[Senate Hearing 107-415]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-415
 
   CONFIRMATION HEARING ON THE NOMINATIONS OF RALPH F. BOYD, JR. AND 
       ROBERT D. McCALLUM, JR. TO BE ASSISTANT ATTORNEYS GENERAL
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 23, 2001

                               __________

                          Serial No. J-107-22A

                               __________

         Printed for the use of the Committee on the Judiciary









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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

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   133

                               PRESENTERS

Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts presenting Ralph F. Boyd, Jr., Nominee to be 
  Assistant Attorney General for the Civil Rights Division.......     2
Tierney, Hon. John F., a Representative in Congress from the 
  State of Massachusetts presenting Ralph F. Boyd, Jr., Nominee 
  to be Assistant Attorney General for the Civil Rights Division.     4

                       STATEMENTS OF THE NOMINEES

Boyd, Ralph F., Jr., of Massachusetts, Nominee to be Assistant 
  Attorney General for the Civil Rights Division.................     6
    Questionnaire................................................    10
McCallum, Robert D., Jr., of Georgia, Nominee to be Assistant 
  Attorney General for the Civil Division........................    80
    Questionnaire................................................    83

                         QUESTIONS AND ANSWERS

Responses of Ralph F. Boyd, Jr. to questions submitted by 
  Senators Leahy, Kennedy, Biden, Feingold, Schumer and Durbin...   137

                       SUBMISSION FOR THE RECORD

Cleland, Hon. Max and Miller, Hon. Zell, U.S. Senators from the 
  State of Georgia, joint statement in support of Robert D. 
  McCallum, Jr., Nominee to be Assistant Attorney General for the 
  Civil Division.................................................     3


   CONFIRMATION HEARING ON THE NOMINATIONS OF RALPH F. BOYD, JR. AND 
       ROBERT D. McCALLUM, JR. TO BE ASSISTANT ATTORNEYS GENERAL

                              ----------                              


                        WEDNESDAY, MAY 23, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:17 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Leahy, and Kennedy.

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

    Chairman Hatch. We are happy to welcome everybody out this 
morning, and today the Committee will consider the nominations 
of Ralph Boyd to be Assistant Attorney General for the Civil 
Rights Division, and Robert McCallum to be Assistant Attorney 
General for the Civil Division.
    Now, before we begin, I have to note that during our last 
confirmation hearing, Senator Specter observed that both 
nominees were Harvard graduates, and bemoaned the lack of Yale 
representation, even went so far as to suggest a Harvard 
conspiracy at work here. So I am sure he will be very 
disappointed to see Mr. Boyd, another Harvard Law graduate, 
before the Committee, but I hope he can take some solace from 
the fact that Mr. McCallum attended Yale, both as an 
undergraduate and as a law student.
    There is a lot I have to say about these positions that are 
important. I will put the rest of my remarks in the record. 
These are important positions. We are happy to have both of 
these really fine gentlemen here before us. Mr. Boyd is no 
stranger to legal complexity, and we are very pleased to have 
him here, and the same with Mr. McCallum. He has had extensive 
experience. He will be a perfect person for, I think, the Civil 
Division, and Mr. Boyd for the Civil Rights Division.
    I am honored to have Senator Kennedy here to introduce Mr. 
Boyd. I apologize to him personally for the mixup in getting 
over here a little late, and so I will turn the time to him so 
he can make that introduction.
    [The prepared statement of Senator Hatch follows:]

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

    Good morning. Today, the Committee will consider the nominations of 
Robert Boyd to be Assistant Attorney General for the Civil Rights 
Division, and Robert McCallum to be Assistant Attorney General for the 
Civil Division.
    Before we begin, I must note that during our last confirmation 
hearing, Senator Spector observed that both nominees were Harvard 
graduates, and bemoaned the lack of Yale representation. He even went 
so far as to suggest a Harvard conspiracy at work here. So I am sure he 
will be very disappointed to see Mr. Boyd, another Harvard Law 
graduate, before the Committee. But I hope he can take some solace in 
the fact that Mr. McCallum attended Yale both as an undergraduate and 
as a law student.
    The position of Assistant Attorney General for Civil Rights is one 
of the most important law enforcement positions in the Federal 
Government. Perhaps no position more profoundly shapes and implements 
our Nation's goal of equality under law. The Civil Rights Division was 
established in 1957 to enforce President Eisenhower's Civil Rights Act 
of 1957, the first civil firm, Goodwin Proctor LLP, Mr. Boyd has 
maintained a broadbased litigation practice. Mr. Boyd's extracurricular 
commitments are also significant. He has spent a considerable amount of 
time speaking to ``at risk'' youth and to community and religious 
groups about reducing violence. He has also addressed various lawyers' 
groups on topics including racial diversity and the importance of 
mentoring. I commend you, Mr. Boyd, for your impressive record, and I 
commend President Bush for exercising excellent judgment in selecting 
you for this important position.
    Turning to Mr. McCallum's nomination, the person who fills the 
position of Assistant Attorney General for the Civil Division leads the 
largest litigating division at the Department of Justice. Its attorneys 
represent not only the United States, its departments, and agencies, 
but also federal employees, including cabinet officers and even members 
of Congress - a fact that we all may want to keep in mind during the 
course of this hearing. Civil Division attorneys enforce and defend 
such diverse matters as national security issues; contract disputes and 
other commercial claims; customs and international trade; federal 
benefits programs; patents and other intellectual property rights; 
civil fraud actions; tort claims; and violations of the immigration and 
consumer protection laws. The outcome of such litigation often has 
significant consequences for the taxpayers, since it involves billions 
of dollars in claims and recoveries annually. The position of Assistant 
Attorney General for the Civil Division must therefore be filled by a 
person who has demonstrated the capacity to expertly handle the most 
complex legal matters when the stakes are the highest.
    Mr. McCallum fits this description perfectly. His matriculation at 
Yale was the first step in what has proved to be an exemplary legal 
career. In the course of his nearly thirty years in private practice, 
he has expertly litigated a wide range of complex matters, including 
commercial cases, class actions, RICO claims, health care fraud cases, 
and appeals. For almost ten years, he served as Special Assistant 
Attorney General for the State of Georgia, handling eminent domain 
matters. His vast and well-rounded experience, coupled with his keen 
intellect, meet the rigorous requirements for the job of Assistant 
Attorney General for the Civil Division. I have no doubt that he will 
be able to execute his duties skillfully and professionally. Again, I 
commend President Bush on his wise selection of Mr. McCallum for this 
position.
    It is a great pleasure to welcome both of you to this Committee.

  PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE ASSISTANT 
 ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION BY HON. EDWARD 
   M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you very much, Mr. Chairman, and we 
all understand the Senate schedule makes it A complicated day.
    And I see my good friends, Congressman Tierney and 
Congressman Neal, who are here as well.
    I first of all want to thank you for having the hearings, 
and I am very hopeful that we can move this process forward 
very expeditiously, because I think it is important, 
particularly in the area of the Civil Rights Division, that we 
have someone in there of Ralph Boyd's competency and 
leadership.
    It is a very important position. I congratulate Attorney 
General Ashcroft for this selection. I congratulate Ralph Boyd 
for his willingness to take on this responsibility. He brings 
to this position a superb education at Haverford and Harvard 
Law School, where he was an outstanding student. He has 
demonstrated his commitment to public service by having clerked 
for a District Court Judge, and did it with great distinction. 
And he later served in the US Attorney's Office, and was known 
there as a tough prosecutor, but fair, and he had an 
outstanding record there. Now he is a very successful member of 
Goodwin, Procter & Hoar, one of the very fine law firms in 
Boston, where he is highly regarded and respected.
    I see members of his family that are here today. I know 
that his wife, Angela Dawn Johnson, and their five children, 
Caitlin, Jessica, Magdelene, Jamie and Jeremy are not here. I 
think we can guess where they are, in school today, but we want 
them to know that they are very much in our minds. And I know 
he will introduce his father and mother and two cousins who are 
here. We welcome them to the Committee.
    Just finally, Mr. Chairman, I am enormously impressed by 
Ralph Boyd's commitment to young people in a very special way. 
He serves at-risk youth in Boston. He works as well with a 
stay-in-school program there to try and help young people. He 
is very active in the mentoring of young people as well, and he 
has worked with young people that have been involved in the 
judicial court system. So he has, I think, reflected in his own 
life a strong commitment to equal justice under the law, to 
fairness, and to making sure that his life, both by example and 
commitment, is one that understood the importance of 
opportunity for all of our citizens and for the respect of all 
of our citizens. He is truly an extraordinary individual, and I 
think the Justice Department will be fortunate to have him. And 
I commend, as I said, the Attorney General and the President 
for the nomination, and I hope he will be approved very 
quickly.
    [The prepared statement of Senators Cleland and Miller 
follows:]

Joint Statement of Hon. Max Cleland and Hon. Zell Miller, U.S. Senators 
                       from the State of Georgia

    Mr. Chairman, we are here to present Mr. Robert D. McCallum, Jr. to 
the Senate Judiciary Committee as the President's nominee to be 
Assistant Attorney General for the Civil Division. Mr McCallum comes 
highly recommended from several of his colleagues for whom we both have 
a great deal of respect. It is our pleasure to present him today as a 
fellow Georgian with impressive credentials and support from many in 
our state.
    Mr. McCallum received his undergraduate degree, cum laude, in 
History from Yale University in 1968. He also attended Oxford 
University as a Rhodes Scholar and graduated from Yale Law School in 
1973. Immediately following law school, Mr. McCallum joined the law 
firm of Alston, Miller & Gaines, the predecessor firm to Alston & Bird, 
as an associate in 1973. He is currently a partner in the law firm of 
Alston & Bird where his specialty is civil litigation with emphasis on 
appellate practice, commercial real estate litigation, insurance class 
action litigation and administrative proceedings, and medical 
malpractice defense. He has written several journal articles in the 
Mercer Law Review and he wrote a chapter in Gynecological Surgery. Mr. 
McCallum has also lectured regarding eminent domain law and evidence at 
Georgia seminars and at the 1992 American
    Mr. McCallum is a member of the State Bar of Georgia, the Atlanta 
Bar Association and the American Bar Association. He is also a member 
of the Yale Club of Georgia, the Yale Alumni Fund, the Brookwood Hills 
Civic Association, Butler Street YMCA, and the Rhodes Scholarship 
Trust. Mr. McCallum is also a member of several civic and cultural 
organizations such as the High Museum of Art, the Wilderness Society, 
the Atlanta History Center, and Atlanta Preservation Center. He is also 
the Georgia Representative to the Yale Law School Alumni Association 
Board.
    Mr. McCallum is an excellent attorney and will be a great addition 
to the Justice Department as an Assistant Attorney General. Therefore, 
we recommend Mr. Robert McCallum to the Committee and the United States 
Senate and urge that he be promptly confirmed. Thank you.

    Chairman Hatch. Well, thank you, Senator Kennedy. And that 
is about as high a recommendation as I have heard around here 
in a long time, and I feel exactly the same. And coming from 
Senator Kennedy, former Chairman of this Committee in the good 
old days----
    Senator Kennedy. Soon to return.
    [Laughter.]
    Senator Kennedy. It just slipped out, Mr. Chairman.
    Chairman Hatch. You mean you are going to come back as 
chairman?
    [Laughter.]
    Chairman Hatch. But that is very, very high praise for you, 
Mr. Boyd.
    Congressman Tierney is here. We are really happy to have 
you here, coming over to back Mr. Boyd. We appreciate you. 
Would you care to make any statement? We would be very happy to 
take your statement at this time.

  PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE ASSISTANT 
ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION BY HON. JOHN F. 
    TIERNEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 
                         MASSACHUSETTS

    Representative Tierney. Thank you, Senator. I really do not 
have a long statement to make. I think Senator Kennedy said it 
all very well, and I would not even want to try to compete with 
that, except to say that I have had the opportunity to meet and 
know Ralph Boyd now, and that we are sure that he is going to 
make a good representative of our community and of the country, 
and that all of the things that Senator Kennedy said about him 
being concerned about individuals and having respect for 
individuals is absolutely true. We are very supportive of 
Ralph's nomination, and we do hope that the Senate gives him a 
speedy confirmation. And we thank you for your hearing here 
today.
    Chairman Hatch. Well, thank you so much, and thanks for 
taking the time, and I am sure Mr. Boyd appreciates it as well 
as I do.
    I have to say it is fortunate for the Committee that Mr. 
Boyd is no stranger to legal complexity. He has an informed 
perspective about civil rights in America today. He is an 
excellent candidate to lead the Civil Rights Division.
    He graduated from Harvard Law School where he was editor of 
the Harvard Civil Rights Civil Liberties Law Review. As an 
Assistant US Attorney in Boston, he investigated and prosecuted 
bank fraud, firearms, homicide, narcotics trafficking, bombing 
and bank robbery cases, as well as a couple of high-profile 
gang violence cases. It sounds like they have a pretty rough 
time up there in Boston.
    [Laughter.]
    Chairman Hatch. We do in all the other cities in the 
country too, I am afraid.
    He tried 15 to 20 jury trials, conducted 50 to 75 
evidentiary hearings and argued approximately 10 appeals in the 
First Circuit Court of Appeals. And now as a partner at the 
prestigious law firm, Goodwin, Procter LLP, Mr. Boyd has 
maintained a broad-based litigation practice.
    Mr. Boyd's extracurricular commitments are also 
significant, as Senator Kennedy, I think, carefully pointed 
out. He has spent a considerable amount of time speaking to at-
risk youth, and to community and religious groups about 
reducing violence. He has also addressed various lawyers' 
groups on topics including racial diversity and the importance 
of mentoring.
    So I commend you, Mr. Boyd, for your reputation, for your 
impressive record, and I commend President Bush for exercising 
excellent judgment in selecting you for this important 
position. And I hope that you will work with us, and look at 
this new Prevention, Education and Treatment Bill that we have 
filed here in the Committee. I think that could do a lot of 
good. We are looking for alternatives to prison for some of our 
young people, and also, naturally, we would like you to look at 
a wide variety of other things that we are trying to do on the 
Committee that I think are worthwhile.
    Let me just say that Mr. McCallum is to fill the position 
of Assistant Attorney General for the Civil Division, which 
would lead the largest litigating division at the Department of 
Justice.
    The Civil Division's attorneys represent not only the 
United States and its departments and agencies, but also 
Federal employees, including cabinet officers and even Members 
of Congress, a fact that we may all want to keep in mind during 
the course of this hearing.
    Civil Division attorneys enforce and defend such diverse 
matters as national security issues, contract disputes and 
other commercial claims, customs and international trade, 
Federal benefits programs, patents and other intellectual 
property rights, civil fraud actions, tort claims and 
violations of immigration and consumer protection laws. The 
outcome of such litigation often has significant consequences 
for our country and to our taxpayers since this type of 
litigation involves billions of dollars in claims and 
recoveries annually.
    The position of Assistant Attorney General for the Civil 
Division must therefore be filled by a person who had 
demonstrated the capacity to expertly handle the most complex 
legal matters when the stakes are the highest.
    Now, Mr. McCallum fits this description perfectly, as far 
as I am concerned. His matriculation at Yale was the first step 
in what proved to be an exemplary legal career. In the course 
of his nearly 30 years in private practice, he has expertly 
litigated a wide range of complex matters, including commercial 
cases, class actions, RICO claims, health care fraud cases, and 
appeals. For almost 10 years he served as Special Assistant 
Attorney General for the State of Georgia, handling eminent 
domain matters.
    His vast and well-rounded experience, coupled with his keen 
intellect, meet the rigorous requirements for the job of 
Assistant Attorney General for the Civil Division, and I have 
no doubt that he will be able to execute his duties skillfully 
and professionally.
    So, again, I commend President Bush for his good choice 
here, and commend you for being chosen and for the great record 
that you have. So it is a great pleasure to welcome both of you 
to the Committee.
    I wonder if we can get you both to take your chairs, or if 
you will both stand, rather, and 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. Boyd. I do.
    Mr. McCallum. I do.
    Chairman Hatch. Thank you. Now we have a complication here. 
This morning they are trying to finish up the tax bill, and 
there may be four, five or six votes, and it is apparent that 
other members of the Committee are stuck over on the floor 
where I was. So what I am going to do is start this off with 
both of you, and hopefully some of them will come. We may have 
to recess till these votes are over. I hate to tell you that, 
but hopefully, we can get this hearing completed today. I would 
like to give our colleagues on the other side at least an 
opportunity to ask questions to both of you.
    Let's turn to you, Mr. Boyd. Do you have a statement you 
care to make?
    And then we will turn to you, Mr. McCallum.

