[Senate Hearing 107-250]
[From the U.S. Government Publishing Office]



.                                                       S. Hrg. 107-250
  CONFIRMATION HEARING ON THE NOMINATIONS OF LARRY D. THOMPSON TO BE 
 DEPUTY ATTORNEY GENERAL AND THEODORE B. OLSON TO BE SOLICITOR GENERAL 
                          OF THE UNITED STATES

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 5, 2001

                               __________

                          Serial No. J-107-13

                               __________

         Printed for the use of the Committee on the Judiciary






                        U.S. GOVERNMENT PRINTING OFFICE
77-278                          WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001










                       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
JEFF SESSIONS, Alabama               RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas                CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky            RICHARD J. DURBIN, Illinois
                                     MARIA CANTWELL, Washington
                      Sharon Prost, Chief Counsel
                     Makan Delrahim, Staff Director
         Bruce Cohen, Minority Chief Counsel and Staff Director












                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3

                               PRESENTERS

Cleland, Hon. Max, a U.S. Senator from the State of Georgia 
  presenting Larry D. Thompson, Nominee to be Deputy Attorney 
  General........................................................    11
Miller, Hon. Zell, a U.S. Senator from the State of Georgia 
  presenting Larry D. Thompson, Nominee to be Deputy Attorney 
  General........................................................    12
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma 
  presenting Theodore B. Olson, Nominee to be Solicitor General 
  of the United States...........................................    10
Warner, Hon. John W., a U.S. Senator from the State of Virginia 
  presenting Theodore B. Olson, Nominee to be Solicitor General 
  of the United States...........................................     8

                       STATEMENTS OF THE NOMINEES

Olson, Theodore B., Nominee to be Solicitor General of the United 
  States.........................................................    60
  Questionnaire..................................................    62
Thompson, Larry D., Nominee to be Deputy Attorney General........    15
  Questionnaire..................................................    19

                         QUESTIONS AND ANSWERS

Written questions for Theodore B. Olson submitted by Senator 
  Durbin.........................................................   174
Written questions for Larry D. Thompson submitted by Senator 
  Durbin.........................................................   176
Responses of Theodore B. Olson to questions submitted by Senator 
  Leahy..........................................................   177








  CONFIRMATION HEARING ON THE NOMINATIONS OF LARRY D. THOMPSON TO BE 
 DEPUTY ATTORNEY GENERAL AND THEODORE B. OLSON TO BE SOLICITOR GENERAL 
                          OF THE UNITED STATES

                              ----------                              


                        THURSDAY, APRIL 5, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:27 a.m., in 
room SC-5, The Capitol, Hon. Orrin G. Hatch, Chairman of the 
Committee, presiding.
    Present: Senators Hatch, Specter, Kyl, DeWine, Sessions, 
McConnell, Leahy, Kennedy, Feinstein, Feingold, Schumer, 
Durbin, and Cantwell.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Good morning. Welcome to the nomination 
hearing before the Senate Judiciary Committee. Today we are 
going to consider the nomination of Larry D. Thompson to be the 
Deputy Attorney General and of Theodore B. Olson to be 
Solicitor General of the United States.
    Before we begin, I would like to congratulate both nominees 
on being selected by President Bush for these important 
positions. It is a pleasure to have two nominees before this 
Committee who have distinguished themselves with hard work and 
great intellect, and I am confident that they will do great 
service to the Department of Justice and the citizens of this 
country upon their confirmation.
    Certainly, the position of Deputy Attorney General is vital 
to the Department of Justice and to the country. The Deputy 
Attorney General serves as the No. 2 person at the Justice 
Department and acts as the Justice Department's chief operating 
officer, handling much of its day-to-day administration. The 
Deputy must be a person of unquestioned competence and 
integrity who can exercise good judgment and provide objective 
legal advice to the Attorney General.
    Mr. Thompson meets all of these requirements. He has had an 
impressive and varied career as a lawyer, including working as 
in-house corporate counsel at Monsanto, as a partner at the 
prestigious law firm of King and Spalding, as the United States 
Attorney for the Northern District of Georgia, as an 
independent counsel, and as an adjunct professor of law at both 
Mercer University and the University of Georgia Law School.
    The diverse nature of his employment is surpassed by the 
even wider variety of legal issues that he has mastered. Most 
recently, Mr. Thompson has specialized in white-collar criminal 
defense, complex civil litigation, internal corporate 
investigations, RICO litigation, and False Claims Act cases. He 
has also handled a variety of civil matters and has both 
prosecuted and defended people accused of criminal activity. He 
has been involved in antitrust, civil rights, and intellectual 
property issues. This experience, combined with an excellent 
character, convinces me that Mr. Thompson, once confirmed, will 
prove to be one of the most qualified Deputy Attorney Generals 
to serve this country.
    So it is a pleasure to welcome you, Mr. Thompson, to our 
Committee this morning.
    Our second nominee this morning is Ted Olson.
    The Solicitor General is one of the most coveted positions 
in the Federal Government. Numerous anecdotes of accomplished 
lawyers attest to this fact. For instance, when appointed to 
the Supreme Court, Justice Murphy asked whether any other 
Justice had held as many governmental positions as he had. The 
clerk responded, ``Well, there was Taft...He was Solicitor 
General, he was Circuit Court Judge, he was president of the 
Philippines Commission, he was Secretary of War, he was 
President of the United States, and, of course, he was Chief 
Justice.'' Dejected, Justice Murphy asked, ``He was Solicitor 
General, too?''
    [Laughter.]
    Chairman Hatch. The Solicitor General represents the 
interests of the United States in litigation before the Supreme 
Court and the Federal appellate courts.
    By statute, the Solicitor General takes his orders from the 
Attorney General. The position was created in 1870 to assist 
the Attorney General with the duties of litigating before the 
Supreme Court.
    One of his main tasks is to defend Federal statutes and 
regulations from challenges in the Federal courts.
    Before the Supreme Court, he serves more than just an 
advocate's role. He is also a kind of trusted advisor and is 
sometimes referred to as the ``tenth justice'' or as the 
``thirty-fifth law clerk,'' because of his important 
institutional role.
    [Laughter.]
    Chairman Hatch. I want to make sure you are always humble. 
The Supreme Court relies on the Solicitor General to provide an 
accurate explanation of the current state of the law.
    Mr. Olson, who has been nominated for the position of 
Solicitor General, should be no stranger to this role. He has 
argued before the Supreme Court 15 times and is regarded by 
both liberals and conservatives as one of the best appellate 
lawyers in our country. The National Law Journal has twice 
recognized him as one of America's 100 Most Influential Lawyers 
and has called him a ``member of the inner circle of the 
Supreme Court bar.''
    Mr. Olson has an extremely distinguished record in private 
practice and also as the head of the Office of Legal Counsel in 
the Department of Justice. His knowledge and expertise extend 
over the whole range of constitutional and statutory issues. He 
has the intellect and experience to represent the United States 
well on the wide variety of issues that will face the 
administration.
    Let me just say that I have the utmost confidence in Mr. 
Olson's ability to maintain his balance.
    With Attorney General John Ashcroft at the helm, Larry 
Thompson as his Deputy, and Ted Olson as the Solicitor General, 
I believe that we have the beginnings of one of the best and 
most qualified Departments of Justice this country has seen.
    So, Ted, we are delighted to welcome you and your family 
here this morning.
    Let me turn to the distinguished ranking Democratic member 
for his opening remarks, and then we will turn to our witnesses 
for theirs.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    The positions of Deputy Attorney General and Solicitor 
General are extremely important, and they are very sensitive 
leadership positions at the Department of Justice, as attested 
to by the fact that we have four extraordinary Senators here 
prepared to testify, one even more extraordinary than the 
others.
    [Laughter.]
    Chairman Hatch. We know he is speaking of himself.
    Senator Leahy. Coming from a Gaelic heritage, I appreciate 
that. I applaud my Senator from when I am away from home. And 
somebody reading this record 50 years from now, if anybody is 
so bored as to do that, will wonder what the heck we were 
talking about.
    I hope the hearings of these nominations will clear the air 
on a number of issues, especially because they are so 
important.
    The position of Deputy Attorney General is a crucial one. 
The Deputy is No. 2 in command and plays a key role as a top 
advisor to the Attorney General. Actually, the position was 
firmly established back in the Eisenhower administration almost 
50 years ago. It was just after the Attorney General and 
President Eisenhower had established the arrangement by which 
the American Bar Association began providing peer review to the 
President of possible judicial nominees.
    Now, while a number of our longstanding traditions are 
being changed by the current administration, as they have a 
right to, the position of the Deputy Attorney General appears 
to be one that continues, and I am happy to see that. Former 
Deputies include William Rogers and Byron White, Nicholas 
Katzenbach and Warren Christopher, Harold Tyler, Jamie Gorelick 
and Eric Holder. The Deputy has traditionally assumed 
responsibility for the day-to-day operations of the Department. 
The Deputy often has direct oversight of a number of divisions 
and units within the Department, including the FBI and those 
with criminal jurisdiction. And the Deputy position may assume 
even greater significance in this administration since we have 
not read of any designation of an Associate Attorney General 
with whom the Deputy might share those leadership 
responsibilities. Perhaps there will be.
    This is a critical juncture for the Department and for our 
Federal law enforcement efforts. I am concerned with reports 
that the administration intends to cut Justice Department 
funding significantly. The early reports were that those cuts 
would amount to more than $1 billion annually, and I want to 
explore what cuts the President and Attorney General Ashcroft 
will make in law enforcement to absorb those.
    I know that Mr. Thompson served previously as a United 
States attorney, and I am sure that he appreciates, as those of 
us who have had the opportunity to serve as prosecutors 
understand, what it would mean to cut positions in our U.S. 
Attorney's Offices and how unwise that would be.
    I am concerned that the Senate is being called upon this 
week to vote on the Federal budget without having seen a 
detailed submission of where the Bush administration intends to 
make its cuts in law enforcement. I for one would hate to see 
large cuts in our Federal assistance to State and local law 
enforcement. Those programs to help acquire bulletproof vests 
or to reduce DNA backlogs or to encourage modern 
communications, provide modern crime labs, and place cops on 
the beat have helped bring down our crime.
    In fact, under Attorney General Reno, and due in part to 
her emphasis on a coordinated effort with State and local law 
enforcement, with strong support from the Congress, crime rates 
fell in each of the past 8 years. I don't know a time in my 
adult life that the crime rates have fallen in this country for 
8 years in a row. Violent crimes, including murder and rape, 
have been reduced to the lowest levels in decades. So we should 
continue--if we have something that is working, we ought to 
continue with it.
    Now, the President said he intends to cut Federal 
assistance to State and local law enforcement by 30 percent. We 
do want to look at that. With school shootings continuing to 
occur across the country and the use of heroin, 
methamphetamine, and other dangerous drugs not only in my State 
but across the country, in rural and urban settings, with all 
that it is not the time to redirect $1.5 billion away from 
Federal assistance to State and local law enforcement.
    Senator Hatch and I began this year by cosponsoring with 
other Senators a bill to focus increased effort and resources 
in the battle against illegal drug use. But our bill will 
require substantial commitments to do it, not by cutting 
billions out of our anti-drug effort but by adding money.
    I was very impressed by Mr. Thompson when we met and spoke 
informally earlier this week, not only for his own obvious 
brilliance as an attorney and his background, but I know that 
when things are working well, there is a lot of contact between 
this Committee on both sides of the aisle and the Department. 
So we need a candid and responsive relationship, and I look 
forward to that.
    In fact, usually the Deputy Attorney General has warranted 
its own hearing. Indeed, the hearing on the nomination of 
former President Bush's last Deputy Attorney General included a 
number of public witnesses in addition to testimony from the 
nominee. Now, the Chairman has said that we will have the 
hearing of this and the Solicitor General together. That is his 
prerogative.
    The Solicitor General fills a unique position in our 
Government. He is responsible for the integrity of our laws. He 
is not another legal advocate out to advance the narrow 
interests of a client or merely another advocate of the 
President's policies. He is much more than that. The Solicitor 
General must use his or her legal skills and judgments for 
higher purposes, and sometimes even called the ``tenth 
justice'' of the Supreme Court.
    We have reviewed nominations to the position of Solicitor 
General over the years, seeking the highest levels of 
independence and integrity, as well as legal skills. Think of 
the people we have had. The Chairman mentioned William Howard 
Taft. We had Benjamin Bristow, Charles Evans Hughes, Robert 
Jackson, Archibald Cox, Thurgood Marshall, and Erwin Griswold.
    I mentioned last month when the President withdrew a number 
of judicial nominations that had been pending before this 
Committee over the last several years: Judge Helene White, 
Judge James Wynn, Bonnie Campbell, and many others. I regret he 
also withdrew the nomination of Kathleen McCree Lewis. Even 
though she had been before this Committee without action for a 
year and a half, I thought the name would be very familiar to 
us because she is the daughter of one our most distinguished 
Solicitors General and Federal Judges, Wade McCree, and is 
herself a highly respected appellate lawyer at the Detroit firm 
of Dykema Gossett, strongly supported by the Senators from her 
State. And I think had we ever gotten around to having a 
hearing on her and voting on her, she would have been 
confirmed. She would have been the first African-American woman 
ever to serve on the Sixth Circuit.
    Now, I know Mr. Olson. I had a good talk with him earlier 
this week, and I appreciate the amount of time and his courtesy 
coming by and affording me whatever time I might want. I had 
the opportunity, along with Senator Hatch to attend the oral 
arguments before the U.S. Supreme Court last December and saw 
how well he handled on behalf of his client, in this case now 
President of the United States.
    He has spoken in a number of other areas. He argued on 
behalf of a number of other causes, such as ending affirmative 
action, defending VMI's policy of excluding women, and we will 
probably talk about that. But I always felt that he was there 
to speak for a client on a particular case.
    Now, what I am not going to do, as, unfortunately, some on 
this Committee have done during the past 6 years, is hold up a 
person because of his clients. I think every client has a right 
to have the best attorney possible, and Mr. Olson is without 
doubt one of the best.
    Now, Mr. Olson was very critical of the last administration 
for what he saw to be the exercise of political influence over 
the Department of Justice. He was extremely critical of 
Attorney General Reno for failing, in his view, to maintain the 
standard of independence and non-partisanship. He will, of 
course, be asked whether he will disregard partisanship, 
especially a Solicitor General.
    Now, I know the Chairman wants to expedite this hearing. He 
noticed it last week before all the required reports had been 
received on both nominees. I think it is a rather unprecedented 
step to put them together, but that is his right. And no matter 
what criticism there might be of it, I would point out that it 
is his absolute right to speed this through in this way, even 
if it is not our normal procedure.
    With that, to help you speed it up, Mr. Chairman, I will 
put the rest of my statement in the record.
    Chairman Hatch. I am so pleased with that.
    Senator Leahy. I am sure you are.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, A U.S. Senator from the State of 
                                Vermont

    The positions of Deputy Attorney General and Solicitor General are 
extremely important and sensitive leadership positions at the 
Department of Justice. I hope that today's hearing on the nominations 
to fill these important posts will be both full and fair.
    The position of Deputy Attorney General is a crucial one. The 
Deputy is number two in command and plays a key role as a top advisor 
to the Attorney General. The position was firmly established in the 
Eisenhower Administration almost 50 years ago--just after the Attorney 
General and President Eisenhower had established the arrangement by 
which the American Bar Association began providing peer review to the 
President of possible judicial nominees. While a number of our 
longstanding traditions are being upset by the current Administration, 
the position of the Deputy Attorney General appears to be one that 
continues. Former Deputies include William Rogers and Byron White, 
Nicholas Katzenbach and Warren Christopher, Harold Tyler, Jamie 
Gorelick and Eric Holder. The Deputy has traditionally assumed 
responsibility for the day-to-day operations of the Department. The 
Deputy often has direct oversight of a number of divisions and units 
within the Department, including the FBI and those with criminal 
jurisdiction. The Deputy position may assume even greater significance 
in this Administration since we have not read of any designation of an 
Associate Attorney General with whom the Deputy might share those 
leadership responsibilities.
    This is a critical juncture for the Department and for our federal 
law enforcement efforts. I remain concerned with reports that the Bush 
Administration intends to cut Justice Department funding significantly. 
The early reports were that those cuts would amount to more than 
$1,000,000,000 annually. I want to explore where President Bush and 
Attorney General Ashcroft intend to absorb such massive cuts.
    I know that Mr. Thompson served previously as a United States 
Attorney. I am sure that he appreciates, as those of us who served as 
local prosecutors understand, what it would mean to cut positions in 
our United States Attorneys offices and how unwise that would be.
    I am concerned that the Senate is being called upon this week to 
vote on the federal budget without having seen a detailed submission of 
where the Bush Administration intends to make its cuts in law 
enforcement. I, for one, would hate to see cuts in our federal 
assistance to State and local law enforcement. Those programs to help 
acquire bulletproof vests, reduce DNA backlogs, encourage modern 
communications, provide modern crime labs, and place cops on the beat 
have been so helpful to our crime control efforts.
    Under Attorney General Reno, and due in part to her emphasis on a 
coordinated effort with State and local law enforcement, crime rates 
fell in each of the past 8 years. Violent crimes, including murder and 
rape, have been reduced to the lowest levels in decades, since before 
the Reagan and Bush Administrations. We need to redouble our efforts, 
not cut them short or leave them short of funds. When the Bush budget 
highlights in his ``Blueprint for New Beginnings'' says that the 
President intends to cut federal assistance to State and local law 
enforcement by 30%, by ``redirecting"over $1,500,000,000, that troubles 
me. With school shootings continuing to occur across the country and 
the use of heroin, methamphetamine and other dangerous drugs in Vermont 
and across the country in rural and urban settings, now is not the time 
to be redirecting $1,500,000,000 away from federal assistance to State 
and local law enforcement. Now is not the time to be pulling back from 
the strong national commitment we should be making to continue to 
assist those on the front lines in the fight against crime and battle 
over illegal drug use.
    Senator Hatch and I began this year by cosponsoring with other 
Senators a bill to focus increased effort and resources in the battle 
against illegal drug use. Our bill, the Drug Abuse Education, 
Prevention and Treatment Act of 2001, will require a significant 
commitment of additional resources to this effort. If we are finally 
ready to make the type of commitment to drug abuse education, 
prevention and treatment that we need in order to make a difference, 
that will require increasing federal funding of our anti-drug efforts 
by over $1,000,000,000 during the next three years, not cutting law 
enforcement funding by more than $1,000,000,000 each of the next four 
years.
    I was impressed by Larry Thompson when we met and spoke informally 
earlier this week. When we are working together well, the contact 
between this Committee and the Department is so frequent and important 
that we will need a candid and responsive relationship with the Deputy. 
I enjoyed our brief visit earlier this week and look forward to getting 
to know Mr. Thompson better through the course of these proceedings.
    A nomination to as significant a position as the Deputy Attorney 
General has traditionally been treated by this Committee as worthy of 
its own hearing. Indeed, the hearing on the nomination of former 
President Bush's last Deputy Attorney General included a number of 
public witnesses in addition to testimony from the nominee. Instead of 
proceeding along that model, Senator Hatch has ordered this matter to 
be interwoven with the nominee to be Solicitor General, without any 
opportunity for witnesses other than the nominees to testify. I recall 
that Chairman Thurmond heard witnesses in connection with the 
nominations of both Rex Lee and Charles Fried to be Solicitor General 
during the Reagan Administration. Having public testimony in connection 
with nominations can be a helpful aspect to this process and useful to 
the Senate as it performs its constitutional responsibilities in 
considering whether to confirm presidential nominations.
    The Solicitor General fills a unique position in our Government. 
The Solicitor General is responsible for the integrity of our laws. The 
Solicitor General is not merely another legal advocate whose mission is 
to advance the narrow interests of a client, or merely another advocate 
of his President's policies. Rather, the Solicitor General is much more 
than that. The Solicitor General must use his or her legal skills and 
judgment to higher purposes. For this reason the Solicitor General has 
often been called the 10th Justice of the Supreme Court.
    On this Committee, Republicans and Democrats have reviewed 
nominations to the position of Solicitor General seeking the highest 
levels of independence and integrity, as well as legal skills. He or 
she must argue with intellectual honesty before the Supreme Court and 
represent the interests of the Government and the American people for 
the long term, and not just with an eye to short-term political gain. 
It is our obligation here on this Committee to help the Senate 
determine whether a nominee understands and is up to this extraordinary 
role. From Benjamin Bristow in 1870, to William Howard Taft and Charles 
Evans Hughes, Jr., from Robert Jackson to Archibald Cox, Thurgood 
Marshall and Erwin Griswold, we have had some extraordinary people 
serve this country as our Solicitors General.
    Part of my deep regret last month when President Bush chose to 
withdraw the nominations of the judicial nominations that had been 
pending before this Committee over the last several years without 
action was that, along with the nominations of Roger Gregory and Judge 
Helene White and Judge James A. Wynn, Jr. and Bonnie Campbell and so 
many others, President Bush chose to withdraw the nomination of 
Kathleen McCree Lewis.
    That name is familiar not only because her nomination was before 
this Committee without action for more than one and a half years, from 
September 16, 1999 until withdrawn by President Bush on March 19, 2001. 
That name is also familiar because Ms. Lewis is the daughter of one of 
our most distinguished Solicitors General and federal judges, Wade 
McCree. Ms. Lewis is herself a highly-respected appellate lawyer at the 
Detroit firm of Dykema Gossett. She had served as a member of the 
Detroit Civil Service Commission and of the Detroit Civic Center 
Commission. She was strongly supported by both Senator Levin and 
Senator Stabenow for a seat on the United States Court of Appeals for 
the Sixth Circuit. Had this Committee held a hearing on her nomination 
and had the Senate considered her, I have no doubt that she would have 
been confirmed. She would have been the first African American woman 
ever to serve on the Sixth Circuit. Although a consensus candidate, she 
was denied that opportunity to serve.
    I had a brief opportunity to chat with Mr. Olson earlier this week. 
I am familiar with his work as a part of the Reagan Justice Department. 
In addition, I had the opportunity along with Senator Hatch, to attend 
the oral arguments before the United States Supreme Court last December 
and witnessed his aggressive representation of George W. Bush in that 
historic presidential selection case.
    His role in that case and on behalf of a number of other causes, 
such as ending affirmative action and defending VMI's policy of 
excluding women, are matters that I anticipate will be covered in the 
course of these hearings. Unlike the litmus test that has been used by 
anonymous Republicans over the last several years to disqualify the 
choices of a Democratic President, I will not oppose this nomination 
merely because of Mr. Olson's clients and his clients' activities. I 
understand the role of an advocate in our legal system.
    What adds controversy to this nomination are Mr. Olson's activities 
and outspoken partisanship over the last several years. A key question 
that this hearing will raise is whether Mr. Olson would put his 
partisanship and activist politics aside in the formulation of the 
Government's litigation positions. Mr. Olson was very critical of the 
last Administration for what he saw to be the exercise of political 
influence over the Department of Justice, and he was extremely critical 
of Attorney General Reno for failing, in his view, to maintain a 
standard of independence and nonpartisanship. Given his rhetoric over 
the last several years, Mr. Olson is now confronted with the question 
whether he will disregard partisanship and narrow political ideology in 
carrying out the important responsibilities of the Solicitor General.
    I know that Senator Hatch is expediting this hearing, going so far 
as to notice it last week before all the required reports had even been 
received on both nominees. He is taking the unprecedented step of 
combining both of these critical nominations in a single panel in a 
single hearing on a single day. Indeed, he has chosen to proceed today 
knowing that for some time the Republican leadership has planned to 
devote today to Senate consideration of this year's budget resolution. 
So, in addition to our participation today in the work of the Senate as 
it considers the budgetary framework for the Federal Government, we 
have a doubly full hearing agenda as we begin the process of 
considering these critical nominations.
    Moreover, this has already been the Committee's busiest week of the 
session having already held more hearings on Tuesday and Wednesday of 
this week than the Committee held in all of February or all of March. 
This will be our fifth hearing this week. Finally, I should note for 
the record that we are not proceeding in our normal Judiciary Committee 
hearing room or in one of the other larger hearing rooms that we 
sometimes employ. Instead, we are proceeding for the first time in a 
basement room of the Capitol with less accessibility and availability 
to the public.
    In spite of all these circumstances, we will do the best that we 
can to fulfil our responsibilities. I want to commend the Members of 
the Committee who are adjusting their schedules to participate in the 
hearing today. I will do all that I can to accommodate them and all 
Members of the Committee to ensure that they have had the opportunity 
to review these nominations and question the nominees.

    Chairman Hatch. We have four distinguished witnesses here 
this morning before the two nominees, and because of his 
problems that are many-fold right now, we are going to turn to 
our Scottish warlord here.
    [Laughter.]
    Senator Leahy. Didn't they make a movie about him? He does 
have that Mel Gibson appearance, except he looks younger and 
more virile.
    [Laughter.]
    Senator Warner. We should have brought Sean Connery in. He 
is right upstairs waiting, and he is going to escort us down.
    Senator Leahy. Well, you have a lot more hair.
    Chairman Hatch. Actually, John, you look better in a skirt 
than Trent Lott.
    [Laughter.]
    Senator Leahy. I am going to leave that one alone.
    Senator Warner. There is a cold draft in this room.
    [Laughter.]
    Senator Warner. Perhaps that could be expunged from the 
record.
    [Laughter.]

  PRESENTATION OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR 
 GENERAL OF THE UNITED STATES, BY HON. JOHN W. WARNER, A U.S. 
               SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. I think since you have brought up the fact 
that I am here in my outfit today, probably the first time in 
23 years I have been privileged to serve in the Senate I didn't 
have a dark blue suit and a red tie on, but I do so because 
April 6, 1320, the Scots declared their declaration of 
independence. And it is interesting--I am reading from a Senate 
resolution--that the American Declaration of Independence was 
modeled on that inspirational document. Half of the signers of 
the Declaration of Independence were of Scottish origin. The 
Governors of nine of the 13 original States were of Scottish 
ancestry, as have been many of our Presidents. So there is a 
deep respect we have for our heritage.
    Now, I have got to go upstairs--
    Senator Leahy. Mr. Chairman, if the Senator would yield on 
that point, I am glad you brought up April 6, 1320, because 
there is only one member of this Committee who was around at 
that time.
    [Laughter.]
    Senator Warner. He will be here momentarily.
    Senator Leahy. He will be.
    [Laughter.]
    Senator Leahy. Casting the deciding vote.
    Senator Warner. If I might proceed, thank you, gentlemen 
and ladies. As you all know, the Solicitor General's office 
supervises and conducts all Government litigation in the United 
States Supreme Court, and I am honored to be here on behalf of 
Theodore Olson today, a resident of my State. The Solicitor 
General helps develop the Government's positions on cases and 
personally argues many of the most significant cases before the 
Supreme Court. Given these great responsibilities, it is no 
surprise that the Solicitor General is the only officer of the 
United States required by statute to be ``learned in the law.''
    His background is impressive. He received his law degree in 
1965 from the university of California at Berkeley where he was 
a member of the California Law Review and graduated Order of 
the Coif. Upon graduation, he joined the firm of Gibson, Dunn 
and Crutcher in 1965, becoming a partner in 1972. During this 
time, Mr. Olson had a general trial and appellate practice as 
well as a constitutional law practice.
    In 1981, he was appointed by President Reagan to serve as 
Assistant Attorney General, Office of Legal Counsel of the 
United States Department of Justice. During his 4 years in this 
position, he provided counsel to the President, the Attorney 
General, and heads of the executive branch departments.
    After serving in the Reagan administration, Mr. Olson 
returned to private practice. He has argued numerous cases 
before the Supreme Court, including one that we are all 
familiar with related to the past election and the Florida 
results. His vast experience in litigating before the Supreme 
Court will serve him well as Solicitor General.
    Mr. Chairman, I say without reservation that this is a 
well-experienced individual, and I am confident he will serve 
in this position with honor, with integrity, and with 
distinction.
    I ask that the balance of my remarks be placed in the 
record.
    [The prepared statement of Senator Warner follows:]

    Statement of Hon. John Warner, a U.S. Senator from the State of 
                                Virginia

    Chairman Hatch, and my other distinguished colleagues on the 
Senate's Judiciary Committee, I am pleased to support the nomination of 
a Virginian, Theodore B. Olson, to serve as the Solicitor General of 
the United States.
    As you all know, the Solicitor General's Office supervises and 
conducts all government litigation in the United States Supreme Court. 
The Solicitor General helps develop the government's positions on cases 
and personally argues many of the most significant cases before the 
Supreme Court. Given these great responsibilities, it is no surprise 
that the Solicitor General is the only officer of the United States 
required by statute to be ``learned in the law.''
    Mr. Olson's background in the law is impressive. He received his 
law degree in 1965 from the University of California at Berkeley where 
he was a member of the California Law Review and graduated Order of the 
Coif. Upon graduation, Mr. Olson joined the firm of Gibson, Dunn, & 
Crutcher in 1965, becoming a partner in 1972. During this time, Mr. 
Olson had a general trial and appellate practice as well as a 
constitutional law practice.
    In 1981, Mr. Olson was appointed by President Reagan to serve as 
Assistant Attorney General, Office of Legal Counsel in the United 
States Department of Justice. During his four years in this position, 
Mr. Olson provided counsel to the President, Attorney General, and 
heads of the Executive Branch Departments.
    After serving in the Reagan administration, Mr. Olson returned to 
private practice. He has argued numerous cases before the Supreme 
Court, including one that we are all familiar with related to this past 
election and the Florida election results. His vast experience in 
litigating before the Supreme Court will serve him well as Solicitor 
General.
    Mr. Chairman, based on this extensive experience in the law, it 
goes without saying that Mr. Olson is ``learned in the law.'' Mr. Olson 
is obviously extremely well-qualified to serve as our next Solicitor 
General, and I am confident that he will serve in this position with 
honor, integrity, and distinction.
    Again, I am pleased to indicate my support for Mr. Olson. I look 
forward to the Committee reporting his nomination favorably and for a 
confirmation vote before the full Senate.

    Chairman Hatch. Thank you, Senator. We appreciate your 
remarks.
    Senator Warner. I thank the indulgence of all members. If 
anyone cares to join us on the steps of the Capitol, where 
about several hundreds Scots similarly dressed will be there, 
you are welcome.
    Chairman Hatch. Thank you, John. We appreciate it.
    Senator Leahy. Thanks, John.
    Chairman Hatch. We will follow seniority, so we turn to 
Senator Nickles next, and then we will go to Senator Cleland 
and then Senator Miller.

  PRESENTATION OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR 
   GENERAL OF THE UNITED STATES, BY HON. DON NICKLES, A U.S. 
               SENATOR FROM THE STATE OF OKLAHOMA

    Senator Nickles. Mr. Chairman, Senator Leahy, and members 
of the committee, thank you very much and I will be very brief.
    One, I wish to compliment the President on his selection of 
Larry Thompson as Deputy Attorney General and Ted Olson to be 
Solicitor General. I think both are outstanding individuals. 
Both will serve not only the Attorney General but our country 
very well, and they will do an outstanding job.
    I do regret to say that Mr. Olson is not of Scottish 
descent. I find that to be his only lack of qualification. 
Obviously, he is a preeminent attorney among a handful that is 
eminently qualified to be Solicitor General. He is a lawyer 
with the qualifications Senator Warner mentioned: his law 
degree from the university of California, a partner in a very 
prestigious law firm, Gibson, Dunn and Crutcher, for 30-some 
years. He served as Assistant Attorney General of the United 
States in 1981-84, offering advice to President Reagan and then 
Attorney General William French Smith, in addition to other 
executive branch departments.
    He has held numerous legal positions both in the American 
Bar Association, Federalist Society, and others. The National 
Law Journal recognized him as one of America's top 100 
attorneys. They have done that year after year, and deservedly 
so.
    He has argued cases before Federal level and State level. 
He has been on several sides on legal issues. He recently, as 
mentioned by both Senator Leahy and Senator Warner, argued in a 
very famous case, Bush v. Gore. And regardless of whatever side 
of that issue you are on, you had to be impressed with his 
talent and the fact that he was able to put together that case, 
argued a very complicated case under enormous pressure, both in 
time and also on the importance of the issue.
    He has argued cases on both sides of the courtroom. He has 
defended the Government and he counseled the President and 
Attorney General on the limits of Government power. He has also 
defended private interests against the Government. So when he 
is Solicitor General and arguing the Government's position in 
court, he understands that there are both limits to Government 
power against individuals and limits of executive branch 
authority against the legislature and courts. I believe he will 
be a real credit to this administration and to his profession, 
and I believe our country is very fortunate to have him serve 
in this capacity. I happen to agree with Senator Leahy. He is 
one of our country's best attorneys, eminently qualified, and I 
think he will be an outstanding Solicitor General for our 
country.
    So, Mr. Chairman and members, thank you very much for the 
opportunity to introduce Ted Olson. I think he will do an 
outstanding job.
    Chairman Hatch. Well, thank you, our Assistant Majority 
Leader. Your testimony means a lot to this committee. We 
appreciate your being here, we know you are busy. We will let 
you go.
    Senator Cleland, we are very honored to have you and 
Senator Miller here, and we look forward to hearing your 
testimony.

