<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24235.wais]
S. Hrg. 109-200
NOMINATIONS OF COLLEEN D. KIKO, MARY M. ROSE, HON. JULIET J. McKENNA,
AND JOHN R. FISHER
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON THE
NOMINATIONS OF COLLEEN D. KIKO TO BE GENERAL COUNSEL, FEDERAL LABOR
RELATIONS AUTHORITY; MARY M. ROSE TO BE MEMBER, MERIT SYSTEMS
PROTECTION BOARD; HON. JULIET J. McKENNA TO BE ASSOCIATE JUDGE,
DISTRICT OF COLUMBIA SUPERIOR COURT; AND JOHN R. FISHER TO BE ASSOCIATE
JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS
__________
SEPTEMBER 13, 2005
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Jennifer A. Hemingway, Professional Staff Member
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Adam R. Sedgewick, Minority Professional Staff Member
Trina D. Tyrer, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Voinovich............................................ 1
Senator Akaka................................................ 4
Senator Lautenberg........................................... 5
Senator Carper............................................... 6
WITNESSES
Tuesday, September 13, 2005
Hon. F. James Sensenbrenner, Jr., a Representative in Congress
from the State of Wisconsin.................................... 2
Colleen D. Kiko, to be General Counsel, Federal Labor Relations
Authority...................................................... 7
Mary M. Rose, to be Member, Merit Systems Protection Board....... 9
Hon. Eleanor Holmes Norton, a Delegate in Congress from the
District of Columbia........................................... 19
Hon. Juliet J. McKenna, to be Associate Judge, District of
Columbia Superior Court........................................ 21
John R. Fisher, to be Associate Judge, District of Columbia Court
of Appeals..................................................... 23
Alphabetical List of Witnesses
Fisher, John R.:
Testimony.................................................... 23
Prepared statement........................................... 34
Biographical and professional information.................... 121
Kiko, Colleen D.:
Testimony.................................................... 7
Prepared statement........................................... 27
Biographical and professional information.................... 39
Responses to pre-hearing questions........................... 49
Responses to post-hearing questions.......................... 63
McKenna, Hon. Juliet J.:
Testimony.................................................... 21
Prepared statement........................................... 33
Biographical and professional information.................... 98
Norton, Hon. Eleanor Holmes:
Testimony.................................................... 19
Rose, Mary M.:
Testimony.................................................... 9
Prepared statement........................................... 31
Biographical and professional information.................... 66
Responses to pre-hearing questions........................... 72
Responses to post-hearing questions.......................... 93
Sensenbrenner, Hon. F. James, Jr.:
Testimony.................................................... 2
APPENDIX
Hon. Paul Strauss, Shadow U.S. Senator, District of Columbia,
prepared statement............................................. 35
NOMINATIONS OF COLLEEN D. KIKO, MARY M. ROSE, JULIET J. McKENNA, AND
JOHN R. FISHER
----------
TUESDAY, SEPTEMBER 13, 2005
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room 342, Dirksen Senate Office Building, Hon. George Voinovich
presiding.
Present: Senators Voinovich, Akaka, Carper, and Lautenberg.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. Good morning. Today, the Committee on
Homeland Security and Governmental Affairs meets to consider
four nominations: Colleen Kiko to be General Counsel of the
Federal Labor Relations Authority (FLRA); Mary Rose to be a
member of the Merit Systems Protection Board (MSPB); Judge
Juliet JoAnn McKenna to be an Associate Judge for the Superior
Court of the District of Columbia; and John Fisher to be an
Associate Judge of the District of Columbia Court of Appeals.
I commend all of these nominees for answering the
President's call to serve our Nation, and I trust that you will
fulfill your responsibilities with honor, courage, and
character befitting the office to which you have been
nominated.
We will begin by considering the nominations of Ms. Kiko
and Ms. Rose. You have been nominated during a period of
extraordinary change in the Federal workforce. Over the past
few years, Congress has enacted numerous pieces of legislation
that altogether constitute the most significant reforms of the
Federal civil service since the enactment of the Civil Service
Reform Act of 1978.
Senator Akaka, who I am pleased has joined us here today,
has been a steadfast partner in working to raise awareness of
the importance of strategic human capital management and
finding the solutions to the government's personnel challenges.
As Federal departments and agencies continue to understand and
take steps to implement these reforms, whether the
groundbreaking efforts of developing a new personnel system at
the Department of Homeland Security or the more targeted
reforms of implementing direct hire, the FLRA and the MSPB will
continue to play vital roles in ensuring the success and
integrity of the Federal civil service.
I welcome this morning to the Committee Congressman James
Sensenbrenner, Chairman of the House Committee on the
Judiciary. We are very honored to have you here with us,
Congressman Sensenbrenner, and I understand that you are going
to introduce Ms. Kiko to us this morning, if you would proceed.
Senator Lautenberg. Mr. Chairman, are we going to have
opening statements?
Senator Voinovich. Well, I think we ought to let the
Congressman introduce Ms. Kiko.
Senator Lautenberg. It raises the question for me. All of
us have our individual rights and opportunities, and there is
work that goes into laying out what we think are the parameters
for the discussion. However, I will back down for Congressman
Sensenbrenner, but I would hope that after his statement and
respect for his time that we can hear from each of us, please.
STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WISCONSIN
Mr. Sensenbrenner. Thank you, Mr. Chairman. I appreciate
the opportunity to come before this Committee and endorse the
qualifications of my good friend, Colleen Duffy Kiko, for the
position of General Counsel for the Federal Labor Relations
Authority. She is eminently qualified for this position and let
me tell you why.
I have known Colleen for 24 years, since 1981. She
graduated from George Mason University School of Law in 1986
and was hired right out of law school by the Department of
Justice in the Honors Program, Office of Legal Policy, and
later the Civil Rights Division. While there, she spent her
time investigating and prosecuting housing and credit
discrimination complaints and was detailed to the Eastern
District of Virginia to serve as a Special Assistant to the
U.S. Attorney prosecuting criminal cases.
At that time, I was the ranking minority member on the
Civil and Constitutional Rights Subcommittee of the House
Judiciary Committee, and a vacancy occurred on my subcommittee
for associate counsel. I knew that there were three upcoming
Federal judicial impeachments coming before the committee for
which I would need someone on my staff with prosecutorial
skills. Colleen fit the bill with her background.
I hired Colleen, who served as my counsel for the several
impeachments, and primarily the successful impeachment of Judge
Walter Nixon, for which I served as one of the House managers
during the Senate trial. During that time, she also served as
the principal negotiator for the Judiciary Republicans on the
Americans with Disabilities Act, which as we know just
celebrated its 15th anniversary.
Colleen left my employ in 1989 due to her ever-expanding
family commitments, or at least that is what she used as an
excuse to get away from me.
In 1996, she hung out her shingle and opened up her own law
practice, focusing primarily on criminal defense and domestic
relations. Colleen has excellent legal skills, exercises
independent judgment, and is steadfast in purpose. She is good
with people and is a good negotiator. She has shown excellent
capabilities of juggling both a serious legal career and her
important family commitments.
I would highly recommend her to serve in the position for
which she has been nominated. First, she was doing the work of
the FLRA for 2 years even before the agency even existed and
worked at the FLRA from its inception for 5 more years. She
knows the agency and its mission. FLRA whetted her appetite for
a law degree, and she returns with not only a law degree, but
with much legal and prosecutorial experience from which to draw
to be the chief prosecutor for all unfair labor practices in
the Federal labor relations area. This is a role especially
suited to her background and experience.
In short, I am really happy to be able to present to you a
public servant with a distinguished background who really
deserves early confirmation by this Committee, and I appreciate
your courtesy.
Senator Voinovich. Thank you, Congressman. We really
appreciate your being here and appreciate your introduction of
Ms. Kiko. It means a great deal to me because of the high
respect that I have for you.
I know you are a very busy person as chairman of the
Judiciary Committee, and I suspect you have other things to do.
Thanks very much.
Mr. Sensenbrenner. We are preparing a few more bills to
send over here. [Laughter.]
Senator Voinovich. Thanks.
The Federal Labor Relations Authority provides leadership
within the Federal Government in developing and maintaining
positive labor relations. If confirmed, Ms. Kiko's
responsibilities as General Counsel will include processing
unfair labor practice allegations, encouraging the use of
alternative dispute resolution techniques, and promoting stable
and productive labor-management relations in the Federal
sector.
As a former mayor and governor, I understand the importance
of establishing a positive labor-management relationship based
on open communication and trust. I encourage Ms. Kiko to be
active in improving labor-management relations in the Federal
sector during times of such dramatic reform.
