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Hearing of the Senate Judiciary Committee - Nominations


Location: Washington, DC

Hearing of the Senate Judiciary Committee - Nominations

SEN. KOHL: This committee will come to order. We welcome a distinguished panel of five nominees before us today, as well as the nominees' families and friends who are here in support. We also welcome the home state senators who are here to introduce them, Senator Warner and Senator Bond who are here now, and Senator Webb and Senator McCaskill who may arrive.

Judicial nominations are among the most important duties of the Senate Judiciary Committee. The Senate has a responsibility to ensure that any nominee possesses the qualifications, integrity, and the independence necessary to carry out his or her responsibilities to the American people. A federal judgeship is a lifetime appointment, and so we take this responsibility most seriously.

Today the committee will consider four district court nominations, two in Virginia and two in Missouri. All four enjoy the strong support of their home state senators who have also considered the nominee for assistant attorney general for the Office of Legal Policy in the Department of Justice.

We will proceed in the following manner after opening statements from any committee members. We'd like for the senators present to introduce their nominees, and then we will invite the nominees themselves to take the oath, as well as present any opening remarks or introduce their family and their friends. And then we will take the time for questions.

Senator Specter is here, and we ask him for his comments.


SEN. KOHL: Thank you, Senator Specter. There is a vote, as he said, so we'll recess for perhaps ten minutes. I'll get back here as soon as I can. Then we'll proceed with questions.


SEN. KOHL: The hearing will resume, and we'll commence questioning for Ms. Cook. Ms. Cook, one of your primary responsibilities at the Office Legal Policy is the selection of judicial nominees. With time very short before the next election, what has your office done to encourage the White House to identify consensus nominees like the ones who are before us today who can be confirmed? Do you believe that it is important to consult and get the approval of home state senators before nominations are made?

MS. COOK: Thank you for that question. The Office of Legal Policy, within the Department of Justice, does play a supporting role in the selection process for judicial nominees. Ultimately, the decision of whether or not to nominate an individual is the president's decision, but the department and my office in particular, does play a supporting role in that process.

You had asked specifically about consultation. The consultation process is run out of the White House Counsel's Office. It is not one of the areas where the Department of Justice would play a role.

SEN. KOHL: Ms. Cook, during the tenure of Attorney General Gonzales, there was a perception that politics played a significant role in the decisions made at the department. Was there a similar problem at OLP? What will you do to ensure that this does not become a problem should you be confirmed?

MS. COOK: Let me explain a little bit about how the Office of Legal Policy is currently staffed. I am the acting Assistant Attorney General right now. There are three Deputy Assistant Attorney Generals and a Chief of Staff on the senior staff. They are all career attorneys.

They have all been at the department longer than I have, and one of my goals, if confirmed, would be to make the Office of Legal Policy a place where they will want to stay long after I am gone. If confirmed, in any of my decisions, I would hope to have their input and their experience in that decision making process.

SEN. KOHL: Thank you. Ms. Cook, while OLP is known primarily for its role in filling judicial vacancies, it also plays a role at the Justice Department in conducting policy reviews of legislation, implementing department initiatives, among other things. Can you tell us what your priorities will be in that area for the rest of this administration?

MS. COOK: I think if confirmed, my priorities would be to institutionalize the gains that we have made in areas such as combating violent crime, combating child exploitation, combating identity theft, and combating human trafficking. These are areas where my office has been very involved in the past in the development of initiatives, in assessing legislation. And I would hope to continue to prioritize those, if confirmed.

SEN. KOHL: What will be your biggest challenge, do you imagine, over the next several months?

MS. COOK: I think the biggest challenge that we will face is the fact that the administration is ending. But from my perspective, now is the time to institutionalize the gains that we have made in numerous areas and to make sure that the department continues to be a place where great professionals want to work.

SEN. KOHL: Where do you think you may have some problems that you will have to deal with that you might warn us?

MS. COOK: I'm not aware of any specific areas, but I can tell you that should areas arise where we feel we could use, for example, additional authorities, we would welcome the opportunity to work with this committee.

