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Document 25 of 33.
Copyright 1999
Federal News Service,
Inc.
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JUNE
16, 1999, WEDNESDAY
SECTION:
CAPITOL HILL HEARING
LENGTH:
16811 words
HEADLINE:
HEARING OF THE
SENATE
JUDICIARY COMMITTEE
SUBJECT: CONFIRMATION HEARING
CHAIRED BY: SENATOR ORRIN HATCH
NOMINATION OF: MARSHA L. BERZON TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT OF CALIFORNIA ROBERT A. KATZMANN TO BE CIRCUIT JUDGE FOR THE SECOND CIRCUIT OF NEW YORK
KEITH P. ELLISON TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF TEXAS
GARY ALLEN FEESS TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
W. ALLEN PEPPER TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF MISSISSIPPI
KAREN E. SCHREIER TO BE DISTRICT JUDGE FOR THE DISTRICT OF SOUTH DAKOTA
STEFAN R. UNDERHILL TO BE DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT T. JOHN WARD TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS
226 DIRKSEN
SENATE
OFFICE BUILDING WASHINGTON, DC
BODY:
SEN. ORRIN HATCH (R-UT): We're just a minute early but I think we're start anyway. How's that?
Today, we're holding a judicial nomination's hearing for eight nominees. That's rather rare, two circuit court 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 three 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. I take it seriously and we'll 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 the 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 confidant that by the end of this session, the committee will have done a fair and even-handed job of evaluating and approving judicial nominees just as it has done in previous years. And 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'll take your seats here, we would appreciate it.
Excuse me, Senator Kennedy is here, we'd be glad to turn to him.
SEN. EDWARD KENNEDY (D-MA): Thank you, Mr. Chairman. I wanted to express my appreciation for scheduling the hearing and we look forward to our pending nominees. I'm particularly pleased at the nominations of Marsha Berzon and John Ward and Karen Schreier, among those we'll be reviewing today.
Ms. Berzon is an outstanding attorney with impressive record, she's written more than a hundred briefs and petitions in the Supreme Court -- argued several cases there. When she was first nominated last year, she received strong recommendations and had a bipartisan of supporters, including our former colleague, Senator Jim McClure. Fred Alvarez (sp) a commissioner on the Equal Employment Opportunity Commission and Assistant Secretary of Labor under President Reagan supports her. I hope we can move expeditiously on her nomination. It was first received in the committee in January 1998 and she's answered numerous questions on a wide range of topics during a previous hearing and in writing.
John Ward, over 30 years of legal experience, 20 years as a founding and managing partner of his own law firm. He's conducted 150 full trials in federal and state courts. He has extensive experience in civil jury trials and also as a country prosecutor.
Karen Schreier, distinguished United States Attorney for the District of South Dakota, confirmed to that position by the Senate and she has served for six years representing the United States as both plaintiff and defendant in federal court in South Dakota. She manages the US Attorney's Office, supervises a staff of over 20 federal prosecutors. She's also assisted Congress on numerous occasions, testifying House and Senate Hearings on important issues involving juvenile crime.
We know the magnitude of the task before us. Currently 65 vacant judgeships in the federal judiciary, 12 additional vacancies are likely to open up in the coming months as 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's been vacant since November 1994, four and a half years, inexcusably long by any standards.
So, I want to commend you, Mr. Chairman, for having the hearing, look forward to working with you so we deal effectively with the backlog and meet our constitutional responsibilities in the confirmation process. I thank the chair.
SEN. HATCH: Well, thank you, Senator Kennedy.
I think we'll turn to the distinguished majority leader first and then Senator Cochran. Ad then if I could I'll turn to the distinguished senator from New York and try and do this if I can on a seniority basis. When Senator Daschle arrives we'll 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'll show that kind of deference. So, Senator Lott, we're happy to hear from you.
SEN. TRENT LOTT (R-MS): Well, thank you, Mr. Chairman, Senator Kennedy, Senator Leahy, and my colleagues here on this panel. I was just noting to Senator Lieberman and Senator Dodd --
SEN. HATCH: Senator Lott, if I could interrupt, the ranking member's here and he wants to make a statement.
SEN. PATRICK J. LEAHY (D-VT): No, no, no -- I'm just so excited to be at the first confirmation hearing this year.
(Laughter.)
SEN. HATCH I wish I had --
SEN. LEAHY: The longest the Senate's ever gone in history, at least in the 25 years I've been here. I'm so excited, I really wanted to be here and see this. I'll put my statement in -- I will give a statement later. I don't want to hold up this distinguished panel, all of whom are good friends.
SEN. 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's no telling what we could get done.
(Laughter.)
Right here at this table, but I appreciate my distinguished --
SEN. HATCH: It's a good bunch to do it with.
SEN. LOTT: -- senior colleague from Mississippi for allowing me to go ahead and get started.
It's a great honor for me today to be here and introducing to the committee, the President's nominee to the US 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, Louann Koser (sp) and her husband. I don't know what your protocol is here but I'm very proud of this family. And I'd like to ask them if they would to just stand, be recognized. Here they are right here. Thank you very much.
They may not look like much, but the ladies compensate for it.
(Laughter.)
Let me just say, I'd ask, Mr. Chairman, that my statement be put in the record also.
SEN. HATCH: Without objection we'll do that.
SEN. LOTT: I've 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'm sure, one that was better than the Singing Senators that we now sing with. He became my roommate for three years at the University of Mississippi. I have known him then and over the years to be one of the most honorable men I've ever met in my life. That's the life he lived even in the college days and that's one he continues to live in an exemplary way in Cleveland, Mississippi.
He had quite a distinguished career after he graduated. He did go off and serve two years in the 101st Airborne in the Army. He returned and got his law degree from the University of Mississippi Law School. He's had a very active practice. In fact he calls me quite regularly and says, well, I'm representing another one of your criminal relatives and 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's one of those sole practitioners that you don't have a lot of any more, in a small town and president of the Mississippi Trial Lawyers Association, but he worked with the Bar Association as a whole and served in a number of positions there. He was actually nominated to be president of the Bar Association. He was a director of the Young Lawyers Group, president of the Mississippi Bar Foundation. He was the 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 election's 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 civil activities from Lion's Club to Junior Auxiliary activities. But he is the kind of person that we need to have, serve on the bench. He's had a diversity of practice. He's 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 my closest friend, probably I've had in my life, I'm very proud that President Clinton has selected him as his nominee for this vacancy on the US Court in North Mississippi.
