[Senate Hearing 107-282]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-282

 CONFIRMATION HEARING ON THE NOMINATIONS OF CHARLES A. JAMES, JR. AND 
           DANIEL J. BRYANT TO BE ASSISTANT ATTORNEYS GENERAL

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 2, 2001

                               __________

                          Serial No. J-107-17

                               __________

         Printed for the use of the Committee on the Judiciary

                                _______

                  U.S. GOVERNMENT PRINTING OFFICE
77-751                     WASHINGTON : 2002

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                       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

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin...    71
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     8

                               PRESENTERS

Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Daniel J. Bryant, Nominee to be Assistant Attorney 
  General for Legislative Affairs and Charles A. James, Jr., 
  Nominee to be Assistant Attorney General for Antitrust.........     5
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware presenting Daniel J. Bryant, Nominee to be Assistant 
  Attorney General for Legislative Affairs.......................     7
Conyers, Hon. John, Jr., a Representative in Congress from the 
  State of Michigan presenting Daniel J. Bryant, Nominee to be 
  Assistant Attorney General for Legislative Affairs.............     3
Hyde, Hon. Henry J., a Representative in Congress from the State 
  of Illinois presenting Daniel J. Bryant, Nominee to be 
  Assistant Attorney General for Legislative Affairs.............     3
Warner, Hon. John W., a U.S. Senator from the State of Virginia 
  presenting Daniel J. Bryant, Nominee to be Assistant Attorney 
  General for Legislative Affairs and Charles A. James, Jr., 
  Nominee to be Assistant Attorney General for Antitrust.........     4

                       STATEMENTS OF THE NOMINEES

Bryant, Daniel J., Nominee to be Assistant Attorney General for 
  Legislative Affairs............................................    49
    Questionnaire................................................    51
James, Charles A., Jr., Nominee to be Assistant Attorney General 
  for Antitrust..................................................    11
    Questionnaire................................................    15

 
 CONFIRMATION HEARING ON THE NOMINATIONS OF CHARLES A. JAMES, JR. AND 
           DANIEL J. BRYANT TO BE ASSISTANT ATTORNEYS GENERAL

                              ----------                              


                         WEDNESDAY, MAY 2, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Grassley, Specter, Leahy, Biden, 
Kohl, and Cantwell.

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

    Chairman Hatch. If I could bring everybody to attention. 
Good morning and welcome to this nomination hearing before 
the--if I could have order? Welcome to this nomination hearing 
before the Senate Judiciary Committee. Today we are going to 
consider the nominations of Charles James to be the Assistant 
Attorney General for Antitrust and Daniel Bryant to be the 
Assistant Attorney General for Legislative Affairs.
    I want to congratulate both of these nominees. I have a lot 
of nice things to say in my opening remarks, but I want to 
accommodate my colleagues in the House. Normally we would go 
with Mr. James first, but I think I am first going to call on 
my various colleagues who are here for Mr. Bryant. So if we 
could have Chairman Hyde and Ranking Member Conyers, two great 
friends, and Senator Biden--is there anybody else who needs to 
be in this first group?--Senator Warner, and I understand 
Senator Allen is on his way.
    Senator Warner and Senator Biden, would you mind if I let 
the two House Members go first since they have a hearing over 
there?
    Senator Warner. You can let them go right ahead.
    Chairman Hatch. That would be OK? Would you resent it?
    Representative Hyde. By all means.
    [Laughter.]
    Chairman Hatch. Then we will do it anyway. But I never 
disagree with the distinguished Senator.
    Senator Warner. Biden and I live here, and they have travel 
time.
    Chairman Hatch. That is right. Why don't we start with you, 
Chairman Hyde, and then Mr. Conyers, and then we will let you 
go.
    I will put my statement in the record.
    [The prepared statement of Senator Hatch follows:]

 Statement of Hon. Orrin G. Hatch, a U.S Senator from the State of Utah

    Good morning and welcome to this nomination hearing before the 
Senate Judiciary Committee. Today we will consider the nomination of 
Charles James to be the Assistant Attorney General for Antitrust and of 
Daniel Bryant to be the Assistant Attorney General for Legislative 
Affairs.
    I would like to congratulate both of the nominees for being chosen 
by President Bush. It is a true pleasure to have before the Committee 
two nominees who have so much experience in the areas for which they 
have been nominated. Their impressive backgrounds and past government 
service make me confident that they will be great assets to the 
Department of Justice, this Committee and the American people.

                             CHARLES JAMES

    In recent years the position of Assistant Attorney General for 
Antitrust has grown in importance. High profiles cases, and the 
complexities of competition policy in the age of new technologies, have 
made the general public familiar with a variety of anti-trust issues. 
The Assistant Attorney General for Antitrust plays a crucial role in 
formulating competition policy and enforcing existing antitrust laws to 
make sure our entrepreneurs compete on a level playing field.
    Mr. James is one of the most qualified people for this important 
job. Since his graduation from law school in 1979, Mr. James has been 
working on antitrust matters. He began his legal career at the Bureau 
of Competition of the Federal Trade Commission where he developed 
antitrust investigations and litigated cases. After six years at the 
FTC, Mr. James went into private practice at the firm of Jones, Day, 
Reavis & Pogue, where he serviced as counsel to firms and individuals 
subject to civil or criminal antitrust investigations.
    In 1991, Mr. James was appointed to be Deputy Assistant Attorney 
General in the Antitrust Division, where he served for almost two 
years. So he already has a great deal of experience with the Division 
he will now be leading. As Deputy, Mr. James worked on case development 
and supervision, legislation, the promulgation of guidelines, and 
various international matters. He was a principal drafter of the 1992 
DOJ/FTC Horizontal Merger Guidelines. He left the Division in 1993 and 
returned to private practice as a partner at Jones Day, again advising 
clients on antitrust matters.
    With such an impressive background in antitrust law, both in 
private practice and in enforcement, I am confident that Mr. James will 
be an excellent Assistant Attorney General for Antitrust.

                             DANIEL BRYANT

    The Assistant Attorney General for Legislative Affairs serves as 
the legislative liaison between Congress and the Department of Justice. 
Some of the staff on this Committee, might argue that this position is 
the most important position at the Department.
    The Office of Legislative Affairs must represent the interests and 
opinions of the Department before Congress. The Office also internally 
coordinates testimony given to the Senate and the House of 
Representatives. Moreover, the Office reviews legislation proposed by 
other departments with the Office of Management and Budget and other 
executive branch agencies.
    Mr. Bryant is very well prepared for heading the Office of 
Legislative Affairs. He has served in numerous government positions and 
is very familiar with the inner workings of Congress. He has served as 
counsel and then chief counsel of the House Subcommittee on Crime under 
former Chairman Henry Hyde. He also worked on the Senate Permanent 
Subcommittee on Investigations. While attending law school at American 
University, Mr. Bryant worked as a special assistant at the Department 
of Justice in the Office of Juvenile Justice and Delinquency 
Prevention. He has also served as the policy director for the First 
Freedom Coalition, a non-profit organization.
    Mr. Bryant's experience in Congress along with his service within 
the Department of Justice make him well qualified to serve as the 
Assistant Attorney General for Legislative Affairs, and our liaison 
with the Department.
    I am extremely pleased to have two such qualified nominees before 
us today and am hopeful that this Committee and the Senate as a whole 
will move quickly to confirm them.

 PRESENTATION OF THE NOMINEE, DANIEL J. BRYANT, BY HON. HENRY 
 HYDE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

    Representative Hyde. Thank you, Senator Hatch, and Senator 
Grassley and other distinguished members of this body and my 
colleague, John Conyers.
    I will not recite matters from Dan Bryant's resume. They 
are available. But I would like to just say that for 6 years he 
was a counsel on the Crime Subcommittee and then chief counsel 
on the Crime Subcommittee in the House Judiciary Committee, and 
was a brilliant lawyer. He was a scholar, a student of the law, 
both substantively and procedurally. He knows the Hill 
intimately. He is a thoroughgoing gentleman without a partisan 
taint to him. The law is important to him. He is a gentleman in 
the fullest sense of the term and is ideally suited to be 
liaison with the Justice Department and the Hill.
    My acquaintances with him were important. He provided 
advice over some very controversial issues, sound advice. He 
was always there, and I think it is one of the better 
appointments of this administration to nominate him for 
Assistant Attorney General for Legislative Affairs. It is a 
real privilege to have this opportunity to say how much I think 
of Dan Bryant.
    Chairman Hatch. Well, thank you Chairman Hyde. That is 
very, very high praise indeed.
    Mr. Conyers, we are glad to have you here as well. We are 
honored by your presence.

  PRESENTATION OF THE NOMINEE, DANIEL J. BRYANT, BY HON. JOHN 
 CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 
                            MICHIGAN

    Representative Conyers. Good morning, Chairman Hatch, 
Senator Grassley, Senator Warner, Senator Biden. What a 
pleasure it is for me to continue the kind of bipartisan 
support that has gone to those who hold this very important 
office of being Assistant Attorney General for Legislative 
Affairs. Dan Bryant has received the support of all of the 
Democratic members of the House Judiciary Committee, and it is 
for the very reasons that Chairman Hyde has outlined.
    He works in fairness. He is a very honest and able lawyer, 
and what he does is continue the tradition of bipartisanship 
that is so important on the constitutional and other judicial 
issues that come before both our committees. And so I am happy 
to tell you that he takes the place of Robert Rabin, another 
former House Judiciary counsel, who I am sure dispatched his 
duties with the same kind of zeal and competence that we expect 
and know that Dan Bryant will do.
    I am very pleased to join my dear friend Henry Hyde in 
supporting the nomination that I think will redound to all of 
our benefit.
    Thank you.
    Chairman Hatch. Well, thank you Congressman Conyers.
    The testimony of the two of you is very important to this 
committee. I think we are all very grateful that you took the 
time to come over here. It is a real tribute to Dan Bryant. So 
we are very pleased with that.
    Thanks so much. We will let you both go. We know you have--
--
    Representative Hyde. We have a markup at 10 o'clock, so if 
we may be excused----
    Chairman Hatch. You are excused.
    Representative Hyde.--we will read in the record the 
remarks from Senator Warner and Senator Biden.
    Chairman Hatch. Thank you. And Senator Allen right behind 
you.
    Representative Conyers. Thanks so much.
    Chairman Hatch. Thank you for being here. We appreciate you 
taking the time.
    Senator Allen, if you would come up to the table? We will 
start with seniority. We will start with Senator Biden first 
and then Senator Warner and then Senator Allen.
    Senator Biden. Mr. Chairman, since I am going to be around, 
anyway, why don't I let my colleagues go first?
    Chairman Hatch. Fine.
    Senator Biden. Why don't we let Senator Warner go first 
since I am a member of this Committee and I will stay.