    PRESENTATION OF LARRY D. THOMPSON, NOMINEE TO BE DEPUTY 
ATTORNEY GENERAL, BY HON. MAX CLELAND, A U.S. SENATOR FROM THE 
                        STATE OF GEORGIA

    Senator Cleland. Thank you very much, Mr. Chairman. It is 
an honor to be here with my colleague, Senator Zell Miller, and 
we are honored today to speak and appear and recommend to the 
Committee with our total support Attorney Larry Thompson from 
Georgia.
    I would like to acknowledge his lovely wife, Brenda, who is 
here, and thank them both for their loyalty to each other and 
loyalty to the law.
    It is my pleasure to recommend him for the position of 
Deputy Attorney General. He is an experienced litigator and 
uniquely qualified to work on behalf of all Americans as Deputy 
Attorney General. He graduated cum laude from Culver-Stockton 
College in 1967. I admire anybody who graduates cum laude or 
magna cum laude. I graduated ``lordie, how come?''
    [Laughter.]
    Senator Cleland. He serves as a member of the Board of 
Trustees there at Culver-Stockton. He received his master's 
degree from Michigan State in 1969 and his law degree from the 
University of Michigan in 1974. He joined King and Spalding, a 
law firm in Atlanta, in 1977 and practiced in the Antitrust and 
Litigation departments until 1982. From 1982 until 1986, he 
served as the U.S. Attorney for the Northern District of 
Georgia and did an outstanding job. As U.S. attorney, he 
directed the Southeastern Organized Crime Drug Enforcement Task 
Force and served on the Attorney General's Economic Crime 
Council.
    After returning to King and Spalding in 1986 as a partner, 
he resumed his practice in civil and criminal litigation. In 
July 1995, Mr. Thompson was named Independent Counsel for the 
Department of Housing and Urban Development investigation by 
the Special Panel of the U.S. Circuit Court Judges appointed by 
the Supreme Court. He is a member of the Committee on Lawyers' 
Qualifications and Conduct of the Eleventh Circuit, U.S. Court 
of Appeals. He is also an elected Fellow of the American Board 
of Criminal Lawyers. In addition, Larry Thompson teaches a 
weekly seminar on corporate crime at the University of Georgia 
School of Law.
    Paul Kurtz, the associate dean at the University of Georgia 
School of Law stated that ``he is delighted that Larry has been 
nominated.'' In addition, Mr. Kurtz said that Larry is 
``incredibly bright, incredibly hard-working, and very 
gifted.'' A wonderful description. Larry is well respected by 
his peers and his students and cares very much about 
representing all Americans as a member of the Justice 
Department. He is an outstanding attorney and will be an 
excellent Deputy Attorney General.
    He is a wonderful person, as evidenced by his great 
character and judgment; and, therefore, he has my full and 
unconditional support. I hope he will be approved by the 
Committee and confirmed by the full Senate as soon as possible.
    Thank you very much, Mr. Chairman.
    Chairman Hatch. Thank you so much, Senator Cleland.
    Senator Miller?

    PRESENTATION OF LARRY D. THOMPSON, NOMINEE TO BE DEPUTY 
ATTORNEY GENERAL, BY HON. ZELL MILLER, A U.S. SENATOR FROM THE 
                        STATE OF GEORGIA

    Senator Miller. Mr. Chairman and members of this committee, 
I am honored and pleased to be here today with my colleague, 
Senator Cleland, to present Larry D. Thompson to this esteemed 
committee. And I want to congratulate my longtime friend and 
fellow Georgian on this nomination.
    You have heard about his credentials. Let me tell you a 
little bit about this man that I know so well.
    Clearly--I cannot say this more clearly--President George 
Bush simply could not have made a better choice in nominating 
Larry Thompson as the next Deputy Attorney General for the 
United States. This is a man of impeccable credentials who will 
serve the Department of Justice and this Nation very, very 
well.
    I have had the pleasure to know Larry Thompson for many 
years, as I say. He is the consummate professional: quiet yet 
strong, a legal scholar who exercises enormous common sense, a 
man who will put principle ahead of politics every time. He is 
a man of great substance and little ego. He is not one to 
grandstand or grab headlines.
    Mr. Thompson would bring to the Department of Justice a 
solid record of experience. You have heard about it already 
from the Chairman and from Senator Cleland. I will add just a 
little.
    He was the kind of U.S. attorney who got in the trenches 
and tried cases himself on occasion, working as hard or, as 
they would tell you, harder than his assistant U.S. attorneys.
    Those who worked under Larry Thompson were struck by the 
enormous respect he always had for the rights of defendants. He 
refused to publicize someone's misfortunes when they were 
indicted. And he insisted on waiting until after a conviction 
before he would claim victory.
    From 1995 to 1999, Mr. Thompson served as independent 
counsel in a corruption probe at the Department of Housing and 
Urban Development. He earned praise from his peers for 
approaching this highly political, highly volatile case with 
the measured, unbiased, and apolitical approach for which he is 
so well known.
    Mr. Thompson, as the Chairman has mentioned, has practiced 
law at the prestigious Atlanta law firm of King and Spalding 
since 1977. He is a senior partner in the highly successful 
Special Matters and Government Investigations practice formed 
by Griffin Bell, who was appointed Federal judge by President 
Kennedy and Attorney General by President Carter.
    As I said at the beginning, President Bush simply could not 
have made a better choice as Deputy Attorney General. Larry 
Thompson brings a wealth of experience as a tough prosecutor, 
an adept litigator, a respected scholar, and a skilled manager.
    More important than that, Larry Thompson comes with no 
agenda. He will base every decision on what is right, not what 
is popular or politically expedient. He will bring to the 
Justice Department the same wisdom, the same thoughtfulness, 
and the same steady demeanor upon which he has built his 
stellar career.
    I am honored and I am very proud--in fact, this is the most 
rewarding experience I have had so far as a United States 
Senator--to present Larry Thompson and to recommend him 
strongly for confirmation as the next Deputy Attorney General.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Miller follows:]

Statement of Hon. Zell Miller, a U.S. Senator from the State of Georgia

    Mr. Chairman, Members of the Committee, Senator Cleland, I am 
honored to be here today to present Larry D. Thompson to this Esteemed 
Committee. And I want to congratulate my longtime fiend and fellow 
Georgian on his nomination.
    I cannot say it more clearly than this:

President Bush could not have made a better choice in nominating Larry 
        Thompson as the next Deputy Attorney General of the United 
        States.

    This is a man of impeccable credentials who will serve the 
Department of Justice and this nation very well.
    I have had the pleasure to know Larry Thompson for several years. 
He is the consummate professional: quiet yet strong, a legal scholar 
who exercises enormous common sense, a man who will put principle ahead 
of politics every time. He is a man of great substance and little ego. 
He is not one to grandstand or grab headlines.
    Mr. Thompson would bring to the Department of Justice a solid 
record of experience that includes four years as the U.S. Attorney for 
the Northern District of Georgia, from 1982 to 1986. In that job, Mr. 
Thompson directed the Southeastern Organized Crime Drug enforcement 
Task Force and served on the Attorney General's Economic Crime Council.
    He was the kind of U.S. Attorney who got in the trenches and tried 
cases himself on occasion, working as hard or even longer hours than 
his assistant U.S. attorneys.
    Those who worked under Larry Thompson were struck by the enormous 
respect he paid to the rights of defendants. He refused to publicize 
someone's misfortunes when they were indicted. He insisted on waiting 
until after a conviction before he would claim victory.
    From 1995 to 1999, Mr. Thompson served as independent counsel in a 
corruption probe at the Department of Housing and Urban Development. He 
earned praise from his peers for approaching this highly political, 
highly volatile case with the measured, unbiased and apolitical 
approach for which he is so well known.
    As Governor of Georgia, I tried over and over again to persuade Mr. 
Thompson to accept a position in state government. I knew he would be a 
great asset to my administration.
    In 1996, he finally accepted, taking a seat on the state Board of 
Education. As many of you know, education is my passion, so I was 
delighted to have someone of Larry Thompson's stature on the board that 
oversees our public schools.
    He took the job at one of the busiest times in his career--he was 
practicing law and serving as the independent counsel in the HUD probe. 
Still, he served with dedication and distinction on the Board of 
Education, as I knew he would.Mr. Thompson has practiced law at the 
prestigious Atlanta law firm of King & Spalding since 1977. He is a 
senior partner in the highly successful ``Special Matters/Government 
Investigation'' practice founded by Griffin Bell, the former Attorney 
General under President Carter.
    As I said at the outset, President Bush could not have chosen a 
better nominee as Deputy Attorney General.
    Larry Thompson brings a wealth of experience as a tough prosecutor, 
and adept litigator, a respected scholar and a skilled manager.
    More importantly than that, Larry Thompson comes with no agenda. He 
will base every decision on what is right, not what is popular or 
politically expedient. He will bring to the Justice Department that 
same wisdom, the same thoughtfulness, and the same steady demeanor upon 
which he has built his stellar career.
    I am very honored and very proud--in fact, this is the most 
rewarding experience I've had so far as a United States Senator--to 
introduce Larry Thompson, and to recommend him for confirmation as the 
next Deputy Attorney General.
    Thank you, Mr. Chairman.

    Chairman Hatch. Thank you. I want to say that this is high 
praise coming from the both of you, and your statements have 
meant a lot to this Committee and mean a lot to me personally, 
and I am sure they mean a great deal to Mr. Thompson and his 
wife and family. So we appreciate you taking the time to be 
with us.
    Senator Miller. Thank you.
    Chairman Hatch. Because I want to talk to members of the 
Committee and see how we can expedite the procedures on this, 
we are going to take a short recess, and I would like all 
members of the Committee to go to SC-10A. So come out this 
door, and we will just go around to the right, and then I will 
have a chance to chat with you.
    We will recess until we get back.
    [Recess 10:57 a.m. to 11:30 a.m.]
    Chairman Hatch. Just so everybody will know, we had someone 
invoke the 2-hour rule, which is that the Committee cannot meet 
after the first 2 hours of a regular session. We have been able 
to resolve that, and so we are going to proceed. I am tickled 
with that because I think--look, we have got to get these 
positions filled at the Justice Department. It is in the best 
interest of everybody in this country, Democrats, Republicans, 
Independents, just good citizens. And so I would like to finish 
this hearing today for both of these distinguished gentlemen 
who deserve to have that kind of treatment.
    I am going to forego my questions, and I will turn to the 
ranking member.
    Senator Leahy. I think they should be sworn and allowed to 
make their statements.
    Chairman Hatch. Well, now, that is a good idea.
    [Laughter.]
    Chairman Hatch. I get so tired of these procedural problems 
that I--
    Senator Leahy. Aren't you glad you have some of us minority 
members here to help work them out?
    Chairman Hatch. I am glad we have somebody here who knows 
how to run the committee, is all I can say.
    Would you two stand, please? Do you solemnly swear to tell 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    Mr. Thompson. I do.
    Mr. Olson. I do.
    Chairman Hatch. Fine. Thank you.
    Mr. Thompson, we will take your statement first. I hope 
both your statements will be nice and short.
    Take whatever time you need. I am just being humorous.

 STATEMENT OF LARRY D. THOMPSON, NOMINEE TO BE DEPUTY ATTORNEY 
                  GENERAL OF THE UNITED STATES

    Mr. Thompson. Mr. Chair, Senator Leahy, and other members 
of the committee, it is a great honor to be here today as the 
nominee to become the Deputy Attorney General of the United 
States. I would like to thank my home State Senators and 
friends, Senator Cleland and Senator Miller, for their 
introductions and support.
    Senator, let me first introduce to the Committee my wife of 
30 years, Brenda Thompson.
    Chairman Hatch. Brenda, we are so happy to have you here. 
We are proud of your husband and you.
    [Applause.]
    Mr. Thompson. Also here as a member of my family is General 
Donald Scott and his wife, Betty Scott.
    Chairman Hatch. General and Mrs. Scott, we are grateful to 
have you here.
    [Applause.]
    Mr. Thompson. Donald was Deputy Librarian of Congress. My 
father is deceased and my mother is 83 years old and somewhat 
ill. She lives in Hannibal, Missouri. I have two sons. Larry is 
26. He is a chemical engineer and a first-year law student at 
New York University. Gary is 22 and is a senior at Kalamazoo 
College in Kalamazoo, Michigan. And I certainly did not want to 
do anything to encourage them not to finish school on time.
    [Laughter.]
    Chairman Hatch. You did right.
    Mr. Thompson. Mr. Chair, it is a privilege to be considered 
for this position, and I would like to thank the members of the 
Committee and their staff for the courtesies extended to me 
over the past several days and providing me an opportunity to 
meet with many of you in the course of the confirmation 
process. It has been very helpful to learn what issues are of 
concern to you and to begin a cooperative and working dialog 
that I pledge to continue if confirmed.
    At the risk of introducing what might be considered some 
sentimentality into these proceedings, I cannot help but think, 
as I appear before you today, what a great Nation we live in 
and how fortunate I am to have had the parents I did. I was 
born and raised in Hannibal, Missouri. My father worked for the 
railroad as a laborer. My mother was a part-time cook and 
housekeeper. I attended a segregated school for 8 years where I 
had dedicated and stern teachers. But I also had wonderful and 
supportive teachers after integration. All of this is to say 
that I simply could not have imagined 40 years ago, when my 
father was living, that I would be sitting here before this 
great body today as a participant in these proceedings.
    I have been practicing law for almost 27 years; 19 of those 
years have been primarily dedicated to the Federal criminal 
justice system, either as a prosecutor or defense lawyer. I 
have worked with and learned from a number of great lawyers. 
Chief among them is my senior law partner, former Attorney 
General, Griffin Bell.
    As U.S. attorney under President Ronald Reagan, I managed 
and led an office covering Atlanta and over 40 counties in 
North Georgia, an area with a population of over 3 million 
people. During my tenure as United States attorney, my office 
conducted several successful investigations and prosecutions 
relating to Government program fraud, prescription drug 
diversion, public official corruption, illegal tax protests by 
supremacist organizations, and terroristic acts by members of 
the Ku Klux Klan that led to criminal civil rights convictions.
    Also as U.S. attorney in Atlanta, I established and led the 
Southeast Organized Crime Drug Enforcement Task Force. The task 
force covered five States and involved 12 different U.S. 
Attorney's Offices, including the office in Mobile, Alabama, 
led by then U.S. Attorney Senator Jeff Sessions. The task force 
also included the FBI, the DEA, ATF, IRS, and the U.S. Marshals 
Service.
    Our task force had many law enforcement successes, but none 
I am more proud of than the convictions of leaders of a large 
cocaine-smuggling and--trafficking organization that smuggled 
over 5 tons of cocaine into the United States during a 15-month 
period between 1982 and 1983. This investigation involved 
coordinating with a number of law enforcement and intelligence 
agencies, both at the domestic and international levels. At the 
time this was the largest cocaine-smuggling organization ever 
to have been destroyed and brought to justice.
    As U.S. attorney, I learned to respect, admire, and, yes, 
even love the many energetic, talented, and hard-working 
prosecutors and agents with whom I worked. Many of these people 
literally put their lives on the line every day in order to 
make our communities safe places to live. Some of the things I 
witnessed, for example, in dangerous undercover operations were 
really literally heroic.
    I obviously admire the Department of Justice as an 
institution and, if confirmed, look forward to returning to it 
and serving a leadership position in it.
    Since serving as U.S. attorney, I have maintained an 
interest in public service even while continuing to practice 
law privately. I was honored to serve as a replacement 
independent counsel for Judge Arlen Adams in the Samuel Pierce 
Department of Housing and Urban Development investigation, and 
most recently, I was honored and privileged to serve Congress 
as Chair of the Judicial Review Commission on Foreign Asset 
Control, which was a bipartisan commission you established to 
study certain issues relating to the Foreign Narcotics Kingpin 
Designation Act.
    As a defense lawyer, I have represented individuals rich 
and poor and entities large and small accused of wrongdoing. I 
have handled cases throughout the country from Boston to Los 
Angeles. Many of these cases involved complex and lengthy 
investigations, and in many of them I have had to work hard to 
work creatively with the Government in order to resolve my 
clients' legal problems without resorting to trial. These 
resolutions always had as their foundation the mutual respect 
and trust between me as private counsel and the Government.
    Also as a defense lawyer, and something that I discussed 
with Senator Leahy when we met, I have represented citizens who 
believe that governmental power was being misused or was even 
unrestrained by law. Some of these clients, individuals and 
entities, have doubted the fairness of our criminal justice 
system. All of these experiences, I believe, have prepared me 
for the challenges I will face as Deputy Attorney General.
    I would like now briefly, Senator Hatch, to identify for 
you what I hope to accomplish as Deputy Attorney General, if 
confirmed, under Attorney General Ashcroft's leadership. I 
would like to discuss three important objectives.
    First, and most important, the Department of Justice must 
continue to earn and maintain the trust and respect of all our 
citizens. To do this, the Department must operate in a non-
partisan and impartial manner. We must be as open to the public 
as legitimate concerns for privacy and investigative and grand 
jury secrecy allow. And as we go about this important 
objective, I take my guidance from a speech delivered by 
Attorney General Robert Jackson at the Second Annual Conference 
of U.S. Attorneys in 1940. General Jackson noted: ``The 
prosecutor has more control over life, liberty, and reputation 
than any other person in America. His discretion is 
tremendous.''
    Instructing the assembled prosecutors on how to conduct 
their public business, General Jackson then went on to note 
that, ``A good prosecutor displays a sensitivity to fair 
play,'' and then he pointed out, ``A citizen's safety from the 
abuse of power from a prosecutor lies in the prosecutor who 
tempers zeal with human kindness, who seeks truth not victims, 
who serves the law and not factional purposes, and who 
approaches his or her task with humility.'' I have always 
followed General Jackson's counsel.
    I believe that because of my record of vigorously but 
impartially enforcing the laws, I have been honored to receive 
support for my nomination from both the Fraternal Order of 
Police and the National Association of Criminal Defense 
Lawyers.
    Second, we must continue to make certain that the 
traditional role of Federal law enforcement is carried out with 
vigor and effectiveness. Federal law enforcement must attack 
such critical crime problems as large multi-state and 
international drug-trafficking organizations, complicated fraud 
schemes, civil rights violations, serious environmental 
violations, terrorism and espionage, and sometimes these areas 
overlap.
    For example, Senator, a leader of a large cocaine-smuggling 
operation my U.S. Attorney's Office prosecuted in 1984, who was 
an admitted Marxist, an associate of the M-19 guerrilla 
movement in Colombia, wrote the following in a letter that was 
intercepted by the DEA. He wrote, ``I hate all government so 
much. I want to destroy them. I guess in my own way sending 
drugs into the U.S. was one of my ways of fighting.'' We need 
to continue to direct the tremendous Federal law enforcement 
resources that we have at individuals like this who, if 
unchecked, will wreak havoc on our Nation.
    And, finally, the third objective is one that is not 
necessarily associated with traditional Federal law enforcement 
but does involve helping our citizens achieve a greater sense 
of personal security and safety in their homes and 
neighborhoods. This involves violent crime, which is especially 
important to some of our minority and low-income citizens 
against whom violent crime has a disproportionate impact. Of 
all our important civil rights, the right to be safe and secure 
in one's home and neighborhood is perhaps the most important. 
We must work creatively, think outside of the box, as it is 
sometimes referred to, to work with local law enforcement 
agencies and perhaps even some private organizations to attack 
the problem of violent crime.
    I certainly today do not have all the answers now, but do 
believe that we must continue to encourage and support local 
law enforcement efforts that take violent and repeat offenders 
out of circulation, especially those who use guns in committing 
their crimes. Many of our citizens continue to be literally 
terrorized by violent crime. The Federal Government should play 
a leading role in attacking this problem. At stake is the well-
being of millions of citizens and even the lives of some of 
them.
    Now, in accomplishing these objectives, I will be guided by 
what Attorney General Ashcroft has committed the Department of 
Justice to do. We will listen to Congress and to others and try 
to find common ground with people of widely diverse viewpoints.
    Again, Mr. Chair, I am honored to be here. I thank the 
President for his confidence in me, and I look forward to 
working with all of you on this committee. Of course, I will be 
pleased to answer any questions that you may have.
    Chairman Hatch. Thank you, Mr. Thompson. That is an 
excellent statement.
    [Mr. Thompson's biographical information follows:]
    [GRAPHIC] [TIFF OMITTED] T7278.001
    
    [GRAPHIC] [TIFF OMITTED] T7278.002
    
    [GRAPHIC] [TIFF OMITTED] T7278.003
    
    [GRAPHIC] [TIFF OMITTED] T7278.004
    
    [GRAPHIC] [TIFF OMITTED] T7278.005
    
    [GRAPHIC] [TIFF OMITTED] T7278.006
    
    [GRAPHIC] [TIFF OMITTED] T7278.007
    
    [GRAPHIC] [TIFF OMITTED] T7278.008
    
    [GRAPHIC] [TIFF OMITTED] T7278.009
    
    [GRAPHIC] [TIFF OMITTED] T7278.010
    
    [GRAPHIC] [TIFF OMITTED] T7278.011
    
    [GRAPHIC] [TIFF OMITTED] T7278.012
    
    [GRAPHIC] [TIFF OMITTED] T7278.013
    
    [GRAPHIC] [TIFF OMITTED] T7278.014
    
    [GRAPHIC] [TIFF OMITTED] T7278.015
    
    [GRAPHIC] [TIFF OMITTED] T7278.016
    
    [GRAPHIC] [TIFF OMITTED] T7278.017
    
    [GRAPHIC] [TIFF OMITTED] T7278.018
    
    [GRAPHIC] [TIFF OMITTED] T7278.019
    
    [GRAPHIC] [TIFF OMITTED] T7278.020
    
    [GRAPHIC] [TIFF OMITTED] T7278.021
    
    [GRAPHIC] [TIFF OMITTED] T7278.022
    
    [GRAPHIC] [TIFF OMITTED] T7278.023
    
    [GRAPHIC] [TIFF OMITTED] T7278.024
    
    [GRAPHIC] [TIFF OMITTED] T7278.025
    
    [GRAPHIC] [TIFF OMITTED] T7278.026
    
    [GRAPHIC] [TIFF OMITTED] T7278.027
    
    [GRAPHIC] [TIFF OMITTED] T7278.028
    
    [GRAPHIC] [TIFF OMITTED] T7278.029
    
    [GRAPHIC] [TIFF OMITTED] T7278.030
    
    [GRAPHIC] [TIFF OMITTED] T7278.031
    
    [GRAPHIC] [TIFF OMITTED] T7278.032
    
    [GRAPHIC] [TIFF OMITTED] T7278.033
    
    [GRAPHIC] [TIFF OMITTED] T7278.034
    
    [GRAPHIC] [TIFF OMITTED] T7278.035
    
    [GRAPHIC] [TIFF OMITTED] T7278.036
    
    [GRAPHIC] [TIFF OMITTED] T7278.037
    
    [GRAPHIC] [TIFF OMITTED] T7278.038
    
    [GRAPHIC] [TIFF OMITTED] T7278.039
    
    [GRAPHIC] [TIFF OMITTED] T7278.040
    
    [GRAPHIC] [TIFF OMITTED] T7278.041
    
    Mr. Olson, we will turn to you.

STATEMENT OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR GENERAL 
                      OF THE UNITED STATES

    Mr. Olson. Thank you, Mr. Chairman, Chairman Hatch, and 
members of this committee, for holding this hearing, especially 
at a time when so many other important matters are taking place 
in the U.S. Senate. I am also grateful to the many members of 
this Committee who took time out of their busy schedules during 
the past few days to meet with me. I think that is a very, very 
constructive process, and I enjoyed the opportunity to meet and 
talk with so many members of this committee.
    I would like to take a moment and introduce members of my 
family. First of all, my wife and dearest friend, Barbara.
    Chairman Hatch. Barbara, happy to have you here.
    [Applause.]
    Mr. Olson. And I have two children. My daughter, Christine, 
lives in Arizona and could not be here, but my son and 
daughter-in-law, Ken and Laura Olson, and my three 
grandchildren about whom I could not be more proud--Haley and 
Gillian and Kirsten--are here today.
    [Applause.]
    Chairman Hatch. We welcome you. Beautiful grandchildren, I 
tell you.
    Mr. Olson. I think so, too.
    Chairman Hatch. I am amazed.
    [Laughter.]
    Mr. Olson. Part of that is attributable to my daughter-in-
law.
    I am also most grateful to Senators Warner and Nickles for 
introducing me today. And, of course, I am especially indebted 
to President Bush and Attorney General Ashcroft for the honor 
they have bestowed upon me in nominating me to serve as 
Solicitor General of the United States.
    I am deeply touched to be here. I am very, very pleased to 
be here on the same panel with Larry Thompson. Larry and I 
first met many, many years ago at the first part of the Reagan 
administration where we both served in the Justice Department 
under President Reagan and Attorney General--who was my former 
partner--William French Smith. It was a wonderful experience, 
and I am looking forward, if we are both confirmed, to working 
together. This is a friendship and a professional relationship 
that I am very proud of.
    I am also very touched and humbled by the nomination to 
serve my country as Solicitor General of the United States. I 
have immense respect for the inspiration and prescience of the 
Framers of our Constitution and for the miraculous Government 
that they created, particularly its ingenious system of 
separated powers. The creation of interrelated but separate 
branches of Government, including an independent judiciary, has 
made this country strong and kept its citizens free for over 
200 years. The privilege of representing the United States in 
its courts, especially before the United States Supreme Court, 
is, in my judgment, one of the greatest and most gratifying and 
challenging positions that a lawyer could possibly dream about.
    The Solicitor General holds a unique position in our 
Government in that he has important responsibilities to all 
three branches of our Government. He represents the legislative 
branch in the sense that he is the lawyer who defends laws 
enacted by this Congress in the Supreme Court of the United 
States. He is also the lawyer for the executive in that he 
represents the President in the Supreme Court in the discharge 
of the President's core responsibility, to take care that the 
laws of the United States are faithfully executed. And he is 
considered an officer of the Supreme Court in that he regularly 
and with scrupulous honesty must present to the Court arguments 
that are carefully considered and mindful of the Court's role, 
duty, and limited resources.
    As the most consistent advocate before the Supreme Court, 
the Solicitor General and the lawyers in that office have a 
special obligation to inform the Court honestly and openly. The 
Solicitor General must be an advocate, but he must take special 
care that the positions he advances before the Court are fairly 
presented. As Professor Drew Days said to this Committee during 
his confirmation hearing 8 years ago, the Solicitor General has 
a duty toward the Supreme Court of ``absolute candor and fair 
dealing.''
    Finally, and perhaps most importantly of all, the Solicitor 
General must always be mindful that he represents the people of 
the United States and their Government and that their interests 
must at all times be paramount and their Constitution protected 
and defended.
    I know what a great responsibility the President has asked 
me to discharge. If I am confirmed, I will strive to live up to 
the standards of the outstanding individuals--some of whom were 
named by each of you, Mr. Chairman, Senator Leahy--who have 
served in this wonderful position in the past and to the fine 
men and women who work in the office of Solicitor General now 
and who have served in that office in the past. And I will 
endeavor at all times to keep in mind that those of us who 
serve in the Department of Justice have as our ultimate master 
the Constitution and the rule of law.
    Thank you.
    [Mr. Olson's biographical information follows:]
    [GRAPHIC] [TIFF OMITTED] T7278.042
    
