‘Av’’ rating from the Martindale Hubbell legal directory—as well as the respect 

of his peers. In February 1999, he was named a judge on the Clark County District 

Court. Since taking the bench on March 8, 1999, Judge Mahan has heard civil and 

criminal matters and trials involving a 3,000 case docket. 

Judge Philip Martinez graduated from Harvard Law School in 1982 and developed a commercial litigation practice involving antitrust, securities, fraud, deceptive 

trade practices, contract, and banking issues. He has served as a judge in EL Paso 

County Since 1991, and has been particularly active in juvenile justice issues. 

Ashley Royal graduated from the University of Georgia Law School in 1974, but 

he had already gained substantial litigation experience before then. During the summer of 1973, he worked as an Intern District Attorney under the Third Year Practice Act at the Chatham County District Attorney’s Office. The Act authorized theiryear law students to try cases as long as they were supervised during trial by a 

member of the bar. During his internship, Mr. Royal served as lead counsel in five 

jury trials, including and armed robbery and a murder case. He also handled approximately 30 bench trials. After graduating from law school, Mr. Royal worked as 

an Assistant District Attorney, as a Public Defender, and in private practice. 

Last but certainly not least, Mauricio Tamargo was born in Cuba and fled to the 

United States with his family when he was four years old. He received his B.A. in 

History from the University of Miami and his J.D. from the Cumberland School of 

Law at Stamford University. His Legal experience includes working in various positions for U.S. Congresswoman Ileana Ros-Lehtinen and serving as Staff Director for 

several subcommittees of the House International Relations Committee. 

760

Again, it is a great pleasure to welcome all of you to the Committee. I look forward to this hearing, and to working with Chairman Leahy and Others to make 

sure the Committee and the full Senate hold timely votes on your nominations.

Senator DURBIN. We will proceed in order of seniority with our 

colleagues who are in attendance. I have a list here, and I hope 

that it is complete, and it appears that the most senior member is 

Senator Reid of Nevada. Senator? 

PRESENTATION OF JAMES C. MAHAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA BY HON. 

HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator REID. Thank you very much, Mr. Chairman, and I do appreciate your brief statement. There is no question that today is 

like many other days and it shows the difficulty of having these 

hearings. I think that you are right in commending Chairman 

Leahy for organizing this hearing. 

Mr. Chairman, Jim Mahan is, in my opinion, a lawyer’s lawyer. 

Before I came here, I was a trial lawyer. I practiced law. I tried 

cases before juries, did administrative work, did what trial lawyers 

do, and Jim Mahan has had excellent training. 

He began his practice that I noted working with one of the finest 

lawyers we have ever had in Nevada, a man by the name of John 

Peter Lee. He then formed his own law firm. He is now a judge 

in a court of unlimited jurisdiction where he has at his grasp literally thousands of cases. It is in Las Vegas and he is extremely 

busy, but he, in the short time he has been on that bench, has been 

a judge of note. 

He is always ranked as one of the top judges in that district and 

I cannot say enough about Senator Ensign’s recognizing his talents. 

I appreciate Senator Ensign coming to me and giving me Jim 

Mahan’s name. I mean, it took five seconds. This is a fine lawyer, 

a great judge, and the country will be better for having Jim Mahan 

as a judge. 

I ask unanimous consent that my full statement be made a part 

of this record. 

Senator DURBIN. The Senator’s statement will be made a complete part of the record here. 

[The prepared statement of Senator Reid follows:]

STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF NEVADA

Mr. Chairman, I would like to thank you, Chairman Leahy, and the entire Senate 

Judiciary Committee, for holding this hearing today. 

Today’s hearing is yet another example of how the distinguished Senator from 

Vermont and this Committee have gone out of their way to move judicial nominations forward in a timely and reasonable manner. This committee has worked extremely hard to move President Bush’s judicial nominations, and you and this entire 

Committee are to be commended for your efforts. 

I am pleased to appear before this committee in support of one of those nominees—Judge James C. Mahan, of Las Vegas, to be the next judge on the United 

States District Court for the District of support of both Senators from Nevada. Senator Ensign has made some excellent recommendations to the President and fully 

support his selections. 

Jim Mahan currently serves as a Judge on the Eighth Judicial District Court in 

Clark County, Nevada. So respected by his peers and officials in Nevada, Jim 

Mahan was Governor Kenny Guinn’s first judicial appointment to the Clark County 

District Court in February 1999. Since taking the bench on March 8, 1999, he has 

retained a docket of more than 3,000 civil and criminal cases. Despite this heavy 

docket, Judge Mahan also hears on a regular basis probate matters, drug court and 

761

grand jury returns. And as of January, 2001, Judge Mahan is also a Business Court 

Judge. 

As my colleagues have heard me state on numerous occasions, Las Vegas has 

been the fastest growing metropolitan community in the United States for more 

than a decade, and such hard work and dedication is required of our judges, policemen, firemen, and other civil servants on a daily basis. 

These qualities will serve Judge Mahan well on the U.S. District Court for the 

District of Nevada, whose docket has increased at a rate that mirrors the explosive 

growth of my home state, especially in Las Vegas. 

Mr. Chairman, I am so proud to have played a role in creating three additional 

judgeships for the District of Nevada over the last few years. 

Prior to the Senate’s confirmation of Roger Hunt and Kent Dawson last year, and 

Larry Hicks last month, Nevadans seeking justice in federal court were forced to 

wait up to three years before their case went to trial. And these delays may have 

been worse had it not been for such hard working judges, including our senior 

judges. In fact, when we were pushing for the creation of additional judgeships in 

Nevada, our two senior judges were hearing, on average, more cases than many active judges throughout the country. 

Although the docket remains one of the busiest in the federal judiciary, these 

judgeships—and the fine jurists who have filled them—have had an immediate impact on the federal bench in Nevada. 

When confirmed, Jim Mahan will fill a District Court under the leadership of 

Chief Judge Howard McKibben that is arguably the fines in the nation. Judge 

Mahan has demonstrated leadership in is own right on the Eighth Judicial District 

Court, where he chairs the Committee to Review and Revise that Court’s Rules. He 

also serves as Chairman of the Clark Regional Judicial Council, as a member of the 

Joint Task Force on Civil/Criminal Specialization, and was appointed by the Nevada 

Supreme Court to the Study Committee to Review the Nevada Rules of Civil Procedure. 

His leadership was confirmed by a 2000 survey conducted by the Las Vegas Review Journal in which Judge Mahan received a 95% retention rating and a 96.3% 

adequacy rating. Those percentage ratings were the highest rating of any sitting 

Judge in Nevada’s Municipal Courts, Justice Courts, District Courts and Supreme 

Court. In short, Mr. Chairman, Jim Mahan has already proven that he is an excellent judge, and will be an outstanding addition to the federal bench in Nevada. 

Prior to taking the bench, he and Frank A. Ellis III formed the law firm of Mahan 

& Ellis, Chartered, where they practiced law primarily in the areas of business and 

commercial litigation for seventeen years in Las Vegas. 

A long-time resident of Las Vegas, having lived and practiced law continuously 

since 1973, Jim was admitted to practice in Nevada in 1974 in both state and federal court, the Ninth Circuit Court of Appeals in 1975, and the U.S. Supreme Court 

in 1980. 

Jim Mahan was born in El Paso, Texas, on December 16, 1943. His family eventually moved to Grand Junction, Colorado, where he graduated from high school. Jim 

graduated from the University of Charleston in Charleston, West Virginia, in 1965, 

and received his law degree from Vanderbilt University School of Law in 1973. In 

between his graduate and law school studies, Jim served in the United States Navy. 

Jim has also been blessed with a beautiful family and is joined here today by his 

wife of 33 years, Eileen as well as his long-time assistant, Jeri Winters. He and Eileen are the proud parents of one son James, Junior, who is a graduate of the University of Southern California. 

Like Larry Hicks, who was considered by this Committee in October, and approved by the full Senate in November, Jim is a fine man, a fine Nevadan, and I 

am sure that he will be a fine judge. 

He enjoys my full support, and I would urge this Committee—and the Senate—

to confirm his nomination to the District of Nevada as quickly as possible.

Senator DURBIN. Senator Campbell is here. 

PRESENTATION OF MARCIA S. KRIEGER, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO BY HON. 

BEN NIGHTHORSE CAMPBELL, A U.S. SENATOR FROM THE 

STATE OF COLORADO 

Senator CAMPBELL. Thank you, Mr. Chairman. I would also ask 

unanimous consent to include my complete statement in the record. 

We have a number of people that want to introduce different nomiVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00773 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
762

nees, and with a vote coming up, I think I will try and be very 

brief, if I can. 

I am very delighted and honored to introduce to the Committee 

today a tremendous legal mind and a very outstanding person from 

our State of Colorado, Judge Marcia Krieger, who is sitting behind 

us in the second row here. Judge Krieger is a third-generation native of Colorado and the daughter of retired Judge Donald P. 

Smith, Jr., who served on the Colorado State District Court and 

the Colorado Court of Appeals. I believe her to be overwhelmingly 

qualified and definitely the right person to serve on the Colorado 

Federal District Court. 

I am not going to go through her legal accomplishments on the 

bench. They are a matter of record. I am sure the Committee will 

look them over. But I was quite impressed with them. As a 

layperson, of course, some of the things I do not understand that 

go on the bench, but I will tell you what, I think I understand 

human nature very well and Judge Krieger is not only an outstanding legal mind but participates in the community in a variety 

of ways. In fact, before we came in, I asked her of the couple of 

boards that she serves on that I was not aware of, trying to help 

children in Africa, for instance, and a board to help elevate the 

health of people who have AIDS in many countries. She has just 

been a good human being as well as a good judge. 

As the Chief Judge for the United States Bankruptcy Court for 

the District of Colorado, she has a long and distinguished career, 

along with a distinguished record, too. She built a solid and respected law practice on the principle of trying to find common 

ground and using common sense, and I think that has served her 

well on the bench and certainly will in her future endeavors. 

Along with her other notable accomplishments, she helped open 

the channels of communication between the bench, the bar, and the 

general public in regard to court policies and procedures. That includes the implementation of a pro bono representation program. 

In addition to her seat on the Bankruptcy Court, she also is a 

member of the Tenth Circuit Bankruptcy Appellate Court, where 

she sits with other bankruptcy judges to consider appeals from 

bankruptcy courts operating in all the States of the Tenth Circuit 

except Colorado. She was appointed by Chief Justice Rehnquist in 

the fall of the year 2000 to serve as one of the three bankruptcy 

judges on the Bankruptcy Administration Committee of the Judicial Conference of the United States. In that capacity, she considers 

issues of importance to the administration of the bankruptcy system nationwide. 

I think that I will stop with that because of our very short time, 

but I would hope that the Committee would read our full statements of her great accomplishments. I just want to tell you and the 

other Committee members, Mr. Chairman, that any person that 

can find time to raise a family, to balance the difficulty of being 

in a very, very high-stress lifestyle in public office or on the bench 

and still participate with the Boy Scout troops and other community groups is a person that is the kind of person I think we need 

more in public service. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thank you, Senator Campbell. 

763

There are three remaining members of the panel, but Senator 

Leahy overheard that I had mentioned his name at the opening 

and wanted to come down and defend himself and I would like to 

give him the chance to say a few words. 

[Laughter.] 

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

FROM THE STATE OF VERMONT 

Chairman LEAHY. Actually, Mr. Chairman, I wanted to thank 

you for holding this. Of course, I am delighted to see my colleagues 

here and seeing Senator Campbell, as I have told him several times 

this year, also attempted to tell Senator Allard, but as I told Senator Campbell several times this year, of course we would have 

these hearings before we went out. We are actually holding the 

16th nominations hearing since the Senate reorganized this summer, the tenth on judicial nominations. That is since July, the middle of July, when we had a reorganized Committee. I thank you, 

Senator Durbin and Senator Sessions, for doing this today. 

We have withstood terrorist attacks, anthrax attacks, closing of 

buildings and everything else. We have had 27 judicial nominations 

reported favorably to the Senate. That includes six to the Court of 

Appeals. That is actually twice the total number of judges that 

were confirmed in all of the first year of the first Bush administration, twice as many judges to the Courts of Appeal than were confirmed in the first year of the Clinton administration, more judges 

than confirmed in all of the 1996 session. 

We can consider these five on an expedited basis and I would assume Senator Hutchison and Senator Allard and Senator Campbell 

and Senator Ensign, and I know Senators Cleland and Warner 

would not object to us moving on an expedited basis. Then we 

would confirm 32 judges. That is approximately double the number 

the first year of the first Bush administration, actually more than 

the first year of the Clinton administration when the White House 

and Senate were controlled by the same party, so the number in 

the 12 months of 1997 or all of 1999. 

I mention this because we are able to do it, basically, in five 

months. And just so people will know, we are holding more hearings on more judicial nominees faster and reporting and confirming 

more than during the last six-and-a-half years. 

Each of the judicial nominees participating in this morning’s 

hearing have been pending for less than 60 days since receipt of 

the ABA peer review. As we know, all judges are going to have to 

have that peer review. 

We also have Mauricio Tamargo to head the Foreign Claims Settlement Commission, and I am pleased by the number of letters I 

have received on his behalf from Republicans and Democrats alike 

in Florida and also from the Republican Senators from Virginia, 

Democratic Senators from Florida on his behalf and that is very 

helpful. 

I also might say, just as a matter of compliment to the White 

House and to Senator Hatch, there was some difficulty in moving 

some of these nominees because of a concern about nominees answering a couple of basic questions, questions actually far less intrusive than you would need to answer to get a job in the parking 

764

garage at the Department of Justice for most courts. I compliment 

the President and Senator Hatch and others in agreeing to go forward and answer those questions. I think when they did that last 

week, we passed out, what, eight or nine people within just a few 

hours of them agreeing to that, so I appreciate the cooperation of 

all. 

That is all I have to say, but I did want to thank Senator Durbin 

and Senator Sessions, both of whom have enormously busy schedules, for taking the time to do this, and all of you. 

Senator DURBIN. Thank you, Chairman Leahy. 

[The prepared statement of Senator Leahy follows:]

STATEMENT OF HON. PATRICK G. LEAHY, A U.S. SENATOR FROM THE STATE OF

VERMONT

Today, the Judiciary Committee is holding its sixteenth nominations hearing and 

its tenth judicial nominations hearing since the Senate reorganized this summer. I 

thank Senator Durbin for volunteering to chair today’s hearing for these six nominees. Since July, when the Senate was allowed to reorganize and the Committee’s 

members ship was set, we have maintained a strong effort to consider judicial and 

executive nominees. 

During these last six, difficult months, the Committee has worked hard to report 

27 judicial nominations favorably to the Senate, including six to the Court of Appeals. This is nearly twice the total number of judges that were confirmed in all 

of 1989, the first year of the first Bush Administration, and it includes twice as 

many judges to the Courts of Appeal as were confirmed in the first year of the Clinton Administration. It is also more judges than were confirmed in all of the 1996 

session. In addition, if we are able to consider today’s five judicial nominees on an 

expedited basis, the Senate may be able to confirm 32 judges—a number that would 

be more than double the number confirmed in the first year of the first Bush Administration, more than were confirmed in the first year of the Clinton Administration when the White House and the Senate were controlled by the same party, and 

approximately the total confirmations for the 12 months of 1997 and for all of 1999. 

Thus, despite all the obstacles we have faced this year, we have matched or exceeded the number of confirmations of judges during the first Bush Administration 

and the last year of the first Clinton term. We are holding more hearings on more 

judicial nominees faster and reporting and confirming more than during the last six 

and one-half years. By way of example, each of the judicial nominees participating 

in this morning’s hearings has been pending for less than 60 days since receipt of 

the ABA peer review. 

Today we also consider the nomination of Mauricio Tamargo to head the Foreign 

Claims Settlement Commission. Mr. Tamargo comes highly recommended by Representatives for whom and with whom he has worked. He is also supported by his 

Democratic and Republican Senators from Florida, where he was raised, and from 

Virginia, where he now lives. I look forward to Mr. Tamargo’s answers to questions 

about the future direction of the Commission he is nominated to chair.

Senator DURBIN. Senator Hutchison? 

PRESENTATION OF PHILIP R. MARTINEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY 

HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE 

STATE OF TEXAS 

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

Chairman, I am very pleased to be here today to introduce Judge 

Philip Ray Martinez to be a U.S. District Judge for the Western 

District of Texas. 

I do want to thank all of you for holding this hearing and I want 

to especially emphasize that our U.S.–Mexico border courts have 

the most critical need. According to statistics from last year, the 

Western District of Texas handles the most criminal cases in the 

entire United States. The Southern District, which is still on the 

765

border, for which Randy Crane awaits confirmation, has the third 

highest level after California’s Southern District. 

We are really trying very hard—Senator Feinstein and myself 

have introduced legislation to expand the number of Federal 

Courts along the border to try to alleviate the huge glut that is 

now in those courts all along the border, particularly California 

and Texas, and I would ask my colleagues on the Judiciary Committee to please expedite Senator Feinstein’s and my bill so that 

we can begin to fill these courts so that justice will not be delayed 

and, therefore, not be denied. 

I want to also say that as you are considering that legislation, 

at the very least, I hope you will expedite the confirmation of border prosecutors and judges like Judge Martinez and Judge Crane 

and the U.S. Attorneys that have been nominated, as well. 

Chairman LEAHY. If the Senator would yield, we have been, on 

U.S. Attorneys, I think the practice here has been, in some cases, 

literally within hours of getting the paperwork, we have moved 

them through. We had a number of them where we ended up with 

my staff working with the White House staff until 3:30 one morning to complete the paperwork so we could get them all through, 

and they have been doing that and we have—almost every one has 

been there. In fact, I would urge the administration to send up 

marshals. They have not sent up a single marshal. 

Also in the legislation the Senator from Texas refers to, I would 

like very, very much—I think she has got a very good piece of legislation. Perhaps if we could move a DOJ authorization bill, it might 

be something we could attach to that with her consent. 

But we have moved 57 U.S. Attorneys, including Mr. Sutton from 

Texas, last week, and I know the Senator from Texas was very, 

very helpful in getting those through. 

Senator HUTCHISON. Yes. I want to say that I appreciate that the 

prosecutor from the Western District has now been confirmed and 

it was expedited. The Southern District, which is the other border 

district, now has a U.S. Attorney nominee, and I hope you will do 

the same for him because that office particularly has issues that 

need to be addressed. 

I do want to talk about Judge Martinez, who is one of our very 

most outstanding nominees. He is a District Judge in El Paso, 

where he has served since 1991, and before that, he was a County 

Court Judge in El Paso and has been elected by the people of El 

Paso. 

He has more than ten years of experience at the trial court level. 

He graduated from the University of Texas at El Paso with highest 

honors and received his law degree in 1982 from Harvard Law 

School. In addition, he has been a Director of the El Paso Legal Assistance Society, the El Paso Holocaust Museum, the El Paso Cancer Treatment Center, and the Hispanic Leadership Institute. He 

was named in 1991 the El Paso Young Lawyers Association’s Outstanding Young Lawyer. 

I am one who believes that a Federal Judge should be a part of 

the community and not live in some isolated ivory tower, and I 

think Judge Martinez has shown that he is going to be that kind 

of Federal Judge, a part of the community but also an outstanding 

766

leader in the legal field, and I will say that Senator Gramm joins 

me in highly recommending Judge Martinez. 

Senator DURBIN. Thank you, Senator Hutchison. 

I would just remind my colleagues who came in a few minutes 

late that we have a vote on very soon and then we are going to 

have to break, so if it is possible that we could get each of you to 

make a statement, an oral statement, and then put the remainder 

in the record, we might be able to complete that phase before we 

have to break for a vote. 

Going by seniority, I see the arrival of Senator Warner, who may 

need a hand here to come forward. I know that he went over to 

visit our troops. It appears he came back with a wound, but he is 

undaunted. 

PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE 

CHAIR OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION 

OF THE UNITED STATES BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA 

Senator WARNER. We have a wealth of talent here to introduce 

Mr. Mauricio Tamargo, and I am going to defer to the two members of Congress from Florida, and I think my friend, the senior 

Senator from Florida, is here also, so Mr. Tamargo is going to be 

well represented, but I did want to say that I am proud to have 

him in Virginia. He currently serves as staff director for an important Subcommittee in the House of Representatives. 

Following your admonition, which I think is well taken, I will put 

the balance of my statement in the record and assure you that this 

gentleman is eminently qualified to continue his long and distinguished career in public service and I thank the chair and I thank 

my colleagues. 

Senator DURBIN. Thank you, Senator Warner. 

[The prepared statement of Senator Warner follows:]

STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE OF VIRGINIA

Chairman Leahy, Senator Hatch, and my other distinguished colleagues on the 

Senate’s Judiciary Committee, I am pleased to introduce a Virginian, Mauricio 

Tamargo, to serve as Chairman of the Foreign Claims Settlement Commission. 

The Foreign Claims Settlement Commission is an independent agency within the 

Department of Justice that adjudicates the claims of U.S. nationals against foreign 

governments. Awards are funded from congressional appropriations, international 

claims settlements, or liquidation of foreign assets in the U.S. by the Departments 

of Justice and Treasury. Since the Commission was created in 1954, it has adjudicated over 660,000 claims with awards totaling in the billions of dollars. 

As you all know, the Foreign Claims Settlement Commission serves an important 

mission. In my view, Mauricio Tamargo’s experience in international affairs makes 

him well suited to serve in this position. 

Mr. Tamargo is currently the staff director for the Human Rights and International Operations Subcommittee of the House of Representative’s International 

Relations Committee. He also currently serves as Chief of Staff and legislative counsel for Representative Ileana Ros-Lehtinen—positions he has held for the Congresswoman for approximately 10 years. 

Mr. Tamargo has also served as Staff Director for the House Subcommittee on 

International Economic Policy and Trade and as the Staff Director for the House 

Subcommittee on Africa. 

Mr. Tamargo received his B.A. from the University of Miami and his law degree 

from the Cumberland School of Law at Samford University in Alabama. 

Clearly, Mr. Tamargo has extensive professional experience in international affairs that will serve him well as Chairman of the Foreign Claims Settlement ComVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00778 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
767

mission. He has dedicated a large portion of his career to public service, and I am 

thankful for his willingness to continue such service.

Senator DURBIN. Senator Graham, who owns more Florida ties 

than any human being— [Laughter.] 

Senator DURBIN. —comes here to speak on behalf of the Sunshine State. Senator? 

PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE 

CHAIR OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION 

OF THE UNITED STATES BY HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF FLORIDA 

Senator GRAHAM. Thank you very much, Senator, and I would be 

happy to have an Illinois tie if you would make one available. 

Mr. Chairman, Senator Sessions, thank you very much and I appreciate your expeditious scheduling of this hearing today for Mr. 

Mauricio Tamargo. As Senator Warner has already said, Mauricio 

brings a very strong background of experience, expertise, and concern for the issues that he will face as Chairman of the Foreign 

Claims Settlement Commission. In that position, he will be representing the citizens of America in claims against foreign governments, ranging from claims of Holocaust survivors to those who 

have had their property confiscated. 

Mauricio has had personal experience in this. His family fled 

from Cuba when he was only four years old. Since he has come to 

the United States, he has achieved the American dream and I hope 

with your assistance we will further augment that dream by being 

confirmed for this very important position. 

He is currently serving as Staff Director of the House Subcommittee on International Operations and Human Rights, where 

he has had the opportunity to deal with issues involving American 

investors overseas who have had their property confiscated. He also 

has served as Staff Director of the House Subcommittee on International Economic Policy and Trade, where he has mastered the 

complexities of property rights as well as developing a working relationship with the State Department. 

He has for many years been a very close associate, advisor, and 

part of the staff, now the Chief of Staff and Legal Counsel, to our 

distinguished Congresswoman from Florida, Ileana Ros–Lehtinen, 

who joins us today. 

Mr. Chairman, requesting that the full statement be entered in 

the record, I strongly recommend Mauricio and urge this Committee’s prompt consideration and forwarding of his nomination to the 

Senate for confirmation. 

Senator DURBIN. Thank you very much, Senator Graham. 

[The prepared statement of Senator Graham follows:]

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF FLORIDA

Mr. Chairman,it is my pleasure to introduce Mauricio Tamargo, nominee to serve 

as Chairman of the Foreign Claims Settlement Commission. 

As chairman of the Foreign Claims Settlement Commission, Mauricio will be responsible for making claims on behalf of American citizens against foreign governments. These claims are diverse, ranging from the claims of Holocaust survivors 

being compensated for their tragic suffering to Americans who have had property 

confiscated by foreign governments. 

768

Mauricio, who at the age of four fled with his family from Cuba, has achieved the 

American dream. He serves as an example of what a person can aspire to be in this 

country. 

After working his way through the University of Miami as an undergraduate, he 

earned a Jurist Doctorate Degree from Cumberland School of Law in Birmingham, 

Alabama. 

Mauricio is currently the Staff Director for the House Subcommittee on International Operations and Human Rights, were he has witnessed first hand the many 

difficulties American investors face overseas including having their property confiscated. 

He has also served as Staff Director and Counsel for the House Subcommittee on 

the International Economic Policy and Trade where he mastered the complexities 

of international property rights as well as developed a working relationship with the 

State Department, the chief policy agency that the Commission works with. 

He various roles for Congresswoman Ileana Ros-Lehtinen from Florida, currently 

as Chief of Staff and Legal Counsel, and formerly as Legislative Director and Press 

Secretary, have helped him learn to be more responsive to constituents. 

This trait will be essential as Chairman of the Foreign Claims Settlement Commission because many of the People the Commission helps are of limited means and 

rely on the government for assistance in regaining their property. 

My office has worked with Mauricio since he came to Washington to work for Congresswoman Ros-Lehtinin. During this time, we have witnessed his integrity, hard 

work, and dedication as well as his exceptional leadership skills. 

Through the course of his career, Mauricio has amassed substantial experience in 

international affairs as well as a strong commitment to public service. 

Additionally, his keen sense of justice makes him an excellent candidate for this 

post were he will be able to help American citizens obtain justice from foreign governments. 

Mauricio’s experience, expertise, and conviction will enable him to fully execute 

the duties of Chairman of the Foreign Claims Settlement Commission and to help 

him work for justice for those Americans who have been wronged by foreign governments.

Senator DURBIN. I also apologize to all the visitors and the nominees that we do not have more time for this opening, but I am hoping that each of the members have a chance to say a few words 

and put their total statement in the record. We have six or seven 

Senators and Congressmen and about ten minutes to do it. 

Senator Allard? 

PRESENTATION OF MARCIA S. KRIEGER, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF COLORADO BY HON. 

WAYNE ALLARD, A U.S. SENATOR FROM THE STATE OF COLORADO 

Senator ALLARD. Mr. Chairman, thank you very much. I want to 

thank you and Mr. Leahy for moving forward on some of our nominees. This is the first nominee we have from Colorado. We have 

three of them there to be considered. I really appreciate you moving forward on this in an expeditious way and I do appreciate it, 

along with Senator Campbell. I would like to thank Mr. Sessions 

and recognize him for his effort on the Committee also. 

I just want to say it is a pleasure to be here today to introduce 

U.S. Chief Bankruptcy Judge Marcia Krieger of Denver. She has 

been nominated by the President to fill one of two vacancies that 

we have in the District Court there in Colorado. She will introduce 

her family, and I will let her go ahead and do that, and I will have 

my full statement put in the record. 

Just for a matter of interest, her father is a retired Colorado 

Court of Appeals Judge, so the experience is in the family. 

Both Senator Campbell and I have worked hard. We set up an 

advisory Committee made up of outstanding individuals in the 

769

State of Colorado, and basically we gave them the mandate that we 

want to have the best qualified on the bench and we want to have 

somebody who has had real life experiences. I think as you look 

into the background of particularly Judge Krieger, you will note 

that she has had a lot of real life experiences and I think is very 

well qualified for the bench. I am proud to be able to push her 

nomination through the Senate and thank you. 

Senator DURBIN. Thank you, Senator Allard. 

[The prepared statement of Senator Allard follows:]

STATEMENT OF HON. WAYNE ALLARD, A U.S. SENATOR FROM THE STATE OF

COLORADO

Mr. Chairman, Senator Hatch, and Members of the Committee, it is a pleasure 

to be here today to introduce U.S. Chief Bankruptcy Judge Marcia Krieger of Denver. 

Judge Krieger has been nominated by the President to fill one of two vacancies 

on the Colorado Federal District Court. 

I know that the Judge will introduce her family, but I do want to note that she 

has five children, Melissa, Kelly, Keidi, Miriam and Mathias. She is joined here by 

her husband, Harry Roberts and her parents, Don and Marjorie Smith. 

I want to note that Judge Krieger’s father is a Colorado Court of Appeals judge. 

Both Senator Campbell and I are pleased that the Committee is holding this hearing today. Colorado is a fast growing state and the Colorado Courts have a heavy 

case load. It will be a great help to the legal system in our state if we can get Judge 

Krieger confirmed before this session ends. 

Judge Krieger has been a federal bankruptcy judge for the District of Colorado 

since 1994, and she was appointed Chief Judge for the Bankruptcy Court for Colorado last year. She has extensive experience managing a case load. 

Judge Krieger is a graduate of the University of Colorado School of Law and she 

currently serves as an adjunct law professor at her alma mater. She also has extensive private practice and litigation experience and is widely respected in our state. 

the Senate should carefully review all judicial nominees, I have taken this responsibility very seriously as a Senator. I have worked hard to support the selection of 

federal judges of the highest qualification. 

That is why Senator Campbell and I formed a Judicial vacancy Advisory Committee to screen candidates for District Court vacancies in Colorado. 

This past Spring, once we learned the process that would be followed by the President in selecting federal judges, we appointed a six member Advisory Committee. 

This Committee was made up of distinguished lawyers in our state. 

They reviewed dozens of candidates for the two District Court vacancies in Colorado. 

They narrowed the list down to nine qualified individuals. 

I personally interviewed all nine, and I was very confident that all nine would 

make fine federal judges. 

Senator Campbell and I then forwarded these names to the President and his 

legal counsel. 

The President announced his selection of Judge Krieger from this list. 

It is an honor to introduce and support Judge Krieger. I am confident that the 

Committee will find her as qualified as I do.

Senator DURBIN. Senator Gramm? 

PRESENTATION OF PHILIP R. MARTINEZ, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY 

HON. PHIL GRAMM, A U.S. SENATOR FROM THE STATE OF 

TEXAS 

Senator GRAMM. Mr. Chairman, thank you very much. I know 

Senator Hutchison has spoken and I am sure that she has extolled 

the virtues of Judge Phil Martinez. 

Let me just say, Phil is a top hand. He was a brilliant student 

at the University of Texas at El Paso. He went to Harvard Law 

School. He is the most respected judge in El Paso. He is a DemoVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00781 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
770

crat office holder, but the Constitution is nonpartisan. I just cannot 

think of a better qualified candidate for the Federal bench. I am 

proud that I had the opportunity to recommend Phil to the President. 

I appreciate you holding this hearing. I am confident that when 

you have looked at his credentials and met him, that you will agree 

with me that he is going to be a great Federal Judge. I am proud 

that he is young. He will be a Federal Judge for a long time and 

I think he will be very successful. This Committee will be very 

proud that they confirmed him. 

Senator DURBIN. Thank you, Senator Gramm. 

Senator Sessions? 

PRESENTATION OF CALLIE V. GRANADE, 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. It is a particular privilege and pleasure for me 

today to introduce to the Committee a nominee of the highest 

order. Ginny Granade has the temperament, integrity, and legal 

knowledge, as well as the experience, that will make her an outstanding jurist on the Federal bench. I know this from first-hand 

experience. 

Ginny served as an Assistant United States Attorney under my 

tenure for 12 years, when I served as United States Attorney in the 

Southern District of Alabama. She had been hired by the previous 

United States Attorney. So we have worked together and prosecuted cases together. 

From that experience, I learned that Ginny was level-headed, 

fair-minded, trustworthy, and smart. Her current position as Interim United States Attorney for the Southern District of Alabama 

indicates that others think highly of her, as well. She will serve her 

State and country exceedingly well. 

I am also pleased that her husband, Fred Granade, is here, who 

is an outstanding attorney in his own right, and Rives, Smith, and 

Joseph, their children, and my good friend and her good friend, 

Donna Dobbins, who is also an Assistant United States Attorney 

and just a wonderful person and prosecutor. 

Ginny is a graduate of the University of Texas School of Law, 

and served as a law clerk to the Honorable John Goldbold of the 

United States Court of Appeals for the Fifth Circuit. Being selected 

to clerk on the Circuit Court of Appeals is an honor in itself. That 

court is now in the 11th Circuit. This is the same circuit for which 

Ginny is nominated to serve as a District Judge and it is the same 

circuit on which her grandfather, Judge Rives, once served as a 

Circuit Judge. 

All this experience has no doubt aided her for her service on the 

Federal bench. I believe that her more than 20 years of experience 

in the United States Attorney’s office, practicing in the very court 

she is now being nominated for, as well as extensive appellate experience before the 11th Circuit Court of Appeals, has given her 

the necessary exposure to understand how a Federal District 

Court, and more importantly, how a Federal District Judge, should 

conduct herself. 

771

She joined the United States Attorney’s office in 1977 as the first 

female Assistant United States Attorney in that district. She 

proved her merit as an outstanding prosecutor and a leader. For 

over a decade, it was said she never lost a case, and I think that 

was accurate. Actually, I am not sure she has lost one yet. 

In 1990, because of her leadership qualities, she was promoted 

to Chief of the Criminal Division in the office and she also has 

served as a First Assistant United States Attorney. She was selected as Senior Litigation Counsel before that, which was quite an 

honor. Ginny was the first attorney in the district to achieve that 

honor. Her abilities in the courtroom have been demonstrated time 

and time again in her prosecution of the most complex white collar, 

fraud, tax fraud, and public corruption cases. 

One case stands out to me. In 1990, I witnessed her prosecute 

a multi-defendant racketeering public corruption case. It was a 

very intense criminal prosecution. In my 15 years in Federal 

Courts, I have never seen a better closing argument. In the longest 

jury trial ever tried in the Southern District of Alabama, she tried 

the case successfully with dignity, integrity and professionalism. 

The American Bar Association has given Ginny its highest grade 

of approval, unanimously rating her ‘‘well qualified.’’ I am very 

pleased to see that recognition. Individuals that have worked with 

her and know her share in the ABA’s recommendation. Former 

Senator Howell Heflin is a great fan of Ginny and has stated he 

knows of no opposition to her appointment. 

Ginny’s litigation skill, as well as command of the most complex 

issues, has won her respect and admiration from the press, her 

peers, and my overwhelming support. 

Senator Leahy, I commend you for scheduling this hearing and 

placing her on the agenda. This court that she will be a member 

of is pretty much in a crisis. It is a three-judge court with only one 

active judge. We have had two vacancies for some time now and 

I believe it is considered to be the district in America with the longest existing crisis-level need for a nominee. 

Chairman LEAHY. We may not be doing her a favor by sending 

her down there. 

Senator SESSIONS. It is going to be a challenge. The cases have 

backlogged, for sure. 

Ginny’s integrity, experience, and commitment to the rule of law 

are outstanding. The thing I think is most valuable in a judge is 

judgment, and when I had a tough question in the office and I 

needed advice on what to do, I went to her office, as did every other 

Assistant United States Attorney. There was a stream of them in 

and out. I know Donna has done it many times. What does Ginny 

think about this, on a big issue? So I think that is a high compliment. 

She will be a great District Judge and I am proud that she will 

be moving forward. 

Senator DURBIN. Thank you, Senator Sessions. 

[The prepared statement of Senator Sessions follows:]

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA

Mr. Chairman, I am pleased to introduce to the Committee a judicial nominee of 

the highest order. Ginny Granade has the temperament, integrity and legal knowlVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00783 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
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edge as well as experience that will make her an outstanding jurist on the federal 

bench. I know this from first hand experience. 

Ginny served as an Assistant U.S. Attorney under my direction in the Southern 

District of Alabama, so we have worked together and prosecuted cases together. 

From that experience, I learned that Ginny was level-headed, fair minded, trustworthy and smart. Her current position, as interim United States Attorney in the 

Southern District of Alabama, indicates that others think highly of her as well. She 

will serve her state and her country well. 

Ginny is a graduate of the University of Texas School of Law and served as a law 

clerk to the Honorable John Godbold, of the U.S. Court of Appeals for the 5th Circuit. That Court circuit for which Ginny is nominated to serve as a district judge, 

and the same circuit that her grandfather once served as a circuit judge. 

And although this experience has no doubt aided her for service on the federal 

bench, I believe that her more than 20 years of experience in the United States Attorney’s Office, practicing in the very court that she has been nominated for, as well 

as extensive appellate experience before the 11th Circuit U.S. Court of Appeals, has 

given her the necessary exposure to understand how a federal district court and 

more importantly how a federal district judge should conduct herself. 

Since Ginny joined the U.S. Attorney’s Office in 1977, as the first female Assistant 

U.S. Attorney in the Southern District of Alabama, she has proven her merit as an 

outstanding prosecutor and leader. In 1990, because of her leadership qualities, she 

was promoted to Chief of the Criminal Division of that office, and she also served 

at First Assistant United States Attorney. Her abilities in the courtroom have been 

demonstrated time and time again in her prosecution of complex white collar fraud, 

tax fraud and public corruption cases. 

One case to me stands out. In 1990, I witnessed her prosecute a multi-defendant, 

racketeering, public corruption case. This was high stakes criminal prosecution. In 

my 15 years of practice in the federal courts, I have never seen a better closing argument. In the longest jury trial ever in the Southern District of Alabama, Ginny 

got the job done. 

The American Bar Association has given Ginny its highest grade of approval, 

unanimously rating her as well qualified. Individuals that have worked with and 

know Ginny also share the ABA’s recommendation. Former Senator Howell Heflin 

commented that he knows of ‘‘no opposition to her appointment.’’

Ginny’s litigations skills as well as command of the most complex issues has won 

her the respect and admiration of her peers, and my overwhelming support. 

I commend Chairman Leahy for scheduling this hearing and placing Ginny on the 

agenda, so that we can address a judicial crisis in the Southern District of Alabama. 

A letter I received from Chief District Judge Charles Butler underscores the need 

to move on this nomination. Judge Butler is the only active judge serving in the 

district, which is authorized to have three judges with a fourth approved by the Judicial Conference of the United States. One of these vacancies is the longest district 

court emergency in the country, so I appreciate the Chairman’s willingness to move 

on this nominee. 

Ginny Granade’s integrity, experience, and commitment to the rule of law are outstanding. I recommend her as an outstanding individual, professional, attorney, and 

friend. She will make a great federal judge.

Senator DURBIN. Senator Ensign? 

PRESENTATION OF JAMES C. MAHAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEVADA BY HON. JOHN 

ENSIGN, A U.S. SENATOR FROM THE STATE OF NEVADA 

Senator ENSIGN. Thank you, Mr. Chairman, and thank you, 

Chairman Leahy, for scheduling Judge Mahan. Judge Mahan has 

been rated—every year, our largest newspaper does a survey of all 

of the judges and of the attorneys on saying who should be retained 

and this last year, including all the local courts, State courts, 

Judge Mahan was rated number one in the State of Nevada, including the State Supreme Court. 

It was my privilege to be able to recommend Judge Mahan’s 

name to President Bush, and with Senator Reid’s joint support, we 

are very proud and we think that he will make a great judge. 

There is something Senator Sessions said about judgment. He has 

773

the right temperament to be a judge. We think he is going to be 

excellent. 

We are very proud of our District Court in the State of Nevada. 

We think it is one of the best in the country, and it is with that 

that we think that Judge Mahan is going to make this bench even 

that much stronger. 

He is married, has a son, James Junior, and I know they are 

proud of him, as well. 

With that, I would ask unanimous consent that my full statement be made part of the record. I will keep my statement short 

today and just say that with this Committee’s support, we will be 

adding a great jurist to the bench. 

