People seem to find it interesting to look back at the confirmation hearings of the Federal Circuit judges. Judge Dyk’s testimony at his confirmation hearing is listed below. I edited out most of the answers of the others testifying that day; but, some of their answers were left in for context. I thought this comment about being a “jobist” was particularly interesting:
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Senator Durbin. Thank you for your answers on that. There is one other element that I always like to reflect on, as a former practicing attorney before a lot of judges, and that is the fact that when you are confirmed, and I hope that you all are soon, you will have a lifetime appointment, and that sometimes leads to a great feeling of independence, as it should. That is the nature of the judiciary. And it sometimes leads to a change in temperament, because folks are not really going to be held accountable as elected officials might be.
If you could each address briefly this issue of judicial temperament and give me your idea of what is required of you if you attain this position, I would appreciate it. Judge Scott, if you would start.
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Senator DURBIN. Thank you. Mr. Dyk, you kind of started at the top here, according to your resume, your first assignment as a clerk in the U.S. Supreme Court to three Justices, including the Chief Justice, so you have seen judicial temperament at many different levels. What are your thoughts about it when you are confirmed?
Mr. Dyk. Well, that first experience helped humble me. Senator Durbin, and I completely agree with you. I think it is very, very important for a judge to remember that he or she is a civil servant. That is exactly what judges are. They have a job, just like the postman. The postman delivers the mail. Judges decide cases that come before them. I think if you lose sight of that, you really do not belong on the bench. I think it is absolutely essential to be as courteous as possible to everyone, to remember that you have a job to do, to be a jobist, in Justice Holmes’ words, and to do the best you possibly can at all times and to have people who will keep you humble. I am sure my little league team will help with that.
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TESTIMONY OF TIMOTHY B. DYK, OF THE DISTRICT OF COLUMBIA, TO BE U.S. CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT
Mr. Dyk. Thank you. Senator. I would like to first thank the committee for giving me a hearing. I appreciate that very much, and just briefly, I would like to say that I regret that my father, Walter Dyk, is not here today. He died a number of years ago and it would have been a privilege to have him. I would like to thank my family and my colleagues from Jones Day and my colleagues for coming here today and I will spare the committee further introductions.
QUESTIONING BY SENATOR DEWINE
Mr. Dyk, let me start with you, if I could. In a 1994 Federalist Society roundtable discussion entitled, “Do We Have a Conservative Supreme Court,” do you recall making statements about Justice Scalia’s plain meaning approach to interpreting laws as being conservative, but a more expansive analysis as being moderate? In your response, you also stated that, “The notion is that Congress speaks only through the words of the statute and that this is a mechanical approach.” You further explain that, “A Senator or a Congressman is much more likely to read the committee report than 559 the legislation itself, so the committee report could actually be more reliable than the words of the statute.” I wonder if you would be so kind as to elaborate on this response.
Mr. Dyk. Surely, Senator. I do recall the statement, and obviously, as a subordinate Federal judge, I would follow the Supreme Court’s direction to rely on the plain language primarily. I do agree with that completely. At the same time, I think sometimes cases get into a bit of a dueling dictionary, and under those circumstances, I think it is appropriate often to look at the central purpose of the legislation, as the Supreme Court did, for example, this last term in the Moscarello case involving the question of whether carrying a firearm would include carrying a firearm in the vehicle, and after reviewing the dictionaries and press statements, the Court finally concluded that, yes, it did encompass carrying the firearm in the vehicle because the purpose of the statute was to require the criminal to leave his gun at home.
So I do think that statutory purpose and background do have a role to play as to legislative history, but I certainly agree that the primary meaning of the statute is to be gleaned from the plain language that Congress uses.
Senator DeWine. And that recent Supreme Court decision, again, just to clarify for me, demonstrates to you what?
Mr. Dyk. It demonstrates to me the importance of looking at the purpose of the legislation, which in this instance was to cause the criminal to leave the gun at home. So any ambiguities in the meaning of “carry” were resolved in favor of broader construction of the statute, which would punish having a gun in the car.
Senator DeWine. I wonder if we could take this one step further and talk about a case that might be before you that was a case of first impressions where there was not Supreme Court precedent and there was not circuit precedent, I wonder if you could describe for us your process of analysis. You have done this a little bit, but I wonder if you could just elaborate on it.