Mary Rose currently serves as the Chair of the Federal
Prevailing Rate Advisory Committee of the Office of Personnel
Management. Prior to this position, she served as the Deputy
Associate Director for Presidential Personnel and was the
Director of Personnel for President Reagan. Additionally, Ms.
Rose was elected as the Clerk for Anne Arundel County Circuit.
Prior to her elected office, Ms. Rose was the Deputy Under
Secretary for Management of the Department of Education.
Furthermore, Ms. Rose's professional career included working at
the Office of Personnel Management, where her responsibilities
included acting as the agency liaison to the White House on
personnel policy.
Her nomination is to the Merit Systems Protection Board, an
independent agency that protects Federal employees from abuses
by agency management, including prohibited personnel practices.
It is an impartial arbiter and is essential to ensuring that
agencies make employment decisions in accordance with the merit
systems principles.
I can say to you, Ms. Rose, that the Ranking Member of the
Subcommittee, Senator Akaka, is someone who pays a lot of
attention to that particular Board.
With the changes underway at the Department of Homeland
Security and the Department of Defense, the role of the MSPB
continues to evolve. Ms. Rose, if confirmed, you would join the
Board at a time when it faces new and complex challenges, and
everyone will be watching how cases that come before the Board
are disposed of. There is much uncertainty today with the new
personnel systems that Congress authorized, and it is going to
require the attention of the Board.
Ms. Kiko and Ms. Rose, we look forward to your testimony so
that we may learn how you plan to apply your experiences to
your new positions and what steps you have taken to prepare for
them.
I will now yield to Senator Akaka for his opening statement
and the other Members of this Committee who are interested in
making opening statements. Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Mr. Chairman. I again
want to say I enjoy working with you on this Committee. I also
want to join you in welcoming our nominees and their families
and friends who are here today. Of course, it was good to see
Chairman Jim Sensenbrenner. We served together when I was in
the House.
President Bush has nominated John Fisher to be an Associate
Judge on the D.C. Court of Appeals, and it is good to see you
here, John, and your family, and Juliet McKenna to be an
Associate Judge on the D.C. Superior Court. Both Mr. Fisher,
with his background at the U.S. Attorney's Office, and Ms.
McKenna, with her background in family law, have impressive
resumes. I look forward to their testimony and hearing their
thoughts on the D.C. Court System.
The positions to which Ms. Kiko and Ms. Rose have been
nominated are among the most important for Federal employees.
If confirmed, I would expect them to be strong voices for
employee rights and fair employment principles.
Ms. Kiko has been nominated to be the General Counsel of
the Federal Labor Relations Authority. This nomination comes at
a critical juncture for the FLRA and the Federal workforce,
given the shifting nature of the Federal labor relations
system. As such, the position to which she has been nominated
will face new challenges and take on renewed importance.
Changes to Federal labor law at the Departments of Homeland
Security and Defense will impact the workload of the FLRA and
its General Counsel. I fear that employees at those agencies
may be unable to have the benefit of an independent prosecutor
to bring cases of unfair labor practices and will lack the
assurance of having an impartial and independent adjudicator.
In addition, the issues that are currently considered unfair
labor practices may likely be reduced, further eroding employee
rights and impacting the workload of the General Counsel.
In addition, the administration is proposing additional
changes to the Federal Labor Management System through the
Working for America Act. Because some of these changes are
similar to those proposed by DHS and DOD, the Federal labor-
management construct is facing major changes.
Ms. Kiko, I look forward to discussing with you your
thoughts on these proposals and how they will impact the job of
the General Counsel.
Ms. Rose has been nominated to be a member on the Merit
Systems Protection Board. The MSPB is charged with protecting
the merit principles and ensuring that Federal employees are
free from political and other prohibited personnel practices
and management abuses.
I have serious concerns with the proposed changes to the
appeals systems at DHS and DOD, which, in my opinion, undermine
long-held merit principles. The MSPB plays a critical role in
ensuring the right balance between civil service reform and
protecting the rights of employees, and that is why I look to
the members of MSPB to ensure that the rights and protections
of Federal employees, whether in substance or through
procedures, are not eroded.
I am particularly interested in discussing with Ms. Rose
whistleblower protections for Federal workers. Reporting
government mismanagement is a basic obligation of the Federal
workforce. To foster confidence in these protections, Federal
employees, especially those disclosing information vital to our
national security, should feel secure by a strong and
functioning Whistleblower Protection Act (WPA). Unfortunately,
the Federal Circuit Court of Appeals, with sole jurisdiction
over the WPA, has created inconsistencies with Congressional
intent through Court decisions. These loopholes pose challenges
for the MSPB in interpreting the law as envisioned by Congress.
I am pleased that the Committee, and you in particular,
Chairman Voinovich, as well as Senators Lautenberg and Carper,
have been strong supporters of my legislation, the Federal
Employee Protection of Disclosures Act, which would restore
Congressional intent to the WPA. I hope the Senate will act on
this soon.
Ms. Kiko, Ms. Rose, Mr. Fisher, and Ms. McKenna, I want to
welcome you and congratulate you on your nomination.
Mr. Chairman, I also want to mention that I had a good
meeting with Mary Rose and want to mention that her husband, a
doctor in North Carolina, is teaching and unable to join her.
Her son, who is serving with the Coast Guard, and her two
daughters, who live in Los Angeles and Pennsylvania, could not
be here either. I know the whole family is here today with her
in spirit.
Thank you very much, Mr. Chairman.
Senator Voinovich. Senator Lautenberg.
OPENING STATEMENT OF SENATOR LAUTENBERG
Senator Lautenberg. Thanks, Mr. Chairman. We rarely have
any disagreement about decisions that come from your desk.
Everyone knows very well of your public service career and has
great respect for you and the accomplishments of that career,
so while we differed on the process, I thank you for permitting
the opening statements to be read, to learn more about the
people who are nominated for these important positions.
I am particularly interested in the Merit Systems
Protection function. We have recently been given a vivid
reminder of how important it is to scrutinize nominees for
these important jobs. We have a situation at FEMA where the
person named to the top position lacked the right experience,
and the outcome was almost predictable, and then we learned
that some of the claims on his resume or in his biography might
have been exaggerated. But this underscores the need to take a
closer look at nominees before they are allowed to assume
positions of public trust.
Ms. Rose, one of the individuals before us today, is
nominated for one of the three seats on the Merit Systems
Protection Board and that Board is responsible for enforcing
the Federal Government's merit-based employment practices. It
was established to protect Federal employees, including
whistleblowers, from political and other prohibited personnel
practices and abuses by agency management. Now, I believe that
this Board requires members to be capable of looking at the
facts of a case in a nonpartisan manner, and I am concerned
with ensuring that this agency abandon any partisanship and any
partisan leanings as they review the cases that come before
them.
I would like to learn more about Ms. Rose's view on the
importance of whistleblowers that expose waste, fraud, and
mismanagement in government bureaucracies and agencies. Many
times, the only people aware of such wrongdoings are those who
work inside the agency, and if we fail to protect those who
would come forward and do the right thing, we do a disservice
to the individual and the taxpayers in our country.
Recently, we learned that a whistleblower who exposed
irregularities in a billion-dollar no-bid contract between the
Department of Defense and Halliburton has been demoted from her
job at the Army Corps of Engineers. Now, this was only the
latest example of people who were punished after they revealed
information that the Administration wanted to hide from the
American people.
In my view, the current whistleblower protection system is
not working. It doesn't protect those who would come forward,
and I am working on legislation to strengthen those protections
by making it a criminal offense for an individual to retaliate
against whistleblowers. I am pleased to be on an amendment that
Senator Akaka has produced to make sure that we are dealing
fairly with these people.
Mr. Chairman, I thank you very much for the opportunity to
make my statement and look forward to hearing from our
witnesses.
Senator Voinovich. Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks, Mr. Chairman. I will be brief. To
our nominees, welcome, and to those that are on, I think, our
second panel, the judicial nominees, we welcome you, too. I am
not going to be able to stay for that second panel, but I
wanted to be here for at least the beginning of this one.
Both Senator Lautenberg and Senator Akaka have spoken of
the need for whistleblower protection. We need it. There are
too many instances where people of good faith, good intent, are
stepping forward and blowing the whistle, telling the truth,
and they are being punished for it rather than rewarded for it.
It is just unacceptable, and it is unacceptable to me, and I am
sure it is unacceptable to our Republican colleagues, as well.
We are reminded on the heels of Katrina that the folks
whose names come to us for positions--we have an obligation, we
have an oversight responsibility to make sure that we fully vet
those nominees and better ascertain whether they are well
qualified to do the jobs for which they have been nominated.
With respect to FEMA, we have seen in recent weeks that
sometimes that is not the case. That is the responsibility of
the Executive Branch, but we bear responsibility, too.