   PRESENTATION OF THE NOMINEES BY HON. JOHN WARNER, A U.S. 
               SENATOR FROM THE STATE OF VIRGINIA

    Senator Warner. Thank you, for you are always courteous--
except when we are on talk shows.
    [Laughter.]
    Senator Warner. We were scheduled tonight on ``Hardball,'' 
but I understand you bailed out as soon as you heard I was 
coming.
    Senator Biden. I did.
    [Laughter.]
    Senator Biden. I went last night so I would not have to 
face that awesome power.
    Senator Warner. You know, these are moments you do not 
forget in the life of your Senate career. You sit here with 
Henry Hyde and Congressman Conyers, two giants of this 
institution who come together in a truly bipartisan spirit on 
behalf of the nominee, Dan Bryant. I think the best that I 
could say is that I associate myself with their remarks and 
their observations and add just but one or two of my own.
    This nomination, which is a superb one by the President and 
our esteemed colleague, former colleague, the Attorney General, 
John Ashcroft, represents a tribute to the staff of the Senate 
and the House that one of their own has achieved the 
recognition through many years of hard work to come before the 
Senate for the advice and consent process.
    I am proud that this distinguished nominee is a resident of 
our great State. He also, I wish to point out, has received the 
recognition of two Democrats: Congressman Boucher and 
Congressman Bobby Scott, two highly esteemed members of our 
congressional delegation.
    And with that, I would just conclude my remarks. I think 
sometimes brevity in introduction connotes the strength of the 
candidate, and that is certainly true with this nominee.
    I am also privileged to appear on behalf of Charles James 
to serve as Assistant Attorney General of the Antitrust 
Division. If the Committee would indulge me in just a moment of 
levity, so many years ago--I cannot remember--I was appointed 
an Assistant United States Attorney to the District of 
Columbia, and the U.S. Attorney was short of funds, so he 
parked me in the Antitrust Division for 60 days to await my 
transfer over to the U.S. Attorney's Office. And I remember so 
well working there--I guess I worked. I do not remember. But I 
went in and out of these offices with stacks of files covered 
with dust. People disappeared into the Antitrust Division for 
20 years never to be seen again, and the case they worked on 
when they came was the case they were working on when they 
left.
    [Laughter.]
    Senator Warner. But I hope Mr. James can inspire a new 
sense of achievement in bringing together this staff, which is 
usually a wonderful professional staff in the Department of 
Justice, to achieve the goals of our President and the Attorney 
General. And I am confident he certainly has the background, 
having been with the most distinguished firm of Jones Day for 
many, many years. And he served in the Justice Department 
before as Deputy Assistant Attorney General for the Antitrust 
Division, so he fully knows what he is coming to and what he 
will be entrusted to succeed.
    He spent 6 years with the Federal Trade Commission, and we 
are fortunate as citizens to get persons of this accomplishment 
to come back into public office. I am confident he has taken a 
very significant, together with his family, reduction in his 
salary, but he is doing it in the spirit of public service.
    So it is my honor to be here on behalf of both of these 
appointees, and I thank the Chair and the distinguished Ranking 
Member and my good friend Senator Grassley for bearing with me 
for these short introductions.
    Chairman Hatch. Well, thank you Senator Warner. We will let 
you go because we know how busy you are. But that testimony is 
very important here.
    Senator Allen, we will go to you next.

   PRESENTATION OF THE NOMINEES BY HON. GEORGE ALLEN, A U.S. 
               SENATOR FROM THE STATE OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman. As I understand it, 
we are introducing Mr. James and Mr. Bryant at the same time. 
Is that correct?
    Chairman Hatch. That is correct, if you can.
    Senator Biden. And anyone else you would like to pick out 
in the audience.
    [Laughter.]
    Chairman Hatch. And that is with Senator Biden's 
permission, too.
    Senator Allen. That is great. Thank you, Senator Biden.
    Thank you, Mr. Chairman and Members of the Committee. It is 
a privilege and pleasure to appear before this Committee with 
my colleague, Senator Warner, and other distinguished Senators, 
Senator Biden, as well as the two distinguished leaders in the 
House, to introduce two fellow Virginians. Both Charles James 
and Dan Bryant have distinguished themselves with careers of 
hard work and especially great intellect. And I am confident 
that they both will perform their respective duties with great 
distinction in the Department of Justice for the people of the 
United States of America, after their confirmation, obviously.
    Certainly the position--let me first start with Assistant 
Attorney General for the Antitrust Division. This is a vitally 
important division for the economic development and for our 
consumers in our country, and it is important, again, to have 
somebody with great experience understanding the needs of 
consumers as well as business.
    Charles James' high-tech law background and his Government 
experience will help him deal with the new-economy antitrust 
issues, and he is a perfect choice. He has an enormous amount 
of experience in the antitrust field as well as an impressive 
background in Government. His previous legislative leadership 
in the antitrust--previous leadership, Government experience in 
the Antitrust Division and his extensive experience in 
antitrust law make him truly a perfect choice to guide the 
Division, this Division of the Justice Department, in today's 
global society and economy as well. And so he has the 
intelligence, he has the work ethic, and I am certainly very 
proud to present him to this Committee and look forward to 
working with him after his confirmation. This is a vitally 
important position, and the right person has been selected by 
the President and the Attorney General in that regard.
    Now, switching from Charles James to President Bush's 
particularly wise choice in selecting Dan Bryant to be 
Assistant Attorney General for Legislative Affairs, not only is 
he a fellow Virginian these days, but you have heard the 
testimony of Senator Warner. You see the bipartisan support he 
has from the House, and I am sure that committee--I was not 
here--had some contentious days. And to see both Congressman 
Conyers and Congressman Hyde together in support of Dan Bryant 
shows how perfect he is for this position of Legislative 
Affairs for the Justice Department.
    I know a lot of people have gone through his record as 
chief counsel to the House Judiciary Subcommittee and the 
variety of positions he has held in the Department of Justice. 
He also has been described as an astute political strategist, 
and I am sure our colleagues will do their best to challenge 
him on that.
    One thing, I see General Barr here, and General Barr--this 
is an important thing to us in Virginia. He was a speech writer 
for Attorney General Bill Barr from April 1994 to 1995. At that 
time former Attorney General Bill Barr was heading up our 
effort to reform sentencing in Virginia, to put truth in 
sentencing into effect in Virginia, rather than the lenient, 
dishonest system that they had previously had in Virginia where 
folks would serve a fraction of their sentence. We needed to 
put together a coalition for a special session in Virginia to 
abolish parole and institute truth in sentencing.
    General Barr was giving speeches back then, and they were 
very effective and very eloquent. Little did I know Dan Bryant 
was his speech writer during this very time, from April 1994 to 
January 1995. We abolished it as of January 1, 1995, but passed 
it in October. So, General Barr, I can tell where some of the 
good speech writing was coming from.
    Chairman Hatch. I kind of wish you had not brought that up.
    [Laughter.]
    Senator Allen. Well, it is part of his record.
    Chairman Hatch. No, no. It is OK. You are doing fine.
    Senator Allen. At any rate, Dan Bryant has, as far as I am 
concerned, the perfect experience, and, most importantly, what 
it takes as a Legislative Affairs person is you need the right 
temperament. And he has the right temperament and the 
experience, and so I think he will do an outstanding job, and I 
know all Members of the House and the Senate look forward to 
working with Dan in this role to make sure that we are making 
the right policies here at the Federal level to protect law-
abiding citizens.
    Thank you, Mr. Chairman.
    Chairman Hatch. Well, thanks, Senators. I think to have 
both of you from Virginia here is a tribute to both of these 
gentlemen, and we are grateful that you took time to come over. 
We know how busy you are.
    We will now turn to our distinguished former chairman.

 PRESENTATION OF THE NOMINEE, DANIEL J. BRYANT, BY HON. JOSEPH 
    R. BIDEN, JR., A U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Biden. Mr. Chairman, I am here to nominate former 
Attorney General Barr for Attorney General.
    [Laughter.]
    Senator Biden. That is why I am here. I do not know why the 
hell these----
    Chairman Hatch. That sounds about what you would do.
    Senator Leahy. You notice former Attorney General Barr, 
after you said that, is heading toward the door.
    Senator Biden. Mr. Chairman, members of the committee, it 
is a pleasure to be here this morning to introduce Dan Bryant, 
along with others, for confirmation as Assistant Attorney 
General for the Department's Office of Legislative Affairs. I 
have had the occasion to work with Dan over the years in his 
capacity as chief counsel for the House Subcommittee on Crime. 
For years I headed the Crime Subcommittee on this Committee and 
as Chairman of the Committee continued to work with Dan.
    There Dan served former Representative McCollum, Chairman 
Hyde, and Congressman Conyers, both of whom have spoken today, 
and worked across party lines to develop legislation that we 
can all, I think, be very proud of. But for Dan's excellent 
work, I doubt whether the legislation such as my Violence 
Against Women Act or the Foreign Narcotics Kingpin Designation 
Act or the DNA Blocking Elimination Act would be law today.
    He is an able lawyer. He is a straight shooter, as you 
heard, and I know he will represent the Department well in his 
dealings with this committee.
    He has integrity, he has good judgment, and he is well 
respected by those who have had the good fortune to work with 
him.
    Now, Dan was born in Port Jefferson, New York, but he spent 
his formative years in my home State of Delaware, and his 
parents, Gary and Carolyn, and his older brother and sister and 
their families to this day live in Wilmington, Delaware. And 
while I have been impressed with his work in the Justice 
Department--excuse me, with the Subcommittee in the House and 
with the House Committee and the juvenile justice bill and on 
my Violence Against Women Act and on public safety measures, 
what brought me to this hearing this morning was his 
accomplishments in our home State of Delaware.
    In 1992, it was a particularly good year for Dan. He placed 
first--I am sure you will want to know this--in the Delaware 
State Spanish oral exam. He was a member of the All-State 
soccer team and a recipient of the Di Sabitino Leadership Award 
at Wilmington's Tower Hill School, the second best school in 
Delaware. And if it was not for his appearance before us today, 
I would be tempted to say Dan peaked a little too early.
    In all seriousness, the President did the country a service 
and did us a service here on the Hill by nominating Dan Bryant 
to serve in what is often a difficult job as the chief liaison 
between the Department and Congress. When the President picks a 
Delawarean to head the Office of Legislative Affairs, he has 
picked a winner in this one, and I would recommend him to this 
Committee very highly. I would urge my colleagues, which I have 
no doubt they will, to vote favorably on Dan's nomination. He 
truly is a fine guy. And as my colleague from Virginia, Senator 
Allen, said, he has the temperament, he has the brains, and 
most of all he has the integrity. When he tells you something, 
you can count on it. And that is a big deal. That is a big deal 
in this body.
    So I compliment the President on his pick, and I compliment 
Dan on being willing to stay in public service and take the 
job.
    I thank you for your courtesy, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Biden. We really 
appreciate your testimony, and for your bringing this spirit of 
bipartisanship here is a wonderful thing. Certainly Mr. Bryant 
has to appreciate it, as do all of us.
    If we could have the two nominees come forward, we will 
turn to Senator Leahy and take his opening remarks.

