[Senate Hearing 106-399]
[From the U.S. Government Publishing Office]
S. Hrg. 106-399, Pt. 1
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY
__________
JUNE 16; JULY 13; JULY 29; SEPTEMBER 14; OCTOBER 7;
OCTOBER 26, NOVEMBER 10, 1999
__________
Part 1
__________
Serial No. J-106-33
__________
Printed for the use of the Committee on the Judiciary
[[Page 2]]
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
[[Page (iii)]]
C O N T E N T S
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HEARING DATES
Page
Wednesday, June 16, 1999......................................... 1
Tuesday, July 13, 1999........................................... 79
Thursday, July 29, 1999.......................................... 145
Tuesday, September 14, 1999...................................... 215
Thursday, October 7, 1999........................................ 247
Tuesday, October 26, 1999........................................ 365
Wednesday, November 10, 1999..................................... 431
WEDNESDAY, JUNE 16, 1999
Statements of Committee Members
Hatch, Hon. Orrin G.............................................. 1
Kennedy, Hon. Edward M........................................... 2
Schumer, Hon. Charles E.......................................... 7
Feinstein, Hon. Dianne........................................... 10
Feingold, Hon. Russell D. (prepared statements).................. 18
Leahy, Hon. Patrick J. (prepared statement)...................... 19
Introduction of Nominees
Lott, Hon. Trent................................................. 3
Cochran, Hon. Thad............................................... 5
Moynihan, Hon. Daniel Patrick.................................... 6
Prepared statement........................................... 12
Dodd, Hon. Christopher J......................................... 8
Lieberman, Hon. Joseph I......................................... 10
Daschle, Hon. Tom................................................ 13
Boxer, Hon. Barbara.............................................. 13
Prepared statement........................................... 14
Johnson, Hon. Tim................................................ 15
Hutchison, Hon. Kay Bailey....................................... 16
Testimony of Nominees
Marsha S. Berzon, of California, to be U.S. Circuit Judge for the
Ninth Circuit.................................................. 21
Questioning by:
Senator Sessions......................................... 22
Senator Leahy............................................ 25
Senator Hatch............................................ 27
Senator Smith............................................ 29
Robert A. Katzmann, of New York, to be U.S. Circuit Judge for the
Second Circuit................................................. 22
Questioning by:
Senator Hatch............................................ 26
Senator Smith............................................ 30
Keith P. Ellison, of Texas, to be U.S. District Judge for the
Southern District of Texas..................................... 37
Questioning by Senator Hatch................................. 39
Gary Allen Feess, of California, to be U.S. District Judge for
the Central District of California............................. 37
Questioning by Senator Hatch................................. 38
[[Page iv]]
William Allen Pepper, Jr., of Mississippi, to be U.S. District
Judge for the Northern District of Mississippi................. 37
Questioning by Senator Hatch................................. 39
Karen E. Schreier, of South Dakota, to be U.S. District Judge for
the District of South Dakota................................... 37
Questioning by Senator Hatch................................. 38
Stefan R. Underhill, of Connecticut, to be U.S. District Judge
for the District of Connecticut................................ 37
Questioning by Senator Hatch................................. 39
T. John Ward, of Texas, to be U.S. District Judge for the Eastern
District of Texas.............................................. 37
Questioning by Senator Hatch................................. 39
Alphabetical List and Materials Submitted
Berzon, Marsha S.:
Testimony.................................................... 21
Letters in support of Marsha S. Berzon's nomination.......... 52
Ellison, Keith P.: Testimony..................................... 37
Feess, Gary Allen: Testimony..................................... 37
Katzmann, Robert A.: Testimony................................... 22
Pepper, William Allen, Jr.: Testimony............................ 37
Schreier, Karen E.: Testimony.................................... 37
Underhill, Stefan R.: Testimony.................................. 37
Ward, T. John: Testimony......................................... 37
Questions and Answers
Responses of Marsha S. Berzon to questions from Senators:
Abraham......................................................41, 44
Ashcroft..................................................... 45
Thurmond..................................................... 49
Responses of Robert A. Katzmann to questions from Senators:
Thurmond..................................................... 56
Sessions..................................................... 56
Ashcroft..................................................... 57
Responses of Keith P. Ellison to questions from Senators:
Hatch........................................................ 59
Smith........................................................ 60
Sessions..................................................... 60
Responses of Gary Feess to questions from Senators:
Smith........................................................ 62
Sessions..................................................... 63
Responses of W. Allen Pepper, Jr., to questions from Senators:
Hatch........................................................ 64
Sessions.....................................................64, 65
Smith........................................................ 66
Responses of Karen Schreier to questions from Senators:
Smith........................................................ 67
Hatch........................................................ 68
Sessions..................................................... 68
Responses of Stefan R. Underhill to questions from Senators:
Hatch........................................................ 70
Sessions..................................................... 70
Smith........................................................ 72
Responses of T. John Ward to questions from Senators:
Sessions.....................................................73, 76
Smith........................................................ 77
Hatch........................................................ 78
TUESDAY, JULY 13, 1999
Statements of Committee Members
Hatch, Hon. Orrin G.............................................. 79
Leahy, Hon. Patrick J. (prepared statement)...................... 90
Feinstein, Hon. Dianne........................................... 96
[[Page v]]
Introduction of Nominees
Roberts, Hon. Pat................................................ 80
Graham, Hon. Bob................................................. 81
Article: An editorial on Mr. Wilson's behalf from the Tampa
Tribune entitled ``The Strong Case for Charles Wilson,''
dated April 15, 1999....................................... 84
Prepared statement........................................... 86
Mack, Hon. Connie................................................ 88
Prepared statement........................................... 89
Gorton, Hon. Slade............................................... 92
Murray, Hon. Patty............................................... 92
Boxer, Hon. Barbara.............................................. 94
Prepared statement........................................... 95
Brownback, Hon. Sam.............................................. 96
Prepared statement........................................... 97
Testimony of Nominees
Marsha J. Pechman, of Washington, to be U.S. District Judge for
the Western District of Washington............................. 98
Questioning by:
Senator Hatch............................................ 102
Senator Sessions......................................... 107
Carlos Murguia, of Kansas, to be U.S. District Judge for the
Western District of Washington................................. 98
Questioning by:
Senator Hatch............................................ 101
Senator Sessions......................................... 107
Adalberto Jose Jordan, of Florida, to be U.S. District Judge for
the Southern District of Florida............................... 99
Questioning by:
Senator Hatch............................................ 101
Senator Sessions......................................... 108
William Haskell Alsup, of California, to be U.S. District Judge
for the Northern District of Florida........................... 99
Questioning by:
Senator Hatch............................................ 100
Senator Sessions......................................... 109
Charles P. Wilson, of Florida, to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 99
Questioning by Senator Hatch................................. 99
Questions and Answers
Responses of Marsha J. Pechman to questions from Senators:
Hatch........................................................ 111
Ashcroft..................................................... 112
Sessions..................................................... 114
Smith........................................................ 114
Responses of Carlos Murguia to questions from Senators:
Smith........................................................ 115
Sessions..................................................... 116
Ashcroft..................................................... 117
Hatch........................................................ 119
Responses of Adalberto Jordan to questions from Senators:
Hatch........................................................ 121
Sessions..................................................... 124
Smith........................................................ 126
Ashcroft..................................................... 127
Responses of William Alsup to questions from Senators:
Hatch........................................................ 128
Sessions..................................................... 131
Ashcroft..................................................... 133
Thurmond..................................................... 135
Smith........................................................ 135
Responses of Charles Wilson to questions from Senators:
Sessions..................................................... 136
Ashcroft..................................................... 138
[[Page vi]]
Hatch........................................................ 140
Smith........................................................ 143
THURSDAY, JULY 29, 1999
Statements of Committee Members
Hatch, Hon. Orrin G............................................145, 153
Feinstein, Hon. Dianne........................................... 145
Prepared statement.........................................147, 148
Torricelli, Hon. Robert G........................................ 155
Schumer, Hon. Charles E.......................................... 156
Leahy, Hon. Patrick J. (prepared statement)...................... 162
Introduction of Nominees
Boxer, Hon. Barbara.............................................. 149
Prepared statement........................................... 151
Campbell, Hon. Tom............................................... 152
Bennett, Hon. Robert F........................................... 154
Lautenberg, Hon. Frank R......................................... 159
Moynihan, Hon. Daniel Patrick (prepared statements).............. 161
Testimony of Nominees
Maryanne Trump Barry, of New Jersey, to be U.S. Circuit Judge for
the Third Circuit.............................................. 163
Questioning by:
Senator Hatch............................................ 164
Senator Smith............................................ 167
Senator Sessions......................................... 170
Raymond C. Fisher, of California, to be U.S. Circuit Judge for
the Ninth Circuit.............................................. 163
Questioning by:
Senator Hatch............................................ 165
Senator Smith............................................ 167
Senator Sessions......................................... 171
Naomi Reice Buchwald, of New York, to be U.S. District Judge for
the Southern District of New York.............................. 175
Questioning by Senator Hatch................................. 177
David N. Hurd, of New York, to be U.S. District Judge for the
Northern District of New York.................................. 175
Questioning by Senator Hatch................................. 177
M. James Lorenz, of California, to be U.S. District Judge for the
Southern District of California................................ 176
Questioning by Senator Hatch................................. 177
Victor Marrero, of New York, to be U.S. District Judge for the
Southern District of New York.................................. 176
Questioning by Senator Hatch................................. 178
Brian Theadore Stewart, of Utah, to be U.S. District Judge for
the District of Utah........................................... 176
Questioning by:
Senator Hatch............................................ 178
Senator Feingold......................................... 182
Questions and Answers
Responses of Theadore Stewart to questions from Senator Feingold. 187
Theadore Stewart's positive environmental record............. 189
Various letters in support of Theadore Stewart's nomination.. 190
TUESDAY, SEPTEMBER 14, 1999
Statements of Committee Members
Kyl, Hon. Jon.................................................... 215
Leahy, Hon. Patrick J. (prepared statement)...................... 220
[[Page vii]]
Schumer, Hon. Charles F. (prepared statement).................... 221
Feinstein, Hon. Dianne........................................... 225
Introduction of Nominees
Boehlert, Hon. Sherwood L........................................ 216
Moynihan, Hon. Daniel Patrick.................................... 216
Gorton, Hon. Slade............................................... 216
Murray, Hon. Patty............................................... 217
Wyden. Hon. Ron.................................................. 219
Cleland, Hon. Max................................................ 222
Coverdell, Hon. Paul D. (prepared statement)..................... 223
Norton, Hon. Eleanor Holmes...................................... 224
Smith, Hon. Gordon............................................... 227
Prepared statement........................................... 227
Boxer, Hon. Barbara (prepared statement)......................... 228
Testimony of Nominees
Ronald M. Gould, of Washington, to be U.S. Circuit Judge for the
Ninth Circuit.................................................. 228
Questioning by:
Senator Kyl.............................................. 228
Senator Kohl............................................. 229
Anna J. Brown, of Oregon, to be U.S. District Judge for the
District of Oregon............................................. 231
Questioning by:
Senator Kyl.............................................. 234
Senator Kohl............................................. 235
Florence Marie Cooper, of California, to be U.S. District Judge
for the Central District of California......................... 232
Questiong by:
Senator Kyl.............................................. 233
Senator Kohl............................................. 235
Richard K. Eaton, of the District of Columbia, to be a Judge of
the U.S. Court of International Trade.......................... 232
Questioning by:
Senator Kyl.............................................. 234
Senator Kohl............................................. 236
Ellen Segal Huvelle, of the District of Columbia, to be U.S.
