Josh Hawley Leads Senate Homeland Security Committee Hearing To Consider D.C. Judicial Nominees

[0:00] Court of Appeals. I want to thank you for the, thank the nominees for being here. It's a full [0:04] docket we've got in front of us. We look forward to hearing from you, and despite the fact that my [0:09] colleagues are fleeing the room, believe me, they are, they're eager to ask you questions. It's great [0:13] to have ranking member Kim here with me today, and I look forward to a terrific hearing. The [0:19] children are welcome in the room as well, so the more the merrier. Let me just say a word about [0:26] the significance of the day's hearing. We have many, many open spots, vacancies, both on the DC [0:33] Court of Appeals and the DC Superior Court. These are vitally important courts to the safety of the [0:39] capital city, to the well-functioning of the capital city. I think one indication of that is we have [0:44] with us in attendance today the chief judge of the DC Court of Appeals as well as the chief judge [0:49] of the DC Superior Court. We welcome both of you. I think your presence attested the significance of [0:54] this hearing and the significance of the panels that we are going to be hoping to fill with these [0:59] nominations today. There's significant, significant backlog currently pending in the Superior Court, [1:05] for example. More than 100,000 cases, 100,000 cases were pending in the Superior Court at the [1:13] start of the last year. Tens of thousands of those remain unresolved this year. Criminal trials are now [1:20] running months longer than they did just before the pandemic. Some homicide and violent felony cases, [1:25] which are the most serious matters the city faces, won't see trial until 2027. You just think about [1:33] the number of victims' families that are waiting for answers, defendants who are sitting in jail [1:38] without their day of court, and unfortunately all too often dangerous people back on the street while [1:44] the docket sits untouched. The Court of Appeals has its own vacancy problems, ones that has gone [1:48] unaddressed for years. Every empty seat on either court is a case that does not get heard in a timely [1:55] manner, a docket that does not move, a family that is left without answers, and that is why this hearing [2:01] really matters. Here's our order of procedure today. I'm going to turn it over to Ranking Member Kim to make [2:07] his opening statement. Then I'm going to swear in and introduce briefly each of our nominees. With consent from [2:15] my colleagues, which I hope that they'll give, we're going to enter your opening statements into the [2:19] record, and then I'm going to give you a chance, in lieu of a lengthy opening statement, we'll put [2:24] those into the record for you, but I want to give you a chance to introduce any family members or [2:27] other special guests you may have with you today, and then we'll jump right into questions. [2:31] But first, let me turn it over to Ranking Member Kim. [2:33] Yeah, thank you, Chairman, and thank you to you and Chairman Paul for moving forward with these nominees, [2:38] and I'm appreciative of filling in for Ranking Member Peters for allowing me to step in today [2:45] for this really important hearing. While this shouldn't be a spectacular thing, I also want [2:50] to take note that the nominations before us today came through the proper channels via the [2:56] D.C. Judicial Nominations Commission as required by law. To the nominees, congratulations, and thank [3:03] you for your dedication to public service. For years, D.C. has struggled to fill local judicial [3:09] vacancies. That is because, unlike states that have their own process to place people on the [3:15] bench, in D.C., we must follow a federal process of presidential appointment and Senate confirmation, [3:23] despite the fact that these are not federal judges. Unfortunately, this has historically led [3:27] to long delays in confirming new judges, and the D.C. legal and public safety systems have [3:33] suffered as a result. Still, it's critical we move forward in this process to place forward [3:41] and confirm judges who demonstrate that they are qualified during the vetting process. Filling [3:47] the vacancies on the Superior Court and the Court of Appeals will allow D.C. to tackle its [3:53] case backlog and give people timely access to their day in court. This is a unique role of [3:59] this particular committee, and I think it's important for the members that we take this [4:03] seriously, that we, on top of what we're trying to do with legislation, with federal-level confirmations, [4:10] the ability for us to be stewards and look after our capital is so important to play our role [4:18] and to be able to lift up those that will be doing this work day in and day out. So again, [4:23] thank you for stepping up, and I look forward to this hearing. [4:26] Very good. Thank you, Senator Kim. It's the practice of the committee to swear in our witnesses, [4:30] so I'll ask you now to rise and raise your right hand if you would and respond to me. Do you swear [4:37] that the testimony you're about to give is the truth, the whole truth, and nothing but the truth? So help [4:40] you God. We'll let the record reflect all the witnesses answered in the affirmative. Now let me, [4:46] without objection, enter each of your opening statements into the record, [4:51] and now we'll just go down the line here. We'll start with you, Mr. Crowell. I'll have a brief [4:55] introduction for each of you, and once I do that, we'll give you the opportunity to introduce any [5:00] family members or other guests you may have with you. Our first nominee is James Crowell. Am I saying [5:04] that correctly? Crowell. There we go. Well, we'll get it right. Mr. Crowell, the Honorable Judge James Crowell. [5:10] Judge Crowell is an associate judge in the Civil Division of the Superior Court of the District of Columbia. He [5:14] previously served in leadership roles at the Department of Justice and as a United States [5:18] Attorney in the District of Maryland. Judge Crowell has a long and distinguished career as well in the [5:23] United States Army Reserves. Thanks for being here today. Next is Mr. Stuart Nash. Mr. Nash is a partner [5:27] at Holland & Knight, where he practices in the white-collar defense and governmental investigations [5:33] divisions. He previously served as an associate judge on the Superior Court of the District of [5:38] Columbia from 2010 to 2016. Before that, he had a long tenure as a prosecutor at both the Department of [5:43] Justice and the United States Attorney's Office here in the District of D.C. Welcome, Mr. Nash. [5:49] Mr. DeBano, am I saying that correctly? Mr. DeBano? Okay, good. Mr. Christopher DeBano, [5:55] senior counsel at the DOJ's Office of Legal Policy, OLP, where he leads efforts to develop and implement [6:02] DOJ's policy objectives, including those concerning drugs, firearms, violent crime, and digital assets. [6:08] Before his service at OLP, he was a senior attorney with the DEA's Office of Chief Counsel, [6:13] and he's worked in private practice at multiple firms. Welcome, Mr. DeBano. Mr. Michael DeLorenzo [6:18] is a deputy chief in the National Security Section of the U.S. Attorney's Office for the District of [6:22] Columbia, where he investigates and supervises matters relating to national security. Mr. DeLorenzo has a [6:28] long career