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

    Senator Leahy. Do we all have to give a statement first 
praising Bill Barr? Because I am happy to do so. I happen to be 
a fan of Attorney General Bill Barr. But we are delighted to 
see the nominees here.
    As mentioned, Dan Bryant is very well known to this 
committee. He has had to sit through some late-night 
conferences with all of us, but he served very well as a member 
of the congressional staff and chief counsel to the House 
Judiciary Committee's Subcommittee on Crime. And I think the 
fact that Chairman Hyde and Ranking Member Conyers were here to 
speak for you today shows the type of respect you have on both 
sides of the aisle, which is something very valuable and 
something you have worked for, and, of course, Senator Biden 
and others coming here.
    He knows the legislative process, and I do not want to get 
Chairman Hyde to retract anything, but he has always been very 
respectful of the Senate's role in this process as well as very 
protective of the House role. He has a very demanding job.
    Mr. James, you come from a distinguished law firm in which 
you have distinguished yourself, and you should be proud of 
that. I will have questions later about your experience 
representing clients against Government antitrust enforcement 
efforts. You will be asked about that and also about effective 
antitrust enforcement, which will come as no surprised to you, 
I am sure. And there may even be a question or two about the 
Microsoft case, Senator Hatch may ask, I may, or others.
    The Antitrust Division's most recent leaders, Anne Bingaman 
and Joel Klein, did an extraordinary job reinvigorating the 
Division. I believe they assembled a first-class team of 
professionals enforcing our antitrust laws. I know these 
professionals, many with whom I have worked. I had no idea what 
their political allegiances were, but I was well aware of their 
professional allegiance to the Department of Justice and the 
Antitrust Division. And I think you have to build on that work.
    If I could make three quick points, Mr. Chairman. Mr. 
James, you have been so successful in advising an impressive 
list of corporate clients that some have joked you are going to 
have to recuse yourself for your term in office from doing your 
job. Look at the corporate Who's Who of those who wanted to 
merge. Your clients have included, for example, airlines--
American, Delta, United, the new D.C. Air. One of your deputies 
is also from your firm. And so I think that it is going to be 
important to the public and this Committee to make it very 
clear where you will recuse yourself.
    I would want assurance that you will not seek waivers from 
those recusal rules in order to work on matters involving 
former clients, because even the appearance of impropriety 
would hurt the Justice Department and the Antitrust Division.
    I want to mention two issues of importance to Vermont as a 
New England State. One has to do with the increasing 
concentration of the agricultural processing sectors. One of 
the first bills I introduced with the Democratic Leader in this 
Congress focuses on concentration in the meat-packing, the 
poultry, the livestock, and the dairy-processing industries. 
The studies being released today by researchers at the 
University of Connecticut raise serious concentration and 
antitrust issues affecting New England regarding a major milk 
processor, Suissa Foods. The report concludes that supermarket 
retailers and milk processors, using the very considerable 
signaling of price intentions and undue market power, have 
bilked New England consumers out of almost $50 million.
    The report says that Suissa Foods has acquired major 
processors in the region, and then after they acquire them, 
they dismantle them or they shut them down. And it shows that 
in the Boston and Providence areas, Suissa processes between 80 
and 90 percent of the milk sold in supermarkets, and they can 
basically set whatever price they want. In other parts of New 
England, they have something like 70 percent of the milk.
    So they are following the approach that the best way to 
eliminate competition, to increase market power, is not to 
aggressively compete with others but, rather, to just buy their 
competitors and then dismantle them.
    Now, they totally lose their investments, of course, in 
these local dairies when they buy them and dismantle them, but 
they end up with no competitors, and in the long run, they make 
a lot more money because there is no competition.
    I worry about this because milk is an essential food. I 
would hope that you will personally look into these reports of 
price signaling and abuse of market power regarding Suissa 
Foods of Texas, unless for some reason you need to recuse 
yourself. If you need to recuse yourself, then I would hope 
somebody else would look into it.
    You have been very critical also of the role of the FTC as 
a dual enforcer of antitrust laws. I think they are an 
independent agency and they perform valuable service to the 
Nation. Their recent efforts to go after brand-name drug 
manufacturers for allegedly paying generic drug companies not 
to compete is a good example of this.
    I introduced a bill, along with Senators Kohl and Schumer 
and Durbin, to look into these secret deals made by brand-name 
and generic drug manufacturers. I asked that it be referred to 
the FTC and the DOJ to make sure that we are all being 
protected and that consumers have access to low-cost generic 
drugs. All I want to make sure of is that there is enough 
competition out there so we are protected. People are entitled 
to fair profits. People can make fair profits. But they are 
only fair if they are in a competitive world.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator Leahy.
    Let me just say this before I turn to the nominees. I would 
like to add that Chairman Hyde and Congressman Conyers are 
correct. There has been a tradition of bipartisan support for 
the position as Assistant Attorney General for Legislative 
Affairs. And I am pleased that so many people have been here to 
show that that tradition is holding and continuing.
    I was a big fan and supporter of Robert Rabin, who occupied 
the office under the prior administration. I want to commend 
Mr. Rabin, who is here today, for the fine job he did during 
his tenure at the Department. So you both have had some really 
fine people come in and testify for you.
    At this point we want to congratulate both of you, and I 
would just like to make a few comments. Mr. James is one of the 
most qualified people for this important job. Since his 
graduation from law school in 1979, he has worked on a 
multiplicity of antitrust matters. He began his legal career at 
the Bureau of Competition of the Federal Trade Commission where 
he developed antitrust investigations and litigated cases. 
After 6 years at the FTC, Mr. James went into private practice 
at the firm of Jones, Day, Reavis & Pogue, where he served as 
counsel to firms and individuals subject to civil or criminal 
antitrust violations or investigations.
    In 1991, Mr. James was appointed to be Deputy Assistant 
Attorney General in the Antitrust Division, so he already has a 
great deal of experience with the Division that he will now be 
leading. As Deputy, Mr. James worked on case development and 
supervision, legislation, the promulgation of guidelines, and 
various international matters. He was a principal drafter of 
the 1992 DOJ/FTC Horizontal Merger Guidelines. He left the 
Division in 1993 and returned to private practice as a partner 
at Jones Day, again advising clients on antitrust matters.
    With such an impressive background in antitrust law, both 
in private practice and in enforcement, I am confident that you 
are going to make an excellent Assistant Attorney General for 
Antitrust. In fact, I have every confidence in you, and it is a 
tribute to you that former Attorney General Bill Barr, former 
head of the Division, and Jim Rill, are here in support of you. 
It has got to make you feel pretty darn good and make your Dad 
and your family feel pretty good as well.
    The Assistant Attorney General for Legislative Affairs 
serves as legislative liaison between Congress and the 
Department of Justice. Some of the staff on this Committee 
might argue that this position is one of the most important 
positions at the Department.
    The Office of Legislative Affairs must represent the 
interests and opinions of the Department before Congress. This 
office also internally coordinates testimony given to the 
Senate and the House of Representatives. Moreover, the office 
reviews legislation proposed by other departments within the 
Office of Management and Budget and other executive branch 
agencies.
    As has been expressed, Mr. Bryant is eminently prepared for 
this job. We have worked very closely with him, and frankly, I 
just cannot imagine them making a better choice than either of 
you.
    So we are pleased to have both of you here with us. We will 
turn to you first, Mr. James, and if you have any short 
comments to make about your nomination or--oh, I guess I've got 
to swear you both in. Would you please stand? Please raise your 
right hands. Do you solemnly swear to tell the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. James. I do.
    Mr. Bryant. I do.
    Chairman Hatch. Mr. James, we will turn to you.