SEN. KOHL: Thank you, Ms. Cook.

MS. COOK: Thank you.

SEN. KOHL: Judge Davis and others, during Chief Justice Roberts' nomination hearing, much was made of his suggestion that his job as a judge was little more than that of an umpire calling balls and strikes, and I'm sure you recollect that.

And some of us, in response, suggested that this analogy might be a little too simple, because all umpires, after all, have different zones with respect to balls and strikes. And that that is because they bring their own unique life experiences to the bench. No two people are exactly similar. So would you comment on Chief Justice's comparison to the role of a judge being like that of an umpire?

JUDGE DAVIS: Well, senator --

SEN. KOHL: Do you agree with him, or do you think the Chief Justice was wrong?


I dare you to answer that question.


Yes or no?


JUDGE DAVIS: Senator, it's a metaphor, I guess, that he chose to use. I would say that I see the role of a judge as to uphold the rule of law. That's what I've tried to do in the past five years while I've served and to look to the Constitution, to look to the statutes that are passed by this body, and to try to do the best job possible to make sure that everybody in the court is heard; they're heard in a fair manner, and that the process plays out in an open and fair manner.

And I think that's the way that I see the role of the judge, to make sure that in the courtroom that happens, that everyone in the adversarial process has the opportunity to be heard and to make sure that the rule of law is what governs outcome.

SEN. KOHL: All right, Judge Kays.

JUDGE KAYS: Thank you, senator. I agree with much of what Judge Davis has stated. You know, one of the challenges that I think people on the bench -- judges have is to ensure that when people leave the courtroom, they have a sense that they were treated fairly. And there was a, pardon my metaphor, a level of playing field for everyone who comes before the court, no matter their station in life. Thank you.

SEN. KOHL: Mr. Novak.

MR. NOVAK: Thank you, senator. I would also agree that one of the key aspects to ensure a level playing field, and that playing field will exist solely by a judge applying the law as it is given, either through statute or by a previous precedent. And if I were confirmed, that's what I would do.

SEN. KOHL: Judge Limbaugh.

JUDGE LIMBAUGH: I got out of the use of Chief Justice Roberts' metaphor that he was simply using the example of an umpire as someone who is, by the very office that the umpire holds, someone who's impartial and even-handed, and that he is someone who should not try to inject his personal policy preferences into the game, so to speak.

SEN. KOHL: Thank you for the judicial nominees. The following questions: the debate around judges in the Senate can often get quite heated because some believe that nominees are brought forward because of a specific set of beliefs which conform to one political ideology or another.

We can all agree that the overriding belief for any judge should be that he or she is independent and eager to apply the law in an even and fair way. But could you respond to the thought that judges that are brought forward because of a specific set of ideological beliefs? Mr. Davis?

JUDGE DAVIS: Yes, sir, senator. Senator, once you -- it's almost five years that I've served on the bench, and I've been honored to do that. It was amazing to me, once I started that process, the seriousness of it. When you know that people are coming before you, it's their day in court. They've been preparing for it for a long time. It may be the most important day in their life.

When that seriousness hit, I found it frankly easy to be very objective about what I was doing, to take it seriously. And when I say easy, it was just the seriousness of it that made me step back and say, "It's not my personal views. It's nothing that I've done in the past.

What governs here is the Constitution to the extent that that's an issue; any statutes; any laws that we're dealing with; and any precedent, binding precedent that I have to follow. And then, treat everyone fairly. And I think, for me at least, I found that a fairly easy transition from private practice to doing that, because it was such a serious thing.

SEN. KOHL: Uh-huh, okay. Judge Kays, why is it that there's this controversy when it comes to nominees, that they're either ideologically to the left or to the right and so republicans might support one; democrats might support another? Do you think there's merit in that, or do you think that it is much overblown?

JUDGE KAYS: Thank you, senator. I understand that different people have different ideas on backgrounds of the judiciary. Senator, we're called to check our personal views at the door once we put on our robe, sir. And only then can we ensure uniformity, predictability, and stability in our court systems. To do less does undermine the confidence of the entire judicial branch, in my opinion.