District Judge for the District of Columbia.................... 232
Questioning by:
Senator Kyl.............................................. 234
Senator Kohl............................................. 236
Charles A. Pannell, Jr., of Georgia, to be U.S. District Judge
for the Northern District of Georgia........................... 233
Questioning by:
Senator Kyl.............................................. 234
Senator Kohl............................................. 237
Alphabetical List and Materials Submitted
Brown, Anna J.: Testimony........................................ 231
Cooper, Florence Marie: Testimony................................ 232
Eaton, Richard K.: Testimony..................................... 232
Gould, Ronald M.: Testimony...................................... 228
Huvelle, Ellen Segal: Testimony.................................. 232
Pannell, Charles A., Jr.: Testimony.............................. 233
Questions and Answers
Responese of Ronald M. Gould to questions from Senator Smith..... 239
Responses of Anna J. Brown to questions from Senator Smith....... 240
Responses of Florence Marie Cooper to questions from Senator
Smith.......................................................... 241
Responses of Richard K. Eaton to questions from Senators:
Smith........................................................ 242
Kohl......................................................... 243
Responses of Ellen Segal Huvelle to questions from Senator Smith. 243
[[Page viii]]
Responses of Charles A. Pannell, Jr., to questions from Senator
Smith.......................................................... 244
THURSDAY, OCTOBER 7, 1999
Statements of Committee Members
Hatch, Hon. Orrin G............................................247, 249
Thurmond, Hon. Strom............................................. 249
Durbin, Hon. Richard J........................................... 257
Prepared statement........................................... 258
Leahy, Hon. Patrick J............................................ 265
Prepared statement........................................... 261
Schumer, Hon. Charles E. (prepared statement).................... 268
Kennedy, Hon. Edward M. (prepared statement)..................... 268
Introduction of Nominees
Hutchison, Hon. Kay Bailey....................................... 250
Gramm, Hon. Phil................................................. 251
Frost, Hon. Martin............................................... 252
Wellstone, Hon. Paul............................................. 252
Prepared statement........................................... 252
Grams, Hon. Rod.................................................. 253
Warner, Hon. John (prepared statement)........................... 254
Thompson, Hon. Fred.............................................. 255
Frist, Hon. Bill................................................. 256
Fitzgerald, Hon. Peter G. (prepared statements).................. 259
Testimony of Nominees
Richard Linn, of Virginia, to be U.S. Circuit Judge for the
Federal Circuit................................................ 263
Questioning by:
Senator Thurmond......................................... 265
Senator Leahy............................................ 266
Ronald A. Guzman, of Illinois, to be U.S. District Judge for the
Northern District of Illinois.................................. 264
Questioning by:
Senator Thurmond......................................... 265
Senator Leahy............................................ 266
William J. Haynes, Jr., of Tennessee, to be U.S. District Judge
for the Middle District of Tennessee........................... 264
Questioning by:
Senator Thurmond......................................... 265
Senator Leahy............................................ 267
Barbara M. Lynn, of Texas, to be U.S. District Judge for the
Northern District of Texas..................................... 264
Questioning by:
Senator Thurmond......................................... 265
Senator Leahy............................................ 267
Diana E. Murphy, of Minnesota, to be U.S. Sentencing Commission
Member and Chair............................................... 271
Questioning by:
Senator Thurmond......................................... 273
Senator Abraham.......................................... 276
Ruben Castillo, of Illinois, to be U.S. Sentencing Commission
Member......................................................... 271
Questioning by:
Senator Thurmond......................................... 274
Senator Abraham.......................................... 279
Sterling R. Johnson, Jr., of New York, to be U.S. Sentencing
Commission Member.............................................. 271
Questioning by:
Senator Thurmond......................................... 275
Senator Abraham.......................................... 278
Elton J. Kendall, of Texas, to be U.S. Sentencing Commission
Member......................................................... 271
Questioning by:
Senator Thurmond......................................... 274
Senator Abraham.......................................... 278
Michael E. O'Neill, of Maryland, to be U.S. Sentencing Commission
Member......................................................... 272
[[Page ix]]
Questioning by:
Senator Thurmond......................................... 273
Senator Abraham.......................................... 278
William K. Sessions, III, of Vermont, to be U.S. Sentencing
Commission Member.............................................. 272
Questioning by:
Senator Thurmond......................................... 273
Senator Abraham.......................................... 277
John R. Steer, of Virginia, to be U.S. Sentencing Commission
Member......................................................... 272
Questioning by:
Senator Thurmond......................................... 273
Senator Abraham.......................................... 277
Alphabetical List and Materials Submitted
Castillo, Ruben: Testimony....................................... 271
Guzman, Ronald A.: Testimony..................................... 264
Haynes, William J., Jr.: Testimony............................... 264
Johnson, Sterling R., Jr.: Testimony............................. 271
Kendall, Elton J.: Testimony..................................... 271
Leahy, Hon. Patrick J.: Letter from Judge William W. Wilkins,
Jr., to Senators Hatch and Leahy in support of the nominees for
the Sentencing Commission, dated Oct. 4, 1999.................. 290
Linn, Richard: Testimony......................................... 263
Lynn, Barbara M.: Testimony...................................... 264
Murphy, Diana E.: Testimony...................................... 271
O'Neill, Michael E.: Testimony................................... 272
Sessions, William K., III: Testimony............................. 272
Steer, John R.: Testimony........................................ 272
Questions and Answers
Responses of Richard Linn to questions from Senators:
Smith........................................................ 293
Grassley..................................................... 295
Responses of Ronald A. Guzman to questions from Senator Smith.... 296
Responses of William J. Haynes to questions from Senator Smith... 298
Responses of Barbara M. Lynn to questions from Senator Smith..... 299
Responses of Diana E. Murphy to questions from Senators:
Abraham...................................................... 301
Hatch........................................................ 304
Grassley..................................................... 305
Responses of Ruben Castillo to questions from Senators:
Abraham...................................................... 308
Hatch........................................................ 309
Grassley..................................................... 310
Responses of Sterling R. Johnson Jr. to questions from Senators:
Abraham...................................................... 312
Hatch........................................................ 313
Grassley..................................................... 314
Responses of Elton J. Kendall to questions from Senators:
Hatch........................................................ 320
Grassley..................................................... 321
Abraham...................................................... 322
Responses of Michael E. O'Neill to questions from Senators:
Hatch........................................................ 338
Grassley..................................................... 339
Abraham...................................................... 340
Responses of William K. Sessions, III to questions from Senators:
Abraham...................................................... 342
Hatch........................................................ 345
Grassley..................................................... 346
Responses of John R. Steer to questions from Senators:
Abraham...................................................... 352
Hatch........................................................ 363
Grassley..................................................... 364
[[Page x]]
TUESDAY, OCTOBER 26, 1999
Statements of Committee Members
Thurmond, Hon. Strom............................................. 365
Feinstein, Hon. Dianne........................................... 368
Leahy, Hon. Patrick J. (prepared statement)...................... 369
Torricelli, Hon. Robert G........................................ 373
Durbin, Hon. Richard J........................................... 374
Abraham, Hon. Spencer............................................ 380
Introduction of Nominees
Nickles, Hon. Don................................................ 366
Lautenberg, Hon. Frank........................................... 367
Inhofe, Hon. James M............................................. 368
Boxer, Hon. Barbara.............................................. 371
Prepared statement........................................... 372
Fitzgerald, Hon. Peter........................................... 376
Prepared statement........................................... 376
Calvert, Hon. Ken................................................ 377
Prepared statement........................................... 377
Testimony of Nominees
Anne Claire Williams, of Illinois, to be U.S. Circuit Court Judge
for the Seventh Circuit........................................ 379
Questioning by:
Senator Thurmond......................................... 382
Senator Feinstein........................................ 384
Senator Torricelli....................................... 389
Faith S. Hochberg, of New Jersey, to be U.S. District Court Judge
for the District of New Jersey................................. 380
Questioning by:
Senator Thurmond......................................... 383
Senator Feinstein........................................ 385
Senator Torricelli....................................... 387
Frank H. McCarthy, of Oklahoma, to be U.S. District Court Judge
for the Northern District of Oklahoma.......................... 381
Questioning by:
Senator Thurmond......................................... 383
Senator Feinstein........................................ 386
Senator Torricelli....................................... 389
Virginia A. Phillips, of California, to be U.S. District Court
Judge for the Central District of California................... 381
Questioning by:
Senator Thurmond......................................... 383
Senator Feinstein........................................ 386
Senator Torricelli....................................... 389
Alphabetical List and Materials Submitted
Durbin, Hon. Richard J.: Prepared statement from Congressman
Bobby L. Rush in support of nominee, Judge Anne Claire Williams 374
Feinstein, Hon. Dianne: Letter from Judge Terrance J. Hatter,
Jr., to Senators Hatch and Leahy in support of nominee,
Virginia Phillips, dated Sept. 17, 1999........................ 370
Hochberg, Faith S.: Testimony.................................... 380
McCarthy, Frank H.: Testimony.................................... 381
Phillips, Virginia A.: Testimony................................. 381
Williams, Anne Claire: Testimony................................. 379
Questions and Answers
Responses of Anne C. Williams to questions from Senator Smith.... 391
Responses of Faith S. Hochberg to questions from Senator Smith... 395
Responses of Frank H. McCarthy to questions from Senators:
Thurmond..................................................... 399
[[Page xi]]
Ashcroft..................................................... 399
Smith........................................................ 399
Responses of Virginia A. Phillips to questions from Senator Smith 403
Submissions for the Record
Numerous letters in support of nominee, Virginia A. Phillips..... 407
WEDNESDAY, NOVEMBER 10, 1999
Statements of Committee Members
Hatch, Hon. Orrin G.............................................. 431
Feinstein, Hon. Dianne........................................... 438
Biden, Hon. Joseph R., Jr........................................ 441
Schumer, Hon. Charles E.......................................... 444
Introduction of Nominees
Smith, Hon. Gordon............................................... 432
Rangel, Hon. Charles B........................................... 433
Moynihan, Hon. Daniel Patrick.................................... 434
Conrad, Hon. Kent................................................ 434
Dorgan, Hon. Byron L............................................. 436
Pomeroy, Hon. Earl............................................... 436
Lautenberg, Hon. Frank R......................................... 437
Boxer, Hon. Barbara (prepared statement)......................... 439
Roth, Hon. William V., Jr........................................ 448
Testimony of Nominees
Thomas L. Ambro, of Delaware, to be U.S. Circuit Judge for the
Third Circuit.................................................. 445
Questioning by:
Senator Hatch............................................ 447
Senator Biden............................................ 458
Kermit E. Bye, of North Dakota, to be U.S. Circuit Judge for the
Eighth Circuit................................................. 445
Questioning by:
Senator Hatch............................................ 447
Senator Biden............................................ 457
George B. Daniels, of New York, to be U.S. District Judge for the
Southern District of New York.................................. 446
Questioning by:
Senator Hatch............................................ 448
Senator Biden............................................ 457
Joel A. Pisano, of New Jersey, to be U. S. District Judge for the
District of New Jersey......................................... 446
Questioning by:
Senator Hatch............................................ 449
Senator Biden............................................ 457
Fredric D. Woocher, of California, to be U.S. District Judge for
the Central District of California............................. 446
Questioning by:
Senator Hatch............................................ 451
Senator Biden............................................ 456
Alphabetical List and Materials Submitted
Ambro, Thomas L.: Testimony...................................... 445
Bye, Kermit E.: Testimony........................................ 445
Daniels, George B.: Testimony.................................... 446
Pisano, Joel A.: Testimony....................................... 446
Woocher, Fredric D.: Testimony................................... 446
[[Page xii]]
Questions and Answers
Responses of Thomas L. Ambro to questions from Senators:
Hatch.................................................... 462
Thurmond................................................. 465
Smith.................................................... 465
Responses of Kermit E. Bye to questions from Senators:
Hatch.................................................... 468
Thurmond................................................. 471
Smith.................................................... 471
Responses of George B. Daniels to questions from Senators:
Hatch.................................................... 474
Smith.................................................... 476
Thurmond................................................. 479
Responses of Joel A. Pisano to questions from Senators:
Hatch.................................................... 479
Thurmond................................................. 483
Smith.................................................... 484
Responses of Fredric D. Woocher to questions from Senators:
Hatch.................................................... 486
Thurmond................................................. 493
Smith.................................................... 494
ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS
William Haskell Alsup, of California, to be U.S. District Judge
for the Northern District of Florida........................... 99
Thomas L. Ambro, of Delaware, to be U.S. Circuit Judge for the
Third Circuit.................................................. 445
Maryanne Trump Barry, of New Jersey, to be U.S. Circuit Judge for
the Third Circuit.............................................. 163
Marsha S. Berzon, of California, to be U.S. Circuit Judge for the
Ninth Circuit.................................................. 21
Anna J. Brown, of Oregon, to be U.S. District Judge for the
District of Oregon............................................. 231
Naomi Reice Buchwald, of New York, to be U.S. District Judge for
the Southern District of New York.............................. 175
Kermit E. Bye, of North Dakota, to be U.S. Circuit Judge for the
Eighth Circuit................................................. 445
Ruben Castillo, of Illinois, to be U.S. Sentencing Commission
Member......................................................... 271
Florence Marie Cooper, of California, to be U.S. District Judge
for the Central District of California......................... 232
George B. Daniels, of New York, to be U.S. District Judge for the
Southern District of New York.................................. 446
Richard K. Eaton, of the District of Columbia, to be a Judge of
the U.S. Court of International Trade.......................... 232
Keith P. Ellison, of Texas, to be U.S. District Judge for the
Southern District of Texas..................................... 37
Gary Allen Feess, of California, to be U.S. District Judge for
the Central District of California............................. 37
Raymond C. Fisher, of California, to be U.S. Circuit Judge for
the Ninth Circuit.............................................. 163
Ronald M. Gould, of Washington, to be U.S. Circuit Judge for the
Ninth Circuit.................................................. 228
Ronald A. Guzman, of Illinois, to be U.S. District Judge for the
Northern District of Illinois.................................. 264
William J. Haynes, Jr., of Tennessee, to be U.S. District Judge
for the Middle District of Tennessee........................... 264
Faith S. Hochberg, of New Jersey, to be U.S. District Court Judge
for the District of New Jersey................................. 380
David N. Hurd, of New York, to be U.S. District Judge for the
Northern District of New York.................................. 175
Ellen Segal Huvelle, of the District of Columbia, to be U.S.
District Judge for the District of Columbia.................... 232
Sterling R. Johnson, Jr., of New York, to be U.S. Sentencing
Commission Member.............................................. 271
Adalberto Jose Jordan, of Florida, to be U.S. District Judge for
the Southern District of Florida............................... 99
[[Page xiii]]
Robert A. Katzmann, of New York, to be U.S. Circuit Judge for the
Second Circuit................................................. 22
Elton J. Kendall, of Texas, to be U.S. Sentencing Commission
Member......................................................... 271
Richard Linn, of Virginia, to be U.S. Circuit Judge for the
Federal Circuit................................................ 263
M. James Lorenz, of California, to be U.S. District Judge for the
Southern District of California................................ 176
Barbara M. Lynn, of Texas, to be U.S. District Judge for the
Northern District of Texas..................................... 264
Victor Marrero, of New York, to be U.S. District Judge for the
Southern District of New York.................................. 176
Frank H. McCarthy, of Oklahoma, to be U.S. District Court Judge
for the Northern District of Oklahoma.......................... 381
Carlos Murguia, of Kansas, to be U.S. District Judge for the
Western District of Washington................................. 98
Diana E. Murphy, of Minnesota, to be U.S. Sentencing Commission
Member and Chair............................................... 271
Michael E. O'Neill, of Maryland, to be U.S. Sentencing Commission
Member......................................................... 272
Charles A. Pannell, Jr., of Georgia, to be U.S. District Judge
for the Northern District of Georgia........................... 233
Marsha J. Pechman, of Washington, to be U.S. District Judge for
the Western District of Washington............................. 98
William Allen Pepper, Jr., of Mississippi, to be U.S. District
Judge for the Northern District of Mississippi................. 37
Virginia A. Phillips, of California, to be U.S. District Court
Judge for the Central District of California................... 381
Joel A. Pisano, of New Jersey, to be U.S. District Judge for the
District of New Jersey......................................... 446
William K. Sessions, III, of Vermont, to be U.S. Sentencing
Commission Member.............................................. 272
Karen E. Schreier, of South Dakota, to be U.S. District Judge for
the District of South Dakota................................... 37
John R. Steer, of Virginia, to be U.S. Sentencing Commission
Member......................................................... 272
Brian Theadore Stewart, of Utah, to be U.S. District Judge for
the District of Utah........................................... 176
Stefan R. Underhill, of Connecticut, to be U.S. District Judge
for the District of Connecticut................................ 37
T. John Ward, of Texas, to be U.S. District Judge for the Eastern
District of Texas.............................................. 37
Anne Claire Williams, of Illinois, to be U.S. Circuit Court Judge
for the Seventh Circuit........................................ 379
Charles P. Wilson, of Florida, to be U.S. Circuit Judge for the
Eleventh Circuit............................................... 99
Fredric D. Woocher, of California, to be U.S. District Judge for
the Central District of California............................. 446
[[Page (1)]]
JUDICIAL NOMINATIONS
---------- -
WEDNESDAY, JUNE 16, 1999
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 2:59 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, chairman of the committee, presiding.
Present: Senators Hatch, Thurmond, Sessions, Smith, Leahy,
Kennedy, Feinstein, and Schumer.
The Chairman. We are just a minute early, but I think we
will start, anyway. How is that?
