[Senate Hearing 107-584]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 107-584, Pt. 5



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION




                                 PART 5


                          Serial No. J-107-23


         Printed for the use of the Committee on the Judiciary

                       U. S. GOVERNMENT PRINTING OFFICE
88-116                         WASHINGTON : 2003
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001


                      COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director

                            C O N T E N T S


                        THURSDAY, AUGUST 1, 2002


Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prepared statement...........................................   315
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   318
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     2
    prepared statement...........................................   319
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   323


Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York presenting Reena Raggi, Nominee to be Circuit Judge 
  for the Second Circuit.........................................     5
Gramm, Hon. Phil, a U.S. Senator from the State of Texas 
  presenting Ronald H. Clark, Nominee to be District Judge for 
  the Eastern District of Texas..................................     2
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah 
  presenting Lawrence J. Block, Nominee to be Judge for the 
  United States Court of Federal Claims..........................    47
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Ronald H. Clark, Nominee to be District Judge 
  for the Eastern District of Texas..............................     4
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting James Knoll Gardner, Nominee to be 
  District Judge for the Eastern District of Pennsylvania........     3
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Reena Raggi, Nominee to be Circuit Judge for 
  the Second Circuit.............................................     7
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama 
  presenting Lawrence J. Block, Nominee to be Judge for the 
  United States Court of Federal Claims..........................    50
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting James Knoll Gardner, Nominee to be 
  District Judge for the Eastern District of Pennsylvania........    45

                       STATEMENTS OF THE NOMINEES

Block, Lawrence J., Nominee to be Judge for the United States 
  Court of Federal Claims........................................    47
    Questionnaire................................................   228
Clark, Ronald H., Nominee to be District Judge for the Eastern 
  District of Texas..............................................    46
    Questionnaire................................................   186
Gardner, James Knoll, Nominee to be District Judge for the 
  Eastern District of Pennsylvania...............................    46
    Questionnaire................................................    61
Raggi, Reena, Nominee to be Circuit Judge for the Second Circuit.     3
    Questionnaire................................................     9

                         QUESTIONS AND ANSWERS

Responses of Reena Raggi to questions submitted by Senator 
  Sessions.......................................................   264
Responses of Lawrence J. Block to questions submitted by Senator 
  Leahy..........................................................   266
Responses of Lawrence J. Block to questions submitted by Senator 
  Durbin.........................................................   273
Responses of Lawrence J. Block to questions submitted by Senator 
  Feingold.......................................................   279
Responses of Ronald H. Clark to questions submitted by Senator 
  Leahy..........................................................   288
Responses of Ronald H. Clark to questions submitted by Senator 
  Durbin.........................................................   292
Responses of James Knoll Gardner to questions submitted by 
  Senator Leahy..................................................   296
Responses of James Knoll Gardner to questions submitted by 
  Senator Durbin.................................................   308

                       SUBMISSIONS FOR THE RECORD

Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania, statement of support for James Knoll Gardner, 
  Nominee to be District Judge for the Eastern District of 
  Pennsylvania...................................................   327
Toomey, Patrick J., a Representative in Congress from the State 
  of Pennsylvania, statement of support for James Knoll Gardner, 
  Nominee to be District Judge for the Eastern District of 
  Pennsylvania...................................................   328

                     WEDNESDAY, SEPTEMBER 18, 2002

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.   329
    prepared statement...........................................   745
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   365


Bennett, Hon. Robert, a U.S. Senator from the State of Utah 
  presenting Michael W. McConnell, Nominee to be Circuit Judge 
  for the Tenth Circuit..........................................   331
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware presenting Kent A. Jordan, Nominee to be District 
  Judge for the District of Delaware.............................   346
Carper, Hon. Thomas, a U.S. Senator from the State of Delaware 
  presenting Kent A. Jordan, Nominee to be District Judge for the 
  District of Delaware...........................................   336
Corzine, Hon. Jon, a U.S. Senator from the State of New Jersey 
  presenting William J. Martini, Nominee to be District Judge for 
  the District of New Jersey.....................................   337
Frist, Hon. William, a U.S. Senator from the State of Tennessee 
  presenting Thomas W. Phillips, Nominee to be District Judge for 
  the Eastern District of Tennessee..............................   335
Gramm, Hon. Phil, a U.S. Senator from the State of Texas 
  presenting Alia Moses Ludlum, Nominee to be District Judge for 
  the Western District of Texas..................................   334
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah 
  presenting Michael W. McConnell, Nominee to be Circuit Judge 
  for the Tenth Circuit..........................................   341
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting Alia Moses Ludlum, Nominee to be District 
  Judge for the Western District of Texas........................   334
Matheson, Hon. Jim, a Representative in Congress from the State 
  of Utah presenting Michael W. McConnell, Nominee to be Circuit 
  Judge for the Tenth Circuit....................................   340
Thompson, Hon. Fred, a U.S. Senator from the State of Tennessee 
  presenting Thomas W. Phillips, Nominee to be District Judge for 
  the Eastern District of Tennessee..............................   339

                       STATEMENTS OF THE NOMINEES

Jordan, Kent A., Nominee to be District Judge for the District of 
  Delaware.......................................................   435
    Questionnaire................................................   448
Ludlum, Alia Moses, Nominee to be District Judge for the Western 
  District of Texas..............................................   435
    Questionnaire................................................   487
Martini, William J., Nominee to be District Judge for the 
  District of New Jersey.........................................   436
    Questionnaire................................................   511
McConnell, Michael W., Nominee to be Circuit Judge for the Tenth 
  Circuit........................................................   349
    Questionnaire................................................   397
Phillips, Thomas W., Nominee to be District Judge for the Eastern 
  District of Tennessee..........................................   436
    Questionnaire................................................   580
White, Jeffrey S., Nominee to be District Judge for the Northern 
  District of California.........................................   436
    Questionnaire................................................   612

                         QUESTIONS AND ANSWERS

Responses of Michael W. McConnell to questions submitted by 
  Senator Biden..................................................   644
Responses of Michael W. McConnell to questions submitted by 
  Senator Durbin.................................................   649
Responses of Michael W. McConnell to questions submitted by 
  Senator Kennedy................................................   655
Responses of Michael W. McConnell to questions submitted by 
  Senator Leahy..................................................   674
Responses of William J. Martini to questions submitted by Senator 
  Leahy..........................................................   683

                       SUBMISSIONS FOR THE RECORD

Alschuler, Albert W., Chicago Tribune, September 18, 2002, 
  commentary.....................................................   686
Amar, Akhil Reed and Vikram David Amar, February 8, 2002, letter.   688
Boxer, Hon. Barbara, a U.S. Senator from the State of California, 
  statement in support of Jeffrey S. White, Nominee to be 
  District Judge for the Northern District of California.........   691
Bradley, Gerald V., Professor of Law, Notre Dame Law School, 
  Notre Dame, Indiana, letter....................................   692
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, statement in support of Jeffrey S. White, Nominee 
  to be District Judge for the Northern District of California...   694
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  statement in support of Michael W. McConnell, Nominee to be 
  Circuit Judge for the Tenth District...........................   700
Kagan, Elena, Professor of Law, Harvard Law School, Cambridge, 
  Massachusetts, letter..........................................   705
Kmiec, Douglas W., Los Angeles Times, September 17, 2002, article   706
Law professors and legal scholars, joint letter..................   707
Laycock, Douglas, New York Times, September 18, 2002, article and 
  attachments....................................................   736
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service 
  Professor of Law, University of Chicago Law School, Chicago, 
    letter.......................................................   748
    Wall Street Journal, September 17, 2002, article.............   750
Torricelli, Hon. Robert G., a U.S. Senator from the State of New 
  Jersey, statement in support of William J. Martini, Nominee to 
  be District Judge for the District of New Jersey...............   751
Tribe, Lawrence H., June 22, 2001, letter........................   752
Wall Street Journel, September 18, 2002, editorial...............   753

                      THURSDAY, SEPTEMBER 26, 2002

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....   829
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.   787
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   769
    prepared statement...........................................  1121
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   788
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared 
  statement......................................................  1150
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................  1173
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky.   798
    prepared statement...........................................  1179
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................   764
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   792
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................  1268


Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Miguel Estrada, Nominee to be Circuit Judge for the 
  District of Columbia Circuit...................................   756
Corzine, Hon. Jon, a U.S. Senator from the State of New Jersey 
  presenting Stanley Chesler and Freda Wolfson, Nominees to be 
  District Judges for the District of New Jersey.................   761
Dorgan, Hon. Byron, a U.S. Senator from the State of North Dakota 
  presenting Daniel Hovland, Nominee to be District Judge for the 
  District of North Dakota.......................................   762
Gramm, Hon. Phil, a U.S. Senator from the State of Texas 
  presenting James Kinkeade, Nominee to be District Judge for the 
  Northern District of Texas.....................................   760
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa 
  presenting Linda Reade, Nominee to be District Judge for the 
  Northern District of Iowa......................................   758
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa 
  presenting Linda Reade, Nominee to be District Judge for the 
  Northern District of Iowa......................................   759
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of 
  Texas presenting James Kinkeade, Nominee to be District Judge 
  for the Northern District of Texas.............................   760
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting Miguel Estrada, Nominee to be Circuit Judge for the 
  District of Columbia Circuit...................................   757

                       STATEMENTS OF THE NOMINEES

Chesler, Stanley, Nominee to be District Judge for the District 
  of New Jersey..................................................   871
    Questionnaire................................................   880
Estrada, Miguel, Nominee to be Circuit Judge for the District of 
  Columbia Circuit...............................................   777
    Questionnaire................................................   845
Hovland, Daniel, Nominee to be District Judge for the District of 
  North Dakota...................................................   872
    Questionnaire................................................   916
Kinkeade, James, Nominee to be District Judge for the Northern 
  District of Texas..............................................   872
    Questionnaire................................................   946
Reade, Linda, Nominee to be District Judge for the Northern 
  District of Iowa...............................................   873
    Questionnaire................................................   984
Wolfson, Freda, Nominee to be District Judge for the District of 
  New Jersey.....................................................   874
    Questionnaire................................................  1023

                         QUESTIONS AND ANSWERS

Responses of Miguel Estrada to questions submitted by Senator 
  Durbin.........................................................  1060
Responses of Miguel Estrada to questions submitted by Senator 
  Kennedy........................................................  1067
Response of Stanley Chesler to a question submitted by Senator 
  Schumer........................................................  1073
Responses of Daniel Hovland to questions submitted by Senator 
  Leahy..........................................................  1074
Response of Daniel Hovland to a question submitted by Senator 
  Schumer........................................................  1076
Responses of James Kinkeade to questions submitted by Senator 
  Leahy..........................................................  1077
Response of James Kinkeade to a question submitted by Senator 
  Schumer........................................................  1079
Responses of Linda Reade to questions submitted by Senator Leahy.  1080
Response of Linda Reade to a question submitted by Senator 
  Schumer........................................................  1082
Response of Freda Wolfson to a question submitted by Senator 
  Schumer........................................................  1083

                       SUBMISSIONS FOR THE RECORD

Amado, Richard S., President and CEO, Charo Community Development 
  Corporation, Los Angeles, California, letter...................  1084
American GI Forum of the United States, Samuel Calderon, Chief 
  Operating Officer, Seattle, Washington, letter.................  1085
Association for the Advancement of Mexican Americans, Jacob 
  Monty, Chair and CEO and Gilberto Moreno, President, Houston, 
  Texas, letter..................................................  1086
Bonilla, Hon. Henry, a Representative in Congress from the State 
  of Texas, Hon. Lincoln Diaz-Balart, a Representative in 
  Congress from the State of Florida, and Hon. Ileana Ros-
  Lehtinen, a Representative in Congress from the State of 
  Florida, joint letter..........................................  1087
Campos, Roger A., Esq., Executive Director, Minority Business 
  Roundtable, Washington, D.C., letter...........................  1089
Carona, Michael S., Sheriff-Coroner, County of Orange, 
  California, letter.............................................  1091
Centro de la Comunidad Unida, Walter Sava, Executive Director, 
  Milwaukee, Wisconsin, letter...................................  1092
Christian Community Center World Evangelical Church, Oscar 
  Cardoza, Senior Pastor, San Pablo, California, letter..........  1093
Colleagues of Mr. Estrada in the Office of Solicitor General, 
  joint letter...................................................  1094
Congregacion Cristiana Y Misionera ``Fe Y Alabanza'', Rev. Felix 
  E. Gonzalez, Sr., Senior Pastor, Arlington, Virginia, letter...  1098
Cuban American National Foundation, Jorge Mas Santos, Chairman, 
  Washington, D.C.:
    May 31, 2002, letter.........................................  1099
    September 23, 2002, letter...................................  1100
Cuban-American Voters National Unity Committee, Jose Luis 
  Fernandez, Press Secretary, Los Angeles, California, letter....  1101
De La Cruz Int'l. Ministries, Inc., Rev. Reyna Cruz, President, 
  Bell Gardens, California, letter...............................  1102
Department of Justice, Office of Legislative Affairs, Washington, 
    Robert Raben, Assistant Attorney General, January 27, 2000, 
      letter.....................................................  1103
    Daniel J. Bryant, Assistant Attorney General, June 5, 2002, 
      letter.....................................................  1110
Doyle, James J., III, Attorney at Law, Rich and Henderson, P.C., 
  Annapolis, Maryland, letter....................................  1112
Federation of Mayors of Puerto Rico, Hector Oneill, President and 
  Carlos Mendez, Vice President, Guaynabo, Puerto Rico, letter...  1113
Former heads of the Office of Solicitor General, joint letter....  1114
Fraternal Order of Police, Steve Young, National President, 
  Washington, D.C., letter.......................................  1116
Fuentes-Agostini, Jose A., Attorney at Law, Washington, D.C., 
  letter.........................................................  1117
Gonzales, Alberto R., Counsel to the President, The White House, 
  Washington, D.C.:
    September 17, 2002, letter...................................  1118
    Washington Post, September 26, 2002, article.................  1119
Greenberg, Daniel L., Attorney-in-Chief, Legal Aid Society, New 
  York, New York, letter.........................................  1120
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah:
    September 24, 2002, ``Dear Colleague'' letter and attachment.  1126
    Wall Street Journal, August 6, 2002, letter to the editor....  1129
Hispanic Bar Association of the District of Columbia, Jessica R. 
  Herrera, President, Washington, D.C., letter...................  1130
Hispanic Bar Association of Virginia, John L. Machado, President, 
  Fairfax, Virginia, letter......................................  1132
Hispanic Business Roundtable, Mario Rodriguez, President, San 
  Clemente, California, letter...................................  1133
Hispanic Chamber of Commerce of Greater Cincinnati, Edgar E. 
  Loyd, Board of Directors, Cincinnati, Ohio, letter.............  1134
Hispanic Chamber of Commerce of Greater Kansas City, Michael L. 
  Barrera, Chairman, Kansas City, Missouri, letter...............  1135
Hispanic Chamber of Commerce of Wisconsin, Maria Monreal-Cameron, 
  President & CEO, Milwaukee, Wisconsin, letter..................  1136
Hispanic Contractors of America, Inc., Paul Rodriguez, Chairman, 
  Kansas City, Missouri, letter..................................  1137
Hispano Chamber of Commerce de Las Cruces, Jenny Segura, 
  Executive Director, Las Cruces, New Mexico, letter.............  1138
Irizarry, Dora L., former New York State Court of Claims Judge, 
  letter.........................................................  1139
Joy, Leonard F., Attorney-in-Charge, Legal Aid Society, New York, 
  New York, letter...............................................  1141
Judicial Selection Monitoring Project, Free Congress Foundation, 
  Washington, D.C., letter.......................................  1143
Klain, Ronald A., Attorney at Law, O'Melveny & Myers LLP, 
  Washington, D.C., letter.......................................  1147
La Amistad, Rev. V. Martin Garcia, Executive Regional Director, 
  Anahaim, California, letter....................................  1157
La Bella, Charles G., Attorney at Law, McKenna & Cuneo, L.L.P., 
  San Diego, California..........................................  1158
Latino Coalition, Robert G. de Posada, President, Washington, 
  D.C., letter...................................................  1160
League of United Latin American Citizens, Rick Dovalina, National 
  President, Washington, D.C., letter............................  1171
League of United Latin American Citizens, State of Florida, 
  Armando V. Pomar, Florida State Director, Miami, Florida, 
  letter.........................................................  1172
Litt, Robert S., Washington, D.C., letter........................  1177
Memoranda for the Solicitor General:
    memorandum dated December 4, 1974............................  1186
    memorandum dated December 2, 1976............................  1214
    memorandum dated December 3, 1976............................  1237
    memorandum dated January 7, 1977.............................  1239
Mexican American Grocers Association, Steven A. Soto, President & 
  CEO, Los Angeles, California, letter...........................  1254
Montoya, Ronald E., President/CEO, PlastiComm Industries, Inc., 
  Denver, Colorado, letter.......................................  1255
Moss, Randolph D., letter........................................  1256
National Association of Small Disadvantaged Businesses, Henry T. 
  Wilfong, Jr., President, Silver Spring, Maryland, letter.......  1258
National Troopers Coalition, Michael F. Canning, Director, 
  Annapolis, Maryland, statement.................................  1259
New Harvest Christian Fellowship, Rev. Richard M. Salazar, Senior 
  Pastor and President, Norwalk, California, letter..............  1260
Nueva Esperanza, Bobbie Dunn Quintanilla, Glendale City, 
  California, letter.............................................  1261
Obermaier, Otto G., New York, New York, letter...................  1262
Republican National Hispanic Assembly, Massey Villarreal, 
  National Chairman, Washington, D.C., letter....................  1264
Sacramento Spanish Ministries Association, Rev. Ernesto M. 
  Santillana, Chairman, Sacramento, California, letter...........  1265
Southwest Florida Hispanic Chamber of Commerce, Leonardo Garcia, 
  Executive Director, Fort Myers, Florida, letter................  1266
Straight Path Ministries, Pascual Gonzalez, President, Anaheim, 
  California, letter.............................................  1267
Torricelli, Hon. Robert G., a U.S. Senator from the State of New 
  Jersey, statement in support of Freda Wolfson and Stan Chesler, 
  Nominees to be District Judges for the District of New Jersey..  1270
Trustees of the University of Pennsylvania, Justice Talking, 
  transcript.....................................................  1271
United States Hispanic Chamber of Commerce, Washington, D.C.:
    Elizabeth Lisboa-Farrow, Chair, Board of Directors, letter...  1289
    George Herrera, President & CEO, letter......................  1292
U.S. Hispanic Contractors Association, Frank Fuentes, Chairman, 
  Austin, Texas, letter..........................................  1293
Wall Street Journal, September 26, 2002, opinion.................  1294
Warner, Hon. John W., a U.S. Senator from the State of Virginia, 
  statement in support of Miguel Estrada, Nominee to be Circuit 
  Judge for the District of Columbia Circuit.....................  1295
Waxman, Seth P., Attorney at Law, Wilmer, Cutler & Pickering, 
  Washington, D.C., letter.......................................  1301

                        MONDAY, OCTOBER 7, 2002

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.  1303


Chafee, Hon. Lincoln, a U.S. Senator from the State of Rhode 
  Island presenting William E. Smith, Nominee to be District 
  Judge for the District of Rhode Island.........................  1306
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama 
  presenting Mark E. Fuller, Nominee to be District Judge for the 
  Middle District of Alabama.....................................  1304
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama 
  presenting Mark E. Fuller, Nominee to be District Judge for the 
  Middle District of Alabama.....................................  1304

                       STATEMENTS OF THE NOMINEES

Collyer, Rosemary Mayers, Nominee to be District Judge for the 
  District of Columbia...........................................  1309
    Questionnaire................................................  1328
Fuller, Mark Everett, Nominee to be District Judge for the Middle 
  District of Alabama............................................  1309
    Questionnaire................................................  1364
Klausner, Robert Gary, Nominee to be District Judge for the 
  Central District of California.................................  1311
    Questionnaire................................................  1406
Kugler, Robert Byron, Nominee to be District Judge for the 
  District of New Jersey.........................................  1309
    Questionnaire................................................  1432
Leighton, Ronald Bruce, Nominee to be District Judge for the 
  Western District of Washington.................................  1309
    Questionnaire................................................  1452
Linares, Jose Luis, Nominee to be District Judge for the District 
  of New Jersey..................................................  1310
    Questionnaire................................................  1483
Smith, William Edward, Nominee to be District Judge for the 
  District of Rhode Island.......................................  1310
    Questionnaire................................................  1522

                       SUBMISSIONS FOR THE RECORD

Cantwell, Hon. Maria, a U.S. Senator from the State of 
  Washington, letter in support of Ronald B. Leighton, Nominee to 
  be District Judge for the Western District of Washington.......  1556
Corzine, Hon. Jon S., a U.S. Senator from the State of New 
  Jersey, letter in support of Robert B. Kugler and Jose L. 
  Linares, Nominees to be District Judges for the District of New 
  Jersey.........................................................  1557
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, letter in support of Robert Gary Klausner, Nominee 
  to be District Judge for the Central District of California....  1559
Torricelli, Hon. Robert, a U.S. Senator from the State of New 
  Jersey, letter in support of Robert B. Kugler and Jose L. 
  Linares, Nominees to be District Judges for the District of New 
  Jersey.........................................................  1564


Block, Lawrence J., Nominee to be Judge for the United States 
  Court of Federal Claims........................................    47
Chesler, Stanley, Nominee to be District Judge for the District 
  of New Jersey..................................................   871
Clark, Ronald H., Nominee to be District Judge for the Eastern 
  District of Texas..............................................    46
Collyer, Rosemary Mayers, Nominee to be District Judge for the 
  District of Columbia...........................................  1309
Estrada, Miguel, Nominee to be Circuit Judge for the District of 
  Columbia Circuit...............................................   777
Fuller, Mark Everett, Nominee to be District Judge for the Middle 
  District of Alabama............................................  1309
Gardner, James Knoll, Nominee to be District Judge for the 
  Eastern District of Pennsylvania...............................    46
Hovland, Daniel, Nominee to be District Judge for the District of 
  North Dakota...................................................   872
Jordan, Kent A., Nominee to be District Judge for the District of 
  Delaware.......................................................   435
Kinkeade, James, Nominee to be District Judge for the Northern 
  District of Texas..............................................   872
Klausner, Robert Gary, Nominee to be District Judge for the 
  Central District of California.................................  1311
Kugler, Robert Byron, Nominee to be District Judge for the 
  District of New Jersey.........................................  1309
Leighton, Ronald Bruce, Nominee to be District Judge for the 
  Western District of Washington.................................  1309
Linares, Jose Luis, Nominee to be District Judge for the District 
  of New Jersey..................................................  1310
Ludlum, Alia Moses, Nominee to be District Judge for the Western 
  District of Texas..............................................   435
Martini, William J., Nominee to be District Judge for the 
  District of New Jersey.........................................   436
McConnell, Michael W., Nominee to be Circuit Judge for the Tenth 
  Circuit........................................................   349
Phillips, Thomas W., Nominee to be District Judge for the Eastern 
  District of Tennessee..........................................   436
Raggi, Reena, Nominee to be Circuit Judge for the Second Circuit.     3
Reade, Linda, Nominee to be District Judge for the Northern 
  District of Iowa...............................................   873
Smith, William Edward, Nominee to be District Judge for the 
  District of Rhode Island.......................................  1310
White, Jeffrey S., Nominee to be District Judge for the Northern 
  District of California.........................................   436
Wolfson, Freda, Nominee to be District Judge for the District of 
  New Jersey.....................................................   874



                        THURSDAY, AUGUST 1, 2002

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:00 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin presiding.
    Present: Senators Durbin, Schumer, Hatch, Specter, and 

                   FROM THE STATE OF ILLINOIS

    Senator Durbin. I want to welcome you all and thank you for 
    There is a force more powerful than a locomotive, and it is 
an adjourning Congress, and we are now in the closing hours of 
the session and many members are anxious to get back to their 
States and their families and other plans. We are going to have 
a series of roll calls that begin at about three o'clock, maybe 
a few minutes before, that may take up our time until four 
o'clock, or even later.
    It is my intention to try to move with dispatch through 
this portion of the hearing so that we can get everybody 
considered today. Many of you have made great sacrifices to be 
here and I do not want to put this off any period of time or 
delay you in your efforts.
    Our colleagues are going to join us in the beginning here 
to say kind words of praise, and I would ask my friend, Senator 
Gramm, and all who are here to suppress the urge to cover the 
nominees with great praise so that we might be able to actually 
have a hearing and consider them today before we are forced to 
go vote and adjourn.
    Today marks the 23rd judicial nomination hearing since the 
Senate reorganization took place less than 13 months ago. The 
Senate, under Democratic leadership, has now confirmed 64 
Federal judges, including 13 to the U.S. Courts of Appeals. 
Fourteen more nominees have been reported out of committee and 
will likely be confirmed in the days and weeks ahead.
    I will put the rest of this statement in the record. I am 
proud of the record of Chairman Leahy on this committee and am 
happy to work with him. I am hoping that we can move through 
these nominees today with dispatch, and to start that ball 
rolling I will now defer to my colleague, Senator Hatch, for 
his opening remarks.
    [The prepared statement of Senator Durbin appears as a 
submission for the record.]

                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman, and I think what I 
will do is defer my comments. We are just very pleased to have 
all of you. We welcome you here. We are proud of each and every 
one of you who has been nominated for a judgeship.
    In particular, we are very proud of Larry Block, who has 
served this committee well and who has been nominated for the 
Court of Claims, and we are very pleased that he is having his 
hearing today and we expect all to go well.
    So with that, we will just save the time and get right on 
with it.
    Senator Durbin. Thank you very much, Senator Hatch.
    Senator Hatch. And we will put our statements in the 
    Senator Durbin. Both of our statements will be entered into 
the record in their entirety.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Senator Hatch. And also a statement by Patrick J. Toomey, 
submitted to the Senate Committee on the Judiciary on behalf of 
Judge James Knoll Gardner.
    Senator Durbin. Without objection.
    [The prepared statement of Mr. Toomey appears as a 
submission for the record.]
    Senator Durbin. Senator Gramm?


    Senator Gramm. Well, Mr. Chairman, thank you very much. I 
appreciate your holding the hearing. I am very happy to be here 
to recommend Ron Clark to you. He graduated with high honors 
from the University of Connecticut, Phi Beta Kappa. He was an 
outstanding law student at the University of Texas. He is 
board-certified in both civil trial law and civil appellate 
law. He is simply one of the most outstanding lawyers in the 
Sherman-Denison area. He has been a leader of the Boy Scouts. 
He has been honored by the NAACP.
    If anybody has ever said anything bad about Ron Clark, I 
haven't heard it. I would have to say that I thought Ron was 
doing an excellent job in the legislature. It never makes me 
happy to see a great office-holder become a Federal judge. 
Other than killing somebody or sending them into exile, when 
you put them on the Federal bench, that is as close as you can 
come to eliminating them from the political process, and it 
should be.
    But in any case, he is qualified. He is a top hand, as we 
would say in our State, and while I would have preferred that 
he follow a political career, he is a brilliant lawyer and 
deserves to be on the Federal bench and I commend him to you.
    Senator Hatch. Thank you.
    Senator Durbin. Thank you very much, Senator Gramm. We 
appreciate your testimony.
    Although there are other Senators who may come and join us, 
I am going to proceed, if it is all right with Senator Hatch, 
to call on the first panel, Judge Raggi, to come forward to the 
witness table, and if you would remain standing while I 
administer the oath.
    Do you solemnly swear that the testimony you are about to 
give is the truth, the whole truth and nothing but the truth, 
so help you God?
    Judge Raggi. I do.
    Senator Durbin. Thank you.
    Let the record reflect that the nominee has answered in the 
    Thank you for being with us today.
    Senator Durbin. If you would at this time be kind enough to 
introduce family and friends who have joined you here today and 
then proceed with your opening statement.


    Judge Raggi. I would be happy to. I would like to introduce 
my mother, Mrs. Edward Raggi, who was also here when I was 
considered for the district court; my husband, David Denton, 
and my son, David Denton, Jr. I also have a number of friends 
here. I am not going to introduce all of them, but I do have 
some really outstanding lawyers, my former law clerks. All of 
them are here.
    Senator Durbin. Thank you. If you would be kind enough to 
suspend for a moment, I notice that our colleague, Senator 
Santorum, has joined us. You may stay seated. Please do.
    In the interest of time, we are expediting opening 
statements, and if the Senator would like to make reference to 
the record--


    Senator Santorum. Let me ask consent that my full statement 
be made a part of the record.
    Senator Durbin. Without objection.
    Senator Santorum. I just want to thank the chairman for 
holding this hearing. As I am sure you have heard, Judge 
Gardner has an incredible record of educational accomplishment, 
has served with great distinction both as a Common Pleas Court 
judge in the Lehigh Valley, as well as a distinguished career 
in the Judge Advocate Corps in the U.S. Navy. He is someone who 
I think will just do an incredible job as an Eastern District 
Court judge in Pennsylvania and I am here to heartily recommend 
his nomination to this committee.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Santorum appears as a 
submission for the record.]
    Senator Durbin. I am sure Senator Hatch joins me in 
thanking you, Senator Santorum.
    I notice that Senator Kay Bailey Hutchison has arrived.
    We are expediting opening remarks because of a pending roll 
call, so if you would like to give us the condensed version, 
with leave, we will enter your entire statement in the record.


    Senator Hutchison. You don't want my 30-minute, major 
address? Well, I could talk 30 minutes about Ron Clark, but I 
won't. Ron is one of our outstanding public servants in Texas. 
As I am sure you know, he is a member of the State legislature, 
but he also has a distinguished legal career. He has practiced 
law with a law firm in Sherman, Texas, and he is the author of 
a book The Texas Municipal Law and Procedure Manual, which is 
used by cities throughout Texas.
    Ron has been actively involved in his community, 
participating as committee chairman for the Boy Scouts of 
America and as president of the Sherman Kiwanis Club. He 
received the 2000 Political Involvement Award from the Sherman 
Chapter of the NAACP. He served in the Army as an Airborne 
    I will just say, Mr. Chairman, from my experience I have 
known Ron Clark for a long, long time, from before he was a 
member of the State legislature. He was an outstanding lawyer, 
recognized as such and board-certified in his field, in Texas, 
and I know he will be one of our outstanding Federal judges.
    Senator Durbin. Thank you, Senator Hutchison. I have no 
    Senator Hatch, do you?
    Senator Hatch. No.
    Senator Durbin. Your entire statement will be made part of 
the record, and thank you for your cooperation.
    Senator Hutchison. Thank you.
    Senator Durbin. Judge Raggi, as a mother, you are used to 
being interrupted and so I hope that you will understand that 
we are trying to move this along expeditiously.
    Judge Raggi. Of course.
    Senator Durbin. Now, we would certainly welcome your 
opening statement at this point.
    Judge Raggi. I don't have an opening statement, except to 
thank the committee for considering my nomination today. I 
would be happy to answer any questions that you might have for 
    Senator Durbin. Let me start, then, and just go directly to 
questions of interest.
    Of course, you are seeking an appointment to one of the 
highest levels of the judiciary in the Federal court system, a 
lifetime appointment which involves more authority in reviewing 
decisions, as well as legislation, than many Federal judges--
Senator Clinton, please come forward. I will interrupt myself 
at this point.
    Stay right where you are, Judge Raggi, and please remain.
    Senator Clinton, we are doing expedited opening remarks. So 
we are happy to have you and we will put your entire statement 
in the record.


    Senator Clinton. Thank you so much, Senator Durbin and 
Senator Hatch. I am absolutely delighted to be here to support 
the nomination of a very distinguished judge who also has 
private practice experience. Among her many accomplishments, 
she is a graduate of Wellesley College, which I think above all 
else qualifies her for this very important position.
    Judge Raggi is, as you, I am sure, have determined from the 
record, someone who has acquitted herself admirably on the 
bench, has handled some very tough trials in New York, and has 
done so with a demeanor and a competence that is well-known to 
everyone who follows the courts in New York. I am just 
delighted to be here to introduce her to you.
    Senator Durbin. Thank you very much for that, and your 
entire statement will be made part of the record.
    We will watch the door to see who else is going to show up. 
Senator Hatch tells me he will keep an eye on the door.
    Judge Raggi, thank you for understanding. I hope you do 
    Judge Raggi. Of course.
    Senator Durbin. --that this is the orderly method in the 
United States Senate.
    The point I was getting to and one I would like to ask your 
opinion on is this whole question of judicial activism and the 
responsibility of the court when it comes to legislation--
whether or not you serve as the so-called bulwark against 
legislative excess or feel that you play a different role. I 
would like to just leave that as an open-ended question to hear 
about your philosophy.
    Judge Raggi. Well, at both the district and circuit court 
level, what a judge has to do is decide cases, and so we don't, 
I don't think, get into broad policy questions the way you do 
in enacting legislation. We have to decide the dispute between 
the parties and if a statute comes into play in that, then we 
have to try to decide what Congress intended when it passed 
that statute.
    Senator Durbin. And that is it?
    Judge Raggi. Well, unless there is some concern that I am 
not appreciating, Senator. I mean, I have had cases where I 
have had to apply statutes sometimes that have not been on the 
books for a long time, and I do think some of my opinions show 
how I have tried to approach that by showing respect for 
Congress' legislation and what you all were trying to enact. I 
don't see my role as trying to put anything into the statute or 
taking anything away.
    Senator Durbin. Let me give an illustration. As we review 
your record, you have repeatedly turned away attempts to use 
the Constitution to strike down legislation, rejecting 
constitutional challenges to the Federal death penalty in U.S. 
v. Pitera, the Mail Order Drug Paraphernalia Act in U.S. v. 
Main Street Distributing, a Federal statute requiring the 
Secretary of State to extradite U.S. citizens even absent a 
treaty obligation in Hilario v. United States, and a New York 
City ordinance that criminalizes the possession or transfer of 
assault weapons and ammunition in the Richmond Boro Gun Club 
    I guess what I am really coming to is under what 
circumstances would you rule that a Federal statute is 
unconstitutional? What kinds of standards and guidance are you 
looking for in making that decision?
    Judge Raggi. Well, it would very much depend what the 
challenge was. In many of the cases that you have just cited, I 
had rationality challenges, which is, of course, the lowest 
standard of review. If there was any rational basis between 
what Congress was trying to remedy or address and the statute 
passed, then it survives constitutional challenge.
    But, of course, there could be other kinds of challenges to 
statutes that would trigger stricter scrutiny. I don't think 
any of the cases that you cited involved stricter standards of 
scrutiny. Even the death penalty case was very much an ``as 
applied'' challenge. It was an attack on the particular 
criteria that Congress had enunciated for that statute. It 
wasn't a broad challenge on the death penalty, for instance.
    Senator Durbin. Let me stick with the Richmond Boro Gun 
Club case from another angle. You considered a challenge 
brought by gun owners and several gun groups to an assault 
weapons ban passed by the New York City Council. As a judge on 
the Second Circuit, directly below the Supreme Court, you will 
be called upon to decide a lot of hot-button issues, like the 
gun control case, with some frequency.
    In these high-profile cases, how can a judge insulate 
himself or herself from popular sentiment and try to reach the 
decision on the merits?
    Judge Raggi. Well, I think again by starting with the 
principle that you are deciding a discrete case. You are not 
legislating or writing a policy, law review article or anything 
like that. You are deciding a discrete case. And particularly 
where, as in a case like that, there are good briefs on both 
sides, you should be in a position to have the principled 
arguments of both sides and then try to apply the law.
    To use that case as the example for our discussion, I had 
to deal with statutes both at the Federal and local level. So I 
had to consider what those statutes said, what principles the 
legislatures, national and local, were trying to apply, and 
then try to reconcile them.
    Senator Durbin. Can you cite any examples from your career 
on the bench when you have faced similar public scrutiny over 
controversial decisions?
    Judge Raggi. Well, certainly, in dealing with the death 
penalty, because I did have one of the first five death penalty 
cases tried, brought by the Justice Department after new 
legislation. And I have recently been in a high-profile case. 
It doesn't involve a statutory question or a constitutional 
question, but it certainly attracts a lot of press in New York 
because it involved a question of police brutality.
    Senator Durbin. I thank you for that. I am going to at this 
point defer to Senator Hatch. But if you wouldn't mind, I 
believe our colleague, Senator Schumer, would like to make a 
statement on behalf of this nominee.