as a prosecutor. Before his current role, he was a prosecutor at the Department of Justice, [6:34] the U.S. Attorney's Office for the District of D.C., and in the state of Maryland. Welcome, Mr. DeLorenzo. [6:39] Next, we have the Honorable Sharon Goody. Judge Goody is an administrative law judge for the District [6:45] of Columbia in the Office of Administrative Hearings, where she has served since 2005. She hears matters [6:51] involving public benefits, homeless shelters, nursing homes, and mental health group home issues. [6:56] She's also a commissioner on the District of Columbia Access to Justice Commission. Before becoming [7:01] an ALJ, Judge Goody was a prosecutor in the D.C. Attorney General's Office. Thank you for being here, [7:06] Judge. Next, we have Mr. Craig Lean. Mr. Lean is a partner at K&L Gates. Before joining K&L Gates, [7:12] Mr. Lean served as director of the Office of Federal Contract Compliance Programs at the [7:17] Department of Labor. He also previously served as the city attorney for the city of Coral Gables, [7:22] Florida. Two more. Ms. Christine Macy. Ms. Macy is a deputy chief in the felony major crime section at [7:29] the U.S. Attorney's Office for the District of Columbia. Before her current role, Ms. Macy served as a [7:35] senior AUSA, that's an assistant United States Attorney, investigating and prosecuting homicide [7:40] cases in the D.C. Superior Court and fraud cases in the United States District for the District of [7:46] Columbia. Welcome, Ms. Macy. And finally, last but certainly not least, Mr. Timmer, John Timmer, [7:51] is a senior trial counsel in the Enforcement Division at the SEC. Before joining the SEC, Mr. Timmer [7:57] served as an assistant U.S. Attorney in the U.S. Attorney's Office for D.C., where he investigated and [8:03] tried cases in the Superior Court of the District of Columbia, ranging from assaults to homicides. [8:08] Again, welcome to all of you. Thank you again for being here. Now, I'll just give you each a chance [8:12] to introduce any family members or other guests you may have with you. And we'll start with you, [8:17] Mr. Crowell. Thank you, Senator. Good morning to all members of the committee. I'm joined this [8:25] morning by my wife, Michaelene, our son, Jack, who was, I believe, 14 the last time we appeared before [8:33] you, Senator. So he's grown up a little bit, but we're grateful to be back before you. And our [8:37] daughter, Elliot, who is viewing from afar. She's on a service trip abroad. And then I'm also joined [8:44] by Chief Judge Blackburn-Rigsby of the D.C. Court of Appeals, as well as Chief Judge Tony Lee [8:50] from my current court, the trial court here in the D.C. Superior Court. Thank you, Senator. [8:54] Fantastic. Welcome to your family members. And again, welcome to both of the chief judges. It's [8:58] terrific to have you. Mr. Nash. Thank you, Senator. Good morning. I'm joined here today by my wife, [9:05] Mary, and my son, Christopher. I have two other children who are working, one outside the United [9:13] States and one up in New York City, and we're not able to be here, but I think are watching remotely. [9:19] I'm also joined by two of my work colleagues at Holland and Knight, Bill Gould and John Brownlee. We [9:25] started together in the U.S. Attorney's Office for D.C. in 1997 and have worked together on and off [9:32] ever since. And I also have family friends, Mike Flanagan and Jocelyn Dyer with me. Terrific. Very [9:37] good. Mr. Devano. Senator, I am joined today by my wife, Alyssa Kempler, who's behind me today. And then [9:46] my two children are here as well, my son and my daughter. My parents came to see the hearing today, [9:53] and my father-in-law is here as well. And I have a ton of friends and colleagues that I hope are [9:58] watching. Fantastic. Mr. DeLorenzo. Good morning, Senator, and good morning. I'd like to thank my [10:06] family who has been supportive throughout my legal career, including my mother, who's watching from [10:12] above, Marion, my father, Henry, my wife, Paula, and our two boys, Michael and Christopher. Unfortunately, [10:20] they can't be here due to a family commitment, but they are watching. But thank you. Very good. [10:28] Judge Goody. Thank you, Senator. I'm joined by my son, Daniel. Fantastic. Mr. Lean. Good morning, [10:42] Mr. Chair, Senators. I'm joined today by my wife, Dr. Ana Maria Munoz-Lean, my college sweetheart. We [10:49] met at Georgetown in 1994. And I'm joined by my son, Pierce Lean, who attends school without walls here in the [10:55] district. And I did want to mention my daughter, Alexandra Lean. She's not here today. She's autistic [11:00] with intellectual disability. We attend St. Colette of Greater Washington, but we'll celebrate with [11:04] her tonight. Fantastic. Ms. Macy. Thank you, Senator. Good morning. I'm joined today by my husband, [11:11] Sean, seated behind me, as well as my parents, Denise and George McIntyre, who traveled from Michigan to be [11:16] here today, as well as my son, who's made some vocal appearances. And hopefully that will stay at a minimum. [11:22] It's most welcome. Any interventions are very welcome. Mr. Timmer. Good morning, [11:28] Senator and members of the committee. I'm joined here today by my wife, Jennifer, my Barbara Timmer, [11:35] and my Catherine Benkheim. Watching from afar is my mother in California, Susan Timmer. And my two, [11:44] our two daughters are at summer camp right now. So they are nowhere near a screen. That's probably a [11:49] good thing. They'll come home to good news, hopefully. I'm going to defer my questions. [11:54] And so we'll begin questions now. We'll do five minute rounds and we'll begin with ranking member [11:58] Kim. Yeah. Thank you, chairman. Again, thank you to all of you for joining up here. I wanted to really [12:05] be able to use this to hit home what the impact of these vacancies are to the district and to help [12:13] people understand, especially here at the federal level, why it's so urgent that we move forward, [12:19] to be able to move forward with this panel, but just writ large to be able to make sure we're doing [12:23] better to be able to keep up with the needs. So in particular, Mr. Kroll and Mr. Nash, I wanted to start [12:30] with the two of you. You know, you're certainly aware of just the challenges that we're facing right [12:36] now when it comes to the judicial vacancies. Currently, there is over a roughly 20% vacancy rate [12:42] on both the DC Superior Court and the Court of Appeals. And the failure to replace these nominees [12:49] has meant that the city cannot effectively administer justice. Can you help us, you know, [12:55] help explain what the problem is when it comes to this growing number of vacancies? How does that impact [13:01] public safety in DC? Mr. Kroll, I'd like to start with you. Thank you, Senator. With respect to the [13:09] the impact of the unfilled vacancies, first, we are so grateful. As a sitting trial judge on the DC [13:16] Superior Court, I am especially grateful. I know Chief Judge Lee is as well for you considering the [13:21] nominees here today for both the Court of Appeals and the trial court. With the lack of judges, it [13:28] decreases, as Senator Hawley observed, the number of cases we can hear. The average judicial officer in my [13:36] civil division that I'm currently in. I spent the four years in the criminal division. I spent three [13:40] years in