Mr. Dyk. Surely, Senator. Obviously, if there were a case in point from the Supreme Court or from the circuit, one would follow that, but if there were not, I would look to analogous precedent in the Supreme Court and in the Federal circuit, the other circuits, and if it were a statutory construction case, I would look at the language of the statute and go through the process that I have just described to you. If it were a constitutional case, I would look at the language of the Constitution, at the principles embodied in the Constitution, and at prior precedent in an attempt to resolve the case in the narrowest possible way, because I think, as I also said in that Federalist Society panel, I think judges need to be very careful not to write more broadly than is necessary.
Senator DeWine. It sounds like that was an interesting panel.
Mr. Dyk. It was a wonderful panel. Judge Bork was there and others, yes.
Senator DeWine. Let me just, if I could, continue on this train of thought and ask you another question about that same panel. You made the following statement. I will ask you if you recall it. If you want me to put it in better context, I will. I think I have the transcript here. Let me just give you a quote and ask if you could maybe expand on it. 560
”Roe and the flag burning cases reflect a moderate Court in the area of civil constitutional law.” I wonder if you could explain, what did you mean by that?
Mr. Dyk. Well, I think the reference to the flag burning case was following the earlier precedent in that area, in that I think I characterized moderate jurisprudence, conservative jurisprudence, as following the precedent, and I think the same thing is true with respect to the Court’s decision to rely on stare decisis in relation to the Roe case. Having that precedent on the books, it was appropriate to follow it, and that was the view I was expressing.
Senator DeWine. You have expressed some strong opinions in regard to the issue of cameras in the court. You have been involved in that.
Mr. Dyk. Yes, for many years.
Senator DeWine. Yes. I have some interesting quotes from you, and I just wonder if you could just tell me where you think we should go in this area. You have already expressed your opinion about it, but I would like for you to elaborate a little bit and explain what public policy advantages you see in opening up the Federal courts to cameras.
Mr. Dyk. Senator, the Supreme Court, of course, told us in the Richmond newspapers case and later cases about the importance of openness in the judicial system and how that served not only to educate the public, but even more important, that it served the system itself. Along that line, I think that having cameras in the courts allows the public that cannot visit the court, that does not read about it in the newspapers, to see the functioning of the judicial system, and I have always thought it was critical that the public understand how the system functions, for good or bad, and that having the cameras there gives information to a wide body of the public that would otherwise not receive it.
Senator DeWine. One of the counterarguments might be — and I must say, Mr. Dyk, I happen to agree with you, just as an aside, sort of irrelevant to the question — but one of the counterarguments that is made is that cameras in the courtroom change conduct. Judges act differently. Lawyers act differently. Jurors might act differently. How do you react to that?
Mr. Dyk. Well, those concerns, of course, have been expressed, and genuinely so, by many people. The experience in the State courts, which have had cameras in many States for a number of years, has been that the judges who have presided at those trials, who have had the experience, have thought that there was not an adverse effect on trial participants and that, indeed, having cameras there can make the judges, the witnesses, the jurors, the lawyers behave better than they otherwise would.
Senator DeWine. Better?
Mr. Dyk. Better.
Senator DeWine. Let me — go ahead.
Mr. Dyk. I am sorry. Senator. I think that few judges would go to sleep with a camera in the courtroom. [Laughter.]
Senator DeWine. One never knows. One never knows. Strange things do happen.
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Let me just conclude — and then I will turn it over to Senator Durbin, along this line, on a quote that you made which I think is particularly interesting. This is your quote and your words.
In times past in this country, people who wanted to find out about a case could go down to the courthouse and watch and learn. That is not feasible anymore. Now, people who want to watch the Federal courts will be confined to secondhand reports.
I think that expresses it very well.
Mr. Dyk. Thank you, Senator.
Senator DeWine. Senator Durbin.
QUESTIONING BY SENATOR DURBIN
Senator DURBIN. Thank you, Mr. Chairman.
