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S. Hrg. 110–969 

NOMINATIONS OF KATHRYN A. OBERLY AND 

ALFRED S. IRVING JR. 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

ON THE 

NOMINATION OF KATHRYN A. OBERLY TO BE AN ASSOCIATE JUDGE, 

DISTRICT OF COLUMBIA COURT OF APPEALS, AND ALFRED S. IRVING 

JR. TO BE AN ASSOCIATE JUDGE, SUPERIOR COURT OF THE DISTRICT 

OF COLUMBIA 

NOVEMBER 17, 2008 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

JOHN E. SUNUNU, New Hampshire 

MICHAEL L. ALEXANDER, Staff Director 

BETH M. GROSSMAN, Senior Counsel 

KRISTINE V. LAM, Professional Staff Member 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

JENNIFER L. TARR, Minority Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Akaka .................................................................................................. 3 

Senator Voinovich ............................................................................................. 3 

Prepared statements: 

Senator Akaka .................................................................................................. 66 

Senator Voinovich ............................................................................................. 67 

WITNESSES 

MONDAY, NOVEMBER 17, 2008 

Hon. Hillary Rodham Clinton, U.S. Senator from the State of New York ......... 1 

Hon. Eleanor Holmes Norton, Delegate of the District of Columbia, U.S. 

House of Representatives .................................................................................... 2 

Kathryn A. Oberly to be an Associate Judge, District of Columbia Court 

of Appeals ............................................................................................................. 6 

Alfred S. Irving Jr. to be an Associate Judge, Superior Court of the District 

of Columbia ........................................................................................................... 7 

ALPHABETICAL LIST OF WITNESSES

Clinton, Hon. Hillary Rodham: 

Testimony .......................................................................................................... 1 

Irving, Alfred S. Jr.: 

Testimony .......................................................................................................... 7 

Biographical and professional information ..................................................... 39 

Norton, Hon. Eleanor Holmes: 

Testimony .......................................................................................................... 2 

Oberly, Kathryn A.: 

Testimony .......................................................................................................... 6 

Biographical and professional information ..................................................... 13 

Responses to additional questions from Senator Coburn .............................. 36 

(1) 

NOMINATIONS OF KATHRYN A. OBERLY AND 

ALFRED S. IRVING JR. 

MONDAY, NOVEMBER 17, 2008 

U.S. SENATE, COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:36 p.m., in room 

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

presiding. 

Present: Senators Akaka and Voinovich. 

Senator AKAKA. This hearing will come to order. I want to say 

good afternoon to everyone and to welcome our nominees along 

with their family and friends to the Committee today. I am glad 

to have Senator Clinton here and I am going to ask her to make 

her statement as we begin. 

Senator Clinton, it is an honor to have you here. 

STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. 

SENATOR FROM THE STATE OF NEW YORK 

Senator CLINTON. Thank you very much, Chairman Akaka. I appreciate greatly the opportunity to be here to introduce Kathryn 

Oberly as you consider her nomination to be an Associate Judge on 

the District of Columbia Court of Appeals. 

I have known Ms. Oberly most of my life and I have come to admire her as a friend and respect her for her many achievements 

in both the public and the private sectors. We are from the same 

suburb of Chicago, called Park Ridge, and we attended the same 

Methodist church, and even then I could see her proclivities for arguing the finer points of the law. After graduating from the University of Wisconsin Law School, she served as a law clerk to the Hon. 

Donald P. Lay of the U.S. Court of Appeals for the Eighth Circuit. 

And at the conclusion of her clerkship, she began 12 years at the 

U.S. Department of Justice, first as a trial attorney in the Appellate Section of the Land and Resources Division. Then she rose to 

become Special Assistant to the Attorney General in the same division, handling litigation, advising on matters of policy, and drafting 

legislative proposals. As an Assistant to the Solicitor General, she 

briefed and argued more than a dozen cases before the Supreme 

Court of the United States. 

And since leaving the Justice Department, she has broadened 

her experience in the private sector, first as a partner in a major 

law firm and then as General Counsel at Ernst and Young. She 

will bring the perspective of all of those years of experience in both 

2 

the public and the private sides of the law, as well as being a mother who raised her son while working and achieving so much in her 

professional career. 