    [GRAPHIC] [TIFF OMITTED] T7278.043
    
    [GRAPHIC] [TIFF OMITTED] T7278.044
    
    [GRAPHIC] [TIFF OMITTED] T7278.045
    
    [GRAPHIC] [TIFF OMITTED] T7278.046
    
    [GRAPHIC] [TIFF OMITTED] T7278.047
    
    [GRAPHIC] [TIFF OMITTED] T7278.048
    
    [GRAPHIC] [TIFF OMITTED] T7278.049
    
    [GRAPHIC] [TIFF OMITTED] T7278.050
    
    [GRAPHIC] [TIFF OMITTED] T7278.051
    
    [GRAPHIC] [TIFF OMITTED] T7278.052
    
    [GRAPHIC] [TIFF OMITTED] T7278.053
    
    [GRAPHIC] [TIFF OMITTED] T7278.054
    
    [GRAPHIC] [TIFF OMITTED] T7278.055
    
    [GRAPHIC] [TIFF OMITTED] T7278.056
    
    [GRAPHIC] [TIFF OMITTED] T7278.057
    
    [GRAPHIC] [TIFF OMITTED] T7278.058
    
    [GRAPHIC] [TIFF OMITTED] T7278.059
    
    [GRAPHIC] [TIFF OMITTED] T7278.060
    
    [GRAPHIC] [TIFF OMITTED] T7278.061
    
    [GRAPHIC] [TIFF OMITTED] T7278.062
    
    [GRAPHIC] [TIFF OMITTED] T7278.063
    
    [GRAPHIC] [TIFF OMITTED] T7278.064
    
    [GRAPHIC] [TIFF OMITTED] T7278.065
    
    [GRAPHIC] [TIFF OMITTED] T7278.066
    
    [GRAPHIC] [TIFF OMITTED] T7278.067
    
    [GRAPHIC] [TIFF OMITTED] T7278.068
    
    [GRAPHIC] [TIFF OMITTED] T7278.069
    
    [GRAPHIC] [TIFF OMITTED] T7278.070
    
    [GRAPHIC] [TIFF OMITTED] T7278.071
    
    [GRAPHIC] [TIFF OMITTED] T7278.072
    
    [GRAPHIC] [TIFF OMITTED] T7278.073
    
    [GRAPHIC] [TIFF OMITTED] T7278.074
    
    [GRAPHIC] [TIFF OMITTED] T7278.075
    
    [GRAPHIC] [TIFF OMITTED] T7278.076
    
    [GRAPHIC] [TIFF OMITTED] T7278.077
    
    [GRAPHIC] [TIFF OMITTED] T7278.078
    
    [GRAPHIC] [TIFF OMITTED] T7278.079
    
    [GRAPHIC] [TIFF OMITTED] T7278.080
    
    [GRAPHIC] [TIFF OMITTED] T7278.081
    
    [GRAPHIC] [TIFF OMITTED] T7278.082
    
    [GRAPHIC] [TIFF OMITTED] T7278.083
    
    [GRAPHIC] [TIFF OMITTED] T7278.084
    
    [GRAPHIC] [TIFF OMITTED] T7278.085
    
    [GRAPHIC] [TIFF OMITTED] T7278.086
    
    Chairman Hatch. Thank you, Mr. Olson, for an excellent 
statement.
    I am going to reserve my right to question, and I will turn 
to the ranking member, the Democratic leader on the committee, 
Senator Leahy.
    Senator Leahy. Thank you very much, Mr. Chairman, and I am 
glad that we were able to work out the situation earlier.
    Mr. Thompson, I will begin with you, if I might, sir. I 
appreciate very much the amount of time you spent--I know how 
busy you must be--in coming by to visit the other day. Mrs. 
Thompson, you should know that your husband positively glowed 
when he mentioned you and your work at school and elsewhere, 
and I appreciate that very, very much. He and I discussed the 
fact that my oldest son went to Emory Law School and how much 
my wife and I enjoyed going down to Atlanta to visit him.
    Mr. Thompson, one of the questions I have asked nominees 
for 20 years has been on the areas of pro bono work--nominees 
for judgeships or nominees for high positions in Government--of 
lawyers because I feel that all of us as lawyers have had 
somewhat of a privileged role in society. And in the question 
on the Judiciary Committee's questionnaire about how you 
fulfilled your responsibility under Canon 2 of the American Bar 
Association's Code of Professional Responsibility to ``find 
some time to participate in serving the disadvantaged,'' you 
list your work with Morris Brown College, which is a 
historically black college in Atlanta; your efforts as Chair of 
the Atlanta Urban League in the early 1990's; the pro bono 
appointments in criminal matters you accepted as a young 
associate. I also see you are affiliated with Goodwill, the 
Village of St. Joseph, the Federal Defenders Program, and the 
King Tysdale--
    Mr. Thompson. King Tysdale Cottage Foundation.
    Senator Leahy. Cottage Foundation. Have I left out anything 
there that would be responsive to your finding time to 
participate in the service of the disadvantaged?
    Mr. Thompson. Not that I can think of right now, Senator.
    Senator Leahy. And you list the Washington Legal Foundation 
Legal Foundation Advisory Board, the Southeastern Legal 
Foundation Legal Advisory Board among organizations that you 
have been connected with as an officer, director, partner, and 
so on. That is in question six. You say you are a member of the 
Federalist Society and you serve on its National Practitioners 
Council.
    Now, am I correct you have resigned from the board of the 
Southeastern Legal Foundation?
    Mr. Thompson. I did, Senator.
    Senator Leahy. And is it true that if you are confirmed, 
you intend to discontinue your affiliation with the Washington 
Legal Foundation Legal Advisory Board and the Federalist 
Society's National Practitioners Council?
    Mr. Thompson. Senator, if confirmed, I plan to discontinue 
my association with all organizations with one exception, which 
I believe I have received permission to do from the Ethics 
Office, and that is, I would like to continue teaching my class 
at the University of Georgia. I really believe I have made a 
commitment not only to the university but to those students in 
my class.
    Senator Leahy. From what I have heard about that, I think 
the students would probably be very glad to have you.
    Mr. Thompson. They may not.
    [Laughter.]
    Senator Leahy. No, I think they will. I think they are 
going to be--you may find and the school may find that the 
enrollment is going to go up considerably.
    Chairman Hatch. I have heard you are pretty tough.
    [Laughter.]
    Mr. Thompson. They just had a final exam. I just gave them 
a final exam.
    Senator Leahy. Tougher than you, Mr. Chairman?
    Chairman Hatch. Well, now, that is saying something.
    Senator Leahy. You say the Washington Legal Foundation 
organization lobbies before public bodies. What kind of matters 
has it lobbied?
    Mr. Thompson. I know that they submit amicus briefs to the 
court. I am not generally aware of their legislative efforts. 
But it is my general understanding that they have done some 
kind of lobbying before Congress. But I do know that they do 
prepare amicus briefs and that kind of thing.
    Senator Leahy. One of the articles that you wrote and I 
read was a 1990 article dealing with black-on-black crime, and 
you argued that the death penalty has to be applied in a fair 
and racially neutral manner, which I would hope we would all 
agree with.
    Mr. Thompson. Yes, sir.
    Senator Leahy. And you called for ``the strict enforcement 
of the imposition of the death penalty in order to eliminate 
any disparity because of the race of the victim.'' And last 
year, the Justice Department released a report that revealed 
dramatic racial as well as geographical disparities in the 
Federal death penalty system. The then Attorney General was 
sufficiently disturbed by the report to initiate further 
research into the causes of the disparities that had been 
identified.
    As Deputy Attorney General, you are going to be intimately 
involved in this. What would you do to make sure that, if the 
death penalty is applied, it is applied in both a geographic 
and racial equal fashion? Or do it without disparity, I should 
say.
    Mr. Thompson. Well, Senator, first of all, I think it would 
be appropriate in responding to your question to say that 
obviously as Deputy Attorney General I am most concerned with 
making certain that all of our laws are administered fairly and 
with appropriate safeguards. And I think with respect to the 
death penalty, it is very important, obviously, because of the 
finality of the imposition of that punishment, that we consider 
and be open at all times to the imposition of safeguards.
    The Federal Government has a fairly exhaustive review 
procedure, and that would be one thing that I would want to 
make certain that we continue, a really exhaustive review 
procedure in terms of how the sentence--how a prosecutor who 
wants to seek the death penalty must get the certain approvals, 
and obviously the things that you will look out for are the 
strength of the evidence and any indication that there is any 
hint of discrimination or any kind of other inappropriate 
reason why that prosecutor may ask to seek the imposition of 
the death penalty.
    But the bottom line as it related to the article that you 
cited, sir, is that we really need to finally, though, be 
concerned with holding people who commit violations of law 
accountable for their actions. And with respect to the death 
penalty, there are certain crimes that are committed that are 
so heinous or the aggravating circumstances, sir, are so 
serious that I believe that the imposition of the death penalty 
is warranted.
    I cited in that article a quotation from Judge Carl 
Moultrie, who is a highly respected judge in D.C. Superior 
Court. You may recall Judge Moultrie. And he said with respect 
to a young man who was before him, he said to this young man, 
he said, ``You're mean''--and apparently this young man had 
murdered several people in a very serious and aggravating way. 
And he said to him, ``You're mean. You're damn mean, and if I 
had the death penalty available to me, I would impose it upon 
you.'' And we really--we need to be concerned about the 
disparity, but we need to be concerned about the safety and 
security of all the law-abiding citizens who--
    Senator Leahy. And you understand, Mr. Thompson, I am not 
debating the death penalty. The death penalty is on the books, 
and the prosecutors have a right to seek it, a judge has a 
right to impose it. I just want to make sure that it is done 
even-handedly. If you or Mr. Olson or Senator Hatch or myself 
or a member of our family were charged, you know, God forbid, 
with a capital crime, we would have the best lawyers, they 
would have the best lawyers, and it would be all--the defense 
would be the best, but we see all these studies about assigned 
counsel where they are paid so very little that they are going 
to be bankrupt if they actually put in a full defense, or they 
can't even do a rudimentary investigation. Some turned up they 
had never defended a murder case, never been in any serious 
criminal case. They haven't interviewed alibi witnesses. They 
don't understand their client's history, whether it is mental 
retardation or anything else. DNA evidence available, they 
haven't bothered to get it. Some have actually slept through 
the trial or been drunk in trial. Some have been disbarred, and 
yet they are there.
    These are the things--I would ask you to take a look at a 
bill that Senator Gordon Smith of Oregon and I have introduced 
to seek standards and ways to improve the standards in State 
courts of those who are assigned, because if we continue--if we 
don't do something to improve it, you are going to continue to 
have these disparities. But at the same time, you are going to 
have less and less confidence of the public in our criminal 
justice system, and you are going to continue to see juries 
come back with things that nobody can understand.
    Mr. Thompson. Senator, I pledge to you that I will study 
your bill, and as I said, I am obviously open to considering 
all kinds of safeguards as we go about imposing the death 
penalty.
    Senator Leahy. Having shown the willingness to discuss 
matters with members of this committee, I assure you, you will 
probably be hearing from me more than enough. Mrs. Thompson 
will probably want to take the phone off the hook when you go 
home to Atlanta.
    [Laughter.]
    Senator Leahy. Now, Mr. Olson, as you know, the position of 
Solicitor General, as you said, is quite different than any 
other lawyer in the Government, even political lawyers or 
appointees of the President, and Senator Warner I thought 
emphasized that very well. You spoke of the fact that you have 
got to show the highest integrity before the court. You are an 
officer of the court. They expect you to come forward. They 
expect to be able to know the strength of your case, but also 
the weaknesses of the case. If there are things that the court 
might not otherwise know of, you have a responsibility as the 
Solicitor General to bring that forward.
    But you also have the ability to determine whether you are 
going to file a friend of the court brief in a case where the 
Government is not a party. Now, there, before you even get to 
the question about how even-handedly you handle that before the 
court, you have to make that preliminary determination if you 
are even going to go there at all.
    What kind of criteria would you use?
    Mr. Olson. Well, that is a very interesting and important 
question. I have read a great deal of what prior Solicitor 
Generals and academicians have had to say with respect to that. 
There is a number of criteria. One thing that has to be taken 
into consideration is that the United States Supreme Court is 
only going to read so many briefs and is only going to listen 
to so many occasions on which the United States decides either 
to intervene or file a friend of the court brief. And if the 
United States uses that authority frivolously or in cases where 
the interest of the United States is not obvious and direct and 
important, the Court will lose respect for the filings of the 
Solicitor General's office.
    So there are long answers to that question, but it is 
exceedingly important that the core interests of the United 
States--and that frequently involves conducting a study of 
component agencies in the Department of Justice or component 
agencies within the executive branch and other interests, other 
interested citizens and so forth who may have something to say 
with respect to what the interest of the United States is. Each 
case will have to be looked at on its own, and every prior 
Solicitor General that I have both spoken to and whose readings 
I have read say that each case has to be determined on its own. 
But ultimately it is the interest of the United States, in some 
respects the President's policies, if they have become a part 
of a case that might be before the court, those things have to 
all be consulted.
    Senator Leahy. Ultimately, is it fair to say that a 
partisan interest of the President--it would be the same either 
Democrat of Republican--is going to be a major factor in that 
consideration?
    Mr. Olson. A partisan interest from the standpoint of 
partisan politics should not be considered. The policies that 
have been advanced by the President can be and frequently are 
in any administration. For example, a particular administration 
may have an interest in enforcing the antitrust laws in a 
certain way or the environmental laws in a certain way. Those 
policy interests are among the things that the President is 
entitled to consider with respect to the discharge of his 
responsibility to faithfully execute the laws of the United 
States.
    Senator Leahy. But it is highly conceivable, is it not, 
that given the exact same set of facts, depending upon who was 
the President, would determine whether--the fact of who was the 
President would determine whether the Solicitor General would 
feel that the interests of the United States were such that a 
friend of the court brief should be filed?
    Mr. Olson. Well, that can be a factor, yes. But the word 
that I was concerned about and I want to make it very clear, 
that partisan interests, Republican, Democrat, those kind of 
political considerations that have to do with partisanship, 
should not be a part of the equation. But policy positions are 
and have been in every Presidency that I have studied.
    Senator Leahy. I will follow up with a similar question 
that I asked Mr. Thompson so you won't feel left out. And, 
incidentally, you should get higher points, if you will, from 
Senator Hatch and myself because we are grandparents, so you 
get high points just for having three beautiful granddaughters 
and who are willing to sit through what has to be for them--
much as I am sure they love their grandfather, it has to be for 
them one of the most boring days that they are going to spend.
    [Laughter.]
    Senator Leahy. But I think it is a reflection of the good 
upbringing of both your son and daughter-in-law that they are 
doing it so politely and so restrained.
    Mr. Olson. Thank you, Senator. That is very gracious. I 
took their father, my son, to an argument that I had in the 
California Supreme Court many years ago when he was about 12 
years old, and I thought it was a pretty exciting case. And 
after the argument, I came out and I said, ``Well, what did you 
think, Ken?'' And he said, ``Dad, that's pretty boring.''
    [Laughter.]
    Senator Leahy. That reminds me of when my children were 
young. I had been in the Senate for a while and I was on some 
national news, and my wife said, ``Dad's on television.'' 
``Yeah, we've seen him.''
    [Laughter.]
    Senator Leahy. But to go through what we did on the pro 
bono, Canon 2, which is to participate in serving the 
disadvantaged, in answer to that question you generally 
referenced the work you have done for the Washington Legal 
Foundation, the Federalist Society, and other foundations and 
non-profits. Specifically in these, how did you serve the 
disadvantaged and how did your involvement with that serve the 
disadvantaged?
    Mr. Olson. Well, I read the model rule which applies to 
what lawyers ought to consider in terms of how they expend 
their time. It talks in terms of various different ways in 
which to serve the community. You mentioned two organizations, 
but I have been very, very involved in the--and the model rule 
with respect to this talks about a variety of things, including 
representing individuals but also teaching, which I have done. 
I have been very, very active in the American Bar Association. 
I mentioned in response to that form that I served as an 
advisory member of the U.S.-Ukraine Foundation. I don't know 
whether it is mentioned there, but I served as an advisor to 
the Women Judges Fund for Justice, which is a part of the 
independent women's--
    Senator Leahy. In answer to the question, specifically, 
though, on your answer to the question about Canon 2, 
participating in serving the disadvantaged, you referenced work 
you have done for the Washington Legal Foundation, the 
Federalist Society. Was that serving the disadvantaged in those 
two cases?
    Mr. Olson. I mentioned that. I think that in response to 
the model rules there is a range of ways in which to serve 
people. The American Bar Association is not disadvantaged, but 
I do spend time doing that. U.S.-Ukraine Foundation is a non-
profit organization. I have represented various individuals in 
the courts. I have discussed in response to that question the 
individuals I have represented, individuals who felt that their 
constitutional rights had been violated in connection with 
admissions programs in universities. I represented an 
individual in a case in the Supreme Court last year in a qui 
tam case against the U.S. Government. I represented another 
individual last year who could not afford to be represented in 
the United States Supreme Court in connection with a voting 
rights case. We were successful in that case.
    I do believe that it is a lawyer's responsibility to be 
involved in a variety of ways in the community as well as 
practice of law for profit. Each individual we talk about in 
our firm will have different ways of doing that and different 
ways of fulfilling their responsibility. I have done it in a 
variety of different ways, and I think it is very important for 
all lawyers to be involved in different aspects of community 
life.
    Chairman Hatch. Senator, your time is up.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. Let me just make two 
brief comments. I really don't have a question. I think both of 
these nominees are superbly qualified for the positions to 
which they have been nominated, and I know that some members of 
the Democratic side have questions and, therefore, I would be 
happy to defer to them.
    First, I just want to say that not all of us will be able 
to attend all of this hearing. I have a speech that I have got 
to go give, and I had no idea that we would have this kind of a 
conflict. So please excuse my absence, and I know that I speak 
for my colleagues as well.
    Let me also just say something, Mr. Chairman. I have had an 
opportunity to talk to both of these nominees, and I just had a 
wonderful visit with Mr. Thompson. But let me mention something 
specifically about Ted Olson that I happened to mention to him 
the other night. He didn't know this, but he and I have a very 
dear friend in common, the late Rex Lee. Rex Lee was Solicitor 
General in the Reagan administration. Rex Lee was one of my law 
partners and by anyone's account was one of the finest 
Solicitor Generals ever to serve. He also served as head of the 
Civil Division of the Justice Department before that.
    Rex Lee, when he came back to Washington, could never stop 
talking about a young lawyer and friend of his back here that 
he said was going to be destined for great things, a young 
lawyer by the name of Ted Olson. I had no reason to remember 
that name except that Rex repeated it so many times to me. And 
he told me not only about this Ted Olson's legal qualifications 
and how Rex enjoyed the camaraderie of serving with Ted, but 
what a fine individual that he was.
    The reason that that means a great deal to me is that 
anyone in this room who knew Rex Lee would know that that is 
about as high--that that compliment comes from about as fine an 
individual as there ever was. And so it means a great deal to 
me.
    Thank you, Mr. Chairman.
    Chairman Hatch. Well, thank you. Rex Lee was a very close 
friend of mine as well, and he was a great Solicitor General, 
and I have no doubt you are going to be a great Solicitor 
General.
    Let's turn to Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Chairman Hatch. Just so everybody knows, the first round is 
a 15-minute round. I have asked my side to not ask as many 
questions so we can get through this today. But I know that 
many on the Democrat side have a lot of questions. I want to 
make sure they get a chance to do it. If you need more time, I 
am not averse to granting it, but I would like to kind of run 
it that way if I can.
    Senator Feinstein. Thank you. I will try and be brief, but 
I may need some more time.
    First of all, Mr. Thompson, yours was one of the finest 
opening statements I have heard since I have been on this 
committee. I am really very pleased to cast my vote for you, 
and I won't take up any time. If I were to ask you questions, 
they would probably be pretty softball. But I would like to--
    Chairman Hatch. Watch out, Mr. Thompson.
    [Laughter.]
    Chairman Hatch. She looks innocent as can be, but I've got 
to tell you, she works the Chairman over with regularity.
    Senator Feinstein. But I am going to take my questions on 
Mr. Olson because we did have a chance to meet, and following 
my meeting I was very prepared to vote for you. And then 
sitting here today, I read some of the writings that you sent 
in. Specifically, I want to talk to you about a couple of them.
    You wrote an article, ``The Most Political Justice 
Department Ever,'' a survey for the American Spectator. And it 
is certainly not an even-handed analysis of the Justice 
Department under Janet Reno. Your words are somewhat harsh and 
biting, and in my view, your analysis is very one-sided. And I 
want to ask you about it.
    You say, ``The Department''--and I am quoting now--``and 
its officials traditionally have been held to a standard of 
independence and non-partisanship not expected at other Federal 
agencies.'' And you go on in the article to say, ``Attorneys 
General are judged in substantial part by the quality and 
integrity of their subordinates and by their insistence that 
they be selected on their merit and for their commitment to the 
rule of law,'' with which I would agree.
    But then you go on, and here you really slash and burn at 
Janet Reno when you point out, ``There is ample evidence that 
cannot be ignored that from the beginning Janet Reno allowed 
her Department to be overwhelmed by partisan politics and that 
she readily submitted to the personal and private interests of 
President Clinton and his partner in running the Department. If 
the Attorney General cannot stop the subversion of the Nation's 
laws by the President under whom she holds office, she must 
resign. The Attorney General did neither.''
    And there is something else you submitted, entitled 
``Criminal Laws Implicated by the Clinton Scandals, A Partial 
List,'' and the byline is Solitary, Poor, Nasty, Brutish, and 
Short. Did you write this article?
    Mr. Olson. I was a co-author of that.
    Senator Feinstein. And you go on and you list a whole 
series of crimes that you believe the President committed and 
the penalties for those crimes, and the crimes. You believe the 
First Lady, now Senator Clinton, committed and the penalties 
for those crimes. You do the same for Mr. Nusbaum, Mr. Hubbell, 
and Mr. Wright. And in the course of these articles, both of 
them together, I think you identify yourself very clearly as a 
very strong political partisan, not as someone who is reserved, 
temperate, even-handed. And I must say this concerns me, 
particularly in view of the private conversation we had. I 
hadn't read these articles before that conversation.
    Now, you are going to be the Solicitor General, and as 
such, you are going to have a big role in the policy of the 
Department. And I would like to know what kind of Department is 
it going to be. You set a tone in these couple articles that 
is, I wouldn't say are vicious, but something pretty close to 
it. Would you respond?
    Mr. Olson. Thank you, Senator Feinstein. Yes, I think that 
the two articles are hard-hitting. The second of the two 
articles that you mentioned talked about potential, not crimes 
that had been committed but the potential crimes that could 
arguably have been implicated by conduct which had been 
reported in the papers. And so that was an attempt to set forth 
things that should be considered and evaluated with respect to 
the conduct that was described there.
    I did that as a private citizen, as someone who was 
disturbed--who had served in the Justice Department for 4 years 
before, and who was concerned about the image of the Department 
and the actions of the Department of Justice and the importance 
of the Department of Justice as perceived by citizens 
generally. I did serve in the Department of Justice in the 
early 1980's for 4 years as Assistant Attorney General for the 
Office of Legal Counsel. I believed then and I believe now that 
when you accept a position in the Department of Justice, you 
put your partisan positions aside, your personal views aside, 
and attempt to serve the Department and the people of the 
American--the American people as even-handedly and as fairly 
and as openly as possible.
    I think that the individuals who served with me in the 
Department of Justice, some of whom served in high positions in 
the Clinton administration--Beth Nolan, who was a counsel to 
President Clinton, was hired by me and worked for me in the 
Office of Legal Counsel in the 1980's; Harold Coe, who was an 
Assistant Secretary of State for Human Rights in the Clinton 
Administration, was someone hired by me and worked for me in 
the Office of Legal Counsel. People that served with me in the 
Department at that time I think would tell you that I served 
fairly, honestly, and put aside any partisan impulses at all 
with respect to my service in the Department of Justice.
    I think you are very right to ask that question, especially 
because those articles are hard-hitting. They are things that I 
did believe, especially with respect to the first article, 
which was a critique of some things that I was disappointed in 
with respect to how the Justice Department was operated. But I 
believe also that those were statements as a private citizen, 
and--
    Senator Feinstein. Yes, if I might, what disturbs me about 
the first article is the lack of even-handedness. Now, you are 
somebody that is going to go into a major position in the 
Department and will hopefully evaluate things in an even-handed 
way. Why should I believe that you will do that when you don't 
in your writing?
    Mr. Olson. In the first place, as I said, I have served in 
the Department of Justice, and I believe that everybody who 
served with me of both political parties would tell you that I 
served in that way at that time, and so I have a record of 
demonstration at a high level in a position that is somewhat 
comparable to the Solicitor General's position in the 
Department of Justice.
    Secondly, what I was attempting to do was point out in that 
article the things that I felt had happened during that period 
of time in the Department of Justice that would cause people to 
be concerned. I mentioned in there the simultaneous firing of 
every United States attorney at the very beginning of the 
administration. I mentioned other specific incidents.
    I believe at the end of the article I said that the 
cumulative effect of these things taken together are cause for 
concern, and I felt as a citizen, having served in the 
Department of Justice, it was not inappropriate for me to draw 
that picture that I thought and bothered me because I do 
believe that the Justice Department is so important and for 
people to be able to understand that the Justice Department and 
its actions will be even-handed to serve all of the people.
    Senator Feinstein. Let me ask you, if I may, some specific 
questions. In 1986, you argued in the Supreme Court against a 
California law requiring employers to give up to 4 months of 
unpaid maternity leave. You contended that this California law 
should be struck down as inconsistent with Federal anti-
discrimination law. You lost 6-3.
    Today, almost 15 years later, there are even more women in 
the workplace, and we are perhaps even more aware of the 
dilemmas that working women face when they give birth.
    If the same case was to come before you as the Solicitor 
General today, what position would you recommend that the 
United States take?
    Mr. Olson. Well, I would have to recommend an opposite 
position since, as you point out, we did lose that case 6-3. 
The position that we were arguing on behalf of California 
Thrift was that there was an inconsistency between what was 
required by the Pregnancy Disability Act--which requires equal 
treatment for pregnancy with other disabilities, and there was 
an inconsistency with the requirement of equal treatment of 
pregnancy as a disability with the California statute which 
provided--required employers in California to provide 
additional benefits for pregnancy which were greater than the 
benefits received for other disabilities. For example, there 
would be a greater period of time off for pregnancy disability 
than for a heart condition or a broken limb or something to 
that effect.
    The employer in that case that we represented wanted to 
know which law to follow. The dilemma that the employer had was 
if it complied with the California statute which required it to 
treat pregnancy more favorably than other disabilities, then it 
might be in violation of the Pregnancy Disability Act. If it 
complied with the Pregnancy Disability act and treated the two 
disabilities equally, it would be violating the California law. 
The employer--and I only represented the employer in the United 
States Supreme Court--had taken that case all the way through a 
decision in the Ninth Circuit and asked me to represent--
present the briefs and argument to the United States Supreme 
Court.
    Justice Stevens, who was one of the 6 votes in the majority 
in that case, said that when the Pregnancy Disability Act was 
first passed and the history of the Pregnancy Disability Act 
was such that I believed then that the argument that was being 
made on behalf of that thrift was the correct argument, but 
that there have been other decisions since the enactment of 
that statute that causes me to change my view.
    It was a difficult case, and I can't quarrel with the 
outcome of the Supreme Court, and I fully accept it. The Court 
decided in an opinion, a quite intelligent opinion written by 
Justice Stevens, that there should be a greater accommodation 
to pregnancy under those circumstances than to other 
disabilities, and I do accept that.
    Senator Feinstein. Well, as you have pointed out, this case 
has been decided. But, since then, California Federal Savings 
and Loan v. Guerrera, the Family and Medical Leave Act has been 
passed and become law. It is a Federal law. And this Federal 
statute addresses the same problem as the California statute, 
but it goes further. And the Department of Justice plays a 
crucial role in ensuring that this law is enforced and defended 
against challenge in the courts.
    So if you were confirmed, will you defend this law against 
similar challenges to the one you made in Guerrera?
    Mr. Olson. Yes, I have no trouble saying that. It is a good 
question. I think our responsibility is to defend all acts of 
Congress when it is reasonable to do so unless it is clearly 
unconstitutional. And I would have no problem giving you my 
word on that.
    Senator Feinstein. Thank you. I wanted to ask you a 
question quickly about the Commerce Clause. Let me see if I can 
quickly put this in motion.
    Beginning in 1995, with U.S. v. Lopez, the Supreme Court 
has repeatedly struck down Federal statutes, holding that 
Congress lacked power under the Commerce Clause or Section 5 of 
the 14th Amendment to pass those laws. Congress generally 
relies on the Solicitor General to defend the constitutionality 
of its statutes.
    If the Solicitor General has an overly narrow view of the 
Commerce Clause or other basis for Congressional power to pass 
statutes, then he or she may not vigorously defend Federal 
statutes and Congress' power will erode even further.
    You suggested in an August 1995 speech that you have a very 
narrow view of the Commerce Clause and that the Supreme Court 
did not go far enough in U.S. v. Lopez. Specifically, you 
stated, and I quote, ``Lopez is surprising, mostly because of 
what we have come to expect from the Court's hand-off policy 
toward Congressional regulation of every aspect of our life. 
For anyone who cares that there be some limits on what Congress 
can do, it was a refreshing suggestion that there might be some 
meaning left in the original Constitution. But the narrowness 
of the decision and the fact that the Court unanimously 
approved a broad application of the Commerce Clause in a RICO 
case 3 weeks after Lopez makes both the cheering by 
conservatives and the lamentations of liberals a little 
premature.''
    Do you still agree with the statements you made in 1995 
that Lopez was too narrow and that the Court needs to 
aggressively police Congress' power to pass statutes pursuant 
to the Commerce Clause?
    Mr. Olson. Well, there was more, of course, that I said in 
that particular speech about the Commerce Clause and the 
context of the decisions. It was a surprise, the Lopez case was 
a surprise, because it had been the first time in 50 years that 
the United States Supreme Court had decided that the Commerce 
Clause had been exceeded in connection with an action of 
Congress.
    A great deal more has been said about the United States 
Supreme Court since the Lopez case, and I can't say that I 
would agree or disagree necessarily with those particular 
words. I would say this, that as I told you a moment ago, 
Senator Feinstein, it is the responsibility of the Department 
of Justice to defend acts of Congress, and unless they are 
clearly unconstitutional, especially in the area of exercise of 
its commerce power, which is a very broad power, in the scheme 
of things the United States Supreme Court has upheld in a 
number of cases a very broad exercise of both the commerce 
power and the Necessary and Proper Clause. And I think it is 
incumbent upon the Department of Justice to defend those 
exercises of power. It is exceedingly unlikely in my judgment 
that there would be a case in which a properly documented 
exercise of the commerce power--which the Congress has 
determined to do since the Lopez case, because one of the 
problems with the Lopez case is the Court did not find 
sufficient expression of Congressional intent with respect to 
how the presence of a gun in the vicinity of a school related 
to commerce. That may well have been. The Congress is doing a 
great deal more--
    Senator Feinstein. Because the gun came across State lines.
    Mr. Olson. But that wasn't a part of the proof in the case 
as a requirement with respect to that particular prosecution or 
that particular individual, at least as I recall it. Now, I 
could be wrong about that.
    But to answer your fundamental question, I do think that it 
is our responsibility in the Justice Department, whatever our 
views as to what the Supreme Court should or shouldn't do under 
the Commerce Clause as a private citizen, is to defend the 
actions of this body.
    Chairman Hatch. Senator, your time is up.
    Senator Feinstein. I believe my light is on. Thank you.
    Chairman Hatch. We will turn to Senator Specter, and I am 
hopeful that we can then turn to Senator Feingold. We are going 
to have to break.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman. I join my 
colleagues in welcoming you men to these confirmation hearings. 
You both come with very strong academic and professional 
credentials. In view of the limited time, I will not review 
them.
    Let me start with you, Mr. Thompson, and I thank you for 
coming by and meeting with me, the customary courtesy call. I 
would like to put on the record some of the concerns that I 
raised with you at our private meeting about Congressional 
oversight. The law is that Congressional oversight takes 
precedence over criminal prosecutions because the interests of 
having legislation or Congressional input dominates over a 
prosecution in a specific case. That can raise some problems. 
It did in Iran-contra when the Poindexter and North cases were 
prejudiced by what had happened. But my own view is that the 
Congressional oversight is sufficiently important that there 
ought to be no doubt about its preeminence. And I would like 
your views on that subject generally for the record.
    Mr. Thompson. Yes, sir. And thank you for seeing me, 
Senator Specter.
    As I mentioned to you, and I made a statement in my 
introductory remarks, in order for the public to have 
confidence in the Department of Justice and all the confidence 
that we want the public to have, we will need to be as open to 
the public as we can, taking into consideration legitimate 
investigatory concerns like grand jury secrecy or sensitive law 
enforcement materials. And as I said to you when we met, I 
think it is very important--an important function of 
maintaining the confidence that the public has in the 
Department of Justice is for Congress to have confidence in us. 
And I certainly appreciate and respect the oversight function 
that this body has for the Department of Justice, and I pledge 
I will work with you, Senator, work with you vigorously to work 
out any kind of problems that we will have so that you can 
fulfill your important oversight function.
    Senator Specter. We had some fairly divisive issues which 
we confronted in the course of the past several years, and we 
were compelled to subpoena a line attorney in one situation. 
And I think that should not be undertaken lightly. I have had 
some experience as a prosecutor myself, but there are some 
occasions where the Congress needs access to the information. 
And, again, at least as I read the law, it is clear that we can 
subpoena line attorneys if we decide that it is a matter of 
paramount interest.
    Do you have any problem with that, Mr. Thompson?
    Mr. Thompson. Well, if we get into a situation where you 
feel that you need that kind of information, I think we would 
need to approach that situation, look at it on a case-by-case 
basis, work creatively to try to resolve any issues that we 
both may have.
    As I mentioned to you, I have a concern--and I know that 
you appreciate it as a former prosecutor--with protecting the 
deliberative process. As someone in a leadership role in the 
Department, we will need to be able to make decisions and have 
good and honest input from all different lawyers, all the 
different lawyers on a case or an investigation, whatever kind 
of position they may be. And we want to make certain that we 
will have the freedom for lawyers to inform us of their 
positions.
    So when we get to a situation where you think that you need 
that kind of information, I can't tell you how we will come out 
until we look at the specifics on that as a case-by-case basis. 
But we do need to work together, make sure that you have all 
the information that you need to fulfill the oversight 
function, and make certain that we can do everything that we 
can to protect the important deliberative function that is 
essential, I think, to having an effective investigation and 
prosecutive efforts.
    Senator Specter. I appreciate the need for your 
deliberative process, and I hope you appreciate the need for 
our deliberative process so we can figure out what the facts 
are and decide what the public policy should be. And I think 
there ought to be an accommodation wherever that is possible.
    Very briefly, let me review for the record the concerns 
that I had expressed and hope you will undertake in the new 
administration, and I have talked informally to the Attorney 
General about this on the espionage cases. Last year, I 
undertook some of the oversight, chairing the subcommittee, 
which got very deeply involved in the Wen Ho Lee case and urge 
you to review closely the procedures for the applications for 
warrants under the Foreign Intelligence Surveillance Act, and 
take a close look at the monitoring of those cases as they 
proceed.
    In that particular situation, the matter was delegated--the 
matter was sent personally by the FBI Director to the Attorney 
General, who delegated the matter to an individual who had no 
experience in the field, and there was no follow-up. The 
warrant wasn't granted. And then the FBI sat on the case for 
about 16 months without acting. And then there were polygraphs 
administered by the Department of Energy which were 
questionable as to conclusions, and then finally, there was a 
warrant executed in April 1999. And, again, the Federal 
authorities sat on the case until Dr. Wen Ho Lee was arrested 
in December, and then suddenly he was Public Enemy No. 1 and 
had to be shackled. I had expressed publicly my concern as to 
whether the shackles were imposed to coerce a guilty plea, 
where he was at liberty for months and then suddenly was taken 
into custody. And those cases are of enormous importance.
    Then in the Dr. Peter Lee case, there was a failure of 
communications between Main Justice and the prosecutors to the 
acceptance of a guilty plea, and I won't dwell on it at length. 
But I would ask for your commitment to review the findings and 
take a look at how we can sharpen up the Department of Justice 
practices on these very important espionage matters.
    Mr. Thompson. Senator, I can assure you that I will review 
your concerns with seriousness.
    Senator Specter. The issue of independent counsel is no 
longer before us because we do not have a statute. But 
legislation is pending, which a number of us have cosponsored, 
to bring it back. My own view is that something will occur 
which will require an independent counsel statute at some time 
in the future. And I have a grave concern as to the finality of 
