[Senate Hearing 106-399]
[From the U.S. Government Publishing Office]





                                                 S. Hrg. 106-399, Pt. 3
 
             CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS

=======================================================================

                                HEARINGS

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                                   on

          CONFIRMATION OF APPOINTEES TO THE FEDERAL JUDICIARY


                               __________

              MAY 25, JUNE 15, JULY 12, and JULY 25, 2000

                               __________

                                 Part 3

                               __________

                          Serial No. J-106-33

                               __________

         Printed for the use of the Committee on the Judiciary


                    U.S. GOVERNMENT PRINTING OFFICE
73-475                      WASHINGTON : 2001




                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel




                            C O N T E N T S

                              ----------                              

                         TUESDAY, MAY 22, 2000
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles, a U.S. Senator from the State of Iowa....     1
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    98
Schumer, Hon. Charles, a U.S. Senator from the State of New York.     5
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1

                               PRESENTERS

Chambliss, Hon. Saxby, a U.S. Representative in Congress from the 
  State of Georgia...............................................     3
Cleland, Hon. Max, a U.S. Senator from the State of Georgia......     9
Coverdell, Hon. Paul, a U.S. Senator from the State of Georgia...     4
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa..........     8
Morella, Hon. Connie, a U.S. Representative in Congress from the 
  State of Maryland..............................................     7
Moynihan, Hon. Patrick, a U.S. Senator from the State of New 
  York, prepared statement.......................................   100
Romero-Barcelo, Hon. Carlos, Resident Commissioner in Congress 
  from Puerto Rico...............................................     3
Sarbanes, Hon. Paul, a U.S. Senator from the State of Maryland...     2

                        INTRODUCTION OF NOMINEES

Bonnie J. Campbell...............................................    90
Jay A. Garcia-Gregory............................................    90
Daniel Marcus....................................................    11
Beverly B. Martin................................................    91
Laura Taylor Swain...............................................    91

                         TESTIMONY OF NOMINEES

Statement of Bonnie J. Campbell, of Iowa to be U.S. Circuit Judge 
  for the Eighth Circuit.........................................    90
    Biographical Information.....................................   102
    Responses to Questions from:
        Senator Ashcroft.........................................   319
        Senator DeWine...........................................   324
        Senator Sessions.........................................   312
        Senator Smith............................................   321
        Senator Thurmond.........................................   318
Statement of Jay A. Garcia-Gregory, of Puerto Rico, to be U.S. 
  District Judge for the District of Puerto Rico.................    90
    Biographical Information.....................................   165
    Responses to Questions from:
        Senator Ashcroft.........................................   325
        Senator Hatch............................................   325
        Senator Sessions.........................................   327
        Senator Smith............................................   330
        Senator Thurmond.........................................   324
Statement of Daniel Marcus, of Maryland to be Associate Attorney 
  General of the United States...................................    11
    Biographical Information.....................................    22
    Responses to Questions from:
        Senator Hatch............................................   309
        Senator Sessions.........................................   312
Statement of Beverly B. Martin, of Georgia, to be U.S. District 
  Judge for the Northern District of Georgia.....................    91
    Biographical Information.....................................   207
    Responses to Questions from:
        Senator Ashcroft.........................................   337
        Senator Sessions.........................................   339
        Senator Smith............................................   342
        Senator Thurmond.........................................   336
Statement of Laura Taylor Swain, of New York, to be U.S. District 
  Judge for the Southern District of New York....................    91
    Biographical Information.....................................   261
    Responses to Questions from:
        Senator Ashcroft.........................................   347
        Senator Hatch............................................   345
        Senator Sessions.........................................   348
        Senator Smith............................................   351
        Senator Thurmond.........................................   346

                       SUBMISSIONS FOR THE RECORD

Dovalina, Rick, National President, League of United Latin 
  American Citizens, Washington, DC, letter to Senator Leahy, May 
  22, 2000.......................................................   333
Ferre, Luis A., Republican National Committee, San Juan, PR, 
  letter to Senator Hatch, April 26, 2000........................   334
Kyl, Hon. John, a U.S. Senator from the State of Arizona, letter, 
  May 10, 2000...................................................   333
Mirabal, Manuel, Chair, National Hispanic Leadership Agenda, 
  Washington, DC, letter to Senator Hatch, May 24, 2000..........   336
Misla-Aldarondo, Hon. Edison, Speaker, Puerto Rico House of 
  Representatives, San Juan, PR, letter to Senator Hatch, May 2, 
  2000...........................................................   335
Rivera, Jose, National Chairman, Republican National Hispanic 
  Assembly, Washington, DC, letter to Senator Hatch, May 5, 2000.   333
Rossello, Hon. Pedro, Governor of Puerto Rico, and Hon. Carlos 
  Romero-Barcelo, Resident Commissioner of Puerto Rico, San Juan, 
  PR, letter to President Clinton, February 14, 1997.............   335
Velazquez, Alice M., National President, Hispanic National Bar 
  Association, and George Herrera, President and Chief Executive 
  Officer, U.S. Hispanic Chamber of Commerce, Washington, DC, 
  letter to Senator Hatch, May 9, 2000...........................   334

                        THURSDAY, JUNE 15, 2000
                    STATEMENTS OF COMMITTEE MEMBERS

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   355
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  prepared statment..............................................   363

                               PRESENTERS

Allen, Hon. Thomas H., a U.S. Representative in Congress from the 
  State of Maine.................................................   361
Baldacci, Hon. John E., a U.S. Representative in Congress from 
  the State of Maine.............................................   360
Bryan, Hon. Richard H., a U.S. Senator from the State of Nevada..   357
Collins, Hon. Susan, a U.S. Senator from the State of Maine......   359
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   361
Fitzgerald, Hon. Peter G., a U.S. Senator from the State of 
  Illinois.......................................................   362
Graham, Hon. Bob, a U.S. Senator from the State of Florida.......   366
Hyde, Hon. Henry, a U.S. Representative in Congress from the 
  State of Illinois..............................................   363
Mack, Hon. Connie, a U.S. Senator from the State of Florida......   367
Reid, Hon. Harry, a U.S. Senator from the State of Nevada........   356
Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine...   358

                        INTRODUCTION OF NOMINEES

John W. Darrah...................................................   368
Paul C. Huck.....................................................   368
Joan Humphrey Lefkow.............................................   368
Johnnie B. Rawlinson.............................................   368
George Z. Singal.................................................   369

                         TESTIMONY OF NOMINEES

Testimony of John W. Darrah, of Illinois, to be U.S. District 
  Judge for the Northern District of Illinois....................   368
    Biographical information and questionnaire...................   408
    Responses to Questions from:
        Senator Hatch............................................   587
        Senator Smith............................................   584
        Senator Thurmond.........................................   584
Testimony of Paul C. Huck, of Florida, to be U.S. District Judge 
  for the Southern District of Florida...........................   368
    Biographical information and questionnaire...................   443
    Responses to Questions from:
        Senator Hatch............................................   594
        Senator Smith............................................   592
        Senator Thurmond.........................................   591
Testimony of Joan Humphrey Lefkow, of Illinois, to be U.S. 
  District Judge for the Northern District of Illinois...........   368
    Biographical information and questionnaire...................   491
    Responses to Questions from:
        Senator Hatch............................................   602
        Senator Smith............................................   599
        Senator Thurmond.........................................   598
Testimony of Johnnie B. Rawlinson, of Nevada, to be U.S. Circuit 
  Judge for the Ninth Circuit....................................   368
    Biographical information and questionnaire...................   377
    Responses to Questions from:
        Senator Hatch............................................   581
        Senator Smith............................................   577
        Senator Thurmond.........................................   580
Testimony of George Z. Singal, of Maine, to be U.S. District 
  Judge for the District of Maine................................   369
    Biographical information and questionnaire...................   539
    Responses to Questions from:
        Senator Hatch............................................   607
        Senator Smith............................................   605

                        WEDNESDAY, JULY 12, 2000
                    STATEMENTS OF COMMITTEE MEMBERS

Feingold, Hon. Russell, a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   619
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, 
  prepared statement.............................................   618
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   617
Smith, Hon. Robert, a U.S. Senator from the State of Hampshire...   611
Torricelli, Hon. Robert, a U.S. Senator from the State of New 
  Jersey.........................................................   619

                               PRESENTERS

Graham, Hon. Bob, a U.S. Senator from the State of Florida.......   613
Lautenberg, Hon. Frank, a U.S. Senator from the State of New 
  Jersey.........................................................   612
Mack, Hon. Connie, a U.S. Senator from the State of Florida......   615
McCollum, Hon. Bill, a Representative in Congress from the State 
  of Florida.....................................................   649

                        INTRODUCTION OF NOMINEES

Dennis M. Cavanaugh..............................................   650
Glenn A. Fine....................................................   620
James S. Moody, Jr...............................................   650
Gregory A. Presnell..............................................   650
John E. Steele...................................................   650

                         TESTIMONY OF NOMINEES

Testimony of Dennis M. Cavanaugh, of New Jersey, to be U.S. 
  District Judge for the District of New Jersey..................   650
    Biographical information.....................................   660
    Responses to Questions from:
        Senator Sessions.........................................   816
        Senator Thurmond.........................................   815
Testimony of Glenn A. Fine, of Maryland, to be Inspector General, 
  U.S. Department of Justice.....................................   620
    Biographical information.....................................   624
    Responses to Questions from:
        Senator Thurmond.........................................   815
Testimony of James S. Moody, Jr., of Florida, to be U.S. District 
  Judge for the Middle District of Florida.......................   650
    Biographical information.....................................   693
    Responses to Questions from:
        Senator Sessions.........................................   820
        Senator Thurmond.........................................   819
Testimony of Gregory A. Presnell, of Florida, to be U.S. District 
  Judge for the Middle District of Florida.......................   650
    Biographical information.....................................   734
    Responses to Questions from:
        Senator Sessions.........................................   824
        Senator Thurmond.........................................   823
John E. Steele, to be U.S. District Court Judge, of Florida, to 
  be U.S. District Judge for the Middle District of Florida
    Biographical information.....................................   770
    Responses to Questions from:
        Senator Sessions.........................................   828
        Senator Thurmond.........................................   827

                         TUESDAY, JULY 25, 2000
                    STATEMENTS OF COMMITTEE MEMBERS

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........   833
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   839

                               PRESENTERS

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   833
Pastor, Hon. Ed, a U.S. Representative in Congress from the State 
  of Arizona.....................................................   834

                        INTRODUCTION OF NOMINEES

Susan Ritchie Bolton.............................................   838
Mary H. Murguia..................................................   837
Michael J. Reagan................................................   837
James A. Teilborg................................................   839

                         TESTIMONY OF NOMINEES

Testimony of Susan Ritchie Bolton, of Arizona, to be U.S. 
  District Judge for the District of Arizona.....................   838
    Biographical information.....................................   847
    Responses to Questions from:
        Senator Sessions.........................................  1040
Testimony of Mary H. Murguia, of Arizona, to be U.S. District 
  Judge for the District of Arizona..............................   837
    Biographical information.....................................   905
    Responses to Questions from:
        Senator Grassley.........................................  1036
        Senator Sessions.........................................  1037
Testimony of Michael J. Reagan, of Illinois, to be U.S. District 
  Judge for the Southern District of Illinois....................   837
    Biographical information.....................................   941
    Responses to Questions from:
        Senator Sessions.........................................  1033
Testimony of James A. Teilborg, of Arizona, to be U.S. Dirstrict 
  Judge for the District of Arizona..............................   839
    Biographical information.....................................   984
    Responses to Questions from:
        Senator Leahy............................................  1045
        Senator Sessions.........................................  1042


  NOMINATIONS OF DANIEL MARCUS TO BE ASSOCIATE ATTORNEY GENERAL, U.S. 
DEPARTMENT OF JUSTICE; BONNIE J. CAMPBELL (U.S. CIRCUIT JUDGE); JAY A. 
    GARCIA-GREGORY, BEVERLY B. MARTIN, AND LAURA TAYLOR SWAIN (U.S. 
                            DISTRICT JUDGES)

                              ----------                              


                         THURSDAY, MAY 25, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:00 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions 
presiding.
    Also present: Senators Grassley and Schumer.

 OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 
                      THE STATE OF ALABAMA

    Senator Sessions. The committee will come to order.
    Our first panel will be Senators and Congressmen who may be 
introducing nominees, and we would be glad to have them have a 
place at the table and come up. We will start with the circuit 
nominee and then go according to the list Senator Hatch has 
given me, or any other agreement you might have on your time, I 
would be glad to try and accommodate you.
    Senator Grassley is a distinguished member of this 
committee. Senator Grassley, we are glad to have you here and 
we would be delighted to hear your comments at this time.

  STATEMENT OF HON. CHARLES GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. Well, I want to introduce Bonnie 
Campbell. She is a nominee for the Eighth Circuit Court of 
Appeals, and that includes Iowa.
    Ms. Campbell has broad experience in a number of areas of 
law, both private and public. Her private practice experience 
spanned a period of over six years, during which she primarily 
focused on issues relating to family and employment 
discrimination law.
    Ms. Campbell's public service began in 1974, when she 
worked for former Iowa Senator John Culver. Then in 1990, after 
practicing in the private sector, she was elected Iowa's 
Attorney General. Her tenure as Attorney General provided Ms. 
Campbell an opportunity to become familiar with the workings of 
the Federal appellate court system, serving as counsel to all 
State agencies in the prosecution arm of State government in 
cases appearing before Federal appellate court.
    Ms. Campbell has personally monitored and participated in a 
number of cases that have appeared before the Eighth Circuit 
she is nominated for. As Attorney General of the State of Iowa, 
she also aggressively prosecuted drug dealers and stalkers. In 
addition, she championed victims' rights and tougher domestic 
abuse laws.
    Bonnie Campbell left the Attorney General's Office in 1995. 
President Clinton appointed her as the first Director of the 
Violence Against Women Office in the U.S. Department of 
Justice, and she is serving in that position this very day.
    As the Director of this Office, she is responsible for 
working with U.S. attorneys to ensure enforcement of the new 
Federal criminal statutes contained in the Violence Against 
Women Act and related legislation seeking to transform the way 
in which the criminal justice system responds to violent crimes 
against women.
    Ms. Campbell's stance on tougher domestic abuse laws and 
the aggressive prosecution of drug dealers has earned her 
nomination the endorsement of the Iowa State Police 
Association, the largest police association in the State of 
Iowa.
    I thank you, Mr. Chairman, for this hearing, and you will 
also hear from my colleague, Senator Harkin, in support of this 
nomination as well.
    Senator Sessions. Thank you very much, Senator Grassley. 
Those remarks will be important for the record, and your 
support for this nominee as a leading member of this committee 
will be most important.
    Senator Harkin, I don't believe is here yet. I will go down 
our list. Senator Schumer is not here.
    Senator Sarbanes.

STATEMENT OF HON. PAUL SARBANES, A U.S. SENATOR FROM THE STATE 
                          OF MARYLAND

    Senator Sarbanes. Well, thank you very much, Mr. Chairman. 
I am pleased to introduce to the committee Daniel Marcus, who 
has been nominated by the President to be the Associate 
Attorney General, which, as you well know, is the number three 
ranking position in the Department of Justice.
    Dan Marcus is a thoroughgoing professional. He has had a 
very distinguished legal career. He is an honors graduate of 
Brandeis University and Yale Law School. He then clerked in the 
District of Columbia Circuit Court of Appeals for Judge Harold 
Leventhal, and then joined the firm of Wilmer, Cutler and 
Pickering in 1966. And it is fair to say he has been there 32 
years, with time out on occasion for Government service.
    In the 1970's, he served in the Department of Health, 
Education, and Welfare as Deputy General Counsel. Then he was 
General Counsel for the Department of Agriculture in 1979 and 
1980. He came back into government service a couple of years 
ago, joining the Department of Justice a year ago, as the 
Principal Deputy Associate Attorney General. He became the 
Acting Associate Attorney General last October, and he has been 
serving in that capacity ever since and we would like to just 
strike the ``Acting'' from the title and get him confirmed as 
the Associate Attorney General.
    He is a distinguished citizen of Montgomery County, MD and 
he has been very active in our community there. He has been a 
chair of the D.C. Bar's Legal Ethics Committee, both a member 
and chairperson, and has performed, I think, distinguished 
public service in that capacity.
    He knows this job; he has been doing it. He gets very high 
marks for the performance, and I think he would be excellent, 
obviously, in the position. I very much hope the committee will 
find its way clear to confirm him, and give the Senate a chance 
to pass on him as well.
    Thank you very much.
    Senator Sessions. Thank you, Senator Sarbanes. We 
appreciate those comments and they will be considered by the 
committee. Thank you so much.
    Congressman Saxby Chambliss is next on my list. I don't 
know how they did this; it usually follows the nominees, I 
believe.
    Congressman Chambliss.

  STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF GEORGIA

    Representative Chambliss. Well, thank you very much, 
Senator. It is indeed a pleasure for me to be here today to 
appear before this body to recommend Beverly Martin for a 
position as U.S. District Judge in the Northern District of 
Georgia.
    Beverly is currently serving as the U.S. attorney in Macon, 
GA, in the Middle District of Georgia, and unfortunately we are 
going to be losing her, once the Senate proceeds through the 
confirmation process, in Macon. And we hate to do that, but she 
has done just a terrific job as U.S. attorney. She has been a 
leader all across the country in fighting drug trafficking. She 
has been on a number of task forces at the Attorney General's 
direction.
    I just can't recommend anybody higher than I recommend 
Beverly Martin to you. She's not only a fine lawyer in and of 
her own right, but she comes from good stock. Having practiced 
law in Georgia for 26 years myself, her father and I practiced 
against each other and with each other several different times, 
and he is a very fine lawyer and she came from a great family, 
as far as the legal profession is concerned.
    It is indeed a privilege and a pleasure, Senator, for me to 
recommend Beverly Martin to you.
    Senator Sessions. Thank you very much, Representative 
Chambliss. We appreciate that. I got a call today from my good 
friend, the former U.S. attorney in Atlanta, Larry Thompson, 
highly complimentary of the nominee. So I appreciate that.
    Next, we have Resident Commissioner Carlos Romero-Barcelo, 
from Puerto Rico.
    We would be glad to hear your comments.

STATEMENT OF HON. CARLOS ROMERO-BARCELO, RESIDENT COMMISSIONER 
                  IN CONGRESS FROM PUERTO RICO

    Commissioner Romero-Barcelo. Thank you, Mr. Chairman. I 
appear before you today to introduce, and also strongly 
support, the nomination of Jay Garcia-Gregory to the Federal 
bench of the U.S. District Court for the District of Puerto 
Rico.
    Mr. Garcia-Gregory's qualifications are first-grade. He is 
a member of the Bar of the General Court of Justice of Puerto 
Rico and the U.S. District Court for the District of Puerto 
Rico. He is also a member of the U.S. Supreme Court bar. His 
experience includes the management of complex civil litigation 
before the U.S. District Court for Puerto Rico.
    Throughout his extensive and distinguished legal career, 
Mr. Garcia-Gregory has represented clients in admiralty, 
aviation, and telecommunications law; unfair competition and 
copyright infringement cases; corporate, tax, labor, contracts, 
and administrative law; antitrust, RICO, and securities cases; 
and in constitutional law and civil rights litigation.
    He has held several positions of responsibility with the 
U.S. District Court for the District of Puerto Rico, and his 
wide-ranging legal expertise also includes 7 years as an active 
member of the New York Stock Exchange Arbitration Panel, in 
which he presides over numerouscomplex securities arbitration 
hearings.
    Mr. Garcia-Gregory is also one of those rare individuals 
who, by virtue of his integrity and unassailable character and 
impeccable legal reputation, enjoys the enthusiastic 
endorsement of Puerto Ricans across the political spectrum--the 
Governor of Puerto Rico, the Speaker of the House of 
Representatives. The Governor is a Democrat, the Speaker of the 
House is a Republican; they both endorse him strongly. The 
oldest State chair of the Republican Party, Don Luis Ferrer, 
who is 97 years old, endorses him enthusiastically. I endorse 
him. So he has the endorsement of both sides because of his 
reputation.
    He is one of the seven judgeships to be appointed in Puerto 
Rico, and since June 1, 1994, where we haven't had a judge for 
the seventh position. And needless to say the calendar of the 
court is very, very loaded, and I think all of the judges on 
the court are very eager to see Jay Garcia-Gregory join them on 
the bench. They all support him very strongly. In my opinion, 
this is one of the best appointments that has ever been made 
for the court in Puerto Rico, and I strongly support him.
    Thank you, Mr. Chairman.
    Senator Sessions. Well, thank you very much for sharing 
that insight, Commissioner Romero-Barcelo. You are free to stay 
with us, or if you need to leave, that would be fine, also.
    Senator Coverdell, we are delighted to have you and hear 
your comments at this time.

STATEMENT OF HON. PAUL COVERDELL, A U.S. SENATOR FROM THE STATE 
                           OF GEORGIA

    Senator Coverdell. It is good to be with Chairman Sessions 
of Alabama. Mr. Chairman, I am pleased to join my colleague, 
who will be here very shortly, Senator Cleland, in recommending 
to you and the committee Beverly Martin to sit on the U.S. 
District Court for the Northern District of Georgia.
    Ms. Martin is not only extremely qualified to serve on the 
Federal bench, but she is also thought very highly of in 
Georgia's legal community. Ms. Martin has a fine background 
which Senator Cleland--we have conspired not to repeat 
everything before the committee, and so I won't go into the 
background that he will expand upon in his remarks.
    As the record will show, Ms. Martin has an outstanding 
history of legal service and achievement. She has been a 
dedicated public servant since becoming assistant attorney 
general for the State of Georgia in 1984. Ms. Martin currently 
serves as U.S. attorney in the Middle District of Georgia. She 
comes from a family with a history of involvement in the 
community and with the law. Her dedication will no doubt carry 
over to her service on the Federal bench.
    Ms. Martin's record has been noticed in Georgia. Since she 
was nominated, I have been most impressed with the tremendous 
outpouring of support I have received from Georgia's legal 
community on her behalf. She is thought highly of by everyone 
who has worked with her, and I have heard nothing but positive 
words about her nomination and how she would perform as a 
Federal judge. Her record and her reputation in Georgia and her 
dedication to her work lead me to believe she will serve 
honorably on the Federal bench.
    Mr. Chairman, I highly recommend Ms. Martin to the 
committee and respectfully request her confirmation move 
forward. I think Ms. Martin is an excellent nominee, and that 
the committee will do a great service to the Federal judiciary 
by confirming her.
    Just in closing, let me say that the recommendations have 
not only been many, but the personalities from home State that 
have spoken up on behalf of Ms. Martin I include among the most 
exemplary citizens of the State of Georgia, which is a very 
moving thing and a very important thing, and I want to share 
that with the committee.
    Senator Sessions. Thank you. I have heard some of those 
comments.
    Senator Schumer is our ranking member. Does he have a 
statement now? And then we will hear from Representative 
Morella.

  STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you very much, Mr. Chairman, and I 
just want to thank Senator Hatch, as well as my committee 
mates, for again helping New York with our judicial needs.
    I want to thank our ranking member, Senator Leahy, for 
working so hard on behalf of so many of the nominees. Behind 
the scenes, Senator Leahy has worked quietly to help all of us 
move our nominees. And sometimes he doesn't get as much credit 
as he should, so I want to thank him publicly for everything he 
has done.
    Mr. Chairman, I am proud today to introduce to the 
committee Laura Taylor Swain, a wonderful New Yorker who will 
make a great district court judge. She is currently a 
bankruptcy judge in the Eastern District of New York, and has 
now been nominated to fill a vacancy across the river in the 
Southern District.
    Judge Swain's background and achievements as both a 
practitioner of law and as a bankruptcy judge make her a 
perfect candidate to be a Federal judge. She was born and 
raised in Brooklyn, my old stomping ground, and then attended 
Harvard College and Harvard Law School, two more of my stomping 
grounds, although I like to say, Mr. Chairman, the best thing 
about going to Harvard is when someone saysthey went to 
Harvard, you are not impressed. Because they took you, they could take 
almost anybody. [Laughter]
    After law school, Judge Swain accepted a judicial clerkship 
with the Hon. Constance Baker Motley, one of New York's great 
jurists and a trailblazer not only as a judge, but as a New 
York State Senator and Manhattan Borough President.
    Following the clerkship, Judge Swain joined one of New 
York's top law firms, Debevoise and Plimpton. While in private 
practice, Judge Swain worked on large and difficult cases for 
major corporate clients, such as Uniroyal and Cable Vision. She 
spent more than 12 years at the Debevoise firm and became an 
expert on ERISA.
    I will just editorialize a little that, for those who don't 
know, ERISA is one of the most complicated and difficult areas 
of the law. Those who work in this area are usually known as 
exceptional lawyers. Those who become experts in it are the 
cream of the crop, and Judge Swain was just that.
    Since 1997, she has served with distinction as a judge on 
the U.S. Bankruptcy Court for the Eastern District. Not 
surprisingly, the matters that come before the bankruptcy 
courts in New York are among the most challenging in the 
Nation. They often involve vast financial concerns, millions of 
dollars in assets, and the most sophisticated counsel.
    While managing a docket of over 6,000 cases, Judge Swain's 
task has been to unravel intricate commercial transactions, 
reorganize ongoing corporate ventures, and most importantly do 
justice to all involved, creditors and debtors alike. And by 
all accounts, Judge Swain has done a masterful job at this 
difficult and sometimes unforgiving work.
    There is much more that I could say about the judge in her 
legal capacity, but I will just ask that my statement be put in 
the record.
    Finally, I would like to say, because I think it is 
important when we nominate people for judges that they have 
complete records, not simply in the legal profession, I want to 
just praise her for her outside activities. She has been very 
active in her church, the Grace Episcopal Church, in New York, 
and in the church's school and community outreach efforts.
    She has served as a member of the Board of Trustees of the 
New York Diocese of the Episcopal Church, and a member of the 
Board of Trustees of Episcopal Charities. Somehow, she even 
found time to sing in a well-known performance choir. I only 
wish we could hear her display this talent here, Mr. Chairman, 
as we consider her legal acumen.
    To conclude, Mr. Chairman, Judge Swain will make an 
outstanding district judge, as she has as a bankruptcy judge, 
and will serve the people of New York and the Nation well on 
the bench.
    I thank you and all of those here today for their time.
    Senator Sessions. Thank you, Senator Schumer. I know you 
care deeply about an extraordinary bench in New York and you 
work hard to achieve that.
    Senator Schumer. Thank you.
    Senator Sessions. Representative Connie Morella, we are 
delighted to have you.

  STATEMENT OF HON. CONNIE MORELLA, A U.S. REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Representative Morella. Thank you. It is a pleasure to be 
over here on this side.
    Mr. Chairman, Senator Schumer, I am very pleased to appear 
before you this afternoon on behalf of my constituent, Daniel 
Marcus, whom the President has nominated to be Associate 
Attorney General, and who has been serving in that capacity as 
Acting Associate Attorney General since October 29, 1999.
    In his role, he is responsible for the oversight and 
coordination of the civil litigating components of the 
Department, overseeing the Antitrust, Civil, Civil Rights, 
Environment and Natural Resources, as well as Tax Divisions, 
very important areas, as well as the Department's grant-making 
process. On February 28, President Clinton nominated Mr. Marcus 
to be Associate Attorney General--good judgment.
    Immediately prior to joining the Department, Mr. Marcus was 
senior counsel in the Office of Counsel to the President, and 
then before that he was a partner in the prestigious 
Washington, DC, law firm of Wilmer, Cutler and Pickering, where 
he had a general regulatory practice with particular emphasis 
on food and drug regulation and related litigation.
    He is a graduate of Brandeis and Yale Law School, wherehe 
was an editor of the Yale Law Journal. Following his graduation from 
law school, he clerked for Judge Harold Leventhal, of the U.S. Court of 
Appeals for the District of Columbia Circuit.
    He joined Wilmer, Cutler and Pickering in 1966 and became a 
partner in 1973. From 1977 to 1979, he served as the Deputy 
General Counsel of the U.S. Department of Health, Education, 
and Welfare. From 1979 to 1980, he served as General Counsel to 
the U.S. Department of Agriculture.
    In 1981, Mr. Marcus returned to Wilmer, Cutler and 
Pickering as a partner, and he served as the firm's ethics 
partner from 1991 to 1995. And from 1995 to 1998, he was a 
member of the firm's management committee. He was also the 
chairman of the D.C. Bar Legal Ethics Committee from 1995 to 
1997. That impresses me enormously.
    I am particularly impressed by Mr. Marcus' enthusiasm for 
public service and his commitment to the mission of the 
Department of Justice. We have discussed that at great length. 
Having relinquished private sector law as a partner in a 
distinguished, profitable firm to serve our country at a time 
of concern about public service brain drain, I think Mr. Marcus 
stands out as a real beacon, a real role model.
    He also displays stability and good judgment by living in 
Montgomery County, MD, my district, for 33 years, and raising 
his family there, obviously inspiring his two sons who became 
successful lawyers. He and Mrs. Marcus are blessed also with 
two and three-quarters grandchildren.
    Clearly, Mr. Marcus has a great variety of in-depth legal 
experience and an impressive resume, and, I believe the 
judicial temperament, the enthusiasm and people-oriented 
dedication to serve us exceedingly well. I certainly hope that 
the committee will move favorably on the President's nomination 
of Mr. Marcus to serve as Associate Attorney General of the 
United States.
    Senator Sessions. Thank you very much, Congresswoman 
Morella.
    Mrs. Morella. A pleasure.
    Senator Sessions. Those are very kind and generous 
comments.
    Mrs. Morella. I thank you, Mr. Chairman.
    Senator Sessions. Thank you very much.
    I see Senator Harkin is on a short timeframe, and Senator 
Cleland.
    Senator Cleland. I yield to my colleague.
    Senator Sessions. The Senator from Iowa.

STATEMENT OF HON. TOM HARKIN, A U. S. SENATOR FROM THE STATE OF 
                              IOWA

    Senator Harkin. Thank you, Mr. Chairman. I appreciate that. 
I am on the floor now as a co-manager with Senator Lugar on the 
crop insurance bill, and I wanted to take the time to come over 
here. So I appreciate my colleague, Senator Cleland, letting me 
go ahead.
    Senator Sessions. We both care about that bill.
    Senator Harkin. I know we do. I have got to get back to 
handle that.
    Mr. Chairman, I am here obviously on behalf of a friend of 
20 years, Bonnie Campbell, for the eighth circuit. But I just 
wanted to add a little postscript to what Congresswoman Morella 
was saying. It is a double pleasure for me to be here today 
because Dan Marcus is an old friend.
    As a matter of fact, my wife is not here to testify, but if 
she were, she would put an exclamation point on everything that 
Congresswoman Morella said because Dan Marcus was her first 
boss. So she worked for him for a long time and is still 
singing his praises today. So he, again, is an excellent choice 
for the position of Associate Attorney General.
    Mr. Chairman, it is my honor to be here to introduce and 
give my support to an Iowa constituent and, as I said, a friend 
of over 20 years, Bonnie J. Campbell, who has been nominated 
for the U.S. Court of Appeals for the Eighth Circuit. I believe 
she would serve in this position with honor and fairness and 
distinction.
    Bonnie Campbell has had a long and distinguished service to 
our country. First, she has a deep appreciation for Congress 
and how we operate because she started her career here back in 
the 1970's with our former colleague, Senator John Culver. 
After law school, she started in 1984 with a private practice 
in Des Moines, where she worked on cases involving medical 
malpractice, employment discrimination, personal injury, real 
estate, and family law.
    She was then elected attorney general of Iowa in 1990, the 
first woman to ever hold that position in our State. She 
managed in that position an office of some 200 people, 
including 120 attorneys handling a wide variety of criminal and 
civil matters for State agencies and officers. As attorney 
general, she gained high marks from all ends of the political 
spectrum as someone who was strongly committed to enforcing the 
law, to reducing crime, and to protecting consumers.
    In 1995, she was appointed as the Director of the Violence 
Against Women Office in the Department of Justice. In that 
position, she played a critical role in the implementation of 
the violence against women provisions ofthe 1994 Crime Act. 
Again, she has repeatedly won respect from a wide range of interests 
with different points of view on this issue. She has been, and remains, 
responsible for the overall coordination and agenda of the Department 
of Justice's efforts to combat violence against women.
    As I said, Mr. Chairman, I have known Bonnie and Ed 
Campbell for over 20 years. She is a person of unquestioned 
integrity, keen intellect, and outstanding judgment. She also 
has a great sense of fairness and evenhandedness. These are the 
qualities, I believe, and her significant experience, that make 
her an ideal candidate for this important position.
    Her nomination has been strongly supported by many, many of 
her colleagues, including the current Iowa attorney general and 
the president of the Iowa State Police Association, and the 
approval of the American Bar Association.
    Finally, I might just add, Mr. Chairman, we do need a 
judicial system that truly reflects the diversity of this 
Nation. We need more women who are qualified on the bench at 
all levels. So for all these reasons, Mr. Chairman, I urge you 
and the committee to promptly report her nomination favorably 
to the floor of the Senate.
    I know that Bonnie Campbell is here today with her husband, 
Ed Campbell--again, as I said, two longtime and close personal 
friends of mine. I have admired them both greatly through the 
years for their service to our country, to their local 
community, and to our State of Iowa. You couldn't find a better 
person to serve in this position on the court of appeals than 
Bonnie Campbell, Mr. Chairman.
    Senator Sessions. Thank you very much, Senator Harkin. We 
appreciate those comments and they will definitely be 
considered by this committee.
    Senator Harkin. I appreciate that. Thank you, Mr. Chairman.
    Senator Sessions. Senator Cleland from Georgia.

STATEMENT OF HON. MAX CLELAND, A U.S. SENATOR FROM THE STATE OF 
                            GEORGIA

    Senator Cleland. Thank you very much, Mr. Chairman. I would 
like to have Beverly Martin join me up here.
    Beverly, would you just come up here and sit for a while?
    We are delighted to be here, Mr. Chairman, and it is my 
pleasure to introduce to the committee Ms. Beverly Martin, 
currently the U.S. Attorney for the Middle District of Georgia.
    Senator Sessions. Well, that is a plus.
    Senator Cleland. Yes, it is.
    Senator Sessions. I was honored to have that time one time.
    Senator Cleland. Yes, and she does a marvelous job. She is 
currently the U.S. Attorney for the Middle District of Georgia 
and the President's nominee to the U.S. District Court for the 
Northern District of Georgia.
    I am pleased that Senator Coverdell, who has already been 
here and said some wonderful things about Beverly, joins me 
with this presentation. I am also pleased to welcome Ms. 
Martin's father, Mr. Baldwin Martin. On her father's side, Ms. 
Martin is the fourth generation lawyer to practice in Georgia. 
Both her grandfather and her great grandfather served as 
chairman of the Board of Trustees of Mercer University in 
Macon, GA.
    Beverly Martin is extremely qualified for appointment to 
the Federal bench. She has worked in private practice and has 
also held posts in State and Federal Government offices. She 
has distinguished herself as a litigator, a public prosecutor, 
and a public servant throughout her career in Georgia. I am 
very proud to recommend her today.
    Ms. Martin is a native of Macon, GA. She attended Mercer 
University before receiving her undergraduate degree from my 
alma mater, Stetson University, in Deland, FL. I often say that 
my alma mater, Stetson, did two great things for me. They let 
me in and they let me out. [Laughter.]
    She attained her J.D. from the University of Georgia School 
of Law in 1981. Ms. Martin was an associate attorney in the law 
firm of Martin, Snow, Grant, and Napier, in Macon, from 1981 to 
1984, a law firm founded by her great grandfather.
    From 1984 to 1994, Ms. Martin served as Assistant Attorney 
General in the Office of Georgia's Attorney General. At the 
Attorney General's Office, she represented the State of Georgia 
in civil litigation, and also served as the Division Director 
for the Business and Professional Regulation Division. In 1994, 
Ms. Martin joined the U.S.Attorney's Office in the Middle 
District of Georgia as a Federal prosecutor of both narcotics and 
general offenses.
    In 1997, Ms. Martin was nominated by President Clinton and 
confirmed by the Senate to become the U.S. attorney for the 
Middle District, where she currently serves. As U.S. attorney, 
Ms. Martin oversees approximately 60 employees and the legal 
work of the United States of America in 70 Georgia counties.
    Ms. Martin was appointed by the Attorney General to be a 
member of the Attorney General's Advisory Council for a 2-year 
term beginning in January of last year. She was also selected 
by her peers to be the chair of the Executive Committee of the 
Advisory Council for the Organized Crime Drug Enforcement Task 
Force in the Southeast Region of the United States.
    Ms. Martin was selected as one of the two Women of 
Achievement by Career Women's Network last year. She was also 
named by her high school as Alumni of the Year last year. She 
serves on the Board of Directors of the Macon State College 
Foundation and is a member of the Steering Committee for 
Macon's Executive Forum.
    Ms. Martin is a member of the State Bar of Georgia, the 
Macon Bar, and the Lawyer's Club of Atlanta. She is also a 
Master in the William Augustus Booth Inn of Court and is 
admitted to practice before the Federal District Courts for the 
Northern, Middle and Southern Districts of Georgia, the 
Eleventh Circuit Court of Appeals, and the U.S. Supreme Court.
    She is an excellent attorney and will be an outstanding 
addition to the Federal bench. She cares deeply about her State 
and her country. She loves her work, and she has served the 
State of Georgia for over 15 years as a Federal prosecutor in 
the Georgia Attorney General's office, assistant U.S. attorney, 
and U.S. attorney. She demonstrates the personal and 
professional qualities that will make her an outstanding 
Federal judge. I highly recommend Ms. Beverly Martin to the 
committee and the U.S. Senate, and urge that she be promptly 
confirmed.
    Thank you very much, Mr. Chairman.
    Senator Sessions. Thank you very much, Senator Cleland. 
Thank you for those remarks, and I know you care deeply about 
having quality people on the bench in Georgia.
    Senator Cleland. Thank you, sir.
    Senator Sessions. Thank you.
    Our Judiciary Committee today is holding its fifth 
nominations hearing of the second session of the 106th 
Congress. We will hear from one Justice Department nominee, one 
judicial nominee who has been nominated to be a U.S. circuit 
judge, and three judicial nominees who have been nominated for 
U.S. district judges.
    We will have three panels this afternoon. The first will 
consist of the sponsors of the nominees. We have just had that. 
Then the second panel will consist of Mr. Daniel Marcus, who 
has been nominated to be Associate Attorney General. Our final 
panel will consist of the judicial nominees Bonnie J. Campbell, 
of Iowa, to be U.S. Circuit Judge for the Eighth Circuit; Jay 
A. Garcia-Gregory, of Puerto Rico, to be U.S. District Judge 
for Puerto Rico; Beverly B. Martin, of Georgia, to be U.S. 
District Judge for the Northern District of Georgia; and Laura 
Taylor Swain, of New York, to be U.S. District Judge for the 
Southern District of New York.
    Mr. Marcus, I believe you are first up. Please join us.
    I will need to take your oath, if you would raise your 
right hand.
    Do you solemnly swear that the testimony you shall give in 
this hearing shall be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Marcus. I do.
    Senator Sessions. If you have any family members or friends 
you would like to introduce, Mr. Marcus, we would be delighted 
to have you do that at this time.

   TESTIMONY OF DANIEL MARCUS, OF MARYLAND, TO BE ASSOCIATE 
             ATTORNEY GENERAL OF THE UNITED STATES

    Mr. Marcus. Well, thank you, Mr. Chairman. Congresswoman 
Morella did a little head start for me on that, but let me 
introduce, sitting in the front row here, my wife, Maeva 
Marcus, who has supported me and borne with me for the last 35 
years; my son, Jonathan, who is a career lawyer in the Justice 
Department, in the Criminal Division; his wife, Phyllis, who is 
a career lawyer at the Federal Trade Commission.
    Our daughter, Stephanie, could not be here today because 
before this hearing was scheduled, she planned a week at the 
beach with her husband and her little girl.
    Senator Sessions. She has her priorities straight. 
[Laughter.]
    Mr. Marcus. The real stars of the family, our two 
granddaughters, are a little too young to be here today. They 
are age 2 and age 1, but pictures are available after the 
hearing. [Laughter.]
    Senator Sessions. We would be glad to hear any remarks that 
you would like to make.
    Mr. Marcus. Thank you. I will be brief.
    Thank you, Mr. Chairman. It is a great honor for me to 
appear here today. I am grateful to the President fornominating 
me, and to the Attorney General for all her support and encouragement. 
I am also grateful to you, Mr. Chairman, and to the other members of 
this committee for considering my nomination to be Associate Attorney 
General. And special thanks to Senator Sarbanes and Congresswoman 
Morella for taking time from their busy schedules to stop by and say 
some kind words about me.
    As you can tell from my resume and the comments of Senator 
Sarbanes and Congresswoman Morella, I have spent my entire 
legal career here in Washington, more years than I would like 
to remember. The bulk of that time has been spent in private 
practice at the firm of Wilmer, Cutler, and Pickering, although 
I was privileged to be nominated by President Carter and 
confirmed by the Senate to be General Counsel of the Department 
of Agriculture in 1979.
    But for me, as for many lawyers in Washington, I think, the 
Department of Justice has always represented the best that our 
Nation has to offer as an opportunity for public service for 
lawyers. So I responded with alacrity last year when Ray Fisher 
asked me to come over to the Justice Department and be his 
principal deputy. Since last October, when Mr. Fisher, with the 
blessing of this committee, went on to become a judge on the 
Court of Appeals for the Ninth Circuit, I have had the honor of 
serving as Acting Associate Attorney General.
    The Associate Attorney General, as you know, supervises 
five of the six litigating divisions of the Department--the 
Antitrust Division, the Civil Division, the Civil Rights 
Division, the Environment and Natural Resources Division, and 
the Tax Division. I also supervise the Department's grant-
making agencies, the Office of Justice Programs and the COPS 
office.
    On a daily basis, it is inspiring and invigorating to work 
not only with the leaders of those divisions and offices, many 
of whom you know, but also with the dedicated and talented 
career lawyers of the Department. Day in and day out, through 
Republican and Democratic administrations, those career lawyers 
provide representation to the people of the United States with 
the highest standards of excellence and integrity. You have my 
personal commitment that if I am confirmed as Associate 
Attorney General, I will do everything I can to ensure that 
those standards and those traditions are upheld.
    Thank you again, Mr. Chairman, for considering my 
nomination. I hope I will have the opportunity to continue to 
work with this committee in furthering our common goal of 
preserving and strengthening our American system of justice.
    I would be happy to answer any questions that the committee 
may have.

                    questioning by senator sessions

    Senator Sessions. Thank you very much, Mr. Marcus. That was 
a fine statement, and you correctly note the great traditions 
of the Department of Justice and the need to maintain that. I 
know the Department has had some rocky times in areas really 
not in your area, but it is important everyday to make sure 
that the acts that are taken are defensible legally and 
otherwise.
    I guess one of my first questions to you would be a 
question you and I discussed when we had a very pleasant 
discussion earlier, and that is are you capable and willing to 
undertake the unpleasant duty sometimes of telling your 
superiors and political higher-ups ``no.'' I mean, that is one 
of the duties that a lawyer has to do and, to me, a high 
official in the Department of Justice will be called upon to 
express opinions or to approve or disapprove actions. You will 
have a high position there.
    Will you tell us here in this hearing that if you believe 
it is wrong or not justified legally or morally or ethically 
that you would say no and do what you can to avoid a bad 
decision?
    Mr. Marcus. I agree with you completely, Mr. Chairman, and 
I will make that commitment. I think any lawyer who has had the 
experience that I have had in private practice and in 
Government knows that you have to be willing as a lawyer to 
tell your clients on occasion, no, you can't do that, and I 
think any lawyer worth his salt is prepared to do that.
    Senator Sessions. Thank you.
    I will just say this for all the nominees, for judges, of 
course, this is the only chance that the public has to have 
some insight into the background, the record, and the future 
prospects of a nominee. Once confirmed for a judgeship, it is 
lifetime appointment, not for you, Mr. Marcus, probably 
fortunately. The Department of Justice can wear anybody out, 
but it is a good place to be. At any rate, I would say that to 
you, so we will perhaps ask some questions.
    But I think it is also important to note for the record 
that you have received the support of the President of the 
United States. Most of you, if not all of you, have received 
the support of the Senators from your States, and Congressmen 
and others who support you. FBI background checks have been 
conducted. The American Bar Association has done an analysis, 
and the committee staff here has reviewed the records and all 
the forms you have had to fill out, many of them quite long and 
detailed, and we have evaluated those. So I don't think it is 
necessary that we go over every issue, but I do think it is 
appropriate that some questions might be asked.
    Mr. Marcus, one area that was noted on Monday in the Wall 
Street Journal falls under your area; that is, the COPS 
program. According to the Journal, the program has 
vastlyoverstated the number of policemen put on the street and has 
ignored some very serious problems resulting from poor administration 
and use of COPS grants.
    Indeed, the Department of Justice's own Inspector General 
determined in its most recent audit that only one-half of the 
proclaimed 100,000 new officers have actually been deployed. 
Moreover, even that figure is suspect because the COPS office 
does not maintain an accurate tally of police officers actually 
deployed on the street. It bolsters its figures by including 
grants that have not even been accepted, let alone been used to 
hire officers, and by counting equipment such as new radios as 
equivalent to a certain number of offices. This program, which 
costs the taxpayers $8.8 billion--that is big--reportedly has 
been used for all sorts of inappropriate things, including the 
purchase of liquor for officers.
    So I would like to know how you are planning to reform the 
COPS program to make sure that the American people are getting 
their money's worth and to stop the COPS office from making 
highly misleading public relations statements concerning the 
results of the COPS program.
    Mr. Marcus. Mr. Chairman, I read the Wall Street Journal 
article that appeared this week, and the COPS office is hard at 
work preparing a response to that article. The COPS program, I 
think, is an example of a very large and important Federal 
program of providing assistance to State and local law 
enforcement agencies to hire police officers and to purchase 
computers and other equipment and to hire civilians that will 
free up police officers to be deployed on the street.
    The purpose of the COPS program is a very important purpose 
that I think has widespread bipartisan support, and that is to 
get more cops on the street and to improve community policing 
throughout our Nation. As with any large Government grant 
program, there may be occasional situations--and there are 
thousands and thousands of COPS grants out there--where there 
have been problems with those grants.
    The particular situations described in the Journal article 
are isolated situations which the COPS program has dealt with. 
The Inspector General did an audit of the COPS program last 
year shortly after I came to the Department. The COPS office 
has cooperated with the Inspector General in making the changes 
that the Inspector General recommended in resolving the audit 
issues, and we are convinced that the COPS program is well on 
the road to resolving the issues raised by the Inspector 
General report.
    You referred to the COPS count issue and let me just say a 
word about that. I think we have been very careful in the 
statements we have made about the COPS program. It takes some 
time once a grant is made, particularly with the technology 
grants, to do the redeployment, to do the training and get the 
cops out on the street, to hire the cops to get them out on the 
street.
    We have been very careful to say that we have met our goal 
of funding through grants the hiring or redeployment of more 
than 100,000 police officers. As the Journal article indicated, 
we have got about half those officers already hired and out on 
the street, another 13,000 or so redeployed as a result of 
technology grants, and the other grants will result in cops in 
the pipeline getting out on the street over the next couple of 
years.
    But we are committed to running that program in an 
efficient way, consistent with standards of integrity. And I 
have a lot of confidence in Tom Frasier, who came to the 
Department last fall from a career as police commissioner in 
Baltimore and previously as a police officer in California. He 
is working very hard with a good staff to make sure that 
program is run well.
    Senator Sessions. In terms of money, it is the biggest part 
of your portfolio, isn't it?
    Mr. Marcus. It is a big part, yes.
    Senator Sessions. Will you commit to us that you will 
examine the Inspector General's report, which I saw last year 
and reviewed, and it was pretty scathing on some of the 
activities, actually, your own Department of Justice Inspector 
General. I believe it needs some attention. I don't think it is 
something that you can coast on now.
    Will you give this program attention to make sure that 
statements coming out saying what it has accomplished are 
accurate, and that some of the abuses, some of which are done 
by local police, not the Department of Justice, but you have 
the responsibility of some oversight on the money you send 
out--will you make a commitment that you would work to improve 
that program?
    Mr. Marcus. I agree with you, Senator, and I will make that 
commitment. We have made a lot of progress, but it needs and 
will receive my continued attention.
    Senator Sessions. I am also concerned about the 
politicization of the Department and the perception that it has 
brought the tobacco suit for political reasons. I am concerned 
that if this is true, no industry would be immune from efforts 
by the Federal Government to use litigation as a tool to 
regulate unpopular industries. This would bypass Congress' 
constitutional role to set health policy through the 
legislative process.
    I believe that the Federal tobacco suit may be the start of 
a pernicious trend to sue entire industries, which was never 
done until very recently in our legal system, in order to 
coerce settlements or enforce judgments that, infact, regulate 
entire sectors of our economy.
    I was also troubled by the lawsuit against the gun 
manufacturers. I felt that was particularly extreme, although I 
will note--I see you are smiling, but I will note the 
Department of Justice did not file that suit. It was done by 
Housing and Urban Development, I believe, and I thought it was 
a stretch. Since normally litigation is commenced within the 
Department, it was not approved within the Department.
    But with regard to this tobacco issue, would you share your 
comments about that?
    Mr. Marcus. Yes, Mr. Chairman. I appreciate your concerns 
about lawsuits of this nature.
    Senator Sessions. Excuse me.
    Mr. Marcus. Good morning, Mr. Chairman.
    Senator Sessions. We are delighted to have our Chair.
    The Chairman. Please go ahead.
    Mr. Marcus. Senator Sessions, I appreciate your concern 
with lawsuits of this nature, and I want to assure you, when I 
came to the Justice Department a little over a year ago, 
consideration of a possible lawsuit against the cigarette 
companies was already well underway. And I observed and 
participated in that process from April of 1999 until September 
when the lawsuit was filed, and I can assure you that the 
filing of that lawsuit, the decision to file that lawsuit was a 
careful decision that was undertaken on the merits by the 
Justice Department, and that we are confident that there are 
unique factors about the history of the tobacco industry and 
the cigarette companies that justify this kind of lawsuit.
    The test, of course, will be in the Federal courthouse. 
Indeed, next week the motions to dismiss that were filed by the 
cigarette companies will be argued before the Federal district 
court here in Washington. And we are confident that we have a 
sound lawsuit, but the courts will tell us.
    Senator Sessions. Well, I would just note I think in some 
of these new forms of litigation, we are at the margin that 
implicates separation of powers issues. Even if we don't like 
what they are doing, even if what they are doing is wrong, 
normally an individual has to file a suit. When the Government 
steps in and the Attorneys General of the States hire lawyers 
to represent them at huge fees and those kinds of things, we 
begin to have a blurring.
    You and I have talked about this. I respect your legal 
analysis of these issues, and I just want you to know that I am 
concerned about it. I think we may have some disagreement on 
the issue, but I respect your judgment.
    Mr. Marcus. Thank you, Senator.
    Senator Sessions. Thank you.
    The Chairman. Senator Schumer has some questions.

                     questioning by senator schumer

    Senator Schumer. Thank you, Mr. Chairman, and I thank you 
for holding this hearing. I want to thank Mr. Marcus for the 
service that he has already given. He is obviously a well-
qualified candidate for Associate Attorney General.
    I would like to speak to you on an issue that you probably 
knew you were not going to get away without my asking questions 
about this, but it is something I am extremely concerned about 
and now getting very frustrated with the Justice Department, 
and particularly your department, and that is the Justice 
Department's lack of action with respect to innocent private 
land owners in the Oneida land claims suit of New York. I have 
been asking that these land owners be removed from suit for 
more than a year.
    You oversee this case and we have talked about it several 
times. I must admit I still don't feel I have a satisfactory 
answer to why DOJ cannot proceed in this case without involving 
innocent land owners, not only in the right of ejectment, but 
in allowing them to be in harm's way in any way at all.
    Can you tell me what is happening? Can you tell me why 
there has been such delay and when I am going to get an answer 
from Justice not only about ejectment, but about all financial 
claims that might be held against land owners?
    Mr. Marcus. Yes, Senator Schumer, and I think you are going 
to get an answer very soon. We have been involved in a process 
which has stretched out longer than we had hoped of trying very 
hard to get this case settled. As you know, Judge McKearn, I 
guess it was over a year ago, appointed a distinguished 
mediator to try to settle this case, and our motion with 
respect to coming into the case and adding the State and the 
land owners as defendants has never been acted on. It has been 
held in abeyance pending the settlement negotiations.
    We have been very reluctant to give up on the settlement 
negotiations because from time to time--and I can't discuss 
them in detail--we have been close to a settlement, we had 
hoped. We have worked very hard with the State, with the 
counties, and with the Oneidas to try to settle this case.
    We recently asked the judge for another week because 
efforts are still continuing. Absent another extension, we will 
be filing our report with the judge next week on the status of 
the settlement negotiations, and we are continuing to explore 
ways in which we can give additional assurances to the land 
owners. The land owners, as you observe, are----
    Senator Schumer. Can I interrupt? What assurances have you 
given? You said additional.
    Mr. Marcus. Well, we have given----
    Senator Schumer. I see the Justice Department filingthe 
suit. It was done before I took office. The Justice Department was 
siding with the Oneida Nation, was agreeing that land owners might have 
to be ejected, was agreeing that land owners who have held the property 
for--families often for generations, should be held in harm's way for 
something that happened in 1790.
    I was utterly amazed that the Justice Department and the 
Federal Government would not simply try to settle, but would 
basically hold the land owners as hostage, as pawns, to try and 
get the State to settle. I admit there are legitimate claims 
between the State and the Indian tribes, although those come 
from 1790. There was a Supreme Court case in 1985, but there 
was no mandate whatsoever that the land owners be put in the 
middle of this.
    And now we are in the anomalous position where the Oneidas, 
the actual plaintiffs, are asking for less than the Justice 
Department, because they have already publicly stated that as 
long as the suit is allowed to continue, they will remove the 
land owners from harm's way. They are admitting they made a 
mistake. Do you think the Justice Department made such a 
mistake?
    I know there is a settlement going on; we all know that. I 
would like to know how one can defend putting a right of 
ejectment in the suit, how one can defend that the Federal 
Government, in the personage of the Justice Department, should 
take the side completely of one side in this case, and most 
importantly when are we going to see the Justice Department 
remove the land owners from harm's way, something we have all 
been waiting for and hasn't happened. You and I have talked for 
three, four months. We talked, I think, two, three weeks ago 
and I was supposed to get an answer within three days.
    Mr. Marcus. Senator, the Justice Department came into this 
case before I was at the Justice Department because of its 
statutory obligation to look out for the interests of Indian 
tribes such as the Oneidas. But the Department of Justice's 
sharing of interest with the Oneida tribes is with respect to 
the State's responsibility here. We think the State of New York 
is the party that should be paying damages to the Oneida 
Indians.
    The Federal Government, incidentally, in the settlement 
negotiations has offered to make a Federal contribution, as 
well, even though there is no Federal responsibility here, we 
believe, in an effort to try to settle the case.
    Senator Schumer. But I am not arguing that part of the 
case.
    Mr. Marcus. I understand.
    Senator Schumer. I am arguing that the land owners are put 
in the middle.
    Mr. Marcus. I understand that.
    Senator Schumer. Property values have declined. People are 
afraid to sell their land, people are afraid to buy land, for 
something that these people are as innocent as you or me of, an 
action in 1790.
    Mr. Marcus. We have tried to give assurance to the land 
owners that we are seeking relief against the State, not the 
land owners. One of our problems, as you know, is that the 
position that the State has been taking formally in the case is 
one that suggests that the State is not liable and that the 
land owners implicitly may be liable. That is not our position.
    Since the time I have been at the Justice Department, we 
have consistently assured the land owners that we are not 
seeking ejectment and we are glad to----
    Senator Schumer. Although your court papers have said it.
    Mr. Marcus. The court papers----
    Senator Schumer. You tell them we are really not doing 
this, but the court papers say we are seeking ejectment. They 
haven't been changed yet, as I understand it, in the Oneida 
case.
    Mr. Marcus. I can assure you, Senator, that we----
    Senator Schumer. But am I right that at this moment the 
court papers filed have not been amended and they hold a right 
of ejectment?
    Mr. Marcus. That is correct, but we have not only stated 
publicly, we have told the court that we are not seeking 
ejectment, and the amended complaint that will be filed will 
certainly not seek ejectment.
    Senator Schumer. Will the amended complaint remove the land 
owners from harm's way in any way?
    Mr. Marcus. I am very hopeful that we are right now 
considering actively several alternatives for giving additional 
assurances to the land owners and removing them from harm's 
way, and I hope to have a definitive answer for you as soon as 
we reach a decision on that, which hopefully will be in the 
next few days.
    Senator Schumer. OK, although I have heard that for three 
months.
    Mr. Marcus. I understand.
    Senator Schumer. Do you set this policy or do you have to 
get approval from someone above you?
    Mr. Marcus. I supervise the Environment and Natural 
Resources Division. This is an issue we work out with our 
client, the Department of the Interior.
    Senator Schumer. Has Interior stood in the way of removing 
the land owners?
    Mr. Marcus. We are in the middle of discussions with them, 
Senator. No, they have not stood in the way.
    Senator Schumer. OK.
    Mr. Marcus. We are working together with them to consider 
alternatives for providing additional assurances to the land 
owners.
    Senator Schumer. You know, you could have said to me a year 
ago, don't push me on this because we are trying to negotiate, 
but I have lost patience, basically. Would you be willing to 
say that it is your personal view that the Justice Department 
should remove the land owners from this suit and out of harm's 
way as long as the suit between the Indian tribes and the 
State, which is the gravamen of the complaint here, is not 
jeopardized?
    Is it your personal opinion--I am not asking Justice 
Department policy--that you should at least go as far as the 
Oneidas have gone in backing off what I consider a real 
travesty in how the Federal Government has behaved?
    Mr. Marcus. I think I can say it is my personal opinion and 
it is the opinion of the Department of Justice. We are going to 
make clear to the court that we are not seeking any relief 
against the land owners.
    Senator Schumer. You are going to make that clear in your 
legal papers or just in--I forget the term, having been out of 
law school for a long time and never practiced, but dicta? Is 
this going to be part of the papers or is this going to be 
whatever verbiage is between you?
    I mean, what has happened in the past is we go to the land 
owners, sir, and we say, well, the Justice Department really 
isn't serious about removing the land owners or holding them 
out of harm's way. And they come back to us and say, really? 
Here are the legal papers they filed.
    You are a good lawyer, you are an excellent lawyer. If you 
were advising your client, would you advise them to rely on the 
verbiage between the judge and the lawyer or on what the court 
papers say?
    Mr. Marcus. Senator, we will be filing papers with the 
court very shortly that will make our position clear. I hope 
that position will be satisfactory, will provide sufficient 
assurance for the land owners and for you.
    Senator Schumer. Well, I would simply urge you to 
reevaluate the position of Justice and make it crystal clear 
that you are not coming in de novo. You are not coming in with 
clean hands, not you, Mr. Marcus, but the Justice Department. 
And I would advise you to make it one hundred percent clear in 
the papers and everywhere else that the land owners are no 
longer in harm's way.
    Here is what you have in the last year, Justice Department. 
You have not accomplished a settlement. You have created far 
greater tensions between the Indian tribes and the land owners 
because you have pitted one against the other, when originally 
that wasn't the case. And you have hurt two counties that are 
in pretty bad shape to begin with. So I would hope that you 
learn the error of your ways.
    By the way, this is not personal to you. I think you are a 
fine man. You know, you are serving your country well and you 
are the kind of person who should be in Government. And I don't 
know what forces there are surrounding you, but the frustration 
level not only that I have, but that Congressman Boehlert has, 
that all of the Federal representatives of this area, Democrat, 
Republican, liberal, conservative, have with how the Justice 
Department has acted is at the boiling point. And I would urge 
you to try and get that policy changed as quickly as possible.
    I want to say to your family--I imagine those are your 
children there--he is a good man and I have nothing against 
him. You should be proud of him. I just think he is 
representing a wrong policy, very wrong, in one specific 
instance.
    Mr. Marcus. Is now the time, Senator, to tell you I was 
born in Brooklyn? [Laughter.]
    Senator Schumer. Well, you can tell me that when you file 
your papers.
    Thank you. Thank you, Mr. Chairman. I am sorry for that 
diversion, but this is extremely important to me and to many of 
the citizens of my State.
    The Chairman. That is fine, Senator Schumer.
    Mr. Marcus, welcome.
    Mr. Marcus. Thank you, Mr. Chairman.

                      QUESTIONING BY SENATOR HATCH

    The Chairman. I am sorry I couldn't be here from the 
beginning.
    I have worked for many years to protect the religious 
freedoms of all Americans. I believe that such freedoms are 
among the very most fundamental and important rights protected 
by the Constitution. The Clinton administration supported the 
Religious Freedom Restoration Act, which passed a few years ago 
but was partially struck down by the Supreme Court. I am now 
working on the Religious Liberty Protection Act.
    Will you make a commitment not only to support such 
legislation, but also to work with me to pass this legislation 
this year?
    Mr. Marcus. Senator Hatch, I know our folks are actively 
taking a look at draft language on a new religious liberty 
protection act. We are very anxious to work with you and with 
other Senators and Congressmen on this issue. The President has 
a commitment here, and we look forward to--I think the idea of 
now trying more focused, specific legislation in an effort to 
adjust to the Supreme Court's decision in City of Boerne makes 
a lot of sense.
    The Chairman. Well, it is very important to me. Ibelieve we 
should do that. One of the triumphs we had was passing the Religious 
Freedom Restoration Act. I was down there with the President when he 
signed it into law, and I was really shocked at the Supreme Court 
coming out and voiding it partially.
    Now, the Judiciary Committee, along with other 
congressional committees, have experienced a great deal of 
frustration in conducting oversight of the Justice Department. 
Requests for documents and other information are generally met 
with conciliatory statements and indications of cooperation, 
but actually getting documents from the Justice Department has 
been like pulling teeth.
    The Department has stonewalled us, citing Department 
policy, deliberative process, sensitive matters, 
classification, all the while denying the Congress and the 
American people from looking at the materials that we think we 
are entitled to. They have been denying us the necessary 
information to evaluate the performance of the Justice 
Department.
    Despite the overwhelming support in the case law upholding 
Congress' authority to get information related to its oversight 
function, including information relevant to internal 
deliberations by prosecutors and open investigations, the 
Justice Department has refused to produce materials simply 
because of departmental policy.
    For example, the Department of Justice has refused to 
produce certain materials related to the Loral Hughes matter 
solely on the basis that it would go against Department policy 
with regard to open cases. Now, this is despite the fact that 
the courts, from investigations since Teapot Dome to Iran-
contra, have ruled that Congress is entitled to information in 
open cases.
    When a subpoena is issued to the Justice Department, do you 
believe that it is proper to refuse to produce documents on the 
basis of anything other than a recognized legal privilege, such 
as executive privilege or attorney-client privilege?
    And let me just ask an additional question on top of that 
one. What will you do to ensure that the Department fully 
complies with congressional subpoenas?
    Mr. Marcus. Mr. Chairman, I think that, of course, we don't 
assert the right to refuse to respond to subpoenas other than 
on the basis of clearly established privileges. But we do make 
an effort, where we have concerns under deliberative privilege, 
under the open case policy, to see if we can reach some 
accommodation with the committee that provides you with the 
information you need in a way that enables us to protect what 
we think are important policies that are longstanding policies 
of the Justice Department in Republican as well as Democratic 
administrations.
    We are not always successful in that effort, and I realize 
that there have been disagreements in this necessary process of 
trying to accommodate between the Department's needs and the 
committee's very important needs. I can commit to you that--and 
most of the controversies that you have referred to are ones 
that don't fall within my bailiwick on the civil side of the 
Department.
    But I know that the Attorney General and the Deputy 
Attorney General are committed to working with you and your 
committees on these matters, despite past disagreements. And I 
share that commitment and give you my personal commitment to 
try to work those matters out in an effective way so that you 
get what you need.
    The Chairman. Well, thank you because I think we have had 
far too many difficulties getting subpoenaed documents, and 
frankly it just isn't right. So I would appreciate any help you 
can give there.
    Well, I want to thank you for being here today. I am easy 
compared to these other guys. [Laughter.]
    Mr. Marcus. Thank you very much, Mr. Chairman.
    The Chairman. Nice to have you with us.
    [The questionnaire of Mr. Marcus, with attachments, 
follow:]
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    The Chairman. If we can have Ms. Campbell, Mr. Garcia-
Gregory, Ms. Martin, and Judge Swain come to the witness table, 
I will be glad to swear you all in.
    If you would raise your right hands, do you solemnly swear 
to tell the truth, the whole truth, and nothing but the truth, 
so help you God?
    Ms. Campbell. I do.
    Mr. Garcia-Gregory. I do.
    Ms. Martin. I do.
    Judge Swain. I do.
    The Chairman. Thank you.
    Do any of you have any statements you would care to make? 
We will start with you, Ms. Campbell, then Mr. Garcia-Gregory, 
then Ms. Martin, and then Ms. Swain, and please introduce your 
family members or any guests or friends that you have with you.

 TESTIMONY OF BONNIE J. CAMPBELL, OF IOWA, TO BE U.S. CIRCUIT 
                  JUDGE FOR THE EIGHTH CIRCUIT

    Ms. Campbell. Thank you, Mr. Chairman. I don't have a 
statement, except to thank you for the opportunity to be here. 
I would like to introduce my husband, Ed Campbell, sitting 
right there.
    The Chairman. Ed, we are glad to have you with us.
    Ms. Campbell. And I have many friends and colleagues from 
the Violence Against Women Office and others with whom I work 
who are here, and I thank them, but I certainly won't introduce 
all of them.
    The Chairman. Well, we are thankful to have all of you 
here. As one of the coauthors of the Violence Against Women 
Act, we are happy with the work that you are doing, and we are 
going to try and get it right this time, although I felt the 
Supreme Court should have gotten it right itself, but you never 
know.
    Ms. Campbell. I appreciate your support always.
    The Chairman. Thank you, Ms. Campbell.
    Mr. Garcia-Gregory.

TESTIMONY OF JAY A. GARCIA-GREGORY, OF PUERTO RICO, TO BE U.S. 
         DISTRICT JUDGE FOR THE DISTRICT OF PUERTO RICO

    Mr. Garcia-Gregory. I take this opportunity to thank you, 
Mr. Chairman, for the opportunity to be here at this hearing. 
And I would like to introduce my wife of 30 years, Myrella.
    The Chairman. So happy to have you here.
    Mr. Garcia-Gregory. And my daughter, Myrella Garcia, 27 
years old.
    The Chairman. Very happy to have you.
    Mr. Garcia-Gregory. My other daughter could not be here. 
She took a vacation after finishing her second year of law 
school at Suffolk, and she is right now in Malaysia. But I wish 
to publicly thank my wife, Myrella. If it had not been for her 
support, I probably would not be here today. She was 
instrumental in my actually going through my career as a 
lawyer, as a law student and a lawyer, and she has been very 
supportive. And if I had to marry again, I would marry her all 
over again, as well as I would study law, which I love, I 
really love.
    The Chairman. We are always happy to hear that. [Laughter.]
    Mr. Garcia-Gregory. It has been 30 years of bliss and I 
hope it goes on.
    The Chairman. Thank you so much.
    Ms. Martin.

TESTIMONY OF BEVERLY B. MARTIN, OF GEORGIA, TO BE U.S. DISTRICT 
           JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA

    Ms. Martin. Thank you, Mr. Chairman. I wanted to thank you 
for having this hearing today, and particularly for letting me 
participate in it.
    My father is here with me today, Baldwin Martin. He is here 
from Macon, GA. My cousin, Kelli Wynn, is----
    The Chairman. Let's have your father stand up. I think I 
saw him.
    [Mr. Martin stood.]
    The Chairman. Very happy to welcome you here.
    Ms. Martin. My cousin, Kelli Wynn, is a student at 
Georgetown, so she was able to come across town and be with us 
today. She told me she made dean's list, so I think she is 
really here to check my answers.
    The Chairman. That is good.
    Ms. Martin. Also, a childhood friend from Sunday school and 
church lives here in Washington and she is here as well, 
Kathleen Burger. She is here with her husband, Glen Gerada.
    The Chairman. Kathleen, happy to have you here, and your 
husband as well.
    Well, thank you.
    Ms. Martin. Thank you for having me.
    The Chairman. By the way, Paul Warner speaks very highly of 
you.
    Ms. Martin. I think very well of him, Mr. Chairman.
    The Chairman. He is a good man.
    Ms. Swain.