 STATEMENT OF RALPH F. BOYD, JR., OF MASSACHUSETTS, NOMINEE TO 
  BE ASSISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVISION

    Mr. Boyd. I do, Mr. Chairman, and thank you. I wondered if 
I might introduce my family members to you, as well as the 
family members who are not present today.
    Chairman Hatch. We would love to have you do that.
    Mr. Boyd. And if I could start, Mr. Chairman, by talking 
about those who are not able to be here today, starting with my 
wife of almost 13 years, Angela, who wanted to be here today, 
but has just returned to the East Coast from the Olympia area 
in Washington State, attending to her family after the death of 
her father 2 weeks ago.
    Chairman Hatch. Sorry about that.
    Mr. Boyd. And she would be here otherwise.
    In addition, my five children, who--my wife, I should say, 
is the architect of our family in many meaningful respects, and 
she is the mother of our five children, who Senator Kennedy 
noted also are not here. And if I could just introduce them by 
name. My oldest child is Caitlin Elizabeth. She is 12-years-
old, and she along with my second daughter, Jessica, who is 10, 
are back at the Ipswich Public Schools taking their MCAS 
examinations today, which is a State examination in 
Massachusetts, controversial to some, but the theory is that it 
measures the command that students have of material and certain 
subject matters, and so they are both facing an examination 
probably as important to them today as I am. So they are back 
in Boston with their mother and in school.
    In addition, my remaining three children, Maggie, who is 5-
years-old, Jamie who is also 5-years-old, and Jeremy, who is 5-
years-old, just turned 5-years-old, they also are back in 
Ipswich, Massachusetts, our home, and I just wanted to 
introduce them to you because they are a very, very important 
part of my universe, and I would love to have them here and 
show them off to the Committee, but I cannot.
    Chairman Hatch. We would love to have them here, but we 
understand, and we know that you love your family, and we have 
had some very nice chats in my office about that. We appreciate 
the love you have for your family and the good example you set.
    Mr. Boyd. Thank you, Senator. If I can introduce to you the 
members of my family who are here, and the two people who got 
the ball rolling 44 years ago, for better or for worse, 
hopefully for better, if Senator Kennedy and you, Chairman 
Hatch are to be believed, I think for the better. First is my 
father, Ralph, Sr.
    Chairman Hatch. Please stand if you will. We are honored to 
have you here.
    Mr. Boyd. And then is my mother, Catherine.
    Chairman Hatch. Mom, we are glad to have you here as well.
    Mr. Boyd. My cousin, Edward Pitts.
    Chairman Hatch. Edward.
    Mr. Boyd. And my other cousin, Melvin Jefferson.
    Chairman Hatch. Melvin, good to have you, good to have you 
all here.
    Mr. Boyd. If I can proceed, I would like to make my 
statement to the Committee.
    I want to start out by thanking you, Chairman Hatch, and 
Senator Kennedy for that gracious introduction, and I also want 
to thank each and every member of this Committee. I am deeply 
honored to be here, and I am grateful for the careful attention 
that you have given my nomination, and also for having the 
opportunity to answer questions you may have of me as President 
Bush's nominee to be Assistant Attorney General for Civil 
Rights.
    As a former Assistant United States Attorney with proud 
memories of my work in that office, as a counselor and advocate 
on behalf of people who are struggling to realize the American 
dream for themselves and their families, and also as a child 
and a beneficiary of the civil rights movement, I can think of 
no greater honor, no greater responsibility, and no greater 
privilege than to be nominated by the President of the United 
States to serve my family, my neighbors, my community, my 
country and all of its people as the head of the Civil Rights 
Division of the Department of Justice, that is to be, in 
effect, the country's lawyer on matters of civil rights.
    The Civil Rights Division was created in 1957, which 
coincidentally was the year that I was born. That was a time of 
meaningful shifts in how America viewed and addressed the 
rights of its citizens. Since that time no single office has 
played a more central role in advancing the core values we 
Americans share, that people should not be singled out or 
denied opportunities because of the color of their skin, where 
they worship if they choose to worship at all, where they or 
their parents came from, what gender they are, how old they 
are, or whether they are challenged by some disability, and 
also that no one should fear or fall victim to violence for any 
reason, but certainly not because of some bias or prejudice 
harbored against them simply because of who they are.
    Our Congress has given us laws designed to protect these 
core values. These laws advance the prospect of our achieving, 
by working together, a truly inclusive democracy where no 
person, and as President Bush has said, especially no child, is 
left out or left behind. But without the Civil Rights 
Division's vigorous implementation and enforcement of these 
anti-discrimination laws, the high ideals of equality and 
inclusion that we strive for would be chronically deferred and 
never fully realized. Our laws would, in effect, amount to 
empty promises.
    If confirmed, I would strive to make the ideals of fairness 
and equality of opportunity a reality for all of America's 
people today, not in some vague distant tomorrow. We have been 
given the tools. It falls to us to use them. And with the able 
assistance of the dedicated and committed career lawyers of the 
Civil Rights Division, I would seek to enforce our Civil Rights 
laws like we mean it, in an unassailably fair, consistent and 
evenhanded way.
    Mr. Chairman, my nomination for this position has caused me 
to consider my life's work and reflect on where I came from and 
how I came to be here, and that isn't just because of the 
lengthy questionnaire I had to fill out for this Committee.
    As part of my work in the community, I often have the 
opportunity to teach and mentor young people, as Senator 
Kennedy pointed out, from middle schoolers, to law students, to 
young lawyers. Some are start in the making. Others are at risk 
for violence or face other serious obstacles to achieving 
success. Regardless, as they mature and learn to tackle issues 
and deal with matters of increasing importance, I remind each 
of them that they must always remember who they are, where they 
came from, and the people and the events that have helped shape 
them. This advice applies equally to me. I can assure you, Mr. 
Chairman, that I know where I come from and how I have come to 
be in this place at this time, prepared to do the heavy lifting 
required of the person who would serve in the position for 
which the President has nominated me.
    As a child, I grew up in NAACP meetings with my parents. I 
knew then and I know now the reasons and the need for those 
meetings and the work that flows from them. I also know that I 
am, in significant part, the product of the work and commitment 
of others, including courageous people I have never met, but 
whose sacrifices I have benefited from. I also know that I am 
the product of a loving family and of many generous friends, 
teachers and mentors. No one gets to the place where I am today 
without the imprint of others. I know this, and I am grateful 
for it.
    Some of these people are here today, and I introduced them 
to you, my parents, Ralph, Sr. and Catherine. By their 
presence, they continue the work they started 44 years ago, 
teaching, nurturing and instilling values. There also have been 
others who have opened doors for me and added to my learning, 
from my youth to the time I spent at Haverford College, which 
in many important respects was a life-changing experience for 
me. Their efforts on my behalf continue today. These people, 
almost to a person, have been reluctant to accept any thanks 
for their role in my accomplishments. They simply ask that I 
take the time and make the effort to do the same for others. I 
have tried to honor these requests, Mr. Chairman, in both my 
professional and personal life. In fact, being here today is 
part of that effort. It is an opportunity to serve others by 
protecting and vindicating the rights of those who struggle 
with prejudice, unjustified rejection, and in some cases, even 
hatred in their daily lives.
    There are many challenges before us. Our great country 
affords my five children many more opportunities than it did my 
father and uncle when they returned from World War II, more 
than half a century ago. These men and other men who fought and 
literally bled for America, returned to a country that did not 
welcome them or embrace them, in many instances simply because 
of the color of their skin, but they still persevered and 
worked doggedly to change America. They succeeded, and so I am 
here today.
    But there is still work to be done, Mr. Chairman. Our law 
has shifted decisively to the side of individual civil rights, 
but attitudes and hearts can change more slowly. Government and 
law can lay the groundwork for healthy inclusive communities, 
but the challenge of transforming legal promises into social 
and economic reality depends largely on what each of us does as 
an individual, both in and out of Government. As much progress 
as we have made in America, we still have more work to do 
before we can say that color, gender or other immutable traits, 
or impertinent aspects of a person's life, no longer affect 
that person's access to opportunities or their ability to 
partake fully of the American experience without fear of 
discrimination or violence.
    The job of the Assistant Attorney General for Civil Rights 
is to lead this effort through enforcement and by example. 
Sometimes we are challenged, Mr. Chairman, in this effort by 
our differing views and beliefs about what constitutes unlawful 
discrimination and how we should go about fixing it. These 
differences are real, but I submit that we agree about much 
more than we disagree. And the common ground that we share has 
given us laws that have indeed made our country a better and a 
more inclusive place.
    So I say to you, Mr. Chairman, and members of the 
Committee, that I cannot promise that we will always agree 
about what the law is or what is should be, or how best to 
prioritize the Division's enforcement objectives, and I do not 
purport to have all the answers. What I can promise, however, 
is my deep commitment to listening well, to being 
intellectually honest, and to enforcing vigorously this 
Nation's laws in an unbiased and unwavering manner.
    I am honored to be here, and I am honored by the trust the 
President and the Attorney General have reposed in me. I hope 
to justify that trust through my words and deeds. Thank you.
    [The biographical information of Mr. Boyd follows:]
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    Chairman Hatch. Well, thank you for your fine statement. We 
are very happy to have members of your family here. You must be 
very proud, and you should be, as he is a fine man, and he is 
going to do a fine job at the Justice Department. And I am 
going to try and back him every way I can, and I am sure other 
members of the Committee will as well.
    I would like to put a statement by Senators Max Cleland and 
Zell Miller into the record immediately following Senator 
Kennedy's statement, on behalf of Robert D. McCallum, Jr., to 
be Assistant Attorney General for the Civil Division. And it is 
a very nice statement about how much they support you, and we 
are grateful that they took the time to do that. They would be 
here personally, except, as you can see, we are having a very 
difficult time on the floor on this tax bill, and everybody is 
tied up, so I am just glad I could be here at this time.
    So, we will turn to you, Mr. McCallum. We are proud of you 
and proud that you have this opportunity, and we will take your 
statement at this time.

    STATEMENT OF ROBERT D. McCALLUM, JR., OF GEORGIA, TO BE 
       ASSISTANT ATTORNEY GENERAL FOR THE CIVIL DIVISION

    Mr. McCallum. Thank you, Mr. Chairman. I am honored to 
appear before you for consideration for confirmation of the 
Assistant Attorney General for the Civil Division. I am very 
grateful for the confidence which President Bush and Attorney 
General Ashcroft have shown by nominating me, and I will look 
forward, not just at this hearing, but also afterwards, to 
providing you, as Chairman, and any members of the Committee 
with whatever information will be helpful to the Committee and 
to the Senate in discharging its constitutional 
responsibilities to advise the President on its nominees.
    Like Mr. Boyd, I would like to take this opportunity to 
introduce to you my family that is present. My wife, Mimi, who 
has been encouraging in supporting me for 32 years, is here.
    Chairman Hatch. If you could stand, so we can all see. Glad 
to have you here, Mimi.
    Mr. McCallum. Senator, I started, as we southerners say, 
courting her when I was 15-years-old, and finally, through my 
eloquent persuasive powers, convinced her to marry me when I 
was 22, and she has been behind me all the way ever since.
    Chairman Hatch. I can see that you had to really examine 
him pretty carefully.
    [Laughter.]
    Mr. McCallum. My son, my elder son--I have two boys--my 
elder son, Davis, is also present, and he has just moved to 
Brooklyn to try and become a constituent of Senator Schumer, 
who is not here, but----
    Chairman Hatch. David, happy to have you here.
    Mr. McCallum. I intend to mention his presence in his 
Senator district to him. My younger son, Bailey, is a senior at 
Williams College, and is finishing his exams and celebrating 
his liberation from burdens and responsibility, so he has not 
been able to get with us today.
    My parents are also not able to be present. My father, in 
another couple of weeks, will have his 90th birthday, and my 
mother is 83, and it was difficult and really hard for them to 
travel to Washington from Memphis, where I was born and raised, 
but I send you their regards, and they wish that they could be 
here.
    I'd also like to take this opportunity to thank Senator 
Zell Miller and Max Cleland for encouraging and supporting me 
in this nomination.
    And one other person that I feel duty bound to recognize 
and express my thanks to is your former colleague, Senator Paul 
Coverdell. I think of Paul Coverdell as Senator Coverdell, but 
most of you think of him as a U.S. Senator, whereas I think of 
Paul as a Georgia State Senator, an institution that he served 
for years. He was the senator from my district, and it was Paul 
who first encouraged me to participate in local government 
activities, which in Atlanta, Georgia, like many other places, 
revolves around neighborhood civic associations and county and 
municipal races. The thing that impressed me as a young lawyer, 
a young citizen in Atlanta, and impressed members of this 
Senate, was that Paul Coverdell was always willing to do the 
hard work that didn't gain necessarily a lot of public 
attention, but it was hard work that was in fact absolutely 
necessary to help his constituents, to assist his fellow 
legislators, of whatever political persuasion, and to debate 
and consider the views of all sides so that the job of 
legislation could get accomplished. He always gave thoughtful 
consideration to the positions that he took before he took 
them, and if confirmed, I would hope to follow in his example 
in my own public service. I would like to think that Paul 
Coverdell would have been pleased and proud of my nomination by 
the President.
    I also would like to thank and publicly acknowledge two 
other individuals who have had a tremendous influence on me as 
a trial lawyer, because the position for which I have been 
nominated is to be a trial lawyer, and to lead what I consider 
to be the largest trial firm in the United States with the most 
complex trial issues.
    The first is Judge Sidney O. Smith, a former Chief Judge of 
the United States District Court for the Northern District of 
Georgia. Judge Smith was my law partner, and Sidney is now 
retired from the practice of law. He set a remarkable example 
of what a lawyer should be, and he was always available with 
both wit and wisdom, to advise younger lawyers like me as we 
came along. He inspired many to seek public service, me 
probably the least of them. For instance, two of his law clerks 
now sit on the Eleventh Circuit Court of Appeals, Judge Stan 
Birch and Judge Larry Edmondson.
    The second is G. Conley Ingram, a former justice of the 
Georgia Supreme Court, appointed to that position by then 
Governor Jimmy Carter. Conley is also one of my law partners, 
and no one, absolutely no one, has had a greater influence on 
me, in my development as a trial lawyer. I was privileged to 
try cases with him, to argue appeals with him, and perhaps best 
of all, to laugh with him when the burdens and responsibilities 
of a law practice might have seemed overwhelming and 
oppressive. Conley Ingram has now returned to judging. He sits 
as a senior judge of the Superior Court of Cobb County, 
Georgia, a bench on which his daughter, Lark Ingram, also 
serves with distinction. So when you call us the Superior Court 
of Cobb County and ask for Judge Ingram, you have to specify 
which judge you are talking about.
    I very much appreciate this Committee affording me this 
opportunity to discuss issues that are of interest to the 
Committee in evaluating my qualifications for this position, 
and I will look forward to providing whatever information might 
be helpful. Thank you, Mr. Chairman.
    [The biographical information of Mr. McCallum follows:]
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    Chairman Hatch. Thank you, Mr. McCallum. You have excellent 
qualifications, and we look forward to your confirmation.
    I would be happy to turn to the ranking member, the 
Democrat leader on the Committee, Senator Leahy.