On a personal level, I know she has the calm and level-headed 

temperament of a judge and she will bring the understanding of 

the District of Columbia, where she has lived for more than 30 

years and has been very much a part of this community. Her nomination is the result of the careful and nonpartisan process of the 

D.C. Judicial Nominating Commission, which as you know recommends nominees on the merits to the White House to fill key judicial posts. 

The D.C. Court of Appeals has all of the jurisdiction of a State 

Supreme Court, and the cases that come before these justices run 

the gamut, affecting all aspects of life in the District. Ms. Oberly 

will bring her varied and rich experiences in the business community, as an appellate lawyer in the public sector, as an active member of the legal community, and as a devoted member of this community in which she lives to consider the cases before her fairly 

and thoroughly on behalf of all who come before the court. 

I am pleased that Senator Voinovich is here, and I really consider it an honor to commend this nominee to this Committee. She 

is an extraordinarily accomplished lawyer, a very good person with 

wonderful values who will serve the people of the District of Columbia very well if she is given the honor of being confirmed for 

this position. Thank you. 

Senator AKAKA. Thank you very much. It is an honor to have you 

here to speak for her and it is good to hear about your relationship. 

I thank you very much. I know how Senators are always busy, so 

please feel free to leave when you want to. 

Senator CLINTON. Thank you very much. 

Senator AKAKA. Thank you. 

I would like now to call on Delegate Norton for her statement. 

STATEMENT OF HON. ELEANOR HOLMES NORTON, DELEGATE 

OF THE DISTRICT OF COLUMBIA, U.S. HOUSE OF REPRESENTATIVES 

Ms. NORTON. Thank you, Mr. Chairman. I very much appreciate 

that you and my good friend Senator Voinovich, whom I am 

pleased to see here, are taking advantage of this session to confirm 

two more judges for the D.C. Superior Court. 

I want to thank the Committee for your work in bringing the 

number of judges back to the authorized amount. This is a very 

busy court and we once again have 59 judges for the D.C. Superior 

Court. While they were funded that way because of an anomaly in 

the way in which the new Family Court Provision was authorized, 

the Superior Court, itself, was not fully staffed, and here are the 

two judges that the Committee has recommended and who are the 

President’s nominees. 

I am very pleased to speak for Alfred Irving Jr., and to say that 

I think he is especially well qualified because he knows the court 

on which he has been nominated to serve. He has been a magistrate on that court. Magistrate Irving, however, came to that position with extensive trial experience in two national law firms and 

as a senior litigator at the Justice Department. He is the kind of 

3 

1The prepared statement of Senator Akaka appears in the Appendix on page 00. 

2The prepared statement of Senator Voinovich appears in the Appendix on page 00. 

magistrate that I am sure, when he applied, the District was very 

pleased to have for his extensive trial work throughout his career. 

He graduated from Georgetown Law Center and is more than 

qualified to serve as a judge on the court that he has appeared before. He has appeared, as well, before, and is a member of the bar, 

of a number of Federal courts. He is an exceptionally well-qualified 

nominee and I am pleased to offer him without reservation to you 

this afternoon. 

Senator AKAKA. Thank you very much, Delegate Norton, for your 

introduction. We are always glad to hear from friends, and it will 

certainly make a difference in what happens here. I am glad that 

we had the time to hold this hearing and hopefully we can move 

these nominations as quickly as we can. Thank you so much for 

coming. 

Ms. NORTON. Thank you, Mr. Chairman. 

OPENING STATEMENT OF SENATOR AKAKA1

Senator AKAKA. Today, the Committee on Homeland Security 

and Governmental Affairs meets to consider the nominations of 

Kathryn Oberly to be an Associate Judge on the District of Columbia Court of Appeals, and Alfred Irving Jr. to be an Associate 

Judge on the District of Columbia Superior Court. 

I am pleased to be holding this hearing today to consider, as we 

have heard, such distinguished and well-qualified candidates. I 

have been impressed with the caliber of the recent nominees to the 

District of Columbia bench, and Ms. Oberly and Judge Irving are 

no exceptions to that pattern. 

Normally, we would not move forward with nomination hearings 

so late in the session. However, these two nominees clearly are well 

qualified and we have not identified any potential concerns that 

warrant further investigation. That is why we are working hard to 

consider these nominations in the final days of the 110th Congress. 

