{"id":5774,"date":"2012-12-30T16:19:27","date_gmt":"2012-12-30T22:19:27","guid":{"rendered":"http:\/\/www.717madisonplace.com\/?p=5774"},"modified":"2012-12-30T16:21:43","modified_gmt":"2012-12-30T22:21:43","slug":"judge-brysons-nomination-hearing","status":"publish","type":"post","link":"https:\/\/www.717madisonplace.com\/?p=5774","title":{"rendered":"Judge Bryson’s Confirmation Hearing"},"content":{"rendered":"

With Judge Bryson apparently taking senior status next week, I thought it might be of interest to take a look back at his confirmation hearing before the Senate Judiciary Committee in 1994:<\/p>\n

<\/p>\n

<\/p>\n

We will now turn to the introduction of William C. Bryson, of Be- <\/strong><\/p>\n

thesda, MD. <\/strong><\/p>\n

<\/strong><\/p>\n

Senator Sarbanes, if you would come forward. <\/strong><\/p>\n

<\/strong><\/p>\n

STATEMENT OF HON. PAUL S. SARBANES, A U.S. SENATOR <\/strong><\/p>\n

FROM THE STATE OF MARYLAND <\/strong><\/p>\n

<\/strong><\/p>\n

Senator Sarbanes. Senator DeConcini and Senator Simon, I am <\/strong><\/p>\n

very pleased to be here this afternoon to introduce William C. <\/strong><\/p>\n

Bryson, a distinguished resident of Maryland who has been nomi- <\/strong><\/p>\n

nated by the President to serve as a U.S. circuit judge for the Fed- <\/strong><\/p>\n

eral Circuit. Bill is sitting right here behind me. <\/strong><\/p>\n

<\/strong><\/p>\n

I must say he brings an extraordinary record before this commit- <\/strong><\/p>\n

tee, a graduate of Harvard College, magna cum laude, in 1969, and <\/strong><\/p>\n

from the University of Texas Law School in 1973, where he was <\/strong><\/p>\n

editor-in-chief of the Texas Law Review. <\/strong><\/p>\n

<\/strong><\/p>\n

After he graduated from the University of Texas Law School, he <\/strong><\/p>\n

clerked first for Judge Henry Friendly, one of our Nation’s most <\/strong><\/p>\n

distinguished jurists, in the second circuit, and then was law clerk <\/strong><\/p>\n

for Justice Thurgood Marshall on the Supreme Court. <\/strong><\/p>\n

<\/strong><\/p>\n

Bill Bryson then went into practice here in Washington for 3 <\/strong><\/p>\n

years where he did civil and criminal litigation, mainly Federal, at <\/strong><\/p>\n

the trial and appellate levels. Since 1978 \u2014 in other words, for the <\/strong><\/p>\n

last 15, 16 years \u2014 he has been in the Department of Justice in in- <\/strong><\/p>\n

creasingly more senior and responsible positions. <\/strong><\/p>\n

<\/strong><\/p>\n

He started as assistant to the Solicitor General. He then became <\/strong><\/p>\n

chief of the Appellate Section in the Criminal Division. He then <\/strong><\/p>\n

was Special Counsel to the Organized Crime and Racketeering Sec- <\/strong><\/p>\n

tion of the Criminal Division; that was from 1982 to 1986. <\/strong><\/p>\n

<\/strong><\/p>\n

From 1986 to the present, he has been in the Solicitor General’s <\/strong><\/p>\n

office. He was a Deputy Solicitor General, one of four deputies to <\/strong><\/p>\n

the Solicitor General responsible for supervising and briefing and <\/strong><\/p>\n

the argument of cases before the Supreme Court. He twice has <\/strong><\/p>\n

been the Acting Solicitor General. In between the resignation of <\/strong><\/p>\n

one Solicitor General and the appointment of another, he served as <\/strong><\/p>\n

the Acting Solicitor General. Until just a few weeks ago, he was <\/strong><\/p>\n

Acting Associate Attorney General following the resignation of <\/strong><\/p>\n

Webster Hubbell. <\/strong><\/p>\n

<\/strong><\/p>\n

So he has, in effect, given a career of dedicated public service in <\/strong><\/p>\n

the Justice Department, and he has been recognized at every step <\/strong><\/p>\n

<\/strong><\/p>\n

<\/strong><\/p>\n

<\/strong><\/p>\n

along the way and I just want to mention two or three of these rec- <\/strong><\/p>\n

ognitions. <\/strong><\/p>\n

<\/strong><\/p>\n

In 1984, the Federal Bar Association gave him the Tom C. Clark <\/strong><\/p>\n

Award. It is awarded annually to a Federal agency lawyer for out- <\/strong><\/p>\n

standing service as a government lawyer. In 1985, he received the <\/strong><\/p>\n

Department of Justice Exceptional Service Award, the highest <\/strong><\/p>\n

award in the Department of Justice. It is given annually to the <\/strong><\/p>\n

Justice Department attorney who has rendered the most excep- <\/strong><\/p>\n

tional service. In 1990, he was the first recipient of the Beatrice <\/strong><\/p>\n

Rosenberg Award, which is awarded annually by the District of Co- <\/strong><\/p>\n

lumbia bar for outstanding service as a government attorney. <\/strong><\/p>\n

<\/strong><\/p>\n

He has had an extraordinary record. It is one of very distin- <\/strong><\/p>\n

guished public service. I think this appointment is very well mer- <\/strong><\/p>\n

ited. He will be an outstanding member of the Federal circuit, and <\/strong><\/p>\n