                   FROM THE STATE OF NEW YORK

    Senator Schumer. Well, thank you, Mr. Chairman. First, I 
would like my entire statement to be read into the record.
    Senator Durbin. Without objection.
    Senator Schumer. I appreciate the courtesy, and I am happy 
to be here today to join Senator Clinton in introducing Judge 
Raggi, who has been nominated to the Second Circuit Court of 
    I have long said I, at least for myself, have three 
standards when it comes to judicial nominees--legal excellence, 
moderation--I don't think judges should be too far left or too 
far right--and diversity. I am happy to say Judge Raggi meets 
all three of these qualifications.
    She was born in New Jersey--we won't hold that against 
her--went to college and law school in Massachusetts--we also 
can't hold that against you--and clerked on the Seventh 
Circuit. But she has been proud to call herself a New Yorker 
for the past 25 years.
    As you know, she has excellent private practice experience, 
being an associate and a partner at major New York law firms; 
significant public sector experience; was known as a top-notch 
prosecutor in the Eastern District, one of the premier 
districts in the country. She ran the narcotics section--
because the airports are in that district, narcotics is 
extremely important--and the special prosecutions section, 
before serving as interim U.S. Attorney. She has an extensive 
record before us, having served with distinction as a judge in 
the Eastern District.
    Mr. Chairman, in all frankness, we have seen a lot of 
nominees, in my judgment, who are ideologically way over come 
from this administration, but I can say with some confidence 
that Judge Raggi isn't one of them. So I am looking forward to 
the rest of her testimony and to supporting her confirmation in 
the weeks ahead.
    Senator Durbin. Thank you, Senator Schumer.
    Senator Hatch?
    Senator Hatch. Well, let me just say this, Judge Raggi. You 
have performed remarkably as a judge, admirably, dealing with 
some of the most difficult cases to face the Federal courts in 
New York, including the second trial of the former New York 
City police officer in the Abner Louema case, the first Federal 
death penalty case in New York in three decades, and the Golden 
Venture trials which rose out of the illegal smuggling of 
Chinese aliens, ten of whom died when their freighter ran 
aground off Rockaway, New York.
    In each case, you have met and surpassed the highest 
standard for judicial excellence and I think we are going to be 
very lucky to have you as a circuit court of appeals judge.
    Judge Raggi. Thank you.
    Senator Hatch. So I very strongly support you, and 
hopefully that is expedited enough.
    Senator Durbin. It certainly is.
    Senator Schumer has departed.
    May I ask one last question?
    Judge Raggi. Please.
    Senator Durbin. You have had a background on the bench, as 
Senator Hatch has noted, and prior to that a background as a 
Federal prosecutor. How would you respond to concerns about 
whether those who come before you representing criminal 
defendants will have fair treatment when you consider reviewing 
the decisions at the trial court level?
    Judge Raggi. I would hope that the 15 years of service I 
have had on the district court have answered that question for 
everyone. It was, of course, a question when I was first 
considered for the district court when my prosecutorial 
experience was pretty recent. But I think there is no doubt 
that I am prepared to see that justice is done for every party 
that appears before me, defense as well as prosecution.
    Now, because we have an excellent United States Attorney's 
office in the Eastern District, their cases are often very well 
presented and juries often do vote for convictions. But that is 
not my job anymore. My job is making sure every defendant gets 
a fair trial. If I were lucky enough to be confirmed to the 
court of appeals, my job would be to make sure that every 
litigant who raised a question before the court got a fair 
hearing on that.
    Senator Durbin. Well, I thank you very much. I have no 
further questions. I don't know if Senator Hatch does.
    Senator Hatch. I don't either. I am just happy to have you 
being willing to do this.
    Judge Raggi. Thank you so much, Senator.
    Senator Durbin. Judge Raggi, thank you for joining us. With 
the end of questioning, you are now free to go. We will leave 
the record open to allow committee members to submit written 
statements and any follow-up questions. Thank you for joining 
us today.
    Judge Raggi. Thank you.
    [The biographical information of Judge Raggi follows.]
    [GRAPHIC] [TIFF OMITTED] 81116.001
    [GRAPHIC] [TIFF OMITTED] 81116.002
    [GRAPHIC] [TIFF OMITTED] 81116.003
    [GRAPHIC] [TIFF OMITTED] 81116.004
    [GRAPHIC] [TIFF OMITTED] 81116.005
    [GRAPHIC] [TIFF OMITTED] 81116.006
    [GRAPHIC] [TIFF OMITTED] 81116.007
    [GRAPHIC] [TIFF OMITTED] 81116.008
    [GRAPHIC] [TIFF OMITTED] 81116.009
    [GRAPHIC] [TIFF OMITTED] 81116.010
    [GRAPHIC] [TIFF OMITTED] 81116.011
    [GRAPHIC] [TIFF OMITTED] 81116.012
    [GRAPHIC] [TIFF OMITTED] 81116.013
    [GRAPHIC] [TIFF OMITTED] 81116.014
    [GRAPHIC] [TIFF OMITTED] 81116.015
    [GRAPHIC] [TIFF OMITTED] 81116.016
    [GRAPHIC] [TIFF OMITTED] 81116.017
    [GRAPHIC] [TIFF OMITTED] 81116.018
    [GRAPHIC] [TIFF OMITTED] 81116.019
    [GRAPHIC] [TIFF OMITTED] 81116.020
    [GRAPHIC] [TIFF OMITTED] 81116.021
    [GRAPHIC] [TIFF OMITTED] 81116.022
    [GRAPHIC] [TIFF OMITTED] 81116.023
    [GRAPHIC] [TIFF OMITTED] 81116.024
    [GRAPHIC] [TIFF OMITTED] 81116.025
    [GRAPHIC] [TIFF OMITTED] 81116.026
    [GRAPHIC] [TIFF OMITTED] 81116.027
    [GRAPHIC] [TIFF OMITTED] 81116.028
    [GRAPHIC] [TIFF OMITTED] 81116.029
    [GRAPHIC] [TIFF OMITTED] 81116.030
    [GRAPHIC] [TIFF OMITTED] 81116.031
    [GRAPHIC] [TIFF OMITTED] 81116.032
    [GRAPHIC] [TIFF OMITTED] 81116.033
    [GRAPHIC] [TIFF OMITTED] 81116.034
    [GRAPHIC] [TIFF OMITTED] 81116.035
    [GRAPHIC] [TIFF OMITTED] 81116.036
    Senator Durbin. At this time, I would ask the remaining 
three nominees to come forward to the table. That would be 
Lawrence Block, James Knoll Gardner, and Ronald Clark.
    If all three of you wouldn't mind standing for the oath and 
if you would raise your right hand, do you solemnly swear that 
the testimony you are about to give is the truth, the whole 
truth and nothing but the truth, so help you God?
    Judge Gardner. I do.
    Mr. Clark. I do.
    Mr. Block. I do.
    Senator Durbin. Thank you very much. The record will 
reflect that all three nominees answered in the affirmative.
    Before introducing them, I would like to defer to my 
colleague from Pennsylvania, Senator Specter, if he has any 
opening statement.


    Senator Specter. Thank you very much, Mr. Chairman. I am 
delighted to see this distinguished group of nominees here 
today. I would like to comment especially about a distinguished 
Pennsylvanian, Judge James Gardner, who comes to the nomination 
process with a very, very distinguished record.
    Judge Gardner is a graduate of Yale University, magna cum 
laude. He has his law degree from Harvard Law School. So he 
would take the comment of President Kennedy, who received an 
honorary degree from Yale and said he had the best of both 
worlds--a Yale degree and a Harvard education. Judge Gardner 
has the best of both worlds both ways, has a Yale degree and a 
Harvard degree and an education from both of the schools.
    He served in the Judge Advocate General Corps of the United 
States Navy Reserve. He served on active duty for three years. 
He has been an assistant district attorney and First Assistant 
District Attorney of Lehigh County from 1972 to 1981, and he 
has been a judge of the Court of Common Pleas of Lehigh County, 
a very populace county in Pennsylvania--it has Allentown in 
it--and is President Judge at the present time.
    I have gotten to know Judge Gardner over the years and have 
seen his excellent work on the bench and his high character. He 
was recommended to Senator Santorum and myself by our 
bipartisan nominating committee, and he has been, of course, 
nominated by the President and gone through very rigorous 
examination and I think will make an outstanding jurist on the 
United States District Court for the Eastern District of 
    So while I welcome all of the nominees here today, I give a 
special word of welcome to Judge James Knoll Gardner.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you very much, Senator Specter.
    Let me begin with you, Judge Gardner, if I might. Would you 
like to introduce any of your family members or friends who 
have joined you today?


    Judge Gardner. Thank you, Mr. Chairman. I would like to 
introduce my wife, Linda Gardner, and one of my daughters, 
Stephanie Gardner, who is junior in high school; my secretary 
of 25 years in law practice and on the bench, Cheryl Sinclair; 
my law clerk, Mike Daigle, a member of the Pennsylvania, New 
Jersey, and New York bars.
    My daughter, Victoria Gardner, can't be with us. She is in 
Spoleto, Italy, singing at an opera festival as we speak. She 
is a Senior at Yale University. My daughter, Andrea Merrill, is 
in Rochester, where she just bought a home with her husband, 
Paul, and is about to enter a doctorate degree program in piano 
at Eastman Music School. My daughter, Christine, and her 
husband, Christopher, and my granddaughter, 2-year-old Alexis, 
are at home in Allentown, where Christine is a social worker.
    I am very proud of my family and I am very proud of being 
    Senator Durbin. Well, we are happy to have you here. It 
sounds like you have had a life with great musical 
accompaniment. At this point, would you like to make an opening 
    Judge Gardner. I don't have a formal opening statement, Mr. 
Chairman, other than to thank you all for affording me and my 
colleagues today the opportunity for this hearing. And I am 
willing, of course, to answer any questions you may have.
    Senator Durbin. Thank you very much.
    Let me at this point make the same offer to Ron Clark, from 
Texas, if you would be kind enough to introduce family and 
friends who have joined you today, and then you have an 
opportunity for your own opening statement.


    Mr. Clark. Thank you, Mr. Chairman. I would like to 
introduce my mother, Catherine Clark, from Green Valley, 
Arizona, where she serves on the elected board there, and my 
aunt, Julia Plotnick, from New Jersey, recently retired as an 
admiral from the Public Health Service; also, my brother-in-
law, Colonel John Long, stationed at the Pentagon right now, 
and his son, my nephew, William Long, who attends school in 
    I would like to thank you very much, Mr. Chairman and 
Senator Hatch and, of course, the staff members, for affording 
us this opportunity to be here, as you say, just before you 
adjourn. I understand the pressure to adjourn.
    Senator Durbin. Thank you very much. Do you have an opening 
statement that you would like to make?
    Mr. Clark. I think I just made it, Mr. Chairman.
    Senator Durbin. Perhaps I would allow Senator Hatch to 
introduce the next nominee.


    Senator Hatch. Well, I am not going to take a lot time, but 
Larry Block has served this committee very well. I am very 
proud to have had him for all these years working so hard. He 
has been a major counsel on this committee for a long time and 
has worked with all of us. We all know him. He has an excellent 
academic record, an excellent record in working in Government 
and, of course, has an excellent record around here.
    So we are just pleased to have you nominated and finally 
have this hearing, Larry.
    I will put the rest of my remarks in the record.
    Senator Durbin. Thank you, Senator Hatch.
    Mr. Block, you couldn't have a stronger friend than Senator 
Hatch. I can say that because my arm is still hurting from 
being twisted to move quickly; let's get this moving. We are 
today, and we are happy to, and at this point invite you to 
introduce family and friends and make an opening statement.


    Mr. Block. Thank you, Mr. Chairman. It was my great hope to 
have my mother, Eve Silver, here. My mother is a refugee from 
Nazi Germany and she came here to this great country in 1938. 
Unfortunately, she was just too ill to come down here.
    My brother, Lee Syrkin, is a cardiologist in North 
Carolina, and unfortunately his patients demand his attention 
today. My sister, Lynn Zymet, Jersey, in the New York area, 
could not be here today.
    But I am not without family because I have my Senate family 
here, and friends I would like to introduce. I asked Trish 
Knight to sit behind me. She was behind me. She still is. Good. 
She represents the Hatch family and she represents all my 
friends here.
    I had the opportunity to work a little bit in the Reagan, 
Bush 1 and Clinton administrations. I have friends these 
administration and Bush 2 here, and I want to thank all the 
staffers, Democrat and Republican, whom I have worked with over 
the last nine years. So that is my surrogate family.
    Senator Durbin. Thank you, and would you like to make any 
statement beyond that?
    Mr. Block. I would love to thank the committee and the 
chairman for scheduling this hearing and for you chairing it. 
Above all, I would like to thank Senator Hatch, who over the 
past about nine years has been a mentor and a friend, and has 
shown me that integrity and honesty and love is very important 
in public life.
    Senator Durbin. Thank you very much.
    Since we are considering nominees for the Federal district 
court as well as the Court of Federal Claims, perhaps the 
questioning will be a little different for the nominees, but I 
would like to start, if I could, with Judge Gardner and 
Representative Clark and a question relative to an issue which 
is in the headlines constantly. It is the issue of equal 
justice in this country, particularly the issue of racial 
profiling, and concerns that have been expressed both in this 
committee as well as in the media about whether our system of 
justice is indeed fair and color-blind in terms of the 
administration of justice.
    The statistics are sobering concerning the incarceration of 
people of color in our Nation. For example, it is, I think, 
well known and established that when it comes to the African 
American population, it represents about 12 percent of our 
population and according to Federal statistics about 11 percent 
of current drug users, and yet 35 percent of those arrested for 
drug violations are African American. Fifty-three percent of 
those convicted for drug felonies are African American, and 58 
percent of those currently incarcerated in State prisons for 
drug felons are African American--by most measures, a 
disproportionate share of those who are being punished from 
those who are actually thought to have violated the law.
    In administering justice in this country, we have to 
maintain the belief, the honest, sincere and real belief, that 
this system is fair. Tell me, as judges considering this 
situation, what you believe is your responsibility in the 
administration of justice to make certain that it is fair for 
all groups in this country, regardless of color, creed, or 
ethnic origin.
    Judge Gardner?
    Judge Gardner. Well, I think you have said it, Mr. 
Chairman. My responsibility as a judge is to treat everyone who 
comes into my courtroom, regardless of station in life, 
regardless of race, color, creed, national origin, gender, 
sexual preference, equally, on a level playing field.
    I pride myself that in 21 years as a trial judge, and in 
some 8 or 9 years as a military court martial judge and a 
military appeals judge, that I have done that. And that hasn't 
been difficult for me to do; that comes naturally for me.
    And in terms of the concerns that you mention, if the 
statistics are not in conformity to the population percentages 
of a particular group, then, of course, we have to look at it 
to make sure that this is not representing some inappropriate 
arresting, selective prosecuting, or some kind of bias in 
sentencing, and that it isn't explained by other factors such 
as more people being arrested legitimately for those crimes. 
But either way, the job of the judge is to deal fairly and 
even-handedly with everyone.
    Senator Durbin. My State statistics are even worse than 
those of your state of Pennsylvania, but there was a recent 
report that the rate of incarceration of African Americans in 
Pennsylvania is 14 times that of white Americans.
    What do you think we should do affirmatively to convince 
African Americans and other people of color that this system is 
not profiling, that this system is, in fact, color-blind?
    Judge Gardner. Lead by example, state openly that we abhor 
any kind of discrimination in any level of society, including 
the judicial and legal profession, and walk the walk and talk 
the talk.
    Senator Durbin. Mr. Clark, would you comment on the same 
    Mr. Clark. I think it is very important that we not only 
have a system that is just and fair, but it has to be perceived 
to be just and fair. And you are exactly right. There is a 
large portion of our population that right now does not 
perceive it that way. I know that in my district and I know 
that in my area that there is a perception among many African 
Americans that the system is not fair to them, and I think a 
judge has a responsibility to work to do that.
    At a political level, you can try to single out any 
prosecutor, elected prosecutors, who are not being fair and try 
to eliminate them through the electoral process. As a judge, 
you have the opportunity to, if you will, make sure that the 
person you perceive as being disadvantaged has the scales 
tilted to level that playing field for them.
    Senator Durbin. One of the areas that comes up frequently 
is the question of competent counsel when it comes to the 
defense of those charged with crimes. It has been dramatized in 
this committee particularly in our debate over the death 
    Certainly, we can understand that in capital cases 
competent counsel should be sitting at both tables in the 
courtroom. But clearly there are many people who may not be 
sentenced to life imprisonment or face a death penalty who may 
still spend a huge number of years in jail because of the 
incompetency of counsel.
    What obligation do you feel that we have as a Nation when 
it comes to holding our system to the standard of establishing 
that competent counsel will be present in the courtroom?
    Mr. Clark. Well, I think both legislatively and judicially 
you ought to be sure that the people being appointed especially 
on major cases, but even on some of the minor ones, are 
competent. We recently passed a statute in Texas to try to 
ensure that only people with death penalty experience got 
appointed to death penalty cases, and then they could have an 
assistant who perhaps had not previously tried a death penalty 
case. That would be a way for that person to get experience and 
it would give the older attorney someone to help. Many of our 
local judges have had that procedure for years before that 
statute was in. At least in my area they did, and I think that 
is an important thing.
    I have prosecuted criminal cases and I have defended 
criminal cases and I am aware of the imbalance of power between 
the prosecution and defense, and I have always felt it needs to 
be leveled out.
    Senator Durbin. Let me ask you this, Judge Gardner, on a 
related issue about mandatory minimum sentencing. I can tell 
you as a person who served in the House and the Senate on 
Capitol Hill, and I am sure those in State legislatures can 
affirm it is a popular vote to establish mandatory minimum 
sentences for certain crimes, to basically say that the judge 
won't have discretion, will not have flexibility when it comes 
to sentencing.
    I think we are learning that we have gone too far in some 
areas. I have visited Federal prisons in my own State, 
particularly penitentiaries for women, where you see people 
spending an inordinate amount of the rest of their lives in 
these prison situations. And as you hear about the cases, it 
appears that their devotion to a boyfriend, who was not a 
particularly good individual, ended up being repaid by the 
boyfriend ratting them out and subjecting them to mandatory 
minimum sentences on drug crimes. That is happening more and 
more frequently.
    What is your theory or philosophy when it comes to 
mandatory minimum sentencing?
    Judge Gardner. Well, as a trial judge, of course, it is 
necessary and appropriate for me to follow the sentence 
guidelines and to apply the mandatory sentences. I have no 
choice. It is the legislature's duty to set those policies and 
it is my duty to carry them out, whether I agree with them or 
    Most trial judges will tell you, and I am no exception, 
that anything that takes away sentencing discretion from the 
judges in that scenario is not necessarily a good thing. But it 
is also appropriate that we don't have sentencing all over the 
lot, and so to have certain standards and guidelines is helpful 
to even out appropriate punishments for appropriate crimes so 
that there aren't inconsistent results, on the one hand, and on 
the other hand to avoid sentences that are either too harsh or 
too lenient for the circumstances.
    Having said that, we can disagree with individual minimums 
or individual guidelines, but it is a tradeoff. If you are 
going to ask for tougher sentences, then you are going to need 
more prisons to put these people in, and they may or may not be 
appropriate for long terms in prison.
    Senator Durbin. Thank you.
    Mr. Clark, would you respond to that same question?
    Mr. Clark. Mr. Chairman, I think you are exactly right. It 
is always an easy vote going in for law and order in a 
legislature. But, of course, I think we need to look at the 
original purpose, and it was to avoid that appearance of the 
rich white kid getting off easy and the poor black kid getting 
a heavy sentence. And if you have mandatory sentencing, you get 
away from that.
    I have been told that in some of the--I don't do a lot of 
criminal work now, but I have been told in some of the counties 
where we have elected judges that that kind of thing can 
happen. So the minimum mandatory sentencing of the Federal 
system has much to be said for it, and since it is 
legislatively decided, I understand that as a judge I will 
apply it.
    Senator Durbin. Thank you.
    Senator Hatch?
    Senator Hatch. I am satisfied. I have the read the history 
of all three of these gentlemen. I just want to congratulate 
each of you for the excellent lives that you have lived, the 
law that you have practiced, in your case the work that you 
have done on the court, and, of course, in Larry's case the 
work he has done on this committee. We are just very proud of 
you and pleased to be able to support you.
    Senator Durbin. Thank you, Senator Hatch.
    Senator Sessions, do you have some questions of the panel?

                 U.S. SENATOR FROM THE ALABAMA

    Senator Sessions. Well, Mr. Chairman, I would just say 
likewise this is a distinguished panel, each with a fine 
record, and I am delighted to support each of them. I must say 
that I do know Lawrence Block. He has been a tremendous asset 
to Senator Hatch and this committee for quite a number of 
years. He has had a distinguished career as a lawyer. He is 
respected by all of us here.
    In fact, I can't think of anyone more respected who has 
worked around here during the time he has been here. I think he 
has the temperament and judgment and integrity to be a really 
terrific judge. I am delighted to see him be nominated.
    We wish you the best of luck, Larry, and each of you, also.
    Mr. Block. Thank you, Senator.
    Senator Durbin. Thank you, Senator Sessions.
    If I might, then, I would like to ask Mr. Block a few 
questions because there is an area of concern here expressed by 
many groups relative to the responsibility of the Court of 
Claims, and it particularly relates to the issue of takings and 
some of the statements you have made and perhaps some of the 
things that you have written on this issue.
    I was surprised to learn that a variety of different 
environmental groups have written concerning your nomination, 
expressing concern about your reading of the so-called Takings 
    As you know, the Court of Federal Claims has exclusive 
jurisdiction over claims of $10,000 or more against the United 
States under the Takings Clause, and I would like to explore 
for a moment for the record your opinion about this particular 
    Let me ask you, in the 1993 Concrete Pipe case the Supreme 
Court unanimously stated, and I quote, ``Our cases have long 
established that mere diminution in the value of property, 
however serious, is insufficient to demonstrate a taking.'' 
They were dealing with a case that had significant diminution. 
They refer to two particular cases. One was a 75-percent 
diminution in value, another a 92.5-percent diminution.
    Do you interpret that language, which cited zoning and land 
use cases, as the holding that would guide you in terms of your 
work on the Court of Claims?
    Mr. Block. Yes, I do, Senator. The Supreme Court has 
adopted a balancing test to determine--we are talking about 
regulatory takings here, not eminent domain cases--in terms of 
regulatory cases, and that is the Penn Central case of 1978. 
The Penn Central case has adopted a three-part test to 
determine what is a taking.
    The other exception to that is the Lucas case, which says 
basically if virtually all value of property is taken by 
government, that is considered a taking. Other than that, the 
Court has used the balancing test to determine what is a 
taking, and it is a balancing test balancing three factors.
    The problem with regulatory takings really started with a 
Justice Oliver Wendell Holmes case back in 1922, and he wrote 
that a mere diminution of value is not a taking. If it was, 
then government could hardly regulate. But somewhere along this 
continuum, he wrote, if the government goes too far, then it is 
considered a taking, and primarily the Supreme Court has 
adopted that balancing test to determine how far is too far. 
So, yes, the answer is I would follow that.
    Senator Durbin. Can you cite any Supreme Court opinion that 
has held that a mere diminution in value of an affected portion 
of property, however serious, is sufficient to demonstrate a 
taking, without consideration of investment-backed expectation 
and other factors?
    Mr. Block. No, I cannot.
    Senator Durbin. Do you agree that takings legislation that 
would have entitled property owners to compensation merely by 
showing that an agency action diminished the value of an 
affected portion of property by a certain percentage, without 
consideration of investment-backed expectations and other 
factors--do you agree that that would be violative, then, of 
court precedent?
    Mr. Block. I understand you are referring to both the House 
and the Senate takings legislation which I had the honor of 
working on. Let me say two things. The Senate and House bills 
were not law then and they are not law now. My role as a 
staffer is to zealously advocate the position of Senator Hatch 
and the Senators who worked on that bill.
    It is much akin to being an attorney when you zealously 
advocate the position of your client, but that is not the law 
and it is far different than being a judge. Those bills were 
designed to change the law and didn't represent the law then, 
and they were not enacted into law and they do not represent 
the law now.
    Senator Durbin. Well, as my staff would not like to be held 
accountable for my peculiar legislative views, I am sure that 
Senator Hatch understands that you may not want to be held 
accountable for his insights into the law as we know it today.
    Senator Hatch. I feel confident in that statement.
    Mr. Block. That was a good-faith attempt to change the law.
    Senator Durbin. But the point I want to make clear for the 
record is that was a controversial bill that really would have 
expanded the concept of takings by the Government. You are 
asking for appointment to a court that will be considering 
issues relative to takings by regulation, and there is a 
concern by groups that you will use the standards espoused in 
that bill as your standard in applying the law.
    Mr. Block. Let me assure the committee of this: Those bills 
tried to put in concrete terms what a so-called partial taking 
was. And there were two Senate bills. One defined it by 33 
percent and the other by 50 percent, so there was a concrete, 
bright line test of what a partial taking was. That does not 
exist in the law then and it does not exist in the law now.
    Senator Durbin. And for the record, your passionate 
advocacy for that law and that change in the law does not 
reflect--or let me not put words in your mouth. Does it reflect 
your view on the standard that you would apply as a judge on 
the Court of Claims?
    Mr. Block. It does not reflect the standard that I would 
apply because the Supreme Court has basically adopted a 
balancing test and has eschewed bright line tests.
    Senator Durbin. Let me ask you about your courtroom 
experience. Can you for the record tell the committee the 
experience that you have had to prepare yourself for this 
    Mr. Block. Oh, yes, thank you. I had the opportunity to 
work in basically all three branches of Government, so I know 
the difference between being an advocate and working in the 
judicial branch.
    I was a law clerk in the Federal court for Judge Miner. I 
served as an associate in Skadden Arps, in New York City, where 
I had primarily a motion practice. I joined the Department of 
Justice in 1986. I worked in the commercial litigation branch 
and appeared in front of the Court of Federal Claims, then 
worked in OLP.
    I joined the Department of Energy and worked on 
environmental and energy law, and I worked on this committee 
and we handled all sorts of legal issues. So I am familiar with 
the jurisdiction of the Court of Federal Claims. Of course, as 
a committee staffer, I helped prepare hearings, some of which 
the Senator knows involved very complex issues of law.
    Senator Durbin. The last area I would like to ask you about 
is relative to an article that you wrote, I guess, 12 years ago 
in a Heritage Foundation publication and it related to the 14th 
    You coauthored an article which said, and I quote, ``It is 
distressing that many Americans, including most members of the 
bench and bar, look to the Bill of Rights and the 14th 
Amendment as the principal protection of individual rights, 
while overlooking the all-important safeguards contained in the 
structure of the Constitution itself,'' end of quote.
    Given our Nation's historical legacy, I find your 
expression of distress about the prominent role of the 14th 
Amendment to be worrisome. Until the passage of the 14th 
Amendment, most African Americans were denied the right to vote 
and were counted as three-fifths of a person for apportionment 
purposes. The 14th Amendment reversed the Supreme Court's 
infamous Dred Scott decision and the 14th Amendment guaranteed 
equal protection of the laws.
    I would like you now for the record to tell this committee 
your impression or your views about the role of the 14th 
Amendment and whether that quote from the article fairly 
characterizes your point of view.
    Mr. Block. Chairman Durbin, I agree with you a hundred 
percent about the importance of the 14th Amendment. We had a 
great Civil War, a bloody Civil War in this country. The 14th 
Amendment was promulgated in response to the Civil War to give 
people of African American descent equal rights in this 
country. I firmly believe in equal justice under the law and 
the jurisprudence under the 14th Amendment.
    The article was written in the bicentennial celebration of 
the Bill of Rights, which was promulgated in 1791, I believe, 
finally passed by the States. And that article is really an 
article about political philosophy and it said sometimes 
Americans forget that the Framers intended that the primary--
and maybe not even the most important, but one of the great 
protections that we have of our liberties is the structure of 
the Constitution.
    The Constitution protects liberty in various ways and one 
of the most important ways is the role that this body has 
elected representatives. They represent people in this country 
and they represent laws and they pass civil rights bills, like 
the great civil rights acts of 1871 and the civil rights acts 
of the 20th century.
    So the role that the structure of the Constitution has--
separation of powers, checks and balances, limited government, 
enumerated powers that Congress has, a strong executive, the 
power of the veto--the Constitution works as a machine and the 
result of that machine is to protect individual liberties from 
intrusive government.
    I in no way denigrate in that article the role of courts. 
All I meant was in that article is that there are other 
protections that Americans have and we sometimes forget the 
role the Constitution and the political process plays in 
protecting our liberties.
    Senator Durbin. Thank you. I have one last question, if it 
is all right, of Mr. Block and it goes back to an earlier 
    I understand that in your answers to the questionnaire that 
you submitted to this Committee, you characterized this takings 
legislation that we were discussing earlier as codifying and 
enforcing the Takings Clause of the Fifth Amendment.
    As I understood your response, it was somewhat different. 
Earlier, you stated that this would have been a new standard, a 
new approach, other than currently existing in law. By your 
response to that questionnaire, I would ask you to explain that 
response and your earlier response to my question.
    Mr. Block. I really appreciate the opportunity to clarify 
what I wrote there, and I really apologize to the committee for 
any confusion that might be created.
    When I use the term ``codify''--first, I was responsible 
for legislative projects. I want to reveal everything to be 
forthcoming to the committee on what I worked on. Or course, 
takings legislation, which is certainly a hot-button issue, is 
something I revealed.
    When I wrote that it codified standards, we are actually 
talking about two separate types of bills. One is the bill that 
you referred to before, and that is the compensation bill which 
established partial takings. Another bill that I also worked on 
was a ripeness bill which tried to grant access from State 
litigation to Federal courts on the ripeness issues, and that 
is when can you go to Federal court, especially if you arise 
from State cases. And there were many Senators who felt that it 
was very difficult to get into Federal court.
    The bill contained standards of defining what ripeness is, 
and when I wrote in my questionnaire, I wrote that what I 
worked--that bill I characterized as containing standards, 
codifying standards. I think that was the term I used, 
``codifying standards.'' I didn't say whether they codified 
former Supreme Court standards or present standards. I didn't 
write whether they were good or bad standards. All I said was 
they literally codified standards, and I thought I was being 
very accurate.
    Senator Durbin. If you would be kind enough--and in 
fairness to you, I would like to give you a chance to send us 
an amendment, then, to your questionnaire and express what you 
have just said to the committee--
    Mr. Block. Certainly.
    Senator Durbin. --and give you a little time to put this in 
words so that we can appreciate exactly the distinction you 
were trying to make. There may be other questions that could be 
submitted. Obviously, having worked here, you know how that 
    Mr. Block. Oh, I sure do.
    Senator Durbin. Thank you very much.
    Senator Hatch?
    Senator Hatch. I just want to thank all three of you for 
being willing to serve, and Judge Raggi as well, and I believe 
you will be very excellent judges, without question.
    Larry, we are very proud of you. We are looking forward to 
seeing you serve with great distinction down there and we 
expect you, all of us on this committee, to do a very good job.
    Mr. Block. Thank you, Senator.
    Senator Durbin. Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Block, the analysis that you have made of the 
Constitution and the balance and the inner workings--and you 
mentioned separation of powers--it is a marvelous document, 
beyond any question, especially with the doctrine of separation 
of powers, even though separation of powers was never 
    I think that when Senator Durbin has gone into the issues 
of the 14th Amendment, that has been really a critical part of 
the Constitution for many, many years. This committee is now 
considering DNA legislation which would make it a 
constitutional right to have access to DNA information. But 
when you consider treatment of defendants by the States, 
especially the Southern States, Mississippi, in Brown v. 
Mississippi, it took a long time to bring some Federal 
limitation on State court abuses. And it wasn't only 
Mississippi, in Brown v. Mississippi. It was Pennsylvania in 
the Treetop Turner case and many other cases. So it has been an 
interesting comment.
    They have just started a vote, so it may be too late to be 
brief at this point, but I am going to be brief from this point 
    Thank you for being willing to serve. The Federal judiciary 
is the backbone of the American democratic system, and with the 
life tenure which you have you are in a position to undertake 
decisions which may be unpopular which the Congress doesn't 
have the courage to do, nor does the executive branch so 
    I want to repeat a colloquy that Senator Thurmond had as 
chairman of this committee shortly after I joined the committee 
after the 1980 election. There was a nominee seated where you 
men are and Senator Thurmond said, if confirmed, do you promise 
to be courteous? And I thought to myself, what kind of a 
question is that? What does he expect the nominee to say?
    And not unexpectedly the nominee said, yes, I promise to be 
courteous. And then Senator Thurmond said the more power a 
person has, the more courteous the person should be. He said it 
in a much more charming dialect, but the more power a person 
has, the more courteous the person should be. I have spent a 
lot of time behind this dais in the last 22 years and a long 
time in the Senate, and I have not heard anything nearly as 
erudite as that.
    There is a temptation, once you put on that black robe with 
a lifetime appointment, to sometimes forget that when--and I 
know this will never happen in any of your courtrooms--a lawyer 
is not prepared or his not coherent, or witnesses or not 
responsive, or you have had a bad day and it is a bad process.
    Whenever Senator Thurmond is not here, I give his little 
speech, and I have talked to many judges years after 
confirmation who repeat that speech to me. But I am sorry to 
say that I have also heard many cases where judges whom I have 
recommended have not followed that process.
    So I just wanted to be as emphatic as I could. Be 
courteous. You have a lot of power as a Federal judge, and a 
lifetime appointment really insulates you from everything. But 
just remember what Senator Thurmond said: the more power a 
person has, the more courteous the person should be.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Senator Specter.
    Senator Sessions, do you have any further questions?
    Senator Sessions. No.
    Senator Durbin. We are in a roll call and my colleagues may 
have to leave. I understand if they do, and I understand 
Senator Schumer may be on the way. Well, we will see if he can 
make it.
    Let me ask, if I can, to Mr. Clark, as a member of the 
Texas Legislature you supported in 1999 the establishment of 
the Texas Parental Notification Act, which generally requires 
parental notification before minors can receive an abortion.
    The legislation includes a procedure for so-called judicial 
bypass, where a minor can avoid parental notification by 
petitioning a court. One of the factors the court should 
consider, according to the language of the statute, is whether 
the notification would not be in the minor's best interest.
    In March of 2000, you were in a group of Texas legislators 
who signed an amicus brief in support of an interpretation of 
that Act. In part, the brief argued that a court must determine 
not just that notification is not in the minor's best interest, 
but that the abortion procedure itself is in the minor's best 
    As you know, a majority of the Texas Supreme Court rejected 
the position on this amicus brief. The court concluded the 
legislature did not impose this additional requirement that an 
abortion itself, the procedure, be in the minor's best 
    Can you explain to me how, having voted for the bill with 
the language in it the Texas Supreme Court said was clear, you 
would return to that court in a very short period of time and 
argue that it really wasn't about notification being in the 
minor's best interest, but the abortion procedure itself?
    Mr. Clark. Well, Mr. Chairman, at the time that brief was 
submitted--and I was not the attorney on it, but I was one of 
the legislators who agreed to be an amicus. I think 5 opinions 
had come out shortly after the law was passed, or 5 decisions, 
with something like 19 different opinions. And unfortunately, 
while I think we thought we had written something pretty 
clearly, it was pretty evident from the dispute going on in the 
supreme court that maybe we had not passed a bill that was 
quite as clear as it might have been.
    I have had appellate judges raise that to me before in oral 
argument. When you have 19 different opinions coming out, 
obviously something is not as clear as it could be. The supreme 
court did finally in 2000 come down with its final opinion, a 
majority decision, and since that time we have had very few 
    We had another session of the legislature and no one 
brought another bill to amend the statute to somehow overturn 
or modify the supreme court's decision. I don't even remember 
any serious discussion about that happening. So I think it was 
pretty well agreed that the supreme court has finally made a 
decision. The trial courts know what they are supposed to be 
doing and the trial courts can now move forward and the issue 
is basically settled.
    There was a lot of dissent going on at the time, and that 
is one of the reasons that a number of the legislators thought, 
well, maybe we need to--and legislators probably shouldn't be 
trying to help the court out, but that, I think, was what was 
happening there.
    Senator Durbin. I think that is what leads to the question. 
It is not uncommon for a citizen or his or her attorney to go 
into court and question what a provision in the statute really 
means. It is an odd situation when the very legislator who 
wrote the statute, or voted for the statute, would come to the 
court and say that isn't what we meant at all; we didn't mean 
that the notification was in the best interest, we meant that 
the procedure was in the best interest.
    Well, the court rejected that, so you were in an unusual 
position trying to amend your statute in court, which raises a 
question whether you, as a judge, will be amending statutes in 
    Mr. Clark. Actually, having been a legislator, I take it 
very personally when judges try to amend statutes. I, probably 
more than most candidates, really understand what goes on in 
committee, Mr. Chairman, and I know that no judge can have the 
kind of input that comes through the committee process, all of 
the stakeholders, all of the interest groups, all of the 
lobbyists coming in, everybody who puts in.
    And you have a group, a committee from 9 to 21, depending 
on the body you are in. You then have the process that it has 
gone through both houses of the legislature. There is no way a 
judge can have that kind of information. So I believe very 
strongly that unless a statute is clearly unconstitutional, 
clearly is working some kind of unfairness, that you basically 
apply it as written. That is the legislative decision.
    This was an odd case, and at the time we thought we had 
written something fairly clear. These are very intelligent 
people on the supreme court. I have the greatest respect for 
all of them. It obviously wasn't as clear as we thought. I have 
seen that happen before in other statutes, but they did finally 
come up with a decision.
    I respect the debate they had, but once they made that 
decision, we have had very few appeals. And like I say, in the 
following session I don't recall anybody bringing a bill or 
even seriously talking about a bill to overturn them or change 
what their decision was.
    Senator Durbin. Thank you very much.
    I am going to now turn to Senator Schumer and ask him, 
first, have you voted?
    Senator Schumer. Not yet.
    Senator Durbin. Well, we have about six or seven minutes, 
so that is good news for the panel. So if you would like to 
proceed with your questions.
    Senator Schumer. Thank you. I have a number of questions in 
writing, but I just wanted to ask Mr. Block a couple of 
questions on the issue of judicial activism, which I know is an 
important issue here.
    In your Judiciary Committee questionnaire you wrote that, 
quote, ``Judicial activism--that is, policymaking by judges--is 
an unfortunate product of the 20th century.'' That is your 
    Elsewhere, you have written that such cases as Brown v. 
Board of Education and Reynolds v. Sims, the historic Supreme 
Court case clarifying the one man, one vote principle, are 
examples of social engineering by the courts. The last one is 
sort of impossible to understand because if the courts didn't 
do it, who would, since you would have a self-perpetuating 
legislature that didn't have one man, one vote?
    But aside from that, Dred Scott was decided in 1857. As you 
know, the Court in that case reached out and overturned the 
Missouri Compromise regarding slavery on the grounds that the 
law deprived a slave owner of his property without due process 
of law, notwithstanding Congress' express power to determine 
matters of citizenship. Plessy v. Ferguson is another 19th 
century case. The Court there reached out and made up the 
notion of ``separate but equal.'' They said that that is 
constitutional, notwithstanding the express provisions of the 
14th Amendment.
    So it strikes me as sort of odd that you have pointed to 
progressive landmark civil rights cases as examples of judicial 
activism and ignored regressive, some would say backward--I 
think most would say backward anti-civil rights cases. Those 
are not mentioned as activism.
    So the first question I have--and I will let you do both at 
once, since we are under time pressure, and then I would ask 
for elaboration in writing. Can you explain your thinking here? 
I want to know whether you consider Plessy and Dred Scott to 
also be examples of judicial activism the way you consider 
Brown v. Board.
    The next question is this: I am sort of struggling to 
reconcile your contention that judicial activism is a creation 
of the 20th century, when we have all those 19th century cases 
that seem to me to be every bit as ``activist'' as your 
    Brown v. Board, in my mind, is one of the three or four 
most important cases the Court has ever rendered. Yet, you cite 
it as an example of social engineering and judicial activism. 
Are you saying that the Court in Plessy was right when it held 
that separate but equal is justified by the Constitution? Are 
you saying that Brown v. Board was wrong when the whole Court 
held that separate but equal was not equal at all?
    There are several cases from this century that one can look 
at and say they constitute judicial activism that might not go 
along with your ideological views, but seem to me to be 
activist, breaking new ground. One is Brancala, the VAWA case. 
I would put that one high up on the list.
    Since the mid-1990s, we have seen a whole bunch of cases 
that seem to me to look like conservative judicial activism. 
This body knows very well that I don't like so-called activism 
from the right or the left, although we might have different 
definitions of that term.
    Can you tell me, for instance, what cases, if any--the 
first question I have is the Brown v. Board case. The second is 
what cases, if any, from the Rehnquist you would characterize 
as examples of judicial activism.
    Mr. Block. Okay, thank you. Senator Schumer, the references 
to Brown and the Warren Court precedents came from a blue 
booklet called ``Plurality Decisions,'' which is sort of a 
tongue-twister sometimes to say it fast. I believe that was 
written in 1988. It was prepared, not exactly written by me. It 
was prepared for the Office of Legal Policy, Department of 
Justice, at the end of the Reagan administration.
    It was a work that was a collaborative effort. I was the 
main researcher; I was the main writer of that. And my main 
contribution, for which I won an award, was an analysis of 
plurality decisions. On that footnote--
    Senator Schumer. The Brown footnote?
    Mr. Block. The Brown footnote. I will say this: At that 
time and now, I disagree with that footnote, my personal 
    Senator Schumer. But you put your name as one of the--
    Mr. Block. Well, my name is not on there. It is not on 
there. I was a preparer. I had to write in my judicial--what 
did you write on? What did you author? What did you prepare? I 
prepared that for the Department of Justice. It was a 
collaborative effort.
    But I will say this: I disagree with that footnote 
completely. I believe in equal protection under the law. I 
believe that people of race, national origin, and different 
creeds ought to have equal protection of the law and I just 
disagree with that footnote.
    Senator Schumer. Okay.
    Mr. Block. Number one. Number two--
    Senator Schumer. How about Reynolds v. Sims, same thing?
    Mr. Block. Same thing. Number two--
    Senator Schumer. Was that in the same footnote?
    Mr. Block. That was in the same footnote. All those were in 
the same footnote.
    The term ``social engineering'' now, if I can explain 
further, is a most unfortunate use.
    Senator Schumer. It sure was.
    Mr. Block. It was written in a different context, if I can 
go back to plurality decisions and explain that. The main 
criticism of plurality decisions of the Court--and as you know, 
that is decisions where there is no majority opinion of the 
Supreme Court--is that it doesn't stand for a proposition of 
law. There is no clear-cut decision, and therefore the Court is 
reneging on its social guidance function.
    And that article criticized that and said actually 
plurality decisions may be a good thing because it helps 
develop the law. And my conclusion doing the research, by the 
way--it was not because a lot of conservatives criticized the 
Court for use of substantive due process, which is I think what 
you are getting at--judicial activism.
    But my conclusion was not that it was a result of 
substantive due process. It was a result that simply because of 
the use of certiorari, they just hear very hard cases and they 
can't agree, and that was the real reason. So that is my 
explanation of that.
    Senator Hatch. Would the Senator yield for just one 
question on this?
    Senator Schumer. Yes.
    Senator Hatch. I am in agreement with Senator Schumer. I 
don't think judicial activism on the left or on the right is 
    What is your position on that?
    Mr. Block. That was my next point. I absolutely agree with 
you, Senator. Examples of judicial activism in the 20th century 
from the right are the Lochner case, the Schechter Poultry 
case, and Carter Coal Company, which overturned the New Deal. I 
disagree with those cases. I think there is nothing--
    Senator Schumer. How about Brancala? What would you 
consider that?
    Mr. Block. I have to refresh my memory, Senator.
    Senator Schumer. That was the VAWA case. I will ask you 
that in writing because I know we are in trouble--in trouble 
    Senator Schumer. I guess we don't have much time left. I am 
going to submit other questions in writing for you.
    Mr. Block. Sure.
    Senator Schumer. One of them--in your report to General 
Meese, ``A New Look at Plurality,'' you called on the Supreme 
Court and you said they should abandon substantive reasoning in 
favor of textual or other interpretivist methods.
    So my question--and you can answer this in writing, but I 
think we ought to just air it here so my colleagues can hear 
it, too. Do you believe there are any legitimate rights not 
mentioned explicitly in the Constitution? You can answer that 
one in writing because it takes some thinking.
    Mr. Block. Yes is my answer.
    Senator Durbin. Thank you, Senator Schumer.
    Mr. Block, we will give you the opportunity, as well as the 
other nominees, to answer questions in writing. I hope that the 
hurried nature of this hearing is not a poor reflection on this 
committee, but I can assure that there has been a substantial 
amount of work done by staff and others in preparation for this 
and that follow-up questions will fill in any omissions or 
areas of concern.
    Without objection, I will ask that statements by both 
Chairman Leahy and Senator Grassley be made part of the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Durbin. I want to thank all the witnesses for their 
appearance and patience. As I indicated earlier, we will leave 
the hearing record open to allow committee members to submit 
written statements and follow-up questions.
    [The biographical information of Judge Gardner, Mr. Clark, 
and Mr. Block follow:]










































































































































































