Mr. Dyk, let me say at the outset, I had an interesting experi- ence a week ago. I was last Saturday in Lake Forest, IL. A mature lady came up to me and said that she had always been fascinated with politics and if she had been bom 20 years sooner, she would have been a candidate. I said, well, can I be so bold to ask your age, and she said, “I am 87 years old.” I said, oh, congratulations.
She said, “Well, I am a Wellesley grad, you know, and we live a long, long time.” It is a testament to your mother and her presence here today and it says something about Wellesley. I never heard it before, and now I have two living examples to point to.
I would like to ask, since I am so familiar with the Illinois nominees and I have talked to them about this, I really would like to ask, for the record, about a case which I think would go to some of the questions asked by the chairman. Probably the most notorious, outstanding, noteworthy, you pick the adjective, law case of our generation was the O.J. Simpson trial. Driving around the city of Chicago, every cabbie had it on the radio, following it every day, and people have gone back and forth in their opinions about what it meant and what it said.
I would like to ask each of you, as aspiring judges or as sitting judges, what lessons did America learn from the O.J. Simpson trial? Mr. Dyk.
Mr. Dyk. Well, I think that, contrary to the views of many people, that having the O.J. Simpson trial on television did teach the public some important lessons, and I think one of the lessons that it taught the American public is the importance of a judge controlling the judicial proceedings, and that did not happen to the extent that it should have in the O.J. Simpson trial.
I think it taught the American public about the importance of having fairness in proceedings, fairness on the part of the prosecutor, fairness on the part of the defendant, and that they saw that the jury could reach a verdict which many people disagreed with. I think it brought into the public arena debates about the jury system, about how prosecution should be conducted, how defense lawyers should conduct themselves, and I think that was very, very important.
Senator Durbin. Thank you for your answers on that.
There is one other element that I always like to reflect on, as a former practicing attorney before a lot of judges, and that is the fact that when you are confirmed, and I hope that you all are soon, you will have a lifetime appointment, and that sometimes leads to a great feeling of independence, as it should. That is the nature of the judiciary. And it sometimes leads to a change in temperament, because folks are not really going to be held accountable as elected officials might be.
If you could each address briefly this issue of judicial temperament and give me your idea of what is required of you if you attain this position, I would appreciate it. Judge Scott, if you would start.
Judge ScOTT. Well, I do think judicial temperament is a very important feature for a judge and to keep in mind the importance of treating the lawyers, the litigants, the jurors, the court personnel with courtesy and respect. I would hope that after 19 years’ experience on the State court and, I hope, a good reputation for those qualities, that I would not undergo a transformation and become Attila the Hun.
I think something that is helpful, frankly, to me, is to have some people in your life who call me “Jeanne” and not “Judge” and to keep me down to earth, and I do have a base in Springfield of people who have known me for years who will not be the least bit impressed no matter what office I hold. [Laughter.] 563
Senator DeWine. We all need people like that.
Senator DuRBiN. That is right. Judge Pallmeyer.
Judge Pallmeyer. All judges need to be fair and all judges need to be hard working, and I think another characteristic that really is appealing for judges is humility. I am confident that I will retain humility because I think it is an awesome responsibility and I believe strongly that courtesy to the litigants and absence of arrogance are absolutely critical qualifications.
Senator DURBIN. Judge Herndon.
Judge Herndon. Senator, I certainly do not disagree with the comments of my colleagues. I had the opportunity over the nearly 15 years I practiced law to practice in a variety of courthouses around the country. I had the opportunity to see any number of judges and learn what was good about some and what was bad about some others.
Since the time I have been on the bench, I have made every effort to be the kind of judge I would have wanted to appear before as a trial lawyer. I understand that, or, at least, it is my endeavor that if I gain respect while on the bench, and this has been my philosophy on the State bench, that it is not because of an arbitrary rule requiring a certain demeanor or requiring a certain action in the courtroom in the name of decorum. If I attain respect, it will be because I have accorded people respect. It will be because of the decisions I have made and the way I have handled my business.
As a very minor point, I was favorably impressed to a great extent when you called me the other day to tell me about this hearing and you said, “Judge Herndon, this is Dick Durbin.” You did not say, “This is Senator Durbin,” you said, “This is Dick Durbin.” When I call law offices to schedule cases, I say, “This is Dave Herndon calling,” and I am oftentimes criticized by lawyers, “Why did you not tell my secretary you are a judge?” I say, “Because I am Dave Herndon.”