SEN. KOHL: Uh-huh, all right. And for the other two, and there really is a difference, isn't there, between the federal court that you are up for and, for example, the Supreme Court, in terms of your responsibilities and duties as you see it, versus what a Supreme Court Justice might be called upon to do in interpreting the Constitution? Is that correct or incorrect, Mr. Novak and then Judge Limbaugh?

MR. NOVAK: Well, I can't speak for others, but I can speak for the process here in Virginia. As you heard from Senators Warner and Webb, Mark Davis and I were selected from a bipartisan interview process with both senators. And I think that was guided by recommendations from the local bar organizations as to who they believe to be the people that are best qualified, those who are committed to applying the rule of law, regardless of any type of political connection whatsoever.

And again, I can't speak to others, but I can tell you senator, if I am fortunate enough to be confirmed, I am going to apply the rule of law, end of story. It doesn't matter what anybody's political connections are.

SEN. KOHL: Thank you, Judge Limbaugh.

JUDGE LIMBAUGH: Senator, I'm not sure I understand the question exactly. As an appellate court judge, I'm bound by the precedents of our cases and the statues and the Constitution and on federal matters, of course, the pronouncements of the United States Supreme Court. As a trial judge, I'm still bound by those same things.

SEN. KOHL: Right.

JUDGE LIMBAUGH: It is a different role though, altogether, as an appellate judge.

SEN. KOHL: Thank you. Judge Limbaugh, some people have criticized this president for the excessive use of signing statements. As you know, signing statements are the president's contemporaneous interpretations of the legislation that he signs into law.

This administration had issued many more of these statements than any administration in the past. Would you discuss the appropriate deference that a federal judge should give to a signing statement when you are interpreting the statute?

JUDGE LIMBAUGH: Well, as a trial judge, I would hope that I would have some guidance, at some point, from the federal circuits and from the United States Supreme Court on just how we are to use those matters, if at all. And I hope that's the situation in the event I'm confirmed, that we'll have some guidance. And frankly, I've not considered that issue myself. I don't know the answer.

SEN. KOHL: You're all -- you three are familiar with signing statements and what they are and how the president uses them, and I'd like to hear a word or two from the three of you on that whole issue, starting with you, Mr. Davis.

JUDGE DAVIS: Mr. Chairman, I -- obviously, I think the obligation, for me if I were to be confirmed, would be to look to the precedent from the Supreme Court. Obviously, there is case law out there on legislative history and the degree to which legislative history is to be consulted by the court in reaching an outcome.

And to the extent that there are similar statements, either from the Supreme Court or from, in my case, the Fourth Circuit Court of Appeals that would be the binding precedent in Virginia, I would follow that.

I have a healthy respect for the separation of powers and for the constitutional role of the Congress. And so I think that's an overarching principle that I would also keep in mind in any such situation.

SEN. KOHL: Thank you. Mr. Kays.

JUDGE KAYS: Thank you, Mr. Chairman. The beginning point for a trial judge is with the text of the statute and the expression of the legislative branch. As a state trial judge for the last 14 years, I'm not familiar with any precedent that would require me to review the signing statements. And I frankly am unable to give you an answer, because I don't know of any precedent or legal authority related to that at this time.

SEN. KOHL: All right, Mr. Novak.

MR. NOVAK: Senator, like my colleagues, I would first look to a precedent as well. My understanding, particularly under the separation of powers -- my limited knowledge of signing statements, is that a signing statement really applies to the execution of the law, which is an executive branch function, as opposed to rewriting the law, which is a legislative function.

Obviously, the people speak through the Congress when the statutes are drafted, and the statutes speak for themselves. My limited understanding of a signing statement really -- my view is that it really applies to how the executive decides to carry out the law.

SEN. KOHL: All right, comments from each of you, please. In the past few years, there's been a growth in the use of so-called "protective orders" in product liability cases. We saw this, for example, in the settlements arising from the Bridgestone/Firestone lawsuits. Critics argue that these protective orders sometimes prevent the public from learning about the health and safety hazards in the products that they use.

