Republican U.S. senators pressed federal appeals court nominee Rich Federico of Kansas about a sentence he recommended as a public defender in a child pornography case and his views about affirmative action.
Appearing before the Senate Judiciary Committee on Wednesday, Federico came under tough questioning from U.S. Sens. Josh Hawley of Missouri and John Kennedy of Louisiana who voiced some concerns about the nominee.
President Joe Biden nominated Federico for a seat on the U.S. 10th Circuit Court of Appeals in Denver. He would be one of two judges from Kansas on the court.
A 2002 University of Kansas Law School graduate, Federico is a senior litigator and assistant federal public defender in Kansas.
Hawley, along with U.S. Sen. Marsha Blackburn of Tennessee, questioned a sentence that Federico recommended in his defense of a Great Bend man who pleaded guilty to one count of distributing child pornography in a case described as “revolting.”
They criticized Federico for recommending a 105-month prison sentence for a crime where the sentencing guidelines ran from 210 to 240 months.
The government recommended a 189-month sentence. He was ultimately sentenced to 165 months in prison.
Hawley asked Federico how he could recommend a 105-month sentence after recounting details of the case, which included the defendant using multiple mediums to obtain and distribute depictions of child rape, bondage and sexual exploitation.
“You advocated for 100” months, Hawley said. “Do you think that’s a sentence that does justice to his victims?”
Federico, whose career includes work as a judge, a prosecutor and public defender, said the final authority of the sentence rested with U.S. District Judge John Broomes.
“Right, but you made a choice to recommend and to advocate for a particular sentence,” Hawley responded.
Federico responded, saying that the client’s objectives weighed heavily in what kind of sentence would be requested from the court.
Hawley fired back.
“I’m sure the client would like to have zero time in prison.”
In the sentencing recommendation that Federico authored, he noted that his client should receive a 105-month sentence because he was abused as a child, he was employable, had no prior offenses and that he was a steady father to his two autistic sons.
Hawley asked Federico why employability was relevant to a sentence.
“It is my job as his court-appointed advocate to present to the court information for it to take into consideration, things like employment,” Federico said.
Hawley pressed further, asking whether Federico had any regrets about the recommendation.
“When I am court appointed to represent someone, it’s not a personal endorsement upon their conduct,” he said.
Federico started to explain further, when Hawley cut him off in midsentence.
“But nor are you an automaton,” the senator said.
“You’re an officer of the court. You’re a very capable attorney. You have to make moral judgments as a defense attorney, wouldn’t you agree? You have ethical obligations as a defense attorney, wouldn’t you agree?”
Hawley said that Federico has a “moral responsibility” to society, adding that he thought it was fair game to ask him about his judgment in cases like this.
“Do you think the sentence that you recommended does justice to his victims?”
Federico again tried to explain that the court decides the sentence when Hawley again interrupted and pushed for an answer about the recommendation.
“It wasn’t my decision as to his ultimate sentence,” Federico said.
Unhappy with the response, Hawley suggested that Federico was trying to dodge the question and knew that it was the recommendation that he couldn’t defend.
“It sounds to me like you knew it was a bad idea…and now you can’t defend it.”
Hawley said he would oppose Federico’s nomination.
The committee chair, U.S. Sen. Dick Durbin of Illinois, followed up with questions that underscored that Federico was appointed in the child pornography case.
U.S. Sen. Peter Welch, a Vermont Democrat, asked Federico how he would separate his work as judge from his work as a public defender.
He asked why Federico decided to become a public defender, which he added might be the best career path to become a federal judge.
“Being a public defender is a challenging but yet rewarding job as a lawyer,” Federico said.
“What an amazing country that we live in that no matter who you are and what you’re charged with – even those we charge as our greatest enemies – not only we give that person a lawyer, but we give that lawyer the professional charge that you will do your best within the bounds of the law to represent them,” he said.
“That is a value that is enshrined within our Constitution that I believe we should all cherish, we should all respect because it makes all of us more free.”
Federico said he would be a fair and impartial as jurist regardless of his background.
“I’ve been prosecutor. I’ve been an appellate defense lawyer. And also, of course, a military judge,” he said.
“I understand the difference between representing a client’s interest compared with being a neutral decider of issues that are brought before you on the court.”
Earlier in the hearing, Sen. Kennedy pushed Federico to answer questions about affirmative action and whether “minorities need special help to achieve.”
“I think all people deserve equal opportunity to succeed,” Federico said.
Kennedy asked again, “Do you believe that minorities need special help to succeed?”
“I think based upon a person’s background and what community they come from and what hardships they face, I hope that all persons in this country who work hard have an opportunity to succeed,” Federico said.
Kennedy asked the question a third time, stopping Federico in midsentence as he tried to answer. “Do you understand the question? Am I not being clear?”
Kennedy demanded a yes-or-no answer, something that Federico said was too complex to answer that simply.
“You either believe that minorities need special help to succeed or you don’t. Is there a reason you won’t answer my question?”
Eventually, Kennedy gave up on the line of questioning, saying that “by not answering it, you have answered it.”
Kennedy then asked Federico whether he thought the Navy was systemically racist.
Federico served in the U.S. Navy in the Judge Advocate General’s Corps and is a captain in the Navy Reserve JAG Corps.
“The Navy I know is not,” Federico said. “In fact, its primary focus is to be the most lethal maritime fighting force in the world.”