    Senator Durbin. The hearing is now adjourned.
    [Whereupon, at 3:13 p.m., the committee was adjourned.]
    [Questions and answers and submissions for the record 

































































                         DISTRICT OF CALIFORNIA


                     WEDNESDAY, SEPTEMBER 18, 2002

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Biden, Feingold, Schumer, 
Durbin, Cantwell, Edwards, Hatch, Specter, Sessions, Brownback, 
and McConnell.

                      THE STATE OF VERMONT

    Chairman Leahy. Today, we hold our 24th hearing for 
judicial nominees since I took over as chairman in the summer 
of 2001, and we will consider six more judicial nominees. That 
brings to 90 the number of judicial nominees for whom the 
committee has held hearings in the last 14 months. Professor 
McConnell is the 19th Court of Appeals nominee we have held in 
the Judiciary hearings.
    This is also the fourth hearing on a judicial nominee 
sponsored by my friend Senator Hatch, it is the third hearing 
for a nominee to the Court of Appeals for the Tenth Circuit, 
and the second hearing for a Utah nominee. It is also the first 
hearing for Professor McConnell and each of the others here 
today who have been nominated by the President for lifetime 
appointments to the Federal bench.
    In fact, it appears that we have held more hearings for 
more judicial nominees and more hearings for circuit court 
nominees than in any 14-month period of the 6 and a half years 
preceding my being chairman. I mention this, seeing members of 
the Republican leadership here, because I think somebody had 
given them erroneous numbers on that, but I will repeat it. We 
have held more hearings for more judicial nominees and more 
hearings for circuit court nominees than in any 14-month period 
of the 6 and a half years previously that my friends on the 
other side of the aisle controlled the committee. We voted on 
more judicial nominees--82--and on more circuit court 
nominees--17--than in any 14-month period.
    We have already confirmed 77 of the judicial nominees of 
President Bush. We have confirmed more of President Bush's 
nominees in 14 months than were confirmed in the last 30 months 
that my friends controlled the Senate, and we have done it in 
half the time. We have also confirmed more of President Bush's 
judicial nominees since July 2001 than were confirmed the first 
full 2 years of his father's term. And we have treated, of 
course, his nominees more fairly and more expeditiously than 
President Clinton's nominees were treated. So it is an 
interesting thing. I don't know why I bring it up, but I----
    Chairman Leahy. I did notice in the 6-and-a-half-year 
period of control by the other party before the change in 
majority last summer, vacancies on the Courts of Appeals more 
than doubled from 16 to 33; overall vacancies rose from 65 to 
110, with more than 40 vacancies since then. But we have 
reversed that.
    Today, we will have a hearing on the nomination of 
Professor McConnell to the United States Court of Appeals for 
the Tenth Circuit; Alia Ludlum to the Western District of 
Texas; Kent Jordan to the District of Delaware; William Martini 
to the District of New Jersey; Thomas Phillips to the Eastern 
District of Tennessee; and Jeffrey White to the Northern 
District of California. I welcome all the nominees. They are 
going to get a chance to introduce their families.
    Professor McConnell will be the first witness. He is a 
popular and provocative law professor at the University of Utah 
Law School. As a scholar, an advocate, and an activist, he has 
advanced controversial positions, and I have read many of his 
writings, and I know that he has stated his positions very 
clearly, which I appreciate.
    We will ask, of course, whether these writings will inform 
his judicial decisionmaking, whether as a judge he will uphold 
the constitutional right to privacy, whether he would seek to 
weaken the wall separating church and state.
    On that last regard, I hope that the Democratic members on 
this committee are not subjected to unfair criticism based on 
our religious affiliations--as has been done by several during 
the last 14 months, including some, unfortunately, in the 
Republican leadership. I think that it was probably done in the 
heat of a moment. I have never questioned anybody's religion--
in fact, I don't know the religion of 99 percent of the 
candidates that have come before here, nor do I think that that 
is important, nor is mine important, nor is it important to the 
members of this committee on either side of the aisle. I 
mention that to--while editorial writers and others have a 
right to say anything they want, and I would defend their right 
to say anything, no matter how foolish, religious tests have 
never been under either my leadership, Senator Hatch's 
leadership, or any other Senator's leadership of this 
    So I am delighted to have everybody here. We will proceed 
today, as I said, with the hearing on Professor McConnell and 
others. Next Thursday I believe we have Mr. Estrada and a 
number of others who are coming before us.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Leahy. But to begin with, I would yield to my good 
friend Senator Bennett from Utah who is here to speak for 
Professor McConnell, and as he is the Senator from the State 
with the circuit judge, I would go first to him, and then we 
will go to Senators in order of seniority.
    Senator Bennett? Well, Senator Hatch has arrived. We will 
go to Senator Hatch first, Senator Bennett, if you don't mind. 
We want to go in order of seniority and go by circuit judges, 
and also what I was saying earlier, we are going to try to go 
through the introductions as quick as we can because I would 
hope that we could finish all these nominees today.
    Senator Hatch. Well, why don't I reserve mine until after 
they all make theirs.
    Chairman Leahy. Are you sure?
    Senator Hatch. Did you make your opening statement?
    Chairman Leahy. I did because we wanted to get started, but 
if you want to, feel free.
    Senator Hatch. Why don't I make mine until after everybody 
has made theirs.
    Chairman Leahy. Senator Bennett?


    Senator Bennett. Thank you, Mr. Chairman. I appreciate your 
courtesy and the opportunity to be here today and testify on 
behalf of the nomination of Michael McConnell, a nominee to be 
judge of the United States Court of Appeals for the Tenth 
    Professor McConnell's legal career is outlined. Just 
hitting the highlights of it for the sake of the record, he 
graduated from the University of Chicago Law School in 1979, 
clerked for Chief Judge J. Skelly Wright of the D.C. Circuit, 
and then Justice William Brennan of the U.S. Supreme Court, 
worked as assistant general counsel for OMB from 1981 to 1983, 
Assistant to the Solicitor General 1983 to 1985, then went to 
the University of Chicago Law School where he taught until 
1996, after which the University of Utah was successful in 
getting him to come to Utah in 1997, and he has been there 
until the present.
    I will not go through all of the list of endorsements that 
he has received from academics and practicing attorneys from 
every portion of the political spectrum. I wish to focus on the 
main reason why I think Professor McConnell is as outstanding a 
nominee as this committee will ever receive for the circuit 
court. And I hope I am known as one that is not given to 
hyperbole around here. I choose those words very carefully. If 
we cannot confirm this man, we cannot justifiably confirm 
anybody. He has the unanimous ``well qualified'' endorsement of 
the ABA, and as I say, he is endorsed and supported by people 
all across the spectrum in the legal field.
    Now, if I may quote from a statement by Cass R. Sunstein 
that appeared in the Wall Street Journal, it says, ``While a 
strong defender of the rights of religious believers, Mr. 
McConnell testified against a constitutional amendment that 
would allow official prayer in school.''
    I find that very comforting because it mirrors my own 
feeling. I feel very strongly that the government should 
protect the rights of religious believers. I feel very strongly 
that there has been an attempt in modern America to denigrate 
religion and to ridicule those who are religious believers. But 
I personally am opposed to a constitutional amendment for 
prayer in school because I think it is not necessary for those 
who are strong religious believers to have that additional 
governmental support. And by taking that position, Professor 
McConnell has divorced himself from some segments of the 
religious community who are under attack by groups like People 
for the American Way.
    It is unfortunate and improper, in my view, for groups like 
People for the American Way to characterize Professor McConnell 
as a member of the hard religious right. His past stands have 
made it clear that he is not there, and his past positions have 
made it clear that attempts to put him there border on 
character assassination.
    I mention the character assassination because it comes out 
of Professor McConnell's mouth in a different context. When the 
impeachment of President Clinton was put forward by the House 
of Representatives and we in the Senate were required, 
therefore, to deal with it under the Constitution, Professor 
McConnell spoke up in opposition to that impeachment and then 
made this very interesting statement: ``This last tit-for-tat 
has blown up in the face of Republicans. Maybe we're going to 
take a step back and focus not so much on character 
    I wish that those who are opposed to his nomination would 
pay attention to that sentence and realize that they are moving 
forward on the basis of character assassination rather than the 
man's temperament and capacity and quality to be on the bench.
    I know he has written things that are controversial. I 
cannot imagine anyone who would be a law professor commenting 
on as many subjects as he has taken on who would not have 
written controversial things. But the question is not what has 
he said in his writings. The question is what will he do on the 
bench. And there is no question but that he has demonstrated in 
his writings and his positions that he has taken as advocate, 
sometimes for unpopular litigants, that this is a man of 
judicial temperament who will move intelligently and properly 
to a clear definition of the law. This is a man who has been 
described by people as diverse as Laurence Tribe on the left to 
Orrin Hatch, if I may, on the right, who have both praised the 
man's judicial temperament and his ability to set aside----
    Chairman Leahy. You just told me something about Orrin I 
didn't know.
    Senator Bennett. I am going with the popular flow on that 
one, Mr. Chairman.
    It demonstrates that this is a man who is not an ideologue. 
That doesn't mean he doesn't have strong opinions. If he did 
not have strong opinions, I think he would not be qualified to 
serve anywhere. All of us have strong opinions. The question 
is: Does he have the judicial temperament that will cause him 
to move to interpret the law regardless of his opinion? I 
cannot think of any nominee that has been brought before this 
committee who has demonstrated that capacity more than 
Professor McConnell.
    And so I hope, Mr. Chairman, that the members of this 
committee will resist the almost frantic character 
assassination that has been mounted against Professor McConnell 
by those who refuse to look at the balance of his record and 
decided that they are going to focus on one article or another 
and then use that, taken out of context, to try to destroy the 
character and ability of this good man.
    I cannot endorse him more highly. I do not think, as I 
said, of anyone more qualified. I do not know of any nominee 
that comes before this committee with a broader range of 
support or a better record to serve as a member of the Tenth 
    Chairman Leahy. I would also note for the record that this 
is very similar to what you and I have discussed about him. You 
have told me many of these same things about the professor in 
private as you stated here, and you have been completely 
consistent, both you and Senator Hatch, in your praise of him 
during that time.
    Senator Hatch is going to withhold for the moment. Is 
    Senator Hatch. I will withhold, Mr. Chairman, until Mr. 
McConnell is in his seat. I notice that we have Congressman 
Matheson here.
    Chairman Leahy. What I thought I would do--and obviously 
you can step in at any time you want, but we would go to 
Senator Gramm, Senator Hutchison, Senator Thompson if he comes, 
Senator Frist, Senator Carper, and Senator Corzine in that 
order. And, yes, if--Senator Bennett, I know you have a whole 
lot of other different places you are supposed to be. I am not 
trying to tell you to leave, but if you would like to, please 
feel free.
    Senator Bennett. Thank you. I appreciate your courtesy, Mr. 
Chairman, and I appreciate, since you have brought it up, the 
very measured and open way in which we have been able to have a 
dialogue on this nomination in our personal conversations. You 
have been more than gracious and fair in the conversations that 
we have had, and I think it is appropriate to get that fact on 
the record.
    Chairman Leahy. Well, thank you very much.
    We will go to Senator Gramm.


    Senator Gramm. Thank you, Mr. Chairman. I am very happy to 
be here in support of the President's nominee for the District 
Court in the Western District of Texas, Alia Ludlum. Alia 
Ludlum is an honor graduate of Texas Women's University with a 
degree in accounting. She is a graduate of the University of 
Texas Law School. She started her career of public service as 
an assistant county attorney in Travis County, which is Austin, 
our capital city.
    She was appointed Assistant U.S. Attorney in the Del Rio 
Region. That is a region that is along the border of our State. 
It deals with a large number of international issues related to 
our border. It is an area where we have intense prosecution of 
drug crime. In that environment, she rose to be chief of the 
Del Rio Division. She was chosen by the Federal judges in the 
Western District of Texas to become a U.S. Magistrate, and in 
that capacity she has had an exemplary period of service.
    Judge Ludlum currently serves as secretary of the Judicial 
Council of the Hispanic National Bar Association. She has been 
elected by her fellow attorneys in Val Verde County as 
president of the County Bar Association. She has been very 
active in civic affairs, especially related to the American 
Cancer Society, and she is an outstanding citizen.
    In fact, I was noting, looking at her resume, her first 
name in ancient Greek literally means ``of the highest order.'' 
I don't know whether her parents realized that or not when they 
named her, but I believe she is of the highest order. I think 
she will do an outstanding job. This is a new judgeship that 
was created in Del Rio because of the huge volume of 
jurisdiction related to drug crime and border issues. As a 
Federal prosecutor and as chief of the Del Rio Division, she is 
intimately knowledgeable of these issues and I believe is very 
well qualified for this job, and I commend her to this 
    I thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Gramm. Eventually I am 
going to remember to turn this microphone on.
    Senator Hutchison?


    Senator Hutchison. Well, thank you, Mr. Chairman. I really 
appreciate your holding this hearing for Judge Ludlum. Phil has 
given you her background, and you can see that she is eminently 
qualified for this bench. She also is a native of the border 
region of our State, and I would just ask that you look at the 
situation of the courts in Texas and expedite her nomination.
    It is a newly created U.S. district court post, one of 
three vacancies in Texas designated as judicial emergencies by 
the non-partisan Judicial Conference of the United States. Last 
year, 4,156 criminal cases were disposed of in the western 
region of Texas; 665 of those were in Del Rio. Only El Paso 
recorded more Federal criminal cases in the entire district. So 
it is a new bench that will go in Del Rio, and it is a fast-
growing area on our border, so one that we really need to have 
a permanent judge and apparatus for in that area.
    She brings such an outstanding record of academic 
qualifications, as Senator Gramm noted. Her legal experience 
and her prosecutorial experience will make her an outstanding 
Federal judge, and she has received a ``well qualified'' rating 
from the ABA.
    I couldn't say enough nice things about her. I know that 
she can take the bench immediately because she is already 
there. We certainly need to have her judicial strength on the 
Texas border to keep the flow of these cases going and to 
dispose of them in a reasonable manner.
    She is a terrific person, a contributor to the community, 
and I recommend her to you highly. Thank you.
    Chairman Leahy. I thank you, Senator Hutchison, and you 
have spoken to me a number of times about the situations along 
the border. In fact, one of the things we have done, as you 
know, we have added judges in the DOJ authorization bill, which 
has been stalled over in the other body. And I added some of 
those at your request.
    Senator Hutchison. Yes, it was your position, along with 
Senator Hatch, that created these new judgeships that we are 
now trying to fill, and we still need more, but we hope that 
you will continue to help us. But we do appreciate having this 
opportunity and thank you for the expedited hearing.
    Chairman Leahy. We have even had one of the Federal judges 
from my own State go down to help out in Texas on some of these 
border cases. He has told me the same thing you told me earlier 
of the need for the judges, and we will keep trying to help. 
Thank you.
    Senator Hutchison. Thank you very much.
    Chairman Leahy. Senator Frist?


    Senator Frist. Thank you, Mr. Chairman.
    Mr. Chairman, it is an honor for me to join the committee 
today in support of Thomas Wade Phillips' nomination as United 
States District Judge for the Eastern District of Tennessee.
    Tom's parents owned the general store in Oneida, Tennessee, 
where they taught their five children the values of honesty and 
hard work. Tom put those values to work in his college 
education at Berea, in law school at Vanderbilt, and in his 
career as a captain in the U.S. Army Corps.
    With distinguished military service behind him in the Judge 
Advocate General's Corps, he returned home to Tennessee to 
begin his private legal practice, eventually returning to 
Oneida, where he had the opportunity to work with one of our 
distinguished colleagues, Senator Howard Baker. Once again, 
Tom's honesty and hard work were the hallmarks of his legal 
practice, and in 1991, he was recognized for his efforts and 
appointed a U.S. Magistrate Judge for the Eastern District of 
    As a Magistrate Judge, Tom has continuously demonstrated 
his love of the law, and he is known for his calm demeanor. He 
is meticulous, fair, thorough, and he is held in the highest 
esteem by both the bar and the bench. Each day Tom lives the 
values imparted to him by his parents, and he and his wife, 
Dorothy, have in turn shared those values with their two 
wonderful children.
    Tom personifies the best of America, a law-abiding citizen 
who cares deeply about his home, his family and country, and 
who truly wants to serve his fellow man.
    Mr. Chairman, I am proud to recommend Judge Tom Phillips to 
you for the U.S. District Court in Eastern Tennessee and urge 
you and your colleagues on the Judiciary Committee to consider 
his nomination as quickly as possible.
    Thank you, Mr. Chairman.
    Chairman Leahy. I thank you very much, Senator Frist, and I 
do appreciate that, and your words, of course, will be very 
helpful to the nominee. I thank you for being here.
    I also know you have to be half a dozen other places, and 
please feel free to leave.
    I am also going to put a statement from Senator Feinstein 
in the record. She had hoped to be here to introduce Mr. White, 
and I think about the 20 or so friends and family members here. 
But because of the Senate Intelligence hearing at the same 
time, she may not be back, so I am going to put her full 
statement in the record.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Chairman Leahy. Senator Carper? Also, we have a place for 
Congressman Matheson up here. I don't want him to feel left 
out. We seem to have more people than usual in here, but I 
think a lot of family members are there.
    Senator Carper?


    Senator Carper. Mr. Chairman, thanks very much, and Senator 
Hatch and other members of the committee. This might be a day 
for Utah to get a two-fer because not only do you have a 
nominee for Utah and a couple Senators here from Utah, we have 
a nominee for a U.S. district judgeship in Delaware, for the 
District of Delaware, who is a graduate of Brigham Young 
University. His name is Kent Jordan. He is here today with his 
wife, Michelle, and I think most of their six children. They 
are sort of split up in the room here behind me, but we welcome 
Kent and Michelle and their family.
    I have had the pleasure of knowing him for several years. 
Delaware is a little place, and you know just about everybody 
if you hang around long enough. He has a wonderful reputation. 
He has a reputation for being bright, he has a reputation for 
being a person of great integrity, and he has a reputation for 
being somebody who works real hard.
    He was born a long, long time ago in West Point, New York, 
and ended up going to undergraduate school, as I said earlier, 
at Brigham Young, graduate school, Georgetown Law, and was 
admitted to the Delaware Bar in 1984. During that period of 
time, he made a smart decision and hooked up with a famous 
Delaware judge, now retired, U.S. District Court Judge James 
Latchum, and served as a clerk for Judge Latchum, who says this 
fellow is a keeper and he sends along his strong endorsement 
for Kent Jordan.
    Kent has served with a couple major Delaware law firms, the 
firm of Potter Anderson, where he was an associate, and later 
on as a partner in the firm of Morris James Hitchens and 
Williams. He has been an Assistant U.S. Attorney in the State 
of Delaware and teaches, has taught as an adjunct professor of 
law at the Widener School of Law in our State, and for the last 
4 years has been the general counsel and vice president of a 
company called The Corporation Service Company, which is 
involved in servicing companies, some of the hundreds of 
thousands of companies which are incorporated in the State of 
    His nomination, actually, his name was put forward not by 
Senator Biden and by myself, but initially by Congressman Mike 
Castle, who is the lone Republican member of our congressional 
delegation. Having said that, I am happy to sit here today as a 
Democrat to say this is a good nomination. He has made our 
State proud, and I think he would make all of us proud if he 
were confirmed.
    Thank you so much.
    Chairman Leahy. Thank you very much, and Senator Biden has 
also expressed his support of him. Both of you Senators have 
returned positive blue slips on him, and Congressman Castle and 
I spent some time together when recently we had a joint meeting 
in New York City and he had stated those positions. So I 
appreciate your being here, and I appreciate your support of 
the nominee.
    Senator Carper. Thanks, Mr. Chairman.
    Chairman Leahy. Senator Corzine?


    Senator Corzine. Thank you, Mr. Chairman and Senator Hatch 
and other members of the committee. It is my pleasure to be 
here today to introduce William J. Martini, nominee for the 
U.S. District Court in the District of New Jersey. I appreciate 
the committee's timely consideration of this nomination.
    Senator Torricelli unfortunately can't be here today, but 
he joins me in offering his support for Mr. Martini's 
nomination, and I ask unanimous consent that a statement from 
Senator Torricelli be submitted to the record.
    [The prepared statement of Senator Torricelli appears as a 
submission for the record.]
    Senator Corzine. Mr. Chairman, Mr. Martini is a lifelong 
resident of New Jersey with a distinguished career in the law 
and public service, and I believe we will be fortunate to have 
his skills, background, and perspectives on the Federal bench. 
Mr. Martini brings a variety of experiences that will inform 
his service on the bench. He has a strong legal background and 
is well respected in the legal community, by both the bar and 
the bench. He served as both a Federal and State criminal 
prosecutor, litigating numerous criminal trials, has operated a 
solo practice for almost 18 years, focusing on criminal defense 
and civil disputes, and recently has been a partner in one of 
New Jersey's leading law firms.
    In addition to his legal background, Bill Martini has also 
served New Jersey in numerous public capacities. He has a 
reputation of enormous integrity and commitment to public 
service. He served as a Passaic County Freeholder, a Councilman 
in his local Community in Clifton, Commissioner of the Port 
Authority of New York and New Jersey, and as a distinguished 
Member of Congress representing the 8th District of New Jersey 
in the House of Representatives in the 104th Congress.
    I am confident his political background will help bring a 
broader perspective of service to the Federal bench in New 
Jersey. He has always represented the best interests of the 
people. As far as I am concerned, I think he will make an 
outstanding judge.
    I note that I am particularly pleased that Mr. Martini is 
part of an extremely distinguished group of nominees for the 
U.S. District Court in New Jersey. New Jersey currently has an 
unprecedented five openings out of 17 positions on the court. 
Senator Torricelli and I have worked diligently with the White 
House to fill these seats. They have been very cooperative in 
that effort to arrive at a group of five nominees who are each 
distinguished in their own right. Together, they represent the 
best of New Jersey's legal community as well as a truly diverse 
set of experiences and backgrounds that I think reflect our 
State and our population.
    Mr. Chairman, I hope that I will have the opportunity to 
present these other four nominees to you in the near future. I 
know Senator Torricelli is in the same mode, and I am confident 
you will be impressed with all of them. But, again, let me just 
say that I think Mr. Martini is an outstanding nominee. I am 
very, very pleased to support his elevation to the court. He 
has a distinguished record of service to our Nation.
    Chairman Leahy. Thank you very much, and, of course, your 
support of him--both you and Senator Torricelli have returned 
blue slips on him, and that will be very helpful to him. I am 
glad to hear that the White House is working with you, as it 
should with the Senators, and I hope that perhaps your 
experience in New Jersey, they will try that also in other 
States, and it would help very much in moving judges forward. I 
thank you very much. I know in some other States they have, 
too. I don't want to suggest that it is the only one, but I am 
hoping the precedent will grow.
    Senator Corzine. Thank you.
    Chairman Leahy. Senator Thompson, it seems you are here 
almost every day with another nominee. You have to turn your 
microphone on. Senator Thompson is not used to television 
cameras and microphones and all that.