Today we are holding a judicial nominations hearing for
eight nominees--that is rather rare--two circuit nominees and
six district court nominees. Now, this hearing follows the
committee's approval of two judges earlier this year, and I
note this hearing is approximately 3 months earlier in the year
than the first hearing for circuit and district court nominees
in 1993, when I was in the minority on this committee. Also, I
note that there was only one hearing for circuit and district
court nominees in all of 1993.
It is my expectation that the work of the committee will
continue at a reasonable pace throughout this year. This is
important work and I take it seriously, and we will continue to
do our best.
Of course, the committee cannot approve nominees that have
not been sent to us by the President. As the Chief Justice
noted in his most recent report on the judicial branch: The
entire Sentencing Commission is vacant. We have seven seats
that are still vacant, and not a single nomination has been
made. Without any commissioners, no Sentencing Guidelines can
be passed for new criminal statutes, no modifications can be
made to existing guidelines to address issues raised by the
courts. So I look forward to working with the President and
others to ensure that this important Commission can obtain a
slate of Commissioners and get back to work this year.
Together, Senator Leahy and I have ensured that the
President's nominees receive a fair hearing and that Federal
courts are adequately staffed to perform their constitutional
function. This committee has been instrumental in the Senate's
confirmation of 306 judicial nominees and over 200 other
nominees by President Clinton. By conducting thorough but
expeditious reviews of nominees and by holding hearings, we
should be able to keep the number of vacancies from inhibiting
the work of the Federal courts and other bodies.
I am confident that by the end of this session the
committee will have done a fair and even-handed job of
evaluating and approving
[[Page 2]]
judicial nominees just as it has done in previous years. I look
forward to working with my colleagues on the committee to
accomplish this.
Now, today we have three panels. The first panel will
consist of the sponsors of the nominees who will make short
statements on behalf of their nominees. The second panel will
consist of the two circuit court nominees, and the third panel
will consist of the six district court nominees.
So if I could call those who are going to speak for the
judges forward. Senator Lott and others, if you will take your
seats here, we would appreciate it.
Excuse me. Senator Kennedy is here. We will be glad to turn
to him.
Senator Kennedy. Thank you, Mr. Chairman. I wanted to
express my appreciation for scheduling the hearing, and we look
forward to our pending nominees. I am particularly pleased that
the nominations of Marsha Berzon and John Ward and Karen
Schreier are among those we will be reviewing today.
Ms. Berzon is an outstanding attorney with an impressive
record. She has written more than 100 briefs and petitions to
Supreme Court, argued several cases there. When she was first
nominated last year, she received strong recommendations and
had a bipartisan list of supporters, including our former
colleague, Senator Jim McClure. Fred Alvarez, a Commissioner on
the Equal Employment Opportunity Commission and Assistant
Secretary of Labor under President Reagan, supports here. I
hope we can move expeditiously on her nomination. It was first
received in the committee in January 1998, and she has answered
numerous questions on a wide range of topics during a previous
hearing and in writing.
John Ward has over 30 years of legal experience, 20 years
as a founding and managing partner of his own law firms. He has
conducted 150 full trials in Federal and State courts. He has
extensive experience in civil jury trials and also as a county
prosecutor.
Karen Schreier is a distinguished United States Attorney
for the District of South Dakota, confirmed to that position by
the Senate. She has served for 6 years representing the United
States as both plaintiff and defendant in Federal court in
South Dakota. She manages the U.S. Attorney's Office,
supervises a staff of over 20 Federal prosecutors. She has also
assisted Congress on numerous occasions, testifying in House
and Senate hearings on important issues involving juvenile
crime.
We know the magnitude of the task before us. There are
currently 65 vacant judgeships in the Federal judiciary; 12
additional vacancies are likely to open up in the coming months
when more and more judges retire from the Federal bench. Of the
65 current vacancies, 28 have now been classified as judicial
emergencies by the Judicial Conference of the United States,
which means they have been vacant for 18 months or more. In the
District of Western Pennsylvania, one position has been vacant
since November 1994, four and a half years, inexcusably long by
any standard.
So I want to commend you, Mr. Chairman, for having the
hearing. I look forward to working with you so we deal
effectively with the backlog and meet our constitutional
responsibilities in the confirmation process.
[[Page 3]]
I thank the Chair.
The Chairman. Well, thank you, Senator Kennedy.
I think we will turn to the distinguished Majority Leader
first and then Senator Cochran and then, if I could, I will
turn to the distinguished Senator from New York. I will try and
do this, if I can, on a seniority basis. If Senator Daschle
arrives, we will interrupt and allow him to make his speech
because we know our Leaders have a lot to do in addition to all
of us, but we will show that kind of deference.
So, Senator Lott, we are happy to hear from you.
STATEMENT OF HON. TRENT LOTT, A UNITED STATES SENATOR FROM THE
STATE OF MISSISSIPPI
Senator Lott. Thank you, Mr. Chairman, Senator Kennedy,
Senator Leahy, and my colleagues here in the panel. I was just
noting to Senator Lieberman and Senator Dodd--
The Chairman. Senator Lott, if I can interrupt you, the
ranking member is here and he wants to make his statement.
Senator Leahy. No, no. That is all right. I am just so
excited to be at the first confirmation hearing this year, the
longest the Senate has ever gone in history, at least in the 25
years I have been here. I am so excited that I really wanted to
be here and see this.
I will give a statement. I don't want to hold up this
distinguished panel, all of whom are good friends.
Senator Lott. Thank you, Senator Leahy. And, Mr. Chairman,
again, I was just saying with this panel, if we could do a
little legislative business while we were here, there is no
telling what we could get done right here at this table.
[Laughter.]
The Chairman. This is a good bunch to do it with.
Senator Lott. I appreciate my senior colleague from
Mississippi for allowing me to go ahead and get started. It is
a great honor for me today to be here and introduce to the
committee the President's nominee to the U.S. District Court in
the Northern District of Mississippi, Mr. William Allen Pepper,
Jr. He has his wife, Ginger, here with him; his son, William
Allen Pepper III; his sister, who is one of his greatest
assets, Lou Anne Cossar, and her husband. I don't know what
your protocol is here, but I am very proud of this family, and
I would like to ask them if they would to stand and be
recognized. Here they are right here.
The men may not look like much, but the ladies compensate.
[Laughter.]
Senator Lott. Let me just say, I would ask, Mr. Chairman,
that my statement be put in the record.
The Chairman. Without objection, we will do that.
Senator Lott. I have known Allen Pepper since 1959. I
remember the night we met. We were at the same place as
freshmen, and we wound up around the piano singing. And we sang
together for the next four years in a quartet--a quartet I
might say, to your great relief, I am sure, one that was better
than the singing Senators that we now sing with. He became my
roommate for 3 years at the University of Mississippi. I have
known him then and over the years to be one of the most
honorable men I have ever met in my life. That is the life he
lived even in the college days, and that is
[[Page 4]]
the one he continues to live in an exemplary way in Cleveland,
Mississippi.
He has had quite a distinguished career. After he
graduated, he did go off and serve 2 years in the 101st
Airborne in the Army. He returned and got his law degree from
the University of Mississippi Law School. He has had a very
active practice. In fact, he calls me quite regularly and says,
well, I am representing another one of your criminal relatives,
wanting to know what he should do with them, and I say, Well,
just get them out of jail and do the best you can.
But he was one of those sole practitioners that you don't
have a lot of anymore in a small town. He was in this solo
practice for 26 years. He had a significant solo litigation
practice. Yes, Senator Kennedy, he was a trial lawyer. As a
matter of fact, he was president of the Mississippi Trials
Lawyers Association, but he worked with the Bar Association as
a whole, served in a number of positions there, was actually
nominated to be president of the Bar Association. He was the
director of the Young Lawyers Group, president of the
Mississippi Bar Foundation. He was a leader in the Mississippi
pro bono project. He was very active with the university there
at Cleveland, Delta State University.
He served as an elected official. He was elected as a
Democrat to be an elections commissioner in Bolivar County. He
also served for a number of years, maybe as many as 12 years,
as the attorney for the Board of Education in that county.
He has all the usual civic activities and Lions Club to
Junior Auxiliary activities, but he is the kind of person that
we need to have serve on the bench. He has had a diversity of
practice. He has been very much involved in his community and
his State, and he is a man of the highest possible integrity.
And so even though he has this one blot on his record of being
my former roommate and closest friend probably I have had in my
life, I am very proud that President Clinton has selected him
as his nominee for this vacancy and on the U.S. court in the
Northern District of Mississippi.
Thank you for allowing me to be here with my colleague,
Senator Cochran.
[The prepared statement of Senator Lott follows:]
The Chairman. Thank you, Mr. Leader. We will certainly turn
to Senator Cochran. That is very high praise for Mr. Pepper,
and we really appreciate having your testimony here today.
Senator Cochran?
STATEMENT OF HON. THAD COCHRAN, A UNITED STATES SENATOR FROM
THE STATE OF MISSISSIPPI
Senator Cochran. Mr. Chairman, it is a pleasure to join my
colleague in presenting and recommending to this committee
Allen Pepper to be a United States district judge. He is very
well qualified. As a lawyer, he has earned the highest rating
that Martindale-Hubbell gives a practicing attorney. He is a
person who has shown that he has the respect of the fellow
members of the bar with whom he has practiced and worked. He
has been chairman of the Lamar Order of the University of
Mississippi Law Alumni Association, one of the most prestigious
positions in our State.
[[Page 5]]
Senator Lott has also pointed out already that he has been
president of the Mississippi Bar Foundation, another position
for which he was selected by his fellow lawyers.
He has been one of the most civic-minded attorneys in his
home town of Cleveland, Mississippi. He has served in positions
of responsibility, as director of a leading bank in Cleveland.
He has headed up charitable fund-raising activities. He is
looked to for leadership in a number of important activities.
In education locally and in local political life of his
community, he has been a leader and an influence for good and
stable government in that part of our State.
So it is a pleasure for me to recommend him. I can't match
the close relationship that my colleague has had. I am glad
that Allen has overcome those early relationships that he had
at the University of Mississippi.
[Laughter.]
Senator Cochran. Frankly, I did meet him when he was a
student there in 1961. I recall meeting him, and he was
introduced to me as the brother of Lou Anne Pepper. Well, I
knew right away he had to be a person of intelligence and
ability because she was at that time one of the most popular
and visible television stars in Mississippi, a person of great
charm and intelligence and great talent. So I knew that Allen
Pepper had to be somebody you had to take very seriously, and
he turned out to be just that.
So it is a pleasure for us to recommend him to the
committee, and we hope that the committee will report him
favorably to the Senate for confirmation.
The Chairman. Thank you, Senator Cochran. You both have
things to do. We will be happy to release you at this time, but
we will certainly move ahead with this nominee.
Senator Leahy. We can't ask him a whole lot of questions?
The Chairman. No, no.
Senator Cochran. Ask about the rule in Shelley's case.
[Laughter.]
The Chairman. I said the rule against perpetuities.
Senator Lott. Let me just say one final point I left out. I
have never known a nominee for the Federal court system that
had broader breadth of support than I have heard exhibited on
behalf of this nominee. It comes from leaders of the Democratic
Party, elected officials across the State, across the spectrum,
Republican leaders, leaders in the African American community.
His selection was met with universal approval and a feeling
that he would make an excellent judge. So I just wanted to add
that one additional point.
The Chairman. Thank you, Mr. Leader.
Senator Thurmond. You both favor him.
Senator Lott. Yes, sir.
Senator Thurmond. We can't turn him down, then.
Senator Lott. Thank you, Supreme Commander.
The Chairman. I think that is something--
Senator Leahy. Don't argue with that, Trent.
The Chairman. We are proud to have both of you here
speaking.
We will turn to Senator Moynihan and then Senator Schumer,
and then we will turn to Senator Dodd after that.
[[Page 6]]
STATEMENT OF HON. DANIEL PATRICK MOYNIHAN, A UNITED STATES
SENATOR FROM THE STATE OF NEW YORK
Senator Moynihan. Thank you, Mr. Chairman, Senator Leahy,
and distinguished members of the committee. I have the honor
and great personal pleasure to introduce to this committee a
brilliant lawyer and scholar, Professor Robert A. Katzmann, the
Walsh Professor of Government and Professor of Law at
Georgetown University. He comes to you as the nominee for the
Second Circuit Court of Appeals.
Upon his nomination, I stated that ``Robert Katzmann is the
finest lawyer/scholar of his generation. He will serve the
court of Learned Hand with honor and distinction.''
His distinctions began early, sir. He graduated summa cum
laude from Columbia, took his master's and Ph.D. at Harvard in
government, and has his juris doctor from Yale Law School,
where he was article editor of the Law Journal. After clerking
in the U.S. Court of Appeals for the First Circuit, he joined
the Brookings Institution and has been there at Georgetown
since.
He is the author of many books. A citation from the
University of Oregon captures the spirit of his work. It says:
``He has committed himself to interdisciplinary research that
is often applied rather than pure academic scholarship. That
work seeks to make a `real world' difference.'' A principal
thrust in his career has been a concern with the practical
aspects of the legal system. An example of his involvement over
the past decades, the Federal Judicial Center asked him to
bring to fruition a project on managing appeals in Federal
court. The result was ``Managing Appeals in Federal Court,''
the leading study of its kind, as I believe.
A major focus of his career has been a project to enhance
the understanding between the judicial and the legislative
branches, as explained in his recent book, ``Courts and
Congress.''
Judge Diarmuid O'Scannlain of the U.S. Court of Appeals for
the Ninth Circuit described this book as ``most timely and
insightful'', indeed, ``must reading.''
I believe, sir, you would recall that more than a year ago
we met with you and your staff to discuss one of his projects,
an effort whereby court opinions identifying perceived problems
in statutes are sent from the courts of appeal to Congress for
its review. The project holds the promise of enhancing mutual
understanding of how the judiciary interprets legislation.
May I finally say, sir, apart from his professional
accomplishments, on a personal note, I can attest to his
unquestioned integrity and fairness. I thank you for your great
courtesy.
[The prepared statement of Senator Moynihan follows:]
The Chairman. Thank you, Senator Moynihan. I appreciate the
high praise that you have given.
Senator Schumer, on this nominee?
STATEMENT OF HON. CHARLES E. SCHUMER, A UNITED STATES SENATOR
FROM THE STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and I would like
to take this opportunity to commend you for holding this
hearing and add to the introductions and praise for Professor
Katzmann as well as Marsha Berzon.
[[Page 7]]
I can hardly hope to match the eloquence of my colleague or
the erudition from New York's Senator Moynihan, so I shall not
try. I simply want to commend him for recommending the
nomination of such a fine candidate for the Second Circuit as
Robert Katzmann, and I look forward to working with you, Mr.
Chairman, to bring Dr. Katzmann's nomination to the floor and
for his eventual confirmation.