Both of the nominees before us have impressive legal backgrounds. Ms. Oberly currently is General Counsel of Ernst and 

Young. She has served with distinction in the public sector at the 

Department of Justice as well as the private sector, and she has 

argued numerous cases before the U.S. Supreme Court. 

Judge Irving currently is a magistrate judge on the D.C. Superior 

Court and he also spent 14 years as an accomplished attorney in 

the Department of Justice. 

I want to now call on Senator Voinovich for his opening statement. Senator Voinovich. 

OPENING STATEMENT OF SENATOR VOINOVICH2

Senator VOINOVICH. Thank you, Mr. Chairman. It is unusual 

that we are having this hearing today. As you know, we are kind 

of running out of time and this week we will be here for who knows 

how long, but not long. I was pleased that Senator Lieberman and 

Senator Collins asked Senator Akaka and I to hold this hearing as 

a hearing not of our Subcommittee, but of the full Committee, and 

4 

hopefully we will be able to vote these nominees out of here and 

get this done before everybody tips their hat. 

I want to extend a welcome to the nominees. We appreciate your 

time and your willingness to serve the District of Columbia. It 

takes a unique individual to be a judge. Judges have significant responsibilities of protecting citizens’ rights and liberties, as well as 

upholding and interpreting the law. I know that, if confirmed, the 

two of you will do the very best you can to uphold those high standards. 

Senator Akaka and I have spent a great deal of time reviewing 

the Federal Government’s efforts to find the best and brightest employees in an era when we are losing highly skilled potential employees to a private sector that in many instances offers higher salaries. I think the District of Columbia faces similar challenges in 

its efforts to find the best and brightest for its court system. 

Mr. Chairman, I have reviewed both of these nominees’ biographical questionnaires and believe that the District of Columbia 

has found two such individuals in these nominees. In fact, you have 

heard me say on many occasions I wish that we had the same quality of individuals in some of the other jurisdictions throughout this 

country. I note that both of the nominees have substantial experience in both the public and private sectors in a number of different 

subjects. 

Ms. Oberly has been nominated to the D.C. Court of Appeals. 

She is currently the General Counsel for Ernst and Young and was 

previously in private practice and also spent more than 10 years 

at the Department of Justice. I am not sure if you know this or not, 

Ms. Oberly, but Ernst and Young started in Cleveland, Ohio, and 

then they moved out to a lot of other places, but were one of our 

great corporate citizens. When I was mayor, they were of great 

help to me. 

Judge Irving has been nominated to be an Associate Judge of the 

D.C. Superior Court. As Eleanor Holmes Norton said, you have 

been a magistrate, so you know what the bench is about and you 

have had a tremendous amount of experience in the past. 

Since the Chairman has done so, I won’t go through all of your 

qualifications and so forth. 

Again, I want to thank both of you for being here today. I know 

that you have members of your family here who are very proud of 

you. I thank your families for the sacrifice that they have made so 

that you can be here, and I will assure them, they will be making 

more sacrifices because of the fact that you are sitting on the 

bench. 

Thank you, Senator Akaka. 

Senator AKAKA. Thank you very much, Senator Voinovich. 

Both of the nominees have filed responses to a biographical and 

financial questionnaire. Without objection, this information will be 

made part of the hearing record, with the exception of the financial 

data, which will be kept on file and made available for public inspection in the Committee office. 

Our Committee rules require that all witnesses at nomination 

hearings give their testimony under oath. Therefore, I ask each of 

you to please stand and raise your right hand to take the oath. 

5 

Do you solemnly swear that the testimony you will give before 

this Committee is the truth, the whole truth, and nothing but the 

truth, so help you, God? 

Ms. OBERLY. I do. 

Mr. IRVING. I do. 

Senator AKAKA. Thank you. Please note for the record that the 

witnesses answered in the affirmative. 

Before we proceed with your statements, I understand that the 

witnesses are joined by family members today and I was glad to 

be able to shake your hands before we started. I would like to take 

a moment to welcome them to the Committee. Ms. Oberly, I am 

told that your husband, Haynes Johnson, your son, Michael, your 

brother, Jim, and your sister-in-law, Louise, have joined us today. 

