S. HRG. 110–131 CONFIRMATION HEARING ON THE NOMINATIONS OF LESLIE SOUTHWICK, TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; JANET T. NEFF, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHIGAN; AND LIAM O’GRADY, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION MAY 10, 2007 Serial No. J–110–52 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 37–449 PDF WASHINGTON : 2007 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma BRUCE A. COHEN, Chief Counsel and Staff Director MICHAEL O’NEILL, Republican Chief Counsel and Staff Director (II) VerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement .............................................................................................................. 174 Whitehouse, Sheldon, a U.S. Senator from the State of Rhode Island ............... 1 PRESENTERS Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi presenting Leslie Southwick, Nominee to be Circuit Judge for the Fifth Circuit ............. 3 Levin, Hon. Carl, a U.S. Senator from the State of Michigan presenting Janet T. Neff, Nominee to be District Judge for the Western District of Michigan ............................................................................................................... 7 Lott, Hon. Trent, a U.S. Senator from the State of Mississippi presenting Leslie Southwick, Nominee to be Circuit Judge for the Fifth Circuit ............. 4 Stabenow, Hon. Debbie, a U.S. Senator from the State of Michigan presenting Janet T. Neff, Nominee to be District Judge for the Western District of Michigan ............................................................................................................... 8 Warner, Hon. John, a U.S. Senator from the State of Virginia presenting Liam O’Grady, Nominee to be a U.S. District Judge for the Eastern District of Virginia ............................................................................................................. 5 STATEMENTS OF THE NOMINEES Southwick, Leslie, Nominee to be Circuit Judge for the Fifth Circuit ................ 9 Questionnaire .................................................................................................... 10 Neff, Janet T., Nominee to be District Judge for the Western District of Michigan ............................................................................................................... 62 Questionnaire .................................................................................................... 63 O’Grady, Liam, Nominee to be District Judge for the Eastern District of Virginia ................................................................................................................. 100 Questionnaire .................................................................................................... 101 QUESTIONS AND ANSWERS Responses of Leslie H. Southwick to questions submitted by Senators Leahy, Kennedy, Durbin, Whitehouse and Feingold ..................................................... 138 SUBMISSIONS FOR THE RECORD Lambda Legal, Kevin M. Cathcart, Executive Director, New York, New York, letter ...................................................................................................................... 170 Leadership Conference on Civil Rights, Wade Henderson, President & CEO, and Nancy Zirkin, Vice President/Director of Public Policy, Washington, D.C., letter ............................................................................................................ 172 Levin, Hon. Carl, a U.S. Senator from the State of Michigan, statement .......... 177 Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, statement ....... 179 National Association for the Advancement of Colored People, Mississippi State Conference, Derrick Johnson, President, Jackson, Mississippi, letter .. 182 People for the American Way and the Human Rights Campaign, Joe Solmonese, President, Human Rights Campaign and Ralph G. Neas, Presi- dent, People for the American Way, Washington, D.C., joint letter ................ 184 Warner, Hon. John, a U.S. Senator from the State of Virginia, statement ........ 190 Webb, Hon. Jim, a U.S. Senator from the State of Virginia, statement ............. 193 (III) VerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC VerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC NOMINATIONS OF LESLIE SOUTHWICK, TO BE CIRCUIT JUDGE FOR THE FIFTH CIRCUIT; JANET T. NEFF, TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF MICHI- GAN; AND LIAM O’GRADY, TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA THURSDAY, MAY 10, 2007 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC The Committee met, Pursuant to notice, at 10:16 a.m., in room 226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, presiding. Present: Senators Kennedy, Feingold, Durbin, Hatch, Brownback, and Coburn. OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND Senator WHITEHOUSE. The Committee will come to order. We have, today, three nominees to the Federal bench who we will hear from: Judge Leslie Southwick has been nominated to the U.S. Court of Appeals for the Fifth Circuit; Judge Janet Theresa Neff has been nominated to the U.S. District Court for the Western District of Michigan, and Judge Liam O’Grady has been nominated to the U.S. District Court for the Eastern District of Virginia. The hearing will proceed as follows: I will deliver brief opening remarks, then turn to Senator Hatch, who is the Ranking Member for this hearing, to deliver brief opening remarks. Then the nomi- nees will be introduced by their home State Senators in the order of seniority. The first two, of course, are Senators Cochran and Senator Warner, both of whom are here. I would like to welcome each of the nominees, their families and friends, to the U.S. Senate; of course, welcome, Senator Cochran and Senator Warner. As my colleagues know, voting to confirm an individual to the Federal bench is one of the most important and lasting decisions that a Senator can make. Not only do Federal judges make daily decisions about life, liberty and property, not only do they serve as an independent check on the executive and legislative branches, but they do so with a lifetime appointment in our Federal system. In this way, their work is meant to be independent of the ephem- (1) VerDate 0ct 09 2002 14:28 Aug 31, 2007 Jkt 037449 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\37449.TXT SJUD1 PsN: CMORC 2 eral political disputes, what Alexander Hamilton called ‘‘the ill hu- mors of the political day.’’ Our system of government has had what one observer called ‘‘the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite political passions to the cool, dry at- mosphere of judicial determination.’’ Maintaining this ‘‘cool, dry at- mosphere’’ is an enormous responsibility for judges. This hearing is an opportunity, the first and last opportunity, really, for Senators and the American people to consider whether the nominees are deserving of that responsibility. It is an oppor- tunity to explore their qualifications, their judicial philosophy, their judicial temperament, and their commitment to equal justice. On the subject of opportunities, I would like to take a moment to express my appreciation to our Chairman, Pat Leahy, for giving me the opportunity to chair this important hearing. I would also like to take a moment and commend his leadership in confirming judicial nominations during this Congress. So far this year, the Senate has confirmed 17 judicial nominations. To put that number in context, it equals the number of judges confirmed dur- ing the entire 1996 session of Congress, another time of divided government. As the President sends nominees to the Senate for confirmation, I am sure that we will consider them as carefully and as expeditiously as possible. To conclude, I look forward to the opening statements of my col- leagues in the Senate and of the nominees, and the answers to our questions from each of the nominees. I now turn to Ranking Member Hatch. STATEMENT OF HON. ORRIN G. HATCH,