I commend him to the committee most strongly and urge your fa- <\/strong><\/p>\n

vorable recommendation. I look forward to his early confirmation <\/strong><\/p>\n

by the Senate. <\/strong><\/p>\n

\n

Senator DeConcini. Thank you, Senator Sarbanes. We appre-<\/p>\n

ciate your taking the time to introduce Mr. Bryson and your strong,<\/p>\n

strong recommendation.<\/p>\n

<\/p>\n

We are pleased to have Representative Morella here on behalf of<\/p>\n

the nominee as well.<\/p>\n

\n

Representative.<\/p>\n

\n

STATEMENT OF HON. CONSTANCE A. MORELLA, A REPRE- <\/strong><\/p>\n

SENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND <\/strong><\/p>\n

<\/strong><\/p>\n

Representative Morella. Thank you. It is nice to be here with <\/strong><\/p>\n

Senator Sarbanes. Mr. Chairman, it is great to be here with this <\/strong><\/p>\n

distinguished committee. I am very honored to introduce to the <\/strong><\/p>\n

committee this afternoon my constituent, William Curtis Bryson, <\/strong><\/p>\n

who has been nominated to serve as a circuit judge on the U.S. <\/strong><\/p>\n

Court of Appeals for the Federal circuit. <\/strong><\/p>\n

<\/strong><\/p>\n

It is always a great pleasure to introduce a constituent to this <\/strong><\/p>\n

committee who has been nominated, but this is a particular honor <\/strong><\/p>\n

because this gentleman is just so highly, highly qualified. A review <\/strong><\/p>\n

of Mr. Bry son’s impeccable academic credentials and his profes- <\/strong><\/p>\n

sional record indicates that he has more than just the intellectual <\/strong><\/p>\n

acumen required of a judge. He also has the experience, the tem- <\/strong><\/p>\n

perament, the commitment, and the integrity to make him an out- <\/strong><\/p>\n

standing judge. He will be a bright star in the judicial galaxy. <\/strong><\/p>\n

<\/strong><\/p>\n

Mr. Chairman and members of the committee, I know that you <\/strong><\/p>\n

all know Mr. Bryson from his current position as the Deputy Solici- <\/strong><\/p>\n

tor General, having been Acting Solicitor General, and as the Act- <\/strong><\/p>\n

ing Associate Attorney General with the U.S. Department of Jus- <\/strong><\/p>\n

tice \u2014 such prestigious, responsible positions. <\/strong><\/p>\n

<\/strong><\/p>\n

Prior to his arrival at the Department of Justice in 1978, Mr. <\/strong><\/p>\n

Bryson was in private practice here in Washington and has served <\/strong><\/p>\n

as a law clerk for both former Supreme Court Justice Thurgood <\/strong><\/p>\n

Marshall and former Judge Henry Friendly of the Second Circuit <\/strong><\/p>\n

Court of Appeals. <\/strong><\/p>\n

<\/strong><\/p>\n

When at the Department of Justice, and while receiving his edu- <\/strong><\/p>\n

cation at both Harvard College and the University of Texas School <\/strong><\/p>\n

of Law, where, incidentally, he was editor-in-chief of the law re- <\/strong><\/p>\n

<\/strong><\/p>\n

<\/strong><\/p>\n

<\/strong><\/p>\n

view, and, at Harvard, magna cum laude, Mr. Bryson has been the <\/strong><\/p>\n

recipient of many awards and honors. <\/strong><\/p>\n

<\/strong><\/p>\n

As a lawyer at the Department of Justice, he has very effectively <\/strong><\/p>\n

represented the government, has argued before the Supreme Court <\/strong><\/p>\n

on 31 occasions, and has second-chaired arguments on more than <\/strong><\/p>\n

100 occasions. In addition, Mr. Bryson has an active record in pro <\/strong><\/p>\n

bono work. Even with the Department of Justice, he has attempted <\/strong><\/p>\n

to serve the interests of the disadvantaged in a number of ways, <\/strong><\/p>\n

especially relating to employment discrimination. <\/strong><\/p>\n

<\/strong><\/p>\n

So, Mr. Chairman and members of this distinguished committee, <\/strong><\/p>\n

I am very pleased to present to you a very highly qualified can- <\/strong><\/p>\n

didate for the Federal Circuit Court of Appeals. I certainly respect- <\/strong><\/p>\n

fully urge this committee to give its support to Mr. Bryson’s nomi- <\/strong><\/p>\n

nation. <\/strong><\/p>\n

<\/strong><\/p>\n

I am pleased to present to you William Curtis Bryson, and I <\/strong><\/p>\n

would like to end with a quote that I think aptly describes him <\/strong><\/p>\n

from Shakespeare: a man of sovereign parts, he is esteemed, well- <\/strong><\/p>\n

fitted in arms, glorious in arts. Nothing becomes him ill that he <\/strong><\/p>\n

would well. I believe he will serve us and the administration of jus- <\/strong><\/p>\n

tice very well. <\/strong><\/p>\n

<\/strong><\/p>\n

Thank you. <\/strong><\/p>\n

<\/strong><\/p>\n

_________________________________________________________________________________________________<\/p>\n

TESTIMONY OF WBLLIAM C. BRYSON, BETHESDA, MD, TO BE A<\/p>\n

U.S. CIRCUIT JUDGE FOR THE FEDERAL CmCUIT<\/p>\n

\n

Mr. Bryson. Thank you, Senator. I would join the other nomi- <\/strong><\/p>\n

nees in thanking the committee for giving us and me the privilege <\/strong><\/p>\n

of being here today. I would like to introduce my parents, who are <\/strong><\/p>\n

here, Mr. and Mrs. Addison Darden; my wife, Penny Clark; and my <\/strong><\/p>\n

children, Alice and Ellen, were not able to make it today, but they <\/strong><\/p>\n

tell me from their place on vacation that they are with me in spirit. <\/strong><\/p>\n