STATEMENT OF CHARLES A. JAMES, JR., OF VIRGINIA, NOMINEE TO BE 
            ASSISTANT ATTORNEY GENERAL FOR ANTITRUST

    Mr. James. Good morning, Mr. Chairman, members of the 
committee. It is a great honor to be here today.
    Before I begin, I would like to acknowledge the presence of 
my family. Here with me today are my father, Charles A. James, 
Sr.----
    Chairman Hatch. Please stand when he introduces you so we 
will all know. We are sure happy to have you here, Mr. James.
    Mr. James. He has made it possible for me to do a great 
many things in life; my teenage daughter, Kathryn E. James, who 
is, of course, my heart----
    Chairman Hatch. Really happy to have you here.
    Mr. James. And two men who have been like brothers to me: 
Retired Air Force Captain Charles C. White, who has given up a 
tremendous career to become an elementary school teacher, and 
he is to be commended for that; and someone I am very proud of, 
my cousin, Dr. Craig Thomas.
    Chairman Hatch. We are sure happy to have all of you here.
    Mr. James. I also wish to acknowledge just a few members of 
my professional family, men who have been my mentors and 
lawyers who I have been very proud to practice with. I invited 
him here today and his appearance has been noted: former 
Attorney General Bill Barr, who has been a tremendous force in 
my career; James F. Rill, who I succeeded at the Antitrust 
Division and a big force in my life; and three of my partners, 
Phillip A. Proger, Joe Sims, and James D. Wareham, who have 
been important to me.
    Chairman Hatch. We are happy to welcome all of you here.
    Mr. James. I began my career, as Senator Hatch noted, at 
the Federal Trade Commission as a GS-11 staff lawyer, and I 
never thought I would be sitting in this chair. There is no 
greater job for a professional antitrust lawyer than to head 
the Antitrust Division of the U.S. Department of Justice. There 
just isn't. And I am honored that President Bush and Attorney 
General Ashcroft have shown confidence in me and believe that I 
can do this job at this time.
    We all recognize the vital importance of antitrust 
enforcement. Competition is the driving force of our market 
economy, and effective enforcement is what makes it go.
    There are challenges facing the Antitrust Division. The 
Antitrust Division must operate in a very complex and rapidly 
changing economic environment, and it has very, very, very 
complicated matters to learn about, figure out, and do the 
right thing with respect to. We have global commerce, we have 
new technology, we have business relationships that are 
changing all the time. Keeping up is quite a job.
    Second, the Antitrust Division confronts the new economy, 
and it must continually update its thinking in order to deal 
with the emergence of products and services that are more 
intellectual property and networks than traditional physical 
products. Again, there is a great deal to be done in that area. 
The basic tenets of antitrust to preserve competition have to 
apply to these industries just as they apply to all the other 
industries.
    Third, in our global world, the Antitrust Division is 
charged with taking a leadership role among national antitrust 
authorities around the world. In today's world, in order to 
detect, investigate, and remedy antitrust problems, there has 
to be cooperation among national agencies and, more 
importantly, there has to be an effort to harmonize different 
legal structures and different procedures so that the process 
works smoothly.
    I have had the opportunity to work with the men and women 
of the Antitrust Division for my entire career, and I can say 
without question that this group of people is up to the 
challenge. They have met every challenge before, and they will 
meet the challenges of today.
    I like to think of myself as a fairly practical lawyer, and 
I have practical goals for the Antitrust Division. My goal will 
be to ensure the utmost respect for our antitrust laws and for 
the manner in which they are enforced. For me, that means four 
things: aggressive but thoughtful enforcement; the clearest 
possible enforcement standards, applied even-handedly; the best 
available legal and economic thinking on the issues we face; 
and enforcement decisions based solely upon the factual merits 
as reflected in the evidence.
    This Committee and the Subcommittee chaired by Senators 
DeWine and Kohl have been great supporters of the Antitrust 
Division and of the antitrust laws. And if confirmed, I will do 
my utmost to ensure that the division continues to earn that 
respect and trust.
    I would be pleased to respond to your questions, and once 
again, it is a tremendous honor to be here today.
    [The prepared statement and biographical information of Mr. 
James follow:]

    Statement of Charles A. James, Jr., of Virginia, Nominee to be 
                Assistant Attorney General for Antitrust

    Good morning Mr. Chairman and members of the Committee. It would be 
a considerable understatement for me to say that I am honored to appear 
before you today. Thinking back to my first day as a staff attorney at 
the Federal Trade Commission, fresh out of law school, I would have 
never imagined that my career in antitrust would bring me to this 
place. There is no greater job for a professional antitrust lawyer than 
heading the Antitrust Division of the U.S. Department of Justice, and I 
am truly humbled that President Bush and Attorney General Ashcroft 
believe that I have what it takes to perform this job at this time.
    At the outset, I would like to acknowledge the presence and support 
of my family. With me today are my father, Charles A. James, Sr., my 
teenage daughter, Kathryn E. James, and two men who have been like 
older and younger brothers to me, Retired Air Force Captain Charles C. 
White, and Dr. Craig Thomas.
    The challenges facing the Antitrust Division are great. Competition 
is the driving force of our market economy, and we rely upon vigilant 
and effective antitrust enforcement to ensure that our markets are not 
undermined by cartels and other anticompetitive practices. The 
antitrust laws are our most fundamental consumer protection statutes. 
Companies around the world feel the pressure to compete in increasingly 
global markets. New technologies are emerging in every sector of the 
economy. Firms are experimenting with new business relationships, many 
of which involve varying forms of cooperation with their customers, 
suppliers and even their competitors. While these dynamic economic 
conditions are the very essence of competition, they also create great 
temptation for firms to probe the boundaries of permissible competitive 
conduct and, sadly for some firms, to flagrantly ignore those 
boundaries. When that occurs, the Antitrust Division must step in to 
preserve for consumers the benefits of free competition.
    The Antitrust Division also is challenged to be a leading voice 
among antitrust enforcement agencies around the world. In a global 
economy, anticompetitive behavior does not respect national borders, 
and cooperation among the various national agencies is becoming 
increasingly necessary to detect, investigate and remedy illegal 
conduct. At the same time, disparate antitrust enforcement by the 
national agencies can impede free trade flows among nations and impose 
unnecessary burdens upon legitimate competitive behavior. Once again, 
cooperation and coordination among the national agencies are essential. 
As the nation with the longest tradition of antitrust enforcement, and 
perhaps the greatest commitment to trade, the United States must take a 
leadership role in promoting sound antitrust enforcement policy in 
multinational commerce and in creating mechanisms for procedural 
cooperation on a global scale.
    Finally, the Antitrust Division is challenged to continue to grow 
in its understanding of competitive behavior and to adapt its thinking 
to an ever-changing economic environment. Increasingly, the industries 
of concern to antitrust enforcers involve intellectual property and 
network services, more so than physical goods. These industries 
challenge many of the paradigms of traditional antitrust analysis, yet 
the basic tenets of the antitrust laws to preserve competition must 
apply to these industries, just as they do to all others. The Antitrust 
Division does not have the luxury of standing still. It must exert 
intellectual leadership in the field of competition policy, constantly 
updating its knowledge base and analytical tools.
    I had the great honor of leading the Antitrust Division for a brief 
period in 1992. I know from that experience that the men and women of 
the' Antitrust Division are up to the task of meeting these challenges, 
just as the Division has met similar challenges throughout its 
existence. The Antitrust Division is an agency of motivated, committed 
professionals, who believe in the antitrust laws and enforce them with 
great vigor. I was proud to lead this group before, and I look forward 
to doing it once again.
    Since learning of my nomination, I have given considerable thought 
to what it takes to lead a large and complex organization and to the 
attributes of successful leaders I have had the opportunity to observe. 
One characteristic I have found to be common to all of the leaders I 
admire has been a constant, unswerving focus on some bedrock 
organizational goal. If confirmed, my goal as head of the Antitrust 
Division will be simple: to ensure the utmost respect for our nation's 
antitrust laws and the manner in which they are enforced. For me, that 
means that the Division will enforce the law aggressively, but with due 
regard for the complexity of modern business. It means that the 
Division will do everything in its power to develop and articulate 
clear enforcement standards and to apply those standards even-handedly. 
It means that the Division will bring to bear the best available 
thinking on the issues we face, and premise all of its decisions solely 
upon the legal and economic merits, as reflected in the evidence. If, 
at the end of my tenure, it can be said that I helped to enforce the 
antitrust laws in a fair and neutral way, I will have achieved my goal.
    This Committee, together with the subcommittee headed by Senators 
DeWine and Kohl, has been a tremendous supporter of the Antitrust 
Division. It is my hope that the Division will continue to earn your 
support and, if I am confirmed by the Senate, that I personally can 
enjoy an excellent working relationship with each and every one of you.

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    Chairman Hatch. Well, it is an honor to have you here, and 
we are grateful to have your family, your law partners, the 
former Attorney General, and former head of the Division, Jim 
Rill, with you here today.
    Mr. Bryant, we will turn to you and hope you will introduce 
your family, especially these--I think the children were taken 
outside. They are beautiful children. Caroline, who is age 2, 
and Peter, who is a little less than one, as I understand it, 
they are both very active, it looked like to me.
    Senator Leahy. And they are making me miss my grandson a 
great deal, just seeing them.