And thank you for allowing me to be here with my colleague, --
SEN. HATCH: Thank you Mr. Leader --
SEN. LOTT: -- Senator Cochran.
SEN. HATCH: And certainly Senator Cochran has very high praise for Mr. Pepper and we really appreciate having your testimony here today.
Senator Cochran.
SEN. THAD COCHRAN (R-MS): Mr. Chairman, it's a pleasure to join my colleague in presenting and recommending to this committee, Allen Pepper to be a United States District Judge. He's very well qualified. As a lawyer he has earned the highest rating that Martin, Dale, Hubbell (sp) gives a practicing attorney. He's 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's been chairman of the Lamar Order of the Mississippi, University of Mississippi Law Alumni Association, one of the most prestigious positions in our state.
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 hometown of Cleveland, Mississippi. He has served in positions of responsibility as director of a leading bank in Cleveland. He's headed up charitable fundraising activities. He's looked to for leadership in a number of important activities in education locally and in local political life of his community. He's been a leader and an influence for good and stable government in that part of our state. So, it's a pleasure for me to recommend him. I can't match the close relationship that my colleague has had. I'm glad that Allen has overcome those early relationships that he had --
(Laughter.) -- at the University of Mississippi. 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 Louann 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's 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.
SEN. HATCH: Thank you, Senator Cochran. We'll be happy -- you both have things to do, we'll be happy to release you at this time. But we'll certainly move ahead with this nominee.
SEN. LEAHY: I can't ask him a whole lot of questions?
SEN. HATCH: No, no.
(Laughter.)
SEN. LEAHY: I wanted to be asked about the Rule and Shellys Case (ph), while we were in here.
(Laughter.)
I said the rule against perpetuity, wasn't it?
(Laughter.)
SEN. LOTT: Let me just say, too, one final point I left out while ago. I've 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 selected with universal approval. And I have a feeling that he would make an excellent judge. So, I just wanted to add that one other additional point.
SEN. HATCH: Thank you, Mr. Leader.
SEN. THURMOND: You both favor it?
SEN. LOTT: Yes, sir.
SEN. THURMOND: We can't turn him down then.
SEN. LOTT: Thank you, supreme commander.
SEN. HATCH: I think that sums it up.
SEN. LEAHY: Don't argue with that, Trent.
SEN. HATCH: We're proud to have both of you here speaking. We'll turn to Senator Moynihan and then Senator Schumer and then we'll turn to Senator Dodd after that.
SEN. DANIEL PATRICK MOYNIHAN (D-AR): 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. Katzman, the Walsh professor of government and professor of law at Georgetown University. He comes to you as the nominee for the Second Court of -- Second Circuit Court of Appeals. Upon his nomination, I stated that Robert Katzman's 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 Suma Cum Laude from Columbia, took his Masters in 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 US Court of Appeals for the First Circuit, he joined the Brookings Institute and has been there at Georgetown since. He authored many books. A citation from the University of Oregon captures the spirit of his work.
He has committed himself to interdisciplinary research that is often applied rather than pure academic scholarship. That work speaks 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 decade is the Federal Judicial Center asked him to bring to fruition on a project on managing appeals in federal court. The result was managing appeals in federal court, 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 US Court of Appeals for the Ninth Circuit described this book as a most timely and insightful, indeed must reading.
I believe, sir you will recall that more than a year ago, we met with you and your staff to discuss one of his projects, an effort whereby opinions identified, court opinions identified perceived problems and statutes are sent from the Courts of Appeal to Congress for its review. This project holds the promise of enhancing mutual understanding of how the judiciary interprets its 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.
SEN. HATCH: Thank you, Senator Moynihan. I appreciate the high praise that you've given.
Senator Schumer, on this candidate nominee?
SEN. CHARLES E. SCHUMER (D-NY): 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 Katzman as well as Marshal Berzon.
I can hardly hope to match the eloquence of my colleague or the early edition from New York 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 Katzman and I look forward to working with you, Mr. Chairman, to bring Dr. Katzman's nomination to the floor and for his eventual confirmation.
Dr. Katzman'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. Katzman. Although in all modest he left out my favorite, which was his recent book entitled, Daniel Patrick Moynihan, the Intellectual in Public Life.
(Laughter.)
I'd also like to join Senator Feinstein and Moynihan in reintroducing you to Marsha Seagal (sp) 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 knew pretty well, Brooklyn, New York, my hometown. 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 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 --
SEN. HATCH: Don't make it rougher than it is -- okay?
(Laughter.) SEN. SCHUMER: In the interest of time, I'll say no more except to thank you, Mr. Chairman, for the opportunity to testify at this hearing.
SEN. HATCH: Thank you. Thank you, Senator Schumer.
SEN. MOYNIHAN: Mr. Chairman, may I say, I last year introduced Ms. Berzon to the court, to the committee and Judge, Senator Feinstein will add a statement I have made at the conclusion at her statement.
SEN. HATCH: Thank you. And we recognize your strong support. And this has been good praise for your nominee Mr. Katzman and Ms. Berzon. We appreciate it.
We'd be glad to release you from the table. We appreciate your taking time from your busy schedules to be here.
Senator Dodd.
SEN. CHRISTOPHER J. DODD (D-CT): Thank you very much, Mr. Chairman.
SEN. HATCH: Senator Lieberman and then I think we'll go to Senator Feinstein, and Senator Boxer and then we'll come wind up with you.
SEN. 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's a very distinct pleasure to join my colleague, Senator Lieberman in 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've never been more impressed, Mr. Chairman, with a personal and 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 Carrie and maybe they'd stand up as well and be recognized. That's appropriate, Mr. Chairman, the Underhills.
SEN. HATCH: We welcome you all.
SEN. DODD: You may not see Carrie. She's four years old and so she might -- there she is. She's sleeping. All right. She's recording history by dozing through all of this.
SEN. LEAHY: You've got some grandfathers up here. We see her cherub face.
SEN. 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 as 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'm sure that it's not, without some appeal to you as well, I would note.
