Republican senators grilled the president's nominee to the Denver-based federal appeals court for her pursuit of sentence reductions for certain controversial offenders, while Democrats countered that her experience defending indigent clients was desperately needed to diversify the judiciary.
Veronica S. Rossman, a public defender for Colorado and Wyoming for more than a decade, appeared before the U.S. Senate Committee on the Judiciary on Wednesday less than one month after President Joe Biden nominated her for the Colorado-based open seat on the U.S. Court of Appeals for the 10th Circuit. Rossman had the backing of Colorado's two senators, who noted that her work defending those accused and convicted of crimes distinguished her from all other judges currently serving.
“She fought for every one of those Americans, often against the longest odds," U.S. Sen. Michael Bennet told the committee in his introduction of Rossman. "More than that, she fought for the American ideal that everyone deserves equal justice under the law. If confirmed, Veronica would be the only judge on the 10th Circuit with experience as a public defender.”
However, some Republican members took aim at her focus during the COVID-19 pandemic of seeking compassionate release on behalf of incarcerated persons. Compassionate release allows a person to ask the courts directly for a sentence reduction for health, family or other extraordinary and compelling reasons.
U.S. Sen. Josh Hawley, R-Mo., questioned Rossman over her May 2020 appeal on behalf of Merrill Ross Moon, who sought release after his pretrial detention disrupted his cancer treatments. Moon later pleaded guilty to possessing rifles, thousands of rounds of ammunition, machine guns and silencers — the latter of which had no serial numbers — despite his prior convictions for witness intimidation, bribery and other offenses.
“I wanna ask why you thought the risk of this repeat offender, who is clearly dangerous — someone who is stockpiling illegal firearms — why would the danger to the community be outweighed by, in this case, health issues?" Hawley asked.
Rossman responded that it was difficult to answer "in the abstract," but "we're not asking the court to simply release an individual onto the streets. We don’t even approach the court unless we have a release plan, something that we believe in good faith, under the bounds of the law, we can bring to the court and say here are terms and conditions."
“You don’t think that somebody like that poses a severe danger to the community?” pressed Hawley.
"I understand the concern," Rossman acknowledged.
Circuit judges wield considerable authority to clarify the law for trial courts within their geographic jurisdiction. The 10th Circuit hears appeals from Colorado, Utah, Oklahoma, Kansas, New Mexico and Wyoming. Although the U.S. Supreme Court may review a circuit court's decision or resolve contradictory rulings between circuits, most cases end at the circuit level.
If confirmed, Rossman would succeed Senior Judge Carlos F. Lucero, a Clinton administration appointee who stepped down from active duty in February as the only Hispanic judge on the 12-member court.
Federal Public Defender Virginia L. Grady, the head of the Wyoming and Colorado offices, submitted Rossman's name to Bennet and U.S. Sen. John Hickenlooper. Rossman met with the senators' staff in mid-February, and interviewed with both the senators and the White House Counsel's Office in March. Rossman indicated in her Judiciary Committee questionnaire that she interviewed with Biden and his White House counsel on May 10, two days before her nomination.
“I still remember the day that we became citizens. I was in middle school," said Rossman, who came to the United States with her parents in the 1970s from the former Soviet Union to flee religious and political discrimination. "My parents led by example and instilled in me values I hold dear today: hard work, perseverance, integrity and generosity.”
Rossman has worked as a federal public defender since 2010, and also briefly from 2002-2003. She represents indigent criminal defendants, and in 2015 became the chief of appeals. Being the manager for the office's appellate division, she handled appeals from all of the states within the 10th Circuit.
However intimately familiar she may be with the court itself, the top Republican on the Judiciary Committee, U.S. Sen. Chuck Grassley, R-Iowa, was concerned about Rossman's ability to hear civil cases, which make up the bulk of the 10th Circuit's work.