Again, we thank you. We welcome you and your families and
friends today and thank you for your willingness to serve.
Thank you, Mr. Chairman.
Senator Voinovich. Thank you, Senator.
Ms. Kiko and Ms. Rose, you have filed responses to a
biographical and financial questionnaire and answered pre-
hearing questions submitted by the Committee. You have had your
financial statements reviewed by the Office of Government
Ethics. Without objection, this information will be made a part
of the hearing record, with the exception of the financial
data, which are on file and available for public inspection in
the Committee offices.
Our Committee rules require that witnesses before this
Committee take an oath, and if you will stand, I will
administer the oath.
Do you swear that the testimony that you are about to give
this Committee is the truth, the whole truth, and nothing but
the truth, so help you, God?
Ms. Kiko. I do.
Ms. Rose. I do.
Senator Voinovich. Ms. Kiko, I understand you have some
family members here with you, and I would like to give you an
opportunity to introduce them before you make your statement to
the Committee.
Ms. Kiko. Thank you, Mr. Chairman. I do have my husband,
Phil Kiko, and my daughter, who is representing my four
children, Sarah Kiko, and my sister, Tama, is behind my
daughter. Thank you.
Senator Voinovich. Would you like to share your statement
with the Committee?
TESTIMONY OF COLLEEN D. KIKO,\1\ TO BE GENERAL COUNSEL, FEDERAL
LABOR RELATIONS AUTHORITY
Ms. Kiko. Thank you, Mr. Chairman. Chairman Voinovich,
Senator Akaka, Senator Lautenberg, Senator Carper, Members of
the Committee, I would like to thank you and your staff for all
the courtesies that have been shown to me as I have prepared
for this hearing. I also deeply appreciate Chairman
Sensenbrenner taking time away from his boat time to introduce
me today.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Kiko appears in the Appendix on
page 27.
Biographical and professional information appears in the Appendix
on page 39.
Responses to pre-hearing questions appear in the Appendix on page
49.
Responses to post-hearing questions appear in the Appendix on
page 63.
---------------------------------------------------------------------------
It is indeed a very special and honored occasion for me to
be sitting here after being nominated by the President to serve
as the General Counsel of the Federal Labor Relations Authority
having started in the Federal Government in 1972 as a GS-3
clerk-typist. The Federal civil service was considered an
honored profession in my family. My father, Lawrence Duffy, had
almost a half-century, 49 years, of proudly serving as a civil
servant, first as a railway mail carrier for the U.S. Postal
Service, and then for the U.S. Customs Service as a customs
inspector. He believed in the opportunities the Federal
Government offered and advised me as I was determining what
career path to follow to look to the Federal Government as an
honorable, rewarding, and fulfilling experience.
My father always said that you spend almost half of your
life at whatever job you choose--make sure you are happy in it.
He provided a daily example of hard work, commitment, and
impeccable character. I hope to follow in those shoes.
I would like to point out several areas of my background
and employment experience that I believe affirmatively qualify
me for this position. From 1976 to 1979, I worked in the
Department of Labor, Labor Management Services Administration.
This same entity was transferred to the newly created Federal
Labor Relations Authority on January 1, 1979, where I worked
until I resigned to pursue a legal career in 1983.
I worked in almost all of the professional roles of the
Authority. In the regional office, I investigated unfair labor
practice charges, chaired hearings on representational
disputes, monitored Federal union elections, and conducted
training for both management and unions. In the headquarters, I
reviewed Administrative Law Judge decisions and the exceptions
filed by the parties and prepared draft decisions for the
Authority members. I also handled the procedural motions
practice before the Authority.
I left the Authority as a supervisory labor relations
specialist. My experience working at the Authority in
increasingly responsible positions throughout the Authority
gives me, I believe, a great understanding of the agency as a
whole.
My work at the FLRA spearheaded my decision to pursue a
legal career. My experience since then has also prepared me
well for this position. After obtaining my law degree in 1986,
my service with the Department of Justice in the Civil Rights
Division and in the U.S. Attorney's Office, litigating both
criminal and civil matters, has particularly prepared me for
the prosecutorial role of the General Counsel position.
Further, in my role as an Associate Counsel in the
Judiciary Committee, I was very involved with the historic
impeachment of a U.S. District Court judge. The House managers,
one of whom was Chairman Sensenbrenner, prosecuted the Articles
of Impeachment before the Senate.
My years in the private practice of law in a small firm
representing clients has given me perspective on advocacy and
on the need to respond effectively to client needs.
Finally, in my current position as an Employees'
Compensation Appeals Judge, I have had the benefit of
independent decisionmaking, listening to both sides
objectively, and rendering a fair decision. Exercising such
judicial temperament prepares me well for the neutral role that
the Federal Labor Relations Authority plays in the Federal
sector labor relations.
I believe I have been well prepared for this position.
Neither when I left North Dakota to come to Washington, D.C. in
1972, nor when I left the FLRA to pursue a legal career, did I
ever expect to be sitting in this chair right now. It is
amazing how full-circle this journey has become.
I see as the goal of the Office of the General Counsel as
helping agencies effectively and efficiently fulfill their
statutory mission through healthy labor-management relations. I
hope to faithfully pursue that objective.
I greatly appreciate the opportunity to appear before this
Committee today and will be happy to answer any questions.
Senator Voinovich. Thank you very much, Ms. Kiko.
Ms. Rose, you have an opportunity to introduce your family
to the Committee.
Ms. Rose. Thank you, Mr. Chairman. My daughter and my son-
in-law and my grandchild are sitting over here, Kaitlyn, the
little redhead. Thank you for giving me the opportunity to
introduce them.
Senator Voinovich. Would you like to share your statement
with the Committee?
TESTIMONY OF MARY M. ROSE,\1\ TO BE MEMBER, MERIT SYSTEMS
PROTECTION BOARD
Ms. Rose. Good morning, Chairman Voinovich, Ranking Member
Akaka, and Members of the Committee. I am Mary M. Rose, and I
appreciate the opportunity to appear before you as you consider
my nomination to be a member of the Merit Systems Protection
Board. Given the seriousness of the issues that surround you
today, I am especially appreciative of the time you have taken
to ensure the MSPB operates at full strength.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Rose appears in the Appendix on
page 31.
Biographical and professional information appears in the Appendix
on page 66.
Responses to pre-hearing questions appear in the Appendix on page
72.
Responses to post-hearing questions appear in the Appendix on
page 93.
---------------------------------------------------------------------------
I am honored by the President's confidence in me, as
demonstrated by his decision to nominate me to a position of
such importance. If confirmed, I will dedicate myself to
discharging the responsibilities of this office in accordance
with the laws, rules, and regulations applicable to the Board
to the best of my ability.
In this time of change, the mission of the Merit Systems
Protection Board is more important than ever. I will work to
fully preserve the merit systems principles and to protect
Federal employees from prohibited personnel practices, the core
of the MSPB's mission. The assurance of fair adjudication of
employment disputes and the timely issuance of decisions will
enhance the confidence of Federal employees and managers in the
civil service system as well as their effectiveness in
fulfilling the missions of their respective agencies.
The Board's role in regulatory, studies, and oversight
functions, in addition to its adjudicatory responsibilities,
will be part of the cutting edge of transformation in human
resources management. If confirmed, I welcome the opportunity
to work in cooperation with MSPB's Chairman McPhie in
fulfilling the responsibilities and missions of the Board
during this period of transition and beyond. I hope to use my
past experiences in the Federal civil service as well as the
expertise I have developed to assist the Board in fulfilling
its missions.
I began my tenure in Federal service during the early
1980's when the reforms mandated by the Civil Service Reform
Act of 1978 were first being implemented. I saw firsthand how
difficult change can be, but witnessed the improvements in
government-wide personnel management as a result of that
change. During this time, a major shift in management practices
required managers and employees to communicate on an annual
basis regarding goals of their employing agency and the
standards and the expected levels of performance. Should I be
confirmed, it will be a great honor to be part of this
historical time in the continued evolution of Federal human
resources management.
I wish to thank you for consideration for my nomination,
and again, I express my appreciation for your time. I would be
happy to answer any questions you may have.
Senator Voinovich. Thank you, Ms. Rose.
There are standard questions that this Committee asks all
of the nominees. I will begin with those questions, and I would
appreciate your answering them yes or no.
Is there anything you are aware of in your background that
might present a conflict of interest with the duties of the
office to which you have been nominated?
Ms. Kiko. No.
Ms. Rose. No, sir.
Senator Voinovich. Do you know of anything personal or
otherwise that would in any way prevent you from fully and
honorably discharging your responsibilities of the office to
which you have been nominated?
Ms. Kiko. No, I do not.
Ms. Rose. No, sir.
