<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:30256.wais]
S. Hrg. 109-397, Pt. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
----------
APRIL 25, MAY 2, MAY 24, AND JUNE 15, 2006
----------
PART 4
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Serial No. J-109-4
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
30-256 PDF
2006
S. Hrg. 109-397, Pt. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
APRIL 25, MAY 2, MAY 24, AND JUNE 15, 2006
__________
PART 4
__________
Serial No. J-109-4
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
30-256 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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TUESDAY, APRIL 25, 2006
STATEMENT OF COMMITTEE MEMBER
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
PRESENTERS
Boxer, Hon. Barbara, a U.S. Senator from the State of California
presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for
the Ninth Circuit.............................................. 2
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Milan D. Smith, Jr., Nominee to be
Circuit Judge for the Ninth Circuit............................ 3
Lautenberg, Hon. Frank, a U.S. Senator from the State of New
Jersey presenting Renee Marie Bumb, Nominee to be District
Judge for the District of New Jersey, Noel Lawrence Hillman,
Nominee to be District Judge for the District of New Jersey,
Peter G. Sheridan, Nominee to be District Judge for the
District of New Jersey, and Susan Davis Wigenton, Nominee to be
District Judge for the District of New Jersey.................. 5
Menendez, Hon. Robert, a U.S. Senator from the State of New
Jersey presenting Renee Marie Bumb, Nominee to be District
Judge for the District of New Jersey, Noel Lawrence Hillman,
Nominee to be District Judge for the District of New Jersey,
Peter G. Sheridan, Nominee to be District Judge for the
District of New Jersey, and Susan Davis Wigenton, Nominee to be
District Judge for the District of New Jersey.................. 6
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon
presenting Milan D. Smith, Jr., Nominee to be Circuit Judge for
the Ninth Circuit.............................................. 4
STATEMENTS OF THE NOMINEES
Bumb, Renee Marie, Nominee to be District Judge for the District
of New Jersey.................................................. 51
Questionnaire................................................ 52
Hillman, Noel Lawrence, Nominee to be District Judge for the
District of New Jersey......................................... 78
Questionnaire................................................ 79
Sheridan, Peter G., Nominee to be District Judge for the District
of New Jersey.................................................. 106
Questionnaire................................................ 107
Smith, Milan D., Jr., Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 8
Questionnaire................................................ 11
Wigenton, Susan Davis, Nominee to be District Judge for the
District of New Jersey......................................... 138
Questionnaire................................................ 139
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TUESDAY, MAY 2, 2006
STATEMENTS OF COMMITTEE MEMBERS
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 161
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 325
PRESENTERS
Camp, Hon. Dave, a Representative in Congress from the State of
Michigan presenting Sean F. Cox, Nominee to be District Judge
for the Eastern District of Michigan, and Thomas L. Ludington,
Nominee to be District Judge for the Eastern District of
Michigan....................................................... 165
Levin, Hon. Carl, a U.S. Senator from the State of Michigan
presenting Sean F. Cox, Nominee to be District Judge for the
Eastern District of Michigan, and Thomas L. Ludington, Nominee
to be District Judge for the Eastern District of Michigan...... 162
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia presenting Kenneth L. Wainstein, of
Virginia, Nominee to be Assistant Attorney General, National
Security Division, Department of Justice....................... 164
Stabenow, Hon. Debbie A., a U.S. Senator from the State of
Michigan presenting Sean F. Cox, Nominee to be District Judge
for the Eastern District of Michigan, and Thomas L. Ludington,
Nominee to be District Judge for the Eastern District of
Michigan....................................................... 163
STATEMENTS OF THE NOMINEES
Cox, Sean F., of Michigan, Nominee to be District Judge for the
Eastern District of Michigan................................... 203
Questionnaire................................................ 204
Ikuta, Sandra Segal, of California, Nominee to be Circuit Judge
for the Ninth Circuit.......................................... 166
Questionnaire................................................ 167
Ludington, Thomas L., of Michigan, Nominee to be District Judge
for the Easter District of Michigan............................ 228
Questionnaire................................................ 229
Wainstein, Kenneth L., of Virginia, Nominee to be Assistant
Attorney General, National Security Division, Department of
Justice........................................................ 257
Questionnaire................................................ 258
QUESTIONS AND ANSWERS
Responses of Sandra Ikuta to questions submitted by Senator Boxer 330
Responses of Kenneth Wainstein to questions submitted by Senator
Leahy.......................................................... 336
SUBMISSIONS FOR THE RECORD
Allen, Hon. George, a U.S. Senator from the State of Virginia,
prepared statement............................................. 342
Warner, Hon. John, a U.S. Senator from the State of Virginia,
prepared statement............................................. 344
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WEDNESDAY, MAY 24, 2006
STATEMENT OF COMMITTEE MEMBER
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina....................................................... 347
PRESENTERS
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina, presenting Frank D. Whitney, Nominee to be District
Judge for the Western District of North Carolina............... 349
Dole, Hon. Elizabeth, a U.S. Senator from the State of North
Carolina, presenting Frank D. Whitney, Nominee to be District
Judge for the Western District of North Carolina............... 347
STATEMENTS OF THE NOMINEES
Guilford, Andrew J., of California, Nominee to be District Judge
for the Central District of California......................... 350
Questionnaire................................................ 352
Whitney, Frank D., of North Carolina, Nominee to be District
Judge for the Western District of North Carolina............... 377
Questionnaire................................................ 378
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THURSDAY, JUNE 15, 2006
STATEMENTS OF COMMITTEE MEMBERS
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 409
Leahy, Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 574
PRESENTERS
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi
presenting Daniel P. Jordan, III, Nominee to be District Judge
for the Southern District of Mississippi....................... 414
Fortuno, Hon. Luis G., the Resident Commissioner in Congress from
the Commonwealth of Puerto Rico presenting Gustavo A. Gelpi,
Nominee to be District Judge for the District of Puerto Rico... 412
Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma
presenting Jerome A. Holmes, Nominee to be CIrcuit Judge for
the Tenth Circuit.............................................. 411
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi
presenting Daniel P. Jordan III, Nominee to be District Judge
for the Southern District of Mississippi....................... 410
STATEMENTS OF THE NOMINEES
Holmes, Jerome, A., of Oklahoma, Nominee to be Circuit Judge for
the Tenth Circuit.............................................. 417
Questionnaire................................................ 418
Jordan, Daniel P., III, of Mississippi, Nominee to be District
Judge for the Southern District of Mississippi................. 466
Questionnaire................................................ 467
Gelpi, Gustavo A., of Puerto Rico, Nominee to be District Judge
for the District of Puerto Rico................................ 507
Questionnaire................................................ 508
QUESTIONS AND ANSWERS
Responses of Jerome Holmes to questions submitted by Senators
Leahy, Kennedy, Feingold, and Durbin........................... 546
SUBMISSIONS FOR THE RECORD
Binder, Steven, Deputy Public Defender, County of San Diego, San
Diego, California, letter...................................... 566
Crantfield, Rev. Glenn, President and Chief Executive Officer,
City Rescue Mission, Oklahoma City, Oklahoma, letter........... 567
Hoch, William H., Crowe & Dunlevy, Oklahoma City, Oklahoma,
letter......................................................... 568
Holloway, William J., Jr., Judge, Tenth Circuit, U.S. Court of
Appeals, Oklahoma City, Oklahoma, letter....................... 569
Holmes, Jerome, A., of Oklahoma, Nominee to be Circuit Judge for
the Tenth Circuit, letter...................................... 570
Inhofe, Hon. James, a U.S. Senator from the State of Oklahoma,
statement and attachment....................................... 571
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi,
statement...................................................... 575
McCampbell, Robert G., Crowe & Dunlevy, Oklahoma City, Oklahoma,
letter......................................................... 578
Murphy, Brooke S., Crowe & Dunlevy, Oklahoma City, Oklahoma,
letter......................................................... 580
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ALPHABETICAL LIST OF NOMINEES
Bumb, Renee Marie, Nominee to be District Judge for the District
of New Jersey.................................................. 51
Cox, Sean F., of Michigan to be District Judge for the Eastern
District of Michigan........................................... 203
Gelpi, Gustavo A., of Puerto Rico, to be District Judge for the
District of Puerto Rico........................................ 507
Guilford, Andrew J., of California, to be District Judge for the
Central District of California................................. 350
Hillman, Noel Lawrence, Nominee to be District Judge for the
District of New Jersey......................................... 78
Holmes, Jerome, A., of Oklahoma, to be Circuit Judge for the
Tenth Circuit.................................................. 417
Ikuta, Sandra Segal, of California, to be Circuit Judge for the
Ninth Circuit.................................................. 166
Jordan, Daniel P., III, of Mississippi, to be District Judge for
the Southern District of Mississippi........................... 466
Ludington, Thomas L., of Michigan to be District Judge for the
Easter District of Michigan.................................... 228
Sheridan, Peter G., Nominee to be District Judge for the District
of New Jersey.................................................. 106
Smith, Milan D., Jr., Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 8
Wainstein, Kenneth L., of Virginia, to be Assistant Attorney
General, National Security Division, U.S. Department of Justice 257
Whitney, Frank D., of North Carolina, to be District Judge for
the Western District of North Carolina......................... 377
Wigenton, Susan Davis, Nominee to be District Judge for the
District of New Jersey......................................... 138
NOMINATIONS OF MILAN D. SMITH, JR., OF CALIFORNIA, TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT; RENEE MARIE BUMB, OF NEW JERSEY, TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, OF NEW
JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G.
SHERIDAN, OF NEW JERSEY, TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW
JERSEY; AND SUSAN DAVIS WIGENTON, OF NEW JERSEY, TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY
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TUESDAY, APRIL 25, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:17 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, presiding.
Present: Senators Hatch and Feinstein.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Senator Hatch. I am going to get started. Senator Feinstein
is coming, and we will interrupt whatever we are doing,
including Senators at the table, when Senator Feinstein gets
here because she can only be here for a short while and then
has to leave. But why don't we start with you, Senator Smith,
and then we will start with you, Senator Boxer.
Senator Smith. If I may, may I have Senator Boxer go first?
Senator Hatch. That would be great.
Senator Smith. She is the Senator of the State.
Senator Hatch. Oh, that is right. Excuse me. She is from
the State of California. Sorry, Senator Boxer. We are happy to
have you.
Senator Boxer. It is only 37 million people.
[Laughter.]
Senator Hatch. That high now?
Senator Boxer. Honestly.
Senator Hatch. Another 3 million illegal aliens.
Senator Boxer. No, no, no.
[Laughter.]
Senator Hatch. Senator Boxer, we are honored to have you
here.
PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. BARBARA BOXER, A U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Mr. Chairman, I am speechless. Anyway, this
is a wonderful day, and I so thank you for allowing me to be
here on behalf of Milan Smith, and I am thrilled to be here.
You know, blood is thicker than water, but I almost feel like
part of the family in this sense: that I have wanted this for a
long time. I think this nomination is going to be great for
this country. And so I am here to offer my strong support for
Milan Smith. He is very well regarded by those who know him and
work with him, and I am supremely confident that should he be
confirmed, he will discharge his responsibilities with dignity,
with integrity, and with intelligence.
We have had so many tough arguments over judges, and here
is one where I hope we are not going to have one at all,
because I think that this particular candidate just meets every
standard that one could want, whether one is a Republican or a
Democrat.
Mr. Smith received his B.A. cum laude from Brigham Young
University in 1966, his J.D. from the University of Chicago Law
School in 1969, and from there he moved to California to embark
on a very impressive legal career. He joined the prestigious
firm of O'Melveny & Myers upon his graduation, and he later
started his own firm, where he is the managing partner.
Mr. Smith's career, however, has not been limited to
private practice. He has dedicated his time and his expertise
to public service as well.
Mr. Chairman, in 1984, Governor Deukmejian appointed Mr.
Smith to the Governing Board of the Los Angeles State Building
Authority, where he served as president until 1992. Since then,
he has asked at the Authority's general counsel.
In 1987, Mr. Smith also was appointed as a member of
California's Fair Employment and Housing Commission, where he
served for 3 years. Throughout his work for the citizens of
California, Mr. Smith has demonstrated compassion, courage, and
understanding of the hardships faced by average citizens. He
has shown a willingness to examine all sides of an issue and to
develop thoughtful and balanced solutions to problems.
Mr. Chairman, he has fought for those who have been
discriminated against, and he has added his strong voice to
them, and he has shown courage. And I now know why he is such a
strong supporter of equal rights for women, because I have met
many of the women in his family, whom you will, I am sure, meet
when, I am sure, Gordon will introduce them.
So, in summary, through his public and his private work,
Mr. Smith has earned the admiration of his colleagues, and
today Mr. Smith has come to Washington.
[Laughter.]
Senator Boxer. And I hope when he leaves Washington, the
chances that he will become--that he will be elevated to this
unbelievable position as a Ninth Circuit judge will be pretty
much a slam-dunk, I hope. He is an individual of great
character, an independent thinker. I have profound respect for
him, and it is a very happy day for me. And I would love to
stay here if I might to hear my colleague's comments and also
that of Senator Feinstein's, if I might stay for those.
Senator Hatch. Well, thank you. We are honored to have you
here, Senator Boxer, and we appreciate the kind remarks that
you have given on behalf of Mr. Smith.
Senator Feinstein, we will turn to you.
PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. DIANNE FEINSTEIN, A U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Well, thank you very much, Mr. Chairman.
I am sure I could probably just do this by saying ``Ditto''
after what my friend and colleague said.
[Laughter.]
Senator Feinstein. But I would like to also put in my 2
cents' worth, and it is a great pleasure to join with Senator
Boxer in introducing Milan D. Smith, Jr., who is nominated for
the Ninth Circuit Court of Appeals.
Milan Smith has had a long and distinguished legal career
in California. After graduating for the university of Chicago
Law School in 1969, he moved to Los Angeles, and he has been an
important part of the legal community there ever since.
In 1972, he founded the law firm now known as Smith, Crane,
Robinson & Parker, and so for the last 34 years, he has been
associated with that law firm and engaged in a wide-ranging
legal practice in business and real estate law.
As an attorney, he has, I think, demonstrated a commitment
to serving the public, from presiding over the Governing Board
of the Los Angeles State Building Authority, to acting as Vice
Chairman of Ettie Lee Homes for Youth. After reviewing his
record, a majority of the ABA rated him well qualified, and as
is obvious, he is the brother of our colleague, Oregon Senator
Gordon Smith, who is sitting at the table. What some of you may
not know, unless Senator Boxer mentioned it, his maternal
grandfather, Jesse Udall, was the Chief Justice of the Arizona
Supreme Court, so there is real precedent for familial service
on our Nation's highest courts.
I am very pleased to join with my colleague in supporting
his nomination, and I urge a speedy confirmation.
Senator Hatch. Well, thank you, Senator Feinstein. We
appreciate you being here, and we appreciate your kind remarks.
Senator Smith, we will turn to you, and then we are going
to go to Senator Menendez.
PRESENTATION OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. GORDON SMITH, A U.S.
SENATOR FROM THE STATE OF OREGON
Senator Smith. Thank you, Mr. Chairman. May I express to my
colleagues from California how much their presence here means
to me and their kind words about my big brother; also to you,
Mr. Chairman, for your chairing this hearing, by your request;
and also may I thank President Bush for his confidence in Milan
and for moving this nomination.
As you might imagine, having one's brother nominated to
this high court, which has jurisdiction over the State of
Oregon, is a very moving thing for me personally. I am deeply
honored that my kinsman will be a Federal judge. As you can
also imagine, my feelings are a little tender right now, so I
have written out what I want to say.
Because my emotions are somewhat close to the surface this
morning, as I drove to work, when I got there, I turned to a
book that I often turn to, to find wisdom. There I found in the
Book of Kings a statement that I think is appropriate for this
occasion: ``And God gave Solomon wisdom and understanding
exceeding much, and largeness of heart, even as the sand that
is on the sea shore. And Solomon's wisdom excelled the wisdom
of all the children and of all the wisdom of Egypt. For he was
wiser than all men, and his fame was in all nations round
about.''
Mr. Chairman, without equating Milan to Solomon, I can,
without equivocation, speak to his many Solomon-like qualities.