"In 2019, the 10th Circuit had 368 total criminal appeals compared to 1,135 civil appeals," he said. Grassley argued the two judges nominated by President Donald Trump arrived with more diverse legal backgrounds. Allison H. Eid was was a Colorado Supreme Court justice, the state's solicitor general and a law professor. Joel M. Carson III of New Mexico was an oil and gas attorney and magistrate judge.
“I think this trend also presents other problems," Grassley, who is not a lawyer, said of Biden's multiple nominations of defense attorneys to the federal bench. "A circuit judge needs to be a generalist."
Rossman, who handled civil litigation, antitrust cases and intellectual property law prior to her criminal defense work, said she would consider that experience as "accessible to me" and she would "get back up to speed on areas that I think I could access readily."
Multiple individuals and advocacy organizations wrote to the Senate in support of Rossman's nomination. Those include the progressive Alliance for Justice, the National Council of Jewish Women, the Leadership Conference on Civil and Human Rights, and more than 90 attorneys. Those signatories included her federal defender colleagues, attorneys in private practice in Colorado and professors at the University of Colorado and University of Denver schools of law.
"Veronica has always demonstrated an abiding respect for her colleagues on the other side of the aisle. Her commitment to fairness and collegiality will serve the bench and the public well," the letter reads.
Still, it was Rossman's work handling compassionate release requests that became the focus of her confirmation hearing. The First Step Act, which Congress passed and Trump signed in 2018, did not envision a pandemic might endanger thousands of medically-vulnerable prisoners. Indeed, a Colorado Politics review of compassionate release decisions from trial court judges in Colorado found very few prisoners were successful. Typically, inmates who received compassionate release were older than 65, had served a large percentage of their sentence or had family circumstances that called for their return to the community.
Some judges attempted to factor the spread of COVID-19 in prisons into their analysis, with one judge even suggesting inmates were safer from the disease in prison than outside of it. As of October, the Federal Defenders of New York estimated the rate of COVID-19 infection in federal prisons was approximately five times higher than the population as a whole.
In response to a question from U.S. Sen. Thom Tillis, R-N.C., Rossman said that compassionate release decisions, like sentencing itself, should be based on the individual defendant's circumstances. Hawley referenced another compassionate release appeal of Rossman's for a man who had only served 33% of his sentence, quizzing her about whether she would support compassionate release for someone who had served as little as one day of their sentence.
“A day perhaps might be too little," she acknowledged, "but it would all be a very fact-specific inquiry. And I only hesitate to take a position on this because some of the cases that we were litigating in the compassionate release context involved individuals who were seriously ill and elderly."
Rossman declined to satisfactorily answer a question from U.S. Sen. Marsha Blackburn, R-Tenn., about her judicial philosophy, leading Blackburn to protest the lack of a response. Blackburn also was unsatisfied with Rossman's answers to the other committee members about her precise philosophy on release requests.
"You have not been able to explain where you think the court finds its balance," Blackburn said, referencing the Moon case and the offender who served one-third of his sentence. "Each of these are violent offenders with felony records. But yet, in your mind, you thought they deserved that release because of a health issue and without consideration of danger to the public."
She requested that Rossman respond to her concerns in writing.
In her committee questionnaire, Rossman also described other notable cases she litigated. She successfully persuaded the 10th Circuit to reverse a lower court's decision to seal court documents, after the defendant claimed sealing would endanger him as other inmates would infer that he cooperated with the government. In 2019, the 10th Circuit sided with her client's argument that a judge improperly issued a broad directive for the offender to notify others about the risk he posed, after the judge said at the time, "I don't care if I can't say what the risk is now."
the risk is now..
Also appearing before the committee on Wednesday were Eunice C. Lee, Biden's nominee to the Second Circuit based in New York City, and three trial court judge nominees for the Western District of Washington. Earlier this week, the full Senate confirmed Biden's first nominee for Colorado, Regina M. Rodriguez, to be a district court judge.
In a statement on Tuesday, the president said he was "thankful that we are on track to have confirmed the most judges by July of the first year of a President’s first term in over 50 years. I look forward to continuing to make nominations at an historic pace and working closely with the Senate on many more confirmations."