Now, I ask you, should a judge be required to balance the public's right to know against the litigant's right to privacy when the information sought to be sealed could keep secret a public health and safety hazard? Who wants to speak first on that? I will ask all four. Should a judge be required to balance public health and safety with a litigant's right to privacy when considering a protective order?

You will be sitting, and you will have the judgment to make. You can decide that. When these cases come up, will you use that balancing test, if so to what extent? This is an issue that I've been pushing for several years, so you can also balance your response to the fact that I'm sitting before you.


Who would like to speak first? Mr. Davis, why don't you try that one?

JUDGE DAVIS: Okay. Senator, I will tell you, I don't know -- I never -- I had that issue --

SEN. KOHL: Okay.

JUDGE DAVIS: -- during my practice in the federal court --

SEN. KOHL: All right.

JUDGE DAVIS: -- before I went on the state court bench. In the state court system, we have a case, for example, that prevents us from sealing wrongful death settlements, a state Supreme Court case that emphasizes the importance of the public being able to know what the terms are.

And so I've had the opportunity, when attorneys have tried to present me with those kind of documents, to remind them that that is not something that we can do in Virginia, and I've refused to do it. And so I can only tell you that I would look to the precedent, any statutory framework that's provided and precedent.

And to the extent that anyone raised a constitutional issue about it, I would certainly look to the text of the Constitution and any precedent that governed. But I would certainly be -- it would be my role to look for that precedent to determine how to handle those issues, and I would do that.

SEN. KOHL: Mr. Kays?

JUDGE KAYS: Thank you, Mr. Chairman. I have not dealt with an issue of that nature. I will tell you, in Missouri, we generally lean towards openness in everything we do in our court system, and we don't have, that I'm aware of, any secret judgments or anything like that. Our judgments are all open to the public.

I will tell you that this sounds like an issue that is addressed in the legislative branch, perhaps, about whether or not we should be making things secret or unknown or undisclosed to the public. And I would review the statute, the applicable precedent and the rules and follow those. Thank you.

SEN. KOHL: Well, as it now stands, if you're a sitting judge in your court, if you will be a sitting in your court, you would have the opportunity to make that decision. And you could go either way on that, with respect to allowing protective orders to be sealed, even though we may be talking about public health and safety. So when you say you look to precedent, you can. But you will have the opportunity to make that judgment.

There are some federal judges who very strongly believe that protective orders should not be sealed when there's public health and safety involved. They believe that as a principle, and they conduct their court that way. Others go in the opposite direction. I guess what I'm interested in is what your inclination would be when you are in a situation where you can go either way with respect to protective orders, keeping them secret or if you believe that there are many people that might be injured by keeping them secret, not to allow that.

Now, Mr. Novak --

MR. NOVAK: (Crosstalk) --

SEN. KOHL: What would be your inclination?

MR. NOVAK: Well, senator, I also have not been confronted with such a situation. And of course, if I were fortunate enough to be confirmed, I would turn to the precedent.

I do know that in a criminal context, which I am much more familiar since I have been prosecutor for a number of years, that the Fourth Circuit case law creates quite a presumption in terms of openness of documents and access to the public. And I think that I would start with a view of what the Fourth Circuit case law is.

SEN. KOHL: Judge Limbaugh.

JUDGE LIMBAUGH: Of all the many hundreds of cases that I've addressed, I don't remember having this issue head-on, and it's a fascinating issue. I would hope, as a U.S. district judge, that I would have some -- (laughing) -- guidance from the courts by the time that I would have to address it.

And perhaps too, it is more appropriate a matter for legislation. But in Missouri, our court system is very open, like Judge Kays suggested. And I know of very examples where the parties have been successful in closing the records of a case, other than in juvenile court cases and once in awhile in a domestic case.

SEN. KOHL: Well, we have had, you know, and I'm sure you remember, situations like the Bridgestone/Firestone case where the protective order was granted and in terms of a defective product that then continued to be sold and wound up killing many, many people as well as others. There were breast implant cases where a protective order was granted, and the product was defective. And the protective order prevented people from knowing, and the manufacturer continued to sell their product, protected by the order.