    Senator Thompson. If you will help me work my way through 
it, we will make it together.
    Well, I do want to express my gratitude, Mr. Chairman. This 
is the third judicial nominee from Tennessee who will be 
approved in this Congress. We were able to fill a vacancy on 
the Sixth Circuit and one in the Western District as well, and 
I want to express my appreciation for that.
    I am here today to introduce to the Judiciary Committee 
Judge Tom Phillips, who is the President's nominee to fill the 
vacancy in the Eastern District of Tennessee. Mr. Chairman, I 
think this is the best part of the job that we have, being able 
to play a part in bringing people like Tom Phillips forward and 
assisting their becoming a member of the judiciary.
    Judge Phillips was born and raised in Scott County, which 
happens to be Howard Baker's home county. It is a small county, 
a small, rural county, and Judge Phillips went off to 
distinguish himself academically and in a lot of other ways 
before he went back home to practice law. He was Phi Beta Kappa 
at Berea College in Kentucky. He went on to attend Vanderbilt 
Law School on a full scholarship where he was editor of the Law 
Review and received the dean's award for best senior 
    He then joined the Army's Judge Advocate General Corps, 
which awarded him its Outstanding Appellate Advocacy Award and 
the Army Commendation Medal in 1973. While in the Army he 
attended George Washington University where he got his 
master's. Then he returned home and became the county attorney 
for Scott County and was re-elected there several times in his 
hometown of Oneida, Tennessee. And in 1991, the judges in the 
Eastern District appointed him to serve as Magistrate in 
Knoxville, where he holds that position.
    During the time he has served as Magistrate, he has earned 
the respect of all who have appeared before him in terms of his 
demeanor, in terms of his courtesy and his intellect. During 
the screening process, Senator Frist and I reviewed the records 
of all of the candidates, talked to many of them, and we heard 
many, many favorable comments about Judge Phillips. I think the 
record before the committee demonstrates his outstanding 
qualifications in many ways, but I cite just the example that, 
in over 11 years on the bench, Judge Phillips has been reversed 
just two times, and only on one occasion has a district judge 
rejected his recommendation.
    He has excelled not only professionally but in his 
community as well. He has promoted legal education by serving 
as a member of the Inns of Court and teaching at the University 
of Tennessee Law School. He has been very active in his church 
and the bar associations and pro bono legal services, and has 
served on the boards of Scott County Hospital and Opportunities 
for the Handicapped. Just an outstanding man, an outstanding 
judge, and an outstanding citizen. And as I said, it is a 
privilege to be able to assist people like this become a member 
of the judiciary.
    I would be remiss if I didn't note the importance of moving 
quickly on the nomination. As the chairman knows and 
appreciates and has responded to, traditionally two district 
judges sit in Knoxville, Tennessee, which is Tennessee's third 
largest city, and late last year and early this year, Judge 
Jordan and Judge Jarvis, respectively, both assumed senior 
status, leaving the district court in Knoxville with no active 
judges. I want to express my appreciation to both of these 
gentlemen for the service that they have rendered many years on 
the Federal bench, and I am confident there is no better 
qualified person to fill the large hole left by these fine 
judges than Judge Phillips, and I am pleased to endorse his 
nomination to the committee and respectfully request your 
favorable consideration of this nomination.
    Thank you very much, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Thompson, and you know 
the great personal regard and respect I have for you, and as I 
have told you before, I treasured the time you served on this 
committee and regretted when you left the committee. And I am 
one of those who regrets seeing you leave the Senate. I think 
you bring a balance and a sense of probity and a sense of the 
Constitution to the Senate that is needed and valued, and not 
seen anywhere near enough. I felt the same way when Senator 
Baker left the Senate. I think the two of you have reflected 
the absolute best in the United States Senate. I think that 
just as Senator Baker has been missed and respected by members 
on both sides of the aisle, you, my friend, will fit in exactly 
the same category.
    Senator Thompson. Well, thank you very much, Mr. Chairman. 
Obviously, absence makes the heart grow fonder.
    Senator Thompson. And I trust that that will continue to be 
the case. But I respect you and what this committee does. It is 
an extremely important committee. Those of us who have 
practiced law for years know the importance of the work that 
this committee does with regard to the constitutional issues 
that you face, and particularly in getting the right kinds of 
people on the bench. And as I say, I think it is probably the 
most important work that is done around here, and it is good to 
be able to be a part of that, and as far as this committee 
goes, to know that you are at the heart of the other branch of 
Government, and the other branch of Government depends on the 
work of this committee. So extremely important work, and I 
appreciate your hospitality, and I especially appreciate your 
kind words today and your assistance on this nomination.
    Chairman Leahy. Thank you very much.
    Congressman Matheson, we are honored to have you come 
across the Hill. It is not an easy thing to do these days with 
all the construction. We appreciate your being here. Go ahead, 


    Representative Matheson. Well, I certainly appreciate the 
opportunity to appear before the committee. I recognize you 
have got a long day ahead of you, but I do want to make some 
brief remarks, if I could.
    I am Jim Matheson, Member of the House of Representatives 
from the 2nd Congressional District in the State of Utah, and I 
am pleased to be here today to introduce Michael W. McConnell. 
President Bush appointed him 16 months ago to serve as a judge 
on the United States Court of Appeals for the Tenth Circuit.
    Now, Mr. McConnell lives and works in my congressional 
district, and he is the Presidential Professor of Law at the 
University of Utah. The dean of his law school, who also 
happens to be my brother, confirms what many leaders in the 
legal profession have said about this nominee, and that is that 
Professor McConnell is one of the Nation's most accomplished 
legal scholars and appellate lawyers.
    Professor McConnell received his legal education at the 
University of Chicago. He then served as a law clerk to Judge 
Skelly Wright on the U.S. Court of Appeals for the D.C. 
Circuit, as a law clerk to Justice William Brennan on the U.S. 
Supreme Court. Professor McConnell has worked as an assistant 
to Solicitor General Rex Lee of the Justice Department and then 
was assistant general counsel in the Office of Management and 
    Professor McConnell next served for 12 years on the law 
faculty at the University of Chicago where he held the William 
B. Graham Chair. He joined the University of Utah faculty in 
1997. He is a prolific author of books and articles, and 
Professor McConnell has also argued before the U.S. Supreme 
Court 11 times. He was elected a fellow of the American Academy 
of Arts and Sciences in 1996.
    I am impressed with the support that Professor McConnell 
has received across a broad political spectrum, including 
praise from those who disagree with his views on some issues. I 
do not share his positions on all matters, but I am pleased 
that a constituent from my congressional district who has 
achieved so much and has earned such wide respect has an 
opportunity to serve our country as a Federal appellate judge.
    So I am, along with Senator Bennett, very pleased that I 
can introduce Professor McConnell to the committee, and I look 
forward as you continue with your advise and consent on his 
    Thank you for your time.
    Chairman Leahy. Thank you.
    Senator Hatch, do you want to make a statement?

                     FROM THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. Before we 
begin with Professor McConnell, I want to thank you personally 
for scheduling this hearing, and given that Professor McConnell 
is nominated to fill a Utah vacancy on the Tenth Circuit Court 
of Appeals, I appreciate your holding this hearing and I want 
you to know that.
    Of course, I get in trouble every time I am nice to you in 
public. I get a flood of letters----
    Chairman Leahy. I know the feeling.
    Senator Hatch. I get a flood of letters telling me I should 
not make friends with powerful Democrats. Well, it is tough to 
teach an old dog new tricks.
    Mr. Chairman, I am proud to be here today to introduce and 
to reiterate my strongest support for Professor McConnell, who 
enjoys support from lots of powerful people, Republican and 
Democrat, conservative and liberal, and men and women--notably, 
including well-known law professors Laurence Tribe, Cass 
Sunstein, Akhil Amar, and Walter Dellinger, who are certainly 
no strangers to this committee or its members.
    Professor McConnell, in my opinion, cannot be pegged as an 
ideologue in any sense of the word. He is an honest man. He 
calls it as he sees it, and he is beholden to no one and to no 
group. He has taken scholarly positions and has brilliantly 
argued on issues that at times have been opposed by 
conservatives and at times opposed by liberals. As the 
committee knows well, Professor McConnell has publicly opposed 
impeachment of President Clinton. He has testified against a 
school prayer amendment, as my colleague has said. He has 
represented, without charge, some left-of-center groups such as 
People for the American Way and Americans United for the 
Separation of Church and State, and he has been described by 
Supreme Court Justice Antonin Scalia as ``the most prominent 
scholarly critic'' of Scalia's approach to the Free Exercise 
Clause. He is also a brave man. He has criticized my 
constitutional amendment on the flag.
    He has taken these positions and has earned the broadest 
respect of his peers, liberal and conservative, not to make 
friends, not to agree with any agenda, but to be honest 
intellectually. Few people will disagree that he is truly one 
of the most humble legal geniuses of our time.
    Mr. Chairman and members of the committee, it is my high 
honor and privilege to introduce to you Professor Michael 
McConnell, a Utahn and a scholar of the highest talent, the 
most profound integrity, and, of course, he has a supremely 
judicial temperament.
    Now, I won't go through his career because my colleagues 
have made that quite clear. But he was a tenured professor at 
the University of Chicago, decided to teach at the University 
of Utah. He served as a law clerk to two of the leading liberal 
jurists of the 20th century, Supreme Court Justice William J. 
Brennan, Jr., and D.C. Court of Appeals Judge J. Skelly Wright. 
I would like to acknowledge the presence here today of Judge 
Wright's widow, Helen, and her husband, John Pickering. It is 
an honor to have both of you here.
    After completing these clerkships, Professor McConnell 
became assistant general counsel of OMB and then served as 
assistant to the Solicitor General of the United States. He had 
the prestigious chair at the University of Chicago. I might add 
that he is an able and very experienced appellate lawyer. He 
has argued 11 cases before the United States Supreme Court and 
won nine of them. One of his presentations to the Supreme Court 
was named by the Los Angeles Daily Journal the ``best oral 
argument'' of the year. His clients include a wide range of 
entities, from Fortune 500 companies such as NBC and Ameritech, 
to organizations such as the United States Catholic Conference, 
to municipal authorities including the New York Metropolitan 
Transit Authority, as well as many individuals.
    Now, this combination of intelligence, skill, and 
experience was very likely the reason that the American Bar 
Association gave him unanimously the highest rating possible, 
``well qualified.''
    I could go on about Professor McConnell's outstanding 
record of achievement and his unsurpassed reputation, but so 
can many friends of this committee like Professors Sunstein, 
Tribe, Dellinger, or Kmiec.
    Mr. Chairman, about the only opposition to Professor 
McConnell's nomination has come from the inside-the-Beltway 
advocacy groups. I must say, what I find striking is the stark 
difference between the evaluation provided to this committee by 
his academic peers who know him best and that done by these 
Washington special interest groups.
    In my view, Professor McConnell's excellence in 
scholarship, honesty in his intellect, his defense of liberty, 
contribution to legal thought and precise understanding of the 
role of a judge show why he is one of the best nominees this 
committee has evaluated in a long, long time.
    In reviewing Professor McConnell's full record, one area of 
scholarship stood out for me very much: his contributions in 
protecting our freedom of religion. This is one that is 
important to me, and I know from working on the Religious 
Freedom Restoration Act and the Religious Liberty Protection 
Act, it is important to all members of the committee, and we 
all cherish these issues dearly. As you know, Professor 
McConnell is widely regarded as modern America's most 
persuasive advocate for the idea that our Government should 
ensure every citizen's right to worship--or not worship--in his 
or her preferred manner. Through his scholarship and advocacy 
in court, he has stood up for the rights of all religious 
people, including members of some politically out-of-favor 
faiths to worship free of Government restriction or intrusion.
    Many Americans believe that the freedom to exercise their 
own religion is the most profound and important idea on which 
this country and our Government were founded. Many Americans 
feel so secure in this freedom that they have not personally 
felt the forces that were eroding it or the tremendous success 
Professor McConnell's efforts have achieved in repairing that 
    Before Professor McConnell began his prodigious scholarship 
in the area of the First Amendment's religion clauses, the idea 
was taking root that the Government must disfavor religion in 
its policies. That is, judges and scholars believed that all 
groups must be treated equally except religions, which must be 
excluded entirely from any Government program or policy.
    Professor McConnell's scholarship served as a dramatic 
wake-up call. He researched the Founders' writings and 
presented with illuminating clarity that the point of free 
exercise is for Government to remain neutral as between 
religions and neutral as between religions and non-religions, 
and it must accommodate religious activity where feasible. He 
demonstrated there was no basis in the founding for the view 
that our Government must be anti-religion. The persuasiveness 
of his writing reawakened American legal scholars and judges to 
the Founders' view that the First Amendment's purpose is to 
protect religion from Government, not the other way around. His 
work has helped reinvigorate the healthy and dynamic pluralism 
of religion that has allowed all faiths to flourish in this 
most religiously tolerant Nation in human history.
    McConnell's views defy political pigeonholing. On questions 
of free exercise of religion, he has generally sided with the 
so-called liberal wing of the Court, arguing for vigorous 
protection for the rights of religious minorities. In fact, as 
I said earlier, in one opinion Supreme Court Justice Antonin 
Scalia described McConnell as ``the most prominent scholarly 
critic'' of his own more limited view of the free exercise 
    On questions of establishment of religion, McConnell's view 
that religious perspectives should be given equal but no 
favored treatment in the public sphere has led him to testify 
against a school prayer amendment, while supporting the rights 
of religious citizens and groups to receive access to public 
resources on an equal basis.
    Mr. Chairman, just as the pluralism of religious diversity 
has profoundly enriches the spiritual life of our country, so 
has the strong tradition of academic freedom and exchange of 
ideas allowed an astonishing creative explosion of ideas and 
achievement in America that has benefited the people of the 
United States and around the world. Our First Amendment and our 
intellectual property laws strive to protect, stimulate, and 
widely disseminate such thought and exchange.
    Few people in modern America have contributed more to their 
area of expertise, and thus proven the value of academic 
freedom, than Professor McConnell. He has written over 50 
articles in professional journals and books. He has delivered 
hundreds of lectures and penned many op-ed pieces. He has 
contributed an immeasurable amount to the discourse of legal 
ideas. As Professor Laurence Tribe has written to this 
committee, ``McConnell is among the Nation's most distinguished 
constitutional scholars and a fine teacher.'' Professor Tribe 
further explained that he and McConnell ``share a commitment to 
principled legal interpretation and to a broadly civil 
libertarian constitutional framework.'' Mr. Chairman, I ask 
that Professor Tribe's letter be included in the record at this 
    Chairman Leahy. We will include that in the record. Also, 
there have been a number of other----
    Senator Hatch. I would ask that all of the----
    Chairman Leahy. Professor Sunstein's and others, I want to 
get them all in here. We will put them all in the record, 
including, to be very fair, those that went out of their way to 
attack me and other members of the committee, on your behalf, 
though, so it is all for the good. We will put them all in.
    Senator Hatch. Was that on my behalf or Professor 
McConnell's behalf?
    Chairman Leahy. It was done on behalf of Professor 
McConnell, but we will put them all in the record so we can be 
totally fair about this.
    Senator Hatch. All right.
    The significance of Professor McConnell's contributions to 
the legal profession in part explains why 304 professors--
ranging from conservative to liberal--have signed a single 
letter urging this committee to confirm Professor McConnell's 
nomination. Now, when was the last time that 304 professors, 
law professors at that, agreed on anything? This is the first. 
I ask consent, as you have already given, that these letters 
also be included in the record.
    Now, Professor McConnell's peers consider him one of the 
Nation's foremost constitutional scholars and appellate 
advocates and as a person with a reputation for fair-minded 
openness--or I should put that another way, open-minded 
fairness. In addition to the professors I mentioned earlier, 
Professors Charles Fried, Akhil Amar, Larry Lessig, Sanford 
Levinson, Douglas Laycock, and Dean John Sexton have been among 
those who have praised McConnell's integrity, ability, and 
fair-minded approach to legal issues. Mr. Chairman, I ask 
consent that those letters also be included.
    Chairman Leahy. Of course.
    Senator Hatch. Over the years, many on both sides of the 
aisle have discussed the impact of this committee's evaluation 
process on those who have added the most to the public 
discourse of legal ideas.
    I think we should praise and encourage the prolific 
exchange of honest and principled scholarly writing, assuming 
such scholars know the proper role of a judge, to interpret the 
law as written and to follow precedent--and I should say to 
leave the innovative scholarship at home once confirmed to the 
    Let me just ask that the balance of my remarks be placed in 
the record at this point.
    Chairman Leahy. Without objection, so ordered.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Chairman Leahy. Just so we can plan, the opening statements 
have been a little bit--they were all very helpful, but they 
have been a little bit longer than I had thought. And I know 
there are a lot of district judge nominees who are here with 
their families--Senator Biden?
    Senator Biden. If I could just----
    Chairman Leahy. After Senator Biden has had a chance to 
mention the nominee from Delaware, I am going to suggest that 
the district court nominees and their families, of course, are 
guests of this committee and are welcome to stay through any 
part of it. But we will not get to that part of the hearing at 
least until 2:30. My plan--and I have discussed this with 
Senator Hatch--is to go on the questions for Professor 
McConnell. If at 2:30 there are still questions, we will set 
aside that part of the hearing, go to the district court 
nominees, complete those, and then go back to Professor 
McConnell. Hopefully we can do this all today or at a future 
time. I am going to try to make sure we can do it all today.
    Senator Biden?


    Senator Biden. Mr. Chairman, Senator Hatch, Senator 
McConnell, I apologize, and Senator Durbin. I can't blame this 
one on Amtrak. I just flat missed the train by 3 minutes, and I 
    I am not going to ask you to reconfigure us. I would 
ordinarily introduce the nominee that Senator Carper has 
already come to introduce, a Delaware nominee. But I would like 
to do it from here and try not to--and I apologize to Professor 
McConnell for this interruption.
    Mr. Chairman, my colleagues, Kent Jordan, a fellow 
Delawarean, has been, to state the obvious, nominated by 
President Bush to fill a vacancy on the U.S. District Court for 
the District of Delaware. Kent has been an attorney for 18 
years, and in that time he has notched up some very big 
achievements. He started his legal career as a law clerk for 
one of the most respected judges to serve on the Delaware bench 
in the last half of the 1900s--Judge James Latchum, who served 
on the very bench which Kent has now been nominated to move to.
    Kent went on to serve as Assistant United States Attorney 
in Delaware for 5 years. In that time, he worked on two very 
big and highly publicized cases. The first of those cases was 
the prosecution of five men in an international extortion case 
that literally spanned three continents. The men were convicted 
of stealing trade secrets about Lycra products from the DuPont 
Company, extorting millions of dollars in a complicated 
international scheme that took them from the United States to 
Europe to South America.
    In another very big case, Kent prosecuted a major civil 
enforcement action against an oil company. One of its oil 
tankers spilled tens of thousands of gallons of oil into the 
Delaware River, killing fish and wildlife, and Kent held the 
company responsible for the damage it caused, which, as you all 
know, are very complicated cases. And he got very high marks 
for both those cases.
    He moved on to become a partner in one of Delaware's top 
law firms, Morris James Hitchens and Williams, working there 
for 5 years, and then came the call to go in-house and serve as 
general counsel for a 102-year-old corporation services 
company. The Corporation Services Company, as it is known 
nationally, CSC, and internationally, is one of the leading 
incorporation service companies in Delaware, which I am sure 
all of you, particularly Senator Durbin like to know that we 
are still able to incorporate in Delaware. I know that is one 
of the things that he feels strongly about.
    Senator Durbin. You still charge tolls on the interstate.
    Senator Biden. We still charge tolls on the interstate, and 
we still have good weather and nice people. And when I said 
Kent does everything big, that includes his family. Kent and 
his wife, Michelle--I am going to ask them to stand in a 
minute--who is here as well, have six children, five boys and a 
girl, ranging from age 7 to 20 years old. Four of them are with 
us today, I am told. They were in my office earlier where I was 
supposed to meet them, and, again, I apologize to them. So I 
would like each of them to stand, if you don't mind, Mr. 
Chairman and my colleagues, and if they don't mind, so we can 
admire you.
    Tyler is age 16. Tyler, would you stand up? Tyler looks 
like he is ready for prime time and the movies, a handsome 
young man who is a junior at A.I. DuPont High School.
    Clint, who is age 12--where are you, Clint? Over here. 
Clint, could you stand up? He left already? All right. I don't 
blame him. I don't blame him.
    Chairman Leahy. That is okay. He is going to be in the 
    Senator Biden. He is in seventh grade at H.B. DuPont 
    K.C.--who is probably gone, too--is age 10, a fifth grader 
at Brandywine, and Jesse is age 7, a second grader at 
Brandywine Springs Elementary School.
    And, Michelle, where are you? Are you still here or did you 
also take--she is probably with the kids. She is with the kids. 
Very smart mother.
    Missing today are Kent and Michelle's two older children: 
Bethany, age 20, and Nathan, age 18. And I know it will warm 
the heart of our colleague from Utah, but they are busily 
attending Kent's alma mater, Brigham Young University, BYU.
    In addition, accompanying Kent today is his very good 
friend, who also happens to be the president of the Delaware 
State Bar Association, Patricia Hannigan. Patricia, are you 
here? Thank you very much for being here. Pat, it is wonderful 
to have you here today, and let me also say that we appreciate 
your service to the State Bar Association and your service to 
the country through your work in the United States Attorney's 
    Mr. Chairman, I am absolutely confident that Kent possesses 
the sterling academic and professional qualifications that are 
needed for this job, as well as the required judgment and 
temperament. The only thing that has ever confused me is he has 
attended a university that is predominantly LDS and he went to 
law school where there are Jesuits. So I am not quite sure how 
that is going to work out. But he is known for his quiet 
demeanor, his good judgment, and his temperament.
    Chairman Leahy. It sounds to me like that should appeal to 
Senator Hatch and myself.
    Senator Biden. It does, as well as my son, and so I thank 
you for allowing me to go out of order this way, but I am very 
happy to support the nomination of President Bush's nominee to 
our district court, Kent Jordan, and I think he will do great 
honor to my district, and he has already done great honor to my 
State and to his family, and I welcome him and again apologize 
for going out of order.
    Thank you very much, gentlemen.
    Senator Hatch. Mr. Chairman, I have known Mr. Jordan for a 
long time, know his parents, know his family. His brother is 
one of our best lawyers in Utah, as a matter of fact, and we 
are very proud to have you here.
    I want to personally thank the two Senators from Delaware 
for their excellent comments about you. I think it says it all, 
and I endorse what both of them have said.
    Senator Biden. Thank you very much.
    Chairman Leahy. It sounds to me like Mr. Jordan will have a 
somewhat easy time.
    Chairman Leahy. Professor McConnell, you have a number, 
before I swear you in, could you point out members of your 
family here because one of the things I have often felt with 
nominees, we will have a transcript of this record--I should 
also emphasize to each nominee, when you testify, if afterwards 
you think of something you meant to have added to a question, 
obviously, we keep the transcript open so you can do that. We 
are trying to get the best knowledge possible and not trying to 
play ``gocha.'' So, if you feel you put a citation wrong or 
something like that and want to correct it, of course, the 
record will be open to do that.
    But I am sure someday, when you are looking in the 
McConnell archives, you will want to be able to show the 
members of the family who were there. So please introduce 
whomever you would like.
    Mr. McConnell. Thank you, Mr. Chairman, for that 
opportunity. My family is sort of scattered around the room. 
Maybe they can get together if the room clears. But right 
behind me is my very dear wife Mary; my niece, Katie Schiewetz, 
here from Washington State and presently at Lehigh University; 
my daughter Emily, who is a senior at West High School in Salt 
Lake City; and then way back there----
    Chairman Leahy. I see a hand waving.
    Mr. McConnell.--my sister, Kim Schiewetz, also from 
Washington, with my niece, Karley; and my daughter Harriet, who 
is now a freshman in college in Southern California; and 
standing next to her, a special member of our family for this 
year only, Maria Patricia Enriquez, who is a foreign exchange 
student from Ibarra in Ecuador, and is living with us for the 
year. This is her first time in Washington, D.C., and her first 
taste of American democracy at work.
    Mr. McConnell. And last, but not least, my son Sam, who is 
12, and is just entering seventh grade at West High School in 
Salt Lake.
    And if I might recognize just one other person, if that 
    Chairman Leahy. Recognize as many as you would like.
    Mr. McConnell. Senator Hatch already introduced Helen 
Wright, and I am very proud to have her here in honor of my 
first boss, Judge Skelly Wright.
    But in addition to that, the Reverend John Wimberly is here 
with me. He was my pastor. John, could you stand up. Many of 
you may know him as the pastor here at Western Presbyterian 
Church in the District. He was my pastor for many years when we 
lived here in the District. And those members of the committee, 
which may be almost all of you, who were part of the Religious 
Freedom Restoration Act movement, will be interested to know 
that the very first application of the Religious Freedom 
Restoration Act nationwide was to protect a Western 
Presbyterian Church's homeless feeding program from an adverse 
ruling from the D.C. Zoning Board. So I am very pleased that he 
could be with us here this morning.
    Chairman Leahy. Thank you. Again, I would note that for the 
District Court nominees we will not begin before 2:30 on your 
hearing. So anybody that wants to do a little bit of last-
minute sightseeing, you are not going to offend this committee 
by doing that. You are welcome to stay, of course, but if you 
wanted to take a break, please feel perfectly free to do that.
    Professor McConnell, would you please stand.
    Do you swear that the testimony you will give this 
committee will be the truth, the whole truth, and nothing but 
the truth so help you God?
    Mr. McConnell. I do.


