Senate Judiciary Committee Holds Hearing on Judicial Nominations

DURBIN:

Thanks very much, and I apologize for coming a little late, with all the things we're trying to juggle here.

I thank you all for being here, and I'd like to ask a general question. How many of you are members of the Federalist Society?

Mr. Wolski, (inaudible)? OK. Anybody else here a member? OK.

Could you explain it to me for the record what the fed—the reason I ask this is when we map the DNA of Bush nominees for court positions, we always come across the Federalist Society chromosome and—in so many of them. And I'm just trying to get to the bottom of this, about what it is that makes Federalist Society membership an important consideration with some nominees and perhaps, for the record, if you could explain to me how you view the Federalist Society and its philosophy.

WOLSKI:

Certainly Senator. On the penultimate question that you asked, I'm the pickee, not the picker, so I really couldn't say why the administration chooses to nominate certain people and not others. But on the first question as to what the Federalist Society is, it's a organization—primarily a student organization, although there are also lawyer chapters—which has open forums and debates and sponsors speakers on a wide range of issues that relate to the constitution, issues that relate to the legal process.

The—when I was at the University of Virginia School of Law I was the president of the student chapter of the Federalist Society there, and we had a number of very good events that were well attended by people from all political walks of life and all thoughts—very well attended. Debates on topics such as the constitutionality of certain activity—I actually can't remember what—well, so you must have had something that had to do with const—well, let's put that one aside.

I know we had a debate on drug legalization, for instance. We had a debate on the 9th Amendment, whether it means anything. And the Society tends to look at—sponsor debates and look at issues often in the perspective of the historical role of the constitution and what the framers were doing when they put it together.

And that's I think as best as I can explain it.

DURBIN:

I know where I put the ALCU in the political spectrum. Where would you put the Federalist Society?

WOLSKI:

I would be reluctant to try to characterize it as one sort of group or another. It doesn't take positions on political issues. It doesn't take positions on legal or constitutional issues, for the matter. So since it's a group that doesn't take positions and doesn't litigate, doesn't get involved in advocating one position or another, I don't really think you could do that.

DURBIN:

You have been rather outspoken. I think some of the colleagues have already questioned you about your pride and your ideology—your political ideology. In fact, I think you were quoted in the "National Journal" as saying you've—you'd like to take that quote back, wouldn't you?

(LAUGHTER)

The quote in the "National Journal" is saying you're always looking for jobs that let you further your ideological—maybe—I don't want to misquote you, but could you tell me what you said to the "National Journal" and then if you'd like to explain it?

WOLSKI:

I wish I could remember with certain—what I had said.

DURBIN:

We could probably find it in these notes. Well, go ahead.

WOLSKI:

There's not a—as I explained earlier to the previous senators who were here, the question was...

DURBIN:

Go ahead.

WOLSKI:

... the question I believe that was posed to me—it is actually clippings and context. The "National Journal" piece in question, I think, is from the "Hill People Special Issue" that comes out every two years that has a profile of the new Congress, what committees each member is assigned to, and talks about committee staff. And there's a little profile on each committee.

And in the profile on the Joint Economic Committee, they had, I think, it was one paragraph about me, that had primarily talked about my tax work and how the work I did for Senator Mack is tax oriented. And the person who was interviewing me asked me, why was I willing to relocate from California to come to D.C. to work for a senator from Florida? And the answer I tried to express again was—I may not have used the best words—I'm not sure that was a precise and accurate quote, but it certainly has been recorded, so I'll stick to that quote.

All that I meant to convey was that the sort of jobs that I had taken since college have not been ones to try to earn the most money. Unlike my friends at the Warden (ph) School, I didn't try to get a job on Wall Street and make a lot of money.

I was the first person in my family to go the college. My mother's the granddaughter of Lithuanian immigrants, my dad's....

DURBIN:

Are you trying to get on my good side here?

WOLSKI:

... Lithuanian immigrants, and—I understand...

DURBIN:

You might have something. Someone's done some homework for you.

(LAUGHTER)

WOLSKI:

... one of the—the DNA of the senators that we do before we come. But in all seriousness, Senator, I had an opportunity that my parents didn't have. I was able to go to college. I was able to go to law school. And I believe very strongly that people should give something back to their community. Somebody—people should try to make society better and take advantage of the opportunity they've had to do that.

And that's—and all that I meant to express was the type of jobs that I had were public sector jobs and non-profit jobs, and jobs that related to tax policy. And the use of the word ideological—if that's what I'd said—I wasn't trying the characterize myself as an ideologue because I think people who know me and know my record, know that I'm open-minded, that I'm not rigid.

When I worked for Senator Mack, it was on a bipartisan basis on a number of tax issues that had support widely across the aisle—things like the Low-Income Housing Tax Credit, the D.C. Economic Recovery Act.

DURBIN:

What about this whole takings question, because that really—if you are going to argue ideology under law, that seems to be a ripe issue for the conservative right, this whole question of takings. And you've had quite a few cases, have you not, involving this issue?

WOLSKI:

Yes, six, seven, eight years ago when I worked at Pacific Legal Foundation, I did—I was a member of the property rights section, and I had a number of cases involved in that section that involved a take (ph). Typical clients included Brenadine Sudem (ph) -- I don't know if you're familiar with her Supreme Court case—but she was an elderly lady had a plot of land in a fully developed subdivision, in Incline Village, Nevada. Hers was the last plot that hadn't been built on. She wanted to build a house on it, and she was told that because of the regulations, she couldn't build anything on it. So she tried to get into court and sue for just compensation since she couldn't make any use at all of her property.