Milan, Jr., is the eldest of Milan and Jessica Udall Smith's
ten children. I am the eighth in that number and Milan's
youngest brother.
In my 54 years of life, Milan has been an example and force
for good in our family and, since the death of our parents, has
been truly a family leader and friend to us all, through times
of tears and times of cheers.
For as far back as my memory serves, I have been witness to
a concourse of people who have sought him out for wisdom and
judgment, for counsel and comfort, on matters great and small.
These have included my parents, myself, and all of my brothers
and sisters, cousins and kinsmen from far and wide, his own six
children, and, of course, his legions of legal clients over
many decades.
Without respect of persons, he has been a wise friend and a
good shepherd to all. His academic preparations and provident
life speak for themselves. But, in sum, what I can say is that
he is one of the wisest men I have ever known. He has an
understanding heart, a heart for judgment. He is possessed of
the spirit of discernment between good and bad, right and
wrong, the just and the unjust.
I cannot think of a time or a court when a man of his
quality and preparation are more sorely in need than this one
and in our time. While I doubt that Milan's fame as a judge
will spread Solomon-like throughout the world, I do predict
that those who come before his court will find his judgments
will mean the world to them.
His judgments do mean the world to me.
So, my Senate colleagues, I commend to you a man who has
dusted me off many times, as a boy and as a man when I have
fallen, and showed me the way to better paths, to life's sunny
uplands--my brother, Milan Dale Smith, Jr. I urge his
confirmation to the Ninth Circuit Court of Appeals.
I thank you, Mr. Chairman.
Senator Hatch. Well, thank you, Senator Smith. I have sat
through literally about a thousand of these, and I have to say
I have never heard a more eloquent presentation. However, I
chalk it up to the fact that he is your brother.
[Laughter.]
Senator Hatch. Actually, it was really great, I think. Of
course, I have known Milan for a while, too, and I have a very
high opinion of him and of his legal abilities. So we are
really happy you Senators could be with us. And, Senator
Feinstein, we are glad you could be here as well.
We are going to turn--I am sorry, Senator Menendez. I have
to go to Senator Lautenberg first, and then I will come to you.
PRESENTATION OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G.
SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW
JERSEY; AND SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY, BY HON. FRANK LAUTENBERG, A
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman. Sorry I am
rushing in kind of last minute here, but I was stuck on a train
in here and it took just a minute more than we would like, so
my apologies, because I am so fortunate, Senator Menendez and I
have four wonderful candidates to present to you, Mr. Chairman,
and to the Judiciary Committee. They are Renee Bumb, Susan
Wigenton, Noel Hillman, and Peter Sheridan. They have all been
nominated to serve as district court judges in New Jersey.
Now, I know each of them has family members here today, and
I am sure that they will want to take the opportunity to make
introductions of them.
Mr. Chairman, people often look at New Jersey on the map
and think that they are looking at a small State, but they are
wrong. While we are relatively small geographically, we have
the tenth largest population in the country. And despite our
large population, the entire State shares one Federal judicial
district, and it has been at times difficult to make sure all
of the regions of the State feel properly resented--
represented--I am sorry, they are resented--represented in the
Federal district of New Jersey.
[Laughter.]
Senator Lautenberg. They call that Freudian, I guess, Mr.
Chairman.
Senator Hatch. Really. Go ahead.
Senator Lautenberg. What is great about the group of
nominees before us today is that they come from different
regions of our State and add to the diversity of the Federal
bench.
Renee Bumb, right behind me on the left, is currently the
attorney in charge of the Camden U.S. Attorney's Office. She
has a reputation as an excellent prosecutor. She has handled
cases ranging from drug trafficking to white-collar crime, and
since 2000, Ms. Bumb has supervised all of the attorneys in her
office while continuing to try cases herself, specifically
those dealing with public corruption.
Now, Judge Susan Wigenton has been a full-time Federal
magistrate judge in Newark since 2000. Before that, she served
as a part-time Federal magistrate and worked as a solo
practitioner focusing on civil rights cases. Judge Wigenton
also worked in a law firm and served as a public defender in
Asbury Park, New Jersey. She has been a first-rate magistrate
judge, and I am confident that Judge Wigenton will make an
excellent district court judge.
Peter Sheridan has spent the last decade as a named partner
at Graham, Curtin & Sheridan in Trenton. Prior to that he has
worked in private practice at other law firms and has a strong
record of public service. He served as Director of the
Authorities Unit for the State of New Jersey, Vice President
and General Counsel of the Atlantic City Casino Association,
and an attorney with the Port Authority of New York and New
Jersey.
Now, Mr. Noel Hillman served as the Chief of the Public
Integrity Section at the Department of Justice, leading a team
of 30 attorneys who investigate and prosecute public corruption
cases nationwide. Now, Mr. Hillman has a reputation for taking
on crimes that undermine public confidence in our political
system no matter how political or controversial. Before he went
to the Justice Department, Mr. Hillman served as Deputy Chief
of the Criminal Division of the U.S. Attorney's Office in New
Jersey.
And so, Mr. Chairman, we have four excellent nominees who
will represent New Jersey and the country well, and I am proud
not only to introduce them to the Committee, but to
enthusiastically endorse their confirmation, and I hope that
the Judiciary Committee will do the same.
Thank you very much.
Senator Hatch. Thank you very much, Senator. That is high
praise for these nominees.
Senator Menendez, we are happy to welcome you to the
Committee and look forward to hearing for you.
PRESENTATION OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY; NOEL LAWRENCE HILLMAN, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; PETER G.
SHERIDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW
JERSEY; AND SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY, BY HON. ROBERT MENENDEZ, A U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Menendez. Thank you, Mr. Chairman. I am very
pleased to be once again before the Committee to testify along
with my distinguished senior colleague, Senator Lautenberg, and
the privilege of introducing to the Committee four more
distinguished New Jerseyans that have been nominated by the
administration to serve on the Nation's judiciary system.
I do not have the great privilege that Senator Smith had in
terms of a family member who is so distinguished, but I do have
the enthusiasm that he expressed for his brother for these four
nominees that are before the Committee. We had the privilege
about a month ago of introducing Michael Chagares to the
Committee as a circuit judge for the Third Circuit, which he
received a very substantial and unanimous vote in the Senate.
And today these nominees for the district court I think are
also exceptional individuals.
The confirmation of a judge to a lifetime appointment is a
vital responsibility given to this body by the Constitution and
one that I know I and certainly the members of this Committee
take quite seriously. So I appreciate the chance to also join
in in presenting to the Committee Renee Bumb, Noel Hillman,
Peter Sheridan, and Susan Wigenton.
It is gratifying to see, as I sat in the back for a few
minutes, so many of the family members who are here today for
this important day in each of their loved ones' lives, and it
would be too many to recognize. I am sure they will at some
point as they each come forth.
It is an honor that we take pride in that has been bestowed
on each of these fellow New Jerseyans, so let me very briefly
say a few words about each of these nominees.
Ms. Bumb graduated from Ohio State University and the
Rutgers School of Law, both with honors. She began her career
in private practice and has spent the past 15 years working in
the U.S. Attorney's Office for the District of New Jersey. She
is a two-time recipient of the Director's Award, the highest
award given to an Assistant U.S. Attorney, and for the last 6
years, she has served as the Attorney in Charge of the Camden
Office.
Mr. Hillman is a graduate of Monmouth College, Seton Hall
University School of Law, the New York University School of
Law, and he also has started his career in private practice
before spending the last 15 years at the Department of Justice.
He has received the Executive Office of the U.S. Attorneys
Director's Award twice and in 2004 received the Attorney
General's Award for Fraud Prevention, and he currently serves
as the senior counsel to the Assistant AG of the Criminal
Division where, until recently, he was the Chief of the Public
Integrity Section, and he did so with great distinction.
Mr. Sheridan graduated from my alma mater, St. Peter's
College, then Seton Hall School of Law, and unlike Ms. Bumb and
Mr. Hillman, he began his career in public service by working
at the Office of the New Jersey Solicitor for the Port
Authority of New York and New Jersey, an important regional bi-
State agency, and later served in the administration of former
Governor Tom Kean. For the past 11 years, he has been a
shareholder and director of a prestigious firm, Graham, Curtin
& Sheridan.
And, finally, Judge Wigenton graduated from Norfolk State
University and the Marshall White School of Law from the
College of William & Mary. She started her career in public
service as a public defender and at the New Jersey Board of
Examiners. Judge Wigenton then went on to private practice and
in 1996 was the second of only four African-American women in
the State of New Jersey to be named as a partner in a major law
firm. She then went back to public service and has spent over 8
years as a U.S. magistrate judge for the District of New
Jersey, and she has performed exceptionally as a magistrate
judge.
Mr. Chairman, there is no higher calling than the calling
of public service. That is why I know that both Senator
Lautenberg and I are so pleased to see people of this quality
who are willing to serve our Nation in the administration of
justice. I am happy to join Senator Lautenberg in commending to
the Committee each of these nominees and to very strongly be
supportive of the Committee's endorsement of their nominations.
Senator Hatch. Well, thank you so much. Because of both
your recommendations, I am prepared to confirm them right now.
[Laughter.]
Senator Hatch. I appreciate you both coming. We really
appreciate that.
Mr. Smith, we will take you first, and I have very few
questions to ask of you, but if you would, do you solemnly
swear to tell the truth, the whole truth, and nothing but the
truth, so help you God?
Mr. Smith. I do.
Senator Hatch. Thank you. I have known you for a long time,
and I have known your family for a long time, and, of course,
Gordon is a partner here in the Senate. I knew your Dad way
back when, and I just have to say there isn't a better family
on the face of the Earth, as far as I am concerned, and you
come not only highly recommended by your brother and others,
but also I am fully aware of your legal practice, what you have
done in your practice, and the fact that you have worked with
some prestigious law firms and basically have built your own
law firm into something of real value.
This is one of the most important positions on Earth, the
Ninth Circuit Court of Appeals, and, frankly, I have no doubt
in my mind that you can fulfill that position as a judge on
that circuit. In fact, I am counting on you fulfilling it in
every way.
I am just going to ask you one question because I think
everybody on this Committee is aware of you and your excellent
reputation, and if they are not, we will make them aware. You
have distinguished yourself as one of Southern California's
premier attorneys in the area of complex commercial litigation,
and obviously you have gained some insight from the
professional experience that will influence your decisionmaking
on the Ninth Circuit Court of Appeals.
Now, how have all these experiences prepared you for
service on this very prestigious Circuit Court of Appeals?
STATEMENT OF MILAN D. SMITH, JR., NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT
Mr. Smith. Thank you for that question, Senator. I think
that my brother Gordon referred to the Book of Kings and others
of other faiths would refer to other books. Those who have no
particular religious faith would refer to other books of
wisdom. And from the beginning of time, I think people have
respected experience that is gained from years of dealing with
people, years of dealing with issues, and wisdom sometimes
comes with a little bit of gray hair and certainly dealing with
people and the complex issues that confront human beings.
I believe that being the father now of seven wonderful
children, having practiced law for 37 years and dealing with a
wide variety of issues, will enable me, if confirmed, to bring
a lot of what I guess my Grandmother Udall would call ``common
sense'' to the decisions that are brought before me. People all
have aspirations. Every human being wants what is good for his
or her children, his or her business, his or her country. And
if confirmed, it would be my goal, frankly, to do in the Ninth
Circuit Court of Appeals what I believe my brother has done in
the Senate, which is to get to know individuals personally,
become their friend, and whether you always agree with them is
not necessarily the point but, rather, that you can disagree
without being disagreeable. And I think that that comity among
your colleagues can help bring a result that is more fair, more
balanced, more appreciated by the lower courts, by the public,
and others who must understand and implement the policies--or
not policies, but the rulings that the court issues.
So I would hope that that combined experience could help to
bring about such a result.
Senator Hatch. Well, thank you. Why don't you take some
time to introduce your family and friends to us who are here.
Mr. Smith. Thank you, Senator. I'd really love to do that.
Let me start, if I may, by introducing my wonderful, beautiful,
talented, brilliant wife and law partner, Kathleen Crane, who
is directly in back of me.
Senator Hatch. That may be the best description he is ever
going to give of you. Once he becomes a judge, they become very
arrogant.
[Laughter.]
Senator Hatch. It is an honor to have you here.
Mr. Smith. Then I will just start in order of birth: my
daughter Tiffany of Utah--Sandy, Utah.
Senator Hatch. She is in law school now herself, isn't she?
And you are the mother of how many?
Ms. Smith. Three.
Senator Hatch. Three. And you are what year of law school?
Ms. Smith. I am 2L, just finishing. In the middle of
finals.
[Laughter.]
Senator Hatch. You shouldn't have come.
Ms. Smith. This is more important. I will learn criminal
procedure tomorrow.
Mr. Smith. My daughter Courtney Smith, who is from New York
City, is directly in back.
Senator Hatch. Good to have you here, Courtney.
Mr. Smith. My daughter Amanda, who is from Beverly Hills,
California, who is a new mother, about a year ago.
Senator Hatch. That is great.
Mr. Smith. My daughter Elizabeth, who is from Brentwood,
California.
Senator Hatch. Elizabeth.
Mr. Smith. My daughter Brittany Brown, who is presently
from Boston College, in the city of Boston right now. And if it
is all right, we have a number of friends who have traveled as
well. May I introduced them, Mr. Chairman?
Senator Hatch. Sure. We would love to have you do that.
Mr. Smith. Please. Our friends Earl and Melanie Boyd, who
are directly back of us there.
Senator Hatch. Welcome. We are happy to have you here.
Mr. Smith. Jack and Linda Cross, who are here from
California.
Senator Hatch. Welcome.
Mr. Smith. Kay Tabarrah, who lives in D.C. now but used to
live in California.
Senator Hatch. Kay.
Mr. Smith. And Carol Raymondo, who is from Cayucos,
California, near Morro Bay.
Senator Hatch. Carol.
Mr. Smith. And who is here on some business, and I think I
got everybody--oh, Suzette. I apologize, Suzette. My favorite
niece, Suzette Jones, who is from Sarasota, Florida, and who
is--we are just delighted that she is here. She's a wonderful
member of our family as well.
So thank you for letting me introduce them. They are the
most precious thing in my life.
Senator Hatch. I can tell that, and they are wonderful
people.
[The biographical information of Milan Smith follows.]
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Senator Hatch. We are grateful that you are willing to
serve because we know that you have a substantial career, we
know that you could have a very interesting and easy life
without doing this job. But this is an important job, and we
are really pleased to have people of your qualifications
willing to serve, and we will do everything in our power to get
you through as fast as we can so you can get on that court. I
know that you are still going to be very subservient to Mrs.
Smith at home.
[Laughter.]
Mr. Smith. May I also, Mr. Chairman, thank the Committee. I
want to thank Chairman Specter and his wonderful staff, Ranking
Member Leahy and his staff. They have shown us many courtesies,
as have you. I am very, very grateful for that. I realize that
there are lots of people who pass before this Committee, but I
must confess I feel very, very grateful of their sensitivity
and the expeditious way in which they have handled my
nomination and hoped-for confirmation. So thanks to all who
have been involved in this process.
Senator Hatch. Well, thank you so much, and I have to say
your brother has weighed in rather heavily on your behalf.
[Laughter.]
Senator Hatch. He did not really have to.
Mr. Smith. Well, that is very nice. Let me just conclude by
saying this: Nobody ever had a better brother.
Senator Hatch. He feels exactly the same.
Mr. Smith. We tend to get lachrymose over the dedication of
a drawbridge. I am sorry about that.
[Laughter.]
Mr. Smith. But as you probably know, Gordon and I are
extraordinarily close, and he was gracious enough to say lots
of nice things about me, and I cannot tell you how proud I am
of him. He has been through a lot, as you know.
Senator Hatch. Yes, I know.
Mr. Smith. But I think his courage and what he has shown to
people will help lots of other people, and I know that today
our parents and grandparents and others were very proud of him
and a lot of us in the family because we believe in public
service. We understand the importance of being there to try to
do good to people and to bring the skill sets that we have for
the benefit of our community and others. So I thank you for
this opportunity to be here.