Senator Voinovich. Do you agree without reservation to
respond to any reasonable summons to appear and testify before
any duly-constituted committee of Congress if you are
confirmed?
Ms. Kiko. Of course, yes.
Ms. Rose. Yes, sir.
Senator Voinovich. I mentioned that you are both coming to
your responsibilities at a time that is very critical, as far
as I am concerned. We have, as I mentioned, made significant
changes to the Civil Service Code at the Department of Homeland
Security, Department of Defense, and also government-wide. I
value Federal employees. For too many years they have been
neglected, but as we have seen with Hurricane Katrina, people
do make a difference.
I would like each one of you to comment about your
awareness of the situation that you are going to find yourself
in. Ms. Kiko.
Ms. Kiko. I will go first, Mr. Chairman. The Department of
Homeland Security and the Department of Defense regulations
that are currently under consideration are examples where the
legislative process made changes allowing the agency to
appropriately craft labor relations and employee relations
policies that would best effectively take into account its
mission. I certainly find that to be an appropriate situation.
These agencies certainly are going through a difficult time
right now trying to find out how to properly craft those
particular regulations.
Right now, as it is pending litigation in the D.C. Court,
certainly the merits of the regulations are not something that
I would want to comment on particularly. I do see the
government is going through a process of attempting to craft
the personnel policies in a time now that is a little different
from years past, where homeland security is a particularly
important area right now. It is a challenge and the government
is going through a process right now which I think is working.
The process is doing what it is supposed to be doing.
That is my comment, essentially. I believe that your
question was directed mostly to the Homeland Security
regulations. If I have missed the point, I would be happy to
redirect the answer.
Senator Voinovich. I think that one of the concerns that
our unions particularly have is this: What kind of people are
we going to have in responsible positions and how sensitive are
they going to be to the rights of Federal employees.
Ms. Rose.
Ms. Rose. Thank you, Mr. Chairman. With the new regulations
and reforms coming our way, there are going to be major
changes, and we will have to be ever vigilant as a member of
the MSPB. When adjudicating cases and writing studies the MSPB
must find an independent and open way to describe agency
performance with respect to personnel practices. Additionally,
preventing prohibited personnel practices against employees is
vital. As a board we must watch the agency trends to ensure
these laws are enacted and the intent of Congress is followed.
The new laws may be more complicated and more cumbersome, but I
believe we should look at this enthusiastically as a time of
change. I look forward to helping in any way I can in the
service of my country to protect Federal civil servants and to
be more vigilant than ever on their behalf. As well, I hope to
help managers through their difficult times.
Senator Voinovich. You come to the table with individuals
who obviously feel that they have been discriminated against
because they have come forward. Do you believe that the parties
come to the table and it is an even situation, or do you
believe the emphasis should be on trying to make sure that the
individual who claims to have been aggrieved perhaps gets more
emphasis than the agency that fired or demoted him?
Ms. Rose. I think every case needs to be judged on its
merits. I can't answer, without a case in front of me, if one
side is being favored. This is a difficult question. With the
changes and reforms, one will have to use extra scrutiny
reviewing employee and managers claims because--this is all
going to be new to both sides. Everything will have to be
looked at very carefully and weighed very openly and
impartially. That is how I would look at each case.
Senator Voinovich. We have spent a great deal of time on
this issue. I would recommend that you cearly communicate that
the individuals that come before you are going to receive fair
consideration. I know we had testimony here about the backlog
of cases before the Office of Special Copunsel, and it has been
argued that maybe each case wasn't getting the attention that
it ought to receive.
I think there is a feeling among Federal employees that
perhaps individuals aren't getting the kind of treatment that
they should get, and it becomes an issue of perception. This
will affect whether or not people are going to be willing to
stand up and report wrongdoing. If they just see co-workers
blow the whistle and then get shut out, the word will go around
that, hey, you had better keep your mouth shut, or leave, or
whatever the case may be.
Federal employees really have to have a feeling that they
are being treated fairly and that they are listened to and that
this isn't just some perfunctory process where they come before
the Board and then end up out on the street. You need to take
that into consideration.
Ms. Rose. I believe my management and HR experience will be
a benefit because I have experienced situations where employees
need help, and I know that communications between manager and
employee is very important. I have seen this through many years
of my professional life. I think I will be more open to
reviewing these cases and seeing them from a different
perspective and a dynamic than an attorney would. While I know
I am not an attorney, I believe I add a valuable dynamic that
will be beneficial to the Board as well as the employees who
come before the Board.
Senator Voinovich. Thank you. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
I thank you, Ms. Kiko and Ms. Rose, for your testimony. I
appreciate your comments as both the FLRA and MSPB are very
important agencies for protecting employee rights.
Ms. Kiko, DHS and DOD claim that their agencies need
flexibility in the area of labor-management relations based on
their national security needs. In response to Chairman
Voinovich's question, you said that employee rights and
collective bargaining rights at DHS and DOD are being balanced
against the missions of the agency. Could you elaborate on this
and tell me if this applies to all agencies and all missions or
only those pertaining to national security?
Ms. Kiko. Thank you, Senator Akaka. Labor-management
relations, healthy labor-management relations, is important in
every government agency. When the statute was created in 1979,
it was stated in one of the findings that one of the law's
purposes was to help agencies more efficiently and effectively
accomplish their statutory mission. Each government agency has
been created with a particular mission. The best way that
mission can be accomplished is through employees working well
with management to accomplish the mission. The best way to do
that is with good labor-management relations.
Does it always work? No. Do I have some magic wand that can
make it all work? No. But I certainly believe you start there;
you want to develop and work on healthy labor-management
relations in each agency. The mission is simply where everybody
wants to go at the end of the day. What does the agency want to
accomplish? It doesn't matter necessarily which mission. Good
labor-management relations is good in every agency.
Senator Akaka. Ms. Kiko, the FLRA has been without a
General Counsel for almost a year, and I understand there are
over 100 unfair labor practice charges awaiting issuance of a
complaint. If you are confirmed, do you intend to immediately
issue complaints on these backlogged charges?
Ms. Kiko. Well, I would probably want to review the
complaints first, but certainly, I expect there may be some
things sitting on the desk waiting for my action upon my
arrival. I do not certainly expect to jump in and start acting
immediately. I do intend to communicate with the regional
directors, with the staff of the agency, to find out where we
are, where we need to go. At that time, I would evaluate each
of the complaints waiting to be filed as an unfair labor
practice complaint, and determine whether the qualifications
are met or the requirements that have been established to date
on what would make an unfair labor practice charge into an
unfair labor practice complaint. At that point, I would make a
determination. But certainly, I don't think I am going to walk
in with my pen open and ready to sign.
Senator Akaka. Ms. Kiko, the General Counsel is responsible
for the seven regional offices at FLRA. There has been no
hiring in the regional offices in over a year. Under General
Counsel policy, a full staffing level of attorneys and labor
relations specialists would be 11 agents. The Atlanta Region
currently only has four agents and the Dallas Region only has
five agents. Do you intend to begin hiring new employees in the
regional offices to address these staffing shortages?
Ms. Kiko. I certainly believe one of my first orders of
business will be to evaluate the staffing needs of the agency
and the staff that is existing to accomplish the mission. There
are many factors that affect the staffing in the Federal Labor
Relations Authority. Workload is one. Geographical location is
another. All of those factors, I would like to study and do
staffing reviews and management reviews to determine what the
personnel levels should be.
There are other situations facing our agency as to whether
the Homeland Security regulations and the Department of Defense
regulations will have an effect on the caseload of the agency.
That would be certainly something that I would want to
investigate prior to making any decisions, but certainly that
is an area that would be getting a lot of my attention.
Senator Akaka. Ms. Rose, a number of Federal Circuit Court
interpretations of the Whistleblower Protection Act are
inconsistent with Congressional intent. A primary example is
the meaning of the term, ``any disclosure.'' In 1994 and again
this year, this Committee reaffirmed language from the 1988
Senate Committee report and explicitly stated that the Office
of Special Counsel, the Board, and the courts should not erect
barriers to disclosure of government wrongdoing, including
limiting protection for disclosures made for certain purposes,
limiting protection for disclosures made to certain employees,
or limiting protection to the employee who is the first to
raise the issue. Nonetheless, the Federal Court erected nearly
every barrier listed in the Committee report.
As a member of the MSPB deciding whistleblower cases, how
would you reconcile this contradiction between Federal Circuit
Court case law and clear Congressional intent?
Ms. Rose. As a member of the Merit Systems Protection
Board, I will be obligated to apply the laws that are in place
at this time. When Congress enacts legislation that strengthens
the Whistleblower Act, I assure you if this issue comes before
me, I will adjudicate cases, and I will apply the applicable
laws as fairly and as openly and as credibly as I can.