the Attorney General's decision not to appoint independent 
counsel.
    Some district courts have ruled that there could be a 
mandamus action to compel the Attorney General to act. In 
general, the prosecuting attorney, whether it is a Philadelphia 
DA or the Attorney General of the United States, has broad 
discretion, but where the discretion is abused, there is 
authority for the court to take a stand on a mandamus action. 
And I didn't have a chance to discuss it with you in our 
private meeting, but I would be interested in any observations 
you have on that subject?
    Mr. Thompson. Senator, I have not had an opportunity to 
review your legislation. As you know, as I understand it, the 
procedures now call for the appointment of a special counsel in 
certain situations where the Attorney General deems it 
appropriate to go that way as opposed to someone in the 
Department of Justice.
    I have been associated with the Department of Justice for 
many years, either as a prosecutor or as a defense lawyer, and 
there are many dedicated and hard-working people in the 
Department. And I am confident, based upon my experience with 
the Department, that the majority of the matters that will 
appear before the Department of Justice can be handled by the 
Department's career employees.
    I have not had a chance to review your legislation, and I 
certainly would look forward to doing so and talking to you 
about it because I was an independent counsel at one point in 
time, as you know, a replacement independent counsel for Judge 
Adams from Philadelphia. And I know you know him, too.
    Senator Specter. Thank you very much, Mr. Thompson.
    Mr. Olson, I appreciated the opportunity to meet with you 
privately, and I express my regret at leaving you in the 
reception room for a long time when a vote was called 
midstream. Your wife is smiling behind you. She apparently 
heard about that. I couldn't leave the vote, and by the time I 
had come back, you were AWOL. You had gone.
    [Laughter.]
    Senator Specter. And I understand--
    Mr. Olson. I think she is smiling because I told her what a 
good time I had standing there meeting all the people that came 
by. It is a fascinating thing to stand outside the chamber 
there where votes are taking place because, as you know but a 
lot of the citizens don't know, it is such a fascinating flow 
of activity, and it makes you feel a part of the excitement of 
what is going on.
    Senator Specter. Well, it is a tremendous place if you have 
a few minutes. I am not sure whether it was Senator Dole or 
Senator Danforth who called it ``Gucci Gulch'' at one point to 
see all of the lobbyists there.
    Mr. Olson, I would like to take up with you a question 
which we did not have an opportunity to talk about, and that is 
the question of affirmative action. And let me read you a 
couple of my questions to Attorney General Nominee Meese in 
1985, January 30th. I am beginning to think I have been around 
here a little too long, perhaps, going back to this transcript.
    I asked the Attorney General--what I am going to ask you 
for is your comments and your views as to whether his views 
would be your views or how you would respond to them. My 
question was: ``What role, if any, do you think it appropriate 
for affirmative action in the enforcement of civil rights laws, 
Mr. Meese?''
    ``Senator, I think affirmative action in the enforcement of 
the civil rights laws is a very important and proper remedy for 
anyone who has been the victim of discrimination. I think in 
addition to that, and quite apart from those who have been 
victims of discrimination, I think affirmative action is highly 
desirable public policy to extend recruitment efforts and 
outreach to bring more minorities and women into the job force 
and into contention for jobs that are available.''
    And then a little farther down, I said, ``You affirm it as 
a principle. Do you try to enforce it? Do you look for 
situations where you can take action to bring a black or a 
Hispanic or a woman into the process where there has been 
steady discrimination in the past?''
    Mr. Meese: ``Yes, sir.''
    How would you--do you agree with Attorney General Meese?
    Mr. Olson. Let me put it this way: The term ``affirmative 
action'' means something different to almost everybody that 
uses that term, and to some people, it embraces the concept of 
recruitment, outreach, as Attorney General Meese apparently 
said during that testimony. To other people it means giving an 
advantage of one form or another to a person based upon the 
color of their skin or other conditions of that sort.
    Since 1985, when Mr. Meese made those statements, the 
United States Supreme Court has made it clear in the Adarand 
decision and the Croson decision that when Government takes 
race into consideration in making its decisions, those policies 
or those plans must be subject to strict scrutiny. This is a 
very, very important subject because race and equal opportunity 
is so important in this country, and the elimination of 
disadvantages that people have suffered as a result of racial 
discrimination is so important in this country.
    What the Supreme Court is saying is that because the 
decisions that can be made that might benefit one person could 
conceivably result in the discrimination against another person 
because of that person's race, the facts of that particular 
circumstance have to be looked at very carefully. For remedial 
purposes, which is something else that Mr. Meese mentioned in 
that statement, for remedial purposes the Supreme Court may 
regard that in one fashion. For other purposes, the Supreme 
Court might regard it differently. What the Court is saying is 
that we must look for a compelling governmental interest if 
race is going to be taken into consideration in governmental 
decisions and whether the governmental decision is narrowly 
tailored to accomplish the compelling governmental 
justification.
    So it is an extremely important but also a very complicated 
and very difficult subject.
    Senator Specter. We have two decisions from the United 
States District Courts in Michigan involving the University of 
Michigan which have received a fair amount of comment. Gratz v. 
Bolinger involved the university's use of race in its admission 
process in the undergraduate school, and on December 13th, the 
trial judge ruled without trial and granted summary judgment, 
finding that the pursuit of educational benefits of diversity 
is a compelling governmental interest and that the university's 
current admissions policy is fully constitutional.
    Would you agree with that decision, that diversity is a 
compelling governmental interest which would justify the 
university's admissions policy?
    Mr. Olson. Senator, that case may well percolate up to the 
Office of the Solicitor General.
    Senator Specter. Well, it is very relevant.
    Mr. Olson. Yes, it is, and there is another decision, the 
other decision that you mentioned, the district court--a 
separate district judge came out the opposite way with respect 
to the law school admissions program.
    Senator Specter. How could that happen in one State within 
4 months? You don't have to answer that question, Mr. Olson. It 
happens all the time. But--
    Mr. Olson. Well, what I think is important about that is 
that the facts of the particular case are exceedingly 
important. The policy itself, the past history of the 
institution applying the policy, the Supreme Court tells us is 
exceedingly important, what other alternatives have been 
considered, how far the program goes. In other words, there is 
a wealth of factual considerations both with respect to the 
implementation of the policy as being implemented plus the past 
history, what remedial circumstances are being taken into 
consideration either in the specific institution or in the 
larger university community or in the State educational system 
itself.
    There is, as you know, another case in the Eleventh 
Circuit, and there is another case in the Ninth Circuit. Those 
are very important cases, and I couldn't begin and it wouldn't 
be prudent to prejudge how the Department will review those or 
even how I would feel about them, because I don't know enough 
about the facts or the law with respect to as it was applied in 
that particular district court decision.
    Chairman Hatch. Senator, your time is up.
    Senator Specter. May I ask one more question?
    Chairman Hatch. Will this be your last one? Then we will do 
that.
    Senator Specter. One question. Do you agree with Justice 
Powell in Bakke that race could be a ``plus'' factor in 
university admissions?
    Mr. Olson. Part of what Justice Powell said in the Bakke 
decision that received four other votes and received the 
support of the Court is that under some circumstances it may be 
appropriate to take into consideration a person's race. That 
teaching of Justice Powell and of the United States Supreme 
Court in the Bakke case has been subject to further analysis 
and refinement, and from the Adarand decision and the Croson 
decision, and I wouldn't want to isolate out the statement of 
one Justice in a particular case without spending a great deal 
more time looking at how the law has been affected by 
subsequent decisions and the application of the strict scrutiny 
standard which wasn't being applied in that case.
    Senator Specter. Before I came today, I knew you were a 
good lawyer, Mr. Olson. After hearing your testimony, I know 
you are a very good lawyer.
    [Laughter.]
    Mr. Olson. Thank you, Senator Specter.
    Chairman Hatch. Well, coming from one good lawyer to 
another, I think that is a good compliment.
    Mr. Olson. Thank you, Senator.
    Chairman Hatch. Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman. Let me 
congratulate both the nominees.
    As I said during the committee's consideration of the 
Attorney General nominee, I believe there are some general 
principles that should guide our consideration of cabinet and 
sub-cabinet-level nominees. First, the Senate should consider 
whether the person is qualified to do the job. Second, the 
Senate has had a history of giving deference to the President's 
cabinet and sub-cabinet choices. With rare exceptions, the 
Senate has given the President broad leeway in choosing 
subordinates.
    I hasten to add, as I did during the Attorney General 
confirmation process, that this level of deference does not 
necessarily apply to lifetime Federal judicial appointments.
    The Senate has for the most part avoided rejecting the 
President's executive branch nominees because of their ideology 
alone. But the Senate may certainly examine whether the 
nominees' views might prevent them from carrying out the duties 
of the offices to which they have been nominated.
    Today we consider two nominees for two very different 
important positions in our Federal Government. The Deputy 
Attorney General is the second in command at the Justice 
Department, if you will, the chief operating officer. The 
Deputy Attorney General oversees the day-to-day administration 
of the Justice Department. The Solicitor General is the 
Nation's chief advocate, representing the views of the U.S. 
Government before the Supreme Court.
    Given the role these two nominees will play in shaping and 
enforcing the law, I am particularly interested in whether the 
nominees will be able to carry out the promises that Attorney 
General Ashcroft made to this Committee and our country in a 
variety of areas, including enforcing civil rights laws, 
protecting women's reproductive rights, and continuing the 
prior administration's commitment to a thorough review of the 
Federal death penalty system. And I am pleased that that is an 
area that has already been talked about.
    Mr. Chairman, I also would like to echo the concerns of the 
ranking member, Senator Leahy, in expressing my concern with 
how this hearing was scheduled. These are enormously important 
positions, yet both of these nominees were scheduled to appear 
at the same time on the same day in one hearing. And this 
hearing was scheduled on one of the busiest days of the 
session, what was--what we had hoped would be the last day of 
votes on the budget resolution. It may not be, but certainly 
one of the last 2 days. And I understand that the Senate 
Judiciary Committee has never before today held a joint 
confirmation hearing for these two very important positions. I 
am concerned about that. I am grateful that the Chairman has 
allotted us a 15-minute period, but I did want to note my 
concern.
    Mr. Chairman, I was pleased with the bipartisan way in 
which you and Senator Leahy organized and scheduled the 
Attorney General confirmation hearing. I hope future 
confirmation hearings are not held in such a rushed manner and 
instead follow the model that you both ably created in January.
    To my questions, let me just first ask a question of Mr. 
Thompson. You wrote an article entitled ``Dealing with Black-
on-Black Crime.'' You emphasized that black Americans can 
support tough anti-crime measures. You said that blacks do not 
see strong law enforcement efforts as antithetical to notions 
of individual civil liberties. Yet certain tough anti-crime 
measures, in fact, have been antithetical to individual 
freedom. Let's take, for example, racial profiling.
    Racial profiling was encouraged as a tough anti-crime tool 
by Federal and State law enforcement officials, and I am sure 
many offenders have been stopped or thwarted. But law 
enforcement has gone too far. Blacks, Latinos, Asians, and 
other Americans of minority ethnic or racial backgrounds in 
Wisconsin and across this country have been profiled one too 
many times, and they are, I think with justification, fed up. 
Untold numbers of law-abiding Americans have been violated. 
Some of them are victims of racial profiling more than once. I 
understand that racial profiling has been so pervasive in the 
black and Latino communities that some have come to expect to 
be victims of racial profiling and don't even understand it is 
a violation of their rights. They just believe it is a fact of 
life as a black or Latino in America. It is outrageous, it is 
unacceptable, and it has to be eliminated.
    So, with respect, Mr. Thompson, tough anti-crime measures 
are well and good to protect the American people, but it is a 
violation of fundamental American freedom and equality if the 
police act in a racially biased manner. In his address before 
Congress, President Bush pledged to end racial profiling in 
America. Two days later, Attorney General Ashcroft sent 
Congress a letter noting that he believes that racial profiling 
is unconstitutional. He also said that he supports data 
collection legislation sponsored by Representative Conyers and 
myself last year and that he would begin to study outlining 
that bill if Congress did not act within 6 months.
    I, of course, welcome this interest from the President and 
Attorney General. Representative Conyers and I are currently 
preparing our legislation and expect to introduce it soon after 
the April recess.
    Mr. Thompson, don't you agree that tough anti-crime 
measures should not be used in a racially biased manner? Do you 
agree that racial profiling is unconstitutional and should be 
eliminated?
    Mr. Thompson. Not only do I believe, Senator, that racial 
profiling is unconstitutional, it is just simply wrong. When I 
am talking about tough anti-crime measures, I am talking about 
measures that are going to be administered fairly and 
impartially and without any hint of discrimination whatsoever.
    As I said in my opening statement, it is very important for 
the Department of Justice to maintain the trust and confidence 
of all of its citizens, and certainly you can't ever go about 
achieving that result if you are going to support crime 
measures that are not administered fairly or impartially or 
with some kind of discriminatory purpose. So I agree with you, 
and I was really gratified that President Bush and Attorney 
General Ashcroft indicated that racial profiling would be one 
of the top objectives of the Department of Justice to eliminate 
and to stamp out ,and I am pleased to be a part of that effort, 
Senator.
    Senator Feingold. And I take it you share the 
characterization of racial profiling as unconstitutional?
    Mr. Thompson. It is certainly wrong. I haven't had a chance 
to discuss the constitutionality of it with my colleague to my 
left and the other career people in the Department of Justice, 
but I can tell you with every amount of fervor that I have that 
it is certainly wrong. I have been the victim of that kind of 
activity. It is insulting, it is degrading, and it is wrong.
    Senator Feingold. I appreciate that answer. I would just 
note that the word ``unconstitutional'' I am taking from the 
Attorney General. That is--
    Mr. Thompson. Well, I agree with anything the Attorney 
General--
    Senator Feingold. That is what I thought.
    [Laughter.]
    Senator Feingold. I want to get that clear.
    Mr. Thompson. Thank you.
    Senator Feingold. All right.
    Senator Leahy. You notice how we make sure that we give you 
the total opportunity for any redemption, not that you--
    Mr. Thompson. And I appreciate that. I would hate to get 
off to a bad start with my new, hopefully, boss.
    Chairman Hatch. Well, let's keep that redemption all the 
way through the hearing.
    Senator Feingold. Let me just say I have certainly heard 
very, very positive and wonderful things about you from a 
number of people, so I look forward to working with you.
    Mr. Thompson. Thank you, Senator.
    Senator Feingold. Let me turn to Mr. Olson. This was really 
initiated by Senator Feinstein, but I just want to follow up. 
In 1982, when you were head of the Office of Legal Counsel in 
the Reagan Justice Department, you wrote the following in the 
Harvard Journal of Law and Public Policy: ``The laws that we 
disagree with, the policies that we do not like, once they are 
implemented into law must be enforced by the President and the 
Justice Department, notwithstanding our antipathy toward them. 
We in the Justice Department must also defend the 
constitutionality of Congressional enactments, whether we like 
them or not, in almost all cases. We are the Government's 
lawyer. So even if we disagree with the policies of law and 
even if we feel that it is of questionable constitutionality, 
we must enforce it and we must defend it.''
    Do you still hold that view today?
    Mr. Olson. Yes, I do, and there are, of course, 
circumstances--and they were mentioned by Attorney General 
Ashcroft and they have been mentioned by other people in the 
Department of Justice from time to time, for example, 
situations where the executive power is involved or where 
something is clearly unconstitutional or there is no reasonable 
defense because--that can be mounted with respect to a statute 
because we have an obligation to the courts, especially the 
United States Supreme Court, to make arguments that we believe 
are legitimate arguments. But I strongly believe as a matter of 
separation of powers and the responsibility of the Department 
that there is a heavy burden of presumption that the statute is 
constitutional. We must be vigorous advocates for the Congress 
when we go before the courts.
    Senator Feingold. In that spirit, I assume you would agree 
that if there is a good-faith argument that a particular 
Congressional statute is constitutional, the Solicitor General 
must defend that statute--
    Mr. Olson. Yes, I do.
    Senator Feingold.--even if he--let me just finish the 
question, even if he personally might reach another conclusion 
were he sitting on the Court himself?
    Mr. Olson. Yes.
    Senator Feingold. And I would like to follow with a more 
specific example. I am sure you are aware that the Senate just 
a few days ago passed what I regard as a significant piece of 
legislation concerning campaign finance reform. I am sure you 
are also aware that--
    Senator Leahy. Which one was that, Senator?
    [Laughter.]
    Senator Feingold. I am sure you are also aware that there 
are heated disagreements in the legal community and in the 
Senate about the constitutionality of that particular statute, 
and, of course, members of this Committee disagree on it.
    When Attorney General Ashcroft appeared before the 
Committee in January, I asked him about whether he would defend 
the McCain-Feingold bill in court if it ended up being enacted. 
This is what he said: ``While there are lots of things that I 
disagree with, I believe it would be the responsibility of the 
Attorney General to defend it vigorously in court. I disagreed 
in policy on the bill, but it would be hard for me to imagine 
that the bill does not survive the kind of scrutiny which would 
provide an instruction to the Solicitor General to defend the 
bill in every respect.''
    Have you been involved in any discussions concerning the 
constitutionality of the various campaign finance reform 
proposals?
    Mr. Olson. No, I have not, except one member of this 
Committee asked me about it when I was visiting. I have not 
studied the various provisions, and, of course, I don't know 
what the bill will look like when it is finally enacted, which 
I assume it will be. But I assume you have another question. I 
won't rattle on.
    Senator Feingold. Fine. Well, let me just--it sounds like I 
know the answer to the next one, but let me just put it on the 
record. Have you participated in any legal strategy discussions 
concerning possible challenges to those proposals?
    Mr. Olson. No, I have not.
    Senator Feingold. Have you formed a personal opinion 
regarding the constitutionality of the bill that we passed on 
Monday night or any predecessor bill that the Congress 
considered?
    Mr. Olson. No, I have not. I have spoken from time to time 
on the issue of campaign financing and the First Amendment 
implications and the Buckley v. Valeo decision, but I have not 
studied the provisions of your bill. And I don't have an 
opinion with respect to the constitutionality of any portion of 
it.
    Senator Feingold. Do you have any doubt that as Solicitor 
General you will vigorously defend a campaign finance reform 
statute that Congress passes and the President signs?
    Mr. Olson. I have to look at the statute that is passed, 
Senator, but I will approach it with that same presumption that 
I described to you, that there is a heavy presumption that it 
is constitutional. If there is a good-faith defense that could 
be mounted for it, it is the responsibility of the Justice 
Department and the Solicitor General to put the very, very best 
defense forward, irrespective of any personal views that any of 
us might have. And I think that that is--I can't stress that 
enough, that Congress depends upon the Justice Department to do 
that, to be its most vigorous advocate with respect to the laws 
that is passes.
    Senator Feingold. Let me just take one other aspect of it. 
Suppose Congress would have passed the McCain-Feingold bill as 
it stands now and the President signs it, but says that he has 
grave reservations about the constitutionality of certain 
provisions. What in that situation is your view of the 
responsibility of the Solicitor General when those provisions 
are challenged?
    Mr. Olson. I think my answer would be the same. I would 
have to look at the provisions, but the fact that the President 
might have expressed some doubts doesn't alleviate the Justice 
Department from its responsibility to do everything it can 
within reason to defend the constitutionality of the statute.
    Senator Feingold. I appreciate that answer. On one other 
quick matter, Mr. Olson, you have a distinguished record as a 
Supreme Court advocate. Indeed, in recent times you made the 
most Supreme Court appearances of anyone ever nominated to the 
post of Solicitor General. You also have a long history of 
commenting on legal issues in the press. Your wife, who I see 
here and congratulate her as well, is also a well-known legal 
commentator with strong views on many of the issues that may 
end up before the Court.
    I would like to know what standards you will apply in 
determining whether you should recuse yourself from 
representing the United States before the Court or from 
participating in discussion of the Government's position in 
particular cases?
    Mr. Olson. Well, each--I have consulted with previous 
Solicitors General and with the Department of Justice with 
respect to that very question. Obviously if it is a case that I 
have been involved in or it involves a client, recusal is a 
relatively easy question. Other people--then the circle gets 
wider, of course, with respect to issues. I will give you this 
example that someone gave to me that we don't want the 
Assistant Attorney General for Antitrust to be recused from 
antitrust issues simply because they have handled cases and 
they have ideas with respect to the antitrust laws.
    What I have committed to do is with respect to any area 
where a question arises in my mind or anybody--in the minds of 
anyone in my office, I will consult with the ethics officials 
in the Department of Justice and look at that very carefully. 
On the one hand, you want to make sure that you are not 
participating in a case that you should not participate in. On 
the other hand, it is important not to evade the responsibility 
that both the President and your Committee and the Senate have 
placed in me, if I am confirmed, to do the job of the Solicitor 
General.
    Senator Feingold. Thank you, and I congratulate both of 
you.
    Thank you, Mr. Chairman.
    Chairman Hatch. Well, thank you. I appreciate my 
colleagues' concerns. Let just make this statement, because I 
think I need to make a complete record, but I do believe that 
my colleague, Senator Feingold, shares my view that we need to 
move on these agency nominees as quickly as possible. This is 
what he argued when we had a Democrat in the White House, and 
that is what I did as Chairman during that time.
    In fact, if we were to follow the model of Clinton nominees 
for these two positions, we would be reporting them out of 
Committee in less than a week from today or even by tomorrow 
and through the entire Senate within a day or two thereafter.
    I firmly believe that scheduling this hearing for today is 
perfectly appropriate. Ted Olson's nomination was received by 
this Committee on March 13th. Larry Thompson's was received on 
March 22nd. Notably, we received the public notice or intent to 
nominate on February 14th, 50 days ago. Now, given that Mr. 
Olson's record is quite public, we can all agree, it seems to 
me, that there has been more than sufficient time to review his 
record.
    Let me also add that the scheduling of this hearing is 
hardly out of line with the way the Committee has proceeded in 
the past. In fact, I recall that I tried my best to cooperate 
with moving forward on many of President Clinton'S nominees at 
an even quicker pace. For example, President Clinton's first 
nominee for Deputy Attorney General had his nomination hearing 
just over 1 week after he was nominated. He actually had his 
hearing, was reported by the committee, and was confirmed by 
the Senate within 3 weeks of his nomination.
    And this record was broken by President Clinton's second 
nominee for the position the following year, one of the great 
people who served--not that the others are not, but Jamie 
Gorelick was confirmed by the Senate two and a half weeks after 
nomination.
    With respect to the Solicitor General nominees, I think the 
record for movement of nominees is quite similar. For example, 
during my chairmanship President Clinton's last nominee for the 
Solicitor Generalship was confirmed by the entire Senate 
approximately 5 weeks after his nomination. Notably, he was 
actually confirmed by the Senate within 48 hours after his 
hearing. Drew Days was confirmed a week after his hearing.
    Now, in this instance, I know my colleagues can appreciate 
that we are coming up on a 2-week recess. Thus, having this 
hearing before the recess, it seems to me, will accommodate 
members' ability to submit questions and review the answers to 
these questions in an orderly manner. In contrast, President 
Clinton's two Solicitor General nominees were moved through the 
Committee and the Senate right after their hearings.
    Now, is putting the Deputy Attorney General and the 
Solicitor General on the same panel, is that unprecedented? You 
know, placing more than one significant nominee on the same 
panel is hardly unprecedented.
    I can recall a number of times during the Clinton 
Administration, when in order to move judges, I have had panels 
for six and more judges, including District and Circuit Court 
Judges. I did not hear any complaints from the other side in 
those instances. Having more than one significant nominee in a 
hearing is also not uncommon. For example, Charles Fried shared 
the hearing with a nominee for Assistant Attorney General for 
the Office of Legal Policy. And in fact, Deputy Attorney 
General nominees have even shared their hearing with District 
and Circuit Court Judges in the past.
    So, I just want to make the record clear that we are not 
trying to do anything inordinate here. We are trying to get 
this administration some people down at Justice so that the 
American people will benefit from having people at Justice.
    I think you have heard two excellent people here today so 
far, who basically have indicated they are going to uphold the 
law, they are going to enforce the law, and they are going to 
do what is right. So I have been very impressed with the 
hearing thus far.
    It has been requested we break. I would like to break--we 
are going to break for 1 hour. We will recommence here at two 
o'clock sharp. And I hope that--I think we will start with 
Senator Sessions when we get back. I hope we can get--I expect 
to get through this hearing before the end of this day. So let 
us hope that we can do that. With that, we will recess until 
two o'clock.
    [Luncheon recess at 1:02 p.m.]
    AFTERNOON SESSION [2:01 p.m.]
    Chairman Hatch. We will turn to Senator Schumer, and 
Senator Sessions will be after Senator Schumer.
    We want to move ahead here as rapidly as we can this 
afternoon. I intend to finish this, and hopefully, we can 
finish it before 5, 5:30.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman. I want to thank 
both of our witness for being here. And I guess I have a few 
questions.
    The first question I have is to Mr. Thompson. And I have 
met you, Mr. Thompson, and I am impressed. But I am very, very 
concerned with the Justice's Department role in selection of 
judges, where I think we are headed toward a donnybrook if 
things do not change. And from what I understand, there is not 
going to be--in the past the vetting of judges and the working 
of judges has been with an associate attorney general, but as I 
understand it, the administration does not intend to fill that 
position. So I am asking you, since you are the closest one to 
the associate, one step higher.
    What do you think the role is that senators should play in 
the process? I think there is a feeling on our side right now 
that there is very little consultation, real consultation, and 
not even touching base. When there is touching base, we get 
listened to, yessed, and then, at least in my situation, read 
in the newspapers that none of my suggestions are being taken 
into account at all, and I had tried to be very fair and very 
moderate about them. I am not the only one who feels that way. 
And our poor Chairman here, who is going to have to deal in a 
9-9 Judiciary Committee, is going to have a lot of trouble in 
getting the administration's nominations through if there is 
not some kind of give and take and back and forth.
    One other point I would make, which I have made to the 
chairman, we are in new territory a lot of times. Seven of the 
nine Democrats on Judiciary Committee come from states where 
there are two Democratic Senators. And for us in New York, this 
is the first time that has happened since Lyndon Johnson, where 
there are two Democratic Senators and a Republican President, 
or the converse. So there will be a choice. You will either 
have to work with someone of the opposite party or not work 
with the Senate at all in New York State and many other states.
    And so I would simply like to know what is your view? Where 
do you think we are headed in this direction? I have to tell 
you, we have been off to an inauspicious start in this regard. 
But I can tell you, speaking only for myself, I am not going to 
be rolled over on this.
    Mr. Thompson. Senator, I understand--
    Senator Schumer. No disrespect to you, who has nothing to 
do with it so far.
    Mr. Thompson. Senator, I understand your concern. I have 
not had an opportunity to discuss with Attorney General 
Ashcroft exactly the precise role that the Department will play 
in the judge selection vetting process. Obviously, the ultimate 
decision is the President's. And I understand your concern. My 
home state has two Democratic Senators as well. But, Senator, I 
am a trial lawyer, and I recognize the importance in judge 
selection, to have a judge, who not only may share the 
political views of the President, but a person who is a good 
legal scholar, who is fair, and is impartial. And I would 
submit to the Senator that lawyers throughout the country, that 
is the kind of input that they are going to be giving the 
President, and I certainly pledge to you that whatever role 
Attorney General Ashcroft decides that we will have in this 
process, that I have worked with members of the opposite party 
all of my life in a cooperative effort, and I pledge to do that 
with you, Senator.
    Senator Schumer. Well, just if you could elaborate. What is 
your feeling as to the role of the Senate and Senators from the 
states of the judges? What is the appropriate role there?
    Mr. Thompson. Well, obviously, beyond the advise and 
consent, I would defer to the President. It is the President's 
decision, and whatever role that the President, and whatever 
input that he chooses to use and take, I would have to defer--
it is his decision. I would have to defer to how he would want 
to handle that process. But what I was pledging to you is: 
whatever role we have--and there will be a role, I am certain, 
of the Department of Justice--we will work with you in a 
cooperative manner.
    Senator Schumer. OK. Well, I appreciate that very, very 
much.
    My next few questions are for Mr. Olson on the issue of Roe 
v. Wade and the issue of choice. Attorney General Ashcroft 
stated during the course of confirmation hearings, that he, 
quote, ``accepts Roe and Casey as the settled law of the 
land'', and he will, quote, ``follow the law in this area.''
    ``A'', do you agree that Roe and Casey are the settled law 
of the land, and will you similarly follow those decisions in 
the abortions rights area?
    Mr. Olson. I read the testimony of former Senator Attorney 
General Ashcroft, and I have no quarrel with his testimony. The 
Supreme Court has decided those cases. They made it very clear 
last term, in another decision, that they regard those cases as 
the law of the land, and only the Supreme Court can decide 
whether something is settled or not, but that those decisions 
are the law of the land. I accept them as that, as did Attorney 
General Ashcroft.
    Senator Schumer. Now, Attorney General Ashcroft further 
stated during his confirmation hearings that--this was in 
response to questions from me--that, quote, ``I don't think it 
could be my agenda to seek an opportunity to overturn Roe.'' 
Mr. Olson, do you believe it could be your agenda to seek an 
opportunity to overturn Roe?
    Mr. Olson. It is not my agenda to seek an opportunity to 
overturn Roe. And I will also say what the Attorney General 
said, is that the Solicitor General has a very important 
responsibility to consider all of the cases that the Solicitor 
General is bringing to the United States Supreme Court. It does 
not do the government any good to bring cases to the Supreme 
Court that the Supreme Court has said, ``We have decided those 
issues'', especially if they are issues as fraught with 
controversy and emotion as the issues involved in those cases.
    Senator Schumer. Right. And how about an agenda to cut back 
on Roe, if not overturn it, to cut it back in one or another?
    Mr. Olson. I do not have any agenda with respect to that 
subject or any other substantive subject. My principal agenda 
is to make sure that the office runs effectively and 
efficiently and represents all of our citizens and the 
Government properly.
    Senator Schumer. OK, thank you. Let me ask you this one, 
all along the same line. Recognizing the Supreme Court has 
indicated it does not wish to reconsider Roe, the in his 
confirmation hearings--this was in response to Senator 
Feinstein's question--said, quote, ``I do not want to devalue 
the currency of the Solicitor General of the United States by 
taking matters to the Supreme Court on a basis which the 
Supreme Court has already signaled we don't want to deal with 
and we're unwilling to deal with.''
    You agree it would--you may have answered this last time, 
but that it would devalue the currency of the office to request 
the Court to reconsider?
    Mr. Olson. That was the point that I believe I was making, 
and I had read that testimony.
    Senator Schumer. OK. And then just on a related issue, 
which is the issue of the FACE law. I wrote the FACE law in the 
House, and I feel very strongly about it. Do you think it is 
constitutional?
    Mr. Olson. I have not read the statutes. I did read the 
testimony. I have not studied the statutes. I have read the 
statutes over. I agree that when people are exercising 
constitutional rights, they have to be protected by the laws of 
the United States, that those statutes are intended to do that, 
and I agree with Attorney General Ashcroft, when he said that 
people who are exercising their constitutional rights have to 
be free from intimidation or coercion in connection with 
exercise of those constitutional rights.
    Senator Schumer. Will you seek an opportunity to argue to 
the Supreme Court that FACE is unconstitutional or that its 
scope should be limited?
    Mr. Olson. I have nothing in my mind with respect to doing 
so at all.
    Senator Schumer. Thank you. The next question I have for--I 
guess it is again for you, sir, Mr. Olson. And that is: this is 
about Congressional power versus States' rights. There have 
been a whole bunch of recent decisions of the Supreme Court 
invoking States' rights to invalidate in whole or in part 
numerous acts of Congress, each of which was passed with 
bipartisan support. They include the Gun Free Schools Act, the 
Religious Freedom Restoration Act, a portion of the Brady Bill, 
the Age Discrimination Act, the Violence Against Women Act, and 
the Americans with Disabilities Act, parts of the latter two. 
Tell me your view about defending acts of Congress against 
challenges based on States' rights, in your job as Solicitor 
General?
    Mr. Olson. I think it is exceedingly important for the 
Department of Justice to defend acts of Congress whenever a 
reasonable defense can be made with respect to the acts of 
Congress, good-faith defenses can be offered. That area that 
you discussed, those cases involve the Commerce Clause, the 
Tenth Amendment and the 11th Amendment. The Supreme Court has 
made a number of 5 to 4 decisions with respect to that. The 
considerations by the Court in each of those cases are focused 
in part on the legislative history, the nature of the area of 
regulation, and with respect to the Commerce Clause cases, the 
record established both by Congress and the factual record 
presented by the litigants with respect to the amount of 
commerce involved.
    But to circle back to the point that you were explicitly 
asking me about, defending acts of Congress, if we can find a 
way to do that reasonably and in good faith, to present 
arguments that we believe in to the Courts with respect to the 
defense of Congress, we believe it is very--I believe it is 
very important to Congress to have faith in us, that we will do 
our very best.
    Senator Schumer. But what does ``reasonably'' mean? Some 
persons ``reasonably'' is another person's ``unreasonably.''
    Mr. Olson. I am using the words that previous Attorneys 
General, Assistant Attorneys General for the Office of Legal 
Counsel, and Solicitor Generals have made, that if there is a 
good faith, if we can in good faith find a defense, to provide 
a defense, we would bend over backwards to do that because the 
laws are passed here. It is not the responsibility of the 
executive to decide whether something is unconstitutional or 
not, unless there is--unless we cannot make a good-faith 
defense of the statute, we should do that, and let the courts 
decide.
    Senator Schumer. Let me give you a specific example. Would 
you vigorously defend the Endangered Species Act?
    Mr. Olson. I can only answer that in the context generally 
that would fit within the same framework of what I just said. 
It would depend upon how that statute was being applied in a 
particular case, and those facts are important to take into 
consideration, but the standard from which we would operate, my 
judgment, is the one that I articulated.
    Senator Schumer. And does the Endangered Species Act, 
again, an act that was passed with bipartisan support in the 
Congress, meet that?
    Mr. Olson. Well, on its face, the United States Supreme 
Court has found that it is not an unconstitutional statute. 
When it is being applied with respect to a particular subject 
matter, then a fact-based consideration would have to be given 
with respect to whether or not commerce is involved to support 
the justification of the application of the--
    Senator Schumer. That is arguing the breadth of the law as 
opposed to whether the law should be defended or somehow 
overturned on a States' rights basis or anything else.
    Mr. Olson. I do not see--what I am saying is that the 
person against whom the statute is being applied in a 
particular case may say that there is not sufficient basis for 
application of the statute I that case, and then we have to 
look at that. On its face, I have not studied or made a 
determination of the statute itself, but it is my understanding 
of what the Supreme Court has decided, that it is not 
unconstitutional, and I do not have any view that it is.
    Senator Schumer. One more question in the area of the 
Congress's power. In light of the Court's recent restriction of 
even the Commerce Clause power, as well as decisions limiting 
Section 5 of the 14th Amendment, these I think are--I mean I 
think the Supreme Court, at least the majority, wants to go 
back to the 1890's. I mean I find it absurd that in a world 
where we are supposed to be one world, they want to have 50 
states make laws on things that 30 and even 70 years ago were 
determined within the purview of the Federal Government. And I 
think that will be a losing proposition somehow or other, just 
by the way the world is working, and becoming one world in 
terms of technological change. But that is where they are.
    And so the Spending Clause, given their recent constriction 
of the Commerce Clause and Section 5 of the 14th Amendment, the 
Spending Clause may become a highly significant source of 
Congressional power. Can you just give me your general views on 
the scope of the Spending Clause powers, as well as whether you 
would argue before the Court for an expansive Spending Clause 
power?