(Laughter.)
SEN. HATCH: I'm sure it would be very unappealing to many others.
SEN. 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 on 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. 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 seven 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 road scholar, a graduate of the University of Virginia. He clerked for one of the nation's outstanding Appellate Court judges, John Newman (sp) 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 Dayberry and Howard (sp).
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 obtain. Far more importantly, or as importantly, Mr. Chairman, he is committed to his community and devoted to his family. He's, simply put, a very good and decent man. He provides legal guidance to local non-profit childcare organizations. He sits on the board of directors of the Connecticut Legal Services Corporation; he's a Cub Master of the local Cub Scout Pack in his community. Colleagues and friends describe him and I quote, "as 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 four-year-old daughter, Carrie, who you just met, who's dozing in the back here, was in line with her mother at the post office in Connecticut. She tugged on the skirt of strange woman standing next to them and asked the woman, do you think my daddy should be a judge.
(Laughter.)
For four-year-old Carrie, I believe, the answer to that question, yes and I hope that the committee will agree with you as well, in their consideration of this fine nominee.
Thank you, Mr. Chairman.
SEN. HATCH: Thank you, Senator Dodd.
Senator Lieberman, we turn to you.
SEN. JOSEPH LIEBERMAN (D-CT): Thank you. Thank you, Lord Hatch.
(Laughter.)
SEN. LEAHY: Joe, don't do that. It's hard enough living with him on this committee, as it is. I mean don't make it any worse.
It took him a long time to receive that recognition is all I can say, or Chancellor Hatch.
SEN. 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'm very proud to be joining with Senator Dodd in introducing Stefan Underhill to you as a nominee for the US 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's under no obligation to answer committee's questions about Senator Lott's conduct while at Ole' Miss. That's off limits.
But as far -- the closest I get to this same relationship is that Mr. Underhill and I were privileged to go to the same law school. But it ends about there. We were 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 Pristine Prize Argument (ph). And as Senator Dodd has indicated, has just a first- rate record clerking for Judge Newman, being one of our state's premier litigators at one of our state's premier law firms. An outstanding lawyer, a person of genuine judicial temperament, a great citizen of this state and in every regard, I think this is a superb nominee. And I guess I'd add that I was particularly struck that he listed on his CB the fact that he is Cub Master of Pack Number 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.)
I am very honored to join in Senator Dodd's support of this nominee and thank you for scheduling him today.
SEN. HATCH: Well, thank you very much, Senator Lieberman. We appreciate both you Connecticut senators being here. Okay. We're going to hold you to last, if that's all right. You have two nominees and we'll turn to Senator Feinstein next and then Senator Boxer.
SEN. DIANNE FEINSTEIN (D-CA): 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 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 two 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 question I've ever heard at one of those hearings had been asked of Ms. 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.
(Laughter.)
She went west, where the major portion of her career began to unfold in California. And she is a highly skilled attorney. She's appeared numerous times before the United States Circuit Court, District Court, and every level of California State Courts.
She's 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 Bolt Hall, the University of California. She was Order of the Coutz (ph) (?), and she was articles editor for the California Law Review.
Prior to entering private practice, she clerked for United State Courts of Appeals Judge James Browning and for United States Supreme Court Justice William J. Brennan. She's practiced law with the San Francisco Law Firm of Ball, Schuller, Berzon, Nisbaum, and Rueben (ph), since 1978. She's 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 Administer of the EPA William Ruckelshouse (ph) says, and I quote, "her intelligence and genuine good judgement allow her to transcend partisanship. She would make an excellent addition to the 9th Circuit Court of Appeals", (end quote).
Jay Dennis McQuaid (ph), an active Republican, and partner at the San Francisco Law Firm of McQuaid, McQuaid, Metzler, McCormick, and Vanzant 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", (end quote).
The National Association of Police Organizations state, (quote), "Ms. 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", (end quote).
Mr. Chairman, I strongly support Marsha Berzon's candidacy, and I'm very pleased to be here today to help with my colleague, Senator Boxer and others, introduce her to you. And if I might also, on behalf of Senator Moynihan, submit a statement to the record.
SEN. HATCH: Without objection, we'll place the statement in the record.
SEN. FEINSTEIN: Now, Mr. Chairman, I'd also like to just quickly introduce Judge Gary Feess, who with his wife, is sitting directly behind me, and with their two children, David and Tim.
Judge Feess is a 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 in government service. He's earned distinction as a litigator, an interim US 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 Couts. And in private practice, he joined the US Attorney's Office, where he quickly rose up to 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 US Attorney. He returned to the private sector as a litigation partner for Jones, Day, Revus, and Pogue (ph), and later Quinn, Emanuel, Eraquart and Oliver (ph). 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 counsel 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's received a flood of endorsements from the Los Angeles District Attorney, former US Attorney Robert Bonner, Lane R. Philips, former US 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.
SEN. HATCH: Thank you so much, Senator Feinstein. I noticed 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 noticed, I think, Tim was here. Maybe we should move on your judgement at this time.
SEN. THOMAS A. DASCHLE (D-SD): Well, Mr. Chairman, I thank you very much for your indulgence and that of my colleagues. I'll 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 Schrerer and her husband Tim Doherty are both here, and I'd like them to stand, if I could.
I have known both of their families for a long, long time. I've 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 US Attorney is the state of South Dakota now for about six 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 US 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 additional 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.
SEN. HATCH: Thank you, Senator. That's high praise. I think all of the nominees have been very well praised here today by excellent senators, and so we're grateful to have you here.
We'll be glad to excuse you at this time because I know how busy you are.
SEN. DASCHLE: Thank you.
SEN. HATCH: Tim, if we could go to Senator Boxer first, since we can finish those two judges, and then we'll come back to you. And then we're going to wind up with Senator Hutchison.
SEN. BARBARA BOXER (D-CA): 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.
SEN. HATCH: Without objection.
SEN. BOXER: And I will summarize.
First, I want to associate myself with the comments of Senator Feinstein, as it pertains to Judge Feess. I'm 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're here for a purpose. And that is to convince you of the value of our nominees.
I've been asked by Marsha Berzon to say a few words about her. And rather than going through my statement, I thought I'd just pick out some highlights and first ask if Marsha would stand. She is here with Steven, her husband, Steven, and their daughter, Ally, 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's important that we show the broad support that Marsha brings.