   TESTIMONY OF LAURA TAYLOR SWAIN, OF NEW YORK, TO BE U.S. 
      DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK

    Judge Swain. Thank you, Mr. Chairman. It is an honor to be 
here, and I am grateful for the consideration of the nomination 
and for the opportunity to introduce my family members who are 
here today--my husband, Andrew Swain, and my daughter, 
Annabelle Swain.
    The Chairman. Annabelle. She looks like she is pretty 
relaxed there.
    Judge Swain. It varies.
    My mother, Madeline Taylor.
    The Chairman. We are happy to have you with us.
    Judge Swain. And my brother, Gordon Taylor.
    The Chairman. Gordon, happy to have you here.
    Judge Swain. And for myself and my family members who could 
not be here today, including Andy's family in England and for 
the bankruptcy court on which I sit, I thank you for this 
opportunity and for the consideration.
    The Chairman. Well, thank you so much. We are proud of you 
and proud to have all of you here, and we look forward to 
questioning you and asking some questions to you that I think 
need to be asked.
    I will just ask across the board here, in general, Supreme 
Court precedents are binding on all lower courts, and circuit 
precedents are binding on the district courts within any 
particular circuit. Are you committed to following the 
precedents of the higher courts faithfully and giving them full 
force and effect even if you personally disagree with such 
precedents?
    Ms. Campbell, you are up for the eighth circuit, and the 
rest of you are up for district court judgeships.
    Ms. Campbell. Well, the answer is short. Absolutely.
    The Chairman. OK.
    Mr. Garcia-Gregory. Definitely, yes.
    Ms. Martin. Yes, Mr. Chairman.
    Judge Swain. Yes, Mr. Chairman.
    The Chairman. What would you do if you believed the Supreme 
Court or the court of appeals had seriously erred in rendering 
a decision? Would you nevertheless apply the decision or would 
you apply your own best judgment on the merits?
    We will start with you, Judge Swain.
    Judge Swain. I would follow the applicable precedent, 
absolutely.
    Ms. Martin. The role of the district court is very limited 
and you would be bound by the precedent from the circuit court 
or the Supreme Court, Mr. Chairman.
    Mr. Garcia-Gregory. I would be duty-bound by the Supreme 
Court, as well as the circuit.
    Ms. Campbell. I would follow the precedent, as well.
    The Chairman. That is good. Take, for example, the Supreme 
Court's decision on Monday in United States v. Playboy 
Entertainment Group, Inc., where the Court struck down a 
provision of the 1996 Telecommunications Act that was designed 
to protect children from exposure to sexually explicit adult 
programming on television. That was a 5-4 decision.
    The bill required cable operators who offer sexually 
explicit material to fully scramble their signals or show such 
programming only between 10 p.m. and 6 a.m. The Court said that 
violated the first amendment's free speech guarantees. The 
Court held that another section of the same law requiring cable 
operators to inform subscribers that they will completely block 
objectionable if asked to do offered an equally effective and 
less restrictive means to achieve the same goal.
    I presume you will follow the precedent, even though you 
may or may not agree with it. Anybody who won't?
    [No response.]
    The Chairman. You have stated that you would be bound by 
Supreme Court precedent and, where applicable, the rulings of 
the Federal circuit court of appeals for your district. There 
may be times, however, when you are faced with cases of first 
impression. What principles will guide you or what methods will 
you employ in deciding cases of first impression?
    Shall we start with you, Ms. Martin?
    Ms. Martin. Thank you, Mr. Chairman. Of course, in my 20 
years of practicing law, I have rarely been faced with an issue 
that hadn't been decided before because there is such an 
enormous body of law from the various courts who are ruling 
over district courts.
    But there is a procedure to follow. You look first to the 
plain language of the statute in interpreting it, look to any 
other analogous analyses that have been made by the circuit 
courts and the Supreme Court and apply those.
    The Chairman. All right.
    Mr. Garcia-Gregory.
    Mr. Garcia-Gregory. I would agree with my colleague on the 
left. You know, those are the available sources to be used. If 
there is any ambiguity in the statute, it is not a plain-
language matter, I would go to the legislative history. But I 
would certainly use the traditional tools of analogy and 
distinction, but always being guided by either precedent or the 
applicable laws.
    The Chairman. Thank you.
    Judge Swain.
    Judge Swain. In those rare cases, and they are indeed rare 
in my experience as well, I would look to theapplicable 
constitutional or statutory language as a starting point, to 
precedents, to analogous cases, perhaps analogous statutes, and I would 
do my best to make a decision that is consistent with precedent, with 
applicable law, and to explain well the basis of my decision.
    The Chairman. Thank you.
    Ms. Campbell.
    Ms. Campbell. It is difficult to improve upon what has 
already been said because I agree with it. I would look to the 
Constitution, the statute, the plain meaning of the statute, 
any Supreme Court or circuit court precedents, and apply the 
law as well as I can.
    The Chairman. Thank you. Now, please state in detail your 
best independent legal judgment on the lawfulness under the 
Equal Protection Clause of the 14th amendment in Federal civil 
rights laws of the use of race, gender, or national origin-
based preferences in such areas as employment decisions--that 
would be hiring, promotion, or layoffs--college admissions and 
scholarship awards, and the awarding of government contracts.
    Now, I think I should note that the Supreme Court has held 
that any race-based classifications at either the Federal or 
State level are to be examined under the strict scrutiny 
standard. Under this standard, the classification must be 
justified by a compelling government interest. The Court has 
mentioned that providing remedies to those who have directly 
suffered discrimination meets this test, but that an interest 
in curing widespread societal pressures or achieving diversity 
does not.
    Shall we start with you, Ms. Campbell?
    Ms. Campbell. The Adarand case, as you described it, is 
clearly controlling law. Any remedial statute would have to be 
very narrowly tailored to promote a compelling state interest, 
and any review of that by a court would apply a strict scrutiny 
test. I think that is a very, very tough standard.
    The Chairman. Mr. Garcia-Gregory.
    Mr. Garcia-Gregory. I agree with my colleague on the right. 
It would be a strict scrutiny standard and I would abide by the 
Adarand decision.
    The Chairman. OK.
    Ms. Martin. Mr. Chairman, the Supreme Court was very clear 
in the Adarand case that any race-based classifications should 
be subject to very strict scrutiny, and I would be bound by 
that and I would follow that.
    The Chairman. Ms. Swain.
    Judge Swain. I agree with my colleagues. The Supreme Court 
has spoken very directly to the standard for evaluating any 
race-based classification, and I would follow precedent in any 
decision that I would make.
    The Chairman. All right. Now, do any of you have any legal 
or moral beliefs which would inhibit or prevent you from 
imposing or upholding a death sentence in any criminal case 
that might come before you as a Federal judge? Do any of you 
have any----
    Ms. Campbell. No.
    Judge Swain. I don't, Mr. Chairman.
    Mr. Garcia-Gregory. No.
    Ms. Martin. No.
    The Chairman. All right. That is a tough one because we all 
have differing views on these types of things, but we have to 
apply the law.
    Do you believe that 10-, 15-, or even 20-year delays 
between conviction of a capital offender and execution is too 
long? What do you think?
    We will start with you, Mr. Garcia-Gregory.
    Mr. Garcia-Gregory. I would say yes, I think it is a little 
long. It is a long time, but in any event, you know, it is a 
matter for either Congress to remedy or the courts to act more 
swiftly on the petitions that are made.
    The Chairman. OK; Ms. Martin.
    Ms. Martin. Well, I know that Congress has taken steps to 
expedite those types of things so that they won't take 10 to 15 
years. And, of course, you are the policymaking body and every 
statute that you pass is presumed constitutional, and that 
would be the policy that would be enforced by the courts.
    The Chairman. Ms. Swain.
    Judge Swain. I believe that the courts should be as 
efficient as possible in considering death penalty appeals, as 
in all matters. And to the extent there are available avenues 
of appeal or administrative or statutory mechanisms that are 
within the purview of the legislative branches or the executive 
branches of Government, as a judge I would work within the law 
as established by the policymaking branches of Government.
    The Chairman. Ms. Campbell.
    Ms. Campbell. I am beginning to feel like I am a copy-cat 
here. I think it was the goal of Congress with the habeas 
corpus reform to speed up this process.
    The Chairman. Well, it was a Hatch-Dole bill, the 
Antiterrorism and Effective Death Penalty Act, that basically 
said we are tired of these long delays. And we want to treat 
people fairly, but there should not be frivolous appeals. We 
gave them basically one trip up through the State courts and 
one trip up through the Federal courts, and unless there is an 
absolute proof of innocence, the sentence has to be carried 
out.
    It takes about 3 or 4 years to go through that process, but 
we have been talking about 10-, 15-, 20-, 25-yeardelays, with 
frivolous appeal after frivolous appeal, and some of the lower court 
judges have made mockery out of the system.
    Now, let me ask this question. We will start with you, Ms. 
Campbell. The Supreme Court, through a process of so-called 
selective incorporation, has applied most, if not all, of the 
provisions of the Bill of Rights against the States. Thus, for 
instance, the First Amendment, which originally was intended to 
apply only to the Federal Government, has been applied to the 
States. The Second Amendment, however, which protects the 
rights of law-abiding citizens to own firearms in this country 
has not.
    Do you believe the Second Amendment ought to be applied to 
the States?
    Ms. Campbell. I don't have a vast knowledge of Second 
Amendment law, but I can assure you that if that question came 
to me in a case or a controversy, I would look to the Supreme 
Court for guidance.
    The Chairman. All right.
    Mr. Garcia-Gregory.
    Mr. Garcia-Gregory. I don't think I could improve on the 
answer that was given here by my colleague. I would certainly 
look--and I would go also into any constitutional sources of--
sources that could help, you know, in deciding the issue. But 
certainly I have to go into Supreme Court precedents, if there 
are any.
    The Chairman. All right.
    Ms. Martin.
    Ms. Martin. Again, Mr. Chairman, the role of a district 
court judge is limited to following the precedent established 
by the United States Supreme Court, and in my case the Eleventh 
Circuit of Appeals. As a Federal district judge, I would do so.
    The Chairman. OK.
    Ms. Swain.
    Judge Swain. I join my colleagues. If such an issue were 
presented to me as a district court judge, I would decide it 
within the bounds and the precedents set by applicable law in 
the courts above me.
    The Chairman. OK; let me go to you, Ms. Campbell, and just 
ask you a couple of questions. Under what circumstances do you 
believe it appropriate for a Federal court to declare a statute 
or an act enacted by Congress unconstitutional?
    Ms. Campbell. Well, one would hope that would be very rare 
and only if there were Supreme Court precedent which one would 
be required to follow.
    The Chairman. Are you aware of the Supreme Court's recent 
decision in United States v. Morrison and its 1995 decision 
United States v. Lopez? And if you are, please explain to the 
committee your understanding of these decisions and their 
holdings regarding congressional power.
    Some commentators have accused the Supreme Court of 
judicial activism because of their decisions in these cases. Do 
you agree or disagree?
    Ms. Campbell. I don't think I would fool you at all, Mr. 
Chairman, if I told you that I wasn't familiar with those 
cases. Of course, I am. It is my understanding in both Lopez 
and U.S. v. Morrison that the Supreme Court requires a truly 
economic activity before Congress can rely upon the Interstate 
Commerce Clause to pass a law in an area, if I haven't too 
grossly oversimplified which was what I thought a very lengthy 
decision by the Court, especially in Morrison. As a circuit 
court judge, I know you understand, if I am fortunate enough to 
be there, that I would have to follow the law handed down in 
those cases.
    The Chairman. There have been nine major cases now on 
federalism and those two are two very interesting cases on 
federalism that have been highly criticized by some. Every one 
of them has been a 5-4 decision, as you know. It will be 
interesting to see how that finally sifts out.
    Mr. Garcia-Gregory, let me ask you this question. The 
making of law is a very serious matter. To enact a statute or 
to amend the Constitution is very serious, or the text of a 
proposed statute or an amendment. They must receive a set 
number of formal approvals by the elected representatives of 
the people either in Congress or in the State legislatures. 
This formal approval process embodies the express will of the 
people through their elected representatives, and this elevates 
the particular words of the statute or constitutional provision 
to binding law.
    Now, do you agree that the further a judicial opinion 
varies from the text and the original intent of a statute or 
constitutional provision, the less legal legitimacy it has?
    Mr. Garcia-Gregory. If I have understood the question 
correctly, I would--you know, as a U.S. district court judge, I 
would be bound to give all presumptions to a congressional 
enactment as far as constitutionality is concerned, and to 
respect, you know, the plain language of the statute. If there 
is any ambiguity, you know, I would have to go into the 
legislative history. But there certainly is a presumption of 
constitutionality, you know, through the congressional process, 
and it would be my duty to try to save the statute through any 
narrow construction that could be feasible in order to avoid 
having to decide an unnecessary constitutional question.
    The Chairman. Ms. Martin, the Founding Fathers believed 
that the separation of powers in a government was critical to 
the protection of the liberty of the people. Thus, they 
separated the legislative, executive, andjudicial powers into 
three different branches of government, the legislative power being the 
power to balance moral, economic and political considerations, and to 
make law, and the judicial power being the power only to interpret the 
laws made by Congress and by the people.
    Now, in your view, is it the proper role of a Federal judge 
when interpreting a statute or the Constitution to accept the 
balance struck by the Congress or to rebalance the competing 
moral, economic, and political considerations?
    Ms. Martin. No. It is the role of the court to accept the 
balance established by Congress, and any statute that is 
considered by a court should be presumed constitutional.
    The Chairman. Are you aware of the case recently argued 
before the Supreme Court entitled Dickerson v. United States?
    Ms. Martin. I am, Mr. Chairman.
    The Chairman. You are aware of Section 3501, 18 U.S.C. 
Section 3501. That case asked whether a defendant's voluntary 
confession could be admitted into evidence in the Government's 
case-in-chief under 18 U.S.C. Section 3501 even if the 
confession was not preceded by the warnings required by the 
Miranda v. Arizona decision.
    Now, please explain to the committee your understanding of 
Miranda, Section 3501, and the proper role of the Congress and 
the courts in establishing rules of evidence and procedure for 
the Federal courts.
    Ms. Martin. Well, it is the role of Congress to establish 
the rules of evidence and the rules of law that are supposed to 
be interpreted by the courts. The issue in Dickerson related to 
the formality of the Miranda warnings. I think 3501 looked more 
to the voluntariness of the statement and, of course, that is 
an issue that is involved in evidentiary hearings in courts all 
over this country everyday. But whatever the ruling of the 
United States Supreme Court, of course, if I were to be 
confirmed as a United States district court judge, it would be 
my job to follow that ruling.
    The Chairman. Thank you very much.
    Now, Judge Swain, let me ask you this question. In a speech 
you gave at the U.S. Attorney's Office, you stated that the

    ``Supreme Court's recent States' rights decisions, 
particularly in the sovereign immunity area, change radically 
settled assumptions regarding private civil litigation as a 
means of enforcing federally-recognized rights, including in 
the discrimination area.''

    Now, please explain to the committee your understanding of 
the Court's recent sovereign immunity decisions and whether you 
view them as a positive development for our legal system.
    Judge Swain. As you noted, Mr. Chairman, that remark was in 
the context of the recent line of States' rights and sovereign 
immunity cases that began with the seminal Tribe case and have 
continued through and including the case whose title escapes me 
at the moment dealing with the enforcement of the Age 
Discrimination in Employment Act by private individuals as 
against the States.
    I understand and I accept as binding precedent and the law 
the Court's construction of the powers of Congress with respect 
to the waiver of sovereign immunity of the States and with 
respect to, in particular, in the context of private civil 
litigation.
    The ADEA, as well as other statutes dealing with civil 
rights, include private civil action provisions, and under the 
ADEA decision of the Supreme Court, it is clear that the 
current Court and the current law in the United States is such 
that private actions may not be brought under certain 
circumstances in which they had been authorized by statute.
    The Chairman. Well, I think we have asked enough questions 
here. There are a lot of other questions, naturally, we could 
ask, but I am very proud of all four of you having this 
opportunity to be nominated for these very important positions. 
They are lifetime positions and they are among the most 
important positions in the world.
    At least from my standpoint, the Federal judiciary is the 
one branch of Government we have counted on to save the 
Constitution through all these years, and we are going to 
continue to count on you folks as you serve on your respective 
benches to do the very best you can to keep our country free 
and to abide by the rule of law, which is very poorly 
understood by many other nations, but is very well understood 
here. You have all given excellent answers to these questions.
    Let me just say this, that Senators Leahy and Moynihan have 
statements for the record. Senator Moynihan's statement is in 
support of you, Judge Swain.
    [The prepared statement of Senator Leahy follows:]

 Prepared Statement of Senator Patrick Leahy, a U.S. Senator From the 
                            State of Vermont

    I am glad to see the Committee holding a hearing for judicial 
nominees today. The Committee has been woefully slow in acting on 
nominees to federal courts across the country and, in particular, on 
nominees to the Courts of Appeals. The Committee has reported only 16 
nominees all year and held what amounts to three previous hearings all 
year on judicial nominations. There is growing frustration around the 
country with this partisan stall.
    I am very glad to see that Bonnie Campbell, nominated by the 
President to a vacancy on the Eighth Circuit Court of Appeals, is 
included in today's hearing. She currently serves as the distinguished 
head of the Department of Justice's Violence Against Women Office and 
has previously served as the Attorney General for the State of Iowa. 
Ms. Campbell enjoys the support of both of her home state Senators. I 
have known and worked with Bonnie for a number of years and believe 
that she will bring an important perspective to the federal bench. She 
has worked on victims issues and domestic violence issues for many 
years. She has a distinguished background in public service and law 
enforcement at the state and federal levels.
    The Committee is also proceeding on three District Court nominees: 
Jay Garcia-Gregory, nominated to the District Court of Puerto Rico; 
Beverly Martin, nominated to the District Court in the Northern 
District of Georgia; and Judge Laura Taylor Swain, nominated to the 
District Court of the Southern District of New York. I am sorry more 
nominees were not included today. This is another abbreviated list of 
nominees and not the full complement of five to seven judicial nominees 
that we normally consider. In light of the vacancies that are being 
perpetuated and the number of highly qualified nominees pending before 
this Committee, that is most regrettable.
    I have spoken over the last several years on the need to move 
forward on the nomination to the District Court in Puerto Rico. Over 
the last several weeks I have made the point that crime and drug 
trafficking are serious problems in the Carribean and that we should be 
making sure that the federal court in Puerto Rico has all the resources 
it needs to do its job.
    Also included at today's hearing is Daniel Marcus, who has been 
nominated by the President to be the Associate Attorney General. I am 
glad to see the Committee moving forward on the nomination of this fine 
man to the third highest position at the Department of Justice. Mr. 
Marcus is a dedicated public servant who is well known to many of us. I 
hope that his presence here today signals that the majority will now 
proceed without further delay to confirm him to this important 
position.
    Unfortunately, we have been unable to obtain action on the 
nominations of David Ogden to be Assistant Attorney General for the 
Civil Division, Don Vereen to be the Deputy Director of the Office of 
National Drug Control Policy, Julio Mercado to be Deputy Administrator 
of the Drug Enforcement Agency or, of course, Bill Lann Lee to be the 
Assistant Attorney General for the Civil Rights Division. They continue 
to languish without action before this Committee.
    I am very disturbed that the nomination of Randy Moss, to be the 
Assistant Attorney General in charge of the Office of Legal Counsel, a 
nomination that was reported unanimously by the Committee, was not 
confirmed by the Senate yesterday due to last minute, anonymous 
Republican objection.
    One of our most important constitutional responsibilities as United 
States Senators is to provide advice and consent on the scores of 
judicial nominations sent to us to fill the vacancies on the federal 
courts around the country. Yesterday we made some progress as we 
confirmed 16 new judges. For that I thank the Democratic leader and the 
majority leader, my counterpart on this Committee, Senator Hatch, and 
all those who worked with us to achieve Senate action on those judicial 
nominees.
    But before any Senator thinks that our work is done for the year, 
let us take stock: We are only one-third of the way the number of 
judges nominated by a Republican President and confirmed by a 
Democratic majority in 1992, and only half way to the levels of 
confirmations achieved in 1984 and 1988. We have finally passed the 
level of 17 confirmations achieved in 1996, in the year before I became 
the Ranking Democrat on the Judiciary Committee. That low water mark is 
no measure of success, however.
    Today we face more judicial vacancies than when the Senate 
adjourned in 1994. That means there are more vacancies across the 
country than when the Republic-an majority took controlling 
responsibility for the Senate in January 1995. Over the last six years 
we have gained no ground in our efforts to fill longstanding judicial 
vacancies that are plaguing the federal courts.
    In addition, recall that yesterday was the first action that the 
Senate has taken on judicial nominees since March 9, when the Senate 
ended 4-years of delay and finally voted to confirm Judge Richard Paez 
to the Ninth Circuit. For more than two months, for more than 10 weeks, 
the Senate has not acted to confirm a single judge, not one. That stall 
accounted for the backlog in judicial nominations that results in there 
being 16 judicial nominations on the Senate calendar yesterday. On the 
other hand, since March 9, seven additional vacancies have arisen and 
the Senate has received 17 additional nominations.
    There remain 36 judicial nominations pending in the Judiciary 
Committee, plus new nominations that the President is sending us every 
week. I have challenged the Senate to regain the pace it met in 1998 
when the Committee held 13 hearing and the Senate confirmed 65 judges. 
That would still be one less than the number of judges confirmed by a 
Democratic Senate majority inthe last year of the Bush Administration 
in 1992. Indeed, in the last two years of the Bush Administration, a 
Democratic Senate majority confirmed 124 judges. It would take an 
additional 67 confirmations this year for this Senate to equal that 
total.
    Over the last five years the Republican-controlled Senate confirmed 
the following: 58 federal judges in the 1995 session; 17 in 1996; 36 in 
1997; 65 in 1998; and 34 in 1999. By contrast, in one year, 1994, with 
a Democratic majority in the Senate, we confirmed 101 judges. With 
commitment and hard work many things are achievable.
    Of the confirmations achieved this year, seven were nominations 
that were reported last year and should have been confirmed last year. 
That would have made last year's total slightly more respectable. 
Instead, they were held over and inflate this year's numbers. In 
addition, Tim Dyk, one of the nominees finally considered yesterday, 
was nominated in 1998 and was held over two years. Mr. Dyk was 
confirmed overwhelmingly yesterday by a vote of 74-35. I do not 
understand why his nomination was held up so long before the Senate.
    Moreover, the Republican Congress has refused to consider the 
authorization of the additional judges needed by the federal judiciary 
to deal with their ever increasing workload. In 1984, and again in 
1990, Congress responded to requests by the Chief Justice and the 
Judiciary Conference for needed judicial resources. Indeed, in 1990, a 
Democratic majority in the Congress created scores of needed new 
judgeships during a Republican Administration.
    Three years ago the Judicial Conference of the United States 
requested that an additional 53 judgeships be authorized around the 
country. Last year the Judicial Conference renewed its request but 
increased it to 72 judgeships needing to be authorized around the 
country. Instead, the only federal judgeships created since 1990 were 
the nine District Court judgeships authorized in the omnibus 
appropriations bill at the end of last year.
    If Congress had timely considered and passed the Federal Judgeship 
Act of 1999, S.1145, as it should have, the federal judiciary would 
have nearly 130 vacancies today. That is the more accurate measure of 
the needs of the federal judiciary that have been ignored by the 
Congress over the past several years and places the vacancy rate for 
the federal judiciary at 14 percent (128 out of 915. As it is, the 
vacancy rate is almost 10 percent (65 out of 852) and has remained too 
high throughout the five years that the Republican majority has 
controlled the Senate.
    Especially troubling is the vacancy rate on the courts of appeals, 
which continues at over 11 percent (20 out of 179) without the creation 
of any of the additional judgeships that those courts need to handle 
their increased workloads.
    Most troubling is the circuit emergency that had to be declared 
more than seven months ago by the Chief Judge of the Court of Appeals 
for the Fifth Circuit. I recall when the Second Circuit had such an 
emergency two years ago. Along with the other Senators representing 
States from the Circuit, I worked hard to fill the five vacancies then 
plaguing my circuit. The situation in theFifth Circuit is not one that 
we should tolerate; it is a situation that I wished we had confronted 
by expediting consideration of the nominations of Alston Johnson and 
Enrique Moreno last year. I still hope that the Senate will consider 
both of this year.
    I deeply regret that the Senate adjourned last November and left 
the Fifth Circuit to deal with the crisis in the federal administration 
of justice in Texas, Louisiana and Mississippi without the resources 
that it desperately needs. I look forward to our resolving this 
difficult situation. I will work with the Majority Leader and the 
Democratic Leader to resolve that emergency at the earliest possible 
time.
    With 20 vacancies on the Federal appellate courts across the 
country and nearly half of the total judicial emergency vacancies in 
the Federal courts system in our appellate courts, our courts of 
appeals are being denied the resources that they need, and their 
ability to administer justice for the American people is being hurt. 
There continue to be multiple vacancies on the Ninth Circuit. Three 
vacancies is too many perpetuating these four judicial emergency 
vacancies, as the Senate has in this one circuit, is irresponsible. We 
should act on these nominations promptly and provide the Ninth Circuit 
with the judicial resources it needs and to which it is entitled.
    I am likewise concerned that the Fourth, Sixth and District of 
Columbia Circuits are suffering from multiple vacancies.
    I continue to urge the Senate to meet our responsibilities to all 
nominees, including women and minorities, and look forward to action on 
the nominations of Judge James Wynn, Jr. to the Fourth Circuit, Enrique 
Moreno to the Fifth Circuit, Kathleen McCree Lewis to the Sixth Circuit 
and Judge Johnnie Rawlinson to the Ninth Circuit. Working together the 
Senate can join with the President to confirm well-qualified, diverse 
and fair-minded judges to fulfill the needs of the federal courts 
around the country.
    Having begun so slowly in the first five months of this year, we 
have much more to do before the Senate takes its final action on 
judicial nominees this year. We should be considering 20 to 40 more 
judges this year. Having begun so slowly, we cannot afford to follow 
the `Thurmond rule'' and stop acting on these nominees at the end of 
the summer in anticipation of the presidential election. We must use 
all the time until adjournment to remedy the vacancies that have been 
perpetuated on the courts to the detriment of the American people and 
the administration of justice. I urge all Senators to make the federal 
administration of justice a top priority for the Senate for the rest of 
this year.
    I look forward to prompt and favorable action by the Committee on 
the nominees included in today's hearing and look forward to the next 
hearing, which I hope will be scheduled for the first week after the 
Memorial Day Recess.

    [The prepared statement of Senator Moynihan follows:]

Prepared Statement of Daniel Patrick Moynihan, a U.S. Senator From the 
                           State of New York

    Mr. Chairman, I am very pleased that the committee is holding a 
hearing on Laura Taylor Swain, who has been nominated to be United 
States Judge for the Southern District of New York. I hope that the 
committee will favorably act on her nomination and the Senate, in turn, 
will confirm her.
    Laura Taylor Swain is a graduate of Harvard-Radcliffe College and 
Harvard Law School. Following graduation she clerked for Judge 
Constance Baker Motley, then Chief Judge of the United States District 
Court for the Southern District of New York. After completing her 
clerkship she joined the law firm of Debevoise & Plimpton, specializing 
in employee benefits, ERISA, executive compensation, and employment 
law, including Federal and State anti-discrimination statutes. Since 
November of 1996 she has served as a United States Bankruptcy Judge for 
the Eastern District of New York.
    I have every confidence that Laura Taylor Swain will make an 
excellent addition to the Court of the Southern District of New York. I 
commend her to you without reservation.

    The Chairman. The record will remain open until the close 
of business on Friday for additional written questions from 
Senators. When we get these questions to you, I hope you will 
answer them as quickly as possible so that we will have those 
in the record.
    I don't see any other Senators here. So, with that, we will 
recess until further notice, and we wish you all the best.
    Thank you.
    Ms. Martin. Thank you, Mr. Chairman.
    Mr. Garcia-Gregory. Thank you, Mr. Chairman.
    Ms. Campbell. Thank you.
    Judge Swain. Thank you so much, Mr. Chairman
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                         Questions and Answers

                              ----------                              


        Responses of Daniel Marcus to Questions of Senator Hatch

    Question 1. As the Wall Street Journal reported on Monday, the 
Community Oriented Policing Services Office--the so-called COPS 
program--has vastly overstated the number of policemen put on the 
streets, and has ignored some very serious problems resulting from poor 
administration and use of COPS grants. Indeed, the Department of 
Justice's own Inspector General determined in its most recent audit 
report that only one-half of the widely proclaimed ``100,000'' new 
officers have actually been deployed. Moreover, even that figure is 
suspect because the COPS office does not maintain an accurate tally of 
police officers actually deployed on the streets; it bolsters its 
figures by including grants that have not even been accepted let alone 
used to hire officers, and by counting equipment such as new radios as 
equivalent to a certain number of officers. This program, which costs 
the American taxpayers $8.8 billion, reportedly has been used for all 
sorts of inappropriate things including the purchase of liquor for 
officers. I'd like to know how you are planning to reform the COPS 
programs to make sure that the American people are getting their 
money's worth from this program, and to stop the COPS office from 
making highly misleading public relations statements concerning the 
results of the COPS program?
    Answer 1. We have made substantial progress in managing the COPS 
program more effectively during this past year, and I assure you that 
this important program will continue to receive my close attention and 
supervision. I believe that COPS is a vital program that is promoting 
important goals by assisting local police departments to fight crime by 
getting more police officers on the street and involved in community 
policing.
    Let me address some of the specific points raised by your question. 
First, as to the numbers: The Department and the COPS Office have tried 
to be careful and accurate in our public statements about our progress 
toward achieving the goal of getting 100,000 additional officers on the 
street. Since its inception, the program has made grants to fund more 
than 100,000 officers--through direct hiring grants and through MORE 
(Making Officer Redeployment Effective) grants for purchasing 
technology or hiring civilians to free up existing police officers to 
be redeployed on the street. There is obviously a time lag (averaging 
18 months) caused by the need to hire and train officers before they 
can be deployed. But substantial progress is being made: more than 
60,000 of the 100,000 funded officers are already on the beat.
    The Inspector General's report to which you refer has been taken to 
heart by COPS management. The COPS Office and the Office of the 
Inspector General have resolved virtually all disagreements as to 
specific audit findings, and COPS continues to work with OIG to 
implement the recommendations contained in the report. I am confident 
that grant management and monitoring in the COPS program have improved 
substantially as a result of the concerted effort by the Director of 
the COPS Office and his management team to respond to the problems 
revealed by the IG report.
    Management of a major grant program like COPS requires constant 
attention to assure, as you put it, that ``the American people are 
getting their money's worth'' from the program. I assure you that 
Director Frazier and I will keep up our efforts to build on the 
progress already made in improving program management.

    Question 2. I am concerned about the politicization of the 
Department and the perception that it has brought the tobacco suit for 
political reasons. I am concerned that if this is true, no industry 
would be immune from efforts by the federal government to use 
litigation as a tool to regulate unpopular industries. This would 
bypass Congress' constitutional role to set policy through the 
legislative process. I believe that the federal tobacco suit may be the 
start of a pernicious trend to sue entire industries--which was never 
done until very recently--in order to coerce settlements or force 
judgments that ipso facto regulate entire sectors of our economy.
     Don't get me wrong, I am against tobacco use and believe that the 
tobacco companies have been bad actors. Senator Feinstein and myself 
introduced legislation that regulated tobacco and would have cost the 
companies over $400 billion. But such regulation is the job of Congress 
under our Constitution and in a democracy. And it doesn't matter if 
Congress is slow to Act. That is the will of the representatives of the 
American people. The danger is that such litigation is undemocratic and 
violates separation of powers. This is the view of many Senators and 
former Clinton Labor Secretary Robert Reich, who vehemently opposes 
such government lawsuits and said so in the Wall Street Journal. Would 
you comment? Does the Department have any other block-buster litigation 
planned?
    Answer 2. I share your opinion that the Justice Department should 
be wary of using litigation as a tool to regulate unpopular industries. 
Congress, not the courts should make the policy decisions about how to 
regulate our economy. The tobacco lawsuit, I can assure you, is based 
on the unusual history and conduct of that industry and is not the 
forerunner of similar litigation against other industries.
    When I arrived at the Department in April 1999, consideration of a 
possible lawsuit against the cigarette companies to recover 
expenditures by Medicare and other federal programs on cigarette-
related illnesses was already underway. That process continued right up 
to the final decision by the Attorney General to approve the lawsuits 
the day before it was filed last September. It was a very careful 
process in which we focused not only on the merits of the potential 
lawsuit but also on the policy question of whether such a suit was 
appropriate. We concluded that the lawsuit has substantial merit, and 
that filing it would not establish a harmful precedent for other 
industries with products whose safety or environmental impact has been 
questioned. We remain convinced that there are special facts about 
cigarettes and the tobacco companies that make this suit against the 
tobacco industry appropriate: the industry's history of misleading the 
public about the safety of cigarettes and the addictiveness of 
nicotine; the suppression of research results; the manipulation of 
nicotine levels in cigarettes; and the targetting of young people as 
consumers. We are not aware of any other industry with a similar 
history and pattern of conduct.

    Question 3. I have to say that I am not happy about not being 
informed about the tobacco lawsuit. Indeed, I learned about the filing 
of the lawsuit in the Washington Post. As the oversight Committee for 
the Department, I believe the Committee ought to be better informed 
about the Department's activities. What steps will you take to improve 
consultations?
    Answer 3. As you know, the Department very much regrets that leaked 
information resulted in the publication of a newspaper report about our 
plans to file the tobacco lawsuit before you were informed that the 
suit would be filed. Because it is important to maintain the 
independence of the Justice Department's decisional process in 
determining whether to bring lawsuits (and some areas--like criminal 
and enforcement matters--are particularly sensitive), there are limits 
on the extent to which we should disclose our litigation plans to the 
Congress before we file suit. But we have learned from our experience 
with the tobacco case, and I can assure you that where you or the 
Committee express interest in a particular prospective lawsuit, we will 
do everything we can to notify you of our decision to sue 
contemporaneously with or before public announcement of the suit or 
disclosure to the press. We also will be happy to provide briefings on 
such litigation after it is filed.

    Question 4. The Department of Housing and Urban Development has no 
independent litigating authority and yet it has interjected itself in 
the suits against the firearms industry, particularly in the settlement 
talks. My understanding is that DOJ has opined that no federal cause of 
action exists against he firearms manufacturers. Think of the 
implications if the United States intervenes in lawsuits--not as a 
party plaintiff or defendant to legitimately uphold the rule of law--
but as political club to force settlements that bypass the policy-
making role of Congress. In light of this do you not think improper 
that HUD has taken a role in support of one side of the litigation?
    Answer 4. While the Justice Department is not contemplating or 
considering any federal lawsuit against the firearms industry, it is 
true that HUD assisted public housing authorities funded by HUD (which 
are not themselves federal entities) in investigating a possible 
lawsuit by those housing authorities against firearms manufacturers. 
The Department of Justice did not assist HUD in that effort.
    No such lawsuit has in fact been brought, nor has HUD or any other 
federal agency intervened in the lawsuits against the manufacturers 
brought by a number of cities and states. HUD and Treasury did, 
however, negotiate an agreement with one leading firearms manufacturer 
to make changes in the manufacture and distribution of its products 
that were consistent with Administration policy and proposals on gun 
safety.
    I agree with you that the United States must be very cautious in 
using litigation or the threat of litigation as a means of reforming an 
industry, and that Congress, not the courts, is in the best position to 
make these kinds of far-reaching decisions. The Department of Justice 
will continue to maintain a skeptical view of industry-reform 
litigation, particularly where such litigation is not supported by 
specific statutory or regulatory authority.

    Question 5. I've worked for many years to protect he religious 
freedoms of Americans. I believe that such freedoms are among the very 
most fundamental and important rights protected by the Constitution. 
The Clinton administration supported the Religious Freedom Restoration 
Act which passed a few years ago and has been struck down by the 
Supreme Court. I'm now working on the Religious Liberty Protect Act. 
Will you make a commitment not only to supporting such legislation but 
also to working with me to pass legislation on this topic this year?
    Answer 5. As you note in your question, the Administration has 
shared your concerns about ensuring that federal, state and local 
governments protect and preserve the precious religious freedoms of 
Americans. We supported the Religious Freedom Restoration Act, and we 
shared your disappointment in the Supreme Court's decision in City of 
Boerne. The Justice Department believes it is possible to craft 
targeted legislation that will pass constitutional muster. We will be 
happy to work with you and your staff to craft and enact legislation on 
this important subject.

    Question 6. The Judiciary Committee along with other congressional 
committees, have experienced a great deal of frustration in conducting 
oversight of the Justice Department. Requests for documents and other 
information are generally met with conciliatory statements and 
indications of cooporation--but actually getting documents from the 
Justice Department is like pulling teeth. The Department has 
stonewalled us citing ``Department policy,'' ``deliberative process'' 
and ``sensitive matters''--all the while denying the Congress--and the 
American people--the necessary information to evaluate the performance 
of the Justice Department. Despite the overwhelming support in the case 
law upholding the Congress' authority to get information related to its 
oversight function--including information relevant to internal 
deliberations by prosecutors and open investigations--the Justice has 
refused to produce materials simply because of Departmental policy.
    For example, the Department of Justice has refused to produce 
certain materials related to the Loral Hughes matter, solely on the 
basis that it would go against Department policy with regards to open 
cases. This is despite the fact that courts--from investigations since 
Teapot Dome to Iran Contra--have rules that Congress is entitled to 
information on open cases.
    When a subpoena is issued to the Justice Department do you believe 
that it is proper to refuse to produce documents on the basis of 
anything other than a recognized legal privilege such as executive 
privilege or attorney client privilege? What will you do to ensure that 
the Department fully complies with congressional subpoenas?
    Answer 6. I agree that, absent a legal impediments such as Rule 
6(e) (grant jury information), the Department should produce documents 
sought by a Congressional committee unless there is a basis for 
asserting executive privilege. I also would emphasize our long-standing 
policy of making a request to the President to assert executive 
privilege only in the most compelling circumstances and after good 
faith negotiations to accommodate Congress's requests have failed. That 
policy was set forth in a 1982 memorandum by President Reagan:

          The policy of this Administration is to comply with 
        Congressional requests for information to the fullest extent 
        consistent with the constitutional and statutory obligations of 
        the Executive Branch. While this Administration, like its 
        predecessors, has an obligation to protect the confidentiality 
        of some communications, executive privilege will be asserted 
        only in the most compelling circumstances, and only after 
        careful review demonstrates that assertion of the privilege is 
        necessary. Historically, good faith negotiations between 
        Congress and the Executive Branch have minimized the need for 
        invoking executive privilege, and this tradition of 
        accommodations should continue as the primary means of 
        resolving conflicts between the Branches.

    Thus, the Department believes that we should continue to engage 
with the Committee in a good faith process of accommodation of the 
Committee's oversight needs and the Department's institutional 
concerns. Of course, some disagreements in the process of accommodation 
are perhaps inevitable. You have my commitment, however, that when I 
and those who report to me are involved in this process, I will be 
candid and forthright in dealing with Members and staff, and I will 
work hard to make sure that your investigative and oversight needs are 
met and that any disagreements are resolved as quickly as possible.
                                 ______
                                 

     Responses of Daniel Marcus to Questions From Senator Sessions

    Question 1A. In 1999, Bill Lann Lee, Acting Assistant Attorney 
General in charge of the Civil Rights Division under your authority, 
began an investigation of a high school in Asheville, North Carolina. 
The investigation related to the school's use of an Indian for a high 
school mascot.
    Mr. Marcus, do you think that it is appropriate legal policy for 
the Justice Department, under your subordinate Bill Lann Lee, to expend 
resources to force school districts to change their mascots?
    Answer 1A. The investigation to which you refer was begun and 
completed before I joined the Department. To respond to your question, 
I have informed myself as to the investigation, and I am satisfied that 
it was handled appropriately by the Civil Rights Division.
    The Department received a written complaint from parents of 
American Indian children who attended the Buncombe County (N.C.) Public 
Schools, alleging that their children were being denied equal 
educational opportunities on account of the children's race or national 
origin, American Indian. Specifically, the parents alleged that their 
children were being subjected to a racially hostile environment at the 
Clyde A. Erwin High School, which used the terms ``warriors'' and 
``squaws'' to describe male and female students, respectively, and 
which used American Indian religious symbols in allegedly offensive 
and/or disrespectful ways. Because these allegations, if true, might 
have implicated our enforcement responsibilities under Title IV of the 
Civil Rights Act of 1964, we opened a preliminary inquiry to determine 
whether action by the Department was warranted. Our inquiry did not 
focus solely on the school's choice of mascot but more generally on the 
allegations that Native American students were subjected to a racially 
hostile environment. Such claims fall within the Department's 
jurisdiction, and it is appropriate for the Division to make inquiries 
about credible allegations of a racially hostile school environment. We 
have no general policy about school mascots.

    Question 1B. How many times in the history of the Justice 
Department has the Civil Rights Division investigated high-school-
mascot complaints?
    Answer 1B. Title IV of the Civil Rights Act is triggered by a 
complaint from a student or parent. This was the first time that the 
Department received a complaint alleging a racially hostile environment 
based, in part, on the existence of allegedly offensive school mascots.

    Question 1C. What was the date of the letter sent by the Justice 
Department to the school district that tentatively resolved the issue?
    Answer 1C. By letter dated March 4, 1999, the Civil Rights Division 
informed the school district that we were closing our preliminary 
inquiry into the allegations of a racially hostile environment and 
denial of educational opportunities after reaching agreement on 
positive changes aimed at improving the school environment for all 
students. Those changes did not include a change in the school mascot.

    Question 1D. What was the date that Bill Lann Lee, your 
subordinate, was renominated to be Assistant Attorney General for Civil 
Rights?
    Answer 1D. The President renominated Bill Lann Lee on March 5, 
1999.
                               __________

   Responses of Bonnie J. Campbell to Questions From Senator Sessions

    Question 1A. Ms. Campbell, as an 8th Circuit Judge you would have 
to review the decisions and records of trial courts. Please list the 
number of cases that you have personally tried to verdict before a jury 
before state courts?
    Answer 1A. I have not tried any case to a verdict before a jury in 
state court, however, while I was in private practice, I appeared in 
trial proceedings in state court frequently. I handled a broad range of 
legal concerns, but my work focused primarily on family and employment 
discrimination law. In family law cases, I represented both husbands 
and wives and dealt with a full range of dissolution issues, including 
property division, child custody, alimony, and child support. I also 
represented juveniles in delinquency cases, served as guardian ad litem 
for minor children, represented clients in criminal cases, and managed 
a number of complex personal injury cases.
    While I no longer have access to may files from private practice, I 
estimate that I tried fifteen to twenty cases in state court, mostly 
family law cases which are equity cases tried to the court rather than 
a jury. Nonetheless, I wrote all the pleadings and briefs, appeared in 
court regularly on pre-trial motions, handled all discovery matters, 
including writing and responding to interrogatories, conducted 
depositions, retained expert witnesses, examined witnesses at trail, 
handled the introduction of exhibits, presented opening and closing 
arguments, and dealt with all post-trial matters.
    In employment law cases, the majority of my cases and work was for 
defendants, although I did some plaintiffs' work. My clients included 
business entities facing issues ranging from hiring and firing issues 
to wage disputes to employment discrimination and sexual harassment. In 
this context, I became quite familiar with administrative law and 
procedures because I frequently represented clients before various 
administrative boards and agencies. While I did a fair amount of pre-
trail writing of pleadings and I did appear in court as necessary, in 
these employment cases my primary focus was on providing legal advice 
and training to employer-clients in the hope of preventing the need to 
go to trail.

    Question 1B. Before federal courts?
    Answer 1B. I have not tried any case to a verdict before a federal 
court, however, in private practice, I represented a number of clients 
in matters before the federal courts. In one instance, my firm 
represented a large corporate entity, Kmart, in a contract dispute 
involving the potential for substantial monetary damages, and I was 
responsible for much of the pre-trail discovery and trail preparation 
for this case.
    The case was tried by my partners before a jury in the federal 
district court and ultimately was appealed to the Eighth Circuit, which 
ruled in favor of Kmart. In another case involving an antitrust matter, 
I prepared a number of pleadings and briefs' and represented my client 
in an evidentiary hearing. Additionally, one of the firm's partners was 
a Trustee in Bankruptcy Court, and I frequently prepared pleadings and 
other documents for him and occasionally appeared in Bankruptcy Court 
on matters with which I was assisting him.
    As Iowa Attorney General from 1991 to 1995, I worked closely with 
staff attorneys in the development of significant cases before the 
federal courts. While I did not personally try the cases, in many 
instances, I directed the litigation strategy and made key decisions 
with respect to whether and how the State would proceed with its case. 
One example of an extraordinary complex legal matter is the Iowa Trust 
litigation which encompassed several cases in state and federal courts. 
The legal proceedings involved the fraudulent conversion of $107 
million in public funds from Iowa cities that had banded together to 
invest municipal funds in an entity that became known as Iowa Trust. 
The end result of the litigation was 100% recovery of the lost funds, 
as well as recovery of the costs of litigation for Iowa Trust 
participants. Aspects of the case were tried in state court in Polk 
County, Iowa; the Iowa Supreme Court; the federal district court in the 
Northern District of Iowa; the federal district court in Colorado; the 
Court of Appeals for the Tenth Circuit; and several California state 
and federal courts. I personally participated in setting out the 
initial litigation strategy and reviewing that strategy on a regular 
basis and frequently consulted with the various attorneys in the office 
who were handling the many different aspects of the case.

    Question 2A. Ms. Campbell, as a federal appellate judge, you would 
have to sit in cases that are orally argued before the bench and engage 
in questioning with lawyers. You would also have to evaluate the 
strength of these lawyers' arguments. Please list the number of cases 
for which you have personally led oral argument in state appellate 
courts.
    Answer 2A. I have not personally had any oral arguments in state 
appellate courts, however, I believe my experience as Iowa Attorney 
General has given me insight into the role of an appellate judge. In 
the Attorney General's office, staff attorneys consulted frequently 
with me about cases before the Iowa Court of Appeals and the Iowa 
Supreme Court, as well as the federal circuit courts. Often, attorneys 
involved with cases--especially high profile or novel cases--disagree 
with each other about legal strategy, and they presented their 
positions to me for a final determination in the matter. My experience 
in this context was somewhat similar to that of an appellate court 
judge in that I was frequently placed in the position of having to 
evaluate cases, consider the strength of arguments, and the wisdom 
ofrecommended legal strategies. In the final analysis, I made the 
decision about which arguments and strategies were most consistent with 
the best interests of the State and which the State would, therefore, 
pursue. While I did not personally argue these cases and certainly was 
not directly involved with every case in my office, I was intimately 
involved with the development of many of the most significant cases my 
office had before the courts.
    Since staying abreast of court decisions--especially appellate 
court decisions that affected the rights and interests of Iowans and 
the State of Iowa--was a key part of my responsibilities as the State's 
chief legal officer, I worked very hard to follow the decisions of the 
Iowa and federal appellate courts. Moreover, I was often asked to 
comment publicly on judicial decisions, so I had to be familiar with 
the cases being decided by the Iowa and federal appellate courts as 
well as those pending before the courts.
    In my current position as Director of the Violence Against Women 
Office at the Department of Justice, I have worked closely with federal 
prosecutors in developing their arguments and strategies in various 
prosecutions under the Violence Against Women Act before both federal 
district courts and on appeal--before federal circuit courts. I have 
also had the opportunity on several occasions to work closely with the 
Solicitor General's Office in reviewing and analyzing cases for 
possible appeal to federal circuit courts or the Supreme Court. Also, I 
have conducted many training seminars for federal prosecutors on their 
responsibilities under the Violence Against Women Act, including how 
they can best develop their cases for effective prosecutions.

    Question 2B. In federal appellate courts?
    Answer 2B. I have not personally had any oral arguments in federal 
appellate courts, however, during my years in private practice, I 
worked on several cases before the Eighth Court of Appeals for the 
Eighth Circuit but did not argue the cases.
    In addition, State Attorneys General offices are the largest 
practitioners before the circuit courts of appeals. Consequently, I 
regularly worked closely with staff attorneys to develop the legal 
position of the State in cases before the various appellate courts, as 
I have indicated in my previous response. While I cannot say how many 
cases I was directly involved with during my tenure as Iowa Attorney 
General, I can say that my office had many cases of great importance to 
the citizens of Iowa before various federal circuit courts, usually the 
Eighth Circuit, and that the more significant the impact of a court's 
decision would be for our citizens, the more likely I was directly 
involved with the decision-making relative to the case.
    In my current position as Director of the Violence Against Women 
Office at the Department of Justice, I have had numerous opportunities 
to work closely with federal prosecutors in developing their arguments 
and strategies in various prosecutions under the Violence Against Women 
Act before both federal district courts and on appeal before federal 
circuit courts. On several occasions, I have worked closely with the 
Solicitor General's Office in reviewing and analyzing cases for 
possible appeal to federal circuit courts or the Supreme Court. I have 
conducted many training seminars for federal prosecutors on their 
responsibilities under the Violence Against Women Act, including how 
they can best develop their cases for effective prosecutions.
    I believe that my years working in the legislative branch, my 
experience in private practice, my tenure as Iowa Attorney General, and 
my service as Director of the Violence Against Women Office have given 
me a strong foundation in the law and knowledge of the work of the 
federal courts, a well as a special understanding of and appreciation 
for the separation of powers among the branches of government.

    Question 3A. In your campaign for governor of Iowa in 1994, you 
opposed the death penalty. You opposed the death penalty as the 
Attorney General of Iowa. You argued that it was more expensive to 
execute a convicted murderer than it was to keep them in prison for 
life. What is your current position on the death penalty in general? 
With respect to a judge's duty to interpret the law?
    Answer 3A. The Supreme Court has held unambiguously that the death 
penalty is constitutional. It is the absolute duty of a judge to follow 
Supreme Court precedent, and I can assure you that, if I am confirmed, 
I will always do so.

    Question 3B. When a federal or state legislature rules that the 
death penalty is appropriate for premeditated and aggravated murder, is 
it the duty of the Executive Branch to carry out that legislative 
policy choice even though it is more expensive? Is it the legislature 
who should strike the balance between effective punishment and 
financial cost? Is it a judge's duty to enforce the policy choice of 
the legislature?
    Answer 3B. It is the duty of the Executive Branch to carry out 
legislative policy choices, irrespective of cost, and I always did so 
as Iowa Attorney General. It is the legislature which should strike the 
balance between effective punishment and financial cost. It is a 
judge's duty to enforce the policy choice of the legislature.

    Question 4A. As a candidate for Governor of Iowa in 1994, you 
indicated that religious groups, which you termed the ``radical 
right,'' were out to destroy . . . education.'' You are further quoted 
as saying with respect to politically active religious persons, ``I 
promise you that when there is a discussion on education policy, there 
is one group that is not going to be there and that is them.'' Do you 
believe that conservative religious people should be excluded from 
political discussions on education or other issues?
    Answer 4A. The words quoted were spoken in the heat of a campaign 
in which overstated things were being said on both sides. I regret 
saying them. These comments do not suggest an individual who is always 
respectful of the views of others, which I consider myself to be. I do 
not believe that conservative religious people should be excluded from 
political discussions on any issues.

    Question 4B. Do you believe that the Free Speech Clause of the 1st 
Amendment to the U.S. Constitution applies equally to religious people 
as to non-religious people?
    Answer 4B. I believe that the Free Speech Clause of the First 
Amendment to the U.S. Constitution applies equally to religious people 
as to non-religious people.

    Question 5. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 5. Yes. I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I 
personally disagree with such precedents.

    Question 6. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 6. If I am fortunate enough to become a federal circuit 
court judge, I will be obligated to follow, and I will follow, Supreme 
Court precedent, as well as precedent of the Eighth Circuit, even if I 
believed the Courts had seriously erred.

    Question 7. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 7. Yes. I am committed to following precedent of higher 
courts on equal protection issues, and all issues.

    Question 8. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 8. No. I have no legal or moral beliefs which would inhibit 
or prevent me from imposing or upholding a death sentence in any 
criminal case that might come before me as a federal judge.

    Question 9. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 9. Delays of the length you describe certainly seem 
excessive. Once Congress or a state legislature has made the policy 
decision that capital punishment is appropriate, federal courts should 
uphold the will of Congress and state legislatures, using as guidance 
any Supreme Court or other relevant and binding precedent. Further, 
Congress has enacted legislation to address prisoner litigation, and 
the Eighth Circuit has uphold one of the recent statutes against a 
constitutional challenge, Gavin v. Branstad, 122 F.3d (Prison 
Litigation Reform Act provision requiring immediate termination of 
prospective relief in absence of certain findings by district court did 
not violate separation of powers doctrine, equal protection or due 
process.)

    Question 10. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 10. A federal judge must look to the Constitution and 
Supreme Court or circuit precedent, if any, for guidance in determining 
the legal effect of a constitutional provision. A federal judge must 
look to the plain language in the statute to determine its meaning or 
effect. If a constitutional provision or a statute is unclear or its 
application in a given context uncertain, a federal judge may review 
the constitutional debates or legislative history. In the case of a 
federal appellate court judge, precedent of the circuit court is also a 
source of legal authority. Federal district court judges are also bound 
by the law of their circuit court as well. These authorities recognize 
that federal courts are limited by the Constitution, by statute, and by 
a higher court precedent.

    Question 11. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contempory 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 11. Clearly, approach one--interpretation of the plain 
meaning of the language in the Constitution and the original intent of 
the Framers of the Constitution--is legitimate. Also, if Congress or 
the state legislatures determines that a right needs to be established 
which was not contemplated by the Constitutional authors, then the 
proper mechanism for establishing such a right is amendment of the 
Constitution through the process outlined in Article V of the 
Constitution. This approach is also entirely legitimate to establish a 
constitutional right not previously upheld by a court.
    Justice Brennan's ``community's interpretation'' approach is not a 
legitimate approach establishing a constitutional right not previously 
upheld by a court. It is not the responsibility of judges to attempt to 
ascertain the ``community's interpretation'' of constitutional text. 
Our Constitution mandates a separation of powers and vests the 
authority to determine such community sentiments in the political 
branches of the government

    Question 12. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 12. If a case or controversy involving the constitutionality 
of a statute came before me, I would look first to the statute, 
consider its plain meaning, and assume its constitutionality. I would 
then look to the Constitution and Supreme Court precedent for guidance, 
and would follow the Supreme Court or other controlling precedent as 
required.
    While cases of first impression are rare, if a such a case came 
before me in a case or controversy, I would presume the statute is 
constitutional, look the plain meaning of the Constitution and of the 
statute in question, and next to the Supreme Court for guidance. If 
there were no Supreme Court precedent, then I would review the Supreme 
Court's holdings in analogous cases and look to other jurisdictions for 
similar cases. In both circumstances, I would strive to uphold the 
legislative enactment.

    Question 13. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
source of the judicial power and the federal government's power under 
Article III?
    A. Griswald v. Connecticut, 381 U.S. 479 (1966).
    Answer 13A. In Griswold v. Connecticut, The Supreme Court found a 
``zone of privacy'' that ``emanated'' from several of the first ten 
amendment--The First, Third, Fourth, Fifth, and Ninth--as a basis to 
recognize a ``privacy right'' in marital relationships that was invaded 
by a Connecticut law restricting married couples' access to birth 
control. In reaching this holding, the Court relied upon prior 
decisions that recognized a constitutional basis for privacy-related 
rights that gave effects to rights explicitly enumerated in the 
Constitution. Because constitutional adjudication traditionally looks 
primarily to the text of the Constitution, Griswold's use of other 
sources to help define the meaning of the Constitution was a departure.

    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11B. The Supreme Court in Alden v. Maine held that the 
Eleventh Amendment barred lawsuits against a state by its own citizens 
on the basis of a right in federal law, unless the state consented to 
the action. The Court reasoned that the Eleventh Amendment embodies a 
broader principle of sovereign immunity than its text, which seemingly 
bars only lawsuits in federal court by a citizen of one state against 
another state, would indicate.

    Question 14. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    Answer 14A. In this case, the Supreme Court upheld the 
constitutionality of a federal law that prevented individual farmers 
from growing more than a pre-determined amount of wheat. The Court 
reasoned that the law fell within Congress' power to regulate 
``Commerce . . . among the several States'' because overproduction by 
individual farmers, in the aggregate, could affect the interstate wheat 
market and thus interstate commerce. Wickard recognized a broad 
Constitutional power to enact legislation under the Commerce Clause.

    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 14B. The Supreme Court in United States v. Lopez struck down 
the federal Gun-Free School Zones Act which made it a crime to 
knowingly carry a firearm within a ``school zone.'' The Court held that 
the Act exceeded the Commerce Clause authority of Congress as defined 
by Wickard because the aggregate effect of carrying guns near schools 
did not, in the Court's view, substantially affect interstate commerce. 
In reaching this holding, the Court stressed the non-economic nature of 
the regulated activity.
    Both Wickard and Lopez interpreted the boundaries set by the 
Commerce Clause on Congress' power to regulate matters affecting the 
states.

    Question 15. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    Answer 15. The Constitution specifically enumerates the powers 
vested in the federal government and reserves all remaining power to 
the states or to the people. In the cases listed below, the Supreme 
Court has been called upon to determine whether an official act 
improperly exceeds the Constitution's grant of limited powers.

    A. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 15A. In this case, the Supreme Court held that the Gun-Free 
School Zones Act exceeded Congress' authority to enact legislation 
under the Commerce Clause. This case reaffirms limits on the commerce 
power regarding activities traditionally regulated by the states.

    B. Printz v. United States, 521 U.S. 898 (1997).
    Answer 15B. The Supreme Court held in Printz v. United States that 
certain interim provisions of the Brady Handgun Violence Prevention Act 
unconstitutionally pressed state law enforcement officers into federal 
service by requiring them to run background checks on prospective gun 
buyers and to perform other related duties. Adhering to its prior 
precedent that the Tenth Amendment forbids Congress from commandeering 
a state's legislature to enact legislation that effectuates federal 
law, the Court in Printz held that Congress also may not commandeer a 
state's executive officers to execute federal law. This decision 
reaffirmed the Court's precedent placing certain types of federal 
legislation that imposed duties on the states outside of Congress' 
power to enact. The Court held that Congress had no greater power under 
the Tenth Amendment.

    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 15C. Alden v. Maine construed the Eleventh Amendment to bar 
lawsuits by state employees against a state under the Fair Labor 
Standards Act in the absence of the state's consent. This decision, 
which followed earlier precedent, established a principle of sovereign 
immunity broader than the text of the Eleventh Amendment by placing 
limits on when Congress can require states to be litigants without 
their consent.

    D. Baker v. Carr, 369 U.S. 186 (1962).
    Answer 15D. In this case, the Court held that a civil action 
challenging as unconstitutional a Tennessee statute apportioning the 
members of the General Assembly among the State's counties was not a 
``political question'' outside the competence of the judiciary to 
adjudicate. The Court's opinion reduced the scope of the ``political 
question'' doctrine, allowing courts to consider challenges to 
apportionment.

    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 15E. This case involved an action brought by North Carolina 
residents challenging North Carolina's congressional redistricting 
plan. The Court held that the residents had stated a claim under the 
Equal Protection Clause by alleging that the state had adopted a 
reapportionment scheme based on race, and thus the strict scrutiny 
standard applied.

    Question 16. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 16. No. I do not think that the federal trial courts have 
the institutional expertise to set rules for and oversee the 
administration of prisons, school, or state agencies.

    Question 17. In ruling on the constitutionality of a statute, what 
weight should a court give to the fact that the challenged statute 
existed before and after the ratification of the constitutional 
provision at issue. Assume the court faces this issue as a matter of 
first impression.
    Answer 17. If I were fortunate enough to be confirmed as a federal 
circuit court judge and I were confronted with a case or controversy 
involving such an issue as a matter of first impression, I would apply 
the maxims of statutory construction. I would start with the 
presumption that the statute is constitutional. Then, I would look to 
the plain meaning of the statute and to the Constitution and consider 
the historical facts surrounding ratification of the constitutional 
provision at issue. I would take note of the fact that the challenged 
statute had not been repealed or (if it were the case) expressly 
addressed by the subsequent constitutional provision, and I would look 
to determine whether there was any legislative history to the 
constitutional provision that addressed the statute or how it should be 
read. Next, I would review Supreme Court precedent, and if there were 
none, I would then consider analogous cases in the Supreme Court and 
other jurisdictions in order to find precedential guidance in the 
matter.
                                 ______
                                 

   Responses of Bonnie J. Campbell to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Judges must abide by the separation of powers established 
in our Constitution and should understand that legislatures may choose 
not to act. Legislative inaction should not be considered an oversight 
by the legislators. If legislatures choose not to address a matter or 
leave an issue unaddressed, it is not the responsibility of courts to 
step in.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. No. I have no personal objections to the death penalty 
that cause me to be reluctant to impose or uphold a death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge.
    Answer 3. If I am fortunate enough to be confirmed, I will have no 
reluctance to impose or uphold mandatory minimum criminal sentences.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. Congress adopted the Federal Sentencing Guidelines, and 
they have been held to be constitutional. If I am fortunate enough to 
be confirmed as a federal appellate court judge, I will faithfully 
follow the mandates of the Federal Sentencing Guidelines.

    Question 5. Recently, the Supreme Court found that Congress does 
not have the authority under the Commerce Clause and the Fourteenth 
Amendment to address violence against women. The Court wrote: ``If 
Congress may regulate gender-motivated violence, it would be able to 
regulate murder or any other type of violence since gender-motivated 
violence, as a subset of all violent crime, is certain to have lesser 
economic impacts than the larger class of which it is a part. You are 
currently serving as Director of the Department of Justice's Violence 
Against Women Office. Do you agree with the Supreme Court's decision?
    Answer 5. The Supreme Court's recent decision in United States v. 
Morrison invalidated the federal cause of action for victims of sexual 
assault, rape, and other sexually-related violence against their 
assailants for damages, but it did not address other provision of the 
Violence Against Women Act. In my role as Director of the Violence 
Against Women Office, I publicly expressed my policy view that the 
Supreme Court should uphold this provision of the Violence Against 
Women Act. However, if I am confirmed, I can assure you that I would 
follow the Supreme Court's precedent with respect to the issues 
presented in this case, and all other cases.

    Question 6. Do you believe that state courts and justice systems 
are as capable as federal courts in providing fair hearings and 
treatment for women who are victims of violence?
    Answer 6. Congressional hearings amassed a great deal of evidence 
suggesting that women who are victims of domestic and sexual violence 
are frequently discriminated against in the criminal justice system. 
Since these cases have historically been handled at the state level, it 
is impossible to know how state courts would compare to federal courts 
in this regard. The approach of the Violence Against Women Office was 
to direct resources to criminal justice officials at all levels and 
improve the response to women victims of domestic and sexual violence 
across the criminal justice system.

    Question 7. If you were a federal judge, would you consider it 
appropriate for domestic violence cases to be heard in your court?
    Answer 7. If I am fortunate enough to be confirmed, I would follow 
the Code of Conduct for federal judges, and always err on the side of 
caution, to assure that I avoid even the appearance of bias.

    Question 8. Is prior courtroom experience important for a nominee 
for the federal bench?
    Answer 8. It is important for a candidate for the federal appeals 
court to have a knowledge and understanding of pre-trial litigation 
practice and trial practice--civil and criminal, the rules of evidence, 
and other basic process and structural aspects of litigation, as well 
as the appeals process, its standards, rules and practices. Courtroom 
experience, of which I have some, is of course, valuable.
    I believe that my years working in the legislative branch, my 
experience in private practice, my tenure as Iowa Attorney General, and 
my service as Director of the Violence Against Women Office have given 
me a strong foundation in the law and a keen knowledge of the work of 
the federal courts, as well as a special understanding of and 
appreciation for the separation of powers among the branches of 
government and the Constitution's division of power between the States 
and the federal government.
                                 ______
                                 

   Responses of Bonnie J. Campbell to Questions From Senator Ashcroft

    Question 1. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 1. The rights protected by the Constitution are set forth in 
that document or found there by the Supreme Court; they do not grow or 
shrink with changing historical circumstances. From time to time, they 
may have to be applied in new contexts as technological developments 
create new situations and present new issues.

    Question 2. If a particular judge or court has a high rate of 
reversal on appeal, or by the Supreme Court, is that a problem? If it 
is, what can and should be done to remedy that problem?
    Answer 2. It is a problem. Any judge with a high reversal rate 
should examine the appellate court opinions and her understanding of 
her role and the way she is doing her job to remedy this problem.

    Question 3. Is ``substantive due process'' a legitimate 
constitutional doctrine?
    Answer 3. The Supreme Court addressed this question in Washington 
v. Glucksberg, 521 U.S. 702 (1997) and identified a small number of 
``fundamental rights and liberty interests'' specially protected by the 
Due Process Clause. The Court expressed its reluctance to expand the 
concept of substantive due process beyond these ``fundamental rights 
and liberty interests'' because to do so would ``place the matter 
outside the arena of public debate and legislative action.'' Id. at 
720. Substantive due process is still recognized by the Supreme Court 
but clearly will rarely be applied by the Court.

    Question 4. Is it appropriate for federal judges to recognize new 
``substantive due process'' rights? If yes, what should the guiding 
principles be?
    Answer 4. It is appropriate for federal judges to follow Supreme 
Court and circuit court precedent. The guiding principles are to look 
first to the Constitution and then to Supreme Court, and circuit court 
precedent. In this regard, I would look to Justice Rehnquist's majority 
opinion in Washington v.  Glucksberg discussing the very limited scope 
of substantive due process.

    Question 5. What is your understanding of the holding in United 
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to 
determine if a statute exceeded the power of Congress to enact under 
the Commerce Clause?
    Answer 5. The Supreme Court in United States v. Lopez struck down 
the federal Gun-Free School Zones Act, a law which made it a crime to 
knowingly carry a firearm within a ``school zone,'' holding that the 
Act exceeds the Commerce Clause authority of Congress. The Court held 
that this law did not have a sufficient effect on interstate commerce; 
that the Act contained no jurisdictional requirement that the firearm 
at issue had traveled across State lines; and that Congress had made 
scant findings about the interstate effects of the criminal act at 
issue. Consequently, the Court concluded that it was left with a law 
that dealt with criminal activity--not economic activity--which was on 
its face, unsupported by any link to interstate commerce. The Court 
rejected the Government's argument that the ``costs of crime'' in 
general justified the law on the grounds that such an argument would 
justify a general federal ``police power,'' which the Court said was 
inconsistent with the structure of the federal system of government.
    The test outlines in Lopez states the Congress may regulate: (i) 
the use of the channels of interstate commerce; (ii) the 
instrumentalities of interstate commerce, or persons or things in 
interstate commerce; and (iii) those activities ``having a substantial 
relation to interstate commerce'' because they ``substantially affect 
interstate commerce.''

    Question 6. Do you think that there is tension between the Supreme 
Court's holdings in Romer v. Evans, 517 U.S. 620 (1996) and Bowers v. 
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile 
that tension? If there is not, how are they reconcilable?
    Answer 6. I believe that these cases are reconcilable in that they 
arise under different clauses of the Fourteenth Amendment to the 
Constitution, and because one (Romer) involved the political process, 
and the other (Bowers) involved a claimed right to certain sexual 
conduct. The Supreme Court, in Romer v. Evans, applying the standard of 
rational basis scrutiny, struck down a Colorado constitutional 
amendment that would have precluded state and local governments from 
enacting laws prohibiting discrimination on the basis of sexual 
orientation. The Court concluded that the constitutional amendment 
``lacks a rational relationship to legitimate state interests'' and, 
therefore, violates the Equal Protection Clause.
    The Court in Bowers v. Hardwick, held that the State of Georgia 
could criminalize private, consensual homosexual conduct. In its 
opinion, the Court wrote that ``The law . . . is constantly based on 
notions of morality, and if all laws representing essentially moral 
choices are to be invalidated under the Due Process Clause, the courts 
will be very busy indeed.'' Bowers has not been overturned by the 
Supreme Court and must be followed by district and circuit court judges 
in applicable cases.

    Question 7. Is there a legislative classification that would fail 
rational basis review?
    Answer 7. Generally, State and Federal laws are constitutional 
under the Equal Protection Clause of the Fourteenth Amendment as long 
as they satisfy ``rational basis scrutiny,'' i.e., as long as those 
laws rationally serve a legitimate goal. While Romer v. Evans (asked 
about in the previous question) is a modern-day example of a 
legislative classification that the Supreme Court found failed rational 
basis, the test is very deferential.

    Question 8. Is a state program that gives parents a set sum of 
money to be used by the parent to pay for tuition at any school they 
choose, public, private, religious or non-sectarian, constitutional?
    Answer 8. It is likely that the Supreme Court will be addressing 
this question soon, and its decision will determine whether such a 
program is a violation of the Establishment Clause of the First 
Amendment. If I had to consider such a question, I would, of course, 
extend to any statute(s) setting up such a program the presumption of 
constitutionality and look to Lemon v. Kurtzman, 403 U.S. 602 (1971) 
and subsequent Supreme Court and Eighth Circuit precedent for guidance.

    Question 9. Please define judicial activism. Is Lochner v. New 
York, 198 U.S. 45 (1905) an example of judicial activism? Please 
identify three Supreme Court opinions that you believe are examples of 
judicial activism (not including Lochner if your answer to the prior 
question was yes). Is Roe v. Wade, 410 U.S. 113 (1973) an example of 
judicial activism.
    Answer 9. When the term ``judicial activism'' arises, it usually 
refers to a belief that judges have engaged in setting imposing their 
personal views rather than staying within the boundaries of their 
authority set by the Constitution and Acts of Congress. Over my career 
as a practicing attorney, State of Iowa Attorney General, and Director 
of the Justice Department's Violence Against Women Office, I have 
always considered Supreme Court decisions for their content and the law 
they handed down, not whether it was ``activist.'' As one who hopes to 
be a federal judge, I do not think it is appropriate for me to attach 
labels to certain Supreme Court cases. If I am fortunate enough to be 
confirmed, I will be duty-bound to follow those Supreme Court 
precedents, irrespective of any opinions I may have about them.

    Question 10. Do you believe that the view of the death penalty 
taken by Justices Brennan, Marshall and Blackmun--that it is 
unconstitutional despite clear constitutional text sanctioning it--is a 
permissible view for a federal judge to hold?
    Answer 10. The Constitution clearly references the death penalty, 
and the Supreme Court has held unambiguously that it is constitutional 
for states to impose a death penalty. Again, I do not feel it is 
appropriate for me to critique members of the Supreme Court; I would 
follow Supreme Court precedent and apply the law fairly and equitably.
                                   ____
                                 

   Responses of Bonnie J. Campbell's to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. Since it is the duty of federal judges to always follow 
the law, as well as to avoid the appearance of pre-judging issues which 
might come before them, I understand a nominee's general reluctance to 
offer more than a discussion of their understanding of the Supreme 
Court's holdings, if any, with respect to any particular issue. Thus, a 
nominee's declination to go beyond that point should not, I 
respectfully submit, prevent that nominee's confirmation.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues.
    Answer 2. If I were a member of the Senate, I think I would attempt 
to ascertain the character and ability of the nominee in ways that did 
not cause concerns about prejudging of issues.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. My understanding is that the purpose of the United States 
Senate in holding hearings on nominees for the federal bench is to have 
the opportunity to gain a clearer understanding of the character and 
professional competence of the nominee.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if the nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer 4. I can say only that I am glad to share my understanding 
of the Court's legal analysis with respect to cases which have been 
decided, and I will willingly discuss the analytical process I will 
employ in considering cases or controversies which may come before me 
if I am confirmed.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. I have indicated that I am glad to discuss Constitutional 
questions with members of the Senate, as long as the questions do not 
put me in the position of appearing to pre-judge an issue which might 
at some point in the future come before me.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. I believe that any questions regarding the nominee's 
understanding of the law and questions about his or her professional 
experience and background are appropriate.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No. I believe a Senator can ask any question he or she 
wishes to ask. However, the nominee, wearing the hat of a judge, may 
not be able to answer every question in light of the obligation to 
appear, and be, impartial and fair. The onus is on the nominee to 
respond in an appropriate fashion, not on the Senator to refrain from 
asking the question.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
Judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. No. The Judge must apply Supreme Court precedent 
irrespective of his or her view of the matter.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19How.) 393?
    Answer 9. It is impossible to know how I would have ruled or voted 
in Dred Scott v. Sandford had I been a member of the Supreme Court in 
1856. I cannot put myself back in that time, and I have not had the 
benefit of the record, briefs and arguments, and consultations with 
other members of the Court.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States? How should that precedent be treated by the courts 
today?
    Answer 10. Since the Dred Scott decision was reversed by the 
ratification of the Thirteenth and Fourteenth Amendments, it is no 
longer controlling law.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19How.) 393 (1856)?
    Answer 11. Yes. If I were a judge in 1857, I would have been bound 
to follow the binding precedent of Dred Scott v. Sandford.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. It is impossible to know how I would have ruled or voted 
in Plessy v. Ferguson if I had been a member of the Supreme Court in 
1896. I cannot put myself in that time, and I have not had the benefit 
of the record, briefs and arguments, and the consultation with other 
members of the Court.

    Question 13. In Plessy v. Ferguson, 169 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Since Plessy v. Ferguson was overturned by the Supreme 
Court in Brown v. Board of Education, Brown is controlling law today.

    Question 14. If you were a Supreme Court Judge in 1954, what would 
you have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 14. It is impossible to know how I would have ruled or voted 
in Brown v. Board of Education if I had been a member of the Supreme 
Court when the case was decided. I cannot put myself in that time, and 
I have not had the benefit of the record, briefs and arguments, and the 
consultation with the other members of the Court.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. This case is controlling precedent today.

    Question 16. If you were a Supreme Court Justice in 1975, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. It is impossible to know how I would have ruled or voted 
in Roe v. Wade, had I been a member of the Supreme Court at that time. 
I cannot put myself in that time, and I have not had the benefit of the 
record, briefs and arguments, and the consultation with other members 
of the Court.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 17. Roe v. Wade, as modified by Planned parenthood v. Casey, 
is controlling precedent today. I do not feel it would be appropriate 
for me to critique the legal reasoning of the holding in the case. It 
is, however, my duty to follow Supreme Court precedent.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. Since I am obligated to follow Supreme Court precedent 
in all cases, I do not feel that is appropriate for me to say more than 
that I have no opinions which would prevent me from following Supreme 
Court precedent.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. Since I am obligated to follow Supreme Court precedent 
in all cases, I do not feel that is appropriate for me to say more than 
that I have no personal views on the death penalty which would prevent 
me from following Supreme Court precedent.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. Since I am obligated to follow Supreme Court precedent 
in all cases, I do not feel that it is appropriate for me to say more 
than that I have no opinions which would prevent me from following 
Supreme Court precedent.

    Question 21. In Planned Parenthood v. Casey, (505 U.S. 833 (1993)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. Roe v. Wade, as modified by Planned Parenthood v. Casey 
is controlling law with respect to this issue today, and I would be 
obligated to follow the Supreme Court precedent.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue. Do you personally 
believe that an unborn child is a human being?
    Answer 22. Roe v. Wade, as modified by Planned Parenthood v. Casey 
is controlling law with respect to this issue today, and I would be 
obligated to follow the Supreme Court precedent.

    Question 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. Yes. The Supreme Court has held that states may enact a 
death penalty, and I would follow the Supreme Court precedent.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. If I were a Supreme Court Justice, I would follow the 
Court's own guidance for overruling a precedent of the Court. The 
Supreme Court offered this discussion in Planned Parenthood v. Casey 
and in Agostini v. Felton. The Court noted that the factors for the 
Supreme Court to consider when asked to overrule a precedent include: 
whether the rule of law has defied practical workability; whether the 
rule is subject to a kind of reliance that would cause special hardship 
if it were overruled; whether related principles of law have so 
developed as to have left the rule a remnant of an abandoned doctrine; 
and whether facts have so changed as to have stripped the old rule of 
significant application.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. I think a review of the legislative history of a statute 
might be informative, but I would consider it with caution and only if 
the plain language of the statute were ambiguous. The testimony of 
elected officials in debates tells only the views of those particular 
officials, whereas committee reports may be more representative of the 
intent of the legislative body as a whole.

    Question 26. The Supreme Court recently ruled that part of the 
Violence Against Women Act violated the Commerce Clause of the 
Constitution. Do you believe that the ruling was a correct 
interpretation of the Constitution?
    Answer 26. In my role as Director of the Violence Against Women 
Office, I stated publicly that I hoped the Supreme Court would uphold 
the civil rights remedy in the Violence Against Women Act. However, I 
understand that judges must follow Supreme Court precedent and if I am 
fortunate enough to be confirmed, I would follow that precedent and all 
applicable precedent of the Supreme Court.

    Question 27. Does the prior mentioned ruling change any of your 
current job responsibilities as Director of the Violence Against Women 
Office of the U.S. Justice Department?
    Answer 27. No. The provision which was invalidated was a private 
right of action, and the Department of Justice had no enforcement 
authority. Consequently, the Court's ruling did not change any of my 
job responsibilities.

    Question 28. As a member of Emily's List, what lobbying activities 
of the organization have you been active in?
    Answer 28. I have not been involved in any lobbying activities as a 
member of Emily's List. I am a member by virtue of making a financial 
contribution.

    Question 29. You spoke in February of 1992 at a ``Hate Crimes 
Seminar'' in Iowa. What was the substance of your remarks?
    Answer 29. I believe the context of the seminar was that the Iowa 
Legislature was considering various hate crimes legislation, and the 
seminar attendees were interested in being briefed on possible 
legislative action. I included a copy of my written comments for that 
presentation with the documents I provided to the Senate Judiciary 
Committee when I was nominated. Beyond the comments which I have 
provided, I have no memory of my remarks. A review of the comments 
suggests that they were introductory in tone rather than substantive. 
If I am fortunate enough to be confirmed, I would follow any applicable 
precedent of the Supreme Court regarding hate crimes.
                                 ______
                                 

   Responses of Bonnie J. Campbell's to Questions From Senator DeWine

    Question 1. In September, 1999, in Stenberg v. Carhart, a three-
judge panel of the Eighth Circuit struck down Nebraska's ban on most 
partial-birth abortions. However, the following month, the entire 
Seventh Circuit adopted a different analysis and upheld very similar 
bans enacted by Illinois and Wisconsin. In your view, which circuit 
applied the correct analysis to state bans on partial-birth abortion?
    Answer 1. In Stenberg v. Carhart, 192 F.3rd 1142, the Eighth 
Circuit based its ruling striking Nebraska's ban on certain late-term 
abortions on Planned Parenthood v. Casey. The Court held that the ban 
imposed an undue burden on a woman's right to an abortion because, 
based on the facts found by the district court, it would prohibit the 
most common procedure for second trimester abortions.
    The Seventh Circuit cases involve somewhat different sets of facts 
but also relied on an analysis based on Planned Parenthood v. Casey. 
The Seventh Circuit found that the bans in question did not affect the 
same procedure at issue in Carhart. They found that prohibiting the 
procedure that was affected by the ban did not unduly burden a woman's 
right to an abortion. Both the Seventh and Eighth Circuits applied 
Casey to different sets of facts, resulting in differing conclusions.
    The Supreme Court granted certiorari in the case of Stenberg v. 
Carhart to further clarify the application of Casey in this context, 
and its decision will determine the correct analysis to state bans on 
partial-birth abortion. If I am fortunate enough to be confirmed, I 
will, of course, follow the Supreme Court's precedent on this and all 
other matters.