    Mr. Olson. I think that, in the first place, the decisions 
that the Court has rendered, with which I am familiar with 
respect to the Spending Clause, have given Congress relatively 
broad latitude.
    Senator Schumer. Yes, they have.
    Mr. Olson. To attach conditions to the receipt of Federal 
funds by states of local agencies, provided that Congress has 
made those conditions clear, so that the states can exercise a 
clear choice. There have been instances where the United States 
Supreme Court has said that to the extent that you are 
attaching a condition to the exercise of a fundamental right 
that could be taken away with respect to the Spending Clause, 
that could be an area in which the Court would look at it 
differently. But my understanding of it, to the extent that I 
have studied it at all, Senator, is that it is a relatively 
broad power, and it would be our responsibility to look in 
every way for ways to defend the exercise of Congressional 
power in that area.
    Senator Schumer. Thank you. Well, that is good to hear.
    I just want to go to one more question before my time 
expires, to Mr. Thompson. I do not know if you are aware of 
this, but my office conducted a study last year, which I 
thought was--the people who did it on my staff were just 
fabulous; it was ground-breaking--and we found that 1 percent 
of the gun dealers in this country are the source of 45 percent 
of the guns used in crime. In other words, there are some bad 
apples, and the gun runners, who go down to states with loose 
gun laws from my State of New York--these are criminals, and 
they will go to a Georgia--no offense--or a South Carolina, and 
they will buy 100 Saturday Night Specials, cheap handguns, and 
then they will drive them up and sell them on a street corner 
in New York City. And whatever we do in New York State does not 
make a darn bit of difference because of the Commerce Clause. 
We do not have a toll at the Hudson River to go check the trunk 
of everyone's car. So as long as South Carolina persists in 
having--just to pick an example--or Georgia, or any other 
state, persists in having much wider open gun laws than would 
be appropriate in my State, guns cascade into our State. But 
what we found in this study is not simply that they came from 
other states, but from a small, small percentage of bad 
dealers. In other words, the gun runners almost knew that if 
you go to this particular place, they are not going to check, 
they are going to look the other way, they may not make you 
wait the waiting period or use the insta-check or whatever. And 
yet, there are laws on the books that we have supported in this 
Congress, that have been pushed, frankly, by the NRA, that 
prevent a real crackdown on this 1 percent, such as the number 
of times an ATF agent can actually visit a dealer.
    And I have proposed legislation that were for these bad gun 
dealers, not for anybody else, but the ones who seem to send a 
disproportionate amount of the crime guns into our stream of 
society, that we change the law and allow the ATF more 
vigilance and give more enforcement power.
    I would ask you two question. What is your initial reaction 
to a change in the law like that? But second, what is your 
attitude about cracking down on some of these bad-apple 
dealers?
    Mr. Thompson. Well, my initial reaction, Senator, is that I 
would be--I would urge your staff to share that study with me. 
I would be very much interested in looking at it and examining 
it myself. As I said in my opening statement, we have really 
got to do everything that we can to crack down on the use of 
guns, especially as it relates to violent crime. This 
terrorizes not only all citizens, but especially the low-income 
citizens and the minority citizens.
    So my initial reaction is, that if that is a problem, we 
have got to do everything that we can to correct it, by 
legislation or by changing our enforcement priorities, 
whatever. And as I understand from what Attorney General 
Ashcroft has said, that tracing guns that are used in crimes is 
a top priority, and I certainly would want to echo that 
sentiment and do everything that we can to make certain that 
this problem, especially as it relates to the Northeastern 
States like New York, is alleviated.
    Chairman Hatch. Senator, your time is up.
    Senator Schumer. I thank you. Thank you, Mr. Chairman. I 
thank both of our witnesses.
    Mr. Thompson. And I would like to see the--
    Senator Schumer. I will send you that study. I will vote 
till after the vote probably, so you need to rest.
    [Laughter.]
    Chairman Hatch. We are going to keep the record open. 
Written questions can be offered and hopefully can be answered 
over the 2-week recess that we are going to have. I would hope 
that we could have our questions in--I have not chatted with 
the Democrat leader on the Committee, but I am hopeful that we 
can get all our questions in by the middle of next week, by 
Wednesday. Does that sound fair?
    Senator Schumer. It sounds reasonable to me.
    Chairman Hatch. Then I think what we will do is keep the 
record open until Wednesday of next week. That will give about 
a week and a half to answer the questions, and if you can 
answer them before then, and give these folks time, that helps 
us in getting you confirmed.
    Senator Sessions, we will turn to you.
    Senator Sessions. Thank you, Mr. Chairman, and it is a 
pleasure to be a part of this panel and to welcome you two 
nominees here today.
    I think in both of these nominees we have men of 
extraordinary experience at the prime of their professional 
careers, who have had extraordinary background and involvement 
in many of issues that are important to this country. You 
understand the tension of being in the crucible of debate and 
advocacy. Yet at the same time, both of you have won praises 
from people of different political views. It is the kind of 
professionalism that I think we need in the Department of 
Justice. I believe both nominees possess the kind of maturity 
that the Department of Justice needs at this time. Frankly, the 
Department, in my view, is a bit shaky now, and it needs solid, 
mature leadership to bring it back to the highest ideals and to 
the greatest degree of professionalism possible. I hope and 
expect, by accepting this appointment, both of you will 
undertake that as one of your primary goals.
    I have known Mr. Thompson for quite a long time. We were 
United States Attorneys together in the early 1980's, and 
during that time the President declared that we would have an 
Organized Crime Drug Enforcement Task Force. OCDETF we called 
it. They always wanted a better name, but never came up with a 
better one. Larry Thompson was given the responsibility of 
organizing 12 different districts in the southeast. He did so 
with an extraordinary skill and ability that unified those 12 
United States Attorneys. This was a difficult task because they 
were being asked to subordinate decisionmaking on major cases 
and give it to a brother United States Attorney in Atlanta. 
There were a series of these core-city United States Attorneys. 
Larry Thompson led our task force in an extraordinary way.
    And, Mr. Thompson, you are going to get to display those 
skills again, because the Office of Deputy Attorney General has 
under its supervision, directly and indirectly, and through the 
others, the Bureau of Prisons, the FBI, the Drug Enforcement 
Administration, the Immigration Service, United States Marshals 
Service, and 94 United States Attorneys, all thinking they have 
been anointed by the Lord.
    [Laughter.]
    Mr. Thompson. I thought we had gotten those problems 
resolved in the intervening years.
    Senator Sessions. I do not think so. There are tremendous 
turf battles you will be facing.
    Chairman Hatch. Yes. If you think they think they are 
anointed by the Lord, you ought to see this bunch up here.
    [Laughter.]
    Senator Sessions. Well, it is a challenge for leadership. 
And I want to say that you had a positive leadership style. You 
have a leadership style which I admire so much because it is 
always based on the ultimate goal of achieving the most justice 
for the most people, and really honoring the taxpayers' dollars 
that have been given to the Department of Justice.
    Let me ask you, do you look forward to trying to make this 
vast conglomeration of agencies that the Department of Justice 
is comprised of, work together well?
    Mr. Thompson. Well, I do look forward to it. As I said, 
Senator Sessions, I have a great deal of respect and admiration 
for the men and women of the Department of Justice. There are 
many talented, hard-working, dedicated people in the 
Department, as you know, as a former United States Attorney.
    And you are giving me too much credit. The success of our 
task force was because each of the 12 United States Attorneys 
believed that our ultimate goal was to try to crack these drug-
smuggling and trafficking organizations, and everybody pulled 
together as a team, and we were able to do that.
    And I know it will be a challenge, but I am convinced that 
if we appeal to the good nature of these hard-working 
professionals, we can do it, and I am certainly going to try to 
do it.
    Senator Sessions. Well, that regional task force led the 
Nation, as I recall, in convictions and many other statistical 
categories under your leadership. It was remarkable, and I 
think those same skills will be needed here.
    You were asked by Senator Leahy, who is very concerned, and 
rightly so, about problems with the implementation of the death 
penalty. I would just like to point out a fact, and ask you a 
question about it. I would point out that the Attorney General 
of the United States has set up a review process that requires 
any United States Attorney in any of the districts of the 
United States, before they can indict someone for a capital 
crime, to have that reviewed by the Department of Justice with 
the goal of achieving fairness and uniformity and eliminating 
disparity of results. If not results, at least fairness in 
disparity among cases, not results.
    Do you believe that is a good procedure, and will you 
maintain that?
    Mr. Thompson. I have reviewed the procedure that is set 
forth in the United States Attorneys' Manual. It is a very 
exhaustive procedure. There are many different levels of 
review, chief among which is that the local prosecutor is not 
allowed to threaten the use of the death penalty in order to 
secure some kind of plea or agreement with the putative 
defendant. I think it is a good policy. If there are any 
problems with it, Senator, I hope that you or the other members 
of the Committee will let me know, but while I have indicated 
that I certainly favor the racially neutral application of the 
death penalty, we have got to do so with all care and due 
consideration like the procedures set forth in the US 
Attorneys' Manual, and I certainly will continue those. And if 
there are any problems with them, try to remedy those problems 
or improve them.
    Senator Sessions. Well, I think that is correct. I think 
that was a good decision to have a uniform review, because it 
is important to try to have fairness in the application of the 
law. I thought it was particularly strange and odd that the 
Attorney General of the United States, Janet Reno, and the 
President of the United States, who appoints the Attorney 
General, President Clinton, stayed the implementation of death 
penalties, claiming that the process was somehow flawed when it 
was their process. They were running the show. He was the 
President and she was the Attorney General, and no death 
penalty was ever approved that the Attorney General did not 
personally sign off on, is my understanding of it. So I thought 
that was odd, but I do think it is a high duty to make sure 
that the death penalty is fairly implemented.
    You were asked about gun prosecutions and I hope you will 
look at gun dealers. I have personally prosecuted gun dealers 
as a Federal prosecutor. But I did notice after I came to the 
Senate, that under the Clinton Administration, all gun 
prosecutions had dropped 40 percent at one point. I asked 
Attorney General Ashcroft if he would make it a priority to 
raise up the profile of prosecutions of those who violate 
existing Federal gun laws, and he said that he would. As chief 
administrator in the Department, will you make that same 
commitment?
    Mr. Thompson. Oh, absolutely. And I agree wholeheartedly 
with his decision to make that a priority.
    Senator Sessions. I am willing to predict that under your 
leadership, that we will see a significant improvement in the 
number of cases prosecuted. It will not take a lot of new 
personnel and a lot of new money. It is a question of 
priorities and how the previous administration could have 
allowed such a major drop in those prosecutions, it always 
bothered me. They did get them back up in the last year or two 
after a number of hearings that we held, but I still think 
there is potential to increase those prosecutions.
    Mr. Olson, as Solicitor General, you will have 
opportunities to advise the President. In the most important 
legal matter he ever had, he entrusted his faith to you, which 
is a compliment. Are you prepared to tell the President ``no'' 
if he is in error on a legal question?
    Mr. Olson. Yes, I am, Senator. I did have experience as 
Assistant Attorney General, as you know, in the Office of Legal 
Counsel. One of the responsibilities of the person holding that 
position frequently is to say ``no'' to the White House or to 
other parts of the executive branch. It is never pleasant to do 
that, but--
    Senator Sessions. Would you say it even to the Chairman of 
the Judiciary Committee?
    Chairman Hatch. Let us not get too far here.
    [Laughter.]
    Mr. Olson. I do not think I have jurisdiction.
    [Laughter.]
    Mr. Olson. I think that is one of the things that I learned 
when I was serving in the Justice Department before, that it is 
exceedingly important for the President, for other officials in 
the Justice Department and in the executive branch to give some 
people in the administration the responsibility and the burden 
of calling them as closely as they can call them with respect 
to what the law is and what the law can permit, and as best as 
possible, to set aside policy considerations, and to be willing 
to say no.
    Now, people from the President to the Attorney General on 
down have got to be willing to encourage the person holding 
that position to do so, and then the person has to be willing 
to do so. I do feel that I can do that. I feel very strongly 
that President Bush believes in that, and Attorney General 
Ashcroft believes in that.
    Senator Sessions. I think that is important. You want to 
promote the law in the ways that you feel are just. However, if 
you believe and can establish to your own satisfaction that 
something is improper or not legal, you should feel free to 
speak out on that.
    Mr. Chairman, I think both of these nominees are 
extraordinary men of achievement, experience, and ability. I 
believe they have the highest sense of integrity. They won the 
accolades and respect of even those who have opposed them over 
the years. I think they are the kind of leaders that can 
revitalize the Department of Justice. It is a Department I 
dearly love, having spent 15 years full time, practicing in the 
Department of Justice. I think it is the greatest Department, 
frankly, and I feel very comfortable having these gentlemen as 
leaders in it.
    Chairman Hatch. Thank you, Senator.
    Let me just make one thing clear. Senator Schumer raised an 
important issue with Mr. Thompson regarding the role of the 
Senate and advise and consent duties with respect to judicial 
nominations. I think I have been fair and had a fair policy, 
which I had asked the Clinton Administration to follow. Now, 
many times they did not. But to reassure my colleagues on this 
important issue, I would like to just quote a couple 
paragraphs, or this actual policy of this committee, and read 
to them a letter I had written to the Clinton White House. And 
I think it basically sets the policy, and I expect this 
administration to follow it.
    ``Please find attached a February 3rd, 1995 letter from 
myself to then White House counsel Abner Mikva, and a June 6, 
1989 letter from Senator Joseph Biden to President Bush, 
outlining the committee's blue slip policy.''
    Now, Senator Biden's letter explained the return of a 
negative blue slip ordinarily does not preclude consideration 
of a judicial nominee, but is given substantial weight by the 
Committee in its evaluation of the nominee. Senator Biden also 
emphasized the importance of pre-nomination consultation by the 
administration, with home state Senators, stressing his belief, 
that, quote, ``The nominations process will function more 
effectively if consultation is taken seriously'', unquote. 
Thus, as Senator Biden also wrote, quote, ``If such good-faith 
consultation has not taken place, the Judiciary Committee will 
treat the return of a negative blue slip by a home state 
Senator as dispositive and the nominee will not be 
considered'', unquote.
    ``The Committee has continued to implement Senator Biden's 
policy and practice. Toward that end the Senate expects genuine 
good faith consultation by the administration with home state 
Senators before a judicial nomination is made, and the 
administration's failure to consult in genuine good faith with 
both home state Senators itself is grounds for a Senator's 
return of a negative blue slip.''
    ``Where the administration has failed to provide to provide 
good-faith prenomination consultation, a negative blue ship is 
treated as dispositive and precludes Committee consideration of 
a judicial nominee.''
    Now, that is important that we all understand that because 
this is a new administration and they are really getting their 
feet on the ground. There are going to be some mistakes made, 
and I am hoping our colleagues will be considerate of that, 
that they are way behind the curve. We are going to soon have 
well over 100 vacancies in the Federal Judiciary, and I intend 
to continue this policy and this process. I think it is a fair 
one. I will urge the White House to do that as well. We also 
asked the Clinton White House to do that. That type of 
consultation is one thing, and in my view, the proper, quote, 
``advise and consent'', unquote, rule of the Senate.
    But if any of our colleagues here want to veto the 
President's constitutional prerogative to make his appointments 
with the advice and consent of the Senate, that is a different 
matter, and one which I think diverges from the policy of this 
Committee since as far back as I can remember, and that is 25 
years, since Senator Kennedy was Chairman of this committee. So 
I just want to get that on the record so everybody understands 
that there are joint obligations. The White House needs to 
consult and we need to consult. We need to work together on 
these judicial nominations, and we are going to count on you, 
Mr. Thompson, to help see that that process goes properly, and 
I am going to speak further with our colleagues down at the 
White House, you know, Counsel Gonzalez and others, so that we 
make this process worthwhile.
    Right now we have had kind of a rocky start, but hopefully, 
it will all settle down and we will satisfy our colleagues on 
the other side of the table, and hopefully as well, our 
colleagues on this side. But I just thought I would put that in 
the record to make it straight.
    Let us go to Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman. And I 
regret that neither Senator Leahy nor Senator Schumer are here 
to respond with specific information about our experience.
    Chairman Hatch. I will keep the record open so they can 
respond to that, because I would be happy to have any response.
    Senator Durbin. The practice that has been followed in the 
4 years that I have been in the Senate is different than what 
you have just described. In that time, one Senator could stop a 
nominee from a state. And there have also been times when 
members of the Senate Judiciary Committee, not even from the 
same state as the nominee, could stop a nomination. And I think 
that I go along with your premise--
    Chairman Hatch. That has always been true, Senator. If 
Senators have--I mean, we cannot control every individual 
Senator, but we have tried to implement that policy, and in the 
vast majority of cases that policy has held. And I intend to 
implement it, although I do not--like I say, I am not God. I 
cannot control everybody on this committee.
    Senator Durbin. I will defer to Senator Leahy and Senator 
Schumer on this issue, but I think we need to have an Executive 
Session among the members to make certain there is an 
understanding.
    Chairman Hatch. We will.
    Senator Durbin. I do sincerely regret that we have two 
nominees today, because 15 minutes is not enough for posts of 
this importance to be considered in tandem, and I hope--Mr. 
Thompson, I thank both you and Mr. Olson for coming by my 
office, and I hope to be able to ask you a few questions in the 
allotted time, but I am limited and I want to address several 
questions to Mr. Olson.
    Mr. Olson--I wonder if this microphone could be changed a 
little bit here. It is kind of talking back to me.
    Chairman Hatch. Is there any way of getting that so it does 
not have a--
    Senator Durbin. I could perhaps change it.
    Chairman Hatch. Why don't you change mikes?
    Senator Durbin. Is this any better. I think it might be. 
Thank you.
    Mr. Olson, as I look at your background, it is clear that 
you are an accomplished lawyer. For the President of the United 
States to entrust his political fate to you, as he did before 
the Supreme Court, really speaks to your talent and his 
admiration for your skill. But I think you would also concede 
that you have been a very active political lawyer in the course 
of your practice.
    As I survey the list of Solicitors General of the United 
States, I cannot find any parallel in history of anyone who has 
been so actively partisan in his legal practice, and then went 
on to be the Solicitor General. The closest is Thurgood 
Marshall, who was clearly quite opposite you in political 
philosophy. But can you think of a former Solicitor General who 
has been so actively involved in politics, in his writing, in 
his practice, who then went on to have the position you are 
seeking?
    Mr. Olson. I have not made a comparison of previous 
Solicitors General. It is a distinguished list. Thurgood 
Marshall was very much involved in litigation along the lines 
that were consistent with the responsibility that he had. 
Solicitor General Drew Days had been Assistant Attorney General 
in the Civil Rights Division, and had practiced with the NAACP 
Legal Defense Fund for a number of years. In fact, that subject 
was discussed at his confirmation process. Rex Lee, who was 
mentioned this morning, had been involved in litigation of a 
variety of sorts.
    Senator Durbin. I mean of the political nature. I mean, 
some of the things that you have done--
    Mr. Olson. Well, I wanted to put that in context. I think 
that--I went back and looked over what I had been doing over 
the past 20 years or so. I would say probably 97 to 98 percent 
of my practice is commercial litigation, commercial litigation 
in the context of representing banks or insurance companies or 
the automobile industry, or other matters such as that. There 
are some--by the nature of things, if you represent a candidate 
for President of the United States, and that case goes to the 
Supreme Court, it draws a lot of attention. And I have 
participated. I have been blessed to have the opportunity to 
participate in some cases that have involved issues that have 
gone to the United States Supreme Court, and they attract 
attention. I do not know that I call many of those cases 
political cases. They are cases that involve important policies 
of our country, and I feel that it is important and helpful to 
have had the experience with constitutional law in a variety of 
different areas.
    Senator Durbin. Let me be specific. When you visited me 
yesterday in my office, I talked about the question of recusal, 
and whether or not a Solicitor General should, on certain 
occasions, recuse himself from considering a case because of an 
obvious conflict of interest, impropriety, appearance of 
impropriety or a bias in the case.
    I want to go back to the question asked by Senator 
Feinstein on some of your writings, which I have read since our 
meeting. And I have to tell you that I agree with her that some 
of the things that you have written make it very clear that you 
have some very strong feelings politically, particularly as it 
relates to Democrats in general and the Clinton family in 
particular. This article of yours, ``The Most Political Justice 
Department Ever'', from the American Spectator, you write, and 
I quote, ``Bill Clinton's worst nightmare is a George W. Bush 
appointed Attorney General, who will have the courage to pry 
open the secrets that the Clinton Administration has kept 
during its corrupt reign, and a Congress that will keep the 
Justice Department shredding machines out of operation between 
November and the Inauguration.'' End of quote.
    I want to ask you for the record here what I asked you in 
my office. Based on your involvement with the pseudonym used to 
publish an article concerning alleged crimes against the 
Clinton family and others in the administration, the 
representations you have made during the course of all of the 
impeachment hearings and the like, let me ask you: do you think 
it would be appropriate for you, as Solicitor General, to 
consider any case involving President Clinton, his family, or 
members of his administration, whom you have named in your 
articles?
    Mr. Olson. I think as I told you when we visited together 
in your office, that that raised a very important and 
legitimate question. What I would do--I think that the answer 
probably would be that it would be appropriate to recuse 
myself. But before making any recusal decision along those 
lines, I would consult with the ethics officials in the 
Department of Justice, and consider their--and take their 
advice into consideration. I do agree with you, that what I 
think is the import--what I know is the import of your 
question, that appearance with respect to fairness and even-
handedness in the Department of Justice is exceedingly 
important.
    And one of the things that I was complaining about--let me 
put it that way--in this article that you just referred to, is 
that I felt that there was--for the reasons I expressed in that 
article, that the appearance of partisanship had crept into the 
implementation of some decisions in the Department of Justice. 
And as a prior Justice Department official, I was concerned 
about that. I was concerned enough about it to write an article 
setting forth what my views were, so that people could read 
them and disagree with them or judge them as they saw fit.
    By the same token, I think I have to be judged by the same 
standards, and to the extent that I felt that my personal 
involvement in a particular issue would make it inappropriate 
for me to handle a case, I would recuse myself, but as I said 
before, I would also feel that it would be important not to 
take that step exclusively by myself, but to consult with these 
people that have been created in the Department of Justice, who 
are there from administration to administration--they are not 
political people--who are experts on that.
    Senator Durbin. Many of those same people have been 
criticized by members of this Committee during the course of 
the Reno administration, even though they were career 
employees. So I hope that you will follow that standard. I 
think it is appropriate, and I think your answer is 
appropriate.
    Let me ask you a few specifics. Last year you invited the 
Supreme Court to overturn the Miranda case. When the Attorney 
General spoke to us in the nomination process, he talked about 
settled law. Do you view the Miranda decision as settled law?
    Mr. Olson. What I did--yes. The Supreme Court made it clear 
in the Dickerson decision last year that it regarded it as 
settled law. I think it was a 7-2 decision. I believe it was 
written by the Chief Justice of the United States. What I did 
in that case was file--the Supreme Court had already decided to 
take that case. We were asked by the Maricopa County law 
authorities in Arizona, where the Miranda case had originally 
come from, to file a friend of the court brief on behalf of 
that county, expressing their views with respect to the Federal 
Statute which had been enacted by Congress. And this goes back 
to the issue of defending acts of Congress. So that was an 
issue in that case. But I agree--
    Chairman Hatch. And I might add, that was a case where the 
current Solicitor General refused to uphold the Congressional 
enactment, taking the opposite position.
    Mr. Olson. The Solicitor General determined not to defend 
the act of Congress, and the result of that was that the 
Supreme Court then appointed a law professor to defend the 
Congressional prerogatives in that case.
    But I do agree with the import of your question. The 
Supreme Court did consider that case. It made it very clear 
that Miranda is not only a part of the legal culture, but a 
part of the culture itself of this country, and it was a fairly 
clear pronouncement. I would have no reason to quarrel with 
that. The Supreme Court, as Chief Justice Marshall said, has 
the responsibility to declare what the law is, and it has done 
so.
    Senator Durbin. Along the same line, the partial birth 
abortion ban has been a very hot topic on Capitol Hill for a 
number of years. Many of us believe that this ban should 
include an exception for the health of the woman, as well as 
her life. The Supreme Court, in Stenberg v. Carhardt, struck 
down a Nebraska law that purported to ban the so-called partial 
birth abortion, but did not provide an exception for the health 
of the mother.
    If legislation purporting to ban so-called partial birth 
abortion, without an exception for the health of the woman is 
introduced, and your advice is sought regarding its 
constitutionality or whether appeals should be taken, do you 
consider the Stenberg decision settled law, that unless it 
includes an exception for the health of the mother, you would 
not pursue it?
    Mr. Olson. I do not think the Court went that far in that 
case. One of the bases for the Supreme Court's decision, as I 
read the various different opinions by the Justices in that 
case, is the vagueness of the--I think it was a Nebraska 
statute in that case. It is a very complicated and a very 
important issue, and all I could say with respect to that, it 
would require--to the extent it was an act of Congress--looking 
at it very, very carefully in terms of what Congress had 
decided to do, and also consider very carefully what the 
Supreme Court decided in that case. I hesitate to answer that 
question in the abstract without knowing the specifics of the 
statute, but I cannot stress enough how important I understand 
the issue is to so many people in this country, and how 
important it is in connection with something like that, to 
listen to other people other than the people in the Office of 
Solicitor General, to people who have views on the subject, who 
want to talk about it, who want to write arguments that would 
be submitted to the Solicitor General, and in that case, take 
extremely careful consideration of both--of a Supreme Court 
decision that has just come down, and an act of Congress.
    Senator Durbin. I just want to make one thing clear for the 
record. I believe the Stenberg Supreme Court decision says it 
is the settled law of the land, that any such prohibition 
against abortion procedures that does not include the health of 
the woman, violates Roe v. Wade. If you can answer yes or no 
whether you agree with my conclusion, I would appreciate it.
    Mr. Olson. I cannot answer yes or no with respect to that, 
because I think one of the problems with the Nebraska statute 
was the definition of ``health'' and under what circumstance 
that would be considered, and I just do not know enough. I 
would hesitate to do that.
    Senator Durbin. Let me ask you as well, there have been 
questions raised in staff inquiries about your role in a pardon 
for Armand Hammer. As I understand it, you represented Mr. 
Hammer; is that correct?
    Mr. Olson. I did, but not at the time he received the 
pardon. I did represent him in connection--may I explain?
    Senator Durbin. Sure, of course.
    Mr. Olson. I did represent Dr. Hammer, along with a 
prominent law firm in Philadelphia in connection with the 
preparation of his application for a pardon. We prepared a 
pardon application and submitted it to the pardon attorney in 
the Department of Justice according to the regulations that 
existed. It was staffed up by the Department of Justice. It 
went through the Deputy Attorney General and the other agencies 
in the Department that were involved. I do not know what the 
recommendation of the Department was to the President. It got 
to the White House, and we were then told that the President 
was not going to grant the pardon. That was during President 
Reagan's Administration. He declined to issue a pardon. My 
representation ended at that point. Dr. Hammer was given a 
pardon by President Bush, but I was no longer his attorney at 
that time.
    Senator Durbin. Thank you. That clarifies that. May I ask 
you a question on Bush v. Gore?
    Mr. Olson. Yes.
    Senator Durbin. You remember that case, do you not?
    Mr. Olson. It happened so fast, I am not sure.
    Senator Durbin. You argued successfully before the Supreme 
Court, and you asserted that the use of different procedures 
for conducting a statewide recount violated the Equal 
Protection Clause. As you know, however, the procedures 
established by localities for elections themselves, often vary 
widely from county to county. If different procedures for a 
statewide recount are unconstitutional, would it follow that 
different procedures in carrying out an election on a statewide 
basis are similarly unconstitutional?
    Mr. Olson. No. The Supreme Court--not necessarily. The 
Supreme Court made it very clear in that decision that it was a 
particular set of circumstances which included changes by the 
Florida Supreme Court in the timetables and the procedures that 
had been adopted prior to the election after the election. And 
another factor was that the standards by which the ballots were 
being evaluated were varying from not only county to county, 
but canvassing--different portions of the Canvassing Board's 
responsibility from one group to the next group, and that they 
were changing from day to day. We raised the question in the 
second of those two cases, that where votes are being--or 
ballots are being evaluated by different standards within a 
state, under rules that are changing after the election, it can 
raise equal protection concerns with respect to the evaluation 
of ballots differently in different portions of a state. Seven 
Justices of the Supreme Court agreed that there were concerns 
under the Equal Protection Clause under those circumstances, 
but the Court was also working very rapidly because of 
constraints imposed by the Constitution and by Federal statute, 
and the Court therefore made it very clear to say, ``The 
decision that we render in this case applies to the facts of 
these cases'', and I think the Justices would say, ``We would 
have to look at the next case and the circumstances of that 
case.''
    Senator Durbin. Well, we obviously disagree on some of 
these, but it just strikes me that if I live in a state that 
has paper ballots, punch cards, optical scanning, God knows 
what else, depending on the county, the jurisdiction, their 
decision, we have, going into an election, different 
circumstances facing different voters who are casting votes in 
the same election. If the election judges in one precinct 
decide if you spoil your ballot, you get a new one, and in 
other precincts, you do not get a new one, then we have some 
diversity as to whether or not the elections themselves are 
being managed in the same uniform way across the state for 
equal protection.
    So I think it begs the question to say it makes sense for 
recounts, but it does not make sense for elections.
    Mr. Olson. I am not saying that, and I understand your 
question. I also understand the point that you are making. It 
is a valid point. I just do not know what the answer would be. 
Florida itself had three or four different ways of initially 
counting the ballots in different parts of the State of 
Florida. That was not an area that the Supreme Court focused on 
in Bush v. Gore. But I think you make a very valid point. It 
raises an interesting question. Under what circumstances can 
different methods be used to count ballots? It also may make a 
difference whether we are talking about elections for President 
under the authority set forth in Article II, Section 1 of the 
Constitution or other types of elections. It is a complicated 
area, and many people have raised questions like the ones that 
you quite properly raised. I just do not know what the answer 
would be, and depending upon what the circumstances are.
    Senator Durbin. Thank you, Mr. Olson.
    Mr. Thompson, you appear to have escaped the savage ritual 
as far as I am concerned, but thank you for joining us today.
    Mr. Thompson. I would like to say I am sorry, but I have to 
be truthful.
    [Laughter.]
    Chairman Hatch. Well, your time is up, Senator. Let us go 
to Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Thompson, being the Attorney General or Deputy Attorney 
General is about setting priorities. That is what, obviously, 
governing is. But, I think, particularly as Attorney General, 
you have so much discretion, and such limited time and 
resources, that the cases you decide to emphasize really set 
policy. You set policy every single day. I am glad to see in 
the previous questioning and in your prepared remarks, you 
talked about gun prosecution, the prosecution of people who use 
a gun in the commission of a felony, people who are convicted 
felons, who use guns in violation of the law, and I am 
delighted to see that is going to be one of the top priorities 
of your administration.
    I would like to mention a couple of other things. What you 
will find is--and I am sure both of you have already seen, and 
knew before you came in here today--these hearings are not just 
about you answering questions. They are also about giving 
Senators the opportunity to talk about what we think are our 
priorities, so we are not really bashful about that. But I am 
glad to see your comment about gun prosecution. It has been an 
area that I have been very vocal about. I think it is the right 
priority for the Department of Justice. It makes sense. It will 
save lives. It will get the right people off the streets.
    I would like to mention a couple of areas I think it should 
be part of your priority. One is in the development of crime 
technology. I sponsored a bill several years ago, and we passed 
actually in 1998, the Crime Identification Technology Act. This 
act supplies money for DNA technology, automated fingerprints 
technology, and ballistic comparisons, as well as the 
refinement and continued development of the criminal record 
system throughout the country. Now, those are four areas where 
I think the Federal Government can continue to play a major 
role, not just in developing the national system, but 
understanding it is not just important for the FBI or other 
Federal agencies to have this system online. It is also 
important for the local law enforcement to have this. Over 95 
percent of our prosecution, as you know, is done at the local 
level. That is where the investigation is, so the ability of 
the local community to plug in to the national system is very, 
very important.
    I hope that the Attorney General's Office and Department of 
Justice would support adequate funding, not just for my bill, 
but for these four areas of crime technology. It matters a 
great deal. It is important for the local jurisdictions. It is 
important that we have developed this Nationwide system. And 
again, it is a question of priorities, where we, as a country, 
put our money, when--our ability to solve a crime in Xenia, 
Ohio, depends on whether or not Chicago inputs a criminal's 
record before that criminal ends up in Xenia. We are all tied 
together, and what happens in one jurisdiction affects the 
ability of another jurisdiction to solve a crime. I will ask 
you to comment about that in a moment.
    Also, you commented about another area that I am very 
concerned about, and that is international parental kidnapping. 
We have a huge problem in this country today. A typical case 
involves a couple who gets married, one is a foreign national, 
one is a US citizen. They settle down in the United States and 
begin having a family. One day the person who was born in this 
country looks up and the person that he or she has married is 
gone with a child or gone with two children, and they are in 
France or they are in Germany, or they are Lord knows where, 
and that child is gone. And what I have seen, frankly, from the 
Justice Department in the last few years is a lack of interest 
in these cases, a lack of--I do not know any other way of 
saying it, just a lack of interest. And it goes right down to 
the US Attorneys around the country. I hope that would be a 
priority within the Justice Department, understanding there is 
a limit to what we can do, understanding we have a State 
Department to deal with, and understanding we have foreign 
governments to deal with. But I think that if it is emphasized, 
we can make some progress in this area.
    The fourth area I would like to mention to you is 
antitrust. I am the Chairman of the Antitrust Subcommittee. I 
did not ask Attorney General Ashcroft to comment about any 
particular cases and I will not ask you to do that, but I will 
ask you to comment in general about antitrust. I happen to 
think that it is a good thing we have antitrust laws. Antitrust 
laws work when there is the threat that they will be used. They 
do not have to be used every day, but there has to be a 
credible threat that the Justice Department will use the 
antitrust laws when there is an appropriate case.
    And so I will ask you to comment on those four issues, 
beginning with gun prosecution, crime technology, international 
parental kidnapping and antitrust.
    Mr. Thompson. Well, with respect to gun prosecution, 
Senator, as you know, that is a top priority of Attorney 
General Ashcroft. I wholeheartedly support it for a number of 
reasons, but a reason I do not believe I have mentioned to the 
members of the committee, is that with respect to the safety of 
our law enforcement officials. The use of illegal guns is the 
single highest cause of death of law enforcement officials, the 
people who are laying their lives on the line to make our 
streets safe. So it not only redounds to civilians, it is going 
to help law enforcement officials if we can get our arms around 
that.
    With respect to technology, I agree with you again. We 
really need to stay ahead of the learning curve in terms of law 
enforcement. I understand that funding for the legislation is a 
priority of the administration, and as I understand, Senator, 
you were a former prosecutor. Not only is 95 percent of the 