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

    Senator Leahy. Thank you, Mr. Chairman. I keep anticipating 
votes over there.
    Chairman Hatch. Yes, I do too.
    Senator Leahy. They have had a pile of them, but they have 
all been voice votes, and so I apologize for not being here 
earlier. I know Senator Kennedy has already been here, and of 
course the Chairman has.
    I know that this is the fifth hearing this year on the 
President's nominations of leadership positions at the 
Department of Justice. We have probably been moving faster than 
certainly this Committee has moved for a number of years, and I 
think that is right. We have usually had the Assistant Attorney 
General heading the Civil Rights Division considered on his 
own, but I am glad to see that moving forward.
    I do not think anybody is going to do to Mr. Boyd what 
happened to his predecessor. You will get, I think, confirmed, 
and not have to wait the three and one-half years Mr. Lann Lee 
did.
    Mr. McCallum, your predecessor was pending for over a year 
in Committee and 18 months in the Senate, and I know the 
Chairman does not intend that to be the situation with you, nor 
would anybody on this side expect to do that. I am not the one 
in charge, but I can assure you that the Democrats in the 
Senate want to move forward quickly.
    I will put the rest of my statement in the record, and 
thank you for having this hearing, Mr. Chairman.
    [The prepared statement of Senator Leahy follows:]

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

    This is the fifth hearing this year on the President's nominations 
to leadership positions at the Department of Justice. Again this 
morning we proceed on two important Executive Branch nominations.
    Given the interest in the protection of the civil rights of all 
Americans and the importance of the Assistant Attorney General to head 
the Civil Rights Division, we have traditionally considered that 
nomination on its own. At times, nominations to head the Civil Rights 
Division have faced controversy, delay and opposition. Indeed, the 
nomination of Bill Lann Lee, which was initially received by the Senate 
in 1997 was never accorded a vote by the United States Senate and was 
kept pending before this Committee for almost three and one-half years.
    I know of no one who intends to treat the nomination of Mr. Boyd in 
that fashion. Senator Kennedy's introduction of the nominee and the 
commitments that the nominee is able to give to the Committee regarding 
the vigorous enforcement of our civil rights laws should go a long way 
toward clearing the way for Committee consideration and consideration 
by the Senate as soon as all Senators have had a reasonable opportunity 
to ask questions and receive responses.
    The Chairman has again decided to combine a hearing on a nomination 
that traditionally takes place on its own with another important 
Executive Branch nomination. This time he has chosen to include the 
nominee to be the Assistant Attorney General to head the Civil 
Division, as well. The Civil Division has its own very important 
responsibilities with respect to Government litigation.
    The confirmation process for Mr. McCallum's predecessor was pending 
for over a year in Committee and 18 months the Senate. None of us 
anticipates such an extended process in connection with Mr. McCallum's 
nomination. I was always puzzled why those extended delays kept David 
Ogden from being confirmed promptly, especially since his eventual 
confirmation by the Senate was by unanimous consent. If all goes well 
today, it is my hope to see the Senate consider Mr. McCallum's 
nomination before the June 30 date on which the Senate confirmed Frank 
Hunger to be President Clinton's Assistant Attorney General for the 
Civil Division back in 1993 and long before the Senate confirmed Stuart 
Gerson to be the first President Bush's head of the Civil Division back 
in October 1989.
    1 want to thank the Chairman for reconsidering his decision of the 
last few days and ultimately deciding not to add judicial nominations 
to this hearing at the last minute. I stand ready to consult with him 
on a realistic hearing schedule for those nominees.

    Chairman Hatch. Well, thank you, Senator. We will turn to 
you for any questions you have of these two witnesses, and 
begin with you.
    Senator Leahy. Mr. Boyd, as you know, many of the civil 
rights organizations represent the interests of African-
Americans and Hispanics that criticized the conduct of last 
year's Presidential election, particularly in Florida. You will 
be the head of the Civil Rights Division in an administration 
led by one who has said, and can justly say, that his election 
as President hinged on what was seen as the results of Florida. 
With that in mind, the President of the United States has every 
reason to want to feel that there are no problems in Florida, 
but also is charged with upholding all the laws of the country, 
as is the Attorney General. Will you assure us that you will 
look into and fully and honestly investigate the complaints of 
African-Americans and Hispanics who said that they were shut 
out, in one way or another, of the Presidential race in Florida 
last year?
    Mr. Boyd. Senator, thank you for that question, and giving 
me an opportunity to talk about an issue that is of genuine 
importance to all Americans, as it should be.
    The simple answer to your question, Senator, is I will go 
wherever the evidence and the law lead without flinching, and I 
think, if I may, Senator, that that is one respect in which my 
experience particularly well suits me to do. As the Senator may 
know, I spent 6 years as an Assistant United States Attorney, 
doing exactly that. I understand that this is taking place now 
in a crucible where the scrutiny is greater, the lights are 
brighter, and the stakes perhaps higher, and I understand that 
people have concerns about the fairness and the impartiality 
and the vigor with which the investigations regarding 
allegations of voting impropriety, voter intimidation, 
limitations on access to voting, especially on the part of 
people of color, is of real concern.
    And I can assure you, Senator, that I would investigate any 
allegations, any allegations supported by any credible evidence 
of any kind of voter fraud, impropriety, limitations on access 
to voting. That would be a top priority. And, frankly, Senator, 
I think that the President and the Attorney General have 
indicated their commitment to that mission by announcing that 
the voting section of the Civil Rights Division will be 
enhanced by an additional eight full-time lawyers, and I'm 
happy to be able to have additional resources to make sure that 
no American is excluded from being able to exercise the most 
important franchise.
    So the simple answer to your question, Senator, is yes.
    Senator Leahy. Mr. Boyd, frankly when asking the question, 
I did not expect any different answer from you. I fully expect 
to be supporting your nomination on the floor. If that one 
chance out of 100,000 you had answered differently, I can 
assure you, I would not be supporting. But if you had answered 
differently, to be fair to both President Bush and Attorney 
General Ashcroft, I suspect that they would want to withdraw 
your nomination. I am not trying to redo last year's election. 
The Supreme Court has ruled on that, and that is the end of it. 
I support whomever is President, whoever has been inaugurated. 
In a great and powerful Nation like ours, we can do no 
differently.
    But I asked you the question also to give you some 
protection should there by anybody who would suggest you do not 
believe in looking for any question, whether it is Florida or 
Vermont or Utah or anywhere else, on voting irregularities. 
Note, this Committee will back you. I think Senator Hatch and I 
would be the first to back you on something like that. 
Democracy only works if everybody can feel that it is a fair 
election. One side or the other is always going to feel they 
wished their person had won, but we are not going to get people 
to turn out and vote unless they know that their votes are 
going to be counted and they are going to have a chance to 
vote.
    It is deplorable, when I go around the rest of the world 
and see people literally die, literally die to have a chance to 
vote, who are willing to put their life on the line, put their 
family's lives on the line, sometimes their communities on the 
line to vote, and we do not all go out and vote. And you will 
be the one who can assure people know they can vote. One side 
always wins, one side always loses. That does not bother me. 
What bothers me is that they cannot vote.
    Mr. Chairman, we have a roll call on. I would suggest that 
maybe we submit questions for the record. I know Mr. McCallum, 
I have questions about the Department of Justice lawsuit 
against the tobacco industry. Senator Durbin and I have written 
to Attorney General Ashcroft about that, and I have questions 
for you.
    Chairman Hatch. Would it be acceptable to you if we do 
submit questions?
    Senator Leahy. Certainly, Mr. Chairman, because I have a 
feeling we are probably now back to the floor.
    Chairman Hatch. I have a feeling we are not going to get 
back. That is satisfactory to you then?
    Senator Leahy. Of course.
    Chairman Hatch. Well, then you two have had a better 
shorter hearing than I thought you would have.
    Senator Leahy. Well, but I am going on the assumption that 
the questions are fully answered.
    Chairman Hatch. That you will answer questions.
    Senator Leahy. The questions are fully answered, not on the 
one hand this, on the other hand that--I mean, seriously 
answered like Mr. Boyd just did now, further questions to him 
or to Mr. McCallum, because if they were not, of course, I 
would expect that somebody would request on one side or the 
other to have further hearings. But I think they will answer 
them.
    Chairman Hatch. Well, we will keep the record open till 5 
o'clock today for questions from any or all members of the 
Committee, and then I would recommend that you answer them as 
quickly as you can, because when we get those back, we will be 
able to perhaps set a----
    Senator Leahy. I----
    Chairman Hatch. You need more time?
    Senator Leahy. I think we need a little bit more time.
    Chairman Hatch. How much time would you like?
    Senator Leahy. You know, we have got this on the floor.
    Chairman Hatch. 6 o'clock tomorrow?
    Senator Leahy. That would be fine.
    Mr. Boyd. Senators, Mr. McCallum and I are both trial 
lawyers, and we respond well to deadlines, so I can assure 
you----
    Senator Leahy. You will have even more incentive than 
worrying about your client in this case.
    [Laughter.]
    Chairman Hatch. Well, we are glad to hear that, and what we 
will do is keep the record open until 6 o'clock tomorrow 
evening, and if you can answer these questions as quickly as 
possible, it will be very helpful to the Committee.
    With that then, we will end the hearing, and recess until 
further notice. Thanks so much.
    [Whereupon, at 10:58 a.m., the Committee was adjourned.]
    [Questions and Answers follow:]

                         Questions and Answers


  Responses of Ralph F. Boyd, Jr., to questions submitted by Senators 
          Leahy, Kennedy, Biden, Feingold, Schumer and Durbin

    Question 1. What are the main goals you hope to accomp:ish as head 
of the Civil Rights Division?
    Answer. With respect to priorities, out of respect for the Senate's 
role in giving advice and consent on my nomination, I have not 
consulted with the career staff of the Civil Rights Division to 
formulate enforcement priorities. I regard such consultations to be a 
prerequisite to informed decision making. However, I share the Attorney 
General's commitment to the vigorous enforcement of voting rights laws, 
to eradicating racial profiling and worker trafficking, and to swift 
implementation of the President s New Freedom Initiative. If confirmed 
as Assistant Attorney General foi Civil Rights, I would expect the 
Civil Rights Division to tackle, and effectively deal with, the high 
priorities of this Administration.

    Question 2. The Supreme Court has held that race-conscious relief 
or sex-conscious relief is sometimes the only effective form of relief 
for past discrimination, or to prevent ongoing discrimination. (A) As 
Assistant Attorney General, will you continue the policy of the Justice 
Department to seek such relief in appropriate cases? (B) If not, what 
type of relief will you seek instead? (C) What will you instruct the 
Civil Rights Division to do, if there is no other form of relief that 
would be effective?
    Answer. It is my view that race and gender-conscious remedies are 
appropriate under some circumstances. I would therefore anticipate 
that, if confirmed, depending on the facts and circumstances of each 
particular case, race and gender-conscious remedies could be pursued by 
the Civil Rights Division in the future.

    Question 3. As [Assistant] Attorney General, do you intend to re-
open any existing court orders to seek changes in race-conscious relief 
or sex-conscious relief? If so, which cases, and what types of changes?
    Answer. I do not at present have my plans to reopen. or revisit any 
existing court order. Whether any particular order should continue in 
force is a question that can only be answered after a thorough review 
of the facts and circumstances of that particular case and the 
applicable law. As I have not undertaken any such review of pending 
Civil Rights Division cases, I am reluctant to comment on any 
particular case. To address the question more generally, however, the 
factual and legal landscape that exists when a given order is entered 
will often change over time, anti it is possible that some orders could 
be modified in the future to reflect any changes applicable to that 
particular case.

    Question 4. Many private attorneys are ready and able to file 
discrimination cases involving only one or two individuals, but few of 
them can handle cases involving large-scale patterns and practices of 
discrimination. The Justice Department has sometimes handled the large 
cases that few outside the government can bring, and has sometimes 
spent its resources handling individual cases that many private 
sttorr--eys ;.an bring. As Assistant Attorney General, what will your 
instructions to the Civil Rights Division be, with respect to the kinds 
of cases they are to bring?
    Answer. I agree that, as the primary federal law enforcement 
agency, the Department of Justice is often uniquely well suited to 
litigate large, complex: civil rights cases. Out of respect for th-
Senate's role in giving advice and consent in connection with my 
nomination, however, I have not been involved in the operations of the 
Civil Rights Division, and thus have not reviewed, nor had the benefit 
of, a careful review of the demands on the Civil Rights Division's 
resources, or the Division's enforcement priorities in light of those 
demands. I have not, therefore, formulated instructions regarding what 
kinds of cases the Civil Rights Division should bring.

    Question 5
    Answer. This June, the Justice Department will file a brief with 
the Supreme Court in the Adarand case, in which the Department of 
Transportation's disadvantaged business enterprise program is being 
challenged as unconstitutional. The Attorney General had originally 
pronused to defend the program, telling NBC, ``Obviously, I will defend 
the Department of Transportation's regulations.'' Subsequently, 
however, the Attorney General said that the Administration might 
abandon, or ``reformulate,'' the program rather than defend it. I am 
concerned that this Congressionally-supported and properly implemented 
program--which the Tenth Circuit found to be constitutional--will not 
receive a vigorous defense before the Supreme Court. Can you promise 
this Committee that you will urge the Justice Departmentto defend this 
regulation to the best of its ability?
    Answer. It is my view that the Department of Justice has an 
obligation to defend Acts of Congress from constitutional challenge 
whenever a reasonable argument can be made in support of a statute. My 
presumption is that the Department of Justice will apply this principle 
to the Adarand case and, if confirmed, I will urge itto do so. Of 
course, particular decisions related to the position of the United 
States before the Supreme Court would rest with the Office of the 
Solicitor General.

    Question 6. Do you agree that affirmative action programs in 
government programs like the Transportation Department's Disadvantaged 
Business Enterprise Program are constitutional and -hoidd continue?
    Answer. The Supreme Court has stated that governmental race-based 
classifications are subject to strict scrutiny--that is, race-based 
classifications are permissible only where a compelling governmental 
interest is served and where programs using race-based classifications 
are narrowly-tailored. A determination of whether a compelling 
governmental interest is served and whether a program is narrowly 
tailored is necessarily an individualized one. It is therefore 
difficult for me to agree or disagree with the broad statement that 
affirmative action programs like the Transportation Department's 
Disadvantaged Business Program are constitutional. It is likely that, 
when subjected to a strict scrutiny analysis, some governmental 
affirmative action programs will be found to satisfy the strict 
scrutiny standard while some will require modification. Indeed, in the 
Adarand case itself, the Tenth Circuit reached different conclusions 
regarding the constitutionality of different versions of the 
Department, of Transportation regulations at issue. See Adarand v. 
Slater, 228 F.3d 1147, 1187 (10th Cir. 2000)(``[W]e conclude that the 
1996 SCC [Subcontractor Compensation Clause] was insufficiently 
narrowly tailored as applied in this case and is thus unconstitutional 
under Adarand Ill's strict standard of scrutiny. Nonetheless . . . we 
conclude that the 1996 defects have been remedied, and the relevant 
programs now meet the requirements of narrow tailoring.'').