    Question 2. In 1992, as Iowa's attorney general, you joined in a 
friend-of-the-court brief to the Supreme Court in the case of Planned 
Parenthood v. Casey, urging the Court to reaffirm Roe v. Wade, but also 
said that it would permit state regulations that do not place an 
``undue burden'' on access to abortion. Do you believe that the Court's 
holding was consistent with the position that you urged in the brief?
    Answer 2. Yes, I do believe that the Court's holding in Planned 
Parenthood v. Casey was consistent with the position urged in the 
friend-of-the-court brief I filed as Attorney General of Iowa. The 
central thrust of the brief, which was one of many filed by states, 
including New Jersey, North Carolina, Utah, Illinois, and Texas, was an 
argument in favor of stare decisis, i.e., respecting the precedent in 
Roe v. Wade, which the Court clearly did in its opinion. Justice 
O'Connor, writing for the majority, emphatically reaffirmed the Court's 
holding in Roe when she wrote: ``A decision to overrule Roe's essential 
holding . . . would address error, if error there was, at the cost of 
both profound and unnecessary damage to the Court's legitimacy, and to 
the Nation's commitment to the rule of law. It is therefore imperative 
to adhere to the essence of Roe's original decision and we do so 
today.'' Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 
U.S. 833, 863 (1992). However, irrespective of any positions I took as 
Iowa, Attorney General, or at any other time, if I am fortunate enough 
to be confirmed to the Eighth Circuit of Appeals, I will always fulfill 
my obligation as a judge and follow binding precedent of the Supreme 
Court.
                                 ______
                                 

 Responses of Jay A. Garcia-Gregory to Questions from Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Under the constitutional system of separation of powers, 
it is up to the legislature to act or not to act in response to social 
problems, not the courts. Courts should not act in response to social 
problems but must only adjudicate actual cases or controversies under 
Article III of the Constitution.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. No, I have no personal objections that would cause me to 
be reluctant to impose or uphold a death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. Mandatory minimum sentences have been held to be 
constitutional and I would have no reluctance to impose or uphold them 
as a Federal judge.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. The Federal Sentencing Guidelines--which balance 
consistency and flexibility in sentencing--have been found to be 
constitutional, and I would apply them in the sentencing of criminal 
defendants consistent with Supreme Court and Circuit precedent.
                                 ______
                                 

   Responses of Jay A. Garcia-Gregory to Questions from Senator Hatch

    Question 1. Are you aware of the Supreme Court's decision in Bowers 
v. Hardwick, 478 U.S. 186 (1986)? Please explain to the Committee your 
understanding of that decision, and its holding regarding the 
Constitution's Due Process Clause.
    Answer 1. Yes, I am aware of Bowers v. Hardwick, 478 U.S. 186 
(1986). It is my understanding that in Bowers, the Supreme Court held 
that the Constitution does not confer a fundamental right upon 
homosexuals to engage in consensual sodomy. In that case, the Court 
rejected a challenge under the Fourteenth Amendment to Georgia's 
exercise of police powers in enacting that State's criminal sodomy 
statute, which specified the elements of the offense. The Court also 
noted that federal courts should not expand the reach of the Due 
Process clauses of the Fifth and Fourteenth Amendments to such cases. 
If I were so fortunate as to be confirmed as a Federal judge, I would 
fully comply with the Supreme Court holding and would have no 
reluctance to follow that precedent.
                                 ______
                                 

 Responses of Jay A. Garcia-Gregory to Questions From Senator Ashcroft

    Question 1. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 1. The rights protected by the Constitution are found in the 
Constitution and its Amendments as interpreted by the Supreme Court of 
the United States. A Federal District Court judge is bound by the 
Constitutional text as interpreted by the Supreme Court, regardless of 
any changing circumstances.

    Question 2. If a particular judge or court has a high rate of 
reversal on appeal, or by the Supreme Court, is that a problem? If it 
is, what can and should be done to remedy that problem?
    Answer 2. If a judge or court has a high rate of reversal on 
appeal, that would be a problem. Such a situation could be remedied 
through remand instructions and directives by the reviewing Court and 
through the work of the lower courts to thoroughly read any reversals 
and closely follow the rulings of the higher courts. If I were so 
fortunate as to be confirmed, I would examine any reversal and review 
my own opinion and other orders to determine the problem and rectify 
it.

    Question 3. Is ``substantive due process'' a legitimate 
constitutional doctrine?
    Answer 3. The concept of ``substantive due process'' is legitimate 
only insofar as Supreme Court precedent may have recognized it or 
allowed it to be. For example, in Washington v. Glucksberg, 521 U.S. 
702 (1997) Chief Justice Rehnquist, writing for the majority, concluded 
that ``substantive due process'' was a viable constitutional doctrine, 
but only within very narrow limits so as to avoid impeding the 
democratic process. In Glucksberg, the Supreme Court upheld a State ban 
on assisted suicide and found that the liberty interest protected by 
the due process clause did not render such a ban unconstitutional. If I 
were so fortunate as to be confirmed, I would be bound by that 
precedent and all precedents of the Supreme Court.

    Question 4. Is it appropriate for federal judges to recognize new 
``substantive due process'' rights? If yes, what should the guiding 
principles be?
    Answer 4. No, it is not appropriate for Federal judges to recognize 
new ``substantive due process'' rights, and Federal District Court 
judges are obligated to follow precedent in this area and all areas of 
the law.

    Question 5. What is your understanding of the holding in United 
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to 
determine if a statute exceeded the power of Congress to enact under 
the Commerce Clause?
    Answer 5. In United States v. Lopez, 514 U.S. 549 (1995), the 
Supreme Court held that the prohibition found in the Gun-Free School 
Zones Act of 1990 that forbade any individual from knowingly possessing 
a firearm in a school zone exceeded Congress' authority under the 
Commerce Clause. The Court found that the possession of a gun in a 
local school zone is not an economic activity that might through 
repetition elsewhere have a substantial effect on interstate commerce. 
If I were so fortunate as to be confirmed, I would be bound to apply 
this test where applicable after according the statute a presumption of 
constitutionality.

    Question 6. Do you think that there is tension between the Supreme 
Court's holdings in Romer v. Evans, S17 U.S. 620 (1996) and Bowers v. 
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile 
that tension? If there is not, how are they reconcilable?
    Answer 6. I do not think there is tension between the Supreme Court 
holdings in these cases Romer was based on the Equal Protection clause 
while Bowers was based on the Due Process clause. Bowers held that 
individuals have no constitutional rights to engage in homosexual 
activity under the Due Process clause, and thus, the State of Georgia's 
exercise of its police power to make such conduct criminal is clearly 
lawful. Romer held that a Colorado state constitutional amendment, 
adopted in a statewide referendum, that effectively repealed state and 
local provisions barring discrimination on the basis of homosexual, 
lesbian, or bisexual orientation, failed rational basis review and 
violated the Constitution. Bowers and Romer are reconcilable because 
they constitute precedent in different factual situations and legal 
postures, and in my view both still call for deference to the 
legislative process.

    Question 7. Is there a legislative classification that would fail 
rational basis review?
    Answer 7. An invidious racial classification would have no rational 
relation to a legitimate end. However, such a classification would be 
subject to strict scrutiny review, not the rational basis test.

    Question 8. Is a state program that gives parents a set sum of 
money to be used by the parent to pay for tuition at any school they 
choose, public, private, religious or non-sectarian, constitutional?
    Answer 8. If such a question were presented in an actual case or 
controversy where the issue was squarely raised, I would follow the 
Supreme Court's holding in Lemon v. Kurtzman, 403 U.S. 602 (1971), and 
subsequent precedent.

    Question 9. Please define judicial activism. Is Lochner v. New 
York, 198 U.S. 45 (1905) an example of judicial activism? Please 
identify three Supreme Court opinions that you believe are examples of 
judicial activism (not including Lochner if your answer to the prior 
question was yes). Is Roe v. Wade, 410 U.S. 113 (1973) an example of 
judicial activism?
    Answer 9. I would think that Federal district court judges 
``legislating'' or substituting their own personal views for those of 
appellate courts and binding precedent would be examples of judicial 
activism.
    I do not read Supreme Court opinions to ascertain whether the Court 
has been ``activist'' or not. I only read them to ascertain their 
holding and whether that holding will bear on any particular issue. I 
read Lochner as having decided a particular issue at a particular time 
and under particular circumstances where the Supreme Court's view of 
liberty of contract as a constitutional guarantee prevailed over 
certain State social welfare legislation. That case is no longer 
precedent. I cannot think of three cases I would characterize as 
``judicial activism,'' and if I were so fortunate as to be confirmed, I 
would be obligated to follow all precedents of the higher courts, 
including Roe v. Wade,  regardless of whether or not I thought the 
Court had erred in its analysis. I would also be bound to decide only 
actual cases or controversies based on the facts established and on 
appropriate legal sources, such as the Constitution, statutes, and 
precedent.

    Question 10. Do you believe that the view of the death penalty 
taken by Justices Brennan, Marshall, and Blackmun--that it is 
unconstitutional, despite clear constitutional text sanctioning it--is 
a permissible view for a federal judge to hold?
    Answer 10. No, a Federal judge is bound by the Supreme Court 
precedent in Gregg v. Georgia, 428 U.S. 193 (1976), which declared the 
death penalty to be constitutional.
                                 ______
                                 

 Responses of Jay A. Garcia-Gregory to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following the precedent of higher 
courts faithfully and giving them full force and effect even if I were 
to personally disagree with such precedents.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores\1\ where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. I would rule in accordance with Supreme Court or Court of 
Appeals precedent regardless of whether I believed a higher court had 
seriously erred. I would apply the holding of the case, not my own 
personal judgment on the merits. If I were so fortunate as to be 
confirmed, I would apply the Supreme Court precedent in City of Boerne 
v. Flores, 521 U.S. 507 (1997).

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes, I am committed to following precedent of higher 
courts on equal protection issues regardless of my personal feelings.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No, I have no legal or moral beliefs which would prevent 
me from imposing or upholding a death sentence in any criminal case 
that might come before me as a federal judge.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously.
    Answer 5. Yes, I believe that delays of 10, 15 or 20 years between 
conviction of a capital offender and execution are too long.
    Yes, I believe that once Congress or a State legislature has made 
the policy decision that capital punishment is appropriate, federal 
courts should focus their resources on resolving capital cases as all 
cases, fairly and expeditiously.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. After determining whether the case or controversy falls 
within the limited jurisdiction of the federal courts, a federal judge 
must ascertain whether he could decide a statutory issue by relying on 
the plain language of the statute and available court precedent 
interpreting the statute. If there is any ambiguity, he or she would 
look to legislative intent to be ascertained on the basis of committee 
reports (but look with caution to legislative debates which may reflect 
the views of only a few Senators). A judge must try to decide the issue 
in accordance with principles of statutory construction and avoid 
reaching a constitutional question, if possible. Statutes are entitled 
to a presumption of constitutionally. Next, the judge must look to 
other available precedent or similar cases in deciding the question. 
With respect to a constitutional provision, the judge must respect the 
plain language of the constitutional provision and look to available 
precedent and constitutional debates in interpreting such a provision. 
Reliance on such sources of law limits the exercise of judicial power 
and is crucial to keeping intact the separation of powers in the 
Constitution.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification. Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. In analyzing any claim of a constitutional right, it 
would be legitimate to use (1) interpretation of the plain meaning of a 
text and original intent to the framers of the Constitution and (3) 
ratification of an amendment under Article V of the Constitution. Use 
of (2), Justice Brennan's ``community interpretation'' approach, poses 
the danger of a court going beyond its jurisdiction to decide actual 
cases or controversies and invading an area reserved to the legislative 
branch. As the Supreme Court cautioned in Bowers v. Hardwick, 478 U.S. 
186 (1986).

          Nor are we inclined to take a more expansive view of our 
        authority to discover new fundamental rights imbedded in the 
        Due Process Clause. The Court is most vulnerable and comes 
        nearer to illegitimacy when it deals with judge-made 
        constitutional law having little or no cognizable roots in the 
        language or design of the Constitution. Id. at 194.

If I were so fortunate as to be confirmed, I would follow Supreme Court 
precedent in this regard and on all issues.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. If confirmed, I would analyze a challenge to the 
constitutionally of a statute in a case not of first impression by 
according the statute of a presumption of constitutionality, strictly 
adhering to precedent, and ascertaining whether the statute could be 
saved through interpretation so as to avoid deciding a constitutional 
question unnecessarily. In a case of first impression, I would also 
accord the statute the presumption of constitutionality, would seek to 
interpret it so as to not have to decide a constitutional question 
unnecessarily, and look to available analogous precedent. Of course, 
the requisite threshold standing and case of controversy jurisdictional 
issues would have to be analyzed initially.
    Question 9. In your view, what are the source of law and methods of 
interpretation used in reaching the Court's judgment in the following 
cases? How does the use of these sources of law impact the scope of the 
judicial power and the federal government's power under Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    Answer 9A. In this case, the Court derived the ``right to privacy'' 
from certain ``penumbras'' in the Bill of Rights. This method of 
interpretation did not rely on the plain language of the Constitution 
but looked beyond the language to invalidate a State law regulating the 
use of contraceptives by married couples.

    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9B. In this case, the Supreme Court found that ``sovereign 
immunity derives not from the Eleventh Amendment text but from the 
structure of the original Constitution itself.'' 119 S.Ct. at 2254. The 
Court exercised judicial power under Article III to limit congressional 
power affording a remedy to public employees in State courts unless the 
State consents to suit.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    Answer 10A. In this case, the Court upheld a federal law that 
prevented individual farmers from growing more than a pre-determined 
amount of wheat because overproduction by individual farmers, in the 
aggregate, could affect the interstate wheat market. The clause refers 
to ``commerce among the several states'' but the Court followed prior 
precedent in interpreting the clause to reach purely intrastate 
economic activity that substantially affected interstate commerce.

    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10B. In striking down the Gun-Free School Zones Act, which 
made it a crime to knowingly carry a firearm within a ``school zone,'' 
the Court adhered to a more narrow reading of the constitutional text 
than in Wickard. The Court examined the statute and could not find a 
sufficient effect on interstate commerce. It found that the Act had no 
jurisdictional requirement that the firearm at issue would have 
traveled in interstate commerce and the Congress had made scant 
findings about the interstate effects of the local criminal activity at 
issue.
    A federal judge would have to apply these precedents in applicable 
cases.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    The Constitution provides for a federal government of limited 
delegated powers and creates a system of dual sovereignty for the 
federal government and the States. The Supreme Court has noted that in 
enacting legislation that affects the States, Congress cannot require 
State executive officers to carry out duties imposed by federal law. 
These limits do not, however, preclude Congress from obtaining State 
cooperation through funding incentives or through federal preemption. 
The division of power between the State and federal governments and the 
separation of powers among the branches of government is intended to 
protect the liberty of the individual from the concentration of power.
    The powers of a federal judge are limited by Article III of the 
Constitution to actual cases or controversies arising under the 
Constitution and federal statutes and treaties. A Federal judge must 
scrupulously adhere to jurisdictional requirements so he will at all 
times respect the balance of power established in the Constitution 
among the coordinate branches of Government and between the National 
and State Governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 11A. In this case, the Court placed limits on congressional 
power under the Commerce Clause in the area of non-economic activity 
without a nexus to interstate commerce so as not to displace 
traditional state police power.
    B. Printz v. United States, 521 U.S. 898 (1997).
    Answer 11B. In this case, the Court addressed the interim 
provisions of the Brady Handgun Violence Prevention Act that required 
state law enforcement officers to run background checks on prospective 
gun buyers and perform other related duties. The Court held that 
Congress had no greater power under the Tenth Amendment to commandeer a 
State's executive officers to carry out federal law than it did to 
commandeer State legislatures to enact legislation to effectuate 
federal law. New York v. United States, 505 U.S. 144 (1992).

    C. Alden v. Maine, 119 S. Ct, 2240 (1999).
    Answer 11C. In this case, the Court construed the Eleventh 
Amendment to bar lawsuits against States in State court and held that 
``sovereign immunity derives not from the Eleventh Amendment text but 
from the structure of the original Constitution itself.'' Id. at 2254. 
The Court recognized that the National Government is one of delegated 
powers and that the states retained their original sovereign immunity 
except to the extent they may have been surrendered or expressly waived 
it.

    D. Baker v. Carr, 369 U.S. 186 (1962).
    Answer 11D. The Court decided that a claim that the legislative 
apportionment plan of a State resulted in the debasement of the votes 
of plaintiffs stated a cognizable and justiciable claim under the Equal 
Protection Clause of the Fourteenth Amendment. In this case, the Court 
held that State apportionment did not present a non-justiciable 
political question and thus allowed a federal judicial forum for such 
claims.

    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11E. The Court found that a State reapportionment scheme 
subject to Section 5 of the Voting Rights Act of 1965 was so irrational 
on its face that it could be understood only as an effort to segregate 
voters into separate districts on the basis of race, and that such a 
``racial gerrymandering'' was subject to a strict scrutiny standard.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No, I do not believe that a federal district court has 
the institutional expertise to set rules for and oversee the 
administration of prisons, schools, or state agencies.

    Question 13. In ruling on the constitutionality of a statute, what 
weight should a court give to the fact that the challenged statute 
existed before and after the ratification of the constitutional 
provision at issue? Assume the court faces this issue as a matter of 
first impression.
    Answer 13. In ruling on the constitutionality of a statute, the 
court should first determine whether it is necessary to reach the 
constitutional claim or whether the case could be disposed of on 
statutory grounds. If the constitutional question has to be decided, 
the court should be careful to ascertain the relationship between the 
constitutional provision ratified and the pre-existing statute. The 
court must follow the precedents of the Supreme court on this issue, if 
any. If there are no precedents, the court would be obligated to 
presume the statute to be constitutional and look to the plain language 
of the new constitutional provision. If there is ambiguity, the court 
would look to the intent of the drafters and to the history of the 
amendment. The court would also look to any analogous precedent in 
attempting to reconcile the statute with the constitutional provision.
                                   ____
                                 

  Responses of Jay A. Garcia-Grergory to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer. 1. The confirmation of a judicial nominee is an exclusive 
constitutional prerogative of the Senate. A nominee should try to 
answer all questions posed by a Senator to the best of his ability. A 
nominee may be constrained in answering some questions in order not to 
appear to have prejudged an issue or rendered an advisory opinion.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer. 2. It is up to the Senate to evaluate a candidate's 
qualifications for confirmation. I would agree that it may be difficult 
to advise and consent to a nominee when a candidate refuses to answer 
questions on constitutional issues. A nominee must take care not to 
appear to prejudge an issue or render an advisory opinion.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer. 3. I believe that the purpose of the United States Senate 
in holding hearings on nominees for the federal bench is to give 
Senators an opportunity to consider the nominees and their 
qualifications so that the Senate can discharge its constitutional duty 
and evaluate the nominee's character, fitness and qualifications for 
the federal bench.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if the nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer. 4. It is possible for a Senator to advise and consent to a 
nominee who refers to precedent without explaining his or her legal 
analysis. In expressing adherence to precedent, a judicial nominee is 
expressing his commitment to following the analysis used by the Court 
in that case.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer. 5. It is up to the Honorable Senator to determine whether 
to advise and consent to a nominee should the nominee not give 
pertinent answers to constitutional questions. In making this 
determination, a Senator may have information about a nominee's 
qualifications for a federal judgeship such as his legal experience, 
his legal ability, his commitment to following precedent, and his 
ability to be fair, impartial, and respectful among other 
characteristics that the Senator considers important.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer. 6. Questions regarding the candidate's background and 
qualifications may be answered without the candidate prejudicing 
himself or herself. Other questions concerning his general knowledge of 
the law, his method of constitutional or statutory interpretation in an 
abstract sense, or understanding of applicable precedent in general, 
are unrelated to a particular case or real or hypothetical 
circumstances, and may be answered without a candidate prejudicing 
himself or herself. These examples, of course, are not intended to be 
exhaustive.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer. 7. No, there are no questions that are off limits for a 
Senator to ask. It is up to the Senate to set the parameters of its 
investigation. There are, however, some questions that a nominee cannot 
answer without prejudicing himself or herself.

    Question 8. If a U.S. District Court judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the judge may 
refuse to apply that precedent to the case before her?
    Answer. 8. A U.S. District Court judge or U.S. Court of Appeals 
judge is bound by Supreme Court precedent regardless of any personal 
views about the Supreme Court precedent.

    Question 9. If your were a Supreme Court Justice in 1856, what 
would you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. It would be very difficult to say what I would have held 
if I were a Supreme Court Justice in Dred Scott v. Sandford, without 
the available precedent, information, briefs, oral argument and 
consultation with my colleagues on the Court.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should the precedent be treated by the courts 
today?
    Answer 10. Dred Scott is no longer a precedent, inasmuch as it was 
overruled by the Thirteenth and Fourteenth Amendments to the 
Constitution. A court today would not be able to treat it as precedent.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 11. Dred Scott being precedent at that time, I would have 
been bound by it as well as by my oath.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. It would be very difficult to say what I would have held 
if I were a Supreme Court Justice in Plessy v. Ferguson, without the 
available precedent, information, briefs, oral argument and 
consultation with my colleagues on the Court.

    Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Plessy  is no longer a precedent. It should not be 
treated by the courts as precedent, having been overruled by Brown v. 
Board of Education, 347 U.S. 483 (1954).

    Question 14. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 14. It would be very difficult to say what I would have held 
if I were a Supreme Court Justice in Brown v. Board of Education, 
without the available precedent, information, briefs, oral argument and 
consultation with my colleagues on the Court.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown must be treated as mandatory precedent by the 
Courts.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. It would be very difficult to say what I would have held 
if I were a Supreme Court Justice in Roe v. Wade, without the available 
precedent, information, briefs, oral argument and consultation with my 
colleagues on the Court.

    Question 17. In Roe v. Wade, 410 U.S. 13 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Rehnquist dissent in that case?
    Answer 17. In any such matter coming before me, if I were so 
fortunate as to be confirmed, I would apply Roe v. Wade, as modified by 
Planned Parenthood v. Casey. Whether I agree or disagree with the legal 
reasoning of the holding or of the Justice Rehnquist dissent in the 
case would have no effect upon the discharge of my judicial function as 
a prospective federal judge.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no personal views that would interfer with my 
ability to follow precedent on the issue of abortion.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of death penalty?
    Answer 19. I have no personal views that would prevent me from 
following the precedent of the Supreme Court on the issue of the death 
penalty.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. Any personal views I might have on the Second Amendment 
to the Constitution would have no place in my judicial decision making.

    Question 21. In Planned Parenthood v. Casey (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life an unborn child?
    Answer 21. I have no personal views that would prevent me from 
following applicable precedents of the Supreme Court on this issue.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal views that would prevent me from 
following applicable precedents of the Supreme Court on this issue.

    Question 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. I have no personal views that would prevent me from 
following the Supreme Court precedent in this area. If am so fortunate 
as to be confirmed, I would follow Supreme Court precedent declaring 
the death penalty constitutional.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. If I were Supreme Court Justice, I would follow the 
guidance of Planned Parenthood v. Casey (505 U.S. 833 (1992)) in 
deciding whether to overrule precedent of the Court. In Casey the Court 
mentioned the following criteria for overruling a precedent: (1) 
``whether the rule [announced in the precedent] has proven to be 
intolerable simply in defying practical workability; (2) whether the 
rule is subject to a kind of reliance that would lend a special 
hardship to the consequences of overruling and add inequity to the cost 
of repudiation; (3) whether related principles of law have so far 
developed as to have left the old rule no more than a remnant of 
abandoned doctrine; and (4) whether facts have so changed, or come to 
be seen so differently, as to have robbed the old rule of significant 
application or justification.'' 505 U.S. at 854-855.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage on an act? And 
what weight do you give legislative intent?
    Answer 25. I would consider legislative intent and debates only if 
a statute were ambiguous and could not be construed on its plain words. 
I would also follow any available cases on point or similar statutes 
and/or the legislature's action or inaction after any pertinent 
judicial decisions concerning the issues the statute addresses. 
Referring to legislative history, I would look to committee reports and 
other sources of intent, but I would be wary of the statements of 
individual legislators which may not represent all of the views of the 
majority that passed the legislation.
                                 ______
                                 
                  League of United Latin American Citizens,
                                      Washington, DC, May 22, 2000.
Hon. Patrick Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate, Washington, 
        DC.
    Dear Senator Leahy: I am writing to ask you to support the 
nomination of attorney Jay A. Garcia-Gregory to the United States 
District Court for the District of Puerto Rico. The current judicial 
vacancy in the District Court of Puerto Rico is over five years old and 
has been classified by the Administrative Office of the United States 
Courts as an emergency vacancy, so expeditious and swift action is 
urgently needed.
    Mr. Garcia is a respected and highly qualified lawyer with over 25 
years of trial and appellate practice at the Puerto Rico and federal 
courts. His vast experience and strong academic credentials, as 
evidenced in his resume, makes him the ideal candidate to fill the 
judicial vacancy.
    Besides his knowledge and practical expertise, attorney Garcia is 
also a dependable and enthusiastic member of the Puerto Rico branch of 
the Federal Bar Association. He enjoys volunteer work and has been an 
active member of the Federal District Court Examination Committee. As a 
matter of fact, he has already received the unconditional endorsement 
of both, the Hispanic National Bar Association and the Federal Bar 
Association.
    As the President of the oldest Hispanic civil rights organization 
in the United States, I realize the importance of appointing lawyers 
who have the judicial temperament, knowledge and expertise to excel in 
the federal bench. Without any doubt, Mr. Garcia is one of those few 
lawyers and he has our wholehearted support.
    Senator, we strongly urge you to nominate Attorney Garcia, since we 
are confident that he will prove worthy of our support and yours.
            Sincerely,
                                             Rick Dovalina,
                                          LULAC National President.
                                 ______
                                 
                     Republican National Hispanic Assembly,
                                       Washington, DC, May 5, 2000.
Senator Orin Hatch,
Washington, DC.
    Dear Fellow Republican: As chairman of the only Hispanic 
organization officially recognized by the RNC, the Republican National 
Hispanic Assembly, I am writing to you in support of the nomination of 
Mr. Jay Garcia Gregory-Esq. to the position of District Judge for the 
District of Puerto Rico, U.S. Federal Court. Mr. Garcia Gregory is not 
only well qualified for the position, but also a very well known 
lawyer, respected by all in the legal community in Puerto Rico.
    There has been a vacancy in the Puerto Rico District Court for some 
time now and Mr. Garcia Gregory's appointment will not only correct the 
situation, but he will be the right choice to fill that vacancy. Mr. 
Garcia Gregory will go to the bench to do justice, not to rewrite the 
law. His values are consistent with our views and those of the 
conservative people of the United States of America.
    I urge you to consider positively Mr. Garcia Gregory's nomination 
and send it to the Senate floor for a final vote as soon as possible.
    Thank you for your time and consideration in this most urgent 
matter.
            Yours truly,
                                               Jose Rivera,
                                                 National Chairman.
                                 ______
                                 
                                               U.S. Senate,
                                      Washington, DC, May 10, 2000.
Dr. Miriam J. Ramirez de Ferrer,
President, Puerto Rico Foundation of Republican Women, San Juan, PR.
    Dear Miriam: Thank you for your letter in support of Jay A. Garcia-
Gregory to be a federal district court judge for Puerto Rico. As you 
know, his nomination is currently in committee, pending review. A 
hearing has not been scheduled. I have passed along your expression of 
support to Chairman Orrin Hatch's office. I will follow this nomination 
closely.
    Do not hesitate to contact me, or Stephen Higgins of my staff if 
you have additional comments.
            Sincerely,
                                                  John Kyl,
                                                      U.S. Senator.
    I hope all is going well for you, and hope we'll be able to visit 
in the near future.
                                 ______
                                 
                             Republican National Committee.
                                      San Juan, PR, April 26, 2000.
Hon. Orrin Hatch,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
    Dear Senator Hatch: It has come to our attention that a nomination 
hearing has been tentatively set for this week in the Senate Judiciary 
Committee that may include the nomination of Mr. Jay Garcia to the 
United States District Court for the District of Puerto Rico. Therefore 
on behalf of the Republican leadership of Puerto Rico we wish to add 
our strong endorsement and support for Mr. Garcia's nomination. He is a 
man of unquestionable integrity and will serve the court with dignity 
and honor. He has the broad base support of both Republicans and 
Democrats throughout the Island and especially in the legal community.
    We are prepared to give supporting documentation and give testimony 
as may be required to ensure Mr. Garcia's nomination. Again, we wish to 
add our strong endorsement and support for Mr. Gracia's nomination. As 
the record indicates, there is an urgent need for an immediate 
appointment due to the tremendous back log of pending cases. Your 
immediate review and intervention are appreciated.
            Sincerely,
                                                     Luis A. Ferre.
                                 ______
                                 
                         Hispanic National Bar Association,
                                       Washington, DC, May 9, 2000.
Hon. Orrin Hatch,
U.S. Senate, Senate Russell Office Building,
Washington, DC.
    Dear Senator Hatch: On behalf of the Hispanic National Bar 
Association and the United States Hispanic Chamber of Commerce, we are 
writing to express our support for the nomination of Jay A. Garcia-
Gregory, Esq. to the United States District Court for the District of 
Puerto Rico.
    Both the United States Hispanic Chamber of Commerce and the 
Hispanic National Bar Association are non-partisan organizations that 
have as one of their goals to promote the appointment of qualified 
Hispanic candidates to the Federal judiciary. As such, we recognize and 
commend the work that you have undertaken, as Chairman of the Senate 
Judiciary Committee, on behalf of the Hispanic community. In fact, as 
in the case of Judge Richard Paez, we have come to count on your 
support. While we are conscious of--and thankful for--your prior 
support to our organizations' goals, we must come to you again to seek 
your assistance with the nomination of a highly qualified Hispanic 
Attorney to the Federal bench.
    The Hispanic National Bar Association and the United States 
Hispanic Chamber of Commerce are pleased to recommend Jay Garcia-
Gregory, Esq. to fill an almost six-year vacancy in the United States 
District Court for the District of Puerto Rico. Mr. Garcia-Gregory has 
over 25 years of trial and appellate practice at the Federal level as 
well as sterling academic credentials. Mr. Garcia Gregory's work ethic 
has earned him a reputation for professional excellence and the trust 
and respect of the legal community in Puerto Rico.
    On behalf of both our organizations, we thank you again for your 
assistance and continued commitment to the advancement of qualified 
Hispanics to the Federal bench. In accordance with this commitment, we 
further urge you to expedite the nomination of Jay Garcia-Gregory to 
the United States District Court for the District of Puerto Rico, where 
a jurist of his caliber is desperately needed.
            Sincerely,
                                   George Herrera,
   President and Chief Executive Officer, U.S. Hispanic Chamber of 
                                                          Commerce.
                                   Alice M. Velazquez,
             National President, Hispanic National Bar Association.
                                 ______
                                 
                         Government of Puerto Rico,
                                    Office of the Governor,
                     La Fortaleza, San Juan, PR, February 14, 1997.
The President,
The White House,
Washington, DC.
    Dear Mr. President: One of the seven judgeships on the United 
States District Court for the District of Puerto Rico has been vacant 
ever since June 1, 1994. Taking into account both the Court's heavy 
docket and the intensity of Federal and local efforts in the crusade 
against crime and drugs, we earnestly recommend that all authorized 
judicial positions be filled without delay.
    In our estimation, the best available candidate for the 
aforementioned vacancy is an esteemed attorney by the name of Jay A. 
Garcia-Gregory. This gentleman has been a distinguished member of the 
Bar for many years. His credentials, as summarized in the attached 
resume, are impressive. His integrity is beyond reproach. He has 
extensive experience in Federal jurisprudence and is held in high 
regard by all of the Judges of Puerto Rico's U.S. District Court for 
his ability, as well as for his knowledge of the law.
    Given the constraints that the Congressional legislative calendar 
may impose on this and other appointments, we shall be most grateful if 
the Administration will expedite its consideration of Mr. Garcia-
Gregory's prospective nomination to the bench. To that end, your 
assistance would be very much appreciated by us both.
    Jay Garcia-Gregory has our full support and confidence for this 
important post. And, because Puerto Rico lacks representation in the 
U.S. Senate, we respectfully solicit that your Administration place a 
priority on judicial recommendations which, as in the present instance, 
are offered jointly by Puerto Rico's chief executive and by its sole 
elected representative in Congress. Thank you very much for your 
attention to this matter.
    With our warm salutations and kindest best wishes.
            Sincerely,
                                   Pedro Rossello,
                                           Governor of Puerto Rico.
                                   Carlos Romero-Barcelo,
                                  Member, House of Representatives.
                                 ______
                                 
                         Government of Puerto Rico,
                                  House of Representatives,
                                                       May 2, 2000.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Senate Russell 
        Office Building, Washington, DC.
    Dear Mr. Chairman: I am writing to you today on an issue that is of 
the utmost importance to us in Puerto Rico. As we were able to discuss 
while on your visit to my office, there is a very pressing need to fill 
the four-year old vacancy in the U.S. District Court for the District 
of Puerto Rico. Nonetheless, I am perfectly clear that the process 
needs to be as rigorous and conscientious as possible, in order to make 
sure that you confirm the most appropriate nominee to fill a lifetime 
position in our federal judiciary.
    Therefore, totally conscious of your grave responsibility, I want 
to utilize this opportunity to recommend, in the most respectful 
manner, the confirmation of Mr. Jay Garcia-Gregory as District Judge 
for the U.S. District Court for the District of Puerto Rico. I do so 
for all the possible reasons.
    Ever since the beginning of this opening in our District Court, Mr. 
Garcia-Gregory has been the only candidate that has received consensus 
support from both Republicans and Democrats in the Island. That is why 
many people are pleased, that on the third try, President Clinton 
decided to heed the advice of his friends in Puerto Rico, as to why Mr. 
Garcia-Gregory was definitely the right person for the position.
    As the Republican Speaker of the House of Representatives of Puerto 
Rico and highest ranking Republican elected official, I am totally 
pleased with the nomination and fully confident that Mr. Garcia-Gregory 
will turn out to be one of the better judges that our District Court 
has ever had. His qualifications speak for themselves.
    Mr. Garcia-Gregory has been a highly respected attorney in our 
Island for many years. His professional experience, first in the 
academia, then as a law clerk in the U.S. District Court and finally 
for over 25 years as practicing attorney allow him to stand out from 
among his peers (as publicly expressed by Chief Judge Hector Lafitte of 
our U.S. District Court for the District of Puerto Rico upon hearing of 
the nomination). Also, people, both within and outside the legal 
community, admire the quality of his work, his measured approach to 
issues and controversies, and the composure and politeness that 
distinguish his professional demeanor. That is why I am fully convinced 
that Mr. Garcia-Gregory has the judicial temperament to sit on the 
bench. More importantly though, I am relieved that Mr. Garcia-Gregory 
will have the opportunity to serve on our U.S. District Court, because 
I am certain that as a judge he will exercise the appropriate 
constraint that is required of our judiciary. He will definitely be a 
judge that deeply respects our Constitution and the Rule of Law, and 
not one who insists on viewing his position as one that allows him to 
create public policy.
    Finally, I can attest that Mr. Garcia-Gregory also stands out 
because of his personal and moral qualifications. His compassion and 
respect for human life have earned the respect of even those who may 
not share in his beliefs.
    I am totally totally convinced that Mr. Garcia-Gregory clearly 
surpasses all the standards that you may require for nominees to our 
Federal Judiciary. Therefore, I believe that he shall be allowed to 
serve as the next District Judge in the U.S. District Court for the 
District of Puerto Rico.
            Sincerely,
                                            Edison Misla-Aldarondo.
                                 ______
                                 
                       National Hispanic Leadership Agenda,
                                      Washington, DC, May 24, 2000.
    Dear Senator Hatch: On behalf of the National Hispanic Leadership 
Agenda (NHLA), I am writing to ask your support of Jay A Garcia-
Gregory's nomination to the United States District Court for the 
District of Puerto Rico. Mr. Garcia-Gregory is a distinguished member 
of the Puerto Rico Federal Bar with over twenty-five years of 
experience in trial and appellate practice. He has received broad 
support from the Hispanic community, and from the Federal Bar 
Association and Puerto Rico Government. Furthermore, he is fully 
supported by the Hispanic National Bar Association-Puerto Rico Chapter, 
which is comprised of members from all political parties on the Island. 
Not only would Garcia-Gregory's nomination be an asset to the federal 
bench, it would also resolve a 6-year judicial vacancy in the U.S. 
District Court for the District of Puerto Rico.
    Mr. Garcia-Gregory's impressive track record includes a number of 
distinguished and prestigious positions. He has voluntarily served on 
the Federal District Court Examination Committee and as an Instructor 
of the Federal Jurisdiction and Appellate Practice in the Bar Review 
Course sponsored by the Puerto Rico Federal Bar Association. Mr. 
Garcia-Gregory also serves as Chairman of the Federal District Court 
Admissions Committee and the Committee for the Review and Amendment of 
the District Court's Local Rules.
    On April 5, 2000, President Clinton nominated Mr. Jay A. Garcia-
Gregory, Esq. to fill the vacant judgeship in the U.S. District Court 
for the District of Puerto Rico, which has been classified as an 
``emergency vacancy'' by the administrative Office of the United States 
Courts. With a judicial vacancy since June 1994, there has been an 
increasing civil and criminal docket congestion in the District of 
Puerto Rico. It is imperative that a nomination to this vacant 
judgeship proceed to relieve this judicial emergency.
    In light of Garcia-Gregory's impeccable credentials and the 
judicial ``vacancy emergency'' in the District of Puerto Rico, we urge 
you to move Garcia-Gregory's nomination forward to the full Senate for 
a confirmation vote.
            Sincerely,
                                            Manuel Mirabal,
                                                             Chair.
                               __________

   Responses of Beverly B. Martin to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. It is not the proper role of courts to act to solve 
social problems. The United States Constitution establishes a system of 
separate powers, granting limited jurisdiction to federal courts to 
decide actual cases and controversies of parties with standing to bring 
the action. In our system of separation of powers, it is the province 
of the political branches of government to respond to social problems, 
and in that regard a legislature may express policy not only by taking 
action, but also by taking no action.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. The Supreme Court of the United States has upheld the 
constitutionality of the death penalty, and I have no personal 
objections to the death penalty which would cause me to be reluctant to 
apply the precedent of the Supreme Court in that regard.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. Mandatory minimum sentences have been held 
constitutional, and I would have no reluctance to impose or uphold 
mandatory minimum sentences if I were confirmed as a Federal District 
Court judge. During my tenure as a federal prosecutor, I have 
prosecuted under mandatory minimum criminal sentences.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. During my entire tenure as a Federal prosecutor, the 
Federal Sentencing Guidelines have governed Federal sentencing, so it 
is the only method of sentencing which I have known. For that reason, I 
am accustomed to and comfortable with the application of the Federal 
Sentencing Guidelines. Further, the Supreme Court of the United States 
has upheld the constitutionality of the Federal Sentencing Guidelines, 
and Federal District Court judges are therefore bound to apply them.
                                 ______
                                 

   Responses of Beverly B. Martin to Questions From Senator Ashcroft

    Question 1. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 1. The rights protected by the Constitution do not grow or 
shrink with changing historical circumstances; they are reflected in 
the plain and unchanging language of the document. Over time, however, 
those rights will necessarily require application to new subject 
matter, such as technological advances.

    Question 2. If a particular judge or court has a high rate of 
reversal on appeal, or by the Supreme Court, is that a problem? If it 
is, what can and should be done to remedy that problem?
    Answer 2. Although any judge or court may be found to have erred 
from time to time, it would certainly not be desirable to have a high 
rate of reversal on appeal, or by the Supreme Court. If a Federal 
District Court judge found that he or she had a high rate of reversal, 
every attempt should be made to remedy the problem by redoubling 
efforts to be thoroughly familiar with all applicable Supreme Court and 
Circuit Court precedent, and taking great care to apply it properly. 
Further, it would be necessary to conduct a thorough review of the 
reversals to determine the nature of the underlying problem and how it 
could be corrected.

    Question 3. Is ``substantive due process'' a legitimate 
constitutional doctrine?
    Answer 3. ``Substantive due process'' is a term used by 
Constitutional scholars to describe the practice of Courts relying on 
the due process clause of the Fourteenth Amendment to the U.S. 
Constitution to review not only the methods or procedures of government 
action, but the substance of those actions. Although I do not consider 
myself a constitutional scholar, those who are describe this doctrine 
as one that has enjoyed favor with courts from time to time during the 
history of this country. For example, the series of cases beginning 
with Lochner v. New York, 198 U.S. 45 (1905) demonstrate thinking on 
the part of the Supreme Court at that time, that the due process clause 
served as a protection for substantive and ``fundamental'' economic 
rights of citizens. In the recent case of Washington v. Glucksberg, 521 
U.S. 702 (1997), the Supreme Court recognized substantive due process 
as a doctrine which continues to be legitimate.
    If I were confirmed as a Federal District Court judge, it would be 
my duty to decide actual cases and controversies of parties with 
standing to bring a particular case before the court, rather than apply 
broad constitutional doctrines. further, it would be my duty to honor 
and apply the precedent of the United States Supreme Court and the 
Circuits Courts on any legal issue that came before me.

    Question 4. Is it appropriate for federal judges to recognize new 
``substantive due process'' rights? If yes, what should the guiding 
principles be?
    Answer 4. If I were confirmed as a Federal District Court judge, it 
would be my duty to apply the precedent of the Supreme Court of the 
United States and the Circuit Court with regard to any ``substantive 
due process'' rights, recognizing binding precedent. It would not be 
appropriate for me to recognize new rights for which there was no basis 
in precedent.

    Question 5. What is your understanding of the holding in United 
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to 
determine if a statute exceeded the power of Congress to enact under 
the Commmerce Clause?
    Answer 5. In United States v. Lopez, 514 U.S. 549 (1995), the 
Supreme Court of the United States invalidated the Gun-Free School 
Zones Act, which made it a federal criminal offense for any individual 
to knowingly possess a firearm within a school zone. The Court based 
its decision on a finding that Congress had exceeded its authority 
under the Commerce Clause in enacting the Gun-Free School Zone because 
possession of a gun in a local school zone was not economic activity 
that substantially affected interstate commerce.
    If confimed as a Federal District Court Judge, I would be bound to 
apply the test outlined by the Supreme Court in Lopez, as recently 
elaborated on in United States v. Morrison, 120 S. Ct. 1740 (2000). 
That test looks to whether the activity being regulated by a statute 
``substantially affected interstate commerce.'' For purposes of 
applying that test, it is only appropriate to aggregate intrastate 
incidences of any particular activity if it is economic in nature.

    Question 6. Do you think that there is tension between the Supreme 
Court's holdings in Romer v. Evans, 517 U.S. 620 (1996) and Bowers v. 
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile 
that tension? If there is not, how are they reconcilable?.
    Answer 6. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court 
struck down an amendment to the Colorado Constitution that prohibited 
all legislative, executive or judicial action designed to protect 
homosexual persons from discrimination. The Supreme Court held that the 
amendment violated the Equal Protection Clause of the United States 
Constitution because it imposed a ``broad and undifferentiated'' 
disability on a single named group, and it imposed this disability 
without a rational relationship to legitimate state interests.
    In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court 
upheld the Georgia statute which prohibited sodomy, rejecting arguments 
that the U.S. Constitution confers a fundamental right upon homosexuals 
to engage in sodomy. In so holding, the Supreme Court upheld the 
legislative authority of the State of Georgia to criminalize activity 
based upon ``notions of morality.''
    While these cases both deal with the issue of homosexual rights, 
they deal with very different issues. Therefore, there is no tension 
between the Supreme Court's holding in the two cases, and Romer does 
not change the fact that homosexuals are not a constitutionally 
protected class.

    Question 7. Is there a legislative classification that would fail 
rational basis review?
    Answer 7. Under a rational basis review, a classification in a 
statute bears a strong presumption of validity, and those attacking the 
rationality of a legislative classification have the burden to negate 
every conceivable basis which might support it. Question 6 raises the 
point that in Romer v. Evans, 517 U.S. 620 (1966), the Supreme Court 
invalidated the amendment to the Colorado Constitution on a rational 
relationship basis standard.

    Question 8. Is a state program that gives parents a set sum of 
money to be used by the parent to pay for tuition at any school they 
choose, public, private, religious or non-sectarian, constitutional?
    Answer 8. The Supreme Court of the United States has not ruled on 
the constitutionality of publicly funded tuition vouchers for parents 
to be used in a private, religious or non-sectarian school of their 
choice. However, the analysis of this question would look to the 
Establishment Clause in the First Amendment of the United States 
Constitution. Since 1971, the Court has evaluated these cases pursuant 
to the test it established in Lemon v. Kurtzman, 403 U.S. 602 (1971). 
Under this test, a court must consider (1) whether a law has a secular 
purpose, (2) whether it has the primary effect of advancing or 
inhibiting religion, and (3) whether it fosters an ``excessive 
entanglement'' of church and state.
    If I were confirmed as a Federal District Court judge, I would be 
bound to follow this and other precedent established by the Supreme 
Court and the Circuit Court with regard to the Establishment Clause of 
the First Amendment.

    Question 9. Please define judicial activism. Is Lochner v. New 
York, 198 U.S. 45 (1905) an example of judicial activism? Please 
identify three Supreme Court opinions that you believe are examples of 
judicial activism (not including Lochner if your answer to the prior 
question was yes.) Is Roe v. Wade, 410 U.S. 113 (1973) an example of 
judicial activism?
    Answer 9. Judicial activism has been defined as an approach on the 
part of a judge that falls into the realm of policy-making or intruding 
on the prerogative of the legislative or executive branches of 
government. This approach would contrast with a judge who confines his 
rulings to the actual case or controversy brought to the court by a 
party with standing to raise the issue.
    If I were confirmed as a Federal District Court judge, I would be 
duty bound to follow the precedent of the Supreme Court whether I 
personally agree with the Court's analysis in any particular case or 
not. For that reason, I believe it would not be appropriate for me to 
characterize precedent of the Supreme Court as ``activist''.

    Question 10. Do you believe that the view of the death penalty 
taken by Justices Brennan, Marshal and Blackman--that it is 
unconstitutional, despite clear constitutional text sanctioning it--is 
permissible view for a federal judge to hold?
    Answer 10. In Gregg v. Georgia, 428 U.S. 153 (1973), the Supreme 
Court of the United States upheld the constitutionality of the death 
penalty. Therefore it is not permissible for lower courts to hold 
otherwise.
                                 ______
                                 

   Responses of Beverly B. Martin of Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal court and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I 
personally disagree with such precedents.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. If I were confirmed as a Federal District Court judge I 
would be bound by Supreme Court and Circuit Court precedent. Even if I 
believed a court had erred in rendering a decision, and I would 
nevertheless apply that decision. If confirmed, I would be bound by the 
Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507 
(1997), and would abide by that ruling.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes, regardless of my personal feelings on these issues, 
I am committed to following precedent of higher courts on equal 
protection issues.

    Question 4. Do your have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. The Supreme Court of the United States upheld the 
constitutionality of the death penalty in Gregg v. Georgia, 428 U.S. 
153 (1973). I do not have any legal or moral beliefs which would 
prevent me from applying Supreme Court precedent with regard to the 
death penalty.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. As a federal prosecutor, I am generally familiar with the 
Antiterrorism and Effective Death Penalty Act of 1996, and Congress' 
attempts to cut down on delays between convictions of capital offenders 
and their executions. If I were confirmed as a Federal District Court 
judge, I would be bound to presume that statute constitutional (like 
any other Act passed by Congress), and apply it along with the 
applicable Supreme Court and Circuit Court authority on the subject. I 
believe that Federal Courts should dispose of capital cases, as all 
other cases, in a fair and expeditious manner.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. In reviewing the legal effect of a statute or 
constitutional provision, the most compelling authority is the plain 
language of the statute or provision. Statutes are presumed to be 
constitutional. A Federal District Court judge may legitimately use 
legal precedent from the Supreme Court of the United States and the 
Circuit Court to determine the legal effect of a statute or 
constitutional provision. In the event of a real ambiguity or lack of 
clarity in a statute, a judge may look to legislative history, however 
committee reports and remarks of individual legislators may be relied 
upon only with some caution.
    The United States Constitution establishes a system of separation 
of powers, with Article III bestowing limited jurisdiction to Federal 
Courts to decide actual cases and controversies brought before them. It 
is not the role of the judicial branch to entangle itself in policy 
issues, which are the domain of the political branches of our 
government.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's Interpretation'' of constitutional text, see William 
J. Brennan. The constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. Looking to the plain meaning of the text of the 
Constitution and the original intent of the Framers of the Constitution 
is a legitimate method of interpretation. Under the rules of 
construction, in interpreting the Constitution, one would first look to 
the plain language of the document. If confirmed as a Federal District 
Court judge, I would also be bound by any rulings from higher courts as 
to the existence or non-existence of particular constitutional rights.
    The approach of Justice Brennan--how he ``draw[s] meaning'' from 
the text of the Constitution, stating that'' * * * when Justices 
interpret the Constitution they speak for their community, not for 
themselves alone''--appears to be an approach that is not appropriate 
for a Federal District Court judge. If confirmed as a Federal District 
Court judge, my role would necessarily be more limited. The 
Constitution establishes a system of separate powers, granting limited 
jurisdiction to federal courts to decide actual cases and controversies 
of parties with standing to bring them. Determining and addressing the 
needs or desire of communities are policy-making which falls into the 
province of the political branches of government.
    The Constitution provides a method for amending the document in 
Article V. This method of amending the Constitution assigns the 
responsibility to Congress and State legislatures rather than to the 
judicial branch. Any right established by ratification of an Amendment 
under Article V would be a legitimate way to establish a new 
constitutional right.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. If confirmed as a Federal District Court judge, it would 
be my duty to treat any statute subject to challenge with the 
presumption that it is constitutional. If the challenge was not one of 
first impression, I would be bound by the ruling of the higher court on 
the subject.
    In a case of first impression, I would likewise begin with a 
presumption of constitutionality, and determines if the Supreme Court 
and the controlling Circuit Court had ruled on any analogous statutes. 
If so, I would apply the analysis used by the higher court in the 
analogous case. If not, I would examine the analysis of other Circuit 
Courts in dealing with the same or similar statutes for guidance is 
analyzing the statute.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the 
Supreme Court held that a Connecticut statute which outlawed the use of 
contraceptives unconstitutionally introduced upon the right of marital 
privacy. Justice Douglas, the author of the majority opinion, held that 
the guarantees of the Bill of Rights have penumbras, formed by the 
emanations from those guarantees that give them ``life and substance.'' 
The majority opined that guarantees in the First, Third, Fourth, Fifth 
and Ninth Amendments to the Constitution, each created zones of 
privacy, which, taken together, created a right to privacy which was 
violated by the Connecticut statute.
    In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme court upheld 
the dismissal of a suit brought by state probation officers against the 
State of Maine alleging a violation of the overtime provisions of the 
Fair Labor Standards Act. In that decision, Justice Kennedy speaking 
for the majority, held that the Eleventh Amendment to the U.S. 
Constitution bars lawsuits against States in State court. The Court 
held that ``sovereign immunity derives not from the Eleventh Amendment 
text but from the structure of the original Constitution itself.''With 
regard to the fidelity of these cases to the text and original intent 
of the Constitution, it can be said that both Griswold and Alden 
represent cases in which the Court found rights which were not in the 
text of the Constitution.
    Although the Due Process Clause of the Fourteenth Amendment is 
largely used in evaluating State Procedures, the Supreme Court has 
recognized that the Amendment also has a component that precludes 
States from enacting laws that infringe on substantive rights. The 
Griswold and Alden cases demonstrate that the Court has extended these 
substantive protections in the areas such as procreation, marriage, and 
bodily integrity, but has not, in more recent years, extended those 
substantive protections to the area of economic regulations.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with the Congress' 
power and on the federal government's power compared whit the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme 
Court upheld a federal statute that prevented individual farmers from 
growing more than a pre-determined amount of wheat. This legislation 
was upheld on the basis of Congress' power to regulate commerce 
pursuant to Article I of the Constitution, the argument being that 
overproduction of wheat by individual farmers, in the aggregate, could 
affect the interstate wheat market.
    In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court 
struck down the federal Gun-Free School Zones Act, which made it a 
crime to knowingly carry a firearm within a ``school zone.'' The Court 
found that the statute had no jurisdictional requirement that the gun 
had traveled in interstate commerce, and there had been few or no 
findings by Congress about the interstate effects of the criminal act. 
For these reasons, the Court decided there was insufficient link to 
interstate commerce to justify the statute.
    These cases demonstrate the range of views of the Supreme Court 
when considering legislation enacted pursuant to the Commerce Clause. 
The view expressed by the Court in Lopez is more restrictive of 
Congress' power, the byproduct of which may be more autonomy on the 
part of the states when legislating in these areas.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    E. Baker v. Carr, 369 U.S. 186 (1962).
    F. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. In United States v. Lopez, 514 U.S. 549 (1995), The 
Supreme Court struck down the federal Gun-Free School Zones Act, which 
made it a crime to knowingly carry a firearm within a ``school zone.'' 
The Court found that the statute has no jurisdictional requirement that 
the gun had traveled in interstate commerce, and there had been little 
or no findings by Congress about the interstate effects of the criminal 
act. For these reasons, the Court decided there was insufficient link 
to interstate commerce to justify the statute.
    In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court 
reviewed the interim provisions of the Brady Handgun Violence 
Prevention Act, which required State law enforcement officers to run 
background checks on prospective gun buyers and perform other related 
duties. The Court held that even an interim requirement that state law 
enforcement officials implement federal regulatory programs by 
legislation and executive action placed an unconstitutional obligation 
on state officers to execute federal laws.
    In Alden v. Maine, 119 S. Ct. 2240 (1999). The Supreme Court upheld 
the dismissal of a suit brought by state probation officers against the 
State of Maine alleging a violation of the overtime provisions of the 
Fair Labor Standards Act. In that decision. Justice Kennedy writing for 
the majority, held that the Eleventh Amendment to the U.S. Constitution 
bars lawsuits against States in state court. The Court held that this 
``sovereign immunity derives not from the Eleventh Amendment text but 
from the structure of the original Constitution itself.''
    Baker v. Carr, 369 U.S. 186 (1962) involved a suit brought by 
certain Tennessee voters who alleged that a state statute diluted their 
right to vote, and therefore deprived them of equal protection under 
the Fourteenth Amendment to theUnited States Constitution. The lower 
federal courts had dismissed the claims of the voters, holding that 
they did not have jurisdiction of the matter. The Supreme Court 
reversed the lower court holding, stating that because the voters were 
alleging the deprivation of any right or privilege secured by the U.S. 
Constitution, the Federal District Court should have original 
jurisdiction of the matter.
    In Shaw v. Reno, 509 U.S. 630 (1993), the Supreme Court faced 
another voting rights case, this one involving allegations that North 
Carolina's redistricting legislation reflected a constitutionally 
improper effort to segregate voters into separate districts on the 
basis of race. The Supreme Court found the claims of the voters were 
sufficient to state a claim upon which relief could be granted under 
the equal protection clause, and remanded the case to the Federal 
District Court for consideration of those claims.
    These cases demonstrate an increased emphasis by the Supreme Court 
of the United States on the autonomy and independence of the state 
systems as opposed to the federal government. Generally the Court has 
acted to curtail Congress' Article I ``commerce power''; relied more 
heavily on the tenth amendment as a limitation on Congress' power to 
enact legislation affecting the States; and strengthened the concept of 
State sovereign immunity as established by the Eleventh Amendment.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No, Federal District Courts do not have the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies. Traditionally the 
responsibility for running of schools, prisons and state agencies is 
vested in the executive branch of government, and therefore it is that 
branch, rather than the judicial branch, that has been equipped with 
the expertise to set rules for and oversee the administration of these 
institutions.

    Question 13. In ruling on the constitutionality of a statute, what 
weight should a court give to the fact that the challenged statute 
existed before and after the ratification of the constitutional 
provision at issue? Assume the court faces this issue as a matter of 
first impression.
    Answer 13. Under ordinary rules of construction, constitutional 
provisions take precedent over particular statutory provisions. 
However, when a statute has preexisted a constitutional provision, some 
weight should be given to the fact that the constitutional provision 
was passed with knowledge of the existing statute, leading to 
consideration of the argument that drafters of the constitutional 
provision intended for the new constitutional provision and the 
existing statute to coexist.
                                 ______
                                 

     Responses of Beverly B. Martin to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuse to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. Nominees for federal judgeships should be conversant with 
Constitutional issues and be prepared to respond to questions about 
Constitutional issues. However, it is a violation of judicial canons 
for judicial candidates to give advisory opinions or prejudge matters 
which they may be called upon to decide if confirmed. Therefore, there 
are certain questions that judicial candidates cannot appropriately 
answer, and confirmation should not be withheld if they abide by those 
canons.

    Question 2. Article II. Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses answer questions on 
Constitutional issues?
    Answer 2. Members of the United States Senate have a solemn 
responsibility to advise and consent to nominees for federal 
judgeships. If a candidate were to refuse to answer any and all 
questions regarding Constitutional issues, that would make the job of 
advice and consent very difficult. However, because the judicial canons 
prohibit judicial candidates from prejudging cases, issues or statutes 
that they may later be called to rule upon, there may be some questions 
that are not properly answered by the candidate. Advise and consent 
should not be withheld if questions are not answered for these reason.

    Question 3. What is the purpose of the United States in holding 
hearings on nominees for the federal bench?
    Answer 3. Hearings are held on judicial nominees in order to 
facilitate the Senate's responsibility to advise and consent on their 
nominations.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if the nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer 4. Yes, where a judicial nominee demonstrates an 
understanding of and respect for the responsibilities of an Article III 
judge, as well as a dedication to the work the position entails, it is 
possible for a Senator to advise and consent to a nominee, even if the 
nominee refers to precedent without explaining his or her legal 
analysis. Indeed, where binding precedent exists, precedent and 
analysis in the controlling case[s] are applicable to the advice and 
consent process.

    Question 5. How can I as a Senator advise and consent to a nominee 
if nominee simply refers to precedent without explaining his or her 
legal analysis?
    Answer 5. A Senator can advise and consent to judicial nominees, by 
satisfying himself that any given judicial nominee is dedicated to 
properly carrying out the role of an Article III judge. Where binding 
precedent exists, precedent and analysis in the controlling case[s] are 
applicable to the advice and consent process.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. The Judicial Canons do not permit a judicial candidate to 
issue advisory opinions or prejudge issues or statutes that they may, 
in the future, be called upon to consider. However, questions designed 
to determine a candidate's background, work ethic, knowledge of the 
law, knowledge of existing precedent, temperament, fairness, and 
commitment to properly carrying out the role of an Article III judge 
are all legitimate and appropriate inquiries.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No, a Senator has the solemn responsibility to advise and 
consent as to judicial nominees, and should ask any question he feels 
will assist him in carrying out that duty.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. None that I am aware of.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. At the time of the Dred Scott decision, I was not privy 
to the arguments made to the Court, the briefs submitted, the record in 
the case, nor the positions of those who would have been my colleagues 
on the Court. Therefore, I cannot speculate as to what I might have 
done at that time.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 10. The Dred Scott decision was superseded by the Thirteenth 
and Fourteenth Amendments to the Constitution, and therefore cannot be 
relied upon as precedent by courts today.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 11. Yes, as a judge in 1857, I would have been bound by my 
oath and mandated to follow the precedent of Dred Scott v. Sandford, 60 
U.S. (19 How.) 393 (1856).

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. At the time of Plessy v. Ferguson, 163 U.S. 539 (1896), 
I was not privy to the arguments made to the Court, the briefs 
submitted, the record in the case, nor the positions of those who would 
have been my colleagues on the Court. Therefore, I cannot speculate as 
to what I might have done at that time.

    Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Plessy v. Ferguson, 163 U.S. 539 (1896) was overruled by 
the Supreme Court ruling in Brown v. Board of Education, 347 U.S. 483 
(1954), and therefore cannot be relied upon as precedent by lower 
courts.

    Question 14. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 14. At the time of the Brown v. Board of Education, 347 U.S. 
438 (1954), I was not privy to the arguments made to the Court, the 
briefs submitted, the record in the case, nor the positions of those 
who would have been my colleagues on the Court. Therefore, I cannot 
speculate as to what I might have done at that time.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown v. Board of Education, 347 U.S. 483 (1954) 
continues to be the law of the land, and therefore must be relied upon 
as precedent by lower courts.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. At the time of Roe v. Wade, 410 U.S. 113 (1973), I was 
not privy to the arguments made to the Court, the briefs submitted, the 
record in the case, nor the positions of those who would have been my 
colleagues on the Court. Therefore, I cannot speculate as to what I 
would have done at that time.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Renquist dissent in that case?
    Answer 17. I am a nominee to be a Federal District Court judge, and 
if confirmed I would be bound by the Supreme Court's ruling in Roe v. 
Wade, 410 U.S. 113 (1973) as modified by the Court's more recent ruling 
in Planned Parenthood v. Casey, 505 U.S. 833 (1992).

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no personal view on the subject of abortion that 
would prohibit me from following Supreme Court rulings on the issue of 
abortion.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. I have no personal view on the subject of the death 
penalty that would prohibit me from following Supreme Court rulings on 
the issue of the death penalty.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no personal view on the issue of the Second 
Amendment to the Constitution that would prohibit me from following the 
Supreme Court rulings on the issue on the Second Amendment.

    Question 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. I have no personal view regarding the right to privacy 
that would prohibit me from following the Supreme Court's precedent in 
Planned Parenthood v. Casey, 505 U.S. 833 (1992), or other controlling 
precedent on the right to privacy.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal view regarding abortion that would 
prevent me from following Supreme Court precedent in that regard.

    Question 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. In Gregg v. Georgia, 428 U.S. 153 (1973), the Supreme 
Court of the United States upheld the constitutionality of the death 
penalty.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. In the Supreme Court decision of Planned Parenthood v. 
Casey, 505 U.S. 833, (1992), the Court set forth guidance for the 
approach to be used when overruling precedent. The Court stated that 
when reexamining a prior holding, they make a series of ``prudential 
and pragmatic'' considerations. One of the questions posed by the 
Court, for example, was whether a rule espoused in a previous case has 
proven to be ``intolerable simply in defying practical workability.'' 
If I were a Supreme Court Justice, I would be bound by this precedent.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. The interpretation of a statute requires looking first 
to the plain language of the statute as passed, as this is the greatest 
evidence of legislative intent. A Federal District Court judge must 
look to legal precedent from the Supreme Court of the United States and 
the Circuit Court for guidance in the application of statutes. In the 
event of a real ambiguity or lack of clarity in a statute, legislative 
intent can be considered. However, the remarks of individual 
legislators or the testimony of individual elected officials are not as 
reliable as committee reports, and both must be relied upon with some 
caution.
                                 ______
                                 

     Response of Laura Taylor Swain to Questions From Senator Hatch

    Question 1. In one of your writings, you state that there has been 
a ``backlash'' against affirmative action programs, and that 
affirmative action ``program have opened doors for people of color and 
women, by permitting race and gender to be weighed in admission and 
hiring decisions in much the same way that factors such as family or 
social connections, geographical origin and sports talent (many of 
which, by reinforcing existing affinities, tend to preserve existing 
racial and cultural demographic patterns) have long been considered in 
`merit-based' decision making. If `merit' in the form of academic 
achievement is to be the paramount criterion, we will have to do more 
as a society to prepare and support members of minority communities on 
the road to achievement.'' Laura Taylor Swain, ``Thoughts on the LSAC 
Bar Passage Study--Good News and Good News'', 67 The Bar Examiner 4, 17 
(Nov. 1998). In addition, you state that ``the elimination of 
affirmative action criteria from admissions in certain public 
universities has already made a striking, negative difference in the 
diversity of their more selective campuses.'' What do you think we can 
do as a society to ``support members of minority communities on the 
road to achievement''? In your view, does government have a compelling 
interest in promoting diversity?
    Answer 1. The article identifies several of the types of actions 
that can be undertaken by private citizens to assist minority 
communities and individuals, including mentoring programs, financial 
support of quality educational programs for all members of our society, 
and participation in diverse educational communities. With respect to 
government action, the Supreme Court has made clear that government 
classifications based on race are subject to strict scrutiny. Adarand 
Constructors, Inc. v. Pena, 515 U.S. 200, 225-26 (1995). The United 
States Court of Appeals for the Second Circuit has indicated that 
Adarand, which involved a racially based set-aside in contracting, 
requires the application of strict scrutiny to all government 
classifications based on race, including classifications in the area of 
education. Brewer v. West Irondequiot Central School Dist., No. 99-
7186, 2000 WL 641052 (2d Cir. May 11, 2000). The United States Court of 
Appeals for the Fifth Circuit has held that the goal of promoting 
diversity does not constitute a compelling interest (see Hopwood v. 
Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1966)); the 
Second Circuit has not yet addressed that issue. Strict scrutiny is a 
very stringent test. The question of whether promoting diversity 
constitutes a ``compelling'' governmental interest is one that, should 
I be confirmed as a United States District Judge and the issue 
presented to me in the form of a justiciable case or controversy, I 
would determine in accordance with the applicable precedents 
established by the Supreme Court of the United States and the United 
States Court of Appeals for the Second Circuit.
                                 ______
                                 

   Responses of Laura Taylor Swain to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Federal courts, as adjudicative bodies of limited 
jurisdication, should not perform any policy-making functions, 
including when the legislature has not acted on a social problem. A 
legislature may engage in policymaking by acting, or by declining to 
act, on a matter.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. No, I have no personal objections to the death penalty 
that would cause me to be reluctant to impose or uphold a death 
sentence.

    Question 3. What is your view of mandatory criminal sentences, and 
would you have any reluctance to impose or uphold them as a Federal 
judge?
    Answer 3. Federal criminal law, as established by Congress, 
includes certain mandatory minimum sentencing provisions, I would 
sentence individuals in accordance with the requirements of law.

    Question 4. As you are well aware, the setencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. The Guidelines are part of the Congressionally-
established Federal criminal justice system and reflect the balance 
struck by Congress between consistency and flexibility in sentencing. 
The Guidelines have been held Constitutional. I would sentence 
individuals in accordance with the Guidelines

    Question 5. In reviewing a study showing that bar exam passage 
rates are lower for minorities than for whites, you wrote: ``If `merit' 
in the form of academic achievement is to be the paramount criterion, 
we will have to do more as a society to prepare and support members of 
minority communities on the road to achievement.'' What specific steps 
should society take in the regard?
    Answer 5. The article identifies several of the types of actions 
that can be understaken by private citizens to assist minority 
communities and individuals, including mentoring programs, financial 
support of quality educational programs for all members of our society, 
and participation in diverse educational communities. With respect to 
government action, the Supreme Court has made clear that government 
classifications based on race are subject to strict scruinty, Adarand 
Construction, Inc. v. Pena, 515 U.S. 200, 225-26 (1995). The United 
States Court of Appeals for the Second Circuit has indicated that 
Adarand which involved a racially based set-aside in contracting, 
requires the application of strict scruinty to all government 
classifications based on race, including classifications in the area of 
education, Brewer v. West Inrondequiot Central School Dis., No. 99-
7186, 2000 WL 641052 (2d Cir. May 11, 2000).

    Question 6. In one speech, you stated: ``The Supreme Court's recent 
states' rights decisions particularly in the sovereign immunity area, 
change radically settled assumptions regarding private civil litigation 
as a means of enforcing federally-recognized rights, including in the 
discrimination area.'' To which radically-settled assumptions were you 
referring, and how have they been changed?
    Answer 6. The sentence was perhaps structured awkwardly--the word 
``radically'' was intended to modify the word ``change'' rather than 
the term ``settled assumptions.'' I was alluding in that passage to the 
change wrought by the decision in Kimel v. Florida Board of Regents. 
120 S. Ct. 631 (2000), which struck down the private civil action 
provisions of the Age Discrimination in Employment Act insofar as they 
apply to States, holding that those provisions were not ``appropriate 
[remedial] legislation'' within the meaning of Section five of the 
Fourteenth Amendment to the Constitution and thus did not constitute a 
valid abrogation of the sovereign immunity of the State. Congress has 
chosen, in a number of areas, to provide for private civil litigation 
as a principal vehicle for vindication of rights provided for under 
Federal statutes, and Kimel may raise questions about the visability of 
other private civil action provisions. That is what I meant by 
``change[d] radically settled assumptions.'' If I was so fortunate as 
to be confirmed, I would apply Kimel and any subsequent decisions to 
applicable cases without any hesitation.
                                 ______
                                 

   Responses of Laura Taylor Swain to Questions From Senator Ashcroft

    Question 1. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 1. I do not believe that the rights protected by the 
Constitution grow or shrink with changing historical circumstances. 
During the course of our history, the Constitution has been amended to 
provide for rights in addition to those set forth in the Bill of 
Rights. Also, such historical developments as changes in technology 
(the invention of the telephone, for example) have required the Supreme 
Court to apply the language of the Constitution in new settings.

    Question 2. If a particular judge or court has a high rate of 
reversal on appeal, or by the Supreme Court, is that a problem? If it 
is, what can and should be done to remedy that problem?
    Answer 2. A high rate of reversal is not desirable. Judges should 
always do their best to determine accurately the relevant facts and 
apply governing precedent to the legal questions properly raised before 
them. Consistency among the levels of the judiciary makes for clarity 
in the law and helps to promote public confidence in the judiciary. If 
a judge were to have a high reversal rate, it would be appropriate for 
that judge to study carefully the reversals, discern any patterns, and 
seek to correct any factors leading to repeated errors.

    Question 3. Is ``substantive due process'' a legitimate 
constitutional doctrine?
    Answer 3. The Supreme Court has recognized that the notion of 
``substantive due process'' has been narrowed over time. However, the 
doctrine has survived in some Supreme Court decisions. For example, in 
Washington v. Glucksberg, 521 U.S. 702 (1997), in an opinion by Chief 
Justice Rehnquist, the Supreme Court upheld a State ban on assisted 
suicide and noted that ``substantive due process'' has been applied in 
a ``long line of cases'' and continues to be part of the Supreme 
Court's jurisprudence. The Chief Justice emphasized that the Court must 
take great care in applying this Constitutional doctrine so as not to 
intrude on the democratic process. Whatever the label, I would, if 
confirmed, apply the precedents established by the higher courts.

    Question 4. Is it appropriate for federal judges to recognize new 
``substantive due process'' rights? If yes, what should the guiding 
principles be?
    Answer 4. No. It is not appropriate for lower federal court judges 
to create new ``substantive due process'' rights. If I were confirmed 
as a United States District Judge, I would apply the precedents 
established by the higher courts.

    Question 5. What is your understanding of the holding in United 
States v. Lopez, 514 U.S. 549 (1995)? What test would you apply to 
determine if a statute exceeded the power of Congress to enact under 
the Commerce Clause?
    Answer 5. In Lopez, the Court held that the Gun-Free School Zones 
Act of 1990 regulated conduct that did not substantially affect 
interstate commerce, and that the legislation thus exceeded 
Congressional authority to regulate commerce among the several states 
under Article I, Section 8 of the Constitution. The Court observed that 
the Commerce Clause permits Congress to regulate the use of the 
channels of commerce, instrumentalities of interstate commerce or 
persons or things in interstate commerce, and activities having a 
substantial relation to interstate commerce. Were I to be confirmed as 
a United States District Judge, I would apply the relevant tests as 
articulated by the Supreme Court or by the Second Circuit based on 
Supreme Court precedent.

    Question 6. Do you think that there is tension between the Supreme 
Court's holdings in Romer v. Evans, 517 U.S. 620 (1996) and Bowers v. 
Hardwick, 478 U.S. 186 (1986)? If there is, how would you reconcile 
that tension? If not, how are they reconcilable?
    Answer 6. Romer and Bowers are reconcilable. In both cases, the 
Supreme Court held that the rational basis standard is the appropriate 
test for evaluating alleged sexual orientation-based discrimination. In 
the Bowers case, the issue of the scope of the States' traditional 
police powers was presented to the Court in the context of the question 
of whether homosexuals have a fundamental Constitutional right to 
engage in a particular type of sexual conduct in a particular setting; 
Romer involved an equal-protection clause challenge to a broad State 
Constitutional provision that the Court read as imposing civil 
disabilities based on status. If, as a United States District Judge, I 
were called upon to construe or apply these decisions, I would do so 
with careful attention to their holdings, any subsequent governing 
decisions, and to the circumstances presented in the case before me.

    Question 7. Is there a legislative classification that would fail 
rational basis review?
    Answer 7. That is a question that cannot be answered in the 
abstract. The Supreme Court's articulations of the rational basis 
standard admit of the possibility that classifications could fail the 
rational basis test. If I were confirmed as a United States District 
Judge and presented with a case in which application of the rational 
basis standard were appropriate, I would apply the standard in 
accordance with the deference required by the applicable precedents of 
the higher courts.

    Question 8. Is a state program that gives parents a set sum of 
money to be used by the parent to pay for tuition at any school they 
choose, public, private, religious or non-sectarian, constitutional?
    Answer 8. If, as a United States District Judge, I were presented 
with a case that raised such issues, I would follow the precedents 
established by the higher courts, with careful attention to the 
circumstances presented by the particular case or controversy. The 
Supreme Court has not yet decided the constitutionality of school 
voucher programs permitting parents to use the vouchers to pay for 
tuition at schools of their choice. However, the Supreme Court has 
indicated that in cases involving challenges under the Establishment 
Clause, the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), 
is to be applied. Under that test, the court is to examine whether the 
law has a secular purpose, whether it has a primary effect of advancing 
religion, and whether it fosters excessive entanglement of church and 
state. The Supreme Court clarified that test in Agostini v. Felton, 521 
U.S. 203 (1997). As a sitting judge, and as a candidate for appointment 
to the Federal District Court bench, it would be inappropriate for me 
further to address the constitutionality, under the First Amendment or 
any other constitutional provisions, of such a program.

    Question 9. Please define judicial activism. Is Lochner v. New 
York, 198 U.S. 45 (1905), an example of judicial activism? Please 
identify three Supreme Court opinions that you believe are examples of 
judicial activism (not including Lochner if your answer to the prior 
question was yes). Is Roe v. Wade, 410 U.S. 113 (1973), an example of 
judicial activism?
    Answer 9. ``Judicial activism'' has been defined as a tendency of 
judges to make decisions on issues that are not properly within the 
scope of their authority. I have not had occasion to analyze decisions 
of the Supreme Court as to whether they constitute ``judicial 
activism.'' Rather, as a lawyer, as a Bankruptcy Judge and, if 
confirmed, as a United States District Judge, it has been and would 
remain my duty to ascertain the holdings of the Supreme Court and 
respect and apply the Supreme Court's decisions faithfully and fully.