Well, let me start off with Senator Specter, a long standing member of this committee, who wrote that he was impressed with Ms. Berzon's, quote, "intellect, accomplishments, and the respect she's earned from labor lawyers representing both management and unions", (end quote), and I thank Senator Specter for those comments.
Former Republican Senator James McClure wrote, (quote), "what becomes clear is that Ms. Berzon's intellect, experience, and unquestioned integrity have led to strong bipartisan support for her appointment", (end quote).
And Dennis McQuaid, who was mentioned by Senator Feinstein, I wanted to show 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. Usury (ph), former Republican Secretary of Labor said of Marsha, quote, "she has all the qualifications needed, as well as the honesty, integrity, that we need and deserve in the court system. I know she'll be dedicated to the principles of fairness and impartiality", (end quote).
Charles Curtis, who opposed Marsha in a case, United Auto Workers versus Johnson Controls, he's her opposing lawyer, who said, (quote), "all who have worked with or against her know she's fair, reasonable, respectful toward opposing views", (end quote).
And finally, corporate secretary for Chevron, Lydia Beady (ph) has written that, Marsha, quote, "has a reputation of being a brilliant attorney and of imposing an extremely high intellectual standard to whatever she does", (end quote). She has the support of many in employment and labor law community, both on plaintiff and on management side.
So, with that, Mr. Chairman, I hope you'll look kindly on these two people. They are good people. They are strong people. They will make great judges.
Thank you very much.
SEN. HATCH: Thank you, Senator Boxer.
Senator Johnson, if you could finish up on your testimony, we'll --
SEN. JOHNSON: Why, 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 Schrerer and her husband Tim.
Karen has been a friend and colleague for many, many years. She was born in Sioux Falls, South Dakota, educated at Saint Louis University and Saint 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 and associate and partner in Hagen, Wilken, Schroyer, and Archer (ph) Law Firm in Sioux Falls, South Dakota. Then moved on to becoming US 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 amphetamine problems and drug problems we have in the state of South Dakota. She has been an aggressive US 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 US 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.
SEN. HATCH: Thank you, Senator Johnson. We're happy to excuse you. We appreciate the good comments you made.
Senator Hutchison, I'm sorry that you've had to be the last one here. We know that you have two nominees, and I would like to mention that Congressman Ralph Hall and Max Sandlin have been here in the past, and I was hoping they could get back. That's one reason why we delayed 'til now, but they have been here in support of these two Texas nominees.
So, we'll turn to you at this point, and if the two congressmen come, I'll certainly introduce them.
SEN. KAY BAILEY HUTCHISON (R-TX): 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'd like to ask them to stand.
SEN. HATCH: We're happy to welcome you all to the committee. I apologize. If you see the two congressman, I apologize. I should have introduced them before, but I thought they would be here, and apparently they had a vote, and I apologize to them.
SEN. HUTCHISON: I'll mention to them that you did recognize them. John is a native of Bonhomie, Texas, and he practices in Long View with the Austin Law Firm of Brown, McCarroll, and Oakes Heartline. He's a graduate of Texas Tech University and Balor 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 Fifth Circuit Barr 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're looking at the Southern district bench there. Mr. Ellison is a graduate of Harvard University, where he was a Phi Beta Kappa and graduated Suma 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 Blackman and Judge Kelly Wright of the US Court of Appeals in the DC Circuit.
He has also been 20 years in civil litigation. He was a partner in Baker-Botts (ph) 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 Graham 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's a pretty common sense approach, too. And I can't think of anyone more qualified and intellectually qualified for the bench than Keith Ellison. Keith is here with his wife Kathleen, and I'd like to ask them to stand, as well.
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 Graham recommends them. They've 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.
SEN. HATCH: Thank you, Senator Hutchison. That's high praise indeed, and we appreciate your taking the time to be here. I'm sorry we had you be last -- fine.
If I could have all the judgeship nominees stand and be sworn, we'll swear you all in. If you could stand, raise your right hands. Do we have all of you up there? Okay.
(Swearing In.)
SEN. HATCH: Thank you very much.
I think what we'll do -- I think we'll start with the two circuit nominees, Marsha L. Berzon and Robert A. Katzman, and then we'll go to the district court nominees in the second panel, in the third panel rather.
SEN. LEAHY: Mr. Chairman, an appropriate point. I have two statements from Senator Feingold I want placed in the record.
SEN. HATCH: Without objection, we'll place them in the record. Please, take your seat.
SEN. LEAHY: And Mr. Chairman, while I did not give an opening statement, I did put down the statement in the record. I do want to point out again on the hearings we should not compare this 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 with new attorney general, took four hearings over three months.
We had six days of hearings in May and June. Another topic, Justice Department nominations and a Supreme Court nomination. This year we have not had an executive branch nominations. And the average time for a set of action on the judges' confirm was about 200 days.
SEN. HATCH: Let' be glad we're having that hearing now.
SEN. LEAHY: I am delighted, and I complement you on that. I really do, and I mean that most sincerely.
(Gavel.)
SEN. HATCH: We're happy to welcome both of you here. We hope you'll introduce your family members or friends that you have with you. And if you have any statements you'd care to make, we'd start with you Mr. Berzon and then with you, Mr. Katzman.
MS. MARSHA L. BERZON: I do not have a 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, who are here from New York. My mother was not able to join us last year at the hearing. I'm very pleased that she's here this year. And also, my sister Mary Berzon, who is from Virginia, my brother Arthur Steagall, who is an accountant in New York, and my long-term time, law partner and friend, Fred Alterio (ph), who is here as well.
Finally, I'd like to say that my sister, Beth Steagall from Massachusetts, was not able to be here today. And my mother in law, Ethel Spitzland from Boca Raton, Florida, was also not able to be here today because of her health.
SEN. HATCH: Well, we're happy to welcome your family, and your friends, and relatives here. And we're grateful that we finally have you here for this second hearing, really. And we're 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.
SEN. HATCH: Okay. Mr. Katzman, we'll turn to you. Introduce your family and friends or whoever you have with you.