Senator DURBIN. Thank you. Mr. Dyk, you kind of started at the top here, according to your resume, your first assignment as a clerk in the U.S. Supreme Court to three Justices, including the Chief Justice, so you have seen judicial temperament at many different levels. What are your thoughts about it when you are confirmed?
Mr. Dyk. Well, that first experience helped humble me. Senator Durbin, and I completely agree with you. I think it is very, very important for a judge to remember that he or she is a civil servant. That is exactly what judges are. They have a job, just like the postman. The postman delivers the mail. Judges decide cases that come before them. I think if you lose sight of that, you really do not belong on the bench. I think it is absolutely essential to be as courteous as possible to everyone, to remember that you have a job to do, to be a jobist, in Justice Holmes’ words, and to do the best you possibly can at all times and to have people who will keep you humble. I am sure my little league team will help with that.
Senator DURBIN. Mr. Chairman, we can now say to the attorneys of America, we have them all on the record. Thank you very much.
Senator DeWine. Senator Durbin, thank you very much.
Mr. Dyk, you have been nominated to be a circuit judge for the Federal circuit. Can you tell me why you want that job? For some of us, looking at the jurisdiction, we might think it might not be 564 the most interesting job. What prepares you for it, but also, why do you want it?
Mr. Dyk. Senator, I have always wanted to be a judge and I think the Federal circuit is a wonderful court. I have had the honor to practice before that court a considerable amount in the last few years. I think I have argued five times before it. I have briefed other cases. I guess I have always been in my practice someone who has found a patent case to be as interesting as a first amendment case. In each instance, there is a challenge.
Senator DeWine. It sounds like you are in the right court.
[Laughter.]
Mr. Dyk. I think there is a challenge to understand the case, and I think the Federal circuit presents particular challenges because I think the cases are difficult, they require a great deal of time and attention, and I would enjoy it and I would particularly enjoy being part of a process and trying to make that process work in the best possible way.
Senator DeWine. Objectively — trying to stand back from your experience practicing in that court — what are the qualities that, as a litigant or as a practicing attorney in that court, you would look for in a judge of that court?
Mr. Dyk. I think a commitment to work through the difficulties of the cases, to understand them, I think to try to create a situation where the reversal rate of district courts is less than it is now. I have heard percentages like a 53-percent reversal rate, which
Senator DeWine. Really?
Mr. Dyk [continuing]. Which would be extraordinary by other circuit standards and there is something lacking there in communication, I think, when that happens.
One of the things that I think that court should strive for is perhaps more emphasis on settlement. It does not have a mediation program now, unlike many of the other circuits. I had experience with the eighth circuit mediation program recently and it was excellent and resulted in a settlement.
Senator DeWine, Thank you very much.
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Mr. Dyk, Chairman Hatch has asked me to ask you a series of questions, which I am now about to read to you. These are questions that Senator Hatch would Uke for you to answer.
In Phillips V. Washington Legal Foundation, the Supreme Court recently ruled that so-called lOLATA interest funds which pool small client trust accounts to earn interest must follow the principal deposited in those accounts. While it is hardly a novel ruling that interest follows principal, there has been considerable debate over whether the use of these accounts constitutes a taking. Do you have any comments with respect to this case or the takings issue the fifth circuit will soon need to address?
Mr. Dyk. My firm has been involved in that case, though I have not been personally. It is a very important case. It presents a very difficult issue, and I think the whole takings area is becoming more and more important and it remains quite complex, as I think the takings issue in that particular case will be on the remand. There is an argument as to whether the Penn Central factors should be followed or whether those can be dispensed with, and I think there is a certain lack of clarity in the law and that we would all benefit from further Supreme Court decisions on that subject.
Senator DeWine. As you know, many modem takings clause cases involve so-called regulatory takings. When confronted with a regulatory takings case, what basic principles would you apply in determining whether a taking has occurred?