    Question 10. Do you believe that the view of the death penalty 
taken by Justices Brennan, Marshall and Blackmum--that it is 
unconstitutional, despite clear constitutional text sanctioning it--is 
a permissible view for a federal judge to hold?
    Answer 10. The Supreme Court has clearly rejected the view in Gregg 
v. Georgia, 428 U.S. 153 (1976). I do not believe it would be 
permissible under governing precedent for a federal judge to hold that 
the death penalty is unconstitutional.
                                 ______
                                 

   Responses of Laura Taylor Swain to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes. I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I were 
personally to disagree with such precedents.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment on the 
merits? Take, for example, the Supreme Court's recent decision in City 
of Boerne v. Flores, 521 U.S. 507 (1997), where the Court struck down 
the Religious Freedom Restoration Act.
    Answer 2. Were I to be confirmed as a United States District Judge, 
I would be bound in all circumstances to rule in accordance with 
applicable Supreme Court and Second Circuit precedent, including City 
of Boerne v. Flores, regardless of any personal views about whether a 
higher court had seriously erred in rendering a decision. I have no 
personal views that would impede my ability to adhere to precedent.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes, I am committed to following precedent of higher 
courts on equal protection issues, regardless of any personal feelings 
I may have on such issues.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No. I have no legal or moral beliefs which would inhibit 
or prevent me from imposing or upholding a death sentence in any 
criminal case that might come before me as a federal judge.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Yes. I believe that the federal courts should deal with 
all matters, including death penalty cases and collateral attacks on 
sentences, fairly and expeditiously, consistent with applicable law. To 
the extent delays arise from statutorily-mandated or administrative 
procedures put in place by the legislative or executive branches of 
government, courts should seek to discharge their duties as efficiently 
as possible within the bounds of the law.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of Article III judicial power.
    Answer 6. The authorities a judge may consider include the plain 
language of the statute or constitutional provision, judicial 
interpretations of higher courts whose authority is binding on the 
court, persuasive interpretations by other courts if there is no such 
binding authority, legislative history (particularly such history as 
reflects consensus views as to the intended effect of language actually 
adopted) if the statute or constitutional provision is ambiguous, and 
precedent concerning the construction of statutes and constitutional 
provisions. Use of all of the foregoing authorities in the context of 
the resolution of cases and controversies is consistent with the 
limited judicial power under Article III of the Constitution.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, ``The Constitution of the United States: Contemporary 
Ratification,'' Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. Interpretation of the plain meaning of existing 
Constitutional provisions, and discernment of the original intent of 
the Framers of the Constitution, have long been recognized by the 
Supreme Court as legitimate tools in the recognition of Constitutional 
rights. Proper ratification of an amendment to the Constitution is the 
authorized vehicle for changes in the Constitution; establishment of a 
new right through ratification is clearly a legitimate means of 
establishing such a right. Ratification of an amendment is also the 
surest sign of popular intent to be bound to the recognition of such a 
right. Discernment of the ``community's interpretation'' is a rubric 
that may have been unique to Justice Brennan and would not be 
legitimate as an approach for a lower federal court judge.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. In all matters, I would examine the plain language of the 
statute and relevant constitutional provisions to ensure that, at a 
minimum, I am aware of the particulars of the language being 
interpreted and applied. Where a matter was not one of first 
impression, my analytical path would be defined by the analyses and 
conclusions reached by the higher courts. In those rare matters of 
first impression, the authorities I would consider would include, in 
addition to the presumption of constitutionality and the plain meaning 
of the statute, available judicial analyses in directly relevant or 
analogous areas, legislative history if the provision were ambiguous, 
available evidence of original legislative intent, and analogous 
statutory provisions and any rulings as to their constitutionality.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the 
Supreme Court held that a statute restricting the use of contraceptives 
violated what the Court called a ``right of marital privacy'' that the 
Court found ``emanated'' from the ``penumbras'' of rights expressly 
guaranteed by the Constitution. In Griswold, the Supreme Court 
exercised the judicial power to recognize a right that the Court 
considered to be implied by those specifically enumerated in the 
Constitution, and circumscribed state regulation in the area of 
contraception.
    The opinion of the Court in Alden v. Maine, 119 S. Ct. 2240 (1999), 
focuses chiefly on historical concepts of sovereignty, the text of the 
Constitution, political theory, historical legal antecedents to the 
Constitution, the circumstances under which the Eleventh Amendment to 
the Constitution was adopted, the text of the Eleventh 
Amendment,evidence of original intent, and the history of the type of 
statutory provision being challenged. In Alden, the Supreme Court 
concluded that Congress could not, in the absence of state 
acquiescence, authorize private suits against state entities as a means 
of enforcing standards established by the federal government in 
employment relationships, a holding that restricted the powers of the 
federal government with respect to enforcement of some federal 
statutes.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress' power 
and on the federal government's power compared with the power of state 
governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. Both cases concerned the import of the grant of 
authority to Congress to regulate ``Commerce * * * among the several 
States'' in Article I, Section 8 of the Constitution. The analysis 
articulated in the opinion of the Court in Wickard did not examine 
directly original intent focusing, rather, on prior Supreme Court 
jurisprudence in the Commerce Clause area both before and after 
Congress began to exercise affirmatively its powers under that Clause. 
Although the opinion does not parse the specific language of the 
Clause, its focus on the interstate implications of the regulation of 
consumption suggests that the text was the object of the Court's 
concern. The opinion of the Court in Lopez focused in large part on 
discernment of the interpretive standards established by prior Supreme 
Court cases, specifically on the issues of the type of effect on 
commerce required for Commerce Clause regulation. Again, the focus was 
clearly on whether the regulation at issue fit within the 
Constitutional grant of authority. Both cases demonstrate the Supreme 
Court's view that the interpretation of the scope of Constitutional 
grants of authority is, in the last instance, a matter for the Supreme 
Court. Each reflects the Supreme Court's ongoing effort to define in a 
manner consistent with the Federal structure of our government and the 
limited powers of the Federal government the boundary between Federal 
and State authority.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. Recognition of the limitations on Federal government 
power and the powers reserved to the States ensures the preservation of 
our dual system of sovereignty. The Constitution guarantees certain 
rights and also limits the areas in which the Federal government 
(including Federal courts) can act, thus leaving the governance of many 
areas of life to the States.
    In United States v. Lopez, the Supreme Court held that the Gun-Free 
School Zones Act of 1990 exceeded Congress' regulatory authority under 
the Commerce Clause because the possession of handguns in 
Congressionally-defined school zones was not shown to have a 
substantial effect on interstate commerce.
    Printz v. United States holds that the Congress lacks power to 
require non-consenting state officials to participate in the 
administration of federal regulatory functions. Thus, the Federal 
government could not, as part of an interim background check regime, 
require that state law enforcement officials perform certain functions.
    Baker v. Carr recognizes the limited power of the Federal courts to 
review state political apportionment decisions for conformity with the 
Equal Protection guarantees of the Fourteenth Amendment to the 
Constitution, notwithstanding nonjusticiability of issues relating to 
the Constitutional guarantee of a republican form of government. Shaw 
v. Reno deals with apportionment as well, holding that an allegation of 
racial gerrymandering violative of the Fourteenth Amendment states a 
justiciable claim under the Equal Protection Clause and requires the 
application of the strict scrutiny standard.
    In Alden v. Maine, the Supreme Court held that Congress lacked 
power under the Commerce Clause (Article I, Section 8 of the 
Constitution) to subject unconsenting states to private civil damages 
lawsuits alleging violations of Federal wage and hours laws.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No Courts are not executive or administrative bodies, 
and lack substantive expertise in the management of executive branch 
functions.

    Question 13. In ruling on the constitutionality of a statue, what 
weight should a court give to the fact that the challenged statute 
existed before and after the ratification of the constitutional 
provision at issue? Assume the court faces this issue as a matter of 
first impression.
    Answer 13. If such a matter is not one of first impression, a court 
should follow applicable precedent. In a matter of first impression, 
the fact that a challenged statute predates ratification of the 
constitutional provision and was not explicitly repealed thereafter is 
a relevant factor in the analysis of whether the constitutional 
provision at issue was intended to abrogate or supersede the statute. 
The treatment of the statute after adoption of the constitutional 
provision (including whether it was amended to reflect the 
constitutional provision, and whether Congress and/or the states that 
ratified the amendment continued to apply it following ratification) 
should also be considered. Other important sources of authority in the 
determination of issues of first impression are the plain language of 
the statute and relevant constitutional provisions, the presumption of 
constitutionality, available judicial analyses in directly relevant or 
analogous areas, evidence of original legislative intent, and analogous 
statutory provisions and any rulings as to their constitutionality.
                                 ______
                                 

    Responses of Laura Taylor Swain to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. Among the limitations imposed by the Constitution on the 
exercise of the Federal judicial power is the Article III requirement 
that the judiciary act only in the context of particular cases and 
controversies. It is essential to the integrity of the system and to 
public confidence in the judiciary that those coming before the courts 
perceive that they will receive a fair hearing, and that the judge's 
decision will be based on appropriate analysis of the legal and factual 
issues raised in the particular case rather than the judge's 
preconceived notions or feelings as to what the law should be. Judicial 
candidates and sitting judges should therefore avoid the appearance, as 
well as the fact, of prejudging issues that may come before them. This 
Article III constraint, which affects exercise of the Article II 
appointment power by both the Executive and the Legislative branches, 
necessarily places the focus of the appointment process on a 
candidate's analytical methods (including the recognition and use of 
precedents in interpreting the law), integrity and record rather than 
general personal views on particular issues of law or social policy. A 
nominee who demonstrates appropriate qualifications in these areas 
should, in my view, be confirmed notwithstanding the nominee's 
inability to discuss personal views or likely outcomes on particular 
Constitutional issues. Of course, it is for a Senator to determine, as 
he or she sees fit, whether or not a nominee should be confirmed.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidates refuses to answer questions on 
Constitutional issues?
    Answer 2. I would certainly feel the weight of the tensions 
discussed in the preceding response were I called upon to participate 
in the appointment process. Respect for the Constitutional plan and the 
availability of other relevant information about nominees would, I 
think, enable me to overcome the difficulty and exercise meaningful the 
responsibility to ``advise and consent'' notwithstanding a nominee's 
inability to discuss personal views or likely outcomes on particular 
Constitutional issues.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. I have never had the honor of discussing with any Senator 
his or her view of the purpose of such hearings. My understanding and 
expectation, based on my own experience and public records concerning 
the process, is that it is an opportunity for the Senate to assess the 
qualifications of nominees, including the nature and quality of their 
thought processes, their personal presence and demeanor, their standing 
in the community, their understanding of the roles they would perform 
in the positions to which they have been nominated, their understanding 
that rulings must be based on law rather than personal views, and other 
factors deemed relevant by the Senate.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if a nominee simply refers to precedent without explaining his 
or her legal analysis?
    Answer 4. Yes, recognition of the role of precedent is a 
fundamental element in the performance of the judicial function; the 
application of particular precedents is Constitutionally confined to 
the case and controversy context. A statement by a nominee of his or 
her commitment to adhere to a particular precedent confirms the 
nominee's acceptance of the legal analysis incorporated in the 
precedent and commitment to follow that analysis. A nominee's 
analytical method with respect to particular situations will likely be 
illustrated by his or her professional record and, in the case of those 
who have previously served as judges, opinions.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. The Senate's respect for and knowledge of the 
Constitutional framework, including the need to protect the public 
perception of the fairness and impartiality of the judiciary, and its 
careful attention to nominees' records and personal and professional 
qualities will, I am certain continue to enable it to perform well this 
important Constitutional function.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. A Senator can, of course, ask any questions he or she 
deems appropriate. I do not think that a candidate would prejudice him 
or herself by responding to questions focusing on issues such as his or 
her qualifications, thought processes, understanding of the role he or 
she would perform in the position to which the candidate has been 
nominated, and the candidate's understanding that rulings must be based 
on law rather than personal views.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No. There are no questions that are off limits for a 
Senator to ask.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
Judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. No. Lower court judges are required to rule in accordance 
with applicable Supreme Court precedent.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. It is impossible for me to state how I would have held 
had I been a Justice in 1856. I must presume that the decision of each 
Justice in that case was based on a careful and comprehensive review of 
the Constitutional provisions at issue and precedent as then in 
existence, the briefs and arguments submitted, detailed knowledge of 
the particular facts presented, and careful consultation among the 
members of the Court.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 10. It is no longer valid precedent, having effectively been 
overruled by the Thirteenth and Fourteenth Amendment to the 
Constitution.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 11. Yes. I would have been bound by my Oath and would have 
been mandated to follow the binding precedent of Dred Scott v. 
Sandford, if I had been a judge in 1857.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessv v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. It is impossible for me to state how I would have held 
had I been a Justice in 1896. I must presume that the decision of each 
Justice in that case was based on a careful and comprehensive review of 
the Constitutional provisions at issue and precedent as then 
inexistence, the briefs and arguments submitted, detailed knowledge of 
the particular facts presented, and careful consultation among the 
members of the Court

    Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held not as a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate'' accommodations for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. It is no longer valid precedent, having been overruled 
by Brown v. Board of Education, 347 U.S. 483 (1954).

    Question 14. If you are a Supreme Court Justice in 1954, what would 
you have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 14. It is impossible for me to state how I would have held 
had I been a Justice in 1954. I must presume that the decision of each 
Justice in that case was based on a careful and comprehensive review of 
the Constitutional provisions at issue and precedent as then in 
existence, the briefs and arguments submitted, detailed knowledge of 
the particular facts presented, and careful consultation among the 
members of the Court.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown v. Board of Education should be followed, as it 
remains valid precedent.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. It is impossible for me to state how I would have held 
had I been a Justice in 1973. I must presume that the decision of each 
Justice in that case was based on a careful and comprehensive review of 
the Constitutional provisions at issue and precedent as then in 
existence, the briefs and arguments submitted, detailed knowledge of 
the particular facts presented, and careful consultation among the 
members of the court.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 17. I do not analyze Supreme Court precedent from the 
perspective of evaluating whether I agree with the reasoning of the 
majority or the dissenting opinions. The job of a lower federal court 
judge is to follow the precedent of the higher courts. I have no 
personal issues that would prevent me from following the holding of Roe 
v. Wade, as modified by Planned Parenthood v. Casey, 505 U.S. 833 
(1992), and any other precedent in this area.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no personal views on the issue of abortion that 
would impede my ability to adhere to applicable law in making judicial 
determinations.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. I have no personal views on the issue of the death 
penalty that would impede my ability to adhere to applicable law in 
making judicial determinations.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no personal views regarding the Second Amendment 
to the Constitution that would impede my ability to adhere to 
applicable law in making judicial determinations.

    Question 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. I have no personal views regarding the rights and 
interests discussed in Planned Parenthood v. Casey that would prevent 
me from following that precedent and any subsequent precedent in this 
area.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on theissue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal views on this issue that would impede 
my ability to adhere to applicable law in making judicial 
determinations.

    Question 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. Yes, the Supreme Court has held clearly in Gregg v. 
Georgia, 428 U.S. 153 (1976), that the death penalty is Constitutional. 
I have no views that would interfere with my ability to follow Supreme 
Court precedent in any area.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. If I were a Supreme Court Justice, I would approach such 
a question with careful attention to the precedents, analytical methods 
and criteria laid out in prior decisions of the Supreme Court with 
respect to overruling precedents, as well as to the facts and 
circumstances of the particular case or controversy before the Supreme 
Court. I would be obligated to follow the Supreme Court's precedents on 
the principle of state decisis and the circumstances under which 
precedent of the Supreme Court may be overruled. The Supreme Court has 
enumerated the factors to be considered when the Supreme Court is asked 
to overrule a prior decision. The factors include whether the existing 
precedent has proven unworkable, whether the existing precedent could 
be modified or overruled without injuring seriously those who have 
relied on that precedent, whether legal principles have so changed that 
the prior precedent represents an abandoned doctrine, and whether the 
factual predicate for the existing precedent has so changed that the 
precedent has been rendered obsolete.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to the passage of an act? 
And what weight do you give legislative intent?
    Answer 25. If the plain language of a statute is ambiguous, 
legislative history can be an important interpretive tool, indicating 
legislative intent. Were I so fortunate as to be confirmed as a United 
States District Judge, I would look to any available committee reports 
relating to the language ultimately adopted and I would consider with 
caution the statements of individual legislators in debates, because 
those statements might not reflect consensus views of the legislation 
at issue.


   NOMINATIONS OF JOHNNIE B. RAWLINSON (U.S. CIRCUIT JUDGE); JOHN W. 
DARRAH, PAUL C. HUCK, JOAN HUMPHREY LEFKOW, AND GEORGE Z. SINGAL (U.S. 
                            DISTRICT JUDGES)

                              ----------                              


                        THURSDAY, JUNE 15, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 4:27 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Charles E. 
Grassley, presiding.
    Also present: Senator Leahy.

 OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 
                     FROM THE STATE OF IOWA

    Senator Grassley. It is a little bit early, but I would 
like to get the meeting started since we have a member here to 
participate and move things along, because the time to do 
everything we have to do is mighty short.
    I am Senator Chuck Grassley. I am a member of the Judiciary 
Committee. Today the Judiciary Committee is holding its sixth 
nomination hearing of the second session of the 106th Congress. 
At this hearing we will consider the nomination of five 
individuals who have been nominated by the President to be 
Federal judges.
    We will have two panels of witnesses this afternoon. The 
first panel will consist of the sponsors of the nominees, who 
will give brief statements on behalf of their nominees. The 
second panel will consist of Circuit Court Nominee Johnnie B. 
Rawlinson, of Nevada, who has been nominated for the seat on 
the U.S. Circuit Court of Appeals for the Ninth Circuit, and 
also consists of four district court nominees: John W. Darrah, 
to be U.S. District Judge for the Northern District of 
Illinois; Paul C. Huck, to be U.S. District Judge for the 
Southern District of Florida; Joan Humphrey Lefkow, to be U.S. 
District Judge for the Northern District of Illinois; and 
George Z. Singal, to be U.S. District Judge for the District of 
Maine.
    Before we turn to the panels, I guess what I will normally 
do now, since there is not a ranking minority member here to 
make a statement, we will probably interrupt somewhere in the 
panel for anybody that comes along to make a statement. But I 
would suggest that, as I indicated in my opening remarks, the 
necessity of kind of expediting this process because there is a 
leadership meeting on the bankruptcy bill at 5:30 p.m., and I 
have to be there because of my sponsorship of that and working 
with Senator Torricelli, another member of this committee, to 
get a bipartisan bill passed.
    I would like to start with Senator Reid at this point.

STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF 
                             NEVADA

    Senator Reid. Senator Grassley, thank you very much. I know 
how busy you are and I know how difficult it has been for 
Senator Lott to get this hearing convened. I extend my 
appreciation to Chairman Hatch, all members of this committee, 
particularly Senator Leahy, for holding this hearing so that we 
can report out some judges. I also have to attend that same 
meeting as you.
    Mr. Chairman, it is really an honor and a privilege for me 
to introduce to this committee a woman by the name of Johnnie 
Rawlinson. She has been an outstanding judge in the United 
States District Court for the District of Nevada for the past 3 
years, and has served with distinction.
    I am proud to report to this committee she has the 
unwavering support of the chief judge, Judge Howard McKibben, 
who, by the way, is a Reagan appointee. She has the unqualified 
support of Phil Pro, also a Reagan appointee, Lloyd George, 
senior judge, also a Reagan appointee, as well as the other 
judges who sit on the Federal bench in Nevada. Furthermore, in 
addition to being an outstanding judge, Johnnie Rawlinson is an 
outstanding person.
    On the way over here, Mr. Chairman, I saw John Ashcroft. He 
was speaking on the floor. I said to him, I am sorry you can't 
be here because, as excited as Johnnie is about this 
opportunity she has to be elevated to an appellate judge, she 
was more excited this week when she learned that her daughter 
had been accepted to the University of St. Louis Medical 
School. This is the kind of a woman that she is. She is family-
oriented. She has three children: Monica, Tracy, and David. She 
also enjoys the total support of her husband, Dwight, who is 
retired from the United States military.
    I have a full statement going into greater detail regarding 
her academic qualifications and her involvement in the 
community. I know, Mr. Chairman, that you are in a tremendous 
hurry, and so I want to be as quick and to the point as I can. 
I want you to know that in your experience as one of the 
ranking members of the Judiciary Committee and one of the 
senior members in the entire Senate, you have had many 
witnesses appear before you, hundreds and hundreds of witnesses 
in various settings. But you will never find anyone that is a 
better person than Johnnie Rawlinson. She is moderate in her 
views, she has a great academic background, and she would never 
do anything to disgrace the court. I think this committee would 
be well served to move this matter to the floor as quickly as 
possible.
    Thank you.
    [The prepared statement of Senator Reid follows:]

                Prepared Statement of Senator Harry Reid

    Mr. Reid: Mr. Chairman, it is a distinct honor and privilege to 
appear before this Committee in support if the nomination of Judge 
Johnnie Rawlinson to be a Circuit Judge on the U.S. Court of Appeals 
for the Ninth Circuit, and I would like to thank you and Senator Leahy 
for holding this hearing.
    For the past three years, Judge Johnnie Rawlinson has served the 
U.S. District Court for the District of Nevada with distinction. I am 
proud to report to this Committee that she has the unwavering support 
of Chief Judge Howard McKibben and the other six judges who serve the 
federal bench in Nevada. I have also spoken on numerous occasions with 
my friend and fellow Nevadan, Proctor Hug, Jr., who, as you all know, 
is the Chief Judge of the Ninth Circuit Court of Appeals. Chief Judge 
Hug fully supports Johnnie Rawlinson's nomination and is eagerly 
awaiting her investiture on his court.
    In addition to the Judiciary, Judge Rawlinson enjoys widespread 
support from the U.S. Attorney's Office and the federal Bar Association 
in Nevada. Her tenure on the federal bench has also earned the respect 
and admiration of federal, state and local law enforcement.
    This support and respect has been bi-partisan * * * in fact, it has 
been non-partisan. As I noted earlier, Chief Judge Howard McKibben, 
appointed to the federal bench in 1984 by President Reagan, fully 
supports Judge Rawlinson's nomination. While she is a Clinton nominee 
(hopefully soon to be appointee), Sig Rogich, who is Governor Bush's 
assistant and advisor in the State of Nevada, also supports and 
endorses her nomination to the Ninth Circuit Court of Appeals. And I am 
sure that my colleagues recall that Johnnie Rawlinson sailed through 
this Committee with bi-partisan support three years ago when I 
recommended her to be the first African-American woman ever to sit on 
the federal bench in Nevada.
    In fact, the only negative thing I can think about regarding 
Johnnie Rawlinson's nomination to the Ninth Circuit is that the 
District Court in Nevada will be losing one of its greatest assets.
    Prior to her service on the federal district court, Judge Rawlinson 
served the people of Nevada for eighteen yeas at the Office of the 
District Attorney in Clark County, Nevada. She received her Bachelor of 
Science degree, summa cum laude, from North Carolina A&T in 1974, and 
her Juris Doctor degree from the University of the Pacific School of 
Law in 1979.
    Johnnie is the proud mother of three children, Monica, age 22, 
Traci, age 17, and David, age 10. Her husband, Dwight, joins her here 
today. I should also note that Monica has just been accepted to medical 
school at the University of St. Louis. Needless to say, the Rawlinson 
family has more than one reason to be proud today.
    Again, Mr. Chairman, I would like to thank you and the committee 
for holding this hearing. I would like to thank President Clinton for 
following my recommendation to nominate Judge Rawlinson.
    I look forward to her nomination coming before the full Senate in 
the very near future so that she may be able to assume her duties on 
the Ninth Circuit as quickly as possible.

    Senator Grassley. I think I would like to call on Senator 
Bryan so we stay with the same State at this particular point. 
So if it doesn't upset anybody, I would go to Senator Bryan.

  STATEMENT OF HON. RICHARD H. BRYAN, A U.S. SENATOR FROM THE 
                        STATE OF NEVADA

    Senator Bryan. Mr. Chairman, the last thing I would want to 
occur with you presiding is for somebody to be upset because I 
was recognized next. Therefore, I will simply associate myself 
with the comments of my senior colleague.
    Our nominee has a distinguished record prior to her 
appointment and confirmation to the district court bench. She 
has served with distinction in her new capacity. She would 
provide balance and, in my judgment, a superb choice to serve 
on the Ninth Circuit Court of Appeals.
    I have known her for many years. She enjoys the respect of 
the bar, of the community, and litigants who have been 
privileged to appear before her. I would urge her confirmation, 
and in the interest of time, may I request unanimous consent 
that my statement be made a part of the record?
    [The prepared statement of Senator Bryan follows:]

             Prepared Statement of Senator Richard H. Bryan

    Mr. Chairman, I want to thank you for allowing me the opportunity 
to speak on behalf of Judge Johnnie Rawlinson regarding her nomination 
as a judge to the Ninth Circuit United States Court of Appeals.
    Judge Johnnie B. Rawlinson has dutifully served the State of Nevada 
throughout her professional career. After graduating with distinction 
from the University of the Pacific's McGeorge School of Law in 1979, 
Judge Rawlinson relocated to Las Vegas to serve as a Deputy District 
Attorney from 1980 to 1989. For the following six years, Judge 
Rawlinson worked as the Chief Deputy District Attorney for Las Vegas, 
and finally as an Assistant District Attorney from 1995 through 1998.
    Over the past three years, Judge Rawlinson has served as a United 
States District Judge for the District of Nevada. After being nominated 
by President Clinton in 1998, Judge Rawlinson was confirmed in only 
four months by the Senate, serving as a testament to her distinguished 
and credible career as both an attorney and a magistrate. With more 
than 20 years expertise in the field of law, combined with an 
outstanding record of service in Nevada, I am confident that Judge 
Rawlinson would be a welcome and laudable addition to the Ninth U.S. 
Circuit Court of Appeals.
    I believe that the Senate Judiciary Committee, and ultimately the 
Senate as a whole, has the opportunity to create a positive effect in 
the federal court system immediately. Due to the fact that the Ninth 
Circuit's caseload is almost double the average number of cases handled 
by any of the other twelve circuits, it is imperative that we confirm 
competent and proven justices to the Ninth Circuit's bench in a timely 
manner. I believe that with the recommendation of this committee on the 
nomination of Judge Rawlinson, followed by the full Senate's 
confirmation, we have the ability to bring about this type of 
constructive result.
    I am very pleased that the Senate Judiciary Committee has afforded 
this hearing to take place, and I would like to encourage the committee 
to approve Judge Rawlinson's nomination so that she can be allowed the 
opportunity to serve as a United States Circuit Judge for the Ninth 
Circuit in the near future.

    Senator Grassley. Thank you.
    Senator Reid and Senator Bryan, I didn't respond when 
Senator Reid asked that the statement in its entirety be put in 
the record, so at this point, let me say to all the members 
that that will be just done automatically unless you indicate 
otherwise.
    Normally, maybe I shouldn't consult with people at the 
panel, but I think it would be better if we go to Maine because 
the two Congressmen are here from Maine. We will do that ahead 
of Illinois. Is that OK?
    OK; I am going to start with the senior Senator, Senator 
Snowe.

  STATEMENT OF HON. OLYMPIA J. SNOWE, A U.S. SENATOR FROM THE 
                         STATE OF MAINE

    Senator Snowe. Thank you, Mr. Chairman, and I want to thank 
you and Chairman Hatch as well and members of the committee for 
considering Mr. Singal's nomination so promptly here today and 
for giving us an opportunity to appear before you. I am very 
pleased to be here with the rest of Maine's congressional 
delegation--my colleague Senator Collins, Congressman Baldacci, 
and Congressman Allen to express unequivocal support for George 
Singal for the U.S. District Court for the District of Maine.
    Mr. Singal has a wide range of experience serving both as a 
prosecutor and as a defense attorney, and has the enormous 
respect of his colleagues, many of whom have expressed support 
for his nomination. And, finally, just as telling, he enjoys 
broad bipartisan support across the State of Maine.
    Born in a refugee camp in Italy after his family fled 
before the German invasion of his native Poland, he arrived in 
Bangor, Maine, along with his sister and widowed mother, in 
1949, and in the decades since, he has truly become a living 
embodiment of the American dream.
    After graduating summa cum laude from the University of 
Maine in 1967 and becoming only the second recipient of the 
highly prestigious award of the Tilden Scholarship--only the 
second recipient of the award in the history of the university, 
George briefly left our State to receive his law degree from 
Harvard University 3 years later, but we have since forgiven 
him for that minor transgression.
    Indeed, not one to forget his roots, George immediately 
returned to Maine to begin his legal career in Bangor, serving 
as assistant county attorney for Penobscot County from 1971 to 
1973, and then working his way into a partnership in a law 
firm, a firm where he has remained to this day.
    I should say, Mr. Chairman, that he has served in a variety 
of professional committees, but his impeccable credentials and 
his reputation for impartiality led to his appointment in 1993 
to the Governor's Judicial Selection Committee by my husband, 
Governor McKiernan, and today he chairs this prestigious 
committee that assists in the appointment of judges across the 
State under an Independent Governor, Angus King.
    Throughout his career, Mr. Singal has displayed remarkable 
legal acumen, thanks in large part to his thorough, reflective, 
and balanced approach to his work, and this high degree of 
professionalism has earned him well-deserved accolades, 
including his selection to the American College of Trial 
Lawyers, an award given to less than 1 percent of trial lawyers 
nationwide, and his naming to the Best Lawyers in America, a 
designation that was made by his colleagues in the legal 
profession.
    Let me just say in conclusion, Mr. Chairman, I am most 
proud to be able to come before this committee today to 
introduce to you a candidate of the caliber of Mr. George 
Singal. His qualifications, his perspective, his intellect, and 
his integrity will make him an outstanding judge, and I thank 
you and the committee for your very strongest consideration.
    Senator Grassley. Thank you, Senator Snowe.
    Now, Senator Collins.

STATEMENT OF HON. SUSAN COLLINS, A U.S. SENATOR FROM THE STATE 
                            OF MAINE

    Senator Collins. Thank you very much, Mr. Chairman. I am 
pleased to join in this bipartisan, bicameral show of support 
for George Singal to be a district court judge in the State of 
Maine. I want to thank the committee for the speed with which 
it has acted on this nomination.
    We in Maine were shocked and saddened last March by the 
death of Judge Morton Brody, who had served both our State and 
our Nation with such distinction. Recognizing the burden that 
Judge Brody's death placed on the judicial system in Maine, the 
Judiciary Committee has moved with remarkable speed to hold 
this hearing today, and on behalf of the people of Maine, I 
want to thank the committee for its consideration. It took an 
extraordinary effort to bring this nomination to a hearing in 
such a short time frame, and we do appreciate it.
    My senior colleague, Senator Snowe, has described very 
abley Mr. Singal's background, which, in addition to his 
excellent qualifications for service on the Federal bench, 
includes a life story that truly is the personification of the 
American dream.
    In following up on her comments, I would offer the 
following observation: This committee sees nominees who arrive 
before it from a variety of backgrounds, some from the 
judiciary, some from the world of academia, and some from the 
political world. Mr. Singal comes to you today from what those 
in the profession often refer to as ``the trenches.'' He is a 
courtroom lawyer, and has been his entire working life.
    He comes to you today not with an agenda for reform or a 
political philosophy to implement. He comes here simply with an 
unwavering belief in the judicial system and the rule of law, a 
belief that no doubt has been shaped by the over 800 cases that 
he has tried to a verdict.
    A great Maine lawyer described Mr. Singal as the consummate 
attorney, a practitioner universally recognized to be among the 
most competent trial lawyers in the State.
    I would say, Mr. Chairman, that in all of my discussions 
with my constituents on this nomination, not a single person 
has mentioned anything negative about George Singal. 
Repeatedly, lawyer and layman alike have praised his honesty, 
his work ethic, and his citizenship. And for my part, I can 
tell you that not only is George an outstanding attorney, he is 
also a very good neighbor. He and I happen to live very close 
to one another in Bangor.
    I urge the committee to support the nomination of George 
Singal to serve as Federal district judge, a position that he 
would execute with integrity and distinction.
    Thank you, Mr. Chairman.
    Senator Grassley. Thank you, Senator Collins.
    Now, Representative Baldacci, and then Representative 
Allen.

 STATEMENT OF HON. JOHN E. BALDACCI, A U.S. REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF MAINE

    Representative Baldacci. Thank you very much, Mr. Chairman.
    First, I appreciate you holding this hearing, and I will 
try to be as brief as possible. I want to thank my colleagues 
from Illinois for letting us go at this time; I have 
appreciated that very much.
    I want to especially thank the two Senators, Senator Snowe 
and Senator Collins, without whose help, we would not have had 
the expeditious scheduling of this hearing. And I want to thank 
them.
    It is very unusual circumstances that have occurred in 
Maine, and the delegation has reacted in a bipartisan, 
bicameral way, as Senator Collins has pointed out, to be able 
to move on this. While it is very unfortunate, the passing of 
Judge Brody, I do think it is in true Maine tradition that we 
do work together and try to advance this nomination.
    You find in this individual, George Singal, unusual 
characteristics. I remember when I was campaigning door to 
door, knocking and visiting with his mother, and she sat down, 
and I wanted to gain her support. And she had told me that, by 
the way, even though, I didn't think so, her son was also 
Italian. And she explained to me, yes, he was born in an 
Italian refugee camp in Italy. And she explained the family 
story. And every day at lunchtime he was there with his mother. 
Every day he was working on his cases in court and his 
community. And we are very, very fortunate to have an 
individual of this caliber and judgment and judicial 
temperament to serve in the District of Maine.
    Again, I want to thank you for these hearings, and thank my 
colleagues, because it is very unusual to have a nomination 
move at this rate before this committee in the Congress. Thank 
you for hearing this nomination today.
    Senator Grassley. Thank you, Congressman.
    Now, Congressman Allen.

  STATEMENT OF HON. THOMAS H. ALLEN, A U.S. REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF MAINE

    Representative Allen. Thank you, Mr. Chairman. I, too, want 
to thank you and the members of the committee for holding this 
hearing so promptly and repeat my friend John Baldacci's thanks 
to our two Senators for helping to assist us in this project of 
bringing George Singal's nomination before you so quickly.
    Mr. Chairman, before I became a Member of Congress, I was a 
lawyer in Portland for 19 years, and I know the difference 
between those judges who grasp a complicated argument quickly, 
who are consistently thoughtful and balanced, and those who are 
not quite as quick. And it is a great pleasure to be here to 
recommend George Singal to the committee.
    I have talked to members of the bench and bar in Maine 
about George Singal, and their verdict is unanimous. There is 
no better lawyer in the State of Maine. It is impossible to 
overstate the respect with which the bench and bar holds George 
Singal. He is always well prepared. He is consistently 
thoughtful. He is a man of absolute integrity and of 
consistently good judgment.
    Other lawyers seek his advice when they need help, and they 
hire him when they need representation. As Senator Snowe 
mentioned, he was appointed to the Maine Judicial Selection 
Committee by a Republican Governor, reappointed by an 
Independent Governor, and the position of the Federal district 
court is really a perfect fit for George Singal given his 
experience. He has both a civil practice and a criminal 
practice, and he is really the best we have in Maine for this 
position.
    I am completely confident that he will make an outstanding 
judge on the Federal District Court of Maine, and I thank you 
very much for his consideration.
    Senator Grassley. Thank you very much. I thank you, Tom, 
and I might suggest that we could make room now for Senator 
Graham and Congressman Hyde--not Senator Graham. Senator Graham 
will be here, but I meant Senator Mack.
    Congressman Hyde, if you are here for Illinois, you may 
want to come up now.
    I should start with the senior Senator from Illinois.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Chairman Grassley; I 
appreciate the fact you are having this hearing. You are 
witnessing something which in the history of Illinois may be 
unique. Senator Fitzgerald and I reached an agreement a little 
over a year ago, when he was first elected, to cooperate in the 
selection of Federal judges; We have done that. Today you have 
before you two products of that cooperation.
    I am happy to tell you that Judge John Darrah, who will be 
introduced in detail by Senator Fitzgerald, was Senator 
Fitzgerald's selection for the Federal district bench. I 
wholeheartedly support Senator Fitzgerald's selection and 
endorse it. Judge Darrah is a fine man and a fine jurist. I 
think Judge Darrah will be an excellent addition to the Federal 
bench.
    I come today to also introduce Judge Joan Lefkow; Judge 
Lefkow has served for 15 years as a magistrate in Chicago and 
after that in 1997 was appointed as a bankruptcy judge. She 
might be of some help to you, Mr. Chairman, when it comes to 
that bankruptcy bill.
    Senator Grassley. We need a lot of help. [Laughter.]
    Senator Durbin. I know. She considered some 4,700 different 
cases in that capacity and took on some of the most complicated 
and challenging cases.
    It was interesting when her name came up for nomination. A 
number of judges and lawyers came forward and said that she has 
an extraordinary grasp of the law and is very fair-minded on 
the bench. I was more than happy to endorse her nomination to 
the White House, and the President, I am sure, was very proud 
to send the name to the Senate Judiciary Committee.
    Judge Lefkow has a rare combination of intelligence, 
professional experience, temperament, and devotion to public 
service. She is going to be an excellent Federal judge. Judge 
Lefkow has brought her husband with her, and I am sure there 
will be an introduction of her family. She is very proud of 
them.
    I am happy to be here on behalf of and in wholehearted 
support of these two nominees for the Federal District Court in 
the Northern District of Illinois.
    Senator Grassley. Thank you, Senator Durbin.
    Now, Senator Fitzgerald.

STATEMENT OF HON. PETER G. FITZGERALD, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Fitzgerald. Thank you, Mr. Chairman, and I, too, 
appreciate the speed with which this committee has acted and 
held this hearing. I want to second the nomination of Joan 
Lefkow, who was Senator Durbin's pick. I think she will make a 
tremendous addition to the bench.
    I am very pleased to introduce today to the committee my 
selection from the State of Illinois, which was concurred in by 
Senator Durbin, and that is Judge John Darrah from DuPage 
County, IL. And we also have here Representative Henry Hyde, 
who represents most of DuPage County.
    Let me tell you a little bit about Judge Darrah. I 
interviewed many applicants for this, my first pick to the 
Federal Courts. I reviewed their background and qualifications, 
I personally went through their decisions, and I personally 
interviewed a number of them. After I met Judge Darrah, I was 
convinced that he was the one that I wanted to be my first 
pick.
    I sensed right away he had a great judicial temperament. He 
has a wonderful scholarly bent. In addition to having served as 
a judge in DuPage County for the last 14 years, where he was 
the presiding judge for a number of years of the Chancery 
Division, he has also been an adjunct professor of law at 
Northern Illinois University. He was twice voted the best 
professor at NIU's law school. He has a background as well 
working as both a deputy public defender and an assistant 
State's attorney. He also has a wealth of experience in private 
practice.
    We are very proud to have him with us today. He is also 
here with his lovely wife, Jeannine, and they both have a 
number of children and grandchildren, too. So he is a wonderful 
family man in addition.
    So thank you very much, Mr. Chairman, and with that I will 
turn it over to my good friend and colleague, Henry Hyde. And I 
had the privilege of appearing before Henry over in the House 
yesterday, and thank you for that.
    Mr. Hyde. We treated you right, didn't we, Senator? 
[Laughter.]
    Senator Grassley. We now turn to the chairman of the House 
Judiciary Committee, Congressman Hyde.

STATEMENT OF HON. HENRY HYDE, A U.S. REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ILLINOIS

    Mr. Hyde. Thank you, Senator Grassley. I deeply appreciate 
your holding this hearing. I don't have a prepared text, but I 
am here in support of my friend, Judge Darrah, whom I have 
known for many years. He brings a wealth of experience in all 
phases of the law. Judge Darrah brings 14 years of experience 
as a very successful, respected judge, and he brings a high 
degree of humanity to the job of being a judge. He understands 
people and their problems. He has a love affair with the law. 
He is an excellent lawyer. He is fair, he is honorable, and he 
is energetic. Judge Darrah is just the sort of person you would 
like to have your case tried before because you would get a 
real fair shake.
    I think we are fortunate to have him, and I salute you and 
I salute Senator Fitzgerald and Senator Durbin for bringing 
this to this point. I hope you will decorate the bench in the 
U.S. District Court in Chicago with Judge Darrah.
    Thank you.
    Senator Grassley. Thank you very much, Congressman Hyde.
    Senator Leahy has come, and I had a statement to put in the 
record for Senator Leahy. He may want to make----
    Senator Leahy. Go ahead. Nobody can do it better than you, 
Mr. Chairman.
    Senator Grassley. I will put the statement in the record 
for Senator Leahy, then.
    [The prepared statement of Senator Leahy follows:]

Prepared Statement of Hon. Patrick Leahy, a U.S. Senator From the State 
                               of Vermont

    I am glad to see the Committee holding a hearing for judicial 
nominees today. The Committee has reported only 19 nominees and held 
what amount to four previous hearings all year on judicial nominations. 
There is growing frustration around the country with this partisan 
stall. So far this year there have been 99 judicial vacancies and the 
Senate has acted to fill only 23 of them.
    Governor Bush of Texas recently noted: ``The Constitution empowers 
the president to nominate officers of the United States, with the 
advice and consent of the Senate. That is clear-cut, straightforward 
language. It does not empower anyone to turn the process into a 
protracted ordeal of unreasonable delay and unrelenting investigation. 
Yet somewhere along the way, that is what Senate confirmations became--
lengthy, partisan, and unpleasant. That has done enough harm, injured 
too many good people, and it must not happen again.''
    He proposed that presidential nominations be acted upon by the 
Senate within 60 days. Of the 42 judicial nominations currently 
pending, 26 have already been pending for more than 60 days without 
Senate action. Already this Congress 78 nominees, including 52 
eventually confirmed, have had to wait longer than 60 days for Senate 
action. I urge the Senate to do better.
    I am very glad to see that Judge Johnnie Rawlinson, nominated by 
the President to a vacancy on the Ninth Circuit Court of Appeals, is 
included in today's hearing. She currently serves as a distinguished 
District Court Judge in Nevada. I hope that we will move quickly on 
this nomination and on those of Barry Goode and James Duffy to fill 
some of the longstanding vacancies that have plagued the Ninth Court. 
Judge Rawlinson and these other nominees all enjoy the strong support 
of their home state Senators.
    The Committee is also proceeding on four District Court nominees: 
Paul C. Huck, nominated to the District Court of Southern District of 
Florida; Judge John W. Darrah, nominated to the District Court in the 
Northern District of Illinois; Judge Joan Humphrey Lefkow, nominated to 
the District Court of the Northern District of Illinois; and George Z. 
Singal, nominated to the District Court in the District of Maine.
    I am sorry more nominees were not included today, particularly 
Court of Appeals nominees. This is another abbreviated list of nominees 
and not the full complement of six to seven judicial nominees that we 
normally consider. In light of the vacancies that are being perpetuated 
and the number of highly qualified nominees pending before this 
Committee, that is most regrettable.
    One of our most important constitutional responsibilities as United 
States Senators is to provide advice and consent on the scores of 
judicial nominations sent to us to fill the vacancies on the federal 
courts around the country. We recently made some progress as we 
confirmed 16 new judges on May 24th. For that I thank the Democratic 
Leader and the Majority Leader, my counterpart on this Committee, 
Senator Hatch, and all those who worked with us to achieve Senate 
action on those judicial nominees.
    But before any Senator thinks that our work is done for the year, 
let us take stock: We are only one-third of the way to the number of 
judges confirmed by a Democratic majority in 1992 for President Bush 
during his last year in office, and only half way to the levels of 
confirmations achieved in 1984 and 1988. we have finally passed the 
level of 17 confirmations achieved in 1996, the year before I became 
the Ranking Member on the Judicial Committee. That low water mark is no 
measure of success, however.
    Today we face more judicial vacancies than when the Senate 
adjourned in 1994. That means there are more vacancies across the 
country than when the Republican majority took controlling 
responsibility for the Senate in January 1995. Over the last six years 
we have gained no ground in our efforts to fill longstanding judicial 
vacancies that are plaguing the federal courts.
    There remain 42 judicial nominations pending in the Judiciary 
Committee, plus new nominations that the President is sending us every 
week. I have challenged the Senate to regain the pace it met in 1998 
when the Committee held 13 hearing and the Senate confirmed 65 judges. 
That would still be one less than the number of judges confirmed by a 
Democratic Senate majority in the last year of the Bush Administration 
in 1992. Indeed, in the last two years of the Bush Administration, a 
Democratic Senate majority confirmed 124 judges. It would take an 
additional 67 confirmations this for this Senate to equal that total--
more confirmation than in any year since the Republican majority took 
control of the Senate.
    Over the last five years the Republican-controlled Senate confirmed 
the following: 58 federal judges in the 1995 session; 17 in 1996; 36 in 
1997; 65 in 1998; and 34 in 1999. By contrast, in one year, 1994, with 
a Democratic majority in the Senate, we confirmed 101 judges. With 
commitment and hard work many things are achievable.
    Of the confirmations achieved this year, seven were nominations 
that were reported last year and should have been confirmed last year. 
That would have made last year's total slightly more respectable. 
Instead, they were held over and inflate this year's numbers.
    Moreover, the Republican Congress has refused to consider the 
authorization of the additional judges needed by the federal judiciary 
to deal with their ever increasing workload. In 1984, and again in 
1990, Congress responded to requests by the Chief Justice and the 
Judiciary Conference for needed judicial resources. Indeed, in 1990, a 
Democratic majority in the Congress created scores of needed new 
judgeships during a Republican administration.
    Three years ago the Judicial Conference of the United States 
requested that an additional 53 judgeships be authorized around the 
country. Last year the Judicial Conference renewed its request but 
increased it to 72 judgeships needed to be authorized in the omnibus 
appropriations bill at the end of last year.
    If Congress had timely considered and passed the Federal Judgeship 
Act of 1999, S. 1145, as it should have, the federal judiciary would 
have nearly 130 vacancies today. That is the more accurate measure of 
the needs of the federal judiciary that have been ignored by the 
Congress over the past several years and would place the vacancy rate 
for the federal judiciary at 14 percent (128 out of 915). As it is, the 
vacancy rate is almost 10 percent (65 out of 852) and has remained too 
high throughout the five years that the Republican majority has 
controlled the Senate.
    Especially troubling is the vacancy rate on the Courts of Appeals, 
which continues at over 11 percent (20 out of 179) without the creation 
of any of the additional judgeships that those courts need to handle 
their increased workloads.
    Most troubling is the circuit emergency that had to be declared 
more than seven months ago by the Chief Judge for the Court of Appeals 
for the Fifth Circuit. I recall when the Second Circuit had such as 
emergency two years ago. Along with the other Senators representing 
States from the Circuit, I worked hard to fill the five vacancies then 
plaguing my circuit. The situation in the Fifth Circuit is not one that 
we should tolerate; it is a situation that I wished we had confronted 
by expediting consideration of the nominations of Alston Johnson and 
Enrique Moreno last year. I still hope that the Senate will consider 
both of them this year.
    I deeply regret that the Senate adjourned last November and left 
the Fifth Circuit to deal with the crisis in the federal administration 
of Justice in Texas, Louisiana and Mississippi without the resources 
that it desperately needs. I look forward to our resolving this 
difficult situation. I will work with the Majority Leader and the 
Democratic Leader to resolve that emergency of the earliest possible 
time.
    With 20 vacancies on the Federal appellate courts across the 
country and nearly half of the total judicial emergency vacancies in 
the Federal courts system in our appellate courts, our Courts of 
Appeals are being denied the resources that they need, and their 
ability to administer justice for the American people is being hurt. 
There continue to be multiple vacancies on the Ninth Circuit. I am 
likewise concerned that the Fourth, Sixth and District of Columbia 
Circuits are suffering from multiple vacancies.
    I continue to urge the Senate to meet our responsibilities to all 
nominees, including women and minorities, and look forward to action on 
the nominations of Judge James Wynn, Jr. to the Fourth Circuit, Enrique 
Moreno to the Fifth Circuit, and Kathleed McCree Lewis to the Sixth 
Circuit. Working together the Senate can join with the President to 
confirm well-qualified, diverse and fair-minded judges to fulfill the 
needs to the federal courts around the country.
    Having begun so slowly in the first five months of this year, we 
have much more to do before the Senate takes its final action on 
judicial nominees this year. We should be considering 20 to 40 more 
judges this year. Having begun so slowly, we cannot afford to follow 
the `Thurmond rule'' and stop acting on these nominees at the end of 
the summer in anticipation of the presidential election. We must use 
all the time until adjournment to remedy the vacancies that have been 
perpetuated on the courts to the detriment of the American people and 
the administration of justice. I urge all Senators to make the federal 
administration of justice a top priority for the Senate for the rest of 
this year.
    I look forward to prompt and favorable action by the Committee on 
the nominees included in today's hearing and look forward to the next 
hearing, which I hope will be scheduled before the Fourth of July 
Recess.

    Senator Grassley. There aren't any other Congressman from 
Illinois. We turn then to the State of Florida, and I invite 
the senior Senator, Senator Graham from Florida, to give his 
statement at this point.

STATEMENT OF HON. BOB GRAHAM, A U. S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Graham. Thank you, Mr. Chairman. And I have been 
made aware of your time constraints, so I would like to request 
to file my full introductory statement and I will summarize it.
    Senator Grassley. That will be done. Thank you.
    Senator Graham. Mr. Chairman, it is my pleasure to 
introduce to the committee today Mr. Paul C. Huck. Mr. Huck, a 
skilled veteran and respected practicing attorney, has been 
nominated to serve as a Federal district judge in the very 
active Southern District of Florida. He is joined today by his 
wife, Donna--if I might ask if you would please stand?--his 
son, Paul, Jr., daughter-in-law, Barbara Lagoa. Is Jim here? 
Yes, and his brother, Jim Huck.
    I have had the pleasure of knowing Paul for most of my 
adult life. He is a graduate of the University of Florida. He 
indicated his potential while he was still a student, 
graduating second in his class at the University of Florida Law 
School, and then closing the gap by having the highest score on 
the Florida bar exam in the year he was admitted.
    From that auspicious beginning, he has made many 
contributions to the law, to his community, including having 
served as an adjunct professor in litigation skills at the 
University of Miami School of Law, has distinguished himself in 
every aspect of his judicial, legal accomplishments. He was 
recommended highly by the non-political screening committee 
composed of a diverse group of Floridians, and then Senator 
Mack and I both interviewed their recommendations and strongly 
recommended to the President that he nominate Mr. Huck, which I 
am pleased that he has done. And, Mr. Chairman, I urge your 
expeditious and positive consideration of Paul Huck, who will 
bring great distinction to the Federal judiciary.
    [The prepared statement of Senator Graham follows:]

                  Prepared Statement of Senator Graham

    Mr. Chairman, thank you for scheduling this hearing and for the 
Committee's attention to the needs of Florida.
    It is my pleasure to introduce Mr. Paul C. Huck. Mr. Huck, a 
skilled, veteran and respected practicing attorney, has been nominated 
to serve as a federal judge in the busy Southern District of Florida. 
If confirmed, he would fill a vacancy created when U.S. District Court 
Judge Kenneth Ryskamp took senior status.
    Joining him today is Mr. Huck's wife, Donna, his son, Paul Jr. and 
daughter-in-law Barbara Lagoa. Both Paul and Barbara are also attorneys 
in Florida. Paul's daughter Caroline, a graduate student in education 
at Vanderbilt University, was not able to join us.
    Mr. Chairman, Mr. Huck's solid qualifications make him an ideal 
candidate for service on the federal bench. Paul is a graduate of the 
University of Florida, my alma mater, and earned his law degree from 
that same institution in 1965. This impressive Gator was second in his 
class at the University of Florida School of Law, but made up for that 
second place finish by scoring higher than every other student who sat 
for the State of Florida Bar Exam in 1965.
    At an early age, Mr. Huck made a commitment to education. He worked 
his way through his secondary, undergraduate and legal studies as a 
service-station attendant, busboy, roofer, gardener, stock clerk, and 
truck driver.
    Recognizing the importance of a strong academic foundation, Paul 
volunteers as a mentor and speaks annually to incoming law students on 
the importance of ethics and professionalism. Since 1980, he has served 
as an adjunct professor in the Litigation Skills Program at the 
University of Miami School of Law.
    As an attorney with a practice in commercial litigation, Mr. Huck 
has gained a wide spectrum of experience--from real estte and 
employment rights to intellectual property, maritime claims, and 
insurance matters.
    In Florida, Mr. Huck submitted his application to a non-political 
screening committee comprised of a diverse group of Floridians, both 
lawyers and non-lawyers. Senator Connie Mack and I interviewed leading 
candidates, and jointly recommended Mr. Huck for nomination.
    In summary, Mr. Huck is an intelligent, committed, well-respected, 
and eminently qualifed candidate for the federal bench. I appreciate 
the Committee's consideration of Mr. Huck's nomination and look forward 
to working with you to fill this vacancy in Florida's southern 
district.

    Senator Grassley. Thank you, Senator Graham.
    Now, Senator Mack.

STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Mack. Thank you, Mr. Chairman. And, again, I 
appreciate the committee's efforts. I think each time that I 
come here I both thank you and remind you of the needs that we 
still have in the State of Florida, and I thank you greatly for 
having this hearing today and giving us an opportunity to 
introduce Paul Huck to the committee.
    Again, because of time, I will keep my comments brief.
    I have known Paul Huck since our college days. We have not 
had really contact over these last 35 years except that I was 
constantly aware of his involvement in the law and his 
background as a result of my brother, Dennis, and my brother, 
Michael, who also attended the University of Florida Law 
School, and who are very familiar with Paul and his 
distinguished career.
    On a very personal note, I would say I have run into very 
few people, if any, who have the degree of intellect of Paul 
Huck, combined with tremendous humility. This is an individual 
who is highly skilled, well prepared, and I think everyone, 
both in the committee and in the Senate, can be comfortable in 
voting to confirm his nomination to be a Federal district court 
judge.
    So, again, I highly recommend Paul Huck to this committee, 
and I thank the chairman.
    Senator Grassley. Thank you, Senator Mack.
    Are there any Members of the House of Representatives from 
any of the States, including Florida, that we have heard from 
that want to be heard?
    [No response.]
    Senator Grassley. Well, then, I would ask that the nominees 
come forth, all of you, and obviously, I thank all of our 
members and sponsors for their participation.
    I will just, I guess, ask you to stand. Would you raise 
your hand and I would give the oath. Do you swear that the 
testimony you shall give in this hearing shall be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Judge Rawlinson. I do.
    Judge Darrah. I do.
    Mr. Huck. I do.
    Judge Lefkow. I do.
    Mr. Singal. I do.
    Senator Grassley. Thank you. Please be seated.
    Senator Leahy. Trust me, Mr. Chairman, they all know what 
it is like to give oaths.
    Senator Grassley. OK, yes. I also think it is a little 
ridiculous, as far as you folks have come, that we question 
your integrity, but I guess that is part of the process.
    At this point, then, starting with each of you from left to 
right, before I ask you to give a statement, I would like to 
have each of you introduce to the committee any family or 
friends that you would like to have who are obviously here 
because they are proud of the promotion and advancement that 
you have been given in your profession.
    Judge Rawlinson.

   TESTIMONY OF JOHNNIE B. RAWLINSON, OF NEVADA, TO BE U.S. 
              CIRCUIT JUDGE FOR THE NINTH CIRCUIT

    Judge Rawlinson. Thank you, Mr. Chairman. I would like to 
introduce my husband of 24 years, Dwight, who has come with me 
today.
    Senator Grassley. Thank you, Dwight.
    Now, Judge Darrah.

 TESTIMONY OF JOHN W. DARRAH, OF ILLINOIS, TO BE U.S. DISTRICT 
          JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS

    Judge Darrah. Thank you, Mr. Chairman. I would like to 
introduce my wife, Jeannine, who is right behind me, who has 
come here with us today. She and I have ten children, and in 
the interest of expediency, it is well that they could not 
attend today. [Laughter.]
    Senator Grassley. OK; thank you.
    Now, Mr. Huck.

  TESTIMONY OF PAUL C. HUCK, OF FLORIDA, TO BE U.S. DISTRICT 
           JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA

    Mr. Huck. Thank you, Mr. Chairman. I would like to 
introduce my wife, Donna, one more time.
    Senator Grassley. OK.
    Mr. Huck. Also, my son, Paul, Jr., is here, with his wife, 
Barbara Lagoa, who both are practicing trial lawyers in Miami.
    Senator Grassley. Welcome.
    Mr. Huck. And my younger brother, Jim, and a friend with 
him, Ms. Cassidy.
    Senator Grassley. Thank you very much.
    Now, Judge Lefkow.

  TESTIMONY OF JOAN HUMPHREY LEFKOW, OF ILLINOIS, TO BE U.S. 
      DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS

    Judge Lefkow. Thank you, Mr. Chairman. I may have the 
largest attendance, so if I can look around and make sure I 
don't miss anyone.
    Senator Grassley. Yes.
    Judge Lefkow. My husband, Michael Lefkow; my brother, John 
Humphrey; my daughter, Margaret, one of four; my sister-in-law, 
Susan Pigott; and my assistant, Krys Juleen.
    Senator Grassley. Thank you, Judge.
    Now, Mr. Singal.

 TESTIMONY OF GEORGE Z. SINGAL, OF MAINE, TO BE U.S. DISTRICT 
                JUDGE FOR THE DISTRICT OF MAINE

    Mr. Singal. Thank you, Mr. Chairman. I would like to 
introduce to the committee my wife, Ruthanne; my daughter, 
Jessica; her husband, Matthew, could not be here today; my son, 
Samuel. My sister and her family could not be here, but they 
are here in spirit.
    Senator Grassley. Sure.
    Mr. Singal. Thank you, Mr. Chairman.
    Senator Grassley. Well, I know that everybody who is here 
not only supports you very much today but are very proud of 
what you are being appointed to and being considered for by the 
Senate.
    I would like to now, in the same order, ask if you have any 
opening statements for the committee. You can give those in 
summary. We would put your full statement, if you have one you 
want to submit, in the record and ask you to be as concise as 
you can in your opening comments.
    Judge Rawlinson. Mr. Chairman, I would like to thank you 
and the committee for having this hearing today, and that is 
the sum and substance of my opening statement. Thank you.
    Senator Grassley. Thank you.
    Judge Darrah.
    Judge Darrah. Likewise, Mr. Chairman, I appreciate the 
committee's efforts in arranging this hearing, and I thank you.
    Senator Grassley. Mr. Huck.
    Mr. Huck. Mr. Chairman, I am deeply grateful for the 
privilege to be here to answer your questions.
    Senator Grassley. Now, Judge Lefkow.
    Judge Lefkow. Thank you, Mr. Chairman.
    I also wish to thank you very much for considering my 
nomination, and thank you for your expeditious scheduling of my 
hearing.
    Senator Grassley. Mr. Singal.
    Mr. Singal. I want to thank this committee, Mr. Chairman, 
for the time they have given us. I know how busy the Senate is, 
especially this week, and I appreciate the speed that this 
committee has used in bringing us here today.

                    questioning by senator grassley

    Senator Grassley. The first questions are going to be to 
all the nominees, and they will be the same questions, so I 
will ask it once--I will be glad to repeat it if it needs to be 
repeated--and ask you from left to right to give your response 
for the record.
    The Supreme Court binds lower courts, and the precedents of 
circuit courts are binding on district courts within the 
particular circuit. Are you committed tofollowing the 
precedents of higher courts faithfully and giving them full force and 
effect even if you personally disagree with such precedents? For you, 
that is going to be the Supreme Court. For the rest, it will be the 
circuit court and the Supreme Court.
    Judge Rawlinson.
    Judge Rawlinson. Mr. Chairman, as a district court judge, I 
have committed myself to following binding precedent, and I 
will continue to do so if I am fortunate enough to be confirmed 
as an appellate court judge.
    Senator Grassley. Judge Darrah.
    Judge Darrah. I am absolutely committed to those 
principles, Senator.
    Senator Grassley. Mr. Huck.
    Mr. Huck. Mr. Chairman, you have my commitment I will 
follow those precedents.
    Senator Grassley. Judge Lefkow.
    Judge Lefkow. Mr. Chairman, you also have my commitment to 
those principles.
    Senator Grassley. Mr. Singal.
    Mr. Singal. I will follow binding precedent without 
question.
    Senator Grassley. OK; again, to each of you, you have 
stated that, if confirmed, you would be bound by Supreme Court 
precedent and the precedent of your respective circuit court of 
appeals. There may be times, however, when you will be faced 
with cases of first impression. What principles will guide you 
or what methods will you employ in deciding cases of first 
impression? Judge Rawlinson?
    Judge Rawlinson. Mr. Chairman, if the case involves a 
statute and the language of the statute is clear, I will, of 
course, construe the statute in accordance with this language. 
If the language is ambiguous, I would look to legislative 
history in an effort to discern the intent of the legislators. 
If it is a case that does not involve statutory construction, I 
will look for analogous cases which could guide my decision.
    Senator Grassley. Judge Darrah.
    Judge Darrah. It sounds redundant. I would do the same 
thing, Senator, look to the framing of the statute, statutory 
history if the statute were ambiguous, and binding analogous-
case precedent if it were a non-statutory case of first 
impression.
    Senator Grassley. Mr. Huck.
    Mr. Huck. I would concur in those opinions. If it were a 
non-statutory case, I would then look to the precedent that was 
most analogous to my situation and, as faithfully as I could, 
apply that existing precedent as an analogy.
    Senator Grassley. Judge Lefkow.
    Judge Lefkow. Mr. Chairman, in my 17 years as a judge, I 
find that there are few cases of first impression, at least in 
the district courts. But in the instance where that arises, I 
would do as others have well expressed, look to the plain 
meaning of the statute, be guided by the decisions, of course, 
of the Supreme Court, the appellate courts. And if that does 
not tell me where to go, then I would consider the well-
reasoned decisions of other judges in Federal and State 
jurisdictions.
    Senator Grassley. Mr. Singal.
    Mr. Singal. It is hard to improve on the prior answers. I 
do believe that that situation arises very rarely in district 
court. I would look to analogous decisions and to decisions of 
other judges in district court.
    Senator Grassley. Thank you.
    Now, I am going to ask specific questions of some of you. 
Judge Rawlinson, if a particular judge or court has a high rate 
of reversal on appeal, either on the court of appeals or to the 
Supreme Court, is that a problem? And if it is, what can and 
should be done to remedy the problem?
    Judge Rawlinson. There may be a number of reasons why there 
is a high rate of reversal. If I were fortunate enough to be 
confirmed as judge, I would make a commitment to make sure that 
I followed the precedents that were put down by the Supreme 
Court and adhere to the principles that have been time-honored.
    Senator Grassley. Thank you.
    Again, to Judge Rawlinson, in your view, to what extent, if 
any, do the rights protected by the Constitution grow or shrink 
with changing historical circumstances?
    Judge Rawlinson. It is my view that the Constitution has 
weathered the test of time and that the principles that are 
embodied in the Constitution have been well interpreted in a 
body of law that has been put down by the Supreme Court. And I 
think that body of law should guide judges in their 
decisionmaking today.
    Senator Grassley. Under what circumstances do you believe 
it appropriate for a Federal court to declare a statute enacted 
by Congress unconstitutional? And are you aware of the recent 
Supreme Court decision in United States v. Morrison and its 
1995 decision, United States v. Lopez? And let me continue, and 
I can repeat these, if necessary. Please explain to the 
committee your understanding of those decisions and their 
holdings regarding congressional power, because some 
commentators have accused the Supreme Court of judicial 
activism because of its decisions in those cases, and whether 
or not you would agree with those commentaries.
    Judge Rawlinson. My view of the law is that statutes are 
entitled to a presumption of constitutionality, and Iwould 
begin my review of a statute with that premise.
    It would be difficult for me to say in a given circumstance 
how a ruler might think that the canons of ethics in effect 
would preclude me from doing that, but I do start with the 
premise that a statute is presumed to be constitutional, and it 
would be extraordinary circumstances that would persuade me to 
declare a statute unconstitutional. I think it is incumbent 
upon a judge to interpret a statute in such a way as to save it 
as constitutional to the extent that that is possible to do so. 
But each case depends on the facts of that case and the 
precedent that binds the court in that particular instance.
    Senator Grassley. If you think you have responded to this 
part of the question, repeat it for me, please. But I brought 
up the cases of United States v. Morrison and United States v. 
Lopez as maybe just some examples. But we would like to get 
some understanding of how you view those decisions and their 
holding regarding congressional power more specific than what 
you said about the presumption of congressional enactment being 
constitutional, and particularly in regard to those decisions 
that some have seen that as judicial activism and whether or 
not you agree with that commentary.
    Judge Rawlinson. Without having had the opportunity to 
review the briefs, having heard the arguments of the attorneys, 
and being intimately familiar with the facts of the case, I 
would be not in a position to comment on whether or not the 
Supreme Court in my view had become activist in those cases. I 
don't feel that I have sufficient information regarding the 
briefs and the factual predicates of those cases to make that 
type of judgment at this point.
    Senator Grassley. Moving on to another question for you, 
Judge Rawlinson, in your view, is the use of race-, gender-, or 
national origin-based preferences in such areas as employment 
decisions, for instance, hiring, promotions or layoffs, college 
admission and scholarship awards, and the awarding of 
Government contracts, lawful under the Equal Protection Clause 
of the 14th Amendment?
    Judge Rawlinson. I think the Supreme Court has spoken 
definitively in the Adarand case that race-based classification 
and programs based thereon are subject to strict scrutiny and 
that there must be a compelling state interest in order to 
justify such programs and that any remedy that is based on race 
classifications must be very narrowly tailored to correct 
whatever remedy is being challenged, whatever remedy is being 
posited. And I have no personal beliefs which would prevent me 
from strictly adhering to the tenets set forth in the Adarand 
decision.
    Senator Grassley. In 1989, you authored an article about 
the Supreme Court decision, City of Richmond v. Croson Company. 
In that article, you analyzed the Croson case and concluded 
that ``With detailed preparation and careful planning, remedial 
set-aside programs need not be considered a dying tradition.''
    Do you believe that that statement is accurate in light of 
the Supreme Court subsequent decision in Adarand Construction 
v. Pena? And I would like to have you explain your answer.
    Judge Rawlinson. All right. The Adarand case I think 
further elucidated the conditions under which a race-based 
program could be sanctioned under the law, and I think that the 
strict scrutiny that a program of that nature is subject to is 
clarified in the Adarand decision and that any program that has 
a race-based classification would have to meet those strict 
compelling-interest considerations that are set forth in 
Adarand. And if a case of that nature were brought to me for 
review, I would be committed to judging it by the standards 
that were set forth in Adarand and would apply the case as it 
has been decided.
    Senator Grassley. Before moving to Judge Darrah, I would 
like to make a comment about the Ninth Circuit, not about your 
nomination or not about anything you have said today, but just 
to leave with you a thought, assuming that you will be on that 
bench; that is, it bothers me as a member of this committee and 
as a Member of Congress when I compare the Ninth Circuit with 
other circuits around the country that we would have in a short 
period of time that circuit have 28 out of 29 decisions 
reversed by the Supreme Court. And that is why I have spent 
considerable time asking nominees for the Ninth Circuit about 
their views on precedents set by the Supreme Court.
    Judge Darrah, in regard to the death penalty, do you 
believe that the view of the death penalty taken by Justices 
Brennan, Marshall, and Blackmun that the death penalty is 
unconstitutional, notwithstanding the clear constitutional text 
sanctioning it, is a permissible view of a Federal judge to 
hold?
    Judge Darrah. I believe the law of the land is well settled 
in those majority opinions pronounced by the Supreme Court, and 
I would follow them without hesitation, Senator.
    Senator Grassley. Thank you.
    Again, Judge Darrah, do you personally have any legal or 
moral beliefs that would inhibit or prevent you from imposing a 
death sentence in any criminal case that might come before you 
as a Federal judge?
    Judge Darrah. No.
    Senator Grassley. Again, Judge Darrah, do you believe that 
10-, 15-, or even 20-year delays between conviction of a 
capital offender and execution is too long? And then let me ask 
one other question associated. Do you believe thatonce Congress 
or a State legislature has made the policy decision that capital 
punishment is appropriate, then the Federal court should focus their 
resources on resolving capital cases fairly and expeditiously?
    Judge Darrah. Could I answer your questions in reverse 
order?
    Senator Grassley. Yes.
    Judge Darrah. As to the second part, the answer is yes, I 
do believe that.
    As to the first part, rather than have my answer construed 
as any comment on any specific pending case or recent case 
where there has been that kind of delay, I would rather 
generally comment that justice delayed, I believe, is justice 
denied and that long, inordinate delays in the execution of any 
court order I think is something that should be avoided.
    On the other hand, in specific circumstances, everyone is 
concerned with doing substantial justice between the parties, 
and in certain circumstances that inherently causes delays. So 
kind of an abstract answer to your question, I think it is in 
the interest of every judicial system, certainly ours in the 
United States, to quickly and efficiently enforce court orders.
    Senator Grassley. OK; now, Mr. Huck, in regard to Federal 
sentencing, as you know, the sentencing of criminal defendants 
in Federal court is conducted under the Federal Sentencing 
Guidelines. Some have argued that the guidelines do not provide 
enough flexibility for sentencing judges, while others have 
argued that the guidelines provide needed consistency in 
sentencing.
    What is your view of the Federal Sentencing Guidelines and 
the application of those guidelines?
    Mr. Huck. Mr. Chairman, I have not been a judge, so 
obviously I have not sentenced, and I have not been involved in 
the criminal side of litigation. However, since my nomination 
has been brought over to the Senate, I have looked and read 
extensively on the Sentencing Guidelines issues.
    It is my belief that they are a reasoned approach to 
uniformity and fairness in sentencing. I think it is 
understandable that people are concerned that in one instance 
one judge, because of his particular position, might give one 
sentence for the exact same crime where in another State 
another judge with a different view of things might give a 
different sentence. I think that seems patently unfair to the 
public. And, of course, I think it is important that the public 
has confidence in the system.
    I have read the guidelines, and it is my view that the 
collective intelligence, the collective experience of those 
people who comprise the Commission is far greater than any 
single judge sitting anyplace in the United States. And I would 
advise you, commit to this committee that I would follow those 
guidelines.
    Senator Grassley. Again, Mr. Huck, what is your view of 
mandatory minimum criminal sentences? And would you have any 
reluctance to impose or uphold them as a Federal judge?
    Mr. Huck. I think my remarks would be pretty much the same 
with regard to the Sentencing Guidelines, and yes, I would 
impose those. I would follow the minimum standards.
    Senator Grassley. Okay. Now I will go to Judge Lefkow, and 
this would be in regard to adherence to precedent. What would 
you do if you believed the Supreme Court or the court of 
appeals had seriously erred in rendering a decision? Would you 
nevertheless apply the decision, or would you apply your own 
best judgment of the merits? And then I am going to ask you to 
take, for example, in answering the question the Supreme Court 
decision in United States v. Playboy Entertainment Group, Inc., 
which was decided May 22 this year, where the Court struck down 
a provision of the 1996 Telecommunications Act that was 
designed to protect children from exposure to sexually explicit 
adult programming on cable television.
    Before you answer, for myself I have been involved in 
trying to make sure that what speech the First Amendment 
doesn't protect, which obviously is child pornography and 
obscenity, that we have a statute that makes that carried out. 
For instance, one of the things that I got enacted in my early 
years in the Senate was the federalization of the Ferber case 
out of the New York court of appeals on some of these issues 
of--or on the issue of child pornography as opposed to 
obscenity.
    Could you answer or do you want me to repeat that?
    Judge Lefkow. I think I understand your question, and 
please ask me again if I miss something.
    As the mother of four daughters, I am very concerned about 
the issues that you describe with respect to sexually explicit 
material. As a district court judge, it is not committed to me 
to take a different approach to or a different result to a 
problem that would be within the decision of Playboy 
Enterprises, that is, Playboy Enterprises would control my 
decision if the facts were the same or analogous. So I cannot 
take upon myself to impose a different view from what the 
Supreme Court has stated.
    Senator Grassley. I want to ask one now of you on criminal 
procedure. Are you aware of the case recently argued before the 
Supreme Court, Dickerson v. United States, which asked whether 
a defendant's voluntary confession could be admitted into 
evidence in the Government's case-in-chief under 18 U.S.C. 
3501, even if the confession was not preceded by the warning 
set forth in the Miranda case? Andexplain to the committee your 
understanding of Miranda, Section 3501, and the proper role of the 
Congress and the courts in establishing rules of evidence and 
procedures for Federal court. And also please state whether you believe 
the Miranda decision is an example of judicial activism.
    Maybe start with the last part.
    Judge Lefkow. The Miranda decision has been with us from, I 
think, before I was even a lawyer, so it is sort of part of the 
fabric of criminal jurisprudence. Whether it was an example of 
judicial activism, I really don't think I am prepared to say.
    Senator Grassley. Well, that might be legitimate because, 
as I recall from reading the arguments before the Supreme Court 
on this very case when it was about the Miranda appeal that is 
up there now, the extent to which some judges or some of our 
Supreme Court Justices, even the more conservative ones, were 
asking since it has been law so long, should it be changed?
    But I shouldn't have interrupted you. Proceed, please.
    Judge Lefkow. All right. The case that----
    Senator Grassley. I am not particularly trying to make it 
easy for you when I said that. [Laughter.]
    Judge Lefkow. If you would just bring me back to the first 
part of your question, I would certainly appreciate it, Mr. 
Chairman.
    Senator Grassley. OK; are you aware of the case recently 
argued before the Supreme Court entitled Dickerson v. United 
States which asked whether a defendant's voluntary confession 
could be admitted into evidence in the Government's case-in-
chief under 18 U.S.C. 3501, even if the confession was not 
preceded by the warnings set forth in Miranda v. Arizona? And 
then we are also asking you to explain to the committee your 
understanding of Miranda, 3501, and the proper role of Congress 
and the courts in establishing the rules of evidence and 
procedure before the Federal court.
    Judge Lefkow. All right. Well, you are asking me about an 
exclusionary rule that was, I believe, initially judge-made, 
and I believe you are saying that is 3501 has enacted----
    Senator Grassley. Yes.
    Judge Lefkow. All right. Thank you. The rules of evidence 
and admissibility primarily are judge-made, though Congress has 
a role, of course, because it is involved in the enactment of 
rules. I think the proper role is that both the judiciary and 
the Congress have a role in establishing rules of evidence, 
including exclusionary rules.
    In answer to your question about my familiarity with the 
case, I am only familiar with it to the extent it has been in 
the newspaper. I am sorry to say I haven't read the case.
    Senator Grassley. Let me suggest that we will move on, and 
there may be some follow-up to that that we would ask for you 
to do in writing.
    Now, Mr. Singal, would you please define judicial activism? 
And in your view, is Roe v. Wade an example of judicial 
activism?
    Mr. Singal. I think judicial activism may be defined as 
judges creating law. I am not sure whether Roe v. Wade is an 
example of judicial activism. As far as I am concerned, Roe v. 
Wade and its prodigy, the Casey decision, is binding upon me as 
a district court judge. And under my oath as a district court 
judge, assuming I can take it, I would be bound by that, and I 
have no principles that would prevent me from following that 
precedent as well as any other precedent binding upon a 
district court judge.
    Senator Grassley. The issue of guns, which is always a 
difficult one, the Supreme Court, through the process of so-
called selective incorporation, has applied most if not all the 
provisions of the Bill of Rights against the States. Thus, for 
instance, the First Amendment, which was originally intended to 
apply only to the Federal Government, has been applied to the 
States. The Second Amendment, however, which protects the 
rights of law-abiding citizens to own firearms in this country, 
has not.
    Do you believe the Second Amendment ought to be applied to 
the States?
    Mr. Singal. I think that is a very difficult question and 
one I think that many higher courts have grappled with and 
probably will grapple with. I have no personal opinion in that 
regard. I would have to do a great deal of research and 
hopefully be helped by the specifics of the case in terms of 
the statutory language, the briefing of the party, and the 
argument. I think that is an extraordinarily difficult case.
    Senator Grassley. If most of the other provisions of the 
Bill of Rights apply to the States, why shouldn't the Second 
Amendment? And on what principal basis would it be appropriate 
to apply almost all of the other provisions of the Bill of 
Rights against the States but not the Second Amendment?
    Mr. Singal. Again, Mr. Chairman, I think that is a very 
difficult issue. One would hope that when that decision is 
made, it would be made based on a great deal of legal research 
and interpretation aided by a great deal of work done by the 
advocating attorneys. I think it would be very difficult for me 
to reach that decision here.
    Senator Grassley. Now, obviously, as is the tradition at 
most of these hearings, very few members come because we divide 
up the work of so many hearings. So what we will do is leave 
the record open until the close of business tomorrow for 
additional follow-up questions, not that they will give you any 
trouble, and most questions are not too numerous. Once in a 
while somebody might suppose that a member is asked 25 or 30 
questions of one of you as an effort to stall your nomination. 
It seems to me that whatever questions are asked ought to be 
respected by the nominees of the work of this committee and do 
your best to get them done very quickly, because there has been 
some needless delay just because somehow some nominee to the 
bench has decided that maybe all those questions didn't have to 
be answered. And there is no need to have yours slowed up by 
the process of just not getting paperwork done. So I would 
advise you to very expeditiously give the best answers you can 
and get those back to us.
    [The biographical information of Judge Rawlinson follows:]
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    Senator Grassley. I thank you very much, and the meeting is 
adjourned.
    [Whereupon, at 5:24 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              


   Responses of Johnnie B. Rawlinson to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with the 
``advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. It is imperative that judicial nominees preserve the 
integrity and impartiality of the judicial system by refraining from 
expressing opinions on matters which may come before the court for 
decision. Consideration of a nominee's analytical ability, career 
experience, academic background, temperament and integrity may be 
helpful to a Senator in determining the nominee's fitness to serve as a 
federal judge. Of course, it is left to the reasoned determination of 
each Senator whether to ``advise and consent'' to a particular 
nomination.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. Yes, it may be difficult, nevertheless the availability 
of other information regarding the nominee's qualifications may enable 
the Senate to exercise its responsibility under the advise and consent 
clause of the Constitution.