[Laughter.] <\/strong><\/p>\n

\n

Senator DeConcini. I think they are very wise people, consider-<\/p>\n

ing the circumstances. [Laughter.]<\/p>\n

\n

QUESTIONING BY SENATOR DECONCINI<\/p>\n

\n

Senator DeConcini. Thank you very much, and welcome to ev-<\/p>\n

eryone who is here today.<\/p>\n

\n

Let me pose some questions to all of the nominees. If you are<\/p>\n

confirmed as an appellate judge or a district judge, at some time<\/p>\n

you will be asked to rule on various cases that have been decided<\/p>\n

by the court of appeals, in the case of the district judge, and the<\/p>\n

Supreme Court, in the case of the appellate judge, with which you<\/p>\n

may personally have some disagreement.<\/p>\n

\n

How do you approach this, starting with you, Mr. Bryson? Would<\/p>\n

you consider yourself bound by such precedent?<\/p>\n

\n

Mr. Bryson. Yes, Senator, I would. I am trained as a common <\/strong><\/p>\n

law lawyer and believe very much in the rule of law, and the rule <\/strong><\/p>\n

of law in the common law system being the rule of precedent. So <\/strong><\/p>\n

I would. <\/strong><\/p>\n

\n

Senator DeConcini. Ms. Vance.<\/p>\n

\n

Ms. Vance. Yes, sir, I would view myself as bound by the prece-<\/p>\n

dents of my circuit and of the U.S. Supreme Court.<\/p>\n

\n

\n

\n

14<\/p>\n

\n

Senator DeConcini. Mr. Dominguez.<\/p>\n

\n

Mr. Dominguez. Yes, sir. Not only under Federal law, but also<\/p>\n

under common law of Puerto Rico, we are bound by the precedent<\/p>\n

of” stare decisis.<\/p>\n

\n

Mr. Casellas. Most definitely, Senator, in my case, also, affirma-<\/p>\n

tively.<\/p>\n

\n

Senator DeConcini. One of the issues that I have always been<\/p>\n

deeply interested in is the Judicial Tenure Act and the discipline<\/p>\n

of the judiciary. Do you have any feelings on whether or not there<\/p>\n

ought to be a greater structure within the Federal judiciary for<\/p>\n

complaints against judges or disciplinary action to be taken against<\/p>\n

Federal judges?<\/p>\n

\n

Mr. Bryson.<\/p>\n

\n

Mr. Bryson. Yes, Senator. I think that there should be room for <\/strong><\/p>\n

legitimate complaints to be brought against judges. I think there <\/strong><\/p>\n

are instances in which, just in my own experiences, judges who are <\/strong><\/p>\n

not answerable for conduct that really goes well beyond the limits <\/strong><\/p>\n

even of a generous construction of judicial discretion should not be <\/strong><\/p>\n

allowed to go unchecked. <\/strong><\/p>\n

<\/strong><\/p>\n

The problem, of course, is that there is a great potential for in- <\/strong><\/p>\n

timidation of judges by complaints coming from losing parties or <\/strong><\/p>\n

parties who simply have decided that the judge is against them be- <\/strong><\/p>\n

cause their cause is weak. As you know, there are so many of those <\/strong><\/p>\n

people that come before the courts that the potential for harass- <\/strong><\/p>\n

ment of judges would be great. <\/strong><\/p>\n

<\/strong><\/p>\n

Nonetheless, I think, in the balance, that we need probably to be <\/strong><\/p>\n

willing to put up with somewhat more harassment in the interest <\/strong><\/p>\n

of having some avenue for correction of what now goes very often <\/strong><\/p>\n

as not corrected. <\/strong><\/p>\n

<\/strong><\/p>\n

Senator DeConcini. Do you have any suggestions? Should the<\/p>\n

circuit courts all be required to have a disciplinary process or a<\/p>\n

complaint process?<\/p>\n

\n

Mr. Bryson. I think the circuit courts should have a complaint <\/strong><\/p>\n

process. I think that there are some courts in which some forms of <\/strong><\/p>\n

complaint process are in place now and I think that that should be <\/strong><\/p>\n

encouraged. I am not sure whether it should be done as a matter <\/strong><\/p>\n

of statute or as a matter of independent decision made by the cir- <\/strong><\/p>\n

cuit courts on the basis of their own perception of the degree of the <\/strong><\/p>\n