Judge Irving, I understand that your parents, Alfred Irving Sr., 

and Christine, are here today, as well. I want to welcome them. 

Ms. Oberly, if you will take a moment to formally introduce your 

family and your friends who are here today, will you please go 

ahead, and I will ask Judge Irving to do the same. 

Ms. OBERLY. Thank you, Mr. Chairman. I am very pleased to be 

here and to have this opportunity. Obviously, I would like to thank 

Senator Clinton for her very kind and warm introduction. This is 

a very memorable day for me and made all the more so by her willingness to take time out of her hectic schedule and come here today 

to introduce me. 

Of course, it is also very memorable for me that my family members can be here with me, so I would like to have them be acknowledged. Although you have done that, I would like to do it a second 

time around. With me are my husband, Haynes Johnson, my son, 

Michael Goelzer, my brother, Jim Oberly, and my sister-in-law, 

Louise Miriam. They are here from California and Minnesota today 

and I very much appreciate their efforts to join me at this important event. 

Senator AKAKA. Thank you. Judge Irving. 

Mr. IRVING. Thank you, Senator Akaka and Senator Voinovich. 

It is my great pleasure to introduce to you people who I consider 

my angels. They have been supportive of me, some of whom for my 

entire life. They have encouraged me and they have loved me, two 

ingredients that I think that one needs during one’s existence in 

order to navigate the trials and tribulations of life. 

Those angels are Dr. Robert Benedetti, whom I consider one of 

my staunchest supporters. Two other people, Alfred S. Irving Sr., 

and Christine Irving, they have known and loved me from day one. 

They celebrated their 50th wedding anniversary this year, and my 

dad just celebrated his 75th birthday, so many milestones that we 

are appreciative for and our blessings. 

Also, my sister, Shelley Irving Biglow, and husband, William, 

and my nephew, Brandon, are here. Also, Sonya Irving Ross, my 

sister, and her children, Reneka and Rahmon. And I have to say 

this about Rahmon, who is 13 years old, he is one of the ‘‘brainiacs’’ 

in our family. He followed all of the recent primary elections, both 

Democratic and Republican, the conventions, and attended the voting with his family. I am very proud of him. 

My cousin, Tamika Irving Robinson, is here. My former colleagues, Peter Flynn, from the Department of Justice, and a very 

6 

dear friend; and Judge Carol Dalton, and Judge Odessa Vincent. 

Presiding Civil Judge, Stephanie Duncan-Peters, whom I am in 

constant contact virtually throughout each day of the week, and finally, our new Chief Judge of the Superior Court, Lee F. Satterfield 

is here, offering their support and love. Thank you. 

Senator AKAKA. Thank you very much for introducing all of 

them, and again, I want to say welcome to all of you. 

I will begin with asking each of you these questions that we do 

before we hear your statements. I would like to ask each of you, 

is there anything that you are aware of in your background that 

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

which you are about to be nominated? 

Ms. OBERLY. No, Mr. Chairman. 

Mr. IRVING. No. 

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

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

nominated? 

Ms. OBERLY. No, Mr. Chairman. 

Mr. IRVING. No. 

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

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

Ms. OBERLY. Yes, sir. 

Mr. IRVING. Yes. 

Senator AKAKA. Thank you very much for your responses, and 

now I would like to ask Ms. Oberly for your personal statement. 

TESTIMONY OF KATHRYN A. OBERLY TO BE AN ASSOCIATE 

JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS 

Ms. OBERLY. Thank you, Mr. Chairman and Senator Voinovich. 

I already introduced my family members, but I also would like to 

acknowledge my friends and colleagues who are here in the audience today. I would like to thank my dear friends, Lois Schiffer and 

Mary Frances Pearson, for their supportive ears during this process. I also thank my many colleagues from the D.C. office of the 

Ernst and Young Legal Department who are here today, as well as 

my senior deputy from New York, Bob Cohen, and my administrative assistant of the past 17 years, Karen Ballard, who is also here 

today. I have been very fortunate to work with such talented professionals. 

I would also like to thank Chief Judge Washington for coming 

today. I know already that I am very lucky to have been nominated 

to work with him and with the other outstanding judges on the 

D.C. Court of Appeals. 