Dr. Katzmann's extensive research and writing and works on
matters relating to the Federal judiciary are indeed
impressive. Senator Moynihan has catalogued some of the works
of Dr. Katzmann, although in all modesty he left out my
favorite, which was his recent book entitled ``Daniel Patrick
Moynihan: The Intellectual in Public Life.''
[Laughter.]
Senator Schumer. I would also like to join Senators
Feinstein and Moynihan in reintroducing you to Marsha Siegel
Berzon. Although she is now a Californian and has been
nominated to serve on the Ninth Circuit, Ms. Berzon grew up in
a place I know pretty well, Brooklyn, New York, my home town,
and then she moved to Long Island and East Meadow, ultimately
graduating from East Meadow High School, and her affiliation
with New York also includes study at Columbia University and
service as a distinguished practitioner in residence at Cornell
University Law School in Ithaca. And we New Yorkers are glad to
be able to claim Ms. Berzon as one of our own as well as a
Californian because she is an extremely well regarded appellate
litigator and scholar. And we also like the idea of putting
native New Yorkers on the bench outside our great State. It
stands to improve the quality of justice in the country.
Anyway, in the interest of time--
The Chairman. Don't make it rougher than it is. Okay?
[Laughter.]
Senator Schumer. In the interest of time, I will say no
more except to thank you, Mr. Chairman, for the opportunity to
testify at this hearing.
The Chairman. Thank you, Senator Schumer.
Senator Moynihan. Mr. Chairman, may I say I last year
introduced Ms. Berzon to the committee, and Senator Feinstein
will add a statement I have made at the conclusion of her
statement.
The Chairman. Thank you, and we recognize your strong
support. This has been good praise for your nominee, Mr.
Katzmann, and for Ms. Berzon. We appreciate it.
We would be glad to release you from the table. We
appreciate you taking time from your busy schedules to be here.
Senator Dodd, Senator Lieberman, and then I think we will
go to Senator Feinstein and Senator Boxer, and then we will
wind up with you, Senator Hutchison.
STATEMENT OF HON. CHRISTOPHER J. DODD, A UNITED STATES SENATOR
FROM THE STATE OF CONNECTICUT
Senator Dodd. Thank you very much, Mr. Chairman and Senator
Leahy and other members of the committee. I want to thank you
for scheduling this important set of confirmation hearings. It
is a very distinct pleasure to join my colleague, Senator
Lieberman, in
[[Page 8]]
support of the nomination of Stefan Underhill to be a district
judge for the District of Connecticut.
Stefan Underhill, Mr. Chairman, is a distinguished scholar,
a superb attorney, and, most importantly, a truly fine human
being. I have never been more impressed, Mr. Chairman, with the
personal and professional qualifications of a candidate for the
bench in Connecticut.
Stefan Underhill is joined today by his wife, Mary Pat, and
their four children: Mariah, Mark, Devin, and Kerry. Maybe they
would stand up as well and be recognized if that is
appropriate, Mr. Chairman, the Underhill family.
The Chairman. We welcome you all.
Senator Dodd. You may not see Kerry. She is 4 years old.
There she is. She is recording history by dozing through all of
this.
Senator Leahy. You have some grandfathers up here. We see
her.
Senator Dodd. Mr. Chairman, I know that our colleague and
resident historian, Senator Byrd, is fond of extolling the
unique contributions that the United States Senate has made to
civilization, and I would not presume to disagree with him on
that point. I would, however, add one item to his list of great
American contributions to the civilized world, and that is an
independent judiciary.
Yesterday, Mr. Chairman, I noted a lead editorial in the
New York Times that compared the American with the British
legal systems. I found it ironic that the nation that in many
ways spawned our common law system two and a quarter centuries
ago is now struggling with whether to create a truly
independent judiciary that is modeled, ironically, on our very
own. The British judicial system is in many respects unfamiliar
to us. Its high court consists of 12 law lords. They are
members of the House of Lords where they sit on the Judicial
Committee. The chairman of that committee is known as Lord
Chancellor. He also serves as Speaker of the House of Lords and
is a member of the Prime Minister's Cabinet.
Mr. Chairman, were such a person to exist in the United
States Senate, he or she would simultaneously hold the position
of chairman of the Senate Judiciary Committee, Majority Leader
of the United States Senate, Chief Justice of the Supreme
Court, and the Attorney General. I leave it to you, Mr.
Chairman, to meditate on that possibility. I am sure that it is
not without some appeal to you as well.
[Laughter.]
The Chairman. I am sure that it would be very unappealing
to many others.
Senator Dodd. I can see you already taking notes on this.
My point, Mr. Chairman, is simply this: Our judiciary is
revered throughout the world for the high caliber of justice it
has dispensed over time. It is a beacon light of fairness not
only because of its independence from the legislative and
executive branches, but also because of the qualities of mind
and heart possessed by those we confirm to be Article III
judges.
Mr. Chairman, in my experience as a member of this body,
there is no responsibility that we Senators hold more dear than
that of advising and consenting to the nominees to our Article
III courts.
[[Page 9]]
History will record that it is a responsibility that the
United States Senate throughout time has discharged remarkably
well. Of some 2,792 judges confirmed by this body, only 7 have
been removed from office throughout the history of our Nation.
That reflects the extraordinary level of care that this
committee and the Senate as a whole has always taken in
considering judicial nominees.
Stefan Underhill, Mr. Chairman, represents the very best
that the Senate and our legal profession has to offer to the
quality of justice in America. He holds outstanding academic
credentials: a graduate of the Yale Law School, a Rhodes
Scholar, a graduate of the University of Virginia. He clerked
for one of the Nation's outstanding appellate court judges, Jon
Newman of the Second Circuit, and since then he has
distinguished himself among his peers as an associate and then
partner of the Connecticut law firm of Day, Berry & Howard.
It has been said that if you want to know what kind of a
judge a person will make, look to what kind of a person he or
she is. Stefan Underhill has all the blue-chip credentials a
brilliant lawyer can attain. But far more importantly, or as
importantly, Mr. Chairman, he is committed to his community and
devoted to his family. He is, simply put, a very good and
decent man. He provides legal guidance to local non-profit
child-care organizations. He sits on the board of directors of
the Connecticut Legal Services Corporation. He is a Cub master
of the local Cub Scout pack in his community. Colleagues and
friends described him, and I quote, as ``a true family man,
bright, insightful, and principled, with a deep respect for the
rule of law.''
Stefan Underhill's experience as a clerk for Judge Newman
kindled his desire to become a judge. He admires Judge Newman
not just for his intellect but because he strives to do what is
right and because he brings his life experiences to bear when
making judicial decisions.
Stefan believes in judicial restraint and having an open
mind. In Judge Newman, Stefan found a role model. He has
revealed himself to be someone committed to applying the law
not creating it, to opening his mind not closing it, and doing
justice not ignoring it.
In closing, Mr. Chairman, I note that a few days ago
Stefan's 4-year-old daughter, Kerry, who you just met, who is
dozing in the back here, was on line with her mother at the
post office in Connecticut. She tugged on the skirt of a
strange woman standing next to them and asked the woman, ``Do
you think my daddy should be a judge?'' To 4-year-old Kerry, I
believe the answer to that question is yes, and I hope that the
committee will agree with you as well in their consideration of
this fine nominee.
Thank you, Mr. Chairman.
The Chairman. Well, thank you, Senator Dodd.
Senator Lieberman, we will turn to you.
STATEMENT OF HON. JOSEPH I. LIEBERMAN, A UNITED STATES SENATOR
FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you. Thank you, Lord Hatch.
[Laughter.]
[[Page 10]]
Senator Leahy. Joe, don't do that. It is hard enough living
with him on this committee as it is. Don't make it any worse.
Senator Dodd. Lord Chancellor Hatch.
The Chairman. It has taken a long time to get that
recognition, is all I can say.
Senator Lieberman. Thanks, Mr. Chairman, for convening this
hearing and for moving some of these judicial nominations along
and including Mr. Underhill on this list. I am very proud to be
joining with Senator Dodd in introducing Stefan Underhill to
you as the nominee for the U.S. district court judgeship.
I was moved when Senator Lott described his college
roommate. Actually, if I may assume for a moment the role of
pro bono counsel, I want to advise Mr. Pepper that he is under
no obligation to answer the committee's questions about Senator
Lott's conduct while at Ole Miss.
[Laughter.]
Senator Lieberman. That is off limits.
But as close as I can get to the same relationship is that
Mr. Underhill and I were privileged to go to the same law
school, but it ends about there. He was there much more
recently and did much better than I did, I assure you, at the
law school. He was Articles and Book Reviews editor, one of
five members of the Articles Committee, a finalist in the
coveted Harlan Fiske Stone Prize Argument, and as Senator Dodd
has indicated, has just a first-rate record, clerking for Judge
Newman, being one of our State's premier litigators, one of our
State's premier law firms, an outstanding lawyer, a person of
genuine judicial temperament, a great citizen of this State. In
every regard, I think this is a superb nominee, and I guess I
would add that I was particularly struck that he listed on his
CV the fact that he is Cub master of Pack 197 in Fairfield,
Connecticut, which experience I think will come in handy in
dealing with many of the lawyers and litigants who will come
before his bench.
[Laughter.]
Senator Lieberman. I am very honored to join in Senator
Dodd's support of this nominee, and thank you for scheduling
him today.
The Chairman. Well, thank you very much, Senator Lieberman.
We appreciate both of you Connecticut Senators being here.
Kay, we are going to hold you until last, if that is all
right. You have two nominees, and we will turn to Senator
Feinstein next and then Senator Boxer.
STATEMENT OF HON. DIANNE FEINSTEIN, A UNITED STATES SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman and
members of the committee. I would like to speak on behalf of
two people. One is Marsha Berzon and the other is Gary Feess.
Mr. Chairman, I believe it was last July 30th, and I
believe Senator Sessions and I were the committee that heard
Marsha Berzon. I want to pay special tribute to Senator
Sessions. He was thorough, he was probing, he was intrepid. I
think the hearing went on for just about 2 hours, and virtually
I felt at the end of it that this was equal to a hearing that
the full committee had for an Associate Justice of the United
States Supreme Court. Virtually every ques
[[Page 11]]
tion I have ever heard at one of those hearings had been asked
of Mrs. Berzon, and I want the committee to know how very well
she acquitted herself, and I think Senator Sessions would agree
with that.
I also want the committee to know, Mr. Chairman, that
Marsha Berzon, believe it or not, had a life after Brooklyn,
New York. She went West where the major portion of her career
began to unfold in California. And she is a highly skilled
attorney. She has appeared numerous times before United States
circuit courts, district courts, and every level of California
State courts. She has argued four cases before the United
States Supreme Court. She has filed dozens of briefs on a wide
variety of cases before the Supreme Court.
She was a distinguished student at Boalt Hall, the
University of California. She was Order of the Coif, and she
was Articles editor for the California Law Review.
Prior to entering private practice, she clerked for United
States Court of Appeals Judge James Browning and for United
States Supreme Court Justice William J. Brennan. She has
practiced law with the San Francisco law firm of Altshuler,
Berzon, Nussbaum, and Rubin since 1978. She has been a partner
of the firm since 1990. She has won, in fact, impressive
support from Democrats and from Republicans as well as
virtually a wide panoply of law enforcement agencies.
Let me read just a couple of samples. Former Republican-
appointed Deputy Attorney General and Administrator of the EPA,
William Ruckelshaus, says, and I quote, ``Her intelligence and
genuine good judgment allow her to transcend partisanship. She
would make an excellent addition to the Ninth Circuit Court of
Appeals.''
J. Dennis McQuaid, an active Republican and partner at the
San Francisco law firm of McQuaid, McQuaid, Metzler, McCormick
& Van Zandt, writes, and I quote, ``I can recommend Marsha for
confirmation without reservation. She enjoys a reputation that
is devoid of any remotely partisan agenda and that her service
on the court will be marked by decisions demonstrating great
legal acumen, fairness, and equanimity.''
The National Association of Police Organizations states,
``Mrs. Berzon would be fair and impartial to law enforcement
officers and open-minded to their concerns. She apparently
understands the myriad of problems and difficult situations
facing the line patrol officer every day.''
Mr. Chairman, I strongly support Marsha Berzon's candidacy,
and I am very pleased to be here today to help with my
colleague, Senator Boxer, and others introduce her to you. And
if might also on behalf of Senator Moynihan submit a statement
to the record?
The Chairman. Without objection, we will place the
statement in the record.
[The prepared statement of Senator Moynihan follows:]
Senator Feinstein. Now, Mr. Chairman, I would also like to
just quickly introduce Judge Gary Feess, who with his wife is
sitting directly behind me, with their two children, David and
Tim. Judge Feess is the nominee to the District Court for the
Central District of California, the Los Angeles area. Judge
Feess has a vast experience as a private attorney and
Government service. He has earned
[[Page 12]]
distinction as a litigator, an interim U.S. attorney, and a
superior court judge in Los Angeles.
Again, he earned his law degree from the University of
California at Los Angeles. He also was selected for the Order
of the Coif, and in private practice, he joined the U.S.
Attorney's Office where he quickly rose up through the ranks,
becoming division chief of the major frauds unit in 1984 and
assistant chief of the criminal division.
In 1998, he served six months as interim U.S. attorney. He
returned to the private sector as a litigation partner for
Jones, Day, Reavis & Pogue, and later Quinn, Emanuel, Urquhart
& Oliver.
In 1997, Governor Pete Wilson appointed him to the Los
Angeles County Supreme Court where he has earned rave reviews.
He has also done some things in the private sector, the
civic sector. He was deputy consul general for the Christopher
Commission, which explored alleged abuses by the Los Angeles
Police Department. He also served on the attorney general's
Economic Crime Council and the Los Angeles Coordinating Crime
Committee.
He has received a flood of endorsements from the Los
Angeles District Attorney, former U.S. Attorney Robert Bonner,
Lane R. Phillips, former U.S. Attorney and Federal judge
appointed by Ronald Reagan, and the American Bar Association's
Judicial Nominations Committee has determined that he is well
qualified for the position of district judge.
He was my nominee to the President, and I am very proud to
present him to this committee.
The Chairman. Thank you so much, Senator Feinstein.
I notice the distinguished Minority Leader is here, and I
want to accommodate him and his heavy schedule at this time. So
if we could, and then I also notice--I think Tim is here. Maybe
we should move on your judge then at this time.
STATEMENT OF HON. TOM DASCHLE, A UNITED STATES SENATOR FROM THE
STATE OF SOUTH DAKOTA
Senator Daschle. Well, Mr. Chairman, I thank you very much
for your indulgence and that of my colleagues. I will be very
brief.