problem, but I think it would be a good idea. <\/strong><\/p>\n

\n

Senator DeConcini. Ms. Vance.<\/p>\n

\n

Ms. Vance. Senator, I understand the concern for monitoring the<\/p>\n

behavior of judges who have life tenure and who may not have the<\/p>\n

bench and the members of the bar active in their supervision. How-<\/p>\n

ever, there are Federal statutes that do permit the litigants and<\/p>\n

frivate members of the public to file a complaint indicating that a<\/p>\n

ederal judge has acted prejudicially to the administration of the<\/p>\n

duties of his office, or that he is disqualified by reason of mental<\/p>\n

infirmity or disability to sit. Those cases would be decided by the<\/p>\n

head of the circuit bench for the district.<\/p>\n

\n

There are also a number of other Federal statutes that govern<\/p>\n

the behavior of Federal judges and limit their practice of law, their<\/p>\n

personal required disclosure of financial interests, so that I think<\/p>\n

there are mechanisms already for disciplining Federal judges. The<\/p>\n

question is whether or not they are utilized.<\/p>\n

\n

\n

\n

15<\/p>\n

\n

Senator DeConcini. You are in the third circuit?<\/p>\n

\n

Ms. Vance. No, sir. I am in the fifth circuit.<\/p>\n

\n

Senator DeConcini. The fifth circuit. I know in the ninth circuit<\/p>\n

there certainly have been a few examples, and in, I think, the<\/p>\n

eighth circuit there certainly were some examples where those<\/p>\n

were not used, and maybe there are examples in every other circuit<\/p>\n

as well.<\/p>\n

\n

My concern is, that it seems to me that those statutes are very<\/p>\n

difficult to use and there ought to be more encouragement by the<\/p>\n

circuit courts to use them. At least the ninth circuit has set up a<\/p>\n

complaint process, and maybe other circuits have, too \u2014 maybe the<\/p>\n

fifth circuit has \u2014 where you can file a complaint against a judge.<\/p>\n

Even if it is a harassment complaint, you can file it as a citizen<\/p>\n

and somebody is going to look into it and at least respond to it, but<\/p>\n

it seems to me Federal judges are pretty immune from any type of<\/p>\n

complaint, except possibly from the press. But they don’t have to<\/p>\n

run for office, so maybe it doesn’t make much difference.<\/p>\n

\n

Ms. Vance. I think there is a procedure in the fifth circuit to file<\/p>\n

a complaint. The problem is that practicing attorneys are some-<\/p>\n

what reticent to file complaints against sitting judges.<\/p>\n

\n

Senator DeConcini. Exactly, so do you have any suggestions to<\/p>\n

make it easier for people to be able to file complaints?<\/p>\n

\n

Ms. Vance. I think that if the public and the bar were somehow<\/p>\n

assured that \u2014 there is no way you can file an anonymous com-<\/p>\n

plaint; it wouldn’t be fair \u2014 but that the process would be fairly en-<\/p>\n

forced and that the judge would never hold it against them, I think<\/p>\n

there would be more complaints filed, but I don’t know how you<\/p>\n

would go about assuring that, sir.<\/p>\n

\n

Senator DeConcini. Mr. Dominguez.<\/p>\n

\n

Mr. Dominguez. Your Honor, I agree with Ms. Vance. In Puerto<\/p>\n

Rico, as a matter of fact, we did have a procedure that went<\/p>\n

through in the early 1970’s. If something new is going to be done,<\/p>\n

I would suggest that we would have to do a balancing act between<\/p>\n

the independence of the judge versus the discipline of a judge, and<\/p>\n

make sure that it is not a decisional matter, that it is not some-<\/p>\n

thing created by a decision, that it is something created by conduct<\/p>\n

not relating with, obviously, the decisional process.<\/p>\n

\n

Senator DeConcini. Good point.<\/p>\n

\n

Mr. Casellas.<\/p>\n

\n

Mr. Casellas. Senator, I would hope that, at least in my circuit,<\/p>\n

the leadership of the other circuit that you mentioned, that we do<\/p>\n

have some sort of procedure to file complaints. Now, the statutes<\/p>\n

in place, like Ms. Vance said, might not be known. They might be<\/p>\n

cumbersome. Maybe they should be streamlined within each cir-<\/p>\n

cuit, and then let the bar know exactly what has to be done.<\/p>\n

\n

The awareness by the bar of the complaint procedure is very im-<\/p>\n

portant. The books are full of statutes that are in disuse. The com-<\/p>\n

plaint procedure should be adopted, in my opinion, by the circuit,<\/p>\n

if not there now, but most importantly discussed and distributed in<\/p>\n

information to the bar so that these complaints can be filed and<\/p>\n

they don’t become academic.<\/p>\n

\n

Senator DeConcini. All of you have practiced law in one form or<\/p>\n

another, and I suspect, as does any practicing lawyer, you have had<\/p>\n

an occasion where you thought \u2014 maybe you haven’t, but I certainly<\/p>\n

\n

\n

\n

16<\/p>\n

\n

had in my former practice occasions where I thought the judge was<\/p>\n

discourteous and lacked some judicial temperament.<\/p>\n

\n

I would like to ask each of you, how do you intend to discipline<\/p>\n

yourself and maintain a judicial temperament throughout your life-<\/p>\n

time appointment?<\/p>\n

\n

Mr. Bryson.<\/p>\n

\n

Mr. Bryson. Senator, I think that is a concern that every judge <\/strong><\/p>\n

has to think about as the judge goes on to the bench and continues <\/strong><\/p>\n

on the bench. There is, as you say, a great temptation to simply <\/strong><\/p>\n

conclude that because people defer to you that you are therefore in- <\/strong><\/p>\n

capable of error and deserve at least as much deference, if not <\/strong><\/p>\n

more, than you get. <\/strong><\/p>\n

<\/strong><\/p>\n

I think it is just a question of awareness. I think that, as a <\/strong><\/p>\n

judge \u2014 and I have seen many judges, as I am sure you have, who <\/strong><\/p>\n

do this very well \u2014 as a judge, you have to remind yourself that the <\/strong><\/p>\n

fact that you have been selected for this position doesn’t mean that <\/strong><\/p>\n

you are somehow superior to the people that appear before you or <\/strong><\/p>\n

the parties that have their cases in your hands. It doesn’t mean <\/strong><\/p>\n

that you are entitled to treat them discourteously. It doesn’t mean <\/strong><\/p>\n

that you somehow have some god-given right to decree what their <\/strong><\/p>\n

fates shall be. <\/strong><\/p>\n

<\/strong><\/p>\n

Your authority over them is a product entirely of the legal sys- <\/strong><\/p>\n

tem. You are a cog in the legal system, and I think it is something <\/strong><\/p>\n

that you have to remind yourself of over and over again. It is the <\/strong><\/p>\n