    Question 3. What is the purpose of the United Sates Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. My understanding and experience of the purpose of these 
hearings is to allow Senators an opportunity to delve into the 
qualifications of nominees to the federal bench by exploring the 
nominee's analytical ability, demeanor, prospective judicial 
temperament and any other factors deemed relevant to the process.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if the nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer 4. Yes, by referring to precedent, the nominee is 
incorporating the legal analysis expressed in that precedent and 
demonstrating a commitment to follow that legal analysis when faced 
with analogous cases as a judge. This commitment, along with a 
nominee's qualifications and understanding of the judicial function, 
may help inform the decision to advise and consent to a nominee.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. The answers to Constitutional questions must be guided by 
the Article III restraints on judges rendering advisory opinions and 
the Code of Conduct requirement that a judge appear, and be impartial. 
I am confident that the other information available to Senators will 
enable the Senate to perform its constitutional obligation under 
Article II.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. A Senator should ask any question he or she deems 
appropriate to gather information regarding a judicial nominee's 
fitness for office. I do not think that questions focusing on the 
nominee's career record, academic background, legal writings, and 
understanding of the judicial function are areas that would serve to 
prejudice the nominee.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No, there are not questions that are off limits for a 
Senator to ask.

    Question 8. If a U.S. District Judge or U.S. Court of Appeals judge 
concludes that a Supreme Court precedent is flatly contrary to the 
Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. No, even if a district judge or court of appeals judge 
concluded that a Supreme Court case was in error, he or she would still 
be bound by the oath of office to follow the Supreme Court precedent.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.,) 393?
    Answer 9. As I sit here today, it is impossible for me to state how 
I would have ruled in the Dred Scott case in 1856. As a Supreme Court 
Justice, my ruling would be based on a careful review of the briefs 
filed in the case, the arguments of counsel, the precedent which 
existed and the deliberations of the other justices.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) (1856), 
the court apparently held, as you well know there were eight separate 
opinions in the case, that black slaves were not citizens of the United 
States. How should that precedent be treated by the courts today?
    Answer 10. The Dred Scott case is no longer valid precedent, having 
been overruled by the Thirteenth and Fourteenth Amendments to the 
Constitution.

    Question 11. If you were a judge in 1957, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 11. If I were a judge in 1857, I would have been bound by my 
oath and mandated to follow the binding precedent of Dred Scott v. 
Sandford.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. It is impossible for me to state how I would have ruled 
in 1896 in Plessy v. Ferguson without the benefit of reviewing the 
briefs, participating in oral argument, analyzing existing precedents 
and deliberating with the other judges.

    Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Plessy v. Ferguson is no longer valid precedent, having 
been overruled by the Supreme Court in Brown v. Board of Education, 347 
U.S. 483 (1954).

    Question 14. If you were a Supreme Court Justice in 1954, what 
would have held in Brown v. Board of Education, 347 U.S. 483 (1954)?
    Answer 14. It is impossible for me to state how I would have ruled 
in the Brown v. Board of Education case without the benefit of 
reviewing the briefs filed by counsel, participating in oral argument, 
analyzing existing precedent and deliberating with the other judges.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954) 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown v. Board of Education remains valid precedent and 
should be followed by the courts.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. It is impossible for me to state how I would have ruled 
in 1973 in Roe without the benefit of reading the briefs, participating 
in oral argument, analyzing existing precedent and deliberating with 
the other judges.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 17. In considering Supreme Court precedent, I do not 
approach the rulings from the standpoint of whether I agree with them 
or not. Rather, I review the cases to determine whether they apply to 
the case before me, and if so, I must follow the precedent. As a 
federal district court judge, I would be obligated to follow the ruling 
in Roe, as modified by Planned Parenthood v. Casey, 505 U.S. 833 
(1992). If I were confirmed as a circuit judge, I would continue to be 
obligated to follow Supreme Court precedent.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no personal view which would prevent me from 
following the Supreme Court precedent established in Roe v. Wade, as 
modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992).

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. I have no personal views which would prevent me from 
following Supreme Court precedents regarding the death penalty.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no personal views which would prevent me from 
following Supreme Court precedents regarding the Second Amendment.

    Question 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. I have no personal views regarding the issues decided in 
Planned Parenthood v. Casey which would prevent me from following the 
precedent established in that case and any subsequent precedent which 
may be established by the Supreme Court.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal views on this issue that would 
prevent me from following established Supreme Court precedents.

    Question 23. Do you believe that the death penalty is 
constitutional?
    Answer 23. I have no personal views that would prevent me from 
following the Supreme Court precedent of Gregg v. Georgia, 428 U.S. 153 
(1976) and subsequent precedent regarding the constitutionality of the 
death penalty.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. If I were a Supreme Court Justice, I would overrule a 
precedent of the Court only after considered review and reflection upon 
the applicable precedents and the particular facts before the court. 
The Supreme Court has set forth the following factors which should be 
weighed when the Supreme Court is asked to overrule a precedent: 
whether the existing precedent has proven unworkable, whether the 
existing precedent could be modified without serious injury to those 
who have relied on the precedent, whether a change in legal principles 
has resulted in the precedent being an abandoned doctrine, and whether 
the factual underpinnings of the precedent have changed to the degree 
that the precedent has been rendered obsolete. If I were a Supreme 
Court Justice, I would weigh those factors carefully in reaching a 
decision.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. If a statute which is the subject of a case before me is 
ambiguous, I will review the legislative history in an effort to 
ascertain the legislative intent surrounding the passage of the 
statute. Although I would consider the testimony of elected officials, 
care must be taken to insure that statutes by individual legislators 
represents the will of the majority of the elected officials.

    Question 26. The 9th Circuit Court of Appeals has been described as 
a rogue circuit by myself and other Senators. Do you believe that the 
9th Circuit is an activist circuit or do you have another opinion of 
the 9th Circuit? A related question, would you bring the 9th Circuit 
into the mainstream of legal thought?
    Answer 26. As a district court judge, I do not read the Ninth 
Circuit opinions with a view toward characterizing them as activist 
opinions, and I am bound to follow the precedent of the Ninth Circuit 
and Supreme Court whether I agree with them or not. If I were fortunate 
enough to be confirmed as a circuit judge, I would decide cases in 
accordance with the precedent of the Supreme Court and thus presumably 
within the mainstream of legal thought. I would also carefully read 
Supreme Court precedent with particular attention to those cases where 
the Supreme Court has reviewed Ninth Circuit decisions and otherwise 
resolved divisions among the circuits. I would also carefully consider 
petitions for rehearing en banc in those cases where there is a 
difference of opinion among Ninth Circuit panels. I would faithfully 
apply the Supreme Court jurisprudence regarding the deference 
applicable to statutes, referenda and initiatives and construe them to 
be constitutional to the maximum extent possible. I would also continue 
to view the role of a judge as being limited to deciding only the case 
that is before the court and, addressing constitutional issues only if 
absolutely necessary. Additionally, I would continue to carefully 
examine the jurisdiction of the court and not reach out to decide 
issues that arenot properly before the court. On those issues properly 
before the court, I would resolve them on the narrowest possible basis 
and in accordance with the precedent of the Supreme Court. In addition, 
I sat by designation on a Ninth circuit panel with Judges Kozinski and 
Thomas and we were able to resolve fifteen cases relying on established 
case law. None of those cases have been considered en banc, reversed or 
the subject of certiorari to the Supreme Court.

    Question 27. In April of 1998, you accepted your appointment to the 
U.S. District Court for the District of Nevada. Do you believe that 
just over two years on the federal bench is sufficient training to be 
elevated to the 9th Circuit Court of Appeals?
    Answer 27. Yes, I think that my experience as a district judge, 
together with my academic background and career experiences have 
prepared me sufficiently to perform the role of a circuit judge. I sat 
by designation on the Ninth Circuit and experienced no difficulty in 
preparing for or participating in the resolution of cases on appeal. 
Throughout this country, there are many able circuit judges who never 
served as district judges or on any bench prior to their appointment as 
circuit judges.

    Question 28. What is your current legal opinion on the 
constitutionality of state affirmative action programs?
    Answer 28. The United States Supreme Court in the case of Adarand 
v. Pena, 515 U.S. 200 (1995), has definitively ruled that race-based 
classifications in state affirmative action programs or any state 
action are subject to strict scrutiny, must address a compelling state 
interest and must be narrowly tailored to that compelling interest. I 
have no personal views which would interfere with my ability to apply 
the Supreme Court's holding in Adarand and any subsequent case 
addressing the issue of affirmative action.
                                 ______
                                 

  Responses of Johnnie B. Rawlinson to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. It is the function of the courts to interpret the laws 
which have been enacted by the legislative branches of government. 
Legislative inaction does not justify judicial intrusion into the 
policymaking function reserved for the legislative branch.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. I have no personal objections to the death penalty that 
would cause me to be reluctant to impose or uphold a death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. Mandatory minimum sentences are an expression of the will 
of Congress regarding the appropriate sentences for certain criminal 
offenses. As a district court judge, I have imposed mandatory minimum 
sentences, and I would not be reluctant to uphold them if I were 
fortunate enough to be confirmed as a circuit judge.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. As a district court judge, I have applied the Federal 
Sentencing Guidelines, which strike a balance between flexibility and 
consistency, and I have found them to be very helpful in fashioning 
appropriate sentences.

    Question 5. As you know, the Prison Litigation Reform Act, was an 
attempt to limit prisoner litigation and court involvement in prison 
operations. Do you believe it places too many restrictions on the 
ability of prisoners to make claims and for judges to remedy 
Constitutional violations in the prison context?
    Answer 5. No, the Prison Litigation Reform Act as upheld by the 
Supreme Court in Miller v. French, 2000 WL 775572 (June 19, 2000), 
provides additional statutory authority for weeding out frivolous 
claims and ruling on the merits of legitimate claims, while leaving 
intact the limited jurisdiction of federal courts to consider claims of 
constitutional violations in the prison context. In Miller v. French, 
the Supreme Court emphasized that prospective relief in prison 
conditions cases should be narrowly drawn and minimally intrusive.

    Question 6. As you are aware, Federal Rule of Civil Procedure 11 
permits federal judges to impose sanctions against attorneys for 
unwarranted claims or representations made in their pleadings. Some say 
this rule is an important tool for judges, while others believe it 
discourages litigants from testing the boundaries of existing law. What 
is your opinion of Rule 11?
    Answer 6. Rule 11 is a useful tool for judges to have available in 
those cases where a litigant or attorney abuses the court process and 
procedures. Rule 11 also preserves the opportunity to test the 
boundaries of existing law so long as the claims are warranted by 
existing law or grounded in a non-frivolous argument for a change in 
the law. While the sanctions provided for in Rule 11 should be used 
sparingly, they should be used without hesitation when necessary to 
prevent or prohibit vexatious litigation.
                                 ______
                                 

   Responses of Johnnie B. Rawlinson to Questions From Senator Hatch

    Question 1. If a particular judge or court has a high rate of 
reversal on appeal, either to the Court of Appeals or the Supreme 
Court, is that a problem? If it is, what can and should be done to 
remedy that problem?
    Answer 1. Yes, a high rate of reversal is a cause for concern. If 
presented with that circumstance, a judge or court should carefully 
read the overruling precedent with a view toward correcting the 
erroneous ruling(s) at the earliest opportunity. The judge or court 
should also make a concerted effort to focus on only the issues before 
the judge or court, judiciously applying precedent to resolve cases on 
the narrowest basis possible. Finally, the judge or court should 
conscientiously refrain from reaching out to decide matters which are 
not before the court.

    Question 2. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 2. No, rights protected by the constitution do not grow or 
shrink with changing historical circumstances. However, the Supreme 
Court may be called upon to interpret those rights within a changed 
historical setting, such as changes in technology like the telephone. 
The Supreme Court's interpretation of those rights constitute precedent 
which lower courts are bound to follow.

    Question 3. Under what circumstances do you believe it appropriate 
for a federal court to declare a statute enacted by Congress 
unconstitutional?
    Answer 3. A federal court should always begin its statutory 
analysis keeping in mind the strong presumption of constitutionality to 
which Congressional enactments are entitled. Every effort should be 
made to interpret the statute in a way that would result in a finding 
of constitutionality. Adherence to these well established statutory 
construction precepts would result in a finding of unconstitutionality 
only in rare and exceptional circumstances.

    Question 4. Please describe in reasonable detail the Supreme 
Court's recent decision in United States v. Morrison, and its 1995 
decision United States v. Lopez, explaining to the Committee your 
understanding of those decisions, and their holdings regarding 
congressional power. Some commentators have accused the Supreme Court 
of judicial activism because of its decisions in those cases. Do you 
agree? Please explain.
    Answer 4. In United States v. Morrison, 120 S.Ct. 1740 (2000), the 
Supreme Court invalidated a statute which created a federal civil cause 
of action for victims of sexual assault. In United States v. Lopez, 514 
U.S. 549 (1995), the Supreme Court struck down a statute which made it 
a crime to knowingly possess a firearm within a school zone. The 
Supreme Court found that both statutes exceeded Congress' power to 
regulate under the commerce clause. The Supreme Court opined that 
Congress has the power to regulate channels of interstate commerce or 
instrumentalities of interstate commerce. However, there must be a 
substantial effect upon interstate commerce to trigger the commerce 
clause regulatory authority if the subject of the legislation is 
intrastate activity. As a lower court judge, my practice is not to 
analyze the decisions of the Supreme Court, such as Lopez and Morrison, 
with the aim of characterizing them in terms of judicial activism, but 
rather I read them to ascertain their holdings and to understand their 
application to particular cases. They constitute binding precedent 
which I must follow whether I agree with them or not.

    Question 5. In your view, is the use of race, gender, or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion, or layoffs), college admissions and scholarship awards, and 
the awarding of government contracts, lawful under the Equal Protection 
Clause of the 14th Amendment. Please explain.
    Answer 5. The United States Supreme Court in the case of Adarand v. 
Pena, 515 U.S. 200 (1995), has definitively ruled that race or national 
origin-based classifications in state programs or any state action are 
subject to strict scrutiny, must address a compelling state interest 
and must be narrowly tailored to that compelling interest. In United 
States v. Virginia, 518 U.S. 515 at 533 (1996), the Supreme Court 
articulated an intermediate scrutiny standard for analyzing gender 
based programs. I hold no personal views which would interfere with my 
ability to apply the Supreme Court's holding in Adarand v. Pena, United 
States v. Virginia and any subsequent case addressing this area.

    Question 6. Do you believe that the view of the death penalty taken 
by Justices Brennan, Marshal, and Blackburn--that the death penalty is 
unconstitutional notwithstanding the clear constitutional text 
sanctioning it--is a permissible view for a judge to hold?
    Answer 6. The Supreme Court has upheld the constitutionality of the 
death penalty in Gregg v. Georgia, 428 U.S. 153 (1976). I hold no 
personal views which would affect my ability to follow this precedent 
and any subsequent precedent regarding the death penalty.

    Question 7. Do you personally have any legal or moral beliefs that 
would inhibit or prevent you from imposing a death sentence in any 
criminal case that might come before you as a federal judge? Please 
explain.
    Answer 7. No, I personally have no legal or moral beliefs that 
would inhibit or prevent me from imposing a death sentence.

    Question 8. Do you believe the 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long?
    Answer 8. Yes, inordinate delay compromises the integrity of the 
justice system.

    Question 9. Do you believe that once Congress or a State 
legislature has made the policy decision that capital punishment is 
appropriate, then the federal courts should focus their resources on 
resolving capital cases fairly and expeditiously.
    Answer 9. Yes, I believe that once the policy decision has been 
made, it is the role of the judge to resolve capital cases fairly and 
expeditiously.

    Question 10. The sentencing of criminal defendants in federal court 
is conducted under the federal Sentencing Guidelines. Some have argued 
that the Guidelines do not provide enough flexibility for the 
sentencing judge, while others have argued that the Guideline provide 
needed consistency in sentencing. What is your view of the federal 
Sentencing Guideline and the application?
    Answer 10. As a district court judge, I have applied the Federal 
Sentencing Guidelines, which strike a balance between flexibility and 
consistency, and I have found them to be very helpful in fashioning 
appropriate sentences.

    Question 11. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a federal judge?
    Answer 11. Mandatory minimum sentences are an expression of the 
will of Congress regarding the appropriate sentences for certain 
criminal offenses. As a district court judge, I have imposed mandatory 
minimum sentences without reluctance, and I would not be reluctant to 
uphold them if I were fortunate enough to be confirmed as a circuit 
judge.

    Question 12. What would you do if you believed the Supreme Court or 
Court of Appeals had seriously erred in rendering a decision? Would you 
nevertheless apply that decision? Or would you apply your own best 
judgment of the merits? Take, for example, the Supreme Court's recent 
decision in United States v. Playboy Entertainment Group Inc. where the 
Court stuck down a provision of the 1996 Telecommunications Act that 
was designed to protect children from exposure to sexually explicit 
adult programming on cable television.
    Answer 12. Even if I believed the Supreme Court or Court of Appeals 
had seriously erred in rendering a decision, I would still be bound by 
my oath of office to follow precedent. I hold no views regarding any 
Supreme Court precedent, including Playboy, which prevent me from 
following the precedent of the higher court.

    Question 13. Please describe in reasonable detail your 
understanding of the case recently argued before the Supreme Court 
entitled Dickerson v. United States, which asked whether a defendant's 
voluntary confession could be admitted into evidence in the 
Government's case in chief under 18 U.S.C. 3501, even if the confession 
was not preceded by the warnings set forth in Miranda v. Arizona? 
Please explain to the Committee your understanding of Miranda, section 
3501, and the proper role of the Congress and the Courts in 
establishing rules of evidence and procedure for federal courts. Also, 
please state whether you believe the Miranda decision is an example of 
judicial activism.
    Answer 13. Miranda v. Arizona is binding precedent on the lower 
courts unless and until the Supreme Court overrules or modifies that 
decision. Dickerson involves a conflict between the Supreme Court's 
decision in Miranda to require specific warnings before a confession 
may be admissible and the Congress' decision to impose a rule, 18 
U.S.C. Sec. 3501, which requires instead a consideration of the 
totalicity of the circumstances surrounding the confession. Whatever 
the outcome of the Dickerson case, the Supreme Court's decision will 
constitute precedent which I, as a lower court judge, am obligated to 
follow. As a lower court judge, my practice is not to analyze the 
decisions of the Supreme Court, including Miranda, with the aim of 
characterizing them in terms of judicial activism, but rather I read 
them to ascertain their holdings and to understand their application to 
particular cases.

    Question 14. Please define judicial activism. In your view, is Roe 
v. Wade an example of judicial activism?
    Answer 14. Judicial activism is considered by some to be injection 
of one's personal views into decisions or reaching out to decide 
matters which are not properly before the court. As a lower court 
judge, my practice is not to analyze the decisions of the Supreme 
Court, including Roe as modified as Casey, with the aim of 
characterizing them in terms of judicial activism, but rather I read 
then to ascertain their holdings and to understand their application to 
particular case. Roe v. Wade, as modified by Planned Parenthood v. 
Casey, 505 U.S. 833 (1992), is binding Supreme Court precedent which I 
am obligated to follow.

    Question 15. The Supreme Court, through a process of so-called 
selective incorporation, has applied most if not all, of the provisions 
of the Bill of Rights against the States. Thus, for instance, the First 
Amendment, which originally was intended to apply only to the federal 
government, has been applied to the States. The Second Amendment, 
however, which protects the rights of law-abiding citizens to own 
firearms in this country, has not. Do you believe that the Second 
Amendment ought to be applied to the States?
    Answer 15. I leave to the Supreme Court the determination regarding 
which of the Bill of Rights provisions are to be applied to the States 
based on incorporation jurisprudence. As a lower court judge, I am 
obligated to follow Supreme Court precedent.

    Question 16. If most of the other provisions of the Bill of Rights 
apply to the States, why shouldn't the Second Amendment? On what 
principled basis would it be appropriate to apply almost all of the 
other provisions of the Bill of Rights against the States, but not the 
Second Amendment?
    Answer 16. Whether any or all of the provisions of the Bill of 
Rights are applied to the states is a question for the Supreme Court to 
resolve. Perhaps it is a matter of the Second Amendment incorporation 
issue not having been presented to the Supreme Court in a posture where 
it is ripe for review. In any event, I hold no personal views which 
would prevent me from following Supreme Court precedent on this issue.

    Question 17. The precedents of Circuit Courts are binding on the 
district courts within the particular Circuit. Are you committed to 
following the precedents of higher courts faithfully and giving them 
full force and effect, even if you personally disagree with such 
precedents?
    Answer 17. I am absolutely committed to following the precedents of 
higher courts faithfully and giving them full force and effect, even if 
I personally disagreed with a precedent.

    Question 18. You have stated that, if confirmed, you could be bound 
by Supreme Court precedent and the precedent of the Circuit Court of 
Appeals over your district or circuit. There may be times, however, 
when you will be faced with cases of first impression. What principles 
will guide you, or what methods will you employ, in deciding cases of 
first impression?
    Answer 18. In the rare case of first impression, if I were 
interpreting a statute and the language of the statute were clear, I 
would decide the case based on the plain meaning of the statute. If the 
statutory language were ambiguous, I would review the legislative 
history in an effort to ascertain the intent of the legislature. 
Finally, I would look to analogous cases for guidance.
                                 ______
                                 

     Responses of John W. Darrah to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Such an approach is contrary to the well established 
principle of separation of powers. It is absolutely improper for a 
Court to act in any manner which involves the function of the 
legislative branch of government.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. I have no personal objections to the death penalty which 
would cause me to be reluctant to impose or uphold a death sentence 
which was justified under the facts and law of the case.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. The enactment of these statutes is a valid exercise of 
legislative authority. I would have no reluctance in imposing or 
upholding mandatory minimum criminal sentences.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. The Federal Sentencing Guidelines do provide a general 
uniformity in the sentences imposed for various criminal misconduct. 
The consistency which is achieved through the Guidelines assures that 
all will receive equal treatment under the law. If I were confirmed as 
a Federal District Court Judge, I would have no reluctance to follow 
the Guidelines.

    Question 5. As you know, the Prison Litigation Reform Act, which 
was an attempt to limit prisoner litigation and court involvement in 
prison operations. Do you believe that the Act has been beneficial to 
the legal system or do you believe it places too many restrictions on 
the ability of prisoners to make claims and for judges to remedy 
Constitutional violations in the prison context?
    Answer 5. The Prison Litigation Reform Act has been found to be a 
valid exercise of the legislative power, and I would apply the law as 
it is written in any such cases that come before me.

    Question 6. As you are aware, Federal Rule of Civil Procedure 11 
permits federal judges to impose sanctions against attorneys for 
unwarranted claims or representations made in their pleadings. Some say 
this rule is an important tool for judges, while others believe it 
discourages litigants from testing the boundaries of existing law. What 
is your opinion of Rule 11?
    Answer 6. Federal Rule 11 permits federal judges to impose 
sanctions against attorneys for a prohibited conduct in the proper 
case. However, the Rule is written to permit attorneys to argue in good 
faith for an extension of existing law based on sound principles of 
jurisprudence.
                                   ____
                                 

      Responses of John W. Darrah to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. A nominee should try to answer all questions of a 
Senator, although a judicial candidate is obligated to preserve the 
integrity of the judicial position sought by avoiding answering 
questions in any fashion which may suggest the nominee has prejudged an 
issue or has personal feelings which would interfere with the nominee's 
ability to be fair and impartial. It is up to the Senator to determine 
the circumstances under which he will vote to confirm a nominee.

    Question 2. Article II, Section 2 of the constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. Yes, however, a Senator can seek assurances that the 
nominee is aware of and will discharge the duties imposed on a federal 
judge pursuant to the Constitution of the United States. These duties 
include respecting the principles of stare decisis and separation of 
powers.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. My understanding is that the Senate holds hearings on 
nominees for the federal bench to determine their qualifications, 
including whether a candidate respects the Constitution's limitations 
on judicial power and whether the candidate has sufficient professional 
experience, ability and integrity to perform the functions required of 
the federal judiciary.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if nominee simply refers to precedent without explaining his or 
her legal analysis?
    Answer 4. Yes, in my view, it is possible to advise and consent to 
a qualified nominee who refers to precedent on legal questions. A 
nominee can demonstrate an understanding of legal issues by reference 
to past holdings of higher courts, which implies that the nominee would 
follow the legal analysis of that precedent.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. A Senator may advise and consent to a nominee by seeking 
assurances that the nominee is aware of and will discharge the duties 
imposed on a federal judge pursuant to the Constitution of the United 
States. These duties include respecting the principles of stare decisis 
and separation of powers. A Senator may also exercise his 
responsibilities under the advice and consent clause by assessing 
whether the candidate has sufficient professional experience, ability 
and integrity to perform the functions required by the federal 
judiciary.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. A Senator may ask any questions he or she deems 
appropriate. Questions that would not be likely to prejudice a 
candidate include those regarding the candidate's professional and 
personal background to determine if the candidate has the necessary 
intelligence, education, training, experience, integrity and work ethic 
to perform the duties of a federal judge. Other such questions include 
those intended to determine whether the candidate appreciates and will 
discharge the duties and obligations imposed upon the federal judiciary 
by the Constitution and other laws.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No, a Senator may ask any questions he or she deems 
appropriate.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. No, a U.S. District Court judge or a U.S. Court of 
Appeals judge is bound to follow a Supreme Court precedent if it is 
applicable to the case, regardless of the judge's own conclusion that 
the higher court erred.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. I am not able to conclude how I would have held in Dred 
Scott v. Sandford if I were a Justice of the Supreme Court in 1856. To 
responsibly discharge the duties of a Supreme Court Justice, one would 
have to read the briefs, listen to the arguments of counsel, and 
discuss the case with the other Justices in conference.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 10. The decision in Dred Scott v. Sandford has been 
overruled by the Thirteenth and Fourteenth Amendments to the 
Constitution. The case has no binding precedential value and is of no 
force and effect today.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 11. If I were a judge in 1857, I would have been obligated 
to follow the then binding precedent of the decision in Dred Scott v. 
Sandford.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. I am not able to conclude how I would have held in 
Plessy v. Ferguson if I were a Justice of the Supreme Court in 1896. To 
responsibly discharge the duties of a Supreme Court Justice, one would 
have to read the briefs, listen tot he arguments of counsel, and 
discuss the case with the other Justices in conference.

    Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Plessy v. Ferguson has been overruled by subsequent 
Supreme Court decisions, such as Brown v. Board of Education. It is not 
binding case precedent and is of no force and effect today.

    Question 14. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 14. I am not able to conclude how I would have held in Brown 
v. Board of Education if I were a Justice of the Supreme Court in 1954. 
To responsibly discharge the duties of a Supreme Court Justice, one 
would have to read the briefs, listen to the arguments of counsel, and 
discuss the case with the other Justices in conference.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the fourteenth Amendment to the 
constitution. How should that precedent be treated by the Courts?
    Answer 15. The case of Brown v. Board of Education has not been 
overruled, and the law as pronounced by the Supreme Court in that case 
is binding case precedent on all lower courts.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. I am not able to conclude how I would have held in Roe 
v. Wade, if I were a Justice of the Supreme Court in 1973. To 
responsibly discharge the duties of a Supreme Court Justice, one would 
have to read the briefs, listen to the arguments of counsel, and 
discuss the case with the other Justices in conference.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1873) the court held 
that a Texas statue which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Renquist dissent in that case?
    Answer 17. The holding of Roe v. Wade,, as modified and explained 
by Casey, has not been overruled and is still binding precedent. If I 
were confirmed to serve as a federal judge, I would perform my 
obligation and apply that precedent. I have no personal view which 
would prevent me from doing so.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on this issue of abortion?
    Answer 18. I have no personal view or attitude which would prohibit 
me from discharging my duty to apply Supreme Court precedent regarding 
the issue of abortion.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. I have no personal view or attitude which would prohibit 
me from discharging my duty to apply Supreme Court precedent regarding 
the issue of the death penalty.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no personal views regarding the Second Amendment 
which would prevent me from applying Supreme Court opinions regarding 
this issue.

    Question 21. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. The Supreme Court opinion, in the case of Planned 
Parenthood v. Casey, is binding precedent. I have no personal views 
which would prevent me from discharging my obligation to apply the 
holding of this case.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal beliefs that would prevent me from 
discharging my obligation as a federal judge to apply any Supreme Court 
precedent on this issue.

    Question 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. The Supreme Court determined that the death penalty is 
constitutionally permissible in Gregg v. Georgia. I have no personal 
belief which would prevent me from following the law in this area.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. The Supreme Court has announced several factors it 
considers when deciding whether to overrule its precedent, including 
whether or not the prior ruling is unworkable, the cost of overruling 
the prior decision for people who have ordered their lives based on the 
principles of that case, whether the doctrinal footings of the prior 
opinion have been weakened by the evolution of any legal principle 
decided therein, and whether there has been a change in the basic facts 
of the prior opinion that renders the opinion obsolete or supports an 
argument for overruling the decision. If I were Justice on the United 
States Supreme Court, I would apply these factors, which were discussed 
in Casey, in deciding a request to overrule a prior precedent.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. A statute must be applied so as to give full effect to 
the intent of the legislature in enacting the statute. Legislative 
intent is first determined by giving effect to the plain meaning of the 
words of the statute. If there is doubt as to the meaning of the 
statute and no case precedent which has previously construed the 
statute, then a court should look to the interpretations given statutes 
that are analogous to the statute in question. If these means still do 
not permit a court to discern the legislative intent, then secondary 
sources such as legislative history and debate may be considered to 
make this determination. A judge should accord more weight to a 
committee report on the legislation than to the statements of 
individual elected officials in debates.
                                 ______
                                 

      Responses of John W. Darrah to Questions From Senator Hatch

    Question 1. If a particular judge or court has a high rate of 
reversal on appeal, either to the Court of Appeals or the Supreme 
Court, is that a problem? If it is, what can and should be done to 
remedy that problem?
    Answer 1. Yes, a high rate of reversal is a problem. It is 
inappropriate if a federal judge disregards legal precedent or statutes 
in deciding a case. If I am fortunate enough to be confirmed as a 
federal judge, I would follow and apply precedent and statutes.

    Question 2. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 2. The rights of the Constitution are generally found in the 
plain language of its provisions. As a lower court judge, I would 
follow the opinions of the Supreme Court as it has examined, 
considered, and interpreted the Constitution.

    Question 3. Under what circumstances do you believe it appropriate 
for a federal court to declare a statute enacted by Congress 
unconstitutional?
    Answer 3. A statute enacted by Congress is presumed to be 
constitutional. As a Federal District Court Judge, I would uphold that 
presumption of constitutionality and examine the language of the 
statute so challenged to find a construction of the statute both 
consistent with the intention of Congress and within the provisions of 
the Constitution. It would seem to be an extremely rare instance when a 
Congressional enactment was found to be beyond the presumption of 
constitutionality.

    Question 4. Please describe in reasonable detail the Supreme 
Court's recent decision in United States v. Morrison, 120 S. Ct. 1740 
(2000), and its 1995 decision United States v. Lopez, 514 U.S. 549 
(1995), explaining to the Committee your understanding of those 
decisions, and their holdings regarding congressional power. Some 
commentors have accused the Supreme Court of judicial activism because 
of its decisions in those cases. Do you agree? Please explain.
    Answer 4. In United States v. Lopez, the Supreme Court invalidated 
the gun-free school zone act which made it a federal offense to possess 
a firearm at or near a school. The Court found that such a possession 
was not an economic activity under the commerce clause as not 
``substantially affecting interstate commerce.''
    In United States v. Morrison, the Court held that the 1994 Violence 
Against Women Act, which created a federal cause of action for victims 
of sexually related violence against their assailant for damages in 
federal court, exceeded Congress's power under the commerce clause. The 
opinion held that it was appropriate to aggregate interstate incidents 
of activity to determine whether it ``substantially affected interstate 
commerce'' only if the activity was economic in nature.
    In both cases, the Supreme Court was interpreting the outer 
boundaries of Congressional power. As a federal judge, I would be 
obligated to follow these Supreme Court opinions, regardless of whether 
some commentators view them to be examples of judicial activism.

    Question 5. In your view, is the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion or layoffs), college admissions and scholarship awards, and 
the awarding of government contracts, lawful under the Equal Protection 
Clause of the 14th Amendment? Please explain.
    Answer 5. In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the 
Supreme Court held that affirmative action-type programs based on race 
or national origin be subject to ``strict scrutiny'' and will be upheld 
only if they are the least restrictive means of serving a compelling 
government interest. As a federal judge, I would apply the holding of 
the Supreme Court opinion.

    Question 6. Do you believe that the view of the death penalty taken 
by Justices Brennan, Marshall and Blackmun--that the death penalty is 
unconstitutional notwithstanding the clear constitutional text 
sanctioning it--is a permissible view for a federal judge to hold?
    Answer 6. The Supreme Court has repeatedly held the death penalty 
to be constitutional. A federal judge is obligated to follow that 
mandate and apply the death penalty when required. It is not 
permissible for a federal judge to hold otherwise.

    Question 7. Do you personally have any legal or moral beliefs that 
would inhibit or prevent you from imposing a death sentence in any 
criminal case that might come before you as a federal judge? Please 
explain.
    Answer 7. I have no legal or moral beliefs that would inhibit the 
imposition of the death sentence in a criminal case that might come 
before me as a federal judge. As a federal judge, it would be my 
obligation to apply this law, which has been held to be constitutional.

    Question 8. Do you believe that 10, 15 or even 20-year delays 
between conviction of a capital offender and execution is too long?
    Answer 8. Inordinate delays between the conviction of a capital 
offender and the execution of the death sentence are contrary to a 
basic principle of jurisprudence that the execution of all court orders 
should be accomplished in a reasonably timely fashion.

    Question 9. Do you believe that once Congress or a State 
legislature has made the policy decision that capital punishment is 
appropriate, then the federal courts should focus their resources on 
resolving capital cases fairly and expeditiously?
    Answer 9. Yes, I believe that once Congress or a State legislature 
has made the policy decision that capital punishment is appropriate, 
the federal courts should focus their resources on resolving capital 
cases fairly and expeditiously.

    Question 10. The sentencing of criminal defendants in federal court 
is conducted under the federal Sentencing Guidelines. Some have argued 
that the Guidelines do not provide enough flexibility for the 
sentencing judge, while others have argued that the Guidelines provide 
needed consistency in sentencing. What is your view of the federal 
Sentencing Guidelines and their application?
    Answer 10. The Federal Sentencing Guidelines do provide a general 
uniformity in the sentences imposed for various criminal misconduct. 
The consistency which is achieved through the Guidelines assures that 
all will receive equal treatment under the law. If I were confirmed as 
a Federal District Court Judge, I would have no reluctance to follow 
the Guidelines.

    Question 11. What is your view of mandatory minimum criminal 
sentences and would you have any reluctance to impose or uphold them as 
a federal judge?
    Answer 11. Mandatory minimal criminal sentences are a valid 
exercise of Congressional authority. I would have no reluctance to 
impose or uphold them as a federal judge.

    Question 12. What would you do if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision? Or would you apply your own best 
judgment of the merits? Take, for example, the Supreme Court's recent 
decision in United States v. Playboy Entertainment Group Inc., No. 98-
1682 (decided May 22, 2000), where the Court struck down a provision of 
the 1996 Telecommunications Act that was designed to protect children 
from exposure to sexually explicit adult programming on cable 
television.
    Answer 12. If I were conformed as a Federal District Court Judge, I 
would apply a decision of the Supreme Court or the Court of Appeals to 
all cases before me when required. I would not apply any personal views 
to the merits of those decisions.

    Question 13. Please describe in reasonable detail your 
understanding of the case recently argued before the Supreme Court 
entitled Dickerson v. United States, which asked whether a defendant's 
voluntary confession could be admitted into evidence in the 
Government's case in chief under 18 U.S.C. Sec. 3501, even if the 
confession was not preceded by the warnings set forth in Miranda v. 
Arizona, 384 U.S. 486 (1966)? Please explain to the Committee your 
understanding of Miranda, Section 3501, and the proper role of the 
Congress and the Courts in establishing rules of evidence and procedure 
for federal courts. Also, please state whether you believe the Miranda 
decision is an example of judicial activism.
    Answer 13. The question presented in Dickerson is whether a 
voluntary confession may be admitted into evidence under 18 U.S.C. 
Sec. 3501, even if the confession was obtained without providing the 
warnings set forth in the Supreme Court case of Miranda v. Arizona. In 
the Miranda case, the Supreme Curt required certain admonishments given 
before any statements made by an accused could be admissible into 
evidence. Section 3501 uses a ``totality of the circumstances test'' to 
determine whether or not such a confession would be admissible even if 
Miranda warnings were not given. The case presents complicated legal 
issues, which will soon be resolved by the Supreme Court. If I am 
fortunate enough to be confirmed as a Federal District Court Judge, I 
will follow whatever the Supreme Court rules in the Dickerson case.

    Question 14. Please define judicial activism. In your view, is Roe 
v. Wade, 410 U.S. 113 (1973), an example of judicial activism?
    Answer 14. Judicial activism has sometimes been defined as an 
improper refusal of a judge to follow a statute or the precedential 
ruling of a higher court. Such judicial activism is inappropriate. 
Although some commentators have labeled Roe v. Wade as an example of 
judicial activism, if I am fortunate enough to be confirmed as a 
Federal District Court Judge, I would follow the Supreme Court's ruling 
in Roe v. Wade, as modified by Planned Parenthood 505 U.S. 833 (1992).

    Question 15. The Supreme Court, through a process of so-called 
selective incorporation, has applied most, if not all, of the 
provisions of the Bill of Rights against the States. Thus, for 
instance, the First Amendment, which originally was intended to apply 
only to the federal government, has been applied to the States. The 
Second Amendment, however, which protects the rights of law-abiding 
citizens to own firearms in this country, has not. Do you believe that 
Second Amendment ought to be applied to the States?
    Answer 15. If I were confirmed as a Federal District Court Judge, I 
would follow any Supreme Court precedent regarding this issue. If I am 
fortunate enough to be confirmed as a Federal District Court Judge and 
were presented with a Second Amendment case, I would follow Supreme 
Court precedent as well as the plain language of the Second Amendment.

    Question 16. If most of the other provisions of the Bill of Rights 
apply to the States, why shouldn't the Second Amendment? On what 
principled basis would it be appropriate to apply almost all of the 
other provisions of the Bill of Rights against the States, but not the 
Second Amendment?
    Answer 16. The decisions regarding the application of certain 
provisions of the first eight amendments to the Constitution to the 
States raises complicated legal issues. If I were confirmed as a 
Federal District Court Judge and a case presenting this issue came 
before me, I would carefully examine the facts of the case and research 
thoroughly all decisions involving the doctrine of incorporation and 
follow all binding precedent.

    Question 17. The precedents of Circuit Courts are binding on the 
district courts within the particular Circuit. Are you committed to 
following the precedents of higher courts faithfully and giving them 
full force and effect, even if you personally disagree with such 
precedents?
    Answer 17. The precedents of Circuit Courts are binding on all the 
district courts within that particular Circuit. If I am confirmed as a 
Federal District Court Judge, I would faithfully follow the precedents 
of the higher courts and give them full force and effect in every case.

    Question 18. You have stated that, if confirmed, you would be bound 
by Supreme Court precedent and the precedent of the Circuit Court of 
Appeals over your district or circuit. There may be times, however, 
when you will be faced with cases of first impression. What principles 
will guide you, or what methods will you employ, in deciding cases of 
first impression?
    Answer 18. I would first determine whether the case was truly one 
of first impression. If faced with such a case, the statute must be 
applied so as to give full effect to the intent of the legislature in 
enacting the statute. Legislative intent is first determined by giving 
effect to the plain meaning of the words of the statute. If there is 
doubt as to the meaning of the statute and no case precedent which has 
previously construed the statute, then a court should look to the 
interpretations given statutes that are analogous to the statute in 
question. If these means still do not permit a court to discern the 
legislative intent, then, under Supreme Court precedent, secondary 
sources such as legislative history and debate may be considered to 
make this determination. A judge should accord more weight to a 
committee report on the legislation than to the statements of 
individual elected officials in debates.
                                 ______
                                 
                               Circuit Court of the
                                     18th Judicial Circuit,
                                        Wheaton, IL, June 19, 2000.
Re Jacqueline Grischow.

Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen Senate 
        Office Building, Washington, DC.
    Dear Mr. Chairman: I have read letters written by Jacqueline 
Grischow to Senator Peter Fitzgerald dated May 23, 2000 and the Senate 
Judiciary Committee in care of Senator Orrin Hatch dated May 31, 2000. 
I have no present recollection of hearing Ms. Grischow's case. Appeals 
of a decision of the Illinois Industrial Commission are heard by the 
Circuit Court as an administrative review of the Commission's decision. 
The review is limited to the transcript of preceedings before the 
administrative agency. No evidence is considered by the Circuit Court 
Judge at this time.
    Ms. Grischow's accusations that I considered lies and false 
testimony, therefore, could not possibly have occurred. Of course, I do 
not threaten litigants before me and take every possible step regarding 
pro se litigants to try to minimize any anxiety in the experience in 
appearing in court without an attorney. I am certain this was true in 
the case of Ms. Grischow. It is unfortunate that Ms. Grischow has the 
perception she was treated unfairly by me, even though I ruled in her 
favor, as explained below. Ms. Grischow asserts that she was told that 
I discussed the case with her lawyer. I would never make the comments 
purportedly attributed to me by her attorney. Her attorney, Ralph 
Gabric, is a past-president of the Illinois State Bar Association and a 
lawyer with an impeccable reputation for honesty and legal propriety. 
It is difficult to believe that Mr. Gabric would have made the 
statements she attributes to him.
    My records disclose the following history of the case. The case was 
filed in 1990 by Ms. Grischow through her attorney against the Illinois 
Industrial Commission. I reversed the Commission's ruling against Ms. 
Grischow on June 26, 1991 and entered judgment in favor of her. My 
ruling was reversed by the Illinois Appellate Court in April of 1992, 
which reinstated the Commission's decision against Ms. Grischow. (See 
Answer 15(2) #12 on page 8 of my response to the United States Senate 
Questionnaire for Judicial Nominees). Five years later, in 1997, Ms. 
Grischow filed a pro se petition for further relief. Ms. Grischow's 
previous attorney, Ralph Gabric, had withdrawn from representing her in 
this matter. In August of 1997, I granted the defendant's motion to 
dismiss Ms. Grischow's petition for further relief. The defendant also 
sought sanctions against Ms. Grischow for her alleged frivolous 
continued prosecution of this claim. I refused to enter sanctions 
against her. In November of 1997, the Illinois Supreme Court denied Ms. 
Grischow's appeal to that court.
    I have never been advised by the Illinois Judicial Inquiry Board 
that Ms. Grischow has ever submitted any complaint regarding my conduct 
in her case. Thank you for your consideration of the foregoing. Please 
contact me if any further discussion is necessary.
            Very truly yours,
                                            John W. Darrah,
                                               Circuit Court Judge.
                                 ______
                                 

      Responses of Paul C. Huck to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Our tripartite form of government, providing an essential 
balance of powers, is the genius of our nation. It is founded on the 
clear notion that the will of the people is to be expressed by their 
elected representatives through laws which they enact or choose not to 
enact. The courts, on the other hand, are only to interpret those laws 
and the Constitution and to hear and resolve, in a neutral, evenhanded 
manner only those legal disputes which are properly brought before 
them, not to legislate.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. No, I have no personal objections to the death penalty 
that would cause me to be reluctant to impose or uphold a death 
sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. Mandatory minimum criminal sentences are an appropriate 
attempt to bring consistency, fairness and predictability to 
sentencing. I will uphold and follow these sentencing guidelines 
without any reluctance if confirmed as a judge of the United States 
District Court.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. Like mandatory minimum criminal sentences, the Federal 
Sentencing Guidelines properly reflect the collective judgment of those 
ultimately responsible for establishing an appropriate and consistent 
level of punishment for criminal activity. The basic premise for the 
guidelines is that sentencing should be uniform and not dependent upon 
the personal feelings of any particular judge. If confirmed, I will 
apply the guidelines as written.

    Question 5. As you know, the Prison Litigation Reform Act, which 
was an attempt to limit prisoner litigation and court involvement in 
prison operations. Do you believe that the Act has been beneficial to 
the legal system or do you believe it places too many restrictions on 
the ability of prisoners to make claims and for judges to remedy 
Constitutional violations in the prison context?
    Answer 5. The 1996 Prison Litigation Reform Act reflects a balance 
struck by Congress between eliminating frivolous prisoner litigation 
and preserving a limited role for courts in the prison context. By 
requiring exhaustion of administrative remedies by limiting the number 
of unsustainable lawsuits and by requiring the finding of a specific 
violation of a prisoner's constitutional rights, the PLRA appears to be 
beneficial to the legal system by more efficiency and fairly allocating 
its assets. It is reasonable to conclude that unnecessary litigation, 
which has burdened the federal courts with countless frivolous cases, 
will be eliminated and that, as a consequence, appropriate litigation 
may obtain even greater judical attention and resources. If confirmed, 
I will follow the PLRA and its applicable precedents.

    Question 6. As you are aware, Federal Rule of Civil Procedure 11 
permits federal judges to impose sanctions against attorneys for 
unwarranted claims or representations made in their pleadings. Some say 
this rule is an important tool for judges, while others believe it 
discourages litigants from testing the boundaries of existing law. What 
is your opinion of Rule 11?
    Answer 6. Rule 11 was a response to certain abusive litigation 
conduct by some lawyers and their clients and provides judges an 
additional and useful tool for assuring that pleadings filed by an 
attorney are filed in good faith. The range of Rule 11 sanctions, 
limited to that which will be sufficient to deter the offensive conduct 
involved, allows for a measured and incremental response to 
inappropriate litigation conduct. In my experience, most trial lawyers 
want courts to use these kinds of rules more often to counter 
unprofessional, sometimes unethical conduct. As I understand Rule 11, 
it does not unduly discourage attorneys from testing the boundaries of 
existing law. As Rule 11 has been interpreted, arguments for 
extensions, even reversal, of existing laws are not violations of Rule 
11 as long as they are non-frivolous. Moreover, the ``safe harbor'' 
provision, giving the alleged offender twenty-one days to consider 
withdrawing the filed papers, protects those attorneys who 
inadvertently file inappropriate pleadings.
                                 ______
                                 

       Responses of Paul C. Huck to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. A nominee for a federal judgeship should answer all 
questions asked of him or her consistent with the applicable Code of 
Conduct for federal judges. Whether refusal to answer any specific 
question warrants denial of confirmation depends on the circumstances 
involved.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. I agree that the more information a member of the United 
States Senate has about a District Court nominee, the better able that 
member is to personally evaluate the nominee. This includes the 
nominee's general understanding of Constitutional issues, the most 
important of which is whether that nominee will follow binding 
precedent of the Supreme Court and the applicable Circuit Court on 
Constitutional issues.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. It is my understanding that the purpose of the United 
States in holding hearings on nominees for the federal bench is to 
assure that qualified, experienced, honorable and respectful persons 
are appointed to the bench. Specifically with regard to District Court 
nominees, the Senate must assure itself that the nominees will follow 
binding precedent, will neutrally, even-handedly apply that precedent 
to a specific legal dispute properly brought before the court and will 
not legislate by allowing their own bias or personal views to dictate 
their decisions.

    Question 4. Is it possible for a Senator to advise and consent to 
the nominee if nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer 4. Yes, it is possible for a United States Senator to fairly 
and appropriately evaluate a nominee for purposes of advising and 
consenting where the nominee commits to following binding precedent to 
the best of his or her ability. This, of course, assumes that the 
nominee has also demonstrated a high level of legal ability and 
experience, excellent character, a judicial temperament and other 
positive personal qualities.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. A United States Senator can advise and consent to a 
nominee by asking questions regarding his or her general knowledge of 
the Constitution, ability to understand and analyze legal questions, 
and his or her commitment and ability to abide by the District Court's 
role in a constitutionally consistent fashion. That role is to decide 
specific legal disputes, which are narrowly and properly presented to 
the court by the litigants, on a neutral, unbiased basis under 
established precedent, and where there is no direct precedent the most 
closely analogous precedent, to ensure a fair, reasoned and consistent 
resolution.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. Questions that may be asked of a candidate without the 
candidate improperly prejudicing himself or herself include questions 
relating to the candidate's character, legal ability and experience, 
understanding of the limited role of the courts in our tripartite 
government, adherence to binding precedent, judicial temperament, 
personal background, financial issues, conflicts of interest issues, 
respect for others, work habits and similar subjects and 
characteristics.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No, each United States Senator has the right to ask any 
question which he or she deems appropriate and instructive as they 
relate to a judicial candidate's qualifications for appointment. 
However, the Code of Conduct sets limits to the answers which a federal 
judge may express, including those which may present an appearance of 
impartiality or of an advisory opinion.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. No, both U.S. District Court judges and U.S. Court of 
Appeals judges are bound by the Supreme Court's interpretation of the 
Constitution regardless of the judges' personal views, if any.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. I honestly do not know what I would have done because I 
cannot fairly place myself back in time, in those completely different 
circumstances and without the benefit of the history, regarding the 
issues and legal arguments raised in Dred Scott v. Sandford. This is 
particularly so without having the parties legal briefs, oral arguments 
and existing precedent.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated to the courts 
today?
    Answer 10. The Dred Scott v. Sandford decision is not good 
precedent today and should not be treated as precedent because it was 
abrogated.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60 U.S. (19 How.) 303 (1856)?
    Answer 11. Yes, as a U.S. District Court judge in 1857, I would 
have been bound to follow the holdings in Dred Scott v. Sandford.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Ferguson, 163 U.S. 539 (1896)?
    Answer 12. I cannot reasonably place myself back in 1896 and 
honestly state how I would have voted in Plessy v. Ferguson, 
particularly without the benefit of the contending briefs, oral 
arguments and a sense of all the then existing precedent.

    Question 13. In Plessy v. Ferguson, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Plessy v. Ferguson is not a good precedent for any court 
today and should not be treated as a binding decision because it was 
overruled by the Supreme Court.

    Question 14. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 14. If I were a Supreme Court Justice hearing the case of 
Brown v. Board of Education in 1954, I do not know how I would have 
ruled, particularly without having access to the factual context 
presented and considered, the decisions since Plessy v. Ferguson, the 
legal briefs and the oral argument which the Justices had to consider.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown v. Board of Education remains good precedent and 
should be treated as such by all inferior courts.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. I do not know how I would have ruled in Roe v. Wade, 
especially without the benefit of the parties' briefs, legal arguments 
and applicable precedents. Inferior courts are obligated to follow this 
case, as modified by Planned Parenthood v. Casey, as it is binding 
Supreme Court precedent.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation due process clause of 
the Fourteenth Amendment as an unjustified deprivation of liberty. Do 
you agree with the legal reasoning of the holding or of the Justice 
Renquist dissent in that case?
    Answer 17. Since the Roe v. Wade, holding, as modified by the 
Planned Parenthood v. Casey decision, is binding precedent, the role of 
a District Court Judge is to follow that precedent.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no personal view on any facet of the abortion 
issue which would prevent me from following applicable precedent and 
rendering a fair decision based on all relevant, binding precedent.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. The Supreme Court has held that the death penalty is 
constitutional. If confirmed I will follow that precedent. I have no 
personal view which would prevent me from imposing or upholding the 
death penalty.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no personal view which would prevent me from 
deciding any case which implicates the Second Amendment based on 
binding precedent.

    Question 21. In Planned Parenthood v. Casey, (505 U.S. 833 (1992)) 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. In Planned Parenthood v. Casey, the Supreme Court 
modified Roe v. Wade, and established a balance between the interests 
of the mother and those of the government. I have no personal view 
which would prevent me from deciding any case involving abortion issues 
in accordance with Planned Parenthood v. Casey, and any subsequent 
decisions on this issue.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the Issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal view on any facet of the abortion 
issue which would prevent me from following applicable precedent and 
rendering a fair decision based on all relevant, binding precedent.

    Question 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. Yes, the Supreme Court has ruled that the death penalty 
is constitutional, and like all Supreme Court precedent, if I were 
fortunate enough to be confirmed, I would be bound to and would follow 
that precedent.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. Stare decisis is an important legal concept necessary to 
``the rule of law'', which provides judges, lawyers and the public with 
consistency and predictability in their approach to legal questions. 
Supreme Court precedents should be seldom overruled, and then only by 
the Supreme Court and in such a way as to adhere as much as reasonably 
possible to the concept of stare decisis. The doctrine of stare decisis 
provides that the Supreme Court should not lightly overturn its 
precedent. The factors which a Supreme Court Justice may consider 
include whether the precedent has proven unworkable and whether 
overturning the precedent would damage the interests of those who 
relied on it and undermine the legitimacy of the courts.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. Answering the second question first, all courts should 
and must give full weight to the legislative intent of every 
Congressional act. Legislative intent is generally set forth in the 
plain language of the act. In answer to the second question, yes, when 
the legislative intent is not found in the plain language of the act, 
courts may resort to an examination of the act's legislative history, 
including committee reports and relevant testimony of elected officials 
leading to the passage of the act.

       Responses of Paul C. Huck to Questions From Senator Hatch

    Question 1. If a particular judge or court has a high rate of 
reversal on appeal, either to the Court of Appeals or to the Supreme 
Court, is that a problem? If it is, what can and should be done to 
remedy that problem?
    Answer 1. If a particular judge or court has a high rate of 
reversal on appeal which is noticeably beyond the norm, that appears to 
be a problem. The judge or court should first attempt to determine if 
there is an inappropriate cause for the abnormal rate of reversals. If 
it appears that there is such a cause, which the judge or court is 
unwilling or unable to rectify, then it may be appropriate for the 
chief judge to counsel with the judge or judges involved to try to 
rectify the situation.

    Question 2. In your view, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 2. The rights protected by the Constitution do not grow or 
shrink with changing historical circumstances. However, changing 
historical circumstances may affect how those protected rights are 
applied, for example, in the area of technology.

    Question 3. Under what circumstances do you believe it appropriate 
for a federal court to declare a statute enacted by Congress 
unconstitutional?
    Answer 3. A federal court may declare a statute enacted by Congress 
unconstitutional only under very limited circumstances, which 
circumstances are seldom present. To begin with, all congressional acts 
come to the federal courts with the presumption of being 
constitutional. Thus, in hearing any legal case challenging the 
constitutionality of a Congressional statute, the reviewing court must 
first assume constitutionality. Next, if there is a non-constitutional 
issue presented which will dispose of the case without implicating the 
constitutional issue, the case should be resolved on that other issue. 
However, if the constitutional issue must be addressed and if there are 
different interpretations of the effect of the statute, one which 
results in constitutionality, the other unconstitutionality, the court 
must accept the former interpretation in rendering its decision. 
Finally, if the court finds the statute unconstitutional, it must do so 
only in the narrowest manner so as to leave intact as much of the 
legislation as possible.

    Question 4. Please describe in reasonable detail the Supreme 
Court's recent decision in United States v. Morrison, and its 1995 
decision United States v. Lopez, explaining to the Committee your 
understanding of those decision, and their holdings regarding 
congressional power. Some commentators have accused the Supreme Court 
of judicial activism because of its decisions in those cases. Do you 
agree? Please explain.
    Answer 4. In United States v. Lopez, 514 U.S. 549 (1995), the 
Supreme Court, for the first time in many decades, struck down a 
Congressional act on the grounds that the act exceeded the Congress' 
Commerce Power. The Gun-Free School Zones Act of 1990 made it a federal 
crime to knowingly possess a firearm in a school zone. The Supreme 
Court held that the criminal conduct must substantially affect 
interstate commerce and that the Congress had not sufficiently 
demonstrated that the possession of guns in school zones substantially 
affected interstate commerce. In essence, the Supreme Court found that 
the act went beyond the Congress' power, did not truly involve 
commercial activity and was directed to a local rather than a national 
activity.
    In United States v. Morrison, 120 S.Ct. 1740 (2000), the Supreme 
Court, relying in large measure on Lopez, held unconstitutional that 
aspect of the Violence Against Women Act which provided a federal civil 
remedy for victims of gender-motivated violence. The Court held that 
this aspect of the VAWA exceeded the Congress' Commerce power because 
the prohibited act was not economic activity and was not sufficiently 
tied to or substantially affecting interstate commerce. Unlike Lopez, 
the Court acknowledged the VAWA was supported by numerous findings 
regarding the serious and aggregate impact of such violence on the 
victims and their families. However, the Supreme Court rejected these 
findings as being too attenuated to constitutionally support the 
Congress' Commerce power. In sum, as in Lopez, the Supreme Court 
concluded that the Constitution requires the courts to distinguish 
between prohibited activity which is truly national versus truly local, 
and that the Congress may not regulate non-economic, violent criminal 
activity based solely on the prohibited activities' aggregate effect of 
interstate commerce.
    The net effect of Lopez and Morrison appears to be that the Supreme 
Court will more carefully examine Congress' reliance on its Commerce 
powers to enact federal criminal and civil remedies legislation.
    As a litigator, I read Supreme Court decisions to determine their 
legal impact and applicability to my cases, without regard to whether 
they were the result of judicial activism. If I were a District Court 
judge, I would be obligated to follow, and would follow, precedent, 
including Morrison and Lopez.

    Question 5. In your view, is the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion or layoffs), college admissions and scholarship awards, and 
the awarding of government contracts, lawful under the Equal Protection 
Clauses of the 14th Amendment? Please explain.
    Answer 5. The Supreme Court has held that governmental use of race 
or national original-based preferences is unconstitutional and violates 
the Equal protection clause of the 14th Amendment. For example in 
Adarand Constructor, Inc. v. Pena, 515 U.S. 200 (1995) and City of 
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the Supreme Court 
ruled that strict scrutiny must be applied to all race-based 
affirmative action programs. This strict scrutiny requires that the 
government must demonstrate, by record evidence, a compelling 
governmental interest which justifies a remedy granted on such facially 
unequal treatment and further that the remedy selected is narrowly 
crafted and the least restrictive to accomplish that compelling 
interest. As to gender-based preferences, the Supreme Court has ruled 
that the intermediate scrutiny standard applies.

    Question 6. Do you believe that the view of the death penalty taken 
by Justices Brennan, Marshall and Blackmun--that the death penalty is 
unconstitutional notwithstanding the clear constitutional text 
sanctioning it--is a permissible view for a federal judge to hold?
    Answer 6. No. Justices Brennan, Marshall and Blackmun's view of the 
death penalty, as expressed in their dissenting opinions, is to a 
permissible option for any federal judge. The Supreme Court has clearly 
held that the death penalty is constitutional. Gregg v. Georgia, 428 
U.S. 153 (1976).

    Question 7. Do you personally have any legal or moral beliefs that 
would inhibit or prevent you from imposing a death sentence in any 
criminal case that might come before you as a federal judge? Please 
explain.
    Answer 7. I have no legal or moral belief which would inhibit or 
prevent me from imposing the death penalty in a case before me, if I 
were confirmed as a federal judge. The law on this point is clear and I 
will follow that law.

    Question 8. Do you believe that 10, 15 or even 20-year delays 
between conviction of a capital offender and execution is too long?
    Answer 8. Yes, delays of 10 to 20 years between conviction of a 
capital offender and execution are patently too long.

    Question 9. Do you believe that once Congress or a State 
legislature has made the policy decision that capital punishment is 
appropriate, then the federal courts should focus their resources on 
resolving capital cases fairly and expeditiously?
    Answer 9. Yes. Moreover, failure to do so undermines the public's 
confidence in the judicial system.

    Question 10. The sentencing of criminal defendants in federal court 
is conducted under the federal Sentencing Guidelines. Some have argued 
that the Guidelines do not provide enough flexibility for the 
sentencing judge, which others have argued that the Guidelines provide 
needed consistency in sentencing. What is your view of the federal 
Sentencing Guidelines and their application?
    Answer 10. The federal Sentencing Guidelines are an appropriate 
method to bring fairness, consistency and predictability to sentencing 
and to reflect the public will with regard to the level of punishment 
to be imposed. The collective wisdom and breadth of experience of those 
who establish the guidelines are obviously far greater than any federal 
judge or panel of judges.

    Question 11. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctances to impose or uphold them 
as a federal judge?
    Answer 11. Like the federal Sentencing Guidelines, mandatory 
minimum criminal sentences fairly reflect the public's voice with 
regard to the level of and consistency of punishment for specific 
criminal activity. If affirmed, I will follow both the Sentencing 
Guidelines and the mandatory minimum sentences.

    Question 12. What would you do if you believed the Supreme Court or 
the Court of Appeals has seriously erred in rendering a decision? Would 
you nevertheless apply that decision? Or would you apply your own best 
judgment of the merits? Take, for example, the Supreme Court's recent 
decision in United States v. Playboy Entertainment Group, Inc., where 
the Court struck down a provision of the 1996 Telecommunications Act 
that was designed to protect children from exposure to sexually 
explicit adult programming on cable television.
    Answer 12. Even if I, as a District Court judge, believed that the 
Supreme Court or the Eleventh Circuit Court of Appeals had seriously 
erred, I would be bound to, and I would, follow that decision, as I 
would all applicable precedent.

    Question 13. Please describe in reasonable detail your 
understanding of the case recently argued before the Supreme Court 
entitled Dickerson v. United States, which asked whether a defendant's 
voluntary confession could be admitted into evidence in the 
Government's case in chief under 18 U.S.C. Sec. 3501, even if the 
confession was not preceded by the warnings set forth in Miranda v. 
Arizona? Please explain to the Committee your understanding of Miranda, 
section 3501, and the proper role of the Congress and the Courts in 
establishing rules of evidence and procedure for federal courts. Also, 
please state whether you believe the Miranda decision is an example of 
judicial activism.
    Answer 13. In Dickerson v. United States, 166 F.3d 687 (4th Cir. 
1998), the District Court suppressed defendant's confession solely on 
the grounds that it was obtained in violation of Miranda v. Arizona. 
The Fourth Circuit held that the District Court erred in suppressing 
the confession. The Court of Appeals for the Fourth Circuit noted that 
the Congress had enacted 18 U.S.C. Sec. 3501 with the clear intent of 
supplanting Miranda v. Arizona with a rule that restored voluntariness 
as the test for admission of confessions in federal courts. That Court 
then concluded that Sec. 3501 was within the Congress' rule making 
powers over federal court's evidence and procedures and that Sec. 3501, 
not Miranda v. Arizona, governs the admissibility of confessions. The 
defendant appealed to the Supreme Court. Thus, the Supreme Court is 
faced squarely with the issue of whether the predicate warning set 
forth in and required by Miranda v. Arizona is a constitutional 
requirement or whether it is simply a court made rule or requirement. 
The determination of this issue is critical because if the Miranda 
warning is a constitutional requirement, the Congress may not enact 
statutes or rules which diminish that right. If, however, the Miranda 
warning is merely a court made rule, the Congress may enact laws which 
diminish that rule. In contrast to the bright-line test set forth in 
Miranda v. Arizona, Sec. 3501 established a balancing test for 
determining the voluntariness of a confession. The Sec. 3501 test takes 
into consideration the totality of the circumstances surrounding the 
accused's giving of his or her confession, including but not limited to 
whether or not the accused was advised by the authorities or otherwise 
knew that he or she was not required to make any statement that any 
statement could be used against him or her and that he or she was 
entitled to assistance of counsel.
    With regard to the proper role of the Congress and the courts in 
establishing rules of evidence and procedure for federal courts, in the 
absence of a constitutional prohibition to the contrary, that 
prerogative belongs to the Congress. The Congress expressly delegate to 
the courts those rule making tasks.
    As a litigator, I read Supreme Court decisions to determine their 
legal impact and applicability to my cases, without regard to whether 
they were the result of judicial activism. If I were a District Court 
judge, I would be obligated to follow, and would follow precedent, 
including the Supreme Court's decision to be rendered in Dickerson.
    Question 14. Please define judicial activism. In your view, is Roe 
v. Wade an example of judicial activism?
    Answer 14. ``judicial activism'' is courts legislating or 
administrating and is contrary to John Adam's classic and inciteful 
observation that ours is a ``government of laws, not of men.'' Article 
III of the Constitution both grants and circumstances the independent 
authority of federal courts. In exercising that limited authority, 
federal courts must acknowledge the constitutional balance of power and 
may not usurp the rights and prerogatives of the legislative and 
administrative branches of the government. Federal courts are limited 
to resolving only those legal cases which are properly before them and 
ripe for resolution. That resolution must be in a neutral manner 
consistent with precedent, free of the court's personal views, bias and 
agenda, and may not be used to advance the court's own political 
philosophy, if any, or attempt to impose on either the legislative or 
executive branches judicial oversight which is not specifically 
provided by the Constitution or statute. When a court fails to adhere 
to these principles, that is judicial activism.''
    As a litigator, I read Supreme Court decisions to determine their 
legal impact and applicability to my cases, without regard to whether 
they were the result of judicial activism. If I were a District Court 
judge, I would be obligated to follow, and would follow precedent, 
including Roe v. Wade, modified by Planned Parenthood v. Casey.

    Question 15. The Supreme Court, through a process of so-called 
selective incorporation, has applied most, if not all, of the 
provisions of the Bill of Rights against the States. Thus, for 
instance, the First Amendment, which originally was intended to apply 
only to the federal government, has been applied to the States. The 
Second Amendment, however, which protects the rights of law-abiding 
citizens to own firearms in this country, has not. Do you believe that 
Second Amendment ought to be applied to the States?
    Answer 15. If a binding precedent exists or comes into existence 
which holds either that the Second Amendment applies or does not apply 
to the States, I will, if confirmed, follow that precedent.

    Question 16. If most of the other provisions of the Bill of Rights 
apply to the States, why shouldn't the Second Amendment? On what 
principled basis would it be appropriate to apply almost all of the 
other provisions of the Bill of Rights against the States, but not the 
Second Amendment?
    Answer 16. If such an issue were presented to me, I would look to 
precedents of higher courts which have addressed the issue of 
incorporation and would follow those holdings on that issue. I have not 
personal view which would prevent me from following those precedents.

    Question 17. The precedents of Circuit Courts are binding on the 
district courts within the particular Circuit. Are you committed to 
following the precedents of higher courts faithfully and giving them 
full force and effect, even if you personally disagree with such 
precedents?
    Answer 17. Yes, I am fully committed to following the precedents of 
the Supreme Court and the Court of Appeals for the Eleventh Circuit. If 
I am fortunate enough to be confirmed as a District Court judge, I will 
faithfully follow such precedents, giving them full force and effect, 
even if I were to personally disagree with them.

    Question 18. You have stated that, if confirmed, you would be bound 
by Supreme Court precedent and the precedent of the Circuit Court of 
Appeals over your district or circuit. There may be times, however, 
when you will be faced with cases of first impression. What principles 
will guide you, or what methods will you employ, in deciding cases of 
first impression?
    Answer 18. In such rare cases of first impression, I would, if I am 
fortunate enough to be confirmed, employ the following analysis. In 
cases involving a statute, I would determine and follow the legislative 
intent of the statute. In most cases the legislative intent will be set 
forth in the clear language of the statute. In the absence of such 
language, I would look to secondary sources to determine legislative 
intent. This may be the legislative history or case precedents 
interpreting closely analogous statutes.
    In non-statutory cases. I would find the most analogous existing 
precedent where a superior court has decided a similar issue and try to 
determine my case as consistently as possible with that existing, 
analogous precedent.
                                   ____
                                 

  Responses of Joan Humphrey Lefkow to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. The fact that the legislature has not addressed a 
particular social problem may indicate that a consensus has not been 
reached among our elected representatives as to the most appropriate 
response to the problem, or it may mean that a consensus has been 
reached that the problem does not require a legislative response. Under 
our Constitution's separation of powers, it is not the role of the 
judiciary to act in place of Congress.

    Question 2. Do you have any objections to the death penalty that 
would cause you to be reluctant to impose or uphold a death sentence?
    Answer 2. I have no personal views regarding the death penalty that 
would prevent me from following the law regarding imposition of or 
upholding the death penalty. The Supreme Court of the United States has 
ruled in Gregg v. State of Georgia, 428 U.S. 153 (1976), that the 
Constitution permits the death penalty.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. Criminal penalties are set by the legislature, and 
mandatory minimum penalties are properly a legislative decision. If I 
were confirmed as a federal district judge, I would have no reluctance 
to impose or uphold mandatory minimum sentences as required by the 
statutes and Sentencing Guidelines.

    Question 4. As you are well aware, the sentencing of criminal 
defendants in Federal court is conducted under the Federal Sentencing 
Guidelines. Some argue that the Guidelines do not provide enough 
flexibility for the sentencing judge, while others say the Guidelines 
provided needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. Congress developed the Sentencing Guidelines in order to 
bring more uniformity to sentencing based on the legislative 
determination that disparities in sentencing that are not 
distinguishable on the basis of differences in either the magnitude of 
the crime or the harm to the victim undermine the public's confidence 
in our criminal justice system. Congress has committed to the 
Sentencing Commission the ongoing responsibility to monitor and assess 
whether the Guidelines provide sufficient consistency and flexibility. 
Whether judges should have more or less discretion in sentencing is an 
issue committed to the Congress. If I were confirmed I would impose 
sentences according to the Sentencing Guidelines.

    Question 5. As you know, the Prison Litigation Reform Act, was an 
attempt to limit prisoner litigation and court involvement in prison 
operations. Do you believe that the Act has been beneficial to the 
legal system or do you believe it places too many restrictions on the 
ability of prisoners to make claims and for judges to remedy 
Constitutional violations in the prison context?
    Answer 5. The Prison Litigation Reform Act was designed to 
discourage frivolous litigation while providing a limited role for 
courts to consider certain claims by prisoners. Having reviewed many 
prison civil rights cases which did not allege colorable constitutional 
claims, I agree that prisoner litigation has imposed a substantial 
burden on the federal court's limited resources and that the Act has 
alleviated that burden. If I were confirmed, I would adhere to the Act 
and Supreme Court and circuit precedent in applying the Act to cases 
before me.

    Question 6. As you are aware, Federal Rules of Civil Procedure 11 
permits federal judges to impose sanctions against attorneys for 
unwarranted claims or representations made in their pleadings. Some say 
this rule is an important tool for judges, while others believe it 
discourages litigants from testing the boundaries of existing law. What 
is your opinion of Rule 11?
    Answer 6. Because the courts are a finite resources, it is 
important to conserve that resource for legitimate cases and to demand 
proper conduct from counsel and parties. As with any punitive tool, a 
judge should be temperate in the imposition of Rule 11 sanctions and 
should take an incremental approach in dealing with misbehavior or 
misconduct by counsel or litigants. Motions for sanctions can generate, 
rather than discourage, litigation because a respondent to a motion may 
file a counter-motion against the movant, and the court must then 
devote time and thought to this satellite skirmish rather than the 
principal case. My experience leads me to believe that the revisions to 
Rule 11 made in the 1993 amendments, which allowed the courts somewhat 
more flexibility in responding to misconduct issues, strike a workable 
balance and facilitate the just, speedy, and inexpensive resolution of 
cases by restraining improper tactics by counsel and litigants.
                                 ______
                                 

   Responses of Joan Humphrey Lefkows to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refused to answer questions about a constitutional issue, 
should that individual be confirmed?
    Answer 1. The Senate should confirm those nominees whom it 
believes, in its collective judgment, are qualified for the position of 
federal judge. Although a nominee might be prevented by the Code of 
Conduct for United States Judges from answering some questions (``A 
judge should act at all times in a manner that promotes public 
confidence in the * * * impartiality of the judiciary.'' Canon 2A), it 
is ultimately the Senate's decision whether to confirm a judge who may 
not be able to respond to a question about a constitutional issue.

    Question 2. Aricle II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with the 
``advice and consent'' of the Senate. If you were a member of the 
United States Senate, would you agree that it is difficult to advise 
and consent to a nominee when a candidate refuses to answer questions 
on constitutional issues?
    Answer 2. Yes, it might be difficult to advise and consent to a 
nominee who refused to answer questions on Constitutional issues, 
unless the question impinged on the nominee's ethical responsibility to 
act in a manner that upholds the public's confidence in the 
impartiality of the judiciary.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. As I understand it, the purpose of a confirmation hearing 
is to give the members of the Judiciary Committee an opportunity to 
question a nominee about his or her qualifications, integrity, 
temperament, and knowledge of important constitutional cases.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if the nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer 4. Yes, a Senator may advise and consent to a nominee based 
on his or her qualifications, understanding of the proper role of a 
judge, and commitment to the following precedent, which implies a 
commitment to adhering to the legal analysis of that precedent.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. A Senator can advise and consent to a nominee based on 
the nominee's background and experience, appropriate temperament, 
understanding of the proper role of a judge, knowledge of the law and 
of the Constitution's doctrine of separation of powers. There are some 
questions, however, to which a nominee may not be able to respond 
because of constructions of the Code of Conduct.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. Questions concerning a nominee's background and 
experience which qualify the nominee for the responsibility of the 
position would not be likely to prejudice a candidate. Such questions 
include those relating to a nominee's ability to consider all positions 
presented, to follow the law as set down by statute and the higher 
courts, to exhibit suitable temperament, integrity, and decisiveness, 
and to possess good health, among other attributes.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No, there are no questions that are off limits for a 
Senator to ask, although a nominee may not be able to answer some 
questions consistent with the Code of Conduct.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
Judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. There are no circumstances in which a United States 
district judge or circuit judge is authorized to refuse to apply a 
Supreme Court precedent on the basis that the judge believes the 
precedent to be flatly wrong.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scott v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. Had I been a Supreme Court Justice in 1856, I do not know 
how I might have ruled in Dred Scott v. Sandford, but I trust I would 
have carefully considered the facts presented, the words of the 
Constitution, the arguments of the parties, and the views of my fellow 
justices.