MR. ROBERT A. KATZMAN: Mr. Chairman, I'd like to thank you for your great courtesy and the courtesy of your staff over these past several month, and also Senator Leahy.
I'd like to introduce my parents, John and Sylvia Katzman, my brothers Gary Katzman, who is a career -- my identical twin brother Gary Katzman, who is a career prosecutor in the US Attorney's Office. My brother Martin Katzman and my many friends, who are here as well. My sister, unfortunately Susan could not make it and her family as well.
Finally, I'd like to say a special word of thanks to Senator Schumer and Senator Moynihan for their very generous introductory remarks. Nearly a quarter a century ago Professor Moynihan prepared me for my general 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'm so grateful to him and to Liz Moynihan and to Michael Patrick for coming here today, they are really friends for hard winter.
Thank you.
SEN. HATCH: We're happy to welcome to your family and of course we're very proud of Senator Moynihan ourselves. He's been a great Senator, he came to the Senate the same time I did and so we've been good friends all through these years. We're happy to have both of you here. Now, we have a role call vote, so I hope that some will go vote now and then come back and so you can ask questions.
SEN. SESSIONS: Mr. Chairman I do have -- I'm supposed to preside at four, 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 would understand.
SEN. HATCH: I'll be happy to yield my time too Senator and we'll let you take the time and then if other people will go vote and then come right back and then Senator Leahy and I can go.
Go ahead Senator.
SEN. SESSIONS: Thank you, Mr. Chairman.
And I did -- I thank both of these 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 a -- 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've 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 an evaluating 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.
So anything I would -- the questions I make maybe in a different circumstance at a different time I wouldn't be as persnickety about it. But I think it's important and I don't intend to support nominees unless I really believe that is has a possibility of improving that court. I remember I asked you about Justice Brennan's (ph) decision on the unconstitutionality of the death penalty, he believed that the death penalty was unconstitutional. And I asked you -- told you that I thought that that was unfounded because there are multiple references to the death penalty and capital crimes in that 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'd 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 to 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 Greg versus Georgia many references in the Constitution which indicate that the framers certainly understood that there would be capital punishment under the Constitution.
SEN. 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?
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 in this question has been quite clear about its conclusion that death penalty is constitutional and I will of course and faithfully and completely apply that conclusion.
SEN. SESSIONS: Do you personally -- how would 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 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 tend to take a more literal view to statutes and to constitutional provisions than he does. It makes me more comfortable, it's the way I tend to think.
SEN. HATCH: Could I interrupt for just a second? I notice that our two Congressman from Texas are here in support of the two Texas nominees and we just want to recognize both of you. Congressman Hall, you've been a friend for a long time and we're really glad t o have you here and also you Congressman Sandlin, we're very appreciative that you'd come over and lend support to these two Texas nominees. I apologize for not introducing you at first, I should have done that but I -- that's what I figured you went to vote and I certainly wanted to -- I did -- I recognized you in absentia, we'll put it that way. But we're happy to have you back.
Go ahead Senator, I'm sorry.
SEN. SESSIONS: All right. And briefly, I'd asked you previously about -- I'll follow it up in writing with a question I raised at our initial hearing and to refresh your recollection you responded in August of '88 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 Michelle A.G versus Nancy S.K.? In that case the ACLU's argument that a homosexual partner who is neither an adoptive or biological parent could be deemed a quote "parent in fact" and that was rejected by the California -- ACLU did take that position and it was rejected by the California Court of Appeals. And um, I was concerned 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 quote "had no recollection of this case until asked about it in connection with the hearing." Then you later in your note written answer said you quote "checked with the ACLUNC", Northern California and learned that you were quote "not present at the meeting at which the case was considered", even though you were chair of that legal committee that approved the filing.
And then next you've stated that you quote "learned on inquiry" close quote that a close vote by the board as to whether or not to file that had occurred had been proposed by the staff, but that you quote " 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 quote "there is a dispute in the legal committee", which you chaired, or if someone specifically asks for a vote. In fact you written answers indicate that it was a close vote by the over 30 member staff. Given the controversial nature of that case and is evidence by the fact that the board you chaired was closely divided over the issue and the fact that the votes appear to be of this kind, appear to be an exception rather than a 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 had you been able to recall any position you took? And can you tell us more about your participation in that?
MS. BERZON: The case -- and just to clarify for some of the others 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 report of the opinion and I want to make clear that I have never seen the briefs that the ACLU filed in this case. I don't ordinarily see them or I would not have ordinarily seen them and in this particularly case it was under seal so I could 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 are 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 they could've been -- one could have been a grandparent who was rearing the child or a step parent who was rearing the child or a foster who had been with the child for a long time. And the issue was one of whether people of that kind who the child would be severed from had 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 under the circumstance like that I probably would have sustained. And the reason I suspect that is that I tend in my participation on the ACLU to be most interested in issues -- 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. Um, 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.
SEN. SESSIONS: So you don't remember how you voted on that? Ms. Berzon?
SEN. HATCH: I'm sorry Senator your time's up.
Now Senator Leahy would like to just ask a question or two before we go over to vote.
SEN. LEAHY: Ms. Berzon you are familiar with the doctrine of stare decises (ph) I'm sure?
MS. BERZON: I certainly am.
SEN. LEAHY: And do you accept that doctrine?
MS. BERZON: I absolutely do.
SEN. 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.
SEN. LEAHY: And you would give great wait to prior decisions of your circuit?
MS. BERZON: I will definitely do that.
SEN. LEAHY: So it's 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.
SEN. LEAHY: But you as a judge are not bound in any way by past decisions of any organization whether it's 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 relative 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.
SEN. LEAHY: Looking at your background I would not have expected any different answer, I'm extremely impressed with your background and I hope that you will soon be sitting on that court.
Thank you.
SEN. HATCH: Thank you, Senator.
We're going to have to go vote. As soon as Senator Smith gets back he'll ask some further questions. But we'll recess until he gets back or until another Senator gets here and proceed as soon as I can get back okay.
(In recess.)
SEN. HATCH: I would hope that you would answer any and all written questions as quickly as possible. And we'll keep the record open to have written questions to the judgeship nominees 'til Friday, the end of business on Friday, if that's all right.
Now, Senator Smith, would you like to ask some questions or would you like me to go ahead?