   STATEMENT OF DANIEL J. BRYANT, OF VIRGINIA, NOMINEE TO BE 
       ASSISTANT ATTORNEY GENERAL FOR LEGISLATIVE AFFAIRS

    Mr. Bryant. Thank you, Mr. Chairman. Indeed, Peter already 
introduced himself to the committee.
    [Laughter.]
    Mr. Bryant. My wife, Aerin, is in the front row, joined by 
my parents, Gary and Carolyn, down from Wilmington, Delaware.
    Chairman Hatch. We are very happy to have you folks here, 
your parents and wife and these two beautiful children.
    Mr. Bryant. Thank you. My older brother and sister are also 
with us today and their spouses.
    Chairman Hatch. Would you all stand? We would appreciate it 
if you would all stand.
    Mr. Bryant. And children.
    Chairman Hatch. OK. Great. Parents, we better let people 
get a look at you, too. OK.
    Senator Biden. Children, you realize this is the time to 
exact whatever promise you want.
    [Laughter.]
    Senator Biden. You are able to object from the audience if 
you do not like what we are doing, so this is your opportunity.
    Chairman Hatch. That is a prelude to----
    Senator Leahy. They will never be more vulnerable.
    Chairman Hatch. That is right. I think that is a prelude to 
your questions.
    Senator Biden. A sundae, a gift, or something, now is the 
time.
    Chairman Hatch. That is right.
    Senator Leahy. It will also be in the record that you are 
here if there is something you want to get, and I might also 
add, Mr. Chairman, we would not want to overlook for the record 
that the Milwaukee Bucks won their first round NBA playoff 
against the Orlando Magic last night. I think we should 
congratulate the people of Milwaukee, the team, and, of course, 
Senator Kohl.
    Chairman Hatch. I think that is pretty good. Were you there 
last night?
    Senator Kohl. Yes.
    Senator Leahy. That is why they won.
    [Laughter.]
    Chairman Hatch. Well, I have seen him there when they have 
not won, against the Utah Jazz. But, then they did pretty badly 
last night.
    Well, Mr. Bryant, we will get back to you sooner or later 
here.
    [Laughter.]
    Senator Leahy. It is a very serious committee, I want you 
to know, that you are here before.
    Mr. Bryant. Thank you, Mr. Chairman, Senator Leahy, members 
of the committee. I would also like to acknowledge this morning 
friends and colleagues who are here who, along with my 
wonderful family, have provided support, encouragement, and 
guidance and have been instrumental through the years.
    It is a great honor to appear before this committee. It is 
a tremendous privilege to have been selected by President Bush 
and Attorney General Ashcroft for the position of Assistant 
Attorney General for the Office of Legislative Affairs.
    As this Committee well knows, in order for the Justice 
Department to be effective, it must have a solid working 
relationship with Congress. Even as mutual respect is vitally 
important to professional relationships, so it is with 
relationships between institutions.
    Mr. Chairman, members of this committee, if confirmed as 
Assistant Attorney General, I look forward to working with this 
Committee to ensure that the Department's relationship with 
Congress is sound.
    Thank you very much.
    [The biographical information of Mr. Bryant follows:]
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    Chairman Hatch. Thank you, Mr. Bryant. We appreciate it.
    The distinguished Chairman of the Finance Committee has 
many obligations, so I am going to defer to him to be our first 
questioner, and then I will turn to Senator Leahy.
    Senator Grassley. Thank you very much, and congratulations, 
Mr. Bryant and Mr. James. Most of my discussion will be with 
Mr. James, and it is not really in the sense of ``gotcha'' 
questions. I just want to make points and maybe get a slight 
reaction from you. I will have some of my questions for answer 
in writing, and some of the things that I am going to talk 
about Senator Leahy has already brought up. I have been very 
interested in the work of the Antitrust Division and how 
mergers and acquisitions impact my constituents. Competition 
issues, particularly in the agriculture and airline industries, 
are of particular concern to me, and I would like to reiterate 
a point that I made many times to the past administration. And 
this even though I am a Republican and we have a Republican 
President, these issues are still going to be of as much 
concern or of more concern now. The point that I make here is 
that transactions must be evaluated in terms of their impact on 
rural communities. It comes from a feeling of mine that may be 
a misimpression, but it is still a feeling of mine, so you know 
where I am coming from.
    I think that maybe we too often look at mergers and how 
they impact upon urban areas because there is more of an 
understanding in Government of urban than rural problems. And 
that is why I bring special attention to the rural impact. I 
want to make sure that rural America is not getting the short 
end of the stick as mergers and acquisitions are reviewed and 
approved by the Justice Department.
    As I indicated, an area of special interest of mine is 
agriculture. I have been extremely concerned about increased 
agribusiness concentrations, reduced market opportunities, 
fewer competitors in the marketplace, the inability of family 
farmers and independent producers to obtain fair prices for 
their products. I have also been concerned about the 
possibility of increased collusive and anticompetitive activity 
in agriculture.
    I had an opportunity to discuss these issues at length with 
Attorney General Ashcroft when we met in January, and he has 
agreed that competition problems in agriculture are unique and 
should be given particular attention by the Justice Department. 
If there is something unique about agriculture, it is that the 
farmer is not only the consumer that antitrust laws were meant 
to protect, but also the farmer with his inputs into 
agriculture is kind of a person caught in the middle, maybe 
being a consumer on one end, but also we want to make sure that 
he has the opportunity to get a fair price for his product and 
obviously enough competition on the end with his sales.
    Before I start out with specific questions--and I was going 
to put this in the form of a question, but I now want to make 
it a statement because I am not trying to catch you off guard 
or anything. We have the lowest prices in 25 years in 
agricultural commodities. Maybe that is more true of the 
Midwest grain and grain generally than it is of all 
agricultural commodities, but it is a fact, at least for 
several of our biggest crops in the United States. And I hear 
about that, but let me say that, as I hold my grass-roots 
meetings around Iowa and agricultural issues come up, probably 
as much or more than the issue of low prices comes up the 
concern of my constituents about concentration in agriculture.
    So I want to point out the low prices and hope that there 
is some understanding of that, but there is also concern about 
concentration in agriculture as well.
    Last year, a position was created under the previous 
President within the Antitrust Division that focuses 
specifically on agricultural antitrust issues. And I understand 
that this position is still there. I would urge you to make 
sure that that post is permanent. I think it is important to 
have a position like this one within the Justice Department to 
let farmers know that the Antitrust Division takes their 
concerns seriously and will respond appropriately. And I hope 
that you would use this person to analyze the competition 
issues in the farm country that you are dealing with today and 
to interface with farmers and ranchers about their concerns.
    Is that something that you think you could give me an 
opinion on today, that that position would be maintained as it 
was in the previous administration?
    Mr. James. Senator Grassley, the agricultural sector is an 
area of focus for the Antitrust Division. As you say, there is 
the special counsel position.
    As I sit here today, I am not quite sure about the 
personnel circumstances with regard to that position, but I 
don't see, if confirmed for this position, that I would want to 
change that personnel situation or the amount of emphasis on 
agricultural issues at the Department. We have not only the 
special counsel but a section of the Division that focuses on 
agriculture among the commodities of focus.
    Senator Grassley. Along the lines that I just suggested, 
another point I wanted to make was very recently, within the 
last month, the General Accounting Office has put out in regard 
to agriculture-related matters, a study of Justice's Antitrust 
Division, and the title of it is ``Better Management 
Information Is Needed on Agriculture-Related Matters.'' I bring 
this up to you, not that you should know about it, but to 
acquaint you with it, and I ask that you would take a look at 
that and make sure that you read it, follow its 
recommendations, and, again, the point is the extent to which 
concerns about agricultural competition are brought to the 
attention of the Department and are adequately considered.
    I want to make sure that the Antitrust Division, on another 
point, will dedicate time and resources to competition in 
agriculture, that your Division will carefully scrutinize all 
possible adverse horizontal and vertical implications of 
agribusiness transactions that come up to you for review, and 
also seek a commitment from you that the Antitrust Division 
will aggressively investigate allegations of anticompetitive 
activity in agriculture. Could I have a short response to that?
    Mr. James. Certainly, Senator Grassley. I understand--I am 
still an outsider to the Antitrust Division, but I understand 
from conversations with my predecessors that the agricultural 
sector has been a priority area for them. I understand also 
that efforts are being made within the Department to reach out 
to the farm community and to make sure that they have knowledge 
about the ways in which they should address their complaints 
and concerns to the Antitrust Division so that, to the extent 
that there is anticompetitive conduct out there, we know about 
it and we investigate it.
    I think it is very important that those activities all 
continue and that we look for other ways of detecting problems 
in this sector. The concern that you express, the concern of 
large, in this instance, purchasers confronting very small 
sellers in the face of the farmers is something that is 
certainly contemplated by the antitrust laws. It is something 
that has to be protected and certainly will be a priority for 
me.
    Senator Grassley. Your Department does not have much to do 
with the Packers and Stockyards Act because that is under the 
jurisdiction of the Department of Agriculture. But then-Senator 
Ashcroft joined me in introducing a bill to strengthen the 
packers and stockyards program, and this bill was signed into 
law in November.
    Just before that, I requested from the General Accounting 
Office a review of Packers and Stockyards Act enforcement 
efforts of the Agriculture Department's Grain Inspection 
Packers and Stockyards Program, and for short we call that 
GIPSA. The General Accounting Office found that GIPSA had been 
ineffective in carrying out its statutory responsibilities to 
prevent anticompetitive practices in the livestock industry. 
One provision of the law that was signed requires the Justice 
Department to assist the U.S. Department of Agriculture in its 
enforcement of the Packers and Stockyards Act during a 1-year 
timeframe.
    According to that act, would you assure me that this would 
be done? But before you answer that, in addition, could you 
assure me that the Department of Justice will help advise 
GIPSA, which also is along the lines of the General Accounting 
Office report and the act, as it formulates more effective 
competitive policies and procedures to enforce the Packers and 
Stockyards Act? Generally, the General Accounting Office took 
the view that the Packers and Stockyards Act in some respects 