Senator Hatch. Well, thank you. I share your high opinion
of my colleague, I will tell you. As good as it gets, and I
think both sides of the floor think very highly of Gordon, as
they should. But we are honored to have all of you here. We
will push this nomination as fast as we can, and hopefully you
will be sitting on that court within a short period of time,
and that ought to be an interesting part of your life from this
point on. I have no doubt you will be one of the great judges
in this country.
So thank you so much. It is great to see all of you. We are
proud of all of you, and we wish you the best.
Mr. Smith. Thank you, Senator. And if it is all right, we
will move out of the way so that other family members in the
New Jersey contingent can move forward and be closer to their
families. And thank you very much.
Senator Hatch. Good to see you.
Well, if we can have the other nominees take their places
at the table, we will move ahead with them.
Let's have you all stand, and I will administer the oath.
Please raised your right hands. Do you solemnly swear to tell
the truth, the whole truth, and nothing but the truth, so help
you God?
Ms. Bumb. I do.
Mr. Hillman. I do.
Mr. Sheridan. I do.
Judge Wigenton. I do.
Senator Hatch. Thank you very much.
I am aware of all of your reputations. They are excellent
reputations. You had two fine Senators recommend you, plus the
President of the United States, and I am not going to bother
you with any questions because I know that each of you is
qualified, more than qualified to serve on the Federal bench.
And we are very proud to have you here today.
If you want me to ask some questions, I will.
[Laughter.]
Senator Hatch. But I think sometimes these should not be
ordeals. These ought to be really wonderful experiences to all
of you.
What I would like you to do, however, is take time--and we
can start with you, Ms. Bumb--take time and introduce members
of your family and friends who are here, and we will just go
across the table. Okay? You are first.
STATEMENT OF RENEE MARIE BUMB, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF NEW JERSEY
Ms. Bumb. Thank you, Senator. I want to first introduce my
wonderful, wonderful, wonderful husband, behind me.
[Laughter.]
Senator Hatch. He is embarrassed.
Ms. Bumb. Kevin Smith.
Senator Hatch. Good to have you here.
Ms. Bumb. And my two daughters, Katrina and Elizabeth
Smith.
Senator Hatch. Oh, they are beautiful. I tell you, that is
just great.
Ms. Bumb. And I do want to introduce, although he is not
here, our youngest, Liam Timothy, who is waiting for us in
Russia, and we will be picking him up next month.
Senator Hatch. So you are adopting him then.
Ms. Bumb. Yes.
Senator Hatch. That is terrific.
Ms. Bumb. He will be 1 year old next month. And my
wonderful parents, Harold and Trudy Bumb.
Senator Hatch. We are so happy to have you here. You have
to be really proud of your daughter.
Mrs. Bumb. We are.
Ms. Bumb. Thank you, Senator, and thank you for the honor
and privilege, to you and to the Committee, for allowing me to
be here. It is an honor and privilege.
Senator Hatch. We are very proud of you.
[The biographical information of Renee Bumb follows.]
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Senator Hatch. Mr. Hillman?
STATEMENT OF NOEL LAWRENCE HILLMAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY
Mr. Hillman. Thank you, Senator. I am here with my wife,
Tracy Hillman, and I tell her every day how wonderful she is.
[Laughter.]
Mr. Hillman. So I won't repeat that.
Senator Hatch. I think that first witness was good for all
of us, don't you?
Mr. Hillman. I think so. You can't tell the people you love
you love them enough.
Senator Hatch. That is right.
Mr. Hillman. I am also here with my three children, and
John is 13.
Senator Hatch. John, you are looking good.
Mr. Hillman. Drew is fast approaching 11.
Senator Hatch. Drew looks good, too.
Mr. Hillman. And our dear little Paige is 6, Senator.
Senator Hatch. Hi, Paige. How are you? You look better than
the boys.
[Laughter.]
Mr. Hillman. I appreciate the opportunity to do that.
Senator Hatch. We are honored to have you here. We are
surely honored to have your family here. You seem too young to
be a judge, a Federal district judge, is all I can say, with
all those young children. That is just terrific, though. Happy
to have you here, and we hear really good things about all four
of you.
[The biographical information of Noel Hillman follows.]
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Senator Hatch. Mr. Sheridan?
STATEMENT OF PETER G. SHERIDAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY
Mr. Sheridan. Thank you, Senator. I'd like to say that I'm
thankful for this Committee to have a hearing for me with my
colleagues, as well as I'd like to thank the President for
putting my name in nomination, and for Senators Menendez and
Lautenberg for moving forward on our nominations.
Senator Hatch. You bet.
Mr. Sheridan. With me today are my family: my wife,
Barbara; my children Katherine, Tom, and Peter; and behind them
are my two sisters, Rose and Ann; and my co-worker, Harriet
Tyrrell and her husband, Brian.
Senator Hatch. That is great.
Mr. Sheridan. Thank you, Senator.
Senator Hatch. We are so happy to have all of you here.
What a nice family. We are just grateful to have all of you
here today.
Mr. Sheridan. I appreciate the opportunity.
[The biographical information of Peter Sheridan follows.]
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Senator Hatch. Judge Wigenton?
STATEMENT OF SUSAN DAVIS WIGENTON, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW JERSEY
Judge Wigenton. Thank you, Senator Hatch. It is a pleasure
and honor for me to be here today, and I do want to express my
deepest gratitude to the Committee and all the members of the
Committee for their patience in just working with us very
diligently to arrive at this particular point.
Also, I want to extent my gratitude to the President for
this nomination, in addition to the Administrative Office, who
is also here, and they have also worked with each and every one
of us to get to this point.
But I am happy to introduce the members of my family that I
have brought here today, and I consider all of them to be
members of my family.
First and foremost, I have my wonderful husband, Kevin, and
my son, Kevin II.
Senator Hatch. That is great. He looks pretty good. That is
great.
Judge Wigenton. He is a big 3\1/2\-year-old.
Senator Hatch. Yes.
Judge Wigenton. In addition, I have my oldest brother, Dr.
Henry P. Davis, and his wife, Weptanomah Davis.
Senator Hatch. Doctor, an honor to have both of you here.
Judge Wigenton. And my niece and nephew, their children,
Lilybelle and Henry.
Senator Hatch. Great to have you here. Henry, you are
looking good, too.
Judge Wigenton. I also have my aunt and uncle, my Aunt
Mesie, Aunt Mesie Wright, and Clarence Wright, who are members
or residents of Maryland, and they are here as well.
Senator Hatch. Great to have you folks here.
Judge Wigenton. In addition, I have members of my office
and my chambers who I consider to be family members. I have my
courtroom deputy, Ellen McMurray.
Senator Hatch. Good to have you here.
Judge Wigenton. My able law clerk, Frances Bajada.
Senator Hatch. Great to see you, Frances.
Judge Wigenton. And Wayne Fang, who will be leaving me this
year, but he has been a wonderful law clerk.
Senator Hatch. Wayne, proud of you.
Judge Wigenton. And last, but not least, I have Attorney
Bobby Stafford, who is a member of the bar in the State of
Virginia and also practices in the District as well, and he is
here.
Senator Hatch. Great. Good to have you here.
Judge Wigenton. And once again, thank you.
[The biographical information of Susan Wigenton follows.]
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Senator Hatch. Well, thank you. Well, we are honored to
have all of you here. The questionnaires are so extensive that
I almost think it is an insult for us to ask you any further
questions, and especially since we know of your reputations,
know how really qualified you folks are. We appreciate you
appearing, and I am going to make this easy on you. We are just
going to congratulate you, and we will move as fast as we can
your nominations. And just serve well on the bench and remember
what I said. The closest thing to godhood in this life is a
Federal judgeship, and we just don't want you to take that to
heart that strongly. What we would like you to do is just give
service the way Federal judges ought to do and be fair and
honest and decent to everybody who comes before you--and, above
all, those poor humble attorneys who have to appear. They do
not particularly want you to try their cases for them, but when
you see a young person who is struggling in the evidence or
something, you can give a little help.
[Laughter.]
Senator Hatch. There is nothing wrong with that.
But we are honored to have all of you here. We are honored
to have your family members here, clearly good people, and the
courts are going to be better off with the four of you on that
court.
So, with that, we are going to recess this hearing until
further notice and congratulate all of you, and we will do our
best to get you through as quickly as possible.
Ms. Bumb. Thank you, Senator.
Mr. Hillman. Thank you, Senator.
Mr. Sheridan. Thank you, Senator.
Judge Wigenton. Thank you, Senator.
Senator Hatch. Thank you so much. Good to see you.
[Whereupon, at 2:54 p.m., the Committee was adjourned.]
NOMINATIONS OF SANDRA SEGAL IKUTA, OF CALIFORNIA, TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT; SEAN F. COX, OF MICHIGAN, TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MICHIGAN; THOMAS L. LUDINGTON, OF MICHIGAN,
TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN; AND KENNETH
L. WAINSTEIN, OF VIRGINIA, TO BE ASSISTANT ATTORNEY GENERAL, NATIONAL
SECURITY DIVISION, DEPARTMENT OF JUSTICE
----------
TUESDAY, MAY 2, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:06 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sam Brownback
presiding.
Present: Senators Brownback and Feingold.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Senator Brownback. The hearing will come to order. Thank
you for being here and joining us today. A vote has just been
announced. We have a hearing on four nominations--Sandra Segal
Ikuta, Sean F. Cox, Thomas Ludington, and Kenneth Wainstein.
What I thought I would do here is offer to Senator Levin
and Stabenow, if you want, before we head over to vote, to make
your introductory statements and comments. Then I will have to
recess and go vote and then come back and we will finish.
Delegate Norton, I hope that can work for you, but I have
to take care of my colleagues first here. I am sorry about
that.
Senator Levin, do you want to go forward with your
statement?
PRESENTATION OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MICHIGAN, BY HON. CARL LEVIN, A U.S. SENATOR FROM THE STATE OF
MICHIGAN
Senator Levin. Thank you, Mr. Chairman, for your
accommodation, as always. There is no one who is more
accommodating in the U.S. Senate than Senator Sam Brownback and
we really very much appreciate it. I want to thank you and the
Committee for holding this hearing today. Both Senator Stabenow
and I are pleased to introduce two Michigan jurists, Tom
Ludington and Sean Cox, whom the President has nominated to the
Federal bench in the Eastern District of Michigan.
I will let Judge Ludington introduce his family--I think it
is always a special privilege of the nominee to do that--
although it is tempting to do that, other than to say that his
sons have made the ultimate sacrifice here, which is to miss a
day in school to be with their father.
He is indeed a well-respected jurist in Michigan. He
currently serves as a circuit court judge. He is the chief
judge in his circuit, in Midland County, Michigan. He has been
in private practice a long time before that. He was elected to
the bench in 1995.
I also, in addition to Judge Ludington, would like to join
Senator Stabenow in welcoming Judge Sean Cox and his family,
whom I know he will also introduce. Judge Cox and Judge
Ludington both got high grades from the American Bar
Association, as well as from the screening group that Senator
Stabenow and I set up to look at the nominations of the
President and to review them. Both of the nominees here today
did very well with that group and we got very positive feedback
about both of them.
I shouldn't introduce Sean Cox by mentioning that his
brother is the Attorney General of the State of Michigan, but
since I am big on brothers, and I know that he is, too, I do
want to mention it. I know how proud the family is of both of
them.
I shouldn't take 30 seconds to say this, but when my mother
was asked what about the two Levin brothers that were now
elected to the Senate and to the House, respectively, when we
both were here, and the press was pressing her for, well, you
must be just so proud of your two sons, now a sibling act in
the House and the Senate, her response was if that is what they
want, it is OK with me.
Their prompt confirmation is something we all look forward
to, and again we thank you very much, Mr. Chairman, for holding
this hearing and for dividing it the way you are to accommodate
us.
Senator Brownback. A ringing endorsement from mom. That is
a great story.
Senator Stabenow.
PRESENTATION OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS L. LUDINGTON,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
MICHIGAN, BY HON. DEBBIE A. STABENOW, A U.S. SENATOR FROM THE
STATE OF MICHIGAN
Senator Stabenow. Well, thank you, Senator Brownback. I,
too, am here to join in strong support of the nominations of
Judge Sean Cox and Judge Tom Ludington for the U.S. District
Court for the Eastern District of Michigan.
I don't have a brother or a sister serving, but I am
someone who believes strongly in family, as does everybody
here. And to look around at these two families, it is really
wonderful to see, and I know that their wives and children and
relatives are all very proud of them and are very exciting
about being here today and about the opportunities that all of
this presents.
Both of these nominees bring distinguished legal careers
and judicial experience to the Federal bench. Judge Sean Cox
has served as a circuit court judge for the 3rd Circuit of
Michigan since 1996. He is a graduate of the Detroit College of
Law and the University of Michigan, and has over 12 years of
private practice experience. So I want to welcome Judge Cox and
his family to the Senate today.
Judge Thomas Ludington has served on the 42nd Circuit Court
for Midland County since 1995. He has served as chief judge of
the court for the past 6 years. Judge Ludington is a graduate
of the University of San Diego School of Law and Albion
College, another great school in Michigan.
After graduating from law school, Judge Ludington worked at
the Currie and Kendall law firm for 14 years, and also served
as president of the firm before he left to join the Michigan
Circuit Court. I want to welcome Judge Ludington and his
family, as well, today.
We very much appreciate the timely manner in which these
nominations have moved forward now and expect the same
timeliness on the floor. It is my pleasure to work with you on
these vacancies and other judicial issues coming before us that
affect Michigan.
Thank you, Mr. Chairman.
Senator Brownback. Thank you very much, Senator. I
appreciate that greatly.
Representative Norton, I do have time if you would like to
go ahead and put your statement in now before I have to head
off and vote, if that would facilitate you as well.
Senator Levin. Can we be excused?
Senator Brownback. Yes, you will be excused. Thank you very
much for coming by. I appreciate it greatly.
PRESENTATION OF KENNETH L. WAINSTEIN, OF VIRGINIA, NOMINEE TO
BE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION,
DEPARTMENT OF JUSTICE, BY HON. ELEANOR HOLMES NORTON, A
DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Delegate Norton. Let me make haste and thank you, Senator
Brownback. I am pleased to come forward and recommend Kenneth
Wainstein to this new and important position. He is going to be
the maiden, or whatever it should be called in his case, person
to hold this position of Assistant Attorney General for
National Security. It was strongly recommended by the
commission, bringing together the counterterrorism, counter-
espionage and similar attorneys under one new person.
I know Ken Wainstein from his work as U.S. Attorney for the
District of Columbia, but if you take a look at his combined
Federal and local career and prosecutorial experience, you can
understand, it seems to me, immediately why the President
selected him for this new post-9/11, very important position.
I simply want to say how much I appreciate the way Ken
Wainstein adapted himself to the unique demands of the U.S.
Attorney's office for the District of Columbia. It is a unique
office and its combination of Federal and local
responsibilities, I think, will serve him well in his new
position, considering that that position will require him to be
in tune with cases that are as likely to arise from local
conditions as from the Federal itself.
Just as he will have to make adaptations and indeed clear
the way entirely for his new position, he adapted to the way in
which we were trying to make the U.S. Attorney's Office for the
District of Columbia. It handled twice as many local cases as
Federal cases, because he is really a local D.A. for the
District of Columbia, as well as the U.S. Attorney.
Those who held the position before him--Eric Holder, who
later became Deputy Attorney General, and Wilma Lewis, both the
first African Americans to hold the position, and Wilma Lewis
the first woman--made the position, in fact, much more like a
D.A. position while handling all of these important Federal
matters. And Ken Wainstein just went right to it, expanded the
Federal involvement appropriately even as he was handling very
important cases of the kind that I am sure brought him to the
attention of the President for this new position. He was
interim U.S. Attorney twice; the second time around, he made it
to the top.
I think you can see this a clear merit appointment, a man
who has never been in politics. He has been in the Justice
Department all his life. He was chief of staff for FBI Director
Mueller, Executive Director of the Executive Office of U.S.
Attorneys, D.C. and New York experience. He leaves with the
homicide rate this year down 17 percent in the District of
Columbia. I am sorry to lose him right at the time when he and
I were working together to get a new forensic lab--I will have
more to say to you in your other hat about that, Mr.
Brownback--and where we are working to get for the U.S.
Attorney for the District of Columbia investigators, instead of
using our cops, the way every other U.S. Attorney has. It is
your gain and our loss. I am pleased to recommend the
President's recommendation to you.