only cure for the disease. <\/strong><\/p>\n

\n

Senator DeConcini. Ms. Vance.<\/p>\n

\n

Ms. Vance. I agree that you have to remind yourself that you are<\/p>\n

a public servant and that you are there to serve the justice system.<\/p>\n

It would seem to me that if you reminded yourself of the enormous<\/p>\n

responsibility you have to make decisions that affect the lives and<\/p>\n

the fortunes and the liberty of other people that that would be a<\/p>\n

humbling experience and it wouldn’t make you arrogant.<\/p>\n

\n

I think that if you remind yourself that life tenure is designed<\/p>\n

to give you the independence to do your job and it was not designed<\/p>\n

to set you above the people you were there to serve that you could<\/p>\n

keep everything in perspective and remain courteous and even-<\/p>\n

handed with the people who appear before you.<\/p>\n

\n

Senator DeConcini. Mr. Dominguez.<\/p>\n

\n

Mr. Dominguez. Your Honor, I have a friend, a judge friend, that<\/p>\n

once said that judges should always remember that they are ap-<\/p>\n

pointed and not anointed, and I think that what you have men-<\/p>\n

tioned is precisely an indispensable characteristic of a judge, espe-<\/p>\n

cially those, obviously, that are appointed for a lifetime. It is some-<\/p>\n

thing simply that you have to have the discipline to follow it<\/p>\n

through throughout all your career.<\/p>\n

\n

Senator DeConcini. Mr. Casellas.<\/p>\n

\n

Mr. Casellas. Mr. Chairman, I think really that in my case the<\/p>\n

most important thing is to be humble. I think humility is the basic<\/p>\n

principle to carry out any professional career. I would start with<\/p>\n

being humble. I would start modestly, frankly, by examination of<\/p>\n

conscience every night, which I do anyhow, for other reasons.<\/p>\n

\n

Then I would work at the judicial temperament in the sense of<\/p>\n

we always have to be fair to both sides. We have to make certain<\/p>\n

that both sides get a fair shake; be fair to both sides, work on that<\/p>\n

\n

\n

\n

17<\/p>\n

\n

continually, not let one side take advantage of the other, work on<\/p>\n

that continually. That, I think, is judicial temperament. Be hum-<\/p>\n

ble, don’t be arrogant, and work at it.<\/p>\n

\n

From the point of view of the persons that you are dealing with,<\/p>\n

I think we have to be respectful, I think we have to be courteous,<\/p>\n

and we have to listen to what the other attorney and other parties<\/p>\n

say. I would say these three things, for me, working at it, would<\/p>\n

be judicial temperament put into practice.<\/p>\n

\n

Senator DeConcini. Senator Specter.<\/p>\n

\n

OPENING STATEMENT OF SENATOR SPECTER<\/p>\n

\n

Senator Specter. Thank you, Mr. Chairman.<\/p>\n

\n

I believe that Senator DeConcini has touched on a really critical<\/p>\n

aspect, and that is courtesy. Senator Thurmond made the comment<\/p>\n

many years ago that very much impressed me which I repeat when<\/p>\n

he is not present, and that was that the more power a person has,<\/p>\n

the more courteous he or she should be, and trial judges are at the<\/p>\n

top of that list.<\/p>\n

\n

I think it is good just to spend a few moments on the subject,<\/p>\n

as Senator DeConcini has, because you are all young men and<\/p>\n

women and you are going to be on the bench a long time and you<\/p>\n

may tend to forget it. Some have said that Federal judges ought<\/p>\n

to run every 6 years and Senators ought to have lifetime tenure.<\/p>\n

[Laughter.]<\/p>\n

\n

But as the years pass, it is easy to forget it, and there is a qual-<\/p>\n

ity of the black robe and the permanence in the life tenure which<\/p>\n

you just have to focus on again and again and again. When you be-<\/p>\n

come impatient, and there is a temptation to do so, or lose your<\/p>\n

cool, just think about the day that Senator DeConcini and Senator<\/p>\n

Thurmond and I made a comment or two about it.<\/p>\n

\n

We do not customarily go very deeply into judicial philosophy in<\/p>\n

these sessions. We like to have the hearings here, the format. I<\/p>\n

know you will be mindful that you are judges interpreting the law,<\/p>\n

not making the law, looking for the congressional intent, and fol-<\/p>\n

lowing the strictures of the law and precedent, as opposed to sub-<\/p>\n

stituting your own personal views of what the law should be.<\/p>\n

\n

There are a lot of questions which could be asked about that, but<\/p>\n

I don’t think we will advance the ball very much by extended dis-<\/p>\n

cussion on that subject, but it is something that you always ought<\/p>\n

to keep in mind.<\/p>\n

\n

I would like to put into the record, Mr. Chairman, a letter which<\/p>\n

I received from a distinguished attorney, Michael M. Baylson, in<\/p>\n

Philadelphia, recommending judge-to-be Sarah S. Vance based on<\/p>\n

his knowledge of her work.<\/p>\n

\n

[Mr. Baylson’s letter appears on p. 212.]<\/p>\n

\n

Senator Specter. You all appear to have good credentials, and<\/p>\n

if the practice of the committee holds true, you will soon be con-<\/p>\n

firmed. We wish you the very best on your new assignments. It is<\/p>\n

a tough job. We expect you to work hard and we expect you to do<\/p>\n

justice under the law.<\/p>\n

\n

Thank you, Mr. Chairman.<\/p>\n

\n

Senator DeConcini. Senator Grassley.<\/p>\n

\n

\n

\n

18<\/p>\n

QUESTIONING BY SENATOR GRASSLEY<\/p>\n

\n

Senator Grassley. I compliment each of you on your appoint-<\/p>\n

ment. I have some questions of Mr. Bryson. That doesn’t mean that<\/p>\n

you other nominees are not just as important, but I am not pre-<\/p>\n

pared to ask you questions, and I would like to ask Mr. Bryson<\/p>\n

more to have a discussion with you than a lot of questions. There<\/p>\n

is some participation I would like you to have.<\/p>\n

\n

I have heard excellent reports about your abilities as a lawyer<\/p>\n

and how you will perform as a judge. I have heard particularly that<\/p>\n

you are impartial and independent. I would like to address with<\/p>\n

you how that impartiality and independence was displayed in your<\/p>\n

current position as Deputy Solicitor General. I want to refer to the<\/p>\n

Knox case that you know so much about and you know that I have<\/p>\n

been involved with.<\/p>\n

\n

When it originally came before the Supreme Court, the Solicitor<\/p>\n

General’s office filed a brief in opposition to the petition for certio-<\/p>\n

rari. It is my understanding that that brief was filed under your<\/p>\n

signature. What arguments were contained in that brief supporting<\/p>\n

Knox’ conviction, and why did you feel that you wanted to sign<\/p>\n

\n

that?<\/p>\n

\n

Mr. Bryson. Well, Senator, thank you. The case as it came to the <\/strong><\/p>\n