is even stronger than the antitrust laws. The General 
Accounting Office found that there were certain procedures that 
the Antitrust Division followed that involved both economists 
and lawyers working together on these issues, and that the U.S. 
Department of Agriculture was not involving lawyers soon enough 
in the process. The General Accounting Office felt that the 
Antitrust Division's procedures were more effective than those 
procedures utilized by the U.S. Department of Agriculture, and 
the GAO encouraged USDA to adopt similar procedures. That is 
basically what the General Accounting Office advised, and that 
is basically what the law requires.
    Mr. James. The Packers and Stockyards Act tries to get at 
issues that are very similar to antitrust issues, as you have 
noted, Senator. And certainly if the Antitrust Division can be 
of assistance to the Department in enforcing the act, that is 
something we would want to do because the goal is the same.
    Senator Grassley. Yes. My time is up, but let me make a 
point, though, because it is not a case of just the Antitrust 
Division assisting them if they want assistance. The law now 
says for a 1-year period of time that you will help them in 
developing a better GIPSA procedure, which was not done as a 
result of an inspector general's report in 1997, a previous 
General Accounting Office early 1990's, and basically the GAO 
report that we had last year. It just simply said, you know, 
all you need to do is what the GAO and IG previously 
recommended you to do. And then that is how we got the 
Department of Justice involved because your procedures are so 
much better.
    I think we have to quit.
    Chairman Hatch. Yes, your time is up, Senator.
    Senator Grassley. I will submit some written questions.
    Chairman Hatch. That would be fine. We will keep the record 
open for questions until--I would say 6 o'clock tonight, and 
then that way, if you could answer those questions right away, 
we would appreciate it, both of you.
    I think Senator Kohl, the distinguished Ranking Member of 
the Antitrust Subcommittee, would like to just make a few 
remarks, because you have an appointment at 11:00, as I 
understand.
    Senator Kohl. Yes. I am delighted to be here today with you 
and with the nominee. I look forward to working with you. As 
you know, we have many issues of great importance, and from 
what I know of your background, you are a highly qualified 
person, and I think working together we will be able to get 
quite a bit done.
    I will be submitting questions for the record. It is good 
to have you with us today.
    Mr. James. Thank you, Senator.
    Chairman Hatch. If we can get those questions in before the 
end of the day, I would appreciate it, before 6 o'clock.
    We will turn to the Ranking Member now.
    Senator Leahy. Thank you very much, Mr. Chairman. To follow 
on Chairman Grassley's series of questions, I am also a 
supporter of his legislation, and I earlier on mentioned some 
of the agricultural concentrations and the concerns. I would 
hope that hearing this from both Senator Grassley and myself 
you realize this is not a partisan issue. It is not even a 
regional issue. It is something we all have a great deal of 
concern about, and we would like you to look closely at that. I 
also talked about Suissa Foods and their--is my time up 
already, Mr. Chairman?
    Chairman Hatch. My goodness, it is. Let's go to----
    Senator Leahy. You have been nicer to me than that lately. 
I take back all those nice things I said.
    Chairman Hatch. We will go to Senator Cantwell now.
    [Laughter.]
    Senator Leahy. In my opening statement, I raised some very 
significant concerns about Suissa Foods and their dominant 
market power in New England regarding fluid milk. I know the 
Justice Department has filed an action against them in the 
Commonwealth of Kentucky over concerns about potential 
anticompetitive pricing of milk for the school lunch program. 
This is considered an essential food. Certainly a lot of 
parents would not think of any acceptable substitute. I know 
around here when there is talk about an inch or two of snow, 
everybody is running into the store to stock up on milk because 
they know that if we have a couple days of real bad weather, 
the milk is going to run out, fresh milk is going to run out. 
So, again, a reason for having some competition there. Will you 
assure me that the Justice Department will carefully look into 
the growing dominance of Suissa Foods regarding dairy products?
    Mr. James. Senator Leahy, certainly the issues you raise 
about concentration in the agricultural sector are important 
issues for the Department, important issues for consumers, 
important issues for these producers. And I certainly can 
assure you that we are going to do everything we can in that 
sector.
    I think it probably would be inappropriate to talk about 
specific companies and cases in this context, but I certainly 
will assure you that the issue that you raise will be one that 
will be at the top of our minds, and one that we will look into 
as closely as we possibly can.
    Senator Leahy. Thank you.
    During the debate on the budget resolution, Senator Harkin 
and I offered--and this is for Mr. Bryant--an amendment to add 
$1.5 billion to the Department of Justice account to fund 
programs assisting local law enforcement. It was one of the few 
amendments during that debate that got such strong, bipartisan 
support that it passed unanimously. During Attorney General 
Reno's time and the Department of Justice's emphasis on 
coordinated efforts to State and local law enforcement, we saw 
crime rates fall in each of the past 8 years, something I have 
not seen--I certainly have not seen in all the years I have 
been here as a Senator. In fact, violent crimes, including 
murder and rape, have been reduced to their lowest level since 
1978.
    We have a program that seems to be working. I would like to 
keep it working. I joined, for example, with Senator Hatch, 
very proud to join with him to pass bipartisan legislation to 
authorize grants by the Department of Justice to fund 2,500 
Boys and Girls Clubs across the Nation. We had strong 
bipartisan support. Senator Hatch will recall we got the 
funding increased from $20 million in fiscal year 1998 to $60 
million in 2001. In my own State, this long-term Federal 
commitment has helped us establish six Boys and Girls Clubs, in 
Brattleboro, Burlington, Montpelier, Randolph, Rutland, and 
Vergennes, with plans for six more. Educators, parents, 
everybody knows how important they are. I know that Attorney 
General John Ashcroft was a big booster of Boys and Girls 
Clubs, and he worked with Senator Hatch and myself on getting 
this funding. He spent a lot of his time as a youth, he told 
us, at a Boys and Girls Club in Missouri.
    I hope the Attorney General and Senator Hatch and I can 
continue to join forces to fund these Boys and Girls Clubs. So 
I ask you: Do you know what was the rationale behind the Bush 
administration's decision to not request any funding for Boys 
and Girls Clubs in the Department of Justice's budget?
    Mr. Bryant. Thank you, Senator. I am aware of the past 
support for the Boys and Girls Clubs program by this Committee 
and by the Congress more generally. The budget obviously is the 
President's budget that he has submitted to this Congress and, 
therefore, it is a budget that I support. I know there were 
difficult decisions that had to be made in terms of the finite 
resources available. I also know that the absence of an earmark 
for the Boys and Girls Club program was not intended in any way 
to suggest a lack of continued strong support for the program.
    I would be, of course, happy to work with this Committee to 
ensure that the support for this successful program continues 
to be in place.
    Senator Leahy. The legislation that Senator Hatch and I 
have would fund something like 2,500 Boys and Girls Clubs 
across the Nation for 1998 to 2001, and I would hope you would 
work with us and I hope the Attorney General will to try to 
continue this. This is a program--I have gone to a lot of these 
Boys and Girls Clubs. Nobody asks, for example, whether you are 
Republican or Democrat or rich or poor. They just know it 
works. And a lot of parents today, with both parents working, 
or they are single parents, it is not always a question of 
knowing where your child is at 4 o'clock in the morning. They 
kind of like to know where they are at 4 o'clock in the 
afternoon. And the Boys and Girls Clubs give them a lot of help 
for that.
    Mr. James, you helped fight antitrust laws being used 
against corporate America, and I do not say that in a 
pejorative fashion at all. I am a lawyer, and I believe very 
strongly in having the best lawyers on both sides of an issue, 
and for the corporate clients, you have certainly been one of 
the best.
    But can you do that 180-degree turn now and enforce 
antitrust laws? The reason I ask is because in my opening 
statement, I mentioned how you have had to assure the Committee 
that you would recuse yourself from matters affecting former 
clients.
    What assurances can you give us, both on the recusal, but 
also on assurances that you are not going to seek waivers for 
the normal recusal rules?
    Mr. James. Senator Leahy, the ethical considerations that 
you raise are serious ones. My intention is to avoid any sort 
of ethical complications, including appearances, so that my 
posture is going to be to sort of throw myself to the ethics 
officials of the Department of Justice and follow their 
instructions without question.
    I have no interest at all in entering into matters that are 
matters of former clients, so I am just going to do what the 
ethics officials in the Government instruct me to do without 
question.
    Senator Leahy. Well, Mr. James, I have no question that you 
are a very ethical lawyer, and I would not expect otherwise. 
But in those areas, there is the ability to ask for waivers. In 
other words, the Ethics Committee could say, well, technically, 
this is one to recuse yourself from, and then you have a second 
step that you could take on behalf of yourself or, say, your 
deputy or somebody else, to ask for a waiver.
    What is your feeling on asking for waivers? Once they have 
said that this is technically something that you would recuse 
yourself from, that you wish a waiver--how would you feel about 
that?
    Mr. James. I will not seek to participate. My experience in 
the Department and at the Federal Trade Commission indicates 
that that situation has worked, basically, in the following 
manner. There has been a recusal from a matter, and persons 
superior to you for a variety of reasons may come in and say, 
``We think this is a situation where we need your particular 
expertise,'' or something of that nature, and that superior 
would ask for the waiver.
    It has never been my experience that the lawyer himself or 
herself has asked for the waiver, and it would certainly never 
be my intention to ask for a waiver.
    Senator Leahy. In the case of Ms. Herman, your deputy, she 
worked on some of the same cases with you. As a private 
attorney, would you feel the same way about seeking waivers for 
her?
    Mr. James. Oh, absolutely, absolutely, Senator.
    Senator Leahy. Mr. James, I appreciate that. I am not 
trying to keep you from doing things. I do not think anybody on 
this Committee questions either your ability or your integrity. 
What we do worry about very much, of course, is appearance. And 
heads of the Antitrust Division come and go, and we have had 
some superb ones under both Republican and Democrat Presidents. 
I just want to make sure we maintain the appearance of the most 
unbiased and the most competent of Antitrust Division. You are 
going to have a lot of responsibility there.
    So I appreciate it, and Mr. Chairman, I would just ask to 
insert in the record a statement for Senator Kohl.
    Chairman Hatch. Without objection, we will put that in the 
record.
    [The prepared statement of Senator Kohl follows:]