With you and members of the committee, I am extraordinarily
pleased to introduce to the committee someone that I am very
proud to have known for a long time. Karen Schreier and her
husband, Tim Dougherty, are both here, and I would like them to
stand, if they would.
I have known both of their families for a long, long time.
I have known Karen's father, know her family, know Tim's family
quite well. And I must say they are South Dakota's finest.
Karen has been the U.S. Attorney in the State of South
Dakota now for about 6 years and has just done an extraordinary
job. She has been recognized as one who has worked very
effectively with law enforcement agencies, especially on the
drug issue. She has reached out to the Native American
community as effectively as anybody I know.
I honestly believe that she has been the finest U.S.
Attorney the State of South Dakota has ever had. So when it
came to the opportunity to nominate a new district judge, it
was an easy choice for us. We are delighted that she has been
willing to take on this addi
[[Page 13]]
tional responsibility. We highly recommend her to you, Mr.
Chairman, and to the members of the committee. We know that she
will do an outstanding job as our next district judge.
The Chairman. Thank you, Senator. That is high praise.
I think all of the nominees have been very well praised
here today by excellent Senators, and so we are grateful to
have you here.
We will be glad to excuse you at this time because I know
how busy you are.
Senator Daschle. Thank you.
The Chairman. Tim, if we could go to Senator Boxer first
since we can finish those two judges, and then we will come
back to you, and then we are going to wind up with Senator
Hutchison.
STATEMENT OF HON. BARBARA BOXER, A UNITED STATES SENATOR FROM
THE STATE OF CALIFORNIA
Senator Boxer. Thank you very much, Mr. Chairman. I will be
very brief, and I would ask unanimous consent that my entire
statement be placed in the record.
The Chairman. Without objection.
Senator Boxer. And I will summarize.
First, I want to associate myself with the comments of
Senator Feinstein as it pertains to Judge Feess. I am very
proud that he has been recommended. I see that the younger one
has dozed off, which is interesting. The kids seem to get to
the heart of the matter sometimes. So the rest of us are awake,
and we are here for a purpose, and that is to convince you of
the value of our nominees.
I have been asked by Marsha Berzon to say a few words about
her, and rather than going through my statement, I thought I
would just pick out some highlights and first ask if Marsha
would stand. She is here with Stephen, her husband, and their
daughter, Allie, and son, Jeremy, who happens to be a newspaper
reporter in Riverside, California.
You have heard about Marsha's qualifications, a woman who
has argued cases before so many of the courts, including the
Supreme Court. All of her accolades are in my statement, so I
thought I would actually close with just a few brief statements
from Republicans because I think it is important that we show
the broad support that Marsha brings.
Former Republican--well, let me start off with Senator
Specter, a longstanding member of this committee, who wrote
that he was impressed with Ms. Berzon's ``intellect,
accomplishments, and the respect she has earned from labor
lawyers representing both management and unions.'' And I thank
Senator Specter for those comments.
Former Republican Senator James McClure wrote, ``What
becomes clear is that Ms. Berzon's intellect, experience, and
unquestioned integrity have led to strong bipartisan support
for her appointment.'' And Dennis McQuaid, who was mentioned by
Senator Feinstein, I wanted to share with you, he ran against
me the first time I ran for the Congress. So we finally found
something we agree on, Marsha, Dennis and I. And he wrote
wonderful words about Marsha. And W. I. Usery, former
Republican Secretary of Labor, said of Marsha, ``She has all
the qualifications needed, as
[[Page 14]]
well as the honest and integrity that we need and deserve in
the court system. I know she will be dedicated to the
principles of fairness and impartiality.''
Charles Curtis, who opposed Marsha in a case, United Auto
Workers v. Johnson Controls, her opposing lawyer, said, ``All
who have worked with or against her know she is fair,
reasonable, respectful toward opposing views.''
And, finally, corporate secretary for Chevron, Lydia Beebe,
has written that Marsha ``has a reputation of being a brilliant
attorney and of imposing an extremely high intellectual
standard to whatever she does. She has the support of many in
the employment and labor law community, both on plaintiff and
management side.''
So, with that, Mr. Chairman, I hope you will look kindly on
these two people. They are good people. They are strong people.
They will make great judges.
Thank you very much.
[The prepared statement of Senator Boxer follows:]
The Chairman. Thank you, Senator Boxer.
Senator Johnson, if you could finish up on your judge.
STATEMENT OF HON. TIM JOHNSON, A UNITED STATES SENATOR FROM THE
STATE OF SOUTH DAKOTA
Senator Johnson. Yes, thank you, Mr. Chairman, and I will
be very brief. I want to associate myself with the remarks of
the Minority Leader, Senator Daschle, relative to Karen
Schreier and her husband, Tim.
Karen has been a friend and a colleague for many, many
years. She was born in Sioux Falls, South Dakota, educated at
St. Louis University and St. Louis University School of Law.
Her intellect, character, legal skills, and her integrity are
all highly regarded by everyone who has known her. She has
strong support from my fellow members of the South Dakota Bar.
She went on to distinguish herself with a clerkship with the
South Dakota Supreme Court, quickly became an associate and
partner in Hagen, Wilka, Schreier and Archer law firm in Sioux
Falls, South Dakota, then moved on to become U.S. Attorney for
South Dakota in 1993, where her performance has been absolutely
extraordinary.
Karen has been a leader on issues of juvenile crime and
youth violence for a number of years, has worked closely with
me and with my office on methamphetamine problems and drug
problems we have in the State of South Dakota. She has been an
aggressive U.S. Attorney on the side of aggressive enforcement
of the law. And for that she has widespread bipartisan respect
and admiration from people throughout our State.
I would hope again that your committee will look favorably
and with an expeditious manner on the handling of this
important nomination. This is a woman who will serve America
and South Dakota well as U.S. district judge, the kind of
person that we need in public service, the kind of person that
we need on the bench.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Johnson. We are happy to
excuse you and appreciate the good comments you made.
Senator Hutchison, sorry that you have to be the last one
here, but we know that you have two nominees, and I would like
to men
[[Page 15]]
tion that Congressmen Ralph Hall and Max Sandlin have been here
in the past. I was hoping they could get back. That is one
reason why we delayed until now. But they have been here in
support of these two Texas nominees. So we will turn to you at
this point, and if the two Congressmen come, I will certainly
introduce them.
STATEMENT OF HON. KAY BAILEY HUTCHISON, A UNITED STATES SENATOR
FROM THE STATE OF TEXAS
Senator Hutchison. Good. I would like to ask that
Congressman Hall and Congressman Sandlin be allowed to be
introduced if they are able to come back. But they did tell me
they were here in support, and I would like to introduce first
T. John Ward, who is here with his wife, Elizabeth Ward, and I
would like to ask them to stand.
The Chairman. We are happy to welcome you all to the
committee. I apologize. If you see the two Congressmen, I
apologize. I should have introduced them before, but I thought
they would be here.
Senator Hutchinson. I will tell them.
The Chairman. They apparently had a vote, and I apologize
to them.
Senator Hutchison. I will mention to them that you did
recognize them.
John is a native of Bonham, Texas, and he practices in
Longview with the Austin law firm of Brown, McCarroll & Oaks
Hartline. He is a graduate of Texas Tech University and Baylor
University Law School. Early in his career, he was an assistant
district attorney, and he has extensive civil litigation
practice both in the State and Federal courts.
I believe John Ward is going to be a common-sense Federal
judge. When he was nominated in January, a constituent of mine,
one of many who wrote on his behalf, said, ``John Ward brings
complete preparation, a studied atmosphere, and a balance. He
will be a great judge.'' He is a member of the Board of
Governors of the Fifth Circuit Bar Association, and I just urge
that you confirm Mr. Ward to the bench in East Texas.
The second nominee I have is Keith Ellison, who is a
resident of Houston, and we are looking at the Southern
District bench there. Mr. Ellison is a graduate of Harvard
University where he was a Phi Beta Kappa and graduated summa
cum laude. He is a Rhodes Scholar. He is a graduate of Yale Law
School and was editor of the Yale Law Journal. He was a law
clerk to Supreme Court Justice Harry Blackmun and Judge Skelly
Wright of the U.S. Court of Appeals in the D.C. Circuit.
He has also been 20 years in civil litigation. He was a
partner in Baker & Botts, and then went out on his own. He
serves on the Yale Law School Association Executive Committee,
and he wrote to the committee that Senator Gramm and I have
that interview all of the judicial candidates that, ``By not
applying the law, a judge introduces an element of
unpredictability that breeds more litigation.'' I think that is
a pretty common-sense approach, too, and I can't think of
anyone more qualified and intellectually qualified for the
bench than Keith Ellison.
[[Page 16]]
Keith is here with his wife, Kathleen, and I would like to
ask them to stand as well.
So, Mr. Chairman, I appreciate your having this hearing.
Both of these nominees have been in the pipeline for quite a
while, and it is my hope that we can have an early
confirmation. I recommend them. Senator Gramm recommends them.
They passed with flying colors our bipartisan judicial
selection committee that screens all the nominees, and I think
you have two very highly qualified individuals and two benches
that are in dire need of some help. So I would urge you to
confirm.
The Chairman. Thank you, Senator Hutchison. That is high
praise indeed, and we appreciate your taking time to be here.
Sorry we had you be last.
Senator Hutchison. That is fine.
The Chairman. Okay.
The Chairman. If I could have all the judgeship nominees
stand and be sworn, we will swear you all in. If you could just
stand, raise your right hands. Do we have all of you up there?
Okay. Do you swear the testimony you shall give in this hearing
shall be the truth, the whole truth, and nothing but the truth,
so help you God?
Ms. Berzon. I do.
Mr. Katzmann. I do.
Mr. Ellison. I do.
Judge Feess. I do.
Mr. Pepper. I do.
Ms. Schreier. I do.
Mr. Underhill. I do.
Mr. Ward. I do.
The Chairman. Thank you very much. I think what we will do,
I think we will start with the two circuit nominees: Marsha S.
Berzon and Robert A. Katzmann. And then we will go to the
district court nominees in the second panel--third panel,
rather.
Senator Leahy. Mr. Chairman, at an appropriate point, I
have two statements from Senator Feingold that I want placed in
the record.
The Chairman. Without objection, we will place them in the
record. Please take your seats.
[The prepared statement of Senator Feingold follows:]
Senator Leahy. Mr. Chairman, while I did not give an
opening statement, I would put my statement in the record.
[The prepared statement of Senator Leahy follows:]
Senator Leahy. I do want to point out again on the hearings
that we should not compare this to 1993, the first year, as
compared to the seventh year of a President's term in office.
The first few months of that administration we had a
confirmation of a new Attorney General that took four hearings
over 3 months. We had 6 days of hearings in May and June of
other top Justice Department nominations and a Supreme Court
nomination. This year we have not had a hearing on executive
branch nominations, and the average time for Senate action on
the judges confirmed was about 200 days.
The Chairman. Let's be glad we are having a hearing now.
Senator Leahy. I am delighted, and I compliment you on
that. I really do. And I mean that most sincerely.
[[Page 17]]
The Chairman. We are happy to welcome both of you here. We
hope you will introduce your family members of friends that you
have with you, and if you have any statement you would care to
make, we will start with you, Ms. Berzon, and then with you,
Mr. Katzmann.
TESTIMONY OF MARSHA S. BERZON, OF CALIFORNIA, TO BE UNITED
STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT
Ms. Berzon. I do not have any statement. I would like very
much to thank you, Mr. Chairman, for holding this hearing. I
would like to introduce, in addition to my husband and my
children, who were already introduced, my parents, Jack and
Sylvia Siegel, who are here from New York. My mother was not
able to join us last year at the hearing. I am very pleased
that she is here this year. Also, my sister, Mary Berzon, who
is from Virginia; my brother, Arthur Siegel, who is an
accountant in New York; and my long-time law partner and
friend, Fred Altshuler, who is here as well.
Finally, I would like to see that my sister, Beth Siegel,
from Massachusetts was not able to be here today, and my
mother-in-law, Ethel Spitzen, from Boca Raton, Florida, was
also not able to be here today because of her health.
The Chairman. We are happy to welcome your family and your
friends and relatives here, and we are grateful we finally have
you here for this second hearing, really, and we are going to
try and move ahead as quickly as we can.
Do you have any further statement to make, Ms. Berzon?
Ms. Berzon. No, I don't. Thank you very much, Mr. Chairman.
The Chairman. Mr. Katzmann, we will turn to you. Introduce
your family and friends or whoever you have with you.
TESTIMONY OF ROBERT A. KATZMANN, OF NEW YORK, TO BE UNITED
STATES CIRCUIT JUDGE FOR THE SECOND CIRCUIT
Mr. Katzmann. Mr. Chairman, I would like to thank you for
your great courtesy and the courtesy of your staff over these
past several months, and also Senator Leahy. I would like to
introduce my parents, John and Sylvia Katzmann; my brothers,
Gary Katzmann, who is a career--my identical twin brother, Gary
Katzmann, who is a career prosecutor in the U.S. Attorney's
Office; my brother Martin Katzmann; and my many friends who are
here as well. My sister, Susan, unfortunately, could not make
it, and her family as well.
Finally, I would like to say a special word of thanks to
Senator Schumer and Senator Moynihan for their very generous
introductory remarks. Nearly a quarter century ago, Professor
Moynihan prepared me for my generals in American Government at
Harvard, and in the ensuing years, there is no one who has had
a greater impact on my life in his role as teacher, mentor, and
friend. And I am so grateful to him and to Liz Moynihan and to
Michael Patrick for coming here today. They are really friends
for hard winters.
Thank you.
The Chairman. We are happy to welcome your family and, of
course, we are very proud of Senator Moynihan ourselves. He has
[[Page 18]]
been a great Senator. He came to the Senate at the same time I
did, and so we have been good friends all through these years.
We are happy to have both of you here. Now, we have a roll
call vote, so I hope that some will go vote now and then come
back so you can ask questions.
Senator Sessions. Mr. Chairman, I am supposed to preside at
4:00. I don't know if others have a pressing need, but if you
could allow me a few questions at the beginning. If not, I will
understand.
The Chairman. I will be happy to yield my time to you,
Senator, and we will let you take the time, and then if others
could go vote and then come right back, then Senator Leahy and
I can go.
Go ahead, Senator.
Senator Sessions. Thank you, Mr. Chairman. I think both of
these are extraordinarily skilled lawyers, and I appreciate
your abilities, and I did enjoy very much, Ms. Berzon, our
conversations. Maybe we did take too long, but it was almost--
it was a very interesting discussion, and I enjoyed it very
much. And I thought I would ask a couple of follow-up
questions.