our family court division. And the numbers are skyrocketing. They are quite, quite high. And I [13:46] work as absolutely hard as I can. But there are only so many hours in the day. And we can't get to all [13:52] the cases. And it does create that backlog. And those numbers are real. Those cases are real. The [13:57] litigants are real. And those delays are felt by those who are not able to get justice. Mr. Nash. [14:06] Well, thank you, Senator. On the one hand, I feel a little bit [14:10] odd talking about the difficulty in moving nominations through the process. Because [14:17] Judge Kroll and I were nominated just this month. And so this committee has moved with great [14:24] alacrity to put us on this panel and to do this hearing. And certainly everyone sitting in the [14:31] the dais this morning and the staff behind has nothing to do with the delay in the court of appeal, [14:39] filling court of appeal slots. Because you all have been nothing but gracious in moving our [14:43] our nominations along at quite a quite a great clip. But Senator Hawley, I think in his opening remarks, [14:50] really put the statistics to to to this problem. One of the seats that I guess the seat that technically [15:01] that Judge Kroll was was nominated to has been open now for 13 years. So it's been at least 13 years [15:09] since the Court of Appeals has had its full slate of judges. And so, you know, I know, I know Judge [15:17] Kroll by reputation myself, I know, both of us are really looking forward to rolling up our sleeves, [15:24] getting to work. Even our experience in the Superior Court, I think we're in a position [15:29] to hit the ground running when we hit the Court of Appeals. And if we're fortunate enough to be [15:34] confirmed and forward to doing our share to to try to drive those numbers down and get the point. I mean, [15:41] right now I'm a consumer of justice in the District of Columbia, I'm a practicing lawyer, [15:46] and it takes a long time to get a decision, both in the Superior Court and the Court of Appeals. And [15:53] we're committed to do what we can. And that challenge, it's something that makes everything [15:59] not just slower, but more expensive and just more difficult to be able to navigate for [16:04] for everybody. Is that right? There gets to be a point, honestly, on the civil side where [16:10] litigants will decide that they're just going to settle their matter rather than than wait [16:15] interminably for a trial or court of appeals. And it wasn't that way when I was serving [16:22] on the Superior Court 10 years ago. This is a problem that has, for whatever reason, [16:29] become more of a problem in recent years. And it has that impact. I mean, it makes, as you said, [16:35] people start to not believe in the system in terms of its ability to function. And, you know, this is [16:42] by virtue of the values that our country has in terms of giving people their day in court and being [16:47] able to do that in a timely manner. And I just think at a time when there's such distrust in [16:53] government, we need to show that we're doing the nuts and bolts and being able to deliver in that type [16:58] of way. So again, you know, I'm very grateful to Chairman Hawley as well as Chairman Paul of the [17:03] full committee for moving this forward, for recognizing that this is an important function [17:09] of this committee and necessary for our capital. With that, I'll turn it over. [17:14] Very good. Mr. Nash, if I could just start with you. You wrote an opinion piece in the Washington Post [17:19] in which you state, and I'm going to quote now, the DC Court of Appeals [17:23] has become a substantial and underappreciated obstacle to reducing the city's high rate of [17:28] violent crime, regardless of who has control of the police. Could you just elaborate on what you [17:34] meant by that and what perspective you might bring to this position in light of your views here? [17:40] Thank you, Senator. My opinion piece related to a specific case that came to my attention because, [17:49] as you know, the Court of Appeals sits in three judge panels and the Court of Appeals rendered a [17:55] decision in a criminal case where two of the three judges who were on the panel, a unanimous decision [18:03] overturning a gun conviction, two or three of the judges on the panel said in writing, in their opinions, [18:10] that they were uncomfortable with the way that they were coming out. They believed that their decision [18:16] was inconsistent with Supreme Court precedent, and yet they felt compelled by the precedents of the DC [18:23] Court of Appeals to come out the way they did. I practiced law for a long time. I had never seen a [18:29] decision come out unanimously with two of the three judges saying they didn't agree with their own [18:34] decision. And I thought that that was an interesting enough phenomenon that it was worth writing about. [18:42] I looked at the case. I came to the conclusion that in my piece, I came to the conclusion that [18:51] the judges who had expressed reservations about the opinion were right. That's what I wrote in the opinion [18:57] piece. And it turns out that I wrote that last August. This winter, the US Supreme Court weighed in on the [19:08] decision and reversed the DC Court of Appeals, not in the specific case that I wrote about, but in another [19:14] case on that same issue, saying that the issue that I wrote about the DC Court of Appeals should be reversed. [19:24] This was DW versus the United States, I think was the case. Is that correct? That's the one I wrote [19:28] about. The one that the Supreme Court later wrote is confusingly enough called United States versus RW, [19:36] but same issue, different case. Sticking with the DW case, this is the Court of Appeals panel, [19:46] as you said, threw out a defendant's gun crime conviction, even though if I remember correctly, [19:50] you'll correct me if I'm wrong, the defendant's lawyers admitted at trial that the defendant illegally [19:54] possessed a firearm. That's true. That's not an unusual circumstance. The defense was that the [20:03] police had acted inconsistently with the Fourth Amendment, and so it's not uncommon for lawyers [20:10] to challenge the Fourth Amendment issue if they lose on the Fourth Amendment issue. This is because the, [20:17] not to interrupt you, but just a mindful of the time here, this is because the DC Court of Appeals had [20:21] previously held that running away from officers unprovoked, this is a quote from the controlling [20:25] precedent, does not provide a reasonable basis for suspecting that individual being involved in [20:30] criminal activity. You said in the op-ed, most non-lawyers would, I think, concede that unprovoked [20:36] flight provides an officer with sufficient reason to establish whether the fleeing individual might be [20:40] involved in criminal activity. That seems very commonsensical to me. Here's my question, [20:44] here's really what I'm driving at. What does this mean for your approach to the role? If you're [20:50] confirmed to this court that you've written about, does that mean that in cases, let's abstract from [20:56] this particular precedent, in cases where you think that the court's precedent or previous cases is wrong, [21:03] will you push to have those reviewed in bank? Give me a sense of what this means about your [21:08] approach to the job. Well, I guess I would say to begin