Senator DURBIN. Thanks, Senator Ensign, and your statement 

will be made part of the permanent record. 

[The prepared statement of Senator Ensign follows:]

STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF NEVADA

Mr. Chairman, it is honor to come before the Senate Judiciary Committee today 

to introduce to you a man of the highest legal distinction, Judge Jim Mahan. 

A long-time resident of Las Vegas, Nevada, Judge Mahan began his studies not 

in our great state, but at the University of Charleston in Charleston, West Virginia. 

Following graduation he attended graduate school before joining the United States 

Navy where he served until honorably discharged in 1969. Jim then studied and 

graduated from Vanderbilt University Law School. 

Following graduation, Judge Mahan began his work in Nevada, first as a law 

clerk and then as an associate attorney. In 1982 he formed the law firm of Mahan 

& Ellis, where he practiced law primarily in the areas of business and commercial 

litigation for seventeen years. In February 1999, Judge Mahan’s legal experience 

and expertise were recognized by Governor Kenny Quinn, who named him as his 

first appointment to the Clark Country District Court. 

Since taking the bench, Judge Mahan has heard civil and criminal matters involving a 3,000 case docket assigned to him. Judge Mahan’s service on the bench has 

been of the highest order. He has overseen many of Nevada’s most complex and controversial cases since taking the bench and has done so with great care, fairness, 

and prudence. In a survey conducted last year by Nevada’s largest newspaper, 

Judge Mahan’s retention rates scored the highest of any judge serving on state or 

local court in Nevada. . .and that includes the Nevada Supreme Court. 

Judge Mahan’s extensive legal background and his commitment to public service 

make him a excellent choice as U.S. District Court Judge for the District of Nevada. 

Mr. Chairman, I know his wife Eileen and his son James Jr. are proud of him for 

being here today, and the state of Nevada is proud of Him and all that he represents for our great state. I am proud to introduce Judge Jim Mahan before the 

Senate Judiciary Committee today and ask for your full support on his nomination.

Senator DURBIN. Senator Miller? 

PRESENTATION OF C. ASHLEY ROYAL, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA BY 

HON. ZELL MILLER, A U.S. SENATOR FROM THE STATE OF 

GEORGIA 

Senator MILLER. I will speak as fast as this Southern mountaineer can. 

[Laughter.] 

Senator MILLER. I am pleased to join with my colleague, Senator 

Max Cleland, in support of our fellow Georgian, Ashley Royal. He 

is imminently qualified to be a United States District Judge for the 

Middle District of Georgia. He has had extensive experience. He 

has served both as a prosecutor and as a public defender. He has 

tried cases in State and Federal Courts all the way back to his 

third year of law school. He has had significant experience in mediVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 00785 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
774

ating cases. He has taught at the University of Georgia Law 

School. All of his work history will serve him well on the Federal 

bench. 

Throughout his career, he has shown himself to be a very committed public servant. He is highly intelligent. He is honest. He is 

an able attorney. He will be an exceptional judge and I hope the 

Committee will approve his nomination and that he will be confirmed by the full Senate as soon as possible. Thank you. 

Senator DURBIN. Thank you very much, Senator Miller. 

[The prepared statement of Senator Miller follows:]

STATEMENT OF HON. ZELL MILLER, A U.S. SENATOR FROM THE STATE OF GEORGIA

Thank you, Mr. Chairman, for allowing me to say a few words in support of the 

nomination of my fellow Georgian—Ashley Royal. As Sen. Cleland has already stated, Mr. Royal is well qualified to be a United States District Judge for the Middle 

District of Georgia. It is my pleasure to recommend him to the committee today. 

Senator Cleland has outlined some of the details of Mr. Royal’s distinguished career. I would like to focus on Mr. Royal’s experience, which I believe shows him to 

be uniquely qualified public defender. His experience in private practice includes 

work on a wide array of civil matters including insurance defense, asbestos litigation, employment discrimination, and Section 1983 cases. Further, Mr. Royal’s extensive experience trying cases in state and federal courts dates all the way back 

to his third year of law school. Mr. Royal also has significant experience in mediating cases and has taught at the University of Georgia Law School. All of this work 

history will serve him well on the Federal bench. 

In short, Mr. Chairman, I join Senator Cleland in giving Ashley Royal my full 

support. Throughout his career, he has shown himself to be a committed public 

servant. He is a smart, honest, and able attorney. He will be an exceptional judge. 

I hope that the Committee will approve his nomination and he will be confirmed 

by the full Senate as soon as possible. 

Thank you, Mr. Chairman.

Senator DURBIN. I also have a letter of support that has been 

sent by Senator Shelby in support of Ginny Granade. 

I understand that Senator Bill Nelson will be sending a letter in 

support of the nomination of Mauricio Tamargo. 

Those who are not familiar with the difference between the 

House and the Senate, because there are so many members of the 

House, they are called on many times to say as much as a Senator 

does in a very short period of time and we are going to give two 

of those members of the House a chance to do that right now, and 

I would like to call before us Congresswoman Ileana Ros–Lehtinen 

of Florida and her colleague, Congresswoman Carrie Meek of Florida. It is great to see both of you on this side of the rotunda, and 

if you could give us your one-minute speeches, we would greatly 

appreciate it. 

PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE 

CHAIR OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION 

OF THE UNITED STATES BY HON. ILEANA ROS–LEHTINEN, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

FLORIDA 

Representative ROS-LEHTINEN. Thank you so much, Senator. As 

a Cuban American, I speak very, very fast in either language. 

I am very proud to be here to support my Chief of Staff, Mauricio 

Tamargo. He is open minded, hard working, a great family man, 

intelligent, has the right temperament for the job. He is fair. He 

is able to work in a bipartisan manner. I think every Democrat 

775

member of the Florida delegation would say that Mauricio is a man 

of his word and a person with whom you can work for the betterment of our nation. 

We were limited to only two House members. Had the Department of Justice not limited us, we would have had the entire Florida delegation here supporting Mauricio’s nomination. 

In spite of his very Hispanic name and in spite of being a member of my staff in various capacities for almost 20 years, my golden 

retriever speaks better Spanish than Mauricio Tamargo. That is 

the only negative thing that you can say about Mauricio, and I 

have been working on it for a long time. 

He was the first person whom I hired when I got elected 20 years 

ago. He has been a member of my staff at the Florida House, and 

now in the International Committee. He has headed several Committees which I have had the pleasure of chairing. 

He will represent the interest of American property owners in a 

very impartial way as the U.S. House, the U.S. Senate, and the 

judges have interpreted. He understands the difference between 

being in the one branch of government and being in another, and 

I think that he will represent our country in the best possible way. 

He is a wonderful American and I think he will be a tremendous 

addition as Chairman of this Commission, so I thank you, Senator. 

Senator DURBIN. Thank you very much. 

Congresswoman Meek? 

PRESENTATION OF MAURICIO J. TAMARGO, NOMINEE TO BE 

CHAIR OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION 

OF THE UNITED STATES BY HON. CARRIE MEEK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Representative MEEK. Thank you very much, Senator. Every 

once in a while, as a member of the House, we get the privilege 

of being able to recommend someone who is truly unique. I think 

that Mauricio Tamargo is truly unique. I have known him almost 

as long as his boss has. I have known him in the Florida House 

of Representatives and now here in the Congress. 

A lot of things I know about Mauricio, but one thing I know is 

that he is honest, he is fair, he is just, and when he gets to be the 

Chairman of this Commission, you are going to have a man of 

whom you can be very proud because he is going to rule with an 

unbiased hand, and I have known Mauricio that long. He is knowledgeable. He has been tested. 

I hope that this Committee will take all of those things into consideration and know when Mauricio goes to the Foreign Claims 

Settlement Commission, you will have a man who can work in all 

neighborhoods, Hispanic, black, white, whatever. He is what I 

would call a very fine person to head any agency of government. 

So with great support, I do hope that Mauricio will be chosen as 

the Foreign Claims Settlement Commission Chairperson, and I 

thank you. 

[The prepared statement of Representative Meek follows.]

STATEMENT OF HON. CARRIE P. MEEK, A U.S. REPRESENTATIVE IN CONGRESS FROM

THE STATE OF FLORIDA

Thank you, Mr. Chairman, for the opportunity to testify before you today. 

776

I am here to voice my enthusiastic support for the President’s Nomination of 

Mauricio Tamargo as Chairman of the Foreign Claims Settlement Commission. 

As a Member of the House of Representatives, as a citizen of this country, I want 

a Commission Chairman who is unbiased and fair;

Who is knowledgeable; 

Who is serious about his job, and about doing it well; 

who has demonstrated good judgement; 

and who has excellent management skills.

To me, the ideal candidate would also be enthusiastic about running an agency 

that has to decide complicated claims involving acts of Congress and international 

law, claims that can be large and that can sometimes affect thousands of people. 

Mr. Chairman, Mr. Tamargo meets all of these criteria. He is an excellent choice 

for Commission Chairman. 

I have known Mauricio for almost a decade, and I have found him to be a serious, 

dedicated and effective public servant. He is an honest man, a hard worker, and he 

is fair-minded. 

I know that his first love has always been the law, that he is a professional, and 

that he will serve this country in this position with objectivity and distinction. 

I feel strongly that Mr. Tamargo will use the power of this office to honestly and 

fairly adjudicate the cases that come before the Commission. 

Mauricio Tamargo is a dedicated public servant. He is well-qualified for this important job. 

I strongly urge that this committee to expeditiously approve his nomination and 

let him finally get to work. 

Thank you.

Senator DURBIN. Thank you very much, Congresswomen Meek 

and Ros-Lehtinen. 

Representative ROS-LEHTINEN. Thank you, Senator. 

Senator DURBIN. Now I am going to make a mad dash for the 

floor, and in the meantime, if the five judicial nominees will come 

forward to the table and we will get you all set up. When I return, 

I will administer the oath and we will start the testimony. For the 

few moments, probably 20, this Committee stands in recess. 

[Recess from 10:35 a.m. to 10:55 a.m.] 

Senator DURBIN. We will reconvene and I would like to ask the 

five judicial nominees to come forward to the witness table. If you 

would all please rise and raise your right hand as I administer the 

oath. 

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

before the Committee is the truth, the whole truth, and nothing 

but the truth, so help you, God? 

Ms. GRANADE. I do. 

Judge KRIEGER. I do. 

Judge MAHAN. I do. 

Judge MARTINEZ. I do. 

Mr. ROYAL. I do. 

Senator DURBIN. Thank you. Let the record reflect that all of the 

nominees answered in the affirmative. 

We will begin with Ms. Granade, and if you would please be kind 

enough to introduce family members and friends who are present 

and make an opening statement if that is your choice. 

STATEMENT OF CALLIE V. GRANADE, NOMINEE TO BE DISTRICT COURT JUDGE FOR THE SOUTHERN DISTRICT OF 

ALABAMA 

Ms. GRANADE. I do not have an opening statement other than to 

thank the Committee for holding this hearing and it is such an 

honor to be here. 

777

I would like to introduce my family who is here, my husband, 

Fred Granade, who is a practicing attorney in Bay Minette, Alabama; my three sons, Rives, Smith, and Joseph, who are—Rives 

and Smith are college students, Joseph is a high school student; my 

colleague, Donna Dobbins, from the U.S. Attorney’s office; and a 

good family friend, David DeJong, who practices law in Rockville, 

Maryland. 

[The biographical information of Ms. Granade follows.]

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Senator DURBIN. Thank you very much. 

Ms. Krieger? 

STATEMENT OF MARCIA S. KRIEGER, NOMINEE TO BE 

DISTRICT COURT JUDGE FOR THE DISTRICT OF COLORADO 

Judge KRIEGER. I, too, have no opening statement except to express my appreciation for being able to be here at the hearing 

today and the honor that you do me to invite me. 

I would like to introduce my family, and I am very blessed to 

have a large family with me here today, my husband, Harry Roberts; my parents, Judge Don Smith and Marjorie Smith; our five 

children, Melissa Roberts, Kelly Roberts, Miriam Krieger, Heidi 

Roberts, and Mathias Krieger; and I am also blessed to have extended family who lives in the area, my sister-in-law, Nancy Saenz, 

and her children, Marnie Litz, Robin Saenz, Tyler Saenz; and I 

note that there are three members from the bankruptcy staff of the 

Administrative Office of the U.S. Courts who are also here and I 

am grateful for that. 

The biographical information of Judge Krieger follows.]

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Senator DURBIN. Thank you very much. 

Mr. Mahan? 

STATEMENT OF JAMES C. MAHAN, NOMINEE TO BE DISTRICT 

COURT JUDGE FOR THE DISTRICT OF NEVADA 

Judge MAHAN. Thank you, Mr. Chairman, and again, I have no 

opening statement other than to thank you and Senator Leahy and 

the Committee for conducting this hearing so expeditiously. 

I would like to introduce my wife and my assistant. My wife, Eileen, is seated in the back here, and next to her is my longtime, 

or some might say long-suffering assistant, Jeri Winter, and I 

would like to introduce her, as well. 

Thank you, Mr. Chairman. 

[The biographical information of Judge Mahan follows.]

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xxxxxxxxx
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Senator DURBIN. Thank you very much. 

Mr. Martinez? 

STATEMENT OF PHILIP R. MARTINEZ, NOMINEE TO BE DISTRICT COURT JUDGE FOR THE WESTERN DISTRICT OF 

TEXAS 

Judge MARTINEZ. Mr. Chairman, good morning. Thank you for 

the opportunity to appear before the Committee. 

I am pleased to have with me from El Paso, Texas, my parents, 

Mr. and Mrs. Phil Martinez, Senior, who are seated to my left-hand 

side behind me, and I am also pleased to have with me today my 

wife, Mayela Martinez, and my daughters, Jaclyn and Lauren Martinez, and they are seated over to the far right-hand side. Thank 

you, sir. 

[The biographical information of Judge Martinez follows.]

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Senator DURBIN. Thank you. 

Mr. Royal? 

STATEMENT OF C. ASHLEY ROYAL, NOMINEE TO BE DISTRICT 

COURT JUDGE FOR THE MIDDLE DISTRICT OF GEORGIA 

Mr. ROYAL. Thank you very much for the opportunity to be here 

today. I really count it as a great privilege. 

I am fortunate enough to have with me my lovely wife, Ellen 

Royal. Seated next to her is my father, Charles Royal, and then I 

have a cousin back here, Chuck Royal, Jed Royal is back there, and 

Marie Weed, a friend. 

[The biographical information of Mr. Royal follows.]

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Senator DURBIN. Thank you very much. 

Mr. ROYAL. Thank you. 

Senator DURBIN. The fact that none of you have an opening 

statement reminds me of an early admonition in law school that if 

you are ahead, do not mess it up—

[Laughter.] 

Senator DURBIN. —or something along those lines, and I think 

that you can take some comfort from the opening statements of all 

of my colleagues and members of the Committee of how positive we 

view your credentials and your nomination for the Federal District 

Court. 

Many years ago, before I was in this job, or before I was in the 

House, I was a practicing attorney and I came to appreciate great 

legal acumen and legal skills, but appreciated even more the appropriate temperament for a judge. The position that you are seeking 

is a lifetime appointment, and as a consequence, if you are good, 

we will get to see that goodness for a long time, and if you are not, 

we will also see that. 

It is very tough to be a self-critic, but I would like if each of you 

would be kind enough to say a few words for the record, under 

oath, about judicial temperament and what you think makes a 

good judge in that respect. Ms. Granade? 

Ms. GRANADE. Mr. Chairman, I believe that a good judicial temperament is one in which a judge is even-handed, has civility and 

respect for the lawyers that practice in front of him or her, one who 

engenders respect him or herself by the way he or she comports 

themselves on the bench. I think that it is most important for the 

court to engender respect and an even, solid, level-headed temperament is probably the best way to do that. 

Senator DURBIN. Thank you. Ms. Krieger? 


82503.835
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Judge KRIEGER. Thank you, Mr. Chairman. My view of judicial 

temperament is that a judge has to inspire trust in the system, and 

in order to do that, a judge must be prepared, impartial, respectful 

of the parties. It is sometimes tempting to think that the courtroom 

in which you serve is your courtroom, but it is not. It is the people’s 

courtroom. And ultimately and most importantly, the judge should 

endeavor to be consistent and respectful of all those people who 

come to that courtroom. 

Senator DURBIN. Thank you. Mr. Mahan? 

Judge MAHAN. Thank you, Mr. Chairman. I am a sitting judge 

now, as you know, in State Court, and I think temperament is very 

important, how a judge reaches his or her decisions and how he or 

she treats people in the courtroom. So I think a judge has to be, 

first of all, prepared for whatever hearings are going on at that 

particular time and courteous, professional, treat all of the litigants 

and the parties with the utmost respect to which they are entitled, 

and again, I cannot stress how important I think judicial temperament is. 

Senator DURBIN. Thank you. Mr. Martinez? 

Judge MARTINEZ. Mr. Chairman, I think the judge sets the tone 

in his or her courtroom, and I think to that extent it is important 

for the judge to be even-handed and open-minded about the nature 

of the evidence that is going to be presented and thoughtful in the 

process. The adversarial system may be one in which it can be contentious at times, but I think there can be disagreement without 

ever reaching the point of being disagreeable, and I think the manner in which the judge conducts the business of the court is oftentimes reflected by the attorneys and the parties in the court. It is 

an uncomfortable arena for most individuals who do not have occasion to be there on a daily basis and the judge can do much in ways 

to disarm any apprehensions a party or a litigant may have being 

in the courtroom. 

Senator DURBIN. Thank you. Mr. Royal? 

Mr. ROYAL. So much of what I have already heard has been excellent and I agree with all that. As part of the investigations that 

were done on me, I was asked a question, what kind of judge do 

you want to be, and I said I want to be a quiet judge, and I said 

that because I think judges often get themselves in trouble by saying too much, and so I think it is important to exercise self-control 

from the bench. I think it is also very important for the litigants 

to understand that they are getting a fair trial and that the judge 

is open-minded. I think those are really essential. 

Senator DURBIN. I think that admonition for quietude could be 

shared with some members of the Senate and House, too. 

[Laughter.] 

Senator DURBIN. We err on the other side of that once in a while. 

In America, we pride ourselves on a Constitution which preserves the rights of individuals and protects them from the overreach of government. The courts really play a critical role in maintaining that appropriate balance. It is a difficult balance to maintain in time of peace, that balance between civil liberties and national security, when the government says there are things that we 

have to do to protect and defend this nation and others challenge 

1002

them as perhaps assaulting some of the core values and liberties 

guaranteed by the Constitution. 

In our history, there have been some examples where there have 

been excesses, and in time, we have come to realize the Japanese 

interment camps went too far in taking ordinary law-abiding Americans, and because of their ethnic ancestry, literally interning or 

imprisoning them for long periods of time. 

I would like to have your thoughts on that particular issue. Now 

that we are facing a war against terrorism, a very real attack 

against the United States, this debate will rage on, and if you are 

fortunate enough to be confirmed, may come to your courtroom, 

and I would like your thoughts about that appropriate role of the 

government, the rights under the Constitution, and the role of the 

judge. Mr. Royal, would you start? 

Mr. ROYAL. Well, I think that we are at a time when national 

security is a great issue and we are at a time when it is a very 

grave matter, implementing safety in this country. I think that it 

is very important that we understand that it is times like these 

when there can be problems by overlooking the rights that you 

mentioned in the Constitution, neglecting those rights, and I think 

that it is very important that that not happen, that we maintain 

a good balance between seeking out efforts, devising ways to protect our country within the realm of what is constitutional. 

Senator DURBIN. Mr. Martinez? 

Judge MARTINEZ. Mr. Chairman, I agree with my fellow nominee. 

I think that it is certainly important to realize that the rights afforded to each of us are personal rights, and certainly the 14th 

Amendment guarantees to us that no person should be in any way 

deprived of equal protection of the laws. I think it is an important 

balancing act. 

It certainly is an appropriate arena for the Senate Judiciary to 

make inquiry of with respect to the issues that will affect all Americans and I think it would be inappropriate, however, to ask how 

a judge would handle a particular case that may come before that 

judge, given the fact that we must approach that with an open 

mind, listening thoughtfully to the evidence and making a decision 

based upon the facts and the law, which I certainly will follow. 

Senator DURBIN. Thank you. Mr. Mahan? 

Judge MAHAN. Thank you, Mr. Chairman. I think that you yourself struck the appropriate note when you said balance, because it 

is a balance. It is a balance between—obviously, the government is 

concerned about the safety of its citizens and it should be concerned about that. But all of us have to be concerned, and particularly we members of the judiciary have to be concerned about the 

civil liberties. 

And so I think, as Judge Martinez said, it is an appropriate subject for the Committee and the Congress to look at and to consider, 

but it is something that we need to be very mindful of. In the rush 

to safety, we cannot overlook the constitutional liberties that we all 

enjoy and that are the basis for our freedoms in this country. 

Senator DURBIN. Thank you. Ms. Krieger? 

Judge KRIEGER. Thank you, Mr. Chairman. I agree with all the 

comments that have been made and I would only add that security 

and liberty are the flip sides on the same coin. If we did not have 

1003

civil liberties, there would be nothing to keep secure, and indeed, 

it is the preservation of those civil liberties that prompt us towards 

security. 

Keeping a balance between those is difficult. It is a matter of policy. It is a matter of the people’s will through their elected representatives, the Congress. Ultimately, we may face an issue, any 

one of us, that is brought before the courts, and in that event, we 

will have to decide the issue on the merits with the presumption 

that any enactment is constitutional. 

Senator DURBIN. Thank you. Ms. Granade? 

Ms. GRANADE. Mr. Chairman, I think that this is one of the great 

public policy issues that Congress is currently having to grapple 

with and that it is the most appropriate subject for Congress to address initially. 

I do believe that once Congress has spoken on all of these issues, 

it is up to the judiciary at that point to respect any bright lines 

drawn by Congress in that regard, unless and until it flies in the 

face of the Constitution, and that is where the judiciary comes in. 

But with all due deference and respect to those Congressional decisions, I think that is where the real battle will lie. 

Senator DURBIN. Thank you. 

Senator Sessions, would you like to ask? 

Senator SESSIONS. Yes, thank you. I congratulate each of you. 

From what we have seen, and your backgrounds have been reviewed very carefully with the people who nominated you and submitted your name for nomination, by the White House and the 

President, by the ABA, by the Congress now, the Senate, this Committee, on both sides of the isle, so I think it is something that you 

should take great pride in, that your nominations are moving forward and things look very good for each of you. I know each of you 

will make a great judge. 

I would mention one thing, and Ms. Granade, I will start with 

you. Tell me your thoughts on the rule of law and the importance 

of maintaining a consistent rule of law in America. 

Ms. GRANADE. As I have heard Judge Hand say time after time 

after time, this is a nation of laws and not of men, and the rule 

of law is prime in our system of jurisprudence. That is what makes 

stare decisis such an important factor in how any judge goes about 

the business of being a judge. I think that as long as judges follow 

the rule of law and do not become a law unto themselves, they will 

make a fine judge, and that is what I intend to do should I be so 

fortunate as to be confirmed. 

Senator SESSIONS. Thank you. Ms. Krieger? 

Judge KRIEGER. The rule of law is the basis of what this country 

is built upon. It is what holds us together as a society. We come 

together with differing religions, differing ethnic backgrounds, differing ages, different cultural practices, but it is our fundamental 

belief in the rule of law that holds us together and it is the judge’s 

duty to serve the rule of law. 

Senator SESSIONS. Mr. Mahan? 

Judge MAHAN. Thank you, Senator Sessions. I think the uniformity and the consistency of the law are very important to this 

country, that we do not have differing decisions depending on what 

part of the country you are from or perhaps from your background, 

1004

but we have judges who are committed to the rule of law and to 

the precedents that have already been established. I think it is important that we all know where we stand, and the rule of law is 

something that is certain, that all of our citizens can count on, and 

I think it is very important. It is a vital part of our society. 

Judge MARTINEZ. Senator, thank you very much for the question. 

I agree with what my fellow nominees have said. We are a nation 

of laws. I think it is important to remember the judges do not, or 

should not, allow their personal opinions or political beliefs to in 

any way influence any decision which is made. The decisions, certainly for a Federal District Court Judge, ought to be guided by interpretations by the Circuit Court in which he or she resides or 

lives and certainly by the United States Supreme Court, and that 

is a commitment that I would make, to follow the law as interpreted by the higher courts. 

Senator SESSIONS. Mr. Royal? 

Mr. ROYAL. Well, I think that is a very important question, Senator, and I believe that the rule of law really provides the infrastructure for any viable society, without which a society cannot last 

very long because it will turn to anarchy. I think it is very important as a part of that to apply the rule of stare decisis, which I am 

committed to do, and follow the various precedents of the courts. 

When you do not do that, then everything becomes a matter of subjectivity and it becomes quite dangerous. 

Senator SESSIONS. I would agree very much. You know, on the 

Supreme Court building are the words, ‘‘Equal Justice Under Law,’’ and we cannot have justice or equal justice if we do not have a 

good rule of law. I am convinced, as I have grown older and seen 

more things, that our economic strength and our political liberties 

are a direct result of the fact that we have one of the finest legal 

systems the world has ever known and that many fine and decent 

countries filled with fine and decent people that are struggling so 

terribly economically and otherwise is a direct result of not having 

a good legal system in which people can invest, plan, have confidence, safety, security, and all those things. I do not think we 

spend enough time celebrating the unique wonder of the American 

legal system. 

Ms. Granade, let me ask you one thing. You are going to be trying, at some point—criminal cases, unrelated to those that were in 

your office when you were there. Do you think you can give defendants a fair trial after all these years of prosecuting and be able to 

control those prosecutors that come before you? 

Ms. GRANADE. Senator, I believe that I can. I think that in the 

last ten years since I have been in a supervisory position in the 

U.S. Attorney’s office, I have practiced seeing the other side of 

cases a lot. I have practiced testing the Assistant U.S. Attorneys 

in the office on what I see as the defense side of the case. So I 

think in the criminal realm, I have come to understand both sides. 

The best way to test your own case is to know the other side. And 

so I have confidence that I have the ability to do that. 

Senator SESSIONS. I do, too. I do not have any doubt of that. I 

would say that your success record in prosecution is in large part 

due to the fact that you did not bring bad cases. You knew how 

to evaluate a case from the beginning, which is a good thing to do. 

1005

Let me ask each of you others, I do not know what your prosecutorial experience is, but in Federal Court, a prosecutor is at the 

mercy, to a large degree, of the Federal Judge. A defendant can appeal any adverse ruling against the prosecutor, but the prosecutor 

cannot appeal adverse rulings against the government. I guess I 

would like to ask you, do you understand the seriousness of that? 

It has been said certain judges would rule for the defense because 

that way they could never be reversed. You have heard that statement. 

So I guess I would ask you, will you do your best to give the government’s case in a criminal case the same fairness that you would 

give to the defense case? Ms. Krieger? 

Judge KRIEGER. I will, sir. 

Senator SESSIONS. Mr. Mahan? 

Judge MAHAN. And Senator Sessions, I certainly will. As a sitting judge now, it is one of the proudest moments or achievements 

at the conclusion of a case when I have the attorneys, both sides, 

say to me, you were fair. I really—I consider that the highest compliment that a judge can receive and I really treasure those, so you 

have my assurance that I will be fair to both sides, regardless of 

whatever case it is. 

Senator SESSIONS. Mr. Martinez? 

Judge MARTINEZ. Senator, it sounds like the rules relative to appealing cases from the State side is similar in the Federal system 

as it is in the State of Texas, and I have committed to do so, and 

having served as a District Court Judge for nearly a decade, or just 

over a decade, I would continue to do so and commit to you, sir. 

Mr. ROYAL. I have prosecuted a number of cases, so I am quite 

familiar with the rule that you just mentioned. However, I have 

also served as defense counsel for many criminal defendants, so I 

have a very good and balanced view of both sides of that. Certainly, 

I understand the deference required, the necessity of giving a fair 

trial to both sides, and I am certainly obligated to do that. 

Senator SESSIONS. Good. Mr. Chairman, you know, one of the 

most significant unreviewable powers in America is at the conclusion of the prosecution’s case, a Federal Judge can order a judgment of acquittal no matter what the evidence is and there is no 

appeal whatsoever, even though the person may have been a murderer, a bank robber, a big-time drug dealer, and we seldom have 

a problem with that. It is amazing how little problems there are, 

but there have been instances in which that has been reviewed. 

That is the reason I ask that. 

I thank each of you for being here and for your commitment to 

public service, and I know each of you are going to find this is a 

difficult job managerially and the caseloads will be difficult and 

certainly not a position in which you can relax. It is going to take 

a lot of work and I hope that you are all committed to that. Thank 

you. 

Senator DURBIN. Thank you, Senator Sessions. 

Ms. Granade, there has been a lot of discussion in this Committee for a long time about the theory of strict construction of the 

Constitution and admonitions of judicial restraint come from members of this Committee to virtually every nominee for the Federal 

bench. 

1006

You have an interesting family heritage. It is my understanding 

that your grandfather, Judge Richard Rives, played an historic role 

as one of the four judges of the old Fifth Circuit who helped to desegregate the South in the 1950s and the 1960s. The role he played 

in the face of overwhelming popular resistance involved a great 

deal of courage and judicial oversight and, some may say, beyond 

the strict construction interpretation of the Constitution, where he 

felt that he had a responsibility to do things which, or to view laws 

in a way that had not been addressed before. 

As you reflect on his contribution which he has made to the country, to our nation, how do you reconcile that in terms of strict construction and judicial restraint? 

Ms. GRANADE. Thank you for the question, because it gives me 

an opportunity to comment on that heritage, and I am very proud 

of the heritage in my family. Judge Rives, my grandfather, really 

is my personal hero. 

I do not think there is a real conflict there, though, because the 

issues on which he more or less broke with precedent were ones 

which really flew in the face of the Constitution, the direct language of the Constitution. So in that sense, he could have been 

termed a strict constructionist. 

I think a judge will always be correct if the decisions that he or 

she makes are consistent with the plain language of the Constitution, and that is what I feel that my grandfather was doing. 

Senator DURBIN. Thank you. Judge Martinez, being a person of 

Hispanic ancestry, you undoubtedly have seen in your practice and 

in your service a number of indigent criminal defendants who have 

been called to court. There have been questions raised by many minorities in this country as to whether or not they have a fair shake 

under our system, competent counsel, and whether, in fact, their 

rights and liberties are being protected in our system of justice. 

What is your thought on that observation? 

Judge MARTINEZ. Mr. Chairman, thank you for the question. I 

think it is absolutely essential that the right to counsel be the right 

to effective and meaningful counsel. In my own personal situation, 

one of the reasons that we have made use of the public defender 

system within the juvenile system which I have overseen over the 

course of the last decade is because of the quality of the representation that is afforded to the delinquents, the individuals who are 

charged with differing crimes. 

I think, given the precious liberties that we enjoy as American 

citizens, the importance of safeguarding those liberties, the only 

way to do so is to provide effective counsel to those who are 

charged with crimes which could result in the deprivation of their 

life, liberty, or property, and I would surely support the effort of 

the public defenders in the Federal system and appoint lawyers 

who are competent to represent these defendants. 

Senator DURBIN. Thank you. Mr. Royal, you bring a background 

which is somewhat unique to this nomination. It is my understanding that in the course of your practice, you successfully defended a defendant who faced a death penalty. 

Mr. ROYAL. That is correct. 

Senator DURBIN. There has been a great debate across this nation about the death penalty. In my State, the Republican GovVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01018 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
1007

ernor, to the surprise of many, suspended the death penalty because of case after case on death row which were shown to have 

been decided incorrectly. Some 12 or 13 men were released from 

death row in Illinois after DNA evidence and other evidence made 

it clear to all of the prosecutors that they could not have possibly 

committed the crime for which they had been found guilty and to 

which they had been sentenced to death. 

What is your perspective on that in reference to both competent 

counsel and DNA evidence and the question of the death penalty? 

Mr. ROYAL. Well, I recall from my case, and it was tried over 20 

years ago, that I felt a great burden in defending a man who the 

State sought to execute, and I believe that in any such circumstance, there has to be a heightened awareness, a heightened 

vigilance about all aspects of the trial where the death penalty is 

actually being conducted, and I think it is very important for the 

judge sitting in the trial of that case to go beyond the usual steps 

to ensure that the case is tried fairly, that all the constitutional 

rules are applied, and that mistakes are not made. 

Now, I am not familiar with the DNA testing and I do not have 

any particular insight into that, so it is hard for me to comment 

on that. But I think that the death penalty has very serious implications and needs to be dealt with very delicately. 

Senator DURBIN. Thank you. Ms. Krieger, your background has 

been in bankruptcy law, to some extent, but you as a Federal 

Judge will face a lot of criminal cases in a hurry. I think that is 

a major part of the docket for most Federal District Court Judges, 

because of the speedy trial requirements and the like. 

One of the issues that has been debated here in Washington and 

across the nation is the whole question of racial profiling, and virtually every elected official has condemned this practice, as they 

should. When it comes down to the administration of justice in 

America, there are some statistics which I have brought up many 

times in this room to nominees for Attorney General and for judicial posts which cause me great pain and pause, which are these 

African Americans that represent 12 percent of the United States 

population. We are told by the experts they commit 11 percent of 

the drug crimes, and yet 35 percent of those arrested for drug 

crimes are African Americans, 53 percent of those convicted in 

State Courts are African Americans, and 58 percent of those incarcerated in State prison are African Americans. 

This disparity between actually committing the crime and being 

charged, convicted, and incarcerated shows that, at least in some 

stage in the system here, something is not being handled in a fair 

and equitable fashion, at least from my conclusion. What is your 

observation of the role of the judge confronted with this kind of a 

challenge? 

Judge KRIEGER. That is a very important question, not only prior 

to September 11 but also since September 11. The issue of racial 

profiling goes right to the heart of the central values that we have 

in this country, and that is that no one should be discriminated 

against on the basis of race. The law is settled with regard to that 

and it is a judge’s obligation to apply that law in a fair and consistent manner. It is particularly important when freedom and perhaps someone’s life is at stake. 

1008

The essence of a criminal matter differs from a civil matter in 

that in civil matters, we are only talking about property and 

money, but in a criminal matter, we are talking about personal 

freedom and we are also talking about the sanctity of life and both 

of those areas demand a very high attention from the bench in 

making sure that the process is fair and it upholds the strict requirements of due process. 

Senator DURBIN. Thank you. Mr. Mahan, you may be aware of 

the fact that I represent the State of Illinois. You may not know, 

but I want to make it a matter of record here, that I am quite a 

die-hard Chicago Bulls fan. 

[Laughter.] 

Senator DURBIN. You should know that I took great pride in all 

of their championships and watched as many games as possible 

and followed them as closely as I could, and you are probably wondering—maybe you already know where this question is headed. 

You recently made a decision to permit television cameras to 

broadcast the civil trial against Dennis Rodman, former Chicago 

Bull. This is of particular interest to me not just because I have 

watched Rodman and his different hair colors on the court for so 

many years, but also because it raises a question that we are facing as a nation as to television in the courtroom. 

Every time I have asked people who want to be prosecutors or 

judges about the issue of television in the courtroom, without fail, 

they make reference to the O.J. Simpson trial as evidence of how 

it can go wrong and how it becomes the focal point of the trial as 

opposed to the administration of justice. How do you feel that we 

can strike a balance, or can we strike a balance on a national basis 

when it comes to this issue? 

Judge MAHAN. Thank you, Mr. Chairman. I myself am a Denver 

Bronco fan, so I know how you feel about the Chicago Bulls, although they are different sports. 

In the Dennis Rodman case, it was interesting to me that his 

counsel was opposed to having the cameras in the courtroom because they felt that it would encourage frivolous lawsuits. I ruled 

against them and opened the courtroom to the cameras and I told 

them that I think the opposite is true, that it is important that 

people see what goes on in the courtroom. 

I think too many of our citizens turn on TV and they see, and 

I will not mention any names, but let me call them pseudo-judges 

who, frankly, berate people, treat them rudely and with contempt, 

and they think that is the way a judge should be, and to me, that 

is horrible. I think it is important that people, that ordinary citizens see that this is the way that judges operate. I mean, they 

should see real life. This is the way judges operate. It is not the 

‘‘People’s Court’’ or something else where you go in there and you 

are subject to being abused. 

And so I think the balance, of course, is one that an individual 

judge must strike, assuming, as in our State, where cameras are 

permitted in the courtroom subject to what the judge permits, but 

I would balance those two things. In other words, if it is a kind of 

a trial that could be reduced to a spectacle, I think you need to be 

careful. But I think in large part, it depends upon the judge. The 

judge is to keep order in the courtroom and to run his courtroom 

1009

in a reasoned, reasonable fashion, and if the judge does not fulfill 

that duty, then, unfortunately, the trial degenerates, and that is 

true of any trial, whether it is being televised or not. 

But I look primarily to the trial judge to strike that balance and 

make sure that the trial is fair and do not get sidetracked by the 

fact that there are media present. 

Senator DURBIN. Thank you. 

Senator Sessions, do you have any other questions? 

Senator SESSIONS. You know, one of the things that I have noticed in the statistics we are seeing is a decline in the number of 

cases actually going to jury trial. It raises a concept of how justice 

is being dispensed in Federal Court and the complaints we hear as 

government officials about delay and cost. 

I guess I would like to ask your view about the role of a judge 

in managing a case, moving it promptly to a justice position, and 

being involved in that case in terms of you have got a serious motion to dismiss or a motion for summary judgment. How strong do 

you feel that a judge ought to confront that issue and try to decide 

it promptly and what are your thoughts about managing your docket generally? Ms. Granade? 

Ms. GRANADE. I think it is very important for a judge to manage 

the docket efficiently but without any cost to due consideration and 

fairness in the case, and each case is going to have to be judged 

on its own merit in that regard as to how fast that case can be 

moved along. I think it is vital, though, for judges to address as 

soon as practicable within the case any dispositive motions, because the sooner a case can be decided, the quicker justice will be 

dispensed. 

Senator SESSIONS. I get a lot of complaints that serious motions 

just lie there for months and months and months. Ms. Krieger? 

Judge KRIEGER. There is an old maxim, justice delayed is justice 

denied, and I think that is applicable even in motion practice. It 

is critical to make sure that every case gets the appropriate slice 

of the judicial pie at the appropriate point in time, and I believe 

not only in active case management, in moving cases along and assisting attorneys to move those cases along, but I believe in legal 

triage, which means that you have to make an assessment when 

motions come in as to what needs to be heard promptly and what 

can wait. The old first in, first out rule sometimes leaves cases undecided and motions undecided to the detriment of the parties. 

Senator SESSIONS. And you are serving the public. In that sense, 

I think that is correct. 

Mr. Mahan? 

Judge MAHAN. Thank you, Senator Sessions. I think that case 

management is something that is very much a concern of all sitting 

judges and it is a matter that needs to be addressed continually. 

I think a mistake that many judges make is they take matters 

under advisement too often and I think the better practice is to be 

prepared, hold a hearing, and then whenever possible, just rule 

from the bench so that people can move, or the litigation can move 

along. People can get on with their lives. 

But your question almost assumes that you have seen situations 

where that has not happened, and— Senator SESSIONS. Not in the Federal Court in Mobile, but—

1010

[Laughter.] 

Senator SESSIONS. They never delay rulings. 

Judge MAHAN. No, no, no, but—

Senator SESSIONS. I have heard it from other areas. 

Judge MAHAN. From other—but it is a concern that the judge address any motions that are filed promptly and not simply take matters under advisement and, first of all, not let the motion sit there 

for months before there is a hearing, but get a hearing promptly 

and then get a ruling promptly. If it has to be taken under advisement, then the judge should issue a ruling as soon thereafter as 

possible, because a case is not like wine, where it turns better with 

age. It is like milk. It turns sour with age. So I am aware of those 

concerns and I have those concerns, as well, about case management. 

Senator SESSIONS. Mr. Martinez? 