prosecutions in this country handled at the state and local 
level, perhaps a larger percentage of successful prosecutions 
derive from leads that are developed with state and local law 
enforcement agencies. So we really need to make certain that 
this kind of technology gets in the hands of state and local 
law enforcement, so not only they can do their jobs better, 
that will help the Federal Government too.
    International parental kidnapping, as I have tried to wind 
down my law practice, I have not--I really have not studied 
that issue, and I look forward to working with you and your 
staff and getting up to speed as some of the law enforcement 
problems with respect to that issue, but I simply do not know 
that much about it.
    I am not an antitrust legal expert or scholar--I am sure 
you are going to be asking my colleague, Charles James, a lot 
of questions in that area--but I will tell you, as a criminal 
defense lawyer, I have handled a number of price-fixing cases, 
routine price-fixing cases, which are handled by the Antitrust 
Division. And we have some very good people in that area and 
who are doing a good job across the country in investigating 
criminal price-fixing.
    I can offer an observation, perhaps it is an opinion, but 
that is probably one of the most prevalent white-collar crime 
offenses that is out there. It has a great effect, harmful 
effect on our economy, unfair competition. And I certainly 
would, as the deputy attorney general, make certain that not 
only do we pursue other kinds of structural antitrust issues, I 
want to make certain that we dedicate our efforts to criminal 
price-fixing, criminal antitrust issues, and bringing people 
who commit those kinds of serious crimes, and I consider that a 
very serious crime, bringing those people to justice.
    Senator DeWine. Mr. Thompson, thank you very much.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    We will turn to Senator Leahy. I do not know whether we 
have any other questions from our side, but I would like to 
continue the 15-minute round so Senator Leahy and others have 
enough time to ask their questions.
    Senator Leahy. Thank you, Mr. Chairman. Because this is 
unusual, and this is the only time, as far as I can tell, in 
the history of this committee, that we have had the nominees 
for deputy attorney general and solicitor general here 
together, Mr. Chairman.
    Chairman Hatch. Excuse me, go ahead.
    Senator Leahy. I was just going to say, insofar as--
    Senator Kyl. He was just complimenting you for breaking 
precedent.
    [Laughter.]
    Senator Leahy. I am saying, contrary to the impression that 
the Chairman gave earlier, this is the only time in history we 
have had the deputy attorney general and the solicitor here 
today. So, in fairness to having started with Mr. Thompson in 
the first round, I will start with Mr. Olson on the second.
    Mr. Olson. Thank you.
    Senator Leahy. Do not be too quick.
    [Laughter.]
    Chairman Hatch. However, the point was it has been done, 
maybe not exactly these two--
    Senator Leahy. But never--
    Chairman Hatch. Not these two offices, but it has certainly 
been done.
    Senator Leahy. I will never get the last word.
    Chairman Hatch. No, that is not true.
    [Laughter.]
    Senator Leahy. Are you finished?
    Chairman Hatch. Not yet.
    Senator Leahy. Is this a new round for you?
    Chairman Hatch. I have never taken even a shot at it yet, 
and I have made a couple statements here.
    Senator Leahy. We would be happy to--
    Chairman Hatch. No, I am happy to turn the time over to 
you.
    Senator Leahy. It is possible we could finish this today, 
but I doubt it.
    Chairman Hatch. I intend to finish--
    Senator Leahy. In the materials filed with the committee, 
Mr. Olson, you listed affiliations with a number of groups and 
organizations that are overtly and actively political, some of 
which have taken legal positions to advance certain public 
policy. I want to balance these a little bit so I understand.
    You worked with the American Spectator Education 
Foundation, the Lawyers Division of the D.C. Chapter of the 
Federalist Society and so on. You have resigned, as I 
understand, from the board of the American Spectator 
Educational Foundation; is that correct?
    Mr. Olson. In 1999.
    Senator Leahy. Thank you. And what is your intention with 
respect to continuing membership and participation in each of 
the other groups with which you have been affiliated?
    Mr. Olson. I have resigned from any position on the 
advisory boards of the organizations that are listed there. I 
have already resigned from there. The--
    Senator Leahy. Does your involvement with the American 
Spectator Educational Foundation, the Federalist Society, the 
Independent Women's Forum, the Washington Legal Foundation in 
any way diminish your ability to act independently as solicitor 
general?
    Mr. Olson. You did not mention the American Bar 
Association.
    I do not think that my involvement--I have resigned from 
the advisory boards of all of those other organizations. I 
remain a member of the American Bar Association, I remain a 
member of the Federalist Society. I do not intend to hold any 
positions with respect to any of those organizations.
    I do not believe that my past--
    Senator Leahy. I am not a member of the American Bar 
Association. I resigned when I became a Senator because I did 
not want it, in any way, to interfere with the way I vote.
    Do you think that your past position would give a 
perception of nonimpartiality?
    Mr. Olson. I do not think so. I think that--
    Senator Leahy. Let me go to a couple of the things.
    Let me take some of your writings in the American 
Spectator, The Washington Times, and elsewhere, and some of the 
tone and rhetoric you have employed to criticize the former 
President, and the former First Lady, Attorney General Reno, 
and others, and members of this committee. I know you have had 
occasion to review your speeches and writings, as you assembled 
them, both to submit to the White House and to this committee.
    Is there anything, as you sit here today, is there anything 
in that body of speeches and writings, and you have reviewed 
them, as distinguished from your legal writings--I am not 
talking about legal writings when you are an advocate for a 
client, but your speeches and writings--is there anything that 
you would like to take back, rephrase or clarify?
    Mr. Olson. I am sure that there would be things if I had 
gone through everything that I have said, with the wisdom of 
hindsight and experience. I am sure that there are things I 
would both say differently or might not say at all. I did not 
go through them with the purpose of singling out anything in 
that regard, but I have no doubt that there are things that I 
wish I had said differently.
    Senator Leahy. Let me go to a couple of specifics, and I 
suspect, though, that you did glance through a number of them.
    Mr. Olson. I did glance through as many as I--
    Senator Leahy. You did write them.
    Mr. Olson. I did write them, yes.
    Senator Leahy. You wrote, last year, an article for the 
American Spectator, very critical of the Department of Justice, 
under Janet Reno, and Senator Feinstein has referred to this. I 
disagree with your opinion of Janet Reno. I was, as I said to 
you earlier, I was impressed by the fact that during the past 8 
years, for the first time, we have seen, every single year, the 
crime rate go down, something that we have not seen, 
notwithstanding the rhetoric of both Republican and Democratic 
administrations previously. But notwithstanding our difference 
of opinion about Ms. Reno, and you stated your opinion very 
strongly, I would like to ask you about a couple things in 
there.
    You say, ``The Department of Justice and its officials 
traditionally have been held to a standard of independence and 
nonpartisanship not expected of other Federal agencies.'' I 
think we would all agree with that. You said, ``The President 
must never inject his personal or partisan political impulses 
into individual DOJ decisions,'' and that is your position 
today, is it not?
    Mr. Olson. Yes, I feel that way.
    Senator Leahy. I beg your pardon?
    Mr. Olson. Yes.
    Senator Leahy. You criticized Janet Reno for asking United 
States attorneys from the previous administration to resign. 
You explained that, ``In order to maintain continuity in 
thousands of pending prosecutions, as a statement to the 
public, that elections do not influence routine law 
enforcement. The Nation's top prosecutors are traditionally 
replaced only after their successors have been located, 
appointed, and confirmed by the Senate.''
    But yet, today, all over the country, U.S. attorneys are 
being asked by President George W. Bush to vacate their 
offices. We have not received one single nominee for U.S. 
attorney from anywhere in the country sent to the Senate. So do 
you think that President Bush and Attorney General Ashcroft 
have made a mistake in requesting these U.S. attorneys to 
resign or was it only Attorney General Reno who made a mistake 
in asking them to resign?
    Mr. Olson. What I meant by that is that the decision to 
fire or remove all of the United States attorneys on very, very 
short notice at one time, without having given any 
consideration to the individual situations in any of the 
districts in which there were pending cases, created that 
appearance, in the context of the other things that I mentioned 
in that article.
    I think that I said in that article or I tried to say in 
that article, and this is one where it is probably, I would 
probably say that I could have written it better, but the 
cumulative effect of the decisions and actions that I describe 
in that article, I did believe created the impression of 
partisan involvement in the Department of Justice, which I 
thought was not good for the administration.
    Senator Leahy. Because they were changing administrations 
or a Democratic administration coming when there had been a 
Republican administration, is that part of the reason?
    Mr. Olson. No, I believe that the specific decisions, and 
specific instances, and specific actions that I mentioned in 
the article, taken cumulatively, which included the decision to 
remove all at once, all of the United States attorneys, 
irrespective of the prosecutions that were pending in that 
case, which had never, as I understood it, been done before, I 
thought that was a--created the beginning of a process which 
played itself out in ways which I think were unfortunate for 
the Department.
    Senator Leahy. But now that nearly all of the U.S. 
attorneys are being asked by this administration to do the same 
thing, it does not create that kind of an impression?
    Mr. Olson. I do not believe that all of the United States 
attorneys have been asked to leave, and I think that--
    Senator Leahy. I did not say all of them, I said virtually 
all of them.
    Mr. Olson. Well, I am not familiar with the numbers, and I 
think that the circumstances are different, but I don't know 
all of the details.
    Senator Leahy. Let me ask you this: You criticized 
President Clinton's appointment of, among others, the assistant 
attorney general for the Office of Policy Development, the 
assistant attorney general for Legislative Affairs, the 
assistant attorney general for the Civil Division, and the 
assistant attorney general for the Antitrust Division because 
one had known the First Lady in college, one had a brother who 
worked in the White House, another was related to the Vice 
President, another was the wife of a Democratic Senator.
    Now you made no specific mention about what kind of work 
they did in office or the reputations and qualifications they 
had, which I recall were sterling, but you said they were too 
partisan. Now I do agree with you that evenhandedness and 
nonpartisanship should apply to the executive branch. But if it 
was wrong in that case, even though these people were all 
extremely well-qualified and did a good job in office, do you 
think it is wrong of President Bush to appoint Secretary Evans, 
a long-time fund-raiser, to the Department of Commerce, and I 
voted for him; Secretary Chao, the wife of a Republican 
Senator, to the Department of Labor; or Secretary O'Neill, an 
old and close friend of Vice President Cheney, to the 
Department of Treasury; or Secretary Martinez, a close 
political ally of the President's brother to the Department of 
Housing and Urban Development--and, as I said, let me just 
finish, I voted for all of those--or Alberto Gonzalez, an 
appointee of then-Governor Bush, to the Texas Courts?
    Is it not partisan or is not a question of their 
independence, with their connections to the Bush 
administration, when you had somewhat similar connections to 
the Clinton administration, and it was wrong to appoint them in 
the Clinton administration?
    Mr. Olson. What I meant was that, as I said in the 
beginning of the article, I was focusing only on the Department 
of Justice, and not the other agencies of Government, although 
one could say, I suppose, similar things with respect to the 
Department of Defense or the Department of State.
    So I was just focusing on the Department of Justice, and I 
was not referring with respect to any one of the individual 
appointments there, but the cumulative effect of that 
collection of appointments and relationships, when taken 
together with the other issues and decisions that I referred to 
in that article; again, including the removal, wholesale, 
across-the-board, of the United States attorneys, and those 
particular appointments, and those other actions. I think taken 
individually, each one of those individual actions might be 
explained or justified. I was concerned about the impression 
created by the cumulative effect.
    And I understand that people can disagree with those 
conclusions, and I respect people that do disagree with those--
    Senator Leahy. That is not the question. Do you think that 
perhaps some of us--and I am just a lawyer from a small town in 
Vermont. I do not have your experience or your background--so, 
accepting my lesser experience, it seems possible that somebody 
like myself might think that there is at least a hint of a 
double standard in your criticism of Democratic administration, 
but your acceptance of a Republican administration in 
appointing close friends, and brothers, and spouses, and so on.
    Mr. Olson. I can understand how you could come to that 
conclusion, and I am not quarreling with either your experience 
or the basis of your coming to that conclusion, but those were 
my opinions over with respect to a 7-year period. I came to 
those conclusions because I care very much about the Department 
of Justice. I believe that it matters a great deal to the 
American people. I believe in the standards of the Department 
of Justice, and I had that opinion, and I put it in writing, 
and I allowed it to be published.
    I do understand that people could come to different 
conclusions. I do understand, taken individually, someone might 
say, well, you are applying a different standard to the 
previous Justice Department than you are to officeholders in 
your own party. I can understand someone making that argument.
    I do, also, would like to say that I have said those things 
against the background of having spent 4 years in the 
Department of Justice, when--
    Senator Leahy. Let us go to that experience. Would you feel 
that it showed any kind of a political influence if, for 
example, let us take the Department of Justice, let us say a 
key position in the Department of Justice, oh, I do not know, 
say, U.S. attorney, if a young son of a key Senator, say 
somebody in their twenties, was appointed U.S. attorney, and 
that Senator happened to be in line, for example, to the 
presidency under our Constitution, and was a close ally of the 
current President, would that give--aside from any questions of 
experience because I think all of these people you criticized 
were well-experienced--would that give any possibility, even a 
hint, that there might be anything political or partisanship in 
that kind of a selection?
    Mr. Olson. I can understand people raising those questions, 
in the same way that people raised those questions when 
President Kennedy appointed his brother to be Attorney 
General--
    Senator Leahy. But I am asking the specific--
    Mr. Olson. I understand, but I do not know the facts of 
that particular case, and I am saying that, taken cumulatively, 
those questions can be raised and asked, and I think it is 
quite legitimate to ask those questions, and that is why I am 
pleased to answer them. But I do think that what--
    Senator Leahy. Given those facts, just as I presented them, 
without going into any particular case or anything else, would 
that, on the face of it, raise any kind of questions that would 
bother you, as one who has been in the Department of Justice 
before and who has expressed very strong standards for avoiding 
the appearances of partisanship or cronyism or anything else, 
would that raise, just as I outlined the facts, without going 
into any particular person, would that raise any questions in 
your mind?
    Mr. Olson. Standing alone, not necessarily. What I think is 
important is to look at the cumulative effect and the 
cumulative number of appointments. There may be an individual 
that is related to another individual who is extremely well-
qualified. And the people that you mentioned in my article, 
individually, may have been very well-qualified. I am not 
suggesting that individually they weren't nor that they 
individually did not do good jobs, but that--
    Senator Leahy. That did not come out in the article, 
unfortunately.
    Mr. Olson. I tried to say in the article that I was 
talking--that I set forth, at the beginning of the article, 
five or six different criteria by which I thought attorneys 
general in the past had been evaluated by the country, by 
political figures, and by newspaper editors. And so I took the 
various categories of standards by which a Justice Department 
could be evaluated, and then I took each one of those 
categories, and I tried to explain why I thought, in those 
categories, individually, there were issues that came up that 
cumulatively then, when applying all of those standards, 
created the impression or created the conclusion, in my mind, 
that I was trying to express.
    Senator Leahy. Now let us take a case that you would know 
as well as anyone, the Bush v. Gore, what is the significance 
of that case to the doctrine of equal protection of the law, in 
your mind?
    Mr. Olson. As I was explaining, in response to Senator 
Durbin's question, the--
    Senator Leahy. I had to miss because, as you know, the 
chairman, as is his right, called this hearing on probably the 
busiest day of the spring, so a number of Senators have had to 
miss the opportunity to be here with you today, and I know they 
regret that, and I am sure you do, but go ahead.
    Mr. Olson. The Supreme Court attempted to explain that it 
was concerned about the fact that there were different 
standards changing on a daily basis, sometimes on an hourly 
basis, in the recount process, that there were different 
standards from one county to the next county, that the rules 
that have been in place and that had existed prior to the 
election had been changed. And the Supreme Court, seven of the 
Justices felt that there were equal protection concerns with 
respect to that method of counting under those circumstances, 
but the Court tried to make it clear that it was deciding just 
that case.
    Now I do believe, as some people have suggested, and 
Senator Durbin was suggesting, that that case may have a 
broader application, where there are different standards used 
in different precincts, different methods of voting machines, 
different types of ballots and that sort of thing. I do not 
know how far that case will go. I do think--
    Senator Leahy. Let me follow on that just a little bit. Let 
me follow on your much vaster experience in these areas than 
most of the rest of us have, certainly more than I have in the 
Supreme Court, and I do not mean that facetiously.
    But let me ask you this: You are solicitor general. What 
kind, think ahead a little bit, what kind of equal protection 
propositions would you cite Bush v. Gore as authority? What 
type of equal protection would you use that for or would you? 
Can you think of a hypothetical?
    Mr. Olson. This was a very novel set of circumstances. The 
Supreme Court indicated that it was deciding a case that was 
peculiar to the facts of this particular case. I would have to 
look at the facts of another case. But as I say, among the 
factors that the Court was concerned about, is that the rules 
had changed, not once, but general rules, and time tables, and 
standards had been changed twice after the election. Palm Beach 
County, for example--and, in addition to that, in individual 
counties and canvassing--
    Senator Leahy. No, maybe I was not clear in my question. It 
is not so much on the facts. I mean, we can assume you are not 
going to have a case on all fours like this, and let us pray we 
do not for the sake of the country, and I mean that very 
seriously, and I think that is something everybody, Republicans 
and the Democrats should agree with, we hope we would not have 
another such case, but then most cases, virtually all cases, 
the Supreme Court, they are probably not going to be heard if 
they are on all fours with a previous Supreme Court case.
    But I am just thinking of the doctrine itself, the equal 
protection proposition, can you see other types of cases where 
that could be brought in?
    Mr. Olson. There was a case in the Eleventh Circuit, where 
the standards, with respect to an affidavit, the kind of 
affidavit that could be used to count an absentee ballot was 
changed after the election. The Eleventh Circuit, in a case 
called Roe, R-o-e, had decided, and this was a few years ago, 
had decided that that violated the Equal Protection Clause and 
the Due Process Clause because the rules had been changed after 
the election, and there were different standards being applied 
to absentee ballots that had been cast by in one set of 
circumstances and in another set of circumstances. That would 
be one example.
    There was a United States Supreme Court decision in which 
prisoners were allowed to cast an absentee ballot if they were 
in prison in a county other than their residence, but if they 
were living, if they were imprisoned in the same county as 
their residence, then they could not cast an absentee ballot. 
The Supreme Court of the United States found unanimously, as I 
recall, that that violated the Equal Protection Clause.
    Senator Leahy. But do you see this being applied in cases, 
other than election cases?
    Mr. Olson. I have not thought about its application in 
other than election cases.
    Senator Leahy. I was toying with that idea earlier. I was 
having a hard time thinking of some other case, but I--
    Mr. Olson. I am sure the lawyers will come up with them, 
but I have not thought of them.
    Senator Leahy. Mr. Chairman, I went over my time, and I 
apologize.
    Chairman Hatch. We will turn to Senator Feinstein.
    Senator Feinstein. Thanks very much.
    Incidently, Mr. Olson, I just reread that part of the 
article. You do not say that these people were otherwise 
qualified anywhere that I could find. They were just kind of 
hung out there and condemned because they might have been 
someone's relative or friend or something else. And you know, 
as they say around here, what is sauce for the goose, is sauce 
for the gander.
    Mr. Olson. I understand, and I recognize that I did not 
describe their qualifications. What I was saying, and I should 
have been more careful, I think I should have been more 
careful, but what I was--
    Senator Feinstein. That is an admission. We appreciate 
that.
    Mr. Olson. What I was saying is that the cumulative effect 
of selecting a substantial number of officials that have 
specific relationships in that pattern, plus these other 
factors, created an impression that I thought was unfortunate 
for the Department of Justice. Standing alone, I would say this 
now, and I probably should have said it much more clearly, 
standing alone, the appointment of someone who is well-known 
and someone who might--
    Senator Feinstein. You do not really need to explain. I 
mean, I understand what that piece was meant to do. I 
understand what it did. The thing we have to evaluate is your 
ability, in view of these feelings, to be objective and open-
minded, and of course that is our job to do. But let me give 
you a little break.
    Mr. Thompson, I said I was not going to ask you any 
questions, but let me just take a woman's prerogative and 
change my mind and ask you if you would look at something. A 
while back, in the, oh, mid-nineties, about six California 
sheriffs met with me to talk about young people that were 
getting materials off the Internet of how to make bombs, and 
were bringing these bombs to school, were blowing themselves 
up, et cetera.
    And I sat down, and I looked at the bombings in this 
country and saw that they were going up. And then we downloaded 
from the Internet something called the Terrorist Handbook, 
which begins by saying, in effect ``If you want to build a bomb 
that is bigger than this which devastated Oklahoma City or want 
to blow up the White House, this is for you.'' And it tells you 
how to break into a chemistry lab, what to steal, and then it 
has got diagrams of how to put together pipe bombs, letter 
bombs. Every use in that is illegal. There is not a single 
legal use in any of it.
    Well, over three sessions, I think, I tried to pass a law 
making it a Federal violation, essentially, to publish bomb-
making material, if you have the knowledge or intent that it is 
going to be used for a criminal act. And I worked with the 
Justice Department to draft this law, and I believe it will 
survive a court test.
    My point is this: There have been no Federal prosecutions, 
under this law and in the meantime there have been at least 15 
incidents reported that could have possibly been federally 
prosecuted. I would like to ask you to take a look at this and 
see if there are not cases worthy of prosecution under this 
law. This is becoming a huge problem in this country. It is so 
easy for young people and others to get this information. You 
know, just a few clicks, and you pull up the diagram telling 
you exactly how to do it, et cetera. So, if you would enforce 
this law, I would be very grateful.
    Mr. Thompson. What you describe sounds horrible, and I will 
take a look at it.
    Senator Feinstein. Thank you. Thanks very much.
    Mr. Olson, could I go back to a case that you represented, 
I know you will remember, the Virginia Military Institute, and 
it is a case in which you represented the school, and the 
school did not want to admit women, and the Court ruled 7 to 1 
against you. I will not read some of the testimony that the 
school entered into evidence, like, ``Women basically do not 
have the same threshold on emotion as men do. They break down 
emotionally. There are fields in which women so often 
flounder,'' et cetera, et cetera, et cetera.
    But after the Supreme Court decided the case 7 to 1, you 
said that Justice Scalia's lone dissent in the case was, and I 
quote, ``one of the most elegant and moving opinions I have 
ever read,'' and you stated that, ``I would have to agree with 
Justice Scalia that the majority's opinion seems to be 
incorporating society's current preferences into the 
Constitution, and that is a very perilous course.''
    Do you consider equal rights for women merely one of 
society's current preferences?
    Mr. Olson. No, I do not. I think that I said that in the 
context of the--we were representing, on appeal, in the Supreme 
Court, the Commonwealth of Virginia with respect to that 
program. Virginia had determined that single-sex education was 
advantageous for some young people and had this program that 
had, in the past, been very successful for young men. It had 
determined, as a result of a previous appellate court decision, 
that that program could only be sustained constitutionally 
under the Equal Protection Clause if it also afforded an 
opportunity for young women to have a comparable type 
adversative education in the Virginia system.
    Virginia felt that, while most of its higher educational 
budget, something like 97 or 98 percent, went into co-
educational opportunities, that single-sex education, since it 
had had some benefits for some young people, should be 
available in Virginia to both sexes and that it should not just 
be available in the private sector, that the public sector, for 
people who could not afford to go to private school, ought to 
be given those opportunities, and that was the basis on which 
we presented the issues to the United States Supreme Court.
    Senator Feinstein. I am not sure I understand. Are you 
making the case that if Virginia had a female Virginia Military 
Institute that an all-male Virginia Military Institute would 
not have been a problem? I am not following what you are trying 
to say.
    Mr. Olson. The Fourth Circuit had said, the first time the 
case had proceeded through the appellate system, that Virginia 
could have a single-sex male institution, provided that 
Virginia also provided a single-sex educational opportunity for 
young women that was modeled on a comparable standard. That is 
what the United States Court of Appeals for the Fourth Circuit 
had said.
    Thereafter, and I was not involved in the case on behalf of 
the State of Virginia at that time, thereafter, Virginia set 
that system up. The Fourth Circuit approved that system, and 
that is the system, the system where there were comparable 
educational opportunities on a single-sex basis in Virginia, 
along with its broad co-educational program, that is the issue 
that went to the Supreme Court on that basis. Now that was 
rejected, as you say, 7 to 1 by the United States Supreme 
Court.
    Senator Feinstein. Attorney General Ashcroft stated during 
his confirmation hearing that Casey and Roe were the settled 
law of the land and that he would follow the law in this area. 
He also said, and I quote, ``I do not think it could be my 
agenda to seek an opportunity to overturn Roe.'' Do you agree 
with that, and will you similarly follow those decisions in the 
abortion rights area?
    Mr. Olson. Yes.
    Senator Feinstein. Now, I want to ask you about another 
court case that you took, and that was the case in Washington 
on strict liability for makers of assault weapons. I am trying 
to find it here.
    You answered Senator Sessions, I thought, very directly. I 
think you said that if you are confirmed as solicitor general, 
you would defend Federal gun laws, such as the ban on assault 
weapons, the Brady law, et cetera; is that correct?
    Mr. Olson. I do not think that Senator Sessions asked me 
those questions, but I do believe that the laws passed by the 
United States are entitled to a defense by the United States 
Department of Justice, and unless they are clearly 
unconstitutional or in some way invade the prerogatives of the 
executive branch, the Justice Department has a responsibility 
to defend those statutes in court, and I do agree that it would 
be the Justice Department's responsibility to do that.
    Senator Feinstein. So you would.
    Mr. Olson. Yes.
    Senator Feinstein. Let me ask you about this case where you 
represented several Republican Congressmen who challenged a law 
imposing strict liability for damages in the District on makers 
of assault weapons and other high-firepower guns. I gather what 
happened was the Federal District Court stated that the issue 
that you raised had been resolved unfavorably to you by the 
D.C. Court of Appeals, it actually called your argument 
disingenuous, and the D.C. Circuit affirmed that. As I 
understand it, under D.C.'s Assault Manufacturing Strict 
Liability Act of 1990, makers of assault weapons and other 
high-firepower guns are held strictly liable for damages when 
those guns are used to injure or kill innocent people in the 
district.
    And you brought a case, on behalf of several Republican 
Congressmen, rather than challenging that law in Congress. You 
represented a small group of people trying to strike down that 
street liability law. I am curious about why you took that 
course. It was obviously not a successful course.
    Mr. Olson. I have very, very limited memory of that case. 
It was handled by lawyers in my office. My name was on it, and 
I am not disclaiming responsibility for it, but I did not do 
the bulk of the work. It was a number of years ago. We were 
approached by Congressman Bliley, with respect to the interplay 
of the authority of the District of Columbia legislature and 
Congressional authority, with respect to review of actions by 
the District of Columbia.
    Congressman Bliley felt that there was a Congressional 
prerogative, with respect to the statutes that existed at the 
time, with respect to the responsibility of the District of 
Columbia in circumstances that were involved in that case. It 
was a legal issue. And as I recall, you are correct, that we 
were not successful in that case, but we did represent 
Congressman Bliley, and I guess a couple other Members of 
Congress, but I cannot, and I do not remember enough of the 
specifics to be any more helpful with respect to the precise 
legal arguments. We would not have made those legal arguments 
unless we felt that they were legitimate legal arguments that 
had a good-faith basis for having brought them, but I do not 
recall any more of the details.
    Senator Feinstein. Thank you.
    Thanks, Mr. Chairman. Thank you very much, gentlemen.
    Chairman Hatch. Thank you, Senator Feinstein.
    We are going to turn now to Senator Kennedy.
    Senator Kennedy. Thank you.
    Thank you, and I apologize to the witnesses for not being 
here during the course of your testimony. As you have figured, 
we all have a number of different responsibilities at this 
time.
    I want to congratulate both of you on your nominations. I 
wish you well. I'd like to get back to Mr. Olson, and Senator 
Feinstein's question about the VMI decision. I understand that 
during the presentation on your side, the Virginia experts used 
the words, as Senator Feinstein has pointed out, ``Women 
basically do not have the same threshold on emotion as men do. 
They break down emotionally. And there are fields in which 
women so often flounder; spatial things, geometric things, math 
and physics, and leadership itself.''
    What was your reaction when you saw that kind of language?
    Mr. Olson. Oh, I was not very happy with it.
    Senator Kennedy. Did you ever say anything about it?
    Mr. Olson. Well, I was brought in to handle the case in the 
Supreme Court. That was the trial court record, and I think 
that, without dissecting the whole record, I think--
    Senator Kennedy. I am not asking about the whole record, I 
am asking about these sections here.
    Mr. Olson. There were things that, as an appellate lawyer, 
I did not agree with, and I did not--I wish they had not been 
in the record, but they were in the record. They were the 
experts that were used in connection with the trial of that 
case.
    Senator Kennedy. But did you find those offensive? Did you 
ever register any of that? Did you ever say, ``Look, I am glad 
to take on this question about whether there can be single-sex 
classes, and whether they are constitutional, but I am not 
going to be a part of a case that has that kind of stereotyping 
of women''?
    Mr. Olson. I thought that there were issues in the case 
involving single-sex education that the Commonwealth of 
Virginia had some legal issues that they were entitled to 
present to the United States Supreme Court, and I felt 
comfortable handling that case. As I said, we did lose the case 
in the United States Supreme Court, and the Supreme Court 
really was not very closely divided on the case. But I do feel 
that, from a legal standpoint, we presented a legitimate 
argument.
    Senator Kennedy. As I understand, there is a different 
constitutional standard when you have excluded a group, such as 
women, as VMI did, in meeting constitutional muster versus 
establishing classes to meet the constitutional standards which 
are established for single-sex.
    Mr. Olson. Courts had, in the past, and it is still a 
little bit confusing with respect to the differential between 
strict scrutiny and what the Court called an intermediate 
scrutiny. This was a case involving two separate institutions 
in Virginia, one which excluded women, and one which excluded 
men, to provide citizens in Virginia with an option of single-
sex education.
    Senator Kennedy. Well, yes, I understand that, but as I 
understand the Supreme Court's ruling on excluding women as a 
gender and as a class, there are past Supreme Court holdings on 
this that are pretty clear. I want to sort of move on from 
this, but that is my understanding.
    On the questions about the recent Supreme Court decisions, 
Framers of the Constitution struggled, obviously, with the 
competing Federalist/anti-Federalist philosophies, as a result 
of the great debate on our democracy and Constitution which, in 
changing ways over the years, balanced the relationship of the 
Federal Government and the States.
    Now, the debate is before us again today. In recent years, 
the Supreme Court, in a series of 5-4 decisions, has struck 
down all or parts of Federal statutes on federalism grounds. 
Many constitutional scholars believe the Court's recent 
decisions are a dramatic departure from the settled precedent 
and an accurate reading of the 11th and 14th Amendments.
    As a legislator, I am concerned about the effects that the 
Court's recent decision will have on Congress' ability to pass 
laws that eradicate discrimination and bias. For example, an 
extensive record was compiled in support for the Americans With 
Disabilities Act. The record included 13 hearings, 63 public 
forums across the country attended by over 30,000 people, and 
thousands of letters documenting discrimination. And when the 
Garrett case was argued before the Court, 14 States filed a 
brief supporting the ADA. The States supported the ADA action 
in terms of the coverage of State employees.
    A similar record was compiled in support for the Violence 
Against Women Act. Over 30 States supported it when the 
Morrison case was argued before the Supreme Court. Yet the 
Court found portions of both statutes unconstitutional.
    And let me just add to that, in the ADA, there had been six 
Circuit Court decisions supporting coverage of the ADA to State 
employees and employers, and the States were also supportive, 
as was the President of the United States, former President 
Bush.
    We have another, and I am just wondering about your 
reaction to this. We have seen on the questions of Violence 
Against Women, we have seen in certain issues on pay, overtime, 
we have seen on the Older Americans Act, we have seen on the 
Disability Act--I know I heard you talk about Family Medical 
Leave in an earlier response, and that you support our 
position. You have other kinds of employment statutes on this.
    We spent a lot of time, and many of us were on the 
committees of jurisdiction, spending a lot of time working out 
a legislative process to address these particular needs. And 
what we are seeing now is this Court, in 5-4 decisions, 
routinely knocking down these laws. I just want to get your 
reaction to those precedents and I'd like to know whether we 
are going to have a friend in your office or not.
    Mr. Olson. The only direct experience I have had with the 
11th Amendment was a case I argued last year on behalf of a 
citizen from Vermont, who brought a qui tam case. It was called 
Stevens, was the name of the individual, brought a qui tam case 
against the State of Vermont, and I was arguing that the 
Federal qui tam statute did apply under those circumstances. 
The Supreme Court did not reach the 11th Amendment issue in 
that case.
    I believe, as I said before, that if there is any 
reasonable way that a good-faith defense can be made with 
respect to a statute that is enacted by this Congress, under 
the Commerce Clause or Section 5 of the 14th Amendment--
    Senator Kennedy. Well, the Spending Clause is the one big 
clause.
    Mr. Olson. The Spending Clause, yes.
    Senator Kennedy. I would like to submit some questions on 
that specifically, because we are trying to look at that. The 
Federal Government can sue. But, as a practical matter, given 
the range of different responsibilities and priorities, that is 
not an effective remedy. The EEOC is so far behind. You can get 
an injunction, but without monetary damages out there, how 
effective is this?
    The Supreme Court does not appear to be leaving us remedies 
in this area, and this is a whole new departure. We had an 
interesting hearing in our Human Resource Committee yesterday 
on the subject. John Marshall said very clearly, understanding 
the 11th Amendment that, he saw no impediment, in terms of the 
application of these statutes to the States and State 
employees. And we have seen a significant change in the 
interpretation of it.
    I do not know whether you have looked through any of those 
cases or thought at all about that particular kind of issue 
because it relates very importantly to the division of powers 
between the Congress and the courts and is very important, I 
think, certainly to us.
    Mr. Olson. I agree with you. I think the 11th Amendment 
line of cases is--I would not have anticipated it. I would not 
have anticipated the way it played out particularly in the 
Alden v. Maine case, where it applied to cases brought not just 
in the Federal District Courts.
    I do think that there is undoubtedly more latitude that 
will be given to Congress under the Spending Clause, and I do 
agree with, I think the import of your question that the 
solicitor general and the Department of Justice, not just the 
solicitor general, but the Department of Justice has to be 
Congress's partner in trying to find solutions to what you 
decide laws should cover that are constitutional and will be 
upheld in court.
    And I think we have a very, very grave responsibility to 
find ways to defend laws that this Congress passes.
    Senator Kennedy. Thank you for your response.
    Let me move on to the issue of diversity. What I would like 
to know is, if it is appropriate for the President to consider 
race and gender in putting together his Cabinet, why is it not 
appropriate for other employers and public universities to do 
the same?
    President Bush's director of Presidential Personnel 
recently admitted that the White House considers race, 
ethnicity, and gender in making Cabinet and executive branch 
appointments. He also stated, ``The President is very committed 
to diversity of thought, professional background, of geography, 
ethnicity, and gender. If everyone comes from the same 
background, same part of the country, looks the same, acts the 
same, it is not going to be as strong a Cabinet as if you have 
diversity of background, however you define that of geography, 
ethnicity and gender.''
    What is your reaction to the director's statement, which, 
as I would understand it, must be the President's position as 
well?
    Mr. Olson. I assume so, too.
    With respect to the legal question implicit in that, the 
courts have held that when Presidents are making appointments 