Senator Akaka. Mr. Chairman, my time has expired. Thank you
very much.
Senator Voinovich. Thank you. Senator Lautenberg.
Senator Lautenberg. Thank you, Mr. Chairman, and I thank
the witnesses for their testimony.
One thing I think that is quite apparent in the Senate is
that we rely on sources of information that are not necessarily
those that are routine, those that are brought to a committee
hearing. So when we have an opportunity to learn from someone
who is inside the system, I think we have an obligation to
listen.
I ran a pretty good-sized company before I came to this
Senate, and I encouraged employee suggestions or even
criticism. I didn't want a list of whiners standing at my door
in the morning because I would make sure that if someone had a
complaint, that they had to have some record of the incident
that was verifiable. But I think it particularly important in
government, when we have the system of protection in place that
we have, that violations not be ignored.
Ms. Rose, you worked under Republican administrations,
including this White House, where you helped prepare nominees
for political appointments. One of the primary systems of the
Merit Systems Protection Board is to ensure that politics is
not a factor in civil service personnel action. Now, what will
you do to ensure that those individuals who put their
consciences above orders that they think are inappropriately
functioning, to come up with their criticism or complaint and
to guarantee that there is no recrimination for speaking out?
Ms. Rose. Senator, should I be confirmed, as a member of
the Merit Systems Protection Board, I will not allow partisan
politics to interfere with any of my decisions. I will not
allow partisan politics to exist.
Yes, I worked in the White House, but I also have worked in
other jobs. I have worn hats in many fields. My background is
varied. I have been a nurse. I did not allow the background of
the patients I treated to interfere with my decisions regarding
their care. As a manager, employee backgrounds were never part
of a decision. I made strong and sound decisions.
I know your concern about looking at candidates very
carefully because I, too, have had that responsibility as a
Deputy Assistant at the White House. I had to interview people.
I had to look them in the eye and see if they were actually
telling the truth, if their backgrounds were correct and
verifiable. So it is an awesome responsibility to put the right
person in the right job.
Senator Lautenberg. Ms. Rose, I am sure that you employ
your best instincts, but don't we have to look to something
beyond one's instincts or one's feeling about the individual to
get to the substance of the issue? Are there not systems
applications that can be used to say, OK, here is what we do if
someone comes up with a complaint? Where do we go? Do we then
call in the supervisor? Do we call in fellow employees, rather
than rely on some good feeling or bad feeling about an
individual? I think that gets us into a problem that we ought
not to be trying to employ in making important decisions like
this.
We have, for instance--are you familiar with the Bunny
Greenhouse situation? Bunny Greenhouse was an employee of the
Corps of Engineers, and she was the top civilian contracting
official with the Army Corps since 1997. She was demoted, and
it appears to be retaliation for her June 27--just this past
year--testimony before a Senate Committee, albeit it was a
Democratic Committee because we couldn't get her on the agenda
of the standard Committee structure. She talked about
inappropriate actions taken by the Army Corps in granting a no-
bid contract to Halliburton.
Now, how do you take an action like this and listen to
someone carefully who feels that the government is acting
improperly in this action and how do you say to that person,
well, understand if you tell us, you may be putting your head
on the chopping block. What would you do to ensure that these
complaints are valid, that they are heard? Would you take the
responsibility solely on yourself for making this decision
about whether or not this person has fabricated this idea or
whether or not punishment is in order?
Ms. Rose. I think it is the role of the member to seek the
truth in whatever way is possible and make decisions based on
what you believe is the truth and the facts that are laid out
in the case.
Senator Lautenberg. Ms. Rose, in 2001, you had a
responsibility for recruiting, interviewing, and preparing
candidates for appointment at executive levels in the
Administration. In 2001, a man named Mike Brown was nominated
to be Deputy Director of FEMA. Do you recall working on his
nomination?
Ms. Rose. No, sir.
Senator Lautenberg. Well----
Ms. Rose. I did not have FEMA in my portfolio.
Senator Lautenberg. But weren't you responsible for vetting
people who were being appointed to high-ranking positions in
the government?
Ms. Rose. Yes, sir. I did domestic agencies, but not FEMA.
Senator Lautenberg. So did you not look at Mr. Brown's
background? You know what happened there. He had a fabricated
biography, as exposed by Time magazine and other sources. But
that should have been an important look at a candidate for such
an important job, and you don't recall having----
Ms. Rose. No, sir. I had nothing to do with his
appointment.
Senator Lautenberg. With the vetting? You weren't
responsible for the vetting?
Ms. Rose. No, sir.
Senator Lautenberg. Thank you. Thanks, Mr. Chairman. I am
done, Mr. Chairman. Thank you.
Senator Voinovich. Thank you. Senator Akaka indicated that
he would like a second round of questioning, and I will start
it off.
Ms. Kiko, how would you approach your responsibility to
work with the unions and Federal managers to foster effective
labor relations in the Federal Government? I will never forget
when I was mayor of Cleveland I had my directors come to me,
and they were complaining that it just was impossible to fire a
bad employee. I talked to the woman that headed up our Civil
Service Board, and she said, ``Mayor, the bottom line is they
don't know what they are doing.'' In other words, there are
certain procedures that you follow, and they are not following
them. At that time, we began a very aggressive effort to
educate them about how the system worked, and it is amazing how
the situation improved.
Have you thought about how you might communicate to the
various agencies on human capital management? If you conclude
that there are agencies that don't know what they are doing or
the people in human resources don't have the training they
should have, do you feel it is your responsibility to call
someone and maybe encourage training sessions?
Ms. Kiko. Thank you for that question. I think it is a very
important one in the labor-management area. I think you hit it
on the head because of your background. Education is very
important in attempting to help parties get along. I think you
can certainly understand that managers deal with their
employees. Some employees are good workers and some have
challenges. There are problems of communication between
parties. Sometimes management feels it absolutely can't stand
working with the union, and sometimes the union feels it cannot
possibly stand to work with management. Then there are other
agencies kind of on middle ground.
Hopefully, in the role as the General Counsel of the
Federal Labor Relations Authority, you have an opportunity to
do two things. Certainly, we have the opportunity to prosecute
cases against management or against the union if there are
violations of the law. But prior to that, and I think it is
probably the most important role, is attempting to get parties
to work together, and the most important way to do that is to
help them understand their parameters: What are the management
rights? What are the union rights? What are the employee
rights? And help the agencies understand that.
Certainly, if there are areas where it appears that unfair
labor practice charges are coming from the same area over and
over and over again, that should suggest a problem. It would be
my role to attempt to educate them as to the role of the
Federal Labor Relations statute as to the roles of the parties,
whether it means picking up the phone and calling someone or
whether I set up training classes and offer such opportunities
to various agencies that may need assistance.
Senator Voinovich. You probably haven't had a chance, but
do you intend, if confirmed, to examine the performance of
various agencies to get a feel for----
Ms. Kiko. Absolutely. I mean, this is what we are trying to
do, is to promote healthy labor relations. If there are
unhealthy labor relations going on, is there an opportunity to
educate in the ways of the Authority decisions to help them
understand? If they understand their parameters, they may be
fighting over less. If we can help them understand their
particular rights, this is what you need to work within.
I think the Authority in recent years has done an
incredibly wonderful job of attempting to do just that, to set
out in their decisions, more predictability, more
understandable decisions on how do I take this and then follow
a roadmap. Oftentimes, legal opinions can be good for this
particular case, but not particularly good for the next one
because no one really understands what it is all about.
But I think the decisions are starting to become much
clearer and helping to educate the parties in what direction
people need to go. The FLRA is now telling you: This is what we
are finding to be right; this is what we are finding to be
wrong. Now go out and play with those rules. And that helps
healthy labor-management relations. Certainly, that is one area
that I feel that is very important in educating the parties in
what their roles are.
Senator Voinovich. Do you know Colleen Kelley?
Ms. Kiko. I do not know Colleen Kelley. I certainly know
who she is, but I have not met her yet.
Senator Voinovich. Do you know John Gage?
Ms. Kiko. Not yet. I do intend to meet with them.
Senator Voinovich. That is good. It would be wise for you
to spend some time with them and let them share their feelings.
I think it is important you all get to know each other so that
they understand that you take your job very seriously and that
you understand that there has been some misunderstanding
between this administration and the unions. I am glad to hear
that you are going to do that.
Ms. Kiko. Thank you.
Senator Voinovich. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Ms. Rose, at a November 2004 forum hosted by GAO and the
National Commission on Public Service, participants questioned
whether the merit systems principles should be updated in light
of the new personnel flexibilities granted to Federal agencies
as well as an increased focus on missions, goals, and results
as envisioned by the Government Performance and Results Act. Do
you believe that any changes should be made to the Federal
merit systems principles, and if so, what changes and why?