SEN. SMITH: Go ahead, Mr. Chairman, I'll be ready in a minute. Why don't you go ahead.
SEN. HATCH: Thank you. Okay.
Now, you've heard the questions, Mr. Katzman, of Senator Sessions. Do you have anything to say about those particular questions?
MR. KATZMAN: No, I don't.
SEN. HATCH: Okay. How would you answer them?
MR. KATZMAN: The questions that were asked were, in a sense most of the questions seemed to be particular to various cases.
SEN. HATCH: Right. It involved California. So, you really don't have anything to say about that.
MR. KATZMAN: Right.
SEN. HATCH: Okay. Let me ask you, Ms. Berzon, you certainly have an extensive record in the area of labor laws -- something I take a great deal of interest in, as well -- representing various labor organizations in 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.
And, 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 union?
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 work with an open mind at the statutes at hand, at the precedents that are relevant at any constitutional provisions that are permitting, and so on.
SEN. HATCH: Then you will abide by the precedents as established by the Supreme Court.
MS. BERZON: I'm sorry?
SEN. HATCH: You will abide by the precedents as established.
MS. BERZON: I absolutely will.
SEN. HATCH: Okay, and I presume you will, too, Mr. Katzman.
MR. KATZMAN: Absolutely.
SEN. HATCH: Now, Ms. Berzon, in correspondence to this committee last July, you identified Hoe versus San Francisco Unified School District. That's a recent Ninth Circuit Court case. It's one in which the ACLU of Northern California participated while you were a board member.
Now, I've looked at the Amicus Brief the ACLU of Northern California filed in that case and was interested to note that the principle argument advanced in that brief is that the court, quote, "should apply intermediate scrutiny", unquote, not strict scrutiny, as the appropriate level of review in 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'm at something of a disadvantage because I've 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 contentiouque (ph) that was confirmed by the court and therefore served as judicial finding, but I'm not sure it's relevant to the issue, that were addressed in the Amicus Brief.
I know, as you do, Mr. Chairman, that the Supreme Court in Aderan versus Penya (ph) held that racial classification are subject to the strictest of scrutiny, meaning that there has to be a compelling interest and that there has to be 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 and a question. And actually, I know only from the newspapers that the case was held before a 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 a legal committee. I did have a chance to check that much.
SEN. HATCH: Did I interrupt you?
MS. BERZON: I'm sorry?
SEN. HATCH: I thought I had interrupted you.
MS. BERZON: Okay.
SEN. HATCH: Well, you'd mention the Aderan versus Penya (ph) case. Do you agree that the quota at issue in this matter should have been tested under only an intermediate scrutiny, rather than a 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 Aderan, and I would have no problem in applying that standard at all.
SEN. HATCH: As I understand it, that it was the subject of only intermediate scrutiny, not strict scrutiny.
MS. BERZON: I'm sorry.
SEN. HATCH: 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.
SEN. HATCH: So, you would be for strict scrutiny.
MS. BERZON: I was fully comfortable with Judge Neuman's opinion in Ninth Circuit.
SEN. HATCH: Now, Mr. Katzman, when the founding fathers believed that the separation of powers in a government was critical to protecting the liberty to people. Thus, they separated the legislative, executive, and judicial branches into three different supposedly co-equal branches of government.
The legislative power was given the power to balance the 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 a balance struck by Congress or the people or to rebalance the competing moral, economic, and political considerations?
MR. KATZMAN: I firmly believe that it is the role of the judge to accept the balance struck by the Congress and the people, and is inappropriate for a judge to reorient the calculate.
SEN. HATCH: The making of law to me is a very serious matter. To make a 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 the statute.
Now, 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 provisions of the status of binding law. Words, theories, and principles then or 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 judicial opinion varies from the text and the original intent of the statute or constitutional provision, the less legitimacy it has?
MR. KATZMAN: 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 the judge inserts his or her own views about what a statute should mean by moving away from the words of the statute.
SEN. HATCH: 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?
We'll 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 those 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. KATZMAN: I think that, 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. And 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 the Congress has made.
So, I believe that only in the rarest of circumstances would it be appropriate to declare an act of Congress unconstitutional. There would have to be clearly a very compelling reason to do so. That would have the presumption, an act of Congress has the presumption of constitutionality.
SEN. HATCH: Thank you, --
Senator Smith, go ahead.
SEN. 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.
SEN. SMITH: I'm sorry, Senator Sessions question --
MS. BERZON: Yes, Senator Session did ask me that. And yes, I agreed with him that --
SEN. SMITH: Is that your view, as well, Mr. Katzman?
MR. KATZMAN: Yes, the Supreme Court has firmly spoken on that issue. They can note of a number of clauses in the Constitution, which suggests that there is room for capital punishment.
SEN. SMITH: What about, 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 a valid case?
MS. BERZON: I do not.
MR. KATZMAN: Neither do I.
SEN. 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.
SEN. SMITH: Even if you viewed the decision to be wrong?
MS. BERZON: Yes, even if I'd view the decision to be wrong. With the minor caveat there in the Ninth Circuit, there are times when there are doubts 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.
SEN. SMITH: Is that your view, as well, Mr. Katzman?
MR. KATZMAN: Yes, I think that if you don't follow precedent, you are inviting judicial activism, which I would deplore.
SEN. 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 came down, Judge Tawny 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'd like me to begin. That's 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 and constitutional than in 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 the Congress and the people altered the Constitution, but that is relatively rare. So, there is slightly more room in the constitutional case, but again, as a Ninth Circuit judge, it would be quite rare because that prerogative is primarily that of the Supreme Court.
SEN. SMITH: Same question, Mr. Katzman.
MR. KATZMAN: I would emphasize, too, that in terms of the position, which I'm being considered as an appellate judge, I'm bound to follow precedent. The issue as to what I would do if I were a Supreme Court Justice is not something that I've 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 precedence 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 had a reversal of Plessy versus Ferguson.
SEN. SMITH: That was my next question.
MR. KATZMAN: -- 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 precedence.
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.
SEN. SMITH: Do you have the same view on Plessy versus 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.
SEN. 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 that the record is straight.