to assist the President in connection with the discharge of his 
responsibilities, I think that the courts have not applied the 
Due Process Clause or the Equal Protection Clause, but I 
understand what you are saying.
    Senator Kennedy. Well, I know you understand what I am 
saying.
    Chairman Hatch. He may be the only one.
    Senator Kennedy. You understand, Orrin.
    [Laughter.]
    Senator Kennedy. We have seen different lower court 
decisions on these issues, on affirmative action, and I am 
trying to understand which cases you would take. We see 
different measures bubbling up in various circuits at the 
present time and I am trying to get some sense about your own 
views of this in terms of your activity in this area before the 
Supreme Court.
    Mr. Olson. I can't tell you, of course, which cases would 
be the best cases to take, and that will, of course, depend 
upon whether there are Federal statutes involved or whether it 
involves a State statute and the question of whether the United 
States should file an amicus brief.
    The Supreme Court has said with respect to the decisions 
that are predicated on race as a factor in Government programs 
that strict scrutiny applies, and any case that the Government 
takes to the Supreme Court with respect to that--I assume the 
person who makes that decision is going to want to win that 
case, and therefore to find the cases that have the best 
factual bases that will supply the Supreme Court with the 
factual predicate to decide that the strict scrutiny, 
compelling governmental interest, narrowly tailored remedy will 
be successfully applied.
    Senator Kennedy. Is diversity an appropriate goal for a 
university?
    Mr. Olson. Well, the Supreme Court has said that strict 
scrutiny, compelling governmental interest, and so on, standard 
applies. What the Court said, or what Justice Powell said in 
the Bakke case has to be taken into consideration, along with 
the Adarand case and the Croson case which have come along 
secondarily.
    I agree that it is an extremely important question that in 
colleges and universities and workplaces and everywhere else, 
all of our citizens have access to those opportunities and 
every opportunity to participate in them. And we as a culture 
need to do everything we possibly can under the Constitution to 
make sure that all of those opportunities are available to all 
people.
    Senator Kennedy. Mr. Olson, I know there was one earlier 
question--maybe there were others--that was communicated to me 
on reproductive rights, and I would like to ask you a question.
    There are those who believe that Roe was a sound 
constitutional decision and others who believe it should be 
overturned at the first opportunity. For example, during the 
Reagan Administration, the Acting Solicitor General, Charles 
Fried, argued that ``The textual, historical, and doctrinal 
basis of Roe v. Wade is so far flawed that this Court should 
overrule it and return the law to the condition in which it was 
before it was decided.''
    During the Bush administration, William Bryson argued that 
``The United States continues to believe that Roe v. Wade 
unduly restricts the proper sphere of legislative authority in 
this area and should be overruled by this Court.'' Similarly, 
during the Bush Administration, Solicitor General Ken Starr 
argued, ``The United States continues to believe that Roe was 
wrongly decided and should be overruled.''
    So if you are confirmed, will you urge the Supreme Court to 
overturn Roe v. Wade?
    Mr. Olson. No. I accept what now Attorney General Ashcroft 
said. And those arguments were made at a time quite some time 
ago before the Supreme Court made it abundantly clear that Roe 
v. Wade, whatever one might think about the legal analysis that 
is in it, is the law of the land. It reconfirmed that in the 
Planned Parenthood v. Casey case and last term in the Stenberg 
case.
    And Attorney General Ashcroft said that he accepted those 
as settled law. He thought it would be counterproductive, 
whatever one might have thought about them, to bring that back 
to the Supreme Court. The Supreme Court is not interested in 
changing those decisions.
    Senator Kennedy. Even if the composition of the Court 
changes?
    Mr. Olson. The Supreme Court is the one that can decide 
whether something is settled, and there may be other 
circumstances out there in the future that I can't begin to 
contemplate.
    The other thing that the Supreme Court did last year in a 
case involving the Miranda decision, in a decision by Chief 
Rehnquist, said that stare decisis is extremely important to 
the Supreme Court, especially absent special circumstances in 
constitutional cases. And I think that even if there are 
changes in the composition of the Court, whatever changes there 
are in the composition of the Court, are going to respect the 
doctrine of stare decisis.
    Senator Kennedy. Mr. Chairman, I have maybe two final 
questions, quick questions.
    Chairman Hatch. Why don't we give you that time, but could 
I interrupt for a second?
    Senator Kennedy. OK.
    Chairman Hatch. Does anybody on this side have any further 
questions of Mr. Thompson?
    Senator Kennedy. Well, I have one.
    Chairman Hatch. Well, other than your one, how about your 
side?
    Senator Leahy. Most of it I can submit for the record, but 
I do have a couple questions, one involving the Hatch bill 
which I strongly support and I wanted to make sure that--
    Chairman Hatch. At last, a common agreement, is all I can 
say. That is great.
    What we will do, then, is let Senator Kennedy finish his 
questions, then Senator Leahy can ask whatever he wants of you, 
Mr. Thompson, and we will let you go. And then I presume 
Senator Leahy will be the last to ask further questions of Mr. 
Olson.
    Senator Kyl. Excuse me, Mr. Chairman. I don't think I will 
have another question. I have one request to make, but I have 
no objection to going ahead and--
    Chairman Hatch. Is this procedure all right with my 
colleagues?
    Senator Kyl. Yes, and as of right now I don't have another 
question, just a quick comment.
    Chairman Hatch. All right, that will be fine. I think we 
can get this wrapped up and then have time to issue written 
questions.
    Senator Leahy. We will have to check on this side to see. 
We are checking right now.
    Chairman Hatch. All right. If you will do that, I would 
appreciate it, but I would like to let Mr. Thompson go.
    Senator Leahy. Mr. Thompson can, sure.
    Senator Kennedy. Just finally, Mr. Olson, in 1991, in your 
piece in the Journal of Legal Commentary on the Thomas 
hearings, you had a series of suggestions. One suggestion was 
that ``the ABA and all the other self-serving interest groups 
should be deleted from the process.'' Approximately 2 weeks 
ago, President Bush implemented this change.
    What I would like to know is whether anyone in the Bush 
administration consulted you in a formal or informal way before 
they decided to remove the ABA.
    Mr. Olson. No.
    Senator Kennedy. You obviously don't consider the 
Federalist Society to be a self-serving interest group.
    Mr. Olson. I don't. The Federalist Society does not lobby; 
it does not pass resolutions, it does not file litigation, it 
does not file amicus briefs. What it does is sponsor programs 
which--yes, members of the Federalist Society have points of 
view, but opposing points of view are also expressed.
    All four of President Clinton's counsels have been 
participants in Federalist Society programs. People for the 
American Way have been represented in those programs. The ACLU 
has been represented in those programs. One of the things the 
Federalist Society does is try to bring people together that 
have strong views and put them out for public evaluation.
    Senator Kennedy. Mr. Thompson, I thank you and congratulate 
you.
    Mr. Thompson. Thank you.
    Senator Kennedy. In an article you wrote dealing with 
black-on-black crime, you argued that ``Conservatives have led 
the way in implementing tough new Federal law enforcement 
measures. Under the Federal system of Government, the primary 
task of fighting crime falls upon State and local governments. 
Nevertheless, it is important that the Federal Government do 
its share and take a leading role in the fight against crime.''
    As you know, there have been significant bipartisan 
majorities of both Houses of Congress supporting passage of 
comprehensive Federal hate crimes legislation. Last week, we 
introduced legislation in the Senate with 51 cosponsors. Last 
year, we passed it with a very substantial vote.
    Consistent with your view that it is important that the 
Federal Government do its share and take a leading role in the 
fight against crime, will you commit to working with us to pass 
this important legislation this year?
    Mr. Thompson. I will commit to working with you, Senator.
    Senator Kennedy. That is as far as we can get?
    Mr. Thompson. No, but I do want to just give you something 
about my background.
    Senator Kennedy. Please.
    Mr. Thompson. As United States Attorney, we brought the 
first criminal prosecution for members of the Ku Klux Klan who 
were terrorizing some of our citizens for simply who they were 
associating with. Obviously, we find that kind of violent 
crime, especially violent crime that is motivated by racism, by 
sexism, or any other kind of bias, abhorrent and we want to do 
whatever we can against it. And I am certainly willing to work 
with you to see what is the proper role for the Federal 
Government to assist the States in prosecuting these kinds of 
crimes.
    Senator Kennedy. Well, I appreciate that response and that 
is very constructive. I wouldn't have expected otherwise, but 
it is very reassuring. We have seen an overall gradual 
reduction in terms of crimes of violence, but not in the area 
of hate crimes. They have been going up, particularly with 
certain groups. We have tried to work out a rather limited role 
actually for the Federal Government and their involvement.
    We have refined and narrowed it considerably over the 
period of the last years, and responded to some of the 
questions about special rights. But we are very serious about 
carrying this legislation forward. We would like to do it with 
the support of the President. He will rely, I would imagine, on 
the Justice Department for advice, and your judgment will be 
very important, so we will look forward to working with you.
    Also, I would like to mention the area of immigration. We, 
as you know, recently had visitors from Mexico. The President 
has talked about looking for new opportunities to work on 
issues involving Mexico, on which there are a lot of differing 
views.
    As members of the Immigration Subcommittee, Senator 
Brownback and I met with the Mexican foreign minister yesterday 
and the Minister of Interior. And I understand that Attorney 
General Ashcroft and Secretary Powell met with them for two-
and-a-half hours yesterday. So it is a matter of importance, 
and getting your involvement in that will be something we will 
look forward to as well.
    Mr. Chairman, I want to congratulate both of the nominees. 
I look forward to voting in support of both of them.
    Chairman Hatch. Well, thank you very much, Senator.
    Senator Kennedy. I thank the Committee for its kindness in 
working out the questioning period.
    Chairman Hatch. Well, thank you for your kindness. It is 
such a wonderful thing to me and I appreciate it very, very 
much.
    I guess Senator Leahy, unless we hear from some other 
Senator, will be our last questioner.
    Senator Leahy. Mr. Thompson, I am sorry again that we have 
kept you here so long with this unique and unprecedented way of 
having the Deputy Attorney General and the Solicitor at the 
same time. This has made it a little bit longer.
    There is an excellent piece of legislation, and I would ask 
you to look at it, the Drug Abuse Education, Prevention, and 
Treatment Act, otherwise known as the Hatch-Leahy Act, or in 
Vermont the Leahy-Hatch Act.
    Chairman Hatch. I am willing to call it the Leahy-Hatch 
Act.
    Senator Leahy. No, no, it is Hatch-Leahy.
    We discuss both treatment and prevention programs and law 
enforcement in it. It will be a difficult time to fully carry 
out this bill if some of the cuts that the administration is 
looking at, some of the cuts in crime-fighting money that they 
are looking at go through. We will have a difficult time doing 
this whole Act.
    I am not going to ask you to go into those parts where the 
administration is cutting money for law enforcement, but I 
would ask you to take a look at the bill and let both Senator 
Hatch and I know if you support the bill.
    The other thing I would as you to look at--
    Chairman Hatch. Well, let me just interrupt.
    We expect you to support the bill.
    [Laughter.]
    Mr. Thompson. I understand.
    Chairman Hatch. I haven't asked any questions, so I haven't 
asked for very much, but that is one thing we are going to ask.
    Senator Leahy. You see, Mr. Chairman, I am so shy and 
retiring, I couldn't come right out and say that. I leave it to 
you brash Westerners.
    Chairman Hatch. That is right.
    Senator Leahy. We New England understating types--
    Chairman Hatch. Well, you are more sophisticated than we 
are.
    Senator Leahy. We are just quiet.
    Chairman Hatch. But we also would like the money pushed for 
it, too, because it is a revolutionary bill that could make a 
real difference.
    Senator Leahy. The message in that, Mr. Thompson, is you 
have got something where both Senator Hatch and I are holding 
hands. Either one of us doesn't understand it or it is a darn 
good bill.
    Mr. Thompson. I understand.
    Senator Leahy. In this case, we both understand it very 
well, so it is a darn good bill.
    Now, in this bill--and here is something that you are going 
to have to look at very closely and I think there will be a 
debate on this--it does not include any mandatory minimum 
sentences for drug crimes. Now, that is a feature that is quite 
unusual for a drug bill, and I suspect we are going to be 
having hearings. We may be having hearings jointly, or I will 
be holding them or Senator Hatch will be holding them.
    And this is not a Democrat or Republican thing. There are a 
lot of Senators who go across the political spectrum--
conservatives, liberals, moderates--who are increasingly 
criticizing mandatory minimum sentencing schemes. They all look 
great to begin with and I suspect I voted for some. And I am a 
former prosecutor, but speaking just for myself I have some 
real problems with some of these. I know judges have some real 
problems.
    We all get frustrated when we see the occasional time when 
a judge is too lenient on a crime that calls for it, but the 
arbitrariness of this, among other things, has led to a country 
where we have more people behind bars than any other country in 
the world. We have an extremely high percentage of young 
African-American males behind bars. We have the disparity 
between crack and powder cocaine.
    All of these things are frightening me. They are 
frightening me as a parent, as a grandparent, to see what kind 
of a country it is bringing up. It is not that there is anybody 
up here who is not against crime. I mean, we can all accept 
that we are all against crime, but I think sometimes to prove 
it we have gone overboard.
    We see prison overcrowding, with all the problems that come 
out of that, I mean all the problems, and they are enormous 
ones. We see low-level drug offenders serving sometimes what 
seem to be draconian sentences. So I would ask you to look at 
mandatory minimums. I am not going to ask the question now. If 
you want to say anything about it, it would be useful and 
appropriate, but I would also like you to think about that.
    You are going to be confirmed. There is no question about 
that, but I would hope that you would--you don't have to answer 
that part, but I would hope you would look at this issue of 
mandatory minimums. I think there should be a debate on this. I 
have talked to Senator Ashcroft about it. I have not talked to 
the President, but I will. We should all look at that.
    Mr. Thompson. We will look at that, Senator. I will make a 
comment on whatever we can do and whatever this body can do 
to--and I wrote an article about this after I left the U.S. 
Attorney's office--whatever we can do to not only attack the 
drug problem on the supply side, and we shouldn't reduce our 
efforts on that--
    Chairman Hatch. That is right.
    Mr. Thompson.--but we have got to do something to attack it 
on the demand side if we are ever going to try to get this 
problem resolved in this country.
    When I became U.S. Attorney in Atlanta at the same time 
Senator Sessions was U.S. Attorney in Mobile, we had two 
prosecutors that were dedicated to drug prosecutions. We have 
many more now in the Northern District of Georgia, but we still 
have the same kind of serious problem with respect to drug 
smuggling, drug trafficking, drug use, and we have got to get a 
hold of this problem.
    We have been able to successfully attack other kinds of 
problems, for example, with drunk driving. We have been able to 
do that and make it socially taboo, and we have really got to 
try to do that with respect to the drug problem, work on the 
demand side. I don't have all the answers, but I promise you 
that--
    Senator Leahy. No one does, but understand my concern. Are 
these mandatory minimums creating just the opposite of what we 
wanted to create? Are we putting people in jail for a long, 
long time and then sending them back out into society where 
they are not going to be good members of society?
    Mr. Thompson. No. I understand what you are saying.
    Senator Leahy. You understand. We discussed this earlier, 
too.
    Chairman Hatch. Would my friend yield for just a comment or 
two?
    Senator Leahy. Sure.
    Chairman Hatch. I am really appreciative that Senator Leahy 
has brought this up. This is a bill that is near and dear to 
both of our hearts and it is long overdue. We are looking for 
alternatives to imprisonment especially for those first-time 
offenders and those who are young people who have made 
tremendously bad choices in their lives. We want to keep the 
supply side, law enforcement end up, but we do want the 
education, prevention, and treatment side beefed up.
    Frankly, this is a chance for us to work together on 
something that will be a joint initiative and would really make 
a difference in our society. So Senator Leahy and I are going 
to really push hard on this, and we have got to have the money 
there as well.
    In addition, if I could, Senator--I don't mean to keep 
interrupting you, but I would like to get this across since he 
has brought that up. The President said in his address to the 
joint session of Congress that he wants to help children of 
prisoners. Well, I do too, because we find a high percentage of 
those kids turning to crime themselves because they don't know 
what to do; nobody is there to help them.
    I have a number of programs that I think--I want you to 
look for ways of finding money for programs that will help 
children of prisoners. We will make a difference and bring down 
crime even more if we can give those kids a chance, especially 
in this digital age. I intend to do that. As a matter of fact, 
we are hosting a dinner on May 8th and I expect both of you and 
your wives to be there, OK?
    Mr. Thompson. OK.
    Chairman Hatch. OK, that will be great.
    Senator Leahy. Call the scheduler and tell them where I am.
    Chairman Hatch. I expect you to be there, too.
    Do you have any more questions?
    Senator Leahy. Well, the McDade law is another one. You 
know, that was slipped into the omnibus appropriations bill 
back in the 105th Congress. You have written an article about 
it. You say the McDade law should not be amended to permit the 
Department of Justice to unilaterally trump State bar rules. I 
happen to agree with that.
    I also feel, though, that the McDade law went further than 
anybody ever intended. You mention in your article the 
situation in Oregon where Federal prosecutors can no longer use 
federally authorized investigative techniques like wiretaps or 
consensual monitoring because of a recent attorney ethics rule 
of the Oregon State Supreme Court.
    We have cases where now U.S. Attorneys cannot do the kind 
of oversight in certain States, or are afraid to do the 
oversight of the FBI agents that they are supposed to be 
overseeing, or DEA or anything else, because they are afraid 
especially if they are doing a multi-state investigation that 
somehow they may be in violation of a particular State ethics 
law.
    Now, I introduced a bill last year which would do a clear 
choice of law rule under which Federal prosecutors would be 
subject to the ethics rules of the Federal courts in which they 
practice. I see it as sort of a compromise between the 
situation we now have under the McDade law and what I think 
many intended to do with it.
    Will you look at that, please, and see if there is advice 
you can give Senator Hatch, myself, and others, because I think 
that we have a lot of districts where cases are not being 
properly investigated or prosecuted. Take a look at the Alaska 
Air case, without going through the facts of that here, but ask 
somebody to tell you about that and just ask whether, without 
this, we might have saved some lives.
    Mr. Thompson. I have heard about that incident, Senator. I 
don't want to be flippant, but I have heard about my article on 
McDade from a number of my friends in the Department of 
Justice, and wouldn't it be great if I had had the foresight to 
think about whether I would have been here today when I started 
writing that.
    But as you recall from my article, I did say that I did not 
oppose any kind of provision that would resolve perhaps the 
conflict that would prevent Federal prosecutors and agents from 
doing their important work. I did reserve that in the article, 
and I am going to work with the career people in the Department 
and they are going to inform me of some of the clear examples 
that they have had where they believe McDade has impeded their 
efforts.
    I will say this as someone who will be hopefully advising 
the Department's representatives with respect to McDade. 
Whatever we do with respect to that legislation, we need to be 
able to send a good and clear message to the public and to the 
judges that somehow all lawyers are going to be treated fairly. 
I think that is in the interests of the Department as it 
proceeds with litigation.
    Senator Leahy. I agree, and I think lawyers must be held to 
high ethical standards. I am not suggesting that a Justice 
Department lawyer could come into a State and just run rough-
shod, but I think we can have very specific Federal rules for 
the Federal attorneys.
    I just don't want a situation where the U.S. Attorney 
decides, well, the only way I can cover myself on this is not 
to do any of the oversight of what is going on. Senator 
Sessions was a U.S. Attorney, and I think anybody who has been 
a prosecutor at the State or Federal level knows that you are 
not out there taking the fingerprints and all, but you sure as 
heck want to know what the investigators are doing. If they are 
going to be doing searches or they are going to be doing 
wiretaps or something like that, you want to have some 
involvement in it because sooner or later you are going to have 
to try that darn case.
    Mr. Thompson. Let me make it clear. I don't want to have 
any law on the books that is going to prevent Federal 
prosecutors from aggressively enforcing the law.
    Senator Leahy. Thank you. I have no further questions of 
Mr. Thompson.
    Chairman Hatch. Mr. Thompson, I think we can excuse you, 
unless you would like to stay.
    [Laughter.]
    Mr. Thompson. Thank you.
    Senator Leahy. Your cousin has already left; I noticed he 
was here earlier. I must admit you should mention to him, you 
know, all of us here in the Congress think what a superb job he 
does at the Library of Congress. If there is one piece of our 
Government--there are many, perhaps, but if there is one that 
really stands out as a national, international, world treasure, 
it is the Library of Congress, and your cousin is one of the 
reasons for that.
    Mr. Thompson. I am glad at least one member of the family 
came out well.
    Chairman Hatch. Let me just say before you leave that we 
will keep the record open. Assuming that we can get the 
transcript by tomorrow or Saturday, we will keep the record 
open until next Wednesday for written questions to both of you. 
Hopefully, when you get those questions, you will get the 
answers right back in so that over this recess period we will 
be able to go through them all and hopefully resolve any 
questions that people have. In fact, I expect to resolve them.
    If you will jump right on that, we would be very 
appreciative.
    Mr. Thompson. Yes, sir.
    Chairman Hatch. We want to thank you and your family. You 
have got a great family and your wife is a great human being. 
We are grateful to have you here and we will release you at 
this time so you can get about your other duties, OK?
    Mr. Thompson. Thank you.
    Chairman Hatch. Well, then Senator Leahy will be our last 
questioner.
    Senator Leahy. I think Senator Kyl--
    Senator Kyl. Since I anticipated we might be done by now, 
let me just make a request for the record. At 4:15 I will have 
to leave, if that is all right. What I would like to ask is 
leave to introduce into the record a correction of the record 
or clarification with respect to the requests from the last two 
administrations to U.S. Attorneys to vacate their positions.
    I believe that at the beginning of the Clinton 
administration, there was a general request that all U.S. 
Attorneys submit their resignations.
    Chairman Hatch. Within 10 days.
    Senator Kyl. Yes, and I don't believe that was done in this 
administration. I know in the case of the U.S. Attorney in 
Arizona, for example, there was no such request. There have 
been some, but I think there was an implication that the two 
situations were similar and I would simply like to submit for 
the record the exact facts so that people can judge that for 
themselves.
    Senator Sessions. I would just follow up that I believe 
Vice President Cheney made it clear that they were not going to 
do that because they did not like the implication that a mass 
firing with no notice gave to the rule of law. So they have 
adopted a different policy that is quite preferable. When I was 
U.S. Attorney, I was technically fired by President Clinton 
within 10 days of his taking office. As I recall, however, he 
let me stay around a little longer.
    Senator Leahy. I was going to say you didn't leave in 10 
days by any means.
    Senator Sessions. It all worked out, but I think there has 
been more sensitivity to that by this administration, which I 
think is good and is consistent with my suggestion to them.
    Senator Leahy. Why don't we let CRS just give us a 
definitive response on that?
    Senator Kyl. Mr. Chairman, might I just before I leave 
again say that I think both of these nominees are 
extraordinarily well qualified. These are the two most 
important positions in the Department of Justice, other than 
the Attorney General. They both represent all of the people of 
the country, and I just have no doubt that both candidates will 
acquit themselves very, very well. And I look forward to their 
speedy confirmation. We need their help.
    Chairman Hatch. Right. I want to thank my colleagues for 
spending all day with us here today. This has been a lengthy 
hearing and I want to thank you for being with us.
    Senator, we will turn to you for final questions.
    Senator Leahy. I want to let the grandchildren know that 
they are going to get their grandfather back in just a few 
minutes. Seeing the three of you there has made me miss my 
grandson more every minute looking at you.
    Chairman Hatch. You three have been just wonderful, I will 
tell you. Your parents have not been as good as you have.
    [Laughter.]
    Senator Leahy. Mr. Olson, you represented David Hale. This 
is no surprise to you; these are some questions I asked you 
when we met. He was the sole witness to make specific 
allegations against President Clinton in the investigation of 
the Whitewater matter.
    How did you come about representing him and were you paid 
for that?
    Mr. Olson. Two of his then lawyers contacted me and asked--
at the time, Mr. Hale was a citizen of Arkansas and he was a 
witness down in the proceedings, in the Whitewater proceedings 
that were being conducted by the independent counsel in 
Arkansas.
    At the same time, Senator D'Amato's Committee was 
conducting an investigation of Whitewater. I can't recall the 
exact name that that investigation took, but it was Whitewater 
investigations here in Washington, D.C. That Committee gave an 
indication that it intended to subpoena Mr. Hale to testify 
before that Committee here in Washington, D.C.
    One of his lawyers contacted me--I can't recall the man's 
name--and asked whether I would be available to represent Mr. 
Hale in connection with that subpoena here in Washington, D.C. 
They felt that they needed Washington counsel with some 
experience dealing with a Congressional investigation. I did 
agree to do that. Mr. Hale and I met together. He agreed to pay 
our fees. I knew that there was some possibility that he 
wouldn't be able to pay.
    Senator Leahy. Now, who agreed to pay the fees? Mr. Hale 
did?
    Mr. Olson. Mr. Hale did. I knew there was some possibility 
that he might not be able to pay the fees, but I did agree to 
represent him. He was subpoenaed by that committee. He and I 
spent considerable time together going over the facts as he 
knew them. He determined that it was not in his best interest 
and to claim his rights under the Constitution not to testify 
before Senator D'Amato's committee.
    There was a great deal of pressure on him and his counsel 
to have him testify. It was not in his interest to do so. He 
claimed his constitutional right not to testify and he did not 
testify. That ended my relationship with him. As it turned out, 
he was not able to pay his legal fees. I was never paid for 
that representation by anybody. I would love to be paid by 
anybody who would like to volunteer to do that, but--
    Senator Leahy. The reason I asked the question--as you 
know, I asked you this question once before because there has 
been so much going around and this is the same answer you gave 
me earlier and I wanted you to have a chance to--
    Mr. Olson. Senator Leahy, I very much appreciate your 
asking me the question so I could explain that.
    Senator Leahy. Now, there were accusations later on that 
Richard Mellon Scaife funneled money through the American 
Spectator and its Arkansas Project to pay Mr. Hale, actually to 
pay him to offer false testimony against President Clinton. 
There were, I am told, eyewitnesses who testified at the grand 
jury who said Mr. Hale received payments from a Mr. Dozier, who 
in return received money from a lawyer connected to the 
Spectator.
    I would not ask you to in any way violate the attorney-
client relationship, but are you aware of any of that?
    Mr. Olson. I was aware of those accusations. I am not aware 
of any payment to Mr. Hale for any purpose, and I will say that 
the independent counsel engaged, with the approval, I think, of 
the Department of Justice, an individual by the name of 
Shaheen, who had been the head of the Office of Professional 
Responsibility in the Department of Justice, to investigate 
those allegations. An investigation was conducted. I was a 
witness in that investigation.
    There was a report filed. I think it is still under seal. I 
have never seen the report, but that is all I know about it. I 
am not aware of any money that came from Mr. Scaife or anyone 
else to Mr. Hale.
    Senator Leahy. Were you involved in the so-called Arkansas 
Project at any time?
    Mr. Olson. As a member of the board of directors of the 
American Spectator, I became aware of that. It has been alleged 
that I was somehow involved in that so-called project. I was 
not involved in the project in its origin or its management.
    As I understand it, what that was was a contribution by a 
foundation to the Spectator to conduct investigative 
journalism. I was on the board of the American Spectator later 
on when the allegations about the project were simply that it 
did exist. The publisher at that time, under the supervision of 
the board of directors, hired a major independent accounting 
firm to conduct an audit to report to the publisher, and 
therefore to the board of directors, with respect to how that 
money was funded. I was on the board at that time.
    As a result of that investigation, the magazine, while it 
felt it had the right to conduct those kind of investigations, 
decided that it was not in the best interest of the magazine to 
do so. It ended the project. It established rules to restrict 
that kind of activity in the future and put it--
    Senator Leahy. Did a great deal of that money come from 
Richard Mellon Scaife?
    Mr. Olson. Yes.
    Senator Leahy. Two million dollars?
    Mr. Olson. I don't know the exact amount.
    Senator Leahy. Would $2 million--
    Mr. Olson. It wouldn't surprise me. That is in the ball 
park, and there was an audit that was made public, as I 
understand it, and I don't know the exact number.
    Senator Leahy. Did you have any contact with Kenneth Starr 
or part of his prosecution team in regard to the Arkansas 
Project?
    Mr. Olson. No, none whatsoever with respect to the Arkansas 
Project. Now, Mr. Hale was a witness for Mr. Starr.
    Senator Leahy. I understand.
    Mr. Olson. I didn't talk to him at all about it, but I 
talked to his prosecutors down in Arkansas when it was a 
possibility that he would testify in Washington. They were 
concerned about that as well and I did speak to them.
    Senator Leahy. ``Nasty,'' ``Brutish'' and ``Short'' were 
pseudonyms used in the American Spectator Foundation. Did you 
publish articles under one of those pseudonyms, ``Nasty'', 
``Brutish'', or ``Short?''
    Mr. Olson. Yes, but the full name is ``Solitary, Poor, 
Nasty, Brutish and Short,'' which is Thomas Hobbs' 
characterization of the life of man.
    Senator Leahy. Did you identify with one of those?
    Mr. Olson. No. That was the--
    Senator Leahy. Not ``short.''
    Mr. Olson. That was the solitary--I don't know. There were 
two or three articles published under that pseudonym which is 
listed in the masthead of the magazine as a fictitional law 
firm and--
    Senator Leahy. But you helped write some of them?
    Mr. Olson. I helped write--I think there were two or three, 
and we supplied copies of those to the committee.
    Senator Leahy. If you were Solicitor General of the United 
States, would it be safe to say that you would not be writing 
articles with at least the tone of these articles that some 
would call nasty and uncivil?
    Mr. Olson. I would not be writing articles under pseudonyms 
and I would not be writing articles that were of that nature.
    Chairman Hatch. We could use some tougher briefs in the 
Supreme Court, however, so don't be afraid.
    Senator Leahy. I have a feeling even this Supreme Court 
might not like those--well, I don't know.
    Chairman Hatch. I think they might.
    Senator Leahy. Maybe this Supreme Court, but most would 
not.
    There were no meetings of the Arkansas project in your 
office or anything?
    Mr. Olson. No, there were none.
    Senator Leahy. Privacy, consumer privacy. Consumer 
information is collected on Web sites and how it is used and 
resold is becoming more and more of a concern to everybody. It 
is a concern to me.
    Some of this is good if you are guy like me or say you are 
a fly fisherman or something like that and you want to get the 
latest information on fly fishing and you send the information 
about yourself thinking you are going to get everything there 
might be, and that might be wonderful. On the other hand, there 
are a whole lot of other things there that you don't want.
    If you look at the Fourth Amendment, there is an awful lot 
the Government can find out about you and can know about you. I 
worry when I read things about Carnivore and the ability to 
track your cell phone locations and information on computer 
networks where the Government would do it. I don't care who is 
in power in Washington or who is in the Congress. The thought I 
find rather frightening. I would hope that we could do a better 
job here.
    I worked in 1994 very hard with then Congressman Don 
Edwards on the CALEA legislation, the Communications Assistance 
for Law Enforcement Act, which you know. I thought we drafted a 
very balanced law. We allowed wiretaps in the days when the 
sheriffs were able to hook the alligator clips to the wire. 
Basically, this is the same; you have still got to the courts 
and everything else. In the digital age, you need different 
equipment.
    But I think the FBI and the DOJ overreached in their 
interpretation of that statute and went way beyond what I 
intended and what I think a number of my more conservative 
colleagues intended in co-sponsoring it. You had a role in the 
court challenge involving CALEA and the FCC.
    This will be my last question, Mr. Chairman.
    Do you feel that the Government went beyond what they 
should have in the use of CALEA?
    Mr. Olson. I felt that the regulations that we were 
challenging then--I represented the cellular telephone 
communication industry and the Citizens for Democracy and 
Technology, which is a group that is very interested in privacy 
in communications. In the United States Court of Appeals, we 
argued that the regulations that the FCC had adopted had gone 
beyond that statute. The United States Court of Appeals for the 
District of Columbia Circuit agreed.
    I must say that I studied that statute intensely in 
connection with that representation. I agree with you that it 
was a very, very careful, delicate balance. I thought the 
legislative history was very interesting and very helpful. 
There had been a good balance done there between privacy 
concerns and legitimate law enforcement interests.
    And we argued to the court that after the law was passed, 
and despite some very strong testimony by FBI Director Freeh 
with respect to reassuring you and other Members of Congress as 
to how far that legislation was going, that then the Government 
went a little bit too far, and the court agreed. I share your 
concerns about that field because that is--and that is a 
concern of a lot of Americans because our privacy is important 
to us in this world.
    Senator Leahy. I intend to follow up also with General 
Ashcroft on this. I worry about it. Senator Hatch has had to 
hear this story before, but coming from Vermont where you value 
your privacy, in all the years I have been in public office I 
think I have saved maybe two or three items ever written about 
me and actually framed up. One was a side bar to a profile in 
the New York Times.
    And to put this in perspective, I live on a dirt road in 
Vermont, several hundred acres of an old tree farm where the 
adjoining farm through successive generations of families have 
watched over the place. They have cleared the roads and fields, 
and also they have known me since I was in high school.
    The whole article goes something like this. The New York 
Times reporter pulls up, an out-of-state plate on his car. The 
old farmer is sitting on the porch. He says, ``Does Senator 
Leahy live up this road?'' The farmers says, ``Are you a 
relative of his?'' He says, ``No, I am not.'' He says, ``Are 
you a friend of his?'' ``Well, not really.'' ``Is he expecting 
you?'' ``No, he is not.'' ``Never heard of him.''
    We like our privacy, and in a digital age I think all 
Americans should. Law enforcement has legitimate things under 
legitimate court orders, following probable cause and all the 
checks and balances. But I think we have to be careful.
    Mr. Olson, you have to be careful, Mr. Thompson does, and 
everybody else, and the Congress does, that a digital age does 
not mean an age of no privacy.
    Thank you. Thank you, Mr. Chairman, and I thank you for 
your consideration here. We did this actually in less than two-
and-a-half hours a nominee, for very, very important things. 
But I also appreciate your courtesy in making sure all of us 
were heard. We will submit our further questions quickly.
    Chairman Hatch. Well, thank you, and I want to express my 
appreciation to the minority for their willingness to have this 
hearing today. This did appear as though it would be a very 
complex, difficult day for us, and it has turned out to be 
tough, but not any worse than other tough days in the Senate. 
Fortunately, because they have stacked the votes probably until 
about 6:30.
    Mr. Olson. I just want to thank you both and other members 
of the Committee on behalf of myself and Mr. Thompson and the 
Department. I think these have been very good questions, and I 
think I speak for both of us that we very much appreciate the 
opportunity not just today, but the other visits that we have 
had with the members of the committee.
    Chairman Hatch. Well, thank you.
    Let me just say in closing that this has been a good 
hearing. I hope all of them won't be this extensive, but it has 
been a good hearing. I think both of you have acquitted 
yourselves very, very well. You are both tremendous people. I 
have known Larry Thompson for about 10 years and I have known 
you for about 25. Frankly, I don't know of two better people 
for these jobs than the two of you.
    I have a feeling that you will do a great job for 
everybody, not just for people of a certain ideology or 
feeling. You, being the great lawyer you are, have represented 
people across the spectrum. And as you know, as Solicitor 
General, you are going to have to do the same at the Justice 
Department.
    I want to thank my colleague, Senator Leahy. This hasn't 
been easy for him, it hasn't been easy for me.
    Here is what we intend to do. We will meet on the Tuesday 
when we get back and see if we can iron out some of these 
ragged edges of the blue slip policy, which I think we can. I 
hope we can. In the interim, we will have any written questions 
that members of this Committee want to submit. We hope they 
will be in by Wednesday at noon; that will be the due date, 
next Wednesday. And we hope you will answer them immediately 
and get them back so that everybody will have a decent chance 
of reviewing them.
    And then that being the case, we will schedule within the 
next day or so the mark-up on you and Mr. Thompson for the 
Thursday when we get back. So we will have the meeting on 
Tuesday. We may have a hearing on Wednesday on another 
unrelated item and then we will have the mark-up on Thursday. 
Hopefully, we can get you down there so that the Justice 
Department will have at least three of the top leaders there, 
and we can get moving here because we are now Justice 
Department-leaderless for 3 months and we have just got to 
change that.
    So we will do our very best to move this ahead. I just want 
to thank both of you for being here, for the excellent way you 
have acquitted yourselves, for the, I think, excellent answers 
that you have given to all of us and for the friendship that 
you have shown to the Committee through the years.
    So with that, we will adjourn until further notice.
    [Whereupon, at 4:32 p.m., the Committee was adjourned.]
    [Questions and answers follow:]