    Chairman Leahy. Professor, if you would like to make an 
opening statement, please feel free.
    Mr. McConnell. Mr. Chairman, I think I am going to waive 
that. I would, of course, dearly love for us all to be out of 
here by 2:30, so I will try to be brief.
    Chairman Leahy. That is----
    Mr. McConnell. Hard for a professor.
    Chairman Leahy. Senator Hatch and I would love to be out of 
here, but I have a feeling, depending upon how many come, that 
may not happen, but I also don't want to cut off your 
    Let me ask you this, because you have written on this a 
great deal, do you believe there is a Federal constitutional 
right to privacy?
    Mr. McConnell. Senator, the Supreme Court has said so. I 
have been, in an academic capacity, a critic of the line of 
reasoning that led to that. That is now, I think, settled 
constitutional law, and I have no hesitation in enforcing it as 
    Chairman Leahy. You have written that the right of privacy 
is nowhere mentioned in the Constitution, I think, to quote 
you, and you have been consistent on that. So, if there is a 
constitutional right to privacy now, what is the source of that 
    Mr. McConnell. Well, I think the best account that the 
Supreme Court has given of that was in Planned Parenthood v. 
Casey, in which the controlling three-Justice joint opinion 
rooted that right in substantive due process under the 
Fourteenth Amendment, reasoning, I think, somewhat similarly to 
some previous decisions that there can be fundamental rights 
under the Fourteenth Amendment that are established not because 
of actual textual mention within the Bill of Rights or 
elsewhere in the Constitution, but rather through the 
traditions and practices of the country.
    Chairman Leahy. I am not sure I fully understand. I mean, 
is this going into the penumbra type of debate or is--well, 
perhaps I should ask you this way. You said there is a Federal 
constitutional right of privacy. Specifically, where is it? I 
mean, you have I think in Griswold, and you're probably as 
knowledgeable person as anybody in the country, that Justice 
Douglas said it came from specific guarantees in the Bill of 
Rights; Justice Black, who I have always admired--not always 
agreed with, but always admired--says that no matter how much 
one would disagree with Connecticut's law forbidding the use of 
contraception, there is no right to privacy in the 
    Mr. McConnell. Well, Senator, I have been a critic of some 
of these cases, but I am happy to tell you where the Supreme 
Court's line of argument has led. They have gone through 
several stages.
    In Griswold, in Justice Douglas's majority opinion, he did 
use the idea that there were penumbras and emanations from the 
specific provisions of the Bill of Rights, especially the 
First, Third, Fourth and Fifth Amendments. I think most legal 
scholars do not think that was a particularly persuasive 
attempt at an explanation.
    The second Justice Harlan, in his concurring opinion, 
offered a somewhat different account that I think has stood the 
test of time more successfully.
    In Roe v. Wade, the Court canvassed several different 
possible textual bases and said it didn't really much matter 
which one was the basis.
    It was only really in Planned Parenthood v. Casey that the 
Court finally came down to a single methodology and identified 
the privacy cases as being rooted in substantive due process 
under the Fourteenth Amendment.
    Chairman Leahy. And you feel that right of privacy is 
    Mr. McConnell. It is certainly well settled, Senator.
    Chairman Leahy. But not there.
    Mr. McConnell. Well----
    Chairman Leahy. I just want to make sure. I'm not trying to 
split hairs with you. I want to make sure I fully understand 
your answer. You have no question that there is a Federal right 
of privacy, yes or no?
    Mr. McConnell. I have no hesitation that there are many 
rights of privacy, yes.
    Chairman Leahy. Is there anything in the Constitution that 
would prevent, for example, Congress from regulating private 
decisions about family planning made within the confines of a 
    Mr. McConnell. Certainly, there have been a whole series of 
Supreme Court decisions on those rights, which, by the way, I 
have defended and not criticized. Whether I defend them or 
criticize them, of course, in my academic capacity is somewhat 
beside the point, since they are the law of the land, whether I 
would agree with them or not. I happen to agree with them.
    Chairman Leahy. Well, let me ask you about that and whether 
you agree or disagree. You wrote an article. You praised 
Federal District Court Judge--you published an article a few 
years ago, ``Breaking the Law, Bending the Law.'' You praised 
Federal District Judge John Sprizzo, who acquitted two men of 
charges that they violated an injunction he had issued under 
the Freedom of Access to Clinic Entrances law.
    You conceded, as a matter of law, Judge Sprizzo is probably 
wrong, but then you went on to say you can't help admiring his 
act. You defended it saying the prosecution was not asking for 
impartial justice, repression, instead of political dissent. 
Talk to me a little bit about that. What do you do, a Federal 
judge who says I'm going to ignore the law. I'm going to follow 
what my conscience tells me to do. Is that right? I mean, you 
thought it was with Judge Sprizzo. How do you feel about that?
    Mr. McConnell. Well, Mr. Chairman, I'm really glad you 
asked me about that because----
    Chairman Leahy. Well, I did because of your earlier answer 
when you said you have to follow the law.
    Mr. McConnell. Because I do not see--that article was not 
in praise of the judge. I made a very back-handed comment when 
I said that you have to admire him. The words that followed 
that is you have to admire him because this decision, this 
lawless decision, is going to mark his career for the rest of 
his life. I said that he was going to be ``excoriated''. I said 
that he would be a ``pariah''. I don't, you know, when I say I 
admired that, that was really almost, you know, maybe not quite 
a joke, certainly not very funny, but in the nature of a back-
handed compliment.
    The substance of that article was entirely critical of the 
judge and his decision. I said, and I have the words with me, I 
said, ``It cannot be true that individuals may violate court 
orders with impunity whenever they sincerely believe those 
orders are morally wrong, and it would be utterly unacceptable 
to allow such violations only but whenever the judge happened 
to agree with the violator.''
    So the substance of that article, Mr. Chairman, was to 
criticize that judge for failing to follow the law. It was not 
to praise him.
    Chairman Leahy. I ask you this because obviously you have 
written, and written very well, and probably one of the most 
articulate writers on your positions that I have certainly been 
able to find, and in advocating roles--let's start with the 
easy, and then go to more of the specific--as a Court of 
Appeals judge, what is your view of stare decisis?
    Mr. McConnell. Senator, I have been a very strong advocate, 
indeed, more of my writing has been devoted to the question of 
judicial constraint probably than any other single subject. I 
have been a very strong advocate of the view that judges should 
not decide cases upon the basis of their own personal, moral or 
political or philosophical predilections, but should ground 
their decisions in the text, especially if it's a statute, but 
also the constitutional text, its history and the past 
precedents, both of the Court and of legislative bodies in 
interpreting that matter.
    I feel very strongly, Mr. Chairman, that there have been 
times when the Federal judiciary has overstepped its legitimate 
grounds as a co-equal branch of Government, and I am committed 
to an understanding of the judicial role which is constrained, 
which respects the rule of law, which respects precedent, but 
most of all which respects the legislative judgments of 
Congress and the State legislatures.
    Chairman Leahy. Let's discuss that a little bit. In 
Griswold, and follow up on what you said about State 
legislatures, in Griswold, you spoke of that as being one of 
the popular successes of the Court. You said that the 
Connecticut law was one that was unpopular, unenforced, 
outdated. I think those were the words you used.
    Are you saying that Griswold is defensible because it was 
following a popular will or because it was overturning 
legislation that was outdated?
    Mr. McConnell. Mr. Chairman, it's actually somewhere in 
between those. And again in this, I follow, principally, the 
concurring opinion of the second Justice Harlan, whom I believe 
provided the most persuasive account in that case. We have a 
Bill of Rights with certain enumerated rights; then we have a 
Fourteenth Amendment with a due process clause and a privileges 
and immunities clause which refer to a broader set of what we 
call unenumerated rights. The difficulty is how to identify 
what those are.
    And what Justice Harlan explained, and I think quite 
persuasively, is that that cannot be a matter of mere 
democratic popular will because that it would not be 
constitutional law. On the other hand, it also cannot be based 
solely upon the personal moral views of the judiciary because 
that would be turning them into kind of what Justice Brennan 
called platonic guardians. Instead, what Justice Harlan said is 
that we need to interpret the unenumerated rights in light of 
the longstanding traditions and understandings of the American 
    In the case of Griswold itself, Connecticut still had this 
law on the books. It was rarely enforced, but, indeed, in 
Griswold itself it was enforced. But when you look at the 
question of the right of married couples to use contraceptives 
on a nationwide basis, by that time virtually every State in 
the Union had already come to this conclusion, and it had 
become part of this understanding of the rights that American 
people have and enjoy.
    So that when the second Justice Harlan enforced that right 
as a constitutional matter, he wasn't doing it because he 
thought that contraceptives were an important right; he was 
doing it because he made a judgment that that was something 
that the American people had come to.
    Chairman Leahy. But then do you feel that, take the Circuit 
Court, for example, and let us--and I'll try and make it easy--
let's assume you're getting a case of first impression, that 
you don't have a Supreme Court decision on it, you don't have 
precedent within your own circuit on it, do you feel that then, 
in the appropriate circumstances, it's all right for the judge 
to look at what is the popular view, whether a particular law 
is outdated? The miscegenation laws, for example, that's a case 
that's been settled, but say something like that, can you look 
at the popular will? Can you look at whether the thing is 
outdated? Now speaking as a Circuit judge, and not as a Supreme 
Court justice.
    Mr. McConnell. I think that the methodology that Justice 
Harlan laid out is applicable, not just to the Supreme Court, 
but to judicial review in general, and so I would say, yes, 
certainly, Mr. Chairman.
    Chairman Leahy. So you would embrace Justice Harlan's views 
as an appropriate guideline for a Court of Appeals judge?
    Mr. McConnell. Yes.
    Chairman Leahy. Thank you.
    Senator Hatch?
    Senator Hatch. I think I'll withhold for now. Thank you, 
though, Mr. Chairman.
    Chairman Leahy. Senator Durbin?
    Senator Durbin. Thank you, Mr. Chairman.
    And, Professor McConnell, thank you for joining us today.
    Some have questioned the role of this committee in the 
selection of the President's nominees for the Federal judiciary 
and whether or not we are, under the Advise and Consent Clause, 
really in a position to ask questions about the philosophy, and 
beliefs, and values, and constitutional opinions of the 
    You have written that--I don't want to misquote you, but I 
will try to make a reference here--that when we are in this 
job, doing this job here that you believe we have a 
responsibility to see if the nominee's opinions, ``fall within 
the legitimate range of opinion about the Constitution.'' Your 
words. I trust that you still believe that today, even as you 
face the committee.
    Mr. McConnell. Oh, certainly. I don't have any problem with 
that at all.
    Senator Durbin. Good. Because I want to ask you some 
specific questions about your beliefs and whether or not they 
fall within the legitimate range of the Constitution, so as not 
to allow those to come to the Federal bench who might abuse 
that Constitution. I think that is our constitutional 
    Let's go to the issue of religion, which is one that I feel 
very intensely about. In the State of Illinois, in Central 
Illinois, there is something called the World Church of the 
Creator. The man who started this is named Matthew Hale.
    Matthew Hale has a website, which I hope no one will visit, 
but if they do, they'll find this website spewing hatred, and 
prejudice, and bigotry about people particularly of color, 
those who aren't white Americans. In fact, his writings and 
teachings inspired, if that's the word, a man several years ago 
to go on a murderous rampage in Chicago, where he used to live, 
killing the former basketball coach of Northwestern University, 
an African-American man, shooting at Orthodox Jews, as they 
came home from synagogue on a Friday evening, and then driving 
over to Indiana and killing an Asian-American student on the 
campus of a university.
    Matthew Hale believes that he has a religion and that that 
is part of his religious belief. He doesn't claim that he 
inspired this man or even put him up to it, but it's part of 
his religious belief. What are we to make of that in terms of 
our society? What kind of standards should we apply in treating 
Mr. Hale's so-called religion of the World Church of the 
Creator? Let's start with the basics.
    First, should he, in any way, be exempt--or his followers--
exempt from criminal law?
    Mr. McConnell. Senator, first of all, I'm not at all 
familiar with this particular example. This does not strike me 
as a difficult question, and I don't want to be----
    Senator Durbin. Good.
    Mr. McConnell.--I don't want to be evasive, but on the 
other hand----
    Senator Durbin. As a professor, I used----
    Mr. McConnell. On the other hand, at least, in some sort of 
speculative way, this could be a hypothetical case that comes 
before the Court, and so I hate----
    Senator Durbin. Let's try this just like the law professors 
used to do to me.
    Senator Durbin. It's a hypothetical case, so engage me in 
this hypothetical. Should the World Church of the Creator or 
similar groups be held to the standards of criminal law, in 
terms of their religious belief and conduct?
    Mr. McConnell. Senator, the law of the land today applies 
to everyone, religious people, as well as anyone else. There 
are, of course, free speech considerations involved here, and I 
don't know, I have no real sense of which particular criminal--
you referred to a number of people who went on murderous 
rampages as a result of hearing this person's speeches. Of 
course, they're going to be criminally prosecuted.
    Senator Durbin. Why is this a hard question? Should the 
believers of this religion, if it is one--I don't think it is, 
but he characterizes it as such--why should we even raise a 
question as to whether they should be held to the standard of 
obeying criminal law?
    Mr. McConnell. I guess, Senator, I would return to my 
original reaction, which is it isn't a hard question. I'm sort 
of trying to puzzle through and be cautious.
    Senator Durbin. And your answer?
    Mr. McConnell. It doesn't strike me as a hard question. 
Everyone is subject to the criminal laws.
    Senator Durbin. Now let's go to the case of Reynolds v. the 
United States. Here we have a religion which practices 
polygamy, and a decision by the Court which says that that is 
against the criminal law of the State in which they are 
residing, and your writing in publication said that that case 
was wrongly decided.
    You asserted that the man involved, charged with polygamy, 
a crime in that State, ``asked only that the Government leave 
him and his wives alone.'' In fact, he was asking for a 
religious-based exemption from criminal law, was he not?
    Mr. McConnell. Yes, he was.
    Senator Durbin. And so the criminal law, at least from your 
point of view, in that case, should or should not have been 
applied to this man because of his religious belief in favor of 
    Mr. McConnell. Senator, it cannot be the case that every--
any provision that any legislature would put into the criminal 
law is necessarily going to be constitutional under the First 
Amendment. The United States Supreme Court has struck down any 
number of applications of criminal law as applied in particular 
First Amendment circumstances. So, in order to answer a 
question about criminal law, in general, you simply have to 
descend to specific cases.
    I have talked about Reynolds in a number of different 
contexts. It is, obviously, in Utah, an old chestnut and 
something that every class is interested in because of the 
heritage of the State, and I have thought about it in different 
ways over time. The position that I recall having stated has 
not been that Reynolds was incorrect in its day, although I 
think a lot of scholars do have questions about it, but rather 
whether the prosecution of someone for having multiple--can we 
call them partners for just a moment?--when that person has 
those multiple partners with blessings of clergy, under a 
circumstance where it would be not illegal for such a person 
simply to have a bunch of serial relationships outside of 
marriage, looks like he's being prosecuted not for the multiple 
relationships, but rather for having gotten those relationships 
blessed in church, and that seems to me to be a problem.
    Senator Durbin. Well, let me take it a step further.
    Mr. McConnell. That the very same conduct becomes criminal 
because it is tied up in a religious practice.
    Senator Durbin. I don't accept your conclusion, but I want 
to take you a step further. We now have instances where these 
polygamist relationships involve girls 13 and 14 years old--
clearly, another violation of a criminal law.
    Now let me ask you does that State or any State go too far 
in enforcing a criminal law against someone who believes, as a 
matter of personal religious belief, that they are entitled to 
have these so-called partners of any age?
    Mr. McConnell. Senator, I would love to answer that because 
my answer is exactly what you would like to hear. I, again, 
hesitate to answer questions that very possibly may come up to 
me before, as a judge, but I assure you that the reason I'm 
hesitant has nothing to do with the merits. I don't think 
    Senator Durbin. And your answer is?
    Mr. McConnell. I'm confident that you and I are not in 
disagreement on this.
    Senator Durbin. And your answer is?
    Mr. McConnell. My answer is I wish you would put the form 
of a--the question in a way that I could conscientiously give 
you an answer because there is no disagreement with us on this, 
but I can't--what you've asked me is a hypothetical case----
    Senator Durbin. Yes, a hypothetical----
    Mr. McConnell.--that might extremely likely come up in the 
Court on which I'm going to sit. And I'm sorry, even when it's 
an answer that you'll like to hear, that's not something--I'm 
afraid that's just something I can't do.
    Senator Durbin. Then I don't know how far this hearing is 
going to go if that's your general response, but let me take 
you to the next level.
    Let's forget about enforcing criminal laws against those 
who would violate them in the name of religion, and let's go to 
the question of State-granted privileges or State-granted 
regulation. You seem to argue in the Bob Jones case before the 
Court, with Bob Jones University, that their policies of racial 
discrimination should not disqualify them, that church, that 
religion, those adherents, from certain favorable tax 
    So now, beyond the realm of criminal law, let me ask you 
this: Do you believe that we have a right to ask of Bob Jones 
University or the World Church of the Creator that if they are 
asking for privileges based on religion, such as exemption from 
paying taxes for commercial activities, do you believe it is 
wrong for us to say you cannot discriminate based on race, 
gender, sexual orientation?
    Mr. McConnell. At that level, I would say yes to that.
    Senator Durbin. You believe it is proper for us to enforce 
standards so that those guilty of racial discrimination do not 
receive tax benefits?
    Mr. McConnell. I think that when Congress passes 
restrictions on the receipt of benefits that, you know, of 
course, there is going to be some constitutional analysis 
involved, but I have no problem with the general proposition 
that antidiscrimination laws can be among those.
    Senator Durbin. And what about the Fair Labor Standards Act 
when it comes to those religions which argue that they should 
not be bound when it comes to minimum wage, record-keeping, 
discrimination in employment? Do you believe that it's proper 
for those religions to be held to those standards?
    Mr. McConnell. Senator, as you may know, I wrote the brief 
in the United States Supreme Court defending the right of the 
Secretary of Labor to enforce those regulations. I have offered 
academic reflection upon whether that's the correct result. In 
that particular case, it was the workers themselves who filed 
suit who did not--who had taken the equivalent of a vow of 
poverty. Had they been, say, Roman Catholic monks in a 
monastery, also performing commercial tasks, making jam, you 
know, doing the various things that monks traditionally do, 
they would have, there would have been no requirement that they 
violate their oath of poverty.
    I think that it is somewhat questionable for the Government 
to say that if you're a Roman Catholic monk, we'll respect your 
vow of poverty, but if you belong to one of these rather new, 
you know, strange religions that we haven't heard of before, 
and you have the equivalent practice, that you should not. 
That's my problem with the very position that I took in the 
Supreme Court.
    Senator Durbin. My time has expired.
    Mr. Chairman, I would like to stay and ask some more 
questions because some of the responses have not been 
consistent with your writings earlier, and I would like to 
clarify those.
    Thank you, Mr. Chairman.
    Chairman Leahy. Of course, Senators on either side will be 
permitted to ask whatever questions they wish.
    The Senator from Pennsylvania?
    Senator Specter. Professor McConnell, the concern boils 
down to whether your own views, as expressed in your 
professorial writings, would be reflected in your judicial 
decisions, contrasted with the law, as articulated by the 
Supreme Court of the United States.
    On the issue of Roe v. Wade, you have been very, very 
explicit in disagreeing with the case. It doesn't mean you 
won't follow it, but your language is very, very strong--the 
right of privacy is nowhere mentioned in the Constitution. 
Various judges, according to the Court, had found at least the 
roots of that right in the First Amendment, and the penumbra of 
the Bill of Rights, and the Ninth Amendment or in the concept 
of liberty guaranteed by the first section of the Fourteenth 
    This vague statement is tantamount to confessing the Court 
did not care much where in the Constitution this supposed right 
might be found. All that mattered was that it be broad enough 
to encompass abortion, and you quote the former dean of the 
Stanford Law School, John Hart Ely, a supporter of abortion 
rights, who has written that Roe is ``not constitutional law 
and gives almost no sense of an obligation to try to be.''
    We all know that the Constitution has evolved, 
constitutional interpretation has evolved, as Justice Cardozo 
put it, to reflect the morals and standards of the people in an 
evolving context.
    Brown v. Mississippi in the late 1930s was a sharp 
abrogation of federalism, where the Supreme Court of the United 
States stepped in to say that due process prohibited coercive 
tactics in extracting a confession, and the whole series of 
cases on Mapp v. Ohio on search and seizure, and Miranda on 
confessions, and right to counsel case. So that all of these 
have expanded the view of constitutional interpretation.
    In the context of where constitutional interpretation has 
evolved, isn't that really the accepted standard for what the 
Court has interpreted the Constitution to be?
    Mr. McConnell. Senator, obviously, my academic criticisms 
of the legal reasoning in Roe v. Wade are very well known. I 
hope that they have, and believe that they have, helped 
generations of students grapple with these. In my line of work, 
we actually still debate old cases, and we try to work through 
what the arguments were even when they are settled, but 
underlying all of this is a much more important principle, and 
that is the principle of the rule of law and the constrained 
role of the judge.
    I can tell you, as with as much conviction as I have for 
anything, that I will serve, of course with the agreement of 
this committee, I will serve as a judge committed to the rule 
of law, not just because I have to, but because I believe that 
is the right role.
    Senator I doubt that--I know that with respect to any given 
issue, I've written on a lot of controversial things, there's 
probably no Senator on this committee who would not disagree 
with me strongly on one thing or another as an original matter, 
but there's something that I really would like--I think I can 
assure every member of this committee you will be pleased with 
the way I conduct the judicial office, that I pledge to 
respect, enforce fairly, with absolutely the least humanly 
possible influence from my own personal views, I will enforce 
the law. I will do it fairly, I will do it even-handedly.
    I'd like to think, Senator, that this is the reason why so 
many people, with whom I've worked closely and with whom I 
often have disagreed on particular issues, but who know my work 
as an academic and as an appellate lawyer, have come before 
this committee through letters to endorse that.
    Senator I think of myself as a fair-minded person, but I 
especially know myself to be a person committed to rule by law 
and not by the personal views of the judges, whether those 
views are moral or philosophical or religious or whatever they 
happen to be. This is a country committed to judging by the 
law, and I am absolutely committed to that.
    Senator Specter. Well, that's a strong statement, and I 
appreciate it. You'll follow the rule of law, as opposed to 
your personal views. What you have said about the Supreme 
Court's decision in Roe v. Wade is that the justices did not 
follow the rule of law, they followed their own personal views. 
Isn't that the long and short of your analysis of Roe v. Wade?
    Mr. McConnell. Yes, Senator. Nonetheless, not only was Roe 
v. Wade decided by the Supreme authority, but a lot has 
happened in the 26/27, however many years it's been since Roe 
v. Wade. That decision has now, it has been considered, it has 
been reconsidered and reaffirmed now by justices appointed by 
Presidents Nixon, Ford, Reagan, Bush, Clinton, after very 
serious reargument. At the time when Roe v. Wade came down, it 
was striking down the statutes of at least 45, if not all 50 of 
the States of the Union. Today it is much more reflective of 
the consensus of the American people on the subject.
    I believe that the doctrinal analysis offered in Planned 
Parenthood v. Casey has connected the right much more 
persuasively to traditional legal materials, and then the 
weight of stare decisis simply indicates that this is an issue 
that is settled. It is as thoroughly settled as any issue in 
current constitutional law.
    Senator Specter. Well, long after it was thoroughly 
settled, you continued to write about it in a critical way.
    Mr. McConnell. Senator----
    Senator Specter. That's a professorial prerogative and not 
indicative of what you do as a judge?
    Mr. McConnell. Senator, in my line of work, we're still 
arguing Marbury v. Madison.
    Senator Specter. Well, how about Marbury v. Madison?
    Mr. McConnell. I have written that I think it was rightly 
decided, and in fact I am currently writing quite a lengthy 
article on some of the historical aspects of the case.
    Senator Specter. Be careful. We may have a couple of 
Senators who disagree with you on that.
    Mr. McConnell. Senator, may I expand on that for just a----
    Senator Specter. Sure.
    Mr. McConnell. I don't want to take up too much time, but 
there really is a difference between what we as academics do 
and what lawyers do and what judges do. As academics, what we 
try to do is write--the words that are praise for an academic 
are such things as ``provocative'' or ``innovative'' or ``a new 
way of thinking'' about something.
    We debate and we redebate things that are already settled 
because that isn't the issue for us; it's the underlying logic 
of the matter. And we think that in this play of debate between 
people who disagree that we're all going to come to a better 
    I have participated in that, but that means that I have a 
whole bunch of writings out there that were provocative, and 
innovative, and taking a different view. Well, within--my 
academic colleagues understand that that's what we do. If you 
try to make those look as though they are legal analysis, as if 
they were what a lawyer thinks the law is, of course they don't 
reflect the law. They're not meant to. They're not a 
description of the law.
    There are some things that I have written that are legal 
analysis in the sense of what do the statutes, and precedents, 
and so forth, mean. In those I think you will find--I hope you 
will find--that I am extremely scrupulous in the statement of 
precedent, the following of precedent, the carrying through of 
    Of course, in my academic writings I have criticized 
unanimous Supreme Court decisions, but we all do that in my 
line of work.
    Senator Specter. Professor McConnell, the red light went on 
in the middle of your last answer. The chairman says I should 
go on.
    I am glad to know your position on Marbury v. Madison 
because when then-Judge Scalia was up for confirmation, he 
wouldn't tell us his position on Marbury v. Madison. That's a 
true story. You don't get many out of Washington, but that's a 
true story.
    Mr. McConnell. Well, he may not have taken a position on it 
as I have.
    Senator Specter. On the issue of First Amendment freedom of 
religion, are your personal views at variance with the 
decisions of the Supreme Court of the United States?
    Mr. McConnell. Alas, Senator, they are. When the United 
States Supreme Court decided Employment Division v. Smith in 
1990, I wrote an article very strongly criticizing that 
decision. I still believe that it was incorrectly decided. I 
think many members of Congress agreed with that because that 
was the premise for the passage--I believe it passed the Senate 
98 to nothing--of the Religious Freedom Restoration Act. The 
Court has now struck that down. I am not pleased with that. I 
criticized that decision as well. But, nonetheless, as a judge, 
I will be required to apply the law as the Supreme Court has 
stated it.
    Senator Specter. Well, that's the critical question, that 
you are prepared to give the Senate your assurance that 
notwithstanding your personal views, which have been expressed 
in a number of contexts on the First Amendment, that you are 
prepared to accept those decisions and follow them without 
letting your personal views intrude in any way on your judicial 
    Mr. McConnell. Without equivocation, Senator, absolutely.
    Senator Specter. Thank you, Professor McConnell.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Specter.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    First, Professor, congratulations, and I take to heart your 
comments about the role of a professor versus the role of a 
judge, and so my first question relates to the fact that you 
would become a very high-ranking judge in our system. Some 
argue that this committee should give less- searching 
examination of the records of nominees to the Circuit Courts 
because they are bound by Supreme Court precedent, and I surely 
agree that the standard of review, if you will, should be 
stricter for the Supreme Court.
    But given that the Supreme Court reviews only a very small 
percentage of the decisions of the Court of Appeals, do you 
agree that Court of Appeals judges have a significant impact on 
the development of the law, even within the bounds of Supreme 
Court precedent?
    Mr. McConnell. Yes, Senator.
    Senator Feingold. You've written articles that analyze and 
criticize lower court's opinions, correct?
    Mr. McConnell. Yes.
    Senator Feingold. And so obviously we're not just 
confirming automatons here, we're talking about judges with a 
lot of power and the final word in many, many cases; is that 
    Mr. McConnell. That's correct.
    Senator Feingold. I'd like to ask a more specific question. 
As we've seen, you are a very prolific writer. You've written 
on a wide variety of topics in both legal journals and the 
popular press. When you take on a new issue, how do you educate 
yourself on it before writing? Do you read a lot of source 
documents, and do you speak to other experts in the field?
    Mr. McConnell. Senator, it really depends. Some of the 
things that I work on are in-depth, scholarly pieces, in which 
case it is not infrequent that I work on them for several years 
before I send them out for publication, and it is my practice, 
whenever possible, and it usually is possible, to circulate 
them widely among other academic colleagues and get their 
comments and suggestions. I particularly seek out people whom I 
think will disagree with the argument because their comments 
are the best, always the most helpful.
    There are other things that I would do that would be in a 
more casual vein, where I would be less-inclined to go through 
that process.
    Senator Feingold. The reason I ask is I want to ask you 
about an article you wrote for the Wall Street Journal in 
December 1997 called, ``A Constitutional Campaign Finance 
Plan.'' Had you written about campaign finance law previously, 
and what did you do to educate yourself on that article?
    Mr. McConnell. Senator, I think that all that I have 
written, I've written two op-edish pieces on that general 
subject, the bulk of which were tossing out what I thought were 
interesting possible ideas for dealing with the campaign 
finance reform problem. I would not call these--these were not 
the product of enormous study. They were more in the nature of 
    Senator Feingold. You're right. You made a number of 
proposals in your article which you say are ``a big improvement 
over McCain-Feingold, which cannot possibly pass Congress, and 
would likely, and rightly, be struck down by the Supreme Court 
if it did pass.''
    Well, let me first say that I hope you are as poor a 
prognosticator in the court case as you were on the bill's 
prospects for enactment, but I'm mostly just kidding you there.
    Let me read you something else you said about the bill, and 
this is really what I'm getting at. That was just an aside.
    You said, ``McCain-Feingold, for example, would make it a 
crime to run an advertisement stating your views on the 
candidate within 60 days of the election. Under no coherent 
reading of the Constitution could it be permissible to prohibit 
citizens and voluntary associations from attempting to persuade 
their fellow citizens how to vote. This is the very core of the 
First Amendment.''
    I agree completely with the end of that statement, but as 
for the first sentence, where you say that McCain-Feingold 
would make it a crime to run an advertisement stating your 
views on the candidate within 60 days of the election, that was 
completely untrue in the 1997 version of our bill and in the 
bill that passed.
    So my first question is, and I'm serious about this, is did 
you actually read the bill before you wrote this article?
    Mr. McConnell. Senator, I'm certainly aware that that was 
not in the bill that passed, and I have noticed that, and since 
that's the only constitutional issue that seemed to me settled 
by precedent, I think that the new bill is certainly better 
than what I had understood the act to be.
    I, frankly, don't remember what I looked at. I may very 
well have relied upon press reports about the contents of the 
    Senator Feingold. I appreciate your----
    Mr. McConnell. And if I misconstrued it, Senator, I'm 
sorry, and that's all I can say.
    Senator Feingold. I appreciate that answer because I've got 
to tell you that the myth is out there that is central to the 
opposition to the McCain-Feingold law, which is this completely 
falsehood that the bill bans any ads at all. It does have an 
impact on the financing of ads within 60 days.
    I do have to say, and I have enormous respect for you and 
all of the people that have supported you, somebody with your 
credibility and academic standing to continue this notion that 
somehow this law bans ads is a problem.
    Mr. McConnell. Well, I certainly was aware that it was not 
part of the bill as enacted.
    Senator Feingold. Well, there are those that are still 
saying that. In fact, that's the basis of a lot of the talk 
about the Supreme Court case, suggests that the so-called 
Snowe-Jeffords provisions ban ads. It is false, and I 
appreciate the fact that you were candid enough to concede that 
that would be a false interpretation.
    Another thing you said in your article was that the central 
provision of the bill that you said would likely be struck down 
by the Supreme Court is a ban on so-called soft money. And you 
actually recognize in your article that the Buckley decision 
allows Congress to design laws to combat corruption, and the 
example of corruption that you give in your article is the 
contribution of hundreds of thousands of dollars of soft money 
by Roger Tamraz to the Democratic Party in 1996. You say in the 
article, ``Americans have a right to do what we can to sway 
public opinion, but not to buy privileged access to our leaders 
by giving money to their campaigns.''
    That sure appears to me to be the rationale for belief that 
the soft-money ban in the bill is constitutional. Do you 
currently believe that a soft-money ban is constitutional?
    Mr. McConnell. Senator, I confess I was not, I'm a little 
surprised. Could you read that? Because I didn't think that was 
ever my view.
    Senator Feingold. Your view is one that I would agree with 
on this portion.
    Mr. McConnell. Oh, well----
    Mr. McConnell. I'm greatly relieved.
    Senator Feingold. I'm happy about this part.
    Mr. McConnell. I'm greatly relieved because I thought that 
was the case.
    Senator Feingold. You indicated that the kind of 
contribution that Mr. Tamraz gave would be the kind of thing 
that the Supreme Court would contemplate as being permissible 
to be banned as a soft-money contribution. I'm simply asking 
you if that leads you to the conclusion that, in fact, the ban 
on soft money in the McCain-Feingold bill is constitutional.
    Mr. McConnell. Well, without regard to how I might act on a 
case coming before me, that's what I--I'm on record on that as 
my academic opinion.
    In that case, I was not talking about fanciful sort of 
academic theorizing about what the Free Access Clause might 
look like; I was looking at what Buckley v. Valeo holds. So 
that's actually what I would call a legal analysis conclusion, 
rather than one of our sort of law-professor speculations.
    Senator Feingold. Fair enough. In a fairly recent article 
written in 2000 for a Federalist Society symposium, you were 
highly critical of the Supreme Court's redistricting cases and 
of the principle of one person/one vote. Your view, as I 
understand it, is that the Equal Protection Clause should not 
have been applied to redistricting decisions because it was not 
intended by its drafters to cover anything having to do with 
voting or political rights, and you see one person/one vote as 
having had deleterious effects on politics.
    You write, ``In sum, the effect of one person/one vote 
doctrine has been to favor entrenched partisan, political, 
unaccountable representation and to exacerbate racial 
    You suggest that the Court should have instead relied on 
the Republican form of Government Clause to invalidate the 
terrible malapportionment that was the norm in legislative 
districts in the early 1960s.
    I want to first ask you about your theory that a 
``Republican Form of Government'' approach would permit some 
forms of racial gerrymandering and that this might actually be 
a good thing. Could you explain that to us?
    Mr. McConnell. Senator, I offered several criticisms of the 
Supreme Court's adoption of equal protection. I offered some 
historical, and other objections as well, but one of those is 
that when the right, the voting right, is conceptualized as an 
individual right to absolutely equal treatment, then it brings 
to bear a whole set of implications.
    One of those implications is what I call in that article 
the precise mathematical equality problem. In Karcher v. 
Daggett the Court was led to strike down a State districting 
plan where the variations between districts were actually less 
than the statistical error in the census.
    What I have suggested is that, under the Republican Form of 
Government Clause, and this I'm really drawing upon the ideas 
expressed by Justice Stewart in those original reapportionment 
cases, that they would allow some flexibility, not for the 
massive kind of intentional malapportionment that we used to 
see, but rather of certain, in a sense, random deviations from 
mathematical equality that would allow States to continue to 
follow traditional city, county and other lines which would 
make political gerrymandering much more difficult.
    But, also, I think that the use of equal protection invited 
the idea that, of course, equal protection is about race, and 
therefore when racial considerations come into play in 
districting, that that violates the Equal Protection Clause.
    Under the Republican Form of Government Clause logic, it is 
legitimate for a majority in the legislature to elevate a 
submerged minority. What's illegitimate, under the Republican 
Form of Government Clause, is for a majority to entrench itself 
in power, but it is not illegitimate to give a heightened voice 
to a submerged voice within the State. Oftentimes, that will be 
geographic, as in Lucas v. General Assembly, a Colorado case, 
but it could just as well be based upon economic or racial or 
other considerations.
    I think that had the Court gone down this route, that we 
might have been spared this rather, I think, unfortunate, 
doctrinally incoherent Shaw v. Reno line of cases that has 
interfered with the ability of States to be able to, again, 
increase the voice of submerged minorities within the State.
    Senator Feingold. I thank you for your answers, Professor.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Now, Professor, this will be a real test of any judicial 
abilities you may have, having acknowledged the value of parts 
of McCain-Feingold. We'll now let you answer questions from 
your namesake, Senator McConnell, who flat-out disagrees with 
    Mr. McConnell. Can I claim whiplash?
    Chairman Leahy. Senator McConnell is a valued and senior 
member of this committee and delighted to have him here.
    Go ahead.
    In case you're wondering, Professor McConnell, these are 
actually new microphones just put in since the recess, and it's 
because we found the others are probably a little bit more 
sensitive than we thought, and some of us were finding that our 
extra-Judicial comments were becoming front-page news.
    Mr. McConnell. I think I heard a few of those.
    Chairman Leahy. Yes. Senator Hatch and I were going to take 
the show on the road, but will you please start the clock over 
again for Senator McConnell, please.
    Senator McConnell. Mr. Chairman, I'm not sure, is it 
    Thank you very much. As the lead plaintiff in the lawsuit 
seeking to strike down McCain-Feingold, let me suggest that we 
are, indeed, arguing that the bill criminalizes speech, and we 
are indeed arguing that the soft-money ban is unconstitutional 
under the First, Fifth and Tenth Amendments, and I expect if 
you were hearing the case you would now have to recuse 
yourself, having already taken a position that Senator Feingold 
prefers, which leads me to the whole business of following 
    We've heard a lot about following precedent on this 
committee when it's precedence we like. There have been a lot 
of questions of every nominee about Roe v. Wade. I can't recall 
anybody asking a nominee whether precedent was also important 
in following Buckley v. Valeo. If following precedent is 
important for District and Circuit judges, let me ask you, 
Professor McConnell, we shouldn't just sort of treat it as a 
cafeteria line, should we, where we sort of pick out the 
precedence we want to follow and ignore those we don't want to 
    Mr. McConnell. I think we have to take the sheep with the 
    Senator McConnell. Well, but Buckley v. Valeo is----
    Mr. McConnell. The sheep with the goats. I hope that's not 
impertinent when referring to Supreme Court decisions--the acts 
of genius with the others.
    Senator McConnell. Buckley v. Valeo is no less a Supreme 
Court decision than Roe v. Wade, is it?
    Mr. McConnell. Absolutely.
    Senator McConnell. With regard to Roe v. Wade, and the 
whole issue of professorial critique of decisions, let me just 
read to you some comments made by someone whose name I will not 
mention at the beginning in taking a look at Roe v. Wade. This 
person said, ``Roe v. Wade sparked public opposition and 
academic criticism, in part, I believe, because the Court 
ventured too far in the change it ordered and presented an 
incomplete jurisdiction for its action. I earlier,'' this 
person says, ``I earlier observed that in my judgment Roe 
ventured too far in the change it ordered. I commented at the 
outset that I believe the Court presented an incomplete 
justification for its action. Roe, I believe, would have been 
more acceptable as a judicial decision if it had not gone 
beyond a ruling on the extreme statute before the Court. Heavy-
handed judicial interpretation was difficult to justify and 
appears to have provoked, not resolved, conflict.''
    This was in a law journal article in 1985, and the author 
of it was Ruth Bader Ginsburg. So it seems to me we can 
stipulate that professors make a living critiquing decisions, 
and in many instances being somewhat provocative. But the 
fundamental point here, I assume, Professor McConnell, is that 
once the Supreme Court speaks, as a Circuit judge, you have 
little latitude, do you, in interpreting, you know, in 
upholding a decision that's clearly within the precedent.
    Mr. McConnell. That is right, Senator.
    Senator McConnell. I might say that I would like to claim 
kinship with Professor McConnell. In fact he is from my 
hometown, went to Waggener High School. His mother still lives 
there. Regretfully we are not related, but I wish we were. And 
in spite of our apparent difference here on McCain-Feingold, 
that issue will be resolved by judges other than yourself, and 
unlike some of my colleagues on the other side, I'm not a one-
issue voter here, and I'm inclined obviously to support you 
because your credentials are outstanding in every respect. I 
think this is one of the great--the President has made a number 
of truly outstanding nominations and yours is certainly near 
the top of the list.
    Mr. McConnell. Thank you very much.
    Senator McConnell. So I certainly intend to support your 
nomination and look forward to its coming to the floor on the 
Senate where it can be confirmed.
    Mr. McConnell. Thank you. And, Senator, I doubt that there 
is any member of any committee where would not have rather 
serious differences, but it is my real hope that if I am 
confirmed that every member of this Committee is going to be 
able to look at my career and say that this was a good thing 
today, because I have the ambition not to have any particular 
agenda, but simply to be a model, a model rule-of-law judge. 
That is what I want to be.
    Chairman Leahy. But I think that people do set those 
differences aside. I have so far voted on 84 or 85 judges, each 
one of whom have had some points I disagreed on before this 
Committee. So I think we always look at these questions as 
totality. I must disagree with my friend, Mitch. I have never 
heard, in my 28 years in this Committee, any Senator, 
Republican or Democrat. say they are going to make up their 
mind on a judicial nominee on one issue.
    Senator Schumer.