Ms. Rose. That is a very interesting theory. I think it is
very important that we constantly improve, and give
introspective thought and consideration to all the laws because
when laws are enacted, government changes. These laws should be
changed based on policy changes that take place in government.
I know of the Congress's intent to look at these merit
principles, and I welcome that. As I said, we can always look
to improve ourselves in any way possible. In doing so, when the
Congress enacts those changes, I will apply those laws to my
cases as I see them should I be confirmed.
Did you want a specific--any specific changes? At this
time, I am not ready to answer that. As I see cases and
identify the need for these changes I will say so in my reports
and studies.
Senator Akaka. Thank you for that. Ms. Kiko, you were a
labor relations specialist at the FLRA for 7 years. What
problems, if any, did you see with the system at the time you
worked there, and in your opinion, do these same problems
persist today?
Ms. Kiko. Well, it has been 23 years ago, so I have to go
back into the mind a little bit further than I am used to. When
I worked in the Federal Labor Relations Authority, it was a
brand new agency. I think everyone was excited about the
process. It is exciting to have your role taken out of an
agency and put into an independent agency, and it gave a much
heightened awareness to what we were doing at the time in the
Department of Labor. It was a very exciting time. I recall a
birthday cake for it on its first year in 1980.
So at the time, it seemed a process that was working very
well. We were attempting to train people. We were attempting to
help understand the new law, where it was going, how it was
going to be interpreted, that sort of thing. It was a new and
exciting time.
Were there problems with the system? I suspect there might
have been. Certainly, whenever you are dealing with people
trying to get along, you are always going to run into some
problems.
As for how the agency works now, that is one of the things
that I would like to look at in depth, is how is the agency
working, and I don't intend to go in there with a preordained
slate of what I remember from 23 years ago. I want to go in
there with an open slate, and I want to go in and say, what is
wrong with this agency and how does it work well? What is good?
What is bad? Let us talk about it, and in my role of the Office
of the General Counsel, should I be confirmed, what can I do to
make it better?
So I really am looking forward to listening and finding out
where those issues are from the unions, from management, from
my own staff in the agency, should I be confirmed, and from
there determine where the problems are and find ways to correct
them if it is possible within my authority.
Senator Akaka. Thank you.
Ms. Rose, DHS and DOD have been granted flexibility to
waive Chapter 77 of Title 5 relating to Federal employee
appeals. As you know, the Federal Aviation Administration was
granted similar authority in 1996. However, after finding that
the internal process was unfair and biased, Congress reinstated
MSPB appeal rights for FAA employees in the year 2000. What do
you believe are some best practices that should be included in
any appeals system?
Ms. Rose. Best practices would be making it as easy as
possible for employees to appeal. By whatever means. For
example, printing brochures or assisting them by making sure
their phone calls are answered when they have questions. These
simple administrative procedures can make it easier for an
employee to appeal. Administratively, there are a lot of things
I will do to help make the appeal process easier for the
employee. It should be approachable and understandable. If they
can't understand the language, it doesn't do them much good,
and not all of them can afford attorneys or have the access to
the help some other employees may have. Plain language is
important. Communication and openess to employees who wish to
make appeals are imperative.
As far as the DHS and DOD regulations, I will just have to
wait and see how they play out. I will carefully look at how
difficult or easy it is for these employees to make appeals.
The appeals process to the agencies and the Board must also be
closely watched for difficulties or barriers that might
interfere.
Senator Akaka. What about the independence of the appeals
boards?
Ms. Rose. Independence is primary. I mean, there can be no
interference or no obstruction to that independence. We talk
about the issue of timeliness and the quality of the decisions
of those appeals. I said in my question and answers that
timeliness is important because people are suffering and you
need to address their case as soon as possible and give them
relief as soon as possible. At the same time, I do not believe
that the independence or the integrity of the decision process
should be endangered.
Senator Akaka. I thank you both for your responses. Thank
you, Mr. Chairman.
Senator Voinovich. I have one other question. Ms. Kiko, who
do you go to for your budget?
Ms. Kiko. The Chairman of the Authority manages the budget
for the Authority.
Senator Voinovich. OK. One of the things that I have
observed around here is that we often ask people to do a job
and then we don't give them the resources to do it. I would
hope that you would do an initial evaluation of the capacity of
the Board to do its job and make sure that is communicated to
OMB.
I think that as we go back and examine preparation for
Hurricane Katrina we are going to learn that some agencies
should have had more resources. They have been asking for more
resources but were ignored by the Administration and Congress.
So I would urge you to do that. I know it is not easy, but you
have to have the resources to get the job done.
You may also need to hire more people. You are going to
have people recommended to you, I am sure. I hope that you have
the wherewithal to be able to reject bad candidates. One of the
things that I did when I was governor and as mayor, I asked
somebody to do a job and I said, you are the one that hires and
fires and you are responsible. If you get someone that is
recommended and you don't think they have got it, you need to
have the courage to say, they are not qualified or I don't want
them. Those two things are tough, but standing up for your
budget and making sure that you get the people that you need to
get the job done are important.
Thank you both for being here today. We are going to leave
the record open in the event that some of my colleagues have
questions for the record. It will be open for 48 hours. Thank
you.
Ms. Kiko. Thank you very much, Mr. Chairman.
Ms. Rose. Thank you, Mr. Chairman.
Senator Voinovich. You are more than welcome.
Now, I ask Judge Juliet McKenna and John Fisher to come
forward.
Eleanor, I don't know how long you have been in the wings,
but if we kept you there a long time, I apologize.
Ms. Norton. It is all right. I was watching the hearing.
Senator Voinovich. I welcome Eleanor Holmes Norton of the
District of Columbia, who is here to introduce Mr. Fisher and
Judge McKenna. I would like to thank Delegate Norton for her
conscientiousness. She does a good job of making sure that she
familiarizes herself with the individuals being nominated and
makes it her business to come and appear before the Committee.
Thank you for being here.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A DELAGATE IN CONGRESS
FROM THE DISTRICT OF COLUMBIA
Ms. Norton. Thank you very much, Mr. Chairman, and may I
thank you once again for your very exceptional work for the
residents of the District of Columbia on the authorizing
Committee here, and may I thank you for arranging this hearing
for two exceptionally well-prepared and well-qualified
nominees.
I think if you look at their qualifications, and I will
only briefly summarize them, it would appear that they have
spent their entire professional lives preparing for the
nominations they have received.
John Fisher, as Associate Judge for the D.C. Court of
Appeals, our highest appellate court in the District of
Columbia, who now serves as the Chief of the Appellate Division
for the United States for the District of Columbia, began his
career as a law clerk for a Federal judge in the Southern
District of Ohio. He was an Assistant Attorney General in Ohio
for the United States for 3 years and then an Assistant
Attorney General in the District of Columbia for 16 years until
he became the Chief of our Appellate Division.
He has received many awards for his professionalism,
including the Attorney General's John Marshall Award for
outstanding legal achievement in handling appeals. He has been
elected to the American Academy of Appellate Lawyers. He is a
Vietnam veteran, a graduate, magna cum laude, of Harvard
College and cum laude, Harvard Law School.
For our Superior Court, Juliet McKenna, who now serves in
the Family Court as a magistrate. This is a court that this
Committee was instrumental in forming as a part of our Superior
Court, one of the great reforms, the first reform of that court
in its history.
Ms. McKenna has spent her life in legal services for
children and for families. She began in a Washington law firm,
but quickly moved into what has been her life's work. She
became Director of Lawyers for Children of America, which is a
nonprofit organization that seeks to provide quality legal
representation for children in the welfare system. She became
an Assistant Corporation Counsel in the Abused and Neglected
Children's Section, and then she has gone to the Family Court
as a magistrate and now wishes to be a full judge in the
Superior Court and has committed herself to serving in the
Family Court Section of that court, where we are especially
looking for judges who have background and special dedication.
So it is with great pleasure that I ask you to confirm
these two exceptionally well-qualified nominees, in my opinion.
Senator Voinovich. Thank you very much for being with us
this morning. While you are welcome to stay for the remainder
of the hearing, I understand you have other commitments. Thank
you very much.
I have reviewed the biographical questionnaires and believe
you are both well qualified for the positions to which you have
been nominated.
Senator Akaka, would you like to make an opening statement?
Senator Akaka. Mr. Chairman, I just want to add my welcome
to the nominees, and I look forward to their statements this
morning.
Senator Voinovich. It is the custom in the Committee, as
you know, to swear in the witnesses. If you will stand, I will
administer the oath.
Do you swear that the testimony you are about to give this
Committee is the truth, the whole truth, and nothing but the
truth, so help you, God?
