tion continue to be shrouded in mystery-more uncertain than the Academy Awards-while you wander who in the entire bar will be nominated and you hope that some judicial talent and temperament and appropriate experience will be found in the new judge. You can demand better odds.

The candidates should come from a known group of persons respected in the bar, proven to be of high-level competence, who have been previously, not at the last minute, investigated and evaluated and found likely to be worthy of the great trust that you place in your judges. It is only through individual judges that we can become the phoenix court I hope we will become.

1

JURISDICTION OF NEW COURT

Senator HATCH. Thank you. We appreciate your testimony.

I think that the Judiciary Committee wants to insure that the specialized bar in particular, and the patent bar itself, is fairly represented on this panel.

I recognize the need for both general and specialized judges. And even though the court in focus is not a specilized court I assure you that this committee will bear your concerns closely in mind.

The jurisdiction of the Court of Appeals for the Federal Circuit is defined by subject matter rather than by geographical area. The new court has inherited the jurisdiction of the old Court of Claims and the Court of Customs and Patent Appeals.

The Court of Appeals for the Federal Circuit thus has jurisdiction of appeals in suits against the Government for damages or for the refund of Federal taxes, appeals from the Court of International Trade, appeals from the Patent and Trademark Office, and appeals from certain decisions of Federal agencies.

In addition, the court has jurisdiction over all Federal contract appeals in which the United States is the defendant, over patent appeals from all Federal district courts, and over all appeals from the Merit Systems Protection Board.

So this court has a very wide ranging, diverse jurisdiction, and I just want to assure the last four witnesses that we are concerned about that and we appreciate your testifying.

Mr. Unger, I would like to ask you a couple of questions prior to the American Bar Association testimony. I will also ask you questions after the bar association testifies through Mr. Coleman and Ms. Born.

Your nomination, as you know, has been the subject of some controversy because of opposition by the American Bar Association. Are you fully aware of these criticisms?

Mr. UNGER. Yes; I am.

Senator HATCH. Are you prepared to respond to these criticisms if the committee considers such a response to be necessary? Mr. UNGER. Yes, sir, I am prepared.

Senator HATCH. Please describe for me the extent to which you see service on the new Federal Circuit differing from the service on the more traditional circuit panels.

Mr. UNGER. I see the new Federal Circuit as being an additional intellectual challenge. There are jurisdictional lines that need to be

1 I suggested for the title of this talk, "The Court of Appeals for the Federal Court-Phoenix or Unicorn?" Now, I don't really know what that means, at the time it suggested something visual to me. Is this the new court going to take off and soar like a phoenix into the higher realms of legal jurisprudence, or are we just going to sort of nibble around at the lilies in the garden, like the unicorn in Thurber's tale?

drawn between patent cases, antitrust cases, cases that arise from the several district courts across the Nation.

The statute itself leaves open certain issues on Federal contracts, leaves open exactly the precise jurisdictional differences between the geographical circuits and this particular circuit and how they will be handled.

I think that has to be done by trial and error and decision. I think it is an additional challenge as I see it that interests me in this court.

It is an experimental court to a certain extent. It is an experimental court that if it works well may be the first time since the turn of the century where anyone has taken a look at our circuit court system see if it can be improved. It is an opportunity, as I see it, sir.

Senator HATCH. Mr. Unger, do you see any markedly different responsibilities on the part of individuals serving on this court? Mr. UNGER. As far as judicial responsibilities?

Senator HATCH. Yes.

Mr. UNGER. No, sir, I see a greater challenge but no marked difference.

PRESENT STATE OF HEALTH

Senator HATCH. Mr. Unger, your health has been some concern to some members on the committee. For the record please summarize for us the present state of your health.

Mr. UNGER. The present state of my health, and I am advised by my doctors, and I believe Mr. Short has done a private investigation of his own, is normal with no clinical evidence of any disease. Senator HATCH. Mr. Unger, you have practiced law for approximately 30 years; is that correct?

Mr. UNGER. Yes, sir.

Senator HATCH. You presently hold the AV rating from Martindale-Hubbell?

Mr. UNGER. Yes.

Senator HATCH. It is the highest rating an attorney can have for ethics and legal ability.

Mr. UNGER. Yes.

Senator HATCH. How has your 30 years in law been divided between government service and private practice?

Mr. UNGER. Of the 30 years that I have been admitted to the bar, probably 20 percent of it has been in Federal service. I was a trial judge advocate in the Air Force for almost 3 years. I was General Counsel of the Department of Housing and Urban Development short of 2 years. I have been General Counsel of the Department of Commerce for over 22 years.

Senator HATCH. Approximately how many cases would you estimate you have been involved in during your legal practice? Mr. UNGER. Hundreds.

Senator HATCH. Hundreds of cases.

Mr. UNGER. More than 100, maybe 200.

Senator HATCH. Are you talking about cases that have gone through to a jury or to a judge?

Mr. UNGER. No, sir, I started my practice in a large firm where I may have had an involvement in a large number of cases. Most of them get settled or I may have been the junior associate for some period of time drafting trial briefs.

As I matured, I had less cases and more responsibility, and when I opened my own practice, I became involved in more complex litigation with less cases and again more responsibility.

Senator HATCH. But from a case filing and followup standpoint whether through judgment or through settlement or otherwise, would you say you have been involved in hundreds of cases?

Mr. UNGER. I would say that.

Senator HATCH. Have you ever been the object of any formal ethics or grievance complaint?

Mr. UNGER. No, sir.

Senator HATCH. Do you believe you have the proper temperament to carry on your responsibilities on the bench?