Mr. Chairman, I am very grateful for the opportunity to appear 

before the Committee today. I am deeply honored to have been recommended by the D.C. Judicial Nomination Commission, which I 

know considers many qualified candidates, and I am, of course, extremely grateful to the President for having nominated me to serve 

on the D.C. Court of Appeals. 

I also especially thank this Committee for holding the hearing 

today during such an incredibly busy and important time here in 

our Nation’s capital. I know that the Committee staff has moved 

7 

mountains to make this hearing possible at this late stage in the 

110th Congress and I do appreciate that. 

I also would like to thank Scott Coffina and others at the White 

House Counsel’s Office who have been extremely helpful in guiding 

me through the nomination and confirmation process, and I do appreciate their assistance. 

Mr. Chairman, as someone who has lived in the District of Columbia her entire adult life, I would welcome the opportunity to 

serve the District as a judge on the D.C. Court of Appeals. If I am 

fortunate enough to be confirmed, I commit to devoting my legal 

skills and energy to the work of the court on behalf of the citizens 

of the District. I also commit to treating all litigants with the respect and fairness necessary to maintain the public’s confidence in 

the court. If confirmed, I will approach all matters that come before 

me with the highest degree of impartiality and objectivity, and I 

will do my utmost to ensure that all litigants feel that they have 

been accorded the full and fair consideration that their matters deserve. 

Thank you again for the opportunity to be here today and for 

your consideration of my nomination, and I welcome any questions 

the Committee may have. 

Senator AKAKA. Thank you. Judge Irving. 

TESTIMONY OF ALFRED S. IRVING JR. TO BE AN ASSOCIATE 

JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA 

Mr. IRVING. Senator Akaka, thank you. I want to thank the Committee on Homeland Security and Governmental Affairs for the 

privilege of appearing before you and for your moving so expeditiously with setting this hearing. I also wish to thank the D.C. Judicial Nomination Commission for recommending me to the President. I wish to thank the President for selecting and nominating 

me to fill this vacancy that was created by the retirement of Judge 

Mary Terrell. And I would like to thank Congresswoman Norton 

for her kind introduction. 

I would like to thank your staff for their professionalism and for 

making this process palatable and very easy to navigate. And finally, I, too, wish to thank Associate White House Counsel Scott 

Coffina for all of his assistance, his guidance, and his professionalism, as well. Thank you. 

Senator AKAKA. Thank you very much. 

I have some questions, and I will then defer to Senator Voinovich 

for his. But to both of you, you are very successful attorneys who 

have handled complex, important cases for the Department of Justice and elsewhere. My question to both of you is, why did you decide to seek nomination to become a judge and what contributions 

do you hope to make, if confirmed? Ms. Oberly. 

Ms. OBERLY. Thank you, Mr. Chairman. As I mentioned in my 

statement, this is my home, this is my community, and I have enjoyed a very exciting and varied career in both the public sector at 

the Justice Department and then in the private sector thereafter. 

But I feel at this stage in my career, the way that I can best use 

my legal talents is by giving back to the District of Columbia in 

recognition of all that the District has given me, and that is what 

I hope to do as a judge on the D.C. Court of Appeals, to assist the 

8 

court in its important work for the citizens of the District, and I 

believe that is perhaps one of the highest callings that a lawyer 

can, in fact, do as a means of public service to her community. That 

is exactly what I hope to do. 

Senator AKAKA. Thank you. Judge Irving. 

Mr. IRVING. Yes. I have been a resident of the District of Columbia for approximately 27 years, so it is my home. It has been my 

home all of my adult life, and I have always had an interest in 

serving the people of the District of Columbia. As a member of the 

D.C. Bar, I participated in the Bar’s pro bono programs, offering 

legal assistance to people who otherwise could not afford that assistance. 

In this last year and a little better on the bench, I have concluded that this type of work suits my nature. I enjoy resolving 

matters. I have learned many lessons from my parents and one primary lesson is to treat others with dignity and respect, and that 

has always been a practice of mine. I carry those principles with 

me to the bench and I believe I have made a significant difference 

in this last year and I would like to continue that type of service. 

Senator AKAKA. Thank you. 

Judge Irving, you have been a magistrate judge on the D.C. Superior Court since July 2007. 

Mr. IRVING. Yes. 