And you know--and I think I made it clear, and I have made
it clear to others--that I am concerned about the Ninth
Circuit. The New York Times has said the Supreme Court
considers it a rogue circuit. It was reversed, I believe, 27
out of 28 times last year. And in evaluating a nomination for
the Ninth Circuit, I have publicly said I want to be sure that
nominee is going to bring it back into the mainstream of
American law as set by the Supreme Court. And so any questions
I make, maybe in a different circumstance at a different time I
wouldn't be as persnickety about it. But I think it is
important. And I don't intend to support nominees unless I
really believe that it has a possibility of improving that
court.
I remember I asked you about Justice Brennan's decision on
the unconstitutionality of the death penalty. He believed that
the death penalty was unconstitutional. And I told you I
thought that that was unfounded because there are multiple
references to the death penalty and capital crimes in the
Constitution. And I asked you whether or not you shared my view
and how you felt about Mr. Justice Brennan's view, and you said
you did not like to say what you agree with and what you do not
agree with when you haven't had time to think about it. Fair
enough.
Have you had time now and would you like to comment now?
Ms. Berzon. I would like to say first that I also very much
enjoyed our discussion last year, and I certainly have had a
chance to think about it and to go back and look at the
Constitution. And having done so, I would certainly agree that
the indications of that document are that the Framers of the
Constitution understood that capital punishment would be
permitted under that Constitution.
There are, as you note and as the Supreme Court noted in
Gregg v. Georgia, many references in the Constitution which
indicate that the Framers certainly understood that there would
be capital punishment under the Constitution.
Senator Sessions. And as a justice, do you feel it would be
your duty to ratify in your opinions the understanding of the
Framers when they adopted that Constitution and carry out its
intent?
[[Page 19]]
Ms. Berzon. As a judge of the Ninth Circuit, my primary
duty and initial duty will be to follow the direction of the
United States Supreme Court. The United States Supreme Court on
this question has been quit clear about its conclusion that the
death penalty is constitutional, and I will, of course,
faithfully and completely apply that conclusion.
Senator Sessions. How do you feel about Justice Brennan's
view that somehow despite these references and clear, explicit
statements of approval of the death penalty in the Constitution
explicitly written that he still would find it
unconstitutional? Do you affirm or reject that view?
Ms. Berzon. I was a law clerk to Justice Brennan, as you
know. I admire him enormously as a man and as a mentor. I do
not agree with everything that he said, and I think in
particular that I intend to take a more literal view to
statutes and to constitutional provisions than he does. It
makes me more comfortable, and it is the way I tend to think.
The Chairman. Could I interrupt for just a second? I notice
our two Congressmen from Texas are here in support of the two
Texas nominees, and we just want to recognize both of you.
Congressman Hall, you have been a friend for a long time, and
we are really glad to have you here. And also you, Congressman
Sandlin, we are very appreciative that you would come over and
lend support to these two Texas nominees.
Mr. Hall. Thank you, Mr. Chairman and members.
The Chairman. I apologize for not introducing you first. I
should have done that.
Mr. Hall. We had to vote.
The Chairman. That is what I figured. You went to vote, and
I certainly wanted to--
Senator Leahy. We understand that.
The Chairman. I recognized you in absentia. We will put it
that way. But we are happy to have you back.
Go ahead, Senator. I am sorry.
Senator Sessions. All right. Briefly, I asked you
previously about--I followed up in writing with a question I
raised at our initial hearing, and to refresh your
recollection, you responded in August of 1998, and I had asked
you that if when you were vice president of the ACLU in
Northern California you approved the ACLU's filing of a lawsuit
in Michele AG v. Nancy S. case. In that case, the ACLU's
argument was that a homosexual partner who is neither an
adopted or biological parent could be deemed a ``parent in
fact,'' and that was rejected by the California--that position-
-the ACLU did take that position, and it was rejected by the
California Court of Appeals. And I was conferring a little bit
with your answer and would like to follow up.
In your written answers, when I asked you about your
connection with this lawsuit, you replied that you ``had no
recollection of this case until asked about it in connection
with the hearing.'' Then you later in those written answers
said you ``checked with the ACLU NC''--Northern California--and
learned that you were ``not present at the meeting at which the
case was considered,'' even though you were Chair of that legal
committee that set them--approved the filings. And then next
you stated that you ``learned on inquiry'' that
[[Page 20]]
a close vote by the board as to whether or not to file that had
occurred. It had been proposed by the staff, but that you ``do
not recall'' how you voted or whether you voted and that the
ACLU had no records specifying how you voted.
However, in your testimony before the committee, it
indicates that voting on cases is not a routine proceeding by
the ACLU, and it only occurs if ``there is a dispute in the
legal committee,'' which you chaired, or if someone
specifically asked for a vote. In fact, you written answer
indicated that it was a close vote by the over 30-member staff.
Given the controversial nature of that case and as
evidenced by the fact that the board you chaired was closely
divided over the issue and the fact that the votes of this kind
appear to be an exception rather than the norm for the
committee, would you share with us how it is that we ought to
understand you don't remember that? And did you take a position
that--have you been able to recall any position you took, and
can you tell us more about your participation in that?
Ms. Berzon. The case, just to clarify for some of the other
members who were not at the hearing and may not have read the
questions, was one that dealt, as I understand it from reading
the reported opinion--and I want to make clear that I have
never seen the brief that the ACLU filed in this brief--in this
case. I don't ordinarily see them. I would not have ordinarily
seen them. And in this particular case, it was under seal, so I
couldn't see it even after I was asked.
Not having seen it, I can only react based on the written
opinion that resulted, and that opinion indicates that while
the particular individuals who were having a visitation dispute
here were homosexual partners who had been parenting this
child, the issue in the case really had nothing to do with them
being homosexual partners--that is, one could have been a
grandparent who was rearing the child or a step-parent who was
rearing the child or a foster parent who had been with the
child for a long time. And the issue was one of whether people
of that kind who the child will be severed from have some
interest in visitation.
The issue is a very complicated one, as the justice who
wrote the opinion for the California Supreme Court noted, on a
policy basis and one he concluded was properly for the
legislature, and I would agree with that conclusion.
I have no specific recollection of the debate, although I
did learn, as I said in my answers, that it was a closely
divided vote. I suspect--and I very much hesitate to say how I
might have voted because I don't have a clear recollection, but
I suspect that in a circumstance like that I would probably
abstain. And the reason I suspect that is I tend in my
participation in the ACLU to be most interested in issues and
most concerned about issues having to do with the First
Amendment, with the rights of free speech and religion, and
with discrimination, gender discrimination in particular. And
issues of this kind are very far from my expertise or concern,
and when it became as contentious as it did, apparently, from
the vote, I would probably feel that I had little to add to the
debate and probably would not have contributed. But I really
don't remember.
[[Page 21]]
Senator Sessions. So you don't remember how you voted on
that.
Ms. Berzon. I don't remember.
The Chairman. Senator, your time is up.
Now, Senator Leahy would like to just ask a question or two
before we go and vote.
Senator Leahy. Ms. Berzon, you are familiar with the
doctrine of stare decisis, I am sure.
Ms. Berzon. I certainly am.
Senator Leahy. And do you accept that doctrine?
Ms. Berzon. I absolutely do.
Senator Leahy. And so I can assume from that answer that
the decisions of the U.S. Supreme Court you would feel would be
compelling on your circuit?
Ms. Berzon. Absolutely, and if confirmed as a judge, I will
follow them faithfully and carefully.
Senator Leahy. And you would give great weight to prior
decisions of your circuit?
Ms. Berzon. I will definitely do that.
Senator Leahy. So it is safe to say that on decisions of
the Supreme Court you feel your circuit is bound by that, and
you as a judge would be bound by that.
Ms. Berzon. Definitely the Ninth Circuit is bound by the
decisions of the Supreme Court, and I as a judge would be bound
by them as well.
Senator Leahy. But you as a judge are not bound in any way
by past decisions of any organization, whether it is the ACLU
or a social organization or any other organization. Those are
not decisions that bind you. Am I correct?
Ms. Berzon. To the contrary, as a judge I will, of course,
be bound only by precedent, by the language of any statutes, by
the language of the Constitution, by precedents in other
circuits to the degree that they are relevant and convincing,
and I absolutely will give no credence whatever to the views of
any organization, including the ACLU. Indeed, I would expect
that I would rule against the position of the ACLU as often as
that of any other organization.
Senator Leahy. Looking at your background, I would not have
expected any different answer. I am extremely impressed with
your background. I hope that you will soon be sitting on that
court.
Thank you.
The Chairman. Thank you, Senator. We are going to have to
go vote. As soon as Senator Smith gets back, he will ask some
further questions, but we will recess until he gets back or
until another Senator gets here and proceed as soon as I can
get back.
[Recess from 4:02 p.m. to 4:30 p.m..]
The Chairman. If we could begin, I apologize for the delay.
I am going to put the written questions of Senator Thurmond
into the record, and I would hope that you would answer them as
quickly as possible. He directs questions to both you, Ms.
Berzon, and you, Mr. Katzmann, and then he sends questions to
the other judges as well. So I would hope that you would answer
any and all written questions as quickly as possible. We will
keep the record open to have written questions to the nominees
until Friday, the end of business on Friday, if that is all
right.
[The questions of Senator Thurmond follow:)
[[Page 22]]
The Chairman. Now, Senator Smith, would you like to ask
some questions or would you like me to go ahead?
Senator Smith. Go ahead, Mr. Chairman. I will be ready in a
minute. Why don't you go ahead?
The Chairman. Thank you. Okay.
Now, you have heard the questions, Mr. Katzmann, of Senator
Sessions. Do you have anything to say about those particular
questions?
Mr. Katzmann. No, I don't.
The Chairman. Okay. How would you answer them?
Mr. Katzmann. The questions that were asked were in a
sense--most of the questions seemed to be particular to various
cases.
The Chairman. Right, that involve California, so you really
don't have anything to say about that.
Mr. Katzmann. Right.
The Chairman. Let me ask you, Ms. Berzon, you certainly
have an extensive record in the area of labor law, something
that I take a great deal of interest in as well, representing
various labor organizations and some very renowned cases. Now,
when many people hear labor law, they generally think of cases
between unions and employers. Your experience, as I understand
it, however, includes instances in which you have been an
advocate for unions in litigation against the employees they
represent on issues ranging from the right of employees who
choose not to follow the union's lead in striking to the right
of employees not to pay a portion of union dues used for
purposes with which they disagree.
Now, Ms. Berzon, given your experience, can you assure this
committee that you can be fair and impartial in adjudicating
the rights of employees vis-a-vis their unions?
Ms. Berzon. Yes, absolutely. In all of those cases, I was,
of course, representing a client as an advocate. I am keenly
aware of the difference between an advocacy position and the
position of a judge on the Ninth Circuit or any other court of
appeals. In that position, if I am fortunate enough to be
confirmed, I am certain that I will be able and I commit that I
will leave behind all positions of all of my clients and look
with an open mind at the statutes at hand, at the precedents
that are relevant, and at any constitutional provisions that
are pertinent and so on.
The Chairman. So you will be abide by the precedents as
established by the Supreme Court?
Ms. Berzon. I am sorry?
The Chairman. You will abide by the precedents established?
Ms. Berzon. I absolutely will.
The Chairman. Okay. I presume you will, too, Mr. Katzmann.
Mr. Katzmann. Absolutely.
The Chairman. Now, Ms. Berzon, in correspondence to this
committee last July, you identified Ho v. San Francisco Unified
School District--that is a recent Ninth Circuit court case--as
one in which the ACLU of Northern California participated while
you were a board member.
Now, I have looked at the amicus brief the ACLU of Northern
California filed in that case and was interested to note that
the principal argument advanced in that brief is that the court
``should apply intermediate scrutiny'' not strict scrutiny as
the appropriate
[[Page 23]]
level of review n a challenge to a racial quota that had the
effect of limiting the percentage of Chinese school children
who could attend San Francisco's public schools.
Now, do you agree with the position advanced by the ACLU of
Northern California that the quota at issue was constitutional
even though there had never been a judicial finding that
segregation existed in San Francisco's school system?
Ms. Berzon. I am at something of a disadvantage because I
first saw a part of this brief, and only a part of it, last
evening and I read the opinion of the Ninth Circuit as well. I
was actually under the impression--and I could be wrong--that
there was a judicial finding or at least that there was a
consent decree that served as a--that was confirmed by the
court and, therefore, served as a judicial finding. But I am
not sure it is relevant to the issues that were addressed in
the amicus brief.
I know, as you do, Mr. Chairman, that the Supreme Court in
Adarand v. Pena held that racial classifications are subject to
the strictest of scrutiny, meaning that there has to be a
compelling interest, and that any classification of that kind
has to be extremely narrowly tailored. The Ninth Circuit held
that the issues in that case as to meeting those standards were
sufficiently undecided, that there should be a trial on the
question, and actually I know only from the newspapers that the
case was settled before trial.
In my role on the board of the ACLU, as Senator Sessions
noted, there are only votes held by the board in rare
instances, and in this instance there was no vote held by the
board and I was not on the legal committee. I did have a chance
to check that much.
The Chairman. Okay. And--did I interrupt you?
Ms. Berzon. I am sorry.
The Chairman. I thought I had interrupted you.
Ms. Berzon. Okay.
The Chairman. You have mentioned the Adarand v. Pena case.
Do you agree that the quota at issue in this matter should have
been tested under only an intermediate scrutiny rather than
strict scrutiny?
Ms. Berzon. It seemed to me that the Ninth Circuit opinion
holding that it was subject to strict scrutiny was fully
consistent with Adarand, and I would have no problem in
applying that standard at all.
The Chairman. They indicated that it would be subject to
only intermediate scrutiny not strict scrutiny.
Ms. Berzon. I am sorry?
The Chairman. They indicated that it would be subject to
only intermediate scrutiny not strict scrutiny.
Ms. Berzon. They so argued, and it is not a position that I
advocated. And as I say, I didn't vote on it either.
The Chairman. So you would be for strict scrutiny.
Ms. Berzon. I was fully comfortable with Judge Newman's
opinion in the Ninth Circuit.
The Chairman. Now, Mr. Katzmann, the Founding Fathers
believed that the separation of powers in a government was
critical to protecting the liberty of people. Thus, they
separated the legislative, executive, and judicial branches
into three different supposedly co-equal branches of
government, the legislative power
[[Page 24]]
being the power to balance moral, economic, and political
considerations and make law, the judicial power being the power
only to interpret laws made by the Congress and by the people.
Now, in your view, is it the proper role of a Federal judge
when interpreting a statute or the Constitution to accept the
balance struck by Congress or the people or to rebalance the
competing moral, economic, and political considerations?