Thank you very much for taking me.
Senator Brownback. Thank you very much, Delegate Norton. We
appreciate that greatly.
I also want to recognize Congressman Dave Camp from
Michigan, who is here, I am sure, to support both of these
nominees.
If you have a statement you wanted to put forward, I am
going to have to run in 1 minute. I apologize for that.
PRESENTATION OF SEAN F. COX, OF MICHIGAN, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN, AND THOMAS
L. LUDINGTON, OF MICHIGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF MICHIGAN, BY HON. DAVE CAMP, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Representative Camp. Well, thank you very much, Senator
Brownback. I just want to endorse the remarks of Senator Levin
and Senator Stabenow to these two exceptionally well-qualified
judges from Michigan.
Judge Ludington and I grew up together. We live in the same
hometown and when I am home and run into lawyers from every
political stripe and perspective, they all say what an
excellent job he does as a judge. And I know they both will
serve this country well as district court judges.
Thank you.
Senator Brownback. Thank you very much.
We will put the hearing in recess while I go vote and I
will be right back. I want to apologize to the nominees and the
families. I just can't avoid it. I have to run over and vote
and I will be back as quickly as I can.
We are in recess.
[The Committee stood in recess from 3:17 p.m. to 3:36 p.m.]
Senator Brownback. The hearing will come back to order.
Thank you all for joining me and I am sorry about the delay.
I want to call the panel up of our judicial nominees and we
will do the executive branch nominee on a second panel. So if
you would all care to come on forward, I will do an
introduction here at this time.
Our first nominee who will be making a presentation will be
Sandra Segal Ikuta, who has been nominated to serve on the
Ninth Circuit Court of Appeals. She graduated Phi Beta Kappa
from the University of California-Berkeley, received her
master's degree at Columbia University Graduate School of
Journalism, and received her J.D. from UCLA Law School.
After law school, she clerked for Judge Alex Kozinski. I am
sure I butchered that. I apologize.
How do I say that?
Ms. Ikuta. Kozinski.
Senator Brownback. Kozinski. That ought to be much simpler.
It is the German in me that just doesn't get those names right.
She clerked for Judge Kozinski on the Ninth Circuit Court
of Appeals and then for Justice Sandra Day O'Connor on the U.S.
Supreme Court. She then entered private practice where she
worked for 14 years in the law firm of O'Melveny and Myers. Ms.
Ikuta specialized in environmental issues, including
litigation, compliance and other pre-litigation matters,
including assisting clients with environmental audits and
property contamination issues. In 1997, she was promoted to
partner at the law firm and she became co-chairman of the
environmental law practice group.
Ms. Ikuta left the law firm in 2004 to become Deputy
Secretary and General Counsel for the California Resources
Agency, where she currently serves. She is responsible for
general legal matters for the agency. She received a unanimous
well qualified rating from the ABA.
Sean F. Cox is our next nominee. Judge Cox has been
nominated to the Federal District Court for the Eastern
District of Michigan. He is a graduate of the University of
Michigan and Detroit College of Law. Judge Cox has an extensive
record of legal experience. He was in private practice with
three law firms between 1984 and 1996, where he had a diverse
practice representing governmental entities, insurance
companies and individual litigants in complex litigation. Since
1996, he has served with distinction on the 3rd Circuit Court
for the State of Michigan and he, as well, has received a
unanimous well qualified rating by the ABA.
Judge Thomas L. Ludington has been nominated to the Federal
District for the Eastern District of Michigan. He is a graduate
of Albion College and the University of San Diego School of
Law. He spent 14 years in private practice. During that time,
Judge Ludington dedicated much of his work in the area of
banking and securities law, as well as bankruptcy and
employment law. He also served as president of the firm for 6
years.
In 1995, he began his judicial service by taking a seat on
the State of Michigan's 42nd Circuit Court. Since 1999, he has
served as chief judge of that court, where he has become a
widely respected trial judge. Like our other nominees, Judge
Ludington was rated unanimously well qualified by the American
Bar Association.
This is an outstanding group of nominees. We have had
testimony already entered by two members of the Senate, a
Representative from the House, and the Delegate from the
District of Columbia on our executive nomination.
I would like to also enter into the record at this point in
time a statement from Senator George Allen and a statement from
Senator John Warner in support of the nomination of Kenneth L.
Wainstein for Assistant Attorney General for National Security.
Welcome, all of you nominees. I want to welcome your families,
as well, to this hearing about your nominations for the bench.
Ms. Ikuta, I look forward to your testimony. If you would
like to introduce family, you are welcome to do so now and we
will hear your testimony.
STATEMENT OF SANDRA SEGAL IKUTA, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT
Ms. Ikuta. Thank you, Senator. I would like to introduce my
husband, Ed Ikuta, and my daughter, Lillian Ikuta.
Senator Brownback. Welcome. We are delighted to have you
here.
Ms. Ikuta. They have been such a wonderful support to me.
[The biographical information of Ms. Ikuta follows:]
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Senator Brownback. Judge Cox.
STATEMENT OF SEAN F. COX, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF MICHIGAN
Judge Cox. Thank you, Senator. I would like to introduce my
wife, Janine; my son, Patrick; my daughter, Clare; my brother-
in-law, Doug Cutcher, and Kyra and Alissa Cutcher.
[The biographical information of Judge Cox follows:]
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Senator Brownback. Welcome. We are delighted to have you
here.
Judge Ludington.
STATEMENT OF THOMAS L. LUDINGTON, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MICHIGAN
Judge Ludington. Good afternoon, Senator. It is kind of a
pleasure. We have had a chance to introduce you here informally
a minute ago, but I am joined this afternoon by my wife, Tina,
who is present. Adjacent to her is Christopher Warren, and John
Thomas on your right. Also with us this afternoon are my
mother-in-law, Ms. Jane McGuire, and brother-in-law, Tim, and
last but not least, my father, Jack Ludington.
[The biographical information of Judge Ludington follows:]
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Senator Brownback. Welcome, all. We are delighted to have
your families here. Being a person on the bench, being a judge,
is a high responsibility and it involves the whole family. So I
am delighted that all of you could join in this affair.
Ms. Ikuta, we would be happy to receive your statement if
you have a statement--excuse me; I am jumping ahead of things.
We normally swear in our witnesses for the bench, so if you
would all rise and raise your right hands?
I promise to tell the truth, the whole truth and nothing
but the truth, so help me God.
Ms. Ikuta. I do.
Judge Cox. I do.
Judge Ludington. I do.
Senator Brownback. Thank you. You may be seated.
Ms. Ikuta, do you have a statement that you would like to
enter into the record or to state here?
Ms. Ikuta. I don't have an opening statement other than to
thank the President for nominating me and the Committee for
having these hearings.
Thank you.
Senator Brownback. We will have a few questions.
Judge Cox, do you have a statement?
Judge Cox. Senator, I would like to thank the Committee
very much for having this hearing today. It is a great honor to
be before you. I would like to thank President Bush for the
honor that he has given to me and my family of nominating me
for the Eastern District of Michigan, and I would also like to
thank Senator Levin and Senator Stabenow for taking time from
their busy schedules to come in here before this Committee and
introduce me, as well as Judge Ludington.
Thank you very much.
Senator Brownback. Thank you.
Judge Ludington.
Judge Ludington. Senator, I would echo my colleagues. We
are all very appreciative of the President's nomination, as
well as the fact of all the cordiality you have extended to us
this afternoon.
Senator Brownback. We are delighted to have you here.
Ms. Ikuta, let me start with you on this, and I am sure you
have had this question in a number of the screenings that you
have gone through thus far. There have been a lot of questions
in the political debate about the role of the judiciary in the
country and in the government today, and it has been the
subject of a lot of political debate and it has been a subject
of a lot of personal debate.
Could you outline for me and for this Committee your view
of the role of the judiciary in the government and in this
society?
Ms. Ikuta. Thank you very much, Senator, for that question.
I see the role of the judge in our system as interpreting the
law, the precedents of the Supreme Court and the judge's
circuit, and applying those laws impartially and fairly to the
legal issue before the court.
Senator Brownback. Judge Cox.
Judge Cox. Senator, the role of the judiciary is to follow
the law, not to make the law. As a judge, it is incumbent upon
a judge to follow and respect precedent and it is incumbent
upon a judge to follow statutory law. The statutes are presumed
to be valid. Again, the role of a judge is not to make the law.
The judge follows the law.
Senator Brownback. Judge Ludington.
Judge Ludington. Again, in many respects I would echo a lot
of the things that my colleagues have added. I think what is
important, and I would add perhaps uniquely true with trial
judges, is the fact that there has to be a certain reservation
in understanding the role of the judge in terms of
constitutional process and understanding the limits, the
appropriate limits of the types of decisions that we can make.
We can't solve every problem. It is very important that we
understand in a principled way what our role in the system is
and be sure that we limit ourselves within that context.
Senator Brownback. Why do you think we have gotten even to
this debate today? I mean, why is this such a big political
issue about the role of the judiciary in this society today?
You have been around courts and judges all your life. You have
watched the political system, each of you. We didn't used to
debate this point or even raise it. Why are we where we are
today?
Ms. Ikuta. Senator, that is a very thoughtful question and
it is an important issue. I know there is a lot of concern and
controversy about what constitutes judicial activism, and it
highlights the importance of judges following the rule of law
and applying that law in a neutral and impartial way.
Senator Brownback. But why did we get so fired up about it?
Are we taking everything to the courts instead of the
legislatures now, or why is it so big as an issue?
Judge Cox, do you have a thought, or Judge Ludington?
Judge Cox. Well, Senator, again, the role of the judge in
society, in our jurisprudence, is to follow law, to respect
precedent. It is not the role of the judge to legislate. Maybe
if the judge is legislating, we have the issue. If the judge is
respecting precedent, following precedent and following the
law, we don't have the issue; we don't have the debate.
Senator Brownback. Judge Ludington, you have watched the
system. Why are we debating this now?
Judge Ludington. Well, I think part of it, in my view, is
the fact that we have an increasing number of societal problems
that are being brought to courts. And in many cases, there are
instances where people have been injured, where there is at
least some merit to the concerns that bring them to court. And
I can make the personal observation that there are a lot of
circumstances, particularly with trial courts, where you are
trying to apply the law in a way in which you simply have to
draw some limits according to the law in reaching conclusions.
But the change, I think, reflects an increasing demand
being placed on courts to address ever wider ranges of issues,
and so it becomes particularly important, in my judgment, for
the trial court to have a good understanding of the law and its
limits, and it isn't always necessarily easy to apply that.
Senator Brownback. Now, you will go from a State court,
both of you, to a Federal court. So you go from a court of
general jurisdiction to a court of limited jurisdiction. Is
that going to be difficult for you to show judicial restraint,
coming from where you come from to where you are going to, from
State court to the Federal court?
Judge Ludington. I guess my own observation would be
probably somewhat to the contrary. We work with, in many
respects, a really wide range of human issues, certainly, in a
court of general jurisdiction in the State. So we have been
tested in terms of our ability to fairly, but nevertheless
impartially apply the law, and I think we will look back on it
as good training for the Federal bench, as well.
Senator Brownback. When we had the Alito and the Roberts
hearings, which I thought were outstanding hearings and a
couple of outstanding nominees, one of the things that was
really striking to me is that you look at our system and there
are limits on the Congressional power. The President can veto
the bill. The courts can declare it unconstitutional. There are
limits on Presidential power. Congress can not appropriate the
money. The court can say that what the President is doing is
unconstitutional.
Then I asked both Judge Roberts and Judge Alito what is the
restraint on the court's power. And they didn't want to say,
well, the Congress could not appropriate the money, which they
would look at, or that there were constitutional restraints.
They said, well, the restraint on the court is the court
itself; it is judicial restraint.
To me, it wasn't a very satisfying answer, frankly, because
everybody else has constraints within the system, and then to
say, well, the court has to restrain itself--and maybe I look
at it saying, well, that is like asking Congress to restrain
itself. You know, there are a lot of people that say, well,
that is pretty tough for a body to do. Yet, in many respects
that is the first-line answer, and if we don't have a court
that can adequately look at itself as with limited jurisdiction
and restrain itself, then you find the other two branches of
Government being pushed by the populace to do what they can to
restrain the court.
Then you get in these big kind of global-proportion shoving
matches of who has what authority to be able to do what. It
seems like to me that is the era we are in now where you have
got the legislative, in particular, pushing back against the
judicial. And there has always been a traditional competition
between the legislative and the executive branch, all of which
I think is healthy in a system that tries to have checks and
balances and has limited authority and the people have the
broad authority.
But I just say it to you because I think it really is up to
the court to restrain the court, by and large, and if the court
does that, these aren't issues. If the court doesn't do that,
then they get thrown into the political process and it becomes
a much more difficult field.
Ms. Ikuta, let me ask you about the environmental law area.
Apparently, that has been an area of expertise and special
interest for you.
Ms. Ikuta. Yes, sir.
Senator Brownback. What particular area in the
environmental field, or is it just broadly that you have been
very active in the environmental field?
Ms. Ikuta. At present, as the General Counsel and Deputy
Secretary in Governor Schwarzenegger's administration, we have
been active in implementing the Governor's policy in trying to
protect natural resources and open space and preserve
agricultural land. That has been an area of great interest for
me.
Senator Brownback. What drew you into the field? Is it a
personal interest of yours, environmental law?
Ms. Ikuta. There were a range of factors that drew me into
that field. I was interested in stewardship of the land, air
and water, but also I really enjoyed the interrelation of
Federal, State and local laws. It was a very challenging area
and interesting for me.
Senator Brownback. Is that going to be one that will be
hard for you to set aside some of your past work and background
in serving on the Ninth Circuit Court or is it one you feel
like you are going to be able to resolve these cases fairly,
because I guess you are going to receive a fair number of
environmental cases and litigation coming up at the circuit
court level?
Ms. Ikuta. Thank you, Senator, for giving me the
opportunity to address that question. In fact, throughout my
career my function has been to analyze case law and statutory
law and advise clients very neutrally as to what the law
requires. So I think my training and background actually would
stand me in good stead if I am so fortunate to be confirmed.
Senator Brownback. And you don't believe you will have any
difficulty adhering to a fair decision and not your own
personal opinions or cases that you have been involved in move
you on those?
Ms. Ikuta. No, I would have no trouble putting aside any
knowledge or background that I have on issues and applying the
law and the precedent fairly and impartially.
Senator Brownback. I am delighted to have your expertise
coming forward, frankly. I mean, that is good to have that kind
of expertise. It is also one, though, that people always want
to make sure they get a fair hearing in front of the courts and
an unbiased set of minds to review a case. I know you are well
aware of all of that.
I want to thank all of you for coming forward. You have
been through extensive background checks. You have been through
extensive political vetting, I guess, in the process. I
apologize if the process has been too intrusive for you, but
this is kind of the one juncture where the policymakers get the
shot that they can at the bench. So everybody then wants their
shot at this and to see that the person has a good judicial
temperament, has a first-class mind, and will hear things
fairly.
Everybody has their different interpretation of what fair,
I guess, is in the system, but at the end of the day we want
good judges that people can respect and look up to and believe
that they are getting a fair case from, and I know each of you
will do that.
To your families, I want to thank you for allowing them
into public service. We know you don't do it for the money.
That is not part of it, but being a judge is a vaulted position
in this society. Particularly at the district level, for most
cases you are the final arbiter on people having major disputes
that have changed and impacted their lives, their companies,
their group, whatever the case might be. You are it. A lot of
cases do get appealed, but as you know, most don't, and so you
are the final arbiter.
So they have to look to you and say, OK, this person I
trust to be fair. I don't want him to be on my side and I don't
want him to be--well, I probably do want him to be on my side,
but I know that is not fair completely. I just want somebody
that will be fair in this system, good temperament, good mind,
that I can trust. It is based on that trust that the system
even works.
So I really do commend you for coming forward to do that,
for going through the process, as difficult as it can be. God
bless you for serving. I want to wish you all the best. I don't
anticipate any problems with this moving forward, but we have
had difficulties moving judges forward the past several things.
So things could stall, but I wouldn't anticipate any in this.
Thank you all very much for coming. Thank you for your
families. If you have additional statements to put forward, the
record will remain open the requisite number of days so that
you could put those forward if you would choose to.