Mr. Fisher. I do.
Judge McKenna. I do.
Senator Voinovich. Judge McKenna, I understand that you
have some family members here today, as well as supportive
colleagues. I would welcome you to introduce them to us.
Judge McKenna. Thank you very much, Senator. I am joined
today by my parents, Sherri and Jon McKenna, as well as my
husband and my 6-year-old daughter, Miracle, who is sitting
immediately behind me.
I am also honored today that Judge Emmet Sullivan of the
U.S. District Court for the District of Columbia is here today,
as well as Judge Eric Washington, Chief Judge of the Court of
Appeals, and my Chief, Chief Judge Rufus King of the Superior
Court.
I also wanted to take this opportunity to recognize several
colleagues of mine from the Family Court who, as you can
imagine, have served as sources of inspiration and support for
me, including Magistrate Judge Pamela Gray, Magistrate Judge
Karen Howze, and Magistrate Judge Carol Dalton, along with her
courtroom clerk. I am also fortunate in that my courtroom
clerk, Cynthia Milner, is here, as well as my former clerk,
Rhonda Young. Thank you.
Senator Voinovich. Thank you. It is a pleasure to have
members of your family and colleagues represented here today.
Please proceed with your statement.
TESTIMONY OF HON. JULIET J. McKENNA,\1\ TO BE ASSOCIATE JUDGE,
DISTRICT OF COLUMBIA SUPERIOR COURT
Judge McKenna. Thank you. Senator, I am honored to testify
today before the Committee, and I would like to thank
Congresswoman Norton for her kind introduction this morning. I
also would just like to take this opportunity to thank the
members of the nominations commission for recommending me and
the President of the United States for nominating me.
---------------------------------------------------------------------------
\1\ The prepared statement of Judge McKenna appears in the Appendix
on page 33.
Biographical and professional information appears in the Appendix
on page 98.
---------------------------------------------------------------------------
I would, of course, like to express my appreciation to this
Committee for convening today's hearing and to your dedicated
and hard-working Committee staff, as well as the staff of the
White House Counsel's Office, who assisted me throughout this
process.
I have been privileged to serve as a magistrate judge
within the Family Court for the past 3 years, and I have taken
this responsibility very seriously. I am committed to treating
all people who come before the court with fairness, patience,
and respect, and if confirmed, I would be honored to continue
to serve the citizens of the District of Columbia as an
Associate Judge.
I look forward to answering any questions that you or
Senator Akaka may have for me this morning.
Senator Voinovich. Thank you very much.
Mr. Fisher, would you please take the opportunity to
introduce your family and friends who are here today.
Mr. Fisher. I would, indeed. Thank you, Mr. Chairman. I
would first like to introduce my wife, Margaret. Margaret and I
have been married for 39 years, and I know very well that
without her constant support and sacrifice, I wouldn't be here
today. Our son, Clark, who lives and works near San Francisco,
and our daughter, Mandana, who is a junior at East Carolina
University.
I would like to note for the record, Mr. Chairman, that
Margaret, Mandy, and I were all born in the great State of
Ohio---- [Laughter.]
Senator Voinovich. I was familiar with the fact that you
had worked with a distinguished law firm in the State of Ohio,
but I wasn't aware that you were both born in the State.
Mr. Fisher. Clark was not born in Ohio, but that is not his
fault. [Laughter.]
He did live with us in Columbus for several years, and he
is a graduate of Denison University in Granville, Ohio.
Mr. Chairman, many friends are here. I won't take time to
introduce them. I very much want to thank each and every one of
them for being here today.
There are a few other individuals I would like to take time
to introduce, if I may. I would like to introduce Ken
Wainstein, who is the U.S. Attorney for the District of
Columbia. Mr. Wainstein is a very experienced prosecutor. He is
a very effective leader of our office, and his nomination to be
the presidentially appointed U.S. Attorney is now pending
before the full Senate for possible confirmation.
I would also like to introduce my friend and special
advisor, Sam Kleinman. I hope Sam is here today. Sam, thank you
very much.
I am also very honored that several judges are here today,
Chief Judge Eric Washington, who is the new Chief Judge of the
District of Columbia Court of Appeals. I very much look forward
to serving under his leadership.
I would also like to recognize Judge Annice Wagner, who was
Chief Judge of the Court of Appeals until about a month ago.
Judge Wagner has been a judge, a trial judge on the Superior
Court. She has been an associate judge of the Court of Appeals.
And she has been Chief Judge of the Court of Appeals, and
through all those assignments, she has been a remarkable leader
and a true servant of justice. I have been nominated to take
her seat, Mr. Chairman, but I have no illusions that I can ever
take her place.
I also believe that Judge Emmet Sullivan is here. I think I
saw him earlier. He is a U.S. District Judge for the District
of Columbia. He formerly served on the District of Columbia
Court of Appeals, and before that, he served on the Superior
Court of the District of Columbia. I believe the reason he is
here today is because he is the current Chair of the D.C.
Judicial Nomination Commission.
Senator Voinovich. Would you stand up so we can see you?
Thank you for being here. One thing that makes our job a little
easier is the nominations committee vets everyone that we
receive. I think Senator Akaka will agree with me that we
really get outstanding nominees who come before us.
Mr. Fisher.
Mr. Fisher. And Judge McKenna had also introduced Chief
Judge Rufus King of the Superior Court of the District of
Columbia. Thank you for the opportunity to introduce these
people.
Senator Voinovich. We would welcome your statement.
TESTIMONY OF JOHN R. FISHER,\1\ TO BE ASSOCIATE JUDGE, DISTRICT
OF COLUMBIA COURT OF APPEALS
Mr. Fisher. Mr. Chairman and Senator Akaka, it is a great
honor for me to be here today, and I am very grateful for the
opportunity. I know how very busy this Committee is at this
particular time, and I really do appreciate that both of you
have taken time to consider our nominations.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Fisher appears in the Appendix on
page 34.
Biographical and professional information appears in the Appendix
on page 121.
---------------------------------------------------------------------------
I want to express my sincere thanks to the staff of your
Committee. They have been very courteous and they have been
very helpful. This may be a familiar process to you folks, but
it is a once-in-a-lifetime experience for me. I very much
appreciate your courtesy and guidance and especially the
courtesy of Ms. Jennifer Hemingway.
As you know, Mr. Chairman, I have devoted most of my
professional life to public service, and it has been one of the
greatest opportunities of my career to be able to litigate so
frequently before the District of Columbia Court of Appeals. I
really do wish that more people understood how very talented
and how very dedicated the judges of that court are. Our
community is very well served by its Court of Appeals, and so
it is a special honor for me to be nominated to join that
court.
Senator Akaka, Senator Voinovich, you both know about my
background and my experience. I just want to assure you that if
the Senate chooses to confirm me, I will work as hard as I can
to justify your confidence in me, and I do welcome your
questions.
Senator Voinovich. Thank you. There are three questions
that we ask all nominees. First, is there anything that you are
aware of in your background that might present a conflict of
interest with the duties of the office to which you have been
nominated? If you will respond yes or no.
Judge McKenna. No, Mr. Chairman.
Mr. Fisher. No, Mr. Chairman.
Senator Voinovich. Do you know of any reason, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Judge McKenna. No, sir.
Mr. Fisher. No, Mr. Chairman.
Senator Voinovich. Do you know of any reason, personal or
otherwise, that would in any way prevent you from serving the
full term for the office to which you have been nominated?
Judge McKenna. No, sir.
Mr. Fisher. I have an explanation, Mr. Chairman. I intend
to serve as long as they will let me. I have been nominated to
a 15-year term. I celebrated my 59th birthday late last month,
and I would be required to retire at the age of 74, so I would
fall a couple months short of the full 15-year term.
Senator Voinovich. Thank you. Senator Akaka, would you like
to start the questions?
Senator Akaka. Yes. Thank you very much, Mr. Chairman. As
you pointed out, we have individuals who are well qualified for
the positions to which they have been nominated. I want to
congratulate you both and also add my welcome to your families
and friends who are here today to join you at this hearing.
I would like to ask each of you what you believe are the
biggest challenges facing the D.C. Court of Appeals and the
D.C. Superior Court and what role each of you believe you could
play in addressing these challenges. Mr. Fisher, let us start
with you.
Mr. Fisher. Thank you, Senator. Let me begin by saying that
both courts, the Superior Court and the District of Columbia
Court of Appeals, are very good courts. This community is very
lucky to have such well run courts and talented judges serving
there.
A constant problem for both courts is the volume of
litigation with which they have to contend. Because of my
experience practicing so frequently before the courts, I hope
to be able to hit the ground running. I think as a baby judge,
I will not be able to make any significant changes in the
beginning, but I do think being fair-minded and hard-working is
the best contribution I can make to trying to address fairly
and as expeditiously as possible the cases that come before us.