    Question 10. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know there were eight 
separate opinions in the case, that blackslaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 10. Because the Thirteenth Amendment to the Constitution, 
ratified in 1865, prohibited slavery within the United States and the 
Fourteenth Amendment, ratified in 1868, granted citizenship to all 
person born or naturalized within the United States, Dred Scott v. 
Sandford holds no precedential value.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scott v. Sandford, 60, U.S. (19 How.) 393 (1856)?
    Answer 11. Had I been a judge in 1857, I would have been bound by 
my oath and would have been mandated to follow Dred Scott v. Sandford.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Freguson, 163 U.S. 537 (1896)?
    Answer 12. Had I been a Supreme Court Justice in 1896, I do not 
know how I might have ruled in Plessy v. Ferguson, but I trust I would 
have carefully considered the facts presented, the words of the 
Constitution, the arguments of the parties, and the views of my fellow 
justices.

    Question 13. In Plessy v. Ferguson, 163 U.S. 537 (1896), a majority 
of the Court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statute which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. After Brown v. Board of Education of Topeka, 347 U.S. 
483 (1954), the courts should treat Plessy v. Ferguson as having no 
precedential value.

    Question 14. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 14. Had I been a Supreme Court Justice in 1954, I do not 
know how I might have ruled in Brown v. Board of Education, but I trust 
I would have carefully considered the facts presented, the words of the 
Constitution, the arguments of the parties, and the views of my fellow 
justices.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown v. Board of Education has not been overruled, and 
it should be treated as having precedential value in cases to which it 
is applicable.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. Had I been a Supreme Court Justice in 1973, I do not 
know how I might have ruled in Roe v. Wade, but I trust I would have 
carefully considered the facts presented, the words of the 
Constitution, the arguments of the parties, and the views of my fellow 
justices.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statute which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Rehnquist dissent in that case?
    Answer 17. I have no views that would prevent me from following the 
holding of Roe v. Wade as modified by Planned Parenthood of 
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). If I am 
fortunate enough to be confirmed as a federal judge, it would be my 
duty to follow the law.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no views that would prevent me from following the 
precedents of the Supreme Court and the Seventh Circuit regarding 
abortion.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view of the issue of the death penalty?
    Answer 19. I have no views that would prevent me from following the 
law set forth by Congress and the Supreme Court regarding the 
imposition of the death penalty.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no views that would prevent me from applying the 
law as laid down by Congress and the higher courts to a case involving 
the Second Amendment.

    Question. 21. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. I have no views that would prevent me from following the 
precedents of the Supreme Court and the Seventh Circuit regarding 
abortion.

    Question. 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue. Do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no views that would prevent me from following the 
precedents of the Supreme Court and the Seventh Circuit regarding 
abortion.

    Question. 23. Do you believe that the death penalty is 
Constitutional?
    Answer 23. I have no personal views regarding the death penalty 
that would prevent me from following the law regarding the imposition 
or upholding the death penalty. The United States Supreme Court has 
ruled in Gregg v. State of Georgia, 428 U.S. 153 (1976), that the 
Constitution permits the death penalty.

    Question. 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. In Planned Parenthood of Southeastern Pennsylvania v. 
Casey, the Supreme Court wrote that ``when this Court reexamines a 
prior holding, its judgment is customarily informed by a series of 
prudential and pragmatic considerations designed to test the 
consistency of overruling a prior decision with the ideal of the rule 
of law, and to gauge the respective costs of reaffirming and overruling 
a prior case.'' The Supreme Court identified five separate factors to 
consider in determining whether to overrule precedent, namely, (1) 
whether the central rule of the earlier case has proven to be 
unworkable (and therefore continuing the rule would be intolerable); 
(2) whether there has been reliance on the continuation of the rule in 
the earlier case such that overruling it would add a special hardship 
to the consequences of overruling and add inequity to the costs of 
repudiating the rule; (3) whether related principles of law have 
evolved to the extent that they leave the old rule to be a remnant of 
an abandoned doctrine; (4) whether the factual assumptions at the heart 
of the earlier decision have so changed, or have come to be seen so 
differently, as to have robbed the old rule of significant application 
or justification; and (5) whether over time the factual assumptions on 
which the earlier case rested proved to be untrue. If I were a Supreme 
Court justice I would follow this precedent and apply these factors.

    Question. 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. The first rule in construing a statute is to ascertain 
the meaning of the language which Congress has enacted. A judge should 
not rely on statements of a member of Congress concerning congressional 
intent in derogation of the plain meaning of the statute. If that 
language is ambiguous, however, or if the meaning is not clear as it 
applies to the facts presented in a case, a judge may consider 
legislative intent and the testimony of elected officials underlying 
passage of the Act. Legislative history, such as that set forth in 
Committee reports, is entitled to greater weight where it reflects a 
consensus than where it reflects merely the statements of individual 
Senators and Representatives.
                                 ______
                                 

  Responses of Joan Humphrey Lefkaw's to Questions From Senator Hatch

    Question 1. If a particular judge or court has a high rate of 
reversal on appeal, either to the Court of Appeals or to the Supreme 
Court, is that a problem? If it is, what can and should be done to 
remedy that problem?
    Answer 1. A judge who has a high rate of reversal on appeal may 
well pose a problem for the administration of justice, both in terms of 
dispensing justice to litigants and of consuming an inordinate share of 
appellate judicial resources. Such a judge should examine carefully the 
opinions of the appellate court in the cases in which the judge has 
been reverse to learn where and why errors have occurred so that the 
judge may improve and correct his or her performance on the bench.

    Question 2. In your view, to what extent. If any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 2. The rights protected by the Constitution do not grow or 
shrink with changing historical circumstances, but from time to time 
the Supreme Court may be called upon to interpret a constitutional 
right in light of changing historical circumstances. For example, mass 
communication in 1789 occurred primarily through newspapers, but today 
we have the Internet.

    Question 3. Under what circumstances do you believe it appropriate 
for a federal court to declare a statute enacted by Congress 
unconstitutional?
    Answer 3. The Supreme Court recently stated in United States v. 
Morrison, ``Due respect for the decisions of a coordinate branch of 
Government demands that we invalidate a congressional enactment only 
upon a plain showing that Congress has exceeded its constitutional 
bounds.'' A court should always presume a statute to be constitutional 
and should construe it to avoid a constitutional question. Only where a 
statute cannot be reconciled with the clear mandate of the 
Constitution, as interpreted by the Supreme Court of the United States, 
may it be declared unconstitutional.

    Question 4. Please describe in reasonable detail the Supreme 
Court's recent decision in United States v. Morrison, 120 S. Ct 1740 
(2000), and its 1995 decision, United States v. Lopez, 514 U.S. 549 
(1995), explaining to the Committee your understanding of those 
decisions, and their holdings regarding congressional power. Some 
commentators have accused the Supreme Court of judicial activism 
because of its decisions in those case. Do your agree? Please explain.
    Answer 4. In Lopez, the Supreme Court held that the Gun-Free School 
Zones Act of 1990, 18 U.S.C. Sec. 922(q)(1)(A), which made it a federal 
crime to knowingly possess a firearm in a school zone, exceeded 
Congress' authority under the Commerce Clause. Likewise, in Morrison, 
the Supreme Court held that a provision of the 1994 Violence Against 
Women Act, which provided a federal civil remedy for victims of gender-
motivated violence, was beyond Congress' Commerce Clause powers. It 
also concluded that Sec. 5 of the Fourteenth Amendment did not provide 
authority for a federal cause of action based on gender-motivated 
violence.
     In Lopez, the Court identified three broad categories of activity 
that Congress may regulate under its Commerce Clause power: (1) the use 
of channels of interstate commerce, (2) the regulation and protection 
of instrumentalities of interstate commerce, or persons or things in 
interstate commerce, and (3) activities substantially affecting 
interstate commerce. The Court in Lopez, set out a framework for 
analyzing whether an activity substantially affects interstate 
commerce. The first consideration is whether the Intrastate activity in 
question is some sort of economic endeavor that substantially affects 
interstate commerce. Second, the Court considered whether the statutes 
had an express jurisdictional element which might limit their reach to 
a subset of the regulated activity that has an explicit connection with 
or effect on interstate commerce. The third consideration is whether 
there is legislative history with express findings about the effect of 
the activity on interstate commerce. Finally, the Court considered 
whether the link between the activities and a substantial effect on 
interstate commerce is attenuated. In other words, would the asserted 
link effectively obliterate the distinction between national and local 
authority. Whether these decisions are examples of judicial activism is 
not clear to me, though I am bound to follow these decisions in any 
events.

    Question 5. In your view, is the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion or layoffs), college admissions and scholarship awards, and 
the awarding of government contracts, lawful under the Equal Protection 
Clause of the 14th Amendment? Please explain
    Answer 5. Under Adarand Constructors v. Pena, 515 U.S. 200 (1995), 
state and federal laws that aid racial and minorities are subject to 
``strict scrutiny.'' There, the Supreme Court held unconstitutional a 
federal affirmative action program that encouraged government 
contractors to use ``disadvantaged business enterprises'' and that 
rebuttably presumed racial minorities weredisadvantaged. Under Adarand, 
such a program can be upheld only if it is designed to remedy past 
intentional discrimination and is narrowly tailored to advance a 
compelling governmental interest. With respect to gender-based 
preferences, the Supreme Court has indicated in the VMI case, United 
States v. Virginia, 518 U.S. 515, 533 (1996), that it would not adopt a 
strict scrutiny standard but rather an intermediate scrutiny standard.

    Question 6. Do you believe that the view of the death penalty taken 
by Justices Brennan, Marshall and Blackmun--that the death penalty is 
unconstitutional notwithstanding the clear constitutional text 
sanctioning it--is a permissible view for a federal judge to hold?
    Answer 6. The view that the death penalty is invariably 
unconstitutional is inconsistent with the decision of the Supreme Court 
in Gregg v. Georgia, 428 U.S. 153 (1976). There the Supreme Court 
pointed out that the text of the Constitution itself reflects the 
acceptance of the penalty of death, including the reference in the 
Fifth Amendment to a ``capital'' crime and to restraints on deprivation 
of ``life'' as well as liberty and property. The Supreme Court 
concluded. ``We hold that the death penalty is not a form of punishment 
that may never be imposed, regardless of the circumstances of the 
offense, regardless of the character of the offender, and regardless of 
the procedure followed in reaching the decision to impose it.'' In 
light of Gregg, it is impermissible for a federal district or appellate 
judge to hold a contrary view because such a judge must follow the 
rulings of the Supreme Court.

    Question 7. Do you personally have any legal or moral beliefs that 
would inhibit or prevent you from imposing a death sentence in any 
criminal case that might come before you as a federal judge? Please 
explain.
    Answer 7. I have no legal or moral beliefs that would inhibit or 
prevent me from imposing a death sentence in a criminal case before me 
where the law required a death sentence.

    Question 8. Do you believe that 10, 15 or even 20-year delays 
between conviction of a capital offender and execution is too long?
    Answer 8. Yes, delays of ten or more years between conviction and 
sentencing can undermine the confidence of the public in our system of 
justice.

    Question 9. Do you believe that once Congress or a State 
legislature has made the policy decision that capital punishment is 
appropriate, then the federal courts should focus their resources on 
resolving capital cases fairly and expeditiously?
    Answer 9. Yes. All cases, including capital cases, should be 
resolved fairly and expeditiously, in accordance with applicable 
statutes.

    Question 10. The sentencing of criminal defendants in federal court 
is conducted under the federal Sentencing Guidelines. Some have argued 
that the Guidelines do not provide enough flexibility for the 
sentencing judge, while others have argued that the Guidelines provide 
needed consistency in sentencing. What is your view of the federal 
Sentencing Guidelines and their application?
    Answer 10. Congress developed the Sentencing Guidelines in order to 
bring more uniformity to sentencing based on the legislative 
determination that disparities in sentencing that are not 
distinguishable on the basis of differences in either the magnitude of 
the crime or the harm to the victim undermine the public's confidence 
in our criminal justice system. Congress has committed to the 
Sentencing Commission the ongoing responsibility to monitor and assess 
whether the Guidelines provide sufficient consistency and flexibility. 
Whether judges should have more or less discretion in sentencing is an 
issue committed to the Congress. If I were confirmed I would impose 
sentences according to the Sentencing Guidelines.

    Question 11. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a federal judge?
    Answer 11. Criminal penalties are set by the legislature, and 
mandatory minimum penalties are properly a legislative decision. If I 
were confirmed as a federal district judge, I would have no reluctance 
to impose or uphold mandatory minimum sentences as required by the 
statutes and Sentencing Guidelines.

    Question 12. What would you do if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision? Or would you apply your own 
judgment of the merits? Take, for example, the Supreme Court's recent 
decision in United States v. Playboy Entertainment Group, Inc., No. 98-
1682 (decided May 22, 2000), where the Court struck down a provision of 
the 1996 Telecommunications Act that was designed to protect children 
from exposure to sexually explicit adult programming on cable 
television.
    Answer 12. If I believed that the Supreme Court or the Seventh 
Circuit had decided a case wrongly, I would still be obliged to follow 
it. Thee are no circumstances in which a United States district judge 
or circuit judge is authorized to refuse to apply a controlling Supreme 
Court or appellate court precedent on the basis that the judge believes 
the precedent to beflatly wrong. This would include the ruling in 
United States v. Playboy Enterprises Group, Inc.

    Question 13. Please describe in reasonable detail your 
understanding of the case recently argued before the Supreme Court 
entitled Dickerson v. United States, which asked whether a defendant's 
voluntary confession could be admitted into evidence in the 
Government's case in chief under 18 U.S.C. Sec. 3501, even if the 
confession was not preceded by the warnings set forth in Miranda v. 
Arizona, 384 U.S. 486 (1966). Please explain to the Committee your 
understanding of Miranda, section 3501, and the proper role of the 
Congress and Courts in establishing rules of evidence and procedure for 
federal courts. Also, please state whether you believe the Miranda 
decision is an example of judicial activism.
    Answer 13. Section 3501 of Title 18, United States Code, provides, 
in substantive part, that in a federal prosecution, ``a confession * * 
* shall be admissible in evidence if it is voluntarily given.'' Miranda 
v. Arizona imposes an exclusionary rule where a confession is given 
without specific advice of rights set forth in that decision, including 
the right not to make a statement and the right to advice of counsel.
    The question presented in United States v. Dickerson, is whether a 
confession given without prior Miranda warnings is still admissible 
under section 350 if the totality of the circumstances demonstrates 
that the confession was voluntarily given.
    Both Congress and the courts have a proper role in establishing 
rules of evidence and rules of procedure. In general, rules are 
generated in the first instance by the Judicial Conference of the 
United States, but they must be approved by Congress before they have 
the force of law. Of course, there are many instances in which Congress 
has initiated rules of procedure and admissibility. Section 3501 is an 
example. As a judge, my duty would be to read the cases and, without 
characterizing them, follow their holdings in applying them to a case 
before me.

    Question 14. Please define judicial activism. In your view, is Roe 
v. Wade, 410 U.S. 113 (1973), an example of judicial activism?
    Answer 14. Judicial activism, to me, occurs when a judge rules 
based on his or her own preferred views rather than on a proper 
interpretation of the Constitution. Whether an example of judicial 
activism or not, I would study Roe v. Wade as modified by Planned 
Parenthood v. Casey to ascertain their holdings and, without 
characterizing the cases, follow their holdings in ruling on a case 
before me. I hold no personal views that would prevent me from 
following the Roe and Casey decisions.

    Question 15. The Supreme Court, through a process of so-called 
selective incorporation, has applied most, if not all, of the 
provisions of the Bill of Rights against the States. Thus, for 
instance, the First Amendment, which originally was intended to apply 
only to the federal government, has been applied to the States. The 
Second Amendment, however, which protects the rights of law-abiding 
citizens to own firearms in this country, has not. Do you believe that 
the Second Amendment ought to be applied to the States?
    Answer 15. I do not hold a view of whether the Second Amendment 
should apply to the States, but should the Supreme Court or the Seventh 
Circuit so hold, I will follow that ruling in any case that might come 
before me should I be confirmed as a district judge.

    Question 16. If most of the other provisions of the Bill of Rights 
apply to the States, why shouldn't the Second Amendment? On what 
principled basis would it be appropriate to apply almost all of the 
other provisions of the Bill of Rights against the States, but not the 
Second Amendment?
    Answer 16. I hold no view on the ``selective incorporation'' cases, 
but if such a case were before me, I would study those cases, follow 
the principles set forth in them and follow the relevant guidance of 
the higher courts.

    Question 17. The precedents of Circuit Courts are binding on the 
district courts within the particular Circuit. Are you committed to 
following the precedents of higher courts faithfully and giving them 
full force and effect, even if you personally disagree with such 
precedents?
    Answer 17. I am committed to following the precedents of higher 
courts faithfully and to giving them full force and effect, even where 
I personally disagree with the precedents.

    Question 18. You have stated that, if confirmed, you would be bound 
by Supreme Court precedent and the precedent of the Circuit Court of 
Appeals over your district or circuit. There may be times, however, 
when you will be faced with cases of first impression. What principles 
will guide you, or what methods will you employ, in deciding cases of 
first impression?
    Answer 18. Should I be confirmed as a district judge and should I 
be presented with a case of first impression, which happens only 
rarely, I would first carefully examine the law on which the claim or 
defense was based to be certain that it, in fact, presented a question 
of first impression. If it were, and if a question of statutory 
construction were presented, I would look for the plain meaning of the 
statute. If the statute's meaning was ambiguous or if its applicability 
to the facts presented were uncertain, I would examine the legislative 
history to see whether it would shed light on the meaning of the 
statute. Whether a statutory or non-statutory issue, I would be guided 
by analogous reasoning of the United States Supreme Court and the Court 
of Appeals for the Seventh Circuit. If I were still unable to resolve 
the issue, I would consider the well reasoned opinions of state and 
federal courts treating similar issues in reaching my decision.
                                 ______
                                 

     Responses of George Z. Singal to Questions From Senator Smith

    Question 1. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If a nominee for any federal 
judgeship refuses to answer questions about a Constitutional issue, 
should that individual be confirmed?
    Answer 1. A nominee should attempt to answer all of a Senator's 
questions; however, there may be some questions that a nominee may not 
answer due to the obligations of the Code of Judicial Conduct. The 
determination of whether to vote to confirm a nominee is, of course, 
left to each Senator.

    Question 2. Article II, Section 2 of the Constitution states that 
the President shall have the power to appoint federal judges with ``the 
advice and consent'' of the Senate. If you were a member of the United 
States Senate, would you agree that it is difficult to advise and 
consent to a nominee when a candidate refuses to answer questions on 
Constitutional issues?
    Answer 2. Yes, but I would do my best to take the measure of the 
nominee based on the person's education, experience, general 
background, and the recommendations of people the Senator respects.

    Question 3. What is the purpose of the United States Senate in 
holding hearings on nominees for the federal bench?
    Answer 3. Article II, Section 2 of the Constitution provides for 
the ``advise and consent'' of the Senate. A hearing provides a Senator 
the ability to personally evaluate the individual and assess his or her 
qualifications for the position.

    Question 4. Is it possible for a Senator to advise and consent to a 
nominee if the nominee simply refers to precedent without explaining 
his or her legal analysis?
    Answer 4. Yes, a statement by a nominee that he or she would follow 
precedent may be taken as indicating that the nominee would follow the 
legal analysis of that precedent and apply it to the facts presented by 
a particular case.

    Question 5. How can I as a Senator advise and consent to a nominee 
without answers to Constitutional questions?
    Answer 5. A Senator can make a decision as to a nominee's 
qualification based upon an examination of a nominee's background, 
education, work experience, and recommendations.

    Question 6. What questions are legitimate to ask a candidate 
without the candidate prejudicing himself or herself?
    Answer 6. A Senator has a right to ask the candidate any question. 
Questions about a nominee's background, education, work experience, and 
commitment to following precedent, among others, can be answered 
without the candidate prejudicing himself or herself.

    Question 7. Are there any questions that you feel are off limits 
for a Senator to ask?
    Answer 7. No, there are no questions I believe that are off limits 
for a Senator to ask.

    Question 8. If a U.S. District Court Judge or U.S. Court of Appeals 
Judge concludes that a Supreme Court precedent is flatly contrary to 
the Constitution, are there any circumstances under which the Judge may 
refuse to apply that precedent to the case before him or her?
    Answer 8. A U.S. District Court Judge or U.S. Court of Appeals 
Judge is required by oath to follow the precedent set by the United 
States Supreme Court, even if the judge were to conclude that the 
higher court had erred.

    Question 9. If you were a Supreme Court Justice in 1856, what would 
you have held in Dred Scot v. Sandford, 60 U.S. (19 How.) 393?
    Answer 9. Without having practiced law in that era, and having had 
the benefit of the briefs and the oral argument before the court, as 
well as discussions with other Supreme Court Justices, I am unable to 
determine how I would have held in that case.

    Question 10. In Dred Scot v. Sandford, 60 U.S. (19 How.) 393 
(1856), the court apparently held, as you well know, there were eight 
separate opinions in the case, that black slaves were not citizens of 
the United States. How should that precedent be treated by the courts 
today?
    Answer 10. Dred Scot v. Sandford was ultimately reversed by 
amendment to the Constitution and is not binding precedent today.

    Question 11. If you were a judge in 1857, would you have been bound 
by your Oath and would you have been mandated to follow the binding 
precedent of Dred Scot v. Sandford, 60 U.S. (19 How.) 393 (1856)?
    Answer 11. Yes, a judge in 1857 would, by his oath of office, be 
required to follow that binding precedent.

    Question 12. If you were a Supreme Court Justice in 1896, what 
would you have held in Plessy v. Fergusen, 163 U.S. 539 (1896)?
    Answer 12. Without having practiced law in that era, and having had 
the benefit of the briefs and the oral argument before the court, as 
well as discussions with other Supreme Court Justices, I am unable to 
determine how I would have held in Plessy v. Fergusen.

    Question 13. In Plessy v. Fergusen, 163 U.S. 539 (1896), a majority 
of the court held as not a violation of the Fourteenth Amendment to the 
Constitution a Louisiana statue which provided that all railway 
companies provide ``equal but separate accommodations'' for black and 
white passengers, imposing criminal penalties for violations by railway 
officials. How should that precedent be treated by the Courts?
    Answer 13. Plessy v. Fergusen has since been overruled by later 
case law and subsequent legislation. Therefore, it should not be 
considered binding precedent by the courts.

    Question 14. If you were a Supreme Court Justice in 1954, what 
would you have held in Brown v. Board of Education, 347 U.S. 483 
(1954)?
    Answer 14. Without having practiced law in that era, and having had 
the benefit of the briefs and the oral argument before the court, as 
well as discussions with other Supreme Court Justices, I am unable to 
determine how I would have held in Brown v. Board of Education.

    Question 15. In Brown v. Board of Education, 347 U.S. 483 (1954), 
the court held that the segregation of children in public schools 
solely on the basis of race, even though the physical facilities and 
other tangible factors may be equal, deprive the children of the 
minority group of equal educational opportunities contrary to the 
protections contained within the Fourteenth Amendment to the 
Constitution. How should that precedent be treated by the Courts?
    Answer 15. Brown v. Board of Education, has not been overturned by 
subsequent case law or constitutional amendment and is binding on the 
lower courts.

    Question 16. If you were a Supreme Court Justice in 1973, what 
would you have held in Roe v. Wade, 410 U.S. 113 (1973)?
    Answer 16. Without having practiced law in that era, and having had 
the benefit of the briefs and the oral argument before the court, as 
well as discussions with other Supreme Court Justices, I am unable to 
determine how I would have held in Roe v. Wade.

    Question 17. In Roe v. Wade, 410 U.S. 113 (1973), the court held 
that a Texas statue which proscribed an abortion except when necessary 
to save the life of the mother was a violation of the due process 
clause of the Fourteenth Amendment as an unjustified deprivation of 
liberty. Do you agree with the legal reasoning of the holding or of the 
Justice Renhquist dissent in that case?
    Answer 17. The holding in Roe v. Wade, as modified in Planned 
Parenthood v. Casey is binding on the lower courts. Lower court judges 
must follow the majority's holding in any precedential area.

    Question 18. We understand the Supreme Court precedent, but what is 
your personal view on the issue of abortion?
    Answer 18. I have no personal beliefs preventing me from following 
the binding precedent of the Supreme Court on this issue.

    Question 19. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the death penalty?
    Answer 19. I have no personal beliefs that would prevent me from 
applying or upholding the death penalty in accordance with the law.

    Question 20. We understand the Supreme Court precedent, but what is 
your personal view on the issue of the Second Amendment to the 
Constitution?
    Answer 20. I have no beliefs that would prevent me from following 
binding precedent set forth in my Circuit or the Supreme Court with 
regard to the Second Amendment.

    Question 21. In Planned Parenthood v. Casey (505 U.S. 833 (1992)), 
the Supreme Court held that the government interest in preserving life 
must be balanced against a mother's right of privacy and access to 
abortion which may not be unduly burdened. Do you believe the ``right 
to privacy'' includes the right to take away the life of an unborn 
child?
    Answer 21. This issue has been addressed by the Supreme Court in 
Casey. I have no personal beliefs that would prevent me from following 
binding Supreme Court and Circuit precedent on this issue.

    Question 22. Again, I understand the state of the law on the 
Supreme Court's interpretation on the issue of abortion, but I am 
interested in your personal beliefs on the issue, do you personally 
believe that an unborn child is a human being?
    Answer 22. I have no personal beliefs that would prevent me from 
following binding precedent regarding this issue.

    Question 23. Do you believe that the death penalty is 
constitutional?
    Answer 23. I have no personal beliefs that prevent me from 
following the Supreme Court's precedent that the death penalty is 
constitutional.

    Question 24. If you were a Supreme Court Justice, under what 
circumstances would you vote to overrule a precedent of the Court?
    Answer 24. Under the principle of stare decisis, courts are 
obligated to follow precedent. In those rare circumstances in which the 
Supreme Court considers overruling a previous decision, the Supreme 
Court looks to its precedent in this regard, such as Planned Parenthood 
v. Casey, 505 U.S. 833 (1992). If I were a Supreme Court Justice, I 
would follow this precedent and apply the factors listed in the Casey 
decision.

    Question 25. Do you consider legislative intent and the testimony 
of elected officials in debates leading up to passage of an act? And 
what weight do you give legislative intent?
    Answer 25. In determining the meaning of legislation, a judge 
should look to the plain language of the statute. If the language is 
ambiguous, legislative intent can be derived from a number of sources 
such as committee reports. The weight to be given to committee reports 
and statements of individual legislators is determined by prior 
precedent. I would view with caution the statements of an individual 
legislator because they may not reflect the consensus of the 
legislative body as a whole.
                                 ______
                                 

     Responses of George Z. Singal to Questions From Senator Hatch

    Question 1. If a particular judge or court has a high rate of 
reversal on appeal, either to the Court of Appeals of to the Supreme 
Court, is that a problem? If it is, what can and should be done to 
remedy that problem?
    Answer 1. Yes, it would be a problem for a particular judge or 
court to have a high rate of reversal on appeal. If a Federal District 
Court Judge, for example, found that he or she had such a problem, the 
judge could remedy the problem by carefully reviewing each reversal, 
scrupulously following the holding and reasoning of the higher court, 
and thoroughly reading all applicable precedents of the Supreme Court 
and the Court of Appeals.

    Question 2. In your review, to what extent, if any, do the rights 
protected by the Constitution grow or shrink with changing historical 
circumstances?
    Answer 2. The rights protected by the Constitution are reflected in 
the plain language of the document. Supreme Court precedents 
interpreting these rights may change over time due to the application 
of the law to new subjects, such as new technologies. However, the job 
of a District Court Judge is to follow precedent and not to create new 
rights or otherwise legislate from the bench.

    Question 3. Under what circumstances do you believe it appropriate 
for a federal court to declare a statute enacted by Congress 
unconstitutional?
    Answer 3. Only rarely and when compelled by precedent may a federal 
court declare a statute unconstitutional. A federal court should make 
every effort to interpret a statute in a way to permit it to be 
constitutional, and a court should be very hesitant to rule otherwise. 
Statutes are entitled to a presumption of constitutionality.

    Question 4. Please describe in reasonable detail the Supreme 
Court's recent decision in United States v. Morrison 120 S. Ct. 1740 
(2000), and its 1995 decision United States v. Lopez 514 U.S. 548 
(1995), explaining to the Committee your understanding of those 
decisions, and their holdings regrading congressional power. Some 
commentators have accused the Supreme Court of judicial activism 
because of its decisions in those cases. Do you agree? Please explain.
    Answer 4. In United States v. Morrison 120 S. Ct. 1740 (2000), the 
Supreme Court held that a provision of the Violence Against Women Act 
which created a federal cause of action for victims of sexual assault, 
exceeded Congress's power under the Commerce Clause.
    In United States v. Lopez 514 U.S. 548 (1995), the Supreme Court 
held that the Gun-free School Zone Act, which made it a federal crime 
to knowingly carry a firearm in a school zone, exceeded Congress' power 
under the Commerce Clause.
    In both cases the Supreme Court found that the intrastate activity 
at issue did not ``substantially affect'' interstate commerce, and thus 
Congress could not enact the laws.
    I would not characterize these decisions as activist; I do not read 
Supreme Court decisions with a view to determine if they are examples 
of activism, but to determine what they hold. If confirmed, I would be 
obligated to follow and I would follow these decisions and all 
precedents of higher courts.

    Question 5. In your view, is the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion or layoffs), college admissions and scholarship awards, and 
the awarding of government contracts, lawful under the Equal Protection 
Clause of the 14th Amendment? Please explain.
    Answer 5. In Adarand Constructor v. Pena, 515 U.S. 200 (1995), the 
Supreme Court held that the use of race-based or national origin-based 
preferences in governmental program or decisions is subject to strict 
scrutiny review, must serve a compelling governmental interest, and be 
narrowly tailored to serve that interest. In U.S. v. Virginia 518 U.S. 
515 (1996), the Supreme Court held that the ``intermediate scrutiny'' 
standard applies to gender-based preferences in governmental programs 
and decisions. I have no beliefs that prevent me from following this 
precedent.

    Question 6. Do you believe that the view of the death penalty taken 
by Justices Brennan, Marshall and Blackman--that the death penalty is 
unconstitutional notwithstanding the clear constitutional text 
sanctioning it--is a permissible view of a federal judge to hold?
    Answer 6. No, The Supreme Court has ruled that the death penalty is 
constitutional and has noted that it was contemplated by the plain 
language of the Constitution. I have no beliefs that prevent me from 
following this precedent.

    Question 7. Do you personally have any legal or moral beliefs that 
would inhibit or prevent you from imposing a death sentence in any 
criminal case that might come before you as a federal judge? Please 
explain.
    Answer 7. I have no legal or moral beliefs that would inhibit or 
prevent me from imposing a death sentence in any applicable criminal 
case that might come before me as a federal judge.

    Question 8. Do you believe that 10, 15 or even 20-year delays 
between a conviction of a capital offender and execution is too long?
    Answer 8. Yes, delays of 10 to 20 years are too long. There is no 
place in our system for frivolous appeals or undue delay.

    Question 9. Do you believe that once Congress or a State 
legislature has made the policy decision that capital punishment is 
appropriate, then the federal courts should focus their resources on 
resolving capital cases fairly and expeditiously?
    Answer 9. Yes, I believe that all courts should resolve capital 
cases fairly and expeditiously.

    Question 10. The sentencing of criminal defendants in federal 
courts is conducted under the Federal Sentencing Guidelines. Some have 
argued that the Guidelines do not provide enough flexibility for the 
sentencing judge, while others have argued that the Guidelines provide 
needed consistency in sentencing. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 10. I recognize that Congress has the power to determine the 
Federal Sentencing Guidelines, which promote both consistency and 
predictability in sentencing. I would have no reluctance to apply them.

    Question 11. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a federal judge?
    Answer 11. It is fully within the power of Congress to legislate 
mandatory minimum sentences. I would have no reluctance as a judge to 
impose them.

    Question 12. What would you do if you believed the Supreme or the 
Court of Appeals had seriously erred in rendering a decision? Would you 
nevertheless apply that decision? Or would you apply your own best 
judgment of the merits? Take, for example, the Supreme Court's recent 
decision in United States v. Playboy Entertainment Group Inc. No. 98-
1682 (decided May 22, 2000), where the Court struck down a provision of 
the 1996 Telecommunications Act that was designed to protect children 
from exposure to sexually implicit adult programming on cable 
television.
    Answer 12. Even if I believe the Supreme Court or the Court of 
Appeals had seriously erred in rendering a decision, I would be 
obligated to follow and would follow the precedent in the applicable 
case. A federal District Court Judge is required by oath to follow 
binding precedent as set forth by a higher Court, regardless of the 
judge's personal views. I have no beliefs that would prevent me from 
doing otherwise regarding the Playboy case or any other binding 
precedent.

    Question 13. Please describe in reasonable detail your 
understanding of the case recently argued before the Supreme Court 
entitled Dickerson v. United States, which asked whether a defendant's 
voluntary confession could be admitted into evidence in the 
Government's case in chief under 18 U.S.C. Sec. 3501, even if the 
confession was not preceded by the warnings set forth in Miranda v. 
Arizona 384 U.S. 486 (1966)? Please explain to the Committee your 
understanding of Miranda, section 3501, and the proper role of the 
Congress and the Courts in establishing rules of evidence and procedure 
for federal courts. Also, please state whether you believe the Miranda 
decision is an example of judicial activism.
    Answer 13. Miranda v. Arizona 384 U.S. 486 (1966), remains binding 
on lower courts, but the Supreme Court is considering a challenge to 
the case and I would follow the holding of the Supreme Court on this 
issue, whatever the holding is. The question presented to the Supreme 
Court in Dickerson v. United States is whether 18 U.S.C. Sec. 3501 
(which takes a totality of the circumstances approach) controls the 
determination regarding the admissibility of a confession, or whether 
the Supreme Court's decision in Miranda controls that determination. In 
Dickerson, the Supreme Court is considering whether the rubric of 
warnings in Miranda is constitutionally mandated and, if not, whether 
Congress can substitute its judgment, i.e., 18 U.S.C. Sec. 3501, for 
the Court-generated rule. I have no beliefs regarding Miranda that 
would prevent me from following precedent in this area.

    Question 14. Please define judicial activism. In your view, is Roe 
v. Wade 410 U.S. 113 (1973) an example of judicial activism?
    Answer 14. Judicial activism has been defined as judges 
``legislating'' for the public. The holding in Roe v. Wade as modified 
in Planned Parenthood v. Casey is binding on the lower courts. Lower 
court judges must follow the majority's holding in any precedential 
area. I have no beliefs that would prevent me from following Roe v. 
Wade as modified by Planned Parenthood v. Casey.

    Question 15. The Supreme Court, through a process of so-called 
selective incorporation, has applied most, if not all, of the 
provisions of the Bill of Rights against the States. Thus, for 
instance, the First Amendment, which originally was intended to apply 
only to the federal government, has been applied to the States. The 
Second Amendment, however, which protects the rights of law-abiding 
citizens to own firearms in this country, has not. Do you believe that 
the Second Amendment ought to be applied to the States?
    Answer 15. If the Supreme Court were to find that the Second 
Amendment applied to the states, I would be obligated to follow and 
would follow that precedent. I have no beliefs that would prevent me 
from following binding precedent relative to the Second Amendment.

    Question 16. If most of the other provisions of the Bill of Rights 
apply to the States, why shouldn't the Second Amendment? On what 
principled basis would it be appropriate to apply almost all of the 
other provisions of the Bill of Rights against the States, but not the 
Second Amendment?
    Answer 16. I have no view about whether or not the Second Amendment 
should apply to the states, but I would follow the determination of a 
higher court on this issue. I have no beliefs that would prevent me 
from following binding precedent relative to the Second Amendment.

    Question 17. The precedents of Circuit Courts are binding on the 
district courts within the particular Circuit. Are you committed to 
following the precedents of higher courts faithfully and giving them 
full force and effect, even if you personally disagree with such 
precedents?
    Answer 17. Yes, I am committed to following the precedents of 
higher courts faithfully and giving them full force and effect, even if 
I were to personally disagree.

    Question 18. You have stated that, if confirmed, you would be bound 
by Supreme Court precedent and the precedent of the Circuit Court of 
Appeals over your district or circuit. There may be times, however, 
when you will be faced with cases of first impression. What principles 
will guide you, or what methods will you employ, in deciding cases of 
first impression?
    Answer 18. It is rare that a Federal District Court determines a 
case of first impression. I would first look to the plain language of 
the statute and then would look to analogous case law from the Supreme 
court and the Circuit Courts of Appeal and apply that case law.


 NOMINATIONS OF GLENN A. FINE TO BE INSPECTOR GENERAL, U.S. DEPARTMENT 
   OF JUSTICE; DENNIS M. CAVANAUGH, JAMES S. MOODY, JR., GREGORY A. 
          PRESNELL, AND JOHN E. STEELE (U.S. DISTRICT JUDGES)

                              ----------                              - 
- -


                        WEDNESDAY, JULY 12, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:10 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Bob Smith, 
presiding.
    Also present: Senator Torricelli.

OPENING STATEMENT OF HON. ROBERT SMITH, A U.S. SENATOR FROM THE 
                     STATE OF NEW HAMPSHIRE

    Senator Smith. The hearing will come to order. Senator 
Torricelli is on his way, and I thought in the interests of 
time I would just begin the process.
    Today, the Judiciary Committee is holding its seventh 
nominations hearing in the second session of the 106th 
Congress. That was a question, by the way, last night, the 
$500,000 question on ``The Millionaire,'' which Congress were 
we now in. So I am assuming everybody in this room would have 
known the answer.
    At this hearing, we will consider the nominations of our 
individuals who have been nominated by the President to be 
Federal judges, and one individual to be an official with the 
Department of Justice.
    We will have three panels of witnesses this afternoon. The 
first will consist of the sponsors of the nominees, who will 
give brief statements on behalf of their nominees. The second 
panel will consist of Glenn A. Fine, of Maryland, to be 
Inspector General of the Department of Justice.
    The third panel will consist of the four district court 
nominees--Judge Dennis M. Cavanaugh, of New Jersey, to be U.S. 
District Judge for the District of New Jersey; Judge James S. 
Moody, Jr., of Florida, to be U.S. District Judge for the 
Middle District of Florida; attorney Gregory A. Presnell, of 
Florida, to be U.S. District Judge for the Middle District of 
Florida; and Judge John E. Steele, of Florida, to be U.S. 
District Judge for the Middle District of Florida.
    Before we turn to the panels, I would yield to the ranking 
member, but in the interests of time, while he still not here, 
let me also introduce the Senators who will be testifying here 
this afternoon on behalf of their respective nominees--Senator 
Frank Lautenberg, Senator Bob Graham, and Senator Connie Mack.
    So why don't we come on up, gentlemen? Let's see. Who is 
the senior man here? Lautenberg, right?
    Senator Lautenberg. You can tell by the hair color.
    Senator Smith. Senator Lautenberg.

  STATEMENT OF HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Lautenberg. Thanks very much, Senator Smith. I want 
to thank you in your role as chairman here for bringing Dennis 
Cavanaugh's nomination up for consideration before the 
Judiciary Committee. I appreciate your efforts, which will 
ensure that the Federal bench in New Jersey is at full 
strength.
    As you may know, Mr. Chairman, Dennis Cavanaugh has been a 
magistrate judge since 1993. Over the past seven years, he has 
handled a number of difficult and complex cases. He has 
consistently demonstrated efficiency, fairness, and compassion. 
We have come to expect that from our Federal jurists, and he 
will be a terrific asset as a district court judge.
    Mr. Chairman, Mr. Cavanaugh also has a strong work ethic, 
and I know him very well. He is a New Jersey fellow through and 
through, and he has got the kind of work ethic that is 
essential for judges who are called on to handle literally 
hundreds of cases at a time. His current duties include 
managing all of the civil cases assigned to two active district 
judges and half of the civil cases assigned to a senior 
district judge. So he has got a workload that totals more than 
600 cases.
    Magistrate Cavanaugh's legal career includes years of 
public service as a public defender, from 1973 until 1977. Then 
he began private practice as a trial attorney, handling civil 
litigation and some criminal cases, and he has been a partner 
with several distinguished firms in New Jersey. His clients 
have included small businesses, educational institutions, 
insurance companies, public entities, and the Police Benevolent 
Association. His experience with such a broad range of 
interests is one of the reasons that he has performed so 
effectively as a magistrate judge.
    Magistrate Cavanaugh has also done his part to help ease 
the caseloads that overwhelm other judges. He volunteered for 
pro bono assignments at the superior court in Essex County, 
where there was a severe backlog of civil cases. Additionally, 
he has been handling bail hearings, settlement conferences, and 
a wide range of other judicial duties. He has also found time 
to teach as an adjunct professor at his alma mater, Seton Hall 
University School of Law, in Newark.
    And it is that kind of experience and energy that has made 
New Jersey's Federal bench one of the most impressive in the 
country. Magistrate Cavanaugh's entire career history reflects 
the integrity and dedication that we want to see in our Federal 
judges, and I know his service on the district court bench 
would be equally outstanding.
    As I said earlier, Mr. Chairman, if the Senate confirms 
Magistrate Cavanaugh, there will be no vacancies on the New 
Jersey District Court, and we would really like to see the 
court at full strength. There had been a serious backlog in 
cases. They are beginning to catch up, and I hope that you are 
going to be able to help move this nomination forward.
    We also are interested in moving the nomination of Stephen 
Orlofsky, a district court judge, who has been nominated to the 
Third Circuit Court of Appeals. If the Senate can act 
expeditiously and confirm these two nominees, then all of the 
New Jersey seats on the Federal bench will be filled, and we 
are grateful for that.
    Mr. Chairman, Dennis Cavanaugh is here with his wife, 
Linda. We know her very well. She has had many important 
assignments, political and governmental, in the State of New 
Jersey. They are a New Jersey family, and I am honored to bring 
someone like Dennis Cavanaugh before the committee, hopefully 
before the full Senate, and to see him confirmed.
    I thank you, Mr. Chairman.
    Senator Smith. Thank you, Senator Lautenberg.
    Senator Graham.

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Graham. Thank you, Mr. Chairman, and I would like 
to ask consent to file my full statement. In the interest of 
time, I will summarize.
    Senator Smith. Without objection.
    Senator Graham. Mr. Chairman, we appreciate your and 
Senator Torricelli's courtesy in scheduling this hearing and 
doing it on such a prompt basis, approximately 30 days after 
the President has nominated these three outstanding Floridians 
for appointment to the U.S. Federal bench in the Middle of 
District of Florida.
    It is a tremendous privilege to be able to introduce these 
three impressive nominees for your consideration. Gregory 
Presnell, a private attorney in Orlando, United States 
Magistrate John Steele, and Florida State Circuit Judge James 
Moody have been nominated to the United States District Court 
for the Middle District of Florida, and they have the strong 
support of Senator Mack and myself.
    These three highly qualified nominees were recommended by a 
non-political screening committee comprised of a diverse group 
of Floridians, lawyers and nonlawyers, who evaluated these 
three individuals as part of a much larger group of highly 
qualified attorneys and judges who had expressed an interest in 
serving in the Federal judiciary. We jointly recommended these 
nominations to the President and are very appreciative that now 
they have been nominated. We commend them for your 
confirmation.
    The three nominees are accompanied by family members today, 
and I would like to recognize some of the family members. Mr. 
Gregory Presnell is joined by his wife, Cecelia Bonifay.
    Cecelia, would you please stand?
    Ms. Bonifay. Good afternoon.
    Senator Smith. Good afternoon.
    Senator Graham. Cecelia is also an attorney; and three 
sons--Pearce, a real estate financial analyst; Bryan, a 
resident of Atlanta; and Russell, who has just graduated from 
James Madison University.
    Judge Moody is accompanied by his wife, Kelli, and three of 
his children--Jamey and Ryan, who are students at the 
University of Florida, and Tricia who is a student at the 
University of South Florida.
    Senator Smith. Welcome.
    Senator Graham. Judge Steele's wife, Lynda Marie, is 
unfortunately unable to be with us today.
    I would like to take this opportunity, since it could be 
the last in such a setting of introducing judicial nominees, to 
thank my colleague and good friend, Senator Mack, for the 
extremely collaborative way in which we have worked over his 12 
years in the Senate on judicial nominations.
    We have approached them from the standpoint that our 
responsibility is to look for judicial merit, and have worked 
to accomplish that objective and to recommend to the President, 
and he to nominate to you, the highest quality potential 
jurists. And I believe the three men who are with us today are 
illustrative of the results of that collaboration, for which I 
wish to extend my deepest gratitude to Senator Mack, and hope 
that whatever happens in November that we can continue this 
pattern in January.
    Senator Mack. Does that suggest a role for me that I am not 
aware of? [Laughter.]
    Senator Smith. Or for him. You never know.
    Senator Mack. Good point.
    Senator Graham. The three nominees that we have today are a 
product of that collaboration. The Middle District of Florida 
has been one of the most overburdened districts of the 95 
districts in the U.S. Federal judiciary. It has the third 
highest case filings, and because of the character of the 
cases, particularly the heavy cases in the criminal division, 
and of those a heavy caseload of drug related cases, they tend 
to be complex and very demanding on the jurist.
    This action, which was taken in 1999 to authorize four 
additional positions and which I hope soon we will fill three 
of those four new authorized positions, will be the first 
expansion of the Middle District of Florida in many years.
    With that background, Mr. Chairman, and with some brevity 
because of the time constraints, I would like to briefly 
introduce the three nominees.
    Judge James Moody is a native of Florida, from a prominent 
family. He received both his undergraduate and law degrees from 
the University of Florida. He practiced law with the same firm 
for 22 years before becoming a circuit judge in 1995. I am 
confident that Judge Moody will bring his experience as a State 
judge to deal with the considerable caseload that he will face 
now as a Federal district judge, assuming he is confirmed. 
Judge Moody has served his profession in a variety of important 
positions, as he has served his community.
    Judge Steele currently serves as a United States magistrate 
judge. He is a graduate of the University of Detroit with a 
degree in urban studies, as well as a juris doctorate. Judge 
Steele has nearly completed a master's degree in criminal 
justice at the University of North Florida, in Jacksonville.
    Prior to his judgeship, John Steele served as an Assistant 
United States Attorney in both Florida andMichigan, and 
practiced commercial litigation with a Jacksonville firm. He, too, has 
a broad and deep commitment to his profession and community, as 
evidenced by a number of important civic positions, including teaching 
law at Florida Coastal School of Law in Jacksonville.
    Gregory Presnell is a graduate of the University of William 
and Mary, continued his studies at the University of Florida 
School of Law, where he graduated with high honors in 1964. 
Except for a tour of duty in the United States Army, Mr. 
Presnell has been employed continuously with one of Florida's 
most prominent law firms, Akerman Senterfitt, where he 
specialized in business litigation. He, too, has had a broad 
commitment to his community, with a long list of outstanding 
areas of community service which will be included in my full 
statement.
    Mr. Chairman, I am confident that these three nominees will 
continue the pattern of public service and sound legal judgment 
that they have demonstrated thus far and which led to the 
commission's recommendation and the President's nomination. I 
appreciate the committee's consideration of these nominees to 
one of the largest and busiest judicial circuits in our 
country. I urge their prompt confirmation.
    Thank you.
    Senator Smith. Thank you very much, Senator Graham.
    Senator Mack.

STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM THE STATE OF 
                            FLORIDA

    Senator Mack. Thank you very much, Mr. Chairman. Before I 
make my comments with respect to the three nominees, let me 
just say a couple of thank yous. I want to say thanks to you, 
representing the full committee, for the incredible sensitivity 
that I believe the committee has shown to the needs of the 
State of Florida.
    We have made demand after demand after demand over the 
years. We are a growing State. We have had many vacancies to 
fill, and I think that, again, the committee has been extremely 
sensitive to the needs of my State. Both Senator Graham and I 
want you to know how much we appreciate the work that has been 
done, and I say that not just for the members, but for the 
staff as well.
    And the second thank you--and Senator Graham really 
triggered this when he said that this is possibly the last time 
that I will be before the committee recommending individuals 
for judgeships. What a pleasure it has been to work with 
Senator Graham, and for his openness and willingness to allow 
me to play the type of role that I played in the selection of 
these nominees. I think that we both benefitted from this 
process, as well as our State. So I again thank you for your 
confidence in allowing me to play the role that I have played.
    Mr. Chairman, I am delighted and honored to appear before 
the Judiciary Committee to introduce three judicial nominees 
for the Middle District of Florida. Each of the nominees that 
will be before you today are extremely qualified and well 
respected in their professions. I would like to highlight a few 
facts that I find important about each of the nominees.
    First, Judge James Moody. He is currently a circuit court 
judge for the Thirteenth Judicial Circuit for Hillsborough 
County, Florida. He has extensive experience in the practice of 
law, spending a total of 22 years as an attorney and partner in 
a law firm, handling both civil and criminal cases. In 
addition, Judge Moody has a long history of serving his 
community through his work with the pro bono activities of Bay 
Area Legal Services. He donated over 110 pro bono hours before 
taking the bench in 1995. And as President of the Hillsborough 
County Bar Association, he increased the number of lawyers 
participating in pro bono projects.
    Next, Gregory Presnell, who is currently the senior partner 
in the litigation department of the prominent firm of Akerman, 
Senterfitt, and Eidson, in Orlando, Florida. He is admired in 
legal circles and is one of only 203 lawyers certified by the 
Florida Bar in business litigation. Mr. Presnell was the 
youngest President of the Orange County Bar Association, and 
during his tenure created Greater Orlando Legal Services, which 
provides legal aid to the indigent. In addition, Mr. Presnell 
was President of the Board of Florida Legal Services, which was 
established by the Florida Bar to coordinate pro bono services 
statewide.
    And, finally, Judge John Steele, who has served as a United 
States Magistrate Judge for the Middle District for the past 
nine years. Serving as an assistant prosecuting attorney, an 
Assistant United States Attorney, and as the chairman of the 
litigation department in a Jacksonville, Florida, law firm, Mr. 
Steele has been involved in complex criminal and civil cases on 
a State and Federal level throughout his career.
    Mr. Steele has taken time out of his busy schedule to teach 
a class on Federal courts as an adjunct professor at the 
Florida Coastal School of Law. And as a member of the Civil 
Rules Committee of the Federal Magistrate Judges Association, 
Mr. Steele has reviewed and made comments on proposed changes 
to the Federal Rules of Civil Procedure.
    These nominees are excellent candidates with exemplary 
credentials, and I know that they will take their lifetime 
appointments to the Federal bench seriously and provide the 
community with sound legal decisions. So, Mr. Chairman, I 
encourage this committee and the full Senate to consider these 
three nominations favorably.
    Thank you.
    Senator Smith. Thank you, Senator Mack.
    Senator Torricelli is here in a dual role as an advocate 
for Judge Cavanaugh and a member of the committee. So, welcome.
    Senator Torricelli. Thank you, Mr. Chairman. Mr. Chairman, 
I would like, with your permission, to have statements entered 
into the record by Senator Leahy, Senator Kohl, and Senator 
Feingold at this point in the record.
    Senator Smith. Without objection, so ordered.
    [The prepared statement of Senator Leahy follows:]

 Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the 
                            State of Vermont

    While I am glad to see the Committee moving forward with a few of 
the many qualified judicial nominees to fill the scores of vacancies 
that continue to plague our federal courts, I am disappointed that 
there are no nominees to the Court of Appeals included in this hearing. 
I have said since the beginning of this year that the American people 
should measure our progress by our treatment of the many qualified 
nominees, outstanding women and minorities, to the Court of Appeals 
around the country. The Committee and the Senate are falling well short 
of the mark.
    With 21 vacancies on the federal appellate courts across the 
country, and nearly half of the total judicial emergency vacancies in 
the federal courts system in our appellate courts, our Courts of 
Appeals are being denied the resources that they need. Their ability to 
administer justice for the American people is being hurt. There 
continue to be multiple vacancies on the Fourth, Fifth, Sixth, Ninth, 
Tenth and District of Columbia Circuits. The vacancy rate for our 
Courts of Appeals is more than 11 percent nationwide--and that does not 
begin to take into account the additional judgeships requested by the 
Judicial Conference to handle their increased workloads. If we added 
the 11 additional appellate judges being requested, the vacancy rate 
would be 16 percent. Still, not a single qualified candidate for one of 
these vacancies on our federal appellate courts is being heard today.
    At our first Executive Business Meeting of the year, I noted the 
opportunity we had to make bipartisan strides toward easing the vacancy 
crisis in our nation's federal courts. I believed that a confirmation 
total of 65 by the end of the year was achievable if we made the 
effort, exhibited the commitment, and did the work that was needed to 
be done. I urged that we proceed promptly with confirmations of a 
number of outstanding nominations to the Court of Appeals, including 
qualified minority and women candidates. Unfortunately, that is not 
what has happened.
    Just as there was no appellate court nominee included in the April 
confirmation hearing, there is no appellate court nominee included 
today. Indeed, this Committee has not reported a nomination to a Court 
of Appeals vacancy since April 12, and it has reported only two all 
year. The Committee has yet to report the nomination of Allen Snyder to 
the District of Columbia Circuit, although his hearing was eight weeks 
ago; the nomination of Bonnie Campbell to the Eighth Circuit, although 
her hearing was six weeks ago; or the nomination of Judge Johnnie 
Rawlinson, although her hearing was four weeks ago. Left waiting for a 
hearing are a number of outstanding nominees, including Judge Helene 
White for a judicial emergency vacancy in the Sixth Circuit; Judge 
James Wynn, Jr., for a judicial emergency vacancy in the Fourth 
Circuit; Kathleen McCree Lewis, another outstanding nominee to the 
multiple vacancies on the Sixth Circuit; Enrique Moreno, for a judicial 
emergency vacancy in the Fifth Circuit; Elena Katgan, to one of the 
multiple vacancies on the District of Columbia Circuit; and Roger L. 
Gregory, an outstanding nominee to another judicial emergency vacancy 
in the Fourth Circuit.
    I deeply regret that the Senate adjourned last November and left 
the Fifth Circuit to deal with the crisis in the federal administration 
of justice in Texas, Louisiana and Mississippi without the resources 
that it desperately needs. It is a situation that I wished we had 
confronted by expediting consideration of nominations to that Court 
last year. I still hope that the Senate will consider them this year to 
help that Circuit.
    I continue to urge the Senate to meet its responsibilities to all 
nominees, including women and minorities. That all of these highly 
qualified nominees are being needlessly delayed is most regrettable. 
The Senate should join with the President to confirm these well-
qualified, diverse and fair-minded nominees to fulfill the needs of the 
federal courts around the country.
    During the Committee's business meeting on June 27, Chairman Hatch 
noted that the Senate has confirmed seven nominees to the Courts of 
Appeals this year--as if we had done our job and need do no more. What 
he failed to note is that all seven were holdovers who had been 
nominated in prior years. Five of the seven were reported to the Senate 
for action before this year, and two had to be reported twice before 
the Senate would vote on them. The Senate took more than 49 months to 
confirm Judge Richard Paez, who was nominated back in January 1996, and 
more than 26 months to confirm Marsha Berzon; who was nominated in 
January 1998. Tim Dyk, who was nominated in April 1998, was confirmed 
after more than two years. This is hardly a record of prompt action of 
which anyone can be proud.
    Chairman Hatch then compared this year's total against totals from 
other presidential election years. The only year to which this can be 
favorably compared was 1996 when the Republican majority in the Senate 
refused to confirm even a single appellate court judge to the federal 
bench. Again, that is hardly a comparison in which to take pride. Let 
us compare to the year 1992, in which a Democratic majority in the 
Senate confirmed 11 Court of Appeals nominees during a Republican 
president's last year in office among the 66 judicial confirmations for 
the year. That year, the Committee held three hearings in July, two in 
August, and a final hearing for judicial nominees in September. The 
seven judicial nominees included in the September 24 hearing were all 
confirmed before adjournment that year--including a Court of Appeals 
nominee. We have a long way to go before we can think about resting on 
any laurels.
    Having begun so slowly ion the first half of this year, we have 
much more to do before the Senate takes its final action on judicial 
nominees this year. We should be considering 20 to 30 more judges this 
year, including at least another half dozen for the Court of Appeals. 
We cannot afford to follow the ``Thurmond Rule'' and stop acting on 
these nominees now in anticipation of the presidential election in 
November. We must use all the time until adjournment to remedy the 
vacancies that have been perpetuated on the courts to the detriment of 
the American people and the administration of justice. That should be a 
top priority for the Senate for the rest of this year. In the last 
three months in session in 1992, between July 12 and October 8, 1992, 
the Senate confirmed 32 judicial nominations. I will work with Chairman 
Hatch to match that record.
    One of our most important constitutional responsibilities as United 
States Senators is to advise and consent on the scores of judicial 
nominations sent to us to fill the vacancies on the federal courts 
around the country. I look forward to our next confirmation hearing and 
to the inclusion of qualified candidates for some of the many vacancies 
on our Federal Court of Appeals.

    [The prepared statement of Senator Kohl follows:]

Prepared Statement of Hon. Herbert Kohl, a U.S. Senator, From the State 
                              of Wisconsin

    Thank you, Mr. Chairman.
    I just want to voice my support for Glenn Fine, who will truly be 
an outstanding Inspector General at the Department of Justice. As you 
know, the Inspector General is charged with investigating waste, fraud, 
abuse and corruption. As such, it is a position of critical importance 
and so we need to fill it as soon as possible--hopefully before the 
August recess--to ensure accountable and effective oversight of the 
DOJ.
    Mr. Fine has been dealing with corruption ever since the Harvard-
Boston College basketball game on December 16, 1978, in which he scored 
19 points and had 14 assists--perhaps his best performance in college--
only to discover later that this particular game was part of a 
notorious point-shaving scandal. No doubt this first-hand experience 
drove him in his later quest to weed out corruption at the Department 
of Justice.
    More seriously, though, Mr. Fine has served in a variety of 
professional roles and always in an exemplary fashion. He is currently 
the Director of the Special Investigations and Review Unit in the 
Department of Justice's Office of the Inspector General, where he has 
supervised a variety of sensitive internal investigations, including 
the FBI's handling of the Aldrich Ames case. He also worked as an 
Assistant U.S. Attorney for the District of Columbia, where he 
prosecuted more than 35 criminal jury trials. His academic credentials 
are stellar as well. He is a Rhodes Scholar and he was graduated magna 
cum laude from Harvard Law School. Finally, though this is a political 
appointment, Mr. Fine is non-partisan--exactly the type of appointee 
that a Republican President might very well consider keeping on. He 
worked as an Assistant U.S. Attorney during the Reagan and Bush 
administrations, and has never been involved in a political campaign.
    I know that we are rapidly entering the autumn of the nomination 
season, but a position as important as the Inspector General deserves 
to be filled without delay and a candidate as outstanding as Mr. Fine 
merits speedy confirmation.

    [The prepared statement of Senator Feingold follows:]

Prepared Statement of Hon. Russell D. Feingold, a U.S. Senator From the 
                           State of Wisconsin

    I am pleased to support the nomination of Glenn A. Fine to be 
Inspector General at the Department of Justice. Mr. Fine has already 
had a distinguished career, serving as an Assistant United States 
Attorney for a number of years, as an attorney in private practice and 
most recently as the Director of the Department's Special 
Investigations and Review Unit. His academic record is superb, 
including degrees from Harvard College, Harvard Law School, and Oxford 
University, where he was a Rhodes Scholar. I note also his six years of 
volunteer service with the D.C. Board of Professional Responsibility 
where he adjudicated disciplinary complaints against lawyers charged 
with violations of the Bar's Rules of Professional Conduct.
    I am informed by people whose judgment I respect that Mr. Fine has 
served with distinction at the Department in a difficult and sensitive 
position and I have confidence that he will serve with equal skill and 
judgment as the Department's Inspector General. I am pleased that the 
Committee is holding this hearing on Mr. Fine's nomination and hope 
that he will be rapidly confirmed by the full Senate.

    Senator Torricelli. Mr. Chairman, it would be my hope to 
participate in introducing Mr. Fine to the committee and then 
Judge Cavanaugh, but would prefer to do so immediately before 
their statements, if that were possible.
    Senator Smith. Certainly.
    I thank my colleagues for being here.
    Senator Mack. Thank you, Mr. Chairman.
    Senator Smith. Mr. Fine, if you could come up, please, I 
guess the first order of business is to swear you in. So we 
might as well do that, I guess.
    Do you swear that the testimony you shall give in this 
hearing shall be the truth, the whole truth, and nothing but 
the truth so help you God?
    Mr. Fine. I do.

 STATEMENT OF HON. ROBERT TORRICELLI, A U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Torricelli. Mr. Chairman, if I could at this point, 
with your permission I would like to introduce the committee to 
Glenn Fine, of Maryland, who has been nominated for the 
position in the Department of Justice of Inspector General.
    Mr. Fine is currently working as a counsel in the Inspector 
General's office. The committee should note the extraordinary 
credentials that have led to his nomination to this very 
important position. He graduated magna cum laude from both 
Harvard College and Harvard Law School. Unfortunately, then he 
was forced to go to school abroad and received a master's in 
politics, philosophy, and economics from Oxford University, 
where he served as a Rhodes Scholar.
    Upon graduation from law school, he served as an Assistant 
United States Attorney in the District of Columbia for three 
years. Mr. Chairman, you will be pleased to note that in 1989 
he spent a year as counsel to the Senate Labor and Human 
Resources Committee. That singular experience of being a staff 
member on the Hill, no doubt, has propelled his career to this 
important position.
    He served 6 years as an associate in the practice of law in 
the District of Columbia, and has been with the Inspector 
General's office as a special investigative counsel since 1995. 
Mr. Chairman, I know that you recognize the unique importance 
of that office, ensuring the credibility of the Department of 
Justice, ensuring that it complies with its own rules and 
regulations, and that all of us on a bipartisan basis know that 
the Department of Justice is operating to the highest standards 
that the American people would expect. Indeed, having the 
office, an office which has been held in very high regard, I 
think has allowed all of us to have a special degree of 
confidence in the Department of Justice.
    So I think this is a nomination in which the administration 
can take considerable pride, and I am very pleased to be able 
to present to you, Mr. Chairman, Mr. Glenn Fine for the 
position of Inspector General.
    Senator Smith. Thank you, Senator Torricelli.
    Mr. Fine, do you have any family or friends that you wish 
to introduce at this point?

   TESTIMONY OF GLENN A. FINE, OF MARYLAND, TO BE INSPECTOR 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Fine. Yes, I do, Senator Smith. With me today are my 
wife, Beth Heifetz, in the black; also, my daughter, Julia, who 
is 4 years old; also my son, Michael, who is in the stroller, 
who has fallen asleep. But we have promised to brief him about 
the proceedings when he wakes up.
    Senator Smith. I think he will enjoy them more than anybody 
else.
    At this point, if you have a statement, proceed.
    Mr. Fine. Thank you, Senator Smith. And, Senator 
Torricelli, thank you for those words of support. I am very 
honored to appear before you today as the nominee to be the 
Inspector General of the Department of Justice. I am grateful 
to the President for nominating me, and I am also grateful to 
the chairman and the other members of the committee for holding 
this hearing to consider my nomination.
    I would like to first, though, especially recognize three 
people to whom I am particularly grateful. First is my wife, 
Beth Heifetz, who has given me her unfailing love, support, and 
faith. She is an extremely talented lawyer in her own right, 
having previously worked as a partner in the Washington office 
of the law firm of Jones, Day, Reavis, and Pogue. Currently, 
she is on leave to stay at home, taking care of our two 
wonderful children, and she is doing a terrific job in what is 
the most important calling of all, raising a family.
    I would also like to recognize my mother and my father for 
all their support. Before he passed away, my father worked for 
28 years in the Justice Department as a line attorney in the 
Antitrust Division. I know he would be honored that his son was 
being considered for this important position in the Department 
of Justice.
    I believe that working in the Justice Department provides a 
lawyer one of the most significant and challenging 
opportunities for public service that is available. The mission 
of the Department of Justice is critical in the life of our 
country. Whether attempting to ensure the safety of our 
citizens, to enforce the immigration laws fairly and 
effectively, to cleanse our communities of illegal drugs, to 
effectively represent the United States in courts throughout 
the country, or to pursue the many other important missions 
entrusted to the Department of Justice, the work of the 
Department has a profound effect on all Americans.
    I have been fortunate to work in the Department as an 
Assistant U.S. Attorney in the District of Columbia from 1986 
to 1989, prosecuting more than 35 criminal caseson behalf of 
the United States. I have also been fortunate to work for the last 5\1/
2\ years as a career official in the Office of the Inspector General.
    For the last four years, I have been the Director of the 
OIG's Special Investigations and Review Unit. Among other 
duties, this unit has participated in many of the sensitive and 
complex matters that the Inspector General's office has 
investigated, including a review of the FBI's handling of the 
Aldrich Ames case, a review of the FBI laboratory, a review of 
the use of prison telephones by Federal inmates to commit 
crimes, a review of claims that the Justice Department treated 
certain cocaine traffickers more leniently because of their 
alleged ties to the Nicaraguans contras or the CIA, and most 
recently a review of the way the INS mishandled the case of the 
serial railway killer Rafael Resendez-Ramirez.
    I believe that it is essential for an aggressive, well-
funded, and independent Office of the Inspector General to help 
provide effective oversight over many aspects of the 
Department's work. As you know, the OIG's mission is to detect 
and deter waste, fraud and abuse within the Department, and to 
promote efficiency and effectiveness in the Department's 
operations.
    To this end, the OIG audits Department financial 
statements, conducts reviews of Department programs, and 
investigates criminal and administrative misconduct of certain 
departmental personnel. In pursuit of these missions, I believe 
the Inspector General must be hard-hitting but fair in his 
reviews of Department programs and personnel. He must not be 
afraid to deliver bad news or unpopular assessments about the 
Department's operations or programs.
    By the same token, he must exonerate persons or programs of 
allegations of misconduct when that is warranted. The Inspector 
General also has an essential responsibility to inform Congress 
of problems or deficiencies in the Department operations or 
programs that the Inspector General uncovers.
    It has been my privilege to work in the Inspector General's 
office these past 5\1/2\ years. I am committed, if I become the 
Inspector General, to do everything I can to pursue the 
extremely important duties of this position and to live up to 
the high standards of the office. I hope I will have the 
opportunity to work with this committee and with Congress in 
pursuing effective oversight over the Department.
    Thank you again for considering my nomination, and I would 
be glad to respond to any questions you may have.
    Senator Smith. Thank you, Mr. Fine. Let me just begin, and 
feel free to jump in, Senator Torricelli; there is just the two 
of us.
    In the investigation of fraud, in uncovering fraud in the 
office, would you make any recommended changes based on the 
experience that you had and the long list of cases that you 
talked about? Are there any recommended changes that you would 
make in how we would do a better job or improve?
    Mr. Fine. Well, a lot of the cases are individual to the 
components that we have investigated. I think it is important 
for us to be proactive in providing integrity briefings to 
departmental officers and employees. I think it is important to 
have a well-funded, aggressive Office of the Inspector General 
to provide oversight over the many operations of the 
Department.
    The Department has changed in recent years. It has become a 
grant making operation to some extent. In previous fiscal 
years, there have been almost $4 billion in grants that the 
Department gives out now. I think it is important for audits 
and inspections of these programs to ensure that they are being 
used for the proper purposes and to ensure that there is not 
fraud in those programs.
    As a measure that the Office of Inspector General has 
taken, we have started a fraud detection office in our 
Investigations Division, and we believe it is important to look 
actively for fraud in the Department and I would be committed 
to doing that were I to be the Inspector General.
    Senator Smith. There was an initiative in 1996 that caused 
some controversy, the so-called Citizenship USA initiative, 
which naturalized a million or so immigrants before the 
election in 1996. There was a Wall Street Journal report, the 
June 9th edition I believe it was, that the report was about 
due or was expected. Do you have any information on when that 
report might be expected, and if you can comment on what may or 
may not be the recommendation or the conclusion?
    Mr. Fine. Senator Smith, our office is investigating that 
matter. We have had a thorough investigation. We are in the 
ending stages of completing that investigation. I must tell you 
that I have removed myself, I have recused myself from any 
involvement in that matter when I became a candidate for the 
office of Inspector General because some of those allegations 
do touch on actions of the White House. And I decided that I 
did not want to have any potential conflict of interest being 
considered for the position and at the same time conducting an 
investigation. So I cannot and should not comment on the 
investigation itself. I do know from the team that they are 
working expeditiously and they hope to have a report done very 
soon, hopefully within the next month.
    Senator Smith. Thank you for that.
    In another case, there was a Journal article, ``The Impact 
of Right-to-Work Laws on Union Organizing,'' in 1987. You had 
argued that there was an economic analysis that shows, ``The 
number of workers in newly organized bargaining units is 
substantially reduced in the first decade after passage of 
right-to-work, particularly in the first five years. In the 
later years, the effect is relatively small.'' That is pretty 
much an obvious conclusion. Your point is, what, that right-to-
work has a negative impact on workers or on unions, or what is 
it?
    Mr. Fine. No, that wasn't the intention. In 1979, I had 
done a senior honors thesis at Harvard College. I was an 
economics student and I was intending to use regression 
analysis, statistical analysis, to analyze the impact of the 
passage of the law on the extent of union organizing. It was 
not a piece to get into the benefits or the pros and cons of 
right-to-work laws. It was simply an economic piece using the 
statistical tools that I had been taught to see what the effect 
was.
    That conclusion that you describe was the analysis, the 
academic analysis that we had reached, and the thesis received 
honors and was turned into a journal piece for an economics 
journal. But beyond the economic impact, I did not reach any 
conclusions about the effect of right-to-work laws.
    Senator Smith. I have no further questions. Each Senator 
could possibly submit questions to you in writing, which, of 
course, you would have to respond to in whatever the time 
indicated. So except for that, that is pretty much all the 
questions that you will face here this afternoon.
    If you have any other comments that you would wish to make 
that you would like to address, then feel free to do it now.
    Mr. Fine. No. I would just like to thank you and thank the 
committee for considering my qualifications, and I am honored 
to be nominated for this position and I hope to have the 
opportunity to work in this very important, critical job.
    Senator Smith. I think the indication is from Senator 
Hatch--obviously, he was not able to be here, but the reason to 
have a substitute chairman, if you will, for the day is to try 
to expedite things. So I think all of the nominees can draw 
that conclusion that the chairman is interested in moving the 
process along.
    So we are glad you could be here, and thank you again for 
your testimony. Thanks again to your family and it is nice to 
have you here as well. It is an honor to have you here, and I 
hope you found it an enjoyable experience. Your daughter is 
very good, by the way, very quiet.
    Mr. Fine. She has behaved great.
    Thank you very much, Senator.
    Senator Smith. Thank you, Mr. Fine. Nice to have you here.
    [The questionnaire of Mr. Fine follows:]
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    ASenator Smith. I see that Congressman McCollum has just 
come in the room.
    Bill, why don't you come up? I know you want to say 
something on behalf of the other nominees. We will bring the 
nominees up in just a second. But, Bill, I know you want to 
speak on behalf of Judge Cavanaugh, I assume.

   STATEMENT OF HON. BILL McCOLLUM, A U.S. REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Representative McCollum. Well, Senator Smith, I just wanted 
to come over to the committee for several reasons. One, 
obviously, I represent a good portion of the Middle District of 
Florida, and I know we have got a number of good men up here 
today to be discussed and to have an opportunity for you to 
examine them to be judges in our district.
    I am sure you know, and you are going to hear from them 
individually, that we have a very big shortage of judges 
especially in the Middle District. And despite the lateness of 
this term, it is certainly my hope--and I think I express the 
wishes of the entire delegation in Florida, certainly, 
Republican and Democrat--that many, if not all of these judges 
can somehow pass muster and get approved.
    I know the ones who are here today, a couple of them 
passingly, but I particularly know Greg Presnell. I know he is 
coming up here in a minute. And in no way does my commenting 
about him mean that I am not in favor of the others; I am.
    But Greg and I have known each other for a long time. I 
knew him in practice when I was practicing law. I knew him 
because we were active in the local Orange County Bar 
Association in Orlando. I knew him more than just by 
reputation. So I don't come just as a Congressman in Orlando 
who happens to have a constituent who has been nominated to be 
a judge.
    I think he is of the highest caliber, and I know 
professionally that he is considered among his peers to be 
extraordinarily capable, and I personally found him that way. I 
think he would have an excellent judicial temperament. I 
believe that he has the right attitude toward being a judge and 
would look at issues in the kind of way that you and I would be 
proud of.
    So I didn't come to give great testimony, but I came to 
endorse him, in particular, and to encourage you with all of 
the judges to do what you can to help let us get some relief in 
the most overworked district in the Nation. And I thank you for 
that.
    Senator Smith. Well, thank you very much, Congressman. 
Thanks for coming over.
    If we could have Judge Cavanaugh, Judge Moody, Attorney 
Greg Presnell, and Judge John Steele come forward. I could have 
sworn everybody in before, but I neglected to do that.
    Do you swear that the testimony you shall give in this 
hearing shall be the truth, the whole truth, and nothing but 
the truth so help you God?
    Judge Cavanaugh. I do.
    Judge Moody. I do.
    Mr. Presnell. I do.
    Judge Steele. I do.
    Senator Smith. We can start with you, Judge Cavanaugh. I 
believe your families were introduced by Senator Graham, but if 
you have any further introductions or comments that you would 
like to make regarding your family before your statement, feel 
free to do that, and then proceed with your statement.

  TESTIMONY OF DENNIS M. CAVANAUGH, OF NEW JERSEY, TO BE U.S. 
         DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY

    Judge Cavanaugh. My family was introduced by Senator 
Lautenberg. No, I have nothing further to say other than to 
thank you, Mr. Chairman, and the committee for giving me the 
opportunity to be here today.
    Senator Smith. Do you have any opening statement?
    Judge Cavanaugh. I do not.
    Senator Smith. Judge Moody, the same.

   TESTIMONY OF JAMES S. MOODY, JR., OF FLORIDA, TO BE U.S. 
       DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Moody. Mr. Chairman, I am pleased to be here and I 
appreciate the committee having this meeting and trying to move 
this process along. Senator Graham did introduce my family, but 
I did want to say my daughter, Ashley, apologizes for not being 
here. She tried hard, but she is on a flight somewhere else and 
couldn't be here. And my parents are elderly and couldn't make 
it, but they are here in spirit.
    And Senator Graham did not introduce my brother, Bill, who 
is here in the audience.
    Senator Smith. Welcome.
    Judge Moody. And our mutual friend, J.J. Barker. They drove 
all night from Columbia to be here and I appreciate that.
    Senator Smith. It is great to have you here.
    Do you have any comments that you would like to make as an 
introduction?
    Judge Moody. No, Mr. Chairman.
    Senator Smith. Mr. Presnell.