                         QUESTIONS AND ANSWERS

  Written questions for Theodore B. Olson submitted by Senator Durbin

    Question 1: In the aftermath of the recent Presidential election, 
the Justice Department is conducting a preliminary probe of allegations 
of minority disenfranchisement in Florida. The Department of Justice 
will determine whether a Federal investigation is warranted. In 
addition, the U.S. Civil Rights Commission recently released 
preliminary findings about irregularities in Florida. These findings 
include: Haitian, Puerto Rico and other Hispanic voters were not 
provided with language assistance; old and defective election equipment 
was found in poor precincts; many blacks did not vote because their 
polling places could not confirm their eligibility; and some polling 
places closed early or were moved without notice.

1. What are your views on these types of investigations and the 
        preliminary findings?
2. Will you prosecute violations of the Voting Rights Act to the 
        fullest extent of the law?
3. To what extent and under what circumstances would recuse yourself 
        frominvolvement in these cases given your involvement in Bush 
        v. Gore?

    Question 2: When I asked about your high profile law practice and 
your history of participation in extremely political activities and 
cases you stated ``I do not know that I call many of those cases 
political cases. They are cases that involve important policies of our 
country.''

1. Please explain the difference between political cases and cases 
        involving important policies of our country.
2. Please explain what criteria you use to determine whether a case is 
        political.
3. Please explain whether the following cases are political United 
        States v. Virginia, Bush v. Gore, and Rice v. Cayetano.
4. Please explain how your writings for The American Spectator, 
        including ``The Most Political Justice Department Ever'' and 
        ``Criminal Laws Implicated by the Clinton Scandals: A Partial 
        List'', are not political, especially given the fact that the 
        writings were clearly one sided.
5. In The American Spectator, you ``catalogued'' alleged criminal 
        misconduct by identified members of the Clinton Administration. 
        Specifically, you named Bill Clinton, Hillary Rodham Clinton, 
        Bernard Nussbaum, Webster Hubbell, and Betsey Wright. What 
        assurances can you give that you will recuse yourself from any 
        involvement or participation, directly or indirectly, in any 
        investigations or other legal actions concerning these 
        individuals and/or other members of the Clinton Administration?

    Question 4: Previously you had stated that the role of Solicitor 
General is the government's lawyer ``so even if we disagree with the 
policies of the law and even if we feel that it is of questionable 
constitutionality, we must enforce it and we must defend it.'' At the 
hearing you stated you still hold that view and that ``we must be 
vigorous advocates for the Congress when we go before the courts.'' 
Given that you also stated that the Solicitor General should take into 
consideration the President's policies, what is the proper role for the 
Solicitor General when the President's position differs from the law 
being reviewed by the court?

    Question 5: Under what circumstances would it be appropriate for 
the Solicitor General to change the position taken by the previous 
Administration on a case pending before a federal court or the Supreme 
Court?

    Question 6: You have written about the necessity for the Department 
of Justice to maintain a non-partisan stature. In fact, recently you 
have stated, ``The department and its officials traditionally have been 
held to a standard of independence and non-partisanship not expected at 
other federal agencies.'' (Theodore B. Olson, ``The Most Political 
Justice Department Ever: A Survey'', The American Spectator, September 
2000)
    Given the Solicitor General's unique role, often referred to as the 
``tenth Justice of the Supreme Court'', and the standard you uphold for 
the department, it would be even more important to maintain a non-
partisan and even-handed approach.
    Yet in your career you have taken an acerbic tone in your writings 
and clearly promoted and advocated extreme partisan positions. Given 
your extensive track record of being a highly partisan figure, how can 
you guarantee this Committee and Congress that you will uphold the 
independence and non-partisanship the position demands?

    Question 7: The Partial Birth Abortion Ban Act of 2000 would have 
banned so-called ``partial-birth abortion'' without any exception for 
the health of the woman. The Supreme Court in Stenberg v. Carhart 
recently struck down a Nebraska law that also purported to ban so-
called ``partial-birth abortion'' and did not provide an exception for 
the health of the mother. [Partial Birth Abortion Ban Act of 2000; 
Stenberg v. Carhart] The Justice Department declared that the 
legislation ``violates constitutional standards recently reaffirmed by 
the Supreme Court.'' [Nov. 7, 1995 Office of Legislative Affairs 
memorandum]

1. When I asked you about this case, you indicated in your testimony 
        that the Court's decision in Stenberg was fractured on the 
        question of whether a health exception was mandatory and it 
        turned on the scope of Nebraska's health exception. Upon review 
        of Stenberg v. Carhart, could you respond again to the question 
        of what advice you will render regarding legislation purporting 
        to ban so-called ``partial-birth abortion'' without an 
        exception for the health of the woman?
2. Do you believe that any ban on an abortion procedure without a 
        health exception can pass constitutional review under Stenberg?

                                

  Written questions for Larry D. Thompson submitted by Senator Durbin

    Question 1: President Bush and Attorney General Ashcroft have given 
priority to the issue of racial profiling. I commend them for giving 
this issue high priority and look forward to working with them on my 
ongoing efforts to address this issue in the U.S. Customs Service.
    The insidious practice of racial profiling undermines public 
confidence in law enforcement and damages the credibility of police 
forces around the country, even though the vast majority of police are 
carrying out their duties responsibly and professionally. Most 
importantly, racial profiling creates an atmosphere of distrust and 
alienation that isolates broad segments of the American population.
    As you know, this issue affects federal, as well as state and local 
law enforcement activities. In fact, a GAO study of profiling practices 
of airline passengers concluded that the U.S. Customs Service was 
intrusively searching African-American women and other minorities for 
contraband at much higher rates than they searched other segments of 
the population. Ironically, the women being targeted were statistically 
less likely than other passengers to be found carrying contraband.
    Specifically, GAO found that African-American women were nearly 
three times as likely as African-American men to be strip-searched, 
even though they were only half as likely to be found carrying 
contraband. Furthermore, African-American men and women were nearly 
nine times as likely, and Hispanic-American men and women were nearly 
four times as likely, as White-American men and women to be x-rayed, 
even though they were not more likely to be carrying contraband.
    I have introduced legislation to specifically address the concerns 
raised in the GAO study and help the Customs Service make more 
effective use of its resources, and avoid unwarranted searches.

    1. Do you agree that the racial profiling practices of the Customs 
Service should be eliminated?
    2. Will you support my legislation and urge a favorable statement 
of theAdministration's position on this proposal?

    Question 2: Do you believe that invidious discrimination, in the 
form of racial profiling, occurring at any and all stages of the 
criminal justice process (i.e., stops, investigations, arrests, 
charging offenses, prosecutions, and sentencings including penalties 
and incarceration terms) should be given zero tolerance? What 
suggestions/solutions would you recommend to eradicate this pervasive 
problem?

    Question 3: I am concerned that African Americans represent 12% of 
the U.S. population (some sources reflect 13%) and 13% of its drug 
users. Yet African Americans comprise 35% of all those arrested for 
drug possession and 55% of those convicted of drug possession. Five 
times as many whites use drugs as African Americans, but African 
Americans comprise the greatest majority of drug offenders sent to 
prison. Race appears to be a clear factor. How should we go about 
addressing the racial disparities in our prison system?

    Question 4: President Clinton's drug czar Barry McCaffrey pushed 
for a 32% increase in Federal drug treatment funding-to $3.8 billion a 
year. Would you support increased drug treatment funding?

    Question 5: What are your views regarding repealing mandatory 
minimum sentences for drug offenders?

    Question 6: In the aftermath of the recent Presidential election, 
the Justice Department is conducting a probe of allegations of minority 
disenfranchisement in Florida. The Department of Justice will determine 
whether a Federal investigation is warranted. In addition, the US Civil 
Rights Commission recently released preliminary findings about 
irregularities in Florida. These findings include: Haitian, Puerto Rico 
and other Hispanic voters were not provided with language assistance; 
old and defective election equipment was found in poor precincts; many 
blacks did not vote because their polling places could not confirm 
their eligibility; and some polling places closed early or were moved 
without notice.

    1. What are your views on these types of investigations and the 
preliminary findings?
    2. Will you prosecute violations of the Voting Rights Act to the 
fullest extent of the law?


                                

  Responses of Theodore B. Olson to questions submitted from Senator 
                                 Leahy

    Question 1: At your confirmation hearing I asked you whether you 
``were involved in the so called Arkansas Project at any time'' and you 
answered that as a member of the board of directors of the American 
Spectator, you became aware of it and that you were ``not involved in 
the project in its origin or its management.'' I asked whether there 
had been any meetings of the Arkansas Project in your office and you 
replied that there had not been.

    (a) In The Hunting of the President, Joe Conason and Gene Lyons 
write that you attended a meeting in the Washington law offices of 
Gibson, Dunn & Crutcher in late 1993 or early 1994 attended by Steven 
Boynton, David Henderson, John Mintz, Ronald Burr and Michael Horowitz 
at which the topic was using Scaife funds and the American Spectator to 
``mount a series of probes into the Clintons and their alleged crimes 
in Arkansas.'' Did you attend such a meeting? Please produce all notes, 
time records and other documents relating to such a meeting.
    Answer: I do not recall the meeting described. I certainly was not 
involved in any such meeting at which a topic was using Scaife funds 
and the American Spectator to ``mount a series of probes into the 
Clintons and their alleged crimes in Arkansas.'' And I have no notes, 
time records and other documents relative to any such meeting. As 
reflected in my answer to question no. 4, I was retained in early 1994 
by the American Spectator to perform certain legal services, including 
legal research regarding various matters. But that relationship was not 
for the purpose of conducting or assisting in the conduct of 
investigations of the Clintons. I learned some years later, of course, 
that the American Spectator magazine was investigating the conduct of 
the Clintons in Arkansas, as were quite a number of other magazines, 
newspapers and broadcast journalists, but I was not a party to these 
investigations.

    (b) In The Hunting of the President, Joe Conason and Gene Lyons 
write that in early October 1997 you attended a special meeting of the 
American Spectator Education Foundation board at the home of R. Emmett 
Tyrrell in which you were named the Secretary-Treasurer of the 
organization. Did you attend a meeting of the board in early October 
1997 at the home of Mr. Tyrrell? Were you named an officer of the 
organization? If yes, why did you not indicate on the Judiciary 
Committee questionnaire that you had served as an officer of that 
organization?
    Answer: As a member of the American Spectator Board, I attended a 
Board of Directors meeting at the home of Board Chairman R. Emmett 
Tyrrell. That meeting was, as I recall, in October, or perhaps November 
of 1997. I believe that I was asked to draft minutes of the meeting for 
the Board, but I do not recall being named as Secretary-Treasurer, and 
do not recall ever serving the Board in that capacity. I have a vague 
recollection that I served as a temporary secretary for the purpose of 
that meeting, and perhaps a subsequent one, something that I did not 
recall at the time I answered the initial written questions. I never 
served as Treasurer and do not recall doing anything else in the nature 
of the duties of a corporate secretary.

    (c) In The Hunting of the President, Joe Conason and Gene Lyons 
write that you met with other members of the board of the American 
Spectator Educational Foundation at the offices of Gibson, Dunn & 
Crutcher in July 1997 to discuss allegations that money for the 
Arkansas Project had been misallocated. Did you attend such a meeting?
    Answer: I do recall meetings, which I now realize must have been in 
the summer of 1997 in my office regarding allegations regarding what 
became known as the ``Arkansas Project,'' and questions concerning 
whether expenditures involved in that project had been properly 
documented. The only concern regarding ``misallocation,'' that I 
recall, was whether the money spent had been accompanied by the proper 
documentation and whether the funds had been drawn from the correct 
internal corporate account. These concerns led to the internal 
independent audit to which I have previously referred which was 
conducted under the supervision of the publisher and with the 
assistance of an independent auditing firm.

    Question 2: In response to question 32(e) of my first set of 
written questions, you say that you, ``became aware of allegations 
regarding what came to be labeled the `Arkansas Project' during my 
tenure on the Foundation's Board of Directors, in 1998, I believe.'' 
Without reference to when you became aware of any allegations 
surrounding the project, please tell me when you became aware of the 
existence of the project and/or the existence of ``investigative'' 
journalism being conducted by the Spectator, or anyone affiliated with 
it, in Arkansas with a focus on the past activities of Bill Clinton, 
and how you became aware.
    Answer: I was certainly aware that the magazine was publishing 
articles regarding the Clintons' conduct in Arkansas, as were other 
publishers and other journalists. For example, I recall that David 
Brock's first article about President Clinton's activities as Governor 
appeared around January, 1994. Those articles were obviously the 
product of what has come to be known as investigative journalism. I was 
not involved in organizing, supervising or managing the conduct of 
those efforts. I was not aware of the ``Arkansas Project'' until, as I 
have indicated, in 1997. I now realize that the allegations concerning 
the Arkansas Project came to my knowledge in 1997, not 1998, as 
reflected in my responses to the foregoing question.

    Question 3: You testified at your hearing that you were not 
involved in the origins or management of the Arkansas Project. Were you 
involved in advising anyone who was involved in the origins or 
management of the project? If so, what advice did you provide? Were you 
at meetings or social events with anyone involved in the project as an 
originator, manager, reporter, or source for the project? If so, what 
role did you play at these meetings or social events?
    Answer: I did not realize that a Project of any sort was underway 
except to the extent that I have indicated. I was in contact at social 
events with reporters for the magazine and members of the editorial 
staff, individuals whom I regard as personal friends. I have been at 
countless social events at which one or more of such persons may have 
been present. I have not kept records of such meetings, or the nature 
of conversations that may have occurred at such meeting that might have 
involved President Clinton or his contemporaneous or past conduct. I 
was not playing any particular role at those social events, except that 
I was probably a host of events at which persons who wrote for or 
performed editorial services for the American Spectator may have been 
present. To the extent that it is relevant to your inquiry, I was the 
best man at the wedding of the editor-in-chief of the American 
Spectator. I recall that he was also present at my wedding. He is a 
personal friend and we have had numerous social meetings. He has 
written at least two books about former President Clinton. I do not 
interpret your inquiry as asking for the substance of conversations at 
social events. And I do not recall giving any advice concerning the 
conduct of the

    Question 4: Were you retained as an attorney by the American 
Spectator Educational Foundation? If so, what was the scope of that 
representation and for what period of time did you represent it? Please 
produce all billing records in connection with this representation.
    Answer: I represented the American Spectator in the performance of 
legal services from time to time beginning in 1994. The nature and 
scope of those services and billing records with respect thereto are 
subject to the attorney client privilege. As set forth above in my 
response to question No. 1, those legal services were not for the 
purpose of conducting or assisting in the conduct of investigations of 
the Clintons.

    Question 5: In response to question 1.(b) of my first set of 
written questions, you describe your role with the Independent Women's 
Forum as advisory, and say that you had no formal position within the 
organization. However, you describe no specific activities in which you 
were engaged in connection to the IWF. Please describe in detail what 
IWF meeting or events you attended, and specifically what work you did 
for the IWF, including any amicus briefs which you wrote, signed or 
about which you were consulted by the IWF.
    Answer: I recall attending one advisory board meeting at which the 
activities of this organization were discussed. I recall two or three 
dinners hosted by officers of the organization. I recall filing one 
amicus brief in the VMI case before being retained to represent a party 
at a later stage of the litigation, one in the Taxman litigation and 
one in California's Prop. 209 case. In that regard, I was acting as 
counsel to the organization and not as an officer.

    Question 6: In response to question L(d) of my first set of written 
questions, you describe your role with the Washington Legal Foundation 
as advisory, and say that you had no formal position within the 
organization. However, you describe no specific activities in which you 
were engaged in connection with the WLF. Please describe in detail what 
WLF meeting or events you attended, specifically which activities and 
programs you provided comments about and describe in detail what 
comments you provided.
    Answer: I recall attending several advisory board meetings at which 
the activities of the W FL were discussed, various social events over 
the years, and several programs in which I participated as a panelist 
discussing developments in the United States Supreme Court at which 
journalists and other members of the public were invited.

    Question 7: In response to question 6 of my first set of written 
questions, you say you cannot recall the specifics of the members of 
Congress and their staffs you advise. Please search your records for 
any specifics of which members of Congress and which staff members you 
advised.
    Answer: I recall a luncheon program hosted last year by Senator 
Sessions at which a panel, including me, Walter Dellinger, Alabama 
Attorney General Bill Pryor and others discussed the Supreme Court's 
federalism jurisprudence. I recall being contacted by Members and staff 
of one of the Committees of the House to talk about legal issues 
arising out of the conduct of the census and the Supreme Court decision 
involving the manner in which it was to be conducted. On occasion, I 
receive calls from individual Members and staff of both Houses of 
Congress regarding legal issues on which I may be perceived to have 
some expertise. Some time ago, for example, I was asked by 
Representative Dickey to look over and comment on proposed legislation 
involving changes to the Independent Counsel laws. Members of the 
Congress have asked me from time to time to comment on current legal 
issues. I do not keep notes on such inquiries, and have no records that 
would itemize such contacts.
    My law firm represented former Senator Robb in connection with his 
investigation by the Department of Justice, and I assisted in that 
engagement. My firm was also involved in defending then-Representative 
Torricelli in his investigation by the House Ethics Committee and I 
assisted in that engagement. And my firm handled a pro bono legal case 
for Representative Bliley in which I assisted. The firm also 
represented former Representative Jay Kim in connection with a Justice 
Department matter involving Representative Kim, and I assisted in that 
engagement.

                                   - 