Judge MARTINEZ. Senator, I agree with what has been said by 

my fellow nominees. I think there are various procedures that are 

afforded judges which will allow for the dispositive ruling of cases 

which do not merit going the full distance. I certainly think the use 

of the summary judgment rule, either a no evidence summary judgment or an affirmative summary judgment, is something that 

should be considered. 

I agree very much with what Judge Mahan said about taking 

matters under advisement. We would all love to have the wealth 

of time in order to make the most informed decision possible, but 

I think the best trial judges with whom I have been acquainted are 

those trial judges that decide issues and move it down the process, 

and occasionally you may make a mistake or two, but there are 

others available to grade your paper. 

Justice delayed is justice denied and I commit to an active role 

in docket management, as I have done so while a State District 

Judge in El Paso, and I think the key to docket management, very 

honestly, I have every case set for something so that nothing falls 

by the wayside, and that way, every case comes up at one point or 

another for some kind of consideration and that is what I have 

found to be effective. 

Senator SESSIONS. Mr. Royal? 

Mr. ROYAL. Senator, you have really hit on a big issue and really 

one of the biggest complaints that attorneys have, and even with 

Federal Courts and State Courts, too, and I will tell you that I 

have been the victim of that problem many times, where I have 

had to wait for a year or other situations where I never got a ruling 

and the parties just had to resolve the case on their own before the 

court ruled. 

Based on my experience with that and knowing what a vexing 

problem it is, I have already made a commitment to myself that 

I am going to move forward on these rulings because it is really 

very important—

Senator SESSIONS. Well, a cause of action. If a cause of action is 

not a valid cause of action and you really believe it is not valid, 

it is hard to settle the case if the other side is still saying you owe 

money under that cause of action. Do you not think it clarifies the 

issues and allows for settlement to occur more effectively? 

1011

Mr. ROYAL. Right. Well, the avenue would be to file a motion to 

dismiss. We just had a case recently in Macon where we filed a motion to dismiss. We did not think there was a viable claim and the 

judge promptly entered the order, which worked out very well. And 

then sometimes we file motions for partial summary judgment to 

throw out a particular count. 

But the reality is if the judge lets that sit and sit and sit, then 

that obviously requires more legal expenses to be paid and it takes 

more time and it results in what should have—a lengthy disposition of a case that should have been disposed of much earlier. 

Senator SESSIONS. And the expense issue is significant. If a cause 

of action which may represent half of the litigation is not a valid 

legal cause of action, you may spend a lot of money on discovery 

and costs and investigations that would not be necessary. 

Mr. Chairman, thank you for raising Ms. Granade’s grandfather, 

Judge Rives, who is definitely one of the great judges on the old 

Fifth Circuit. It is now split and we are in the 11th Circuit part 

of that. I think it was a very difficult time for those judges. It was 

not easy. A huge sea change had to occur, and when the judge 

ruled that, the 11th Amendment says no State shall deny any individual equal protection under law, he was acting with fidelity to 

our Constitution. 

So I thank you for raising that and I think this is an excellent 

panel. I think they will do a great job. 

Senator DURBIN. Thank you very much, Senator Sessions. I certainly agree with you and I want to thank all of you for coming 

today and for your testimony and your families and friends for joining you. This will be the end of questioning and you are now free 

to go. We will leave the record open for one week to allow Committee members to submit written statements and follow-up questions and I ask my colleagues to try to do so earlier rather than 

later so we can move these nominees along expeditiously. Thank 

you very much. 

Judge MAHAN. Thank you, Mr. Chairman. 

Judge MARTINEZ. Thank you, Mr. Chairman. 

Mr. ROYAL. Thank you, Mr. Chairman. 

Senator DURBIN. I am going to call Mr. Tamargo forward. I have 

to leave in just a few moments. If our questioning goes on for a 

while, I may have to ask for a small recess here, but we will try 

to consider his nomination, give him appropriate questioning, and 

still meet our other obligations. 

Mr. Tamargo, would you please rise and raise your right hand 

as I administer the oath. 

Do you solemnly swear the testimony you are about to give before the Committee is the truth, the whole truth, and nothing but 

the truth, so help you, God? 

Mr. TAMARGO. I do. 

Senator DURBIN. Thank you. If you would be seated, and if you 

would like to introduce family and friends who are here today and 

make an opening statement, you are welcome to.

1012

STATEMENT OF MAURICIO J. TAMARGO, NOMINEE TO BE 

CHAIR OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION 

OF THE UNITED STATES 

Mr. TAMARGO. Thank you, Mr. Chairman. I will be happy to 

waive my opening statement. 

I would like to introduce, though, my wife, Tara, of 16 years, and 

my two children, Erin and Greg. They are the joy of my life and 

my solace in this crazy world and also my secret weapon. 

And, of course, you know Congresswoman Ros–Lehtinen, and I 

wanted to thank her and Senator Bob Graham and Senator Warner 

and Congresswoman Carrie Meek. Their introductions of me were 

really moving and I wanted to thank them for that. And in the 

room are many of my friends and colleagues and my coworkers. 

Thank you. 

Senator DURBIN. Thank you very much. 

Let me ask you, do you have an opening statement beyond that? 

Mr. TAMARGO. I will waive my opening statement. I will submit 

it for the record. 

Senator DURBIN. Thank you very much. 

Let me ask you about this Foreign Claims Settlement Commission, and I do not profess to be an expert on this Commission. I 

have read a little bit about it in preparation for your nomination 

hearing today. It is not currently administering active claims programs. You have been used to a very different schedule in Congresswoman Ros–Lehtinen’s office, I am sure. Tell me how you envision this Commission’s role under your leadership and how it 

might change. 

Mr. TAMARGO. I envision, of course, continuing the work that the 

Commission is doing at this time, which is providing information 

to interested parties of settled certified claims, and I plan to work 

with the Congress on pending legislation that might—that is pending that would create new claims programs, and, of course, continue cooperating with the State Department on a technical basis, 

helping them in any discussions they may be having with other 

countries over existing claims. 

Senator DURBIN. Under a 1998 amendment to the statute governing this Commission’s jurisdiction, the Commission was given 

responsibility for adjudicating any category of claims against a foreign government which is referred to the Commission by the Secretary of State. Are you aware of any plans by the State Department or Secretary of State to refer any categories of claims to the 

Commission? 

Mr. TAMARGO. No, I am not. 

Senator DURBIN. And no one in the administration has discussed 

this issue with you in the context of your nomination? 

Mr. TAMARGO. No. No, they have not. 

Senator DURBIN. Okay. Let me ask you specifically about the 

land of your birth, Cuba. As you know, there are many Cuban 

Americans who lost land or property when Mr. Castro seized power 

in 1959. Do you know of any efforts to refer claims to the Commission by Cuban Americans who were Cuban nationals at the time 

of the loss of their property? 

Mr. TAMARGO. I am sorry, repeat the question. 

1013

Senator DURBIN. Do you know of any efforts to refer claims to 

this Commission by Cuban Americans who were nationals and lost 

their property when Mr. Castro came to power? 

Mr. TAMARGO. No. 

Senator DURBIN. Do you believe that Title III of the Helms–Burton law would permit those who lost property in Cuba to file a Federal lawsuit against companies that traffic in such property? 

Mr. TAMARGO. Title III? 

Senator DURBIN. Of Helms–Burton. 

Mr. TAMARGO. I believe so. 

Senator DURBIN. You do? And do you know of any efforts within 

the administration to implement Title III? 

Mr. TAMARGO. I do not. 

Senator DURBIN. Okay. Perhaps I am going to send you some 

written questions. I do not want to put you on the spot, not having 

the law in front of you and not having some time to reflect on it 

and I want to make certain that you give us a complete answer 

based on all of that information. So I am not going to pursue this, 

but if you would not mind, I will send you a few questions that you 

might get back to me on. 

Mr. TAMARGO. Certainly, Mr. Chairman. 

Senator DURBIN. Thank you. 

Senator Sessions? 

Senator SESSIONS. Congratulations, Mr. Tamargo. I congratulate 

you on having the support of Senator Graham, Senator Warner, 

and Ms. Ros–Lehtinen. I think that speaks well for you. 

I note in your background you are a graduate of Cumberland 

School of Law—

Mr. TAMARGO. That is right, sir. 

Senator SESSIONS. —where I am proud to say my daughter is 

Student Bar President right now. It is an excellent law school and 

I am proud to see that you attended there. 

Do you have any thoughts as you go into this job about what you 

would like to accomplish and how you would like to conduct the 

job? 

Mr. TAMARGO. Yes, sir. I hope to be a strong advocate for Americans who have had their properties confiscated, provided that they 

show to the Commission, to the satisfaction of the Commission, 

their claim is just, and I hope to help them protect that right overseas. To me, property rights is an important right in this country 

and I think it is important for Americans to have the protection of 

their government if they own property overseas in other countries. 

Senator SESSIONS. Okay. 

Senator DURBIN. Thank you, and I will submit some written 

questions to you. 

[The biographical information of Mr. Tamargo follows:]

1014


82503.852
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82503.853
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82503.854
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82503.855
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82503.856
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82503.857
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82503.862
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82503.863
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82503.865
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82503.866
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82503.867
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82503.868
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82503.869
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82503.870
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82503.871
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82503.872
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Senator DURBIN. This will conclude this morning’s hearing. I 

want to thank Congresswoman Ros–Lehtinen for coming early and 

staying late. It is obvious that she is committed to you personally 

and to your nomination for this Commission. 

As with the judicial nominees, the record for Mr. Tamargo will 

be open for one week to allow Committee members to submit written statements and follow-up questions. I ask my colleagues to try 

to do so earlier rather than later because we want to move the 

nominations along. Thank you again. 

The hearing is adjourned. 

[Whereupon, at 11:45 a.m., the Committee was adjourned.] 

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

QUESTIONS AND ANSWERS

Responses of Mauricio J. Tamargo to questions submitted by Senator 

Leahy 

Question 1: What will you top priorities for the Foreign Claims Settlement Commission be if you are confirmed as Chair? 

Answer: If I am so honored as to be confirmed one of my priorities would be to 

raise the profile and public awareness of the services the Commission provides. I 

also would continue providing technical assistance to the Department of State and 

to the Congress as they deal with the issue of Americans who have suffered a loss 

at the hands of another country. I would also make sure that the records of past 

claims programs are readily accessible to the public as provided for in the law.

Question 2: Under a 1998 amendment to the statute governing the Foreign Claims 

Settlement Commission’s jurisdiction, the Commission was given the responsibility 

of adjudicating any ‘‘category of claims against a foreign government which is referred to the Commission by the Secretary of State.’’

A. Do you know of any plans for the Secretary of State to refer any new categories of claims to the Commission? 

Answer: As I stated in the Hearing, I do not know of any new categories of claims 

which the Department of State may be considering. I am familiar with the 1998 law 

providing for these Secretary of State referrals of new categories of claims. If I am 

so honored to be confirmed, I would be prepared to provide any technical assistance 

the Secretary may require in preparing such claims categories. I assure you than 

the Commission’s involvement in this matter would be limited to providing technical 

assistance to the Secretary of State and it would not involve any policy questions 

relating to the creation of such new categories.

B. What about claims against Cuba by United States nationals who were Cuban 

nationals at the time of the loss of their properties, or any other category of claims 

against Cuba? Do you know of any plans for those sorts of claims to be referred to 

the Commission? 

Answer: I am not aware of any discussions or plans to Secretary of State may or 

may not be having regarding new claims categories involving any country, including 

Cuba. If such a referral were to occur, the Commission’s role would simply be to 

review questions of law. If confirmed to be Chair of the Commissions, I will be guided, and limited by, the laws which created the Commission and under which the 

Commission operates.

Question 3: Is it your belief that there will be new claims against Cuba before 

the Commission over the next few years, or do you think that the Commission will 

have a new Cuban claims program before long? 

Answer: I am not ware of any plan or discussions about creating a new Cuba 

claims program. Here again, I would be guided by the law. The Commission plays 

no role in the shaping of policy issues involved in future claims programs other than 

providing technical assistance and information.

Question 4: The historic practice of the United States has been to have the Commission adjudicate only the claims of persons who were United States nationals at 

the time of their property loss or other injury. In the Commission’s Cuban Claims 

program, the Commission, by congressional edict, did not consider claims by persons 

who were Cuban nationals at the time of their loss. 

1034

Courts of the United States have repeatedly ruled that a country does not violate 

international law by taking the property of persons who are nationals of that country at the time, even when the taking is without compensation. 

Do you agree that if the Commission were to undertake a claims program for persons who were Cuban nationals at the time of their loss it would be contrary to Congressional intent and settled precedent? 

Answer: The Commission will administer claims programs as directed by the law. 

Where there is ambiguity in the law, the Commission would look to Congressional 

intent and follow such intent as controlling authority. A claims program which allows non-citizens at the time of their loss to file claims with the Commission would 

run contrary to Congressional intent.

Question 5: The Commission’s work can involve the interpretation and application 

of international law. To the extent that you lack experience and expertise in international law, what steps will you take to improve your base of knowledge in that 

area? 

Answer: While I was staff director of the Subcommittee on International Economic 

Policy and Trade, I acquired some knowledge of international law because we held 

several oversight hearings and briefings with then Assistant Secretary of State, now 

Under Secretary of State, Ambassador Al Larson, regarding the U.S.-E.U. negotiations over the proper policy world wide on property rights and confiscation. If confirmed by the Committee and the Senate I would, as with any legal question, address the application of international law, by reviewing the available case law and 

seek the opinion of the General Counsel of the Commission. I also plan to keep up 

with the relevant legal literature and attend legal conferences on the subject. 

There have been a variety of estimates of the numbers of claims that could that 

could be expected if the State Department does refer a new set of Cuban claims to 

the FCSC. The State Department estimates it could fall somewhere between 75,000 

and 200,000 claims, and during the debate on Helms-Burton, some said the number 

could be as high as 400,000. 

The rate of decision making on the initial claims by U.S. nationals against Cuba, 

between 1965 and 1972, was about 1,500 claims per year. That would mean the 10 

attorneys at the Commission who handled these claims decided about 150 claims 

a year. Taking the middle of the estimates I mentioned, we calculate that the Commission would need to employ over 325 attorneys to process claims at the same rate. 

A. Mr. Tamargo, do you have any estimate so to the number of claims that could 

be expected if the State Department refers claims of those who Cuban nationals at 

the time of the loss of their property? 

Answer: I have no estimates as to the number of claims the Commission could 

expect in such an eventuality. I would want to look at the laws and precedent applicable to this hypothetical to see if the Commission would be obliged to administer 

such a claims program. I do understand the Committee’s concern on this issue and 

if confirmed I pledge to proceed carefully and follow the law.

B. Do you have any thoughts about or plans to hire additional attorneys if Title 

III is implemented? Can you provide us with an estimate of the kinds and amounts 

of resources that would be needed to support such a claims program? 

Answer: If there is a new claims program created or Title III of Helms-Burton is 

implemented, I would work with the Congressional Committees of jurisdiction to 

help determine what resources the Commission might need. This process would include providing Congress technical information such as the number of claims likely 

to occur; past programs of comparable size and the amount of time and resources 

it took to administer them; and a proposal with description of how the increase in 

funds would be administered. Understanding the fiscal challenges which face the 

Congress, I would make myself available to the Committees in order to arrive at 

an appropriate funding level.

Question 7: I think we are all hopeful that relations with Cuba will be normalized 

one way or another in the not so distant future. If there were thousands, or even 

tens of thousands of claims pending at the time of normalization, what sort of obstacle to that process could those claims pose? 

Answer: I appreciate the Committee’s interest; however, this question addresses 

an issue that will have to be dealt with by the Congress and the policy entities of 

the Administration, not the Commission. The statutes that created the Commission 

state clearly that the Commission is to be an independent quasi-judicial agency 

which adjudicate claims of American citizens who have suffered a loss from the actions of another country.

f1035

Responses of Mauricio Tamargo to questions submitted by Senator Durbin 

Question 1: As you know, the State Department now has legal authority to refer 

new categories of foreign claims to the Foreign Settlement Claims Commission. At 

the same time, the Commission is part of the Justice Department, and it has an 

independent statutory responsibility to decide claims by applying ‘‘applicable principles of international law.’’

A) If confirmed as chairman of the Commission, would you make an independent 

assessment to determine whether a category of claims referred by the State Department was consistent with applicable principles of international law? 

Answer: If so honored as to be confirmed I will keep all my deliberations independent and free of any policy considerations. I would be guided by U.S. law and 

would apply applicable principles of international law. I would defend the independent status of the Commission within the Department of Justice as my predecessors have done before now. 

B) If you concluded that a category of claims referred by the State Department 

was not consistent with international law, how would you adjudicate those claims? 

Answer: If I examined a category of claims referred to the Commission by the Department of State and found them to be inconsistent with international law and not 

provided for or authorized by U.S. law, then I would adjudicate the claims as not 

valid. As you stated above, the Commission is a quasi-judicial independent agency 

administered by the Department of Justice. The Commission takes no positions on 

foreign policy questions and takes no direction on issues of law from foreign policy 

departments. The only guide that the Commission follows is the law. Any other considerations are not relevant.

Question 2: What is your view of the role of the Foreign Claims Settlement Commission vis-a ́-vis the State Department and other agencies that have responsibility 

for U.S. foreign policy? 

Answer: The role of the Commission vis-a ́-vis the foreign policy agencies is to provide those agencies, the Department of State mainly, with technical assistance in 

dealing with property rights and confiscated property issues, to assist them in negotiations with other countries on the same issues—such as the numbers of claims 

likely to arise, value of the property in questions, the history of the property. That 

is the role for the Commission, as provided by the laws that created the Commission.

Question 3: In your view, would it be consistent with ‘‘applicable principles of 

international law’’ for the Commission to award claims for seized property to those 

who were not U.S. citizens at the time that their property was seized? Please explain. 

Answer: I do not believe the claims would be valid under applicable principles of 

international law and Commission precedent if the claimants were not U.S. nationals at the time they suffered a loss by the foreign government. Where U.S. law is 

silent, the Commission is guided by applicable principles of international law.

Question 4: Let me ask you specifically about possible claims against Cuba. From 

1965 to 1972, the Commission decided over 8,800 claims by U.S. nationals against 

Cuba. During the debate over the Helms-Burton Act, lawmakers estimated that implementation of Title III of the Act would result in 3000,000 to 400,000 new claims 

against Cuba by Cuban-Americans. The State Department has estimated that such 

claims could total tens of billions of dollars. There might be even more claims if the 

State Department referred a new Cuban claims program to the Foreign Claims Settlement Commission that was subject to looser constraints than Title III. 

A) In your view, is the Commission equipped to handle a much greater volume 

of claims that a new Cuban claims program might bring? 

Answer: Having a staff of only 11, counting the Commissioners, the Commission 

would certainly need more attorneys and support staff. To administer any new 

claims program, the Commission would need to look at past claims programs of comparable size and study how many claims are likely to occur based on the size of the 

class of potential people and the amount of money involved in each claim, using an 

average. The Commission would also need to consult with the Congress and the Administration to determine the desirable turn-around time for each claim. After considering all those factors, the Commission, in conjunction with the Congress and the 

Administration, would propose a budget projection.

B) If new Cuban claims were referred to the Commission, what steps would you 

take as Chairman to secure the needed resources? 

1036

Answer: I would continue working with the Congress so that the Commission 

would be authorized, as in past claims programs, to deduct 1.5% from all funds received from a foreign government, to go to the US Treasury to defray the administrative expenses of conducting the claims program. Additionally, I would work with 

the Congress and the Administration to arrive at a budget request that is a realistic 

and practicable.

SUBMISSIONS FOR THE RECORD

f UNITED STATES SENATE

WASHINGTON, D.C. 20510–0905

November 13, 2001

The Hon. Patrick Leahy 

Chairman 

Senate Judiciary Committee 

224 Dirksen Senate Office Building 

Washington, D.C. 20510

Dear Chairman Leahy:

I am writing to express my support of the confirmation of Mauricio Tamargo as 

Chairman of the Foreign Claims Settlement Commission at the Department of Justice pending before the Senate Judiciary Committee. 

My staff has gotten to know Mauicio and has worked with him on various issues. 

We have witnessed his impartiality, integrity, and hard work and believe that he 

is a strong and effective leader. I am confident that Mauricio would succeed as 

Chairman of the Foreign Claims Settlement Commission and that he would be an 

effective advocate for Americans Seeking to recover confiscated property and losses. 

Currently, he is the Staff Director for the Subcommittee on International Operations and Human Rights and also serves as the Chief of Staff and Legal Counsel 

for Congresswoman Ileana Ros-Lehtinen. His many years of experience in international affairs and his commitment to justice and constituent service make him the 

ideal candidate for the post. 

Your Consideration of this request is greatly appreciated. 

Sincerely, 

f BILL NELSON

HOUSE OF REPRESENTATIVES

WASHINGTON, D.C. 20515

October 11, 2001

The Hon. Patrick Leahy 

Senate Judiciary Committee 

United States Senate 

433 Russell Senate Office Building 

Washington, D.C. 20510–4302

Dear Chairman Leahy:

The White House has recently announced the nomination of Judge Philip Martinez to the position of Federal Judge for the Western District of Texas. I am writing 

to pledge my full support for Judge Martinez and recommend and request that you 

approve his nomination and appoint him to the Federal Judiciary as quickly as possible. 

Judge Martinez is an outstanding officer of the court with more than ten years 

experience at the trial court level. Judge Martinez has presided over felony, juvenile 

and civil cases throughout his distinguished career. He has effectively managed a 

vigorous trial docket and has a reputation of diligence balanced with fairness and 

thoughtfulness. As a result of his various professional accolades, he was elected by 

his colleagues and served as the Local Administrative Judge for three years. 

Judge Martinez grew up in El Paso, Texas and would serve his community and 

the nation with distinction if allowed the opportunity. He is a graduate of the University of Texas at El Paso and Harvard Law School. His record is one of accomVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01048 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.003 SJUD4 PsN: CMORC
1037

plishment and thus merits your serious consideration. Furthermore, his professional 

credentials and complimented by the qualities reflected in his numerous charitable 

and community activities. 

As you know, the Western District of Texas faces a rigorous court docket each 

year. Caseloads for the U.S. Attorney’s Office in the Western District of Texas are 

rapidly increasing. The Federal courts in El Paso handled over 1,600 criminal cases 

in 1998 and over 1,900 in 2000. Undeniably, Judge Martinez would be able to step 

into this position and immediately focus his attention on advancing cases through 

the system. Supplemental training would be unnecessary due to Judge Martinez’s 

vast experience in the judicial community. In our country’s war on drugs, we can 

ill afford to lose ground by delaying judgement on those who are waging the war 

by violating our laws. 

Please do not hesitate to contact me, or Nicholas Almanza of my staff, if you are 

in need of additional information or if you have questions concerning Judge Martinez. I thank you for your consideration. 

Sincerely, 

SILVESTRE REYES

f Member of Congress

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

Alabama 

Mr. Chairman, it is with great pleasure that I speak today in support of Jenny 

Granade’s nomination to be United States District Court Judge for the Southern 

District of Alabama. Her excellent credentials speak for themselves. Throughout her 

academic and professional career, she has consistently proven herself to be a distinguished scholar and practitioner of law. 

After completing law school at the University of Texas, Mrs. Granade served as 

a law clerk to the Honorable John C. Godbold, Jr., United States Court of Appeals 

for the Fifth Circuit, where she gained valuable experience researching and writing 

legal opinions. At the conclusion of her judicial clerkship, she obtained a position 

with the United States Department of Justice. In her twenty-four years with the 

Department, she served as an Assistant U.S. Attorney, Chief of the Criminal Division of the U.S. Attorney’s Office, and most recently as U.S. Attorney for the Southern District of Alabama. During her tenure, she vigorously prosecuted complex cases 

involving white-collar crime, tax fraud and public corruption. 

I believe that Ms. Granade’s vast experience and legal knowledge make her an 

ideal nominee for the federal bench. I know that she will continue to serve our great 

country with honor and distinction as a federal judge. Mr. Chairman, I therefore 

urge the committee to discharge Mrs. Granade’s nomination without reservation, 

and I hope the full Senate will be able to consider her nomination before we adjourn 

this year. Thank you Mr. Chairman.

(1039)

NOMINATION OF DAVID L. BUNNING, OF KENTUCKY, TO BE DISTRICT JUDGE FOR THE 

EASTERN DISTRICT OF KENTUCKY 

MONDAY, DECEMBER 10, 2001

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

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

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Hatch, McConnell, Kyl, and Sessions. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I thank everybody for being here and I hope 

your travel arrangements were worked out. I scheduled this hearing on the Monday after discussions with Senator McConnell and 

Senator Bunning and Senator Hatch. I had been told the number 

of witnesses that the nominee wished to bring here and felt that 

it would be a lot easier to do it on a Monday rather than in the 

middle of the week. 

This, I believe, is the 17th nomination hearing we have had, the 

11th judicial nominations hearing, since the Senate reorganized in 

July. We have confirmed, I think, 21 judicial nominees since July, 

including three last week. There are several others on the calendar. 

I think some are up for a vote tomorrow. I fully expect they will 

make it through. 

As I have pointed out to some of my colleagues, we confirmed in 

those four or five months about twice as many Courts of Appeals 

judges as were confirmed in the first year of the Clinton administration, and more than all the judges in 1996. We are trying to 

move forward before the end of this year. 

A number of things have thrown us off schedule. One, we did not 

reorganize until mid–July, but also, we all know the terrible, terrible events of September 11 and how that disrupted everything in 

the Senate. Then we had the anthrax issue, something that I have 

probably given more than a little personal attention to, that closed 

down the Hart Building, and has still closed down the Hart Building. I think some of the Senators on this Committee, Senator 

Hatch, I know, is in the Hart Building. I do not know if Senator 

Kyl is. 

Of course, just as important as the 50 Senators who are in there, 

there is a great deal of the staff. It closed down the Dirksen BuildVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01051 Fmt 6601 Sfmt 6601 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1040

ing for a number of days, where a lot of the Judiciary Committee 

staff, both Republican and Democratic staff, are located and staff 

do all the work, we merely being constitutional necessities for the 

staff. That slowed things up. 

We did hold a number of judicial hearings even on the day that 

part of the Capitol was being evacuated. We still went ahead. We 

had a series of votes and the Committee crowded into one room 

where we passed out nominations. Even as the police were telling 

us they were evacuating part of the Capitol building, we stayed 

and voted out a number of President Bush’s judicial nominations 

and then held several hearings that same day. 

I have tried to keep this going, even though I was one of the two 

recipients of the anthrax letters, and the attempt made to kill me 

and others in the Senate. 

Today, we are going to consider the nomination of David 

Bunning to be United States District Court Judge for the Eastern 

District of Kentucky. The Eastern District of Kentucky is a district 

that has been fortunate to have the President send nominations for 

its vacancies. A lot of the District Courts, the President did not 

send up nominations, but this one, he has. 

Since the elections in 2000, three vacancies have arisen on the 

Eastern District bench. Three nominees have been sent to the Senate and I applaud the two Senators from Kentucky in pushing hard 

to do that, because almost 70 percent of the current District Court 

vacancies around the country, the President has not sent a nominee. On those 70 percent, there is no nominee. Here, there is 100 

percent. Two of them, we moved rather quickly. 

I think we scheduled a hearing for Karen Caldwell six days after 

her file was complete. I think we had, and Senator McConnell, correct me if I am wrong on this, we got a report out of the Committee 

16 days later. And then 25 days after her file was completed, she 

was confirmed by the Senate. 

Danny Reeves, another nominee for that same district, was able 

to have a hearing only 40 days after his file was complete. He was 

voted out of the Committee shortly after that. He was confirmed 

last Thursday, barely two months after the time all his paperwork 

was completed. 

So it is in sharp contrast to some of the days in the past, and 

we want to do even better. 

I want to also thank Senator Hatch and the White House for 

agreeing to break the biggest logjam we faced up here and that was 

a reluctance on the part of the White House to have nominees answer one of the questions, a question which I thought was very appropriate, the question being, have you been convicted of anything 

within the last ten years that is a matter of public record? For 

some reason, the White House has been reluctant to have judges 

answer that. It slowed everything up. As soon as that logjam was 

broken with the help of Senator Hatch, we were able to get, I think 

within about 24 hours of that, we voted a number of judges out of 

Committee. 

I mention that only because I know that if somebody would apply 

for a clerical job in a Federal Court, they would have to at least 

assure the judge or the chief clerk or somebody that they had not 

been convicted of anything within the last ten years, and we 

1041

thought that might not be a bad idea, not only for judges, but Marshals, U.S. Attorneys, and high-ranking officials of the Justice Department. 

With Mr. Bunning’s matter, he comes here highly recommended 

by his home State Senators, and I want to mention that that is a 

matter and has always been a matter that people on both sides of 

the aisle on this Committee have looked to. The recommendation 

of one of them is fully expected and both of them is extremely good. 

He is also highly recommended by people he has worked with in 

the U.S. Attorney’s Office. 

But the American Bar Association Standing Committee on Federal Judiciary has informed us that a majority of their Committee 

finds Mr. Bunning not qualified for the Federal bench, and such an 

assessment has traditionally and sensibly meant that the nomination gets a closer look than those the ABA ranks as ‘‘qualified’’ or 

‘‘well qualified.’’ I should also emphasize that it has been my experience in 25 years here that the ABA recommendation is an advisory one, but each Senator has to make up his or her mind, and 

neither the ABA nor the Senate Judiciary Committee expect their 

recommendations to be dispositive of the issue. 

I agree with my colleagues across the aisle. Senator Sessions 

supported the thoroughness and accuracy of the ABA investigatory 

process in his remarks on the Senate floor on October 16. As Senator Sessions said, the ABA talks to people who have litigated in 

ten situations with the nominee, then they make their recommendations. He said he thinks it is a pretty good process. 

The ABA Standing Committee does an excellent job of conducting 

its independent professional and confidential peer review of the 

qualifications of judicial nominees, so we do give deference to the 

results of this tried and true and tested method of investigation, 

both when the results are favorable or unfavorable. 

For 50 years, beginning with the Eisenhower administration and 

ending on the last day of the Clinton administration, the ABA provided this invaluable public service on which Presidents and Senators relied. Before a nomination, during the time the FBI and the 

Department of Justice were evaluating the candidates, the ABA 

would receive their names. They would return to the administration a rating reflecting their review of the potential nominee’s qualification. This was done before any names came up here in the 

past, and I think the process worked smoothly and productively 

until the beginning of this year. 

President Bush decided he would no longer provide the ABA with 

the candidates’ names prior to nomination. I would emphasize the 

President has an absolute right to do that, although it did break 

with the 50-year tradition of having the President have a chance 

to look at those recommendations prior to making a nomination. 

So now the ABA has to wait until the nomination is made, the 

name is out there, it is sent up here, and then they have to go out 

to do their evaluation. The nomination is already a fait accompli, 

but they go forward. 

It has two effects. One, it extends the time the nominee must 

wait before you can have a hearing by six or eight weeks, and I 

did not count the time, really, until the ABA report is completed. 

1042

But it also eliminates a crucial early warning system for the White 

House and for us. 

I wish the President had not shifted that role, but I am glad that 

the ABA will still provide their evaluations to our Committee. I 

also want to compliment the ABA, which has a number of extremely qualified lawyers in both parties who donate their time to 

this effort, actually, time that would cost us millions of dollars if 

we were to have to pay for it, but they do it as a pro bono matter. 

So this morning, after we hear from Mr. Bunning’s home State 

Senators, then from the nominee himself, we are going to hear 

from a panel of witnesses from the ABA Standing Committee. Roscoe Trimmier, a partner in the Boston law firm of Ropes and Gray 

and the chair of the Committee, will testify about the process. 

David Weiner, a partner in the Cleveland firm of Hahn, Loeser and 

Parks, the Committee’s Sixth Circuit representative, will tell us in 

more detail about the peer review he conducted on Mr. Bunning. 

Also available to answer questions, Judah Best. Mr. Best is a partner in the Washington office of Debevoise and Plimpton and is a 

former chair of the ABA Committee and well respected by members 

of this Committee. 

Then we will hear four more witnesses requested, appropriately, 

by the Republican side of the aisle, who will talk about their professional opinions of Mr. Bunning, and I must say, speaking for 

both sides of the aisle, we are honored to have on that panel this 

morning three United States District Court judges and a former 

United States Attorney. All are from the Eastern District of Kentucky. Judge Henry Wilhoit, on senior status, has served on the 

Federal bench since he was appointed by President Reagan in 

1981. Judge Karl Forester, the current Chief Judge, has been on 

the bench since he was appointed by the first President Bush in 

1988. Judge Joseph Hood has served since his appointment by the 

first President Bush in 1990. So we look forward to their testimony. 

With that just to lay it out, because this is a somewhat different 

than normal hearing, I yield to my good friend, the senior Senator 

from Utah, a man who has had as much or more experience as anybody else on this Committee. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Thank you, Mr. Chairman, and I am very grateful that you have been able to schedule this hearing for Mr. 

Bunning, for whom I have a great deal of respect and who I wholeheartedly recommended to the White House for this job, knowing 

of his background both civilly and criminally in litigation for our 

government and the experience that he has. 

I think the administration has done an excellent job on judges 

so far. Currently, we have 100 vacancies. There are 43 who are 

awaiting hearings, including Mr. Bunning here today. We have had 

21 who have been confirmed and we have six pending on the floor. 

This will add a seventh. So we are moving, but not as fast as we 

really need to move as a Judiciary Committee. 

I might add that on the questionnaire, it was not a problem for 

the administration to list the prior convictions that are on the pubVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01054 Fmt 6601 Sfmt 6601 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1043

lic record. That was never the problem. It was that there were 

other matters which we had to resolve, which we did, and I am 

pleased that we were able to get that resolved. 

We are also pleased to have all of the witnesses here today who 

will help us to understand. 

I am very pleased that you have convened this hearing this 

morning to consider the nomination of David Bunning to be a 

United States District Judge in the Eastern District of Kentucky. 

My examination of Mr. Bunning’s qualifications convinced me to 

recommend him in the first place to the White House, but also that 

during the course of his career, he has demonstrated abundant capacity, integrity, and temperament to serve as a Federal District 

judge. 

Although I am very pleased that we are having this hearing, I 

must say that I am not so convinced that it is really necessary. The 

Committee has reviewed a great deal of information about Mr. 

Bunning, from the FBI files to his writings to letters from interested parties. We know his employment history, his work ethic, 

and even what lawyers who have opposed him in court think about 

him. Indeed, the Committee has as much information about Mr. 

Bunning as we have ever had about any judicial nominee, it seems 

to me. 

So the purpose of this hearing is not to find out more about Mr. 

Bunning, but rather to find out why, in its single-sentence conclusion, the ABA, which is only one of the outside groups who have 

weighed in on this nomination, said he is not qualified. Members 

of this Committee do not know why the ABA chooses to label judicial nominees as qualified or not, and, of course, the ABA does not 

share any information with the Committee other than its one-sentence conclusion. Even in cases where the decision is controversial, 

the ABA will not disclose its reasons or rationale. 

I have to be frank here and say that this is one of the main reasons that I find the ABA’s reviews less and less essential to the 

Committee’s confirmation process than some of my colleagues do. 

I simply find it less than persuasive when I read, as in Mr. 

Bunning’s case, a bare conclusion with no facts, analysis, or anything else to back it up, so today will be an opportunity for the 

ABA to do so. 

Now, I appreciate completely the ABA’s explanation of the need 

to foster a full deliberation among its reviewers, as I also understand the need to keep confidential the FBI files that the Committee has provided for each nominee. If the Committee has asked 

the executive branch for FBI files, which we receive, and if the FBI 

can trust us here with the most sensitive information, then why 

cannot the ABA? Is the ABA information more sensitive than the 

critically sensitive FBI files? 

If the ABA evaluations are to be most helpful to the Committee, 

then I believe that the Committee can and should receive the benefit of the ABA files, including the interviews, discussions, and reasoning, instead of a one-line cursory conclusion that, in many cases, 

feeds the growing public perception that the ABA’s evaluations are 

arbitrary, capricious, and may be tainted by politics. 

These questions, of course, have nothing to do with Mr. Bunning 

or his qualifications to serve as a Federal District judge. As I said, 

1044

I have learned a great deal about Mr. Bunning from the information provided by him and other sources to the Committee. Mr. 

Bunning is a Kentucky native. He attended college at the University of Kentucky, graduating with a Bachelor of Business Administration degree with departmental honors. He then went on to graduate from the University of Kentucky College of Law. 

During law school, Mr. Bunning worked as a law clerk at the 

United States Attorney’s Office for the Eastern District of Kentucky. He must have done a good job, because the office invited him 

to join as an Assistant U.S. Attorney, one of the most honorable 

and important jobs in the Federal law enforcement community, 

upon his graduation. 

Mr. Bunning has enjoyed a well-balanced career in which he has 

gained valuable substantive experience in both civil and criminal 

Federal practice. He began his career in the U.S. Attorney’s Office 

as an Assistant United States Attorney in the Civil Division, and 

during this time, he worked out of the main office in Lexington. 

For the first four years of his career, between 80 and 90 percent 

of his caseload consisted of a civil docket. One benefit of working 

in a smaller U.S. Attorney’s Office is that a lawyer must become 

skillful in handling a wide variety of cases, a sort of jack of all 

trades. As a result, Mr. Bunning’s civil experience has consisted of 

a broad range of cases, including prisoner litigation, medical malpractice cases, Federal Tort Claims Act cases, Bivens action cases, 

affirmative civil enforcement cases, and DEA drug diversion cases. 

Often, the goal in civil litigation is to avoid the time, cost, and 

uncertainty of a trial. Mr. Bunning repeatedly achieved this goal 

on behalf of his civil clients. In one prison litigation case, Mr. 

Bunning represented 22 prison officials in a Bivens action, alleging 

that they had violated the plaintiff’s constitutional rights. He successfully obtained summary judgment for all but one of these defendants. In another case, the District Court granted Mr. 

Bunning’s motion to dismiss, which he drafted while he was still 

in law school, in a Federal Tort Claims Act case brought against 

the United States. 

In 1995, having established his reputation as a skillful lawyer in 

the Lexington office, Mr. Bunning was transferred to the Covington 

satellite office, where he handled his own caseload with minimal 

need for supervision. The nature of his practice changed from primarily civil to largely criminal, and since 1998, his caseload has 

consisted exclusively of criminal cases. He has developed expertise 

in handling a wide variety of prosecutions, including narcotics 

cases, health care, Internet, and other white-collar fraud cases, violent crime, and forfeiture cases. 

In one case, Mr. Bunning successfully prosecuted a defendant for 

Internet fraud and harassment. Before the defendant was sentenced, he and his brother embarked on a murder-for-hire scheme 

targeting not only the victim of the fraud and harassment, but Mr. 

Bunning, as well. Luckily, their scheme was thwarted and they 

were duly convicted and sentenced. As a result of his work in this 

case, Mr. Bunning was awarded the Department of Justice Annual 

Victim’s Rights Recognition Award, as well as a commendation by 

the United States Secret Service. Mr. Bunning was also awarded 

a commendation in a separate case by the United States Customs 

1045

Service for his prosecution of the illegal importation of the party 

drug Ecstasy. 

Mr. Bunning has accumulated a wealth of trial experience. Since 

joining the U.S. Attorney’s Office, he has handled 20 civil and 

criminal trials as sole or lead counsel. He has also amassed significant appellate experience, having authored more than 50 appellate 

briefs and argued between ten and 15 cases before the Sixth Circuit Court of Appeals. 

The high esteem in which the Kentucky legal community holds 

David Bunning is reflected in the numerous letters in support of 

his nomination that we have received. We have received letters 

from coworkers, from opposing counsel, and even a letter from a 

victim in a case he prosecuted. Although I regret that time limitations preclude me from reading excerpts from each letter, I would 

like to mention just briefly one of these letters. It is from Paul Vesper, an attorney in Covington, Kentucky. 