Statement of Hon. Herb Kohl, a U.S. Senator from the State of Wisconsin

                             Charles James

    Thank you, Mr. Chairman. Our hearing today is a very important one. 
The head of the Antitrust Division bears an increasingly important 
responsibility in today's economy. In the last several years, we have 
witnessed an incredible wave of mergers and acquisitions touching 
virtually every sector of our economy. In the space of just nine 
years--from 1991 to 2000--the value of mergers reviewed by the 
antitrust agencies increased more than tenfold, from $169 billion to 
nearly $3 trillion. The increasing numbers and complexity of mergers 
and acquisitions have resulted in substantially increased workload for 
the Antitrust Division.
    Antitrust law is not limited to corporate mergers, of course. In 
industries as varied as computer software, airlines, and food 
processing, the Antitrust Division has been a vigilant watchdog to 
prevent anticompetitive conduct by companies that harm consumers. The 
last administration has certainly left you with a full plate, Mr. 
James. If confirmed, the Justice Department's antitrust lawsuit against 
Microsoft and its investigation of the pending airline mergers--among 
the most important antitrust matters in decades--will be resolved under 
your watch. It will be your responsibility to be the people's watchdog 
to ensure that anti-competitive practices do not harm consumers and 
stifle competition so essential to the functioning of our free market 
economy.
    Vigorous and aggressive enforcement of our nation's antitrust laws 
is essential to ensuring that consumers pay the lowest possible prices 
and gain the highest quality goods and services. In this era of 
quickening technological change and increasing corporate consolidation, 
the need for vigorous enforcement of our antitrust laws has never been 
greater. I am committed to ensuring that the Antitrust Division has the 
necessary resources to do this vital job, and I was pleased to see that 
the administration's 2002 budget request contained a substantial 
increase in funding for the Antitrust Division.
    There is no doubt, Mr. James, that you possess excellent 
qualifications for the position of Assistant Attorney General for 
Antitrust. You have held senior positions in, the Antitrust Division, 
including serving as head of the Antitrust Division in an acting 
capacity during 1992. You have also held important positions in the 
Federal Trade Commission, and are widely recognized as one the nation's 
leading antitrust lawyers in private practice as Chairman of the 
Antitrust Section at the Jones Day law firm.
    Despite these credentials, I am somewhat concerned about your 
commitment to the crucial mission of vigorous antitrust enforcement. 
You have written, for example, that ``merger law is the `impossible 
dream' of federal antitrust enforcement'' and that it is ``impossible 
to make sense out of the merger enforcement process.'' Some of your 
writings and positions leave us to doubt your commitment to antitrust 
enforcement and your appreciation of the vital mission of the agency 
you are to lead. I will be anxious to hear your explanation of these 
disquieting statements.
    Mr. James, the position of Assistant Attorney General for Antitrust 
carries with it a special burden, and a special responsibility. The 
companies over whom the Antitrust Division has jurisdiction have ample 
resources to hire skilled and talented counsel to represent their 
interests. But no one represents the interests of the American consumer 
other than the head of the Antitrust Division and his staff. If 
confirmed, you will hold a public trust to ensure that competition 
flourishes and anti-competitive abuses are prevented. Millions of 
consumers will depend on your efforts and your judgment. You will 
inherit a proud legacy at the Antitrust Division, and it is my sincere 
hope, and full expectation, that you will uphold this legacy should you 
be confirmed.
    Thank you for your attendance, Mr. James, and I look forward to 
hearing your testimony.