Judge Cox. Thank you, Senator.
Ms. Ikuta. Thank you, Senator.
Judge Ludington. Thank you.
Senator Brownback. Thanks for being here.
Next, I want to call up Kenneth Wainstein, nominated to be
Assistant Attorney General for the National Security Division.
The USA PATRIOT Improvement and Reauthorization Act of 2005
created a new National Security Division within the Department
of Justice, to be headed by a Senate-confirmed Assistant
Attorney General for National Security to head the division.
The key functions assigned to the new division and to its
assistant attorney general include working with the Director of
National Intelligence, unifying all intelligence operations
within the Department under one common chain of authority, and
handling Foreign Intelligence Surveillance Act responsibilities
on behalf of the Attorney General.
These reforms were aimed at implementing some of the
important recommendations of the 9/11 Commission and the
Commission of the Intelligence Capabilities of the United
States Regarding Weapons of Mass Destruction, commonly known as
the WMD Commission.
Kenneth Wainstein has been nominated to be the first
assistant attorney general for the newly created National
security Division at the Department of Justice. Mr. Wainstein
has excellent academic credentials and a lengthy background of
public service, each of which makes him particularly well
qualified for his position. He is a graduate of the University
of Virginia and the law school of the University of California,
Berkeley. Following law school, Mr. Wainstein clerked for Judge
Thomas Penfield Jackson on the Federal district court in
Washington, D.C.
From 1989 to 2001, he served as Assistant U.S. Attorney
first in the Southern District of New York and later in the
District of Columbia. In 2001, he became the Director of the
Executive Office for U.S. Attorneys, which serves as a bridge
between the U.S. Attorneys' offices around the country and the
Department of Justice. From 2002 to 2004, he became very
familiar with difficult criminal and terrorism issues through
his service at the FBI first as general counsel, then as chief
of staff. Mr. Wainstein currently serves as U.S. Attorney for
the District of Columbia, a position he has held since 2005.
He has a long and thorough resume that demonstrates his
commitment to his country and the well-being of its citizens,
and I am confident he will render excellent service as the
first assistant attorney general for the National Security
Division.
Mr. Wainstein, we are delighted to have you here. If you
have family members you would like to introduce, you may do so
at this time.
STATEMENT OF KENNETH L. WAINSTEIN, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF
JUSTICE
Mr. Wainstein. Thank you very much, Mr. Chairman. Yes, I
do. I would like to introduce my family, if I may. To my left
is my wife, Elizabeth Wainstein.
Senator Brownback. Welcome.
Mr. Wainstein. And two of my three girls--do you want to
stand up? Mackie is this one right here, and this is Ellie. And
we have a third, Cicely, who is 13 months old, and she opted to
stay home and take a nap.
Senator Brownback. Opted to stay home.
Mr. Wainstein. I also am very happy to have my parents
here--my mother, Eleanor Wainstein, and my father, Leonard
Wainstein.
Senator Brownback. We are delighted to have you here.
Mr. Wainstein, we would be happy to receive any statement
you would like to give.
Mr. Wainstein. Thank you. I would like to give a very brief
statement, if I may, Mr. Chairman. First, I would like to thank
Senators Allen and Warner for their very kind statements they
put in the record, and I also want to thank Congresswoman
Norton for kindly appearing today and the kind words that she
had, and also for her partnership with the U.S. Attorney's
office in D.C. and law enforcement in the District.
I would also like to thank my family for their love and
support and for being here with me today. I also want to thank
a number of my colleagues and friends who are here in the
hearing room, a number of whom are colleagues from the U.S.
Attorney's office whom I have had the honor and pleasure to
work with over the last two years, and prior to that as a line
prosecutor. They represent a group of people who are truly
wonderful public servants and who do great work on behalf of
the residents of D.C.
I want to thank the President for the honor of nominating
me for this position and the trust that he and the Attorney
General have placed in me by nominating me for this job. And I
can assure this Committee that if I receive this job, I will
give it my full--give it everything I have and I will do
everything I can to pursue the mission of protecting national
security and defending civil liberties and the freedoms that we
hold so dear.
With that, I would be very happy to take any questions.
[The biographical information of Mr. Wainstein follows:]
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Senator Brownback. Thank you, and thank you for your great
service, and I want to thank your family. You have impressive
resume and an impressive work you have done so far, and this is
a key position.
On the FISA court and the FISA issue, what are you willing
to say at this point in time about what we should be doing of
our National intelligence being reviewed by the FISA court?
Mr. Wainstein. Of our National intelligence being reviewed
by the FISA court?
Senator Brownback. Yes. As you know, we have got a big
debate about some of the intelligence-gathering information
that we are getting and the process by which we are getting it.
A number of people are saying we need to take more of this
process and have it approved by declaratory judgment by the
FISA court and having them review what we are doing, not all
the information, but what we are doing, and render an opinion
whether or not this is within the authority and purview of the
President.
We are in a big debate. As a matter of fact, we will take
it back up this Thursday in this Judiciary Committee about
whether we should give more authority to the Attorney General
to pursue this through the FISA court, more authority to
Congress, or to private individuals to bring FISA actions.
Do you have any thoughts you are willing to share on that?
Mr. Wainstein. Yes, sir. I know that there have been a
number of proposals and pieces of legislation that have been
proposed to address the intersection of the terrorist
surveillance program and the FISA court work. Those proposals
and your question points up, I think, a very important issue
for this Committee and for the Government and for the country
that raises separation of powers issues, raises practical
issues of our ability to defend ourselves against international
terrorists, to have an early warning system that can protect us
from terrorists, but also have a scheme by which the FISA
courts approves warrants in appropriate circumstances. All of
these issues are raised by that debate and I think it is a
healthy debate to have.
I have to admit that I am not well-versed on the
particulars of each of the proposals, and not being over at the
Department yet working on those matters, I think it would be
premature to weigh in with an opinion as to one proposal or
another.
I will say, however, that I think this is--if I am
fortunate enough to be confirmed, this is an area that I will
be looking at closely. I will be soliciting the input of the
professionals over at the Department of Justice and throughout
the intelligence community as to what is practical and what is
best going to protect civil liberties, but at the same time
help us defend against terrorists. And I will be open to
working and soliciting input and providing input to the
Committee. So I look forward to that if I am confirmed.
Senator Brownback. Let me build on this a little bit. I
have been in some of these hearings and I have been in on a
fair amount of the discussion. Intelligence is, if not our lead
tool, one of our most important tools in this war on terrorism.
There is just no question about it. A lot of people are
complaining about our borders being too porous, our southern
border. Yet, the number of legal entries we have a year into
the country is over 250,000. The 9/11 terrorists all entered
legally into the United States.
It is an intelligence operation that we have got to have
that can catch people. So, to me, intelligence is just a
paramount issue. At the same time, we have got to convince
people that in this decades-long war on terrorism that we are
going to be in for some period of time that the way we are
doing this is right and is approved by an independent court, by
an independent body.
That is why I have been supportive of having more of these
programs be reviewed by an outside set of eyes so that we can
maintain public support for the desperately needed intelligence
information we have to have. We have got to have this
information if we are going to protect people. Yet, we are
democracy and we have to have people's support to do this.
That is why I like the example that one of my colleagues
put forward when he was saying we need to have these
intelligence programs be reviewed by an independent set of
eyes, but it needs to be a sieve that the water can pass
through. And it is checked, but it is not stopped, so that we
can get the information; we can move the programs on through.
I don't expect you to answer that. You are not at the
Department yet. It is a big policy issue, but as somebody that
represents a State that is concerned about maintaining public
support for the war on terrorism, and particularly
intelligence-gathering in the war on terrorism, I think this is
important that we get this one right and that we build
bipartisan public support for intelligence-gathering as much as
we can. You are going to be right at the intersection of
determining what to do in that particular area.
Mr. Wainstein. Yes, Mr. Chairman, and I appreciate your
comments and I appreciate your sentiments. And I appreciate
that I will, if I am fortunate enough to be confirmed, be in a
position where I will be working with these issues
substantively, but I will also be sensitive to the public
acceptance of what it is we are doing.
I can tell you as a prosecutor for many years--most of my
17 years in the Department of Justice has been as a criminal
prosecutor--the credibility that we have is that we are doing
justice and we are doing things right, and that witnessed,
jurors, even suspects or defendants, believe that when we take
action, we take action that is appropriate, the end result of
which is to do justice and do right.
That is a very important credibility to have, and that
applies across the board in both the law enforcement world and
in the intelligence world. And that is an issue that I do know
is something that the Department is sensitive to and is
sensitive to in this context. And I expect that if I am
involved in the ongoing discussions about these programs,
whatever programs might be ongoing which you might be referring
to, that that is something I will be looking at very closely.
Senator Brownback. Good, because I just think it is
important for us in our maintenance of public support for the
war on terrorism which we have to have.
Mr. Wainstein, thank you very much for coming here and for
being willing to assume this position. I am hopeful that we can
move that through the process and get it approved. We need you
on board now because we have got to get these programs
reviewed. It was considered important by the Congress that this
position be established so that we could have somebody that is
at that juncture of intelligence-gathering and national
security that is at DOJ and working with the Attorney General.
So I am hopeful we can approve you on a rapid basis.
Mr. Wainstein. Thank you very much, Mr. Chairman.
Senator Brownback. Senator Feingold, I didn't see you over
there so quiet. I am done. Do you have some questions to ask?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. I do. Thank you, Mr. Chairman. First, let
me praise you and the nominee for the comments you have just
made about the need to raise these kinds of issues and to be
sensitive to these kinds of issues, not only because it is our
system of Government and has to do with people's rights, but
also if we want to be successful in the fight against
terrorism.
It is my belief that although we have done many things
right since 9/11, one of the things we haven't done right is
showing sufficient public sensitivity to this aspect, which
this experienced prosecutor just indicated was so important in
his work as a prosecutor. So I think your comments are
absolutely right in terms of the efficacy in the fight against
terrorism and the need to keep public confidence that we are
doing the right thing.
Mr. Wainstein, you have an important responsibility as the
first nominee to the position of assistant attorney general for
the newly created National Security Division. In a very real
sense, as you know, you owe your job, should you be confirmed,
to the Congress. This new division and your position to lead it
were created in the recently passed PATRIOT Act reauthorization
bill.
While I voted against that bill, I certainly support the
goals of the new division, and I very much hope that it will
serve the purpose for which it was created, to bring the
disparate parts of the Department that deal with intelligence
and national security together under a single chain of command,
thereby minimizing turf battles and allowing the Department to
more efficiently carry out its work to fight and prevent
terrorism and espionage. As the first assistant attorney
general for this new division, you will shape the procedures
and guidelines for your successors, and will therefore have a
big influence on whether the new division succeeds.
I think you also have an important role in repairing the
rift that has developed during this administration between the
Department and the Congress. The Attorney General hardly ever
appears before this Committee or its counterpart in the House.
When he does, he won't answer our questions. When we ask him
followup written questions, he takes a very long time to answer
them or provides non-responsive answers.
The administration has pursued a confrontational and highly
political approach to reauthorizing the PATRIOT Act, refusing
to agree to even the modest and reasonable changes to the Act
that Chairman Specter proposed and this Committee adopted by
unanimous vote.
Then we have the NSA spying scandal which I think has
presented a constitutional crisis the likes of which this
country has not seen for a generation. With the full support of
the Department of Justice, the administration takes the
position that the President has the inherent power to violate
any law that touches on national security or terrorism. That
theory raises the question of whether much of what we do in
this Committee or in the Senate is an elaborate charade with no
real effect, because in the end the administration has claimed
for itself the power of this branch of Government to write the
laws and the power of the third branch of Government to
interpret them.
So obviously, because of that history, you have the
opportunity and need to, I think, do some fence-mending, not
personally, but with regard to this record of the
administration, and I hope you are eager to do that. Protecting
Americans from terrorism is our No. 1 priority in Congress, as
it is in the Department, and this Committee does want to be
helpful in your work.
I would like to ask you first whether you agree that the
fight against terrorism, with all its complexities and dangers,
can be better carried out with the legislative and executive
branches of Government working together than if they are at
loggerheads.
Mr. Wainstein. Thank you very much for your words, Senator.
As to the question about how we can best pursue the war against
terrorism, absolutely no question, the best way that we can
pursue that war and the best way we can protect our country men
and country women against crime or terrorism, any kind of
threat, is working jointly, both Congress and the executive
branch.
I have seen examples of that over the years in the law
enforcement context where Congress has provided the tools that
we need to protect our citizens. I have seen it in the PATRIOT
Act where, thanks to, I think, some very sound legislation by
Congress, we now have a balanced PATRIOT Act which has provided
us the tools we need to fight the war against terror, but also
has provided a number of new safeguards that weren't in place
prior to the reauthorization act.
So I see that as an example of the benefit of working
jointly between--having the executive branch work closely with
the legislative branch. And I would see that it would be my
duty to work very closely, to seek your input, and to provide
you input where it would assist you in satisfying your duties.
Senator Feingold. I am a member of the Intelligence
Committee, as well as the Judiciary Committee. So I, of course,
agree with the Chairman's comments about the need for
intelligence and I understand very well the need for secrecy in
intelligence matters. But I also believe that in many cases
this administration has pursued policies of secrecy for
political reasons rather than for national security reasons.
Can we count on you to be a voice in internal DOJ
deliberations for more cooperation and consultations with
Congress and more openness with the public?
Mr. Wainstein. Thank you, Senator. You have gotten to, I
think, a point that relates to a point raised by the Chairman
about the importance of instilling confidence in the public and
in the Congress in our programs and our activities. And I think
the only way to do that is to have contact and to talk about
the issues we have in common, to have open channels of
communication, and I will endeavor to do that.
I think it will be particularly critical as we stand up
this new division to seek the assistance and the input of
Congress and to let you know what we are doing because you will
be very interested in seeing how our organization reflects the
best ideals of defense of our national security as well as
protecting civil liberties.
Senator Feingold. Just to be clear in the record, it is my
hope that you will be an advocate for what you just said in the
internal DOJ deliberations.
Mr. Wainstein. Yes, Senator, I will be an advocate for that
to anybody.
Senator Feingold. From July 2002 until May 2004, you worked
at the FBI, first as general counsel to the FBI and then as
Director Mueller's chief of staff. Were you read into the NSA
program during that time?
Mr. Wainstein. I was aware of the program, yes, sir.
Senator Feingold. And did you ever express concern about
the legality in constitutional and internal deliberations
within the FBI or the Department of Justice?
Mr. Wainstein. No. When I got there to the FBI, Senator--I
got there in, I think, the summer of 2002, and the program had
been ongoing for, I think, eight or 9 months at that time and I
was never asked to render any opinion on the program. I never
was asked to be involved in any operational matters relating to
the program. I was familiar with the program and that is about
the extent of it.
Senator Feingold. So you never did render any kind of
opinion as to your view as to the legality of the program?
Mr. Wainstein. No, I didn't, sir.
Senator Feingold. If confirmed to your new position, you
will head the section of the Department that is responsible for
submitting applications under FISA to the Foreign Intelligence
Surveillance Court. That statute and that court, of course,
were bypassed by the President authorizing the NSA warrantless
spying program.
Both Representative Jane Harman of the House and Senator
Dianne Feinstein, a member of this Committee and the Senate
Intelligence Committee, have received as much information about
the NSA program as any Member of Congress. They both have said
they believe that this program could be carried out consistent
with the current FISA statute.
Are you comfortable with undertaking this new position with
overall responsibility for complying with the FISA statute
knowing that the administration is undertaking a significant
surveillance program outside of that law?
Mr. Wainstein. Yes, Senator, and you have obviously touched
on a very important debate that is ongoing right now about the
parameters of the FISA statute and the constitutionality of the
terrorist surveillance program. I have read the publicly
available documents both supporting the program and those
saying that the program is not constitutional.
I have found the 42-page white paper that was submitted by
the administration to provide a fairly compelling justification
for the program. If I am fortunate enough to take this job, one
of the first things I would do is I would look at the
intersection of those two programs, the FISA operations and
this program, to make sure that in practical terms they are
working in tandem and they are working appropriately. And I
imagine I would also take a look at the law and if I have an
opinion about the law and the legal justification for the
program, I will voice that opinion.