    Question 7. Would you defend these programs internally by, for 
example, urging the Solicitor General to take a position that such 
programs are constitutional?
    Answer. I will vigorously urge the Solicitor General to defend any 
government affirmative action program that serves a compelling 
governmental interest and is narrowly tailored. Again, however, given 
tae individualized inquiry required by the strict scrutiny standard, it 
is difficult to generalize about affirmative action programs.

    Question 8. As you may know, the Civil Rights Division has an 
important role in government programs because it provides guidance to 
federal agencies on implementing affirmative action in these programs. 
Can you assure the American people that under your leadership, the 
Civil Rights Division will continue to provide guidance to federal 
agencies to facilitate affirmative action in government programs?
    Answer. Should I be confirmed, the Civil Rights Division will 
continue to provide guidance to federal agencies with respect to 
affirmative actions programs.

    Question 9. Many public school districts have adopted diversity 
policies which result in racial desegregation at the K through 12 
level. These policies have been attacked in the courts as impermissible 
race-consciousness, and the Civil-Rights Division has supported these 
policies in a number of lawsuits, for example in Montgomery County, 
Maryland and in Rochester, New York. Will you continue to support these 
policies?
    Answer. As I have said previously, I believe that diversity is very 
important to our nation's schools. This includes not only universities, 
but also K through 12. It is certainly of the utmost importance as a 
tool to overcoming vestiges of segregation. Indeed, I have benefitted 
personally from efforts to promote diversity, and from having had the 
opportunity to learn and work in increasingly diverse environments. I 
will continue to support efforts to overcome vestiges of segregation 
and achieve unitary status in public school districts. With respect to 
the lawsuits to which the Senator refers, I am unfamiliar with the 
details of the policies in those cases.

    Question 10. In past decisions, the Supreme Court said that school 
districts should not be declared unitary unless they have taken all 
feasible action to eliminate all vestiges of discrimination including 
educational deficits and housing segregation caused by school 
segregation. (A) Will you look closely at requests for unitary status 
in which Department of Justice is involved to assure that these 
vestiges are adequately addressed? (B) Will you ensure that all such 
vestiges are eliminated before agreeing to any motions for unitary 
status?
    Answer. (A) Yes.
    (B) I share the Attorney General's view that segregation is 
inconsistent with the 14th Amendment's guarantee of equal protection 
for all of its citizens. If confirmed as Assistant Attorney General for 
Civil Rights, I would work to ensure that school districts that have 
not achieved unitary status take all feasible action to eliminate all 
vestiges of discrimination. However, it would not be appropriate for me 
to commit to a particular course of action regarding future cases, 
except to say that I would follow the goveraing law, and apply that law 
in an intellectually honest manner.

    Question 11. As head of the Civil Rights division, would you 
support the right of public universities to consider race in deciding 
whether to admit students? (A) For what purposes, if any, do you 
believe that public universities may consider race? (B) Do you believe 
that fostering diversity within a student body is a constitutionally 
sufficient rationale to support the use of affirmative action? (C) What 
is your view of the constitutionality in recruitment efforts that are 
specifically designed to broaden the pool of minorities and women? Do 
you believe that Justice Powell's decision in the Bakke case is the law 
of the land?
    Answer. Like all government race-based classifications, the use of 
racial classifications by public universities in admissions is 
permissible where the racial classifications are narrowly tailored to 
serve a compelling governmental interest. Thus, I would support public 
universities' consideration of race where the program in question met 
these requirements. I believe that diversity is important to our 
nation's universities, particularly its public universities. This 
diversity advances important educational (and, for that matter, 
workplace) objectives, and promotes fairness and equality of 
opportunity for all people. Indeed, I have benefitted personally from 
efforts to promote diversity; and from having had the opportunity to 
learn and work in increasingly diverse environments.
    (A) and (B) For me therefore, the importance of diversity in our 
universities (and in other institutions throughout our society) in 
virtually inarguable. However, whether, as a legal matter, the goal of 
fostering diversity is a constitutionally sufficient rationale to 
support the use of non-remedial racial classifications is a harder 
question.
    The contours of the boundary between the constitutional and 
unconstitutional 1ise of race in public university admissions are 
unclear and in need of clarification by the Supreme Court. As many 
commentators have noted, with the exception of the one paragraph of 
Justice Powell's opinion holding that the California Supreme Court's 
decision should be reversed as to its holding that the use of race in 
Davis' admissions program was never permissible, none of the six Bakke 
opinions issued by the Supreme Court in that case were supported by a 
majority of the Court. Thus, while five Justices agreed that the 
University of California at Davis was not prohibited from ever 
considering race in its admissions process, there was disagreement as 
to what rationale or rationales justified consideration of race. In 
particular, no other Justice joined that portion of Powell's opinion 
discussing ``diversity'' as a constitutionally permissible basis for 
consideration of race in admissions. Accordingly, subsequent lower 
Court decisions have stpzggled to discern which rationales foi 
consideration of race are permissible in the admissions context. In 
particular; while the law seems well-settled that it is permissible to 
consider race as a remedial response to well documented past 
discrimination by the institution implementing the racially conscious 
program, the lower courts have split on the question of whether Justice 
Powell's ``diversity'' rationale articulates a compelling governmental 
interest. While the Supreme Court's affirmative action decisions in 
Croson and Adarand raise the question of whether nonremedial racial 
classifications will ever survive strict scrutiny analysis, the Court 
has not--learly overruled Bakke.
    Therefore, I view the question as an open one, and would have to 
review each program on a cases by case basis to determine if a 
diversity-based race-conscious admissions program was narrowly tailored 
to further a compelling state interest.
    (C) I would have to review any specific recruitment program before 
reaching a firm conclusion, but I generally support efforts to broaden 
the pool of applicants to educational institutions and increase the 
number of qualified applicants of all races, genders, and backgrounds.
    My views on Bakke are expressed above, and the Bakke decision is 
the law of the land only with respect to its actual holdings. Because 
the six Bakke opinions each failed to gather five votes (with the 
exception of the one paragraph of Justice Powell's opinion discussed 
above), considering any of the six opinions as expressing the reasoning 
of the Court is problematic.

    Question 12. Many observers have suggested that the current 
litigation involving the use of affirmative action by the University of 
Michigan in both undergraduate and law school admissions will 
ultimately be resolved by the Supreme Court. As you know, there are 
currently conflicting decisions in that litigation, as one District 
Court judge has upheld the university's use of affirmative action for 
undergraduates, and another has struck down the use of affirmative 
action by the law school.
    (a) Are you familiar with the District Court opinions in the 
Michigan cases?
    Answer. Yes.
    (b) Do you find the District Court's opinion striking down Michigan 
Law School's affirmative action program persuasive:
    Because the Civil Rights Division may be called upon to take a 
position in one or both of the Michigan cases, I hesitate to engage in 
a specific evaluation of these cases, especially without the benefit 
and insight that I would hope to gain by discussing this with the 
career attorneys at the Division. The different outcomes in these two 
cases clearly illustrate just how fact intensive these cases can be and 
how correspondingly great our obligations are as government attorneys 
to examine carefully the specific facts of each case. In my experience, 
powerful facts typically drive or substantially influence litigation 
outcomes.
    (c) From what you know of this case, do you believe it would 
provide an appropriate vehicle for the Supreme Court to rule on the use 
of affirmative action by colleges and universities?
    While I do think the Supreme Court should directly address the 
question of when racial classification by public universities is 
permissible, I hold no opinion as to whether the Michigan Law School 
case, as opposed to any other pending admissions' affirmative action 
case, would present the most appropriate vehicle for it to do so.----

    Question 13. In the University of Michigan cases, a range of 
evidence was put in the record showing that there were compelling 
educational justifications for pursuing racial and ethnic diversity. 
This evidence included the expert testimony of William Bowen and Derek 
Bok, former president of Princeton and Harvard respectively, who, 
relying on evidence from their study, The Shape of the River, showed 
the benefits of a racially and ethnically diverse student body in 
producing leaders from under-represented minority groups and in 
promoting racial understanding, and Patricia Gurin, a psychology 
professor at Michigan, who testified on the cognitive benefits of 
racial and ethnic diversity in the classroom, as well as the long-term 
benefits gained through increased ability to deal with others from 
different racial backgrounds. Quite apart from the question of whether 
Bakke is good law, do you think that a University may ever have a 
compelling interest in pursuing racial and ethnic diversity, because of 
the cognitive and democracy benefits gained by diversity? What kind of 
evidence would you require to show this?
    Answer. I believe that racial and ethnic diversity is vitally 
important to our nation's universities, particularly its public 
universities. This diversity advances important educational (and, for 
that matter, workplace) objectives, and promotes fairness and equality 
of opportunity for all people. Indeed, I have benefitted personally 
from efforts to promote diversity, and from having had the opportunity 
to learn and work in increasingly diverse environments.
    For these reasons, I have spent most of my adult life furthering 
this cause. I have worked especially hard to include and involve young 
people of color in educational and legal institutions with which I have 
had the good fortune to be affiliated. I have worked with young people 
of color in the NAACP's ACTSO (academic Olympics) program, and in the 
Boston Bar Association's summer jobs program, which places urban high 
school students in summer jobs at Boston law firms. I worked vigorously 
on outreach and the recruitment of minority students when I served as 
the Assistant Director of Admissions at Haverford College, my alma 
mater. I was extensively involved in recruiting lawyers of color at the 
United States Attorney's Office, and more recently at Goodwin Procter 
LLP, my law firm, where I serve on the hiring committee. I also have 
worked diligently to recruit (and retain): young lawyers of color to 
Boston law firms and public law offices through my work with the Boston 
Lawyer's Group; lawyers of color for judicial positions in 
Massachusetts through my work on the Judicial Nominating Council; and 
professionals of color to jobs in Massachusetts state government 
through my work on the Governor's Diversity Advisory Group.
    The importance of diversity in our universities is thus for me 
quite clear. However, whether, as a legal matter, such diversity 
constitutes a compelling governmental interest is a harder question. 
The Supreme Court and Congress have repeatedly insisted that mere 
racial balancing or quota systems are not appropriate, and thus 
diversity cann,)t justify a policy of racial proportionality. Moreover, 
the .Supreme Court has made clear that all governmental racial 
classifications are inherently suspect and therefore must satisfy 
strict scrutiny to be permissible. It is a close question about which I 
do not enjoy the comfort or certainty of having a well-settled view, 
and for this reason I continue to have an open mind on the matter.
    As a matter of conscience, I believe deeply that government should 
first help people in need--all people. Government must therefore, act 
cautiously and carefully when it classifies people by race, even to 
achieve an important objective such as diversity. Although I am not 
inalterably opposed to it for the reasons I stated earlier, grouping 
people by race does give me some pause.

    Question 14. What is your view of the Supreme Court's decisions in 
Shaw v. Reno and its progeny, and in particular its decision earlier 
this year in Hunt v. Cromartie? In light of those decisions, how would 
you advise those States covered under the Voting Rights Act to treat 
race in the redistricting process?
    Answer. Under Section 5 of the Voting Rights Act, covered 
jurisdictions may not implement any redistricting plan that has the 
purpose of effect of denying or abridging the right to vote on the 
basis of race. Thus, in some instances, the Act requires covered 
jurisdictions to consider race in their redistricting deliberations. 
Shaw v. Reno and progeny essentially impose a ceiling on the use of 
race in redistricting by holding that covered jurisdictions violate the 
Fourteenth Amendment if race is a ``predominant'' factor in 
redistricting efforts. Though I am not yet fully familiar with the 
Supreme Court's jurisprudence in this area, my reading of Hunt v. 
Cromartie is that the Court's decision rested more on a re-review of 
the factual record, not on any alteration in the Court's predominant 
factor standard. The Court held that a three judge panel in the Eastern 
District of North Carolina was clearly erroneous in finding that North 
Carolina's Twelfth Congressional District, as then configured, was 
drawn predominantly for racial reasons. Based on the foregoing, it 
appears that any covered jurisdiction seeking preclearance under 
Section 5 must submit a redistricting plan that is not motivated 
predominantly by race, but also does not cause a retrogression in 
minont;, voting strength.

    Question 15. In 2007, Congress will consider the extension of 
Section 5 of the Voting Rights Act, 42 U.S.C. Sec. 1973c. (A) what is 
your position regarding the continued need for this civil rights
    provision? (B) Would you advocate for its extension when it comes 
up for renewal in 2007?
    Answer. Section 5 continues to be the primary means of ensuring 
that covered jurisdictions preserve and promote minority voting 
strength. The decision to revisit Section 5 is a legislative 
prerogative. I can assure the Senator, however, that, if I am 
confirmed, the Civil Rights Division will take seriously its 
preclearance obligations under Section 5 for as long as Section 5 is 
existing law.

    Question 16. Federal observers have been sent to monitor elections 
in a variety of circumstances, including when local jurisdictions 
request them, and when the Department's pre-election investigation 
indicates there may be intimidation, harassment, or other interference 
with minority voters at the polls on election day. Are you willing to 
maintain this program at its current levels or will you cut back on the 
number of observers sent by the Department to monitor elections?
    Answer. I share the Attorney General's view that the use of 
election observers in covered jurisdictions and election monitors in 
non-covered jurisdictions should be increased in order to better 
discourage voter fraud and help ensure voting rights.

    Question 17. What priority will you give as Assistant Attorney 
General to enforcing the provisions of Section 2 of the Voting Rights 
Act, which prohibits electoral practices that dilute minority voting 
strength by denying minority voters an equal opportunity to elect 
candidates of their choice to office?
    Answer. I share the Attorney General's view that enforcement of the 
Voting Rights Act should be a priority. I believe that Section 2 is one 
of the most important federal laws ensuring equal access for minority 
voters. If confirmed and presented with credible evidence that a 
jurisdiction has imposed a practice or procedure that dilutes minority 
voting strength in violation of Section 2, I would expect to direct the 
Voting Section to investigate the matter and enforce Section 2 as 
appropriate.

    Question 18. Supreme Court decisions have re:iad upon the 14th 
Amendment to strike down majorityblack and Hispanic congressional and 
legislative.districts enacted by state legislatures. Isn't that an 
example of judicial activism, in which the Court is substituting its 
view of a proper redistricting plan for the view of the state 
legislatures?
    Answer. My understanding of the Court's decisions in Shaw v. Reno, 
Miller v. Johnson and other similar cases is that the Court is not 
imposing on the states its view of a proper redistricting plan, but is 
instead preventing covered jurisdictions from violating the Fourteenth 
Amendmei.t by relying too heavily on racial classifications.

    Question 19. As Assistant Attorney General, will you continue to 
enforce the ``discriminatory effects'' standard under the Voting Rights 
Act?
    Answer. I understand the Senator to be referring to the 
``discriminatory effects'' prong of Section 5 of the Voting Rights Act, 
and to the Civil Rights Division's responsibilities to preclear 
redistricting plans under that section. If confirmed, I would continue 
to enforce Section 5 to prevent implementation of redistricting plans 
having an improperly retrogressive effect on minority voting strength.

    Question 20. Are you willing to vigorously enforce Section 203 of 
the Voting Rights Act which requires the ballots and other election-
related materials be translated in certain areas of the country where a 
number of citizens are limited English proficient?
    Answer. Yes.