You both gave me a qualifier on judicial precedent on both Plessy versus Ferguson, which was overturning segregated schools and Dred Scott, which was not allowing a black man, who was considered property, to sue in federal courts. So, you did give two qualifiers. So, I don't want to misrepresent what you said. That's the way I read what you said.
So, now I'm going to get you to the least controversial of all the questions I've asked so far. But that's 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 Rowe versus Wade, what is your view on Rowe versus Wade? Each of you.
MS. BERZON: The Supreme Court, as you know, spoke to that precedent in Casey versus Planned Parenthood, both with respect to it's continuation of precedent and with respect to the foresight standard that is applicable under Rowe versus Wade, as modified by Casey.
Casey fully explored the stari decises (ph) considerations. And again, as a circuit court judge, I am bound by Casey in that regard. And Casey held that bouncing a state's concern for fetal life beginning at conception, against women's constitutional right, that the applicable standards, 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 safely, and I would have no opportunity really to consider whether it should be changed. AND I would not do so.
MR. KATZMAN: As an appellate judge, I'm bound to follow the precedent of the Supreme Court. Casey in, in a sense, the defining case as it modified Rowe versus 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.
SEN. 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 has changed, I will follow that standard. And my personal views in this area, as in any other, will have absolutely no effect.
MR. KATZMAN: 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. And 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.
SEN. SMITH: Well, and I want to say to both of you that I appreciate the fact that you're 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'm not in favor of judicial activism. I think that judges and justices should support the Constitution pretty much in a constructionist way as is written. The difficulty for me and I think for many on Rowe 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's no mention of abortion in the Constitution. There is mention of life and the protection of life. But it's not -- there is no mention of abortion.
And so I think what we have here is an opportunity to say that a life could be taken at any stage, although it's not frequently done in the third stage there is no restriction on that. And that's the reason I'm asking the question, does the unborn child have the right to life at any point during the nine months of pregnancy and if so, at what point? And I think that's 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's the question that I'd 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 what the Supreme Court rule in Casey (?), which is the case that I would be constrained to apply if I'm 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 that result of balancing those competing rights the Supreme Court has instructed us is that the right to abortion is upheld 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 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. KATZMAN: 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. The one is bound to follow the precedent of the Casey and I think that in a sense if I might say that when they're nominees to the Supreme Court that is where one can really change if one wants to and influence the direction of policy because at the appellate level you're supposed to follow the precedent regardless of how one personally would come out on a particular issue. I know that's an answer of judicial restraint but I firmly believe it.
SEN. SMITH: Well let me move it all the way to the end to the most dramatic of all abortions, which is so-called
partial birth abortion.
There is a possibility although not likely, that 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
banned as we now know it, the bill that has been passed it has not become law. Is that in your view constitutional or unconstitutional as you interpret the Constitution?
Mr. Katzman why don't start now?
MR. KATZMAN: I would say that that is an issue that -- Senator that's a very important issue um, and that um, as a judge I would really have to evaluate that issue in the context of a law that's 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 passage 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 very 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 abortions statutes that have been held unconstitutional but apparently for reasons having to do with a particular scheme at hand. Again the statical (?) would be whether there was an undo burden on the right to abortion taking into account the states interest in life from the time of conception and that's 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 in which I or Mr. Katzman could be sitting.
SEN. SMITH: Your term competing interest though is an interesting one because you're viewing the term competing interest 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'm simply repeating the standard that the Supreme Court has articulated and it's not my standard.
SEN. SMITH: But we indicated twice now on 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'm not looking to argue I've 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 that segregation was in a horrible situation as was the situation of determining that a black person was property and therefore had no legal right suing Supreme Court.
Those were both dramatic departures from the norm for what's 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 in an innocent unborn child. Thirty-five million of which, thirty-five million of which have been lost since the Rowe v. Wade decision in 1973. They'll never have a chance to be a judge, they don't have the chance to be a mother or a father. Because of the 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's wrong. Is that correct? I mean, I haven't heard anybody say that yet. So, thirty-five 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 thirteen, fourteen, fifteenth amendments, we may still have slaves in this country who would never be able to sue and we very well may have segregation in this country.
SEN. HATCH: Senator if I could --
SEN. SMITH: And I think -- last point Mr. Chairman, you've been very patient. And I think in this particular case I would add abortion to that list and I would say that thirty-five 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.
SEN. HATCH: Well, senator, if I could interrupt. You've had some very appropriate and good questions. I interpret it a little bit differently. Both of them in my opinion have said that they're not sure how they would decide that case. And that they wouldn't want to give the opinion that they would have now anyway without hearing all the facts and the evidence.
SEN. SMITH: Well, I didn't ask about a specific case, Mr. Chairman. I asked about a point of view whether or not life was --
MR. HATCH: But they both say that that could likely come before them and they're going to have to decide it at that time. And that's a little different from saying that they would not you know, 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's a tragedy that we've let 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 all the precedents and also look at what's right and wrong, if that case ever comes before you.
SEN. SMITH: Well, I would just make a final point --
SEN. HATCH: Sure.
SEN. 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're referring to me?
SEN. 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 the First Amendment issue regarding the communication between doctor and patient and that is all.
SEN. HATCH: I think the question I'd like to ask is would you set aside your own personal views and precedent and feelings in order to decide the case on the law rather than on what your personal views are?
MS. BERZON: Absolutely, and I believe that I so indicated previously.
SEN. HATCH: I'll be honest with you, Ms. Berzon, in the Ninth Circuit of Appeals, we have people there that could care less what the law says. And I hate to say it. And that's what causes me all kinds of problems here on the committee with putting Ninth Circuit Court of Appeals judges through. Because they're so afraid that we will just have more of the same and I've had very liberal judges come up to me and say it's a disgrace what they're doing out there. And they're hurting all of us who are sincere liberals who really want to abide by the law and implement the laws as written.
SEN. SMITH: Mr. Chairman, could I just make a point on that. And I understand what both of the nominees have said here and I as far as judicial activism is concerned, I agree with what Mr. Katzman 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, you never make a decision, then you would never have overturned Roe versus -- excuse me --
SEN. HATCH: Nobody's going to make that --
SEN. SMITH: You would never have overturned the Ferguson Case of segregation and you never would have applied, overturned the Dred Scott Decision if there had been such a vote before the court. That's my only point. And I'm just saying that I believe abortion belongs in the same league with those other two cases. That's my point. That's all.