Mr. Katzmann. I firmly believe that it is the role of the
judge to accept the balance struck by the Congress and the
people. It is inappropriate for a judge to reorient the
calculus.
The Chairman. Making of law to me is a very serious matter.
To make constitutional law, two-thirds of each House of
Congress and three-quarters of the States must formally approve
the words of an amendment. To make statutory law, only a
majority of each House is necessary, and usually the President
must formally approve the words of a statute.
This formal approval embodies the expressed will of the
people through their elected representatives and thus raises
the particular words of a statute or constitutional provision
to the status of binding law. Words, theories, and principles
that lack this formal approval are not backed by the will of
the people and thus do not rise to the level of legitimate law.
Would you agree that the further a judicial opinion varies
from the text and the original intent of a statute or
constitutional provision, the less legitimacy it has?
Mr. Katzmann. I certainly do agree with that. I think in an
article, which I, frankly, quoted in my book, ``Courts and
Congress,'' which you wrote in the Harvard Journal of Law and
Public Policy, you talk about the slippage that can occur the
further one gets away from the text of the statute. And I
believe that clearly that is a problem if a judge inserts his
or her own views about what a statute should mean by moving
away from the words of the statute.
The Chairman. Let me ask both of you this question: Under
what circumstances do you believe it appropriate for a Federal
court to declare a statute enacted by Congress
unconstitutional? Let's start with you, Ms. Berzon.
Ms. Berzon. The circumstances in which it is appropriate
for a court to declare a congressional statute unconstitutional
are, of course, quite rare. Such statutes come to the Court
with a strong presumption of constitutionality, and in looking
at such constitutional arguments, if I were confirmed, I would
look carefully at any precedents of the Supreme Court or of the
Ninth Circuit. But absent a compulsion by them to declare a
statute unconstitutional, I would do so only when it appeared
to be compelled by the constitutional language or by the clear
intent and the meaning of the Constitution.
Mr. Katzmann. I think, Mr. Chairman, that a court should be
very wary about declaring unconstitutional an act of Congress.
When you look at the constitutional structure, there is Article
I, the legislative article, Article II, the executive, and
Article III, the judiciary. I would submit that the order
suggests that there should be caution on the part of the
judiciary in terms of upsetting the law that Congress has made.
So I believe that only in the rarest of circumstances would it
be appropriate to declare an act of Congress
[[Page 25]]
unconstitutional. There would have to be clearly a very
compelling reason to do so. It would have the presumption--an
act of Congress has the presumption of constitutionality.
The Chairman. Thank you. My time is up.
Senator Smith, do you have questions?
Senator Smith. Thank you, Mr. Chairman. Good afternoon to
both of you.
I missed Senator Leahy's questioning, but I understand, Ms.
Berzon, that Senator Leahy asked you if you felt that the death
penalty was unconstitutional, and you replied that it was
constitutional. Is that correct?
Ms. Berzon. Yes. The United States Supreme Court has so
held.
Senator Smith. I am sorry. Senator Sessions' question.
Ms. Berzon. Senator Sessions did ask me that, and, yes, I
agreed with him that--
Senator Smith. Is that your view as well, Mr. Katzmann?
Mr. Katzmann. Yes. The Supreme Court has firmly spoken on
that issue, making note of a number of clauses in the
Constitution which suggest that there is room for capital
punishment.
Senator Smith. Do either of you have any moral or religious
or any other personal convictions that would keep you from
voting to apply the death penalty in an appellate case?
Ms. Berzon. I do not.
Mr. Katzmann. Neither do I.
Senator Smith. On the issue of judicial precedent, what is
your view on judicial precedent? I think Senator Leahy asked
you about judicial precedent, and I missed that. I think you
replied that you supported judicial precedent. Is that correct?
Ms. Berzon. I certainly do. I would be constrained as a
Ninth Circuit judge to follow the precedent of both the Supreme
Court and the Ninth Circuit, and I would do so.
Senator Smith. Even if you viewed the decision to be wrong?
Ms. Berzon. Yes, even if I viewed the decision to be wrong,
with the minor caveat that in the Ninth Circuit there are times
when there are votes as to whether to hear a case en banc, and
in that case I would vote in accordance with the guidelines of
the Ninth Circuit whether to hear the case en banc.
Senator Smith. Is that your view as well, Mr. Katzmann?
Mr. Katzmann. Yes. I think that if you don't follow
precedent, you are inviting judicial activism, which I would
deplore.
Senator Smith. Well, let me ask you a tough question on
judicial precedent. Were you to have been on the Supreme Court
in 1867 when the Dred Scott case came down, Judge Tawney
indicated in that decision, the majority decision, that Dred
Scott was a personal property and, therefore, could not sue in
Federal court. We now had precedent that was never overturned
by the courts, but it was overturned by some amendments to the
Constitution. So if you had had the chance to vote to reverse
that judicial precedent, how would each of you have voted?
Ms. Berzon. If you would like me to begin, it is a
provocative question, and I note that there is also a set of
precedents from the Supreme Court regarding the very rare
circumstances in which overturning precedent is appropriate.
And one of those circumstances is that it is more appropriate
in constitutional than in
[[Page 26]]
statutory cases because, with regard to statutory cases,
Congress can alter the statute much more easily than it can
alter the Constitution.
Now, you have actually pointed to one instance in which
Congress did alter the Constitution, or Congress and the people
altered the Constitution, but that is relatively rare.
So there is slightly more room in a constitutional case,
but, again, as a Ninth Circuit judge, it would be quite rare
because that prerogative is primarily that of the Supreme
Court.
Senator Smith. Same question, sir.
Mr. Katzmann. I would emphasize, too, that in terms of the
position for which I am being considered as an appellate judge,
I am bound to follow precedent. The issue as to what I would do
if I were a Supreme Court Justice is not something that I have
actually fully considered at this moment. But in the case of
Dred Scott, when we think about precedent, there are a lot of
different questions that one might think about.
One issue might be how long has the precedent been in
existence, how long has it stood in existence. That might be of
some use. But, on the other hand, if you always stick to
precedent at the Supreme Court level, then you would never have
had a reversal of Plessy v. Ferguson.
Senator Smith. That was my next question.
Mr. Katzmann. So that there are circumstances in which at
the Supreme Court level, where because there is a recognition
that a decision was clearly wrong, that there may be some basis
for a change in precedent. But at the appellate level, I think
the obligation of the judge is to follow the precedent
regardless of whether the appellate judge agrees with it or
not.
Senator Smith. Do you have the same view on Plessy v.
Ferguson, Ms. Berzon?
Ms. Berzon. Yes, I do. And as I said, the considerations
here with regard to the Supreme Court and appellate courts are
really quite different.
Senator Smith. No, I understand, but the issue in a generic
sense was judicial precedent, and I think you both admittedly
stated that you didn't feel that would necessarily be the case
at the appellate level. You did give a qualifier on both your
answers. I just want to make sure the record is straight. You
both gave me a qualifier on judicial precedent on both Plessy
v. Ferguson, which was overturning segregated schools, and Dred
Scott, which was not allowing a black man who was considered
property to sue in Federal court. So you did give two
qualifiers.
I don't want to misrepresent what you said, but that is the
way I read what you said. So now I am going to get you to the
least controversial of all the questions I have asked so far,
but that is why I wanted to hear your answers to these
questions first, which is--I was being funny--the issue of
abortion, which is obviously one of the most controversial
issues of the day. So if we use the issue of judicial precedent
in Roe v. Wade, what is your view on Roe v. Wade, each of you?
Ms. Berzon. The Supreme Court, as you know, spoke to that
precedent in Casey v. Planned Parenthood, both with respect to
its continuation as precedent and with respect to the precise
standard
[[Page 27]]
that is applicable under Roe v. Wade as modified by Casey.
Casey fully explored the stare decisis considerations, and,
again, as a circuit court judge, I am bound by Casey in that
regard.
Casey held that balancing the women's--the State's concern
for fetal life beginning at conception against women's
constitutional right that the applicable standard is whether
there is an undue burden on that right, and in applying that
standard has held certain regulations of abortion, including
parental consent, waiting periods, and others, valid. Again, as
a Ninth Circuit judge, I would apply both the general standard
and the particular precedents carefully and faithfully, and I
would have no opportunity really to consider whether it should
be changed, and I would not do so.
Senator Smith. Mr. Katzmann?
Mr. Katzmann. As an appellate judge, I am bound to follow
the precedent of the Supreme Court. Casey is, in a sense, the
defining case as it modifies Roe v. Wade, suggesting that
restrictions on abortion would be upheld so long as there is
not an undue burden.
As an appellate judge, I am bound to follow that regardless
of my own personal preferences.
Senator Smith. In a personal sense, if both of you could
answer this, do you believe that an unborn child is a human
being?
Ms. Berzon. As I said, Senator, my role as a judge is not
to further anything that I personally believe or don't believe,
and I think that is the strength of our system and the strength
of our appellate system.
The Supreme Court has been quite definitive quite recently
about the applicable standard, and I absolutely pledge to you
that I will follow that standard as it exists now, and if it is
changed, I will follow that standard. And my personal views in
this area, as in any other, will have absolutely no effect.
Mr. Katzmann. My concern, Senator, is that when judges
enact their personal preferences, whether for or against a
particular issue, there is a danger of judicial activism. It is
a recipe for judicial activism because it then means that
judges pick and choose what they want to enforce in the law
according to their own personal preferences.
What I can say to you is that I will faithfully apply the
law as the Supreme Court has laid it down, whatever the
precedent of the Supreme Court might be in that area at any
time.
Senator Smith. Well, look, and I want to say to both of you
I appreciate the fact that you are answering my questions. That
is not always the case here, and you are, I think, making an
honest attempt to answer the questions, and I appreciate it.
But I think what we have in the case of--I agree with you on
judicial activism on either side of the political spectrum. I
am not in favor of judicial activism. I think that judges and
Justices should support the Constitution pretty much in a
constructionist way as it is written.
The difficulty for me, and I think for many, on Roe v. Wade
is that by making abortion the law of the land, many would say
there is nothing in the Constitution that would provide for
that kind of decision to be made. There is no mention of
abortion in the Constitution. There is mention of life and the
protection of life, but there is no mention of abortion.
[[Page 28]]
And so I think what we have here is an opportunity to say
that a life could be taken at any stage; although it is not
frequently done in the third stage, there is no restriction on
that. And that is the reason I am asking the question. Does the
unborn child have a right to life at any point during the 9
months of pregnancy? And if so, at what point? And I think that
is a fundamental question that I don't think is an unfair
question for a person who, although it is the appellate court,
could very well at some point be considered at a higher court,
and also very well could face a decision dealing with that
issue on the appellate court.
So that is the question that I would like to ask. Does the
unborn child have a right to life at any point during the
pregnancy? And if so, when, in your view?
Ms. Berzon. My understanding of what the Supreme Court
ruled in Casey, which is the case that I would be constrained
to apply if I am confirmed to the Ninth Circuit, is that the
State does have an interest in the life of the child from the
time of conception, but that there is a competing interest as
well in the women's medical rights and otherwise, and that the
result of balancing those competing rights, the Supreme Court
has instructed us is that the right to abortion is upheld as
long as--only if there is no undue burden on the right to
abortion.
I have no choice but to answer you that that is what I
would apply if I was on the Ninth--if I was confirmed to the
Ninth Circuit. And if I answered anything else, I would not be
faithful to the role that I will have as an appellate judge.
Mr. Katzmann. I think that the Court recognizes that the
State has an interest in the protection of the child, but there
are these competing interests and concerns. One is bound to
follow the precedent of Casey, and I think that in a sense, if
I might say, that when there are nominees to the Supreme Court,
that is where one can really change, if one wants to, influence
the direction of policy because at the appellate level you are
supposed to follow the precedent regardless of how one
personally would come out on a particular issue.
I know that is an answer of judicial restraint, but I
firmly believe it.
Senator Smith. Well, let me move it all the way to the end
to the most dramatic of all abortions, which is the so-called
partial-birth abortion. There is a possibility, although not
likely, that we will overturn the President's veto on this.
Were that to happen, it would be in the courts, and the
constitutionality would have to be determined of that act.
Is the partial-birth abortion ban, as we now know it, the
law, the bill that has been passed that has not become law, is
that in your view constitutional or unconstitutional as you
interpret the Constitution? Mr. Katzmann, why don't you start?
Mr. Katzmann. I would say that that is an issue that--
Senator, that is a very important issue, and that as a judge, I
would really have to evaluate that issue in the context of a
law that is actually passed, and then in terms of a case or a
controversy. In terms of adjudication, there are restrictions
on judges rendering advisory opinions on particular pieces of
legislation in the advance of pas
[[Page 29]]
sage. And then even after passage, I think what a judge has to
do is to evaluate the case in the context of a real case or
controversy.
I think the questions that you raise are very important
ones and serious ones, and you can be sure that if I ever had a
chance to rule on that kind of an issue, I would really be as
faithful as I could to the Constitution, recognizing the
presumption of legislation to be constitutional.
Ms. Berzon. And I essentially agree with that answer. I
note again that the Casey standard would be the applicable one,
and that the answer might turn on the details of the particular
statute. I understand that there have been some partial-birth
or late-term abortion statutes that have been held
unconstitutional, but apparently for reasons having to do with
the particular scheme at hand.
Again, the standard would be whether there was an undue
burden on the right to abortion, taking into account the
State's interest in life from the time of conception, and that
is the standard I would apply. It would be obviously
inappropriate to say anything further than that precisely
because the issue might come before a court on which I or Mr.
Katzmann could be sitting.
Senator Smith. Your term ``competing interests,'' though,
is an interesting one because you are viewing the term
competing interests between the mother and the unborn child.
Would you take that competing interest to two individuals, one
of whom tried to kill the other one? You don't carry it that
far, do you?
Ms. Berzon. Again, I am simply repeating the standard that
the Supreme Court has articulated, and it is not my standard.
Senator Smith. But we indicated twice now in two different
examples, by your own admission, that the Supreme Court was
wrong at least twice in American history, once in Dred Scott
and once in Ferguson, very dramatic and important cases.
And I would say just for the record--and I am not looking
to argue; I have learned after many years of this that arguing
doesn't do any good, but discussing sometimes does. I would
argue that in the case of Ferguson, segregation was a horrible
situation, as was the situation of determining that a black
person was property and therefore had no legal right to sue.
Those were both dramatic departures from the norm from what is
right and wrong in America.
And I would venture to say I would add number three to
that, and that is the taking of a life of an innocent unborn
child, 35 million of which, 35 million of which, have been lost
since the Roe v. Wade decision in 1973. They will never have a
chance to be a judge. They will never have a chance to be a
mother or a father because of a law that was passed--a Court
decision that was made, excuse me, which denied them that
opportunity.