    Question 21. Do you agree that certain states, with a history of 
using discriminatory methods to intentionally keep black voters from 
being able to register to vote, such as literacy tests, should still be 
required to submit changes in election laws or procedures to the 
Justice Department or the District Court for the District of Columbia 
for review before those laws or procedures are allowed to take effect?
    Answer. Section 5 continues to be the primary means of ensuring 
that jurisdictions with a history of minority voter disenfranchisement 
preserve and promote minority voting strength. If I am confirmed the 
Civil Rights Division will continue to enforce Section 5 of the Voting 
Rights Act, as it will all existing federal statutes falling within its 
jurisdiction, including careful review of all redistricting plans 
submitted to the Voting Section by covered jurisdictions.

    Question 22. Will you ensure that the Justice Department carefully 
reviews all new redistricting plans drawn after the 2000 census that 
are submitted to it to guarantee that such plans do not have the 
purpose or effect of discriminating against minority voters?
    Answer. If confirmed, I would ensure that the Voting Section 
carefully reviews all redistricting plans submitted to it by covered 
jurisdictions under Section 5 of the Voting Rights Act.

    Question 23. Will you allow the Civil Rights Division to continue 
bringing meritorious claims under Section 2 of the Voting Rights Act 
where it appears that the voting strength of minority voters is being 
diluted by unfair redistricting plans?
    Answer. Yes.

    Question 24. As Assistant Attorney General, will you allow 
Department of Justice (DOJ) personnel who have gained expertise in the 
area of clinic access to continue to work in this area if they so 
desire?
    Answer. Having served for several years as a career Assistant 
United States Attorney, and having been a litigator for almost 17 
years, I believe as a general matter that experience and expertise are 
important factors in decisions regarding personnel assignments.
    Out of respect for the Senate's role in giving advice and consent, 
I have not reviewed, nor had the benefit of, a careful review of the 
Department of Justice personnel who have gained expertise in the area 
of clinic access. I am unaware of any proposals to reassign such 
personnel and have no such plans of my own. It would not be appropriate 
for me to make any additional statements, however, concerning the 
future employment status of Department personnel whom I have not met, 
and with respect to whose performance I have no knowledge.

    Question 25. In Alexander v. Sandoval, the Supreme Court recently 
held that private plaintiffs cannot sue in federal court to enforce the 
regulations under Title VI of the Civil Rights Act of 1964 that 
prohibit recipients of federal funds from using practices that have a 
discriminatory effect. Because the Court did not invalidate these 
regulations, organizations that receive federal funds might be 
violating federal regulations due to discriminatory practices, but the 
individuals affected by those practices now cannot sue to enforce the 
regulations. This makes it even more important for the federal 
government to vigorously enforce the Title VI disparate impact 
regulations, through both lawsuit and administrative investigations. 
What plans do-you have to ensure the continued vitality of these 
regulations.
    Answer. I agree with the Senator that, because private litigants 
may no longer bring suit under Title VI to enforce disparate impact 
regulations passed under Section 602 of that law, added responsibility 
falls on the federal government to monitor Title VI compliance Out of 
respect for the Senate's advice and consent function I have not yet 
consulted with the Attorney General regarding this issue, nor have I 
formulated any specific plans regarding Title VI regulations. I do 
note, however, that private litigants, depending on the circumstances, 
may have other means of enforcing regulations promulgated under Title 
VI, e.g., private actions under 42 U.S.C. Sec. 1983. One recent 
decision has so held. See South Camden Citizens in Action v. New Jersey 
Department of Environmental Protection, Civil No. 01-702 (D.N.J., May 
10, 2001).

    Question 26. One way to promote trust between the police and 
communities is to ensure that we are recruiting and hiring a diverse 
police force that has the requisite skills to engage in community 
oriented policing. For many years, the Civil Rights Division has 
brought lawsuits against police departments using hiring tests that 
have an adverse impact on minority applicants, where the tests have not 
been shown to predict successful job performance. Police tests that 
focus only on cognitive skills are said to do a worse job at predicting 
success as a police officer than tests that add elements to evaluate 
other skills and personality traits, such as problem solving and 
teamwork. Will you continue bringing lawsuits against departments using 
tests that have a disparate impact, where alternative selection devices 
with less adverse impact are available?
    Answer. 1, too, believe that hiring tests that impose an adverse 
impact on minority applicants, where those tests have not been shown to 
adequately predict successful job performance, are unlawful. I hesitate 
to comment, however, regarding the job relatedness of specific groups' 
tests without having the opportunity to review carefully the specific 
tests and the facts of each case, and without the benefit of opinions 
of the career attorneys at the Civil Rights Division. I commit, 
however, to continuing to enforce the disparate impact provisions of 
Title VII.

    Question 27. Last year, President Clinton issued Executive Order 
13166, which is aimed at providing persons who have limited English 
proficiency (LEP), often as a result of their national origin, with 
meaningful access to federally conducted and federally assisted 
programs and activities; for example, federally funded hospitals taking 
reasonable steps to provide translation services to LEP patients, so 
they can understand the medical advice and trezt:.zcnt they are 
receiving. Will you commit to supporting and carrying out the existing 
Executive Order, and oppose efforts to eliminate it?
    Answer. If confinned, I would steadfastly implement and enforce 
Executive Order 13166. As a personal matter, I believe that people with 
limited English skills should rot be left behind, especially in the 
circumstances discussed in your question. People simply cannot have 
meaningful access to health care if they are not able to understand the 
medical advice and treatment they are receiving.
    Although the factors set forth in the guidance documents under 
Executive Order 13166 appear to reflect a reasoned approach to deciding 
when programs receiving federal assistance must provide limited English 
proficiency services, it would not be appropriate for me to commit to a 
course of action regarding the Order without the benefit of careful 
study, and without considering the views of affected components of the 
Department of Justice and other agencies within the Administration. If 
confirmed, I would welcome your views on this important matter.

    Question 28. The Justice Department's power to initiate inquiries 
to determine whether there is a ``pattern or practice'' of abuse and 
poor accountability in particular police departments has become an 
essential tool in combating unchecked police nusconduct. Investigations 
in Pittsburgh, Los Angeles, and New Jersey, for example, have not only 
lead to improvements in those particular department, but also send a 
strong signal to all police departments about the `best practices'' the 
Justice Department supports. (A) Can you assure us there will be no 
retreat from these investigations? (B) Are you committed to the 
continuing the Division's commitment to employing consent decrees to 
remedy the patterns and practices in the subject jurisdictions?
    Answer. Congress enacted U.S.C. Sec. 14141 to promote police 
integrity, combat police misconduct, and ensure the protection of civil 
rights for all Americans. I agree with those goals and I share the 
Attorney General's stated commitment to enforce this statute.
    In this area, the Civil Rights Division's job is to identify 
problems and help solve them, preferably cooperatively, but through the 
adversarial litigation process if necessary. At least as air initial 
matter, cooperative efforts to work with local law enforcement 
agencies, victims groups, and civil rights organizations may in some 
instances be more productive and efficient. The Division can provide 
consulting, training, and other technical assistance to police 
departments that are engaged in serious efforts to correct problems and 
put in place processes and practices designed to minimize, if not 
eliminate entirely ``pattern or practice'' problems. Where they are 
not, if confirmed, I would expect to instruct the Special Litigation 
Section to pursue adversarial litigation, utilizing a range of remedial 
tools, including consent decrees.

    Question 29. How would you, as [Assistant] Attorney General, 
encourage enforcement of fair housing laws under a disparate impact 
theory?
    Answer. The Civil Rights Division uses a vanety of tools to prevent 
discrimination in housing and related activities, e.g., the Fair 
Housing Act and Title II of the Civil Rights Act, and I am aware that 
many courts hold, in certain circumstances, that the Fair Housing Act 
may be violated on a showing of disparate impact, absent evidence of 
discriminatory intent. Pursuant to 42 U.S.C. Sec. 3614, the Attorney 
General may initiate a civil enforcement action where he has reasonable 
cause to believe that any person or group of persons is engaged in a 
pattern or practice that violates the Fair Housing Act. If confirmed, I 
will enforce these laws fairly and evenhandedly. Equally important to 
this fair and evenhanded commitment is my commitment to review every 
suit recommendation presented to me to ensure that where discrimination 
exists, it is ended and remedied.

    Question 30. In recent years as a Congress we have gone to great 
length to increase homeownership generally and specifically in minority 
communities. A major component to owning a home is the acquisition of 
property insurance. Over the last five years we have seen significant 
evidence demonstrating that some major national insurance carriers 
intentionally discriminate in low income, predominantly minority 
neighborhoods. In light of this, what is your view on discrimination in 
the homeowners' insurance market? And in your opinion is such 
discrimination covered under the Fair Housing Act?
    Answer. Home ownership, especially in minority communities, is a 
basic part of the American dream. I agree with the Senator's view that 
acquisition of property insurance is a necessary prerequisite to home 
ownership and that intentional discrimination in the insurance market 
is unacceptable. When discrimination is at work in illegally denying 
persons home ownership, I will work to enforce all applicable laws, 
including the Fair Housing Act, to end that discriminatory conduct.

    Question 31. The disabled community continues to face, a number of 
frustrations, one of which is finding accessible housing. A number of 
people feel that one of the biggest impediments to overcoming this 
hurdle is the implementation of the Fair Housing Acts ``new 
construction'' requirements. As Assistant Attorney General you will be 
asked to uphold this requirement will you strongly enforce this 
provision of law. Do you believe that the accessibility for the 
disabled is a matter suitable for federal intervention?
    Answer. Yes.

    Question 32. The Department of Justice, Civil Rights Division, 
operates a well coordinated and effective ``testing'' program to detect 
discriminatory housing practices. Will you continue to use testing to 
establish pattern and practice evidence of civil rights abuses and 
discrimination in housing.
    Answer. Yes.

    Question 33. The Civil Rights Division has been very active in 
prosecuting lending discrimination cases. (A) Will you continue to 
prosecute lending discrimination cases? (B) What is your position on 
the use of an effects test to prove lending discrimination?
    Answer. The right to own a home and to access credit are basic to 
the American dream. These rights should be avaiiahle to every person. 
When discrimination plays a role in either denying persons these rights 
or exploiting their vulnerabilities, I will work to end that 
discriminatory conduct and make the victims whole. My understanding of 
the proof in such cases is that it can be exceedingly ccmplex, covering 
a wide range of practices and offices, and involve the conduct of many 
employees of the lender. My judgment and experience tell me that it 
would be the rare and unusual case that relied only on a simple effects 
test as proof of discrimination. It is much more likely that when 
Division attorneys recommend that a suit be brought in this area, I 
will be presented with fact patterns that require a review of a broad 
range of evidence.
    Out of respect for the Senate's advice and consent function, I have 
not yet had the opportunity to confer with the career staff on this 
issue. I believe it is important to speak with them regarding the 
Division's history in these cases and the specific evidence presented 
before making specific determinations in the fair lending area.
        Question Submitted by Senator Leahy and Senator Kennedy

    Question 1. Many Senators on this Committee have been strong 
supporters of the Americans with Disabilities Act. In recent years, 
there has been an increase in litigation between the Department of 
Justice and private industry concern-ing the regulations issued in 
furtherance of this Act. Will you encourage the Civil Rights Division 
to engage in serious and substantial negotiations with responsible 
industries that seek in good faith to clarify the requirements of the 
ADA?
    Answer. Yes.
                  Question Submitted by Senator Biden
    Historically; the most important tool the Civil Rights Division has 
wielded in enforcing the law is the so-called pattern-or-practice suit. 
As the name implies, this tool allows the Division to go after patterns 
of discrimination, rather than the misdeeds of individuals. For 
instance, the Civil Rights Division has used pattern-or-practice 
litigation to reach consent decrees with several lawenforcement 
agencies. The problem there was rooted not so much in discriminatory 
conduct by individual officers, but in policies and patterns those 
agencies adopted years ago that no longer reflect our law.

    Question. Can we have your full commitment to the use of pattern-
or-practice litigatior--in enforcing our civil rights laws?
    Answer. Yes. If confirmed, and in consultation with the Attorney 
General, I would use 42 U.S.C. Sec. 14141 where appropriate to redress 
patterns of discrimination, especially in situations where efforts to 
put an end to persistent, unlawful conduct are not successful through 
other means.
               Questions Submitted by Senator Ted Kennedy

    Question 1. A federal district court judge in the University of 
Michigan undergraduate case recently ruled in favor of the University 
on summary judgment, finding that: ``a racially and ethnically diverse 
student body produces significant educational benefits such that 
diversity, in the context of higher education, constitutes z compelling 
governmental interest under strict scrutiny.'' Do you agree with the 
court's view that diversity can be a compelling governmental interest 
in the higher education context?
    Answer. I believe that diversity is very important to our nation's 
universities, particularly its public universities. This diversity 
advances important educational (and, for that matter, workplace) 
objectives, and promotes fairness and equality of opportunity for all 
people. Indeed, I have benefitted personally from efforts to promote 
diversity, and from having had the opportunity to learn and work in 
increasingly diverse environments.For these reasons, I have spent most 
of my adult life furthering this cause. I have worked especially hard 
to include and involve young people of color in educational and legal 
institutions with which I have had the good fortune to be affiliated. I 
have worked with young people of color in the NAACP's ACTSO (academic 
Olympics) program, and in the Boston Bar Association's summer jobs 
program, which places urban high school students in summer jobs at 
Boston law firms. I worked vigorously on outreach and the recruitment 
of minority students when I served as the Assistant Director of 
Admissions at Haverford College, my alma mater. I was extensively 
involved in recruiting lawyers of color at the United States Attorney's 
Office, and more recently at Goodwin Procter LLP, my law firm, where I 
serve on the hiring committee. I also have worked diligently to recruit 
(and retain): young lawyers of color to Boston law firms and public law 
offices through my work with the Boston Lawyer's Group; lawyers of 
color for judicial positions in Massachusetts through my work on the 
Judicial Nominating Council; and professionals of color to jobs in 
Massachusetts state government through rrmy work on the Governor's 
Diversity Advisory Group.
    For me therefore, the importance of diversiry in our universities 
(and in other institutions throughout our society) in virtually 
inarguable. However, whether, as a legal matter, such diversity 
constitutes a compelling governmental interest such that government is 
permitted to classify people by race for the purpose of assigning 
opportunities is--for me--a harder question. The Supreme Court and 
Congress have repeatedly insisted that mere racial balancing or quota 
systems are not appropriate, and thus diversity cannot justify a policy 
of racial proportionality. Moreover, the Supreme Court has made clear 
that all governmental racial classifications are inherently suspect and 
therefore must satisfy strict scrutiny to be permissible. It is a close 
question about which I do not enjoy the comfort or certainty of having 
a well-settled view, and for this reason I continue to have an open 
mind on the matter. Similarly, I also do not have a settled view 
regarding the nature and scope of the proof necessary to establish 
diversity as a compelling governmental interest.
    As a matter of conscience, I believe deeply that government should 
first help people in need--all people. Government must therefore act 
cautiously and carefully when it classifies people by race, even to 
achieve an objective as important as diversity.

    Question 2. Although America experienced a significant drop in 
violent crime during the 1990s, the number of hate crimes has continued 
to grow. In fact, according to FBI statistics, in 1999 there were 7,876 
reported hate crimes committed in the United States. That's over 20 
hate crime per day, every day.
    During the last Administration, the Assistant Attorney General for 
Civil Rights was a strong and vocal supporter of needed federal hate 
crimes legislation. In an Op/Ed that appeared in the L.A. Times, he 
stated that: ``(j]ust as our laws punish crimes more severely when guns 
are involved, or when there is deliberate planning and premeditation, 
so should they when there is bias motivation.'' Do you support passage 
of a federal hate crimes law?
    Answer. If confirmed, I would work vigorously to fulfill the 
Attorney General's pledge to take all reasonable and appropriate steps 
to combat hate crimes at the federal level. I would welcome the 
opportunity to have a dialogue with you and other Senators about this 
important issue. At this time, however, it would not be proper for me 
to state a policy position on such a measure without the benefit of 
careful study and without the views of others in the Department of 
Justice and the Administration.