Mr. Dyk. I think the job of a junior Federal judge on the Federal circuit, first of all, is to follow the Supreme Court, and in the Lucas case and in the Dolan case, the Supreme Court has given us considerable guidance as to how to approach that. But the regulatory takings issue is a very important question and it seems clear that if the entire economic use has been destroyed as a result of the regulation, that there in many circumstances is going to be a claim.
What is not so clear and needs to be clarified is what is the situation if the regulatory action does not deprive the owner of the entire economic use. Of course. Justice Scalia has suggested there may be differences between land and personal and a wide variety of factors that need to be considered.
Senator DeWine. In your opinion, should the normal presumption of constitutionality that is given to statutes and regulations apply to such regulations that give rise to potentially compensable takings?
Mr. Dyk. Well, if I understand the Supreme Court correctly and the Chief Justice’s remark in the Dolan case, that there is under these circumstances not a presumption of constitutionality but that it has to be approached on a de novo basis.
Senator DeWine. Finally, the Bill of Rights in large part protects citizens from government excesses or abuse. The first amendment, for example, prohibits government from regulating our speech or forcing us to worship in any particular fashion. Similarly, the fifth amendment prohibits the government from, among other things, forcing us to testify against ourselves. That amendment, of course, also prevents the government from taking our property without just compensation.
You have engaged in considerable first amendment litigation in your practice. Could you identify for us the similarities you see, if 568 you think any exist, between the first amendment’s protection of speech and the fifth amendment’s protection of private property?
Mr. Dyk. Well, the Chief Justice has himself addressed that question, suggesting that both provisions are in the Bill of Rights and that both provisions deserve special attention as a result of that.
Senator DeWine. I have two additional questions from Senator Thurmond. So even though there are only two of us up here — [Laughter.]
Mr. Dyk, I understand that you have been a member of the board of directors of People for the American Way for many years. Please explain why you joined the board of directors and, generally, your interest in this organization.
Mr. Dyk. I was invited to join the board of directors in the aftermath of a litigation that I became involved in through People for the American Way. I thought that People for the Ainerican Way did some interesting and important things. I did not agree with everything that People for the American Way did. In fact, one of my early experiences with the organization was to have a very heated debate within the organization about whether the People for the American Way should continue to endorse the fairness doctrine. My own view was then and continues to be that the fairness doctrine is unconstitutional and People for the American Way endorsed it. I think it is a valuable organization. I think it was a valuable organization. I did not agree with everything it did.
Senator DeWine. Let me follow up. Senator Thurmond’s next question covers this to some extent, or you have already covered it a little bit, but I want to get more particular. Senator Thurmond asks, are you aware of any cases taken or amicus briefs filed by the People for the American Way while you were on the board of directors that you did not agree with?
Mr. Dyk. Well, certainly the position in the fairness doctrine cases where they were on the other side from me in litigation was a primary example of that. The board was generally not asked to pass on whether particular cases should be filed. It was a board of about 50 people. Those decisions were made by the president of the organization and sometimes in consultation with the executive committee.
Senator DeWine. It was actually just made by the president?
Mr. Dyk. Most of them were just made by the president, and if he had something particularly difficult, he would consult with the executive committee. I was not a member of the executive committee.
Senator DeWine. It was not an amicus committee, or — I mean, it was just basically the president?
Mr. Dyk. Well, the president in consultation with his staff, including the litigation director, but there was no amicus committee or anything like that.
Senator DeWine. Senator Durbin.
Mr. Dyk. Senator, could I clarify just one answer I gave to you?
Senator DeWine. Absolutely.
Mr. Dyk. I would not want to leave my colleagues in the Federal Circuit with the impression that the reversal rate was 53-percent 569 overall for the entire court. I was referring to intellectual property cases. I do not think I made that clear.
Senator DeWine. Thank you very much. I appreciate that. Do any of the members of the panel want to add anything else? Judge.
Judge Scott. No, Senator, I do not.
Senator DeWine. The record will remain open. The procedure of the committee is that you may receive additional written questions from members of the committee, so you can be prepared for that possibly occurring. The record will remain open for additional questions until the close of business tomorrow, July 17. We thank the second panel very much.
Mr. Dyk. Thank you.
Judge Herndon. Thank you, Mr. Chairman and Senator Durbin.
Judge Pallmeyer. Thank you very much.
Judge Scott. Thank you.