                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman. Thank you for 
holding these hearings. And I have to say I think this is a 
very interesting outstanding hearing. It is the kind of hearing 
that we should be having. I think there was a time in the 
history of this country that we did not hold confirmation 
hearings for judicial nominees. It is not that Senators did not 
vote against nominees. That has happened for a long time. But 
there was not the kind of give and take that we are engaging in 
    And frankly, I would say this to you, Professor McConnell, 
I know this is long and exhausting for you and all of that, but 
I think we are doing the country a real service by going 
through these kinds of dialogues. It would be easy for us to 
sit up here and read what nominees have said and written and 
decide whether to consent based on that alone, but I think 
there is real value in the give and take. I think it has been 
true, Mr. Chairman, of just about every confirmation hearing 
that I have been to this year, but I am not sure there is more 
value in a confirmation hearing in this Congress than on this 
one today. This one is really excellent, and so I want to thank 
you for that, and engaging us I dialog and making us think, 
because this has been an intellectual high-minded, far-ranging 
hearing, aside from occasional little darts thrown. Only one 
side thinks about one issue, but other than that, it has been a 
terrific hearing.
    I would also want to note, as others have, Professor 
McConnell, you can tell a lot by the company you keep, and you 
have a lot of people on your side: Orrin Hatch; I read a very 
well-argued piece by Cass Sunstein, a man I have tremendous 
respect for and who has been basically very much in accord with 
my view that ideological views should matter as we vote on 
judges. So you come well recommended. And you have a long track 
record as well, unlike other nominees, who we do not have any 
idea how they think, you have written a lot about a lot of 
subjects. By your admission a few minutes ago, you have tried 
to be provocative. Very well, you have succeeded very, very 
well in that regard.
    And you think out of the box. I think after reading some of 
your writings and hearing about you on newly-decided issues, I 
think there is very little doubt in my mind that no one could 
prejudge how you are going to come out on some of them. These 
are on newly-decided issues because you do have that kind of 
thinking. And I think people like that should be on our courts.
    But I am worried about one thing here. Yes, we want people 
in a sense who have new and creative ways of thinking, but we 
do not want people who ignore the law when they think it is 
wrong. That is not what our judicial system is all about. That 
is activism. For a long time people sort of on your side of the 
political spectrum were angry at activists because they thought 
they were making new law from the left. Now I think the trend 
is the other way. Lots of people think new law is being made 
from the right. I would argue the motivations of people, and 
the former wanted to go forward, and these folks want to go 
backward, but that's a characterization that we will leave to 
another time.
    But it is troubling if somebody does just basically believe 
that they can ignore the law. And I am really troubled--Senator 
Leahy touched on this, but I would like to go further--by your 
article on Judge Sprizzo's case, called ``Breaking the Law, 
Bending the Law.'' It was written in the June/July edition, 
1997 of ``First Things,'' I guess. Is that the name of the 
    Mr. McConnell. Yes.
    Senator Schumer. And I just reread the article, and 
basically you praised Judge Sprizzo for the concept of judicial 
nullification, judges substituting their personal beliefs for 
the law as defined by Congress or a higher court. Now that is a 
pretty far out idea. I will let you answer this, but there is 
another article----
    Mr. McConnell. I thought I criticized judicial 
nullification. I said that there is jury nullification in our 
system, but that there is no such thing, and should not be such 
a thing as judge or judicial nullification.
    Senator Schumer. In this ``Breaking the Law, Bending the 
    Mr. McConnell. In that very article I'm touching on.
    Senator Schumer. Yes. You basically say that you show 
complete sympathy with Judge Sprizzo. Let me read you the 
opening paragraph then.
    ``Federal Judge John E. Sprizzo will never again be 
promoted or advanced, for he has committed an unpardonable act 
of courage in defense of conscience.'' I mean, that is pretty--
that is the whole tone of the article, that what he did was a 
great thing.
    Mr. McConnell. Please read on. Well, Senator, I----
    Senator Schumer. You go on to say that he should not have 
done what Congress wanted, but rather fined the two people who 
were blocking the clinic $50 I think it was.
    Mr. McConnell. What I said is that what he did was not 
lawful. I said ``it cannot be true that individuals may violate 
court orders with impunity whenever they sincerely believe 
those orders are morally wrong,'' and I said it would be 
``utterly unacceptable to allow such violations only but 
whenever the judge happened to agree with the violator.''
    Now, my comment about the $50 was in reference to the 
prosecutor, of what was actually being asked in this case. This 
was a peaceful protest in which two priests were saying the 
rosary in a driveway with, according to the facts of the case, 
minimal obstruction of the clinic, and the prosecutor wanted to 
put them in prison for 6 months. I was saying--I was 
criticizing both the judge, who let them off all together, and 
also the prosecutor for seeking a sentence so disproportionate 
to what would ordinarily be given a peaceful protestor----
    Senator Schumer. That is not how--I read the article as 
basically encouraging the Sprizzos of the world and saying they 
did great things. But let me go on here. In the article the 
redistricting cases, which we touched on before, you say, 
``When faced with questionable precedents, it is usually better 
to rethink the precedents than to contrive a way to evade 
them.'' That is a far cry, I think, from what you have said 
today to a number of the witnesses here, where you are 
basically you will obey, you know, you will follow the 
precedents. Today you have claimed that if confirmed, when it 
comes to questionable precedents, despite your earlier 
position, you will follow the precedent.
    And I do not think this is just an academic exercise 
because here you are arguing what judges ought to do. You were 
not just reaching, as you said, for a far out, innovative way, 
but you are saying, let us rethink the precedents. So how do 
you square that with what you have told the people here today?
    Mr. McConnell. Senator, there are two types of--two 
meanings of precedent. There is the precedent that's set by a 
higher court to a lower court, and that is absolutely binding, 
and the lower court may not twist and turn. They may not twist 
and turn. They may not do anything about it. What I was talking 
about was the Supreme Court thinking about its own precedents, 
and there is often a problem in--and I'm by far not the only 
person to notice this--that when the Supreme Court doesn't 
really believe in a precedent that it has decided in the past, 
that it then decides, it distinguishes the case on some often 
rather spurious ground, and they----
    Senator Schumer. And after 200 years, right?
    Mr. McConnell. And--and they often develop a quite 
inconsistent body of doctrine, and I'm not talking here about a 
lower judge, a lower court judge, or as the Constitution calls 
them, inferior court judges, doing that with respect to Supreme 
Court precedent. What I'm talking about is a court which has 
the authority to review its own precedent. Sometimes it's 
better simply to go back and rethink than to have a bunch of 
distinctions which lead to an incoherent body of law.
    Senator Schumer. So you are saying as a Court of Appeals 
Judge your writings on, quote, ``evading precedents'' would 
still remain your advice to Supreme Court Justices, but not to 
yourself and your fellow Justices on the Court of Appeals?
    Mr. McConnell. Well, actually what I'm saying is rather 
than evade precedents----
    Senator Schumer. Rather rethink. Sorry, to rethink 
    Mr. McConnell. That if a court isn't going to follow the 
precedent honestly, that it's better to rethink than it is to 
offer disingenuous distinctions. Now, courts do both and 
they'll continue to do both. It's the--but it doesn't apply to 
the hierarchy. It applies to any court including the Tenth 
Circuit, but it will be the Tenth Circuit with respect to the 
Tenth Circuit's own precedents, or the Supreme Court with 
respect to its own precedents. But lower court judges take 
their orders from the higher court.
    Senator Schumer. So the article here is simply applying to 
Supreme Court decisions?
    Mr. McConnell. Well, every--yes, Senator. Every case I talk 
about is Supreme Court in that article.
    Senator Schumer. Okay. Let me ask you this question. You 
mentioned earlier that you did not want to answer some specific 
hypotheticals because the case might come before you. How do 
you reconcile that with say places where you have taken a clear 
position in your writings, take FACE? I take it you believe 
FACE is unconstitutional; is that correct?
    Mr. McConnell. Senator, may I address the FACE issue?
    Senator Schumer. Yes, please.
    Mr. McConnell. In a somewhat longer answer. I gave--when I 
testified--not before this Committee, although there were many 
Senators on both--on the FACE bill, I was not engaging in an 
academic exercise. I was engaging in legal analysis. And I 
identified a series of constitutional defects in the bill as it 
then existed. I cited in the testimony actual precedent. And 
members of this Committee must have agreed with my testimony 
because there were no fewer than 6 significant changes in the 
bill, and I'd be happy to go through each one of them that was 
adopted in response to my testimony. The Committee cured the 
constitutional defects that I identified.
    Senator Schumer. So you believe FACE is constitutional now 
as written?
    Mr. McConnell. I do. I haven't written that before, but--
because my testimony took place having to do with a----
    Senator Schumer. You said you have written that before or 
you have not?
    Mr. McConnell. No. I said I have not, because my testimony 
took place regarding an earlier version of the bill, and I like 
to think that my service to the Committee was useful in that 
case, even though I don't pretend that the underlying 
enterprise is one in which I have a lot of sympathy, but in 
terms of legal analysis, I think I gave it to you straight, and 
I think that the Committee understood that, and must have 
agreed with my criticisms.
    Senator Schumer. So you basically would not rule in a case 
already decided, the case Sprizzo, you would not say, ``Do not 
impose the sentence the prosecutor asked; overrule and do a $50 
fine?'' I may remind you, I wrote the FACE law. And people did 
peaceful protests and were fined or not fined at all, and most 
of the clinics were shut down by that. They were peaceful. They 
stood in front of the clinics because they believed they were 
more right than the law and they were--they would pay their 
fine and go back and stand in front of the clinic again, and 
they would pay their fine and go back and stand in front of the 
clinic again, and they would pay their fine and then go back 
and stand. They were taking the law into their own hands in a 
peaceful way but a very serious way that led us to write the 
law. So I am asking you--that is why the FACE law mandated not 
$50 fines. Now, these--the two in the case you were there for 
explicitly violated a court order. It was not an accidental 
stepping over a line, et cetera. There had been this history at 
this clinic. The judge had made an order. And they violated the 
law directly because they thought their view was superior to 
the law of the land. You still--tell me what you would do 
there. Would you enforce a more serious sentence that at a 
lower court was imposed, or would you overturn it? That case. 
So I do not want you to have to----
    Mr. McConnell. Senator, as you add more information, 
certainly I would take that into consideration in determining 
the actual sanction. I did not suggest in that article that no 
sanction should be implied. I didn't say that the act was 
unconstitutional. I did not say that the judge should let them 
off. And what you have said to me about the--you know, the 
context of penalties, I do believe that in the case of protest, 
political protest, that we want--that a judicial system ought 
to be as lenient as possible, but a gradation of sanctions is 
obviously appropriate if it's necessary in order to protect 
other people's rights.
    Senator Schumer. Let me read you what you wrote here. It 
said, ``Lynch and Moscinski''--if I am pronouncing the name 
right--``should have been punished for the acts they committed. 
They should not have been spared because their cause was just. 
But they should also not be punished more severely because 
their cause is unpopular. They should have been charged with 
trespassing on private property''--that is not the charge that 
they were charged with--``and given the same punishment that is 
meted out to others who commit the offense in that jurisdiction 
with comparable damage. I guess a $50 fine would be about 
    I would argue to you that if that happened, we would go 
back to the days again where 80 percent of the clinics were 
closed by a very, very small minority of people who took the 
law into their own hands.
    And so I would ask you again, I mean do you think in a 
situation where Congress has ordered a greater fine, where a 
lower court--or a greater punishment, where a lower court has 
ordered a greater punishment, where there has been a willful 
violation of a court order, not an accidental stepping over the 
line, that the $50 fine would be about right. I mean you wrote 
about a specific case. The facts were all available.
    Mr. McConnell. Senator, if the--if Congress imposes a 
particular penalty, that's the penalty that should be imposed 
by the judge. My understanding is that this is a violation of a 
court order, and therefore the particular penalty was in the 
discretion of the judge. I actually--I consider myself informed 
by what you've said here this morning.
    I do think that a gradation of punishments is appropriate, 
and it may very well be that in the context of continual 
violations--I don't know that these gentlemen had done it ever 
before. I don't know what the circumstance was.
    Senator Schumer. May have been part of a group that had 
done it, even if they did it for the first time.
    Mr. McConnell. In any event, Senator, as to the 
discretionary setting of punishments, I hear you and I cannot 
disagree with what you're saying.
    Senator Schumer. I appreciate that.
    Thank you, Mr. Chairman.
    Chairman Leahy. What I would propose doing is having 
Senator Brownback and Senator Edwards, and then recess until 
    Senator Durbin, does that answer your question?
    Senator Durbin. That is fine.
    Chairman Leahy. Senator Brownback and then Senator Edwards, 
and then we will recess until 2:15.
    Senator Brownback. Thank you, Mr. Chairman. Thank you for 
holding the hearing. I appreciate you bringing the nominee 
    Welcome, Professor McConnell. Good to have you here in the 
    Mr. McConnell. Thank you, Senator.
    Senator Brownback. And it has been a good discussion.
    I want to focus you if I could in some questions in the 
area of law that you are probably best known for your 
scholarship in, the area of free exercise of religion, and talk 
some and ask you some questions in that area.
    I would note that you have generally sided with the liberal 
wing of the Supreme Court on this issue, arguing for vigorous 
protection for the rights of religious minorities, believe in 
your scholarly writing. One opinion Justice Scalia described 
McConnell as--this is a quote: ``The most prominent scholarly 
critic.'' You were put forward.
    And so I want to really delve into this area and hear some 
of your thoughts in this field. As I understand, you have 
argued that in the establishment of religion, you have argued 
that religious perspective should be given equal but not 
favored treatment in the public sphere. Is that correct and 
would you flesh that out a little bit more about what you mean 
about should be given equal but then not favored treatment in 
the public sphere?
    Mr. McConnell. Yes, Senator, that is correct, and it is 
my--it's my view that one of the most fundamental principles of 
this country was the idea that we would be able to join 
together people of very widely differing beliefs, many 
different religious beliefs, but also some with no religion and 
some with secular beliefs that might be equally held, and that 
in our system we do not privilege any particular set of beliefs 
over others, but we also don't show hostility to any set of 
beliefs over others, that we protect fundamental civil 
liberties of all, and--and under the Establishment Clause we 
have a regime which as nearly as possible is neutral among all 
the various competing world views that we see. This Congress, I 
think, has acted on that principle very squarely even in 
legislation, when the courts, quite frankly, were going the 
other way. I think of the Equal Access Act in 1984 in which 
Congress insisted that public schools provide equal treatment 
to all extracurricular student clubs without regard to their 
political, ideological, or religious content of the speech at 
those clubs.
    I litigated pro bono on behalf of the first group of 
students to try to enforce the Equal Access Act out in the 
State of Washington. The Ninth Circuit held the Act 
unconstitutional. The Supreme Court, in a parallel case 
affirmed the constitutionality of the Act. I then went back and 
again it was held--it was argued that the Act violated the 
Washington Constitution. We again prevailed, and ultimately 
that club met. And I----
    Senator Brownback. What was the factual setting for that 
    Mr. McConnell. This was a public high school in Renton, 
Washington, and a group of students wanted to have a bible 
study in the afternoon after school time using empty 
classrooms. In that high school other organizations were also 
permitted to meet on that kind of voluntary basis. But the 
school district said, ``No, you can't meet. If you were meeting 
to do something else, that would be fine, but we can't have 
religion--we can't have religious meetings inside the school.''
    And even after Congress passed the Equal Access Act, the 
school district continued to take that position, and as I say, 
the Ninth Circuit held that the school district was right and 
ultimately the Supreme Court vindicated the rights of the 
    Now, this is not just something for the benefit of 
religious people. As I say, this is not a--I do not believe in 
a privileged status for any particular form of belief. In my 
own home state at East High School in Salt Lake City, an 
organization called the Gay-Straight Alliance, a group of gay 
and lesbian and supportive students also tried to form an 
extracurricular club, and just as in my case in Washington, the 
school said, ``No, you can't do that.'' And the Equal Access 
Act was invoked on behalf of the students. I supported that. I 
believe the Act does apply across the board to people of any 
set of beliefs. I--much of my work has been on behalf of 
religious groups, because I think that they tend to, at least 
in the recent past, maybe somewhat even still, but in the 
recent past, tended to be the most likely to be excluded, but 
it's a principle that applies to everyone.
    Senator Brownback. I take it, that is, you have a wide base 
of support amongst legal scholars and lawyers across the 
country that span the complete ideological spectrum, and I take 
it, really it is your viewpoints that are so consistent 
regardless of whether you agree or disagree with the foundation 
facts in the case, but it is the consistency of your legal 
arguments that has gathered that kind of legal support that you 
have amongst scholars across the country.
    Mr. McConnell. I try to be consistent. I try to be fair 
minded. I try to listen to people who disagree and take what 
they say into account. I--I'm not set in my views. I changed my 
mind from time to time. I just try to carry ideas to their 
logical and consistent conclusion rather than starting with any 
particular place to go.
    Senator Brownback. In this line of questioning then, could 
you give us some of your thoughts on the views on the 
separation of church and state and what that means for 
Government funding of secular services such as education, 
medical car, drug addiction, food and shelter for the poor and 
the homeless from any service provider wiling to do so, whether 
they are secular or religious?
    Mr. McConnell. Well, Senator, I don't want to get into what 
might be a hypothetical case that come before the court--might 
come before the court. If I could just summarize what I have 
already said and----
    Senator Brownback. Please, please.
    Mr. McConnell.--and leave it at that. What I have argued is 
that the Establishment Clause principle in the First Amendment 
was designed to make sure that the Government does not 
privilege one religion over another, or indeed religion in 
general over competing world views, and does not coerce anyone 
into--coerce and I go farther than that in my writing as to 
say, to coerce or induce or encourage anyone, contrary to their 
own natural conscience and predilections to engage in any kind 
of religious acts. It's a--it's a protection for conscience and 
a requirement of equal treatment. But over the years an idea 
crept in that what that meant was that anything that is 
connected with Government in some way had to be purely secular, 
that the separation of church and state was envisioned not as a 
guarantee against a union, but rather as a kind of--I've used 
the word hostility--against religious organizations, and it 
is--what I have said is that when two organizations are equally 
qualified, equally meet the Government's criteria for providing 
a social service, and where they do not coerce or induce any 
unwilling people to participate in a religious service, that 
they ought to be treated equally.
    Senator Brownback. Very good. I appreciate your willingness 
to come in front of the Committee and put yourself through this 
lengthy exercise, and I am glad to see the breadth of support 
that you have, and the unanimous well-qualified from the ABA as 
well. Look forward to supporting you as you move on forward.
    Mr. McConnell. Thank you for your time, Senator.
    Senator Brownback. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Brownback.
    And Senator Edwards, and then after Senator Edwards we will 
    Senator Edwards. Thank you, Mr. McConnell. I have been 
listening to your testimony off and on. Of course, we have all 
looked at your record before you arrived here today.
    It is obvious that you are well trained in the law and you 
are a very bright law professor. You have written a number of 
things which you have been questioned about already this 
morning, also expressing your strong personal view in 
opposition to a woman's right to choose. You and I disagree 
about that. We disagree about it strongly.
    But my question is--because I have voted for a number of 
other nominees who disagreed with me about that issue--but my 
question is your willingness to follow the law, follow Supreme 
Court precedent, enforce the Constitution, follow the laws that 
are passed by the Congress.
    Some others have asked you about an article you wrote about 
a decision, among other things, a decision under the FACE Act. 
And they have asked you questions about some of the language 
you used in that article, but I had a specific question about 
some language that you used. You said that after saying that 
you believe--if I remember correctly--that the judge's decision 
finding the people involved not guilty you thought was illegal 
or something to that effect. You said you could not help but 
admire what the judge had done, and then you said under the 
circumstances the judge should have exercised the prerogative 
of leniency. Tell me what you meant by that.
    Mr. McConnell. When setting punishments, especially for 
violation of court orders, judges have a pretty wide range of 
possible sanctions, and it is my view, not just for abortion 
protesters, but for all conscientious, peaceful political 
protesters, that we should not use the heavy hand of the law.
    Now, Senator Schumer made some powerful points to me about 
the particular context in which a gradation of sanctions may 
be--may be necessary, but that I don't think is where we should 
begin. I think political protest in this country has a great 
history to it--protesting on the wrong side of issues as well 
as the right side of issues. But one of the things that has 
made this country what it is, is a heritage of relative 
toleration, not always, but relative to most other places on 
the globe, a toleration for peaceful political protest even in 
violation of the law. I don't think it ought to be made legal. 
I think that there ought to be sanctions. I think that Martin 
Luther King, Junior's arguments on this are persuasive, but I 
also don't think that we should treat people who are acting out 
of conscientious desire to communicate their views to their 
fellow citizens, we shouldn't treat them as hardened criminals. 
I do think that six months in prison for a first act of 
peaceful protest is pretty harsh for any--no matter what the 
protest is about. So that's what I mean.
    Senator Edwards. But do you think you are influenced in 
your thinking about that by your personal views about what 
these people were protesting?
    Mr. McConnell. Senator, I don't think I am.
    Senator Edwards. Well, are you suggesting in any way that a 
judge should have the prerogative to go outside the confines of 
what if, for example, were a violation of a congressional act, 
that the judge should have discretion to go outside the bounds 
of what Congress has prescribed?
    Mr. McConnell. Not at all, Senator, and I mean there's a 
whole problem, of course, here with the sentencing guidelines, 
and there's much less discretion in the Federal system with the 
setting of sentences. I know that many judges find that 
irksome--not just irksome, but they seriously object to that, 
and some judges are, you know, engaging in attempts to get 
around the guidelines. I'm not--well, whatever I think about 
the guidelines one way or the other, I absolutely do not 
approve of Federal judges failing to carry out the--the 
legislative will of Congress.
    Senator Edwards. One of the things that you talked about or 
made reference to this morning is the importance of someone in 
your position as a law professor, and of course this would also 
apply to a judge, looking at the application of the law and the 
reasoning in court decisions in a fair-minded, objective, 
honest and credible way. I want to ask you about an article you 
wrote, which I know you talked about some already, in 1998 
entitled ``Roe v. Wade at 25: Still Illegitimate.'' You called 
the reasoning of Roe, I am quoting now, ``an embarrassment.'' 
And then in a 1999 article you said--and this is what I want to 
focus on--that Roe was one of several cases in which, and I am 
quoting you now, ``text, history, constitutional tradition, 
democratic enactments or precedent played no serious role.'' 
That is using your language.
    Now, I would first of all tell you that I respectfully 
disagree with your analysis, but I want to ask you about it. In 
Roe, which you said precedent and constitutional history played 
no serious role, Roe, as you know, was grounded in--it was 
found that a woman's right to have an abortion was grounded in 
her right to privacy, and based, at least in part, on the 
Griswold decision, where the Court had held that Connecticut 
could not keep a couple in the privacy of their own home from 
using contraceptives. Griswold, as I am sure you know as a law 
professor, was also grounded in any number of precedents 
including the Poe decision which was written by Justice Harlan, 
who I think you have spoken in a very positive way about in the 
past, very conservative judge. And Roe also pointed to a 
decision, a dissenting decision by, an opinion by Justice 
Brandeis in 1920, where he said that the right to--where he 
spoke of the right to privacy as the right most valued by 
civilized men, and that was the right to be left alone.
    Since Roe talked about these things, and since Griswold was 
a precedent and since Griswold itself relied on a whole history 
of constitutional analysis, would you tell us, in trying to 
think about this fairly and objectively, why you said that 
precedent and constitutional tradition played no serious role 
in the analysis, when in fact all of those things were in the 
    Mr. McConnell. Senator, again, I appreciate that you and I 
disagree with this, and you know, we could probably talk for 
quite some time and maybe we'd come closer together or maybe 
not. I've had experience of talking about this issue with 
generations of students and colleagues, many of whom disagree. 
I think it's probably accurate to say that among, even among 
pro-choice scholars, people who support a constitutional right 
to abortion, most of them also find the Roe opinion to have 
been analytically quite unsatisfactory, many of them for 
reasons very similar to what I've said. There's practically a 
cottage industry among law professors of supplying alternative 
rationales that might make a little bit more sense of Roe v. 
Wade, particularly based upon equal protection. Akhil Amar has 
made a 13th Amendment argument, and there are a whole range of 
theories of people trying to supply the weakness.
    I personally believe that the joint opinion in Planned 
Parenthood v. Casey did a significantly better job at 
connecting the right to the constitutional text, to actual 
practice, and then of course precedent, because Roe v. Wade was 
already on the books, and so stare decisis played an enormously 
key role in Planned Parenthood v. Casey.
    Now, I'm happy to explore with you the academic reasons why 
those--why I and so many other people have found the Roe 
opinion unsatisfactory if you think that would be productive.
    Senator Edwards. Well, I guess my--let me just be direct 
about it. My concern is that, is not that you disagree with 
some of the analysis and the opinion. As a law professor, that 
is part of what you do, is you critique these things, and you 
are certainly entitled to do that. I guess my concern is the 
fact that you went so far as to say that those things, 
including precedent, played no serious role in the decision 
when it is obvious that the decision relied upon a right to 
privacy which was grounded in Griswold, grounded in previous 
precedent. It seemed like a fairly extreme statement to me. 
That was my reaction. That is why I am asking about it.
    Mr. McConnell. Well, Senator, if you look at the various 
precedents cited in Roe, they're all rather far afield from a 
right to terminate a pregnancy, including Griswold itself, 
because Griswold did not involve any claim that there was 
another being on the other side, which the state is entitled to 
expend protection to, and that's really the key question in Roe 
for everybody I think, is, is there something on the other side 
of the equation. Now, that's why the citation of precedents in 
that case are--it doesn't work very well, because it was 
genuinely a case of first impression. Yes, the Court cites some 
precedents, but the precedents are so distant and so easily 
distinguishable that it's--I think it's really not 
intellectually easy to say that Roe follows from those 
precedents. It's not inconsistent with those precedents, but to 
say that itactually is compelled by those precedents is 
something I don't think most pro-choice scholars would be 
willing to tell you. I mean maybe some, but I don't think 
that's even the prevailing view among who support the bottom 
    Senator Edwards. Let me ask you one last question because 
my time is up. What would you say to someone who had a case, 
assuming you were sitting on the court, who had a case coming 
before you as a judge sitting on the court, involving what they 
believe to be their constitutional right under Roe, knowing 
that you had written all these opinions critical of the 
analysis in Roe, knowing that you have strong personal views 
about a woman's right to choose which you have expressed 
vigorously; what would you say to a woman who had a case coming 
before your court, to reassure her that you would in fact 
enforce the constitutional protection in Roe?
    Mr. McConnell. Senator, I could say--and I believe this 
absolutely sincerely--that McConnell--we're talking about a 
third person, right, advising someone who might come before 
this character--that McConnell is a judge who plays it 
straight. That's what I'm committed to. May I just give an 
example from my own work? People have been citing my 
controversial articles, but no one has cited my article in 
which I criticize the Supreme Court----
    Senator Edwards. Can I stop you? I will let you explain. I 
am not going to cut you off. I will let you finish. But 
specifically a woman who had a case in front of you involving--
    Mr. McConnell. I'm making a specific--I'm addressing it 
specifically, because no one's mentioned where I criticize, say 
it is wrong. This is an unequivocal argument on my part that 
the Supreme Court was wrong when it held that public hospitals 
can constitutionally forbid doctors to perform abortions within 
their facilities. I argued that on the heuristic, Roe is of 
course settled law, noting in a footnote that I don't agree 
with it, but nonetheless that's the basis for the argument. And 
once you hold that that is the right, when you put that 
together with constitutional law from some other areas having 
to do with equal access to public facilities and when a public 
facility is entitled to selectively open itself, I come to the 
conclusion that a public hospital may not forbid doctors to 
perform abortions within it.
    Senator I just offer that to you as an example. I wrote 
that back in 1991 in the Harvard Law Review, and it's an 
example of when I am engaged in trying to figure out where the 
law leads. It leads where it leads. It doesn't necessarily lead 
where I would like it to go.
    Senator Edwards. Thank you, Professor.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you. I was going to recess at this 
point, but Senator Hatch said he had one question he wanted to 
    Senator Hatch. Thank you, Mr. Chairman.
    Let me just ask you one question. Professor McConnell, is 
it not true that many respected liberal judges and professors 
have criticized the Supreme Court's ruling or reasoning, I 
should say, in Roe v. Wade, including those who are committed 
to it as a policy matter and who are committed to abortion 
rights? I cite, for example, Justice Ruth Bader Ginsburg. She 
called Roe, ``heavy-handed judicial intervention,'' that, ``was 
difficult to justify.'' The Senate confirmed Justice Ginsburg 
to the Supreme Court 96 to 3. 6 of the 10 Democrats currently 
on the Committee voted for her.
    Another example is former Stanford Dean John Hart Ely, who 
    Mr. McConnell. The Senator is absolutely----
    Senator Hatch. Let me just finish, who strongly favors 
abortion rights, but who has written that Roe ``is not 
constitutional law and gives almost no sense of an obligation 
to try to be.'' Archibald Cox was highly critical, although he 
was favorable to abortion rights.
    So is it not true that there is a difference between 
criticizing it and upholding the law as a judge?
    Mr. McConnell. Absolutely, and among legal scholars, you 
know, criticism of Roe v. Wade is not an unusual thing. And 
again, even among people who support it, a lot of people have 
the following problem. They may strongly believe that this is, 
in the interest of society and expands freedom and privacy, but 
where you have very contentious social issues, moral issues 
upon which people of goodwill disagree, and the Nation has not 
had--come to a consensus, to say that a court comes in and 
decides that taking it out of the hands of Congress or the 
legislatures, and decides for one side or the other, is very 
troubling to a lot of people who are committed to democratic--
to a basically democratic system of Government, governed by 
where we have constitutional norms, but where the judges are 
not appointed to impose their own views. Where there isn't 
tolerably clear constitutional text precedent, history, et 
cetera, on the other side, mostly legislatures and Congress get 
to make these determinations.
    Senator Hatch. Thank you.
    Chairman Leahy. Thank you, Senator Hatch.
    Thank you, Professor, and we will stand in recess until 
    [Recess at 12:47 p.m.]
    AFTERNOON SESSION [2:20 p.m.]
    Chairman Leahy. I hope you got a chance to get a bite to 
eat. There are areas of such epicurean delight in the Senate. 
If any of you get invited to the Senator's dining room, you 
should know that the food is so-so, but it's a nice spot. I 
didn't get a chance to get to any of them.
    We will go to Senator Durbin who has follow-up questions. 
We will go to Senator Durbin. The idea is to go to about 3:00 
with Senator McConnell. If there are further questions, we will 
break to go to the District Court judges.
    Senator Durbin?
    Senator Durbin. Thank you, Chairman Leahy, and thank you, 
Professor McConnell.
    I came back because some of the answers that I heard this 
morning worry me, trouble me, and I want to give you every 
chance to express your point of view clearly to this committee 
and certainly to do your best to resolve any misunderstanding 
that I may have.
    I think anyone who comes to this room brings a life 
experience and many different roles, and you certainly are such 
a person. As a law school professor, I would assume that you 
try to teach your class both sides of the issue, so they can 
understand how the law has been derived. As a legal advocate, 
which you have been, you argue your client's case, and I've 
done that myself. Though I may not have agreed with my client 
at every turn of the road, I had a professional obligation to 
argue, as convincingly as possible, their point of view.
    You also come as a nominee. In that respect, I think we are 
trying to, at least I'm trying to, get an insight into what 
your core beliefs are and whether they are, as you said, 
whether they fall within the legitimate range of opinion about 
the Constitution.
    The area that I turn to for I think the most unvarnished 
version of your actual belief, and values, and philosophy are 
your writings because, in that case, you're not a professor, 
you're not a legal advocate, you're expressing what I believe 
to be in your mind and heart about an issue, and that's why 
some of the answers you've given me this morning trouble me, 
because they are inconsistent with what you've written about 
some of these cases.
    I want to return to the whole question about religion, 
which is an issue that I care about very, very deeply. My 
mother was an immigrant to this country. Her mother brought 
with her a small prayer book from her native land that was 
banned by the Government. She stuck it in the bottom of her 
suitcase and brought it out, facing the possibility of 
prosecution in that land, but wanting to have a chance to bring 
it to America. She didn't want the Government telling her how 
to practice her religion, and I've felt very intensely about 
that ever since my mother told me that story as a very young 
boy, and I treasure that prayer book like nothing else in this 
    Let me go to this issue, though, of religion, and whether 
or not religious belief trumps or overrules criminal law.
    The issue of polygamy which came up in the Reynolds case, I 
thought you said earlier today that you believe that simply 
adhering to a religious belief does not exempt you from obeying 
the laws of the land, particularly its criminal laws. And yet 
in one of your writings and what it would mean to have a First 
Amendment, you talk about this Reynolds v. United States case, 
in which a Mormon unsuccessfully asserted the right to marry 
multiple wives in accordance with the dictates of his religion. 
The Supreme Court unanimously rejected the claim.
    Then you go on to say most interestingly, ``Since many of 
us believe the Reynolds case was wrongly decided, even if 
Reynolds had won, a victory would not suggest the State is 
required to change the contours of its marriage laws.'' You 
conclude by saying of the defendant, the criminal defendant, 
``He only asked that the Government leave him and his wives 
    Square this with me. Tell me how the criminal laws will 
apply, even if they are not consistent with a person's 
religious beliefs and you can conclude that the decision in 
Reynolds was wrongly decided.
    Mr. McConnell. Senator, for well over 100 years, the 
Supreme Court has grappled with this question. Reynolds was the 
first case in the Supreme Court raising the question. There 
have been a number--the Smith case was quite recent. Many of 
those involve criminal laws. The rule has never been that 
religious views trump the criminal law, but the rule also has 
never been that there are no criminal laws which are 
unconstitutional under the First Amendment.
    Some criminal laws are unconstitutional under the First 
Amendment. For example, had your mother been prosecuted for the 
crime of carrying that prayer book, she would have had, under 
our system of freedom of religion, she would have had a trump. 
She would have been able to say, ``No, it's unconstitutional 
for the Government to do that to me.''
    Senator Durbin. So was this law unconstitutional, the law 
banning polygamy?
    Mr. McConnell. It's an extremely common view among legal 
academics that the law in Reynolds was, in fact, 
unconstitutional. I've actually gone back and forth on that. I 
think that there's some justifications for it, but I don't have 
any problem saying, ultimately, that it was unconstitutional.
    Senator Durbin. Well, let me ask you further, as I asked 
you this morning, take it to the next step----
    Mr. McConnell. I think many civil libertarians believe 
    Senator Durbin. Beyond the issue of polygamy, the abuses we 
are seeing are involving marrying girls who are 13--or marrying 
and taking partners--who are 13 and 14 years old, clearly, 
another violation of existing criminal laws. Are those laws, 
involving this sexual contact with minors, are they, too, 
    Mr. McConnell. It in no way follows, Senator. It's an 
entirely different case whether, as in the Reynolds case, his 
relationship with other adults, mutually consenting, was going 
to be punished versus what amounts to child abuse, which is an 
extremely serious offense under the criminal laws, which 
certainly constitutes a core aspect of the criminal laws. The 
two things are, I think, simply not comparable.
    Senator Durbin. Then let's move to another issue--racial 
discrimination; in this case, the Bob Jones University case 
involving the tax benefits that they were seeking and whether 
or not Bob Jones was entitled to have those because of their 
policies against interracial dating of their students.
    The Court came down very strongly on the side of not 
providing the tax break to the university because of its racial 
discrimination. You came down very strongly on the other side 
of that issue. Can you reason that for me as to why a 
university could discriminate based on race and still receive 
preferred treatment based on its religious belief?
    Mr. McConnell. Senator, as you know from reading these 
materials, I have not actually written on the Bob Jones case, 
per se. What I have done is I have written about general 
questions of free exercise jurisprudence and how those 
principles ought to apply. I certainly believe that Bob Jones 
University had what we call a prima facie free exercise claim.
    Senator Durbin. But you referred to that decision as 
notorious, the heavy hand of Government, and then in a 
publication entitled, ``Religion Clauses of the First 
Amendment,'' you wrote, ``Churches should be allowed to follow 
their own lights in matters of doctrine and organization, lest 
their vital role as counters to Government power be sacrificed. 
This means the church teachings must, on occasion, be 
tolerated, even when they are abhorrent, like the racial 
doctrines of a Bob Jones University. Liberty is not limited to 
things that matter little.''
    Mr. McConnell. Yes, and I absolutely believe that. Let me 
tell you what I think the contours are here of agreement and 
    The Supreme Court did not hold that the Government can 
prevent Bob Jones, or any similar institution, from following 
it, that they do have a free exercise right against actual 
Government compulsion. That, I think, is fairly clear, I think, 
basically, undisputed. On the other side, it is also very clear 
that any institution receiving Federal financial assistance is 
barred from discriminating, and the reason for that is that 
Congress has passed a statute; namely, Title VI of the Civil 
Rights Act of 1964, that says that, and that statute 
constitutes a compelling governmental interest. I think it's 
also clear, essentially undisputed, that any institution 
receiving Federal financial assistance is barred from all forms 
of racial discrimination.
    The reason the Bob Jones case is very difficult is that it 
is about tax exemptions, and they occupy a very strange 
intermediate position. Let me give you a practical example. 
Orthodox Jewish synagogues segregate their congregations 
according to sex. They are tax-exempt organizations. If we 
simply take the broad view that any organization that is 
receiving a tax exemption is like, it's as if they were 
receiving actual Federal financial assistance, Orthodox Jewish 
synagogues would be deprived of their tax-exempt status.
    Senator Durbin. I'd like to take that line of thinking and 
now shift it over to the question of privacy because what I 
hear you saying is that when it comes to issue of conscience 
and religion, that Government has to take care not to intrude 
into those beliefs. We have drawn some lines here where you 
believe that a polygamy law or a crime of polygamy could be 
unconstitutional, based on beliefs of certain religions in 
favor of polygamy, you wouldn't go so far as to include child 
abuse in those, and we've talked about tax status.
    Now let's shift it over from the religious context to the 
individual context, and I find you troubled by the concept of 
the right of privacy of individuals in this country, rights of 
personal conscience, rather than religious conscience, and the 
best you could concede for Chairman Leahy was that it is 
settled constitutional law that there is a right to privacy. 
Your writings suggest that it may be settled in the Court, but 
it's not settled in your mind.
    And the question arises, from my point of view, when it 
comes to basic and fundamental questions involving a woman's 
right to choose, a couple's right to buy contraceptives, and 
personal and private conduct between married adults, for 
example, you seem to be troubled by this whole notion of 
privacy; in other words, that the Government has more power 
when it comes into this arena of personal conscience than it 
would in areas of religious conscience. How do you make that 
    Mr. McConnell. Senator, the reason why the abortion 
question is so difficult, and unlike the contraceptive 
question, where I have written in defense of the Supreme 
Court's decisions, the reason why the abortion question is so 
difficult for many of us, and I'm not talking about just the 
extremes here, I'm talking about many conscientious Americans, 
is that when we say ``privacy,'' we usually are talking about 
things that affect only ourselves. There is, at least in the 
minds of many people, a possibility that an abortion is 
affecting someone else. That's what makes it----
    Senator Durbin. The premise of Roe v. Wade is just what you 
have dismissed.
    Mr. McConnell. I have not--excuse me, Senator, I don't mean 
to be dismissive because I respect your question. I entirely 
understand the importance of the privacy issue. I'm just saying 
that for many people that is a very troubling question----
    Senator Durbin. I agree with that.
    Mr. McConnell.--and is not quite the same thing as privacy, 
which is a question that affects no one else, where the 
Government is just intruding because it doesn't like what you 
do. So it's a different----
    Senator Durbin. So in cases involving Roe v. Wade----
    Mr. McConnell.--a different case.
    Senator Durbin. I'm sorry. Go ahead.
    Mr. McConnell. But I want to return, I'm certainly far from 
alone in questioning this, but it is the settled law of the 
land, and one of my most profound commitments is to the rule of 
law. I am telling you, I assume I'm still under oath, Mr. 
Chairman, I'm telling you under oath that, with this 
committee's approval I become a lower court judge, that I will 
conscientiously enforce the law, including laws and precedents 
that I don't agree with.
    Senator this is something that judges do all of the time. 
There are many judges who have been confirmed, who have just as 
strong a belief with respect to capital punishment and think 
that the Supreme Court was wrong to approve capital punishment, 
who think that capital punishment is a form of judicial murder, 
and who are sitting on the Federal courts and are able to 
fairly and conscientiously enforce the law. I am going to be 
that kind of judge, Senator.
    Senator Durbin. Professor McConnell, thank you.
    Thank you, Mr. Chairman. I would just conclude by saying 
that the difficulty we face, sitting here, is to try to assume 
the obvious, and that is that you will abandon beliefs that you 
have written about through a professional lifetime and that you 
will then march in lock-step with the so-called rule of law as 
you see it.
    You have to understand that is a troubling thing to try to 
rationalize, on this side of the committee hearing, as to what 
will actually be in your heart, and what will motivate you, 