SEN. HATCH: That's a good point, no question.
Let me just say this that I've seldom seen better qualified nominees for a Circuit Court position than the two of you. While we may differ on certain philosophical points, the fact of the matter is you're both highly qualified. You both have extensive experience in the law. And in your case, Ms. Berzon, you've been here this is your second time and it was an extensive, extensive hearing before. It went on for hours. And there is an extensive record with regard to your nomination.
There's 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've had in particular, Ms. Berzon, and Mr. Katzman, I've known you for quite a period of time. I have great regard for you as well as Ms. Berzon. And 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. And in your case, Mr. Katzman, I'm reasonably satisfied as to your qualifications.
And we'll do what I can to see that you both have an opportunity to serve on your respective circuits.
I 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, 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'll release both of you for today. We congratulate your families. And I will, I'm 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 to 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. KATZMAN: Thank you very much, Mr. Chairman and Senator Smith.
SEN. HATCH: Thank you both for being willing to serve.
Now we've got about 15 minutes before I have -- I've 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 only have -- 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've 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'll 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 courts, 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 precedence, Mr. Ellison?
MR. KEITH ELLISON: Yes, I am, Mr. Chairman.
MR. GARY ALLEN FEESS: Yes, Mr. Chairman, without question.
MR. W. ALLEN PEPPER: Yes, sir, I am.
MS. KAREN SCHRERER: Yes, Mr. Chairman, I definitely am.
MR. STEFAN UNDERHILL: Absolutely, sir.
MR. T. JOHN WARD: Absolutely, Mr. Chairman.
SEN. HATCH: Thank you.
What court, let me put this -- what would you do if you believed the Supreme Court of the Court of Appeals, had seriously erred in rendering a particular decisions, would you nevertheless apply the decision on your own best judgment of the merits. Take for example, the Supreme Court's recent decision on the City of Bernie versus Florez (sp), where the court struck down the Religious Freedom Restoration Act?
MR. ELLISON: Whether I agree with a decision or not, it's my obligation to apply it. The only option for a job who bitterly disagrees with a decision of a higher court is to tender his resignation, never disregard higher court's authority.
MR. FEESS: I agree with that, Mr. Chairman.
MR. PEPPER: I agree with that, Mr. Chairman.
MS. SCHRERER: 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.
SEN. HATCH: No matter how lame-brained it may be.
MR. UNDERHILL: Absolutely.
MR. WARD: That's correct. I agree one hundred percent.
SEN. HATCH: Well, I'd be looking for finding a way around the lame-brain decision. But the fact is that you've all answered that the way I'd like you to answer it.
(Laughter.) You've stated that you'd 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'm tired of picking on you, Mr. Ellison. So, I'm going to start with you, Mr. Feess because everybody agrees with you all the time. I get tired of that.
What principals will guide you or what methods will you employ in deciding cases of first impression? Mr. Feess?
MR. 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've 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's analogous precedent. Is there something in another field, a related field, something similar that the court can go to. If you're 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 that first determine is it truly novel. Second, if it's really novel, find an 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.
SEN. HATCH: I presume most all of you would agree with that?
ALL NOMINEES: Yes.
SEN. HATCH: Does anybody care to add anything to that?
All right. Let's start with you Ms. Schrerer. Please state in detail your best independent legal judgment, irrespective of existing judicial precedent on the lawfulness under the Equal Protection Clause of the Fourteenth Amendment and Federal Civil Rights Laws of the use of race, gender, or national origin preferences in such areas of employment decisions, hiring, promotions, 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. SCHRERER: Mr. Chairman, under the Aderan (sp) Decision, if race were to be used in given 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's 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.
SEN. HATCH: Okay. Does anybody differ with that answer?
Now, you've heard the questions asked of the prior two panelists in capital punishment. Would any of you have any difficulty, personally or otherwise in enforcing a capital punishment?
Mr. Underhill?
MR UNDERHILL: No, Your Honor. No, Mr. Chairman, I would not.
SEN. HATCH: Mr. Ward.
MR. WARD: No, Mr. Chairman I would not.
SEN. HATCH: Ms. Schrerer.
MS. SCHRERER: No, Your Honor.
MR. PEPPER: No, Mr. Chairman, I would not. No, and in fact, Mr. Chairman, I have presided over death penalty cases in my current position.
SEN. HATCH: Mr. Ellison?
MR. ELLISON: I would be able to preside over such a case, Your Honor.
SEN. HATCH: I would have difficulty enforcing the death penalty, even though I'm for the death penalty. I would want it used very sparingly. But the fact is it is the law and you will be sworn to uphold that law. And you're going to have to do it. Do you have any moral beliefs or legal beliefs, which would prohibit you from applying the law in that area, any of you?
ALL NOMINEES: No..
SEN. HATCH: 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 court should focus their resources on resolving capital cases fairly and expeditiously? I'm talking about my own Habeas Corpus Reform that the Supreme Court has upheld. Do you believe that we should have 15, 20-year delays in enforcing capital punishment? Mr. Ward?
MR. WARD: Well, I would follow the reform that you sponsored without question, Mr. Chairman. And I certainly think that 15 or 20 years is too long.
SEN. HATCH: Well, we found through the years that innovative lawyers just bring up appeal after appeal after appeal and what we've done is we've provided for very extensive appeal rights both up through the state and the federal courts but ultimately a finality to it that literally stops it from being much more than three years.
Anybody find any difficulty with that?
ALL NOMINEES: No, sir.
SEN. HATCH: Dog gone, there's no controversy in this group at all.
(Laugher.)
It's 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'm going to do is submit Senator Thurmond's questions and some of mine in writing. I have confidence that all six of you, that each of you will make tremendous district court judges. I think you're good selections. I'm proud to preside over your hearing and I want to congratulate each of you and the President for having picked you.
I'm 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'll need those questions and those answers right back. And I want to process you a s quickly as I can.
So, I just want to congratulate each and every one of you, the President himself, you're all outstanding people. You've had terrific senators come and speak for you today. And I've been very proud and very impressed with the remarks that they've 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'll just recess until further notice and we'll try to put you all on next Thursday's, markup for Thursday after tomorrow.
END
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