    Question 3. In light of the Supreme Court's recent federalism 
decisions, what is your understanding of the nature and scope of 
Congress's powers under the Commerce Clause and 14' Amendment to 
protect basic rights?
    Answer. Following the Supreme Court's decisions in United States v. 
Lopez and United States v. Morrison, congressional power remains broad. 
These decisions seem to suggest that Congress may act to regulate and 
protect: (i) the use of channels of interstate commerce; (ii) 
instrumentalities of interstate commerce, or persons or things in 
interstate commerce, even though the threat may come only from 
intrastate activities; and (iii) activities substantially affecting 
interstate commerce. It would seem however, that these cases suggest 
that the Commerce Clause, without more, does not allow Congress to 
regulate purely intrastate criminal activity.
    As for Congress' powers under the Fourteenth Amendment, Section 5 
of that Amendment allows Congress to pass laws abrogating states' 
Eleventh Amendment immunity if needed to enforce the requirements of 
the Fourteenth Amendment. As the Supreme Court has observed, while 
congressional enactments pursuant to Section 5 need not exactly track 
judicial developments concerning what is prohibited by the Fourteenth 
Amendment, such enactments must exhibit congruence and proportionality 
between the injury to be prevented and the means adopted to prevent it. 
See, e.g., Board of Trustees v. Garrett, 531 U.S. (Feb. 21, 2001).

    Question 4. If federally funded programs or activities are shown to 
have a discriminatory effect on minorities or women, should private 
plaintiffs be allowed to bring suits challenging those programs or 
activities?
    Answer. The Supreme Court's recent decision in Alexander v. 
Sandoval holds that private parties may not sue to enforce the Title VI 
disparate impact regulations. However, even after Sandoval, these Title 
VI disparate impact regulations remain on the books. Moreover, private 
parties can still sue in situations where evidence of discriminatory 
effect, standing alone or with other evidence, can be said to reflect 
discriminatory intent on the part of those administering a federally 
funded program or activity.
    In addition, a federal court recently held that a private party may 
sue a state actor based on the fact that its federally supported 
program had a discriminatory effect (or disparate impact) on racial 
minorities, pursuant to 42 U.S.C. Sec. 1983. See South Camden Citizens 
in Action v. New Jersey Department of Environmental Protection, No. 01-
702 (D.N.J., May 10, 2001). Title VII also remains a viable statutory 
ground for private party actions alleging disparate impacts on 
minorities and women.
    If confirmed, I would welcome the opportunity to work with the 
Senator, and others, on issues relating to Sandoval and its effects on 
the fair administration of federally funded programs and activities.

    Question 5. If it is appropriate for the federal government to play 
an active role in prosecuting gunrelated crimes, why is it not 
appropriate for the federal government to also play a role in 
prosecuting hate-motivated crimes?
    The Civil Rights Division plays an active role in prosecuting 
certain bias-motivated crimes, e.g., 18 U.S.C. '' 245 (bias-motivated 
violence directed at school attendance, seeking public employment, and 
using public facilities or accommodations), 247 (bias-motivated conduct 
obstructing religious freedom), and 42 U.S.C. 3631 (bias-motivated 
violence directed at enjoyment of housing). I believe that this is an 
appropriate, important role for the Civil Rights Division.
    If confirmed, I would work hard to fulfill the Attorney General's 
pledge to take all reasonable and appropriate steps to combat crimes, 
whether they be motived by bias, hate or otherwise. This would include 
a careful study of how best to combat such crimes, and what the federal 
government's role should be in achieving this important objective. 
Whatever the federal government's ultimate role in addressing this 
sonous problem, either through federal legislation, litigation, or 
subsidization of state law enforcement efforts, that role should 
reflect--and send a clear and unequivocal message about--the extent of 
our unwillingness to tolerate this criminal activity.

    Question 6. Do you believe a public institution of higher 
education--without a history of past discrimination--can ever use race 
or gender as one factor among many in creating a diverse student body 
without violating the constitutional strict scrutiny standard?
    Answer. I believe that diversity is important to our nation's 
universities, particularly its public universities. This diversity 
advances important educational (and, for that matter, workplace) 
objectives, and promotes fairness and equality of opportunity for all 
people. Indeed, I have benefitted personally from efforts to promote 
diversity, and from having had the opportunity to learn and work in 
increasingly diverse environments.
    For these reasons, as I previously detailed, I have spent most of 
my adult life furthering this cause. I have worked especially hard to 
include and involve young people of color in educational and legal 
institutions with which I have had the good fortune to be affiliated. I 
have worked with young people of color in the NAACP's ACTSO (academic 
Olympics) program, and in the Boston Bar Association's summer jobs 
program, which places urban high school students in summer jobs at 
Boston law firms. I worked vigorously on outreach and the recruitment 
of minority students when I served as the Assistant Director of 
Admissions at Haverford College, my alma mater. I was extensively 
involved in recruiting lawyers of color at the United States Attorney's 
Office, and more recently at Goodwin Procter LLP, my law firm, where I 
serve on the hiring committee. I also have worked diligently to recruit 
(and retain): young lawyers of color to Boston law firms and public law 
offices through my work with the Boston Lawyer's Group; lawyers of 
color for judicial positions in Massachusetts through my work on the 
Judicial Nominating Council; and professionals of color to jobs in 
Massachusetts state government through my work on the Governor's 
Diversity Advisory Group.
    For me therefore, the importance of diversity in our universities 
(and in other institutions throughout our society) is virtually 
inarguable. However, whether us a legal matter such diversity, absent a 
history of past discrimination, satisfies strict scrutiny, is a harder 
question. While the Supreme Court's affirmative action decisions in 
Croson and Adarand raise the question of whether non-remedial racial 
classifications will ever survive strict scrutiny analysis, the Court 
has not clearly overruled Bakke.

    Question 7. Do you believe that charter schools should have to 
comply with federal civil rights laws?
    Answer. Yes.

    Question 8. Will your office review current congressional 
redistricting plans to ensure that they do not have the purpose or 
effect of discriminating against minority voters?
    Answer. Yes, if confirmed I will ensure that the Voting Section 
carefully reviews redistricting plans to ensure that they do not 
violate the Voting Rights Act.

    Question 9. Since January, we have heard nothing from the 
Department of Justice regarding its investigation into voting 
irregularities in the 2000 Presidential election. Is the investigation 
a top priority for you, and what steps will you take to ensure that it 
is completed as soon as possible?
    Answer. If confirmed, I would make voting rights investigations and 
voting reform a top priority. I would investigate any alleged voting 
rights violation supported by credible evidence, whether in the context 
of the November 2000 election, or with regard to any other voting 
matter. In connection with any such investigation, I would go, as I 
stated in my response to a similar question from Senator Leahy during 
my confirmation hearing, ``wherever the evidence and law lead without 
flinching.''
    With respect to the November 2000 presidential election 
investigation, I am not yet privy to, and in any event should not 
comment on, the details of an ongoing investigation. However, if 
confirmed, I would look forward to bringing my skills, judgment, and 
experience as a federal prosecutor to bear on that, and any other civil 
rights, investigation.

    Question 10. As you know, the Department of Transportation has a 
Disadvantaged Business Enterprise Program designed to overcome past and 
present racial discrimination in federally funded highway programs. Do 
you believe it is the Justice Department's responsibility to defend the 
constitutionality of this program when the Supreme Court reviews it 
later this year in the Adarand case?
    Answer. It is my view that the Department of Justice has an 
obligation to defend Acts of Congress from constitutional challenge 
whenever a reasonable argument can be made in support of a statute. My 
presumption is that the Department of Justice will apply this principle 
to the Adarand case and, if confirmed,'. will urge it to do so. Of 
course, particular decisions related to the position of the United 
States before the Supreme Court would rest with the Office of the 
Solicitor General.

    Question 11. Attorney General Ashcroft has stated that he, believes 
that the practice of racial profiling by police should be eliminated. 
What litigation efforts should the Civil Rights Division take in 
pursuit of this goal? Will you support legislation establishing a 
federal cause of action allowing individuals to challenge racial 
profiling by local, state, and federal law enforcement agencies?
    Answer. Where a pattern or practice of profiling exits and local 
law enforcement is neither cooperative nor taking meaningful steps to 
eliminate those practices, an enforcement action pursuant to 42 U.S.C. 
' 14141 must remain an option. I do not believe, however, this should 
be the only step taken by the Civil Rights Division to address the 
issue of racial profiling.
    First, we need more hard data on racial profiling. We need careful 
study to determine definitively the scope, magnitude, permutations and 
manifestations of the problem. The Attorney General has asked Congress 
to enact legislation authorizing the Department of Justice to collect 
data for this purpose. The Civil Rights Division should be involved in 
this effort. Second, the Civil Rights Division should make certain that 
specific procedures are in place under which individual complaints of 
racial profiling are given expedited review by Division attorneys. 
Third, the Division should be ready to work cooperatively with local 
law enforcement by providing technical assistance regarding data 
collection, data interpretation and analysis, training, policy 
development, and community outreach.
    With respect to legislative proposals, I would welcome the 
opportunity to study any legislation that the Senator may propose to 
eradicate unlawful racial profiling and to work with him and other 
Senators on this issue. At this time, however, it would be improper for 
me to take a position with respect to legislation without the benefit 
of careful study and the views of others in the Department of Justice 
and the Administration.

    Question 12. During his 2000 campaign, President Bush expressed his 
general disapproval of Department of Justice investigations into 
``patterns and practices'' of wrongdoing by police departments, stating 
that ``the federal government should not instruct state and local 
authorities on how police department operations are conducted, becoming 
a separate internal affairs division.'' Do you agree with this 
statement? If so, how do you intend to carry out the Department's 
``pattern and practice'' jurisdiction under The Violent Crime Control 
and Law Enforcement Act of 1994?
    Answer. I share the President's belief that the Civil Rights 
Division should not micro-manage the internal affairs of local law 
enforcement. Deference to local authority, however, does not excuse a 
police department from complying with the law.
    I believe that the Civil Rights Division has a responsibility to 
investigate alleged patterns or practices of unlawful wrongdoing by law 
enforcement. Where such investigations uncover reliable evidence of 
such unlawful practices, the Civil Rights Division should take 
effective measures to eradicate such practices, either with the 
voluntary cooperation of the subject police department, or through 
adversarial litigation pursuant to 42 U.S.C. Sec. 14141, if necessary. 
Moreover, criminal prosecutions may be warranted where the government 
has a reasonable prospect of proving beyond a reasonable doubt that law 
enforcement officers acted with specific intent to deprive a person of 
her federally protected rights while actin under the color of law. See 
18 U.S.C. Sec. 242.

    Question 13. Legal Services attorneys are prohibited by law from 
representing inmates. Aren't their services essential to protect basic 
rights. Doesn't the lack of effective representation encourage abuses. 
What role you believe the Civil Rights nivisinn should have in ensuring 
safe and humane conditions of confinement in jails and prisons?
    Answer. Lack of access to legal services hinders the cause of 
protecting basic civil rights. This is in part why in 1988 my then-
colleague A. Clayton Spencer and I represented pro bong the entire 
class of inmates in the custody of the Massachusetts Department of 
Corrections in a class action suit against the Department. The suit 
alleged violations of the inmates' due process rights under the United 
States Constitution and the Massachusetts Declaration of Rights in 
connection with the Department's drug surveillance and testing program, 
a program against which we obtained injunctive relief, until the 
injunction eventually was vacated by the Supreme Judicial Court of 
Massachusetts. See Gonzalez v. Fair, 407 Mass. 448 (1990).
    The Civil Rights Division (through its Special Litigation section) 
has statutory authority to investigate institutional conditions of 
confinement and file lawsuits to rPmcdy a pattern cr practice of 
unlawful conditions of confinement in state-operated facilities under 
the Civil Rights of Institutionalized Persons Act of 1980. Furthermore, 
the Division has similar responsibilities to seek judicial redress in 
situations where juvenile offenders are subjected to a pattern or 
practice of uunlawful behavior that violates their federally protected 
rights under the Violent Crime Control and Law Enforcement Act of 1994. 
If confirmed, I would enforce these important statutes.
                Questions Submitted by Senator Feingold
               civil rights experience & goals/priorities

    Question 1. The Civil Rights Division is responsible for enforcing 
the civil rights laws of our nation in areas such as education, 
employment, housing, voting rights, and disability rights. You have 
spent most of your legal career in criminal matters, as an Assistant 
U.S. Attorney, and in commercial litigation practice, as an associate 
and later a partner with various Boston law firms. It appears that you 
have no substantial experience enforcing civil rights laws. Can you 
tell this Committee how your experience has prepared you to undertake 
the responsibilities of the Assistant Attorney General for Civil 
Rights?
    Answer. I have been involved in civil rights, and dealt with civil 
rights-related issues, all my life. As a child, I grew up attending 
civil rights and community action program meetings with both of my 
parents, who--along with other committed people--were co-founders of 
the Schenectady, N.Y. branch of the NAACP. While in Schenectady, I 
served as co-chair of the Schenectady, N.Y. NAACP branch's Afro-
Academic, Cultural, Technological, and Scientific Olympics Program 
(``ACTSO''), which provides opportunities for high school students of 
color to demonstrate their academic talents and achievements in local, 
state and national competitions. During the year that I organized and 
raised money for this effort, the Schenectady NAACP branch sent five 
local high school students to the national competition in Denver, 
Colorado.
    While at Harvard Law School, I served as an editor of the Civil 
Rights Civil Liberties Law Review, and as President of the Harvard 
Defenders, a student public defender organization. During my second and 
third years of law school, I represented numerous indigent criminal 
defendants in the Roxbury (Boston), Dorchester (Boston), and East 
Boston district courts.
    Following law school, I clerked for the Honorable Joseph H. Young, 
United States District Judge, District of Maryland. During my 
clerkship, I assisted Judge Young in the preparation of two published 
civil rights decisions. See McAdoo v. Toll, 615 F. Supp. 1309 (D. Md. 
1985) (Title VII case discussed in response to Question No. 15(a)(1), 
Judiciary Committee Questionnaire), and Smith v. Montgomery County, 
MD., 607 F. Supp. 1303 (D. Md. 1985) (strip search case discussed in 
response to Question 15(a)(1), Judiciary Committee Questionnaire).
    As a practitioner, I have handled pro bono approximately five civil 
rights or civil rightsrelated cases as lead counsel. In fact, I have 
been lead counsel in two federal civil rights cases against police 
officers, who were alleged to have violated the constitutional rights 
of criminal defendants. In a third case, I was co-counsel in a state 
court civil rights class action brought against the Massachusetts 
Department of Corrections, a case that I argued from the lower court 
through to the Supreme Judicial Court of Massachusetts. See Responses 
to Question 15(b) and (c).
    As a federal prosecutor, I spent six years investigating, managing, 
and prosecuting a variety of federal (and state) criminai cases, 
including firearms and narcotics trafficking, homicide, bombing, and 
bank fraud cases. I also led an urban anti-violent crime initiative, 
which involved coordinating investigations and cases among numerous 
federal and state law enforcement agencies, including the Boston 
Police, Massachusetts State Police, Bureau of Alcohol, Tobacco and 
Firearms, Drug Enforcement Administration, United States Marshal 
Service, Suffolk County District Attorney Ralph Martin's Office, 
Massacl:usetts.Attorney General Scott Harshbarger's Office, and 
Massachusetts Attorney General Tom Reilly's Office.
    All of these experiences have enhanced my knowledge and 
understanding with respect to: (i) the fundamental importance of the 
rule of law; (ii) making informed and sensible judgments about the 
principled and fair application of the law to a given set of facts; 
(iii) how to prosecute complex cases successfully; (iv) setting 
investigative and prosecutorial priorities; (v) working with people, 
both in and out of law enforcement; (vi) deciding when to use 
litigation as a necessary enforcement tool, and when more cooperation-
based alternatives may be appropriate to achieve important governmental 
and societal objectives; and (vii) the need for vigorous, fair and 
sensible enforcement of our laws.