Supreme Court the first time from the third circuit was one that <\/strong><\/p>\n

came up on writ of certiorari. Of course, our office, the Solicitor <\/strong><\/p>\n

General’s office, traditionally opposes certiorari in the vast bulk of <\/strong><\/p>\n

cases coming from the courts of appeals. <\/strong><\/p>\n

<\/strong><\/p>\n

We looked very carefully at that case because that case obviously <\/strong><\/p>\n

was a case of some sensitivity and some difficulty, but we con- <\/strong><\/p>\n

cluded that the third circuit’s judgment should be defended and <\/strong><\/p>\n

that the Supreme Court did not need to grant certiorari in that <\/strong><\/p>\n

<\/strong><\/p>\n

case. <\/strong><\/p>\n

<\/strong><\/p>\n

As I recall, the opposition that we filed to certiorari\u2014 this was, <\/strong><\/p>\n

I think, filed in March 1993, if I am not mistaken. The arguments <\/strong><\/p>\n

we made were basically these: first, that the term “exhibition,” <\/strong><\/p>\n

which was the key term in the statute that was at issue in that <\/strong><\/p>\n

case, a question of whether there was a lascivious exhibition of the <\/strong><\/p>\n

pertinent body parts even though those body parts were covered in <\/strong><\/p>\n

the films that were involved\u2014 we argued, as the third circuit had <\/strong><\/p>\n

held, that the term “exhibition” did not necessarily require an un- <\/strong><\/p>\n

covered revelation of the body parts. In other words, you could <\/strong><\/p>\n

have, at least under some circumstances, an exhibition even though <\/strong><\/p>\n

the body parts were covered. We, in other words, were defending <\/strong><\/p>\n

the third circuit’s position. <\/strong><\/p>\n

<\/strong><\/p>\n

We also argued that there was some indication in the legislative <\/strong><\/p>\n

history that there was no flat requirement of nudity in order to <\/strong><\/p>\n

qualify as an exhibition under the statute. We further argued in <\/strong><\/p>\n

urging the Supreme Court not to grant certiorari in the case that <\/strong><\/p>\n

this was a case of first impression. There was no conflict among the <\/strong><\/p>\n

circuits, and that, of course, is a very common ground for arguing, <\/strong><\/p>\n

as we often do, that certiorari should not be granted in a particular <\/strong><\/p>\n

case. <\/strong><\/p>\n

<\/strong><\/p>\n

I did sign that brief\u2014 you are correct \u2014 as Acting Solicitor Gen- <\/strong><\/p>\n

eral. <\/strong><\/p>\n

\n

\n

\n

19<\/p>\n

\n

Senator Grassley. Unfortunately, the Supreme Court did grant<\/p>\n

the petition, and by the time the government’s brief on the merits<\/p>\n

was due the administration had changed. What arguments did the<\/p>\n

government make in that brief regarding whether the statute re-<\/p>\n

quired the child to be essentially nude and act lasciviously herself?<\/p>\n

Also, in conjunction with that, reports indicate that you did not<\/p>\n

sign the brief and that it was filed by political appointees. Is that<\/p>\n

correct?<\/p>\n

\n

Mr. BRYSON. Taking the last half of the question first, Senator, <\/strong><\/p>\n

it is true that I did not sign the second brief. That was the brief <\/strong><\/p>\n

on the merits after the Solicitor General had been appointed and <\/strong><\/p>\n

confirmed. That brief took the opposition position, in effect, from <\/strong><\/p>\n

the brief that had been filed in opposition to the certiorari petition <\/strong><\/p>\n

6 months earlier which I had signed. <\/strong><\/p>\n

<\/strong><\/p>\n

There is a custom in our office that we, as lawyers, do not typi- <\/strong><\/p>\n

cally contradict ourselves by switching positions in a brief. So, since <\/strong><\/p>\n

that was a switch in positions, I did not sign the second brief. <\/strong><\/p>\n

<\/strong><\/p>\n

In that brief\u2014 this is the brief on the merits that was filed, I <\/strong><\/p>\n

think, in September or October 1993 \u2014 the office took the position, <\/strong><\/p>\n

contrary to what the third circuit had held, that, in fact, some form <\/strong><\/p>\n

of visibility was required of the pertinent body parts in order for <\/strong><\/p>\n

there to be an exhibition. <\/strong><\/p>\n

<\/strong><\/p>\n

This was a construction of this term “exhibition” which was not <\/strong><\/p>\n

defined in the statute, but the argument was that you couldn’t <\/strong><\/p>\n

have an exhibition if you couldn’t see the item, the object, the body <\/strong><\/p>\n

part, that was purportedly being exhibited. The argument was that <\/strong><\/p>\n

therefore, since the third circuit had relied on the view that all that <\/strong><\/p>\n

was required was that there be a focus on the area rather than an <\/strong><\/p>\n

actual display of the body parts uncovered and nude, therefore the <\/strong><\/p>\n

third circuit’s legal basis for its ruling upholding the conviction was <\/strong><\/p>\n

flawed and the case had to go back to the third circuit. <\/strong><\/p>\n

<\/strong><\/p>\n

Now, there was a second aspect that you mentioned, a second <\/strong><\/p>\n

legal ingredient in the statute which was discussed briefly in that <\/strong><\/p>\n

brief. It wasn’t really at issue in the case because it hadn’t been <\/strong><\/p>\n

raised by the defendant, but it was the question of what the child <\/strong><\/p>\n

has to do in order for the depiction of the child engaged in sexually <\/strong><\/p>\n