with, Senator, that I am not seeking this [21:16] position because I plan on bringing a particular agenda. My theory of judging is that every case [21:28] should come before a tribunal that has an open mind and is going to hear the evidence, both the facts [21:38] and the law and apply them in an unbiased fashion. So I do not want anyone to suggest that my editorial [21:46] that talked about a single case that I thought was wrongly decided is reflective of me trying to bring [21:54] an agenda to the court. That being said, I think what the editorial demonstrates is that when I see [22:02] something that I think is unjust or not consistent with precedent, I am not shy about making my feelings [22:12] known on that. And if, you know, I get fortunate enough to be confirmed and I get to the court, [22:19] if I'm on a three-judge panel and two of the judges disagree with me, I am not going to be shy about [22:25] expressing my opinion. I think, as my editorial did, I think I do it in a respectful fashion. [22:30] I anticipate I would continue to do it in a respectful fashion. I served on the superior [22:35] court for six years and I think I had a reputation of being a measured and respectful judge and I [22:41] would hope to continue that if I'm fortunate enough to be confirmed to the court. Good, very good. [22:46] Judge Crowell, let me just ask you before I return to Senator Kim, before you became a judge, [22:51] you had a long career as a prosecutor. Drawing from your experience both as a prosecutor and now your [22:57] years on the bench, do you think that D.C.'s criminal laws are being under-enforced, [23:02] over-enforced, enforced about the right amount? What's your sense of it? [23:07] Senator, I appreciate the question. I think that on the restrictions on me, that wades into public [23:13] policy. I would be reluctant as a sitting judge to speak to matters of public policy. The judicial [23:18] canons greatly restrict me from commenting on matters of public policy. What I can tell you is, [23:24] as a federal prosecutor, I fought against violent crime. I sought justice for victims [23:29] and I woke up every day fighting for those victims, seeking justice for those victims, [23:34] whether it was RICO, violent crime cases, that was my bread and butter. And what I've experienced [23:40] while when I served on the in the criminal division, the Superior Court, the volume of cases [23:47] is significant and there are issues that need to be addressed. In your experience and as a general [23:54] matter, do tough sentences help deter violent crime or no? My experience is they do. I believe [24:03] that there's a statute that provides what courts must consider in determining sentences. Amongst those [24:08] factors and deciding a holistic faction is specific deterrence as to that offender, as well as general [24:15] deterrence as to the community. There's rehabilitation. There's also the nature and circumstances of the [24:20] offense and in crafting a decision. A judge is statutorily required to consider each of those [24:26] factors in balancing a decision, but absolutely specific and general deterrence has a significant [24:30] factor. Senator Kim, anything further? I'd actually like to build off of that, but I'd like to ask this [24:37] to the nominees for the DC Superior Court. That issue about balancing, that issue about trying to weigh and [24:44] using your judgment on these cases that could be before you. I try to think through the challenges [24:53] when it comes to crime committed by younger individuals in Washington DC, a trend that unfortunately [24:58] we've been seeing on the rise. And I wanted to ask each of you to just give me a sense of how do you [25:05] balance that importance of accountability when it comes to our rule of law with the potential of [25:12] rehabilitation with the potential of continuing to try to shape young people who have their whole lives [25:21] ahead of them? How do you each of you think through that and will approach that if confirmed into these [25:27] jobs? Mr. De Bono, why don't we start with you and we'll go down the line. As Mr. Judge Kroll said, [25:34] as a judge I'll be confined to the DC code provisions on sentencing and the factors that I'll have to [25:41] consider which is specific deterrence, general deterrence, rehabilitation, and any education [25:47] that can be provided to the defendants. And I think that that is important. I think it's important to [25:52] keep individuals that are a threat to the community out of the community. And then I think it's also [25:57] important that before individuals are returned to the community they know or pose a threat, particularly [26:04] for younger individuals that are likely to re-enter the community, that they're in a position where they [26:08] can do so and that they're fully rehabilitated and no longer in a position where they're going to cause [26:14] harm to the community. And so if I'm fortunate enough to be confirmed, I'll look at sentencing [26:19] based on the criminal history of the specific defendant, any pre-trial sentencing recommendations, [26:25] statutory penalties, and then try to craft a penalty that accomplishes all of the goals of sentencing. [26:30] Mr. De Lorenzo. Great, thank you. The sentence really has to be crafted to the individual and that's [26:36] the judge's role as I would agree with my fellow nominee. And by doing that, you look at each case [26:43] on its own. And you look at the seriousness of the offense, the characteristics of the accused, [26:50] which includes, right, would include of the accused, their record as well. You also look at the impact on [26:59] the victim. And, you know, the sentence, another factor would be protecting the public and, again, [27:06] deterring this defendant from committing that offense in the future. And that may very well be [27:11] punishment. It may be a rehabilitation. Another factor is deter others from committing that offense. [27:18] So, you know, it's every case has to be taken on its own facts. [27:23] Mr. De? I concur with my fellow nominees. Would you mind speaking into the mic? Is this better? [27:36] Yeah. Okay. I confer with my fellow nominees that it has to be done on a case-by-case basis. Certainly, [27:42] what I look for is community safety. If this person is on release, is this person going to be safe in [27:48] the community? Yes, sometimes no. And particularly, I prosecuted juveniles. We have the pre-sentence report. [27:55] We'd get sometimes psychiatric reports. So it could get a better sense of what was going to work best [28:00] for this particular individual in the community. Also look at potential for rehabilitation and to [28:07] rehabilitate this particular individual. If this particular individual is out in the community, [28:15] what's that going to say? If this particular up, what's that going to say? So a number of things, [28:22] and it's going to vary with each defendant or respondent. I would follow the standards [28:31] in the statute. For a violent crime, it's important that you treat it very seriously. [28:37] In the end, the goal of sentencing, when you look at all the standards, I've always taken it to be [28:43] to make sure that this person does not commit another crime. And that can include rehabilitation, [28:49] but that also sometimes includes a sentence that's commensurate with what they've done. [28:54] I concur with the sentiment of my fellow