Senator Akaka. Thank you. Ms. McKenna.
Judge McKenna. Thank you, Senator Akaka. I would just like
to first echo some of the comments of Congresswoman Norton and
just recognize the hard work of this Committee with respect to
the Family Court, which has relieved so much of the stress and
the burden under which the Family Court used to operate. Now, I
am very much pleased to have served on that court as a
magistrate judge. I believe that the children and the families
of the District of Columbia are much better served, in large
part due to the additional resources that this Committee
dedicated to the court.
However, I think one of the challenges that the court as a
whole continues to face, and the District of Columbia as a
community, is the pervasive problem of substance abuse
addiction, and I think we see the impacts of that in every
division of the court, whether that be family, criminal, or
civil in the landlord-tenant arena. Certainly, substance
addiction is something that plagues many members of the D.C.
community and can unfortunately lead to increased violence,
increased poverty, and mental health issues, which too often
then bring people before the court.
I would hope that if I am confirmed and have the honor of
sitting as an associate judge, I would be able to continue much
of the work that has already begun through the community courts
in the Criminal Division and the Family Treatment Court that is
a part of the Family Court to try to collaborate with service
providers in the community to be sure that those needs of those
litigants are met in order to hopefully reduce recidivism and
reunite children with their families as quickly as possible.
Senator Akaka. Thank you. I am interested in knowing, and
this question is to both of you again, what challenges you will
face in transitioning from your current positions to your
respective positions on the D.C. Court, and how you will
address these challenges? Let me switch and ask Ms. McKenna
first.
Judge McKenna. Thank you, Senator. As you know from my
background, I am currently serving as a magistrate judge on the
court and have been honored to be in that position for the last
3\1/2\ years. I would welcome the opportunity to preside over a
greater variety of cases if I am confirmed as an associate
judge, but I have no illusions. I know that my workload will
only increase if I am fortunate enough to be confirmed as an
associate judge. But I feel that the last 3\1/2\ years have
prepared me well for that challenge, and I certainly look
forward to hopefully assuming greater responsibility and being
able to perform greater service on behalf of the court and the
people of the District of Columbia.
Senator Akaka. Mr. Fisher.
Mr. Fisher. Senator, as you know, for most of my career, I
have been a prosecutor, an advocate, and although I am very
familiar with appellate litigation, I hope to soon assume a new
role, and it would not be a role as an advocate but a role as a
fair and impartial judge.
I believe I can make that transition. I certainly am
determined to be fair and impartial if I am allowed to sit upon
the bench. I think I have earned a reputation as being a fair-
minded person, and so I look forward to making that transition
in my role from being an advocate to being a judge.
I think there is also a substantial management component to
being a good and efficient judge. One of the things I will have
to learn how to do is how to staff and manage a chambers. As
Chief of the Appellate Division for the last 16 years, I have
essentially been the manager of a small law firm. We have about
35 lawyers and about 10 support people in our Appellate
Division, and I am hopeful that experience will help me be able
to manage a chambers efficiently. I have always tried very hard
to be a very collegial person, a very friendly person. The
court to which I have been nominated is known for its
collegiality, and I really do look forward to the opportunity
to work with the judges there.
Senator Akaka. I thank you both very much for your
excellent responses.
Mr. Chairman, I just want to tell you that I would join you
in expediting their confirmation. Thank you.
Senator Voinovich. Thank you.
Judge McKenna, if you are confirmed for this judgeship, you
will preside over civil, criminal, and family cases. I have
looked at your background and noticed your strong background in
family law, which will be a vital asset to the family courts.
What I didn't see was a strong background in criminal law. How
are you going to deal with some of these areas that maybe you
are not as familiar with as you would like to be? Are you going
to go to school? Do you see this as a problem?
Judge McKenna. I appreciate the question. I feel very
fortunate in that the Superior Court has, over the course of
the time that I have been there, a long history of providing
extensive training opportunities for judicial officers as they
embark upon new assignments.
As you know in your role of the Chairman, the Superior
Court is a very diverse bench with people with very diverse
backgrounds, including family, civil, and criminal backgrounds,
who are called upon at one time or another to serve in
divisions with which they may have had little previous
familiarity.
I feel that I am fortunate in having an extensive
litigation background prior to coming to the court during the
time that I served as a civil prosecutor for the Office of
Corporation Counsel, and since being on the bench, while the
substance of the cases I have handled have focused on family, I
certainly have had the opportunity to preside over numerous
evidentiary hearings and believe that I have learned skills in
that capacity that will translate to any division of the court.
But while I won't have the luxury of going back to school,
I certainly would avail myself of any and all training
opportunities that could be made available in the civil or the
criminal arena if the needs of the court would best be served
by having me serve in one of those divisions.
Senator Voinovich. The Chief Judge will decide what kind of
cases you will be assigned to? You could end up handling a lot
of the same cases?
Judge McKenna. That is correct. Those decisions are made by
the Chief Judge of the court, who I believe weighs the
preferences that are expressed by the judges, assesses the
backgrounds of the various judges, and then makes a
determination about how the needs of the court would best be
served, and I do feel that I am certainly prepared and able to
serve in any division of the court as is needed by the Chief.
Senator Voinovich. I have no further questions, Senator
Akaka. If there are any other additional questions, they will
be submitted to you within 48 hours, and if you don't hear from
anybody, it is fine. [Laughter.]
I would like to give a special note to your respective
families for the sacrifice that they have made so that you can
serve in the positions that you have held. So often, our
families don't get the credit they deserve for their
sacrifices. I am sure they are going to continue to make
sacrifices so you can continue the job that you have to do. I
know in my case, I have burned the midnight oil many times. My
grandchildren complain about me taking home the weekly reports
and reviewing them. So, I want to say thank you to your
families for the sacrifice they have made over the years and
for the one they will continue to make.
I know you are both anxious to be confirmed. The next step
in the process will be consideration of your nomination at a
Committee business meeting, and reporting your nomination to
the Senate for final action.
Thank you for being here today. The hearing is adjourned.
[Whereupon, at 11:45 a.m., the Committee was adjourned.]
A P P E N D I X
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PREPARED STATEMENT OF JOHN R. FISHER
THANK YOU, MR. CHAIRMAN.
IT IS A GREAT HONOR FOR ME TO BE HERE THIS MORNING, AND I AM
GRATEFUL FOR THE OPPORTUNITY. I KNOW HOW BUSY THE COMMITTEE IS AT THIS
TIME, AND I THANK YOU AND SENATOR AKAKA FOR TAKING TIME TO CONSIDER MY
NOMINATION.
I AM HUMBLED AND VERY GRATEFUL THAT PRESIDENT BUSH HAS NOMINATED ME
TO BE AN ASSOCIATE JUDGE OF THE DISTRICT OF COLUMBIA COURT OF APPEALS.
I WANT TO RECOGNIZE AND THANK NEOMI RAO, ASSOCIATE COUNSEL TO THE
PRESIDENT, WHO IS HERE THIS MORNING.
I ALSO WANT TO EXPRESS MY SINCERE THANKS TO THE STAFF OF THIS
COMMITTEE, AND ESPECIALLY MS. JENNIFER HEMINGWAY, FOR THEIR COURTESY
AND GUIDANCE. THIS MAY BE A FAMILIAR PROCESS TO YOU FOLKS, BUT IT IS A
ONCE-IN-A-LIFETIME EXPERIENCE FOR ME, AND IT HAS BEEN VERY COMFORTING
TO HAVE THEIR GUIDANCE.
AS YOU KNOW, MR. CHAIRMAN, I HAVE DEVOTED MOST OF MY PROFESSIONAL
LIFE TO PUBLIC SERVICE. ONE OF THE GREAT PRIVILEGES OF MY CAREER HAS
BEEN THE OPPORTUNITY TO LITIGATE SO OFTEN IN THE DISTRICT OF COLUMBIA
COURT OF APPEALS.
I WISH MORE PEOPLE UNDERSTOOD HOW TALENTED AND DEDICATED THE JUDGES
OF THAT COURT ARE. THIS COMMUNITY IS VERY WELL SERVED BY ITS COURT OF
APPEALS, AND IT IS A SPECIAL HONOR FOR ME TO BE NOMINATED TO JOIN THAT
COURT.
MR. CHAIRMAN, YOU KNOW ABOUT MY BACKGROUND AND EXPERIENCE.
I ASSURE THIS COMMITTEE THAT, IF YOU CHOOSE TO CONFIRM MY
NOMINATION, I WILL WORK VERY HARD TO JUSTIFY YOUR CONFIDENCE IN ME.
I WELCOME YOUR QUESTIONS.
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