He writes, ‘‘As a self-described liberal Democrat, I knew I would 

have to man the parapets to oppose any nomination by the recently 

inaugurated Republican occupant of the White House. And then to 

my delight, my colleague, David L. Bunning, was chosen to fill this 

post. I have known David in excess of 12 years, both as a competent practicing attorney, advocate for his clients, and lecturer on 

Federal issues and practices. You will certainly receive many comments attesting to his intellect, skills, and effectiveness, which are 

now his resume. But to me, for a Federal judge, the most important 

qualities are his integrity, genuine fairness, and no hint of aloofness. The litigants and lawyers before a Judge Bunning will be 

treated respectfully and receive prompt attention to their pleas. It 

is always hard for me to find nice things to say about Republicans, 

but I hereby volunteer for the task to praise David L. Bunning. I 

commend the President for his choice and I wish David long tenure 

as a confirmed appointee to the bench.’’

Mr. Chairman, I ask permission to enter into the record the full 

letter from Mr. Vesper, as well as the other letters we have received in support of Mr. Bunning’s nomination. 

Chairman LEAHY. Without objection, any letters or statements 

that any Senator wishes to include in the record in this matter will 

be done. 

Senator HATCH. Thanks, Mr. Chairman. 

I understand that in addition to the ABA witnesses, we will hear 

from four witnesses, who, like Mr. Vesper, have first-hand familiarity with Mr. Bunning’s litigation experience, his courtroom demeanor, and his legal judgment. These witnesses include the 

former U.S. Attorney during the Clinton administration who was 

Mr. Bunning’s supervisor for eight of his ten years as a Federal 

prosecutor and three Federal District Court judges before whom 

Mr. Bunning has practiced. 

Not surprisingly, the judges are particularly interested in filling 

the vacancies in the Eastern District of Kentucky with solid, qualified persons. I know that is the case and I believe that David 

Bunning fits this description, which is why I proudly join with my 

colleague, Senator McConnell, in recommending to the President 

his nomination for the Federal bench in Kentucky. 

1046

So I look forward to hearing from the witnesses. Mr. Chairman, 

again, I want to thank you for this hearing and want to thank you 

for the work that you are doing. I have been very appreciative of 

the work lately in this Committee and very appreciative of you personally. Thank you. 

[The prepared statement of Senator Hatch follows.]

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

I am very pleased that you have convened this hearing to consider the nomination 

of David Bunning to be a United States District Judge in the Eastern District of 

Kentucky. My examination of Mr. Bunning’s qualifications has convinced me that, 

during the course of his career, he has demonstrated abundant capacity, integrity, 

and temperament to serve as a federal district judge. 

Although I am very pleased that we are having this hearing, I must say that I 

am unconvinced it is really necessary. The committee has reviewed a great deal of 

information about Mr. Bunning, from FBI files to his writings to letters from interested parties. We know his employment history, his work ethic, and even what lawyers who have opposed him in court think about him. Indeed, the Committee has 

as much information about Mr. Bunning as we ever have about any judicial nominee. So the purpose of this hearing is not to find out more about Mr. Bunning, but 

rather to find out why, in its single-sentence conclusion, the ABA, which is only one 

of the outside groups who have weighted in on his nomination, said he is not qualified. 

Members of this committee do not know why the ABA chooses to label judicial 

nominees as qualified or not. The ABA does not share any information with the 

Committee other than its one-sentence conclusion. Even in cases where the decision 

is controversial, the ABA will not disclose its reasons or rationale. I have to be frank 

here and say that this is one of the main reasons that I find the ABA’s reviews less 

to be frank here and say that this is one of the main reasons that I find the ABA’s reviews less and less essential to the Committee’s confirmation process than some 

of my colleagues. I simply find it less than persuasive when I read—as in Mr. 

Bunning’s case—a bare conclusion with no facts or analysis or anything to back it 

up. 

Now I appreciate completely the ABA’s explanation of the need to foster a full deliberation among its reviewers, as I also understand the need to keep confidential 

the FBI files that the Committee is provided for each nominee. If the Committee 

has asked the Executive Branch for FBI files, which we receive, and if the FBI can 

trust us here with the most sensitive information, then why can’t the ABA? Is the 

ABA information more sensitive than the critically sensitive FBI Files? If the ABA 

evaluations are to be most helpful to the Committee, then I believe that the Committee can and should receive the benefit of the ABA files, including the interviews, 

discussions, and reasoning, instead of a one-line, cursory conclusion that, in many 

cases, feeds the growing public perception that the ABA’s evaluations are arbitrary 

and capricious or tainted by politics. 

These questions, of course, have nothing to do with Mr. Bunning or his qualification to serve as a federal district judge. As I said, I have learned a great deal about 

Mr. Bunning from the information provided by him and other sources to the Committee. Mr. Bunning is a Kentucky native. He attended college at the University 

of Kentucky, graduation with a Bachelor of Business Administration degree with department honors. He then went on to graduate from the University of Kentucky College of Law. 

During law school, Mr. Bunning worked as a law clerk at the United States Attorney’s Office for the Eastern District of Kentucky. He must have done a good job, 

because the office invited him to join as an Assistant U.S. Attorney, one of the most 

honorable and important jobs in the federal law enforcement community, upon his 

graduation. 

Mr. Bunning has enjoyed a well-balanced career in which he has gained valuable 

substantive experience in both civil and criminal federal practice. He began his tenure at the U.S. Attorney’s Office as an AUSA in the Civil Division. During this time, 

he worked out of the main office in Lexington. For the first four years of his career, 

between 80 and 90% of his caseload consisted of a civil docket. One benefit of working in a smaller U.S. Attorney’s Office is that a lawyer must become skillful in handling a wide variety of cases, a sort of jack of all trades. As a result, Mr. Bunning’s 

civil experience has consisted of a broad range of cases, including prisoner litigation, 

Medical malpractice cases, Federal Tort Claims Act cases, Bivens actions, affirmative civil enforcement cases, and DEA drug diversion cases. 

1047

Often the goal in civil litigation is to avoid the time, cost, and uncertainty of a 

trial. Mr. Bunning repeatedly achieved this goal on behalf of his civil clients. In one 

prison litigation case, Mr. Bunning represented 22 prison officials in a Bivens action 

alleging that they had violated the plaintiff’s constitutional rights. He success fully 

obtained summary judgment for all but one of these defendants. In another case, 

the district court granted Mr. Bunning’s motion to dismiss—which he drafted while 

he was still in law school—in a Federal Tort Claims Act case brought against the 

United States. 

In 1995, having established his reputation as a skillful lawyer in the Lexington 

office, Mr. Bunning was transferred to the Covington satellite office, where he handled his own caseload with minimal need for supervision. The nature of this practice 

changed from primarily civil to largely criminal, and since 1998 his case load has 

consisted exclusively of criminal cases. He has developed expertise in handling a 

wide variety of prosecutions, including narcotics cases, health care, Internet, and 

other white-collar fraud cases, violent crime, and forfeiture cases. In one case, Mr. 

Bunning successfully prosecuted a defendant for Internet fraud and harassment. Before the defendant was sentenced, he and his brother embarked on a murder for 

hire scheme targeting not only the victim of the fraud and harassment. Before the 

defendant was sentenced, he and his brother embarked on a murder for his scheme 

targeting not only the victim of the fraud and harassment, but Mr. Bunning as well. 

Luckily, their scheme was thwarted, and they were duly convicted and sentenced. 

As a result of his work in this case, Mr. Bunning was awarded the Department of 

Justice Annual Victim’s Rights Recognition Award, as well as a commendation by 

the United States Secret Service. Mr. Bunning was also awarded a commendation 

in a separate case by the United States Customs Service for his prosecution of the 

illegal importation of the party drug Ecstacy. 

Mr. Bunning has accumulated a wealth of trial experience: Since joining the U.S. 

Attorney’s Office, he has handled 20 civil and criminal trials as sole or lead counsel. 

He has also amassed significant appellate experience, having authorized more than 

50 appellate briefs, and argued between 10 and 15 cases before the Sixth Circuit 

Court of Appeals. 

The high esteem in which the Kentucky legal community holds David Bunning 

is reflected in the numerous letters in support of his nomination that we have received. We have received letters from co-workers, from opposing counsel, and even 

a letter from a victim in a case he prosecuted. Although I regret that time limitations preclude me from reading excerpts from each letter, I would like to mention 

just briefly one of these letters. It is from Paul Vesper, an attorney in Covington, 

Kentucky. Her writes,

‘‘As a self-described ‘liberal Democrat’ I knew I would have to man the 

parapets to oppose any nomination by the recently inaugurated Republican 

occupant of the White House. And then to my delight, my colleague, David 

L. Bunning, was chosen to fill this post. I have known David in excess of 

12 years, both as a competent practicing attorney, advocate for this clients, 

and lecturer on federal issues and practices. You will certainly receive 

many comments attesting to his intellect, skills, and effectiveness which are 

now his resume. but to me, for a federal judge, the most important qualities 

are his integrity, genuine fairness—and no hint of aloofness. The litigants 

and lawyers before a Judge Bunning will be treated respectfully and receive 

prompt attention to their pleas. . . .It is always hard for me to find nice 

things to say about Republicans, but I here by volunteer for the task to 

praise David L. Bunning. I commend the President for his choice and I wish 

David long tenure as a confirmed appointee to the bench.’’

Mr. Chairman, I ask permission to enter into the record the full letter from Mr. 

Vesper, as well as the other letters we have received in support of Mr. Bunning’s 

nomination. 

I understand that in addition to the ABA witnesses, we will hear from four witnesses who, like Mr. Vesper, have first-hand familiarity with Mr. Bunning’s litigation experience, his courtroom demeanor, and his legal judgment. These witnesses 

include the former U.S. Attorney during the Clinton Administration, who was Mr. 

Bunning’s supervisor for eight of his ten years as a federal prosecutor, and three 

federal district court judges before whom Mr. Bunning has practiced. Not surprisingly, the judges are particularly interested in filling the vacancies in the Eastern 

District of Kentucky with solid, qualified persons. I believe that David Bunning fits 

this description, which is why I proudly joined my colleague Senator McConnell in 

recommending to the President his nomination to the federal bench in Kentucky.

Chairman LEAHY. Thank you, Senator Hatch. 

1048

I understand from Senator McConnell that Senator Bunning will 

appear here just as a member of the family, but Senator McConnell 

wishes to make the introduction, so I will yield to Senator McConnell for that. Following the introduction by Senator McConnell, we 

will then hear from the nominee. 

Senator McConnell? 

PRESENTATION OF DAVID L. BUNNING, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

BY HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE 

STATE OF KENTUCKY 

Senator MCCONNELL. Thank you, Mr. Chairman. Let me say 

first, Mr. Chairman, on behalf of my junior colleague and myself, 

we both are extremely grateful for the extraordinarily fair way you 

have handled this nomination. It is a credit to the Committee and 

we thank you very, very much for that. 

Chairman LEAHY. Thank you. 

Senator MCCONNELL. Mr. Chairman, I am an enthusiastic supporter of David Bunning’s nomination to be a District Judge for the 

Eastern District of Kentucky. We are now down to only one vacancy—I see smiles on the faces of some of our judges on the front 

row—and we are going to complete the job here in the near future. 

For over a decade, David Bunning has been in the legal trenches 

representing the United States as an Assistant U.S. Attorney in 

the very district in which he has been nominated to be a judge. In 

this capacity, David has served in both the Civil and Criminal Divisions of the U.S. Attorney’s Office. He has handled hundreds of 

civil and criminal matters in Federal District Court. In addition, he 

has extensive experience at the appellate level. He has written approximately 50 appellate briefs and has presented numerous oral 

arguments. Clearly, this appellate experience is impressive for anyone, including your typical Assistant U.S. Attorney. 

Because of David’s acumen as a litigator, Mr. Chairman, he has 

real world legal experience far beyond the nominal experience that 

one would get by simply looking at his date of bar admission. In 

this regard, the comments of the Lexington Herald–Leader, the 

paper which covers the Eastern District and is familiar with both 

the Court and Mr. Bunning are instructive. It stated that, ‘‘Everything we know about Bunning suggests that his years of experience 

as a Federal prosecutor make him far more qualified for this job 

than someone who has spent 12 or 20 years shuffling papers instead of arguing cases in court.’’

Moreover, it must be emphasized that David’s experience is in 

precisely, precisely the type of matters that constitute the majority 

of cases that Federal judges in the Eastern District must hear. 

Thus, with the hundreds of civil and criminal cases he has handled, David Bunning has the most relevant—the most relevant—

experience that a judicial nominee for the Eastern District could 

possibly possess. 

David also has a command of trial procedure and the rules of evidence. He has, in the heat of battle, decided which objections to 

make and how to make them. Mastery of the rules of evidence is 

critical for a trial judge, and David Bunning’s skills in this regard 

are superlative. 

1049

But David Bunning is not just a skilled and experienced practitioner. He possesses the other personal qualities that are essential 

for the effective administration of justice. Among these are honesty, 

integrity, candor, diligence, courage, and last but not least, mercy. 

It is no wonder, then, that David’s nomination has received wide 

acclaim. In reading the written testimony and the numerous letters 

of recommendation, which Senator Hatch has already put in the 

record and so I will not do that again, I was struck by the support 

for David’s nomination from every quarter, Republicans, Democrats, judges, practitioners, supervisors, colleagues, opponents, and 

clients. 

In this regard, we are fortunate to have with us four distinguished members of Kentucky’s legal community, three Federal 

judges who hold the very job for which Mr. Bunning has been nominated, and Mr. Bunning’s supervisor for eight years, the former 

Clinton-appointed U.S. Attorney. The insights of these gentlemen 

are extremely valuable and their support for Mr. Bunning’s nomination is highly significant. 

Finally, although David loves the law and indeed has a reverence 

for it, he is a well-rounded person who understands the problems 

and challenges facing the Eastern District. He is devoted to his 

faith and his wife, Kay, and from what I hear, he is also a pretty 

good son. He will do Kentucky and the nation proud. If I did not 

have the utmost confidence in him, Mr. Chairman, I would not 

have recommended him for this nomination. 

Again, I thank you, Mr. Chairman, for holding this hearing. I am 

hopeful that the Committee and the Senate will act expeditiously 

to confirm him so he can return to our Commonwealth, roll up his 

sleeves, and begin working hard to serve the people of the Eastern 

District. 

Chairman LEAHY. Thank you very much. 

Mr. Bunning, would you step forward, please. Would you raise 

your right hand. 

Do you 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? 

Mr. BUNNING. I do. 

Chairman LEAHY. Thank you. Please be seated. 

Mr. Bunning, before you start, because it is a record that one always wants to have, would you be kind enough to introduce members of your family who are here. 

STATEMENT OF DAVID L. BUNNING, NOMINEE TO BE U.S. DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF KENTUCKY 

Mr. BUNNING. Thank you, Mr. Chairman, if I could stand. 

Chairman LEAHY. Sure. Of course. 

Mr. BUNNING. First of all, I would like to thank you for convening this important hearing today. My parents, Mary and Jim 

Bunning; my wife, Kay, my brother-in-law, Terry Toles; my three 

children are at home with my mother-in-law, Mr. Chairman; and 

I am fortunate to have two of my cousins who live here in the District—three of my cousins that live in the District, Robert, Joan, 

and Susan Bunning. 

1050

Chairman LEAHY. And what are the names of your children? 

Mr. BUNNING. Laura is five, Lou is four, and Emily is 18 months. 

Chairman LEAHY. Please be seated. They will get a chance to 

read that. I want to make sure their names are in there. As impressed as they might be by your hearing, they are probably 

happier being home with their grandmother. 

Mr. BUNNING. Probably so, Mr. Chairman. 

Chairman LEAHY. Go ahead, Mr. Bunning. 

Mr. BUNNING. I would defer and not make an opening statement. 

[The biographical information of Mr. Bunning follows.]

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Chairman LEAHY. Thank you. Mr. Bunning, you have heard the 

opening statements of Senator Hatch and Senator McConnell and 

mine. I should note that Senator McConnell and Senator Bunning 

have spent a lot of time talking to me about your nomination. They 

have been very strongly supportive of you, as has Senator Hatch. 

But as you know, later on today, the ABA will testify and state 

its concerns regarding your qualifications for the Federal bench. 

They will say you do not have sufficient experience. Of course, after 

they testify, I am going to keep this record open. Obviously, anything that is said here, you can add to your own testimony. You 

are going to be allowed to the testimony given by anybody else, as 

they would of yours. But anticipating the ABA testimony, is there 

anything you would like to say about it? 

Mr. BUNNING. Thank you, Mr. Chairman. I appreciate the opportunity to respond to the concerns of the ABA, which I know are 

also of concern to this Committee. I would also like to thank the 

ABA for sharing their concerns with Senator McConnell’s staff 

prior to today so that I might have an adequate time to respond. 

As it has been explained to me, there are four areas of concern 

that the ABA is raising. First, my years of experience, or what is 

commonly referred to as the 12-year-rule that they have. Secondly, 

my level of civil experience. Thirdly, the fact that I have spent my 

entire legal career as an Assistant U.S. Attorney in the U.S. Attorney’s Office. And fourthly, the fact that I have spent the bulk of 

that time in a satellite office within the U.S. Attorney’s Office. 

Briefly, if I may, I believe that the nature and depth of a nominee’s experience are more relevant than the amount of time I have 

been a lawyer. I have had the high honor and privilege of representing the United States in both civil and criminal litigation for 

the past ten years. I took an oath in 1991 to uphold the Constitution and I have worked diligently and tirelessly over the past ten 

years to do that. 

As Senators McConnell and Hatch have stated, I have handled 

many, many cases. I have handled approximately 130 civil cases, 

approximately 400 criminal cases, all in the very court that I have 

been nominated to sit as a judge. I have handled many oral arguments with the Sixth Circuit Court of Appeals and I have had the 

opportunity to spend many years in the well of the very court that 

I have been nominated to sit. 

I believe that I have had—it has given me the opportunity, working for the U.S. Attorney’s Office, to have a lot of experience in 

dealing with Federal rules of evidence, sentencing guidelines, and 

their application and interpretation in the very same way that a 

U.S. District Judge would. 

Although I have had only one client, that is the United States, 

that client has taught me to respect the rule of law, and I believe 

I have done that over the past ten years. 

With respect, briefly, to the issue of my civil litigation experience, I have set forth some of the significant cases in my questionnaire. I have handled for approximately four years a wide variety 

of civil litigation that Senator Hatch has already stated, and I believe that although it goes back a few years, I am very proud of 

my record in handling Federal constitutional law issues, Bivens

1082

1983-type actions, in the very same way that U.S. District Judges 

in our District handle on a routine basis. 

I believe my time in the U.S. Attorney’s Office has enabled me 

to handle cases from investigation through indictment, through 

trial, writing the brief on appeal, and then handling the oral argument. The nuts and bolts practical experience I had will serve me 

well if I am fortunate enough to be confirmed by the Senate. 

I believe that one of the important qualities of a District Judge 

is to be able to create a record, a factual record which will withstand appellate scrutiny. Myself as a litigator for the past ten 

years, I have tried very hard to make sure that record is sufficient, 

and I believe I have a lot of experience in making sure that the 

record would be upheld on appeal, because no one wants to try a 

case twice. 

Finally, the issue about the satellite office that Mr. Weiner has 

raised. I believe that that has taught me to have a lot of autonomy 

and I believe that the level of supervision that I have had in the 

satellite office has been very intense. My direct supervisor for the 

last six years did have a very hands-off approach and that taught 

me a lot. I was able to grow as a lawyer. 

And I believe that being in the satellite office, I analogize it to 

handling many, many different types of cases, and if I would use 

a doctor analogy, handling broken arms through brain surgeries. 

We have to handle, and I know you are aware of this, being a prosecutor prior to you becoming a Senator, you handle all types of 

cases, large and small, routine to complex, and I believe my experience from the last ten years has enabled me to be before you today. 

Thank you. 

Chairman LEAHY. You just mentioned, in my case, like many 

others in the Senate, I was formerly a prosecutor, as you are. As 

a prosecutor, of course, you have the people as your client. I happen to feel that being a prosecutor is one of the finest areas of public service, because you do represent the people. That means you 

have got to be an advocate for your client. You have got to make 

sure, as you just said, that you do not make mistakes so that it 

does not get overturned on appeal. Every prosecutor knows that if 

five years later you have got to retry a case, you will have to start 

looking for a plea bargain because usually you have got witnesses 

missing, evidence missing, all the other problems that go with 

doing it. 

But if you go from being an advocate for the government, and 

when your client is in this case the people of the Commonwealth 

or the people of the United States, how do you go from that to 

being a neutral decision maker? For example, Federal Courts, a lot 

of criminal cases, as you know, and the judge has to be there not 

as an advocate of either the defendant or the government. With the 

number of years as a prosecutor, are you able to make that transition? 

Mr. BUNNING. Mr. Chairman, I believe that the rule of law is 

something that I have strived to achieve over the last ten years. 

I believe that working for the Department called Justice has taught 

me—has given me unique opportunities to make sure that justice 

is achieved in every case. 

1083

We have the unique opportunity in the U.S. Attorney’s Office to 

make sure that justice is achieved, whether that means not presenting an indictment to a grand jury, whether it means telling an 

agent who is in my office that I do not believe there is probable 

cause to obtain a Federal search warrant. 

I have had the opportunity to use prosecutorial discretion and objectivity for the U.S. Attorney’s Office, and if I am fortunate 

enough to be confirmed by the Senate, I will have just one client, 

and that is making sure that the rule of law is followed. I have 

spent ten years advocating that it be followed and I believe I have 

a unique perspective in handling issues which would come before 

me and making sure that justice is achieved in every case, and I 

will work tirelessly to make sure that happens. 

Chairman LEAHY. Mr. Bunning, you also in your earlier statement talked about wanting to make sure that a case when it goes 

up on appeal, as so many do, that you have not made mistakes. I 

am speaking in your role as a prosecutor, not made mistakes so 

that the case does not get overturned. As a District Judge, of 

course, you always face the fact that—well, not always face, do face 

the fact that one of the litigants is not going to be happy. I recall 

once saying to a defense counsel when I was a prosecutor as we 

were about to go to the jury, I said, ‘‘Well, let us turn to the jury 

and let justice be done.’’ He said, ‘‘Well, if that happens, we will 

appeal.’’

[Laughter.] 

Chairman LEAHY. But you are always going to have one side or 

the other is going to want to appeal, and so the decisions you make 

are going to be extremely important, not just for the decisions you 

make as you go along in a trial, when we have to make rulings, 

admissions of evidence, objections, and so forth, even the amount 

of time an attorney might be allowed to continue with a witness, 

but there are going to be a lot of things where you are going to 

have to rule on matters of law and how that is written is going to 

be the subject of an appeal, certainly on a trial by court, definitely, 

but even in trials by jury, you are going to be making rulings that 

are going to be part of the appellant’s brief. 

Now, the ABA has spoken of your writing, and to the extent you 

do writing now, obviously, the Court of Appeals will set a lot of 

precedent, but you are going to shape that precedent. And to the 

extent that they do not write, if you write a decision, that can be 

controlling in the Eastern District. 

You have had a relative lack of complex cases. Do you feel you 

could take on the writing responsibilities of a Federal Judge? 

Mr. BUNNING. Thank you for that question, Mr. Chairman. I believe my writing style throughout the past ten years, like any good 

lawyer, has progressed over time. In 1991, when I went to the civil 

advocacy class sponsored by the Department of Justice, and I cannot remember which Federal Judge told me this, but she stated 

that when you write, your legal writing, be very concise and get to 

the point, and I believe that whether your writing involves a complex case or one that requires a two- or three-sentence memorandum or two- or three-page memorandum opinion, I believe that 

I will be able to analytically review issues of law. 

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I have done just that over the past ten years, and I think that 

most Federal District judges, at least when I have been advocating 

positions in memoranda, like brevity and like you to state the facts 

of the law, apply those facts to the law, and then draw a conclusion, because I think at the appellate level, it is always easier as 

an advocate to argue your position when the District Court’s opinion is very clear as to what issues of law control and why the conclusion was drawn. 

Chairman LEAHY. In a way, this is sort of an obverse of questions we often ask nominees here who have had extensive civil 

practice, if they are going on the Federal bench, how they are going 

to handle a criminal practice. In a way, I am asking you the obverse of that. 

The civil matters, you litigated civil matters for four of your ten 

years in legal practice and the ABA, that is one of the concerns 

they have expressed. Federal Court dockets are overflowing. Certainly, they are in my State. I am sure they are in the Commonwealth of Kentucky and elsewhere with a lot of complex civil cases. 

You have got employment, voting rights discrimination, antitrust, 

a lot of large-scale class litigation which will go to the Federal 

Courts. 

Do you feel prepared to handle complex civil cases and still manage what I assume will be a very busy docket of both civil and 

criminal cases? Can you handle it? Do you feel that you are qualified to handle the complex antitrust case or voter discrimination 

case if it lands in your lap? 

Mr. BUNNING. I have had the experience to handle a wide variety 

of cases over the last ten years. I have not handled a voting rights 

action case and I have not handled an antitrust action. I have tirelessly researched the law and advocated positions based on my research. If confirmed by the Senate, I will work just as tirelessly 

and with every ounce of my being, enthusiastically, to handle every 

issue which comes before me. 

I am very proud of my civil background. It is a few years ago. 

I did have the opportunity to handle some age discrimination cases. 

I have handled some Federal Tort Claims Act cases. At the end of 

the day, there is going to be, at least with respect to Federal questions, there is going to be a statute that controls, and in most 

cases, controlling precedent interpreting that statute for you. I am 

bound to follow those precedents and I will do so if confirmed. 

Chairman LEAHY. I assume that you would not in any way disagree with the fact that if there is a Court of Appeals decision for 

your circuit or a U.S. Supreme Court opinion on a matter, you are 

bound by that precedent. Whether you agree or disagree with it, 

you are bound by that, is that correct? 

Mr. BUNNING. Absolutely. 

Chairman LEAHY. Unfortunately, as you know, there are a lot of 

novel theories that come up and you are going to find a lot of cases 

that there is no opinion on all fours. Sometimes there will be no 

precedent that even comes too close to it. I think in the past few 

years, the Supreme Court has struck down a number of Federal 

statutes, where the Congress has enacted a law, the Supreme 

Court has knocked it down, and several designed to protect civil 

rights and prerogatives of what many of us felt were our more vulVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01096 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1085

nerable citizens, the Supreme Court has said that is beyond 

Congress’s power under Section 5 of the 14th Amendment. They 

have also struck down statutes being outside the authority of Congress under the Commerce Clause. 

These cases taken as a whole have been described as creating 

new power for State governments, or as Federal authority is being 

diminished. At the same time, the courts issued several decisions, 

most notably in the environmental arena, to give States a lot more 

power and authority over the use of land and water, even though 

there has been longstanding Federal protection of the environment, 

the idea that air does not stop at a border of a State and waters 

do not and so on. 

Many writers have said these cases, taken collectively, or taken 

individually even, they raise concerns about the limitation on Congressional authority, or collectively, it may be a new kind of federalism crafted by the Supreme Court that may alter fundamentally the structure of our government. 

Understanding fully, of course, you are bound by the precedents 

of the Supreme Court, have you looked at this trend in the Supreme Court and do you have a view as to that trend? 

Mr. BUNNING. I am familiar with some of the Supreme Court 

cases that you have mentioned, Mr. Chairman. As a U.S. District 

Judge, if confirmed, obviously, I am bound by the precedents established by the Sixth Circuit Court of Appeals and the Supreme 

Court. The separation of powers has worked well for many, many 

years and I think that I know the role of a judge and I also know 

that those precedents are controlling and I do not really have 

any—my personal beliefs or what I may think Congress should or 

should not do will not impact me as a judge because that is your 

role and the members of this Committee and the members of the 

Congress’s role to create the laws. I am fully aware of that and I 

believe that to the extent that there are cases by the Supreme 

Court or the Sixth Circuit interpreting the Commerce Clause, equal 

protection under the 14th Amendment, I will be bound to follow 

those precedents. 

Chairman LEAHY. What if Congress, and think for a moment on 

this if you want to answer if, if Congress provided money to a State 

on the condition that the State use the money in a certain way. 

Can Congress constitutionally require a State to accept such funding, to waive its sovereign immunity to private actions for money 

damages if the State is found to be misusing its funds? 

Mr. BUNNING. Mr. Chairman, that is an area that I have not had 

a whole lot of experience in, to be candid with you. I would thoroughly research that issue, and I am sure if the Supreme Court 

has ruled or the Sixth Circuit has ruled on that very issue, I will 

follow that. I am somewhat of a computer pack rat and I am fairly 

proficient with legal research and writing and I believe that I 

would find the precedent and I would, of course, follow it if there 

is such precedent. 

Chairman LEAHY. I might say as an aside, the computer is a little bit different than in the days when Senator Hatch and I were 

first practicing law and had to Shepardize our cases in dusty old 

books. I recall my days as a prosecutor, being in the law library 

until three or four o’clock in the morning researching appellate 

1086

cases and going up and trying murder cases at nine o’clock the 

same morning. I am finding the computer is a lot—well, it is a different matter. 

Senator Hatch, before we start down the coastal highway of 

reminiscences of the older members of the Committee, I will yield 

to you. 

Senator HATCH. I am glad we are avoiding the coastal highway, 

is all I can say. 

[Laughter.] 

Senator HATCH. Mr. Bunning, approximately how many cases 

have you handled in your little over ten years of practice? 

Mr. BUNNING. Approximately 130 civil cases and approximately 

400 criminal matters, all in Federal Court. 

Senator HATCH. Can you tell us about any complex litigation 

cases that you handled? 

Mr. BUNNING. Thank you, Senator Hatch. Lawyers can disagree 

on what complex means. I have handled several, on the criminal 

side, several multi-defendant, multi-layer conspiracy cases, the 

very types of cases that, at least on the criminal side of the fence, 

are handled in the Eastern District of Kentucky involving numerous constitutional issues, both pre-trial and post-trial. 

On the civil side, I believe you mentioned the one particular case 

where I had 22 individual defendants who had been sued under 

Bivens. We ultimately went to trial and we were successful obtaining a verdict for the one remaining defendant, and that is the Murray case mentioned in the materials. 

Another civil case which you mentioned, I believe is appropriate, 

is the Lisa Fleschig FTCA case which I handled while I was still 

a law clerk for another AUSA, and that is a published opinion and 

you have that in the material, as well. 

But with respect to the complexity of the issues, I have handled 

numerous, what I would consider complex criminal cases for the 

Eastern District of Kentucky. 

Senator HATCH. Would you mind telling the Committee what 

your Martindale–Hubbell rating is? 

Mr. BUNNING. It is ‘‘BV,’’ which is, I believe, the middle of the 

three ratings. 

Senator HATCH. It is the highest rating that a young lawyer can 

have between five—you cannot get it until after you have been in 

the practice for five years, and if I recall it correctly, between five 

and ten years, it is the highest rating any lawyer can have. 

Mr. BUNNING. Thank you. 

Senator HATCH. And then after ten, hopefully you can work on 

getting an ‘‘AV’’ rating. But that speaks pretty well of you, that you 

had a ‘‘BV’’ rating—

Mr. BUNNING. Thank you. 

Senator HATCH. —meaning the highest rating by your peers in 

that area by the most important rating system that we have in the 

law today. I wanted to point that out, because it is my understanding that you did. 

I note that you have spent virtually your entire career as a litigator in the Federal Courts, and as a result, I expect that you have 

had significant experience dealing with the rules that govern proceedings in Federal Court, such as the Federal Rules of Evidence, 

1087

the Federal Rules of Civil and Criminal Procedure, and the Federal 

Sentencing Guidelines. How will you benefit as a Federal judge 

from your extensive experience with these rules? 

Mr. BUNNING. I believe my experience in the interpretation and 

application of all those rules that you mentioned will be of great 

benefit to me. I understand the nuances of the sentencing guidelines. I was fortunate enough in the year 2000 to be asked by the 

Kentucky Bar Association to lecture to the KBA on guideline 

issues. I was very proud of being asked to do that as a member of 

the bar in Covington, Kentucky. 

Evidentiary rules are, like anything else, the more you deal with 

them in the well of the court, the more familiar you are, and I have 

had a lot of experience in the middle of trials litigating, or advocating, if you will, the Federal Rules of Evidence, and I believe that 

will be a great benefit to me. Knowing the practices and the procedures in both civil and criminal cases in the Eastern District of 

Kentucky will be of a great benefit to me, if confirmed. 

Senator HATCH. Now, I understand that there has been an allegation that your experience has revolved almost exclusively around 

criminal law. I note, however, that you spent the first four years 

of your career as an Assistant U.S. Attorney in the Lexington office 

of the Civil Division handling a diverse array of cases. Even after 

you were transferred to the Covington office in 1995, you continued 

to handle civil matters until 1998. Can you provide us with some 

details about your civil litigation experience? 

Mr. BUNNING. Thank you. I have handled approximately 130 

Federal civil cases, ranging from Bivens type actions to Federal 

Tort Claims actions to handling age discrimination cases, and for 

the most part, many of those Federal constitutional law issues—the 

Bivens, the 1983 type actions, were the very same cases that make 

up a large percentage of the docket for Federal judges in the Eastern District of Kentucky. And while I have defended the individuals who have been accused of using excessive force, for instance, 

I am familiar with that area and I believe that will be a great benefit to me, if confirmed. 

Senator HATCH. Thank you. Now, one of the criticisms that has 

been levied against you is that you graduated from the University 

of Kentucky Law School in the middle of your class. I personally 

am truly disappointed by this criticism, as I feel strongly that a 

solid quality legal education is available at our country’s State universities. 

Senator MCCONNELL. I might say, as another UK Law graduate 

who graduated in the middle of his class, I thought it stung a little 

bit, too. 

[Laughter.] 

Senator HATCH. Maybe I should not ask the rest of this question. 

I think it would sting anybody. 

[Laughter.] 

Senator HATCH. I used to be proud of saying that I never lost a 

case to some of these so-called heralded elite law school graduates. 

Chairman LEAHY. Moving right along— [Laughter.] 

Senator HATCH. I am concerned that this criticism reflects a degree of elitism, so I want to ask you the following question. Do you 

1088

feel at all disadvantaged for having graduated from a State law 

school? 

Mr. BUNNING. Absolutely not, Mr. Chairman. The University of 

Kentucky, and there will be some who disagree, but I believe it is 

the flagship law school in Kentucky. We do have three very wonderful law schools in the State and I am very proud of having graduated from UK in Lexington. We do have—it is my understanding, 

and I may get it wrong, but I know several of the current Federal 

bench and the District Court bench graduated from Kentucky. I believe that is correct. I think you may ask them why they are—I am 

sure they will remember where they went to law school. You could 

ask them that later. 

Senator HATCH. Between you and me, I think it is the student 

a lot more. The law school is important, but the student is even 

more important. 

Frankly, I am proud of the record you have, and we have put 

young people on the Federal bench. You have over ten years. Now, 

I admit that the American Bar Association likes a 12-year rule, but 

we have ignored that rule from time to time, especially when you 

have the litigation experience that somebody like you has had, and 

not just criminal, but civil, as well. So I just want to compliment 

you. I believe you will make a wonderful District Court judge and 

I think you will bring a vibrancy to the bench that will be very 

much appreciated by those of us who work with the Federal judiciary at all times. 

I have been here 25 years and there is nobody who loves the Federal judiciary more than I do, nobody. I respect these judges. I 

would not recommend anybody to become a Federal District or Circuit Court judge or a Supreme Court judge who I did not feel had 

the capacity to do that job, because the work that you do is so important for this country. I personally believe that the judiciary, 

that third branch of government, that sometimes is disparaged by 

people in our society, has done more to save the Constitution and 

to protect our way of live than any of the three branches. That does 

not negate the fact the other two branches have done some very 

good things, but you are about to go into a position that really 

makes a difference in this world. 

I, for one, am very proud of what you have been able to accomplish during your years. I have to say that those who want to disparage any aspect of your experience ought to look at that ‘‘BV’’

rating. That is by peers and it is a very small percentage of lawyers who get that after five years of practice of law. It is a very 

high rating. I think that should stand you in very good stead in 

anybody’s eyes, because those are secret ballots for Martindale–

Hubbell. You do not know who is voting for you. You do not know 

who they sent questionnaires out to. So these are your peers who 

really have no reason to do anything but tell the truth. 

I am very proud to support you in this matter and I wish you 

well as you become confirmed. 

Mr. BUNNING. Thank you. 

Senator HATCH. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Senator McConnell? 

1089

Senator MCCONNELL. Mr. Chairman, the Senator from Alabama 

has got another place he needs to go here shortly, so if you do not 

mind, I am going to allow him to— Chairman LEAHY. I am always happy to accommodate my friend 

from Alabama. 

Senator MCCONNELL. I will yield my time. 

Senator HATCH. If my friend from Alabama would yield, Mr. 

Chairman, I have another appointment I have to go to, but I just 

want to thank you for holding this hearing once again. I appreciate 

your effort in this regard and appreciate the effort of my colleagues. 

Chairman LEAHY. And I would just note, so that people can plan, 

when we finish the questioning of the witness, we will take about 

a three-minute break before we bring up the next panel. 

The Senator from Alabama.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Mr. Chairman, I know I am biased, having 

served as an Assistant U.S. Attorney and as United States Attorney for 12 years, really 15 years, in the Department of Justice 

doing much of the same kind of work that this nominee has. I recognize the Bar Association does worry about the rule for years of 

practice and I understand that that is a good rule and ought to be 

looked at, but it is not an iron-clad rule, as we all know. 

Honestly, the kind of experience this nominee has is extraordinary. He has worked full-time before the very judges that he will 

be serving with. Remarkably, three of them are here today to testify to his competence, his former United States Attorney boss, who 

was appointed by President Clinton, also supports his nomination. 

Unlike some Assistant United States Attorneys in a big office 

who may have tried one or two big cases over a period of time in 

a rarified atmosphere, this nominee has tried civil cases, medical 

malpractice civil cases, complex Bivens cases involving a lot of 

money against the United States Government, a host of those kinds 

of cases which, I think, indicates that he had to master the Rules 

of Evidence, the Civil Rules of Evidence. 

He also has handled quite a number of major criminal cases and 

did OCDETF work, which is the Organized Crime Drug Enforcement Task Force cases. Fifty percent of his criminal work has been 

OCDETF cases. These are the most complex drug cases. Many of 

those involve multi-district, multi-defendant situations. He has 

prosecuted health care fraud cases, all of which are complex, whitecollar fraud cases, economic and Internet fraud cases. I think that 

is important. 

So he has learned criminal rules and the criminal procedures, 

and I would certainly suggest that Sentencing Guidelines are a significant issue for a Federal judge. They are complex and it takes 

some time to get a handle on them. Obviously, based on his experience, he will hit the ground running with those issues with no 

problem. 

As Chairman Hatch noted, I thought it was particularly noteworthy that during the time he has been trying these cases, he has 

been advising agents—I will just ask you this, Mr. Bunning. Do 

1090

you have agents and investigators talk to you on a pretty regular 

basis, in your office? 

Mr. BUNNING. Senator Sessions, that is correct. They call and if 

we happen to be the one that answers the phone that day, we answer their question. 

Senator SESSIONS. And you give them legal advice. They come 

into your office and ask legal advice. You have to meet with them 

to prepare for cases, talk to witnesses, interview witnesses and do 

those kinds of things. 

Mr. BUNNING. That is correct. 

Senator SESSIONS. But at the same time he is doing all that and 

trying cases, he has written 50 appellate briefs to the Sixth Circuit 

Court of Appeals, personally written those briefs, and appeared before the Court of Appeals ten to 15 times. That is a real tough 

thing. 

And in the course of that, I would suggest that a young lawyer 

quickly learns what goes on in the courtroom, what goes on outside 

the courtroom with law enforcement officers. He understands that, 

and also learns how to simplify and identify key issues on appeal, 

key issues that will come forth on appeal. 

I was impressed that of the 20 jury trials he has tried, he did 

18 of them as sole counsel. That is the way we did in my office. 