    Question 2. What do you believe are the greatest civil rights 
challenges facing our nation today? What steps would you expect to take 
to address these challenges?
    Answer. I believe that there are many civil rights challenges 
facing our nation today. They include, among other things: (i) ending 
unlawful racial profiling; (ii) ensuring faith and confidence in the 
fairness of law enforcement; (iii) opening up opportunities for all 
people, especially those who historically have been excluded; (iv) 
protecting the voting rights of all Americans; (v) protecting people 
from violence or threatened violence, especially where an immutable 
characteristic, an irrelevant aspect of an individual's personal life, 
or a person's exercise of a fundamental constitutional right serves as 
the impetus for violence or threatened violence against them; and (vi), 
lowering the temperature, and raising the level of ear national 
discourse about race.
    If confirmed, I would work with the Attorney General and the career 
staff of the Civil Rights Division to enforce existing federal law and 
implement civil rights initiatives (e.g., the Attorney General's racial 
profiling and voting rights initiatives).

    Question 3. What are your priorities for the Civil Rights Division? 
In what areas do you think the Division has been lacking or is in need 
of improvement?
    Answer. Out of respect for the Senate's role in giving advice and 
consent on my nomination, I have not consulted with the career staff of 
the Civil Rights Division to determine areas of improvement or to 
formulate enforcement priorities beyond those already outlined in these 
answers. I regard such consultations a prerequisite to informed 
decision making in this area. However, I share the Attorney General's 
commitment to the vigorous enforcement of voting rights laws, to 
eradicating racial profiling and worker trafficking, and to swift 
implementation of the President's New Freedom Initiative. If confirmed 
as Assistant Attorney General for Civil Rights, I would expect the 
Civil Rights Division to tackle, and effectiveiy deall with, the high 
priorities of this Administration.

    Question 4. Are there areas where you expect to lead the Civil 
Rights Division to take a different approach or set a different course 
than it has had for the last eight years under the previous 
Administration?
    Answer. Out of respect for the Senate's role in giving advice and 
consent on my nomination, I have not consulted with the career staff of 
the Civil Rights Division. I think that consultation with them is a 
prerequisite to informed decision making about approaches the Civil 
Rights Division should take with respect to particular issues. I note 
that the Attorney General has made clear that racial profiling, voting 
rights, worker trafficking and implementation of the New Freedom 
Initiative will be priorities for this Administration.

    Question 5. As you know, there is significant concern in the civil 
rights community and among minority populations generally that this 
Administration will not be as vigorous as the previous Administration 
in enforcing the civil rights laws. What assurances can you give this 
Committee that that will not be the case?
    Answer. Time and again the President and Attorney General have 
expressed their intentions to make civil rights enforcement a priority 
of this Administration. I would not be before this Committee as the 
President's nominee to head the Civil Rights Division if I did not 
think the President and Attorney General were sincere about their 
commitments in this area. I can assure the Committee that, if 
confirmed, I would, to the best of my ability, work strenuously to 
ensure that our nation's civil rights laws are enforced to protect the 
civil rights of all Americans--rich or poor, black, white or otherwise, 
religious or non-religious, gay or straight, able bodied or disabled, 
native or foreign born.
                  racial profiling & police misconduct

    Question 1. I believe one of the greatesi civil rights challenges 
facing our nation today is racial profiling by law enforcement agents. 
This practice has seriously eroded the important trust between the 
police and the communities they are charged to protect and serve. I was 
pleased when President Bush pledged earlier this year to end racial 
profiling in America. Attorney General Ashcroft has said he believes 
racial profiling is unconstitutional and has pledged to work to end 
this practice. I am working with Rep. John Conyers on legislation to 
eliminate this practice once and for all. You've spent a good part of 
your career as a prosecutor working with law enforcement officials to 
fight crime, particularly urban and youth violence.
    (a) Do you agree with the President and Attorney General that 
racial profiling is wrong and should be banned?
    Answer. Yes.

    Question (b). Do you agree that racial profiling is 
unconstitutional?
    Answer. Yes. The ;use of racial stereotypes as the basis for law 
enforcement action is wrong and unconstitutional.

    Question (c). Do you agree that the federal government has a 
responsibility to ensure that discriminatory police practices like 
racial profiling are eliminated, not only at the federal level, but at 
the state and local levels?
    Answer. Yes.

    Question 2. The Special Litigation Section of the Civil Rights 
Division has played an important role in helping to combat racial 
profiling and other police misconduct by state and local law 
enforcement agencies. Under the Violent Crime Control and Law 
Enforcement Act of 1994, or 42 U.S.C. ' 14141, the Justice Department 
can take legal action against a law enforcement agency that has engaged 
in a pattern or practice of conduct that deprives persons of their 
constitutional rights. In addition, under the Safe Streets Act of 1968, 
the Justice Department is authorized to intervene to eliminate a 
pattern or practice of discrimination based an race, color, religion, 
national origin or sex in connection with any law enforcement agency 
that receives financial assistance from the Department of Justice.(a) 
Have you had any experience with these statutes as an Assistant U.S. 
Attorney?
    Answer. These are civil statutes. I was assigned to the Criminal 
Division of the U.S. Attorney's Office and thus have not previously 
enforced these provisions.

    Question (b) Do you agree that Justice Department action pursuant 
to these statutes is an effective and necessary tool to combat 
discriminatory policing practices like racial profiling and other 
police misconduct?
    Answer. I agree that Justice Department enforcement of these 
statutes has proven to be an important and effective tool in combating 
police misconduct.

    Question 3. In addition to authority given to the Justice 
Department to investigate and prosecute civil rights violations by 
state and local law enforcement, certain of our civil rights laws also 
provide for private rights of action. For example, with thousands of 
law enforcement agencies across the country, the Special Litigation 
Section does not have the resources to investigate and pursue ali 
allegations of racial profiling. I understand that in private practice 
you represented some inmates in a federal civil rights class action 
challenging a state prison's drug testing program. You were acting in 
that case as a ``private attorney general.'' Do you agree that, in 
addition to the authority of the Justice Department to intervene, an 
effective protection and enforcement of our nation's civil rights laws 
has been the ability of individuals to pursue legal action against law 
enforcement officials, state actors or other wrongdoers?
    Answer. Yes. The case in which I represented the class of inmates 
in the custody of the Massachusetts Department of Corrections (``DOC'') 
was a state court class action. The case involved allegations that the 
DOC violated inmates' due process rights guaranteed by the United 
States Consutution and the Massachusetts Declaration of Rights.
                             voting rights
    Question 1. The Voting Rights Act is one of the most comprehensive 
civil rights statutes ever enacted, eliminating literacy tests and poll 
taxes, outlawing intimidation during the electoral process, and 
creating various methods for enforcing minority voting rights. Section 
2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, has been interpreted 
by the United States Supreme Court as prohibiting the dilution of 
minority voting strength and requiring that electoral district plans 
provide minority voters an equal opportunity to elect their candidates 
of choice. Thornburg v. Gingles, 478 U.S. 30 (1986). As a result of the 
Voting Rights Act and, especially Section 2, racial and ethnic 
minorities have enjoyed unparalleled opportunities to participate in 
the electoral process, cast meaningful votes, and elect their 
candidates of choice.
    (a) What is your position regarding whether compliance with Section 
2 of the Voting Rights Act can serve as a compelling justification 
supporting the need to avoid diluting minority voting strength during 
redistricting?
    Answer. Section 2 of the Voting Rights Act is a fundamental 
provision for protecting minority voting rights. Section 2 prohibits 
vote diiut:of, in redistricting and other contexts, just as Section 5 
prevents covered jurisdictions from implementing redistricting plans 
that dilute minority voting strength in a manner that has a 
retrogressive effect on minority voting strength. E.g., Reno v. Bossier 
Parish Schl. Bd., 528 U.S. 320, 335-36 (2000). As to whether Section 2 
compliance is a ``compelling'' interest, my understanding is that the 
Supreme Court has been willing to assume, without directly deciding, 
that Voting Rights Act compliance can be a compelling state interest. 
See, e.g., Bush v. Vera, 517 U.S. 952, 976-979 (1996). The use of race 
is also governed by the Court's decisions in Shaw v. Reno, Miller v. 
Johnson, and similar cases.
    If confirmed, I would ensure that federal voting laws, including 
Sections 2 and 5, are consistently and vigorously enforced according to 
the parameters set forth by the Supreme Court and the Voting Rights Act 
itself.

    Question (b) What is your position regarding the Department of 
Justice's responsibility and authority to enforce Section 2 of the 
Voting Rights Act?
    Answer. The Department of Justice, as a federal law enforcement 
agency with considerable resources, plays an important role in 
enforcing Section 2. If any jurisdiction imposes a practice or 
procedure to dilute minority voting strength, and the necessary 
preconditions exist for a viable dilution claim, see Thornburg v. 
Gingles, 478 U.S. 30, 50-51 (1986), that jurisdiction could be subject 
to suit under Section 2 and to an appropriate remedy, by injunction or 
otherwise. If confirmed as Assistant Attorney General, I will work to 
ensure that the Voting Rights Section of the Civil Rights, Division 
receives the necessary resources to vigorously enforce Section 2.

    Question 2. Confronted with ``unremitting and ingenious defiance of 
the Constitution,'' South Carolina v. Katzenbach, 383 U.S. 3015 309 
(1986), Congress enacted the Voting Rights Act of 1965 to ``banish the 
blight of racial discrimination in voting.'' Id. at 308. ``Congress 
concluded that the unsuccessful remedies which it had prescribed in the 
past would have to be replaced by sterner and more elaborate measures 
in order to satisfy the clear commands of the Fifteenth Amendment.'' 
Id. at 309. The Voting Rights Act, in particular Section 5 of the Act, 
represent the culmination of Congress' efforts to establish these new 
remedies designed to ``rid the country of racial discrimination in 
voting.'' Id. at 315.
    (a) In 2007, Congress will consider the extension of Section 5 of 
the Voting Rights Act, 42 U.S.C. ' 1973c. What is your position 
regarding the continued need for this civil rights provision?
    Answer. Section 5 continues to be the primary means of ensuring 
that covered jurisdictions preserve and promote minority voting 
strength. The decision to revisit Section 5 is a legislative 
prerogative. I can assure the Senator, however, that, if I am 
confirmed, the Civil Rights Division will take seriously its 
preclearance obligations under Section 5 for so long as Section 5 is 
existing law.

    Question (b) What is your position regarding the Department of 
Justice's respensibil--ity and authority to enforce Section 5 of the 
Voting Rights Act?
    Answer. The Voting Rights Act assigns to the Department of Justice 
the primary responsibility for enforcing Section 5. The Voting Rights 
Sectiun of the Civil Rights Division has authority to review 
redistrictingplans submitted for preclearance by covered jurisdictions. 
If I am confirmed, I will work to ensure that the Voting Rights Section 
receives the resources necessary to vigorously enforce Section 5.

    Question 3. Congress passed the National Voter Registration Act of 
1993 (the ``NVRA'') to dismantle obstacles to voter registration such 
as discriminatory voter purges and complicated, arbitrary voter 
registration procedures. The NVRA opened the electoral process by 
making voter registration more convenient and by simplifying the 
registration process, requiring states to provide voter registration 
at, for example, motor vehicle and many social service offices. After 
many years of declining voter registration, the NVRA established 
procedures designed to encourage voter participation throughout the 
country. It is clear these procedures have significantly increased 
voter registration.
    Indeed, the Federal Election Commission, the agency charged with 
reporting the impact of the NVRA on the administration of elections, 
reports that in 1996, over 27 million people were registered to vote 
pursuant to the statute. See Federal Election Commission's Report to 
the Congress on the Impact of the National Voter Registration Act of 
1993 on the Administration of Federal Elections, June 1997, at 27. 
Specifically, the Federal Election Commission noted that ``[t]he mail 
registration provisions of the NVRA [under which voters are permitted 
to register to vote by mail] caused very few problems for the States 
and accounted for nearly one third of all voter registration 
applications from 1995 through 1996.'' Id. at 1: Despite the success 
and the relative ease in implementing the statute, there have been 
legislative attempts over the years to amend the NVRA to remove many of 
the features which have made it most successful or to repeal the 
statute altogether.
    (a) What is your position regarding these legislative efforts?
    Answer. I am not specifically familiar with the findings of the 
Federal Election Commission or the legislative efforts to amend the 
NVRA. I do agree that increased voter participation is vital to the 
continuing health and vibrancy of our democracy.

    Question (b) What is your position regarding the Department of 
Justice's responsibility and authority to enforce the NVRA? What 
priority will you give this responsibility?
    Answer. The Department of Justice has authority to pursue 
declaratory and injunctive relief under the NVRA, and to prosecute 
those found in violation of its provisions. If confirmed as the 
Assistant Attorney General for Civil Rights, I would take seriously my 
obligation to see that the requirements of NVRA are enforced. I would 
make this, along with the enforcement of the Voting Rights Act, a 
priority.

    Question 4. The Department of Justice will have substantial 
responsibilities to enforce Section 5 of the Veting Rights Act, 42 
U.S.C. Sec. 1973c, as well as other voting rights provisions 
simultaneously. What are your priorities as Assistant Attorney General 
for Civil Rights among the various voting rights enforcement 
activities?
    Answer. Because of the redistricting efforts now ongoing in light 
of the 2000 census, reviewing redistricting plans submitted for 
preclearance under Section 5 will be an important and ongoing activity 
for the Voting Section. The recent allocation of additional lawyers to 
that Section will help greatly with this and other voting-related 
enforcement efforts. As to the proper order of priority among these 
efforts, out of respect for the advice and consent function of the 
Senate I have not been involved in the daily operation of the Voting 
Section (or the Civil Rights Division generally), and thus I am not yet 
sufficiently familiar with the Voting Section's current activities to 
say how best to allocate its resources.

    Question 5. Over four million Americans are prohibited from voting 
in this country because they are ex-felons. Approximately 1.4 million 
are African Americans--that's 13% of the adult male African American 
population. In Alabama and Florida, about 30 percent of African 
American males are prohibited from voting under their state laws.
    (a) Do you agree that the impact of felony disenfranchisement on 
minority populations is a civil rights issue?
    Answer. Any condition or event that adversely affects a protected 
class of Americans could be a civil rights issue. This is especially 
true when the adverse effect implicates rights as fundamental as the 
right to vote. So, yes, I believe this is a civil rights issue.

    Question (b) Will you agree to study this issue and consider 
undertaking appropriate civil rights enforcement action or proposing 
legislative remedies?
    Answer. Yes, I believe that this issue is worthy of study. If I am 
confirmed by the Senate for the position of Assistant Attorney General 
for Civil Rights, I would study the issue and would consider taking 
appropriate action. If confirmed, I also would enforce existing civil 
rights law without hesitation; proposing legislation, however, is not 
my prerogative as a law enforcement official.
                 Questions Submitted by Senator Schumer

    Question 1. If confirmed as Assistant Attorney General for the 
Civil Rights Division, will you give the enforcement of the laws 
against clinic violence and obstruction the same priority that it has 
been given in the last six years?