And neither one of you are willing to sit here and tell me
that you think that is wrong. Is that correct? I mean, I
haven't heard anybody say it yet. So 35 million children never
have a chance to be here or to be up here or to be out there
and have the opportunity to live their dream because of a Court
decision.
And had it not been for the guts of somebody in Ferguson
and the guts of somebody who wrote those 13th, 14th, 15th
Amendments, we may still have slaves in this country that would
never be able to sue. And we may very well have segregation in
this country.
[[Page 30]]
The Chairman. Senator, if I could--
Senator Smith. A last point, Mr. Chairman. You have been
very patient.
The Chairman. Yes.
Senator Smith. And I think in this particular case, I would
add abortion to that list, and I would say that 35 million
children lost is a terrible comment on American society. And I
deeply regret, really, with all due respect to both of you,
that neither one of you can say that.
The Chairman. Well, Senator, if I could interrupt, you have
asked some very appropriate and good questions. I interpret it
a little bit differently. Both of them, in my opinion, have
said that they are not sure how they would decide that case,
and that they wouldn't want to give the opinion that they have
now anyway without hearing all the facts and the evidence.
Senator Smith. Well, I didn't ask about a specific case,
Mr. Chairman.
The Chairman. No, but I mean--
Senator Smith. I asked about their point of view, whether
or not life was--
The Chairman. But they both say that that could likely come
before them and they are going to have to decide it at that
time. And that is a little different from saying that they
would not find that process unconstitutional. And I don't know
how they can say much more than that at this point in this
meeting.
But I share the distinguished Senator's feelings and I
share his point of view that it is a tragedy that we have had
this issue go as far as it has in our American way of life. And
I just hope that both of you will look at the precedents, and
also look at what is right and wrong, if that case ever comes
before you.
Senator Smith. Well, I would just make a final point.
The Chairman. Sure.
Senator Smith. In the case of the Missouri case where you
represented the ADA in your amicus brief in the Webster case, I
mean I assume you agree with the ADA's position on that case.
Ms. Berzon. Actually, in the--you are referring to me?
Senator Smith. Yes, ma'am.
Ms. Berzon. In my brief, which was an extremely limited
one, I did not address any of the abortion issues in that case
as such. The only issue that I addressed was a First Amendment
issue regarding the communication between doctor and patients
and that is all.
The Chairman. I think the question I would like to ask is
will you set aside your own personal views and feelings in
order to decide the case on the law rather on what your
personal views are?
Ms. Berzon. Absolutely, and I believe that I have so
indicated.
The Chairman. I will be honest with you, Ms. Berzon. On the
Ninth Circuit Court of Appeals, we have people there that could
care less what the law says. I mean, I hate to say it, and that
is what causes me all kinds of problems here on the committee
with putting Ninth Circuit Court of Appeals judges through
because they are so afraid that we will just have more of the
same.
And I have had very liberal judges come up to me and say it
is a disgrace what they are doing out there, and they are
hurting all
[[Page 31]]
of us who are sincere liberals who really want to abide by the
law and implement the law as it is written.
Senator Smith. Mr. Chairman, could I just make a point on
that? I understand what both of the nominees have said here,
and as far as judicial activism is concerned, I agree with what
Mr. Katzmann said about judicial activism. But what I am saying
is if you apply the standard of judicial precedent strictly
that you never overturn the law, the you never make a decision,
then you would never have overturned--
The Chairman. Nobody is going to--
Senator Smith. Excuse me. You would never have overturned
the Ferguson case of segregation and you never would have
overturned the Dred Scott decision if there had been such a
vote before the Court. And that is my only point and I am just
saying that I believe abortion belongs in the same league with
those other two cases. That is my point.
The Chairman. Well, it is a good point, no question.
Let me just say this, that I have seldom seen better
qualified nominees for circuit court positions than the two of
you. While we may differ on certain philosophical points, the
fact of the matter is you are both highly qualified. You both
have extensive experience in the law. And in your case, Ms.
Berzon, you have been here--this is your second time, and it
was an extensive, extensive hearing before that went on for
hours and there is an extensive record with regard your
nomination.
There is another vote, so let me just say this. We are
honored to have you here. The President has submitted both of
you and we will see what we can do to move your nominations
ahead. And we appreciate the forbearance that you have had, in
particular, Ms. Berzon. And, Mr. Katzmann, I have known you for
quite a period of time. I have great regard for you, as well as
Ms. Berzon.
There are many other questions we probably could ask, but I
think in your case, Ms. Berzon, an awful lot of them have been
asked. In your case, Mr. Katzmann, I am reasonably satisfied as
to your qualifications and will do what I can to see that you
both have an opportunity to serve on your respective circuits.
I would just ask that when you get there, don't be activist
judges; be judges who really abide by the law and set a
standard for judges that help us so that it doesn't come down
to an issue of liberal or conservative, but it comes down to an
issue of understanding the role of judges in our society so
that we don't hurt our society.
But in any event, unless you have any further questions,
Senator Smith, I think we will release both of you for today.
We congratulate your families. I am going to do my best to have
all of these judges who are up today on next week's markup. I
can't do it by tomorrow because we do have written questions,
and so forth. But by next week's markup, I will try and have
you on the--and some of you may be put over for a week, so just
understand the process. Anybody can put any item that appears
first on the list over for one week, but then it has to be
voted upon at the next markup. So we will move as expeditiously
as we can.
Ms. Berzon. Thank you very much, Senator Hatch.
Mr. Katzmann. Thank you very much, Mr. Chairman and Senator
Smith.
[[Page 32]]
The Chairman. Thank you both for being willing to serve.
[The questionnaires of Ms. Berzon and Mr. Katzmann follow:]
The Chairman. Now, we have got about 15 minutes before I
have to--we have got less than 15 minutes before I have to
leave. I wonder if I can get the rest of you judgeship nominees
to come take your seats. We have six chairs, so that ought to
be all right.
Now, let me say at the outset that I believe this is an
excellent panel of judgeship nominees. We have extensively
looked at your backgrounds and your service to your communities
and to the legal profession at large. So I come at this from a
position of wanting to support each and every one of you. But
let me quickly go through some questions so that we won't keep
you too long here today, and then I think what we will do is
just start with you Mr. Ellison and go right across.
Now, in general, Supreme Court precedents are binding on
all lower Federal courts, and circuit court precedents are
binding on all district courts within that particular circuit,
as you all know.
Now, is each of you committed to following the precedents
of the higher courts faithfully and giving them full force and
effect even if you personally disagree with such precedents?
Mr. Ellison?
TESTIMONY OF KEITH P. ELLISON, OF TEXAS, TO BE UNITED STATES
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
Mr. Ellison. Yes, I am, Mr. Chairman.
TESTIMONY OF GARY ALLEN FEESS, OF CALIFORNIA, TO BE UNITED
STATES DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
Judge Feess. Yes, Mr. Chairman, without question.
TESTIMONY WILLIAM ALLEN PEPPER, JR., OF MISSISSIPPI, TO BE
UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF
MISSISSIPPI
Mr. Allen. Yes, sir, I am.
The Chairman. Ms. Schreier?
TESTIMONY OF KAREN E. SCHREIER, OF SOUTH DAKOTA, TO BE UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA
Ms. Schreier. Yes, Mr. Chairman, I definitely am.
TESTIMONY OF STEFAN R. UNDERHILL, OF CONNECTICUT, TO BE UNITED
STATES DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT
Mr. Underhill. Absolutely, sir.
TESTIMONY OF T. JOHN WARD, OF TEXAS, TO BE UNITED STATES
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS
Mr. Ward. Absolutely, Mr. Chairman.
The Chairman. Thank you.
[[Page 33]]
What would you do if you believed the Supreme Court or the
court of appeals had seriously erred in rendering a particular
decision? Would you nevertheless apply the decision on your own
best judgment of the merits?
Take, for example, the Supreme Court's recent decision in
City of Boerne v. Flores, where the Court struck down the
Religious Freedom Restoration Act.
Mr. Ellison. Whether I agree with the decision or not, it
is my obligation to apply it. The only option for a judge who
bitterly disagrees with the decision of a higher court is to
tender his resignation, never to disregard a higher court's
authority.
Judge Feess. I agree with that, Mr. Chairman.
Mr. Pepper. I agree with that, Mr. Chairman.
Ms. Schreier. I, too, Your Honor, would feel bound by the
decision of the Supreme Court and would apply it.
Mr. Underhill. I would feel compelled, Mr. Chairman, to
apply the decision regardless of my personal views.
The Chairman. No matter how lame-brained it may be?
Mr. Underhill. Absolutely.
Mr. Ward. That is correct. I agree one hundred percent.
The Chairman. Well, I would be looking for some way of
finding a way around the lame-brained decision, but the fact is
you have all answered that the way I would like you to answer
it.
[Laughter.]
The Chairman. You have stated that you would be bound by
Supreme Court precedent and, where applicable, the rulings of
the Federal circuit court of appeals for your district. There
may be times, however, when you will be faced with cases of
first impression.
Now, I am tired of picking on you, Mr. Ellison, so I am
going to start with you, Mr. Feess, because everybody agrees
with you all the time. I get tired of that.
[Laughter.]
The Chairman. What principles will guide you, or what
methods will you employ in deciding cases of first impression,
Mr. Feess?
Judge Feess. Mr. Chairman, I think that the first question
that the judge should ask himself is, is it really first
impression, because lawyers are always trying to convince you
that they have got the new case, the different case, the case
of first impression. So I think the first job is to determine
is it truly a case of first impression.
If so, the next step is to find out whether or not there is
analogous precedent; is there something in another field or
related field, something similar that the court can go to. If
you are talking about a novel interpretation of a statute, of
course, you have to go to the words of the statute and try to
determine from the text what was contemplated in this unusual
situation, as you posit it.
But I think first determine is it truly novel; second, if
it is really novel, find analogous precedent and then try to
determine what--based upon recent Supreme Court jurisprudence
where the Supreme Court might go with it if they had the
question.
The Chairman. I presume most all of you would agree with
that. Anybody care to add anything to that?
[No response.]
[[Page 34]]
The Chairman. All right. Let's start with you, Ms.
Schreier. Please state in detail your best independent legal
judgment, irrespective of existing judicial precedent, on the
lawfulness under the Equal Protection Clause of the 14th
Amendment and Federal civil rights laws, of the use of race,
gender or national origin preferences in such areas as
employment decisions, hiring, promotion or layoffs, college
admission and scholarship awards, and the awarding of
government contracts. In other words, what would be your best
independent legal judgment?
Ms. Schreier. Mr. Chairman, under the Adarand decision, if
race were to be used in giving a preference in hiring decisions
or any other decisions, the court would have to apply a
standard of strict scrutiny to determine whether or not that
preference met a very narrow limit to address the reason for
using that racial preference.
Under that strict scrutiny standard, it would be a very
difficult standard to meet. It is a very high standard. And, in
addition to that, the remedy would have to be tailored to
address the reason why the preference was being used.
The Chairman. Okay. Does anybody differ with that answer?
[No response.]
The Chairman. Now, you have heard the questions asked of
the prior two panelists on capital punishment. Would any of you
have any difficulty personally or otherwise in enforcing
capital punishment?
Mr. Underhill.
Mr. Underhill. No, Your Honor--excuse me--
The Chairman. That is all right.
Mr. Underhill. No, Mr. Chairman, I would not.
The Chairman. Mr. Ward?
Mr. Ward. No, Mr. Chairman, I would not.
The Chairman. Ms. Schreier?
Ms. Schreier. No, Your Honor.
Mr. Pepper. No, Mr. Chairman, I would not.
Judge Feess. No, and, in fact, Mr. Chairman, I have
presided over death penalty cases in my current position.
The Chairman. Mr. Ellison?
Mr. Ellison. I would be able to preside over such a case,
Your Honor.
The Chairman. I would have difficulty enforcing the death
penalty. Even though I am for the death penalty, I would want
it used very sparingly. But the fact is it is the law and you
would be sworn to uphold that law and you are going to have to
do it.
Do you have any moral beliefs or legal beliefs which would
inhibit you from applying the law in that area, any of you?
Mr. Ellison. No.
Mr. Ward. No, sir.
The Chairman. Do you believe that 10-, 15-, or even 20-year
delays between conviction of a capital offender and execution
is too long? Do you believe that once Congress or a State
legislature has made the policy decision that capital
punishment is appropriate and that the Federal courts should
focus their resources on resolving capital cases fairly and
expeditiously--and I am talking about my own habeas corpus
reform that the Supreme Court has upheld-
[[Page 35]]
-do you believe that we should have 15- and 20-year delays in
enforcing capital punishment, Mr. Ward?
Mr. Ward. Well, I would follow the reforms that you
sponsored without question, Mr. Chairman, and I certainly think
that 15 or 20 years is too long.
The Chairman. Well, we found through the years that
innovative lawyers just bring up appeal after appeal after
appeal. And what we have done is we have provided for very
extensive appeals rights, both up through the State courts and
the Federal courts, but ultimately a finality to it that
literally stops it from being much more than 3 years.
Does anybody find any difficulty with that?
Mr. Ward. No, sir.
The Chairman. Doggone, there is no controversy in this
group at all.
[Laughter.]
The Chairman. It is starting to bother me just a wee bit
here. There are a lot of other questions that I have for you. I
think what I am going to do is submit Senator Thurmond's
questions and some of mine in writing.
[The questions of Senator Thurmond follow:]
[The questions of Senator Hatch follow:]
The Chairman. I have confidence that all six of you--that
each of you will make tremendous district court judges. I think
you are good selections. I am proud to preside over your
hearing, and I want to congratulate each of you and the
President for having picked you.
Now, I am going to keep the record open for additional
questions until the close of business on Friday, and I would
suggest that you immediately answer those questions because if
you don't, I can't put you on next week's markup. So we will
need those answers right back and I want to process you as
quickly as I can.
So I just want to congratulate each and every one of you
and the President himself. You are all outstanding people, and
we have had terrific Senators come and speak for you today and
I have been very impressed with the remarks that they have had
for each of you. So you ought to thank them because that plays
a very significant role in this process, believe it or not.
So with that, I think we will just recess until further
notice and we will try to put you all on next Thursday's
markup, the Thursday after tomorrow.
Thank you so much.
Mr. Ellison. Thank you, Mr. Chairman.
Judge Feess. Thank you, Mr. Chairman.
Mr. Ward. Thank you, Mr. Chairman.
[The questionnaires of Mr. Ellison, Judge Feess, Mr.
Pepper, Ms. Schreier, Mr. Underhill, and Mr. Ward follow:]
[Whereupon, at 5:16 p.m., the committee was adjourned.]