nominees in terms of each case needs to be looked at in the [29:03] particulars of that particular defendant and the particular facts of that case. So working in the legal [29:08] framework, I would of course start with any sort of requirements if there's a statutory mandatory [29:14] minimum at play, but that of course has to be considered in the sentencing and followed. [29:18] I'd also look at the sentencing guidelines that provide a parameter for judges as a starting point [29:23] to consider what is assessed as a fair and reasonable sentence that you can then apply the specifics of [29:29] the case to that particular case and determine what the appropriate sentence is by looking at the [29:35] factors in the DC code to include the nature and circumstances of the offense, the criminal history [29:40] of the defendant, their personal circumstances. So to your question, their youth, their particular [29:45] background, those considerations. And I would say that I would employ this approach as a judge very [29:50] consistently with how I've done as a prosecutor for almost 14 years. [29:53] I just think this is such an important issue as a parent here in the community. It's so important [30:06] to be mindful of what you're raising. I echo a lot of what my fellow nominees have said about judging [30:14] each case and each defendant on their own merits and applying the factors that are laid out by the [30:20] code. I will add that the DC code as it relates to juvenile justice talks about some of the purposes of [30:26] that code. And they are to rehabilitate and also to hold juveniles accountable for their actions. [30:33] And I'm convinced that holding somebody accountable for what they've done is part and parcel of [30:39] rehabilitation. Unless you've understood that you've done something wrong, you can't move forward. [30:44] And so I think that those are important goals that I'd keep in mind if I'm fortunate enough to be [30:51] confirmed to handle cases like that. And let me just ask now the Superior Court nominee. So starting [30:58] with you, Mr. De Bono, and just as Senator Kim did, I just want to go down the line and give you a chance [31:02] to respond to a question or two. Let's come back to this notion of deterring violent crime. What is it [31:08] that you're under, what is your understanding of what your role would be, each of you if confirmed to [31:12] this court, what your role would be in deterring violent crime? Go ahead, Mr. De Bono. We'll start with you. [31:18] Everybody will have a chance. My idea of my role, if I'm fortunate enough to be confirmed, is to set a [31:24] punishment sentence for an individual that's committed a crime that is commensurate with the crime, [31:31] commensurate with the individual's criminal history, and is appropriate enough to deter that [31:36] individual from committing further crimes, to protect the public safety, and to prevent others [31:41] from engaging in similar activity. Mr. De Lorenzo. I would agree with my fellow nominee. I mean, [31:50] as a prosecutor, you know, I've made recommendations for incarceration. As a judge, you're better suited [31:58] because you see at the sentencing, you see the whole picture and should be should look at the whole [32:08] picture. And you know, part of that is to, you know, impose a sentence that will deter this individual, [32:17] and part of that is sometimes giving a stiff sentence. But a piece of that is oftentimes to [32:21] provide some sort of rehabilitation to get to get to the motive of of what may have caused a crime, [32:28] and that's getting some piece of rehabilitation. It may be drug treatment, maybe sort of some mental [32:34] health treatment. So it's a fashion-appropriate sentence that deters this individual, deters others as [32:40] well. Judge Goody. I concur with my fellow nominee. I remember when I was a prosecutor, [32:52] there was a level of recidivism that was getting frustrating. And so what I would be looking at if [32:57] I'm fortunate enough to be confirmed is, is this, has this person done this once or has this person done [33:03] this? What was put in place on that first time? Did it work? And what can I do for this person to [33:12] hopefully prevent recidivism for that one person? And let the community know that I'm trying to [33:16] prevent recidivism in a larger sense. So be looking at their past record. Is it the same thing over and [33:23] over again? Or is it different things? As many reports as I can get on psychiatric, psychological, [33:28] if I'm in a juvenile delinquency court, I'd want to know how can I make, how can I, I can't make sure, [33:36] but how can I come closest to making sure that this person is not going to do it? [33:40] Very good. Mr. Lane. Judges play a critical role in deterring crime. The way I would approach it is [33:49] to apply the standards in the code as mentioned. But you know, ultimately it's to avoid outlier [33:55] sentences and make sure you're applying a standard that's equal across the people that you see, [34:00] obviously looking at the individual circumstances. But in the end, it's important that people know [34:04] that if they commit a crime, they will be punished. Ms. Macy. [34:08] I spent several years as an assistant U.S. attorney focused specifically on homicide cases. And that [34:15] was just a fraction of my time as in the office. I also spent other years focused on other violent [34:21] crimes. So violent crime I have seen up close and I realize how significant of an impact it has [34:26] on the defendants, the victims, the victims' families, the defendants' families, and the community [34:31] as a whole. So it's a matter that's very important to me. And as a judge, if I'm so fortunate to be [34:36] confirmed, I would approach my role to addressing violent crime by proceeding fairly in the cases [34:42] before me, by handling them efficiently so that defendants get their day in court, victims get [34:46] their day in court, and ensuring that the rights of both perpetrators and victims are addressed and [34:51] considered in crafting appropriate sentences for the particular case before me. Mr. Timmer. [34:56] I'd echo what my fellow nominee Ms. Macy said. During my seven and a half years at the U.S. [35:04] attorney's office, I practiced exclusively in superior court, first as a line attorney and then [35:10] as a supervisor. And so saw firsthand the impact that the judges had on crime in the community and [35:17] agree with her that I think steps I can take are to be to one, to follow the DC code, to impose [35:25] sentences that are law and with the sentencing guidelines, and to work efficiently to ensure that [35:32] if somebody commits a crime, is arrested, is charged, that they have their day in court and that [35:36] that day comes swiftly so that it's the community can see for themselves that justice has not been [35:43] denied and has not been delayed. Judge Goody, let me just ask you if I could just on the same topic. [35:47] In 2022, you were on a panel at Brandeis University in which you said, among other things, there is no [35:55] rehabilitation in prison. Just help me understand your thinking here, and here's where I'm going, [36:01] as you can probably imagine. Does that mean that you would be hesitant to send a first-time offender [36:10] or someone who you think, well, maybe this person could benefit from some rehabilitation? [36:14] The sentencing guidelines call for or