when close calls come as to whether or not the fact that you 
have just dismissed the premise of Roe v. Wade, the privacy of 
the individual, what impact will that have when the first case 
shows up that really is a close call under the law. And I think 
that is the nature of our inquiry here.
    Mr. McConnell. I understand that. I'm, in many senses, glad 
I'm not in your shoes making difficult decisions of that sort, 
but there is, in my record, I think, evidence that I do, I am 
willing to accept premises and carry them to their conclusion, 
even though I don't accept them, and even in this very area.
    A lot of my writings have been cited, but I'd like to 
mention my 1991 Harvard Law Review article, in which I say that 
the Supreme Court was wrong when it held that public hospitals 
may deny the use of their facilities for the performance of 
    What I did, and in that article I drop a footnote saying, 
noting that I have criticized Roe as an original matter, but 
nonetheless, that entire article, and it's quite lengthy, is 
based upon the acceptance of that and working out a number of 
subsidiary legal questions having to do with this kind of an 
issue, and I criticized the Court based upon a combination of 
the Roe precedent and some other areas of constitutional law 
having to do with equal access to public facilities.
    I think that you should be able to look at that and take 
considerable comfort from that, Senator.
    Senator Durbin. Thank you, Professor.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Senator Cantwell?
    Senator Cantwell. Good afternoon, Professor McConnell. I 
appreciate you being here.
    Mr. McConnell. Thank you.
    Senator Cantwell. I appreciate some of the good judgment 
some of your family has shown in living in Washington State and 
for them being here today.
    Chairman Leahy. If I could interrupt, we'll start the time 
over again. The nominee seems to have gotten somebody in 
virtually every State represented around here----
    Mr. McConnell. There are a lot of McConnells.
    Chairman Leahy.--except for Vermont.
    Go ahead, Senator Cantwell.
    Senator Cantwell. Maybe they'll move there soon, Mr. 
    Mr. McConnell. But, Senator, my daughters do love Ben and 
    Chairman Leahy. I'll give you that point.
    Senator Cantwell. I'd like to continue, if I could, along 
the same line of questioning as it relates to your belief in 
the Constitution and the right to privacy because I think it's 
very important for the committee, and maybe important more so 
because of the fact that you don't have a court record that we 
can look at and review.
    I guess, in looking at this issue, I mean, sometimes it 
gets down to the basic issue of a woman's right to choose, but 
when I think of us being in the Information Age, in so many 
issues, I think that we are just at the tip of the iceberg as 
it relates to protecting the right to privacy, whether that is 
protecting individuals from unwanted Government invasions, 
having your most personal information basically stolen on-line, 
there's a whole variety of issues that I think it is very 
important for us to understand where a nominee is, as it 
relates to their belief in that right to privacy as it exists 
in the Constitution. Because, fundamentally, if you don't 
believe that it exists there, as these issues roll out, I think 
it will be very hard on some of these decisions.
    Now both Chairman Leahy, and others, have asked a lot of 
questions about this, and I guess I keep hearing very well-
worded responses, the Supreme Court has said so, I have no 
hesitations that there are many rights, things that all back up 
what I think you're saying has been issues that have been 
decided by the Court. And I guess when I look back on the 
testimony that I've read before from one nominee, obviously, to 
the Supreme Court, Justice Thomas, where he said, ``I will 
uphold the law and support what's been in precedent,'' and then 
he dissented in Casey.
    So you can see where this issue, for me, it's a lot easier 
to understand where a nominee is if they believe that the right 
exists within the Constitution because that is the framework 
that they will use, not a case where then they say, Well, this 
case is different on this particular issue.
    So, I guess, if you could just clarify that issue for me, 
as to whether it is that you are going to follow what has been 
decided in law or whether you really do believe that that right 
exists, not based on the Court decisions, but in your 
interpretation, whether you believe it exists in the 
    Mr. McConnell. I think now you are speaking of privacy more 
    Senator Cantwell. Yes.
    Mr. McConnell.--not just reproductive freedom, but privacy 
more generally.
    Insofar as we're talking about Government surveillance, 
there is I think a pretty solid Fourth Amendment basis for 
privacy doctrine, and I am a quite vigorous civil libertarian 
on these issues, on these and other issues, and have no 
difficulty with that whatever.
    Now, insofar as we're talking about privacy in the 
commercial sphere, as in where we have, you know, commercial 
snooping over the Internet and that sort of thing, those are, 
of course, not constitutional issues, those are issues for 
Congress and the State legislatures to pass protective privacy 
acts and the sort, and I applaud those as a citizen. Obviously, 
as a judge it's not up to me to decide precisely the contours 
of congressional action, but as a citizen, I'm entirely for 
    In fact, I think that you will find, if you look at my 
record--if I can ask you to put the abortion question aside for 
a moment, and I realize for many people that's like saying 
don't pay any attention to the 2,000-pound elephant in the 
room, but if I can ask you to put that aside for a moment, I am 
in very substantial agreement with most civil liberties groups 
on issues of speech, and informational privacy, and snooping, 
and the like.
    Even in the first Bush administration, I represented three 
former Democratic Attorneys General, challenging an extremely 
high-profile decision, presidential order of the first 
President Bush, regarding the return of Haitian refugees to 
lands where they might be facing persecution. This was an issue 
which was so important to the administration that the Solicitor 
General was himself arguing the cases in the lower courts, and 
I was approached by Democratic Attorneys General to take the 
opposite position in an amicus brief. I do not hesitate to 
challenge the administration or the Government when it comes to 
basic civil liberties.
    Now I realize that the abortion question is very important. 
I think it is settled. It is settled. I don't think that's--
that's not just my opinion. It is settled law. I am committed 
to enforcing and obeying that, but I think you will find that 
in the wider question of civil liberties, including various 
rights of privacy, that I will be as strong a defender of 
individual rights as you'll find on the bench.
    Senator Cantwell. Well, I may submit a question in writing 
to you about the issue of a privacy right, but I'll save that 
for something that we can correspond on and go back to this as 
it relates to the specific issue of a woman's right to choose.
    In answering a question about Griswold, Chairman Leahy 
asked you about the decision on penumbra of rights. Some people 
look at the Constitution and say the penumbra of rights exist 
there and is the basis, and you responded again that you 
thought the issue had been settled, not so much that you 
believed in that position that there is a penumbra of rights.
    So do you believe that there is a----
    Mr. McConnell. I believe that every--I think that every 
constitutional right carries with it a--penumbra is not a 
terrible word. Justice Douglas is often mocked for the word, 
but it's not a terrible word. Every constitutional provision 
goes a little bit beyond the bare words. We have freedom of 
speech, but that also includes writing, and communicating 
through sign language, and it includes a whole--and assembly 
and a lot of things as well as that.
    I have said that, in the Griswold case itself where that 
language was used, and Justice Douglas argued from penumbras, 
that I, like I think probably the weight of scholarly opinion, 
find the second Justice Harlan's opinion more persuasive, and I 
do find it persuasive. This is not a case where I'm saying only 
that I will follow it because it's settled law. It's a case 
that I agree with on the merits, but I do agree with it on the 
basis stated by the second Justice Harlan much more so than 
Justice Douglas's majority opinion, and I'm not alone in that.
    Senator Cantwell. In your discussion with Senator Edwards 
on this, as it related to Griswold, you said you did not find 
Griswold, and other decisions on the right to be left alone, 
compelling precedent for Roe because the case did not require 
balancing of right to privacy with something on the other side 
of the equation. Are you talking about the right of the fetus; 
is that what you're----
    Mr. McConnell. Yes.
    Senator Cantwell. So beyond your academic role. As an 
activist, you believe that there should be a right.
    Mr. McConnell. I've never been an activist, but what I'm--
    Senator Cantwell. I'm saying articulating in an academic 
role a point of view.
    Mr. McConnell. The question in the case involved whether 
the State of Texas had an interest in protecting what everyone 
may want to call the fetus. There are many entities, creatures, 
living and not, that the State can extend protection to, where 
you have to balance interests. We do that with art, we do it 
with animals, we do it with a lot of things.
    The question is whether, and the question in Roe that made 
it such a hard question, and why people are still debating it 
in law schools, and around the dinner table, and probably will 
continue to debate it for quite some time, even though it's 
settled as a matter of law, is does the State have any interest 
in protecting the potentiality of life in the womb. I don't 
think that's an easy and obvious question.
    Senator Cantwell. In a statement of pro-life principles, I 
think it was a 1996 document you signed, and I want to 
understand if I'm interpreting what you just said correctly, 
``A constitutional amendment is needed, both reversing the 
doctrines of Roe and Casey and establishing the right to life 
protected by the Fifth and Fourteenth Amendments extended to 
the unborn child.'' Is that what you----
    Mr. McConnell. Senator, now that the abortion question is 
completely settled, the only avenue for any change is through 
constitutional amendment. This is going to take, what, two-
thirds votes of both Houses of Congress, three-quarters of the 
States. Senator, it is not going to happen.
    Senator Cantwell. But do you believe that the fetus should 
be entitled to protection under the Equal Protection Clause of 
the Constitution?
    Mr. McConnell. I do believe that the State should extend 
some degree or protection, but I think I've made clear in my 
writings, and I could identify exactly where, that that does 
not necessarily entail even criminal protection.
    The Supreme Court of the Republic of Germany held that life 
must be protected from 15 days after conception, but it also 
held that that protection need not take the form of criminal 
prohibitions. It just means that the State needs to have some 
kind of a program to try to reduce and try to extend some 
degree of legal recognition and protection. That's really what 
I have in mind, but I'd like to emphasize again that what 
constitutional amendments I might favor or not really has 
nothing to do with how I would be able to administer the actual 
law of the land.
    I am perfectly aware of the fact that constitutional 
amendments are not there, and my job, as a lower court judge, 
is to follow and enforce the law. I'm utterly committed to 
doing that, even for laws where I don't agree with the premise 
and would like to see them changed.
    Senator I think that----
    Senator Cantwell. Mr. Chairman, is my time expired?
    Chairman Leahy. We have been trying to make it easy for 
everybody. So you take extra time, and I will give Senator 
Sessions extra time.
    Senator Cantwell. I didn't want to cut off Professor 
McConnell. I did have another question, but I will submit that 
in writing as well.
    Thank you.
    Mr. McConnell. Thank you.
    Chairman Leahy. Thank you.
    Senator Sessions?
    Senator Sessions. Mr. Chairman, i just arrived and would 
like a moment to prepare. So if someone else would like to go 
ahead, that is fine.
    Chairman Leahy. I will go to Senator Kennedy, then.
    Senator Sessions. That would be fine.
    Chairman Leahy. Senator Kennedy?
    Senator Kennedy. I will be ready in a moment.
    Chairman Leahy. Senator Cantwell, if you had another 
question, please go ahead.
    Senator Cantwell. I didn't want you to truncate your 
answer, inasmuch as I saw our time was expiring and I didn't 
know whether I was going to be able to get another question in. 
So I thank the chairman and the committee.
    Mr. McConnell. I have been told to be brief. I am just not 
very good at that.
    Senator Cantwell. I notice your family laughed the loudest.
    I know you are a member of the Federalist Society, an 
organization that believes in limiting the power of the Federal 
Government in deference to legislative acts by the States.
    There is an issue that has gotten a lot of attention in the 
Northwest, particularly an initiative that has been passed in 
Oregon dealing with permitting physicians to prescribe lethal 
quantities of drugs in the aid of assisted suicide in very 
limited circumstances. You may have followed that last fall the 
Justice Department announced it wold prosecute those physicians 
who abided by that voter-passed initiative.
    So, generally speaking, how much deference do you believe 
is owned to a popular, approved State law, and are there issues 
where a Federal constitutional interest is implicated that 
justifies Federal intervention?
    Mr. McConnell. Well, Senator, as you may know, I authored 
an amicus curiae brief in the Supreme Court case about assisted 
suicide. That brief states--and it is my view, not just the 
view of my clients, who happened to be the Chair of the 
Judiciary Committee of the House and the Senate, but it is my 
view that this is an issue which should not be nationalized and 
should be left to experimentation at the State level.
    Whether or not I might agree with the particular statute in 
Oregon, and as a citizen, I don't, I believe that the State of 
Oregon should be allowed to follow its own policy on that.
    Senator Cantwell. So you believe the Attorney General is 
taking the wrong legal steps here?
    Mr. McConnell. Well, Senator, I am not prepared to say that 
the Attorney General is violating the law. I simply haven't 
studied it. I am saying that I think that the principles of 
    Senator Cantwell. You haven't studied what his actions are 
    Mr. McConnell. I haven't studied the legal authority that 
he has cited for that. But I will say that as a matter of 
federalism that this seems to me to be an area which is 
properly left to the States.
    Senator Cantwell. Well, we might provide you with some of 
the basis for his actions and get further comment on that.
    I don't know, Mr. Chairman, if my colleagues are ready.
    Chairman Leahy. I thank Senator Cantwell.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman, and 
thank you, Professor McConnell. I will look forward to reading 
the record. I apologize for being absent this morning. A number 
of States had primaries. Massachusetts had one yesterday and we 
had the gathering process earlier today and I was unable to get 
back in time for the opening of the hearing, but I will look 
forward to reading through your responses, particularly the 
response to Senator Durbin on the Bob Jones situation, which I 
intended to ask you about but I understand that that has been 
    I wanted, first of all, again to thank you for your help to 
me when we were trying to ensure that Christian Scientists and 
other groups would not be discriminated against in our health 
care system--you were very helpful in terms of drafting 
legislation that clarified some positions which are in law now. 
It has made a difference in terms of people's lives, as well as 
your work with the Religious Freedom Restoration Act.
    Mr. McConnell. Yes, and I also worked with your staff on 
the Native American Free Exercise of Religion Act.
    Senator Kennedy. Which is important.
    I don't want to go over the top on this.
    Chairman Leahy. Remember, you have to keep votes on this 
side of the aisle, too.
    Mr. McConnell. I will stop there.
    Senator Kennedy. So, now, we will get to it a bit. In any 
event, welcome.
    Mr. McConnell. Thank you.
    Senator Kennedy. I want to talk a bit about the FACE Act 
and then I want to talk a little bit about ENDA and 
discrimination against gays and lesbians in our society. I know 
you have addressed some of these issues earlier, but I want to 
just come back to this.
    I know Senator Schumer was the leader in the House, as I 
was in the Senate, and I am very much aware of the challenges 
that we were facing prior to the passage of that Act and what 
it has done in terms of permitting women to exercise their 
constitutional rights in the more recent times. So I want to 
explore a little bit your thinking about it.
    As you are aware, in 1994 we did pass the Federal Access to 
Clinics Act to address the explosion of clinical violence 
around the Nation. The Act makes it a Federal offense to engage 
in violent and obstructive conduct intended to interfere with 
people seeking or providing reproductive health services. 
However, the Act expressly states that it does not prohibit any 
expressive conduct, including peaceful picketing or other 
peaceful demonstration protected from legal prohibition by the 
First Amendment.
    You are argued, Professor, in your written testimony to 
Congress in 1993 that the FACE Act violated the First 
Amendment, and you made this argument again in a law review 
article published in the spring of 1994, after the bill had 
passed both the House and Senate and was headed for a 
conference committee.
    Earlier today, in response to a question by Senator 
Schumer, you testified that you now believe the FACE Act is 
constitutional because the committee cured the constitutional 
defects that were identified.
    In fact, as I understand it, the two main constitutional 
defects that you identified in the FACE Act in your 1993 
testimony and your 1994 law review article have not been 
corrected. I believe that you first argued that the FACE Act 
imposes a content-based restriction on speech. In other words, 
you claimed that the FACE Act violates the First Amendment 
because it deals with reproductive health facilities, but not 
nuclear power plants or research clinics involved in animal 
experimentation or other types of situations.
    Secondly, you argued that the statute is unconstitutional 
because it uses constitutionally over-broad terms, such as 
``intimidates'' and ``interferes with,'' even though these 
terms are used in many Federal statutes, such as the Federal 
Housing Act, the National Labor Relations Act, and the Federal 
prohibition on voter intimidation.
    So these so-called defects have not been corrected and the 
FACE Act still addresses only reproductive health facilities. 
It still contains the term ``intimidates'' and ``interferes 
    Also, I am sure you know the Federal courts of appeals have 
addressed the First Amendment challenges to the FACE Act and 
soundly rejected them. These arguments have been rejected by 
the First, Second, Fourth, Fifth, Seventh, Eighth, Eleventh, 
and D.C. Circuits. No court has gone the other way.
    So let me ask you again, do you stand by what you wrote in 
1993 and 1994 regarding the constitutionality of the FACE Act, 
or have you changed your position?
    Mr. McConnell. Senator, I hope I am not mis-remembering, 
and if I am, please accept my apologies in advance. But my 
memory--and I do think this is right--is that, in fact, the 
Senate did address those defects, that the bill was amended to 
add new and narrower definitions of the terms ``physical 
obstruction,'' ``intimidate,'' and ``interfere with,'' and that 
the Act also was amended to deal with the content 
discrimination problem by adding an amendment offered by 
Senator Hatch which included within the prohibitions of the 
bill not just abortion protests, but also protests that were 
disturbing worship services at churches and synagogues, thus 
eliminating the argument that this was a bill which addressed 
only the protest activities of one particular--directed at one 
particular subject.
    Senator Kennedy. Well, that is not my understanding, 
although I will go back and look again at the language of it. 
And I will get back to you if there are these changes and ask 
you more precisely about how you believe, if there have been 
words--it is not my understanding, but if there have been, how 
those words have changed your view about it. I will submit a 
    Mr. McConnell. Thank you, and I hope my memory is correct.
    Senator Kennedy. If you no longer believe the FACE Act is 
constitutional, then why did you sign in May 1996 a Statement 
of Pro-Life Principles and Concerns which stated that the 
Supreme Court's abortion jurisprudence has been used to justify 
the abridgement of First Amendment free speech rights, as when 
sidewalk counselors are threatened with legal penalties for 
proposing protection and care to women in crisis at the crucial 
moment of decision outside an abortion clinic? This is clearly 
a reference to the FACE Act.
    Mr. McConnell. Well, Senator, there has been legislation in 
any number of States regarding this subject. Much of that 
legislation has been challenged, and in many cases challenged 
by lawyers affiliated with the ACLU. I believe there is a 
letter in the record from Jim Weinstein, who has been the 
lawyer for the ACLU in a number of those cases.
    And I cannot list chapter and verse as to what has been the 
disposition of all of those, but there have been a number of 
efforts in this area and some of them, I think, have been 
unconstitutional under the First Amendment.
    Senator Kennedy. You continued on: ``The penalties are so 
harsh, the terms so vague and the coverage so sweeping, the 
statute frightens off lawful as well as unlawful protest. That 
presumably was its unstated purpose.''
    Mr. McConnell. And, Senator, you offered an amendment which 
cut the penalties in half, and that amendment was then accepted 
by the committee. I assume that at some level you must have--I 
can't put words into your mouth, but you must have at some 
level agreed with the criticism that the penalties were too 
    Senator Kennedy. In a 1998 article, you expressed 
skepticism about the need for laws that protect people from 
discrimination in the workplace on the basis of their sexual 
orientation, stating that most of the large and elite 
institutions of America have already been converted to gay 
rights. You further argued that it would be wrong for the 
Government to treat discrimination against gays and lesbians as 
bigoted and immoral.
    In your view, sexual orientation should not be included as 
part of the general civil rights laws which cover forms of 
discrimination widely recognized in our society as 
reprehensible: ``If sexual orientation is placed in the same 
category with racist or sexist action, it inevitably 
communicates the message that moral disapproval of 
homosexuality is of the same ilk.''
    As you may know, very similar arguments were made in 
opposition to the anti-discrimination provisions in Title VII 
of the 1964 Civil Rights Act. For example, one Senator 
criticized the bill as an attempt to deny to millions of 
employers and employees any freedom to speak or act on the 
basis of their religious convictions or their deep-rooted 
preferences for associating or not associating with certain 
classifications of people. Another Senator described as a 
thought control bill, since it undertakes to control the 
thoughts of the American people in respect to racial matters.
    Do you believe that your arguments regarding discrimination 
against gays and lesbians today are conceptually different from 
the arguments that were made on the Civil Rights Act?
    Mr. McConnell. Senator, I have argued, not as a matter of 
legal analysis, but essentially as a citizen that the best way 
to proceed on issues of sexual orientation as a Nation is to 
try to come up with ways in which the legitimate rights, 
including rights against employment discrimination of gays and 
lesbians, can be protected, but at the same time to do it in a 
way which will not force people who have conscientious moral 
views on the other side to be stigmatized as bigots.
    And so, for example, I wrote an op ed piece in my local 
Salt Lake newspaper encouraging the enactment in Salt Lake of 
an ordinance that would protect gays and lesbians against 
employment discrimination. There is probably more going on in 
my part of the country on this line that in most.
    And what I did is I suggested language which would be--
under which these interests would be protected, but would not--
but doesn't treat people who have a conscientious and often 
religiously-based moral objection the other way, as if they are 
    And, Senator, I suspect it is efforts of this sort to try 
to bridge the gap with respect to these very difficult sexual 
orientation questions--I suspect that that may be the reason 
why the Log Cabin Republicans have come out so strongly in 
favor of my confirmation. They have looked at my record on 
sexual orientation issues and have believed that I am a nominee 
that they would like to see confirmed to the court.
    Senator Kennedy. Well, what about disability legislation? 
There were many people who for years didn't feel that we ought 
to eliminate many of the barriers in terms of the disability 
community. Do you have any problem with any of that?
    Mr. McConnell. Senator, I haven't written specifically on 
that, but I have family members who have taken advantage of 
some of that legislation and I assure you that I have no animus 
against it whatever.
    Senator Kennedy. It does seem to me that we obviously have 
some differences, and that is that the forms of discrimination 
that are out there certainly with regard to race have an 
entirely different genesis than discrimination with regard to 
gender. But it is rooted in a type of bigotry and hatred; it 
has been. We have had to try and pass legislation to try and 
deal with it. It was also true with regard to the disabled, and 
we had a lot of difficulty in getting it passed.
    It does seem to me that when you see the kinds of crimes 
that have taken place against gay men and lesbian women and the 
kinds of viciousness and the crimes of hatred, there is a form 
of bigotry and hatred in this area, as well.
    Mr. McConnell. Undoubtedly, Senator, and I----
    Senator Kennedy. And it does seem at least to me that part 
of the process in terms of--and there are people that take 
strong exception to this part of the process of trying to have 
America be America, freeing us from the forms of discrimination 
in whatever form and shape they come in.
    The difficulty I have is accepting that, well, we can't do 
that, to the extent that we can in legislation. And no one is 
saying that legislation is going to solve all of the problems, 
but to an extent it does help to move a process forward, and it 
does take leadership, obviously, in other areas.
    But not to understand that we are going to have to take 
steps to knock down walls of discrimination against gays and 
lesbians because some have views which are antagonistic to 
this, I find troublesome. I don't want to put words in your 
mouth, but that is the conclusion I come to.
    Mr. McConnell. Well, Senator, there is undoubtedly bigotry 
and violence, and I have written about that and not only 
condemned it, but talked about legal doctrines relevant to it.
    There are also, however, conscientious moral views of many 
people. This is not an issue upon which the American people are 
divided--I mean are united--and it has seemed to me, and it 
certainly seems to me in the context of my own community in 
Salt Lake City that the best way to protect against the bigotry 
and discrimination is by crafting legislation that is less in 
your face, if you will, legislation that is----
    Senator Kennedy. I know that the time is going along. Let 
me ask, what is the religious teaching that says that if a 
person is otherwise qualified they should be discriminated 
against holding a job that they are perfectly able to perform 
because they are gay or lesbian; if they are otherwise 
qualified and the best qualified to hold it, that they should 
not be permitted to be considered for that job?
    Mr. McConnell. Senator, this is precisely the point I have 
made. We need to separate out moral views about particular 
conduct from questions like employment discrimination, which 
need not take a stand on the underlying moral question but can 
be based instead on the broader, I think, almost universally 
accepted American principle that in the workplace and in public 
settings, and so forth, we are entitled to equal treatment, 
essentially whether we are immoral nor not; that the moral 
question should be put into a separate, more private category 
and that we should address instead the actual concrete question 
of discrimination.
    Senator I don't know that we disagree on this.
    Senator Kennedy. Well, my time is up, but I have difficulty 
in following that last answer. But I will try and look at it 
again and see if I can't figure it out.
    Thank you.
    Chairman Leahy. We will keep the record open for Senators 
to ask follow-up questions, and also for the nominee, of 
course, to add anything that they wish to add to the record.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman.
    I am sorry I was not able to be here this morning. I've 
enjoyed the time that I have been here. I appreciate your 
thoughtful comments on a number of different issues. I have 
reviewed your record and on some issues I don't agree with you, 
but your views are all very thoughtful and require respect of 
anybody who respects analytical thought and a commitment to a 
principled rule of law.
    You know, on the Attorney General's opinion on assisted 
suicide, you wisely, I think, held back from that because the 
principle he was asserting was that under the Federal Drug Act 
passed by this Congress, you cannot use drugs to kill people 
with, and that was whether or not it could be licensed, but 
that's neither here nor there. It was not a direct act to 
overturn assisted suicide. If you did assisted suicide, I 
suppose, in some other way than violating the Federal drug 
laws, you could do it. But at any rate, I understand your 
respect for States' authority in that area.
    I remember, on one occasion, Judge Griffin Bell, a former 
Attorney General and former Fifth Circuit jurist, was at a 
conference in Alabama and was asked something about President 
Reagan's litmus test for judges, and I think in a somewhat 
humorous fashion, but representative of his feelings, maybe 
exaggerated for effect, he said nobody should be on the Federal 
bench that does not believe in prayer at football games.
    Senator Sessions. It's a good thing I don't agree with him 
totally on that or else it would be difficult for me to vote 
for you. But you have an interesting and principled view of 
separation of church and State, which I think is worthy of 
    I know Senator Hatch believes in you. You've got an 
incredibly broad-based support group from people with various 
different political and legal views. I think that speaks well 
for you, and you are a man of integrity and ability, and I 
respect that.
    There has been some discussion about the Interstate 
Commerce Clause, and many members of this body have asserted 
that the Supreme Court, by finding a Commerce Clause in the 
Constitution, is somehow an activist court. But you know the 
Lopez case that dealt with making it a Federal offense to have 
a firearm on a school ground, to possess it, was struck down by 
the Supreme Court. Subsequent to that, this Congress passed a 
law that said essentially the same thing and added the words 
that ``the firearm has moved in or otherwise affects interstate 
commerce.'' I don't know if you are familiar with that 
particular bit----
    Mr. McConnell. I am, Senator.
    Senator Sessions.--but I guess my question is do you think 
that would save the statute?
    Mr. McConnell. Senator, in my classes on Constitutional Law 
I, after reading Lopez, I always then present this new statute 
to them, and we have a lively discussion.
    It does seem bizarre, when you first think about it, but 
there is a logic to it, Senator, and that is this--and I'm not 
saying which way it would come out. I can't predict the Supreme 
Court very well, but I can tell you there is a logic to it--and 
that is that the actual contours of Commerce Clause doctrine, 
in our modern interconnected economy, are extremely difficult 
to figure out, and it is Congress, in the first instance, that 
is making the laws. The mechanism of requiring that kind of a 
we call them ``jurisdictional pegs''. This in a sense puts the 
onus on Congress to think about the Commerce Clause question 
first, so that Congress itself is able to make some of the 
empirical and policy judgments that then go into the ultimate 
constitutional decision, so that it isn't that Congress is the 
last word, but it, in a sense, forces Congress to address the 
question in a way that the Court is then able to decide it in a 
way with the benefit of congressional thinking. Maybe even to 
the point that judicial review becomes more of a distant 
backstop, and it's really Congress thinking about issues of 
federalism that's the foreground and should be the primary 
forum for debating these questions.
    Senator Sessions. I think that's fundamentally correct. The 
Congress does need to do that, and under previous settled law, 
and which for a number of years I prosecuted these Federal gun 
cases as an assistant United States attorney, and we always 
knew, and in every one of the offenses set forth in the Code 
involving firearms alleged that the weapon had moved or was 
part of interstate commerce, and that was an element of the 
offense, and you had to prove it.
    So Congress left that out of this statute, and that I think 
caused the difficulty. I don't think the Supreme Court was 
acting contrary to the historical way we have defined Federal 
law. In fact, automobile theft in Federal law is not theft of 
an automobile, it is interstate transportation of a stolen 
motor vehicle. And the vehicle you had to prove that it was 
moving or is and was a part of interstate commerce or you 
couldn't have a conviction. If you just stole a car in 
Birmingham, and the local police caught them in Birmingham, it 
wasn't a Federal offense.
    So, I think historically we have had some interstate 
connection required on most of our criminal law. We failed to 
allege it in that statute. I believe this new version will 
probably be upheld, although it will be interesting to hear how 
the Court writes on it when it goes up, but I certainly don't 
consider that to be an extreme act by the Court.
    Mr. Chairman, I'm finished and appreciate your moving this 
fine nominee. I believe he deserves our consideration and our 
    Chairman Leahy. Thank you very much, Senator Sessions.
    Senator Hatch, you had something else you wanted to ask 
before we----
    Senator Hatch. Let me just take a second or two Professor 
McConnell. A few years ago----
    Chairman Leahy. The Senator from Utah can take all of the 
time he wants.
    Senator Hatch. A few years ago when Bill Clinton was 
President and I was chairman of this committee, you 
communicated with my office on a number of occasions, for and 
on behalf of a number of Clinton judicial nominees.
    Mr. McConnell. Yes, I did.
    Senator Hatch. I thought about your support for those 
nominees the other day when I was reading a report published by 
one of the usual suspects that asserted essentially that your 
goal is to change the law to conform with your particular 
political viewpoint, particularly on the issue of abortion, and 
of course that has played a paramount role in this whole 
hearing, that issue.
    Upon reflection, I realize that there is a question I never 
asked you about your support for these Clinton nominees, and 
it's a question that I would like to ask, so let's take them 
one by one.
    Before you contacted my office to urge the confirmation of 
William Fletcher, currently a Ninth Circuit judge who was 
confirmed when I was chairman, did you ask him his personal 
views on abortion and, if not, why not?
    Mr. McConnell. No, Senator, I didn't ask him. I actually 
don't know Willy Fletcher personally. I didn't ask him because 
I know a great deal about him. He's a very distinguished 
professor, mostly in the international field. I've read some of 
his work. It's mostly out of my specialty. He's extremely 
highly regarded as a fair-minded and thoughtful person, and 
that was enough for me, Senator.
    Senator Hatch. How about Margaret McKowen, another Clinton 
nominee now serving on the Ninth Circuit, did you ever ask her, 
her views on abortion?
    Mr. McConnell. I did not ask her.
    Senator Hatch. I'll even ask you about a nominee who was, 
unfortunately, not confirmed, Ilana Kagan, who has written in 
support of you. Did you ask her for her personal views on 
abortion before you contacted my office for her confirmation?
    Mr. McConnell. No, I didn't.
    Senator Hatch. What about Rebecca Pallmeyer, the District 
Court judge in the Northern District of Illinois, did you ask 
her about her views on abortion before contacting my office 
about her confirmation?
    Mr. McConnell. I did not.
    Senator Hatch. Finally, let me ask you about a Seventh 
Circuit judge who was confirmed under my chairmanship, who also 
had your support, Diane Wood. I wonder whether you had any 
knowledge of her views on abortion at the time that you 
recommended her to me and to this committee?
    Mr. McConnell. She and I were colleagues together at the 
University of Chicago, and inside her office at the University 
of Chicago was a poster saying, ``I'm Pro-Choice, and I Vote.'' 
So I did, in fact, know about her views on abortion.
    Senator Hatch. But you still recommended her.
    Mr. McConnell. I did.
    Senator Hatch. Well, I think it's clear that the usual 
suspects are wrong about you. Far from being bent on making the 
courts conform to your own personal predilections or political 
views, I think it's pretty clear that you are a fair-minded 
scholar who has recommended others to the bench on the basis of 
their merit and without regard to their personal viewpoints, 
and I personally think this committee ought to treat you, and 
others, the same way; that one single issue should not 
determine whether somebody who is well qualified like you, 
unanimously well qualified or qualified, should be able to 
serve this country.
    I think we are getting down to where one issue is taking 
too much precedence, and it's important, and you have made that 
clear, both ways. There are two very sincere sides, but it 
didn't enter into your recommendations. You made these 
recommendations because you felt the people were qualified to 
be Federal judges, right?
    Mr. McConnell. That's right, and I did not assume it was a 
piece of information that would determine or should determine--
    Senator Hatch. Or should disqualify.
    Mr. McConnell.--your vote either, Senator.
    Senator Hatch. I just wanted to make that point. Thank you.
    Thank you, Mr. Chairman. I also want to thank the chairman. 
This has been a good hearing. It's been well conducted, and I 
personally appreciate him having you in for this hearing, and 
it means a lot to me personally because I know how great you 
are, and I just feel that you'll add a dimension to the Federal 
Circuit Court of Appeals that will be very, very important for 
this country and important for everybody, regardless of any 
ideological beliefs.
    Mr. McConnell. Thank you, Senator, and thank you, Mr. 
Chairman, for scheduling the hearing.
    Chairman Leahy. I do have a couple of others. Talking about 
asking people questions, I have never met with you or asked you 
questions about your personal beliefs or anything, have I?
    Mr. McConnell. You have certainly not.
    Chairman Leahy. In fact, the only discussions we have had 
have been right here in this open room.
    Mr. McConnell. That's right.
    Chairman Leahy. I assume that prior to appointing you, the 
people at the White House or the Department of Justice sat down 
and talked with you, as any administration would.
    Mr. McConnell. They talked to me, but they did not ask any 
questions about this.
    Chairman Leahy. I'm not suggesting that, but I mean, to 
that extent, somebody at least talked with you, the 
administration. This is not a trick question. Every 
administration does that with every nominee.
    Mr. McConnell. They did, yes. I had a 45--actually, it was 
less than that--scheduled 45-minute interview, and the main 
questions were what we nominees jokingly call the sex, drugs 
and rock-and-roll questions.
    Chairman Leahy. Well, you had something further. They 
probably had this great big heavy hand of Orrin Hatch hanging 
over the door, and knowing that that was----
    Senator Hatch. Be nice. Be nice.
    Chairman Leahy.--that they better not ask too many 
questions or then he comes down.
    You know him as this calm, quiet, easygoing person, but 
those of who know what a tiger he can be, and the White House 
is not the least bit interested what I think about. They have 
made that painfully clear over the years, but they do pay 
attention to Orrin.
    Senator Hatch. I think they pay attention to you, too.
    Chairman Leahy. Can I just ask you two philosophical 
questions? You spent 17 years in academia as a passionate 
advocate for change in the law or for an alternate 
constitutional interpretation, everywhere from First Amendment 
privacy rights to Fourteenth Amendment, and you have an 
absolute right to do that.
    You have become one of the most well-respected and 
provocative law professors in America--bright, committed, you 
speak out. We don't get too much of the ``white bread and 
mayonnaise'' from you. It's a very, very strong, passionate 
statement for everything from Roe v. Wade to even Brown v. 
Board of Education. You mentioned this morning you have even 
debated Marbury v. Madison.
    So let's assume you get on the bench. Now you can't just 
sit down and take a case before you and say, look, I'm just 
going to write out a passionate view about why my circuit is 
wrong or the Supreme Court is wrong or something like that. You 
give up that bully pulpit. I mean, you can walk out of here 
today, and in a couple of weeks from now, when the Supreme 
Court comes back in, they issue an opinion, and it can be nine-
zip, and you can just go out and write, and a lot of very 
prestigious publications would publish something written by you 
saying, boy, are they wrong, and you are going to give that up. 
Why? I mean, I'm just curious.
    Mr. McConnell. Senator, I've thought long and hard about--
    Chairman Leahy. I'm sure you have.
    Mr. McConnell.--about this question. I think it comes down 
to this. When I talk to my kids about how, you know, what 
should we do when we grow up--what should I do when I grow up--
and what I tell them is that they ought to look for three 
things. They ought to look for something they think they'll be 
good at, they ought to look for something they will enjoy, and 
they should look for something where they think they can 
provide a public service.
    Senator  Mr. Chairman, I think I'm going to enjoy being a 
judge. I certainly hope that I'm going to be a good one, and I 
hope 10 years from now you and I meet, and you'll tell me, you 
know, ``McConnell, I'm glad we did that,'' hard as the decision 
may be now.
    There is really nothing more important for a country, I 
think, than a fair, even-handed, consistent, objective system 
of justice. That's, you know, it beats everything else. When 
you look around the globe, that's what we have, and some other 
countries have it, but that's what we have, and that's one of 
the things that's absolutely essential to our country, and I 
guess that's what it comes down to, Mr. Chairman.
    Chairman Leahy. During 28 years here in the Senate, I've 
had an opportunity to vote on every member of the U.S. Supreme 
Court--the second vote on Chief Justice Rehnquist. I wasn't 
here when he was first appointed a justice, but I have voted on 
hundreds, upon hundreds of hundreds of nominees from President 
Ford, President Carter, President Reagan, former President 
Bush, President Clinton, and current President Bush.
    I have voted on conservative Republicans, liberal 
Democrats, people that totally disagree with me, hundreds of 
people I've voted for that made it very clear they totally 
disagree with me on a lot of issues from choice on through. I 
think I've probably only voted against a couple dozen, over 28 
years, judicial nominees. I led, along with Senator Hatch, an 
effort to defeat a judge nominated by a Democratic President 
because I thought he was not qualified. Actually, we had a 
similar disqualification come up when one was nominated by a 
Republican President and it got through, but we did defeat this 
other one.
    So ultimately I come down, once you go beyond the questions 
of qualifications--obviously, you have the legal brilliance and 
everything else--I go to one basic issue, and I ask this of 
everybody. I asked this of a conservative Republican I 
recommended from Vermont to President Clinton to appoint to the 
Second Circuit Court of Appeals, and he did, I asked one 
    If I came in that court, could I look at that judge and 
think whatever my case was, whether I was plaintiff or 
defendant, whether I was Republican or Democrat, liberal or 
conservative, whatever my religion might be, whatever my color 
might be, whatever my case might be, could I look at that judge 
and say, ``I'm going to be heard on the merits''? I mean, I 
might be a criminal defendant or I might be the prosecutor. No 
matter what it is, will that judge hear me on the merits or 
will that judge make a determination based on my economic 
status, my sex, my color, my political party before I get in 
    And when I have convinced myself of that question, I voted 
for that person, no matter what their background. I mean, we've 
had people that have been chairman of Republican Parties and 
all of this, so it's not a political issue at all with me. I've 
done that. When I haven't been able to satisfy myself of that 
question, notwithstanding the other qualifications, I voted 
against the nominee. I've done that with both Republicans and 
    So let me ask you the question obviously we're leading up 
to, Professor. Can you, searching your own soul, can you say 
that somebody comes in, whether it's Orrin Hatch or me, whether 
it's a rich person or poor person, whether they're coming in 
with a disagreeable case or the glory case, that you are going 
to look at that case one-by-one-by-one with no preconceptions?
    Mr. McConnell. Absolutely, Senator.
    Chairman Leahy. Are there any other questions?
    Professor, thank you very much. I appreciate the time you 
have taken. We will keep the record open for the appropriate 
time, and as I said before, feel free to, when you see the 
transcript, if there's things you want to add to it or 
something you want to just sui sponte send to us, feel free.
    Mr. McConnell. Thank you.
    [The biographical information of Mr. McConnell follows.]
    [GRAPHIC] [TIFF OMITTED] 81116.304
    [GRAPHIC] [TIFF OMITTED] 81116.305
    [GRAPHIC] [TIFF OMITTED] 81116.306
    [GRAPHIC] [TIFF OMITTED] 81116.307
    [GRAPHIC] [TIFF OMITTED] 81116.308
    [GRAPHIC] [TIFF OMITTED] 81116.309
    [GRAPHIC] [TIFF OMITTED] 81116.310
    [GRAPHIC] [TIFF OMITTED] 81116.311
    [GRAPHIC] [TIFF OMITTED] 81116.312
    [GRAPHIC] [TIFF OMITTED] 81116.313
    [GRAPHIC] [TIFF OMITTED] 81116.314
    [GRAPHIC] [TIFF OMITTED] 81116.315
    [GRAPHIC] [TIFF OMITTED] 81116.316
    [GRAPHIC] [TIFF OMITTED] 81116.317
    [GRAPHIC] [TIFF OMITTED] 81116.318
    [GRAPHIC] [TIFF OMITTED] 81116.319
    [GRAPHIC] [TIFF OMITTED] 81116.320
    [GRAPHIC] [TIFF OMITTED] 81116.321
    [GRAPHIC] [TIFF OMITTED] 81116.322
    [GRAPHIC] [TIFF OMITTED] 81116.323
    [GRAPHIC] [TIFF OMITTED] 81116.324
    [GRAPHIC] [TIFF OMITTED] 81116.325
    [GRAPHIC] [TIFF OMITTED] 81116.326
    [GRAPHIC] [TIFF OMITTED] 81116.327
    [GRAPHIC] [TIFF OMITTED] 81116.328
    [GRAPHIC] [TIFF OMITTED] 81116.329
    [GRAPHIC] [TIFF OMITTED] 81116.330
    [GRAPHIC] [TIFF OMITTED] 81116.331
    [GRAPHIC] [TIFF OMITTED] 81116.332
    [GRAPHIC] [TIFF OMITTED] 81116.333
    [GRAPHIC] [TIFF OMITTED] 81116.334
    [GRAPHIC] [TIFF OMITTED] 81116.335
    [GRAPHIC] [TIFF OMITTED] 81116.336
    [GRAPHIC] [TIFF OMITTED] 81116.337
    [GRAPHIC] [TIFF OMITTED] 81116.338
    [GRAPHIC] [TIFF OMITTED] 81116.339
    [GRAPHIC] [TIFF OMITTED] 81116.340
    [GRAPHIC] [TIFF OMITTED] 81116.341
    Chairman Leahy. Let's take a 3- or 4-minute break while we 
reset the table.
    Chairman Leahy. Would the five most patient people here 
please stand and raise your hands.
    Do you, and state your name, swear that the testimony you 
are about to give before the committee will be the truth, the 
whole truth, and nothing but the truth so help you God?
    Mr. Jordan. I do.
    Judge Ludlum. I do.
    Mr. Martini. I do.
    Mr. Phillips. I do.
    Mr. White. I do.
    Chairman Leahy. I am sorry that you have had to wait so 
long, but I am sure that when you consider the fact that the 
alternative is we are running out of time in this session, 
nobody is absolutely sure when we end, would be to have this 
hearing sometime in February or March, that a delay, as of 
today, you probably would feel a little bit better. I hope you 
don't mind.
    Let me do this just before we start. Would you each 
introduce the members of your family. I mention this, again, I 
say it somewhat facetiously, but it's true. You get a 
transcript of this, and someday somebody going through the 
records in your family will be delighted to see who was there.
    So, Mr. Jordan, could we start with you, please.