implicit conduct to violate the statute. <\/strong><\/p>\n

<\/strong><\/p>\n

Now, as you know, the statute has two separate elements. One <\/strong><\/p>\n

is a depiction, and two is that the child has to be involved in sexu- <\/strong><\/p>\n

ally explicit conduct. The approach that was taken in that brief and <\/strong><\/p>\n

in subsequent filings, in which our position has been clarified, I <\/strong><\/p>\n

think, is to say it is not necessary for the child actually to be in- <\/strong><\/p>\n

tending to act lasciviously, but only that the child be acting in a <\/strong><\/p>\n

way that some viewer would regard as lascivious. <\/strong><\/p>\n

<\/strong><\/p>\n

I think perhaps because the initial brief was somewhat less clear <\/strong><\/p>\n

than it should have been on this point, I think there has been some <\/strong><\/p>\n

confusion on that. But I think we have cleared it up and that the <\/strong><\/p>\n

position that was taken on remand in the third circuit made, I <\/strong><\/p>\n

think, quite clear that it was not necessary for the child to be <\/strong><\/p>\n

shown to have intended to act lasciviously. <\/strong><\/p>\n

\n

Senator Grassley. Do you have an opinion as to why the Solici-<\/p>\n

tor General changed the Department’s position?<\/p>\n

\n

Mr. Bryson. Yes, Senator. I think that this was a case of the So- <\/strong><\/p>\n

licitor General, whose responsibility it is to present to the Supreme <\/strong><\/p>\n

<\/strong><\/p>\n

<\/strong><\/p>\n

<\/strong><\/p>\n

20 <\/strong><\/p>\n

<\/strong><\/p>\n

Court his best conclusion as to what the law requires in light of <\/strong><\/p>\n

his responsibilities to represent the United States \u2014 in good faith <\/strong><\/p>\n

and after close study, the Solicitor General concluded that the stat- <\/strong><\/p>\n

ute simply wouldn’t bear the construction that the third circuit had <\/strong><\/p>\n

put on it. <\/strong><\/p>\n

<\/strong><\/p>\n

Our office does, on occasion, not terribly often, but on occasion, <\/strong><\/p>\n

confess error or disagree with particular legal conclusions reached <\/strong><\/p>\n

by courts of appeals when cases come before the Supreme Court. <\/strong><\/p>\n

This was one of those instances, and I have to say that although, <\/strong><\/p>\n

of course, I had taken the contrary position 6 months earlier, I feel <\/strong><\/p>\n

very comfortable that the Solicitor General exercised his authority <\/strong><\/p>\n

in this case in good faith and solely on the basis of his reading of <\/strong><\/p>\n

the statute. <\/strong><\/p>\n

\n

Senator Grassley. Well, as you know, that case was remanded<\/p>\n

back to the third circuit. In the process of the Supreme Court act-<\/p>\n

ing and before it was heard by the third circuit again, all 100 mem-<\/p>\n

bers of the Senate had voted to state a disagreement with the Jus-<\/p>\n

tice Department’s changed position, specifically that it was con-<\/p>\n

trary to congressional intent. The House later passed a similar<\/p>\n

measure nearly unanimously, and then 230 Members of Congress<\/p>\n

filed an amicus brief in the third circuit against the government’s<\/p>\n

position.<\/p>\n

\n

In the final analysis, as you probably know, the third circuit<\/p>\n

agreed with us and not with the Department. I assume you are fa-<\/p>\n

miliar with that case. Do you think that the third circuit’s opinion<\/p>\n

can be read to have supported the Justice Department’s changed<\/p>\n

arguments, as some in the Department are claiming now?<\/p>\n

\n

Mr. Bryson. Senator, I think it is clear that the third circuit said <\/strong><\/p>\n

two things. First, the third circuit did reject the government’s anal- <\/strong><\/p>\n

ysis of the exhibition requirement. In that regard, the third circuit <\/strong><\/p>\n

disagreed with the position that the government had argued on re- <\/strong><\/p>\n

mand. So it is not correct to say that the third circuit embraced or <\/strong><\/p>\n

agreed with the Department’s view in that regard. <\/strong><\/p>\n

<\/strong><\/p>\n

There was a second aspect of what the third circuit did that was <\/strong><\/p>\n

consistent with the government’s position, and it was this. The <\/strong><\/p>\n

Court said even on the government’s theory, which was a more re- <\/strong><\/p>\n

strictive construction of the term “exhibition,” we agree with the <\/strong><\/p>\n

government that the evidence in this case was sufficient to support <\/strong><\/p>\n

a conviction. The Court therefore, in that regard, agreed with the <\/strong><\/p>\n

government in its principal submission that at least if you view the <\/strong><\/p>\n

term “exhibition” more narrowly than the third circuit, in fact, <\/strong><\/p>\n

viewed it \u2014 nonetheless, if you view it in that narrow fashion pre- <\/strong><\/p>\n

sented by the Department, the evidence is still sufficient to support <\/strong><\/p>\n

the conviction and the conviction should therefore stand on either <\/strong><\/p>\n

ground. <\/strong><\/p>\n

\n

Senator Grassley. I thank you for discussing this with me and<\/p>\n

for other people to hear, as well. I think your discussion is good.<\/p>\n

I think you have shown competence and independence, and I will<\/p>\n

be glad to support you to your appointed position.<\/p>\n

\n

Mr. Bryson. Thank you.<\/p>\n

\n

QUESTIONING BY SENATOR DECONCINI<\/p>\n

\n

Senator DeConcini. Senator Grassley, thank you.<\/p>\n

\n

\n

\n

21<\/p>\n

\n

Along that line, let me ask each of the nominees a question re-<\/p>\n

garding legislative history and congressional intent. You certainly<\/p>\n

have expressed some concern already, Mr. Bryson, but what are<\/p>\n

each of your views on the role of legislative history when a court<\/p>\n

is faced with ambiguous language? Specifically, which factors<\/p>\n

should a court rely on in a case of statutory construction beyond<\/p>\n

the statutory language itself?<\/p>\n

\n

Mr. Bryson. Well, Senator, as your question suggests, the first <\/strong><\/p>\n

principle of statutory construction absolutely must be to go to the <\/strong><\/p>\n

language of the statute. There is a quip that occasionally, I think, <\/strong><\/p>\n