strongly suggest prison time, but I don't want to do that [36:20] because there is no rehabilitation in prison. I want to do everything I can to avoid sending people [36:24] there. I mean, take me inside your mind here and explain that to me. Just turn on your microphone [36:31] there. Sorry about that. Yes, I did say that. What I should have, let me first specifically answer your [36:40] question, then go back. There's a difference between juveniles and adults, first of all. For [36:49] juveniles, the standard is rehabilitation, so there is a focus on providing service. The concern about what [36:54] happens in prison arose from when I was in law school and I actually taught at the Lorton prison. [37:00] We used to house our prisoners in Lorton, now housed in the federal system, and I saw that [37:04] conditions were not great for rehabilitation. That's where that came from. Your question was, [37:09] would that make me hesitate to put someone in prison? No. Community safety is my number one thing. [37:15] If we can craft a rehabilitation package that makes someone safe to be back in the community, [37:20] let's do that. But if somebody can't be made safe in the community, then the ego is prison. [37:26] Let me ask each of you now, again, just the superior court nominees, in view of the backlog, [37:32] the huge backlog that the court is currently facing, just give me your sense of what you would do [37:36] to help address this huge backlog, how important you think it is, and what your role would be in [37:40] making sure that these cases are heard, defendants get their day in courts, but also victims get the [37:48] redress that they deserve. Let's start with you, Mr. DiBono. [37:50] If I'm fortunate enough to be confirmed, my role will be to efficiently move my cases, [37:58] to set clear expectations for the parties, set clear deadlines, be clear from the front [38:06] about what I expect them to do and be prepared to do when they come to court, and then to show up [38:11] with the same effort and to be prepared to handle the matters that come before me when they do appear. [38:17] That way the cases are quickly handled, they're quickly and efficiently resolved, and we're able [38:23] to get justice for victims and appropriate sentences in place for offenders. [38:29] It's necessary to strike a balance between efficiency and fairness, and I've appeared before [38:34] many judges, I've learned a lot from good habits and bad habits. In order to move things along, [38:41] what I would do is, if I were fortunate enough to be confirmed, is I would be the example to everybody [38:46] in the courtroom. I would go in, and I learned this too, during my clerkship, my judge, William M. Jackson, [38:52] who sat on the Superior Court, I saw him do this. He was a career prosecutor, and he was on a family [38:59] calendar, and what he did, and what I would do is prepare. He was often, and I would be most, [39:04] it would be a prepared lawyer in the court law. I read the pleadings, and I'm ready to go. But in [39:12] addition to being the example, it is essential, as my co-counselor, as my fellow nominee said, [39:18] that expectations are set. And I've found that, in my experience, the best way to set expectations [39:24] is to have a standing order. I've found courts with standing orders where it's clear what the [39:29] expectations are move efficient courtroom, you know, the courtrooms run efficiently, and there is that [39:36] fairness. And then also, when there are egregious violations, a court has to be willing, [39:42] there must be consequences when there's repeated egregious. So I've drawn experience from when I [39:50] clerked at Superior Court as well. I watched how Judge Harriet Taylor made sure to move a couple of [39:56] dockets. She had a child abuse and neglect docket, and she had a criminal docket. And I watched the [40:00] systems that she used to keep up with new case law. We'd get slip opinions, she'd read it, she'd file it, [40:06] and she'd file it in her head. And I'm still using that to this day. I also have learned, as an administrative [40:11] law judge, how to move the case, figure out which cases can move quickly, and which ones need more [40:17] time, put the ones that move quickly at soon, so we can get them resolved as soon as possible, [40:24] without thoroughly delaying the ones that are more complicated, sort of going back and forth between [40:28] the of and the more difficult ones to resolve. And right now, we have some of our highest caseloads [40:36] at the Office of Administrative ever had. So I'm working on that right now. Most, and I schedule [40:41] hearings every 20 minutes, every 15 minutes, so I can move through those, make sure I can get to trials [40:46] as quickly as I can. The other thing that I will be focusing on, should I be so fortunate to be confirmed, [40:51] is courtroom civility. What I found is if I can, if I can be the role model for being civil to everybody [40:58] in that courtroom, then people will follow. When it gets uncivil is when it slows down. So making sure that [41:03] everybody is polite with each other, respectful with each other, but getting to the facts and getting [41:07] to the law. Mr. Chairman, when you mentioned the 100,000 case backlog, that is an enormous number. [41:16] I would come into the job, if I get confirmed, seeking to be efficient and effective. I've come [41:21] into several jobs where I had a big backlog when I came in, both at OFCCP and when I was city attorney, [41:28] and I put a number of norms together right away with my staff. I sought to address cases quickly, [41:34] fairly and quickly. I wrote a lot of decisions. I tried to rule on everything at once where I could. [41:40] I published a lot of decisions so people could have an idea where I'm coming from. It could cite [41:44] to precedent. And I would also be an internal advocate within the court system to move cases. [41:50] It's extremely important to move cases so that everyone gets their day in court. [41:57] In terms of my role, if I'm so fortunate to be confirmed, of addressing the backlog, [42:01] I think it has to start with preparation on my end of taking the bench, being ready for the cases [42:06] before me, knowing the facts, having an agenda of what should be covered that day, and holding the [42:12] parties to that same standard of coming prepared and setting the tone that you expect your courtroom [42:16] to be run efficiently and for them to be prepared and make progress so that the hearing accomplishes as [42:22] much as possible. I would draw on my experiences both as a law clerk in DC Superior Court. I clerked for [42:28] the then Chief Judge Lee Satterfield and was able to see first-hand sort of process and ways to set up [42:36] systems to approach cases efficiently. And also as an Assistant U.S. Attorney with very heavy caseloads, [42:42] I've had to learn how to balance giving the cases the attention they deserve but also moving efficiently [42:47] and knowing how to prioritize things. So I would use all those experiences and create a system [42:53] on the court to move my cases efficiently. I draw on similar experiences to my colleague Ms. Macy. [43:04] Walking in at the U.S. Attorney's Office, I joined the domestic violence misdemeanor section and was [43:09] confronted with an enormous caseload, each one of which was deeply important to the person who had [43:14] been a victim in that case. And