    Chairman Hatch. Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman.
    Chairman Hatch. Excuse me. I am sorry. If you would excuse 
me, Senator Cantwell, I thought Senator Specter had left. We 
had better turn to him first if that is all right with you.
    Senator Cantwell. That is quite all right, Mr. Chairman.
    Senator Specter. Thank you, Mr. Chairman.
    Mr. James, Mr. Bryant, thank you for coming by to visit 
with me in advance of this hearing. I reviewed your academic 
and professional records, and I think you both bring excellent 
qualifications to the job. These are very important positions, 
being Assistant Attorney Generals in the Department of Justice.
    Let me focus on the antitrust issue first. Mr. James, you 
and I were talking about the growth of the mergers and 
acquisitions and the issue as to the adequacy of the antitrust 
laws as they exist at the present time. We talked about banking 
matters where, in Pennsylvania, major banks have come in and 
substantially reduced competition; and looked at the airline 
industries across the country as well as many other industries.
    You suggested that there might be some line where there 
might be a redefinition of market share which would enable the 
Antitrust Division to take a hand at some of these mergers 
which are now not subject to challenge.
    Would you elaborate upon that?
    Mr. James. Yes, Senator Specter. What we were discussing 
last evening was the general question of our approach to merger 
enforcement. The merger guidelines, of course, establish the 
structural framework for reviewing prospective mergers. We 
talked about the critical issue of market definition.
    From my standpoint, all of the policies, the enforcement 
standards and policies that we have at the Department of 
Justice, should be continuously reviewed and updated. And in 
response to the concern that you indicated about certain 
mergers going through, I certainly agree with you that looking 
at the market definition section of the guidelines from time to 
time and making sure that it is resulting in the appropriate 
analytical environment for our mergers is something that the 
Department should do; and there are certainly lots of people in 
the Antitrust Division who have the capability and the academic 
ability to review that aspect of the guidelines, and we will 
look at it very closely. I would be happy to work with your 
office in looking at that.
    Senator Specter. Well, we are going to take a look and work 
with you to see if there might be some appropriate line there.
    The Department has a great many ongoing matters which are 
in litigation, and you and I talked about the question of 
maintaining the litigation status. Without commenting on the 
merits, there is a major antitrust case which was recently 
decided by the Federal Court in Wichita, Kansas, involving 
American Airlines and the question of predatory practices.
    Without getting into the merits, it would be my hope that 
the Department would maintain a policy of maintaining the 
litigation of these very close public policy issues. And again 
without taking a position on Microsoft, which is in mid-stage, 
a question I asked Attorney General Ashcroft when he was up for 
his confirmation hearing, I would like your views about the 
continuity of the Department maintaining that approach when the 
litigation is in midstream.
    Mr. James. Well, Senator Specter, it is certainly my 
perspective that whenever the Department begins a litigation, 
commences a complaint, if there is at some juncture of the case 
an adverse ruling, the appropriate thing for the Department to 
do in that instance is to evaluate the nature of the ruling and 
evaluate what the procedural posture is and determine whether 
there are appropriate issues that can be carried forward 
legitimately for appeal. And it certainly would be my 
expectation in any cases that are in midstream today to follow 
that procedure in the future, that we will look at them, we 
will look at what the Court of Appeals has said. There 
certainly are standards about the types of arguments that can 
be advanced on appeal, and we will look at closely as possible 
to preserving victories and rectifying defeats if we can.
    Senator Specter. I repeat for the record today what I said 
to you yesterday, that I think the Antitrust Division is 
uniquely an advocacy division of the Department of Justice. The 
public prosecutor has a quasi-judicial responsibility, not a 
plain advocate, but quasi-judicial. But I think that in the 
antitrust field, where we do have so many of these acquisitions 
and mergers and expanding aggressive business practices--and I 
do not say that in a pejorative sense--people do what they 
think will be in their interest. But the antitrust laws 
require, I think, a higher degree of advocacy than perhaps 
other branches--I would not want to say all other branches of 
the Department of Justice--but I would urge you to keep that in 
mind, that you have a very high public trust as the chief law 
enforcement officer in the antitrust field.
    Mr. James. I respect that, Senator.
    Senator Specter. Let me move to a question that we 
discussed yesterday, and that is the issue of possible 
antitrust action against OPEC.
    Quite a number of Senators wrote to the President more than 
a year ago and have polished the letter and sent it to 
President Bush, joined by Senators DeWine and Kohl, the 
Chairman and ranking of the antitrust subcommittee, with 
Senators Schumer and Thurmond, suggesting to the executive 
branch that litigation be instituted against OPEC under the 
antitrust laws.
    There is no doubt that OPEC is a cartel in restraint of 
trade, but there are some very difficult issues on the act of 
State doctrine, which you and I discussed, and where you have a 
commercial activity like the sale of oil, it is hardly a 
governmental activity to be encompassed in the act of State 
doctrine. The litigation which has been in the field is really 
old litigation, and some of it was turned down by the 9th 
Circuit--I will have a copy of this letter made part of the 
record--where there was doubt as to the internationally 
accepted legal principles on the antitrust line. That has 
changed materially in some developments, and while not really 
directly relevant to antitrust, the activities of the War 
Crimes Tribunal and the proposals for an international criminal 
court and the expansion of the International Court of Justice 
at The Hague, show quite a trend that principles of 
international law are much more recognizable than in the past.
    I have asked you to take a look at this issue from a legal 
point of view, from an antitrust point of view. There are 
obviously great foreign policy considerations. In dealing with 
Saudi Arabia or Kuwait or Iran or Iraq, there are a lot of 
factors that run through what the Government may do, and when 
you and I talked just yesterday, I had not known that there had 
been very recently some action in the United States District 
Court for the Northern District of Alabama where, on March 21 
of this year, in a nationwide class action suit, a default 
judgment was entered against OPEC as having violated the 
Sherman Antitrust Act and issued an injunction, which is pretty 
interesting. It was a default judgment. We have had some 
interesting and fascinating cases and judgments against Iran 
and efforts to execute on judgments, and issues on foreign 
policy.
    Aside from the foreign relations aspects, Mr. James, I 
would be interested in your views for the record as to what 
legal feasibility you might think possible for an antitrust 
action against OPEC.
    Mr. James. Senator, I think everyone understands the 
concern that you are raising. We all go to the gas pumps.
    The issue that you are describing, an action against the 
foreign governments that make up OPEC, obviously has lots of 
implications outside of the antitrust laws.
    The antitrust issue is simply an issue of a) can 
jurisdiction be obtained over parties, and b) whether the 
conduct is an act of State within the meaning of the law. It is 
not an issue that I can say that I have studied up until now, 
but it is certainly an issue that can be studied and can be 
determined. It is simply a factual determination based on the 
standards that have been articulated by the courts.
    Senator Specter. Well, it is hardly governmental to sell 
oil; is it really economic?
    Mr. James. That is certainly a characterization. Whenever 
you have this----
    Senator Specter. I do not want to lead the witness too 
much--but wouldn't you agree with that?
    Mr. James. It is certainly the case that the producing 
governments themselves are selling oil. That is what they do. 
And the legal question is when that status stops and the 
governmental actions begins, and it is a factual issue. You 
would have to study OPEC and study the decisions that you have 
talked about.
    Senator Specter. Mr. Bryant, you are taking on an important 
job, and I would urge you to be as prompt as you can in 
responding to letters from Senators--maybe all letters--we get 
a lot of responses the day before the Attorney General comes up 
for the oversight hearing--and also to get some responses, not 
over your signature, but from the officials who have the 
substantive controls when we are looking for substantive 
answers.
    My red light is on. Thank you very much.
    Chairman Hatch. Thank you, Senator.
    Senator Cantwell?
    Senator Cantwell. Thank you, Mr. Chairman.
    Mr. James, following on some of my colleagues' comments 
about agribusiness consolidation, I would like to join in as 
well given the impacts that we have seen in Washington State 
with the apple market. Specifically, while I do not believe 
that there is actually price-fixing going on, the sheer size of 
these companies and their consolidation is basically allowing 
them to say to family apple farmers, ``Take our price, or go 
elsewhere,'' and oftentimes, that elsewhere is global.
    So my question is how do we ensure that our family farmers 
have a free market to sell in, and what are your views on the 
role of Government intervention when the market consolidation 
results in an oligopoly as opposed to just a monopoly?
    Mr. James. Senator Cantwell, the issue that you raise is 
one that is specifically addressed by the antitrust laws. You 
are talking about the situation of the farmer as seller dealing 
with an increasingly concentrated processing upstream market. 
In those circumstances, what the antitrust laws contemplate is 
that you look at what are known as oligopsony or monopsony type 
effects. They work basically the same as the types of 
relationships that would occur in typical buyer-seller 
situations. You look at the concentration in the processing 
sector and determine whether or not particular transactions 
have the capability of creating market conditions in which they 
could exercise this purchasing power. In the agribusiness 
sector, it certainly would be my intention to scrutinize all 
mergers for these oligopsony or monopsony type effects.
    Senator Cantwell. New merger actions would have to take 
place, as opposed to current market conditions?
    Mr. James. Where current market conditions are concerned--I 
thought you were asking in particular about acquisition 
activity----
    Senator Cantwell. These practices exist today because of 
past practice, so I guess I am trying to understand where the 
Antitrust Division would take action in an investigation.
    Mr. James. If a market were concentrated, and as a result 
of that concentration, firms in the industry were engaging in 
particular types of behavior--market allocation, price 
signalling, those types of things--then you could have an 
independent case based on Section 1 of the Sherman Act or some 
Clayton Act violation.
    Senator Cantwell. And the investigation by your office 
would have to be triggered by some sort of data--I am trying to 
understand the Antitrust Division--obviously, we have all 
brought up agricultural examples here, and this consolidation 
is going to continue, and I applaud Senator Grassley's efforts 
in the legislative arena on this. But I am trying to understand 
the Department's activities as it relates to investigation. 
What triggers----
    Mr. James. Antitrust investigations get triggered by all 
types of things. I can tell you that as a private lawyer. But 
as I understand it, one of the things that has occurred at the 
Antitrust Division is that the Antitrust Division is reaching 
out to the agricultural sector and finding ways to communicate 
and explain to farmers how to communicate with the Antitrust 
Division if they have complaints and the types of issues they 
ought to bring to bear.
    Certainly if in your office, you have indications of 
anticompetitive practices that we ought to know about, we are 
happy to receive those from you; we are happy to receive them 
from complaining farmers; we are happy to try to investigate to 
determine whether there are problems on our own. So 
investigations can be commenced in a variety of ways, and if 
this is something that should be looked at, we appreciate the 
referral.
    Senator Cantwell. Thank you.
    If I could go to another area, I do not know if you have 
heard of the online travel website that the airlines are 
talking about, ORBITZ, which would allow them to offer access 
to cheaper discount fares by those airlines on line, in ways 
that their other competitors, whether it is Travelocity or 
Expedia.com, might not be able to do.
    Could you comment on that as a potential issue for 
antitrust?
    Mr. James. As I understand it, ORBITZ is a joint venture of 
airlines to sell tickets online. As I understand it, the ORBITZ 
arrangement was looked at by the Department of Transportation, 
and the Department of Transportation concluded that it would 
allow it to be formed.
    I think it is public that there is a Department of Justice 
investigation of the ORBITZ situation that is ongoing. Beyond 
that, I would not be able to comment about the specifics of the 
ongoing investigation--and I do not know very much about the 
specifics of the ongoing investigation other than what is in 
the paper.
    Senator Cantwell. Let me ask you a general question, then, 
because you obviously have a lot of background in the antitrust 
area is it relates to representing businesses.
    In a world that is continuing to consolidate, how do you 
balance that consolidation against consumer protection?
    Mr. James. The way the merger guidelines are written, you 
begin by evaluating the consolidation, and if there is any 
adverse impact on consumers, the transaction is unlawful.
    Senator Cantwell. Well, I know that you cannot speak 
specifically about the details of this, so maybe we will wait 
until after your confirmation and continue it.
    Those are all the questions I have, Mr. Chairman.
    Chairman Hatch. Thank you, I appreciate it.
    I have such confidence in both of you. I know both of you 
well. I have worked with you, Mr. Bryant, an awful lot as we 
have tried to put together many, many pieces of legislation. We 
have had lots of contacts with the House. I could not recommend 
anybody higher than the two of you.
    And Mr. James, we have had a lot of help from you on this 
Committee over the years. I just look back to the Hart-Scott-
Rodino changes that we made last year. You were very beneficial 
to this Committee in helping us to understand some of these 
things better. So I just could not have a higher opinion of you 
than I do.
    I really commend this administration for choosing the two 
of you for these very important positions. I am sure your 
families are very proud of you; I am personally very proud of 
you myself.
    Let me just ask a couple of questions of you, Mr. James; I 
would feel badly if I did not ask a question or two.
    I intend to put you on the markup for tomorrow. Under our 
rules, anybody can put you over for a week. That may very well 
happen, because I have been asked to extend the time for 
questions beyond tonight until Thursday evening, Thursday at 6, 
if that is OK with those of you over there.
    I do not think that should interfere with the markup 
necessarily, because we have all the time between now and the 
floor, but I would like you to answer those questions as 
quickly as you can; if we can get questions in by tonight, I 
would appreciate it. I would like to shorten this time, not 
just because I want to help you, but because I think it is just 
better for us to be prepared for these hearings, and if we have 
questions, get them out.
    Many antitrust scholars, including Judge Posner, have 
concluded that monopoly power is more likely to exist in high-
tech industries and other industries because of the so-called 
network effects. Network effects essentially means that a 
technology like the telephone or a fax machine becomes 
increasingly more valuable as more and more people use such 
technology.
    Do you think that monopoly power is more likely to occur in 
high-tech industries than in other industries, and if so, what 
are the implications of your conclusion for antitrust 
enforcement with regard thereto?
    Mr. James. The issue that you have raised, Senator Hatch, 
is of course one of the top priorities for the Antitrust 
Division to begin to grapple with these network and high-
technology industries.
    It is a fact of life when someone is introducing a new 
product, if they get there first and get to take advantage of 
the ``efficiencies of ubiquity,'' as one group of economists 
calls it, they may have a prevailing market position for some 
period of time.
    As an antitrust matter, you certainly do not want to 
discourage the innovative activity that causes companies to 
invest in inventing these kinds of things. The clear issues 
that you have to evaluate are how are these networks formed, 
whether the networks are designed in an over-inclusive way, and 
how those networks interact with third parties. I can tell you 
that the Antitrust Division and in particular its economic 
staff is looking very closely at those issues. Those issues are 
always considered in antitrust investigations of networks, and 
I would hope over a period of time to develop some clear 
statements of policy with regard to those issues.
    Chairman Hatch. That would be very helpful to us. Some have 
suggested that high-tech industries such as software should be 
exempt from antitrust enforcement because of their dynamic 
nature. Do you believe that the antitrust laws can and should 
be applied to high-technology industries?
    Mr. James. Absolutely, Senator. I certainly think that the 
rapid pace of change is a factor that has to be considered in 
evaluating the antitrust consequences of behavior in these 
industries.
    However, I think that these industries need to be 
competitive just like other industries, so there is a 
continuing role for antitrust.
    Chairman Hatch. Thank you.
    I want to raise a concern about old decrees arising in 
Antitrust Division cases. In 1995, the FTC changed its policy 
so that its administrative orders in antitrust cases expire 
automatically after 20 years. FTC Chairman Robert Pitofsky 
explained that eliminating those old orders was appropriate 
because, he said, quote, ``markets change rapidly today, and 
companies regularly change hands or change corporate cultures. 
In this kind of environment, orders more than 20 years old that 
have not been violated ordinarily just do not make sense. And 
clearing the marketplace of outdated orders can often be one of 
the most pro-competition and pro-consumer activities an agency 
can perform.''
    My understanding is that there are approximately 250 
Antitrust Division consent decrees that are more than 20 years 
old. Do you share Chairman Pitofsky's concern that antitrust 
orders that are more than 20 years old may no longer make sense 
in light of the changes in technology and markets, and if so, 
would you be willing to look into those issues once confirmed?
    Mr. James. Senator, I share the concern that Chairman 
Pitofsky has raised. Older consent decrees very often do not 
make sense in the modern world. There are circumstances where 
the industry will exist in an entirely different form than when 
the consent decree was entered.
    Chairman Pitofsky had the luxury of being able to sunset 
his orders internally; in other words, they were Federal Trade 
Commission orders, and the Federal Trade Commission could 
decide to sunset them.
    Department of Justice consent decrees are, of course, 
enforced by courts, and I think one of the reasons the FTC has 
been reluctant to do that is that we would have to burden lots 
of Federal judges with applications for sunset orders.
    But it is something that should be looked into, and if 
there some efficient way to do that, I would be all in favor of 
it.
    Chairman Hatch. I think you can find an official way. I 
really believe that you could go into the courts with multiple 
consent decree orders that could be changed in multiple 
fashion. I would like to see you do that, because I just do not 
think they should continue to hang out there after 20 years 
unless there is some really valid reason for doing so.
    I may have some other questions for you that I will put in 
writing by the end of today, but frankly, I am very pleased 
that this hearing has gone well and that both of you appear to 
be well on your way to being confirmed.
    I hope that our colleagues will confirm you tomorrow and 
allow you to begin this very important work down there. We need 
both of you in those positions as soon as possible, but any 
colleague has the right to put nominees over for a week. That 
is just a right on the Committee that we acknowledge and we 
live with. But I am hopeful that we can break through that in 
your cases, since there appear to be no real objections to 
these nominations today.
    I just want to personally congratulate both of you and tell 
you how much I think of both of you and how much I look forward 
to working with each of you in your respective positions. I am 
going to do everything I can to assist you and help you from up 
here, and we would like to have your suggestions as to how we 
might do a better job, because there are a lot of things that 
we should try to do that are bipartisan in nature that would 
help make our system of justice even more just and more 
efficient and, frankly, more workable. So you could help us a 
lot if you would do that.
    With that, I do not see any other Senators here to ask 
questions, so we will recess until further notice and look 
forward to hopefully getting you through tomorrow.
    Thank you.
    Mr. Bryant. Thank you, Chairman Hatch.
    Mr. James. Thank you, Mr. Chairman.
    [Whereupon, at 11:37 a.m., the Committee was adjourned.]

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