It is real productive for the taxpayers, frankly. In big offices, they 

will have three lawyers trying cases. A new one is supposed to sit 

there and, I guess, absorb the practice. But in the real world out 

there where you have a small office, you are trying those yourself 

and you have to stand before that judge, argue your motions on 

evidence, argue your exclusionary motions, argue the motions to 

dismiss, and learn about lawyers. 

So I just think it is an exceptionally good background for a Federal Court judgeship, particularly when he has done civil and 

criminal cases. I see you are smiling. 

Chairman LEAHY. No, I was just thinking, being just a small 

town lawyer myself, I never knew you were able to have a second 

counsel there. 

[Laughter.] 

Chairman LEAHY. I thought you had to do everything from discovery to prepare the case, try it, and take it up on appeal. So I 

am glad I have been here today. I have learned something. 

Senator SESSIONS. It is not that way in the big offices, truly. 

And I was impressed. I like the letter from your self-described 

liberal Democrat. He said you have integrity, fairness, and no hint 

of aloofness. I hope you will not lose that just because you are 

anointed. 

Mr. BUNNING. Senator Sessions, with having three small children, my feet are firmly planted on the ground. 

[Laughter.] 

Senator SESSIONS. I think that is important, and I think we need 

to be—I think experience is important in a judge, but I would just 

say, having the support of the judges before whom you prosecute 

and the intensity of the experience you have had, if you had dictatorial qualities, if you had qualities that indicated incompetence 

or lack of integrity or a lack of commitment to the rule of law, if 

1091

you could not have gotten along with your lawyers on the other 

side, we would know it by now. 

I think, based on that unique experience you have had, I think 

we are looking at a good nominee, Mr. Chairman, and I thank you 

very much for allowing this hearing to occur. 

Chairman LEAHY. Thank you, Senator Sessions. I appreciate 

that. 

Senator McConnell? 

Senator MCCONNELL. Mr. Chairman, we are almost to the point 

here with this nominee where everything has been said but not everyone has said it. There is one area that I wanted to probe just 

a bit and that is in Mr. Weiner’s report, the satellite office seemed 

to be an issue. I am not sure whether it was an issue because the 

argument was that you were unsupervised or over-supervised. You 

had said, I think, that your boss had a ‘‘sort of hands-off approach 

to management,’’ but I gather you did not mean there was no supervision whatsoever. 

Mr. BUNNING. Senator McConnell, that is absolutely correct. The 

nice thing about being in the satellite office was the opportunity for 

consultation and supervision was always there, and I am fortunate 

enough, my immediate supervisor for more than the last six years, 

E.G. Walburn, is a fabulous lawyer who knows more about the Federal Rules of Evidence than any lawyer that I know. I have been 

able to draw on his experience—

Senator MCCONNELL. In fact, he was a former Kentucky Lawyer 

of the Year, was he not? 

Mr. BUNNING. That is my understanding. 

Senator MCCONNELL. Yes. I am sorry. I did not mean to interrupt you. 

Mr. BUNNING. In the satellite office, we spent many times discussing nuances of the Federal Rules of Evidence. The level of supervision, now while I did not have constant supervision with respect to every single decision that I would make, my indictments 

that were prepared to be presented to a grand jury were always reviewed by my immediate supervisor and Mr. Famularo, while he 

was the U.S. Attorney. My appellate briefs were reviewed by Mr. 

Walburn and by an appellate chief in Lexington. While I handled 

and wrote the briefs myself, they were always reviewed. 

And the level of supervision we got was intense when it was 

needed, and I think I did tell Mr. Weiner that it was hands-off, but 

I think it enabled me to grow as a lawyer and make decisions on 

my own, which I think, obviously, if fortunate enough to be confirmed, I will be doing just that. 

Senator MCCONNELL. Thank you. I suppose you are going to 

want to be very careful on this next question, given who is sitting 

behind you, but the United States Attorney’s Office where you have 

spent your legal career actually gives you more relevant experience 

than almost anything else you could do. In fact, it is a unique advantage, as Senator Sessions and others have pointed out, in preparing to be a Federal District Court judge. 

Do you know how your experience compares with others who 

have been appointed to the Federal Court in Kentucky at the time 

of their appointment? 

1092

Mr. BUNNING. Senator McConnell, I have spoken with several of 

the judges, some behind me, some who were not able to be here. 

I believe it compares favorably. I would not be—I am incredibly 

humble to state that I believe my experience makes me qualified 

for this job that I have been nominated for. They are—their level 

of experience and breadth and depth of their experience when they 

came to the bench with varied backgrounds. 

I am fortunate enough that my time at the U.S. Attorney’s Office 

has given me a great reverence for the practices and the procedures in the Eastern District of Kentucky. We have been blessed 

with very fine judges, some of which came from the U.S. Attorney’s 

Office for the Eastern District of Kentucky, and I think you might 

better ask them than myself that question. 

Senator MCCONNELL. I will. 

Finally, the issue of complex cases. The Chairman mentioned 

antitrust and voting rights cases, but I would surmise there are 

probably a whole lot of lawyers who have been appointed to the 

Federal Courts in America who have never handled antitrust cases. 

It is kind of a narrow specialty. 

But there was one case you were involved in in which you were 

dealing with a treaty, is that right, to—

Mr. BUNNING. The Mutual Legal Assistance Treaty? 

Senator MCCONNELL. Yes. Would you describe the complexity of 

that and what that was about? 

Mr. BUNNING. We had—I believe it was the Galloway case you 

are referring to—we were trying to get—the Customs Office and 

myself were researching the law in that area and needed to obtain 

records from the Netherlands. There were certain practices and 

procedures that we had to follow. Certain countries have treaties 

with the United States for sharing of information. The Mutual 

Legal Assistance Treaty is one of those items. 

We had to complete an affidavit, a very lengthy affidavit, saying 

why we needed it. It took approximately six months to get the 

records, but finally were able to obtain the records and use them 

as part of our case in chief during the Galloway trial. It was something I had not done before. However, there was a statute which 

we needed to follow. We followed it to the tee and we were able 

to obtain the records that we needed, which assisted in obtaining 

the conviction in that particular case. 

Senator MCCONNELL. You also handled the first Internet harassment case in the Eastern District, is that right? 

Mr. BUNNING. I believe that is correct, Senator McConnell. That 

was a—the case that was mentioned earlier where the defendant 

had sent, salacious is probably an understatement, e-mails to a 

particular victim, to her family, or not to her family, but to her 

Sunday School, to her principal, and it really was an ugly case. 

We reviewed the statutes to try to find something where we 

could help because it involved Canada, it involved Western Kentucky, it involved getting records from an Internet service provider, 

which there is a particular statute on that, as well, and we were 

finally able to find what we needed and we used Title 47, United 

States Code Section 223, and we were fortunate enough that the 

grand jury indicted, that we did the investigation, and ultimately, 

1093

the defendant was sentenced to 24 months, which is the statutory 

maximum. 

Later, that case evolved into something much greater when the 

victim, the primary victims in my case were threatened, as were 

others and myself, as well. So that has given me a lot of perspective on victims’ issues. 

Senator MCCONNELL. Thank you, Mr. Chairman. 

Chairman LEAHY. In fact, the threat against you was considered 

serious enough you were put under protection because of that 

threat, were you not? 

Mr. BUNNING. Yes, that is correct, Mr. Chairman. My wife and 

my two children at the time had to leave very quickly, and that is 

just part of the job. 

Chairman LEAHY. I understand. 

Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman, and thank you for holding this hearing. 

I have been an advocate for victims’ rights, and one of the things 

that struck me about your record, Mr. Bunning, is the recognition 

that you received, I believe as a result of that particular case, the 

Department of Justice’s Annual Victim’s Rights Recognition Award, 

and I compliment you for that. 

Mr. BUNNING. Thank you. 

Senator KYL. Mr. Chairman, I have a couple of biases here. I 

have known Mr. Bunning now since 1987 and I know something 

of his character and his temperament because I am so well acquainted with his parents. Therefore, I confess some bias in this 

matter. 

But I also think I have another bias, and it is the same bias that 

I think the ABA has, and I do not mean this in a critical way at 

all. It is a natural aspect, I think, of the growth. I recognize the 

ABA leadership would probably deny this, but I think there is some 

feeling that those of us who were law review and were civil practitioners in large law firms think that that is what the practice of 

law is all about, the complex civil litigation and the like, and a 

large component of the ABA is made up, or the leadership of the 

ABA is made up of attorneys that have had that background. That 

is my background and I think that is really the big important stuff 

in the law. 

But, of course, after having practiced for 20 years and then having spent 15 or 16 years in the Congress, I have got a little different perspective, especially since I have had the good fortune of 

being able to select nominees for appointment to the bench. I have 

had to think a lot more about what it takes to be a good Federal 

District judge, and I have concluded that somebody with the experience that Mr. Bunning has probably enters that office with a better chance of being a good judge than someone with the kind of experience that I had myself, and it is for the reasons that have been 

pointed out by so many people here. 

The things that a Federal District judge in the Eastern District 

of Kentucky is going to deal with are exactly the kind of things 

that Mr. Bunning has dealt with. So I may come in with a lot of 

experience from the big law firm and complex civil litigation, but 

I am going to have to learn all of those rules and the other proceVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01105 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
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dures that attend to the criminal cases because that is the bulk of 

the work. 

In this age of specialization, I think we need to be careful about 

nominating or confirming judges who may be real hot-shots in one 

specific area of the law and they do not have the breadth of practice that David Bunning does. 

I would note, Mr. Chairman, that I helped to select three nominees for the District Court in Arizona, all of whom were confirmed. 

One of them had almost identical experience. In fact, she is the 

first Arizona Hispanic Federal District judge and had a background 

very much like David Bunning’s background. 

Her counterpart was a civil judge, somebody that practiced a lot 

of the civil litigation, and I have talked to both of them since and 

they are learning a lot from each other. But clearly, the one with 

the experience as an Assistant U.S. Attorney hit the deck running. 

That is really what I want to ask you about, David. Everybody 

brings unique attributes to the team. You are going to join an erudite bench. What you bring to that bench is youth, I think the ability to work hard, the ability to hit the deck running, and also an 

ability to relate to the people that the judge has to relate to in the 

courtroom, the families, the victims, and the defendants, and let us 

face it, most of the defendants are young men who have gotten it 

wrong with the law and they need some guidance. They need somebody who can be tough but who, when they are done, they and 

their families say, ‘‘I was treated fairly and now I have a better understanding of why I have got to get straight with the law.’’ My question to you, you have, according to the record, a very 

good record of working hard, coming in early and working late and 

so on. Your court needs somebody who can handle a large caseload. 

My question is, are you going to work every bit as hard as you have 

as an Assistant U.S. Attorney when you are elevated to the bench, 

question number one, and are you willing to take on an even larger 

caseload than some of the judges who have been there for a long 

time as soon as you are able to handle that? 

And finally, how do you think you can relate to the families, to 

the victims, to the young defendants who will appear before you 

that you will have to sentence and so on, to bring something special to the court, something that perhaps some of the older judges 

do not necessarily bring to that court? How would you relate your 

experience and the special qualities you have to the administration 

of justice, the rule of law, and helping the public gain confidence 

in our Federal judiciary? 

Mr. BUNNING. I am going to answer the last question first, as I 

remember them. The public gaining confidence in the judiciary, I 

believe that starts with respect of the system, respect to the witness, the victim, all litigants, the lawyers, and the accused. I have 

spent—I have tirelessly spent the last ten years of my life making 

sure that justice is served in all cases. If that means we do not proceed on an indictment, presenting an indictment, if that means I 

do not believe there is probable cause to get a search warrant, I 

have been very candid with agents about it. 

With respect to the first question about working hard to make 

sure that—working just as hard as a District judge, I want to assure every member of this Committee and every member of the 

1095

Senate, I have always been very privileged to put every ounce of 

my energy into my job. I am a tireless worker. I have always 

been—put a lot of attention to detail, which I believe will be important if I am fortunate enough to be confirmed by the Senate. 

The other question, I believe, was about relating to young defendants. I have sat across tables from many a cooperating co-defendant, in criminal cases. I have talked to victims. I have been a 

victim myself in a criminal case. That was an eye-opener. You 

never think that you are going to be the one, but it just was a result of tireless effort, tightening the noose, if you will. Obviously, 

I will not be—that may not be a good analogy to use, but working 

tirelessly to achieve the result that I needed in that particular 

case. 

I do have the perspective of being relatively young. I believe I 

probably have a little bit more gray hair today than I have a year 

ago. I like to think that is because of my children. 

[Laughter.] 

Mr. BUNNING. But ultimately, I think that the breadth and the 

depth of what I have been doing and the tireless way I have approached my job, in a very blue-collar way in a white-collar suit, 

will serve me well if I am confirmed. 

Senator KYL. Thanks, Mr. Chairman. 

Chairman LEAHY. Thank you. Do not worry about the gray hair. 

Some of us would take it any color at all that might come in. 

[Laughter.] 

Chairman LEAHY. In listening to Senator Kyl’s question, I am 

sure that neither Senator Kyl, he did not mean to suggest, nor did 

you by your answer, that automatically, those young men who are 

before the court are all guilty. I mean, that is something that has 

to be determined. 

Mr. BUNNING. Absolutely. 

Chairman LEAHY. And I understand what you mean on being a 

victim. During my years as a prosecutor, I was shot at, I was 

threatened with murder, and a number of other things. I came here 

for the relative safety— [Laughter.] 

Chairman LEAHY. —and anonymity of the United States Senate, 

and that is because I guess they did not know about anthrax back 

in the days when I was a prosecutor. Now, they send something 

through that is supposed to take out me and a few hundred thousand other people. 

But we do our work, and unfortunately in this case, the letters 

are something that threaten not only Senator Daschle and myself, 

but all 100 Senators and a whole lot of staff and, unfortunately, on 

the way here, murdered several innocent people and have injured 

several others. 

You described the Fleschig case, Lisa Fleschig, and I may be mispronouncing it. I understand in this case, the inmate who was incarcerated, she was being transported by a male corrections officer 

transporting. He was alone with her and was charged that he had 

sexually assaulted her. The courts, following a motion that you had 

made on behalf of another U.S. Attorney, eventually said that the 

correctional staff was not negligent in permitting the inmate to be 

escorted alone. The officer was acting outside of the scope of his 

1096

employment. Judge Forester, who is here, granted that motion. The 

Sixth Circuit affirmed. 

I am just curious. Was there ever a remedial action taken 

against this officer? I am not suggesting there was anything wrong 

with the decisions and, obviously, the Circuit upheld it, but was 

any redress provided to the victim, any action taken against the 

corrections officer? 

Mr. BUNNING. Mr. Chairman, I believe there was. That was a 

tragic set of facts. The Federal Tort Claims Act, we had a defense. 

We raised it. It was granted. It was affirmed. 

As I recall, the officer, his name was Bruce Trent, and at that 

time, we could not prosecute him criminally because the rape did 

not occur within the special maritime jurisdiction of the United 

States because it was at her apartment, and he indicated that if 

she said anything, he would say that she was trying to escape. 

As I recall, he was dismissed. I cannot verify that. I could follow 

up, if you would like. I could try to obtain that information from 

the Bureau of Prisons, but—

Chairman LEAHY. I was just curious what finally happened 

there. You described it very accurately in your questionnaire, but 

I was just curious what finally happened. 

Mr. Bunning, we will keep the record open so others can submit 

questions. I have a couple that are fairly technical in nature. I did 

not think it would be fair to simply spring them on you. We are 

going to submit them to you. If you have questions about the nature of the questions, feel free to call back to the staff. 

Others will be able to do that, as we will hold this open. It will 

also give you a chance, when there will be other testimony here 

today, if you want to respond to anything raised in that, you will 

have the opportunity. 

I appreciate the comments of the senior Senator from Kentucky 

on the question of fairness. I assure you, this will be a fair hearing. 

I thank you for being here. Your wife has been very patient. I suspect she is supportive of you in this matter. 

Mr. BUNNING. I hope so. 

[Laughter.] 

Mr. BUNNING. I believe so. 

Chairman LEAHY. You cannot see here, sitting where you are, 

but the look of pride and love that you received throughout this, 

I think answers that question. 

We will stand in recess for a few minutes. 

Mr. BUNNING. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

[Recess.] 

Chairman LEAHY. I am very pleased that Mr. Trimmier and Mr. 

Weiner and Mr. Best were able to join us. I understand that Mr. 

Trimmier is the Chair of the American Bar Association’s Standing 

Committee on the Federal Judiciary and Mr. Weiner will be testifying and that Mr. Best will be available for questions. I apologize 

for the spring allergies I seem to pick up. My voice is going. But 

I know you have been sitting here a long time. I thank you for 

being here and yield to you, Mr. Trimmier. 

1097

STATEMENT OF ROSCOE TRIMMIER, JR., CHAIR, AMERICAN 

BAR ASSOCIATION STANDING COMMITTEE ON FEDERAL JUDICIARY, WASHINGTON, D.C.; AND DAVID C. WEINER, SIXTH 

CIRCUIT REPRESENTATIVE, AMERICAN BAR ASSOCIATION 

STANDING COMMITTEE ON FEDERAL JUDICIARY, WASHINGTON, D.C.; ACCOMPANIED BY JUDAH BEST, AMERICAN 

BAR ASSOCIATION STANDING COMMITTEE ON FEDERAL JUDICIARY, WASHINGTON, D.C. 

Mr. TRIMMIER. Thank you, Senator Leahy. Mr. Chairman, members of the Committee, my name is Roscoe Trimmier and I am a 

practicing lawyer in Boston, and I am, as Senator Leahy indicated, 

the Chair of the American Bar Association Standing Committee on 

Federal Judiciary. 

With me today is David C. Weiner, the Committee’s Sixth Circuit 

Representative and the principal investigator for this investigation. 

To my far left is Mr. Judah Best, a former Committee member and 

a former Chair of this Committee who acted as the second investigator in this case. We appear here to present the views of the Association on the nomination of David L. Bunning to be a United 

States District Court Judge for the Eastern District of Kentucky. 

After careful investigation and consideration, including an evaluation of his written submissions, a majority of our Committee is 

of the opinion that Mr. Bunning is ‘‘not qualified’’ for appointment. 

A minority found him to be ‘‘qualified.’’ Before the specifics of this case, I would like to review briefly the 

Committee’s procedures so that you will have a clear understanding of the process the Committee followed in this investigation. A more detailed description of the Committee’s procedures is 

contained in an ABA booklet entitled, ‘‘Standing Committee on 

Federal Judiciary: What It Is and How It Works,’’ which was last 

published in July of 1999. 

The ABA Committee investigates and considers only the professional competence, integrity, and judicial temperament of the nominee. Ideological or political considerations are not taken into account. Our processes and procedures are carefully structured to 

produce a fair, thorough, and objective evaluation of each nominee. 

A number of factors are investigated, including intellectual capacity, judgment, writing and analytical ability, industry, knowledge of 

the law, professional experience, character, integrity, and general 

reputation in the legal community. 

The investigation is ordinarily undertaken by the member of the 

Committee residing in the judicial circuit in which the vacancy exists, although in some cases it may be conducted by another member of the Committee or a former member of the Committee. 

The starting point for an investigation is the receipt of the candidate’s responses to the public portion of the Senate Judiciary 

Committee questionnaire. These responses provide the opportunity 

for the nominee to set forth his or her qualifications, professional 

experience, significant cases handled, major writings, and the like. 

The principal investigator personally conducts extensive confidential interviews with a broad spectrum of individuals who are 

in a position to evaluate the nominee’s professional qualifications, 

and he also examines the legal writings of the candidate. The principal investigator interviews the candidate and discusses his or her 

1098

qualifications for a judgeship, as well as the substance of adverse 

information raised during the investigation. The candidate is given 

a full opportunity to respond and to provide any additional information he or she may choose. 

Sometimes, a clear pattern emerges in the interviews and the investigation can be briskly concluded. In other cases, conflicting 

evaluations as to professional competence may be received or questions might arise as to integrity or temperament. The principal investigator usually submits an informal report on the progress of 

the investigation to the Chair, providing a preliminary assessment 

of the nominee’s qualifications. In those cases where it appears 

that the preliminary assessment may be ‘‘not qualified,’’ as a matter of fairness, another investigator may be asked to come into the 

investigation and conduct the supplemental inquiries he or she 

feels appropriate and to make a recommendation. 

At the conclusion of all inquiries, a formal investigative report, 

containing a description of the candidate’s background, summaries 

of all interviews conducted, including the interview with the prospective nominee, or in this case nominee, an evaluation of the candidate’s qualifications and a recommended rating, all of that is circulated to the entire 15-member Committee, together with complete Senate Judiciary Committee questionnaire responses and copies of other relevant materials. Any supplemental report is also 

provided to each Committee member. 

After studying these materials, each Committee member telephones a vote to the Chair rating the nominee ‘‘well qualified,’’

‘‘qualified,’’ or ‘‘not qualified.’’ The votes are later confirmed in writing. 

An important concern of the Committee in carrying out its function is confidentiality. The Committee seeks information on a confidential basis and assures its sources that their identities and the 

information they provide will not be revealed outside the Committee unless they consent to disclosure. It is the Committee’s experience that only by assuring and maintaining such confidentiality can sources be persuaded to provide full and candid information. 

However, we are also alert to the potential for abuse of confidentiality. The substance of adverse information is shared with the 

nominee, who is given full opportunity to explain the matter and 

to provide any additional information bearing on it. If that cannot 

be done, the information may not be relied upon by the Committee 

in reaching its evaluation. 

As to the specific investigation before us, Mr. Bunning was nominated on August 2, 2001. Mr. Weiner began his investigation shortly after receiving Mr. Bunning’s August 10, 2001, responses to the 

public portion of the Senate Judiciary Committee questionnaire. 

On September 12, Mr. Weiner prepared and submitted to me as 

Chair of the Committee an informal report that thoroughly presented the results of his investigation, summaries of all his confidential interviews, a summary of his interview with Mr. Bunning, 

and a recommendation. Because that recommendation was proposed to be that Mr. Bunning be found ‘‘not qualified,’’ consistent 

with Committee procedures, I appointed a second investigator, a 

1099

former member and Chair of our Committee, Mr. Judah Best, to 

conduct a supplemental investigation. 

Mr. Best conducted confidential interviews with 17 persons, some 

of whom Mr. Weiner had previously interviewed, and he, too, interviewed Mr. Bunning in his office on September 26, 2001. Mr. Best 

recommended that the Committee rate Mr. Bunning ‘‘qualified.’’ On October 1, 2001, both Mr. Weiner’s formal report and Mr. 

Best’s supplemental report were transmitted to all members of the 

Committee. I encouraged Committee members who had questions 

for either investigator to contact them directly. After all the Committee members had had an opportunity to study both reports and 

all attachments, they reported to me their votes on the qualifications of Mr. Bunning. A majority of the Committee voted to find 

Mr. Bunning ‘‘not qualified,’’ and a minority voted to find him ‘‘qualified.’’ That vote was reported to this Committee on October 

11, 2001. 

I will now ask Mr. Weiner to describe the conduct of his investigation and the basis of his recommendation, which the Committee 

adopted by majority vote. Mr. Best is also here to respond to such 

questions you may have regarding his supplemental investigation 

and his recommendations. 

Chairman LEAHY. Thank you, Mr. Trimmier. 

Mr. Weiner? 

Mr. WEINER. Thank you, Mr. Chairman, fellow members of the 

Committee. My name is David Weiner. I am a trial lawyer from the 

State of Ohio. I have been practicing for 32 years. I am the Chairman of the Board of the seventh largest firm in Cleveland and a 

past Chair of the Litigation Section of the American Bar Association. I earned my law degree here in D.C. at the Georgetown University Law Center and began my legal career down the street as 

a clerk to Senior Circuit Judge E. Barrett Prettyman of the United 

States Court of Appeals for the District of Columbia Circuit. 

As the Sixth Circuit member of the ABA Standing Committee on 

the Federal Judiciary, I conducted the initial investigation of the 

qualifications of David L. Bunning. I have been a member of the 

Standing Committee since 1997. I have participated in numerous 

investigations of potential and actual nominees to the United 

States Court of Appeals and the United States District Court. I 

have done so both as the Committee person responsible for the investigation and as a reviewer of investigations conducted by fellow 

Committee members. My investigation of the nominee was conducted in the same manner all investigations by the Standing Committee are conducted, as Roscoe Trimmier just explained to you. 

My investigation was conducted during August and September of 

this year. It included over 50 confidential interviews with trial and 

appellate Federal judges in the Sixth Circuit and Kentucky lawyers 

who know and have worked with the candidate, who have direct 

knowledge of his professional qualifications, including those Mr. 

Bunning listed as references in his questionnaire. I included among 

my interviews prominent members of the Kentucky Trial Bar. During each conversation, I inquired how the person knew, if at all, 

the nominee and what the person knew about the nominee’s judicial temperament, integrity, and professional competence relevant 

to his being qualified to serve on the United States District Court. 

1100

I also inquired if they knew any reason why the nominee should 

not be qualified to so serve. 

In addition to those nominees, I reviewed other pertinent materials, including writing samples Mr. Bunning selected for me, such 

as legal briefs he had written. I also met privately with Mr. 

Bunning in his office in Covington, Kentucky, for nearly three 

hours. During the course of our meeting, concerns that had been 

identified during my investigation were discussed and the candidate was given an opportunity to provide additional information 

and to respond. 

Before reaching my recommendation, I reflected at some length 

upon our guidelines, which appear in the publication Mr. Trimmier 

described and is referred to commonly as the ‘‘Backgrounder.’’ In 

particular, I deliberated on the various duties and roles United 

States District judges must perform on a regular basis and the importance of that lifelong position. My recommendation was that the 

nominee be rated ‘‘not qualified.’’ I will shortly set out the reasons 

for this recommendation, but stress, and I stress this importantly, 

that I did not reach this conclusion lightly. 

Indeed, because my preliminary investigation resulted in a ‘‘not 

qualified’’ recommendation, our Committee Chair called for a second investigation, which was conducted by a very distinguished 

member of the D.C. Bar, Judah Best. I have known Mr. Best for 

decades and I have the highest regard for him. I carefully reviewed 

Mr. Best’s supplemental report and Mr. Best and I discussed our 

respective views of the qualification of the nominee at length. We 

could not, however, reconcile our different views. 

After careful consideration of both reports, along with the nominee’s questionnaire and the written materials he had furnished, the 

majority of our Standing Committee was of the view that Mr. 

Bunning is ‘‘not qualified’’ for the position. A minority of the Committee found him to be ‘‘qualified.’’

I emphasize that our Committee takes most seriously its responsibility to conduct independent examination of the professional 

qualifications of judicial nominees. There is no bright line litmus 

test as to whether the nominee is not qualified or whether he is 

qualified. Our recommendation is not the result of tallying the comments, both pro and con, about a particular nominee. Rather, in 

making our evaluation, we draw upon our previous experience, the 

information and knowledge we gain about the nominee during the 

course of our investigation, and our own independent judgment. 

I must stress that we apply the same standards and criteria impartially to all nominees. As you know, President Bush has submitted to the Senate the names of 64 nominees for judicial appointment, and our Committee has found only one candidate to be ‘‘not 

qualified.’’

At the outset, let me state that as to two of our three criteria, 

there was little brought out during the course of our investigation 

to question the nominee’s integrity, and his judicial temperament 

was found likely to be satisfactory. There was no question that the 

nominee is a good person with strong family and religious ties. He 

is a diligent worker. He told me that he regularly works from eight 

a.m. to five or six p.m. daily. And, he is generally well liked. I 

1101

should also say that he has been cordial and respectful towards me 

throughout this process. 

Rather, our conclusion that the nominee should be rated ‘‘not 

qualified’’ is based on several serious concerns relating to his competence. Our ‘‘Backgrounder’’ states that, and I quote here, ‘‘professional competence encompasses such qualities as intellectual capacity, judgment, writing and analytical ability, knowledge of the law, 

and breadth of professional experience.’’ There should be, we believe, strong evidence that the nominee is professionally competent 

to manage and resolve the hundreds of diverse matters that a Federal judge is likely to face. Some of those matters call upon a Federal judge to resolve very complicated and challenging factual legal 

issues which may have far-reaching and lasting effects on numerous people. A judge regularly must make on-the-spot decisions in 

the courtroom that require a solid grounding in procedural and 

substantive law across a broad spectrum. Using that as a guide, we 

looked at the total experience of the nominee. 

Evidence of competency is the strongest and easiest measure 

when the lawyer has practiced law for a number of years. Based 

on the Committee’s longstanding experience with investigating 

nominees, 12 years is what we think to be an appropriate minimum, absent extraordinary circumstances. A lawyer with this 

amount of experience is found more likely to have been exposed to 

a broader spectrum of legal issues and acquired more sophisticated 

responsibilities and perspectives than one lacking such experience. 

We believe that the judicial system, the public, the trial bar, and 

the nominees are not well served by placing on the bench one with 

less than minimum experience. 

The 12-year experience guideline is not a hard and fast rule and 

it is not an automatic disqualifier. The Committee’s criteria provide 

that limited experience may be offset by the extraordinary breadth 

and depth of a nominee’s experience over the course of his or her 

career. Nominees with less than 12 years at the bar have been 

found qualified by our Committee, albeit rarely. 

Mr. Bunning’s civil case experience, however, is very limited and 

shallow. It includes no exposure to, let alone experience in, complex 

civil matters that regularly find their way to Federal District 

Courts. In response to the Senate’s questionnaire about the ten 

most significant litigated matters personally handled by the nominee, Mr. Bunning listed only three civil cases. 

One was a case dismissed on a motion written by the nominee 

while he was still a law clerk in the U.S. Attorney’s Office. The 

other two cases included a civil trial against a pro se prisoner and 

the trial defense of a so-called Bivens claim. I learned that approximately one-third of all the nominee’s civil cases were Bivens cases, 

which typically call upon a defending AUSA like Mr. Bunning to 

routinely litigate similar defenses in each case. Additionally, I was 

told that many of the other civil cases involved federally detained 

mental patients who had guardians ad litem appointed when the 

patients refused prescribed drug treatments. These cases, while 

certainly significant to the litigants involved, do not represent the 

type of cases which readily prepare one for a Federal docket. 

While his criminal experience takes him to court regularly and 

he has concluded 18 trials to verdict, the cases were not of the type 

1102

that called for particularly challenging lawyering. During the 

course of the investigation, it was pointed out by several 

interviewees that the Covington office of the United States Attorney’s Office is a satellite office and, therefore, does not get the more 

significant criminal cases. 

Further, there is no evidence that Mr. Bunning received direct 

supervision or constructive criticism of his work sufficient to contribute to his professional development as a lawyer. During my investigation, I determined the nominee has learned and gained experience on his own. The nominee told me that, ‘‘he is pretty much 

on his own,’’ and he told me his boss believes in a hands-on approach to supervision. 

A review of the—

Chairman LEAHY. Hands on or hands off? 

Mr. WEINER. Did I say hands on? I apologize, Mr. Chairman. 

Thank you for listening. 

Chairman LEAHY. I had read your testimony earlier. That is why 

I was—

Mr. WEINER. Thank you for listening so carefully. I appreciate it. 

A hands-off approach to supervision. 

A review of the legal writings he submitted found them to be sufficient from a legal standpoint. Yet, the issues addressed were routine and not complex and the writing style was plain. They revealed little advocacy or elegance, and to me, they read much like 

the work of a young associate in our firm. 

The nominee’s lack of academic achievement was another limiting factor. The nominee attended the University of Kentucky for 

both his undergraduate and law school degrees. Although the university is a fine institution, its law school is not highly ranked. 

Thus, the nominee’s middle-of-the-class law school record does not 

speak well for him. It is also not a plus that the nominee did not 

engage in any professionally oriented extracurricular law school activities, such as moot court or law review. 

The nominee’s age is a concern only so far as it reflects the quality and scope of his professional experience. One might fairly ask 

whether a 35-year-old could be qualified to sit as a Federal judge. 

I am not alone on the Committee in my belief that there are 35-

year-olds with ten years of experience who have the professional 

competence to so serve. Our Committee’s belief, however, is that 

Mr. Bunning is not one of them. Yet, and I emphasize this, neither 

his age nor his lack of 12 years’ experience are the determining factors. Rather, it is a combination of average academics, limited civil 

experience, repetitious and routine criminal matters, writings 

which, in my words, ‘‘just do the job,’’ serious doubts by respected 

members of the bench and bar, and no intellectual spark or legal 

enthusiasm that carry the day for our Committee. 

For our Committee to rate a nominee as ‘‘qualified’’ for a lifelong 

appointment to the bench, a majority of us must find the nominee 

meets, and these are our standards, very high standards with respect to integrity, professional competence, and judicial temperament, and we must find that the nominee, ‘‘will be able to perform 

satisfactorily all the responsibilities required by the high office of 

a Federal judge.’’ With respect to this nominee, we respectfully subVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01114 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
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mit that we did not find that to be the case. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Mr. Trimmier, do you disagree at all with what Mr. Weiner has 

said? 

Mr. TRIMMIER. What Mr. Weiner has said expresses the view of 

the majority vote of the Standing Committee. Mr. Best, of course, 

is here and is in a position to respond to questions concerning his 

supplemental report. 

Chairman LEAHY. And that is the normal procedure, is it not, if 

there is a majority vote ‘‘not qualified,’’ to then seek a second person with experience in this type of investigation to do it? 

Mr. TRIMMIER. Yes, that is correct, Senator Leahy. I am not 

aware of any exception, that is, where the Standing Committee has 

ultimately concluded with a rating of ‘‘not qualified’’ where there 

has not been a supplemental investigation. 

Chairman LEAHY. And when that happens, I assume there are 

some cases where they come back with exactly the same results. 

Other times, as with this with Mr. Best, a different result, am I 

correct in that? 

Mr. TRIMMIER. That is also correct, Senator. 

Chairman LEAHY. Now, Mr. Weiner, I would ask you, during the 

course of your investigation, you mentioned you spoke to a very 

large number of people. Did that also include the people who are 

going to appear in the next panel? 

Mr. WEINER. Yes, it did, Mr. Chairman. I think I spoke to each 

one of the three judges and the former—the current U.S. Attorney 

and former boss of Mr. Bunning. 

Chairman LEAHY. And they take a differing view than the majority view from the ABA Standing Committee, is that correct? 

Mr. WEINER. I do not think I asked each one of them whether 

they felt he was qualified or not, but I got their views on the three 

areas that we look at. 

Chairman LEAHY. I do not want you to have to repeat exactly 

what they say or put words in their mouth, because they are going 

to testify, but like your testimony, I read it and I think it is safe 

to characterize it as saying they feel Mr. Bunning is qualified. 

Mr. WEINER. I think that is a fair assumption. 

Chairman LEAHY. Mr. Best, let me ask you again, and you referred to it in testimony, just so I understand, what percentage of 

the time do you come back with a ‘‘not qualified’’? I am thinking 

back for years, of course, the White House would ask you your 

opinion, your, the ABA’s opinion, prior to making the name public, 

prior to sending a name up here. Obviously, now the name is sent 

up then the ABA report is done. It is easy for us on the Committee 

to know what percentages come out ‘‘qualified’’ or ‘‘not qualified.’’ In the past, how often is it that a nominee being looked at by the 

ABA prior to their name coming up here, what percentage would 

you give a non-qualified? 

Mr. TRIMMIER. Mr. Chairman, I do not have a memory that goes 

back much beyond the Clinton administration because I became a 

member of the Committee in 1996. I do have some information on 

that. My understanding is that the ABA Standing Committee found 

four potential nominees ‘‘not qualified’’ during the Clinton adminisVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01115 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1104

tration, one of whom withdrew. The other three were presented to 

this Committee with the ABA recommendation and they were confirmed. 

Chairman LEAHY. Thank you. And Mr. Best, that was basically 

my recollection, too, and I just wanted to make sure I was right 

on this. It is relatively rare, though, I think you all three would 

agree, when you have a ‘‘not qualified’’ finding, is that correct? 

Mr. TRIMMIER. That is correct. 

Chairman LEAHY. In all your experience? 

Mr. WEINER. Yes. 

Mr. BEST. Yes. 

Chairman LEAHY. Mr. Best, do you consider it a significant thing 

when the ABA comes up with such a rating? I mean, you have been 

at this for a long time. 

Mr. BEST. It is unusual. I am not sure it is significant, but it certainly is unusual. 

Chairman LEAHY. Well, you have reviewed these findings. We 

have also heard testimony that when this subsequent review, and 

I think this is a very good practice on the part of the ABA, if they 

come up with a finding of ‘‘not qualified’’ to have a subsequent review done, and the testimony is that the subsequent, separate review often finds the same result. 

In this case, you found a different result. You found Mr. Bunning 

was ‘‘qualified’’ to receive a lifetime appointment as a Federal 

judge. What was it that you saw differently than what the other 

Committee did? 

Mr. BEST. Let me correct a misapprehension. 

Chairman LEAHY. Certainly. 

Mr. BEST. I have done three supplemental investigations in the 

last 12 years. In each of those cases, my result was different from 

the report, the initial report of the investigator, and in two of those 

three instances, the Committee voted consistent with my report 

and recommendation. 

Chairman LEAHY. So the fact that you were doing a subsequent 

one, of course, would indicate that they had first found a majority 

‘‘not qualified.’’ You came back and found ‘‘qualified.’’

Mr. BEST. An initial investigative report was made recommending that the individual be found ‘‘not qualified.’’ In the days 

when the Department of Justice considered them and before the 

Committee did, they were afforded the opportunity for a second report. They always requested the second report, and— Chairman LEAHY. Then to return to my basic question, though, 

what is it you find different? 

Mr. BEST. About this candidate? 

Chairman LEAHY. Why do you come out with a conclusion different than the ABA Standing Committee did? 

Mr. BEST. Let me start, then, with what I did, and if I may, I 

have a page-and-a-half brief preferatory statement which would 

form the content of what I am going to say. With your permission, 

let me read that. 

Chairman LEAHY. I do not think anybody would object. You go 

ahead. 

Mr. BEST. Thank you very much, Mr. Chairman, and I want to 

thank you for the opportunity of providing these brief remarks. 

1105

I have practiced trial law in the District of Columbia for over 40 

years. I am a Fellow of the American College of Trial Lawyers, and 

early in my career, I, too, was an Assistant United States Attorney 

and I, too, worked until three o’clock in the morning and then went 

to trial the next day. 

Chairman LEAHY. I might say that most of the staff here, Republican and Democratic, especially in the last few months, have been 

doing exactly the same thing. Go ahead. 

Mr. BEST. Then there is no difference amongst us. We are all 

brothers in the labors. 

My resume has been submitted to the Committee as part of my 

written remarks. 

I have been a member of the American Bar Association for over 

25 years and have served as the Chairman of the Standing Committee on the Federal Judiciary in the 1996–1997 term. I was also 

a member of the Committee before that, from 1989 to 1992. 

In the course of my service, I have conducted numerous investigations of candidates for Federal judicial office. On several occasions, I have conducted what is known as a supplemental investigation after an initial investigative report has preliminarily found 

a candidate to be ‘‘not qualified.’’ In September of this year, I was contacted by the present Chair 

of the Committee, Roscoe Trimmier, Jr., and asked to undertake a 

supplemental investigation of David L. Bunning. I agreed to do so. 

I read the initial report prepared by David C. Weiner and the questionnaire completed by Mr. Bunning. I read the legal writings submitted by Mr. Bunning and then contacted Mr. Bunning, identified 

myself, and had him provide me with the names of additional witnesses. 

I conducted interviews of approximately 20 witnesses and personally interviewed Mr. Bunning in Northern Kentucky. I also consulted with several colleagues for their inputs, and I will get into 

that. 

After the consideration of all of the information, I recommended 

to the Standing Committee that Mr. Bunning, who stands nominated for the United States District Court for the Eastern District 

of Kentucky, be rated ‘‘qualified.’’ In my view, he had demonstrated 

the requisite integrity, temperament, and professional competence 

for the high office for which he had been nominated, and now let 

me answer the questions with regard to my determination that Mr. 