so quickly learned how to identify which cases needed work urgently, [43:22] work efficiently through them, and ensure that justice was done in each case. If I were to be so [43:28] fortunate to be confirmed, I think a lot of my fellow nominees have identified a number of very [43:34] important steps to take which I would share. I think one very important thing to do is to communicate [43:39] with litigants in advance of hearings. What is the judge interested in hearing about? What are the key [43:44] issues? So that not just me as the judge, but the litigants, the parties, have had the opportunity to [43:50] consider the issue, come prepared to talk about it, hopefully deal with it all at once. And so [43:55] one hearing doesn't turn into two or three or more. I'll turn to Senator Blumenthal here just a moment, [44:05] but I've been advised repeatedly that unless I ask each of you the following question, the sky may fall [44:09] in, your nominations may not move, hell may freeze over, and the Senate may get nothing done. Although, [44:15] wait, that's already happening. So maybe we'll risk it though. Here's the question that I've got to ask [44:20] each of you. Do you agree without reservation to comply with any request or summons to appear and [44:24] testify before any duly constituted committee of Congress should you be confirmed? Let's just go [44:30] right down the line. We'll start with you, Mr. Crowell. Mr. Nash? Mr. DiBono? Without hesitation. Mr. [44:37] DiLorenzo? Absolutely. Judge Goody? Mr. Lane? Yes. Ms. Macy? I do. Mr. Timmer? I do. Senator Blumenthal? [44:47] Thank you, Mr. Chairman. I'd like to ask each of you how you will stand up to the administration, [45:02] which is appointing you. If your independence is somehow challenged or at state, what kinds of [45:12] standards and self-discipline you would impose on yourself? Maybe we can just go right down the line. [45:23] Senator, as a sitting trial judge, there are significant restrictions with respect to how [45:28] I might opine on matters of public policy. What I can tell you is I first took my oath at age 19 as a [45:34] young private at Fort Benning, Georgia. I've repeated that oath as a soldier multiple times as rank [45:40] increased. I've repeated that oath as a federal prosecutor in my multiple tours with the Department [45:46] of Justice. And I've repeated that oath when I first appeared before that committee, this committee, [45:51] seven years ago and received your approval. I will and my promise then remains my promise [45:58] today, which is to be a faithful servant of the Constitution. I will continue to do so. [46:01] Senator, I guess first and foremost, I'm a patriot. And I believe that we are fortunate, [46:11] all of us who are citizens of this country are fortunate that we have inherited [46:16] some wonderful and really unique in the world institutions to protecting our liberties. [46:23] One of the most important of those protections is judicial independence. The separation of powers that [46:30] creates the judiciary is a real bulwark for liberty in this country. And fortunate enough to be confirmed, [46:41] I would exercise that authority in the same way that I did my first tour of duty as a judge, [46:47] which is independence and applying the law in the in the man. Well, let let me just ask both of you, [46:56] who won the 2020 election? Senator Joe Biden was certified as the winner by this body, the United [47:10] States Senate, as the President of the United States, as has been the practice since 1804. [47:14] Mr. Nash? I concur with that answer. Let me go down the line on that question, [47:22] because I think it's a sign of your independence. Who won the 2020 election? Senator Biden was certified [47:29] as the winner of the 2020 election? I concur with my fellow nominees. I concur as well. Joe Biden was [47:39] certified as the winner of the 2020. I concur. I concur. I concur. You all concur. That's your [47:51] independence with the script that the White House has given you that Joe Biden was certified? Who won [47:58] the popular vote, Mr. Crow? Senator, I'm going to take a page from Justice Jackson when she appeared [48:06] before the Senate Judiciary. I am a sitting judge and I am deeply restricted by the- Mr. Nash. My [48:15] understanding is that the judicial canons apply to me as a candidate for judicial office and that [48:22] weighing in on that question would be inappropriate. I'm prohibited under canon four of the DC Code of [48:29] Judicial Conduct from answering a question about that and waiting to political matter. That's correct. [48:36] Canon four, the Judicial Code prohibits me from answering that question. As a sitting administrative [48:42] law judge and is a nominee. I concur. I concur. You all concur to you? You know how pathetic and absurd [48:56] you sound to the American public. You know how absolutely unacceptable this kind of answer is where [49:10] you deny what the facts are. Let me ask you, Mr. Crowell, was the Capitol attacked on January 6th? Senator, [49:17] I was here in the city. I live right here on Capitol Hill. There was a breach of the Capitol. It was [49:23] violent. There was law enforcement that was attacked. There was a violent breach of the Capitol. Yes, [49:28] sir? There was violence and the Capitol was attacked, correct? Well, the Capitol is a structure. What I [49:33] would say is there were there were individuals that were attacked to include our law enforcement [49:37] officers, the people that protect us here in the United States. But you're unwilling to say the [49:40] Capitol was attacked. Incredible. I think that goes into a political question. Senator, my only knowledge [49:52] of what happened on January 6th was media reports that I have seen. Well, you've watched those reports. [49:59] The Capitol was attacked, was it not? It appears to be clear that there were crimes that were [50:03] committed. What's your answer, sir? I witnessed violence against law enforcement, which I do not [50:15] condone as a political nominee or as a nominee for a judicial vacancy. I'm prohibited from the judicial [50:21] canons from characterizing the events of that day any further. There was public reporting that the [50:28] results on police officers, and I too absolutely would not condone that conduct. The senator used [50:35] the word attack. Any type of political characterization would be appropriate to comment on under the judicial [50:45] canons. My knowledge is also confined to what I saw through the media. There were attacks on police [50:52] officers. There was violence and attacks on police officers and wrong. It is a matter of public [51:09] reporting, and I personally have seen police body-worn camera from January 6th of 2021, and I certainly [51:16] do not condone violence against law enforcement, and that did happen that day. But beyond that, the judicial [51:21] canons would prohibit me from characterizing the events of January 6th. Like Judge Crowell, I watched [51:30] the events from my home here on Capitol Hill, and I saw absolutely violent violence against officers, other [51:38] people who are sworn to protect the Capitol. Well, I understand you all condemn violence. We all abhor attacks [51:47] on police. Not one of you is willing to say that the Capitol was attacked. Again, pathetic and ridiculous [51:59] for anyone. But for a nominee for judicial office, I began asking how we can be sure of your independence, [52:12] and