   TESTIMONY OF GREGORY A. PRESNELL, OF FLORIDA, TO BE U.S. 
       DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Mr. Presnell. Thank you, Mr. Chairman. I would just like to 
also thank the committee for scheduling this hearing on such 
short notice, and also thank my family for being here today in 
my support. And Senator Graham has introduced them, so I won't 
take the time of the committee to do so further.
    Thank you. I have no other comments.
    Senator Smith. All right.
    Judge Steele.

 TESTIMONY OF JOHN E. STEELE, OF FLORIDA, TO BE U.S. DISTRICT 
            JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA

    Judge Steele. Senator, thank you. As Senator Graham 
indicated, my wife is unable to be here. She is out of the 
country at the moment. I would like to recognize, however, 
District Judge Harvey Schlesinger, from the Middle District of 
Florida, the Jacksonville Division. He is a former magistrate 
judge. I took his position when he became an Article III judge, 
and he is here to check up on me, I believe.
    Senator Smith. All right. Where is he hiding?
    [Judge Schlesinger stood.]
    Great to have you here.
    Judge Steele. And I have no opening statement. Thank you.
    Senator Smith. All right. Gee, you guys with no opening 
statements, we could really move faster around here if we had 
more witnesses like you.
    I think you should, first of all, not infer anything by 
having a low attendance. This happens very frequently because 
of Senate business. And, frankly, you are better off. Usually, 
if people are here, they are either mad about something or they 
are going to praise you, one or the other, and the problem is 
you never know which it is. So you should be glad, I guess, 
that attendance is light.
    Senator Torricelli, did you want to put anything on the 
record before we go to questions?
    Senator Torricelli. I do, Mr. Chairman. I have a statement 
I would like to submit to the record and would like simply 
share with you the observation that there is usually an inverse 
proportion between the number of Senators at these hearings and 
the universality of the support for the nominees. You are only 
to be complimented.
    I also wanted the committee to know that in my experience 
in nominating people to the Federal district court and the 
court of appeals, I have actually never had a nominee as 
broadly supported by the bar association and by our colleagues 
on the bench, as Dennis Cavanaugh.
    Indeed, on a bipartisan basis, I have heard from the legal 
community, and actually extraordinarily of current members of 
the Federal judiciary who have worked with Dennis Cavanaugh 
have called to give their unequivocal support for his 
nomination. In my experience, this has never happened before 
and is a great testament to his reputation as a Federal 
magistrate, to the way he has fairly dealt with the law and to 
the cause of justice in the past, and his to professional 
reputation.
    So I am extremely pleased that the President has nominated 
Dennis Cavanaugh. I am very pleased that you have asked him 
here today, Senator Smith, and I want to express my particular 
gratitude to Senator Hatch for scheduling this proceeding so we 
can proceed with Dennis Cavanaugh's nomination.

                      Questioning by Senator Smith

    Senator Smith. Thank you, Senator.
    Let me just start and just start with you, Judge Cavanaugh, 
just to give you an opportunity to just give us two or three 
examples of significant cases that you have handled that would 
show qualifications for your position just so we can get some 
of that on the record. You are very familiar with the position 
you are nominated to fill.
    Let me just be a little more specific for you, if that is 
helpful. You were a public defender, and so in that role tell 
me how that experience has affected your view of the rights of 
the accused in the criminal proceedings.
    Judge Cavanaugh. Well, certainly, I was a public defender 
from 1973, I believe, until about 1977 in the State of New 
Jersey, not the Federal system, in the Essex County region, 
which was a very busy region in Newark, NJ. And it was an eye 
opener in that I had never seen the types of things I was going 
to see before, and I had the opportunity to represent people, 
mostly indigents, on State criminal matters, everything ranging 
from simple assaults to first-degree murder.
    And I think it gave me a firsthand look at not only how the 
system worked, but the social problems and the problems that 
these people had that came before us, and I think has given me 
a feeling of empathy for those that have to come before me 
since, and I think it was just a wonderful experience.
    Senator Smith. There are some pretty high-profile cases 
such as the O.J. Simpson case, for example. But when you look 
at the cases of those who are indigent--and they may get a good 
public defender, they may not--and if they can't afford the so-
called high-priced attorney, then are they being cheated in the 
system? Are we doing something wrong here? Does money get off 
clients that shouldn't get off?
    Judge Cavanaugh. Well, certainly that wasn't the situation 
when I was representing them. But to a degree, I think you are 
correct that those that can afford the high-priced attorneys or 
the dream teams, if you will, certainly probably have a better 
opportunity than those that are indigent.
    I must admit that the assigned attorneys that I have seen--
I happen to be on the CJAA panel in New Jersey and I am 
responsible, or partially responsible for assigning or getting 
the list of attorneys that would be assigned in indigent 
matters. I think they are excellent attorneys and they do what 
they can within the system, but I think there still may be a 
better group or better representation in the private sector.
    Senator Smith. My uncle by the name of George Eldridge--I 
don't know if you ever knew him or not--fromTrenton, New 
Jersey, was very prominent as a probation officer in the court. That 
was the days when Hughes was a judge before he became governor, so that 
goes back a little while, probably before your time.
    Judge Cavanaugh. Back in the 1960's. I remember Governor 
Hughes, of course, but I wasn't an attorney then.
    Senator Smith. Judge Moody, you have served as a judge. 
From 1972 to 1995, you were an attorney, of course, for the law 
firm of Trinkle, Redman, Moody, Swanson and Byrd. You tried a 
lot of cases right through all the way to the verdict. Is there 
any one that jumps out at you as a private litigator that you 
feel gives you any special qualifications for what you are 
about to embark on?
    Judge Moody. I certainly don't claim any special 
qualifications. I think any lawyer looking back at their career 
can pick out two or three cases they thought were either most 
enjoyable or most significant, one of which for me was a case 
that I tried all the way to the Supreme Court dealing with the 
taking of private property and how that would be dealt with 
under the Constitution. That was the Grady Sweat case. That is 
the only one that comes to mind right now.
    Senator Smith. Mr. Presnell, same question. Anything that 
jumps out at you, any special case, any case that----
    Mr. Presnell. Mr. Chairman, those things that have happened 
most recently, I guess, are perhaps highest or most on your 
mind. I tried a case last summer in Jacksonville. It was a 
three-week jury case against David Boyce, who is a famed 
litigator, and it was a 3-week jury trial and we were able to 
obtain an $18 million judgment in that case. and Mr. Boyce 
claims not to lose many cases, but he lost that one, and it was 
quite an experience for us because it was a very high-profile 
case involving a $500 million power plant that would probably 
have gone bankrupt had we not won the case. So the case itself 
probably had a real value closer to $100 million, and there was 
a great deal of pressure on the trial lawyers. And we were 
fortunate to have obtained that verdict, and it is now on 
appeal and I hope the appellate court affirms the judgment.
    Senator Smith. And for you, Judge Steele, you handled these 
felony prosecutions for the Organized Crime Task Force in 
Detroit.
    Judge Steele. It seems like a long time ago, but I did, 
fresh out of law school. The case that I remember most is when 
I served as one of four prosecutors in a police corruption case 
that lasted almost seven months at trial. At the time, I 
thought every case was supposed to last seven months. I didn't 
know any better. And certainly as a young lawyer fresh out of 
law school, I was given the opportunity to examine and cross-
examine witnesses and make a closing argument. That was pretty 
heady stuff.
    Senator Smith. Has that experience affected your view of 
how we treat the accused, especially in the area of violent 
crime?
    Judge Steele. I think the totality of my experience, both 
being a State prosecutor for a number of years and then 
switching to the Federal system--and ultimately, before being 
appointed as a magistrate, I was with a firm that primarily did 
civil work, but I did some criminal defense work in Federal 
work. And I think being on the other side certainly gave you a 
different perspective than I had had as a career prosecutor up 
to that time.
    Senator Smith. Senator Torricelli, do you have any 
questions?

                   Questioning by Senator Torricelli

    Senator Torricelli. Thank you, Mr. Chairman.
    We are approaching that part of the calendar when the House 
of Representatives will be reapportioned. It often falls upon 
the most junior members of the Federal district court in any 
given State to redraw these lines. Few States will have the 
kind of radical change and reapportionment that will be 
experienced by Florida. Hopefully, New Jersey will have none. 
The laws related to reapportionment are very much now in flux--
the requirements for minority representation, the exact 
equality of each district in absolute numbers of citizens, the 
compactness in communities of interest.
    It is not at all unlikely that one of the three of you 
could be given this charge. Given the fact that with the 
exception of some cases related to minority representation, the 
law is so unsettled from the Supreme Court, do you have any 
thoughts about the competing factors to be considered in 
redistricting and what should be the priority or the standards 
as we approach reapportionment? Every Congressman in Florida 
will be reading this transcript tomorrow with enormous interest 
for any possible hint of your thinking about how a new Federal 
standard should be written.
    Mr. Presnell. Is that question to any one of us, in 
particular? I usually defer to the judges.
    Senator Torricelli. It is to any of the three.
    Judge Steele. Senator, I have no prior experience in that 
area, so if such a case does come to me, it will be totally 
new. I would certainly look forward to reading the cases from 
the Supreme Court that you have mentioned and doing the best I 
could. There is certainly no possible way I could give any hint 
of my feelings or my leanings because I have none.
    Mr. Presnell. Senator, I would just add to that, obviously 
when a judge is asked or required to enter the political arena, 
that becomes one of the most difficult assignments, I think, 
for an Article III judge. And one should tread very carefully 
hand defer to the legislative andprerogative to the extent it 
can, consistent with constitutional precedent.
    Senator Torricelli. Often, of course, the political process 
has broken down. I will just leave you with this thought to 
consider. These decisions have not been the best of the Federal 
judiciary in recent decades. It often has operated with a 
numerical fiction.
    I have been involved in redrawing the maps in my State, and 
sometimes the Federal courts have chosen between a plan where 
among our congressional districts one had a deviation of two 
citizens and one had a deviation of five citizens. The census 
is never more accurate than 8 to 10 percent, which is 50,000 to 
60,000 people in a congressional district. It is usually 2 
years old, which means it is another 15 percent off, which is 
another 75,000 citizens. And yet you choose between two people 
and five people per district for which is the most one-man, 
one-vote.
    There comes a need here to deal with reality, that there 
are other considerations in redistricting--compactness, 
continuity of representation. Nothing is more damaging to the 
functioning in the House of Representatives than the fact that 
a Member of Congress representing a particular neighborhood can 
change repeatedly, when no one knows who represents them. It is 
changed at a whim. It is a complex formula. It should be much 
more than running 600,000 citizens' names through a computer 
and seeing what comes out the other end, and I hope you are all 
sensitive to it.
    I wanted to raise one other issue, as well, one the 
chairman commented upon. I think all of us in the country, 
wherever we are on the issue of the death penalty, are 
concerned about the indigent and the quality of representation.
    I support the death penalty. I think it is appropriate. I 
think it is the right of a State in extraordinary 
circumstances. But I only support the death penalty because of 
the strict standards applied by the Supreme Court of the United 
States on how trials are to be conducted, the standards, the 
second judgment of a jury.
    I will confess, even as an advocate of the death penalty, 
to being highly offended at the notion that this penalty would 
be visited upon anyone without quality representation, where 
the State is genuinely challenged by the defense bar.
    Would any of you like to comment upon the controversy or 
the national debate?
    [No response.]
    These are clearly very smart nominees, Mr. Chairman. 
[Laughter.]
    I keep trying to draw them into controversy and they will 
not do so. Each of these men is obviously eminently qualified.
    Senator Smith. Typical judges.
    Senator Torricelli. No?
    Mr. Presnell. Senator, I would just observe, in Florida, we 
do have an office of capital representative that is separately 
funded by the legislature to ensure that the appropriate 
appeals are handled with respect to death penalty cases on a 
statewide basis. And I think that is an important procedural 
safeguard, at least in the State of Florida. I don't, of 
course, know how it is handled in New Jersey.
    Senator Torricelli. Well, Mr. Chairman, let me just 
conclude then by saying that in the life of American citizens 
who will appear before you, in no other times in their lives do 
they feel complete equality--and they may be poor and they may 
be powerless, but if in that one time they appear before you 
and all the forces of the Government are arrayed against them, 
but they feel that they had an equal opportunity to be heard, 
to be defended, and have the law applied equitably, I hope it 
is the one moment they appear before you. Ultimately, that is 
the only thing we ask because that is at the heart of justice.
    Congratulations to each of you.
    Yes?
    Judge Moody. Senator, if I could throw in that we in the 
judiciary are aware that one of our problems in perception is 
that the members of the public see us as giving other than 
equal justice, that the poor don't have the same justice as the 
rich. And we are trying to deal with that. It is not an easy 
problem and we in the judiciary are slow to change, but I can 
assure you we are trying and we are trying to meet that 
perception.
    Senator Torricelli. I am glad that you are. You know, it is 
one of the things that troubles me where I think good and 
honest men and women go to the judiciary and they lose sight of 
the fact that they are in the government, but they are not of 
the government.
    It is notable, and even extraordinary, I think, that in the 
birth of this Nation the Founding Fathers, though on this 
vulnerable continent could have fallen to the prey of any world 
power, their principal fear in the loss of American liberties 
was not Britain, France, or Spain. Their principal fear was the 
power of our own Government.
    Sometimes I fear that those in the judiciary, because they 
want our citizens to be safe from criminals--and you should--
and they want the laws enforced--and they must be--lose sight 
of the fact that you are ultimately the only line of defense 
against those who would take our liberties from within. If we 
lose that, we lose everything, and we have no one to count upon 
but you to protect against it. I trust, in all yourlives and 
your careers, you will be mindful of it.
    Mr. Chairman, I have no other questions. I have been so 
unsuccessful with the ones I have asked.
    Senator Smith. Thank you.
    I am going to try one or two more issues and then we will 
be ready to wrap it up. I am not going to get into any specific 
areas, but just generically, it is very frustrating for us as 
Senators in the advise and consent role in nominees that are 
not Supreme Court nominees, where the area of precedent is more 
of a legitimate question to ask.
    We could say, well, if you are a Supreme Court nominee, how 
do you feel about this decision or that where there is judicial 
precedent. But you are not Supreme Court nominees, and all of 
your predecessors that I have ever asked this question have 
always said, well, I am not a Supreme Court nominee, therefore 
I am not going to answer the question.
    But is there any circumstance that you can think of where 
you might be able to refuse to apply a Supreme Court precedent 
in any decision other than as a member of the U.S. Supreme 
Court?
    Judge Cavanaugh. My answer would be no.
    Senator Smith. And I ask this just out of ignorance because 
I am not an attorney. Is there any opportunity for you to 
express an opinion as to that precedent in your decision? For 
example, could you say the answer is, no, I can't overturn the 
precedent, I have to stick with the precedent, however this is 
the way I feel about it?
    Judge Cavanaugh. I think that would be inappropriate. I 
think our job, if confirmed as district court judges, would be 
to follow precedent, and to not follow precedent would be a 
problem.
    Senator Smith. You all agree with that?
    Judge Steele. I do.
    Senator Smith. And I understand that, and that is the 
correct answer. But you can also see from our perspective, 
traditionally and historically and usually, judges move from 
whatever level you start at, the district, to the appellate, 
eventually to the Supreme Court. So you are basically saying 
that in our advice and consent role, we can't ask that question 
until you are a Supreme Court nominee because, in other words, 
it might influence my vote if I were to know how you felt about 
this particular precedent.
    Use Dred Scott, for example. After Justice Tawney's 
decision, it was never challenged, but it wasn't right. And so 
if no one ever challenged that, we would still say that blacks 
can't sue in Federal court because they are property rather 
than people, or three-fifths property, or whatever. So, that is 
a precedent.
    And you could also go to the Plessy case, as well, where we 
say they are so outrageous in their determination and yet if 
you are sitting there, you have no choice but to implement that 
precedent. And the only opportunity I get is when you come up 
before me as a Supreme Court nominee to ask you that question.
    Now, if you were a Supreme Court nominee and I asked you--I 
am not going to ask for your opinion on any of that, but if I 
asked you as a nominee of the Supreme Court, would you be 
willing to comment on a precedent at that time if you were a 
nominee for a Supreme Court position? Would you be willing to 
comment on what you felt about any particular precedent that 
might be outstanding?
    Judge Cavanaugh. Well, Mr. Chairman, I could see where that 
could create a problem for the nominee, in that in so doing 
they could be, in effect, giving an advisory opinion prior to 
that problem coming before them. And as I am sure you well 
know, the types of cases that you have mentioned, in 
particular, are multi-faceted. There are all kinds of things 
that could play a part in it, and I think that any nominee 
would have to be very careful about responding to that because 
there could be nuances that they just aren't aware of once the 
case actually came before them. So I could see where it could 
be difficult.
    Senator Smith. On a particular case, but you can also see 
it from our perspective. I mean, we have to answer questions 
all the time in our campaigns of what we might do if we are 
elected to the United States Senate. Would we vote this way or 
would we vote that way?
    So let's say you were a Supreme Court nominee sometime 
after Plessy v. Ferguson. If I were to ask you, do you think 
that separate but equal education is the proper precedent to 
follow--it is the precedent of the Court. Is it proper? Then 
you are saying that you couldn't answer that because that 
question may come before you on the Court? Is that everybody's 
position here?
    So you could not even answer in a generic sense whether you 
think separate but equal education is--so how do we know, 
then----
    Judge Cavanaugh. I could answer that question today 
because, since Plessy v. Ferguson, there has been Brown v. 
Board of Education which says that separate but equal is not 
the law. So I would follow that precedent.
    Senator Smith. But I am talking in between that, in between 
Plessy and Brown. You are saying if you were a nominee in that 
time period, you would not be able to answer my question if you 
were a nominee. And I am not beating you up on it. My point is 
it is awfully frustrating for us in the advice and consent 
role.
    How can we advise and consent if we don't even know whether 
someone would be willing to vote one way or the other on a 
precedent, or at least conceptually, not a casebut a precedent, 
the issue of a precedent? I mean, how do we know?
    Mr. Presnell. Mr. Chairman, I think the Supreme Court has 
in several opinions set forth guidelines and a structure within 
which they will reconsider prior opinions that might be 
overruled. And I think you could certainly question the nominee 
about the process and about the guidelines and framework within 
which those decisions can be made. But I think as judicial 
nominees, it is difficult, and I am flattered that we are being 
asked questions as if we were here as a Supreme Court nominee.
    Senator Smith. Well, I am not asking you the question 
really specifically on the issue. I know that, but what I am 
asking is just in a conceptual way. I mean, the point is what I 
have said before publicly, and the reason why I bring it up 
again is that it is frustrating for us as Senators to try to--
we get a ton of information on each of you, you know, from 
personal information, which frankly I have no real interest in 
knowing because I don't like to delve into people's personal 
lives. But we get FBI backgrounds, we get all these things on 
you.
    Yet, when it comes down to really the reason why we want 
you on the courts, we can't ask questions because it might be 
some case coming before you. Well, that is the whole point. 
There may be a case coming up on some of these issues and we 
would like to know what your thoughts are, not what the 
decision is. There is a difference between having an opinion on 
something and translating that opinion into a decision on the 
court.
    I mean, I might have an opinion on something that is 
unconstitutional, so what my opinion is is irrelevant. It is 
whether or not it is constitutional or not. And what I find 
unfortunate is something that is unconstitutional becomes 
constitutional by precedent once it is established, whether it 
is wrong or right. That is my concern, and there is no way to 
undo that knowingly.
    We literally, as the advise and consent folks, have to 
hopefully get the precedent that we don't like overturned by 
pure luck because we are never going to get an answer. And what 
you have seen in many of the high-profile Supreme Court 
nominations, whether it is Bork or Thomas, is don't answer the 
questions. Bork learned that if you answer the questions, you 
get punished for it. If you don't answer the questions--David 
Souter--you get on the Court. So I mean that is the 
frustration, and I don't think that is a good process.
    So I understand you are not up for the Supreme Court, but 
how do you feel about judicial activism? Is there a proper role 
for judicial activism? Do you feel that judicial activism goes 
up against the Constitution? I mean, isn't that the same issue 
for all of you? If you have a particular view, do you feel that 
you should put that view into a decision, in general, whether 
it is constitutional or not?
    Mr. Presnell. I do not, Mr. Chairman. I think----
    Senator Smith. You could separate those two? You could 
separate your personal view from the constitutional view? You 
feel you could do that?
    Mr. Presnell. Absolutely. As a judge, I would make every 
effort to do that, and if I felt I could not, then, of course, 
I could recuse myself.
    Senator Smith. Right.
    Mr. Presnell. But I see no reason why I would not and could 
not.
    Senator Smith. Does anybody disagree with that statement?
    Judge Cavanaugh. No. I agree.
    Senator Smith. Good. All right. Well, I don't have any 
further questions. Does anybody have any further comments they 
wish to make?
    Judge Steele. No, sir.
    Judge Cavanaugh. None, other than to again thank you on 
behalf of the committee for having us here today. I certainly 
appreciate it.
    Senator Smith. All right. Well, I am sure SenatorHatch will 
do everything he can to expedite the process. The record will be left 
open until the close of business on Friday. There could be another 
Senator or two that submits questions for the record, and you would 
need to respond to those and then we would move forward from there.
    Thank you all, and your families, for being here today. It 
is a pleasure to have you.
    [The questionnaires of Judge Cavanaugh, Judge Moody, Mr. 
Presnell, and Judge Steele follow:]
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    Senator Smith. The hearing is adjourned.
    [Whereupon, at 3:14 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              


     Responses of Glenn A. Fine to Questions From Senator Thurmond

    Question 1. Mr. Fine, if confirmed, what will be your top priority 
as Inspector General?
    Answer 1. The Inspector General must provide effective and 
independent oversight over Department operations and personnel. My top 
priority would be to ensure that our core work--investigations of 
criminal and administrative misconduct and financial and program 
reviews--is done in an aggressive, fair, and objective manner, and that 
the office does all it can to detect and deter waste, fraud, and abuse.

    Question 2. Mr. Fine, in your view, how important is it for the 
position of the Inspector General to be independent of the chief of the 
agency in which they operate?
    Answer 2. According to the Inspector General Act, each Inspector 
General ``shall report to and be under the general supervision of the 
head of the establishment involved,'' but the head of the agency may 
not prevent or prohibit the Inspector General from carrying out his or 
her duties, except in limited circumstances.
    I believe that it is essential for an Inspector General to perform 
his or her duties independently from the head of the agency. Although 
an effective Inspector General must have a professional relationship 
with the head of the agency, independence is critical.

    Question 3. Mr. Fine, I understand that the Inspector General's 
office is currently preparing a report regarding Citizenship USA. How 
long has the office been working on this report, and when do you expect 
it to be completed?
    Answer 3. The Citizenship USA investigation began in the spring of 
1997. When I became a candidate for the Inspector General position in 
1999, I recused myself from any involvement in the matter. I did not 
want there to be any appearance of a conflict of interest, since I was 
being considered for a Presidential appointment and the office's 
investigation included examining allegations that could involve the 
actions of White House officials.
    I understand that the team is currently completing the report of 
investigation and plans to issue the report within a month.
                                 ______
                                 

  Responses of Dennis M. Cavanaugh to Questions From Senator Thurmond

    Question 1. Mr. Cavanaugh, we frequently hear the argument that the 
courts act in response to various social problems because the 
legislature has failed to act on important issues. What is your view of 
courts acting in this manner?
    Answer 1. It is inappropriate for the courts to act in response to 
social problems because the legislature has failed to act. It is the 
duty of the trial court to resolve cases or controversies that come 
before it rather than to solve the problems of society. Such broad 
based changes in institutions, policies and mores are reserved for 
Congress. The court's vital role in that process is to make certain 
that the policies and rules so established are effectuated by being 
applied consistently, equitably, promptly and justly to each case and 
each litigant that enters the federal judicial system.

    Question 2. Mr. Cavanaugh, do you have any personal objections to 
the death penalty that would cause you to be reluctant to impose or 
uphold a death sentence?
    Answer 2. No. I would have no personal objections or problems in 
imposing or upholding a death sentence. I would be bound by the 
precedent of the Supreme Court which has held that the death penalty is 
constitutional.

    Question 3. Mr. Cavanaugh, what is your view of mandatory minimum 
criminal sentences, and would you have any reluctance to impose or 
uphold them as a Federal judge?
    Answer 3. It is my view that mandatory minimum criminal sentences 
as set forth in the Sentencing Guidelines have been held to be 
constitutional by the Supreme Court. I would have no reluctance to 
impose or uphold mandatory minimum sentences as set forth in the 
Guidelines.

    Question 4. Mr. Cavanaugh, as you are well aware, the sentencing of 
criminal defendants in Federal court is conducted under the Federal 
Sentencing Guidelines. Some argue that the Guidelines do not provide 
enough flexibility for the sentencing judge, while others say the 
Guidelines provided needed consistency. What is your view of the 
Federal Sentencing Guidelines and their application?
    Answer 4. The Sentencing Guidelines have been held to be 
constitutional by the Supreme Court of the United States. I have had no 
objection to applying them in the past as a United States Magistrate 
Judge and I would have no objection to applying them as a District 
Court Judge.

    Question 5. Mr. Cavanaugh, as you know, the Prison Litigation 
Reform Act, was an attempt to limit prisoner litigation and court 
involvement in prison operations. Do you believe that the Act has been 
beneficial to the legal system or do you believe it places too many 
restrictions on the ability of prisoners to make claims and for judges 
to remedy Constitutional violations in the prison context?
    Answer 5. The purpose of the Prison Litigation Reform act is to 
reduce the backlog of frivolous prisoner cases in the federal courts 
and yet not restrict the ability of prisoners to make appropriate 
federal claims. Since this is an act of Congress, it is presumed to be 
constitutional. As such, I am bound by the Act.

    Question 6. Mr. Cavanaugh, as you are aware, Federal Rule of Civil 
Procedure 11 permits federal judges to impose sanctions against 
attorneys for unwarranted claims or representations made in their 
pleadings. Some say this rule is an important tool for judges, while 
others believe it discourages litigants from testing the boundaries of 
existing law. What is your opinion of Rule 11?
    Answer 6. I believe that Rule 11 is an effective and appropriate 
rule when used in the appropriate context. While I am of the opinion 
that sanctions against attorneys should be imposed sparingly and as a 
last resort, there is no question but that this rule is an important 
tool that protects litigants from unwarranted and/or frivolous claims.
    Under the appropriate circumstances, I would have no hesitancy in 
imposing sanctions pursuant to Rule 11.
                                 ______
                                 

  Responses of Dennis M. Cavanaugh to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes. I am committed to following the precedents of higher 
courts and giving them full force and effect. Under our law, a United 
States District Court Judge must apply applicable Court of Appeals and 
Supreme Court precedent even if he or she disagrees with that 
precedent.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores\1\ where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. Regardless of whether or not I thought the Supreme Court 
or Court of Appeals had seriously erred, I would still follow and apply 
that decision. There are no circumstances, and should be no 
circumstances, under which a lower court may impose its independent 
judgment on the merits of a case in contradiction of a Court of Appeals 
or Supreme Court precedent.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes. I am committed to following the precedents of higher 
courts on equal protection issues as well as all other issues.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No. Our Supreme Court has held the death penalty to be 
constitutional. I have no legal or moral belief that would inhibit or 
prevent me from imposing or upholding a death sentence in the 
appropriate case.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. There is little question but that a delay of 10 to 20 
years between conviction of a capital offender and execution is 
unreasonably long. I believe that once Congress or a state legislature 
has made the decision that capital punishment or any other punishment 
for non-capital cases is appropriate, the federal courts should make 
every effort to resolve the matters as fairly and expeditiously as 
possible.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. In determining the legal effect of a statute or 
constitutional provision, the judicial power of an Article III judge is 
limited. A judge must presume a statute is constitutional. A court 
should carefully review the plain text of the statute or constitutional 
provision and give the words a plain and ordinary meaning so as not to 
construe the language in such a way as to unreasonably limit or expand 
their meaning. If after such a review, the provision is ambiguous, a 
court should look to other sources such as the structure of the overall 
text, the intent of the drafters as reflected in contemporaneous 
writings, and applicable analogous authorities. It must be understood 
that the use of sources such as legislative history may not always be 
accurate in that the views expressed by one legislator during a debate 
may not set forth the collective intent of the legislative body. 
Therefore, the review of the legislative history should be done with 
caution.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, ``The Constitution of the United States: Contemporary 
Ratification,'' Test and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. It is only the Supreme Court that could properly uphold 
the claim of a right not previously recognized by the Supreme Court. 
Such a recognition would only be done in extremely rare circumstances. 
Interpretation of the plain meaning of the text and original intent of 
the Framers of the Constitution would be a legitimate means to such an 
interpretation.
    I do not believe that the discernment of the ``community's 
interpretation'' is a legitimate approach to establishing 
constitutional rights not previously upheld by a court.
    Ratification of an amendment under Article V of the Constitution 
requires ratification of three-quarters of the States or by convention 
in three-quarters thereof. Such an amendment duly ratified, would 
become a part of the Constitution, and therefore a legitimate 
constitutional right.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. The doctrine of stare decisis dictates that due deference 
must be given to binding precedent of cases decided by higher courts. 
Accordingly, in a case that was not one of first impression, that 
doctrine must be followed.
    In analyzing a case of first impression, a court must presume that 
a statute is valid and constitutional. I would also consider the words 
of the statute in order to determine its meaning. If after such a 
reading I were convinced that the case was one of first impression, I 
would review precedents of higher courts in analogous situations for 
guidance. Only upon a clear showing that the statute is contrary to the 
Constitution or where Supreme Court precedent demands, should such a 
constitutional challenge succeed.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold, the Supreme Court declared a state statute 
prohibiting the use or the aiding and abetting of the use of 
contraceptives to be unconstitutional. The Court found that implicit 
rights exist within the ``penumbra'' of those rights specified in the 
Constitution.
    The Alden case involved a claim by state employees that their 
employer, the State of Maine, violated their rights under the Fair 
Labor Standards Act with respect to overtime pay. The Maine Supreme 
Judicial Court held that the state enjoyed sovereign immunity and could 
therefore not be sued in state court without the state's consent. The 
Supreme Court of the United States affirmed the Maine Supreme Judicial 
Court's decision and held further that article I of the Constitution 
does not give Congress the power or authority to subject states to 
private damage suits in the state courts.
    These two cases are noteworthy due to the different type of 
protection each affords. Griswold deals with the rights of individual 
citizens who are protected from federal government regulation. Alden 
holds that federal authority does not extend to diminish the 
sovereignty of state governments. In both cases the Court demonstrates 
its willingness to look beyond the text of the Constitution to support 
its findings.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez 514 U.S. 549 (1995).
    Answer 10. In Wickard, the Court upheld legislation regulating the 
amount of wheat produced for personal consumption on family farms. This 
decision recognized Congressional power under the commerce Clause to 
regulate intrastate activities that have a substantial and cumulative 
economic effect on interstate commerce, whether or not the activity 
itself may be commerce. The Supreme Court held that congressional 
powers are not just limited to those expressly stated in the text of 
the Constitution, but also may include implied powers as are necessary 
and proper to allow Congress to effectuate the express powers.
    In Lopez, the Court found a federal statute prohibiting persons 
from possessing a firearm near a school was unconstitutional since the 
act exceeded Congress's Commerce Clause authority in that possession of 
a gun in a local school zone was not economic activity that 
substantially affected interstate commerce. Under our federal system, 
the states possess primary authority for defining and enforcing 
criminal law. The act in question was a criminal statute that by its 
terms had nothing to do with ``commerce'' or any economic enterprise, 
however broadly defined. In effect, the Court held that there are 
limits to congressional power under the Commerce Clause. While Wickard 
set expansive outer limits, Lopez defined and restricted those limits.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact ofthe following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    E. Baker v. Carr, 369 U.S. 186 (1962).
    F. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. The division of power between the federal and state 
governments represents an important concept in our system of 
federalism. In Lopez a federal statute prohibiting persons from 
possessing a firearm near any school was struck down due to the fact 
that the law did not fall within the federal commerce power. The 
Supreme Court rejected the Government's argument that the statute in 
question substantially affected interstate commerce and therefore fell 
within the scope of the commerce clause. The Court determined that such 
a finding would convert the federal commerce power into a general 
police power of the kind retained only by the states.
    In Printz, the Supreme Court struck down a provision of the Brady 
Act requiring state officials to conduct background checks on 
individuals purchasing firearms. The Court found the provision in 
question to be invalid due to the fact that it effectively transferred 
the executive's responsibility to administer laws enacted by Congress 
to state officials. The Court found that Congress could not require 
states to conduct background investigations in furtherance of federal 
programs.
    The Alden case involved an action by state employees who claimed 
their rights were violated pursuant to the Fair Labor Standards Act due 
to the fact that they were not paid overtime. After the Maine Supreme 
Judicial Court held that the state had sovereign immunity and could not 
be sued in state court without its consent, the Supreme Court of the 
United States affirmed the holding that Article 1 of the Constitution 
does not give Congress the power to subject states to private damage 
lawsuits in state courts.
    In Baker v. Carr, the Supreme Court decided there was federal court 
jurisdiction over a state's redistricting plan which had previously 
been considered purely a question of a state's political function. 
Because of the importance of the equal protection issues involved, the 
Court was willing to encroach upon a function reserved to the state 
legislature.
    In Shaw v. Reno, the Supreme Court again took jurisdiction over a 
state's redistricting plan. This time the Court defined specifically 
the degree of constitutional scrutiny required to review a plan based 
on race, finding that it would be subject to a strict scrutiny 
analysis.
    The Constitution provides for the division of powers between the 
various states and the federal government. Basically, the states retain 
governmental power and authority for those matters not enumerated as 
federal powers under the Constitution. This division of power is 
designed to protect the liberties of the individuals because the two 
governments check and balance each other.
    The cases cited above set forth a framework to finding the 
appropriate role of the federal and state governments as interpreted by 
the Supreme Court. Lower court judges are obligated to follow these 
precedents in applicable cases.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. No. Under the Constitution, the role of the judiciary is 
to decide cases or controversies that come before it, not to encroach 
upon the constitutional powers conferred upon other branches of the 
government. Courts do not have the institutional expertise to set rules 
for and oversee the administration of prisons, schools or state 
agencies.

    Question 13. In some cases, statutes were in effect before the 
ratification of a clause of the Constitution that is later used to 
challenge the validity of those statutes. In ruling on the 
constitutionality of a statute, what weight should a court give to the 
fact that the challenged statute existed and was routinely enforced 
before and after the ratification of the constitutional provision at 
issue? Assume the court faces this issue as a matter of first 
impression.
    Answer 13. The Constitution is the supreme law of the land. In a 
case of first impression, which is quite rare, a court must presume a 
statute is constitutional. The fact that a challenged statute existed 
previously and was routinely enforced, should be given significant 
weight. I would also consider the words of the statute in order to 
determine its meaning. If upon review I was satisfied that the case was 
indeed one of first impression, I would consider precedents of higher 
courts in analogous areas of law. Only upon a clear showing that the 
statute in question is contrary to the Constitution, or where Supreme 
Court precedent demands, should such a challenge to a statute's 
constitutionality succeed.
                                 ______
                                 

  Responses of James S. Moody, Jr. to Questions From Senator Thurmond

    Question 1. We frequently hear the argument that the courts act in 
response to various social problems because the legislature has failed 
to act on important issues. What is your view of courts acting in this 
manner?
    Answer 1. Under our Constitution's separation of powers, the role 
of the District Court is to apply statutes and precedent from decisions 
of higher courts to the cases and controversies before it. The role of 
the Federal courts is not to act in response to various social problems 
because the legislature has failed to act or chosen not to act on a 
particular issue.

    Question 2. Do you have any personal objections to the death 
penalty that would cause you to be reluctant to impose or uphold a 
death sentence?
    Answer 2. No, I hold no personal objection to the death penalty 
which would cause me to be unable or reluctant to impose or uphold a 
death sentence.

    Question 3. What is your view of mandatory minimum criminal 
sentences, and would you have any reluctance to impose or uphold them 
as a Federal judge?
    Answer 3. Criminal sentences are within the purview of the 
legislative branch. If the legislative branch sets a minimum sentence 
for a particular offense or set of circumstances, I would have no 
reluctance to impose or uphold it as a Federal judge.

    Question 4. The sentencing of criminal defendants in Federal court 
is conducted under the Federal Sentencing Guidelines. Some argue that 
the Guidelines do not provide enough flexibility for the sentencing 
judge, while others say the Guidelines provided needed consistency. 
What is your view of the Federal Sentencing Guidelines and their 
application?
    Answer 4. The establishment of sentencing guidelines is within the 
purview of the legislative branch. Inconsistent sentencing gives the 
appearance of unequal treatment. The legislative branch adopted 
sentencing guidelines to ameliorate that problem and made provisions 
for flexibility under certain limited circumstances. I anticipate that 
I will find the guidelines helpful by providing an easy framework 
within which to determine appropriate sentences.

    Question 5. The Prison Litigation Reform Act was an attempt to 
limit prisoner litigation and court involvement in prison operations. 
Do you believe that the Act has been beneficial to the legal system or 
do you believe it places too many restrictions on the ability of 
prisoners to make claims and for judges to remedy Constitutional 
violations in the prison context?
    Answer 5. Prisoner litigation has threatened to overwhelm the court 
system. Obviously, there must be a balancing of the need to address any 
legitimate grievances brought by prisoners with protecting the court 
from frivolous lawsuits which tax the limited resources of the court. 
While as a state court judge I haven't had the occasion to apply the 
Prison Litigation Reform Act, if confirmed I would have no hesitancy in 
doing so.

    Question 6. Federal Rule of Civil Procedure 11 permits Federal 
judges to impose sanctions against attorneys for unwarranted claims or 
representations made in their pleadings. Some say this rule is an 
important tool for judges, while others believe it discourages 
litigants from testing the boundaries of existing law. What is your 
opinion of Rule 11?
    Answer 6. Federal Rule of Civil Procedure 11 is an important tool 
available to the court to discourage and sanction frivolous claims 
while permitting litigants to test the boundaries of existing law.
                                   ____
                                 

  Responses of James S. Moody, Jr., to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
Federal courts and Circuit Court precedents are binding on the District 
Courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even if I 
personally disagree with such precedents. A judge's personal views are 
irrelevant to his or her rulings as a Federal District Court judge.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores \1\, where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. As a Federal District judge, I will apply the precedents 
of the Circuit Court of Appeal and the Supreme Court even if I think 
the decision is seriously in error.

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following the precedent of higher courts on equal 
protection issues?
    Answer 3. Yes. I am committed to following the precedent of higher 
courts on all issues, including equal protection issues.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a Federal judge?
    Answer 4. I do not have any legal or moral beliefs which would 
inhibit or prevent me from imposing or upholding a death sentence in 
any criminal case that might come before me as Federal judge.

    Question 5. Do you believe that 10-, 15-, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the Federal 
courts should focus their responses on resolving capital cases fairly 
and expeditiously?
    Answer 5. Yes, 10, 15, or 20 years is too long between conviction 
of a capital offender and execution of the sentence. Once Congress or a 
state legislature has made the policy decision that capital punishment 
it appropriate, Federal courts should focus their resources on 
resolving capital cases fairly and expeditiously.

    Question 6. What authorities may a Federal judge legitimately use 
in detemrining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. Authorities for a Federal District Court judge are the 
express provisions of the Constitution and statutes, and decisions from 
higher courts. If there is no precedent directly on point, a judge may 
look at analogous cases and attempt to apply similar reasoning to the 
case at hand. If a provision is ambiguous and the legislative history 
is clear, another appropriate authority is the legislative history of 
the statute or constitutional provision. Applying precedent in this 
manner limits the exercise of judicial power and provides stability and 
predictability.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. Constitutional rights are enumerated in the Constitution. 
The interpretation of constitutional rights based on the plain wording 
and the original intent of the framers of the Constitution is a 
legitimate approach to considering the claims of rights not previously 
upheld by a court. A constitutional right may be legitimately 
established by a ratification of an amendment under Article V of the 
Constitution. If that occurs, it should be enforced and protected like 
the other amendments.
    It is not the role of the Federal Court to attempt to discern the 
``community's interpretation'' in order to establish a constitutional 
right not previously upheld by a court. The legislative and executive 
branches are accountable to the public and are in the best position to 
ascertain the views of the community.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. All statutes are presumed constitutional. If a challenge 
to the constitutionality of a statute arose and it was not a case of 
first impression. I would follow the binding precedents of the higher 
courts. In a case that was truly of first impression, I would look to 
the express language of the statute and the Constitution, and to 
analogous or otherwise relevant cases and precedent of the Supreme 
Court and the Eleventh Circuit Court of Appeals.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the Federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479(1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold v. Connecticut, the Supreme Court found a 
right of privacy in the penumbra of various Amendments to the 
Constitution, primarily the First Amendment. The right of privacy is 
not an expressly enumerated right within the Constitution. The Supreme 
Court reasoned that it was implied by the other Amendments. In 
contrast, in Alden v. Maine the Supreme Court looked to the original 
intent of the framers of the Constitution in determining an issue not 
specifically expressed in the Constitution, the sovereign immunity of 
the States. The Supreme Court noted that historically, the founding 
generation considered immunity from private suits central to the 
division of power and the dignity of the individual states.
    The sources of law for a Federal District Court judge are the 
provisions of the United States Constitution, the statutes passed by 
Congress and the precedents of the higher courts. The method of 
interpretation is to apply the clear wording of the text of the statute 
or constitutional provision consistent with the decisions of the higher 
courts as applied to the facts of the case. Stare decisis is a 
fundamental principle of our system to justice. Using these sources of 
law in this manner of interpretation restricts the scope of judicial 
power, but provides stability, consistency and predictability. When in 
doubt about the meaning of a statute or constitutional provision, one 
should look to analogous reasoning by higher courts on similar issues 
and the intent of the original framers of the Constitution.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the Federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. In Wickard v. Filburn, the Supreme Court upheld 
legislation passed pursuant to the Commerce Clause which restricted the 
production of home grown wheat. The Supreme Court held that, even 
though Wickard's activity might be local and trivial by itself, his 
activity could still be reached by regulation of the Federal government 
because his contribution, taken together with that of many others 
similarly situated, affected interstate commerce. This arguably 
extended the reach of Federal regulations to even ``local'' intrastate 
activities.
    In United States v. Lopez, the Supreme Court held that the 
possession of a gun by a student in a local school zone was not an 
economic activity that might, through repetition elsewhere, have a 
substantial effect on interstate commerce. This decision acknowledged 
the intent of the original framers of the Constitution that purely 
local matters should be left to the regulation of the individual 
states.
    These two cases are illustrative of the Supreme Court's exercise of 
judicial power in cases highlighting the tension between the enumerated 
powers of the Federal government with those reserved to the individual 
states. The Constitution created a Federal government of enumerated 
powers. The idea of the original framers was that the powers not given 
specifically to the Federal government would remain with the individual 
state governments.

    Question 11. What role does the division of power between the 
national government and state governments play in our Federal system? 
What impact does this division have on the liberty of the individual 
and the power of Federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. The drafters of the Constitution envisioned a balance of 
power between the national government and the individual states, much 
like the system of checks and balances among the three branches of 
government. As United States v. Lopez reiterates, this constitutionally 
mandated division of authority ``was adopted by the Framers to ensure 
protection of our fundamental liberties.'' The five cases mentioned in 
this question are all examples of the division of power between the 
national government and state governments under our Federal system.
    In United States v. Lopez, the Supreme Court, after acknowledging 
this division of power, held that the possession of a gun in a local 
school zone by a student was a local matter with no substantial 
economic effect sufficient to bring the matter within the reach of 
Federal regulation through the Commerce Clause. Likewise, in Printz v. 
United States, the Court looked to historical understanding and 
practice, and to the structure of the Constitution itself, in holding 
that the Federal government could not compel state officers to execute 
Federal laws requiring background checks prior to the purchase of a 
gun.
    Again in Alden v. Maine, the Supreme Court was called upon to 
review the division of power between the national government and the 
state governments. It held that under the Federal system established by 
the Constitution, the states retained a ``residuary and inviolable 
sovereignty,'' quoting from the Federalist No. 39. The sovereign 
immunity of the states is not specifically mentioned in the 
Constitution, but the Supreme Court looked to constitutional history 
and noted that the founding generation considered immunity from private 
suits central to the Federal division of powers. TheSupreme Court found 
that the doctrine that a sovereign could not be sued without its 
consent was universal in the States where the Constitution was drafted 
and ratified.
    Baker v. Carr and Shaw v. Reno examine this same division of power 
as applied through the Equal Protection Clause of the Fourteenth 
Amendment to state voting rights cases. In Baker v. Carr, the Supreme 
Court held that it had jurisdiction to hear a voting apportionment case 
involving a claim that plaintiffs were deprived of equal protection in 
voting in state elections. It determined that it was not a non-
justiciable political question even though it involved matters 
traditionally left to legislative policy-making involving a state's 
apportionment of voting power among its numerous localities. In Shaw v. 
Reno, the Supreme Court once again entertained a claim of an equal 
protection violation by a state's apportionment. The Supreme Court 
looked to the history of racial discrimination in voting and its link 
to the Fourteenth Amendment as important in deciding that it was a 
federal question. It pointed out that the Equal Protection Clause 
prevents the States from discriminating against individuals on the 
basis of race and it applied the strict scrutiny test to the 
apportionment plan.

    Question 12. Do you believe that a Federal District Court has the 
institutional expertise to set rules for and oversees the 
administration of prisons, schools, or state agencies?
    Answer 12. No, the Federal District Court does not have the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies.

    Question 13. In some cases, statutes were in effect before the 
ratification of a clause of the Constitution that is later used to 
challenge the validity of those statutes. In ruling on the 
constitutionality of a statute, what weight should a court give to the 
fact that the challenged statute existed and was routinely enforced 
before and after the ratification of the constitutional provision at 
issue? Assume the court faces this issue as a matter of first 
impression.
    Answer 13. A statute in effect before the ratification of a clause 
of the Constitution that is later used to challenge the validity of 
that statute is entitled to a strong presumption of validity. In a case 
not of first impression, binding precedent of the higher courts would 
control. In a case of first impressions, the analysis should begin with 
the strong presumption of constitutionality. I would then look to 
analogous reasoning from decisions of higher courts on similar issues 
with a view toward reaching a consistent result.
                               __________

  Responses of Gregory A. Presnell to Questions From Senator Thurmond

    Question 1. Mr. Presnell, we frequently hear the argument that the 
courts act in response to various social problems because the 
legislation has failed to act on important issues. What is your view of 
courts acting in this manner?
    Answer 1. Courts should not attempt to fill policy voids through 
judicial action. The correction of perceived social problems is the 
prerogative of the legislature, and the failure of the legislature to 
act does not warrant judicial intervention.

    Question 2. Mr. Presnell, do you have any personal objections to 
the death penalty that would cause you to be reluctant to impose or 
uphold a death sentence?
    Answer 2. No, I have no personal objections to the death penalty 
that would cause me to be reluctant to impose or uphold a death 
sentence.

    Question 3. Mr. Presnell, what is your view of mandatory minimum 
criminal sentences, and would you have any reluctance to impose or 
uphold them as a Federal judge?
    Answer 3. Congress has the right to legislate mandatory minimum 
criminal sentences and I would, if confirmed as a Federal judge, have 
no reluctance to uphold them.

    Question 4. Mr. Presnell, as you are well aware, the sentencing of 
criminal defendants in Federal court is conducted under the Federal 
Sentencing Guidelines. Some argue that the Guidelines do not provide 
enough flexibility for the sentencing judge, while other say the 
Guidelines provide needed consistency. What is your view of the Federal 
Sentencing Guidelines and their application?
    Answer 4. In adopting the Federal Sentencing Guidelines, Congress 
sought to balance the competing goals of flexibility and consistency. 
Federal judges are bound to follow the law, and if confirmed, I would 
do so in connection with application of the Federal Sentencing 
Guidelines.

    Question 5. Mr. Presnell, as you know, the Prison Litigation Reform 
Act, which was an attempt to limit prisoner litigation and court 
involvement in prison operations. Do you believe that the Act has been 
beneficial to the legal system or do you believe it places too many 
restrictions on the ability of prisoners to make claims and for judges 
to remedy Constitutional violations in the prison context?
    Answer 5. As a civil lawyer, I have no personal knowledge as to the 
actual effect which the Prison Litigation Reform Act has had. However, 
if confirmed as a Federal judge, I am committed to follow the 
provisions of this Act and would do so.

    Question 6. Mr. Presnell, as you are aware, Federal Rule of Civil 
Procedure 11 permits Federal judges to impose sanctions against 
attorneys for unwarranted claims or representations made in their 
pleadings. Some say this rule is an important tool for judges, while 
others believe it discourages litigants from testing the boundaries of 
existing law. What is you opinion of Rule 11?
    Answer 6. Rule 11 is a useful tool and should be preserved. In my 
experience the Rule has had a beneficial effect by reducing the number 
of frivolous claims. It has not been my experience that the Rule in 
general has been abused, nor has it improperly discouraged litigants 
from testing the boundaries of existing law.
                                 ______
                                 

  Responses of Gregory A. Presnell to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes, as a District Court judge, I am committed to 
following binding precedent of the Supreme Court of the United States 
and the Eleventh Circuit Court of Appeals (and the Fifth Circuit prior 
to 1981), regardless of any personal views I might have about those 
decisions.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own beat judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. I would follow applicable precedent of the Supreme Court 
and Court of Appeals even if I believed those decisions to be flawed. 
If confirmed as a District Court judge, I would be bound to follow 
Supreme Court precedent including City of Boerne v. Flores, 521 U.S. 
507 (1997).

    Question 3. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. Yes, I am committed to following precedent of higher 
courts on equal protection issues, regardless of any personal feelings 
I might have on these issues.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. No, I do not have any legal or moral beliefs which would 
inhibit or prevent me from imposing or upholding a death sentence in 
any criminal case that might come before me as a Federal judge.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Yes, I believe that extensive delays between conviction 
and execution are inappropriate. Review of capital cases should be 
expeditiously completed, consistent with due process.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statue or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. The jurisdiction of an Article III judge is limited to 
actual cases or controversies over which the judge has personal and 
subject matter jurisdiction. In exercising that jurisdiction, a federal 
judge should look first to the language of the statute or 
constitutional provision at issue. With a presumption of 
constitutionality, the court may then look at binding and persuasive 
precedent, consistent with the doctrine of stare decisis. In rare 
circumstances, where the provision is ambiguous and there is no helpful 
precedent, the court may look to legislative history in an effort to 
discern legislative intent.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. Interpretation of the plain meaning of the text and the 
original intent of the Framers of the Constitution is certainly a 
legitimate approach to establishing a new constitutional right. I would 
question the legitimacy of any attempt to create a new constitutional 
right through discernment of a so-called ``community interpretation.'' 
Ratification of an amendment under Act V of the Constitution is a 
fundamental approach to establishing a new constitutional right and 
would be legitimate because the Constitution itself provides the 
authority for such change.

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. In analyzing a challenge to the constitutionality of a 
statute, I would look first at the plain language of the statute and 
Constitution, and presume the statute to be constitutional. If not a 
case of first impression, I would look to binding precedent--decisions 
of the Supreme Court of the United States and the Eleventh Circuit 
Court of Appeals. If necessary, I would also look at persuasive 
authority from other appellate courts. In a case of first impression, I 
would look for analogous authority and seek to apply the rules 
articulated in these cases.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold v. Connecticut, 381 U.S. 479 (1965), the 
Supreme Court held that substantive due process under the Fourteenth 
Amendment protected the right of married couples to obtain 
contraceptives, thereby invalidating a Connecticut law restricting 
access to birth control. The source of this decision is grounded in the 
language of the Amendment: ``[N]or shall any state deprive any person 
of life, liberty, or property without due process of law.'' The 
Griswold opinion was the culmination of a line of Supreme Court cases 
recognizing a substantive element to the Fourteenth Amendment, as 
opposed to procedural due process. Article III courts should be 
cautious when using substantive due process as a basis to invalidate a 
state statute. Nevertheless, as a district judge, I would apply this 
precedent, if necessary, to fulfill my responsibility to uphold the 
Constitution of the United States as construed by the Supreme Court.
    In Alden v. Maine, 119 S. Ct. 2240 (1999), the Supreme Court 
dismissed a lawsuit brought by state employees in state court under the 
Federal Fair Labor Standard Act. As a basis for its decision, the court 
relied on the Eleventh Amendment, even though the language of the 
Amendment itself applies only to suits in federal court. In Alden, the 
court skirted the plain text of the Amendment by noting that 
``sovereign immunity derives not from the Eleventh Amendment text but 
from the structure of the original Constitution itself. Id., at 2254 
Alden marked a recent chapter in the Supreme Court's widening scope of 
the ``sovereign immunity'' protection given states by the Eleventh 
Amendment.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress' power 
and on the federal government's power compared with the power of state 
governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 10. In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme 
Court upheld a federal law that prevented individual farmers from 
growing more than a pre-determined amount of wheat. The validity of 
this statute under the Commerce Clause (Art. I, Sec. 8) was based on 
the Court's view that intrastate activity could be regulated by 
Congress if, in the aggregate, the activity ``substantially affected 
interstate commerce.''
    In United States v. Lopez, 514 U.S. 549 (1995), the court 
overturned the federal Gun-Free School Zones Act. In striking down this 
Act, the Court relied on the commerce clause and rejected the 
government's argument that the ``cost of crime'' in general had a 
substantial affect on interstate commerce. The Court reasoned that such 
an argument would justify a general federal ``police power,'' which was 
inconsistent with the structure of the federal system of government.
    The Commerce Clause was intended to preserve the concept of 
federalism by reserving to the states the power to adopt their own 
substantive laws and by limiting Congress's power to matters affecting 
interstate commerce. Because the Commerce Clause itself provides scant 
guidance, the Supreme Court has attempted over the years to strike a 
difficult balance. The economic versus non-economic distinction 
recently articulated by the Court appears to be an effort to bring 
harmony to past precedent and guidance for future legislation.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    E. Baker v. Carr, 369 U.S. 186 (1962).
    F. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. The division of power between our federal and state 
governments is fundamental to our notion of federalism. The 
Constitution by the Commerce Clause and Amendments make this 
fundamental concept clear. However, application of this basic concept 
to specificfacts, often leads to conflicts between state and federal 
powers. When such disputes arise, Article III courts are often called 
upon to resolve them.
    As noted above, the Supreme Court placed limits on Congress's 
commerce power in Lopez v. United States, 514 U.S. 549 (1995), 
construing the Commerce Clause of Article I, Sec. 8. In Alden v. Maine, 
119 S. Ct. 2240 (1999), the Court extended Eleventh Amendment sovereign 
immunity to states being sued in state court, thus limiting the ability 
of an individual to seek redress in state court for violation of a 
federal statute. Thus, the concept of federalism restricts both the 
powers of the federal government as well as the rights of individuals 
to seek redress against a state.
    Printz v. United States, 521 U.S. 898 (1997) involved the 
constitutionality of the Brady Act which imposed certain obligations on 
state governments related to background checks for hundgun purchasers. 
The Supreme Court of the United states reversed the Ninth Circuit and 
held the act unconstitutional. Because the text of the Constitution 
does not address this precise issue, the Court based its decision on 
the structure of the Constitution and historical practice. The 
structure of the Constitution, according to the Court, reveals a system 
of ``dual sovereignty'' which would be violated if the federal 
government were able to compel the states to exercise their police 
power in furtherance of a federal statute. Thus, the Court concluded 
that the Brady Act violates the principle of state sovereignty.
    Baker v. Carr. 369 U.S. 186 (1962), was a landmark decision which 
applied the equal protection clause of the Fourteenth Amendment to a 
state reapportionment dispute. The Supreme Court held that the matter 
was within the jurisdiction of the federal court and presented a 
justifiable issue. The Court noted that federalism questions which 
raise issues about the consistency of a state's actions with the 
federal Constitution do not call for the judicial deference which would 
be afforded to a purely political question; i.e., ones which chiefly 
relate to questions about relations between coequal branches of the 
government. The Baker case had the effect of requiring numerous states 
to reapportion their legislatures on a ``one man, one vote'' basis, and 
served to enfranchise many urban voters who were the subject of 
apportionment ``discrimination.'' Thus, the Court in Baker construed 
the federal Constitution to require the several states to apportion 
their legislatures in a manner consistent with the Court's view of 
equal protection.
    In Shaw v. Reno. 509 U.S. 630 (1993), the Supreme Court of the 
United States reversed a judgment of dismissal entered by a three-judge 
District Court concerning certain aspects of North Carolina's 
reapportionment plan for seats in the United States House of 
Representatives. In the majority opinion, the court held that 
plaintiffs had stated a claim under the equal protection clause by 
alleging, inter alia, that the reapportionment plan was so irrational 
on its face that the plan could be understood only as an effort to 
segregate voters based on race. Such race-based apportionment would 
require the district court on remand to determine whether the plan was 
narrowly tailored to further a compelling governmental interest. Shaw, 
therefore, applied the reverse discrimination standard in the context 
of reapportionment, which was followed shortly thereafter in Adarand 
Constructors v. Pena. 515 U.S. 200 (1995), a landmark decision 
involving affirmative action in the employment context.
    Our ``dual sovereignty'' system of government often results in 
disputes over the exercise of political power and these cases 
demonstrate the difficult issues which the courts are called upon to 
address when dealing with the concept of federalism. Federalism 
restricts the power of the federal government under the commerce clause 
and protect state sovereignty under the Tenth and Eleventh Amendments 
(see e.g. Lopez, Alden, Printz). Federalism also requires states to 
exercise their political power consistent with dictates of the United 
States Constitution (see e.g. Baker and Shaw).

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools or state agencies?
    Answer 12. I do not believe that federal district courts have the 
institutional expertise to set rules for or oversee the administration 
of prisons, schools, or state agencies.

    Question 13. In some cases, statutes were in affect before the 
ratification of a clause of the Constitution that is later used to 
challenge the validity of those statutes. In ruling on the 
constitutionality of a statute, what weight should a court give to the 
fact that the challenged statute existed and was routinely enforced 
before and after the ratification of the constitutional provision at 
issue? Assume the court faces this issue as a matter of first 
impression.
    Answer 13. The Constitution is the supreme law of the land. A 
statute is presumed to be constitutional. However, in a situation where 
a constitutional provision is enacted after the statute, the 
constitutional provision must prevail if the statute is in conflict 
therewith. If the constitutional provision is clear, the court would 
give little weight to the fact that an conflicting statute was roughtly 
enforced before and after ratification of the constitutional provision 
at issue. On the other hand, if there is no language of the ratified 
provision which expressly conflicts with the language of the pre-
existing statute, then the fact that the statute existed and was 
routinely enforced before and after ratification of the constitutional 
provision should be given significant weight.
                                 ______
                                 

     Responses of John E. Steele to Questions From Senator Thurmond

    Question 1. Mr. Steele, we frequently hear the argument that the 
courts act in response to various social problems because the 
legislature has failed to act on important issues. What is your view of 
courts acting in this manner?
    Answer 1. Federal courts are, by design, courts of limited 
jurisdiction. Our constitutional system does not vest federal courts 
with the authority to remedy all problems perceived by all people. The 
two other branches of government have responsibility for making 
decisions on the multitude of choices which face a free society. 
Federal courts become involved in cases or controversies only at the 
request of parties, by virtue of a lawsuit being filed requesting the 
court to intervene in a particular dispute and to impose a remedy or 
sanction.

    Question 2. Mr. Steele, do you have any personal objections to the 
death penalty that would cause you to be reluctant to impose or uphold 
a death sentence?
    Answer 2. I do not have any personal objections to the death 
penalty that would cause me to be reluctant to impose a death sentence 
or to uphold a death sentence in accordance with the law.

    Question 3. Mr. Steele, what is your view of mandatory minimum 
criminal sentences, and would you have any reluctance to impose or 
uphold them as a Federal judge?
    Answer 3. Mandatory minimum sentences in criminal cases have 
consistently been found to be constitutional, and I have no view which 
would make me reluctant to impose such a sentence or to uphold such a 
sentence.

    Question 4. Mr. Steel, as you are well aware, the sentencing of 
criminal defendants in Federal court is conducted under the Federal 
Sentencing Guidelines. Some argue that the Guidelines do not provide 
enough flexibility for the sentencing judge, while others say the 
Guidelines provided needed consistency. What is your view of the 
Federal Sentencing Guidelines and their application?
    Answer 4. The Federal Sentencing Guidelines, which have now been in 
effect for approximately thirteen years, carry out the Congressional 
effort to create a system which distinguishes among different types of 
criminal conduct and punishes accordingly. The Sentencing Guidelines 
channel the courts sentencing discretion by requiring the utilization 
of certain sentencing factors, and provide needed assistance in the 
goal of consistency in sentencing. If confirmed, I would follow the 
Sentencing Guidelines.

    Question 5. Mr. Steel, as you know, the Prison Litigation Reform 
Act was an attempt to limit prisoner litigation and court involvement 
in prison operations. Do you believe that the Act has been beneficial 
to the legal system or do you believe it places too many restrictions 
on the ability of prisoners to make claims and for judges to remedy 
Constitutional violations in the prison context?
    Answer 5. Prison and prisoner litigation form a unique component of 
the federal docket, and create a tension between the right to a fair 
hearing and a heavy caseload. My general view is that the Prison Reform 
Litigation Act has been beneficial to the legal system and has not 
unduly restricted prisoners or judges.

    Question 6. Mr. Steele, as you are aware, Federal Rule of Civil 
Procedure 11 permits federal judges to impose sanctions against 
attorneys for unwarranted claims or representations made in their 
pleadings. Some say this rule is an important tool for judges, while 
others believe it discourages litigants from testing the boundaries of 
existing law. What is your opinion of Rule 11?
    Answer 6. Rule 11 is an important procedural mechanism which 
encourages litigants to present their cases in a responsible fashion 
and provides judges with the ability to see that cases proceed in a 
fair and expeditious manner. Rule 11 does not discourage litigants from 
testing the boundaries of existing law.
                                 ______
                                 

     Responses of John E. Steele to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedent?
    Answer 1. I am committed to following the precedents of higher 
courts faithfully and giving them full force and effect. I will 
faithfully follow such precedents even if I were to personally disagree 
with such precedent.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores where the Court struck down the Religious 
Freedom Restoration Act.
    Answer 2. If I were fortunate enough to be confirmed as a district 
court judge, I would be bound to follow the precedents of the Supreme 
Court and the Court of Appeals in my circuit even if those courts had 
seriously erred in rendering the decision. It would be inappropriate 
for a district judge to simply use his or her own best judgment in the 
face of such binding precedent.

    Question 3. Regardless of your personal feelings of these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 3. I am committed to following the precedent of higher 
courts on all issues, including equal protection issues, regardless of 
any personal feelings I may have about an issue.

    Question 4. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 4. I do not have any legal or moral beliefs which would 
inhibit or prevent me from imposing a death sentence where authorized 
by law and appropriate under the facts or in upholding a death sentence 
in a criminal case in accordance with the law.

    Question 5. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 5. Delays of ten, fifteen or even twenty years between 
conviction of a capital offender and execution seem too long, despite 
the importance of the matter under review. It is particularly important 
in capital cases for federal courts to focus resources to resolve the 
cases fairly and expeditiously.

    Question 6. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of each of these authorities is 
consistent with the exercise of the Article III judicial power.
    Answer 6. In determining the legal effect of a statute or 
constitutional provision, a federal judge may legitimately use the 
specific language and plain meaning of the statute or constitutional 
provision; the decisions of the Supreme Court interpreting the 
constitutional provision or statute, as well as the opinions of the 
circuit courts of appeal; the legislative history of the statute or 
constitutional provision, the historical context of the constitutional 
provision or statute; and the original intent of the drafters. Article 
III judicial power directs that federal judges interpret the law in the 
context of cases or controversies, not make the law in the first 
instance. Each of these authorities provides guidance for a federal 
judge to properly interpret the laws which Congress has enacted in the 
first instance.

    Question 7. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and 
theoriginal intent of the Framers of the Constitution; (2) discernment 
of the ``community's interpretation'' of constitutional text, see 
William J. Brennan, The Constitution of the United States; Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 7. The Supreme Court has consistently held that it properly 
interpret the Constitution, including deciding claims of a 
constitutional right not previously upheld by a court, it is proper and 
necessary to look to the plain meaning of the text and the original 
intent of the Framers. (Approach 1). Discernment of the ``community's 
interpretation'' of the constitutional text is not a legitimate means 
to establish a constitutional right not previously upheld by a court. 
(Approach 2). Ratification of an amendment to the Constitution is 
certainly a legitimate approach to establish a constitutional right 
which had not been previously recognized. (Approach 3).

    Question 8. How would you, if confirmed, analyze a challenge to the 
constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 8. In each case where the constitutionality of a statue is 
the issue, the analysis begins with a presumption that the statute is 
constitutional. In a case which is not one of first impression, the 
constitutionality of a statute is analyzed by reference to the 
decisions of the Supreme Court of the United States and the Court of 
Appeals for the Eleventh Circuit to determine the binding precedent in 
the area. If there was no binding precedent, I would look to the other 
circuit courts of appeal and district courts to see what these courts 
have held concerning the constitutional challenge.
    In a case of first impression, the constitutionality of a statute 
is analyzed by an examination of the plain language of the statute as 
well as the ``history, practice, precedent, and the structure of the 
constitution.'' Alden v. Main, 527 U.S. 706, 741 (1999). The court 
looks to evidence of the original understanding of the Constitution, 
including its specific language and historical context. The court also 
examines the theory and reasoning of other Supreme Court cases which 
touch upon the area.

    Question 9. In your view, what are the sources of law and methods 
of interpretation used in reaching the court's judgment in the 
following cases? How does the use of these sources of law impact the 
scope of the judicial power and the federal government's power under 
Article III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965)
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 9. In Griswold, the Court looked to the Constitution and the 
privacy. the Court then examined its prior decisions construing 
constitutional amendments and found the existence of ``peripheral 
rights'' which secured the amendments. From an examination of the 
various specific and peripheral rights the Court concluded there was a 
``penumbra'' of rights under the First Amendment which included the 
protection of privacy. The Court also examined other amendments, and 
found they too had penumbras ``formed by emanations from those 
guarantees that help give them life and substance.'' The Court found 
that privacy was a penumbra for several constitutional amendments, and 
was therefore a legitimate constitutional right.
    In Alden, the Court looked to the structure of the Constitution 
based upon its textual provisions and certain amendments; the history 
of the Constitution and the intent of the generation which had designed 
and adopted the federal system; and the constitutional interpretations 
by the Court in it prior cases. The Court then set forth the issue as 
being whether Congress had the power under Article I to subject 
nonconsenting States to private suits in their own courts. The Court 
found that Eleventh Amendment sovereign immunity and the system of 
federalism established by the Constitution provided separate and 
independent structural principles to guide the inquiry. The court 
concluded that Congress, in exercising its Article I powers., may 
subject the States to private suits in their own courts only if there 
was compelling evidence that the States were required to surrender this 
power to Congress pursuant to the constitutional design.
    The impact of Griswold has been to expand the scope of judicial 
power under Article III and the power of the federal government. Since 
a federal court may only exercise jurisdiction in limited types of 
``cases or controversies,'' and a claim arising under federal law is 
one such type of case, finding a constitutionally-based right to 
privacy extends the power of federal courts. There is no direct impact 
on federal judicial power by Alden, since the case dealt with suits 
against a State filed in state court. Alden limits the power of 
Congress to the extent that it creates a rather high evidentiary 
standard before a federal statute may allow a suit against a State, 
even in state court.

    Question 10. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn. 317 U.S. 111 (1942).
    B. United States v. Lopez. 514 U.S. 549 (1995).
    Answer 10. In Wickard, the Court upheld the authority of Congress 
under the Commerce Clause over certain intrastate economic activity. 
The Court described in some detail the development of the Commerce 
Clause jurisprudence under the Court's prior decisions. Under the facts 
of the case, this decision established the broad reach of Congressional 
authority under the Commerce clause and consequently expanded the 
nature of cases which could be brought in federal court.
    In Lopez, the Court found that Congress did not have authority over 
all intrastate activity under the Commerce Clause. The Court recognized 
its prior cases, including Wickard, and followed the historical 
development of its cases and the shift from preventing state 
discrimination against interstate commerce to determining the 
categories of activities Congress may regulate under the Commerce 
Clause. The court concluded that Congress may regulate three broad 
categories of activities, including those activities which have a 
substantial affect on interstate commerce. The Court held that the Gun 
Free School zone Act exceeded Congress' authority under the Commerce 
Clause.
    The impact of Lopez is clearly to limit the power of the federal 
government and the federal courts. It confines to the state governments 
and courts the power to address the problems identified by Congress but 
which the Court found to have insufficient effect on interstate 
commerce to allow Congressional action.

    Question 11. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez. 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 11. The very structure of the federalism set forth in the 
Constitution calls for a division of power between the national and 
state governments. Concepts of federalism have limited the power of 
federal judges, as well as the federal government, in favor of the 
state governments and courts.
    Lopez limited the power of the federal government to pass statutes 
under the authority of the Commerce Clause, particularly in the area 
traditionally considered to be within the states' police power, and 
found that that power rested largely with the states. Printz affirmed 
that the federal government could not, consistent with principles of 
federalism, compel the states or their officers to enact or administer 
a federal regulatory program. Alden establised that Congress could not 
authorize suit against nonconsenting states in state courts. Baker held 
that a federal court had jurisdiction over an apportionment dispute 
because it stated a claim under the Equal Protection Clause, and was 
not a nonjusticiable political question. Shaw expanded the jurisdiction 
of federal courts by finding that an equal protection claim was stated 
in a reapportionment scheme which was alleged to be so irrational on 
its face that it could only be meant to segregate voters based on race.

    Question 12. Do you believe that a federal district court has the 
institutional expertise to set rules for and oversee the administration 
of prisons, schools, or state agencies?
    Answer 12. Federal district courts have no institutional expertise 
to set rules for and oversee the administration of these types of 
facilities.

    Question 13. In some cases, statutes were in effect before the 
ratification of a clause of the Constitution that is later used to 
challenge the validity of those statutes. In ruling on the 
constitutionality of a statute, what weight should a court give to the 
fact that the challenged statute existed and was routinely enforced 
before and after the ratification of the constitutional provision at 
issue? Assume the court faces this issue as a matter of first 
impression.
    Answer 13. The analysis of the constitutionality of a statute 
begins with the presumption that the statute is constitutional. In a 
case of first impression, the constitutionality of a statute is 
analyzed by an examination of the plain meaning of the statute, as well 
as the ``history, practice, precedent, and the structure of the 
Constitution.'' Alden v. Maine, 527 U.S. 706, 741 (1999). The court 
looks to evidence of the original understanding of the Constitution, 
including its specific language and historical context. The court also 
examines the theory and reasoning of other Supreme Court cases which 
touch upon the area, and considers whether the statute is consistent 
with the structure of the Constitution. Significant weight should be 
given by a court to the fact that the statute existed and was routinely 
enforced before and after ratification of the constitutional provision.


 NOMINATIONS OF MICHAEL JOSEPH REAGAN, MARY H. MURGUIA, SUSAN RITCHIE 
          BOLTON, AND JAMES A. TEILBORG (U.S. DISTRICT JUDGES)

                              ----------                              


                         TUESDAY, JULY 25, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:13 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jon Kyl, 
presiding.
    Also present: Senator Leahy.

  OPENING STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 
                        STATE OF ARIZONA

    Senator Kyl. The committee will come to order.
    Today the Judiciary Committee is holding its sixth 
nominations hearing of the second session of the 106th 
Congress. At this hearing we will consider the nominations of 
four individuals who have been nominated by the President to be 
Federal judges. We will have two witnesses--excuse me, two 
panels of witnesses this afternoon.
    The first panel will consist of the sponsors of the 
nominees, who will give brief statements on behalf of their 
nominees, and the second panel will consist of the four 
district court nominees. They are: Susan Ritchie Bolton, of 
Arizona, to be U.S. District Judge for the District of Arizona; 
Mary Murguia, of Arizona, to be a U.S. District Judge for the 
District of Arizona; Michael Joseph Reagan, of Illinois, to be 
a U.S. District Judge for Southern District of Illinois; and 
Jim Teilborg, of Arizona, to be a U.S. District Judge for the 
District of Arizona.
    If one of the members of the minority are able to attend 
the hearing, I will afford them an opportunity to make a 
statement when they arrive.
    At this time, if the sponsors of the nominees will take 
their seats at the witness table, we can begin. Representative 
Pastor, why don't you join Senator Durbin. I think that 
represents the sponsors, and we will hear from that at this 
point, starting with Senator Durbin.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Senator Kyl, thank you for this hearing, 
and I want to especially thank Senators Hatch and Leahy for 
their hard work in preparing for this day to consider the 
nomination of Michael Reagan to be district court judge for the 
Southern District of Illinois.
    Mike Reagan is from not only my home State of Illinois but 
my home county of St. Clair. I am sure that the committee is 
aware that Senator Fitzgerald and I may be of opposite 
political faith, but we work closely together in bringing these 
judicial nominees before the committee. I am happy to report 
that with Mr. Reagan's consideration today, we will have 
completed a 2-year agreement on the appointment of judges, 
which has been bipartisan from the start.
    I also want to say that Senator Fitzgerald believes, as I 
do, that Michael Reagan possesses all the qualities necessary 
to make a tremendous contribution to the Federal bench. In 
addition Mike Reagan has the support of several respected 
judges, both State and Federal, organizations including the 
National Sheriffs Association, the Chief Justice of the 
Illinois Supreme Court, the bishop of the Diocese of 
Belleville, the Illinois Federation of Teachers, and the 
Illinois Pharmacists Association. The list goes on and on. They 
have written letters in support of his candidacy. They believe, 
as I do, he will be an excellent addition to the Federal bench.
    Mike Reagan is a full-time public servant who wears many 
hats. He serves as commissioner for the Attorneys Registration 
and Disciplinary Commission for the Supreme Court of Illinois 
and has held that position since 1995.
    When you look at his background, you understand that Mike 
Reagan was not born to privilege. He worked very hard for his 
education as well as his professional achievement.
    I have always found it very interesting when I considered 
his nomination that Mike Reagan served as a police officer 
after graduating from Bradley University in 1976 until he 
received his law degree from St. Louis University in 1980. He 
has many notable positions, but the most important is the role 
that he plays as husband and father. He is here today with his 
wife, Elaine--they will be celebrating their 25th wedding 
anniversary next year--and their four sons: Justin, Michael, 
Bradley, and Jonathan.
    Members of Mr. Reagan's family are here and are proud, as I 
am, to present his name to the committee. I am happy to 
introduce a man with a rare combination of intelligence, 
practical experience, temperament, and devotion to public 
service that will make for a great Federal judge.
    I thank you for the prompt consideration of Michael Reagan.
    Senator Kyl. Thank you very much, Senator Durbin. That is a 
great introduction.
    Let me now call on Representative Pastor.