Now, you know to me, just as a matter of common sense, if I were a judge, I'd have a hard time allowing that to occur if in granting that protective order I knew that many people were going to continue to be injured. And I'm not sure I've heard what I've heard from you all today, but I'll try once more.

JUDGE DAVIS: Senator, thank --

SEN. KOHL: Judge Davis.

JUDGE DAVIS: I'm sorry. Thank you. You've laid it out for me so that I think I have a better understanding of what the issue really is. To the extent that, as you say, there is discretion in the judge to make that decision, and as I said, I honestly don't know what the law is on that in the Fourth Circuit.

But to the extent that there's discretion, I think when there's a danger and the issue of danger to the public, that has to be a factor that you weigh heavily. And so I guess I can pledge to you that I would look very carefully at any such situation.

There's certainly an interest in trying to resolve litigation and to the extent that -- it was a situation that I had before me in the state court, as I recall in the wrongful death case. The party said, "We're not going to -- we may not be able to resolve this case if we can't seal the result.


And it was a much easier case for me there, because the Supreme Court of Virginia had said you can't do it. You can't do it because there are public health and public policy interests that encourage those orders to be open. But I think the wisdom of that decision is -- speaks for itself. There is great wisdom in that.

SEN. KOHL: Thank you. Mr. Kays.

JUDGE KAYS: Mr. Chairman, since -- if the court does have the ability to balance the harm, certainly I'm reminded quite often that I am a public servant, and certainly I would have an interest in protecting the public from harms which they may be exposed to.

And I think each case would probably be different, absent some legislative expression. But I can see where it would be -- if it would be in the public's best interest to protect the public from some known evil, that the would be an appropriate -- it would be appropriate not to issue a protective order in that case, sir.

SEN. KOHL: Thank you. Mr. Novak.

MR. NOVAK: Senator, as somebody who has spent their entire career in public service, as I have, I certainly would not want to do anything that would harm the public, in fact quite the opposite. And certainly, you're going to begin with a presumption in that favor, as I think all of us would do.

We're just in a position where we don't know what the law is at this point; at least I do not, having not been confronted with that. But assuming that there is the relevant law in the Fourth Circuit that affords you discretion, I think you're going to obviously want to lean towards protecting the public. Everyone wants to do that, because I don't want to be harmed. I don't want my beautiful young daughters being harmed or my wife harmed from somebody else's misconduct.

SEN. KOHL: Thank you so much. Judge Limbaugh.

JUDGE LIMBAUGH: I understand well your concern. I have a concern of my own, and that is so many settlements -- most settlements are entered into without any admission of liability by one party or the other. And so I'm trying to figure out what kind of mechanism could be used to address your concern and still protect the legitimate interests of both -- of the other side. And it's something that needs to be addressed, and perhaps legislation is the right way.

SEN. KOHL: Uh-huh. Thank you. If there are no other comments, I think you've all done a very good job, and before we -- Senator Kyl, before we --


-- end the hearing, we'll come to the most interesting part, which is Senator Kyl --


-- and his comments and questions. Senator Kyl.

SEN. JON KYL (R-AZ): Thank you, Senator Kohl. I was sent here by Senator Specter who indicated that he had to leave.

SEN. KOHL: Right.

SEN. KYL: Did not want the hearing to be concluded without a republican member present.

SEN. KOHL: Good.

SEN. KYL: So we've certainly guaranteed that. (Laughing.) What I can do, Mr. Chairman, is if there are any other questions that either Senator Specter or other members on my side have, we'll obviously be submitting them to you. And we appreciate your being here, and I apologize for being here late, Mr. Chairman. Thank you.

SEN. KOHL: Thank you very much for being here for the moment, Senator Kyl. We appreciate it, and folks, we'll keep the record open for one week for senators who may want to submit written questions or make statements. But again, we thank you for being here. You've done an excellent job, and we look forward to, hopefully, your confirmation.

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