nothing you've said here today provides me with any reassurance that you are going to be [52:18] independent, that you're willing to stand up to the president when he or a member of the administration [52:25] asks you to do something that is a violation of your judicial duties. This nation depends on the [52:33] independence of our judiciary. We're seeing it now as a bulwark of our rights and democracy, despite the [52:41] politicization and weaponization of the Department of Justice. And I am deeply disappointed that you're [52:49] unwilling to say the truth that you all saw on that day. The Capitol was attacked, not just police [52:56] officers. The Capitol of the United States was attacked in an effort to stop the lawful transfer of [53:04] power. This goes beyond violence to any individual. It goes to the essential functioning of our democracy, [53:13] and you're willing to apparently kowtow to the canned script that has been given you about certifying [53:25] Joe Biden about violence on January 6th, but not willing to say that Joe Biden was elected [53:34] President of the United States, won the popular vote, and the Capitol was attacked on January 6th. [53:40] I don't know how to put it more plainly, but ashamed and so deeply disappointed. Thank you. [53:57] Anything else, Senator Kim? I've just got one more thing. Mr. Lean, if you could help me with something. [54:02] In the fall of 2020, President Trump issued an executive order that sought to prohibit federal [54:08] contractors from engaging in unconscious bias training that perpetuated racial stereotypes. [54:13] That was his order. You were the leader, I believe, of DOL's Office of Federal Contract [54:18] Compliance Programs at the time. Is that correct? Do I have that right? Yes. Yes, that's correct. [54:21] I'm told that you in that role, however, did not advise contractors to stop unconscious bias training, [54:29] but you advised instead that contractors should still engage in the bias training despite the [54:34] President's executive order based on, quote, on the human condition that every person has certain [54:40] biases or stereotypes or prejudices, end quote. Could you just help me understand your, what's the [54:45] distinction there and did you, in fact, urge them not to comply with the executive order? Just clear [54:50] up the record for me, if you could. The executive order 13950 prevented sex or race-based stereotyping [54:57] or stigmas by federal contractors and it was intended to focus on trainings. It did not directly [55:04] address unconscious bias training and, of course, there is the First Amendment right of contractors to [55:09] be able to have training. So I did work within the administration with the Secretary of Labor, [55:15] who I reported to, to come up with an approach that would comply with the executive order, which we [55:21] faithfully executed, while also responding to many contractor questions about what trainings they were [55:28] allowed to do and what they could not do. The concern I saw with unconscious bias training under the [55:33] executive order was when it was focused on people of only one race or one gender, such as white males. [55:40] Which it was often focused on. That was not right. That violated the executive order. But if you [55:45] were going to do unconscious bias training, and I didn't advise companies to do it, what I said was [55:49] if you are going to do it, uh, you can do that, but you have to give the training to everyone and it cannot [55:55] be exclusive. Did you say that you think that there's a First Amendment right to unconscious bias training? [56:01] I said, what I said was there's a First Amendment right for contractors to have trainings and to have messages [56:07] and, of course, they cannot violate... Tell me about the scope of that. What would that right be? [56:13] Well, you know, corporations have messages that they state all the time, press releases, things like [56:19] that. What they can't do is violate federal anti-discrimination law. That is not viewed as [56:25] lawful speech. That's viewed as... But you're saying a corporation... I'm just trying to understand your [56:29] answer. A corporation has a First Amendment right to require its employees to engage in unconscious bias [56:36] training? No, I wasn't... And forgive me if I was... I wasn't trying to be that specific. The advice that [56:42] I received from the administration at the time, which was the first Trump administration, was that we [56:48] were... Executive Order 13950 was challenged in court. We were seeking to put out guidance that would allow it [56:54] to be upheld and that would allow it to be enforced. So what I was informed was we have to balance the focus [57:01] on anti-discrimination with the rights of companies to be able to have a message. This was the guidance [57:08] I received. I tried to apply it faithfully within the administration and with unconscious bias training [57:14] in particular. What I... My understanding, both from legal advice and my own research, was that any [57:19] unconscious bias training that focused on a particular race or sex with a stereotype about that race or sex [57:26] would be illegal and would violate federal anti-discrimination law. So that's what I focused on. [57:32] So is it your view that that companies have a First Amendment right to require their employees to [57:39] engage in political speech, to listen to certain political speech, to accept political speech? [57:45] No, I would not go that far. I... I mean, I respect the decision, Citizens United, that corporations do [57:53] have First Amendment rights. They do not have a right to dictate to their employees, in my view, political [57:59] views. And I've always taken that position. Yeah, I've never heard it said that a First Amendment, [58:05] there's a First Amendment right to unconscious bias training. So I was curious about that. Well, [58:10] forgive me. I didn't... I was being more general. Just... I wanted you to know how we approached it, [58:15] because I wanted to give you a good faith answer. Good. That's how we approached it. But I'm not [58:20] saying there's a First Amendment right to unconscious bias training. Yeah, good. Because I think there is [58:24] no such right. And I would think that opening up that Pandora's box will take you well beyond Citizens [58:29] United. And if you have concerns about Citizens United, as I do, I think to suggest that corporations [58:36] have broad and sweeping free speech rights over their employees in that manner would be a deep... far [58:43] beyond anything the United States Supreme Court has said. And in the case of... in the area of a race, [58:48] which is what we're talking about here, I mean, this... this executive order pertained to racial [58:52] stereotypes. To suggest that the First Amendment permits a corporation to sidestep [58:57] restrictions on engaging or refusing to engage in racial stereotyping, I think is... will be quite [59:04] extraordinary. So I take it... I hope that's not your position. It's not. Mr. Chairman, I agree with what you just [59:09] said strongly. Good. Um, Senator Kim, anything further? No. All right. Um, with that... You guys [59:19] don't need to say how long it's gonna... the record's gonna be open. Okay, the record will remain open until [59:25] Friday the 26th. And with that, this meeting of the Senate... uh, Homeland Security Committee is adjourned.