Bunning is ‘‘qualified.’’

When I read the report of Mr. Weiner and read the personnel, 

the completed personnel report that Mr. Bunning had prepared, 

there were several questions that I had that I had to deal with. 

One, it seemed to me that many of the witnesses who were asked 

about Mr. Bunning were not aware of his civil trial experience and 

there was no witness that stood with regard to that information. 

So I received from Mr. Bunning information of several witnesses 

who could give me information on that basis. 

There was also another problem, it seemed to me, and that is 

there was what I would call background chatter in the investigation. There were several distracting issues that were raised, one of 

which was annoyance that a United States Senator would assist in 

the nomination of his son for an office, a judicial office. Two, a real 

1106

sense that there was a better candidate for the vacancy, the ideal 

53-year-old State court judge who deliberated like Solomon who we 

all want to have on the Federal bench. And the third thing was the 

notion, why does a 35-year-old have any place on the Federal 

bench? 

It seemed to me that those were distractions because it distracted you from the main issue, which was whether this candidate 

was ‘‘qualified,’’ or in the terms of this Committee, whether he had 

the professional competence, the judicial temperament, and the integrity to deal with that. 

Chairman LEAHY. But, if I might, the 35-year-old is not a restriction in the U.S. Senate. We have a constitutional age of 30. But 

there has been this usual rule of thumb in the ABA of 12 years. 

Mr. BEST. There is—

Chairman LEAHY. Now here you have ten years, so there must 

have been something in his record that would have you overturn, 

in your own mind, that usual rule of thumb. What was it that 

stood out? I understand what you are saying about the perfect candidate, whoever that might be. 

Mr. BEST. Yes. 

Chairman LEAHY. But this is, after all, still the prerogative of 

the President, whomever he appoints. It is our duty to advise and 

consent, but what was it that stood out that took him out of that 

12-year presumption? 

Mr. BEST. I will answer that, Mr. Chairman. I spoke with many 

people who had information with regard to his experience in civil 

trial, and I spoke to others that had experience in criminal trial. 

Everyone that I spoke to, with one exception, believed that he had 

the professional competence to perform as a Federal judge. 

He had, as an Assistant United States Attorney, spent an enormous amount of time and detail in learning his craft. He had 

worked—he regards himself as a workaholic. Those around him regard him with considerable respect. He stands above the crowd. 

That is the message that comes through from all of the interviews 

that I undertook. 

And then when I spoke with him, and before I spoke with him, 

I had to deal in my own mind with the notion, can someone who 

has only been in the United States Attorney’s Office and has not 

served in a civil practice or a private practice in the United States, 

can he perform the function of a Federal judge? 

Fortunately, I did an investigation of someone similarly situated, 

and I called a sitting Federal judge who had been an Assistant 

United States Attorney for a number of years and I asked him. I 

told him my circumstances. I did not identify the candidate. And 

I asked him, can he function as a Federal judge, and the answer 

was a resounding yes. There is no problem about it. The judge told 

me that he had immediately moved onto the bench easily. He knew 

the nuts and bolts of the system. And he said, ‘‘Judd, the thing that 

you have to look at is not whether or not he can deal on a dayto-day basis, but what is his maturity, because you have to look at 

the person rather than use such statements as 12 years or 35 years 

of age—’’

Chairman LEAHY. But Mr. Best, the maturity could be set, of 

course, on anybody, but you are still talking about a very complex 

1107

area if you are going to be a Federal judge. For example, you are 

talking about a Federal judge for the Eastern District of Kentucky. 

Suppose we were talking about a Federal judge for the Southern 

District of New York, Central District of California, very, very complex districts, certainly far more than, for example, we would see 

in my own State of Vermont. Would you feel the same way? Would 

you still say ‘‘qualified’’? 

Mr. BEST. I am not sure that I would. I am not sure that I would. 

I focused in terms of whether he would be qualified for the Eastern 

District of Kentucky, and in my judgment, he would be qualified. 

I think, given the character of the cases that are presented in that 

court, and given his experience in dealing with it and his reputation—his reputation is a very important thing, reputation among 

the lawyers in the community—it seemed to me that he satisfied 

the requirements. 

Chairman LEAHY. Mr. Best, you are an extraordinarily wellqualified lawyer. You have been involved in everything from defending Spiro Agnew to defending people in the Watergate era to 

currently probably one of the best known names in lawyers here 

in Washington, D.C., so I ask you this question. In your opinion, 

should this Committee consider judicial nominees of varying qualities depending upon where they are going? It is not a trick question 

by any means. I am just curious. I have asked the same question 

of a number of lawyers in the past, at least privately. Does this 

Committee, when looking at District judges, have a different standard depending upon what district they are going to serve in, and 

should we? 

Mr. BEST. My view of it is that you look at the candidate and 

determine whether he can do a job as a judge in the district to 

which he has been nominated. Lawyers and judges do not like 

hypotheticals. What would he do in New York? I really did not consider what he would do in New York. I dealt with what he would 

do in the Eastern District of Kentucky. 

One of the important considerations is the position of the U.S. 

Attorney during the eight or nine years of Mr. Bunning’s tenure, 

ten-year tenure in that office. I feel at ease in relating his view, 

because he has said these things publicly and he will testify here 

today. He says he is abundantly qualified and that his capabilities 

are perhaps five or six times the experience of a civil practitioner, 

a private practitioner in that area. 

And so I believe, given all that we know about this candidate and 

the fact that he has demonstrated the maturity of a much older 

person—he is 35 going on 50—it seems to me that he will be a very 

valuable addition to the bench in this jurisdiction, and those are 

the reasons that I concluded that he was qualified. 

Chairman LEAHY. Mr. Weiner, you have heard Mr. Best, and I 

am sure you have had a chance to read his report. You have also 

heard Mr. Bunning here today. Have you heard anything that 

changes your opinion? 

Mr. WEINER. No, Mr. Chairman. I very seriously considered Mr. 

Best’s report before finalizing my report because I do have a lot of 

respect for Judd. He has been doing this for the Committee a long 

time, a little longer than I have. I think this is an issue that two 

reasonable people could disagree on, but I looked very carefully at 

1108

all the evidence that I found in this investigation, carefully reviewed the writings, carefully reviewed my interviews with the 

lawyers and the judges I talked to, my interview with Mr. 

Bunning, and I like the man. 

I wish, in many respects, I wish that my decision had been different and our Committee’s decision was different, but on the facts 

and on the merits, you have to sort of call them as you see them 

and I called this one ‘‘not qualified.’’ Chairman LEAHY. Mr. Trimmier? 

Mr. TRIMMIER. Yes, Mr. Chairman. I, with some trepidation, 

would like just to state a point of disagreement with Mr. Best, I 

suppose at my peril. 

Chairman LEAHY. Do not feel bad. Disagreements go back and 

forth on this panel all the time and we still serve together. 

[Laughter.] 

Mr. TRIMMIER. The reason I say that is, of course, Mr. Best was 

Chair of this Committee when I first became a member in 1996 

and essentially taught me what I purport to know today about its 

procedures. But the ‘‘Backgrounder’’ and the standards that this 

Committee uses do not make allowances for any differences among 

the various circuits or the judicial districts in which a nominee has 

been nominated. 

The Committee is asked to review qualifications of nominees and 

only recommend those who meet the very high standards of the 

Committee to a ‘‘well qualified’’ or ‘‘qualified’’ rating and it is not 

with regard to the district to which they are to be appointed. 

Chairman LEAHY. Thank you. 

Mr. BEST. May I add a comment? 

Chairman LEAHY. Mr. Best? 

Mr. BEST. I think it is an unfair formulation because each candidate is born of the experience that he has acquired during his 

tenure either in the U.S. Attorney’s Office or in private practice. 

The notion of taking a ‘‘well qualified’’—I am not using it as a term 

of art, Dave—‘‘well qualified’’ Assistant United States Attorney in 

the Eastern District of Kentucky and saying, well, would he be 

qualified in the Southern District of New York, is a totally, it 

seems to me, unfair one. 

I understand why you have raised it, Mr. Chairman, but I think 

that insofar as I am concerned, he is qualified for the position that 

he has been nominated to. Anything more than that is really a 

matter of speculation. 

Chairman LEAHY. Thank you. 

Senator McConnell? 

Senator MCCONNELL. Thank you, Mr. Chairman. 

I spent the weekend going over the memoranda and testimony 

and thought I would spend a lot of time with you, Mr. Best, but 

I think you have pretty well covered the subject in extraordinary 

detail, so let me turn to Mr. Weiner. 

First, Mr. Weiner, I would not hold my breath on being invited 

to address the UK Law School Alumni Association. 

[Laughter.] 

Chairman LEAHY. This from the ‘‘well qualified’’ Senator from 

Kentucky. 

[Laughter.] 

1109

Senator MCCONNELL. Let me just touch on one area. It seemed 

to have been important to you, this whole business of supervision 

which you emphasized in your report. I mean, I realize it is the 

ABA’s policy not to divulge the comments of any person it interviews. I have concerns about that policy, but I will not ask you to 

violate it. 

In order for our Committee to give the ABA’s opinion any sort 

of weight, however, I need to know whether you interviewed Mr. 

Bunning’s supervisor for the last six years, Mr. E.G. Walburn, not 

what you talked about, but did you interview him? 

Mr. WEINER. If I could have a minute, I may be able to answer 

that. 

Senator MCCONNELL. While you are looking, let me just say it is 

my understanding that you did not, but obviously you can speak 

for yourself. 

Mr. WEINER. Well, I respect if you have talked to Mr. Walburn 

and he said I had not, or Ms. Walburn, I am sure I did not, then. 

Senator MCCONNELL. I do not want to belabor the point, but to 

the extent that the supervision issue was significant, it just seemed 

to me that speaking with Mr. Bunning’s supervisor might have 

been appropriate. 

Mr. WEINER. I think if he had been identified to me as Mr. 

Bunning’s supervisor, I would have, in normal course, have tried 

to reach the person. I usually do. I did talk to his top supervisor. 

I think on that issue, Senator, any one of these factors that I talk 

about, and I guess you cannot help but describe them as negatives, 

although that was not the intention, I was looking in doing this investigation to find things of an extraordinary nature which would 

put a person who has been only out ten years of law school, not 

up to our 12-year normal standard, up to that level. I was looking 

for some pluses. 

The fact that you do not get—and the candidate told me himself 

that he was pretty much on his own, and if you do not get supervision, you do not get people who are editing your work and testing 

your thinking process and all the stuff that goes with maturity in 

that way. I mean, that may not be the only way you could do it. 

Obviously, by doing things yourself, you do learn a lot, and sometimes you learn from mistakes and sometimes you replicate the 

mistakes. I am not voicing a view on that either way. But lack of 

supervision is not a plus in my mind and the Committee’s mind. 

Senator MCCONNELL. My only thought about that is to the extent 

that supervision was an issue, it seems to me talking to the supervisor for six years might have been appropriate in resolving that 

issue, but—

Mr. WEINER. I agree with you, but as I say, the candidate made 

it real clear to me how that came out, but I appreciate the point. 

Senator MCCONNELL. I think the opinion of the ABA is interesting and I particularly like having it in public open session, but 

we have heard from an awful lot of other people. Let me just read 

some excerpts. 

The current Attorney General of Kentucky, A.B. Chandler, III, a 

Democrat, said ‘‘David is an exceptionally knowledgeable, skilled, 

and hard-working lawyer. David is of the highest professional and 

personal character. He has an excellent reputation among his peers 

1110

and in his community. David’s intelligence, education, courtroom 

experience, and exemplary dedication to our Federal justice system 

have prepared him well to serve in the Federal judiciary.’’ Furthermore, the National Association of Assistant United States 

Attorneys conducted an investigation into the qualifications of Mr. 

Bunning for this position. The investigation included interviewing 

former U.S. Attorneys under whom Mr. Bunning served, Federal 

judges before whom Mr. Bunning has practiced, extensively, supervisors, colleagues, and members of the law enforcement community. 

Mr. Bunning has been actively engaged in litigation of civil and 

criminal cases and amassed a vast amount of practical Federal litigation experience which is unparalleled in the private sector. Finally, our investigation revealed that Mr. Bunning is uniformly 

viewed as an ethical, even-tempered, and objective attorney and 

professional and skillful advocate. 

Further, the past President of the Kentucky Bar Association, 

William Robinson, after noting that he is a lifelong registered Democrat, said, ‘‘David Bunning has demonstrated that he has the 

character, integrity, and intellect to meet and exceed the rigorous 

demands of a Federal judge. His work in the Federal Courts is 

widely respected. His record of success as a litigator speaks for 

itself.’’ Let me just sum up by saying this. We appreciate the views of 

the ABA, although they are divided. One investigator reached one 

conclusion, another investigator reached a different conclusion. And 

we have in juxtaposition to that, we are going to hear from shortly 

three Federal judges, a former U.S. Attorney for whom Mr. 

Bunning directly worked, and a ream of evidence from those who 

have had direct experience with him. And so we appreciate your effort, but it seems to me, gentlemen, that there is substantial evidence of David Bunning’s qualification to be a Federal District 

judge. 

I thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Gentlemen, I thank all of you. I do appreciate the role the ABA 

plays. I have been on this Committee for a quarter of a century 

now. I have probably read more ABA reports than any of you, or 

any of you would ever want to. I find it helpful. I also know the 

enormous amount of time you all give to this process. 

I am not sure what determined the decision at the White House 

to break the tradition going back to President Eisenhower of using 

the ABA prior to names coming up here. Of course, the President 

has an absolute right not to, but it is a fact, no matter which party 

was in control of the Senate, that we would still ask the ABA to 

do this background. It is helpful. 

I appreciate your time. I appreciate all of you coming here. Mr. 

Best had the shortest trip uptown, but I know that travel is not 

the easiest these days, for any of us, I might add, so thank you 

very much for being here. 

Mr. TRIMMIER. Mr. Chairman, could I just ask for your indulgence for a few minutes— Chairman LEAHY. Of course. 

Mr. TRIMMIER. —because there are a couple of points I think I 

need to make in clarification. 

1111

Chairman LEAHY. Of course. And also, I should note, the record 

will stay open to add to it, but please, go ahead, sir. 

Mr. TRIMMIER. In connection with this investigation, first of all, 

I want to make it clear that the Committee members did not receive anything until both the formal report and the supplemental 

report were completed. I was the only one, other than my distinguished colleagues to the left, who had any knowledge about the 

investigation until both reports were completed and simultaneously 

sent to the Committee. 

Chairman LEAHY. I see. 

Mr. TRIMMIER. There was no preliminary vote. The only vote was 

the vote that was taken subsequent to the Committee’s receipt of 

both reports. 

Chairman LEAHY. That is a good point. 

Mr. TRIMMIER. I will also acknowledge to Senator McConnell that 

this is a matter about which reasonable people might differ, and 

in many respects it is a judgment issue. We have two distinguished 

practitioners here who reached different conclusions. The Committee vote was close. 

We have provided this service for 50 years as merely another 

point, a data point, if you will, an input to this Committee. This 

Committee and its Senate colleagues have the constitutional duty 

to weigh all of these considerations, including our input along with 

everything else, in making a decision as to whether or not to confirm a nominee. 

Let me also apologize and defend my good colleague, Dave 

Weiner, because of, in fairness, what might have been misconstrued as a statement about the University of Kentucky Law 

School. I read his comment not as a disparagement of that law 

school or its many distinguished graduates. 

The rule that we use, the so-called 12-year rule, is one that, for 

us, raises the level of scrutiny to a higher level so that we look for 

extraordinary circumstances and distinguished professional accomplishment in a nominee in order to offset what may be fewer years 

of experience than the ABA would ordinarily like to see. 

I think what Mr. Weiner was saying was that there were none 

of those compensating factors, such as a distinguished academic 

record, participation on law review, and other extra-curricular activities at the University of Kentucky that would have swayed him 

or persuaded him to vote another way. It was not, I do not think, 

intended as any personal disparagement or any disparagement of— Senator MCCONNELL. He is pulling you out of the hot water here, 

Mr. Weiner. 

[Laughter.] 

Mr. WEINER. I do not think I have a chance of being asked—

Chairman LEAHY. I was going to say, this Georgetown Law 

School graduate is not going to get involved in this one one way 

or the other, but then I am not up for a judgeship, so—

[Laughter.] 

Mr. TRIMMIER. One final point, and I am sorry that Senator Kyl 

is not here. He correctly predicted that someone would seek to defend the ABA against a claim of bias or elitism, I think it was. I 

am not, and I do not consider myself to be a leader of the ABA. 

I am a Chair of this Committee and I spend a good bit of my time 

1112

insulating this Committee and its work from the leadership of the 

ABA, but I would like to say this. 

The members of this Committee are diverse. Their backgrounds 

are diverse. The nature of their practices are diverse, some from 

large firms, some from medium-size firms, some from small firms. 

We have members who graduated from State law schools. We have 

those who graduated from Ivy League law schools. 

My job as a part of the process of this Committee is to try to ensure that no bias of any source in any direction interferes with the 

objective determination of professional competence, judicial temperament, or integrity. I just do not think it exists within this 

Committee. The Committee members are rotated. Approximately 

one-third of the Committee is replaced each year by each incoming 

President so as to provide that kind of turnover. I am careful to 

scrutinize preliminary reports to see if there is any indication of 

bias or elitism at all. 

My own background is one of modest means. I grew up in Charlotte, North Carolina, and I came through a segregated school system and I was fortunate enough to go to Harvard College and Harvard Law School. I think I can recognize elitism when I see it. I 

reject it, and I do not see it and I did not see it in the conduct of 

this investigation. 

Chairman LEAHY. Thank you. 

Senator MCCONNELL. Mr. Chairman, at the risk of wearing out 

my welcome with you, just let me say, I appreciate your observations and your concession that the business of rating people is, in 

fact, an imprecise—I mean, it is very hard to do that with precision. As has been previously pointed out, three judges during the 

Clinton years who were rated unqualified by the ABA were subsequently confirmed, and according to a 1997 National Law Journal 

article, ‘‘ABA’s ‘unqualified’ Judges Doing Well.’’ They are apparently doing just fine. 

During the Reagan years, the ABA gave partial—partial—‘‘not 

qualified’’ ratings to several nominees, which certainly proved the 

point that it is an imprecise activity. Richard Posner, the former 

Chief Justice of the Seventh Circuit Court of Appeals and the one 

person whom the Reno Justice Department chose to mediate the 

Microsoft case because of his nearly unparalleled expertise in antitrust law, Justice Bresnan described Judge Posner as ‘‘one of the 

two true geniuses’’ he had met, and the American Lawyer said, 

‘‘could be the most influential legal scholar and the most brilliant 

judge in the country.’’ Members of your Committee, however, did 

not think so. He received at least a partial ‘‘not qualified’’ rating. 

Judge Posner’s colleague on the Seventh Circuit, Judge Frank 

Easterbrook, was described in an article in the National Law Journal as having, ‘‘an absolute iron grip on case law, on statutes, on 

everything. He knows the law in a way I do not think any other 

man in this country can.’’ The ABA, however, gave him a partial 

‘‘not qualified’’ rating. 

And the American Lawyer said of Judge Michael Luttig of the 

Fourth Circuit Court of Appeals that he is a nationally recognized 

jurist. The ABA recognition of him, however, consisted of a partial 

‘‘not qualified’’ rating. 

1113

I say all of this not to attack you guys, but just to make the point 

that it is a tough thing, this business of rating potential jurists, 

and sometimes you do not get it exactly right. What we are hoping 

to demonstrate here today is in the case of David Bunning, the second evaluation was a good deal more accurate than the first. I 

thank you very much. 

Chairman LEAHY. I would note that the Chairman does not consider these opinions either to be biased or elitist. I am most appreciative of the ABA in doing this. In my 25 years on this Committee, 

I have often agreed, sometimes disagreed with the ABA. I have always found it to be helpful, even in those cases where I have disagreed. 

Gentlemen, you have done a good service to the bar, all three of 

you, and to this Committee, and I do appreciate you being here. 

Thank you. 

Mr. TRIMMIER. Thank you very much, Mr. Chairman. 

Mr. WEINER. Thank you. 

Mr. BEST. Thank you. 

[The prepared statement of Mr. Trimmier and Mr. Weiner follows.]

STATEMENT OF ROSCOE TRIMMIER, JR., DAVID C. WEINER, COMMITTEE ON FEDERAL

JUDICIARY, AMERICAN BAR ASSOCIATION, ON THE NOMINATION OF DAVID L. 

BUNNING TO BE JUDGE OF THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT

OF KENTUCKY

Mr. Chairman and Members of the Committee: 

My name is Roscoe Trimmier. I a practicing Lawyer in Boston, and I am the 

Chair of the American Bar Association’s Standing Committee on Federal Judiciary. 

With me today is David C. Weiner, the Committee’s Sixth Circuit representative 

and principal investigator for the investigation, and Judah Best, a former Committee member and Chair of the Committee who acted as the second investigator 

in this case. We appear here to present the view of the Association on the nomination of David L. Bunning to be a U.S. District Court judge for the Eastern District 

of Kentucky. After careful investigation and consideration, including an evaluation 

of his written submissions, a majority of our Committee is of the opinions that Mr. 

Bunning is ‘‘Not Qualified’’ for the appointment. A minority found him to be ‘‘Qualified.’’

I. PROCEDURES FOLLOWED BY THE STANDING COMMITTEE

Before the specifics of this case, I would like to review briefly the Committee’s 

procedures so that you will have a clear understanding of the process the Committee’s followed in this investigation. A more detailed description of the Committee’s 

procedures is contained in an ABA booklet entitled ‘‘Standing Committee on Federal 

Judiciary: What It Is and How It Works’’ (July 1999). 

The ABA Committee investigates and considers only the professional competence, 

integrity and judicial temperament of the nominee. Ideological or political considerations are not taken into account. Our processes and procedures are carefully structured to produce a fair, thorough and objective evaluation of each nominee. A number of factors are investigated, including intellectual capacity, judgment, writing and 

analytical ability, industry, knowledge of the law, professional experience, character, 

integrity and general reputation in the legal community. 

The investigation is ordinarily assigned to the member of the Committee residing 

in the judicial circuit in which the vacancy exists, although it may be conducted by 

another member or former member. The starting point of an investigation is the receipt of the candidate’s responses to the public portion of the Senate Judiciary Committee Questionnaire. These responses provide the opportunity for the nominee to 

set forth his or her qualifications—professional experience, significant cases handled, major writings, and the like. The principal investigator personally conducts extensive confidential interviews with a broad spectrum of individuals who are in a 

position to evaluate the nominee’s professional qualifications and also examines the 

legal writings of the candidate. The principal investigator interviews the candidate 

1114

and discusses his or her qualifications for a judgeship, as well as the substance of 

adverse information raised during the investigation. The candidate is given a full 

opportunity to respond and to provide any additional information he or she may 

choose. 

Sometimes a clear pattern emerges in the interviews, and the investigation can 

be briskly concluded. In other cases, conflicting evaluations as to professional competence may be received, or questions may arise as to integrity or temperament. The 

principal investigator usually submits an informal report on the progress of the investigation to the Chair, providing a preliminary assessment of the nominee’s qualifications. In those cases where it appears that the preliminary assessment may be 

asked to come into the investigation and conduct the supplemental inquiries he or 

she feels appropriate and to make a recommendation. 

At the conclusion of all inquiries, a formal investigative report, containing a description of the candidate’s background, summaries of all interviews conducted (including the interview with the prospective nominee), an evaluation of the candidate’s qualifications and a recommended rating, is circulated to the entire 15-

member Committee together with the complete Senate Judiciary Committee questionnaire and copies of any other relevant materials. Any supplemental report is 

also provided to each Committee member. After Studying these materials, each 

member telephones a vote to the Chair, rating the nominee ‘‘Well Qualified,’’ ‘‘Qualified,’’ or ‘‘Not Qualified.’’ The votes are later confirmed in writing. 

An important concern of the Committee in Carrying out its function is confidentiality. The Committee seeks information on a confidential basis and assures its 

sources that their identities and the information they provide will not be revealed 

outside of the Committee, unless they consent to disclosure. It is the Committee’s experience that only by assuring and maintaining such confidentiality can sources 

be persuaded to provide full and candid information. However, we are also alert to 

the potential for abuse of confidentiality.The substance of adverse information is 

shared with the candidate, who is given full opportunity to explain the matter and 

to provide any additional information bearing on it. If that cannot be done, the information may not be relied upon by the Committee in reaching its evaluation. 

II. THE INVESTIGATION OF MR. BUNNING

Mr. Bunning was nominated on August 2, 2001. Mr. Weiner began his investigation shortly after receiving Mr. Bunning’s August 10, 2001 responses to the public 

portion of the Senate Judiciary Committee questionnaire. 

On September 12, 2001, Mr. Weiner prepared and submitted to me, as Chair of 

the Committee, an informal report that thoroughly presented the results of his investigation, summaries of all of his confidential interviews, a summary of his interview with Mr. Bunning, and a recommendation. Because the recommendation proposed was that Mr. Bunning be found ‘‘Not Qualified,’’ consistent with the Committee’s procedures, I appointed a second investigator, Mr. Judah Best, a former member and Chair of our Committee, Mr. Judah Best, to conduct a supplemental investigation. Mr. Best conducted confidential interviews with seventeen persons, some 

of whom Mr. Weiner had previously interviewed, and he, too, interviewed Mr. 

Bunning in his office on September 26, 2001. Mr. Best recommended that the Committee rate Mr. Bunning ‘‘Qualified.’’ On October 1, 2001, both Mr. Weiner’s formal report and Mr. Best’s supplemental 

report were transmitted to all of the members of the Committee. I encouraged Committee members who had questions for either investigator to contact them directly. 

After all of the Committee members had an opportunity to study both reports, and 

all the attachments, they reported to me their votes on the qualifications of Mr. 

Bunning. A majority of the Committee vote to find Mr. Bunning ‘‘Not Qualified’’ and 

a minority voted to find him ‘‘Qualified.’’ The vote was reported to you on October 

11, 2001. 

I will not ask Mr. Weiner to describe the conduct of his investigation and the 

basis of his recommendation, which the Committee adopted by majority vote. 

Mr. Best is also here to respond to any questions you may have regarding his supplemental investigation and his recommendation.

STATEMENT OF DAVID C. WEINER

f, COMMITTEE ON FEDERAL JUDICIARY, AMERICAN

BAR ASSOCIATION, ON THE NOMINATION OF DAVID L. BUNNING TO BE JUDGE OF

THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

Mr. Chairman and Members of the Committee: 

1115

My name is David C. Weiner. I am a trial lawyer from the State of Ohio, and 

have been practicing for 32 years. I am the Chairman of the Board of the 7th largest 

firm in Cleveland and a past Chair of the Litigation Section of the ABA. I earned 

my legal career down the street as a clerk for Senior Circuit Judge E. Barrett 

Prettyman of the U.S. Court of Appeals for the District of Columbia Circuit. 

As the Sixth Circuit member of the ABA Standing Committee on the Federal Judiciary, I conducted the initial investigation of the qualifications of Mr. David L. 

Bunning. I have been a member of the Standing Committee since 1997. I have participated in numerous investigations of potential and actual nominees to the U.S. 

Court of Appeals and the U.S. District Courts. I have done son both as the Committee person responsible for the investigation, and as a reviewer of investigations 

of conducted by fellow Committee members. My investigation of the nominee was 

conducted in the same manner all investigations by the Standing Committee are 

conducted, as Roscoe Trimmier just explained to you. 

My investigation was conducted during August and September of this year. It included over fifty confidential interviews with trial and appellate federal judges in 

the Sixth Circuit and Kentucky lawyers who know and have worked with the candidate, and who have direct knowledge of this professional qualifications, including 

those Mr. Bunning listed as references. I included among my interviews prominent 

members of the Kentucky trial bar. During each conversation I inquired how the 

person knew, if at all the nominee and what the person knew about the nominee’s judicial temperament, integrity and professional competence relevant to his being 

qualified to serve as a United States District Judge. I also inquired if they knew 

any reason why the nominee should not be qualified to so serve. 

In addition to these interviews, I reviewed other pertinent materials, including 

writing samples Mr. Bunning selected for me, such as legal briefs he had written. 

I also met privately with Mr. Bunning in his office in Covington, Kentucky, for nearly three hours. During the course of our meeting, concerns that had been identified 

during my investigation were discussed and the candidate was given an opportunity 

to provide additional information and to respond. 

Before reaching my recommendation, I reflected at some length upon our guidelines, which appear in a publication we refer to as the Backgrounder. In particular, 

I deliberated on the various duties and roles United States District Judges must 

perform on a regular basis, and the importance of that lifelong position. My recommendation was that the nominee be rated ‘‘Not Qualified.’’ I will shortly set out 

the reasons for this recommendation, but stress that I did not reach this conclusion 

lightly. 

Indeed, because my preliminary investigation resulted in a ‘‘Not Qualified’’ rec- ommendation, our Committee Chair called for a second investigation, which was 

conducted by a very distinguished member of the D.C. bar, Judah Best. I have 

known Mr. Best for decades and I have the highest regard for him. I carefully reviewed Mr. Best’s Supplemental Report, and Mr. Best and I discussed our respective 

views of the qualification of the nominee at length. We could not, however, reconcile 

our different views. 

After careful consideration of both our reports, along with the nominee’s Questionnaire, and the written submissions he had furnished, the majority of our Standing 

Committee was of the view that Mr. Bunning is ‘‘Not Qualified’’ for the position. A 

minority of the Committee found him to be ‘‘Qualified.’’

Our Committee takes most seriously its responsibility to conduct an independent 

examination of the professional qualifications of judicial nominees. There is no 

bright line litmus test as to whether a nominee is or is Not Qualified. Our recommendation is not the result of tallying the comments B pro and con B about a 

particular nominee. Rather, in making our evaluation, we draw upon our previous 

experience, the information and knowledge we gain about the nominee during the 

course of our investigation, and our independent judgment. I must stress that we 

apply the same standards and criteria impartially to all nominees. As you know, 

President Bush has submitted to the Senate the names of 64 nominees for judicial 

appointment, and our Committee has found only this one candidate to be ‘‘Not 

Qualified.’’

At the outset, let me state that as to two of our three criteria, little was brought 

out during the course of our investigation to question the nominee’s integrity, and 

his judicial temperament was found likely to be satisfactory. There was no question 

that the nominee is a good person with strong family and religious ties, is a diligent 

worker (he told me that he regularly works from 8:00 a.m. to 5:00 or 6:00 p.m. 

daily), and is generally well-liked. I should also say that he has been cordial and 

respectful toward me throughout this process. 

Rather, our conclusion that the nominee should be rated ‘‘Not Qualified’’ is based 

on several, serious concerns relating to his competence. Our Backgrounder states 

1116

that professional competence encompasses such qualities as intellectual capacity, 

judgment, writing and analytical ability, knowledge of the law and breadth of professional experience. There should be, we believe, strong evidence that the nominee 

is professionally competent to manage and resolve the hundreds of diverse matters 

a federal judge is likely to face. Some of those matters call upon a federal judge to 

resolve very complicated and challenging factual and legal issues, which may well 

have far-reaching and lasting effects on numerous people. A judge regularly must 

make on-the-spot decisions in the courtroom that require a solid grounding in procedural and substantive law across a broad spectrum. Using that as a guide, we 

looked at the total experience of the nominee. 

Evidence of competence is the strongest and easiest measure when the lawyer has 

practiced law for a number of years. Bases on the Committee’s long-time experience 

with investigating nominees, twelve years is what we think to be an appropriate 

minimum, absent extraordinary circumstances. A lawyer with this amount of experience is found more likely to have been exposed to a broader spectrum of legal 

issues and acquired more sophisticated responsibilities and perspectives than one 

lacking such experience. We believe that the judicial system, the public, the trial 

bar and the nominees are not well served by placing on the bench one with less 

than such minimum experience. 

The 12-year experience guideline in not a hard-and-fast rule, and is not an automatic disqualified. The Committee’s criteria provide that limited experience may be 

offset by the extraordinary breadth and depth of a nominee’s experience over the 

course of his or her career. Nominees with less than twelve years at the bar have 

been found qualified by our Committee, albeit rarely. 

Mr. Bunning’s civil case experience, however, is very limited and shallow. It includes no exposure to, let alone experience in, complex civil matters that regularly 

find their way to federal district courts. In response to the senate Questionnaire’s 

inquiry about the ten most significant litigated matters personally handled by the 

nominee, Mr. Bunning listed only three civil cases. One was a case dismissed on 

a motion written by the nominee while he was still a law clerk in the U.S. Attorneys 

Office. The other two civil cases, included a civil cases were Bivens cases, which 

typically call upon a defending AUSA like Mr. Bunning to routinely litigate similar 

defenses in each case. Additionally, I was told that many of the other civil cases 

involved federally detained mental patients who had guardians ad litem appointed 

when the patients refused prescribed drug treatments. These cases, while significant to the litigants involved, do not represent the type of cases which readily prepare one for a federal court docket. 

While his criminal experience takes him to court regularly and he has concluded 

eighteen trials to verdict, the cases were not of the type that called for particularly 

challenging layering. During the course of the investigation, it was pointed out by 

several interviewees that the Covington office of the United States Attorney’s office 

is a satellite office and therefore, does not get the more significant criminal cases. 

Further, there is no evidence that Mr. Bunning received direct supervision or constructive criticism on his work sufficient to contribute to his professional development as a lawyer. During my investigation, I determined that the nominee has 

learned and gained experience on his own. The nominee told me that ‘‘he is pretty 

much on his on,’’ and he told me his boss believes in a hands-off approach to supervision. 

A review of the legal writings he submitted found them to be sufficient from a 

legal standpoint. Yet, the issues addressed were routine and not complex, and the 

writing style was plain. They revealed little advocacy or elegance, and to me they 

read very much like the work of a young associate in our firm. 

The nominee’s lack of academic achievement was another limiting factor. The 

nominee attended the University of Kentucky for both his undergraduate and law 

school degrees. Although the University is a fine institution, its law school is not 

highly ranked. Thus, the nominee’s middle-of-the-class law school record does not 

speak well for him. It is also not a plus that the nominee did not engage in any 

professionally oriented extra-curricular law school activities, such as Moot Court or 

Law Review. 

The nominee’s age is a concern only insofar as it reflects the quality and scope 

of his professional experience. One might fairly ask whether a 35-year old could be 

qualified to sit as a federal judge? I am not alone on the Committee in my belief 

that their are 35-years olds with ten year of experience who have the professional 

competence to so serve. Our Committee’s belief, however, is that Mr. Bunning is not 

one of them. Yet, neither his age nor his lack of twelve years experience are the 

deterring factors. Rather, it is a combination B average academics, limited civil experience, repetitious and routine criminal matters, writings which ‘‘just do the job,’’

1117

serious doubts by respected members of the Bench and Bar, and no intellectual 

spark or legal enthusiasm that carry the day for our Committee. 

Four our Committee to rate a nominee as ‘‘Qualified’’ for a lifetime appointment 

to the bench, a majority of us must find that the nominee meets ‘‘very high standards with respect to integrity, professional competence and judicial temperament,’’

and we must find that the nominee ‘‘will be able to perform satisfactorily all of the 

responsibilities required by the high office of a federal judge.’’ With respect to this 

nominee, we do not find that to be the case.

Chairman LEAHY. I would note that we would normally have 

started our hearing by going to Federal judges and former U.S. Attorneys first. This is not quite in the nature of our normal hearings 

and I appreciate all of you for bearing with us. I know from Senator McConnell and Senator Bunning that you were willing to come 

up here. What I have tried to do, as I said in the beginning of this 

hearing, in fact, arrange to be here rather than in Vermont today 

so I could do this. 

Without sounding parochial, as much as I love the City of Washington, and it is a beautiful city and it is something everybody 

should visit and it is a city of which we can be proud that this is 

our nation’s capital, my native State of Vermont appeals to me 

even more. So I appreciate you coming up here from the Commonwealth. 

Judge Wilhoit, Judge Forester, Judge Hood, and Mr. Famularo, 

I appreciate all of you being here. We have your written statements. Feel free to say whatever you wish and then we might go 

into some questions. 

Judge you took senior status at the end of last year, am I correct 

on that? 

Judge WILHOIT. That is right, January 1. 

Chairman LEAHY. The same Judge Bertelsman in February of 

this year. 

Judge WILHOIT. Yes, sir. 

Chairman LEAHY. I have to tell you, I do not know what we 

would do without all the senior judges who have filled in, I think 

in the Southern District of California and a lot of other parts of 

this country where we have been trying to fill vacancies for the last 

several years. If it had not been for senior judges, the court system 

would come grinding to a halt. But I also appreciate you taking the 

time to be here, so Judge, why do you not begin. 

STATEMENT OF HON. HENRY R. WILHOIT, JR., SENIOR DISTRICT JUDGE, UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF KENTUCKY, ASHLAND, KENTUCKY 

Judge WILHOIT. Mr. Chairman and Senator McConnell, if it 

would please the Committee, I would like to simply file my statement with the Committee and let it be made a part of the record 

and then just take two or three minutes to discuss what I really 

believe to be the highlights of this hearing, if that would be agreeable with the chair. 

Chairman LEAHY. Certainly. 

Judge WILHOIT. Senator, I cannot tell you what a pleasure it is 

to be invited back up here after all of these years. The last time 

I was here, Senator Leahy, you were over here in the cheap seats. 

[Laughter.] 

1118

Chairman LEAHY. Yes, right. I would point out two things on 

that, Judge. When I first came on this Committee, I was sort of the 

junior Democrat. Alan Simpson—I do not know if you know Senator Simpson—

Judge WILHOIT. Oh, yes. 

Chairman LEAHY. —of Wyoming was the sort of junior Republican. Somebody sent a message in to one of the other of us and 

they said, ‘‘How do you recognize him?’’ ‘‘Well, he is the tall bald 

guy with glasses at the end of the table.’’ He looks at it and he 

says, ‘‘There are two of them. Which one is which?’’

[Laughter.] 

Chairman LEAHY. When I first came to the Senate, I was one of 

those totally opposed to the seniority system. Now that I have studied it for about 26 years—

[Laughter.] 

Chairman LEAHY. —and I understand it far, far better than I did 

then, I realize how mistaken I was, so there is a certain maturity 

that goes on as you go, but please go ahead, sir. 

Judge WILHOIT. The ABA report has cast this nomination into 

some sort of confusion and I felt compelled to come. I am pleased 

and honored to be invited to come and try to shed some light that 

would assist the Committee in making this very important decision. 

Mention has been made about the type of cases that Mr. 

Bunning has handled while serving as an Assistant U.S. Attorney. 

Now, I have been in a unique position, because since 1991 through 

1994, I handled 66 cases involving Mr. Bunning. I think that is 

more cases than any of the other judges in the Eastern District 

have handled. Now, of these cases—now, I realize that the ABA 

representative took a squinted eye view of the Bivens type action, 

Federal Tort Claims, Section 1983, which is probably—can be the 

most complex type of litigation in the Federal Courts today, habeas 

cases, FOIA type cases. In the criminal field, I handled 19 cases 

involving Mr. Bunning. This happened to be indictments and postconviction type cases and trials. 

The ABA says, well, we have objective evidence that he lacks the 

qualifications because of the type of cases that he has handled. My 

testimony is subjective, but it can give the Committee objective evidence in evaluating. 

I have been hanging around courthouses all my life. I saw my 

father try a murder case when I was 11 years old. Have you been 

to Sandy Hook, Senator McConnell? Have you ever been to Sandy 

Hook? 

Senator MCCONNELL. Oh, yes. 

Judge WILHOIT. Eleven years old. I have been hanging around 

courthouses ever since. I have practiced law for 21 years, and I 

really was a country lawyer, a sole practitioner and practiced for 

21 years. That is all I did, practiced trial law. I was a Fellow of 

the American College of Trial Lawyers before coming to the bench. 