STATEMENT OF HON. ED PASTOR, A U.S. REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Mr. Pastor. Thank you, Mr. Chairman.
    The nominees from Arizona, you and I have worked on them 
for about 6 months, so you probably know them as well if not 
better than I do. In some cases you do. But it is with great 
pride, Mr. Chairman, that I am here supporting the three 
nominees for Arizona.
    Judge Bolton has been a judge, as you know, for the 
superior court since 1989, and she has been a partner in a law 
firm, and as you know, she has served Arizona well, Maricopa 
County well, and she rates very high as they assess judges when 
they are up for their renomination.
    Jim Teilborg, whom you know, is a good friends of yours, 
and we are very happy to be here in support of him. He has 
practiced law in Maricopa County for many years and has been a 
partner for law firms throughout Phoenix and has a very 
distinguished career.
    I am also very proud to bring to the committee Mary 
Murguia. As you know, she is the Assistant U.S. Attorney for 
the District of Arizona and has been there since 1990, and 
currently is on detail here in the District of Columbia as the 
Director of the Executive Office for U.S. Attorneys and the 
Department of Justice.
    As you know, in Arizona, there was a concern that we did 
not have gender representation in the Federal bench, and I am 
happy that today we have two women that are being considered. 
And Ms. Murguia will make history in that she will be the first 
Latina Federal judge in the great State of Arizona.
    And so with great pride I recommend all three. They will 
serve Arizona well, and they will make us proud.
    Senator Kyl. Thank you very much, Representative Pastor.
    Let me say a few words. It is not uncommon for the 
individual chairing the committee to make a few remarks since 
frequently if it is a member of the committee who is a sponsor, 
it is an appropriate opportunity to say a few words. And I 
would like to add my thoughts to those of Representative Pastor 
with respect to the Arizona nominees who are here before us.
    Representative Pastor and I have what I would characterize 
as an excellent working relationship as a House Democrat and 
Senate Republican both representing our State. Representative 
Pastor, being of the political party of the President, has had 
significant influence in working with the White House on 
judicial nominations and also the nominee for U.S. attorney for 
Arizona. And as a member of the Judiciary Committee, I have had 
the pleasure of working very closely with Representative Pastor 
to try to get our nominees through quickly, and we have done 
very, very well at that, I think, working together.
    And with respect to these three nominees, Representative 
Pastor is exactly right. These are three very, very highly 
qualified candidates from Arizona.
    In the case of Judge Bolton, it is a bit of a bitter pill, 
as a former member of the practicing bar in Arizona, to see 
Judge Bolton leave the Maricopa County Superior Court bench. 
And I will tell you a little story that makes the point.
    Yesterday, I was involved in lengthy negotiations with 
representatives from Arizona, including the Gila River Indian 
community, who have also worked closely with Representative 
Pastor, over resolution of water rights claims in Arizona. And 
those of you from Arizona know these are some of the most 
important issues confronting our State.
    Well, there is one person in our State who is a real expert 
on this in the judiciary, and that is Judge Bolton. And because 
of her expertise and fairness, all of the contending interests 
in Arizona have been willing to place their concerns before her 
to be resolved. And she is right in the middle of this 
important litigation right now. They will be very sorry to see 
her leave the Maricopa County Superior Court bench.
    So it is a little bit--I have some mixed emotions in 
helping to nominate or to confirm Judge Bolton, but that is how 
highly thought of she is.
    I have a confession to make this morning as well. 
Representative Pastor alluded to the fact that I have known Jim 
Teilborg for a long time--well, only since 1964, when he and I 
were law school classmates together, Senator Durbin, and we 
studied together in the same little group. Jim then went on to 
a highly successful practice, a career in Phoenix, AZ, becoming 
a partner in a firm that he founded, very successfully, 
primarily focusing on civil litigation matters. And I think he 
will bring an extraordinary amount of experience on the civil 
side to the Federal district court in Phoenix.
    And then Mary Murguia. Mary is the other side of the coin 
with a career of experience as a prosecutor with the U.S. 
Attorney's office, first practicing as a prosecutor in Kansas 
and then with the U.S. attorney in Arizona. And with her wealth 
of experience on the criminal side of the equation, I told her 
yesterday, ``I hope you will sit Jim Teilborg down and teach 
him the ropes on the criminal law, and I know he will do the 
same with you with the civil.'' And we are going to have just 
an enormously significant contribution to our bench as a result 
of bringing these different areas of expertise to the Arizona 
Federal District Court.
    So, as Representative Pastor said, he and I have been 
working to try to find the very best candidates that we could 
suggest to the President. The President and his folks at the 
Department of Justice and the White House have been very 
helpful in getting these candidates vetted quickly so that we 
could try to get them confirmed before the end of the session. 
And I am just very pleased that Michael Reagan from Illinois 
and our three candidates from Arizona are here today.
    Now, with that, I want to--I will excuse our two sponsors. 
Go ahead, Representative Pastor.
    Mr. Pastor. Mr. Chairman, Jim also gave a secret this 
morning when he met with me. He said that because of his class 
notes and his mentoring that you were successful in graduating 
from the U of A Law School. [Laughter.]
    Senator Kyl. Others have also taken credit for that.
    Thank you both very, very, much. We appreciate your 
sponsorship of these candidates.
    Senator Kyl. Now, let me make one other point before I ask 
the candidates to come to the table. Those of you who are here 
as family have a great deal of reason to be proud of the 
members of your family who are here, or if you are here as 
friends or associates, the same kind of pride will certainly be 
with you today. You may wonder because this hearing is only 
being conducted by one Senator--and I will tip you off in 
advance that they are not in for a real tough grilling. You may 
wonder whether or not this is really that serious of a process. 
And I have to let you in on a secret.
    The reason why this hearing is not the highly charged, 
well-attended, difficult grilling of candidates that you have 
perhaps seen on some occasions is because these four candidates 
are of such high quality. They have been vetted with my 
colleagues, with the staff, with outside groups, and there is 
nothing wrong with them.
    And as a result, my colleagues have made it pretty clear to 
me that these candidates are going to be treated very well by 
the United States Senate very quickly. And as a result, it is 
not necessary to spend a great deal of time on very difficult, 
personal questions and that kind of thing. They all have great 
backgrounds, and for that reason we won't need to spend a huge 
amount of time.
    But, believe me, it does not represent a lack of interest 
but, rather, the high quality of the candidates who are here 
that we will not take all that much time this afternoon to 
conduct this hearing.
    But, with that said now, I would like the four candidates 
to please come forward and take a seat at the table, and I will 
swear you in after you are all ready here.
    Actually, before you sit down, why don't you join me in 
this oath, please? Do you swear that the testimony you will 
give in this hearing shall be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Reagan. I do.
    Ms. Murguia. I do.
    Judge Bolton. I do.
    Mr. Teilborg. I do.
    Senator Kyl. Thank you. Please have a seat.
    Now, let me ask each of you in turn, first of all, if you 
have family or friends here you would like to introduce, to do 
so. Mr. Reagan, starting with you, please.

  TESTIMONY OF MICHAEL JOSEPH REAGAN, OF ILLINOIS, TO BE U.S. 
      DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF ILLINOIS

    Mr. Reagan. Thank you, Your Honor, and thank you for the 
honor to be here.
    My wife is here, Elaine. My oldest son, Justin, who is 20 
and attends St. Louis University, is here. My second son, 
Michael, who is 17, is with me today. My third son, Bradley, 
who is 15, is with me here today. And last, but not least, is 
my youngest son, Jonathan, who is 14 and with me today.
    Senator Kyl. Great. Well, welcome to all of you. This is a 
great day, and we are happy to have you here.
    I know that Mary Murguia has several members of her family 
to introduce. Mary.

 TESTIMONY OF MARY H. MURGUIA, OF ARIZONA, TO BE U.S. DISTRICT 
               JUDGE FOR THE DISTRICT OF ARIZONA

    Ms. Murguia. That is true, and it is an honor to be here. 
Thank you, Mr. Chairman.
    I would first like to introduce my parents: Mr. Alfred O. 
Murguia and Amalia Murguia. If they could please stand? They 
came from Kansas City yesterday to be here with me today.
    My oldest sister, Martha Hernandez, is here today. My 
brother, Alfred Murguia, from Kansas City, is also here today. 
My sister, RoseMary Murguia, who works at UMB Bank in Kansas 
City, is here today. My brother, Carlos Murguia, who is a 
Federal district court judge in Kansas, is present today. My 
brother, Ramon Murguia, a lawyer in Kansas City in private 
practice, and who is also chairman of the board of the National 
Council of La Rasa, is here with me today. My sister, my twin 
sister, Janet Murguia, is present. She formerly worked on the 
Hill and most recently with the Congressional Leg Affairs 
Office at the White House, is present.
    I have some nephews. My nephew, Ryan, who is 17 years old 
today, is here. My nephew, Nicholas, a 14-year-old, is here 
today. And my niece, Kelly, who is 12 years old, is here today.
    I have some sisters--two of my sister-in-laws could not be 
here along with their children, but I know they are here in 
spirit supporting me.
    I have a couple other friends I'd like to identify. I have 
a good friend from the Department of Justice, Bea Witzleben, 
who is Associate Deputy Attorney General at the Department of 
Justice, is here, along with her sister, Claire, from 
Philadelphia. And I have a friend from Arizona, Sharon Kurn, 
who is currently an assistant U.S. attorney in the District of 
Columbia U.S. Attorney's Office, is here today.
    A friend of mine, a dear friend, Charlie Steel, who is 
currently deputy general counsel at the FBI, and was formerly a 
supervisor with me in the U.S. Attorney's Office in the 
District of Arizona, is here today.
    Another friend of mine, a partner at Baker and Botts, Diana 
Dietrich, is here today. And I have several other individuals 
who are with me and colleagues over at the Department, and I 
would just ask for them to all stand because I'd like for them 
to be acknowledged as well.
    Senator Kyl. The DOJ contingent, great. We are happy to----
    [Laughter.]
    Senator Kyl. That is great. Who is minding the store down 
there?
    Senator Leahy. The police officer said that there was a 
much larger crowd than usual in the Dirksen Building. I think 
they all came here.
    Ms. Murguia. Thank you, sir.
    Senator Kyl. Well, Mary, thank you. And we welcome all of 
the members of your family and your friends who are here. This 
is a great occasion, and the second occasion for your parents. 
And I know the two of you must be very proud of all of your 
children for what they have accomplished here.
    Sort of by prearrangement, I am kidding now, but Judge 
Bolton and Jim Teilborg figure that since Mary has used up the 
quota of Arizona relatives, they haven't brought a lot of 
friends and relatives here. I neglected to ask. Do either of 
you have any guests here? Judge Bolton.

TESTIMONY OF HON. SUSAN RITCHIE BOLTON, OF ARIZONA, TO BE U.S. 
           DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA

    Judge Bolton. Mr. Chairman, I do not. Unfortunately, my 
husband, Bob Bolton, and my parents, Charles and Margaret 
Ritchie, were not able to be here, but they are certainly here 
in spirit.
    Senator Kyl. Great.
    Judge Bolton. And I feel their love and support.
    Senator Kyl. Thank you.
    Jim.

TESTIMONY OF JAMES A. TEILBORG, OF ARIZONA, TO BE U.S. DISTRICT 
               JUDGE FOR THE DISTRICT OF ARIZONA

    Mr. Teilborg. Thank you, Mr. Chairman, for convening this 
committee. My wife of 38 years, Connie, is unable to be here, 
nor are my sons, Andy and Jay, nor are my parents, Ralph and 
Erma Teilborg. But, likewise, I know they are here in spirit.
    Senator Kyl. Great. I was kidding about Mary using up the 
quota of Arizona guests, but everybody is well represented one 
way or another. We appreciate that very much.
    Before I ask each of you to make a statement and respond to 
any questions we have, since Senator Leahy has now joined us, I 
will ask him if he has any comments he would like to make at 
this time.
    Senator Leahy. Thank you very much, Mr. Chairman. I am just 
going to put my statement in the record. I don't want to delay 
this. I saw Senator Durbin and Representative Pastor outside, 
and I know they have testified here, too. And I am glad to see 
this panel from Arizona. I know that the presiding chairman 
will give you a really tough and rough time, but you will 
probably make it through.
    Mr. Reagan, Senator Durbin has asked me about you every day 
for the last several weeks, and my good friend, MichelleLaxalt, 
has done the same, and I get e-mails from her saying that if I have any 
idea how to do my job, I would make sure you were here. Actually, she 
was a lot nicer than that, I want to assure you. I would have gone to 
that at the next level if we hadn't gotten you here, so I am delighted 
you are here.
    I will put my full statement in the record and leave you 
all to the tender mercies of Jon Kyl.
    [The prepared statement of Senator Leahy follows:]

 Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the 
                            State of Vermont

    I want to thank the Chairman for calling this important nominations 
hearing today. I am glad to see the Committee working to fulfill its 
constitutional responsibility to review the President's nominees to 
various courts around the country. I look forward to hearing from each 
of the District Court nominees included in today's hearing. With 60 
current and continuing vacancies within the federal judiciary, and 
seven more on the horizon, we cannot afford to slow down the progress 
we are making and the work we are doing to help the President fill 
those vacancies with qualified people to oversee the administration of 
justice.
    I am, nonetheless, sorely disappointed to see another hearing come 
and go without even one nominee to fill one of the many vacancies to 
the Courts of Appeals around the country. I was encouraged to hear 
Senator Lott recently say that he continues to urge the Judiciary 
Committee to make progress on judicial nominations. The Majority Leader 
said: ``There are a number of nominations that have had hearings, 
nominations that are ready for a vote and other nominations that have 
been pending for quite some time and that should be considered.'' He 
went on to note that the groups of judges he expects us to report to 
the Senate will include ``not only district judges but circuit 
judges.'' Unfortunately, the Committee has not honored the Majority 
Leader's representations and is only willing to consider these few 
District Court nominees at today's hearing.
    Pending before the Committee are a dozen nominees to the Federal 
Courts of Appeals who are awaiting a hearing--12 nominees, not one of 
which the Republican Majority saw fit to include in this hearing. Left 
off the agenda are Judge Helene White of Michigan, who is now the 
longest pending judicial nomination at 43 months without action; Barry 
Goode, whose nomination to the Ninth Circuit was the subject of Senator 
Feinstein's statements at our Committee meeting last Thursday and who 
has been pending for over two years; as well as a number of qualified 
minority nominees whom I have been speaking about throughout the year, 
including Kathleen McCree Lewis of Michigan, Enrique Moreno of Texas 
and Roger Gregory of Virginia.
    I noted at our last meeting of the Judiciary Committee that there 
continue to be multiple vacancies on the Fourth, Fifth, Sixth, Ninth, 
Tenth and District of Columbia Circuits. With 20 vacancies, our 
appellate courts have nearly half of the total judicial emergency 
vacancies in the federal court system. I know how fond our Chairman is 
of percentages, so I note that the vacancy rate for our Courts of 
Appeals is more than 11 percent nationwide. Of course that vacancy rate 
does not begin to take into account the additional judgeships requested 
by theJudicial conference to handle their increased workloads. If we 
added the 11 additional appellate judges being requested, the vacancy 
rate would be 16 percent. By comparison, the vacancy rate at the end of 
the Bush Administration, even after a Democratic Majority had acted in 
1990 to add 11 new judgeships for the Courts of Appeals, was only 11 
percent. Even though the Congress has not approved a single new Circuit 
Court position within the federal judiciary since 1990, the Republic 
Senate has lost ground in filling vacancies on our appellate courts.
    At our first Executive Business Meeting of the year, I noted the 
opportunity we had to make bipartisan strides toward easing the vacancy 
crisis in our nation's federal courts. I believed that a confirmation 
total of 65 by the end of the year was achievable if we made the 
effort, exhibited the commitment, and did the work that was needed to 
be done. I urged that we proceed promptly with confirmations of a 
number of outstanding nominations to the Court of Appeals, including 
qualified minority and women candidates.
    Yet only five nominees to the appellate courts around the country 
have had nomination hearings this year and only three of those five 
have been reported by the Committee to the Senate and confirmed--only 
three all year. The Committee included no Court of Appeals nominees at 
the hearings on April 27 and July 12, and there are no Court of Appeals 
nominee at the hearing today. The committee has yet to report the 
nomination of Allen Snyder to the District of Columbia Circuit, 
although his hearing was eleven weeks ago, or the nomination of Bonnie 
Campbell to the Eighth Circuit, although her hearing was eight weeks 
ago.
    At the June 27 executive business meeting, Chairman Hatch compared 
this year's confirmation total against totals from other presidential 
election years. The only year to which this can be favorably compared 
was 1996 when the Republican majority in the Senate refused to confirm 
even a single appellate court judge to the federal bench. Again, that 
is hardly a comparison in which to take pride. Let us compare to the 
year 1992, in which a Democratic majority in the Senate confirmed 11 
Court of Appeals nominees during a Republican president's last year in 
office among the 66 judicial confirmations for the year.
    I remember in 1992, in the waning days of the Bush Administration, 
Timothy Lewis was nominated to fill a vacancy on the Third Circuit. His 
nomination was received by the Democratic Congress on September 17; his 
hearing was held September 24; he was reported to the floor on October 
7; and he was confirmed on October 8. In fact, in 1992 the Committee 
held 15 hearings--twice as many as this Committee has found time to 
hold this year. Late that year, we met on July 29, August 4, August 11, 
and September 24, and all of the nominees who had hearings then were 
eventually confirmed before adjournment. We have a long way to go 
before we can think about resting on any laurels.
    Having begun so slowly in the first half of this year, we have much 
more to do before the Senate takes its final action on judicial 
nominees this year. We cannot afford to follow the ``Thurmond Rule'' 
and stop acting on these nominees now in anticipation of the 
presidential election in November. We must use all the time until 
adjournment to remedy the vacancies that have been perpetuated on the 
courts to the detriment of the American people and the administration 
ofjustice. That should be a top priority for the Senate for the rest of 
this year. In the last 10 weeks of the 1992 session, between July 24 
and October 8, 1992, the Senate confirmed 32 judicial nominations. I 
will work with the Republican Majority to try to match that record.
    One of our most important constitutional responsibilities as United 
States Senators is to advise and consent on the scores of judicial 
nominations sent to us to fill the vacancies on the federal courts 
around the country. I continue to urge the Senate to meet its 
responsibilities to all nominees, including women and minorities. That 
these highly qualified nominees are being needlessly delayed is most 
regrettable. The President spoke to this situation earlier this month 
in his appearance before the NAACP. The Senate should join with the 
President to confirm these well-qualified, diverse and fair-minded 
nominees to fulfill the needs of the federal courts around the country.
    I commend the Senators from Illinois and Arizona for working to 
bringing these nominees forward to fill positions on the District 
Courts of Illinois and Arizona. The Arizona vacancies are each judicial 
emergency vacancies. Two were authorized in appropriations legislation 
last year when the Republicans Majority continued its refusal to 
consider a bill to meet the judicial Conference's recommendation for 72 
additional judges around the country. All we were able to authorize 
were a few judgeships in Arizona, Florida and Nevada.
    Judge Bolton, Mary Helen Murguia and James Teilborg were all 
nominated just last Friday. They are now having their hearing, and they 
have been promised a vote out of committee this coming Thursday. I am 
happy to see us moving so swiftly on these nominees. These nominees may 
show that judicial nominees can be confirmed is as little as a week's 
time if Senators put their minds to it and make some effort. All the 
talk about needing six months or more to process and review nominees 
turns out to be just that--talk. If we can consider these nominees this 
week, we should be able to consider many other nominees on a similarly 
expedited schedule. There is no excuse for holding up nominations for 
months and years as has been the practice since 1996. The precedent is 
now being set for quick approval by this Committee.
    Having a hearing does not automatically guarantee someone a vote 
before this Committee, however. Bonnie Campbell, nominated by the 
President on March 2, 2000, has completed the nomination and hearing 
process and is strongly supported by Senator Grassley and Senator 
Harkin from her home state. But her name continues to be left off the 
agenda at our executive meetings. The same goes for Allen Snyder. Mr. 
Snyder was nominated on September 22, 1999, received the highest rating 
from the ABA, enjoys the full support of his home state Senators, and 
had his hearing on May 10, 2000. The committee has yet to vote on 
either of these outstanding nominees, and I am not sure why, but I hope 
they will be included for action this Thursday.
    I continue to urge the Senate to meet its responsibilities to all 
nominees, including women and minorities. That highly-qualified 
nominees are being needlessly delayed is most regrettable. The Senate 
should join with the President to confirm well-qualified, diverse and 
fair-minded nominees to fulfill the needs of the federal courts around 
the country.

                       Questioning by Senator Kyl

    Senator Kyl. Thanks, Pat.
    Well, let me ask each of you if you would like to make a 
statement at this time. The committee would be happy to have 
that statement for the record, and I would also note that the 
record will remain open until the close of business today for 
any other Senators to submit written questions.
    The panelists are well aware of the fact that we are trying 
to move the nominations expeditiously, and, therefore, any 
responses to those questions should also be submitted as soon 
as possible in order for us to move forward.
    Mr. Reagan, let me start with you and ask if you would like 
to make a brief statement.
    Mr. Reagan. Mr. Chairman, I have no statement other than to 
thank the committee for the honor and the pleasure of being 
here.
    Senator Kyl. You are very welcome.
    Mary Murguia.
    Ms. Murguia. No, sir. I just want to also thank you and the 
committee for the honor of being here.
    Senator Kyl. My pleasure. Judge Bolton?
    Judge Bolton. Mr. Chairman, I also have no statement, but 
also wanted to express my gratitude to you and the committee 
for holding these hearings today.
    Senator Kyl. Jim Teilborg.
    Mr. Teilborg. Likewise, Mr. Chairman, thank you very much 
for conducting this hearing, and I have no opening statement.
    Senator Kyl. OK; well, now begins the exam, then.
    Let me just ask each of you some questions that other 
members of the committee have submitted from time to time, and 
one question that I have found useful to ask, the first one 
here. And perhaps we could begin, since I have started twice 
with Michael Reagan, start with Jim Teilborg here and we will 
just go down and ask each one of you to provide an answer to 
the question, and then reverse the order and so on.
    The first has to do with judicial activism, a subject that 
all the members of the committee are interested in. As all of 
you know, the Founding Fathers believed that the separation of 
powers in a government was critical to protecting the liberty 
of the people. Therefore, they separated the legislative, the 
executive, and the judicial branches into three different 
powers of government, and the legislative power being the power 
to balance the moral, economic, and political considerations 
and make law, the judicial power being the power only to 
interpret the laws made by Congress and by the people.
    In your view, is it the proper role of a Federal judge when 
interpreting a statute or the Constitution to accept the 
balance struck by Congress or to rebalance the competing moral, 
economic, and political considerations? And under what 
circumstances do you believe that it is appropriate for a 
Federal court to declare a statute enacted by Congress 
unconstitutional?
    Mr. Teilborg. Well, Mr. Chairman, I certainly appreciate 
the balance of powers, and I appreciate the limited 
jurisdiction and sphere of the Federal court. And in connection 
with declaring a law unconstitutional, certainly the court must 
first determine whether or not there is a constitutional issue, 
must follow the maxims of presumption of constitutionality, 
attempting to give the statute its plain meaning, and several 
other maxims. And I'm certainly committed to doing that if I am 
fortunate enough to be confirmed.
    Senator Kyl. Thank you.
    Judge Bolton.
    Judge Bolton. Mr. Chairman, I think that the Constitution 
struck an appropriate balance of powers among the executive, 
the legislative, and the judiciary, and it's very important 
that members of the judiciary remember the limited role that 
they play in that balance and should never attempt to unbalance 
that.
    There are rare circumstances when judges are compelled to 
declare statutes unconstitutional. But that should only be done 
when it is the only alternative, when there is no 
constitutional interpretation that can be placed, where the 
case cannot be decided on non-constitutional grounds, and when 
there is no narrower interpretation that can be made of the 
statute.
    Senator Kyl. Mary Murguia.
    Ms. Murguia. I agree with what's been stated, and I just 
assure you I know what the role of the judge is to be, and that 
is not to legislate from the bench and to accept the law that 
has been handed down by the Supreme Court and uphold the 
Constitution. And if I'm so fortunate to be confirmed, I would 
pledge to do that.
    Senator Kyl. Thank you.
    Michael Reagan.
    Mr. Reagan. Mr. Chairman, I adopt my colleagues' comments 
and would note that it is not permissible to encroach upon the 
separation of powers. We would all be shocked if a Member of 
Congress would walk down to the district court, sit on the 
bench, and try to call the next case. That would be an 
impermissible encroachment. Similarly, I don't think judges 
should legislate from the bench.
    Senator Kyl. Thank you very much.
    The next question has to do with adhering the precedent, 
and let me begin with you, Mr. Reagan. SupremeCourt precedents 
are binding on all lower Federal courts, and the circuit court 
precedents are binding on the district courts within a particular 
circuit.
    Are you committed to following the precedents of higher 
courts faithfully and giving them full force and effect, even 
if you personally may disagree with those precedents?
    Mr. Reagan. Mr. Chairman, if I'm honored by this committee 
and the Senate and am confirmed, I can tell you not only that I 
can do that, but I will do that.
    Senator Kyl. Before I ask you to pass, let me add another 
personal note. When the issue was before the Congress as to 
whether to divide or split the Ninth Circuit Court of Appeals, 
which, as you all know, is very large, the comment was made to 
me, actually by a circuit court judge, I am sorry to say, that 
he felt that there should be a representation of different 
areas of the country within a circuit in order to give the 
flavor of that area to the circuit. And I thought at the time 
that coming from a circuit court judge bound by the precedent 
of the Constitution and the U.S. Supreme Court that was a 
rather odd comment.
    Let me add that little observation to the mix here, if you 
would like to comment on that. Mary.
    Ms. Murguia. Mr. Chairman, as a Federal district court 
judge, if I was fortunate to be confirmed, I would be bound by 
the precedents set forth by the Supreme Court and the appellate 
courts. And I understand that and I would adhere to that.
    Senator Kyl. Judge Bolton.
    Judge Bolton. Mr. Chairman, if confirmed as a Federal 
district judge, I would be bound and would follow the 
precedents set out by the U.S. Supreme Court and by my circuit. 
And my personal views would never prevent me from following 
that precedent.
    Senator Kyl. Jim Teilborg.
    Mr. Teilborg. Likewise, Mr. Chairman, I will be bound by 
the precedent of the Ninth Circuit as well as the precedent of 
the Supreme Court.
    Senator Kyl. Thank you. Now, let me, again, starting with 
you, Mr. Teilborg, go through one other question, which from 
time to time has arisen and is now in the news. It has to do 
with the death penalty.
    Do you have any legal or moral beliefs which would inhibit 
or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a Federal 
judge?
    Mr. Teilborg. I have no legal or moral belief or anything 
else in my belief system that would prevent me from applying 
the death penalty as found constitutional by the Supreme Court.
    Senator Kyl. Judge Bolton.
    Judge Bolton. Mr. Chairman, in my 11 years as a superior 
court judge, I have had the occasion three times to consider 
the imposition of the death penalty on persons convicted of 
first-degree murder and have imposed the death penalty on one 
of those three occasions. And so, obviously, my personal view 
of the death penalty does not prohibit me in any way from 
applying the constitutional death penalty that has been upheld 
both by the U.S. Supreme Court and the Arizona Supreme Court.
    Senator Kyl. Thank you.
    Mary Murguia.
    Ms. Murguia. Similarly, Mr. Chairman, the Supreme Court has 
found the death penalty to be constitutional. There is nothing 
in my personal views that would prevent me from following the 
law.
    Senator Kyl. Thank you.
    Michael Reagan.
    Mr. Reagan. Mr. Chairman, Gregg v. Georgia is the state of 
the law in the death penalty in this country. There are 
numerous references to the death penalty or capital punishment 
in the Constitution. There is nothing in my background, 
education, training, or experience nor do I harbor any personal 
belief that would preclude me from following the precedent of 
the United States Supreme Court or the Seventh Circuit Court of 
Appeals.
    Senator Kyl. Thank you.
    Another question that has been submitted has to do with 
affirmative action, and let me read it. And I will start with 
you, Mr. Reagan. Please state in detail your best independent 
legal judgment on the lawfulness under the Equal Protection 
Clause of the 14th Amendment and Federal civil rights laws of 
the use of race, gender, or national origin-based preferences 
in such areas as employment decisions, hiring, promotion, or 
layoffs, college admissions and scholarship awards, and the 
awarding of Government contracts.
    Mr. Reagan. Mr. Chairman, in 1990, the Supreme Court handed 
down Metro Broadcasting, and in that case, which was decided on 
equal protection grounds, the Court by a 5-4 decision 
determined that only a rational relationship test would be 
applied when discussing immutable characteristics in 
preferences such as race or gender.
    Five years later, when there was a change in the Court, by 
another 5-4 decision, this time the Adarand case was decided, 
and at that point in time, the Court determined that under 
equal protection grounds, a heightened level of scrutiny should 
be used, in that case strict scrutiny. That's the current law 
of the land, and if any remedy would be tailored under Adarand, 
it would have to be narrowlytailored and subject to a strict 
scrutiny type of review.
    Senator Kyl. Thank you.
    Mary Murguia.
    Ms. Murguia. Mr. Chairman, I'm aware of the Adarand. 
decision as it has been set forth by Mr. Reagan, and I would 
follow the law, which is a strict scrutiny test in applying it.
    Senator Kyl. Thank you.
    Judge Bolton.
    Judge Bolton. Mr. Chairman, I also am aware of the Adarand 
decision, and I believe it's been accurately summarized my 
colleagues and would follow and apply that strict scrutiny 
test.
    Senator Kyl. Jim Teilborg.
    Mr. Teilborg. I, too, am aware of those decisions my 
colleagues have spoken to, and I am committed to following 
them.
    Senator Kyl. Thank you very much. Those are all the 
questions that I have submitted here, and because I have spoken 
to at least three of the four of you independently and am well 
aware of your views and the way in which I think you would 
conduct yourself as a judge--and I am sure that Michael Reagan 
falls into the same category--I don't think I need to ask any 
other questions.
    Let me just make a couple of other observations, if might, 
and then call upon you to make any other observations that you 
would like to.
    I neglected to mention one thing in the resume of Jim 
Teilborg, and I am able to do this because I have known Jim for 
so long. But I think it illustrates the kind of quality of 
candidates that we have before us here.
    In looking at the resumes of each of these candidates, they 
are filled not only with their legal accomplishments, and in 
the case of Judge Bolton, her judicial accomplishments as well, 
but also commitments to the community in one way or another, 
service to others. It is always interesting to me that that is 
a characteristic that almost all of the candidates who come 
before us posses.
    Now, one shouldn't be surprised at that, but I think this 
is very important for judges, because people tend to think of 
people on the bench as somewhat apart from the rest of us, 
perhaps not quite like the rest of us, when, in fact, the 
reason that most of them got there is because they are very 
much like all of the rest of us. They care, they participate in 
the community, and they make significant contributions. And 
these contributions are frequently very varied.
    In the case of Jim Teilborg, I happen to know because he 
has done something for me, and I would love to tell you about 
it briefly. One of the best things about being a Senator or a 
Representative is being able to nominate people to the service 
academies, and it is a very difficult job. You get hundreds of 
applications. You have to interview everyone. You have to rank 
them and send their names on.
    Since the time I was elected to the House of 
Representatives, Jim Teilborg has chaired my service academy 
nominations committee with great distinction, and I think it is 
one of the reasons that we have had so many fine candidates 
from Arizona that have been selected to the service academies. 
And I want to thank him publicly for that bit of public service 
that he has performed for me, and I must tell you, it is one of 
the reasons that I knew of his capability of performing some of 
the tasks that he would have to perform as a Federal district 
judge, and I thank him. And I thank all of you for the 
contributions you have made apart from those that have been 
described by your sponsors in terms of your legal background.
    Now, the process from here will be that the Senate 
Judiciary Committee will hold what we call an executive 
meeting. It is where we do our business, where we pass bills 
and amend them, and act on judicial and other nominations. 
Right now, that meeting is scheduled at 10 o'clock Thursday. It 
is subject to change, but hopefully we will be able to meet 
then. And while it is possible that nominees can be put over 
one week, since we go into a month-long recess immediately 
after the end of this week, my hope is that we will be able to 
take these nominations up on Thursday and pass them on to the 
full Senate for consideration.
    Now, that leaves precious little time for the full Senate 
to act. Ordinarily, it takes us a day to clear our throat let 
alone act on judicial nominees. But I will tell you that we 
have done some ground work in advance, and I would hope that 
there might be an opportunity to act before the end of the 
week, but that obviously cannot be guaranteed.
    In any event, I can assure you that I will do my very best, 
and I think you heard, from what Senator Leahy said, that he 
certainly will join me in trying to see that the full Senate 
acts on your nominations as soon as possible.
    Now, do any of you have any other comment that you would 
like to make at this time?
    [No response.]
    I appreciate very much the thanks that you have expressed, 
and I will pass those on to my colleagues. And we will, of 
course, through the White House, communicate with you regarding 
Thursday's meeting.
    Let me again thank all of you in the audience who have come 
to participate in this hearing. This is, I think, an occasion 
worth celebrating because there are very few peoplethat have an 
opportunity to serve their country in the capacity, life-long capacity, 
of judge. It is a position of great honor but also of significant 
responsibility because you literally have people's lives in your hands, 
as you heard in response to one of the questions that I raised here. It 
is an awesome responsibility. And for those of you who have had a hand 
in helping to shape the careers of those who are here at the table, I 
thank you on behalf of my colleagues for your contribution as well. We 
are delighted to have you here to participate in this process.
    If there are no other questions or comments, then I would 
will adjourn this meeting, and we will hope to have some good 
news for everyone in a few days.
    [The biographical information of Judge Bolton follows:]
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    [The biographical information of Ms. Murguia follows:]
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    [The biographical information of Mr. Reagan follows:]
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    [The biographical information of Mr. Teilborg follows:]
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    Senator Kyl. Thank you all for being here.
    [Whereupon, at 2:46 p.m., the committee was adjourned.]
                         Questions and Answers

                              ----------                              


  Response of Michael Joseph Reagan to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect even if you personally disagree with such precedents?
    Answer 1. Yes, it is incumbent upon district court judges to follow 
the precedent from the Supreme Court of the Untied States, as well as 
applicable precedent from the circuit court of appeals in which they 
sit. I would follow these precedents even if I personally disagreed 
with them.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores \1\ where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. Under the doctrine of stare decisis, I would follow the 
precedent of the Supreme Court of the United States and the Court of 
Appeals even if I believed they had seriously erred on the merits of 
the relevant decisions. Because City of Boerne is now the law of the 
land, I would follow it. Judicial activism occurs when a judge 
disregards precedents, imposes his own judgments in lieu of those 
precedents and therefore legislates from the bench.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion, or layoffs), college admissions, and scholarship awards and 
the awarding of government contracts.
    Answer 3. I would follow existing Supreme Court and Circuit Court 
precedent on any question concerning the lawfulness, under the Equal 
Protection Clause of the 14th Amendment and federal civil rights laws, 
of the use of race or national origin-based preferences in such areas 
as employment decisions (hiring, promotion, or layoffs), college 
admissions, and scholarship awards and the awarding of government 
contracts. As I understand it, that precedent calls for the strict 
scrutiny standard. As to preferences based on gender, I would similarly 
follow existing precedent, which calls for a heightened scrutiny 
standard.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v. 
J.A. Croson Co.? \3\ If so, please explain to the Committee your 
understandings of those decisions, and their holdings concerning the 
use of race to distribute government benefits, or to make government 
contracting or hiring decisions.
---------------------------------------------------------------------------
    \2\ 515 U.S. 200 (1995).
    \3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
    Answer 4. Richmond v. J.A. Croson Co. 488 U.S. 469 (1989), was a 
precursor to the Adarand case. Croson settled the uncertainty that 
persisted through the 1980s regarding the level of scrutiny to be 
applied in cases of laws designed to aid racial minorities. The supreme 
Court in Regents of the University of California v. Bakke, 438 U.S. 265 
(1978), had been unable to agree upon the level of scrutiny to apply to 
a state law which set aside a certain number of seats in the entering 
class at Berkeley's medical school for minority students. Croson 
clarified that uncertainty, holding that state laws giving minorities 
preferential treatment to the detriment of whites would be reviewed 
under ``strict scrutiny.''
    Adarand v. Pena, decided in 1995, overruled Metro Broadcasting v. 
FCC, 497 U.S. 547 (1990). Metro Broadcasting held that, when a racial 
preference was given to a group by Congress (as opposed to the states), 
the appropriate Equal Protection standard would be intermediate 
scrutiny. Adarand overruled Metro Broadcasting by ruling that the 
appropriate standard for Congressionally enacted affirmative action 
programs would be ``strict scrutiny.'' After Adarand, affirmative 
action programs can survive judicial review only if they are the least 
restrictive means of serving a compelling governmental interest.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of high courts on equal 
protection issues?
    Answer 5. Irrespective of my personal feelings, I would follow the 
precedent of the Supreme Court of the United States and the Seventh 
Circuit Court of Appeals regarding equal protection issues.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case thatmight come before you as a federal judge?
    Answer 6. There is nothing in my background, education, training or 
experience--nor do I harbor any personal belief--which would prevent me 
from imposing or upholding a death sentence in any criminal case that 
might come before me as a federal judge.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 7. A delay of 10 or 15, or even 20 years between conviction 
of a capital offender and execution is too long. Delays are unfair to 
the defendant, victims' families and society in general. The federal 
courts should resolve capital cases fairly and expeditiously.

    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of these authorities is consistent with 
the exercise of the Article III judicial power.
    Answer 8. Federal judges should give constitutional provisions and 
statutes their plain and ordinary meanings. If an ambiguity is 
apparent, controlling United States Supreme Court and Circuit 
precedents should be consulted for guidance as to appropriate 
authorities for resolving the ambiguity.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. Although district courts should be extremely reticent to 
establish a constitutional right not previously upheld by a court, the 
interpretation of the plain meaning of the text and original intent of 
the framers of the Constitution may be appropriate tools to use when 
relevant Supreme Court precedent so dictates. The utilization of the 
``community's interpretation'' of constitutional text as discussed by 
justice Brennan should not be considered by a court. Judges must decide 
cases based upon the doctrine of state decisions and must interpret 
statutes according to their plain meaning and should not be influenced 
by public opinion. An appropriate method for the establishment of a 
constitutional right not previously upheld by a court would be through 
the ratification of an amendment under Article V of the Constitution.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. If confronted with a challenge to the constitutionality 
of a statute in a case that was not one of first impression, I would 
follow the precedent of the Supreme Court of the United States, or if 
none existed, the circuit courts.
    If confronted with a challenge to the constitutionality of a 
statute in a case of first impression, I would bear in mind that there 
is a presumption of constitutionality. Further, I would also consider 
that, wherever possible, constitutional issues should be reached only 
if no other grounds for resolving the case are available. I would 
search for analogous United States Supreme Court precedent or analogous 
circuit court precedent in the absence of direct United States Supreme 
Court guidance.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of sources of law impact the scope of 
the judicial power and the federal government's power under Article 
III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    Answer 11A. In Griswold v. Connecticut, 381 U.S. 479 (1965), the 
Court held that the substantive due process component of the due 
process clause of the Fourteenth Amendment protected the right of 
married couples to obtain contraceptives and invalidated a Connecticut 
law restricting access to birth control.

    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11B. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Court 
dismissed a lawsuit brought by state employees under the Fair Labor 
Standards Act. In so doing, the Court construed the Eleventh Amendment 
to bar lawsuits against states in state courts, even though the 
amendment's text clearly refers only to ``[t]he judicial power of the 
United States.'' The Alden court held that the plain text of the 
amendment did not completely embody the ``sovereign immunity [that] 
derives * * * from the structure of the original Constitution itself.''
    Griswold and Alden are both examples of cases in which the Supreme 
Court looked to purported sources of constitutional law beyond the 
actual text of the Constitution.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    Answer 12A. In Wickard v. Filburn, 317 U.S. 111 (1942), Supreme 
Court of the United States permitted legislation enacted pursuant to 
the Commerce Clause to pass constitutional muster so long as, in the 
aggregate, the activity substantially affected interstate commerce. In 
Wickard, the Supreme Court upheld a federal law that prevented 
individual farmers from growing more than a predetermined amount of 
wheat because overproduction by individual farmers, in the aggregate, 
could affect the interstate wheat market.

    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 12B. Lopez involved the Federal Gun-Free School Zones Act, 
which made it a crime to knowingly carry a firearm within a ``school 
zone.'' The Court, in striking down this law, held that the activities 
regulated by the statute did not by definition have an effect on 
interstate commerce, and that the Act did not require a jurisdictional 
nexus (e.g., that the firearm in issue crossed state lines).
    Together, Wickard and Lopez define the boundaries of the Commerce 
Clause.

    Question 13. What does the division of power between the national 
government and state governments play in our federal system? What 
impact does this division have on the liberty of the individual and the 
power of federal judges? Assess the impact of the following cases on 
the division of power between the national and state governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 13A. United States v. Lopez, 514 U.S. 549 (1995), 
illustrates the trend of the Supreme Court of United States in 
interpreting the Constitution to enhance the autonomy and independence 
of the states vis-a-vis Congress. By striking down the Federal Gun-Free 
School Zones Act after concluding that the law did not have a 
substantial effect on interstate commerce, the Court in Lopez 
reaffirmed that there are limits on Article I ``commerce power.''

    B. Printz v. United States, 521 U.S. 898 (1997).
    Answer 13B. In Printz v. United States, 521 U.S. 898 (1997), the 
Court reaffirmed that the Tenth Amendment is a real limitation on 
Congressional power to enact legislation affecting the states. The 
Printz Court reviewed the interim provisions of the Brady Handgun 
Violence Prevention Act, which required state law enforcement officers 
to perform background checks on prospective gun buyers and perform 
other related duties. The Court held that Congress had no greater power 
under the Tenth Amendment to require a state's executive officer to 
carry out federal law than it did to mandate state legislatures to 
enact legislation to effectuate federal law.

    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 13C. In Alden v. Maine, 119 S. Ct. 2240 (1999), the Court 
construed the Eleventh Amendment to bar lawsuits against states in 
state court, even though the amendment's text clearly refers only to 
``[t]he judicial power of the United States.''
    Lopez, Printz, and Alden, represent three different limits on 
Congress' power vis-a-vis the states.

    D. Baker v. Carr, 369 U.S. 186 (1962).
    Answer 13D. In Baker v. Carr, 369 U.S. (1962), the Court considered 
the question whether malapportionment of legislative districts was 
justiciable and concluded that it was, agreeing with the plaintiffs 
that the case raised a Fourteenth Amendment equal protection issue. The 
Court held that state actions that impinge on federal constitutional 
rights are issues that may be reviewed by the federal courts.

    E. Shaw v. Reno 509 U.S. 630 (1993).
    Answer 13E. In Shaw v. Reno, 590 U.S. 630 (1993), the Court held 
that an allegation that North Carolina's redistricting legislation was 
an effort to segregate races for voting purposes, without regard for 
traditional districting principles and without sufficiently compelling 
justification, was a justiciable issue under the Equal Protection 
Clause.
    Together, Baker and Shaw stand for the proposition that claims of 
discrimination protected by the federal Constitution and aimed at 
securing individual rights apply to state actions.
                               __________

    Responses of Mary H. Murguia to Questions From Senator Grassley

    Question 1. What role did you play in the decision of the United 
States Attorney's office in Arizona not to authorize an application for 
a search warrant for James Moore? Who was targeted during Operation 
Special Delivery?
    Answer 1. I was the Deputy Chief of the Criminal Division of the 
United States Attorney's Office for the District of Arizona during this 
time period. I supervised the Violent Crime Section which prosecuted, 
among other things, sexual crimes against children, including child 
pornography. As such, I supervised the Assistant U.S. Attorney (AUSA) 
assigned to the Moore case. When an AUSA whom I supervised had a 
question regarding the validity of a search warrant or any legal 
concerns, it was my job to review the search warrant and provide my 
guidance and opinion.
    ``Operation Special Delivery'' was designed to target for 
prosecution those who possessed, produced and trafficked in child 
pornography. In the Moore case, along with the line AUSA and the 
Criminal Chief, I provided my judgment to the United States Attorney 
that, in my view (and in view of the line AUSA and Criminal Chief) the 
proposed warrant as then developed provided at best a questionable 
basis for a successful child pornography prosecution of Mr. Moore--and 
that it would be best, i.e., more likely to result in a sustainable 
conviction, if the Postal Inspector could obtain additional evidence. 
When the Postal Inspector refused to do so and demanded a declination 
in writing. I signed and approved the requested letter.

    Question 2. Did you ever, at any time, in discussions with Postal 
Inspection Agent Karyn Cassatt make reference to James Moore's sexual 
orientation or the sexual orientation of those targeted by government 
in Operation Special Delivery?
    Answer 2. Yes, I did make reference to Mr. Moore's sexual 
orientation and the sexual orientation of those targeted by the 
government in Operation Special Delivery in discussions with Postal 
Inspector Karyn Cassatt. I did so in the context of a conversation in 
which we discussed the sufficiency of the evidence that had been 
provided to the United States Attorney's Office by the Postal Inspector 
in an effort to obtain approval for a search warrant. One of the pieces 
of information that the Postal Inspector provided us was Mr. Moore's 
sexual orientation. However, it was my view, and the view of the United 
States Attorney's Office for the District of Arizona, that the Postal 
Inspector had not provided sufficient evidence to establish that Mr. 
Moore had a predilection for child pornography and, thus, at that time, 
the Postal Inspector had not provided sufficient evidence to support a 
warrant that would lead to a successful conviction. Accordingly, it was 
my judgment, and the judgment of the United States Attorney's Office 
for the District of Arizona, that the information provided to us by the 
Postal Inspector was not yet sufficient under the controlling legal 
precedent to withstand legal challenge and result in a successful 
prosecution.
    Although I may have stated it inartfully at times, the reference to 
Mr. Moore's sexual orientation was intended to address the sufficiency 
of the evidence presented by the Postal Inspector and not to suggest 
that such orientation should be used as a criterion either for or 
against prosecution. To the contrary, I firmly believe that those who 
exploit or abuse children should be vigorously prosecuted regardless of 
their sexual orientation.

    Question 3. What role did you play in the decision of the United 
States Attorney's office in Arizona not to permit prosecutors from the 
Child Exploitation and Obscenity Section to seek an application for a 
search warrant or to otherwise direct the investigation and prosecution 
of James Moore, who was targeted during Operation Special Delivery?
    Answer 3. As Deputy Chief of the Criminal Section, I participated 
in formulating the position of the United States Attorney's Office that 
the Child Exploitation and Obscenity Section (CEOS) of the Department 
of Justice's Criminal Division should neither assume responsibility for 
the investigation nor seek a search warrant based on the information 
provided by the Postal Inspector as of the time the warrant was sought. 
For the reasons stated above, we believed that the case should have 
been developed further prior to seeking a search warrant. At the time, 
I understood that any disagreement between the U.S. Attorney's Office 
and the CEOS would be resolved by higher ranking officials within the 
Department. As it developed, the matter was taken to state authorities 
by the Postal Inspector before the matter was resolved within the 
Department.

    Question 4. Did United States Attorney Janet Napolitano, or any 
person employed by Ms. Napolitano, make reference to James Moore's 
sexual orientation or the sexual orientation of those targeted by 
government in Operation Special Delivery at any time during the 
consideration of the Postal Inspection Service's request that the 
United States Attorney's office to seek a search warrant for James 
Moore?
    Answer 4. As discussed above, I did refer to Mr. Moore's sexual 
orientation and the sexual orientation of those targeted by the 
government in Operation Special Delivery in discussions about the Moore 
search warrant. Although I do not specifically recall any particular 
reference by United States Attorney Napolitano or any other employee of 
the United States Attorney's Office to Mr. Moore's sexual orientation 
or the sexual orientation of those targeted by the government in 
Operation Special Delivery, I believe that such references must have 
occurred during the course of the investigation. As I have described in 
my answer to Question 2 above, my reference was in the context of a 
conversation in which we articulated our view that the Postal Inspector 
had not provided sufficient evidence to establish that Mr. Moore had a 
predilection for child pornography and, thus, at that time, the Postal 
Inspector had not provided sufficient evidence to support a warrant 
that would lead to a successful conviction. In addition, I am confident 
that in any reference by the United States Attorney or any other 
employee of the United States Attorney's Office for the District of 
Arizona to Mr. Moore's sexual orientation or the sexual orientation of 
those targeted by the government in Operation Special Delivery, the 
principal focus was always to obtain sufficient evidence to obtain 
sustainable convictions under the child pornography statutes.
    My record as both a state and federal prosecutor conclusively 
demonstrates that I have aggressively prosecuted persons committing 
crimes against children without regard to their sexual orientation.
                                   ____
                                 

    Responses of Mary H. Murguia to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect, even if you personally disagree with such precedents?
    Answer 1. Yes. I understand I am bound by the precedent set forth 
by the Supreme Court and the Court of Appeals. My personal views would 
not interfere or influence my ability to follow the law. If I am 
fortunate enough to be confirmed, I will faithfully give the 
Constitution and decisions of the Supreme Court of the United States 
and the Court of Appeals for the Ninth Circuit full force and effect.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores \1\ where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. As a federal district court judge, it would be my job to 
apply the relevant legal precedent whether or not I personally agreed 
with it. In City of Boerne v. Flores, the Supreme Court declared the 
Religious Freedom Restoration Act unconstitutional and beyond Congress' 
authority to enact under section 5 of the Fourteenth Amendment. I would 
follow this binding precedent as I would any other precedent.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas employment decisions (hiring, 
promotion, or layoffs), college admissions, and scholarship awards and 
the awarding of governmental contracts.
    Answer 3. If I were fortunate to be confirmed as a federal district 
court judge, I would follow the relevant Equal Protection Clause 
precedent that governs the constitutionality of affirmative action 
programs. Adarand Constructors v. Pena, 515 U.S. 200 (1995), holds that 
racial preferences are to be subject to ``strict scrutiny.'' Gender 
preferences, by contrast, are to be evaluated under ``intermediate 
scrutiny'' under United States v. Virginia. My independent legal 
judgment would not factor in to any decision I would make regarding the 
application of this standard.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v. 
J.A. Croson Co.\3\ If so, please explain to the Committee your 
understandings of those decisions, and their holdings concerning the 
use of race to distribute government benefits, or to make government 
contracting or hiring decisions.
---------------------------------------------------------------------------
    \2\ 515 U.S. 200 (1995).
    \3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
    Answer 4. Yes. Both decisions hold that racial classifications 
warrant heightened scrutiny under the Equal Protection Clause. In 
Croson, the Court held that state affirmative action programs must 
satisfy ``strict scrutiny'' under the Equal Protection Clause, and 
would generally be upheld only if necessary to remedy past 
discrimination by the State agency at issue. Adarand, as noted above, 
held that strict scrutiny also applies to Congressionally enacted 
affirmative action programs.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of higher courts on equal 
protection issues?
    Answer 5. Yes. I am committed to following the precedent of the 
higher courts on equal protection issues.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 6. No. The Supreme Court has made it clear that the death 
penalty is constitutional. Nothing regarding my views would prevent me 
from following the law.

    Question 7. Do you believe that 10-, 15-, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congressor a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 7. Yes, delays of 10, 15, or 20 years are too long. Federal 
courts should endeavor to resolve all cases fairly and expeditiously, 
and capital cases should be no exception.

    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of these authorities is consistent with 
the exercise of the Article III judicial power.
    Answer 8. Federal judges are bound by the plain language of the 
Constitution or the statutory provision at issue, controlling precedent 
of the Supreme Court of the United States and any superior federal 
courts. Federal statues are presumed to be constitutional. A federal 
judge may also look to the plain meaning of the statute and when 
appropriate seek guidance from the legislative history.

    Question 9. Please assess the legitimacy of the following three 
approaches to upholding a claim based on a constitutional right not 
previously upheld by a court: (1) interpretation of the plain meaning 
of the text and original intent of the Framers of the Constitution: (2) 
discernment of the ``community's interpretation'' of constitutional 
text, see William J. Brennan, The Constitution of the United States: 
Contemporary Ratification, Text and Teaching Symposium, Georgetown 
University (October 12, 1985); and (3) ratification of an amendment 
under Article V of the Constitution. Assess the impact of each approach 
on the judicial power provided by Article III of the Constitution.
    Answer 9. As a district court judge, I would adhere to the plain 
meaning of the text of the Constitution and, where that does not 
resolve a question and Supreme Court precedent dictates, I would look 
to the Framer's intent and to other sources. The second approach, 
looking to the ``community's interpretation'' of constitutional text, 
has never been adopted by the Supreme Court. The third approach is the 
proper method of amending the Constitution.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. When confronted with a case that is not of first 
impression, I would look to the controlling legal precedent. In a case 
of first impression, which is rare, I would bear in mind the 
presumption that legislation is constitutionally valid. My subsequent 
analysis would look to any existing analogous precedent, and would 
begin--and frequently end--with the plain language of the statute and 
the jurisprudence governing the relevant constitutional provision. I 
would, of course, construe a statue in a constitutional manner if at 
all possible.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of sources of law impact the scope of 
the judicial power and the federal government's power under Article 
III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. In Griswold, the Court held that a Connecticut law 
barring the use of contraceptives by married couples violated the 
substantive component of the Due Process Clause, In Alden, the Court 
dismissed a lawsuit brought by state employees against Maine in state 
court under the Fair Labor Standards Act, reasoning that the state 
sovereign immunity embodied by the Eleventh Amendment prohibited 
Congress from subjecting States to lawsuits without their consent. In 
both of these cases, the Supreme Court looked to sources other than the 
plain text of the Constitution in rendering its decision.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
asses their impact on the judicial power compared with Congress's power 
and on the federal government power compared with the power of state 
governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    B. United States v. Lopez, 514, U.S. 549 (1995).
    Answer 12. In Wickard, the Supreme Court held that the Congress 
could regulate the wheat production of individual farmers under the 
Commerce Clause because individual production, in the aggregate, had a 
``substantial effect'' on interstate commerce. Lopez reaffirmed limits 
on the Commerce Clause by striking down the Gun-Free School Zones Act 
on the grounds that the wholly intrastate possession of guns did not, 
without more, substantially affect interstate commerce. Together, these 
cases reflect the Supreme Court's assessment of Congress' power to 
regulate commerce vis-a-vis the States.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13. In Lopez, as noted above, the Supreme Court concluded 
that the Gun-Free School Zones Act violated the Commerce Clause because 
the activity it regulated--possession of a firearm within a school 
zone--did not ``substantially affect'' interstate commerce. In Printz, 
the Court held that the interim provisions of the Brady Handgun Act 
violated the Tenth Amendment by forcing state law enforcement officials 
to perform background checks on prospective gun buyers. In Alden, the 
Court held that Congress could not, consistent with the Eleventh 
Amendment, subject States to lawsuits in state courts against their 
will. All three of these cases reflect the Supreme Court's view of the 
limits of Congressional power.
    In Baker, the Court held that a lawsuit alleging that state 
reapportionment of voting districts violated the Equal Protection 
Clause did not constitute a ``political question,'' and would therefore 
be entertained by the federal courts. In Shaw, the Court held that an 
equal protection challenge to another state's reapportionment could be 
brought in federal court. Both of these cases reflect the Supreme 
Court's view of the supremacy of federal constitutional law against 
state action in lawsuits involving the protection of individual rights.
                               __________

  Response of Susan Ritchie Bolton to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect even if you personally disagree with such precedents?
    Answer 1. I am committed to faithfully following the precedents of 
higher courts and giving them full force and effect. Any personal views 
I may hold will not affect my ability to follow precedent.

    Question 2. How would you rule if you believed the Supreme Court or 
the Court of Appeals had seriously erred in rendering a decision? Would 
you nevertheless apply that decision or your own best judgment of the 
merits? Take for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores \1\ where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. I would apply the decision of the Supreme Court of the 
United States or the Court of Appeals whether I agreed with it or not. 
I would not apply my own judgment and ignore precedent.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion, or layoffs), college admissions, and scholarship awards and 
the awarding of government contracts.
    Answer 3. As established by the United States Supreme Court in 
Adarand v. Pena, any race or national origin-based preferences must be 
subjected to a strict scrutiny analysis; that is, the preference must 
serve a compelling state interest and the preference must be narrowly 
tailored to advance that compelling interest. If confirmed as a 
district judge, I would follow this precedent.
    While Adarand does not address this issue in the context of gender, 
the Supreme Court has made clear in the Virginia Military Institute 
case and others that at least a heightened scrutiny is the appropriate 
standard. I would also follow this precedent.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v. 
J.A. Croson Co.\3\? If so, please explain to the Committee your 
understandings of those decisions, and their holdings concerning the 
use of race to distribute government benefits, or to make government 
contracting or hiring decisions.
---------------------------------------------------------------------------
    \2\ 515 U.S. 200 (1995).
    \3\ 488 U.S. 469 (1989).
---------------------------------------------------------------------------
    Answer 4. Both Adarand v. Pena and Richmond v. J.A. Croson Co. 
require the application of a strict scrutiny analysis whether the law 
is designed to benefit historically disadvantaged minority groups or 
provide a preference in business to minorities. This strict scrutiny 
standard is applicable to federal, state and local government benefits 
and preferences. I would follow these precedents.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of high courts on equal 
protection issues?
    Answer 5. Regardless of personal views, I am committed to following 
precedents of higher courts.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 6. I do not have any legal or moral views which would 
inhibit or prevent me from imposing or upholding a death sentence.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 7. Delays of a decade or more between conviction and final 
resolution of death penalty appeals are too long. Sufficient resources 
of courts, prosecuting agencies and defense counsel must be focused on 
resolving these cases fairly and expeditiously.

    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of these authorities is consistent with 
the exercise of the Article III judicial power.
    Answer 8. Article III judicial power requires federal judges to 
follow precedent in determining the legal effect of a statute or 
constitutional provision. Statutes must be presumed to be 
constitutional and interpreted to be constitutional whenever possible. 
Statutes should also be interpreted to give effect to the plain meaning 
of the statute and the intent of the legislature.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan. The Constitution of the United States: Contemporary 
Ratification Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. Federal district court judges should only uphold 
constitutional rights previously upheld by a higher court and not 
create new rights. The district court is bound by the plain meaning of 
the text of the Constitution, any amendments thereto and the 
interpretation of the United States Supreme Court and the Court of 
Appeals. The first approach is consistent with Supreme Court precedent. 
The second approach has never been accepted by the Supreme Court. The 
third approach is the one established in the Constitution.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. If the case is not one of first impression, prior 
precedent would govern any question of the constitutionality of the 
statute. In the unusual circumstance of a case of first impression, my 
analysis would begin with the presumption of constitutionality of the 
statute. If at all possible, the case should be decided on grounds of 
statutory interpretation or analysis of prior precedent, rather than on 
constitutional grounds. If it is necessary to decide a statute's 
constitutionality, I would rule the statute constitutional whenever 
possible. Only if it were plain and unavoidable that the statute was 
unconstitutional would I so rule. In addition, any ruling of 
unconstitutionality should be stated as narrowly as possible.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of sources of law impact the scope of 
the judicial power and the federal government's power under Article 
III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1955).
    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11. In Griswold v. Connecticut, the Supreme Court held that 
the substantivecomponent of the Due Process Clause secured a right of 
married couples to obtain contraceptives. In Alden v. Maine, the 
Supreme Court held that a state's sovereign immunity guaranteed by the 
Eleventh Amendment prohibited a lawsuit brought by state employees 
against the state in state court for alleged violations of the Fair 
Labor Standards Act. The use of substantive due process and sovereign 
immunity by the Supreme Court demonstrates the Supreme Court's views on 
the limits imposed by the Constitution on state governments' powers 
over individuals and on the federal government's power over the states.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111(1942).
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 12. Wickard v. Filburn upheld a federal law limiting farmers 
from growing more than a predetermined amount of wheat because of the 
cumulative effect overproduction could have on interstate commerce. 
United States v. Lopez struck down a federal law which made it a crime 
to knowingly carry a firearm in a school zone because the law did not 
affect interstate commerce. These cases illustrate the breadth and 
limitation of the federal government's power to enact legislation and 
the power reserved to the states to legislate intrastate matters. These 
cases are another illustration of the limits on federal power over the 
states contained in the Constitution.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    B. Printz v. United States, 521 U.S. 898 (1997).
    C. Alden v. Maine, 119 S. Ct. 2240 (1999).
    D. Baker v. Carr, 369 U.S. 186 (1962).
    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13. Our Constitution reserves to the states all powers not 
specifically granted to the federal government in the Constitution. 
Regulation of local matters is for the states and to be constitutional 
federal enactments must serve a national interest. In United States v. 
Lopez, the Supreme Court reaffirmed the reach of the Commerce Clause in 
holding that a law making it a crime to carry a gun in a school zone is 
a local matter reserved to the states because it has no substantial 
impact on interstate commerce. In Printz v. United States, the Supreme 
Court also limited the power of the federal government to enact 
legislation that imposed obligations on state officers to execute 
federal laws by declaring unconstitutional that part of the Brady Act 
that imposed on state law enforcement officers the obligation to 
conduct background checks under this federal law. Alden v. Maine is a 
reaffirmation of the sovereign immunity of the states.
    In contrast to these cases illustrating the limitations on federal 
power, Baker v. Carr and Shaw v. Reno are cases in which the Supreme 
Court upheld the power of the federal courts to protect individual 
rights guaranteed by the Constitution. In Baker v. Carr, a state 
statute that established an apportionment of legislative representation 
that deprived plaintiffs of equal protection in violation of the 
Fourteenth Amendment was found by the Supreme Court to present a 
justiciable question over which the federal courts had jurisdiction. 
Similarly, in Shaw v. Reno, the allegation that redistricting 
legislation was so irregular that it could only be rationally viewed as 
an effort to segregate races for voting purposes was held to state a 
claim under the equal protection clause of the Fourteenth Amendment.
                               __________

   Responses of James A. Teilborg to Questions From Senator Sessions

    Question 1. Supreme Court precedents are binding on all lower 
federal courts and Circuit Court precedents are binding on the district 
courts within the particular circuit. Are you committed to following 
the precedents of higher courts faithfully and giving them full force 
and effect even if you personally disagree with such precedents?
    Answer 1. I am committed to following all Supreme Court and Circuit 
Court precedents.

    Question 2. How would you rule if you believed the Supreme Court of 
Appeals had seriously erred in rendering a decision? Would you 
nevertheless apply that decision or your own best judgment of the 
merits? Take, for example, the Supreme Court's recent decision in the 
City of Boerne v. Flores \1\ where the Court struck down the Religious 
Freedom Restoration Act.
---------------------------------------------------------------------------
    \1\ 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Answer 2. Even if I disagreed with a decision of a higher court, I 
would apply that decision to the best of my ability.

    Question 3. Please state in detail your best independent legal 
judgment, irrespective of existing judicial precedent, on the 
lawfulness, under the Equal Protection Clause of the 14th Amendment and 
federal civil rights laws, of the use of race, gender or national 
origin-based preferences in such areas as employment decisions (hiring, 
promotion, or layoffs), college admissions, and scholarship awards and 
the awarding of government contracts.
    Answer 3. In Adarand v. Pena, the Supreme Court made it clear that 
any law using race or national origin-based preferences is subject to a 
strict scrutiny standard requiring a showing of a compelling government 
interest and narrowly tailored remedy. I would follow this precedent if 
I am fortunate enough to be confirmed as a district judge. Adarand does 
not address this issue in the context of gender. However, in other 
cases, the Supreme Court has made it clear that at least a heightened 
scrutiny is the appropriate standard. I would also follow this 
precedent.

    Question 4. Are you aware of the Supreme Court's decision in 
Adarand v. Pena \2\ and the Court's earlier decision in Richmond v. 
J.A. Croson Co.? \3\ If so, please explain to the Committee your 
understandings of those decisions, and their holdings concerning the 
use of race to distribute government benefits, or to make government 
contracting or hiring decisions.
---------------------------------------------------------------------------
    \2\ 515 U.S. 200 (1995).
    \3\ 488 U.S. 469 (1989).
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    Answwer 4. I am aware of these decisions and their requirements of 
the strict scrutiny test called for by Croson with regard to state and 
local enactments and Adarand with regard to federal enactments. I would 
follow these precedents if I am fortunate enough to be confirmed as a 
district judge.

    Question 5. Regardless of your personal feelings on these issues, 
are you committed to following precedent of high courts on Equal 
Protection issues?
    Answer 5. Nothing about my personal feelings will prevent me from, 
and I am committee to following, precedent on Equal Protection issues.

    Question 6. Do you have any legal or moral beliefs which would 
inhibit or prevent you from imposing or upholding a death sentence in 
any criminal case that might come before you as a federal judge?
    Answer 6. I have no legal or moral beliefs which would prevent me 
from imposing or upholding a death sentence in any appropriate case.

    Question 7. Do you believe that 10, 15, or even 20-year delays 
between conviction of a capital offender and execution is too long? Do 
you believe that once Congress or a state legislature has made the 
policy decision that capital punishment is appropriate that the federal 
courts should focus their resources on resolving capital cases fairly 
and expeditiously?
    Answer 7. I believe delays of this magnitude should be a concern to 
all branches of government and those involved in the criminal justice 
system. If I am fortunate enough to be confirmed as a district judge, I 
am committed to resolving capital cases fairly and expeditiously within 
the confines of the district courts jurisdiction.

    Question 8. What authorities may a federal judge legitimately use 
in determining the legal effect of a statute or constitutional 
provision? Discuss how the use of these authorities is consistent with 
the exercise of the Article III judicial power.
    Answer 8. In determining the legal effect of a statute or 
constitutional provision, a district judge should always follow 
relevant precedent from the circuit and Supreme Court. In any statutory 
challenge, the court should start with the plain language of the 
enactment and presume it to be constitutional. The court should also 
attempt resolution of the case without reaching a constitutional 
question if possible. It should look to legislative intent carefully, 
giving more weight to formal committee reports than comments by 
individual members. This restrained approach is consistent with 
thelimited jurisdiction and scope of the district court.

    Question 9. Please assess the legitimacy of the following three 
approaches to establishing a constitutional right not previously upheld 
by a court: (1) interpretation of the plain meaning of the text and 
original intent of the Framers of the Constitution; (2) discernment of 
the ``community's interpretation'' of constitutional text, see William 
J. Brennan, The Constitution of the United States: Contemporary 
Ratification, Text and Teaching Symposium, Georgetown University 
(October 12, 1985); and (3) ratification of an amendment under Article 
V of the Constitution. Assess the impact of each approach on the 
judicial power established by Article III of the Constitution.
    Answer 9. The first approach has been accepted by the Supreme 
Court. It is the legitimate role and should be the function of an 
Article III court to first seek to determine the plain meaning of the 
text of the Constitution. If the court has determined a constitutional 
issue is presented and there is no controlling precedent, it should 
seek to determine the original intent of the framers of the 
Constitution. This approach is manifestly at odds with the second 
listed approach, a so-called ``community interpretation'' approach. As 
for the third approach, ratification of an amendment is the 
constitutionally provided method for establishing a new right if one is 
to be established.

    Question 10. How would you, if confirmed, analyze a challenge to 
the constitutionality of a statute in a case that was not one of first 
impression? In a case of first impression?
    Answer 10. In either case, I would first determine that it is 
indeed a case requiring a constitutional decision. If not a case of 
first impression, I would look to precedent in the U.S. Supreme Court 
and the Ninth Circuit and follow that precedent. If it is truly a case 
of first impression, I would begin by presuming the statute to be 
constitutional and seek a construction that is constitutional. I would 
seek to resolve the case by looking to the plain language of the 
statute and the plain language of the Constitution. I would also look 
at analogous cases and analogous areas of law.

    Question 11. In your view, what are the sources of law and methods 
of interpretation used in reaching the Court's judgment in the 
following cases? How does the use of sources of law impact the scope of 
the judicial power and the federal government's power under Article 
III?
    A. Griswold v. Connecticut, 381 U.S. 479 (1965).
    Answer 11A. In Griswold, the Court found a penumbra of rights in 
the Constitution though not so stated, and found a right of privacy 
which was violated by Connecticut Statute forbidding use of 
contraceptives. The Court also relied on the Ninth Amendment providing 
that the enumeration of certain rights shall not deny others retained 
by the people.

    B. Alden v. Maine, 119 S. Ct. 2240 (1999).
    Answer 11B. Alden dismissed a suit brought by state employees under 
the federal Fair Labor Standards Act holding that sovereign immunity 
derives from the structure of the original Constitution, not the plain 
language of the Eleventh Amendment.
    Commentators have noted that, in both cases, the Court based its 
ruling not solely on the express text of the Constitution. If I am 
confirmed as a district judge, I would follow these precedents to the 
extent they remain good law.

    Question 12. Compare the following cases with respect to their 
fidelity to the text and original intent of the Constitution. Also 
assess their impact on the judicial power compared with Congress's 
power and on the federal government's power compared with the power of 
state governments.
    A. Wickard v. Filburn, 317 U.S. 111 (1942).
    Answer 12A. In Wickard, the Court upheld a federal law limiting the 
amount of wheat a farmer could grow, holding that the right of Congress 
to regulate commerce includes regulations having an indirect effect by 
virtue of regulating a local activity. This decision obviously affirmed 
the power of Congress in the area of economic regulation.
    B. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 12B. In Lopez, the Court limited Congress's power by holding 
unconstitutional a law establishing gun-free zones around schools, as 
not having a sufficient effect on interstate commerce. The Court found 
that the act did not deal with economic activity, just criminal 
activity, limiting the reach of the interstate commerce clause.

    Question 13. What role does the division of power between the 
national government and state governments play in our federal system? 
What impact does this division have on the liberty of the individual 
and the power of federal judges? Assess the impact of the following 
cases on the division of power between the national and state 
governments.
    A. United States v. Lopez, 514 U.S. 549 (1995).
    Answer 13A. As discussed above, Lopez struck down the Gun-Free 
School Zones Act. The Court made clear that a law based on the commerce 
clause can notbe sustained solely on such an indirect connection to 
interstate commerce as the costs of crime. The Court reaffirmed a limit 
on the reach of the commerce clause.

    B. Printz v. United States, 521 U.S. 898 (1997).
    Answer 13B. Printz dealt with interim provisions of the Brady 
Handgun Violence Prevention Act which required local government 
officials to do background checks. The Court found the law violates the 
Constitution by conscripting local government officials to carry out 
provisions of a federal law.
    C. Alder v. Maine, 119 S. Ct. 2240 (1999).
    Answer 13C. Alden, as discussed earlier, involved a suit by state 
employees under the FLSA. The Court held that the Eleventh Amendment 
prohibits Congress from subjecting non-consenting states to lawsuits, 
unless the law is enacted pursuant to Section 5 of the Fourteenth 
Amendment.
    These three cases are examples in which the Supreme Court 
articulated the limitations of federal power.

    D. Baker v. Carr, 369 U.S. 186 (1962).
    Answer 13D. Baker was a voting apportionment case involving state 
voters. The Court held that reviewing the state appointment actions was 
not a political question and could therefore be entertained by federal 
courts.

    E. Shaw v. Reno, 509 U.S. 630 (1993).
    Answer 13E. In Shaw, the Court held that it was possible to bring 
an Equal Protection challenge to a particular voting apportionment 
scheme.
    These cases are examples in which the Supreme Court recognized the 
power of the federal courts to entertain constitutional challenges, 
including those involving the protection of individual rights.
                                 ______
                                 

     Responses of James A. Teilborg to Questions From Senator Leahy

    Question 1. In 1980, in a case called Stone v. Graham, the Supreme 
Court held that posting the Ten Commandments in public schools violates 
the Establishment Clause. Do you agree with that decision? How would 
you have analyzed it as a case of first impression? Would you follow it 
if a similar case came before you?
    Answer 1. Last year, the U.S. House of Representatives passed a 
bill that purported to allow the Ten Commandments to be displayed on 
any property owned or administered by a State. How would you analyze 
the constitutionality of such a law?
    I will follow the precedent of Stone if I am fortunate enough to be 
confirmed as a district court judge. Had it come before me as a case of 
first impression I would have utilized the three-part test of Lemon v. 
Kurtzman, 403 US 602 (1971) that controlled in 1980, and would have 
determined whether the law has a secular legislative purpose, whether 
it neither advances nor inhibits religion, and whether it fosters an 
excessive government entanglement with religion.
    If I were presented with a constitutional challenge to any bill 
purporting to allow the Ten Commandments to be displayed on state 
property, I would look to prevailing Supreme Court precedent including 
Stone and more recent Establishment Clause precedents such as Agostini 
v. Felton and Mitchell v. Helms. I can assure you that I would follow 
prevailing Supreme Court precedent with respect to this or any other 
issue.

    Question 2. In the 1992 case, Lee v. Weissman, the Supreme Court 
held that the Establishment Clause prohibits members of the clergy from 
offering prayers as part of an official public school graduation 
ceremony. This year, the Court held that the Establishment Clause 
prohibits a public school from allowing students to deliver prayers 
over the public address system at home football games. Do you agree 
with these decisions? How would you have analyzed each as a matter of 
first impression? Would you follow them?
    Answer 2. As a district court judge, if I am fortunate enough to be 
confirmed, my oath would compel me to follow and I would apply Lee v. 
Weissman and Sante Fe Independent School District v. Doe, both of which 
are binding precedent. Were these cases before me today as cases of 
first impression I would look to relevant First Amendment Establishment 
Clauses precedents, and allow them.

    Question 3. Justice Scalia and Justice Thomas have taken the 
position that the government may give tax dollars to religious schools 
to further a secular purpose, so long as it also gives aid to 
nonreligious schools on the same terms. In other words, these Justices 
believe that government aid to religious schools is permissible as long 
as it is offered on a neutral basis, and the aid is secular in content. 
Do you think the Establishment Clause allows tax dollars to be spent on 
religious schools in this way?
    As a sitting district court judge, I would look to the relevant 
precedent of the Supreme Court and not the individual opinions of 
individual justices. As you alluded to in your question, the plurality 
opinion of Mitchell v. Helms held that an aid program offering secular 
aid on a neutral basis to religious and nonreligious schools was likely 
to be constitutional because of its neutrality. I would follow the 
holding of the majority of the court (not the opinions of dissenting 
judges) when applying this precedent to future cases.
    In this and all matters I can assure the Committee that if I am 
confirmed as a district judge I will follow all relevant Supreme Court 
and Ninth Circuit decisions.

                                
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