And the argument was raised that her claim wasn't right yet, because, while she couldn't make any use of her property, under the regulations, she could transfer to somebody else the right to make more extensive use of their own property, and that therefore, her case wasn't right because she could still help somebody else out. And that was used to kick her out of court. I did a petition furative sersuarity (ph) the United States Supreme Court and the Supreme Court granted the case, reviewed the case—I didn't do the argument before the Supreme Court, but we—Mrs. Sudem (ph) won nine to nothing in a unanimous opinion written by Justice Souter who said that she could have a day in court.

One other case I did in the land use area was for Montereynians (ph) For Affordable Housing, which is a non-profit organization that was challenging a procedural hurdle that was put in their place that would prevent re-zone—actually, it wouldn't prevent re-zoning, made it very difficult in Monterey to re-zone land to allow apartments to be built. If somebody wanted to do that, they had to first get City Council approval, then they had to go put it on the ballot themselves, pay for the election, and win an election, just in order to have apartments. And I rep—as I said, I represented an affordable housing group and we got that law struck down. That's the sort of work I did.

DURBIN:

Were you primarily representing property owners who were resisting either government regulation or government taking?

WOLSKI:

No. Actually, in the takings context, a lot of the cases would be seeking just compensation. You—it's—resistance is futile, I guess, after a certain point, and you've got the choose whether you're going to seek compensation or not. And in the Court of Federal Claims, for instance, the cases that are brought under the takings clause, are people who accept as given the law or the regulation or the government decision that restricted the use of their land, and accept that as proper and don't challenge the purpose, don't challenge the legitimacy of that action, but instead say, the impact on this has been so great as to require just compensation under the constitution. And those are the sort of cases.

DURBIN:

In this—you mentioned the Pacific Legal Foundation. Is that connected at all with the Federalist Society?

WOLSKI:

I'm sure that there are probably members of the staff of the Pacific Legal Foundation who might also be members of the Federalist Society. When I was a staff attorney the Pacific Legal Foundation, I had also joined the Sacramento chapter of the Federalist Society, and I know that there were at least a few others who were.

DURBIN:

So let me ask you this question. The Court of Claims deals with takings and environment issues, and you will come now to a position where you will be sitting in judgment. You have prided yourself on your political beliefs, political philosophy, political ideology. Should I not have some concern as to whether or not you are going to be dispassionate and objective when it comes to this Court of Claims position, or whether you're bringing a political agenda to this position?

WOLSKI:

I appreciate that question, Senator, and I think the answer is, no, actually. And the reason why I think you shouldn't be concerned is taking the broader perspective of my career, looking at everything that I've done, not just a job that I took as a young lawyer right out of my clerkship seven, eight, nine years ago, but look what I've done over the whole breadth of my career—the bipartisan work did for Senator Mack on things like the Low-Income Housing Tax Credit—the sort of cases that I've litigated over the last few years.

I represent a class of Medicare beneficiaries who are suing the tobacco industry trying to get reimbursement to the Medicare trust fund for smoking-related illnesses. I represent the State of Nevada in its efforts to resist the placement of a nuclear repository in Yucca Mountain.

So I've represented governments, I've represented the Governor of Puerto Rico, I've represented the interests of government in a number of cases as well. And I think I've demonstrated that I'm a person who can see things fairly and does understand and appreciate the importance of government.

DURBIN:

Thank you, Mr. Wolski. I may have a few written follow- up questions.

And to the other nominees who are before us, let me thank you for your patience, and you come with great recommendations.

I would just say, if I might, Mr. Chairman, and by way of closing, that this last weekend I was privileged to join a group of my colleagues from the House and Senate to travel to Alabama with Congressman John Lewis. Some of you know John Lewis from Atlanta, Georgia, is one of the real heros of the civil rights movement, and he was, as young man, marching across Edmond Pettis Bridge in Selma when that terrible bloody Sunday occurred.

DURBIN:

John took a group of us, a bipartisan group, down to Alabama. For me it was the first time to visit the state. And we went to Montgomery, and Selma, and Birmingham. We went to the corner were Rosa Parks got on the bus and refused to give up her seat. And we marched across the Edmond Pettis Bridge and we went to the 16th Street Baptist Church in Birmingham where the four little girls were killed by the bomb.

It was a moving experience for me. At my age, this was a formative part of my life and my values, the civil rights movement, and to see it first hand and to meet the people involved in it made a difference.

At point while we're traveling, I talked to John Lewis about how it all worked out—ultimately it worked out. There's still a lot to be done, but ultimately it worked out. The civil rights movement was successful in passing historic legislation.

And he said to me at one point, there never would have been a march from Selma to Montgomery if there wasn't a federal district court judge named Frank Johnson. Frank Johnson from northern Alabama—a Republican appointee under President Eisenhower, had the courage to stand up to the establishment, to the state courts, and to many of the federal judges, and to say, we are going to put an end to this discrimination once and for all.

As a result, he was threatened—his life was threatened, his mother's home was under protective surveillance for years, and he was shunned by the society he lived in. When he passed away a few years ago, the tributes and praise were universal from everyone who looked back and said, this one federal district court judge changed history in America.

And it is a reminder to me as I sit in this Judiciary Committee and see literally scores of candidates come through here, that you never know which one of you, if you're fortunate enough to come to the bench, will have that moment, that opportunity in history. And I hope that—as I hope that Senator—and myself will have the courage to see that moment and to seize it, even if it is unpopular, that each of you will have that wisdom, too.

Thank you, very much. Thanks, Mr. Chairman.