Now, you do not send them $25 and a box top and ask for admission to the American College of Trial Lawyers. After I came to the 

bench, I have had 20 years of experience. I believe, Senator Leahy, 

that I can recognize a trial lawyer when I see one. I can spot a DisVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01130 Fmt 6601 Sfmt 6602 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1119

trict judge when I see one. I feel I have—I may be wrong, but I 

am not in doubt about it. 

This idea of the type of cases that he has handled, what is deeper 

and more important, can the candidate recognize legal issues in a 

case? How is his analysis of those issues? And I can say to you 

without hesitation that David Bunning, he has what it takes. 

Finally, I am just going to give you one personal experience. 

Probably four weeks ago, the Supreme Court came down with what 

is called the Apprendi decision that stood the Federal Sentencing 

Guidelines on its ears. We have had to review countless sentences, 

and I had David Bunning before me in Covington for two hearings 

involving an Apprendi resentencing, highly complex issues. I had 

no idea I was going to be here today, and after I heard about 30 

minutes of these arguments, and he was up against this hot-shot 

lawyer from Cincinnati or Covington, he parried every thrust. 

It was a highly complex case. He handled it, and I sort of sat 

back in my chair and I guess I had a little smile on my face. He 

probably, if he noticed it, wondered why I was smiling. But I really 

felt like—I was telling myself, this young man is going to do. He 

is going to be a worthy successor. We are going to be well served. 

And I think these are the issues. 

Finally, I would recommend him to you. I think he will make a 

great District judge. And if he does not become a great District 

judge, his mother is going to kill him. 

[Laughter.] 

Judge WILHOIT. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. We will take Senatorial notice of 

that without having to have the mother testify. 

[Laughter.] 

[The prepared statement of Judge Wilhoit follows.]

STATEMENT OF HENRY R. WILHOIT, JR., SENIOR U.S. DISTRICT COURT JUDGE OF THE

EASTERN DISTRICT OF KENTUCKY, ON THE NOMINATION OF DAVID L. BUNNING TO

BE U.S. DISRICT COURT JUDGE

Mr. Chairman, Senator Hatch, and distinguished members of the Committee, I 

want to thank you for this opportunity to appear before you. Today, December 10, 

2001, marks the one hundred eighty-fifth anniversary of the date the Judiciary 

Committee was established as a standing committee of the United States Senate. 

The second chairman of this committee was Senator John J. Crittenden, a Kentuckian who served as a Senator on no less than six occasions. Among other task, 

it fell to Senator Crittenden to fill the shoes of another great Kentuckian, Senator 

Henry Clay, upon the ‘‘Great Compromiser’s’’ resignation in 1842. I am also reminded of Senator John Rowan who served as chairman of this committee from 

1829 to 1831. Senator Rowan, incidentally, is buried near Bardstown, Kentucky— the site of inspiration for Stephen Foster’s ‘‘My Old Kentucky Home.’’ Off course the 

Commonwealth is currently represented on this committee by my friend Senator 

Mitch McConnell. 

From my personal experience, I can say that the nomination and confirmation 

process is not an easy one. Despite the rigors and challenges of the confirmation 

process, those who have been through it recognize that it is vital in ensuring that 

the federal judiciary remains an independent and equal branch of government, as 

intended by our founding fathers. As you deliberate upon the nomination of David 

L. Bunning, please consider some personal observations of Mr. Bunning that I have 

had as I have observed him from the bench. 

Let me begin by speaking about the manner in which I believe Mr. Bunning will 

conduct himself as a federal judge. The Adversarial nature of our judicial process 

requires that we have men and women sitting in the federal bench who possess certain qualities that are otherwise rare in the legal community. The possessor of the 

ideal judicial temperament is an individual who thinks strategically, listens patiently and acts not out of passion or prejudice but instead as a result of reasoned 

1120

1 403 U.S. 388 (1971). 

2 Civ. Act. No. 93–CV–217. 3 530 U.S. 466 (2000). 

logic. It is a person who can ask insightful questions without allowing himself to 

be drawn into the conflict. Most importantly, the ideal judge is an individual who 

respects the law as it is recorded and who’s character and honesty are beyond reproach. 

These are the characteristics which I have observed in David Bunning throughout 

his regular appearances before me. There have been many instances when he could 

have embarrassed an opposing party who’s claims were un-meritorious or who’s 

briefs were substandard. While a lesser many may yield to the temptations of victory, he has always respected the dignity of the opposing party and, thereby, the 

dignity of the Court. Regrettably, it is the practice of some attorneys in the federal 

bar to misconstrue the holdings of some cases or to fail to mention authority which 

contradicts their position. In the eighty civil and criminal cases which he has practiced before me, I have always found his oral arguments and briefs to be candid, 

forthcoming and credible. In short, David Bunning has always shown himself to be 

an advocate who, while arguing aggressively and persuasively for his client, has 

never strayed beyond the bounds of ethical practice. 

He has also proven to be an effective manager of his time and has been a very 

able case manager. During his four years in the Civil Division of the U.S. Attorney’s 

Office, Mr. Bunning handled approximately sixty-five case that came before me. His 

transfer to the Criminal Division greatly limited the number of his cases which were 

assigned to me. The criminal cases which he did prosecute before me, however, were 

each handled in a timely and efficient manner. The case management skills he has 

learned through his decade of experience in the U.S. Attorney’s Office will serve him 

well as a federal judge. 

In preparation for appearing before you today, I wanted to review some of the 

cases in which he had participated. What struck me most is that his experience as 

an Assistant United States Attorney has been so broad. As I mentioned earlier, he 

has worked in both the civil and criminal divisions of the U.S. Attorney’s Office. 

During his tenure in the civil division, he actively defended various officers and 

agencies of the government in numerous context. Since the United States Supreme 

Court handed down its landmark decision in Bivens v. Six Unknown Named Agents 

of the Federal Bureau of Narcotics,1 that area of law has been continuously evolving. 

He has successfully defended several Bivens actions and has demonstrated a superior understanding of this confusing body of law. His command of this area of law 

is so significant that the Department of Justice invited him to be a guest lecturer 

on this topic in 1995. David Bunning has also been called upon to represent the government in several civil rights actions involving the federal government. He played 

a large role in the government’s defense in Washington v. Reno.2 That case involved 

a claim by federal inmates that the Bureau of Prisons was acting in violation of 

their civil rights by restricting their access to telephones. Most recently, he has been 

involved in cases involving the United States Supreme Court’s decision in Apprendi

v. New Jersey.3 As I’m sure you know, the Apprendi decision has required the courts 

to reopen many, many criminal cases and to re-examine the sentences imposed on 

thousands of prisoners nationwide. In his briefs and oral arguments recently made 

before me, David Bunning has Demonstrated an exceptional insight and command 

of the complex issues raised raised by Apprendi and their interaction with the federal sentencing guidelines. 

Temperament and experience make good judges. I believe David Bunning to be 

honorable, patient and a strategic-thinker. He knows and respects the law. He also 

has the experience necessary to take on this important task. I can say this with 

great confidence, for I have seen him in the courtroom. I have witnessed his command of the rules of procedure and evidence. I know that he is more than capable 

of dispensing justice. He comes before you as a servant of the people. He comes before you with a wonderful mother. His father might well pass muster with you, as 

well. We look forward to having David Bunning as our colleague. Thank you very 

much for your interest in him.

Chairman LEAHY. Judge Forester, Senator McConnell was good 

enough to share some of your letters to him with me. I notice you 

were concerned about prompt action on nominees for the Eastern 

District of Kentucky. I took that to heart, but apparently we are 

moving too fast. We moved Judge Karen Caldwell’s nomination 

1121

through here with such speed that she is going to take up a little 

while to close up her law practice, but is she now on the bench? 

Judge FORESTER. Yes, sir. Her ceremony was Friday a week ago, 

as I recall. She is on the bench. 

Chairman LEAHY. I think we confirmed her on October 23. What 

about Danny Reeves? 

Judge FORESTER. Danny Reeves was confirmed last week and he 

plans to begin his work around January 1. So he will be ready to 

go soon. 

Chairman LEAHY. Okay. Go ahead. 

STATEMENT OF HON. KARL S. FORESTER, CHIEF JUDGE, 

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY, LEXINGTON, KENTUCKY 

Judge FORESTER. I wanted to thank the Committee very much 

for the attention that you have given to our vacancies. It was very 

much appreciated. We needed help and you gave it to us and we 

appreciate that. 

Chairman LEAHY. Well, Senator McConnell is a valued member 

of this Committee and he reminds me, not more than a half a 

dozen times a day, but he reminds me, and if somehow he misses 

me, Senator Bunning is there and follows up and reminds me. I 

have learned more about Kentucky since becoming Chairman of 

this Committee than I thought I ever would. 

Judge FORESTER. You have been very responsive, Mr. Chairman. 

[Laughter.] 

Judge FORESTER. We are grateful to you, most grateful, sir. 

Chairman LEAHY. Thank you. 

Judge FORESTER. Over a period of ten years, I have personally 

observed David Bunning. He has appeared in my court on many occasions representing the United States in various civil and criminal 

matters. One criminal case was submitted to a jury, and it is, I 

think from the unique perspective of a trial judge, that I am able 

to report to you with regard to Mr. Bunning. 

In my 13-and-a-half years, and you were sitting almost in that 

same spot 13-and-a-half years ago. You were not down on this end, 

but you were moving in the middle. 

Chairman LEAHY. I was moving up. Love that seniority system. 

[Laughter.] 

Judge FORESTER. Senator Biden was sick at the time and you 

were filling in for him as Chairman. 

Chairman LEAHY. That is right. That was during the Reagan 

years. I think I held more hearings during that time when I was 

filling in for Senator Biden when President Reagan was here than 

I think I ever want to hold again. Now, at least I have the ability 

to pass them on to others, but I think I got the full load that year. 

Judge FORESTER. I believe you did. But in my experience as a 

trial court judge, I have served a number of lawyers, hundreds, 

maybe thousands, from all across the country. Where I sit in Lexington, I have seen the good, I have seen the mediocre, I have seen 

the bad. 

My personal relationship with David Bunning is extremely limited, but I am familiar with his reputation in the community 

among those who know him and it is excellent in all respects. His 

1122

professional character is beyond reproach. I have observed that he 

is industrious, diligent, and all around a hard worker. I think he 

possesses a strong intellectual capacity and very good writing 

skills. Now, his writing skills to me are more than plain or more 

than pedestrian. They are excellent for the purpose that they were 

submitted to me. 

He is a strong advocate for the government, but he is fair and 

he is compassionate. Everything I have considered lead me to believe that he will have an outstanding judicial temperament. 

I believe that, from what I have heard, that his experience may 

be of concern to the Committee, and I would suggest that his experience should be of little concern to the Committee. I do not want 

to beat a dead horse, but a litigation attorney in the Office of the 

United States Attorney for the Eastern District of Kentucky has 

much more courtroom experience than attorneys with many, many 

more years of practice, and I can speak personally on that. 

Prior to my appointment as a Federal judge, I practiced law for 

22 years in a small town. A substantial part of my practice did consist of litigation in State and Federal courts. However, a major part 

of my practice consisted or involved non-litigation matters, appearance before administrative bodies, real estate matters, counseling 

with corporate clients. 

The point I am trying to make here is that Mr. Bunning in his 

ten years of experience has more courtroom time than I had in 22 

years, and I am personally familiar with Federal judges who have 

had less experience. I am familiar with Federal judges who, when 

they went on the bench, had no practice experience. All of these 

judges have done very well and I have no reason to doubt that Mr. 

Bunning will do well. I think he will be a great asset to our district. 

I want to mention to you, finally, that the Eastern District of 

Kentucky has a great tradition of Federal prosecutors being appointed to the bench early in their careers. I would point out or 

mention Judge Mac Swinford, who was appointed by President 

Roosevelt, Judge Bernard Moynahan, who was appointed by President Kennedy, Judge Eugene Silar was appointed by President 

Ford, and Karen Caldwell, just recently appointed by President 

Bush. I believe that the experience as Federal prosecutors provided 

a fertile training ground for the future role as a judge of each of 

these individuals. 

At the risk of wrestling a 30- or 40-foot alligator, I want to clear 

up something about experience and I want to clear up something 

about complex cases. There is no one who can be an expert in tax 

law and an expert in antitrust law and an expert in civil rights 

law, an expert in criminal law. No one can do all of that. It is impossible. 

Back when I was practicing law, when you were practicing law, 

there was a general sort of practice. You did a little bit of everything. But in this day and time, you cannot do it all. We as judges 

have to be able to be impartial and sit and hear the arguments and 

make the right decisions and David Bunning can do that, in my 

opinion. Thank you, sir. 

Chairman LEAHY. Thank you very much, Judge Forester, and it 

is good to see you again. 

1123

Judge FORESTER. Thank you. 

[The prepared statement of Judge Forester follows.]

STATEMENT OF KARL S. FORESTER, U.S. DISTRICT JUDGE, EASTERN DISTRICT OF KEN- TUCKY, ON THE NOMINATION OF DAVID L. BUNNING TO BE U.S. DISTRICT COURT

JUDGE, FOR THE EASTERN DISTRICT OF KENTUCKY

Senator Leahy and the Members of the Committee: 

On behalf of the United States District Court for the Eastern District of Kentucky, I wish to thank the Committee for its prompt attention to the three vacancies 

which existed on our Court. To date one of the vacancies has been filled, one has 

been favorably reported out of Committee and is awaiting Senate action, and now 

the Committee is acting on the nomination of David Bunning. 

Over a period of ten year I have personally observed David Bunning. He has appeared in my Court as an Assistant United States Attorney representing the United 

States in numerous civil and criminal matters including one criminal trial which 

was submitted to a jury. It is from the unique perspective of a trial court judge that 

I am able to report to the Committee with regard to Mr. Bunning. 

In my 131⁄2 years of experience as a trial court judge, I have observed hundreds, 

if not thousands, of attorneys from across the country—the good, the mediocre, and 

the bad. My personal relationship with Mr. Bunning is extremely limited. However, 

I am familiar with his reputation in the community where he lives among those who 

know him, and it is excellent in all respects. I can personally advise the Committee 

that his professional character is beyond reproach. Moreover, he is industrious, diligent and an all-around hard worker. He possesses a strong intellectual capacity 

which I have personally advise the Committee that his professional character is beyond reproach. Moreover, he is industrious, diligent and an all-around hard worker. 

He possesses a strong intellectual capacity which I have personally observed. His 

analytical and writing ability and knowledge of the law is outstanding. Moreover, 

while he is a strong advocate for the government, he is fair and compassionate. All 

the factors I have considered lead me to believe his judicial temperament will also 

be outstanding. 

An issue I believe may be of Concern to the Committee is Mr. Bunning’s experience. I suggest that this years of experience should be of little concern to the Committee. A litigation attorney in the Office of the United States Attorney for the Eastern District of Kentucky has much more courtroom experience than most attorneys 

with many more years of practice. Let me speak personally on this. Prior to my appointment as a federal judge, I practiced law for 22 years. A substantial part of my 

practice consisted of litigation in the state and federal court. However, a major part 

of my practice involved non-litigation matters such as appearances before administrative agencies, real estate matters and counseling with corporate clients. 

THe point I am trying to make there is Mr. Bunning has had more courtroom 

experience in ten years than I had in 22 years of practice. I am personally familiar 

with several federal judges who were practicing lawyers less than ten years. These 

judges have been outstanding and two have been elevated from a trial court to an 

appellate court. Also, I have known several able and competent judges who came 

to the Court from academia, who had little or no practice experience. It is my opinion that Mr. Bunning has all the attributes necessary to be an outstanding judge 

on our Court. He is uniquely qualified for the position and will be a great asset. 

As the members of this Committee are well aware, a federal district court’s docket 

normally consists of a high percentage of matters in which the United States Attorney’s Office plays a key role. In fact, in the last year my docket in the Eastern District of Kentucky at Lexington consisted of at least 50% criminal matters. David 

Bunning has had experience handling all these matters laboring for the United 

States in the trenches, so to speak, as a federal prosecutor. 

Finally, I would mention to you that the Eastern District of Kentucky has a great 

tradition of federal prosecutors being appointed to the bench early in their careers. 

Judge Mac Swinford was appointed by President Franklin D. Roosevelt; Judge Bernard T. Moynahan, Jr. was appointed by President John F. Kennedy; Judge Eugene 

Siler was appointed by President Gerald Ford; and within the last month Judge 

Karen Caldwell was appointed by President George W. Bush. The experience of all 

four of these judges as federal prosecutors provided a fertile training ground for 

their future roles as federal judges. Mr. Bunning’s ten years’ experience as a prosecutor provide him with actual working knowledge of the procedure rules of the federal courts and the local rules of the Eastern District of Kentucky that would serve 

him well as a judge. 

Mr. Chairman, the fact that three judges are present today underscores our belief 

that there is a critical need for the position to be filled as soon as possible. We are 

1124

mindful that the Constitution gives us no voice whatsoever in the selection of 

judges; however; we deem it appropriate that we respond to the request of the Committee to appear personally. 

Once again, we thank the Committee and its Chairman for the attention given 

to the needs of the Eastern District of Kentucky.

Chairman LEAHY. Judge Hood? 

STATEMENT OF HON. JOSEPH M. HOOD, JUDGE, UNITED 

STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF 

KENTUCKY, LEXINGTON, KENTUCKY 

Judge HOOD. Mr. Chairman, like Judge Wilhoit, I would like to 

just file my written testimony in the record, if you could— Chairman LEAHY. Of course. 

Judge HOOD. —and proceed to talk about something a little different about David Bunning than about everybody else here has. 

I echo what has been said by my colleagues, and I have had him 

in practice in front of me quite a bit, so I agree with what they say. 

But what I would like to point out is that David Bunning is a man 

of substance. 

Recently, in the case of the United States v. Overby, he promised 

the defendant in a plea agreement that he would recommend a sentence below the statutory mandatory minimums and at the lower 

end of our guidelines if she cooperated with the government in the 

prosecution of several of her co-defendants. Although the defendant’s guidelines were actually calculated erroneously earlier by the 

probation office, that non-binding estimate that David Bunning 

promised that woman was something that he stood by. He did not 

have to do it, but he did. 

Now, that tells you a lot about how David Bunning will handle 

people who come before him. He will treat them fairly and with all 

deference that he is required to give, and he will do that to the best 

of his abilities. Thank you. 

Chairman LEAHY. Judge Hood, and you feel this will be the case 

whether somebody is plaintiff or defendant, government or defendant, rich, poor, so on? 

Judge HOOD. When we have sentencing proceedings, and Mr. 

Famularo will attest to it, some United States Attorneys not only 

are not just satisfied with the fact of conviction, they would like to 

have ears and tail, kind of like matadors do. David recognizes that 

his role is to present the facts to the court, to make an argument, 

and then let the judge make his decision and he does that without 

any indication that he thinks that we should do exactly what he 

says. 

Chairman LEAHY. My question goes to one of the basic rules I 

have always had in my own mind—every Senator has to make up 

his or her own mind how they will vote on a confirmation. We do 

not have a specific guideline. It is sort of left up to each one of us 

under the Constitution. 

What I have always done when I am looking at somebody for a 

judicial nomination, once I have gone past the questions of competence and background, legal ability, and so on, I ask, if I walked 

into that courtroom, would I be able to look at that judge and say, 

it is not going to make any difference what my political background 

is, what my color is, what my wealth or status in the community 

is, whether I am plaintiff or defendant in a civil case, whether I 

1125

am government or defendant in a criminal case? Can I look at that 

judge and say, whatever that decision comes down, I know that 

judge has been fair and has made that decision based on how he 

or she looks at the law, looks at the facts, and not how he or she 

references a particular bias against me or the other party? 

May I ask you this, Judge. If you were a litigant, would you feel 

that same way going into a court presided over David Bunning? 

Judge HOOD. I often ask a juror, Senator, during voir dire when 

there is a question raised as to whether that juror could be fair and 

impartial, I always ask them, put yourself in the shoes of the defendant in this case. Would you want a person like you serving on 

your jury with that same feeling that you might have? 

Well, I am looking forward, if confirmed, to having David 

Bunning as a colleague, because I know from everything I have 

seen from him, heard about him, he can do just what you expect 

him to do, to sit there with blinders, the obvious blind justice, 

treating everybody fairly, with a level playing field, and no one 

should feel with any reservation, even though they might have 

gone to a different law school than the University of Kentucky, as 

all three of us did. 

Chairman LEAHY. Thank you. I am going to leave that one alone. 

[Laughter.] 

[The prepared statement of Judge Hood follows.]

STATEMENT OF JOSEPH M. HOOD, U.S. DISTRICT JUDGE, EASTERN DISTRICT OF KENTUCKY, ON THE NOMINATION OF DAVID L. BUNNING TO BE ASSISTANT U.S. ATTORNEY FOR THE EASTERN DISTRICT OF KENTUCKY

Senator Leahy and the Members of the Committee: 

I have known David L. Bunning since his appointment as an Assistant United 

States Attorney for the Eastern District of Kentucky over a decade ago. I thank you 

for inviting me to share my thoughts about him with you 

Although my contacts with Mr. Bunning have been essentially professional, I am 

aware of his reputation for honesty and integrity in the area where he lives and 

practices. Those who know him, both personally and professionally, consider him to 

be above reproach as the report submitted by the Federal Bureau of Investigation 

surely reflects. 

In addition to representing the government in numerous pre-trial motions and 

sentencing proceedings, Mr. Bunning has tried four criminal cases to verdict in front 

of me. He comes to court knowing the facts and law applicable to his case. His witnesses have been interviewed. He is aware of potential evidentiary objections to 

their testimony and the rules of evidence which apply to those objections. he makes 

succinct and cogent arguments. He knows the importance of making a record and 

does not become noticeably upset when a ruling goes against him. He has looked 

numerous jurors in the eyes and asked them to return a verdict favoring his client, 

a request which has always been granted in the cases he has tried before me. 

One case which Mr. Bunning prosecuted to verdict is United States v. Galloway, 

which involved a conspiracy to import a large amount of the so-called party drug 

Ecstasy into this country from Holland. An unusual feature of this case was the requirement imposed by 18 U.S.C. § 3505 concerning the admission of foreign business 

records. He handled this evidentiary issue, one not frequently seen in the Eastern 

District of Kentucky, without hesitation. 

Mr. Bunning has demonstrated to me that he has a ‘‘feel’’ for the judicial process 

that is quite unusual for someone of this age and experience. Just like a good card 

player has a ‘‘feel’’ for when to play his cards, I believe that a good trial lawyer has 

a ‘‘feel’’’ for a trial. It is an innate, unquantifiable trait that very few attorneys possess. In the Galloway case, Mr. Bunning displayed this ‘‘feel’’ by electing to save an 

item of evident for rebuttal instead of introducing it in his case-in-chief. In so doing, 

he eviscerated the defendant’s theory of the case. 

Mr. Bunning is a man of substance. Recently, in United States v. Overby, he 

promised the defendant in a pleas agreement that he would recommend a sentence 

below the mandatory minimum and at the lower end of her guidelines if she cooperVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01137 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1126

ated with the government in the prosecution of her co-defendant. Although the defendant’s actual guidelines were higher than the original, Non-binding estimate of 

the probation officer, Mr. Bunning stood by his promise and recommended that the 

defendant be sentenced to the originally calculated lower term, something he was 

not legally obligated to do. 

Yes, Mr. Bunning is young, but I personally know others younger and with less 

professional experience than him who have gone on to be highly-respected federal 

trial judges. Based on my quarter of a century experience as a federal magistrate 

and district judge, I believe that Mr. Bunning, if confirmed, will become such a 

judge in a very brief period of time, one whom I would be proud to have as a colleague.

Chairman LEAHY. Mr. Famularo? 

STATEMENT OF JOSEPH L. FAMULARO, DEPUTY SECRETARY, 

COMMONWEALTH OF KENTUCKY, FRANKFORT, KENTUCKY 

Mr. FAMULARO. Mr. Chairman, Senator McConnell, I do have a 

written statement prepared today, and if the Chairman please, I 

would like that that be filed part of my testimony. 

Chairman LEAHY. It will. 

Mr. FAMULARO. And since I am the last speaker following judges, 

I have learned a long time ago, when you follow the judges, keep 

it very brief. 

I would like to touch on some points that I think are very applicable to my very strong enthusiasm for David Bunning’s nomination to be judge for the United States District Court for the Eastern District of Kentucky. 

First of all, I was David’s former boss for some eight years. I am 

a Democrat. President Clinton appointed me to be United States 

Attorney for the Eastern District in 1993 and I served in that capacity for eight years. I might also note that I am very proud, Mr. 

Chairman, to have served ten years as a State prosecutor, both as 

county, Commonwealth, and in the State appellate system as a 

State Attorney General. It is one of the greatest things that I can 

say in my career, to have represented the people of the Commonwealth and the United States. 

Since I was David’s boss for some eight years, I feel that I can 

provide a very informed and unbiased assessment of his fitness for 

the office of Federal District judge. 

Much has been said about experience. In my considered opinion, 

most United States Attorneys have, in reality, more legal experience and certainly much more litigation experience than do private 

practitioners who have been practicing law for an equivalent 

amount of time. It would be my opinion that David would have at 

least double the effective experience for a private practitioner, especially in the Federal system. I say double, but one could as easily 

use a multiplier of three or maybe five. 

David has been an Assistant United States Attorney for ten 

years and he has been in the Criminal Division for the last six. I 

am personally familiar with what he does, and Senator, he has 

been in the courtroom almost every single day. He has appeared 

before all three of these distinguished judges, as well as Judge 

Bertelsman, Judge Kaufman, and also the United States Magistrate. Just because he is in the Covington office does not mean 

that he does not include the entire Eastern District. 

He carries regularly, when I was a United States Attorney, one 

of the heaviest caseloads in the office. I personally reviewed the 

1127

statistics every single month and David was always in the top 

three or four of the Assistant United States Attorneys in this category. 

David served in the Civil Division much before I got there, but 

I assure you what I heard and what I observed the short time that 

he did do civil work that it was excellent. He did try two civil actions to a jury, and again, in my humble opinion, David’s civil litigation experience is at least equal to a civil litigation experience of 

a private practitioner who has been practicing law for two or three 

times as long as David. 

In the Criminal Division, he tried 18 cases to a verdict. The vast 

majority of these cases were jury trials. They included the criminal 

matters that we hear in the Eastern District almost every day—

narcotics, violent crime, health care fraud, economic fraud, forfeiture prosecution. These make up the bulk of what goes through 

the Office of United States Attorney in the Eastern District of Kentucky. They have included some more complex matters, such as 

major drug and white-collar crime. Some have involved numerous 

defendants, and others have required proving a charge entirely 

with circumstantial evidence. 

David did prosecute one of the first Internet harassment cases in 

our office. I might add, this is the case that David became a victim, 

and I must state, in my 30 years as a prosecutor, both State and 

Federal, I have never been more scared when I found out that one 

of those men came to the office to target David for a hit. How do 

I know it was a hit? Because some 15 minutes later, he met with 

an undercover police officer who, in turn, arrested him. So I must 

say, David did show courage under fire. 

He has extensive appellate experience. I know for a fact that he 

has written over 50 appellate briefs and he has appeared before the 

United States Sixth Circuit Court of Appeals at least ten times. 

This appellate experience also far exceeds the experience of most 

private practitioners. David does not only know appellate procedure, but he knows how to make the requisite record for appeal, 

a skill that is a must for trial judges. 

His heavy caseload not only shows the depth and breadth of his 

legal experience, it shows he has a strong work ethic and efficient 

case management skills. Both skills are important attributes for 

Federal trial judges who must handle large volumes of cases in a 

timely manner. 

Lastly, Senator, and in my opinion most important, he possesses 

the attributes which are essential for a good trial judge. He has a 

great attitude. He is pleasant, upbeat, and enthusiastic. He is easy 

to deal with and he treats everyone with respect. He is dedicated 

to the legal profession and he has the fortitude to persevere regardless of whatever difficulties or challenges may face him. 

In sum, I have appeared before a lot of judges in my career and 

I feel that I know the qualities that distinguish a good judge from 

a bad judge. In fact, my father was a trial judge, as was my brother. I am the only one that has never made it. If I were to appear 

before a judge, I would want him to possess the skills and attributes that David Bunning has. 

1128

Senator I strongly support his nomination and I will be very 

happy to answer any questions that you may have. Thank you very 

much. 

Chairman LEAHY. Thank you very much. 

[The prepared statement of Mr. Famularo follows.]

STATEMENT OF JOSEPH L. FAMULARO, U.S. ATTORNEY, EASTERN DISTRICT OF KEN- TUCKY ON THE NOMINATION OF DAVID L. BUNNING TO BE JUDGE FOR U.S. DISTRICT

COURT FOR THE EASTERN DISTRICT OF KENTUCKY

Mr. Chairman, Senator Hatch and Members of the Committee, I am pleased to 

appear before the Judiciary Committee today in enthusiastic support of the nomination of David L. Bunning to be a Judge for the U.S. District Court for the Eastern 

District of Kentucky. I am both David’s former boss and a Democrat. President Clinton appointed me to be United States Attorney for the Eastern District of Kentucky 

in 1993, and I served in that capacity for eight years. I was thus David’s boss for 

eight of his ten years in the U.S. Attorney’s Office. I therefore feel that I can provide 

a very informed and unbiased assessment of his fitness for the office of federal district court judge. 

David Bunning has complied more federal courtroom experience in his career than 

most people do in a lifetime. I have practiced law for almost thirty-five years, in 

both the public and private sectors. Based on my extensive experience, it is my considered opinion that most assistant United States Attorneys (AUSAs) have, in reality, more legal experience—and certainly much more litigation experience—and 

certainly much more litigation experience—than do private practitioners who have 

been practicing law for an equivalent amount of time. David has at least double the 

effective experience of a private practitioner, especially in the federal system. 

I say at least double because one could easily use a multiplier of three, and maybe 

as high as five, in considering the effective litigation experience of the career of a 

typical assistant United States Attorney. And this general rule of thumb applies 

even more strongly in the case of David Bunning. He has been an assistant United 

State Attorney for the last ten years, and for the last six years, David has been in 

court almost every day. He has litigated both civil and criminal matters on behalf 

of the people of the United States, and he has been successful in over 90% of his 

cases. As the former United States Attorney in David’s office, I can attest that he 

regularly carried one of the heaviest caseloads in our office, usually placing in the 

top three or four AUSAs in this category. David has worked long and hard ‘‘in the 

well of the court,’’ and he is thus extremely familiar with the types of cases over 

which federal judges in Eastern Kentucky preside. 

In his four years in the Civil Division, David was responsible for a wide variety 

of civil litigation matters. For example, he defended the United States in prisoner 

litigation, Federal Tort Claims Actions, Bivens actions, civil rights cases, and employment rights cases. All of these types of matters are a mainstay of the daily business of the civil docket of the eastern district. As a testament to David’s litigation 

skills, he was able to dispose of most of these actions through motion practice. However, he did try two civil actions to a jury. In My considered opinion, David’s civil 

litigation experience alone is at least effectively equal to the civil litigation experience of a private practitioner who has been practicing law for two or three times 

as long as David. 

In David’s six years with the Criminal Division, he has tried eighteen cases to 

verdict. The vast majority of these cases were jury trials. The types of criminal matters David handled-narcotics, violent crime, health care fraud, economic fraud, and 

forfeiture prosecutions—are cases that make up the bulk of my former office’s criminal cases in federal court. David’s cases have included some of the more complex 

matters in the Eastern District such as major drug and white collar criminal cases. 

For example, they have involved numerous defendants or have required proving a 

charge entirely with circumstantial evidence. David also prosecuted one of the first 

Internet harassment cases in our office. David has been almost completely responsible for his cases, from investigation through indictment through discovery to trial 

to sentencing and through the appellate stage. His trial skills are superb. David is 

skilled in federal trial procedure and the Federal Rules of Evidence. He is thus wellequipped to preside over all phases of the criminal matters that will come before 

him. 

David also has extensive appellate experience. Because of David’s legal skills, inducing his research and writing skills, he has often personally handled appeals of 

this decisions, rather than using our appellate counsel. David has written in excess 

of fifty appellate briefs, and he has argued before the Sixth Circuit Court of Appeals 

1129

at least ten times. This appellate experience also far exceeds the experience of most 

private practitioners. David thus not only knows appellate procedure, but he knows 

how to make the requisite record for appeal—a skill that is a must for trial judges. 

David’s heavy caseload not only shows the depth and breadth of his legal experience, it also shows his strong work ethic and efficient case-management skills. Both 

skills are important attributes for federal trial judges, who must handle large volumes of cases in a timely manner. 

Lastly, David Bunning possesses the other attributes which, in my experience, are 

essential for a good trail judge. He has a great attitude: pleasant, upbeat and enthusiastic. He is easy to deal with, and he has the fortitude to persevere regardless of 

whatever difficulties or challenges may face him. I sum, I’ve appeared before a lot 

of judges in my career, and I feel I know the qualities that distinguish a good judge 

from a bad judge. If I were to appear before a judge, I would want him to possess 

the skills and attributes that David Bunning has. I strongly support his nomination, 

and I will be happy to answer any questions you might have. 

Thank you

Chairman LEAHY. Senator McConnell? 

Senator MCCONNELL. First, Mr. Chairman, I want to thank you 

for spending your Monday here rather than in Vermont and personally presiding over a hearing that you could have handed off to 

a more junior member of the Committee and being here for over 

three hours. 

I also want to thank—I think everybody went to UK, right, everybody? All of us have sort of managed to struggle after having 

that inadequate beginning to our careers—

[Laughter.] 

Senator MCCONNELL. But we have before us four distinguished 

graduates of the University of Kentucky, of which I am quite 

proud, particularly my colleague, Joe Famularo. We were in the 

same class. That was back during the Coolidge years, was it not, 

Joe? 

Mr. FAMULARO. I believe it was. 

[Laughter.] 

Chairman LEAHY. A good Vermonter, I would hasten to add. 

Senator MCCONNELL. I know all of you went to considerable effort to rearrange your schedules in order to be up here today and 

we are extremely grateful to each of you for doing that. I think the 

testimony you have offered is the best testimony possible because 

you know the nominee. You have worked with him. You have had 

a chance to observe him up close and your views, it seems to me, 

are enormously significant as we consider this nomination. 

So I just wanted to express my deep gratitude to all four of you 

for your willingness to come up here and testify for this outstanding nominee. Thank you very much. 

Chairman LEAHY. Thank you. 

If there are no further questions, we will keep the record open 

the appropriate time for questions and responses. At this time, I 

will also insert into the record a statement from Senator Strom 

Thurmond regarding Mr. Bunning’s nomination. 

[The prepared statement of Senator Thurmond follows.]

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH

CAROLINA

Mr. Chairman: 

Thank you for holding this hearing today on the nomination of David L. Bunning 

to be United States District Court Judge for the Eastern District of Kentucky. I 

hope that the testimony of Mr. Bunning and the other distinguished panelists, inVerDate Feb 1 2002 12:53 Jan 17, 2003 Jkt 082503 PO 00000 Frm 01141 Fmt 6601 Sfmt 6621 C:\HEARINGS\82503A.004 SJUD4 PsN: CMORC
1130

cluding three Federal judges and Mr. Judah Best, will demonstrate to this committee that Mr. Bunning is eminently qualified to be a Federal District Judge. 

The Senate has a duty to ensure that a person is qualified for the job to which 

he is nominated. However, we should also give proper deference to the President’s nominations to the Federal Judiciary. By all accounts, Mr. Bunning has been criticized as being too youthful and inexperienced. As someone who has been criticized 

as being too old for the job, I am particularly sensitive to these types of charges. 

Mr. Bunning’s age should not be a factor. 

He has a great deal of experience as an Assistant United States Attorney, and 

he has demonstrated to most of the witnesses here today that he has an outstanding 

legal mind. I do not believe that Mr. Bunning’s critics have overcome the presumption that the President has nominated a qualified candidate. 

Mr. David Weiner, the American Bar Association’s Sixth Circuit representative, 

concluded that Mr. Bunning was ‘‘Not Qualified.’’ In Mr. Weiner’s statement, he 

notes that twelve years of experience is a minimum requirement for a Federal 

judge, absent ‘‘extraordinary circumstances.’’ Mr. Weiner’s statement asserts, ‘‘We 

believe that the judicial system, the public, the trial bar and the nominees are not 

well served by placing on the Bench one with less than such minimum experience.’’ This type of analysis sets the bar extremely high for a nominee if he does not meet 

the twelve-year experience requirement. Mr. Bunning would be required to come 

forth with ‘‘extraordinary circumstances’’ to prove his fitness. It is just this type of 

mechanical obedience to an arbitrary number that concerns me. 

We should look at Mr. Bunning’s experience in light of the work that he has done 

and in light of the comments of Federal judges and other legal experts. Mr. Bunning 

has practiced law for ten years, and he has ample experience as an Assistant United 

States Attorney. He has represented the United States in both civil and criminal 

matters, and he has impressed the judges who have witnessed his layering abilities. 

Judge Karl S. Forester, Chief Judge of the United States District Court for the 

Eastern District of Kentucky, asserts in his statement that Mr. Bunning has more 

courtroom experience that he did when appointed to the Federal Bench. Judge Forester practiced law for 22 years, but major portions of this practice included nonlitigation matters, such as real estate transactions and counseling corporate clients. 

Mr. Bunning, however, has constantly appeared in the courtroom as a litigation attorney in the Office of the United States Attorney for the Eastern District of Kentucky. I agree with Judge Forester that we should focus on spent an adequate 

amount of time as a trial lawyer in Federal courts. 

Mr. Weiner’s evaluation also concludes that Mr. Bunning has insufficient experience in civil matters, citing his experience in defending against Bivens claims as 

routine. However, Judge Henry R. Wilhoit, Jr., of the Eastern District of Kentucky, 

concludes that Mr. Bunning’s experience as an Assistant U.S. Attorney is broad, and 

that Bivens cases present a ‘‘confusing body of law.’’ Judge Wilhoit also notes that 

the Department of Justice invited Mr. Bunning to be a guest lecturer on this topic 

in 1995. I think that Mr. Weiner’s disregard of Bivens cases is misplaced. I doubt 

that the Department of Justice would invite guest speakers on an area of the law 

that is as simple as Mr. Weiner asserts. 

I would also like to address Mr. Weiner’s conclusion that Mr. Bunning does not 

have the necessary ‘‘intellectual spark’’ to serve as a Federal judge. Again, I think 

that it is important to look at what Federal judges have said about Mr. Bunning. 

United States District Judge Joseph Hood states in his testimony that Mr. Bunning 

comes to court fully prepared, knowing both the facts and the law. Judge Hood also 

finds his arguments to be ‘‘succinct and cogent.’’ In addition, he states that Mr. 

Bunning ‘‘has a ‘feel’ for the judicial process that is quite unusual for someone of 

his age and experience.’’ Judge Hood is not alone in his assessment of Mr. Bunning’s 

intellectual abilities. Judge Karl Forester states, ‘‘He possesses a strong intellectual 

capacity which I have personally observed.’’ He goes on to say, ‘‘His analytical and 

writing ability and knowledge of the law is outstanding.’’ I believe that these comments by respected jurists should allay any fears about Mr. Bunning’s mental fitness for the job. 

Mr. Chairman, thank you for providing this hearing for Mr. Bunning. I believe 

that he will serve the United States well if appointed to the Federal Bench. Not only 

does he have adequate experience, but he is an intelligent, hard-working many committed to the rule of law. A similar conclusion was also reached by Mr. Judah Best, 

a distinguished member of the D.C. Bar, who conducted a second investigation of 

Mr. Bunning for the ABA. I hope that this hearing will make Mr. Bunning’s qualifications apparent and that he may be confirmed in a timely manner.

Chairman LEAHY. We are in recess. Thank you. 

[Whereupon, at 1:16 p.m., the Committee was adjourned.] 

1131

[Questions and submissions for the record follow. Note: Answers 

to questions were not available at the time of printing.]