Senator AKAKA. How has that position prepared you for being an 

associate judge, what do you believe would be your biggest challenge in transitioning from being a magistrate judge to an associate 

judge, and how will you address that challenge? 

Mr. IRVING. Since, Senator, my becoming a magistrate judge, I 

have served on essentially two calendars, the Collections and Subrogation Calendar as well as the Tax Lien Foreclosure Calendar. 

I also have served or presided over felony presentments and misdemeanor arraignments every 21⁄2 months. So I have experienced 

quite a bit. I have worked hard. I have been diligent. And I have 

taken my position very seriously. 

With respect to how those situations have prepared me, I have 

handled motions hearings. I have presided over trials, ex parte 

proof hearings, and have also contributed to the Civil Rules Committee, where I serve, as well as a subcommittee on rules concerning small claims. So I believe all of those tasks with which I 

have approached with much zeal and much energy and much industry, all will serve me well as an associate judge. 

One of the challenges that I have observed is the fact that the 

numbers are increasing of pro se litigants. They come to the court 

with special needs. They do not know how to navigate the legal 

system, either procedurally or substantively, and what the court 

has endeavored to do in the past years and what I have endeavored 

to do on my calendars is to establish resource centers that are 

managed by very skilled attorneys who provide legal support pro 

bono to self-represented parties that removes a lot of the mystery 

of self-representation, educates them as to their rights, the likelihood of prevailing, and whether they should explore settlement offers. 

So pro se litigants prove to be a big challenge for the court and 

will continue to be. As we move forward with landlord-tenant 

9 

cases, the numbers of pro se litigants are increasing. As our aging 

population increases, there will be increasing numbers of pro se 

litigants in probate and tax. So I would say pro se litigants and 

their efforts to represent themselves pose one of the greatest challenges for the court. 

Senator AKAKA. Thank you. 

Ms. Oberly, I would like to ask you to address that issue, as well. 

What do you anticipate your biggest challenge would be in becoming a judge and how do you plan to overcome that challenge? 

Ms. OBERLY. I have been fortunate to have a very diverse career 

in my more than three decades of practicing law, so I have certainly, in my Justice Department days, spent time handling criminal matters and since then more civil matters. But I recognize that 

it has been a long time since I have spent as much time on criminal matters, for example, as the docket of the D.C. Court of Appeals is likely to present to the judges deciding those cases, and so 

I am fully prepared to roll up my sleeves and get to work and learn 

what it is I need to get back up to speed, changes in the law that 

have occurred, and I would approach that the same way I have approached any other new facet of my career over the past several 

decades where I find myself dealing with new issues. 

But I have never been afraid of hard work; I think that is the 

way I’ve managed to master new areas in the past and it is the 

way I will intend to do that on a go-forward basis if I am so fortunate as to be confirmed. 

Senator AKAKA. Thank you. 

Now let me call on Senator Voinovich for his questions. 

Senator VOINOVICH. Ms. Oberly, I am sure you have appeared before a number of judges and have observed a variety of judicial 

temperaments. I would like you to discuss what you believe to be 

the appropriate temperament and approach of a judge. 

Ms. OBERLY. Thank you, Senator Voinovich. I think it is a very 

important question, and I believe that it is critical that litigants 

appearing before judges, no matter what the outcome of the case, 

where almost by definition one side will be happy and one side will 

be unhappy, should both go away feeling that their matters have 

been given the full, careful, and fair consideration that they deserve regardless of what the outcome is, that they have been treated with respect, that their arguments have been listened to, and 

that they have had the opportunity for the judicial system to bring 

all of its hard work and careful consideration to their matters so 

that they at least leave the process feeling that the respect the 

process should command was appropriately placed in the confidence of the courts to do the right job for the citizens of the District. 

Senator VOINOVICH. I think that in my experience, on occasion, 

we have had people that seemed, once they got to the bench, to 

have lost all humility. [Laughter.] 

Ms. OBERLY. I have appeared before some of those people from 

time to time, but I hope that I can remember those appearances 

that I have had and make sure that I don’t cause litigants appearing before me to go away feeling that way. 

Senator VOINOVICH. The other thing is, and you have already 

mentioned it, you haven’t had very much experience in terms of 

10 

criminal law and you are going to have to really brush up on that. 

I think you know that. 

Ms. OBERLY. Right. 