Senator Feingold. Obviously, I respect your view and would
not have expected you to say something different. All I can say
is I have been involved with the law for decades myself and I
have reviewed all these materials and I have rarely seen a
weaker case for any legal argument in my life.
You indicated that you believe that the white paper is
compelling?
Mr. Wainstein. Well, Senator, I have read that and I have
to admit that I have not gone beyond to look at the back-up
materials, to look at the case law, read the cases cited. And I
haven't looked at the variety of position papers that are at
odds with that, but I have----
Senator Feingold. Fair enough, but with regard to the
authorization of military force for Afghanistan as being a
justification for this, which is included in the White House
paper, do you find that compelling as a justification for the
NSA surveillance program outside of FISA? Do you find that
compelling?
Mr. Wainstein. Once again, I haven't gone back and really
noodled through it as I would before I felt comfortable as a
responsible lawyer rendering an opinion on something. But I
looked at the analogy of the Hamdi case, where the Supreme
Court found that detentions were authorized by the
authorization of the use of military force, and that seemed to
be an analogous situation and it seemed to apply here.
Senator Feingold. Well, we have been back and forth on this
with Senator Graham and others on the Committee. Fair enough. I
know that is not your purpose in being here, but I ask these
questions to highlight obviously the significance of this vis-
a-vis your position; that you have an opportunity, and you are
obviously highly qualified to do it, to try to help us improve
this relationship between the executive and the Congress in
this area. And at the core of it is our ability to believe that
the President and the executive is not overreaching with regard
to the law.
So that is a concern I have, but I certainly want to work
with you in a cooperative way to resolve our differences. I
wish you well.
Thank you.
Mr. Wainstein. Thank you, Senator. I appreciate those kind
words, and I assure you that I will work with you with the same
desire to serve each other's purposes and provide each other
communication and information that we need.
Senator Feingold. Thank you, Mr. Chairman.
Senator Brownback. Thank you, Senator Feingold, and I
appreciate the thoughts. And I can guarantee you, Mr.
Wainstein, they come from a deep-felt heart on the part of
Senator Feingold to try to protect the rights of the
individual. It is that sort of bipartisan approach on
intelligence-gathering that I am hopeful we can move forward
with, and that you can really be at the vortex of making that
happen. It is needed if we are going to maintain the support
that we need for the war on terrorism for the decades that it
is going to take to prosecute this war. We have got to get
everybody's support in it and keep it there. So I hope you
continue to work with us on this Committee, Senator Feingold
and myself and many others, to do that.
Mr. Wainstein. Thank you, Mr. Chairman. I appreciate your
support.
Senator Brownback. Thank you.
We will maintain the record open for the requisite number
of days. We appreciate your attendance. The hearing is
adjourned.
Mr. Wainstein. Thank you, sir.
[Whereupon, at 4:19 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF ANDREW J. GUILFORD, OF CALIFORNIA, TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND FRANK D. WHITNEY, OF NORTH
CAROLINA, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH
CAROLINA
----------
WEDNESDAY, MAY 24, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:03 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Lindsey
Graham presiding.
Present: Senator Graham.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR
FROM THE STATE OF SOUTH CAROLINA
Senator Graham. The hearing will now come to order, a few
minutes late, and the Chair recognizes my two friends,
colleagues, distinguished Senators from North Carolina, and
ladies first.
PRESENTATION OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. ELIZABETH
DOLE, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Dole. Thank you, Mr. Chairman, and I want to thank
you for holding today's hearing. It is my great honor to
introduce Frank DeArmon Whitney, the President's nominee to
serve as a U.S. district judge in the Western District of North
Carolina. Mr. Whitney brings an impressive record of
accomplishment and achievement before this committee, and he is
an outstanding choice for this important post.
Frank Whitney has deep roots in North Carolina and in
public service. He attended Wake Forest University and the
business and law schools at the University of North Carolina at
Chapel Hill. After receiving his law degree with honors, Frank
clerked on the prestigious U.S. Court of Appeals for the
District of Columbia Circuit for Hon. David Sentelle, a
favorite son of North Carolina, and it is a privilege to have
Judge Sentelle with us today.
Upon completing his clerkship and a year in private law
practice, Frank returned to North Carolina and dedicated
himself to public service. For nearly 11 years, he served as an
Assistant U.S. Attorney for the Western District of North
Carolina. While in the Western District, he acquired
substantial trial experience, both criminal and civil, and
earned the respect of his colleagues and peers.
In 2002, Frank was elevated to the post of U.S. Attorney
for the Eastern District of North Carolina. As a result of his
leadership, energy, and enthusiasm, the Eastern District has
experienced a period of robust and resounding success. Among
his many accomplishments, Frank Whitney has supervised what
some have called ``the most successful public corruption
prosecution in North Carolina history.'' He also has helped
prepared Iraqis for the process of drafting a constitution and
establishing a judicial system.
He has even recovered North Carolina's original copy of the
U.S. Bill of Rights, which was stolen from the State Capitol in
1865.
Senator Graham. Stolen?
Senator Dole. His performance as U.S. Attorney has elicited
high praise. The Raleigh News and Observer credited Frank
Whitney for awaking elected officials to the importance of
ethics in Government, and the newspaper attributed his
incredible success to his restless mental and physical energy
and Boy Scout idealism.
Others who have had the opportunity to observe Frank's work
have described him as aggressive yet fair. Those who know Frank
best, including those who have worked for him in the U.S.
Attorney's Office, are effusive in their support for his
nomination.
One of Frank's colleagues made the following assessment:
``Frank is personable and gracious, yet knows the law and seeks
justice. He has an abiding love for our country and is deeply
committed to the principles that have made it great. He
appreciates the historic separation of powers and understands
judicial self-restraint. Frank possesses vast legal knowledge
and demonstrates admirable judicial temperament.''
Mr. Chairman, this description is consistent with
everything that I know about Frank Whitney, and I submit that
this is precisely the type of person we need on our Federal
courts.
I have spoken mainly of Frank's service for this country as
its representative in court. But there is another component of
his career that I must commend. That is his impressive record
of military service, which began during his collegiate days at
Wake Forest where he participated in ROTC. Frank is present a
Lieutenant Colonel in the U.S. Army Reserves, and he has worked
as an intelligence officer and as a judge advocate. He has been
awarded numerous military honors, including a parachutist badge
and three meritorious service medals.
Mr. Chairman, Frank Whitney truly has dedicated his life to
serving his country as a civilian and as a soldier. Frank comes
to this Committee with impeccable credentials, and I am
confident that he would serve with great distinction as a
member of the Federal judiciary. It is my privilege to give him
my strongest endorsement.
Thank you again for holding a hearing for this
distinguished North Carolinian and public servant. I hope that
this Committee will act with due speed on his nomination and
that I soon will have the opportunity to cast a vote for his
confirmation on the Senate floor.
Thank you very much.
Senator Graham. Thank you, Senator Dole. You can preach my
funeral. That was pretty good.
Senator Dole. All right.
[Laughter.]
Senator Graham. You have got a lot to live up to, Frank,
when you come up here. Well done.
Senator Burr?
PRESENTATION OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF NORTH CAROLINA, BY HON. RICHARD
BURR, A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Burr. Mr. Chairman, Senator Dole makes it very
difficult to go second, and I forgot to say that it is an honor
to be asked to speak on behalf of Frank Whitney to be a United
States District Court Judge in the Western District of North
Carolina.
I saw the Chairman's eyes light up as Senator Dole talked
about his military service, and I think in many ways it mirrors
that of the Chairman. I am not sure who ranks higher, but I am
sure we will find out before this hearing is over.
[Laughter.]
Senator Burr. Clearly, Frank's academic and professional
credentials are quite impressive. He is currently U.S. Attorney
in my home State. He has practiced in two very distinguished
law firms. He was an Assistant U.S. Attorney. He has clerked in
the D.C. District Court of Appeals. He graduated with honors
from law school at UNC-Chapel Hill. And he was Phi Beta Kappa
from my alma mater, Wake Forest. That should be enough right
there just to put him on the bench.
But I think Senator Dole put it best, that this is an
incredibly impressive resume, and now you have to add to it
that his most honorable characteristic is that he continued to
do this while he served his country. He continues to serve in
the Army Reserve, both as an intelligence officer and a judge
advocate. He is a former paratrooper and received three
meritorious service medals and recently was selected for
promotion to Lieutenant Colonel, so I have a feeling you
probably do outrank him.
I could continue with the list of qualifications, but I
think it is clear that this is a man that is well qualified to
join the other fine Federal judges who currently preside in our
State of North Carolina.
But, Mr. Chairman, I think the most important qualification
that I would like to note about Frank Whitney is he is a good
man. I had the pleasure of meeting Frank and his family this
morning when they visited my office--his wife Catherine, his
daughter Hunter, and other family members. And I think that you
will have the opportunity to meet them as well.
Personally, as a husband and a father, I want to feel
confident that the individuals that we extend a lifetime
appointment to represent the things that I as a husband and a
father think are important. Frank Whitney meets that goal.
I feel confident that Frank does understand the importance
of being a Federal judge. I know that Frank is qualified to
serve on the bench. I am confident that Frank will continue to
serve his Nation with honor and dignity. I believe Frank will
continue to make his family proud, and I am 100-percent
confident today that North Carolina will have one of the best
Federal judges in the country in Frank Whitney.
Mr. Chairman, I urge you and your colleagues to move his
nomination as quickly to the floor out of Committee as we
possibly can so that a State that has a number of vacancies
today can begin tomorrow to fill those vacancies. And I thank
the Chair.
Senator Graham. Well, I want to thank both of my colleagues
from North Carolina for, one, picking someone like this. This
is what makes the law so well respected in our society. The law
is well respected because we have good judges, good
prosecutors, good defense attorneys, and you have hit a home
run here. I appreciate both of you for not only picking someone
that represents your State well but would represent our whole
Nation well wearing the robe. And I promise you we will get
this done very quickly.
Thank you both.
Senator Graham. All right. If you both would please raise
your right hand. Do you solemnly swear the testimony you are
about to give before this hearing is the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Guilford. I do.
Mr. Whitney. I do.
Senator Graham. Maybe a good way to start is for each of
you just to introduce your families, if you don't mind.
STATEMENT OF ANDREW J. GUILFORD, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Mr. Guilford. Thank you, Mr. Chairman. I am honored to be
here. I appreciate the opportunity to introduce my family. Is
that better? Thank you. I'm glad I got that on before I had
this unique opportunity.
Obviously, I am honored to receive the nomination. I'd like
to thank you, Mr. Chairman, for having this hearing and for the
good work that you and this Committee does. I would like to
thank the President, of course, for nominating me and in the
State of California, Senators Boxer and Dorr--Senators Boxer
and Feinstein have an advisory committee. I'm pleased with the
advice that they've given that has brought me here.
Someone who is not here are my mother and father, Howard
and Elsie Guilford, who have been married now for over 60
years. They were unable to come, but I did--I am blessed with a
lot of people who were able to come.
Let me first start with the Brusseau family, neighbors from
the area: Judith Brusseau, please stand up. Charlotte Brusseau,
Catherine Brusseau, and Rebecca Brusseau. Thank you all for
coming.
Next is my brother, who has been a JAG officer, a career
JAG officer, which seems to be a popular career here today:
Jeff Guilford. Thank you for coming, Jeff.
Then my family over here, first my daughter, Amanda Murray,
who is in a Ph.D. program at the University of Iowa. Her
husband could not come because he is working on his Ph.D.
program from Iowa. My daughter, Colleen Guilford, who in a few
weeks will graduate from Harvard Law School. We are very proud
of her. And last, but not least, my friend and wife for 32
years, Loreen Guilford.
Senator Graham. We welcome you all.
Mr. Guilford. Thank you, Mr. Chairman.
[The biographical information of Andrew J. Guilford
follows.]
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Senator Graham. Thank you.
Mr. Whitney?
STATEMENT OF FRANK D. WHITNEY, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
Mr. Whitney. Thank you, Mr. Chairman. It is my honor also
to introduce my family, if I may. To my far right is my mother-
in-law, Judy Ghoneim; my wife, Catherine; my daughter, Hunter.
She's our 8-year-old. Our 10-year-old, Amy, is very
disappointed because she's at home sick, and she wanted to be
here today.
The next row is my colleague and close friend, Bobby Higdon
from the Justice Department, who is joining us today. An old
friend of mine and my wife's, Kim O'Brien. My legal mentor,
Judge David B. Sentelle of the U.S. Court of Appeals for the
D.C. Circuit. My cousin and close friend, David Whitney, who's
former chief counsel for Senator Helms and is currently counsel
on the House Judiciary Committee. And behind him, my nephew,
Will Austin.
[The biographical information of Frank D. Whitney follows.]
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Senator Graham. Well, thank you. Welcome to you all, and
particularly, Judge Sentelle, welcome to you. We really
appreciate you coming and taking time from your duties to be
here to support Frank.
We will make this short and to the point, but we will start
with you, Mr. Whitney. One of the great debates we have been
having in the Senate is who should be a judge and why and how
much does philosophy matter and what is the role of a judge,
and is a conservative politician and a conservative judge the
same thing, or a liberal politician and a liberal judge, are
they the same thing? I don't think so, but if you could give me
just a real brief explanation of what you believe your judicial
philosophy is and how you see your job as a district court
judge in terms of that philosophy.
Mr. Whitney. Thank you, Senator. That's a very thoughtful
question.
This morning, my wife, daughter, and mother-in-law decided
to do a little tour of Capitol Hill, and we walked down the
street to the Library of Congress. On the way we stopped in
front of the Supreme Court building, and I looked up over the
colonnade and I saw the phrase, ``Equal Justice Under the
Law.'' And I don't think anything more summarizes the
importance of what district judges do. They ensure that all men
and women are treated equally under the law. And I pledge to
follow the law, adhere to the law, if confirmed, and apply
equal justice under the law.
Senator Graham. How do you think your military service has
helped you, if at all, for this job?
Mr. Whitney. Thank you for allowing me to share my thoughts
on that. My military service is more beneficial to me than any
other legal service because, as a judge advocate--and you know
this, and I believe you do outrank me. I believe you are an 06
Colonel.
Senator Graham. Only in rank, not in----
[Laughter.]
Mr. Whitney. Thank you.
Senator Graham. Thank God the two don't go together.
[Laughter.]
Senator Graham. I would have been in trouble a long time
ago.
Mr. Whitney. As you know, judge advocates deal with
soldiers and dependents, with people. And my experience in
private practice or in public practice, civilian public
practice, has either been with businesses or representing the
people of the United States. As a judge advocate, though, I
represented soldiers' and dependents' personal needs,
individual needs, and it really touched me how important it is
that we are dealing with people. And as a judicial officer, I
think I will be able to perform with an understanding that it
is individuals that their lives we're dealing with as we make
rulings on the law.
Senator Graham. Thank you.
Mr. Guilford, how would you describe your judicial
philosophy? And how will it be applied to the job that awaits
you?
Mr. Guilford. Well, thank you for that interesting
question, Mr. Chairman. I would agree with what Mr. Whitney has
said. I would view the role of the judicial branch as being the
branch that interprets the law and does not make the law, does
not execute the law. It's the branch that interprets the law.
And I would hope to do that as the law is written. And I would
hope to do it with humility. I think if we bring to the bench
judges with humility, we will get the right kind of rulings.
Senator Graham. Well, I just want to again thank you both
for being willing to serve in this important job. I know you
are not doing it for the money. I hope we can pay our judiciary
a more appropriate rate because you do leave private practice
on many occasions. The ability to make money is left behind for
public service, and I want to make sure our judiciary is not
only independent but that people with families, like you, who
are not independently wealthy, can still serve. If you have a
kid in Harvard, you probably know what I am talking about.
So it is very important to me that our judiciary be
adequately compensated because people who are not independently
wealthy with families can still financially be able to help our
country. I look forward to supporting both of you, and
congratulations to you and to your families, because there may
be self-made men and women, I am just not one of them. If it
weren't for people around me, my mentors, my family, and my
friends, I would not be here. And I am sure it is the same for
each of you. So congratulations. I hope you enjoy your time in
Washington, and all of you should be rightfully proud of this
moment because it was a team effort to get here. God bless.
Mr. Guilford. Thank you, Senator.