QUESTIONS

Questions for the American Bar Association submitted by Senator Leahy 

QUESTIONS FOR THE ENTIRE ABA PANEL: MR. ROSCOE TRIMMIER, MR. DAVID

WEINER, AND MR. JUDAH BEST

Question 1: I would like all of you to answer this question. In your experience on 

the ABA Standing Committee on the Federal Judiciary, is it unusual for the Committee to return a decision of majority ‘‘not qualified?’’ Approximately what percentage of the time does this occur? 

Question 2: Given the relative rarity of a ‘‘not qualified’’ funding, what significance do you feel it has when the Committee does make such a finding? 

QUESTIONS FOR MR. JUDAH BEST

Question 1: Mr. Best, you have reviewed the findings of the ABA Standing Committee on the Federal Judiciary, a majority of whose members found Mr. Bunning 

to be ‘‘not qualified’’ to serve as a federal district court judge. 

A. In you subsequent investigation of Mr. Bunning’s background and experience, 

what information did you discover that supports your contrary conclusion that Mr. 

Bunning is, in you opinion, ‘‘qualified’’ to serve a lifetime appointment as a federal 

judge? 

B. As you are aware, one of the standard factors the ABA considers in determining its rating for judicial nominees is the number of years the nominee has been 

practicing law. The ABA has a strong presumption for recommending nominees with 

at least 12 years of experience. What specifically, about Mr. Bunning’s record impresses you such that this presumption should be overturned in his case? 

Question 2: In you opinion., why did you rate Mr. Bunning as ‘‘qualified’’ rather 

than giving him the more laudatory rating of ‘‘well-qualified?’’ In other words, what 

is it about his background that prevented you from thinking that Mr. Bunning is 

‘‘well-qualified?’’ Question 3: As you are aware, Mr. Bunning has been nominated to the U.S. District Court for the Eastern District of Kentucky. 

A. If Mr. Bunning had been nominated to one of the busier, more urban districts, 

such as the Southern District of New York or the Central District of California, 

would you have arrived at the same conclusion that he is ‘‘qualified’’ for the job? 

Why or why not? 

B. In your opinion, should the quality of , or selection standards for, a judicial 

nominee vary depending on the district in which he is designated to serve? 

Question 4: Do you share any of the Concerns about Mr. Bunning’s qualifications 

that have been enumerated by the majority decision of the ABA Standing Committee on the Federal Judiciary? Please explain. 

QUESTION FOR MR. DAVID WEINER

Question 1: Mr. Weiner, having been the testimony of Mr. Best and Mr. Bunning, 

have you heard anything that could change your evaluation of Mr. Bunning as ‘‘not 

qualified

Questions for David L. Bunning submitted by Senator Leahy 

’’ to serve as a federal judge?

f Question 1: As you know, the ABA is going to testify later in this hearing and 

state its concerns regarding your qualifications for the federal bench based on a lack 

of sufficient experience. After they have testified, the record will be open for you 

to respond in any way you wish, but do you wish to give any response not to the 

testimony you expect the ABA to give? 

Question 2: One of the factors leading the ABA to give you a ‘‘not qualified’’ rating 

was your writing experience. Both the initial and follow-up investigators determined 

that your writing was not impressive, in part because you have not been called upon 

to address particularly challenging or intellectually rigorous legal and doctrinal 

matters in your capacity as an Assistant U.S. Attorney. As you know, one of the 

most important functions of a federal district judge is to write orders and opinions—

1132

and each word in these ruling can matter. Opinions issued by federal judges provide 

not only direction to the parties before you, but in some instances also leave a lasting imprint on future jurisprudence. Please tell the Committee about your writing 

skills and how your experience has prepared you to effectively fulfill the legal writing responsibilities of a federal judge, despite a relate lack of complex cases. 

Question 3: The ABA also expressed concern that you have handled civil matters 

for only four of your ten years in legal practice. As you know, federal court dockets 

are overflowing with many complex civil cases, ranging from employment or voting 

rights discrimination to anti-trust or large-scale class action litigation. Please tell 

the Committee whether and how your legal experience has prepared you to adjudicate complicated civil cases and manage a busy docket involving such matters. 

Question 4: As a former prosecutor, I believe that representing ‘‘the people’’ in 

criminal prosecutions is an important form of public service, and I commend you for 

your years of service to the people of Kentucky. How will you make the transition 

from advocate for the government to neutral decision-maker, particularly with regard to adjudicating criminal matters where, as a judge, you would be charged with 

vigorously safeguarding defendants’ right to a fair trial? 

Question 5: In the past few years, the Supreme Court has struck down a number 

of federal statues, most notably several designed to protect the civil rights and prerogatives of our more vulnerable citizens, as beyond Congress’s power under Section 

5 of the Fourteenth Amendment. The Supreme Court has also struck down a statute 

as being outside the authority granted to Congress by the Commerce Clause. These 

cases have been described as creating new power for state governments, as federal 

authority is being diminished. At the same time, the Court has issued several decisions, most notably in the environmental arena, granting states’ significant new authority over the use of land and water, despite long-standing federal regulatory protection of the environment. Taken individually, these cases have raised concerns 

about the limitations imposed on Congressional authority; taken collectively, they 

appear to reflect a ‘‘new federalism’’ crafted by the Supreme Court that threatens 

to alter fundamentally the structure of our government. What is your view of these 

developments? 

Question 6: Can Congress ever subject states to private suits for damages for discrimination based on classification to which the Supreme Court does not give 

heightened or strict scrutiny? 

Question 7: If Congress provides many to a state on the condition that it use the 

money in certain ways, can Congress constitutionally require a state that accepts 

such funding to waive its sovereign immunity to private actions for money damages 

if the state is misusing such funds? 

Question 8: Are there any federal statutes or sections thereof concerning which 

the Supreme Court has not yet ruled that violate the state sovereign immunity doctrine under the U.S. Constitution? 

Question 9: Are there any federal statutes or sections thereof that go beyond Congress

Question for the Judicial Panel: Hon. Henry Wilhoit, Senior District Judge; 

Hon. Karl Forester, Chief Judge; Hon. Joseph Hood, Judge, U.S. District 

’ enumerated powers under the Constitution?

f Court for the Eastern District of Kentucky; Hon. Joseph Famularo, Deputy Secretary, Commonwealth of Kentucky 

Question 1: Thank you all for coming today to testify at this hearing on behalf 

of you colleague, Mr. Bunning. You have all been present for the testimony of Mr. 

Tremmier and Mr. Weiner of the American Bar Association, who feel that Mr. 

Bunning does not meet the necessary qualifications to serve as a federal judge. 

A. Having seen Mr. Bunning’s work firsthand, could each of you please speak 

briefly as to your opinion of his qualifications and why he should be confirmed despite an unfavorable ABA rating? 

B. In your opinion, is there something about Mr. Bunning’s experience and legal 

talents that make him a particularly strong choice for the federal bench?

f1133

SUBMISSIONS FOR THE RECORD

COMMONWEALTH OF KENTUCKY

OFFICE OF THE ATTORNEY GENERAL

FRANKFORT, KY 40601–3449

August 31, 2001

The Hon. Alberto Gonzalez 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Subject: Letter in Support of the Nomination of David Bunning As District Court 

Judge for the Eastern District of Kentucky

Dear Judge Gonzalez: 

I am writing in support of the nomination of David Bunning as District Court 

Judge for the Eastern District of Kentucky. I have known David for fifteen years. 

David and I first became acquainted when we both worked at the law firm of 

Brown, Todd and Heyburn in the firm’s Lexington, Kentucky office. 

David has served honorably as an Assistant United States Attorney for the Eastern District of Kentucky for ten years, and as such, he has acquired ten years of 

courtroom litigation experience in both civil and criminal cases. He is an exceptionally knowledgeable, skilled and hard working attorney. David is of the highest professional and personal character. He has an excellent reputation among his peers 

and in his community. David’s intelligence, education, courtroom experience and exemplary dedication to our federal justice system have prepared him well to serve 

in the federal judiciary. 

I respectfully support the nomination of David Bunning as District Court Judge 

for the Eastern District of Kentucky. 

Sincerely, 

ALBERT B. CHANDLER III 

f Attorney General

FAIRFAX, VA 22032

The Hon. Alberto Gonzalez 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Dear Judge Gonzalez: 

I am writing in support of the President’s nomination of Mr. David Bunning to 

be a United States District Court Judge for the Eastern District of Kentucky. I have 

known and worked with Mr. Bunning for many years. While serving as the United 

States Attorney for the Eastern District of Kentucky, I hired him first as a law clerk 

in that office, and then as an Assistant United States Attorney. In the years since, 

I have maintained both professional and personal contact with him. 

David Bunning would bring a wealth of practical experience to the federal bench, 

having tried and negotiated a broad range of federal criminal and civil cases in the 

United States Attorney’s office. His civil litigation experience will be of great benefit 

to the private bar, while his criminal litigation background will enable him to address knowledgeably and thoroughly the serious criminal justice matters that face 

a federal judge. 

Mr. Bunning is serious-minded, mature, and dedicated to the law and his work. 

He is also fair, discrete, and careful in his handling of all matters entrusted to him. 

He is not afraid to make decisions, but, in doing so, is attentive and open to all sides 

of issues. He clearly understands the unique responsibilities of representing the 

United States. Throughout his career, he has demonstrated his commitment to vigorous pursuit of wrongdoers while protecting the rights of citizens, including those 

charged with a crime, and to protecting the public treasury from unjust claims while 

ensuring just claims are fairly paid. 

1134

During and since my service with the United States Attorney’s office in the Eastern District, and in my prior position as a member of the House Judiciary Committee in the General Assembly of Kentucky, I have dealt with many legal professionals, including investigators, prosecutors, and judges. I can state without hesitation that Mr. Bunning’s unique abilities, skill, depth of legal knowledge, and remarkable character make him an exceptional choice to be a United States Federal 

District Judge. 

Sincerely, 

f LOUIS DE FALAISE

REPUBLICAN NATIONAL COMMITTEE

WAHSINGTON, D.C. 20003

August 29, 2001

Hon. Alberto Gonzales 

White House Counsel 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Dear Judge Gonzales: 

I am pleased to support the nomination of David L. Bunning as a federal district 

judge in Kentucky. As an attorney, banker, and resident of the eastern district of 

Kentucky, I know the importance of having highly qualified individuals on the 

bench. I predict that David Bunning will be an outstanding jurist. 

I know David by reputation and action. His reputation as an Assistant United 

States Attorney is impeccable. he has tried more federal cases in the past ten years 

than most eastern Kentucky attorneys try during their careers. David’s work ethic 

is strong, and he is always prepared. I have found him to be even-tempered and 

courteous. 

David Bunning is a young man with integrity, experience and ability. It is refreshing to see a person put aside potential personal gain for public service. David 

will justify your confidence for many years to come. 

Sincerely, 

f ROBERT M. DUNCAN

ADAMS, STEPNER, WOLTERMANN & DUSING, P.L.L.C. 

ATTORNEYS AND COUNSELORS AT LAW

COVINGTON, KENTUCKY 41012–0861

August 29, 2001

Hon. Alberto Gonzales 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Re: Hon. David L. Bunning, Judicial Nominee, U.S. District Court, Easter District 

of Kentucky

Dear Judge Gonzales: 

I have been practicing law in Northern Kentucky and The United States District 

Court for the Eastern District of Kentucky at Covington since 1974. I have known 

David Bunning since he was my law clerk during the summers while he was in law 

school at the University of Kentucky. We recruited Mr. Bunning, but our loss was 

the U.S. Attorney’s gain. 

David Bunnning will make an outstanding U.S. District Court Judge. Needless to 

say he has all the requisite qualifications: very intelligent, analytical, honest, of the 

highest integrity and always fair. But beyond those requisites, Mr. Bunning brings 

qualities of character and upbringing that, in my opinion assure he will be an outstanding trial court judge. Mr. Bunning is patient and approachable. He is savvy 

but not cynical. He is sure to maintain the dignity of the court and the efficiency 

of the federal justice system. But just as surely he will remain sensitive to the anxieties of all that come before him. 

1135

As a federal prosecutor Mr. Bunning has been firm but fair. He has been tireless 

in the prosecution of some cutting edge technological crimes as well as some old 

fashioned nasty ones I have seen him been over backwards to protect the constitutional rights of criminal defendants as he resolutely accomplished a conviction or 

guilty plea and stiff sentence of those individuals. Likewise I have seen him go the 

extra mile in assisting victims and both state and federal law enforcement investigations. 

In my opinion, Mr. Bunning’s nature, personality and core beliefs assure he is virtually immune to the affliction that some of my trial lawyer colleagues refer to as 

‘‘judgitis.’’ You know of it. Its symptoms are chronic impatience and crankiness and 

it is brought on by constant exposure to case overload, meritless motions, unprepared attorneys and the like. Having grown up as a twin and one of two of the 

youngest of nine children. Mr. Bunning’s unflappable personality is part of his being 

and is highly unlikely to change. 

This is not meant to be a ‘‘puff piece’’ for David Bunning. I am a card carrying 

lifelong Democrat. I am a former chairman of the Kentucky Bar Continuing Legal 

Education Commission and currently serve as a Kentucky Board of Bar Examiner 

by appointment of the Kentucky Supreme Court to assure the continued quality of 

entrants to the Kentucky Bar, as well as a Master Barrister active in our local chapter of American Inns of Court. I mention these items only to shed light on my nonpartisan perspective and my sincere professional interest in maintaining the very 

high quality of judicial talent we have been blessed with in the Eastern District of 

Kentucky. By any objective measure David Bunning is an excellent choice to continue this tradition. His confirmation will be good for the federal judicial system and 

good for its citizens. 

Thank you, the Senate Committee on the Judiciary and all of the Senate in advance, for an objective consideration and an expeditious confirmation of President 

Bush’s nomination of David L. Bunning as Judge, United States District Court for 

the Eastern District of Kentucky. 

At your service with kindest regards I remain, 

Very Truly Yours, 

f GERALD F. DUSING

LEXINGTON, KENTUCKY 40515

August 31, 2001

Hon. Alberto Gonzales 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Re: Nomination of David L. Bunning to the United States District Court, Eastern 

District of Kentucky

Dear Judge Gonzales: 

Please allow me to lend my support and endorsement of President Bush’s recent 

appointment of David L. Bunning to the Position of United States District Judge 

for the Eastern District of Kentucky. 

I was the United States Attorney for the Eastern District of Kentucky for eight 

years. and during that time David served as an Assistant United States Attorney. 

I found him to be an exceptional prosecutor. His work ethic is superb, and his attitude and demeanor are recommend his without hesitation. 

I am sure that upon confirmation David will prove to be an outstanding jurist. 

Yours very truly, 

JOSEPH L. FAMULARO

f1136

U.S. ATTORNEYS OFFICE

SOMERSET, KY 42503–4964

The Hon. Patrick Leahy 

Chairman, Committee on the Judiciary 

United States Senate 

SD–224

Washington, DC 20510

Re: David L. Bunning, Nominee for United States District Judge, Eastern District 

of Kentucky

Dear Senator Leahy, 

It has come to my attention that David Bunning, a nominee for United States District Judge for the Eastern District of Kentucky, has recently been rated ‘‘not qualified’’ for this position by the American Bar Association. I want to let you know as 

succinctly and concisely as possible, that as a colleague of David’s, I respectfully disagree with that organization’s assessment of his lack of qualifications for this position. 

David has been a colleague of mine for the past then year at the U.S. Attorney’s 

Office for the Eastern District of Kentucky. During that period of time, I have 

worked closely with David on numerous matters and have had a unique opportunity 

to observe firsthand, not only his legal skills, but his temperament, objectivity, dedication, and probably most importantly, his personal ethics. With that knowledge, I 

find it beyond comprehension that his qualifications would be even remotely questioned. 

While David possesses excellent legal skills inside the courtroom, those skills are 

only enhanced by the objectivity and dedication with which he does his job. In addition, David is one of the most even tempered people that I have I have ever known, 

and I can say without fear of contradiction that his ethical standards are among 

the highest of any attorney with whom I have ever dealt. 

As a colleague of David’s, and as a citizen of the Eastern District of Kentucky, 

I respectfully request that you afford him a hearing before the Senate Judiciary 

Committee so that you and your colleagues on the committee will have the opportunity to determine firsthand David’s qualifications for this position. 

Sincerely, 

f MARTIN L. HATFIELD

HELLINGS & PISACANO, P.S.C. 

ATTORNEY AND COUNSELORS AT LAW

COVINGTON, KENTUCKY 41011

September 4, 2001

Hon. Alberto Gonzales 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Re: David Bunning, Esq., Appointment to Federal District Bench

Dear Mr. Gonzales: 

I have been asked to write a letter expressing my views of Mr. Bunning’s pending 

appointment as Federal District Judge, for the Eastern District of Kentucky. 

By way of introduction, I am a criminal attorney licensed in Ohio and Kentucky 

and all Federal Courts therein. I began my practice as a state prosecutor in Covington, Kentucky in 1974 and have labored in the ‘‘trenches’’ ever since. 

My experience with Mr. Bunning has been exclusively in his capacity as an 

A.U.S.A. in the Eastern District of Kentucky, where I met him shortly after his appointment to the Covington, Kentucky office in 1991. Our path’s have crossed on 

several occasions, both in court and at the negotiating table. We have been on opposite sides of several complicated cases, as such I believe I am qualified to evaluate 

his competence, professionalism and honesty. 

1137

Mr. Bunning possesses the unique quality of being an aggressive adversary, while 

being fair and open-minded. As a negotiator, he has been honorable and forthright 

and a credit to his office. I have no hesitation in saying I trust him. 

I should further like to point out that the Criminal Bar in the Eastern District 

is small enough, that most of the practioners know or are acquainted with one another. In my conversations with others in the legal community, I have heard nothing which would alter or change my opinion. 

I am confident that Mr. Bunning’s appointment to the Bench, will bring a man 

of character and integrity. I, for one look forward to practicing in front the him. 

Sincerely, 

fHARRY P. HELLINGS, JR., ESQ.

SARAH JACKSON

UNION, KY 41091

September 7, 2001

Hon. Orrin Hatch 

Ranking Member, Committee on the Judiciary 

United States Senate 

SD–152

Washington, D.C. 20510

Dear Honorable Hatch: 

I would like to take this opportunity to recommend David Bunning for the position of U.S. District Judge for the Eastern District of Kentucky. As the primary victim in the Randy Cope case, I cannot say enough about Dave Bunning. Mr. Bunning 

had a vision—a special perception. From our initial meeting, it was obvious he could 

feel our lives were in danger. After watching him work, his dedication and expertise 

truly amazed me. He was will to risk his own life to protect the lives of my family. 

Working with Dave Bunning gave me a sense of protection. As the old cliche ́ goes, ‘‘Actions speak louder than words!’’ Dave Bunning’s actions showed that he cared 

about me and he cared about my son. He was truly wonderful to work with in such 

a time of desperation, devastation, stress, and turmoil. 

After getting his own life threatened by the Cope Family, Dave Bunning continued to show his bravery and his support. Even though the federal officials felt it 

best for him to be removed from the case, I knew his heart was there. He is one 

very caring soul. 

From the experience I have had with the Eastern District judges, I can assure 

you that Dave Bunning has worked with and been trained by some of the most educated, caring and individuals in the legal system. The judges in the Covington office 

appear to be united, knowledgeable, and extremely dedicated. I know Dave has that 

positive attitude, compassion and devotion engrained in him. 

Dave Bunning is a man of character. My hat is surely off to him! He helped save 

our lives. Therefore, it is without reservation that I highly recommend him to fill 

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

Sincerely, 

f SARAH JACKSON

ADAMS, STEPNER, WOLTERMANN & DUSING, P.L.L.C. 

ATTORNEYS AND COUNSELORS AT LAW

COVINGTON, KENTUCKY 41012–0861

August 29, 2001

Hon. Alberto Gonzales 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Re: David Bunning

Dear Senator Leahy: 

I was born and raised in Kentucky. I live in Villa Hills, a small town in Northern 

Kentucky with my wife and four children. My family, and my wife’s family, have 

1138

lived in Northern Kentucky for generations. My children go to school in the community and will, in all likelihood, live here. I am a lawyer. I represent and defend cities, counties, police officers and elected officials in civil rights, employment and tort 

liability cases. I have practiced law in Kentucky for 18 years, primarily in federal 

court. I am a Democrat. 

With this background, I feel that I am uniquely positioned to comment on President Bush’s appointment of David Bunning to fill a vacancy as a federal district 

judge in the United States District Court for the Eastern District of Kentucky. I 

know David Bunning personally, and I know what this community needs, and deserves in a federal district judge. 

From firsthand experience, I can attest to the fact that David Bunning is a man 

of integrity and honor, two attributes that are critical in maintaining respect for the 

judiciary and the difficult decisions that federal district judges are forced to make. 

David’s word is his bond, and he has always demonstrated the utmost respect for 

the court, the lawyers he works with, and his staff. David works hard, has demonstrated a well-rounded knowledge of the law and plays by the rules. A federal district judge must possess these qualities to tackle an increasingly diverse caseload, 

administer justice in a timely fashion, and show the citizens that justice is blind. 

David’s age, energy and enthusiasm are positive attributes that should be part 

of the job description for a federal judge. David will be able to serve this community 

for many years, and the wisdom that he develops with the cases that he decides 

will only serve to benefit the administration of justice in the community. If David 

handles his docket like he has handled his cases as a prosecutor, I am confident 

that there will be no backlog, the litigants’ arguments will be considered on their 

merits, and correct and appropriate decisions rendered. 

Finally, and with strong conviction, I must emphasize that David Bunning has 

the experience, both in life and in the legal profession, to serve as a federal district 

judge. David is married, has children and knows what it is like to be responsible 

for a family and to serve a community, In his occupation, he has handled a wide 

variety of cases in representing the United States. I have observed him in the courtroom, and I have no doubt that he knows right from wrong, good from ban, and acceptable from unacceptable behavior. 

Without question, I have a vested interest in who serves as federal district judge 

in my community. But my interests are noble because I believe that Northern Kentucky needs and deserves a qualified, dedicated and fair person to serve such a critical role in our judicial system. David Bunning meets our needs. I full support President Bush’s appointment of David to the Bench and strongly urge the Senate to confirm his appointment. 

Sincerely, 

f JEFFREY C. MANDO

PARRY DEERING FUTSCHER & SPARKS, P.S.C. 

ATTORNEYS AT LAW

COVINGTON, KY 41012–2618

September 7, 2001

The Hon. Alberto Gonzalez 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Dear Judge Gonzales: 

I have been a practicing trial attorney in the Northern Kentucky-Greater Cincinnati area for almost thirty years. I am not sure that any lawyer in this area has 

much more trial experience than I do, and my experience has been in both federal 

and state courts in this area and across the nation. 

I am writing to strongly recommend the nomination of David Bunning to the positions of Judge for the United States District Court, Eastern District of Kentucky. 

David Bunning is a young man, but he enjoys an excellent reputation as a lawyer. 

he is very bright and honest, and would be an excellent federal judge. 

I normally support Democratic candidates and causes, but in this situation, I am 

very happy to endorse Mr. Bunning. On the merits, he most surely deserves the 

nomination. 

1139

Thank you for reading this letter. 

Sincerely, 

f RON R. PARRY

GRAYDON HEAD & RITCHEY LLP 

ATTORNEYS AT LAW

FLORENCE, KENTUCKY 41042–1312

August 23, 2001

The Hon. Alberto Gonzalez 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Re: Nomination of David L. Bunning to the United States District Court, Eastern 

District of Kentucky

Dear Judge Gonzalez: 

Please allow me to commend the President on his appointment of David L. 

Bunning to fill one of the vacancies on the United States District Court, Eastern 

District of Kentucky. 

In 13 years of practice in Kentucky, I have encountered hundreds of very capable 

attorneys. David unquestionably ranks in the top tier of that group. He has been 

an extremely hard working and successful prosecutor with the United States Attorney’s Office, and his service, integrity and commitment to community are beyond 

reproach. 

My congratulations to the President on a superb selection. 

If I can be of assistance on this or any other matter in the future, please let me 

know. 

Very truly yours, 

THOMAS A. PREWITT

fGraydon Head & Ritchey LAP

LEXINGTON, KENTUCKY 40047

November 1, 2001

The Hon. Patrick Leahy 

Chairman, Committee on the Judiciary 

United States Senate 

SD–224

Washington, D.C. 20510

Re: Hon. David L. Bunning, nominee for the United States District Judge for the 

Eastern District of Kentucky

Dear Senator Leahy: 

I am a senior Assistant United States Attorney in the Eastern District of Kentucky. I have 23 years tenure as a AUSA and currently investigator and prosecute 

major frauds and white collar crimes. I am sending this letter in my private capacity. 

I was surprised to read in Kentucky newspapers two weeks ago that the American 

Bar Association had indicated to your committee that nominee Bunning was unqualified to serve as a United States District Judge. It is my understanding that 

my colleague, AUSA David Bunning, was found to be qualified by a substantial minority of the ABA reviewing group but that others of the group found him ‘‘unqualified’’ because he had not practiced law for a minimum of 12 years (news reports indicate that the 12 year practice rule is an acknowledged ABA guideline). 

Upon being licensed to practice over 10 years ago, David joined the professional 

staff of our office. The United States Attorney’s Office for the Eastern District is a 

medium sized office with a reputation among our client agencies for proactive and 

skillful litigation. We cover half the state and try cases in six geographical locations. 

We have a lot of experienced AUSA’s and a collegian atmosphere which fosters mentoring. This office provides to its professional staffers a pure litigation experience. 

1140

We don’t do wills, trusts or estates; we do not do corporate work and it is certainly 

not necessary for any of us to be ‘‘rain makers’’. Purely and simply, our function 

is to litigate, full time, civilly and criminally. Then years as an AUSA in this district 

is like the finest graduate degree in litigation one could obtain. We are constantly 

immersed in both the theory and technique of effective trial representation. I have 

been a AUSA twice; in 1971 I left this office to join a major litigation oriented commercial firm representing banks and coal interests. I quickly became aware that my 

intensive experience for 18 months as an AUSA allowed me to compete effectively 

and comfortably against skilled counsel 20 years my senior. If you want to become 

effective as a trial lawyer, there is no better place to become skilled than the U.S. 

Attorney’s Office. 

I relate the above to indicate to you that David’s tenure as an AUSA in this district has equipped him well to serve as a district judge. David is a bright, hard 

working family man of 35 who is possessed of an excellent legal skills portfolio. In 

addition, he is a personable individual with a good sense of values, integrity and 

equity. To label David as ‘‘unqualified’’ is unfair and manifestly untrue. 

I would hope that your committee would hold a hearing on Mr. Bunning’s nomination. I think that you and the other committee members would be persuaded as to 

David’s excellent qualifications by the testimony of sitting federal judges, our former 

U.S. Attorney and others who know David and his abilities from first hand exposure. 

Sincerely, 

f ROBERT E. RAWLINS

MT. WASHINGTON, KENTUCKY 40047

October 25, 2001

Senator Patrick Leahy 

Chairman, Committee on the Judiciary 

United States Senate 

SD–224

Washington, D.C. 20510

Re: Judicial Nominee David Bunning

Dear Senator Leahy: 

I am writing this letter to recommend to you that a hearing be conducted on the 

qualifications of Assistant United States Attorney David Bunning to be a United 

States District Judge for the Eastern District of Kentucky. 

For the past sixteen years I have had the honor of being an Assistant United 

States Attorney for the Western District of Kentucky. During David’s tenure in the 

Eastern District I have on numerous occasions been involved with joint investigations with David and the Covington, Kentucky, office and have been able to observe 

his professionalism and good judgment. Moreover, David and I have worked with 

the same agents from many federal investigative agencies and I know that they 

share the same opinion of David that I do. It has come to my attention that the 

American Bar Association has found David’s qualifications to be unsatisfactory. Senator, as a former prosecutor yourself, I believe that you can understand the distress 

all of us who are his colleagues felt when we read the A.B.A. comments in a statewide newspaper. David has practiced both civil and criminal law in United States 

District Court for the past ten years on a day-to-day basis. From the observations 

of agents who work with him, judges whom he practices before, and from myself, 

he has acquitted himself well. It begs the question then as to how David is unqualified. 

Finally Senator, I want to make you aware of a fact about David that may not 

be contained in much of the information you have received. That is, that David was 

born with a cleft-palate. Fortunately, his parents were able to get medical help for 

him and his disability is hardly noticeable. However, this is a disability which David 

has had to overcome; a disability can reach the heights David has already. Not infrequently I am confronted by parents of a child with a cleft-palate who question 

what modern medicine can do for their baby and whether or not he or she can live 

a normal life. When I am confronted by those parents, I tell them about my friend 

David Bunning who overcame his disability and became a trial lawyer. 

Very truly yours, 

RANDY REAM

Attorney at Law

f1141

GREENEBAUM DOLL & MCDONALD PLLC 

COVINGTON, KENTUCKY, 41012–2673

November 26, 2001

Hon. Patrick Leahy 

Chairman, Committee on the Judiciary 

United States Senate 

SD–224

Washington, D.C. 20510

Re: Nomination of David L. Bunning

Dear Senator Leahy: 

This correspondence is forwarded to support the President’s nomination of David 

L. Bunning to be a United States District Court Judge for the Eastern District of 

Kentucky. 

To introduce myself, I am a lifelong, registered Democrat. I have been privileged 

to practice law for over twenty-five (25) years in the State and Federal Courts of 

Kentucky and Ohio. It has been my privilege to serve as President of the Kentucky 

Bar Association, to serve as an Adjunct Professor of Law at Chase College of Law 

and to Chair the Visiting Committees at the University of Kentucky Collage of Law 

and Chase College of Law. In the practice of law, I have primarily specialized in 

civil litigation, practicing regularly in the Federal Courts of the Eastern District of 

Kentucky and am a Life Member of the Sixth Circuit Judicial Conference. 

It is without reservation and with personal and professional conviction that I author and send to you this letter to strongly encourage you and your Judiciary Committee to vote in favor of the President’s nomination of David Bunning to the Federal Bench in the Eastern District of Kentucky. David Bunning has demonstrated 

that he has the character, integrity and intellect to meet and exceed the rigorous 

demands of a Federal Judge. His work in the Federal Courts is widely respected. 

His record of success as a litigator, primarily in criminal litigation matters in more 

recent years, speaks for itself. 

It is interesting to note the most nominees to the Federal Bench, at least in our 

part of the country, naturally bring to the Bench extensive experience in civil litigation and are regularly approved on the apparent assumption that they can quickly 

learn and master the substance and subtleties of the criminal law in the many 

criminal cases that will come before them on the Bench. I respectfully submit that 

the converse is no less valid when applied to David Bunning and his record of excellence and achievement primarily as a Federal criminal prosecutor in the Eastern 

District of Kentucky. There can be no better witnesses to the esteem in which he 

is held as an experienced practitioner than the opinions of the experienced Federal 

District Judges in the Eastern District of Kentucky who have seen him ‘‘in action’’

in their court rooms. I am confident that you will hear from most all of them that 

they recognize and respect David Bunning as a lawyer possessing those personal 

and professional qualities and characteristics needed for the Federal Bench. 

If further comment or information from me would be useful to you or your Committee regarding the nomination of David Bunning, please do not hesitate to have 

one of your Staff contact me at your convenience. This letter was not requested by 

the Nominee, but is simply an initiative which I have undertaken to lend my support and encouragement to you and your Judiciary Committee in support of David 

Bunning’s nomination by the President because I am convinced that he has ‘‘the 

right stuff’’ and will serve with distinction on the Federal Bench, once confirmed by 

your Committee and the Senate. 

Be assured of my appreciation to you and the Members of your Committee for 

your consideration of this correspondence. 

Respectfully submitted, 

WM. T. ROBINSON III

f1142

COVINGTON, KENTUCKY 41011

August 23, 2001

Hon. Patrick Leahy 

Chairman, Committee on the Judiciary 

United States Senate 

SD–224

Washington, D.C. 20510

Hon. Orrin Hatch 

Ranking Member, Committee on the Judiciary 

United States Senate 

SD–152

Washington, D.C. 20510

Mr. Neal Suit, Esq/

Office of Legal Policy 

U.S. Dept. of Justice 

950 Pennsylvania Ave., NW 

Washington, D.C. 20530

Re: Judicial nomination of David Bunning, Esq., Eastern District of Kentucky, 

Covington

Dear Senator Leahy, Senator Hatch and Mr. Suit, 

Please find enclosed a letter that I have forwarded to Judge Gonzales in support 

of David Bunning, Esq., an Assistant United States Attorney, who has been nominated by President George Bush for a judgeship here in the Eastern District of Kentucky. 

While we have been blessed with good judges for many years, we need to continue 

this good fortune. I believe this young man possesses much promise and would give 

yers of faithful and talented service to the judiciary. Additionally, the citizens of the 

Commonwealth of Kentucky would be blessed by his approval because he is truly 

one of us. 

Thank you for your review of the enclosed and I would ask that he be confirmed 

quickly so that he can begin this service. 

Very truly yours, 

f CHAS. H. SCHAFFNER

COVINGTON, KENTUCKY 41011

August 23, 2001

Hon. Alberto Gonzalez 

White House Counsel 

The White House 

1600 Pennsylvania Ave., NW 

Washington, D.C. 20500

Re: Judicial nomination of David Bunning, Esq., Eastern District of Kentucky

Dear Judge Gonzalez, 

This letter is written in support of AUSA David Bunning who has been nominated 

for one of the federal judicial posts here in Kentucky. I have had the high privilege 

of practicing law in the Southern District of Ohio as well as both federal districts 

here in the Commonwealth of Kentucky. I have appeared many times before many 

judges and prosecutors. I believe, because of this exposure, I can and should express 

an opinion as to this person’s qualifications. While David and I are of differing political persuasions, he being a Republican, and myself be a reconstituted, liberal Democrat, I can report to you that I believe he has those qualities needed to be able 

to discharge those awesome responsibilities of a federal judge. 

Additionally, he has a quality, which cannot be learned, taught or assimilated 

quickly just because of his recent nomination. I am speaking of his temperament. 

For several years I have had some firsthand observations, which reflect that he 

treats his coworkers, fellow attorneys, staff, as well as accused individuals, in a 

Christian manner, which has been most impressive to me, a practicing attorney. 

1143

Furthermore, he is a man of his word and can be trusted to do the right thing in 

all situations. I sincerely hope that the members of the organized bar here in Northern Kentucky write to support his nomination because I believe he is the best person for the job. It has been a pleasure to watch his development over the past decade and while I will miss him as a prosecutor I will warmly welcome his presence 

when he assumes the bench. Thank you and please feel free to call or write should 

you need anymore information from me. 

Very truly yours, 

f CHAS. H. SCHAFFNER

TAFT, STETTINIUS & HOLLISTER LLP 

COVINGTON, KENTUCKY 41011–4704

October 19, 2001

The Hon. Patrick Leahy 

Chairman, Committee on the Judiciary 

United States Senate 

SD–224

Washington, D.C. 20510

Re: David Bunning

Dear Senator Leahy: 

Please know that I disagree strongly with the ABA’s recent assessment of David 

Bunning’s qualifications to serve as Federal District Judge. David has earned the 

respect and trust of his peers and ‘‘logged’’ thousands of hours practicing in Federal 

Court over the years. I have no doubt that David will serve the judiciary with the 

same high level of competence as he has the United States Attorney, and that those 

practicing in his courtroom will be treated with firm respect and absolute fairness. 

I have known David for many years and though I am primarily engaged in civil 

litigation, I have opposed him on several criminal matters. Without exception, I 

found him to be tough, fair, forthright, articulate and responsive. David will bring 

these qualities to the bench. I have the utmost confidence that his demeanor and 

decisions, both civil and criminal, will exhibit his high qualifications and personal 

standards. 

David Bunning has my strong recommendation for appointment as Federal District Judge for the Eastern District of Kentucky. 

Very truly yours, 

f J. STEPHEN SMITH

ARNZEN & WENTZ, P.S.C. 

ATTORNEYS AT LAW

COVINGTON, KENTUCKY 41012–0472

August 30, 2001

Hon. Alberto Gonzales 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20500

Dear Judge Gonzales: 

It is with great pleasure that I write to you on behalf of David L. Bunning, nominee for appointment to the U.S. District Court for the Eastern District of Kentucky. 

I recommend his confirmation. 

Since the Honorable William Bertelsman announced that he would take senior 

status, the legal community has been united behind the effort to fill the vacancy 

promptly with the best possible candidate. 

Mr. Bunning’s name was mentioned early as a possible candidate, and I can report to you that I have heard nothing disqualifying about him, indeed, the news of 

his nomination was greeted with universal approval. 

Although I do not practice criminal law, and therefore have not had the pleasure 

of working personally with David Bunning in his role as Assistant U.S. Attorney, 

he and I have worked together on various professional matters, most recently at a 

1144

seminar for the local chapter of the Federal Bar Association. I have always found 

him pleasant to work with, reliable, and demonstrating the utmost in professionalism. Moreover, those of my colleagues who do work with David Bunning have 

been very complimentary of his work ethic, ability and integrity. I can think of no 

finer qualities for a Judge. 

If you have any questions or if there is anything else that I can do, please don’t 

hesitate to contact me. 

Sincerely, 

BEVERLY R. STORM

f Arnzen & Wentz, P.S.C.

TALIAFERRO, MEHLING, SHIROONI, CARRAN & KEYS, PLLC 

ATTORNEYS AT LAW

COVINGTON, KENTUCKY 41012–0466

October 24, 2001

The Hon. Patrick Leahy 

Chairman 

Senate Judiciary Committee 

SD–224

Washington, D.C. 20510

Dear Senator Leahy: 

I have known David Bunning for a number of years. I believe that he would make 

an outstanding United States District Court Judge for the Eastern District of Kentucky. I worked with Dave Bunning on cases and I feel that he is exceptionally well 

qualified. 

Even though I am a life-long Democrat, I am willing to testify before the Judiciary 

Committee on behalf of Dave Bunning. 

Let me know if a hearing will be scheduled. Thank you. 

Very truly yours, 

f PHILIP TALIAFERRO

COVINGTON, KY 41011

August 29, 2001

The Hon. Alberto Gonzales 

White House Counsel 

The White House 

1600 Pennsylvania Avenue, NW 

Washington, D.C. 20500

Re: Nomination for District Judge—Eastern District of Kentucky

Dear Hon. Judge Gonzales: 

As a very young lawyer in Northern Kentucky in the 1970’s, I witnessed firsthand 

the infighting and the struggle by various candidates to fill the position of the 

United States District Judge in the Eastern District of Kentucky sitting at Covington. After literally years, I was pleased to see the nomination and confirmation 

of Wm. O. Bertelsman who has honorably filled that position. 

When Judge Bertelsman announced his senior status, I silently prayed then 

dreaded a repeat of that remembered troubled time within the legal community. 

As a self-described ‘liberal Democrat’ I knew I would have to oppose any nomination by the recently inaugurated Republican occupant of the White House. 

And then to my delight, my colleague, David L. Bunning, was chosen to fill this 

post. I have known David in excess of 12 years, both as a competent practicing attorney, advocate for his clients, and lecturer on federal issues and practices. You 

will certainly receive many comments attesting to his intellect, skills and effectiveness which are now his resume. But to me, for a federal judge, the most important 

qualifies are his integrity, genuine fairness—and no hint of aloofness. The litigants 

and lawyers before a Judge Bunning will be treated respectfully and receive prompt 

attention to their pleas. The tradition of retiring Judge Bertelsman will continue. 

1145

So I am not surprised that since David’s nomination announcement, there has not 

been a repeat of the controversy of years ago. The community and its lawyers have 

responded favorably and without a hint of displeasure. 

It is always hard for me to find nice things to say about Republicans, but I hereby 

volunteer for the task to praise David L. Bunning. I commend the President for his 

choice and I wish David long tenure as a confirmed appointee to the bench. 

Sincerely, 

PAUL J. VESPER

Æ