Judge Scalia will be heard to repeat, which is that some judges <\/strong><\/p>\n

seem to approach statutory construction by saying that if the legis- <\/strong><\/p>\n

lative history is unclear, perhaps we should resort to looking at the <\/strong><\/p>\n

statute. <\/strong><\/p>\n

<\/strong><\/p>\n

That is not the approach that the current Supreme Court takes. <\/strong><\/p>\n

It is not the approach that I think ought to be taken. The first <\/strong><\/p>\n

thing to do is to go to the language of the statute. The language <\/strong><\/p>\n

of statutes is not always clear. It isn’t always entirely clear how <\/strong><\/p>\n

the language applies in a particular case. There, I think you have <\/strong><\/p>\n

to resort \u2014 and I do not take the view that legislative history is ir- <\/strong><\/p>\n

relevant \u2014 I think you have to resort to whatever help you can get <\/strong><\/p>\n

from legislative history, context, the background against which a <\/strong><\/p>\n

statute was enacted, the purposes that the statute was intended to <\/strong><\/p>\n

serve, the evils that the statute was intended to address. <\/strong><\/p>\n

<\/strong><\/p>\n

Those are the kinds of evidence that you can bring to bear in try- <\/strong><\/p>\n

ing to get the entire picture of what a statute is intended to mean, <\/strong><\/p>\n

starting with the language of the statute and using those other de- <\/strong><\/p>\n

vices as well. <\/strong><\/p>\n

\n

Senator DeConcini. Thank you, Mr. Bryson.<\/p>\n

\n

Ms. Vance.<\/p>\n

\n

Ms. Vance. I think that I would agree with Mr. Bryson that in<\/p>\n

construing with a statute that you begin with looking at the lan-<\/p>\n

guage of the statute to ascertain congressional intent, and the first<\/p>\n

rule of approach is the rule of plain meaning where you construe<\/p>\n

the words of the statute in their ordinary, plain meaning.<\/p>\n

\n

If the plain meaning is not clear from the statute and the word-<\/p>\n

ing is ambiguous, I do think that it is appropriate to consider legis-<\/p>\n

lative history. I understand that there is a debate as to the reliabil-<\/p>\n

ity of legislative history as an indication of congressional intent.<\/p>\n

However, I do think that there are certain types of legislative his-<\/p>\n

tory, such as committee reports, that should be authoritative on<\/p>\n

legislative intent, and that you could be safe in relying on as an<\/p>\n

indication of congressional intent, whereas there may be things<\/p>\n

that are put in the record, so to speak, that may not be necessarily<\/p>\n

a part of the real debate on the statute.<\/p>\n

\n

Senator DeConcini. What about statements of Members of Con-<\/p>\n

gress that are put in the record, who were involved in the actual<\/p>\n

drafting and passing of the legislation?<\/p>\n

\n

Ms. Vance. I definitely think that you should read them and con-<\/p>\n

sider them.<\/p>\n

\n

Senator DeConcini. They are relevant, in your opinion?<\/p>\n

\n

Ms. Vance. They are relevant in the context of the debate and<\/p>\n

what the issues were at the time and the Senator’s role in that.<\/p>\n

\n

Senator DeConcini. Mr. Dominguez.<\/p>\n

\n

\n

\n

22<\/p>\n

\n

Mr. Dominguez. I would concur with what my two colleagues<\/p>\n

have said. The only red light would be we must be extremely cau-<\/p>\n

tious with ex parte, self-serving statements that may be placed in<\/p>\n

the history of a law. You would have to look more at the live debate<\/p>\n

rather than something or some comment that gets put into the<\/p>\n

record when nobody is there, when there is no real debate. You<\/p>\n

have to look with caution there.<\/p>\n

\n

Senator DeConcini. Mr. Casellas.<\/p>\n

\n

Mr. Casellas. Sir, I have little to add. I concur with my col-<\/p>\n

leagues. When there is plain meaning, there should be plain mean-<\/p>\n

ing, and I think that use of legislative history is useful sometimes.<\/p>\n

\n

Senator DeConcini. Thank you very much. I have no further<\/p>\n

questions. I don’t believe Senator Specter does. We thank you for<\/p>\n

your attention and your responsiveness today. The committee will<\/p>\n

certainly consider your testimony and the comments of those who<\/p>\n

have spoken on your behalf.<\/p>\n

\n

Thank you very much.<\/p>\n

\n

Ms. Vance. Thank you.<\/p>\n

\n

Mr. Casellas. Thank you.<\/p>\n

\n

Mr. Dominguez. Thank you.<\/p>\n

\n

Mr. BRYSON. Thank you, Senator.<\/p>\n

\n

Senator DeConcini. The committee will stand in recess, subject<\/p>\n

to the call of the chair.<\/p>\n

\n

[Whereupon, at 3:17 p.m., the committee was adjourned.]<\/p>\n

\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

With Judge Bryson apparently taking senior status next week, I thought it might be of interest to take a look back at his confirmation hearing before the Senate Judiciary Committee in 1994: We will now turn to the introduction of William C. Bryson, of Be- thesda, MD. Senator Sarbanes, if you would come forward. STATEMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/5774"}],"collection":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=5774"}],"version-history":[{"count":4,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/5774\/revisions"}],"predecessor-version":[{"id":5778,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=\/wp\/v2\/posts\/5774\/revisions\/5778"}],"wp:attachment":[{"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=5774"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=5774"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.717madisonplace.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=5774"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}