Mr. Whitney. Thank you, Senator.
Senator Graham. The record will be left open for 1 week,
and without any further input, the hearing is adjourned. Thank
you.
[Whereupon, at 2:20 p.m., the Committee was adjourned.]
NOMINATIONS OF JEROME A. HOLMES, OF OKLAHOMA, TO BE CIRCUIT JUDGE FOR
THE TENTH CIRCUIT; DANIEL P. JORDAN III, OF MISSISSIPPI, TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI; AND GUSTAVO A. GELPI,
OF PUERTO RICO, TO BE DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO
----------
THURSDAY, JUNE 15, 2006
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:03 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Tom Coburn,
presiding.
Present: Senator Coburn.
OPENING STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE
STATE OF OKLAHOMA
Senator Coburn. The Committee will come to order. Today, we
will have a confirmation hearing for three of the President's
judicial nominees. I appreciate your willingness to appear
before the Committee today. Our nominees have traveled some
distance, and we appreciate that.
I am particularly glad to see my friend, Mr. Holmes, a
fellow Oklahoman here with us today. I hope we can quickly move
all of your nominations through the Committee and get them
voted on the floor as soon as possible.
Senator Leahy will not be able to attend. He does have a
statement, which I will put into the record under unanimous
consent agreement, as well as a statement from Senator Kennedy.
We have distinguished Members of Congress with us. Is
Senator Cochran coming, Senator Lott?
Senator Lott. I believe he is.
Senator Coburn. And Senator Inhofe will be here.
We will turn to our distinguished Members of Congress and
allow them to introduce their nominees. First, we will start
with Senator Lott.
PRESENTATION OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. TRENT
LOTT, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Lott. Well, thank you very much, Mr. Chairman. It
is a pleasure to call you Chairman, and it is such a delight
also to realize that the Chairman of this Subcommittee chairing
this hearing on the Judiciary Committee is not a lawyer.
Senator Coburn. I think four of us on the Committee are not
lawyers.
Senator Lott. That is a very positive development. But
don't get carried away. We are not going to allow you on the
Supreme Court.
Senator Coburn. I will not.
Senator Lott. But thank you for having this hearing and
allowing me to go forward. I know my senior colleague from
Mississippi, Senator Cochran, will be here because he, like I,
has known this family for at least 40 years, probably, and the
young nominee that we are introducing today. So it is my great
pleasure to introduce Daniel Jordan to the Committee. He is
accompanied here by his wife, Teri--I want to recognize her--
and, more importantly, his daughter, Anna; and his mother and
father. Dan Jr. was president of the student body and the
brigade commander of the Army ROTC unit when I was a freshman
at the University of Mississippi in 1959, and he was one of
those leaders on campus we all looked up to, and his wife,
Lou--she was Smeltzer then--was Miss Ole Miss, which is the
greatest honor you could possibly achieve in Mississippi, other
than being Miss America. But this is a great, great family, and
the senior Dan Jordan--I do not know the exact title, but for
lack of a better--is it curator?
Mr. Jordan Jr. President of the Thomas Jefferson
Foundation, which owns and operates Monticello.
Senator Lott. Okay. He said it very well himself.
You will notice how young Lou looks, and, of course, the
husband there is not quite that young looking, but he has done
an outstanding job at Monticello. And if you have not ever
been, go and let him take you on the night tour, where you can
actually feel the spirit and almost blow out the candle of the
tour from Thomas Jefferson. I think you would really enjoy it.
He recently was selected as the Outstanding Citizen of the
State of Virginia, and I think that is a great acknowledgment
by Virginia that it would pick a Mississippian.
So we know the pedigree; we know the DNA of Dan Jordan. And
we are very delighted that the President has seen fit to
nominate him to the United States District Court for the
Southern District of Mississippi.
In Mississippi, his nomination has received bipartisan and
broad support and praise, and that is really significant
because that has not always been the reaction of our nominees
in Mississippi. But Dan has become a very respected litigator,
and even those who oppose him in the courtroom--and maybe those
who oppose him have the most respect for him because they
appreciate his demeanor and the type of attorney he has become
and the kind of individual he is. He is a graduate of the
University of Mississippi cum laude and the University of
Virginia Law School, where he was on the Editorial Board of the
Journal of Law and Politics. He is currently a partner with
Butler, Snow, O'Mara, Stevens & Canada, the largest law firm
based in Mississippi. In his practice, he has demonstrated the
knowledge, professionalism, fairness, temperament, and skill
that make him, I believe, ideally suited for the Federal bench.
He has a history of work in public service. Before
attending law school, he gained experience working in the
Department of Interior and later as a legislative aide for the
then-freshman Senator from Mississippi, yours truly. And since
returning to Mississippi, he has continued to serve the public
through numerous philanthropic outlets.
He has served as the coordinator for the Jackson,
Mississippi-based Stewpot Legal Clinic, an organization
providing legal assistance to the homeless. His tireless
efforts prompted the executive director of the Mississippi
Volunteer Lawyers Project to recently proclaim of Dan in these
words: ``Words cannot express how he has given his time. He
takes time out of his busy schedule to give back...He is just
great.''
He has been named one of Mississippi's ``Top 40 under 40,''
although I believe he is over 40 now, by the Mississippi
Business Journal and honored as ``Jackson's Finest'' by the
Mississippi Multiple Sclerosis Foundation. He is an active
member of the Christ United Methodist Church in Jackson and is
the father of two.
He has the education, the experience, the reputation, and I
think most importantly, the temperament to be an outstanding
and fair judge. He is young, but he is wise and mature beyond
his years. He is a perfect example of the kind of person that
we need in the Federal judiciary, and so it is my great honor
to be here to endorse the nomination and ask for the speedy
confirmation of Dan Jordan of Mississippi to the Southern
District of the Federal court.
Senator Coburn. Thank you, Senator Lott.
Next is my senior Senator, Senator Inhofe from Oklahoma.
Senator Inhofe?
PRESENTATION OF JEROME A. HOLMES, NOMINEE TO BE CIRCUIT JUDGE
FOR THE TENTH CIRCUIT, BY HON. JAMES M. INHOFE, A U.S. SENATOR
FROM THE STATE OF OKLAHOMA
Senator Inhofe. Thank you, Mr. Chairman. I apologize for
being late. As you know, we have the Armed Services bill on the
floor right now.
Well, I am here to endorse very heartily Jerome Holmes from
Oklahoma. I cannot say enough good things about this guy. I
have known him now for quite a number of years, and I have
followed him. And, you know, it is not very often--and I think
probably the two of us would fit in the category. It is hard to
find someone that everybody likes. But everybody likes this
guy. He has the temperament, he has the background, and the
family background, to really appreciate what life in America is
all about and what he should be doing in his public service.
His family is no stranger to serving the public. His
father, Ryland Holmes, was in the Foreign Service, which took
the family to places such as Ethiopia and Korea. Since I have
an Ethiopian granddaughter, we have had some conversations
about that. His mother, Hattie Holmes, was a public school
teacher when they lived overseas, and she was an administrator
at the University of the District of Columbia when they
returned to the United States.
He earned his law degree from Georgetown University in 1988
and his master's in public administration from Harvard
University in 2000. He practiced law privately from 1991 to
1994 and was an Assistant U.S. Attorney for the Western
District of Oklahoma. I believe that this distinguished service
as Assistant U.S. Attorney helped him secure an impeccable
reputation in the legal field. He was recently sworn in as the
Vice President of the Oklahoma Bar Association and is currently
director at one of Oklahoma's premier law firms, Crowe &
Dunlevy.
He goes above and beyond the call of duty and is an active
member of the Oklahoma Bar Association's Rules of Professional
Conduct Committee and the Commission on the Homeless and
Poverty of the American Bar Association. He also co-chairs the
Crowe & Dunlevy Diversity Committee. He was a member of the
Oklahoma City bombing prosecution team.
Not only has Jerome Holmes enjoyed a stellar professional
career, but he has received numerous award for his service,
including the Director's Award from the Executive Office of the
U.S. Attorneys for superior service and many, many others that
I will submit for the record.
I would like, though, to say that in addition to my
recommendation, I have comments in letters from an abundance of
people, but I would like to only mention one, Mr. Chairman, and
that is a statement by the Tenth Circuit Judge William
Holloway. He said, ``I am pleased to recommend highly my former
clerk, Jerome Holmes...He is dedicated to the highest standards
of intellectual service and performed his work for our court as
my clerk with complete impartiality and compassion for the
people whose cases were before the court.''
So I would say the same thing as Senator Lott said. I
recommend his confirmation as soon as possible, and I can
assure you that our judicial system will be better off with
Jerome Holmes.
Thank you.
Senator Coburn. Thank you, Senator.
Next we have Representative Luis Fortuno of Puerto Rico. If
you would, you are recognized for 5 minutes.
PRESENTATION OF GUSTAVO A. GELPI, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF PUERTO RICO, BY HON. LUIS G. FORTUNO, THE
RESIDENT COMMISSIONER IN CONGRESS FROM THE COMMONWEALTH OF
PUERTO RICO
Resident Commissioner Fortuno. Thank you, Mr. Chairman. As
the sole Representative in Puerto Rico of the 4 million U.S.
citizens residing in Puerto Rico, it gives me great pleasure to
introduce U.S. Magistrate Judge Gustavo Gelpi to the Senate
Judiciary Committee. On April 24, 2006, our President, George
W. Bush, nominated him to fill a vacancy in the U.S. District
Court for the District of Puerto Rico.
Mr. Chairman, I am honored to appear before you today in
enthusiastic support of his nomination. Mr. Gelpi was born in
San Juan, Puerto Rico, and educated at the Suffolk University
Law School and Brandeis University, both in Massachusetts.
Early in his legal training, he worked as a student law clerk
to U.S. Magistrate Judge Joyce L. Alexander and as a law clerk
to U.S. District Judge Juan Perez-Gimenez. From 1993 to 1996,
he worked in the office of the Federal Public Defender for the
District of Puerto Rico as assistant Federal public defender.
In 1996, Mr. Gelpi became Special Counsel for the United States
Sentencing Commission in Washington, D.C. In 1997, he started
working in the Puerto Rico Department of Justice, first as a
special aide to the Attorney General and subsequently as
Assistant Attorney General. In 1999, he continued his
distinguished public service career by becoming the Solicitor
General of Puerto Rico.
Since 2001, Magistrate Judge Gelpi has served with
distinction as a U.S. Magistrate in the U.S. District Court for
the District of Puerto Rico.
Magistrate Judge Gelpi has been actively involved in groups
and committees dedicated to educating and improving the legal
profession. He is a member of the Criminal Justice Act
Committee, U.S. District Court for the District of Puerto Rico;
the Federal Bar Examination Committee, District Court for the
District of Puerto Rico as well; Fellow, Federal Bar
Association; and the Vice President for the First Circuit,
Federal Bar Association, among others. He has published several
law review articles on maritime law, criminal law, and ethics.
His impeccable record in public service and in the field of
law has earned him a place among the most distinguished jurists
and attorneys in Puerto Rico. On May 2, 2006, Gelpi was awarded
an Honorary Doctor of Laws Degree by his alma mater, Suffolk
University Law School.
This nominee has received widespread support from those who
have worked with him. Those who encounter him in the courtroom
speak with respect and admiration. The Federal Bar Association,
Puerto Rico Chapter, expressed its unconditional satisfaction
with his qualifications and recognized him, and I quote, as an
``exceptional, competent, and qualified Federal legal
professional.'' The Hispanic National Bar Association likewise
expressed unconditional satisfaction with his qualifications,
noting, and I quote again, ``seldom have we witnessed such an
accomplished career and steadfastness of service in a candidate
for the United States District Court of Puerto Rico.''
On May 30, 2006, the American Bar Association issued a
unanimous vote rating Mr. Gelpi as ``Qualified'' for
appointment as judge of the United States District Court for
the District of Puerto Rico. Mr. Chairman, Mr. Gelpi without
any doubt is at the top of the legal profession in his
community. I believe that Mr. Gelpi possesses the intellectual
capacity and dedication to faithfully and impartially perform
the duties of his new position. It is my pleasure to introduce
to you and to recommend with enthusiasm Mr. Gustavo Gelpi, a
nominee that fully understands the responsibility that a
position on the Federal bench entails and will excel, I am
sure, in his new position.
Thank you again, Mr. Chairman. I thank you all for being
here today.
Senator Coburn. Thank you, Congressman Fortuno.
Next we have one of my favorite people in the Senate, the
Chairman of the Appropriations Committee, Hon. Thad Cochran.
Senator?
PRESENTATION OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, BY HON. THAD
COCHRAN, A U.S. SENATOR FROM THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you for the
opportunity of being here today to recommend to the Senate
Judiciary Committee Daniel Jordan III for service as a judge on
the United States District Court for the Southern District of
Mississippi. I have been here a good many years now, and we
have had several distinguished candidates for the Federal
judiciary before the Committee for review and for confirmation.
But I frankly do not recall anyone who has ever been better
qualified to serve in the position to which he has been
nominated than Dan Jordan III. He is a very intelligent, hard-
working, conscientious lawyer in the largest city in our
State--Jackson, Mississippi. He is affiliated as a partner with
one of the leading law firms in our State, the largest, really,
of homegrown law firms practicing in our State of Mississippi.
And he has an unblemished record in terms of good character,
good judgment, professional competence, and just generally
being a good citizen.
I do not know of any other more compelling evidence of that
than the amount of time and effort he has volunteered to help
the victims of the Katrina disaster. He went to the Gulf Coast
and helped establish a pro bono legal assistance operation
there, providing advice, counsel, and assistance to those who
were victims of that devastating hurricane in our State. It was
not fun even just being on the coast during the last several
months because of the widespread and complete destruction that
occurred in that part of our State. And so leaving your family
and your law practice and other responsibilities and spending
the time and effort that he has personally spent to that cause
I think is very impressive and it illustrates the kind of
person he is.
But beyond that, I have known his parents. I happened to be
in college with them. As a matter of fact, his father and I
were good friends. His father was a varsity basketball player
at the University of Mississippi, and incidentally, Dan Jordan
was captain of his high school basketball team in Richmond,
Virginia, where he was when he was in high school. Dan and Lou
Jordan, his parents, are some of the best respected and finest
people that we have from Mississippi. They live In
Charlottesville because Dan Jr. is the President of the Thomas
Jefferson Foundation, which has the responsibility of managing
and seeing to the operations, overseeing Monticello, the Thomas
Jefferson home there. He serves as a visiting scholar at the
University of Virginia as well because he was a distinguished
history professor before he assumed this responsibility. But
they live there now, and that is where Dan spent some of his
growing-up days. But they are Mississippians. They go way back
in our State. And Dan III returned to Mississippi after he
graduated from law school at the University of Virginia where
he had done very well as a student. He immediately went to work
in the law firm there in Jackson. He is involved in litigation.
He has been honored for his good work in the legal circles. He
has been President of the Young Lawyers Section of the
Mississippi State Bar, a job I used to have. I thought that was
about the highest honor I could ever hope to have. It was a big
deal. But it is an indication in his case of the respect that
other lawyers have for him who are his age and beyond.
He is an ideal person for this job, and I am really glad
that I had a chance to come by today to congratulate him and to
indicate to the Committee the high opinion I have of him and
the high hopes I have of his service on the Federal judiciary.
I predict he will serve with great distinction and reflect
credit on his family and on our State and on this Committee for
recommending his confirmation by the Senate.
Thank you.
Senator Coburn. Senator Cochran, thank you so much.
I would now ask for our nominees to come forward and rise
and lift your right hand. 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, so help you God?
Mr. Holmes. I do.
Mr. Jordan. I do.
Judge Gelpi. I do.
Senator Coburn. Please be seated.
Our first nominee is Jerome Holmes. He is nominated to be a
circuit court judge on the United States Court of Appeals for
the Tenth Circuit. If confirmed, Mr. Holmes will be the first
American of African descent to serve on that court. Mr. Holmes
comes before this Committee with stellar academic and legal
credentials. He graduated from Wake Forest University cum laude
in 1983, Georgetown University Law Center in 1988. While at
Georgetown, he served as editor-in-chief of the Georgetown
Immigration Law Journal. Recently, in 2000, he earned his
master's of public administration from Harvard's Kennedy School
of Government.