        Sec. Can you commit to enforce FACE, both civilly and 
        criminally, as vigorously as your predecessors? That is, can 
        you commit not to weaken the standards of prosecution or to 
        exclude categorically types of cases that have previously been 
        successful in the courts?

    Answer. I cannot speak authoritatively as to how vigorously the 
prior Administration enforced FACE. However, if confirmed as Assistant 
Attorney General for Civil Rights, it would be my job to enforce the 
nation's laws, of which the FACE statute is an important one. No woman 
seeking constitutionally protected services should fear being 
threatened or coerced. Accordingly, if the conduct of anyone violates 
the law regarding the access of women to reproductive health services, 
I would enforce the law vigorously.

         As Assistant Attorney General, will you allow 
        Department of Justice (DOJ) personnel whe have gained expertise 
        in the area of clinic access to continrle to work in this area 
        if they so desire?.

    Answer. Having served for several years as an Assistant United 
States Attorney, and having been a litigator for almost 17 years, I 
believe as a general matter that experience and expertise are important 
factors in decisions regarding personnel assignments.
    Out of respect for the Senate's advice and consent function, I have 
not reviewed, nor have had the benefit of, a careful review of the 
Department of Justice personnel who have gained expertise in the area 
of clinic access. I am unaware of any proposals to reassign such 
personnel and have no such plans of my own. It would not be appropriate 
for me to make any additional statements, howevef, concerning the 
future employment status of Department personnel whom I have not met, 
and with respect to whose performance I have no knowledge.

    Question 2. The National Task Force on Violence Against Health Care 
Providers. In response to violence against reproductive health care 
providers generally and the murder of Dr. Barnett Slepian specifically, 
Attorney General Janet Reno formed the National Task Force on Violence 
Against Health Care Providers in November 1998. Will you work to 
maintain the Department of Justice's Task Force on Violence Against 
Health Care Providers and work to ensure that it has the resources it 
reeds to cont;nue to be effective? Do you anticipate reducing the Task 
Force's resources in any way? How and why? (National Task Force on 
Violence Against Health Care Providers, Report on Federal Efforts to 
Prevent and Prosecute Clinic Violence 1998-2000,1]

         Will you commit to maintaining or increasing the size 
        of the Task Force?

    Answer. I believe that inter-agency coordination is an important 
part of effective law enforcement efforts. The National Task Force on 
Violence Against Health Care Providers has effectively coordinated law 
enforcement efforts related to FACE. If confirmed, I would seek to 
ensure that it has the resources necessary to continue its work.

         One of the Task Force's main objectives is to 
        coordinate national investigation and prosecution of incidents 
        of abortion violence, focusing on connections that may exist 
        between perpetrators of anti-abortion crimes. Will you continue 
        to support such efforts? [National Task Force on Violence 
        Against Health Care Providers, Report on Federal Efforts to 
        Prevent and Prosecute Clinic Violence 1998-2000,5]
    Answer. Out of respect for the Senate's role in giving advice and 
consent, I have not reviewed or assessed the details of the work of the 
Task Force. I do believe that it is important to coordinate enforcement 
of FACE on a national level and that the Task Force is an important 
vehicle for accomplishing this goal. I would continue those efforts.

    Question 3. Crack/Powder: Can you give me your views on the 
disparity in sentencing between crack and powder cocaine offenses?
    Answer. In United States v. Louis Andrade, I argued that the 
cocaine base sentencing guideline is constitutional, and prevailed in 
that argument in both the district court (Gertner, J.) and the United 
States Court of Appeals for the First Circuit. See 94 F.3d 10 (1st Cir. 
1996) (Lynch, J.). I agree with those decisions.
    I am concerned about the conditions that contribute to the number 
of young men of color who are convicted of selling crack cocaine, and 
sentenced under the cocaine base sentencing guideline. I am even more 
concerned about the fact that--as reflected in the congressional 
testimony in connection with the promulgation of the cocaine base 
sentencing guideline--disadvantaged, urban communities of color are 
disproportionately (indeed almost exclusively) devastated by the crack 
cocaine trade and violence associated with that trade. See United 
States v. Singleton, 29 F.3d 733, 740-41 (lst Cir.), cert. denied 1:5 
S.Ct. 647 (1994).
                 Ouestions Submitted by Senator Durbin
    Your bio states that as a member of the Boston U.S. Attorney's 
office, you were the office's Firearms Prosecution Coordinator, and you 
administered ``Operation Triggerlock,'' which is a national firearms 
prosecution initiative of the Justice Department. Yet, according to 
press accounts, since leaving the U.S. Attorney's office, you have 
represented the gun industry in your private practice.
    An article in the February 13, 1999, edition of the Boston Globe, 
discussed a court case in Brooklyn, New York, brought by families of 
shooting victims against gun manufacturers. While that was occurring, 
the City of Boston was planning to file a similar lawsuit against 
manufacturers. The article states that ``industry advocates say 
Boston's proposed suit is purely political.'' It then quotes you as 
saying, ```We've got a lower violent crime rate than we've had in 40 
years,''' said Ralph Boyd, former assistant US attorney and an adviser 
to the American Sports Shooting Council, an industry group. ``It didn't 
occur to anybody to sue firearms manufacturers then. This is 
preposterous.'''

    Question 1. Please explain how you came to represent the American 
[Shooting Sports] Council and describe the extent of your activities 
with this client.
    Answer. I did not represent the American Shooting Sports Council in 
any litigation. At the request of one of the members of the Council, I 
did make a presentation to members of the Council regarding threatened 
litigation against firearms manufacturers by the City of New Orleans, 
Louisiana and other cities.
    The Boston Globe article also quotes you as saying that the plan by 
the City of Boston to sue gun manufacturers is ``taxation and 
regulation by litigation. The city has an agenda they can't accomplish 
in the legislative forum, so they're going the judicial route to tax a 
product some people don't like.''

    Question 2. In the area of civil rights, history has demonstrated 
that one of the most effective ways to enforce civil rights laws is to 
regulate behavior by litigation. There are countless examples where the 
federal government has initiated suits against state and local 
governments as well as private entities to get them to change their 
discriminatory policies. Do you believe that it is appropriate for the 
government to ``regulate by litigation''? If no, why? If yes, explain 
in what situations do you believe it is appropriate?
    Answer. I believe that it is appropriate for the government to 
bring lawsuits to redress violations of law, especially where such 
litigation is expressly authorized by statute or settled common law 
principles. More specifically, it is appropriate for the government to 
bring lawsuits to induce local governments or private entities to 
eliminate illegal and discriminatory policies. For example, it is 
appropriate, and indeed the affirmative duty of the Civil Rights 
Division to bring actions to enforce a variety of laws, for example, 
the various titles of the Civil Rights Act of 1964 and the Educational 
Amendments of 1972, and the Voting Rights Act of 1965.

    Question 3. According to press accounts, you have apparently 
represented the tobacco industry in your law practice. Please explain 
who these clients were, and describe the extent of your activities with 
these clients.
    Answer. Goodwin Procter LLP has a long standing relationship with 
Philip Morris Incorporated. As a partner at Goodwin Procter, I worked 
with many other lawyers representing the company in litigation brought 
against it and other tobacco companies by the Attorney General of 
Massachusetts. In connection with that litigation I deposed state 
officials and assisted with general trial preparation. This case was 
settled pursuant to a Master Settlement Agreement between the tobacco 
companies and the attorneys general of the various litigating states.

    Question 4. If you are confirmed to this position, and cases 
involving the tobacco industry were to come before you, would you 
recuse yourself from those cases?
    Answer. Yes, I will follow the Department of Justice Guidelines for 
professional ethics and-conflicts of interest strictly and without 
hesitation. I understand that these will require my recusal from all 
matters involving Philip Morris Incorporated, and from all other 
matters concerning the effects of tobacco smoking on health.
    Though the vast majority of police carry out their duties 
responsibiy and professionally, the insidious practice of racial 
profiling continues to undermine public confidence in law enforcement 
and damages the credibility of police forces around the country. Most 
importantly, racial profiling creates an atmosphere of distrust and 
alienation that isolates broad segments of the American population.
    As you know, this issue affects federal, as well as state and local 
law enforcement activities. In fact, a GAO study of profiling practices 
of airline passengers concluded that the U.S. Customs Service was 
intrusively searching African American. women and other minorities for 
contraband at much higher rates than they searched other segments of 
the population.
    Specifically, GAO found that African American women were nearly 
three times as likely as African-American men to be strip-searched, 
even though they were only half as likely to be found carrying 
contraband. Furthermore, African American men and women were nearly 
nine times as likely, and Hispanic American men and women were nearly 
four times as likely, as White American men and women to be x-rayed, 
even though they were not more likely to be carrying contraband. 
Ironically, the women being targeted were statistically less likely 
than other passengers to be found carrying contraband.
    I have introduced legislation to specifically address the concerns 
raised in the GAO study and help the U.S. Customs Service make more 
effective use of its resources, and avoid unwarranted searches.

    Question 5. Do you agree that the racial profiling practices of the 
U.S. Customs Service should be eliminated?
    Answer. No law enforcement agency should improperly target private 
citizens based on race, color, or ethnicity. This includes the U.S. 
Customs Service. To the extent such practices occur, they should be 
aggressively eliminated. While I am not familiar with the GAO study the 
Senator is referring to, I would look forward to discussing this issue 
with the career attorneys at the Civil Rights Division and taking 
appropriate action.

    Question 6. Will you support my legislation and urge a favorable 
statement of the Administration's position on this proposal?
    Answer. If confirmed, I would work to fulfill the President's and 
the Attorney General's commitment to take all reasonable and 
appropriate steps to end racial profiling. I would welcome the 
opportunity to work with you and other Senators in support of this 
important effort. At this time, however, it would not be proper for me 
to take a policy position on proposed legislation without the benefit 
of careful study and consideration of the views of others in the 
Department of Justice and the Administration.

    Question 7. Do you believe that invidious discrimination, in the 
form of racial profiling, occurring at any and all stages of the 
criminal justice process (i.e., stops, investigations, arrests, 
charging offenses, prosecutions, and sentencings including penalties 
and incarceration terms) should be given zero tolerance? What 
suggestions or solutions would you recommend to eradicate this 
pervasive problem?
    Answer. Racial profiling can occur at all stages of the criminal 
justice system. Attorney General Ashcroft--at the President's 
direction--has made this a top Justice Department priority. I share 
that view.
    In consultation with the Attorney General, I would suggest that 
racial profiling be addressed on several levels. First, we need more 
hard data on this issue. We need careful study to determine 
definitively the scope, magnitude, permutations and manifestations of 
the problem. The Attorney General has asked Congress to enact 
legislation authorizing the Department of Justice to collect data for 
this purpose, and the Civil Rights Division should be involved in this 
effort. Second, the Civil Rights Division should make certain that 
specific procedures are in place under which individual complaints of 
racial profiling are given expedited review by Division attorneys. 
Third, the Division should be ready to work cooperatively with local 
law enforcement by providing technical assistance regarding data 
collection, data interpretation and analysis, training, policy 
development, and community outreach. Where a pattern or practice of 
profiling exists and local law enforcement is neither cooperative nor 
taking meaningful steps to eliminate illegal practices, an enforcement 
action pursuant to 42 U.S.C. Sec. 14141 must remain an option.

    Question 8. What are your views on affirmative action, and how do 
you define affirmative action?
    Answer. Although I have not developed a specific personal 
definition, generally speaking I believe deeply in proactive efforts to 
break down barriers to opportunity, and also to provide opportunities--
first and foremost--for disadvantaged and needy people, regardless of 
race, religion, ethnicity or gender. In my view, assisting peopie in 
need and people who are disadvantaged is one of the first obligations 
of citizenship, and of government.

    Question 9. Do you believe your views on affirmative action are 
consistent with those of President Bush and Attorney General Ashcroft? 
If not, how do yeu plan to reconcile such conflicting views as the head 
of the Civil Rights Division?
    Answer. I agree with the President's and Attorney General's 
commitments to break down racial barriers, ensure effective access to 
opportunity for all people, and to open up opportunities so that no 
person is left behind.
    To the extent that differences may emerge and manifest themselves 
in competing views about legal positions the Department of Justice 
should take in a particular case, or with respect to specific 
legislation, I would do as I always do; I would marshal every resource 
reasonably available to me, and make as well reasoned, sincere, and 
respectful argument as I am able in a determined effort to persuade.

    Question 10. Do you believe hate crimes are a problem today? Are 
the current federal and state laws against hate crimes sufficient to 
prosecute all the hate crimes committed in our country?
    Answer. Yes, hate crimes are a problem today, and if confirmed I 
would work hard to fulfill the Attorney General's pledge to take all 
reasonable and appropriate steps to combat them. at the federal level 
and where appropriate to assist state and local law enforcement 
agencies to combat them at the local level. This would include a 
careful study of how best to combat these crimes, and what the federal 
government's role should be in achieving this important objective.
    Whatever the federal government's ultimate role in addressing this 
serious problem, either through further federal legislation, 
subsidization of state law enforcement efforts, or both, that role 
should reflect--and send a clear and unequivocal message about--the 
extent of our unwillingness to tolerate this pernicious form of 
criminal activity.
    I have not undertaken a multi state review of all of the evolving 
state laws against biasmotivated crimes. I am however, familiar with 18 
U.S.C. '' 245 (bias-motivated violence directed at school attendance, 
seeking public employment, and using public facilities or 
accommodations), and 247 (bias-motivated conduct obstructing religious 
freedom), and 42 U.S.C. ' 3631 (bias-motivated violence directed at 
enjoyment of housing). If confirmed, I would consult with the career 
prosecutors at the Civil Rights Division's Criminal Section to 
identify, to the extent possible, the circumstances in which hate 
crimes are not adequately prosecuted under these and other existing 
federal and state laws.

    Question 11. Would you favor expanding federal hate crimes 
legislation to include vict--ms who Pre targeted based on their sexual 
orientation, gender, or disability? Please explain in detail.
    Answer. All Americans should be protected by our laws, including 
those targeted out of hate. If cop--firmed, I would welcome the 
opportunity to work with you and other Senators on these issues. At 
this time, however, it would not be proper for me to state a policy 
positiop--on such a measure without the benefit of careful study and 
the views of others in the Department of Justice and the 
Administration.

    Question 12. A ban on so-called partial birth abortions has been a 
very hot topic in Congress for a number of years. Many of us believe 
that this ban should include an exception for the health of the woman, 
as well as her life. The Supreme Court in Stenberg v. Carhardt struck 
down a Nebraska law that purported to ban these abortions, but which 
did not provide an exception for the health of the mother. What are 
your views generally on partial birth abortions?
    Answer. The Supreme Court addressed the constitutional limitations 
on laws banning so-called ``partial birth abortions'' in Stenberg v. 
Carhardt. If confirmed, I would follow the law, i.e., the Supreme 
Court's instruction on this and any other matter that came before me as 
Assistant Attorney General for Civil Rights.

    Question 13. If confirmed, will you give the enforcement of laws 
against reproductive healthcare clinic violence and obstruction the 
same high level of priority that it was given under the previous 
administration?
    Answer. I cannot speak authoritatively about the leve, of priority 
given to such enforcement under the previous administration. However, 
if confirmed as Assistant Attorney General for Civil Rights, it would 
be my job to enforce the Liation's laws, of which the FACE statute is 
an important one. No woman seeking constitutionally protected services 
should fear being threatened or coerced. Accordingly, if the conduct of 
anyone violates the law regarding the access of women to reproductive 
health services, I would enforce the law vigorously.

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