Mr. UNGER. I really do believe that I do have that, and one example I would like to make is in these cases, particularly complex litigation where you have half a dozen parties and probably twice as many lawyers, I have been able to reach successful conclusions and settlement with these people by keeping my lines of communication open, being able to sit down at a conference table with opposing counsel to work out rational settlements that were satisfactory to my client and to their client and dispose of the matter in a rational, intellectual way.

It is something that ones needs to do in the disposition of cases. We need to keep lines open.

Senator HATCH. Thank you, Mr. Unger. We are going to get back to you.

I would next like to introduce a friend of mine, Bill Coleman for the American Bar Association.

The Honorable William T. Coleman is the former Secretary of Transportation and a man whom I respect.

Today Secretary Coleman is representing the ABA Standing Committee on the Judiciary.

In addition, we are privileged to have with us Ms. Brooksley Born, the chairperson of the same standing committee. We are pleased to welcome both of you before the committee this afternoon and we would like to take your testimony at this point on the nomination of Sherman Unger.

Mr. Coleman, we will turn to you. Welcome to the committee, again.

STATEMENT OF HON. WILLIAM T. COLEMAN, JR., ACCOMPANIED BY BROOKSLEY BORN, ON BEHALF OF THE AMERICAN BAR ASSOCIATION

Mr. COLEMAN. Thank you, Senator Hatch.

I appreciate your providing this opportunity for me to speak on behalf of the American Bar Association. As the District of Columbia Circuit member of the ABA Standing Committee on the Federal Judiciary at the time of the original nomination of Mr. Unger, I conducted the investigation into Mr. Unger's qualification to be a

U.S. circuit judge for the U.S. Court of Appeals for the Federal Circuit.

I was assisted by Brooksley Born, who was then the chairperson of the ABA committee, and who is here with me today, as you have observed; and by Lewis H. Van Dusen, Jr., who was the third circuit member of the ABA committee.

Upon consideration of our investigation and written reports, the ABA committee by a unanimous 14-to-0 vote found Mr. Unger not qualified because he lacked the personal integrity and judicial temperament required of a Federal judge.

I have already submitted to the Senate Judiciary Committee a lengthy written statement with accompanying exhibits.1 At this time, I would like the privilege of asking someone to deliver a copy to Mr. Cutler and Mr. Bell, together with my exhibits because as I go through, I want Mr. Cutler and the former Attorney General of the United States to trace these allegations.

Mr. BELL. I have it.

Mr. CUTLER. I have read it, Mr. Chairman.

Mr. COLEMAN. Obviously, it is very difficult for me as a practicing lawyer to give this testimony for one does not like to state publicly why he feels a nominee is disqualified. Also, as a practicing lawyer, there is always a chance if the Senate confirms him that I will have to practice before him.

But it was my duty as a member of the ABA Judiciary Committee to conduct the investigation, and thus I feel I have an obligation despite the personal inconvenience, to give this testimony.

As you know, at the beginning of the investigation, the nominee is required to file answers to a personal data questionnaire. These are filed with the Attorney General, and a copy is given to the ABA Judiciary Committee. Mr. Unger's responses are in exhibit 2. You will note that the nominee is required to set forth his 10 or her 10 most important cases, and there the nominee indicates the judges and the lawyers that appeared in those cases.

At the time we began this investigation, neither Ms. Born nor Mr. Van Dusen had ever met Mr. Unger. I had been in Mr. Unger's presence on one occasion when he was in a meeting which I was conducting or which was being conducted by the Secretary of Commerce.

None of us assumed this would be a complicated or difficult investigation. Most of the people who were interviewed said that Mr. Unger was very competent, intelligent, and an effective litigator. He also received high praise for his performance as General Counsel of the Department of Commerce.

Many of the people we interviewed, however, gave strong negative comments about Mr. Unger's integrity and temperament, and opposed his nomination. Several people alleged that Mr. Unger had engaged in specific instances of misconduct or impropriety and submitted to the ABA committee documents supporting certain of these allegations.

As I have outlined on pages 14 and 15 of the testimony, and I would like to read this into the record:

Mr. Coleman's prepared statement and accompanying 50 exhibits begin on page 98.

The vehemence of the negative comments we received led us to investigate some of the specific allegations of impropriety by Mr. Unger which are discussed below. Several people interviewed by the ABA Committee, for example, stated that it would be hard to imagine someone less suitable to be a judge. Many of the attorneys, judges and lay persons with whom we spoke said that Mr. Unger frequently sought to serve his own self-interest and that he manipulated people to achieve his own ends. One person said Mr. Unger was not a conscientious lawyer, while another stated that Mr. Unger would turn on people unexpectedly if it were to his advantage to do so. Mr. Unger was described as "sly", "like Rasputin", a "slippery fox", a "maneuverer", and a “supreme manipulator of people”. Now, we recognize that general criticisms and negative comments are not themselves entitled to great weight, and the ABA Committee did not rely upon these confidential statements.

As noted above in part II of my written comments, I nevertheless took some steps to assure myself of the accuracy of the comments I had received, having both Lewis Van Dusen, Jr., and a Justice Department official call individuals listed in Mr. Unger's personal data questionnaire."

Now, Mr. Cutler said that the Attorney General had indicated that after investigation he found no such evidence. Well, I would like to assure you that once we got this type of commentary on Mr. Unger, we had a meeting with the Deputy Attorney General and the Assistant Attorney General of the United States and indicated the types of comments we had received.

I then asked the Assistant Attorney General of the United States, who had the same personal data questionnaire I had, call the people listed and then let me know what type of comments he got. I made the same request of Lewis Van Dusen.

At this time I would like to mark and put in the record as exhibit 51, the letter that I wrote on May 2, 1983, to Mr. Jonathan Rose, which indicates that I asked him to make this check.

Senator HATCH. Without objection, we will place that and your statement in the record.

[The aforementioned letter follows:]