Between college and law school, he worked briefly as a
social services assistant with the D.C. Department of
Corrections. While in law school, he clerked for Hon. Wayne E.
Alley of the U.S. District Court for the Western District of
Oklahoma and Hon. William J. Holloway of the U.S. Court of
Appeals for the Tenth Circuit.
Following his clerkships, he spent 3 years in private
practice as an associate with the well-regarded law firm of
Steptoe & Johnson. In 1994, he began a distinguished career as
a Federal prosecutor, serving as an Assistant U.S. Attorney in
the Western District of Oklahoma. Among other duties, he
prosecuted public corruption, Federal criminal civil rights
violations, and was the office's first antiterrorism
coordinator. He also worked on the prosecution team that built
the case against the perpetrators of the Oklahoma City bombing.
Since 2005, he has been a director of the prominent law
firm of Crowe & Dunlevy, where he has focused on white- collar
criminal defense and complex litigation. He also chairs the
firm's Diversity Committee.
Mr. Holmes has given back to the people of Oklahoma by
taking leadership roles in a wide variety of civic
organizations. These include services as director of the
Oklahoma Medical Research Foundation, a trustee of the Oklahoma
City National Memorial Foundation, director of the Oklahoma
Academy of State Goals, Chairman of the City Rescue Mission,
and Vice President of the Oklahoma Bar Association. the
American Bar Association has unanimously found Mr. Holmes to be
qualified to serve on the Tenth Circuit.
Our second nominee today is Gustavo Antonio Gelpi,
nominated to be a district court judge for the District of
Puerto Rico. As magistrate, he was nominated by President Bush
to be a judge on the U.S. District Court for the District of
Puerto Rico on April 24, 2006. He graduated from Brandeis
University in 1987, received his J.D. from the Suffolk
University Law School in 1991. He began his legal career
clerking for Hon. Juan Perez-Gimenez on the U.S. District Court
for the District of Puerto Rico.
Following his clerkship, he joined the Office of the
Federal Public Defender for the District of Puerto Rico as an
assistant Federal public defender. In that capacity, he
provided legal assistance to the indigent defendants in
criminal cases. During his time in the public defender's
office, he served as special counsel to the U.S. Sentence
Commission, where he worked on revisions to Sentencing
Guidelines.
In 1997, he joined the Puerto Rico Department of Justice as
an Assistant to the Attorney General. Later that year, he
joined the Department's Office of Legal Counsel. In 1999, he
began serving as Puerto Rico's Solicitor General. Following the
year as Solicitor General, he entered private practice with the
San Juan firm of McConnell Valdes, where he has worked on
commercial litigation. In 2001, he was appointed to serve as
U.S. magistrate judge for the District of Puerto Rico. In that
capacity, his recommendations have consistently been adopted by
the district court. The American Bar Association unanimously
rated Judge Gelpi as qualified.
Finally, Daniel Porter Jordan III, our third nominee, was
nominated to be a district court judge for the Southern
District of Mississippi. He received his BBA from the
University of Mississippi in 1987, his J.D. from the University
of Virginia Law School in 1993. Between college and law school,
he was a legislative assistant, as we heard earlier, for
Senator Trent Lott. That had to have been fun. Following law
school, he joined Butler, Snow, O'Mara, Stevens & Canada as an
associate, and since 2000, he has been an equity member of the
firm, practicing chiefly in the area of product liability. He
has also gained significant experience in mediating cases. He
has been very involved with the Mississippi Bar Association,
including serving as a member of the Board of Directors, and
both Secretary and Treasurer of the Litigation Section. He has
been active in pro bono activities and was awarded the Hinds
County Bar Association Pro Bono Award in 2005. He has received
a unanimous qualified rating by the American Bar Association.
Gentlemen, we welcome you to the Committee today. We would
be pleased to hear any statement that you care to make, and I
would ask that you introduce your family and friends who are
here for your hearing. Please try to limit your statements to 5
minutes. We will not enforce that, however, if you feel that
there is more that we should have. We will begin with Mr.
Holmes. Welcome.
STATEMENT OF JEROME A. HOLMES, NOMINEE TO BE CIRCUIT JUDGE FOR
THE TENTH CIRCUIT
Mr. Holmes. Thank you, Dr. Coburn. I don't believe I will
need to go over 5 minutes.
I do not have a formal statement to make, but I would like
to thank President Bush for the confidence and trust that he
has placed in me in nominating me for this important position
on the Federal bench. I would like to thank you, Dr. Coburn,
for all of your support, as I have gone through this nomination
process. I would also like to extend warm thanks to Senator
Inhofe both for his kind remarks today and for his kind remarks
through this process that have been very encouraging to me and
supportive.
With me today are my sister, Jean W. Holmes, who is a
resident of the District of Columbia and who works at the
Environmental Protection Agency; and my law partner and good
friend, William H. Hoch III. Will on very short notice arranged
to come to Washington to be here for this proceeding, and I am
very grateful for that.
With that, I would welcome any questions from the Senator
at the appropriate time.
[The biographical information of Mr. Holmes follows:]
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Senator Coburn. Thank you.
Mr. Jordan?
STATEMENT OF DANIEL P. JORDAN III, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
Mr. Jordan. Thank you, Senator. I, too, would like to thank
the President for this tremendous opportunity. I am humbled by
it and excited for it.
I also want to thank Senators Lott and Cochran. They have
meant a lot to me and my family for years, and it was a real
pleasure working here in the Senate for Senator Lott.
I feel like you know my family well at this point, but I
will introduce them anyway. This is my wife, Teri; my daughter,
Anna, who is 8; my mother, Lou Ellen; and my father, Dr. Daniel
Jordan. My son, Robert, is 5 and he is not with us today. I
thought this would go more smoothly if he stayed at home.
[Laughter.]
Mr. Jordan. But I, too, appreciate this opportunity and
look forward to answering your questions. And I am sorry, I do
want to also thank two friends, former colleagues, Shelly
McCain and Jennifer Hawks Bland, who surprised me by showing up
today. I am very pleased to see them.
Thank you.
[The biographical information of Mr. Jordan follows:]
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Senator Coburn. Judge Gelpi?
STATEMENT OF GUSTAVO A. GELPI, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF PUERTO RICO
Judge Gelpi. Thank you, Senator. I join my colleagues. I
would also like to thank the President for nominating me, as
well as you and the members of this Committee for having me
here today. I would also like to thank Congressman Fortuno for
being here with me today.
Today with me is my father, who gave me his same name. He
is sitting right behind me.
Senator Coburn. Welcome.
Judge Gelpi. I also have some friends from Puerto Rico and
from the Mainland who are here today and former colleagues of
mine from the Sentencing Commission. They are here as well. My
wife and children, 5 and 2 years, respectively, are not here
today. Like Mr. Jordan, I felt the hearing could go smoother.
They are not here, but they are here in spirit. They thank you
also for having me here today.
[The biographical information of Judge Gelpi follows:]
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Senator Coburn. Thank you. All right. Well, we will start
out with some questions. The record will be left open for
questions by other members of the Committee for one week, and
staff should advise members of such.
Mr. Holmes, you have considerable experience in the area of
counterterrorism. As an Assistant U.S. Attorney, you served on
the prosecution team for the Oklahoma City bombings and then
after September 11, 2001, you served as coordinator for your
office's counterterrorism efforts.
What did you learn from those experiences?
Mr. Holmes. They were valuable experiences to me, Dr.
Coburn, in terms of understanding the importance of the threat
that faces our Nation from terrorism and the importance of
taking vigorous steps to address that threat.
Senator Coburn. Do you feel that you have the ability to
separate your ideology from your judicial philosophy?
Mr. Holmes. Thank you, Dr. Coburn, for that question,
because the answer is affirmatively and strongly yes. I very
much understand the role of a judge, and the role of a judge is
to be fair and impartial and to follow the law. Of all the
things I can commit to, I can commit to following the law and
following precedent. And my personal views and ideology, to the
extent that I have an ideology, would be put aside and is not
relevant for that role.
Senator Coburn. All right. Thank you.
Most of your experience has been in trial courts. How has
that prepared you to be a circuit court judge?
Mr. Holmes. Thank you, Dr. Coburn. As it relates to that
question, I believe it has given me tremendous preparation for
the role of an appellate judge. An appellate judge has an
opportunity to only review the record, and to understand the
context of the record, it often takes experience in the
courtroom. The dynamic of the courtroom is very useful to the
understanding of the cold record and what is going on and what
the lawyers are trying to do and the constraints that the judge
has to operate under in making decisions. And so I believe that
that trial experience has given me ample preparation for the
role of an appellate judge.
Senator Coburn. You also in your career have found time to
write and speak on a variety of issues. Some of those that you
have written about are matters of public controversy. If you
are confirmed, will you be able to put aside the import of
these writings and judge each case that comes before you with
an open mind bearing on stare decisis?
Mr. Holmes. I very much appreciate that question, Dr.
Coburn, because, again, the answer is absolutely yes. I
recognize very clearly the distinction between the role of a
writer on social policy issues in their personal capacity and
the role of a judge in adjudicating the rights and liberties of
individual litigants. And in that second, that latter role, it
is inappropriate for me to import my personal views on policy
issues into the decisionmaking process. My job in that role is
to follow the law, to follow the precedent that I am bound by,
the Supreme Court precedent, and I plan to do that, if
confirmed.
Senator Coburn. So on questions of affirmative action,
there is no doubt in your mind you would follow stare decisis
as set by the Supreme Court on cases that would come before you
with regard to that?
Mr. Holmes. If confirmed, Dr. Coburn, there is absolutely
no doubt in my mind that I would follow the law and I would
follow the binding precedents and adhere to stare decisis.
Senator Coburn. Thank you, Mr. Holmes. Judge Gelpi, you
have already had a distinguished career as both an advocate, as
a public defender, and the Solicitor General for Puerto Rico.
More recently, you have served on the other side of the bench
as United States magistrate judge. Having seen judicial
proceedings from both sides, would you speak briefly about the
role and significance of judicial temperament?
Judge Gelpi. Well, yes, thank you, Senator.
Senator Coburn. Could you pull the mike a little closer to
you?
Judge Gelpi. Yes, sir.
Senator Coburn. Thank you.
Judge Gelpi. Thank you, Senator. Judicial temperament,
particularly, I believe, at the district court level, is very
important. We come face to face every day with attorneys,
litigants. We have law enforcement agents, witnesses, and we
have to deal with the public on a day-to-day basis in the
courtroom and then in chambers, many times with attorneys. I
believe it is very important for a judge to have temperament.
You have to be able to listen to counsel, listen to both
parties, never be predisposed before you listen to your case,
because in my experience I have cases where you sort of have a
gut feeling at the beginning, but you listen carefully to the
parties, and then when you weigh the evidence or you listen to
the final arguments, you realize you may have been wrong or you
can change your mind. And it is very important to have that
open-mindedness at all times.
It is very important also to be courteous to all the
parties, the litigants. They are human beings, just like the
court, like the judge. It is also equally important to expect
that same conduct and that same treatment from the parties and
from counsel towards the court. And I think the court has to
set an example, and if the court sets the example, the bar and
counsel and litigants and everybody who appears before the
court would follow.
Thank you.
Senator Coburn. Do you have a judicial philosophy that you
could give in your testimony before this Committee?
Judge Gelpi. I do not have a particular judicial
philosophy. My own philosophy is to work as hard as I can and
to apply the laws and Constitution of the United States at the
trial level. That is what we do. We are not there to make new
laws, to enlarge the Constitution or abridge the Constitution.
That is the Supreme Court's role. We have to follow precedent
from not only the Supreme Court but also from the First
Circuit. So in that respect, that is my position.
Senator Coburn. That sounds like a judicial philosophy to
me.
[Laughter.]
Senator Coburn. You must know the district court and its
caseload well. What are the unique challenges of that court?
Judge Gelpi. Well, in Puerto Rico, I would say that the
most unique challenge is the volume of criminal cases. We are
one of the districts with the most multi-defendant cases, so
what is most challenging is you have to be able to manage the
criminal docket effectively. I have been a magistrate judge now
for 5 years. I truly believe that in a big district like ours,
with such a criminal docket, you have to rely on magistrate
judges. So I hopefully will have, if confirmed, a successor who
will assist me, as I have assisted the district court judges.
Scheduling is extremely important and also just moving the
cases along. And if you do that with the criminal docket, then
the civil docket will also fall into place. And that is also
very important because the civil litigants are also entitled to
their day in court.
Senator Coburn. All right. Thank you.
Mr. Jordan, how have your private experiences as a private
trial attorney prepared you to sit in the position as a judge?
Mr. Jordan. Thank you, Senator. As a private attorney,
primarily involved in civil litigation, I have been a part of
that process my entire career. I frequently practice in the
Federal courts within our State. I know the procedures. I know
how the trials work. I have seen it. I have been there, I have
done that on a firsthand basis. I think that it gives me a
perspective as a litigator that I think will be helpful as a
judge. If I am lucky enough to get confirmed and I have
litigants before me, I will know what they are thinking. I will
know what their hopes are. And I think that they will allow me,
if I am confirmed, to help move the cases along and reach the
correct result.
Senator Coburn. You have been active in the Mississippi
State Bar Association. You have also volunteered your legal
services on a pro bono basis. We talked about the award that
you got for pro bono. Will you tell us about your work with the
Bar Association and your experience with pro bono work
generally?
Mr. Jordan. Certainly. Thank you, Senator. I became
involved with the Mississippi Bar and also with the Young
Lawyers Division in Hinds County, Jackson, really from the very
beginning of my career. It is something that my law firm was
very much supportive of. They encouraged us to get involved,
and many of us did. One of the first leadership positions I had
was as the President of the Jackson Young Lawyers Association,
which is made up of roughly 300 attorneys. I thought that that
was a great honor, and I thoroughly enjoyed my time there.
I have also served on the Board of Directors for the Hinds
County Bar Association on numerous committees, which I have
enjoyed tremendously, and also on the State bar level.
In terms of pro bono, I believe that it is a responsibility
of all attorneys to dedicate a portion of their time to service
for the disadvantaged. One of the first times I was ever in
Federal court was pro bono representation on behalf of a
hospice that could not afford to pay legal fees. Throughout my
career, I think I have been fairly consistent about donating my
time. Roughly 2 years ago, I recognized that there was a
problem at the Stewpot Legal Clinic. This is an inner-city
shelter for the homeless, and every Tuesday there is an
attorney there giving free legal advice. But the problem was
that they were having a hard time finding attorneys willing to
show up to donate their time. So I asked if I could run the
program. I am pleased that they allowed me to do it. It has
been very rewarding for me to go down there.
The type of law I practice typically deals with companies,
and there is a lot of money involved. But when you sit down in
a small room with somebody who has a very serious personal
problem and you can help them with that problem, it is a
tremendously rewarding experience.
I have also worked down on the Gulf Coast some, which was--
you know, those people are in serious distress, and they needed
the assistance of counsel. So I view that as a great
opportunity, and I have really enjoyed that part of my
practice.
Senator Coburn. What do you see as your role as a judge in
the Southern District of Mississippi?
Mr. Jordan. Well, I believe the role of a trial judge is a
limited role. If I am fortunate enough to be confirmed, there
are precedents that the trial judges must follow. So many of
the substantive areas of law have been addressed, whether it is
Fourth Amendment rights, the scope of the Commerce Clause. You
know, in my view it is not a discretionary issue for the trial
judge.
I really view the trial judge more as being on the front
line of litigation and helping the cases get through the legal
process.
Senator Coburn. All right. Thank you.
Would any of you like to add anything else for the record
or make additional statements?
Mr. Holmes. No, sir.
Mr. Jordan. No, sir.
Judge Gelpi. No, sir.
Senator Coburn. Well, on behalf of the Judiciary Committee,
I want to thank you for appearing today. We will leave the
record open for one week until 5:00 p.m. on Thursday, June
22nd, for members to submit written questions. If you do
receive written questions, we would ask you to return them as
promptly as you can. I can also tell you from my experience on
the Judiciary Committee, delay in returning written questions
is something that is not dealt with in a very kind way and not
favorably toward your nomination. So I would advise you to be
very prompt in your response to any questions that you do
submit.
With that, this hearing is adjourned.
[Whereupon, at 2:42 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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