Senator VOINOVICH. And then on the rules and procedures of the 

appeals court, you are going to have to also work hard. You are 

going to have a lot of homework to do, I think, in the beginning. 

Ms. OBERLY. That is true, although in my job as General Counsel 

of Ernst and Young, I have been managing litigation in courts all 

across the country, and while the rules obviously vary somewhat 

from one court to another, the general procedures and policies are 

not all that different. And so I need to be totally current and familiar with D.C. Court of Appeals procedures, and I intend to make 

sure that I am, but I don’t feel that I am approaching an environment in which I don’t have an awful lot of background experience 

with other courts that operate in a similar fashion. So I hope that 

will help me get up to speed faster. 

Senator VOINOVICH. Does working with other appeals courts 

around the country give you a pretty good idea of what you ought 

to be doing? 

Ms. OBERLY. Yes. 

Senator VOINOVICH. Judge Irving, I think it is wonderful that 

these folks that come up and don’t have a lawyer, you try to work 

with them, but how do you handle that lawyer that comes in and 

is not prepared to represent their client? How do you deal with 

somebody like that? 

Mr. IRVING. That happens, Senator, more often than you might 

imagine. Since taking the bench, what I have done is taken a stepby-step approach, rather than hitting attorneys with the shock that 

the rules do apply, that they are required to follow the Rules of 

Civil Procedure and of Evidence, and should know their cases much 

better than the judge, who has spent the weekend preparing for 

the week’s calendar. I have strongly urged them to take the time 

to learn their cases because the prior chief judge, in particular, 

with a management team, instituted performance standards. And 

I take my position very seriously and endeavor zealously to adhere 

to those standards, one of which is to resolve matters as expeditiously as possible. 

I do recognize that there are challenges in attorneys’ lives, as 

well, that may cause them not to be as prepared in one case as 

they would like to be. So it is a gradual admonishment, if you are 

not going to be prepared this time, I will give you a couple of weeks 

to be prepared and you should come back prepared. 

Senator VOINOVICH. Well, if that reputation gets around, more of 

them will be prepared. 

In your background, you talked about the backlog of cases, motions, and other things that you dealt with. Tell me about that a 

little bit, and do you expect that you are going to have the same 

kind of a challenge as an associate judge? 

Mr. IRVING. Well, when I took the bench, there were matters that 

for some reason or other were not resulted in a timely fashion. 

There were matters that were several years old. And I believe we 

have a much better computer tracking system so that when a particular matter is not resulted a few months prior and there is not 

a next event date set for that particular matter, that matter shows 

11 

up on what we call an exceptions report. There are about four or 

five different case tracking reports that I review on a weekly basis 

so that I can stay abreast of what is ready to be acted upon and 

what is not. 

The two calendars I manage involve very heavy filers. I believe 

I have approximately 2,100 active cases. So it requires not only a 

diligent, hard working judge, but also a team of other folks, and 

I have had the support of both the chief judge of the court as well 

as the presiding judge of the Civil Division who have provided me 

with additional bodies to try to work through the backlog and stay 

current with all matters that are being filed currently. 

So there are controls in place and there are people available to 

the calendar to assist me in resulting matters sooner than later. I 

believe we all, at the court, take our duties seriously and do whatever we can with the resources that we have to see to it that decisions are rendered speedily. 

Senator VOINOVICH. Thank you. 

Senator AKAKA. Well, thank you very much, Senator Voinovich. 

I want to thank our witnesses also very much for your statements. There are no further questions from me at this time. Members of the Committee may submit additional written questions for 

the record. The hearing record will remain open until the close of 

business today for Members of this Committee to submit additional 

statements or questions they may have. 

Although time is very short in this Congress, I believe that you 

both are very well qualified for the positions to which you have 

been nominated. It would be a shame to leave the D.C. courts with 

vacancies if we can fill them with nominees of high caliber. It is 

my hope that the Committee and the Senate will be able to act on 

your nominations as soon as we can. 

I thank you and your families and friends very much for being 

here today. 

Do you have any further comment before we adjourn, Senator 

Voinovich? 

Senator VOINOVICH. No. 

Senator AKAKA. With that, this hearing is adjourned. 

[Whereupon, at 3:17 p.m., the Committee was adjourned.] 

(13) 

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