    Mr. Jordan. Thank you very much, Mr. Chairman.
    Sitting in the back is my wife, Michelle. Oh, she moved up.
    Mr. Jordan. My wife Michelle. By her is my son Clint. In 
the back is my son Tyler, and my son K.C., and my son Jesse. 
With us today is a dear friend, Pat Hannigan, as well as my 
niece's husband, who is a law student here in Washington, D.C., 
Jon Lear.
    Chairman Leahy. Jon, where are you going to school?
    Mr. Lear. Howard.
    Chairman Leahy. Good for you.
    Now, Judge Ludlum, what about you?


    Judge Ludlum. Thank you, Mr. Chairman.
    I'd like to introduce my husband, John Ludlum, who is here 
with me today, and I would very much like to mention members of 
my family who could not make the trip, my parents, Abdalla and 
Amelia Moses; my sisters, Deania and Lilia Moses, Diana Gomez 
and Marina Munoz, and my brother Henry Moses. I also have a 
step-son, Tom Ludlum.
    Chairman Leahy. We will probably have to check with you 
later, the staff will, to make sure we get the spelling of all 
of the names, but that will be in the record, and thank you for 
mentioning them. That was very nice.
    Judge Ludlum. Thank you.
    Chairman Leahy. Mr. Martini?


    Mr. Martini. Yes, thank you very much, Mr. Chairman.
    I'd like to introduce my wife, Gloria Martini, who is here 
today; and also our son, Bill Martini; and, unfortunately, our 
daughter is in college and couldn't be here today. That is 
Marissa Martini.
    Chairman Leahy. Feel fortunate. Where is she in school?
    Mr. Martini. She's at Villanova, and our son just graduated 
your alma mater, Georgetown.
    Chairman Leahy. Thank you. Well, good to have you all here.
    Go ahead, sir.


    Judge Phillips. Thank you, Mr. Chairman.
    I would like to introduce my wife, Dorothy Phillips, who is 
here with me today; and my brother-in-law, Johnny Madson; and I 
have two very close friends, members of the Knoxville Bar, 
Wilson Horde and Bob Murrian, with whom I have served as a 
magistrate judge for the past 12 years, who have come to give 
me moral support.
    I would also like to mention, for the record, my daughter, 
Lori Phillips Jones, who is busy taking care of my 1-year-old 
grandson, Alexander Phillips Jones, and my son-in-law, Philip 
Jones, who could not be here. I would also like to mention my 
son, Wade Phillips, who is at work and couldn't be here either.
    Thank you, Mr. Chairman.
    Chairman Leahy. Judge, you will find that grandson is the 
best part of life.
    Judge Phillips. I have already found that out to be true, 
Mr. Chairman. Thank you.
    Chairman Leahy. When our one grandchild is around, no 
matter who is calling on the phone, if he wants to play with 
toy trains or read books, it takes top priority, and it is a 
nice part of life.
    Judge Phillips. It does, indeed.
    Chairman Leahy. Mr. White?


    Mr. White. Thank you, Mr. Chairman.
    I'd first like to introduce my wife, Jane White, who is my 
wife of 33 years and has supported me throughout this entire 
process and every other process I've been party to.
    I'd like to introduce my son, Eric White. Eric is an honor 
grad of the University of California, Davis, at this time; and 
my son, Joshua White, who is a student at the Hastings College 
of the Law in his second year.
    I'd like to introduce my father, Mack White, from New York 
City, and his wife, Thelma White, from New York City, of 
    And I'd like to introduce my sister, Leslie Parrino, from 
New York, and her husband, Robert Parrino, from New York.
    And I'd like to introduce my extended family. First of all, 
my mother- and father-in-law, Ruth Stabbe and Arthur Stabbe, 
originally from New York and now from California; and Jane's 
aunt, Lillian Gerstein from Maryland; and my wife's cousins, 
Barbara and Irv Cohen from Maryland; their son, Larry Cohen, 
from Maryland--and I'm almost done, Mr. Chairman.
    Chairman Leahy. No, I just think we should have had a 
bigger room.
    Mr. White. And just a few more people, Herb and Michelle 
Better are in the back from Baltimore. They are our closest 
friends. Herb worked with me at the United States Attorney's 
Office at the beginning of my career, and they have remained 
very dear friends, and their daughter Laurie, who is a member 
of the staff of the Banking Committee. I'm very proud of her; 
and, finally, Denise Alter, who is my former partner and 
teaches with me at the University of California at Boalt Hall.
    Chairman Leahy. Anybody else?
    Mr. White. I hope not or I'm in trouble, Mr. Chairman.
    Chairman Leahy. I was going to say we may not finish today. 
No, I think that's wonderful, Mr. White, and all of you, Mr. 
Jordan, and Judge Ludlum, and Congressman Martini, and Judge 
Phillips, and each one of you to have your family here.
    Mr. Jordan, I notice one of your pro bono cases was Hameen 
v. State of Delaware, and I mention this because I always check 
to see what nominees have done on pro bono-type things of 
whatever nature because all of us, as members of the bar, tend 
to live a somewhat privileged life, and we should give some of 
that back. This involved a Delaware amendment to the death 
penalty statute which was retroactively applied to your client, 
and then he was subsequently executed.
    A lot of questions have come up about the death penalty. In 
a speech last summer, Justice O'Connor, who had supported the 
death penalty said there were serious questions about whether 
it is fairly administered in the U.S., and she added, ``The 
system may well be allowing some innocent defendants to be 
    Do you feel that it is being fairly administered or are 
there changes that you would propose? I'm not asking you what 
your position is on the death penalty, but do you feel the 
administration of it is fair or are there some changes that 
should be made?
    Mr. Jordan. Mr. Chairman, it is, being perfectly candid, I 
have not searched my heart and considered the broad policy 
implications of the way it is applied. My experience with the 
death penalty was very unique, very localized, very specific. 
It was this man's case, and as an advocate, I certainly felt 
that a fundamental constitutional right was not vindicated, as 
I had hoped it would be, and my hope and concern is that, if I 
were confirmed, I would have that in my mind and the importance 
of constitutional rights affecting criminal defendants of all 
sorts, but particularly when the death penalty is at stake, in 
considering any habeas review that might come before the Court.
    Chairman Leahy. You've taken on a lot of time serving the 
legal needs of others, both civil and criminal cases, and as 
has already been pointed out, your background is such you're 
obviously a highly competent attorney.
    Do you feel, to the extent you've seen it, that courts--not 
necessarily the Federal courts which have higher standards--but 
courts are always careful enough when they have to appoint 
counsel in a criminal case?
    Mr. Jordan. I know, Mr. Chairman, that in the District of 
Delaware, where I am familiar with the practice, that the Court 
has been extremely careful about that.
    Chairman Leahy. You're talking about the Federal court.
    Mr. Jordan. Yes. Although it might seem self-serving, since 
I've just finished talking about myself being appointed in a 
case, I think the Court has been at pains to try to find and 
balance the types of skills and resources that can be brought 
to bear on behalf of a defendant when they're looking for 
counsel to appoint.
    Chairman Leahy. If I might say, Mr. Jordan, if you're on 
the bench, you're going to be in a position where you're going 
to have to appoint counsel in criminal cases. Speaking as a 
former prosecutor, and one who handled thousands of criminal 
cases, if you have a good prosecutor, and you're going to be 
dealing with the Federal prosecutors, they usually are pretty 
good, they are actually better served if you appoint a good 
attorney on the other side.
    There is nothing more difficult for a prosecutor than to do 
things, so that you don't have a reversal later on, to try to 
handle both the State case or the Government's case and the 
defense case. I just pass that on for whatever it's worth.
    Mr. Jordan. I absolutely agree with that, sir. When I was 
an assistant U.S. attorney, I found that I was always grateful 
to have strong and competent defense counsel because it often 
served to resolve cases before trial.
    Chairman Leahy. I noticed that, as I was going through the 
backgrounds, a lot of the nominees have very recently joined 
the Federalist Society. In fact, we had one nominee who was 
very honest about it and said he had never thought about it, 
and somebody told him, well, if you want to be a judge, you 
better join the Federalist Society. But I noticed you resigned 
in 1997. Why? You still made it to here.
    Mr. Jordan. The truth is, Mr. Chairman, I wasn't even 
really conscious that I had signed up.
    Mr. Jordan. I had some good friends there in Delaware who 
were interested in law and public policy and invited me to a 
luncheon. I supported them in their organizing the local 
chapter and attended three or four luncheons with them over the 
course of a year or 18 months, and I think that that put me on 
the rolls of the national organization. I guess when I stopped 
going to the lunches, I stopped being on the rolls. That's the 
only thing I can assume.
    Chairman Leahy. Fair enough.
    Obviously, the usual answer to the stare decisis question. 
You will follow your circuit's decisions and the U.S. Supreme 
Court decisions, whether they comport with your own personal 
beliefs or not.
    Mr. Jordan. To the utmost of my ability, sir.
    Chairman Leahy. Judge Ludlum, let me ask you a question, 
and this is actually one that has been ingrained in me by 
Senator Thurmond over the years, both when Senator Thurmond was 
chairman of this committee and when he was ranking member, and 
Senator Thurmond had already served on this committee for years 
when I first became a member, but he would put it this way, and 
he did this with everybody, no matter whether it was somebody 
that was nominated basically because of his recommendation, and 
Senator Hatch has certainly asked this question a hundred 
times, a thousand times.
    He talks about the fact that a judge in a court, especially 
a District Court judge, when they are the only one there--it's 
not a Court of Appeals--they're the only one there. As the most 
powerful person there, they can humiliate a litigant that they 
don't agree or, for whatever reason, don't like or they can 
treat everybody with courtesy and fairness, so that when 
somebody leaves that courtroom, they have a sense that justice 
has been done, not that one side was favored over the other 
because of a judge's attitude toward an individual.
    Now you've been a magistrate for some time now, so you've 
had to deal with a whole lot of people. How do you feel about 
the idea and the question about how a judge should be toward 
litigants who come before them?
    Judge Ludlum. Mr. Chairman, I very much agree with the 
premise of your question, and that is that all litigants and 
all parties, all attorneys, members of the court family ought 
to be treated courteously and with respect when they come into 
court. I think that everybody ought to be afforded a fair and 
complete opportunity to litigate the issues that they feel are 
important to them and should be able to do so without any judge 
have any preconceived notions, prior to hearing the facts and 
applying the law, and I very much agree with that.
    I have been on the bench five and a half years, and I can 
say, Mr. Chairman, that there is a transition period, there is 
a learning curve of moving from being an advocate, as I was, 
and I was a pretty passionate advocate, to being what I call an 
active listener, an active participant in the court 
    And I have learned a lot over the last five and a half 
years, and I hope that I have grown as a jurist, and I hope to 
continue to grow as a jurist and to continue to learn as I go 
through the job. I have been very fortunate to have some very 
good mentors and District judges who have helped me and have 
taught me a lot in being a jurist.
    I can assure you, Mr. Chairman, that everyone will be 
treated with respect in my court and will be viewed very 
    Chairman Leahy. Thank you. Do you believe mandatory minimum 
sentences are effectively deterring drug use?
    Judge Ludlum. Well, Senator, in my area----
    Chairman Leahy. You've had a lot of drug cases before you 
as magistrate.
    Judge Ludlum. Yes, sir. In my area, where I come from, from 
Del Rio, Texas, when we talk about drug cases, we're talking 
about 5,000 pounds of cocaine, we're talking about 98 kilos of 
98-percent pure cocaine. So we're talking about excessive 
amounts of drugs and very extreme amounts of drugs. And so 
minimum mandatories, as a philosophy and a question, have never 
really been disputed or discussed in my area, just because of 
the types of cases that we do see in our courts.
    I know that those are the laws, and it's the area of the 
legislature to mandate minimum mandatory sentences, and I will 
fully comply with the mandates of the legislature with regard 
to the minimum mandatories.
    Chairman Leahy. You have seen cases where the prosecutors 
have try to predetermine the sentence, depending upon how they 
charge. I mean, a prosecutor has a great deal of discretion. 
They can bring charges above the trigger level on a mandatory 
minimum or just below it. They really have total discretion.
    Have you seen, in effect, sentence shopping on the part of 
    Judge Ludlum. I don't know the subjective or the motivation 
for the type of charging decisions that have been made by the 
prosecutors. I have seen instances where, factually, the 
sentences are different based on the charging document versus 
the facts, and now that we have the Apprendi decision, as well 
as the Harris decision, the courts are having to grapple with 
the charging of cases, compared to the facts that are presented 
in the case, and we will look at those very carefully.
    Chairman Leahy. Thank you. Judge, like so many of us on 
this committee, you had about a decade of experience as a 
prosecutor, and prosecutors are there to make sure they win 
within the realms of fairness. Because a lot of the cases that 
have come before you--again, as you have already pointed out, 
in the district where you are, they are not going to be the 
civil cases, they're going to be criminal cases--can you be 
sure, in your own mind, that you will not come into that 
courtroom with a predisposition as a prosecutor? And I would 
ask the same question of somebody who has been a defense 
attorney for a long time, too, that can you come in there 
without that predisposition?
    Judge Ludlum. Yes, sir, I believe I can. Having been a 
prosecutor, I always viewed my job as seeing that justice was 
done, not necessarily seeing that someone was convicted, thrown 
in jail and the key thrown away. So when I made the transition 
to judge, I was able to put that experience behind me and to 
learn to be impartial and independent.
    Chairman Leahy. Thank you.
    Congressman Martini, let me ask you, again, what I call the 
Thurmond question. It's very easy for a judge to get 
frustrated, to lose his or her temper in court, but the lasting 
thing is that people walk out of there thinking his personal 
disposition decided this, not the law, whichever way the case 
    Strom Thurmond says the more power a person has, the more 
courteous they should be. Do you agree with that? Do you feel 
you can keep that kind of levelheadedness in a courtroom?
    Mr. Martini. Yes, I do, Mr. Chairman. Unfortunately, as a 
trial lawyer, I've had the occasion where I've been before a 
judge who has been less courteous than I would have liked and 
somewhat maybe partial in certain situations, and those have 
always been unsettling experiences, both as a prosecutor and as 
a defense attorney, and so I'm very mindful of that fact, that 
it's extremely important to be courteous, and it's extremely 
important, and the real challenge is being courteous, but 
maintaining a certain degree of authority in the courtroom.
    Chairman Leahy. No question about that.
    Mr. Martini. And I think that's the challenge that a judge 
has, and it's one that I'm very mindful of.
    Chairman Leahy. It's interesting what you say about being a 
litigant on both sides and having judges to do that. I know 
it's been, with my experience in trying cases, occasionally you 
do get that kind of judge. And you sit there afterward, even if 
you win, you wonder what is it based on? And if you're 
wondering that, you can imagine how the litigants feel, how the 
public who watches that feels.
    I think that, just as members of the Senate or the House, 
but even more so members of the judiciary with a lifetime 
appointment, have this overriding responsibility to maintain 
the integrity and the respect of the Court. It doesn't mean you 
let the litigants run away in the courtroom by any means. The 
reason you are there is to keep the trial or the proceedings 
going. But I think that even people that are just visiting, 
they're going to walk away thinking, boy, I was in Federal 
court, and man they know what they're doing, no matter where 
they are.
    I think I've heard a lot of questions, a lot of things 
asked in here, but Senator Thurmond's question in that area 
stuck in my mind over the years, and I try to make sure that 
every, but especially a trial judge, is going to get that 
    Now, as you have mentioned yourself, you have been a 
prosecutor, you have been a defense attorney. You had one with 
capital murder I see in the report here, New Jersey v. William 
Fitzpatrick. You introduced, when you were in the Congress, the 
Death Penalty Clarification Act of 1995. It would have expanded 
the list of aggravating factors in the Federal death penalty 
    There have been concerns raised about how the death penalty 
is administered. Is it, aside from whether you are for or 
against it, is it administered fairly, in your judgment?
    Mr. Martini. I think when we talk about the death penalty, 
Mr. Chairman, we always have to be reflective on that 
particular question, and I don't know if we'll ever get to the 
point where we could say, with 100-percent assurance, that it 
is being implemented fairly.
    I think in that instance, in the instance of the capital 
punishment, the laws provide for more assurance than perhaps in 
other types of crimes, as they should, but I do think that we 
have to strive, and I think Congress has to continue to strive 
to be sure in its enacting of laws, that it will be implemented 
fairly, and then I think, of course, the courts have to be 
particularly sure that the rights of the defendant, in a 
capital case, are, in fact, being protected during that 
    Chairman Leahy. What would you look for if you are the 
judge, you've got a murder case before you, an indigent 
defendant, fits all of the criteria for assigned counsel, what 
would you look for in the counsel you would assign?
    Mr. Martini. I would certainly look for experience. I would 
look for counsel who have been through the death penalty 
process and be sure that a counsel who is assigned to a death 
penalty case has that type of experience.
    Chairman Leahy. When you were a Congressman, you wrote an 
article saying you wanted to make English our Nation's official 
language. You suggested the bilingual movement is, ``an elitist 
form of political oppression.'' But you are going to have some 
people who are going to come in who speak very little English. 
I am somewhat interested in this. When my grandparents came 
here from Italy, they didn't speak any English, and even as a 
child I had to speak Italian with them to be--I understand my 
mother didn't speak English until she was in grade school. My 
wife's family came here, while she was born here in the United 
States, she didn't speak English until she started school.
    There are a lot of people with different languages. How do 
you make sure, if somebody comes in and has a very limited 
command of the English language in your courtroom, that they 
are being adequately represented?
    Mr. Martini. Certainly, Mr. Chairman, we would be sure that 
they would get an interpreter, that the interpreter would be 
there throughout the entire process. That would be expected.
    The issue of English First or English as the principal 
language arose in my district, which at the time that was a 
very controversial issue, but one which there was a lot of 
sentiment on, and it really had to do with the fact that there 
was multilingualism developing in the district.
    The district was extremely diverse. The diversity was a 
terrific part of the district, but I think a lot of the local 
officials were having great difficulty in trying to address the 
many different expectations that there were with respect to the 
number of different languages that were being spoken in the 
district, and there were some very honest and reasonable 
differences of opinion on that.
    But I do understand the difference in terms of the role of 
a judge. Obviously, when we're protecting individual's rights 
and their rights at trial, we would have to be sure that they 
would have the benefit of an interpreter.
    Chairman Leahy. You, also, as a Congressman, resisted 
efforts to cut back on legal services and felt that there has 
to be money for people for representation. I think you and I 
took basically the same position in that regard.
    Mr. Martini. I did, yes, Mr. Chairman.
    Chairman Leahy. Now you have, and very appropriately so, 
been actively involved in politics, in the political life, and 
like Senator Hatch and myself, I'm sure you find a lot of that 
being very enjoyable, being involved in people's campaigns and 
so forth.
    Now, as a judge, it's going to be a lot different. Now are 
you going to have any, I mean, you are still going to have the 
right to vote, you can read all you want about politics, you 
can entertain your own thoughts, and should, are you going to 
have any difficulty going into that judicial monastery?
    Mr. Martini. I don't believe so, Mr. Chairman, particularly 
since I've already made that transition in waiting for this 
process to go forward. In one way, this wait has been very 
good. It has taken me out of the political process, and I might 
add that most of my career was really in the practice of law. 
It's the last 10 or 12 years that I was very actively involved 
in politics, so that most of my career was in the day-to-day 
practice of law, and I'm looking forward, actually, to going 
back to dealing with very factual issues and applying the law 
to the facts that are before me.
    Chairman Leahy. Actually, I know a couple of members of the 
judiciary who rather enjoy being able to step back from that. 
As one said to me somewhere, and there was some political event 
that I had to go to that I didn't want to go to--it was one of 
these going to be interminable, you know, the 18 speeches 
before you lead up to the five important speeches kind of 
thing--and he said, ``Gee, Pat, you know I'd go with you, but 
of course I'm judiciary now.'' So he said, ``I'm going to have 
a beer, watch the game, and go to bed.''
    Mr. Martini. I've already used that excuse.
    Chairman Leahy. I'm sure you have.
    Judge Phillips, in your position as U.S. magistrate, and 
you are now chief U.S. magistrate, aren't you?
    Judge Phillips. I am, Mr. Chairman. That is correct.
    Chairman Leahy. You've had a lot of pretrial hearings, 
evidentiary hearings. One of these was in the local press, U.S. 
v. Leek.
    You recommended that the District Court deny a motion to 
suppress drugs seized as a result of warrantless search of the 
home rented by the defendant. You found an exigent circumstance 
existed when an officer entered the home without a warrant to 
accompany a landlady, in their needs to protect them, while 
they looked for a water leak that they suspected was due to a 
water bill.
    You told them he couldn't enter the residence. You later 
decided he must enter the residence because the woman had 
decided to go in and was therefore going to be in immediate 
need of protection. You wrote the officer had to respond to 
respond to this emergency because to have abandoned these two 
ladies at that juncture in order to obtain a warrant does not 
appear to be a reasonable resolution.
    I mean, the women could have been asked to just stay out by 
the officer. They didn't have to go into the rental room. I 
mean, do we have an emergency? Is this a case where it swallows 
the rule itself requiring a warrant? I mean, if a water bill is 
enough to set up an ability to do a warrantless search, is 
there anything that would stop somebody from doing that 
warrantless search? I mean, you could have a barking dog. You 
could have a whole lot of other things.
    Judge Phillips. Mr. Chairman, that case dealt with very 
specific facts. The testimony presented at the evidentiary 
hearing established that these ladies who were elderly were 
going to go back into the house. They were not going to wait 
for the police officers, and the Supreme Court has said that 
you have to look at the totality of the circumstances in 
determining whether the officers have acted reasonably under 
the circumstances. And it was my feeling that, under those 
peculiar circumstances, it did qualify as exigent circumstances 
that allowed the police officers to enter. However----
    Chairman Leahy. Back in 1914, in Weeks v. United States, 
the Supreme Court developed the exclusionary rule. I remember 
lecturing to police departments in my jurisdiction over and 
over again why this was an important rule to keep in mind.
    Do you feel that there is a deterrent effect in the 
exclusionary rule, a deterrent in the sense of keeping police 
officers from not following the rules?
    Judge Phillips. Certainly, Mr. Chairman. I believe that the 
exclusionary rule serves a very vital and important function in 
the administration of criminal justice. I do, indeed.
    Chairman Leahy. Have you ever recommended the District 
Court grant a motion to suppress evidence that was obtained 
without a warrant?
    Judge Phillips. I have, Mr. Chairman. I have, indeed. But I 
guess I should point out, Mr. Chairman, that I have been a 
magistrate judge now for eleven and a half years, and I have 
written hundreds of reports and recommendations.
    Chairman Leahy. Now let me ask the obvious question. And so 
you won't feel singled out, I have asked this of nominees of 
Democratic Presidents, too, who have had involvement in 
politics prior to their nomination or their current position.
    Can you assure us that if somebody walks into your court, 
if you are now the District Court judge, that they can feel 
comfortable that, no matter what their political background is, 
no matter what their economic or any other background might be, 
that they can look at Judge Phillips and say, okay, if I've got 
a good case, I'm going to win, and if I've got a lousy case, 
I'm going to lose, and that's all that's going to count?
    Judge Phillips. Absolutely, Senator. I believe very 
strongly that it is the responsibility of the judge to treat 
every individual equally. This is the only Nation in history 
dedicated to the proposition of equal justice under the law and 
that all women and men are created equal. I believe that 
wholeheartedly, and I hope and pray that at no time would I 
ever allow anything to influence my judgment in that regard.
    Chairman Leahy. And do you agree with Senator Thurmond that 
a Federal judge has actually even a more difficult role or 
position that they have got to make sure that people in that 
courtroom know that they are being fair, that they are not 
being overbearing?
    Judge Phillips. Absolutely, Mr. Chairman. I believe that 
every individual who walks into a Federal courtroom should 
leave that courtroom believing that justice was done and that 
the judge was fair and impartial.
    Chairman Leahy. I can't stress that enough. Obviously, if 
you become, you've got a lifetime position, you don't have to 
respond to me, Senator Hatch or anybody else, but we're all 
lawyers here, and we should have a sense of respect for our 
judicial system, as I am sure you do, but it's the integrity 
and the independence of the judicial system and it's a respect 
for it because courts can't call out armies to enforce their 
rules, and, ultimately, their rules, no matter what they've got 
to back them up, whether it's U.S. Marshals or anything else, 
they don't really have much effect, unless they are seen as 
being fair, unless they are seen as being evenhanded.
    It has got to be, especially our Federal courts, it has got 
to be a place where anybody can say, look, I've got a right 
here that's being stepped on or something. I've got one place I 
can go, and at least whatever comes out of there will be fair. 
I think judges have to ask themselves that every day. They come 
in, and, you know, it's, ``God, I hate this case. I wish these 
people weren't here,'' but you can't let that show. You've got 
to be fair.
    Mr. White, you've had a litigation practice for almost a 
quarter of a century at Orrick, Herrington and Sutcliffe, and 
so you have been in a lot of courtrooms. I am sure it would be 
fair to say you have seen really good judges and you have seen 
some who were not really good judges.
    Mr. White. That is definitely correct, Mr. Chairman.
    Chairman Leahy. I'm not asking you for names. I wouldn't do 
that to you.
    Chairman Leahy. But you know, I mean, anybody who spends 
any time litigating knows instinctively what a good judge is 
and what a bad judge is.
    Now you have generally represented large corporations, 
corporate officers, directors, governmental entities. You have 
defended corporations in high-stake employment trials, such as 
those involving claims of wrongful termination, sexual 
harassment, discrimination, contracts, fraud, and so on. You 
have been a Federal prosecutor for 8 years. As I said before, 
nothing wrong with having been a prosecutor.
    But now these discrimination cases, some of these other 
things, a lot of those are going to land on your doorstep, and 
you're not the defense counsel for the corporation, you're not 
the plaintiff's counsel for the one making the complaint. Can 
you step back, step away from your days as, in fact, a high-
stake litigator for a corporation and say I'm going to look at 
this thing, and I'm going to decide it based on whether it's a 
meritorious complaint by the complainant or not?
    Mr. White. Mr. Chairman, absolutely. I understand that the 
role of a judge, a jurist, is very different from that of an 
advocate, and I certainly welcome the oath I will take and will 
certainly adhere to it.
    It should be pointed out that, although I've had a few 
trials where I have to say I've been successful in all of them 
representing the corporations because the jury found, always a 
jury trial, that my client was correct, after hearing the facts 
and the law given to them by the judge, those cases usually 
involve not a union employee or some low-level employee. These, 
generally speaking, are very high-level corporate officers, 
making millions of dollars, who claim you shouldn't have 
terminated me the day before my options vested so that I could 
have realized another $25 million.
    Also, Mr. Chairman, the cases that I get, when I get them, 
have been well-vetted by the corporation, by their H.R. 
Department. And usually the cases I get, at least my clients 
believe--and in most cases so far in my career they've been 
correct--that the corporation didn't do anything wrong.
    I have, in an equal number of cases, been asked by a 
corporation to investigate wrongdoing by corporate officials, 
in connection with harassment or other forms of discrimination, 
where I have recommended termination of the employee, 
appropriate investigation or that the individual be exonerated.
    In one part of my career, Mr. Chairman, which you didn't 
mention, which is what I think I am probably most proud of, is 
I have been a teacher at the University of California, Boalt 
Hall, and it is a very diverse campus at Berkeley, and I have 
been really pleased with my ability to explain the importance 
to my students in trial advocacy of seeing both sides of the 
question, and they actually get up there and act as judges, and 
I critique them as judges, and I teach them the importance of 
seeing both sides and treating people fairly, and honestly, and 
without any prejudices or biases.
    I am excited about the opportunity of performing a service 
and being able to do that in every case that I have that will 
come before me, sir.
    Chairman Leahy. Have you had any dealing with Title VII, 
protecting State employees against disparate impact 
discrimination cases?
    Mr. White. No, Mr. Chairman. We actually have an Employment 
Department that handles those kinds of cases. I am actually in 
the litigation, and in fact I led it for 15 years. I only get 
involved in those high-stakes cases which are going to go to 
trial and involve very senior executives. So I don't handle 
those kinds of cases. I leave it to my partners in that 
    Chairman Leahy. We had a judicial nominee who came before 
the committee who said that all valid employment discrimination 
cases are resolved by the Equal Employment Opportunity 
Commission. Another one said that employment discrimination 
claims never go to trial, but they always settle.
    Has it been your experience that the EEOC handles all valid 
employment discrimination claims?
    Mr. White. I would have to, Mr. Chairman, say that I am 
unable to answer that question. Again, it is not my specialty. 
I haven't really studied the issue, and any answer I would give 
would be speculation, sir. I'm sorry.
    Chairman Leahy. But you could well see one coming before 
the Court.
    Mr. White. Absolutely, and I would certainly learn the law 
and apply it in an appropriate way as a judge, sir.
    Chairman Leahy. So instead of a member of the board of 
directors of a corporation coming in to see Attorney White, you 
now have two very nervous litigants, one plaintiff and one 
defendant, before Judge White. Can you feel pretty comfortable 
that whoever is plaintiff, whoever is defendant, Judge White is 
going to give fair and equal treatment?
    Mr. White. I feel absolutely certain of that, sir, and I 
was pleased to learn, in the course of the myriad 
investigations that have been made of my background, that even 
my opponents, against whom I have tried cases and denied their 
client significant recoveries, have characterized me as being 
fair, and honest, and ethical in the way I have handled cases.
    And I believe--I know, for a fact--that I would be even 
more fair and deliberate as a judge, sir.
    Chairman Leahy. Speaking of all that background and all, 
don't you just love all of that paperwork you have to fill out?
    Mr. White. Fortunately, my secretary has learned more about 
me than probably anybody else, and she is kind of on automatic 
pilot, but it is well worth the challenge, Mr. Chairman, 
believe me.
    Chairman Leahy. No, no, no. Say it's a lousy amount of 
paperwork because Senator Hatch and I have been trying to 
figure out how to cut it down. No, I know what you are saying.
    Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman. Thanks for holding 
this hearing and thanks for this excellent hearing with these 
excellent nominees. I am very proud of the nominees that 
President Bush is putting forth, and certainly you five 
certainly set good standards, and we are pleased to support 
    Just one brief question for you, Judge Phillips, and that 
is it is about the Leek case. Did the District Court in that 
case adopt your recommendations?
    Judge Phillips. The District Court did adopt my report and 
recommendation, that's correct.
    Senator Hatch. That was my understanding. I just wanted to 
make sure that's clear on the record.
    I have known Mr. Jordan for a while. I know his brother 
better, but I know his parents even better than him and his 
brother, and they are really good people, and I have no doubt, 
Kent, that you are going to make a great judge.
    Mr. Jordan. Thank you, sir.
    Senator Hatch. I know that you will have the support of 
your family in doing this very arduous and difficult job.
    I know quite a bit about each of you, especially you, Mr. 
Martini, and we wish you well. We think you will enjoy the 
Federal bench. We will try and get you through as quickly as we 
possibly can.
    But I want to thank the chairman for hosting this hearing. 
I know that you are all well-qualified. I know every one of 
you, each of you will make a great judge, and I think that is 
the best we can do for our country. So thank you for being 
willing to give up your lives, to a degree, and to give this 
public service for all of us. We appreciate it.
    Mr. White. Thank you, Senator.
    Judge Phillips. Thank you, Senator.
    Mr. Martini. Thank you, Senator.
    Judge Ludlum. Thank you, Senator.
    Mr. Jordan. Thank you, Senator.
    Chairman Leahy. Thank you for answering Senator Hatch's 
hard-ball questions.
    If there are no further, we will, again, the same rule. 
Take a look at your answers. If you want to add to them or 
subtract from them, please feel free to do so. We will keep the 
record open for a reasonable amount of time for any questions 
that may come here.
    [The biographical information of Mr. Jordan, Judge Ludlum, 
Mr. Martini, Judge Phillips and Jeffrey White follow.]



































































































































































































    Chairman Leahy. We stand in recess.
    [Whereupon, at 4:20 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
















































































































                      THURSDAY, SEPTEMBER 26, 2002

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room 106, Dirksen Senate Office Building, Hon. Charles E. 
Schumer, presiding.
    Present: Senators Schumer, Leahy, Kennedy, Kohl, Feinstein, 
Feingold, Durbin, Edwards, Hatch, Grassley, Specter, Kyl, 
Sessions, Brownback, and McConnell.
    Senator Schumer. Ladies and gentlemen, the hearing will 
come to order, and I want to welcome everybody to today's 
    What we are going to do today is begin with introductions 
by the home State Senators of the nominees from their States. 
Then we will proceed to opening remarks by myself and Senator 
Hatch, and then we will move to questioning of the nominees.
    So, with that, let me first call on Senator Warner of 
    Senator Warner. Mr. Chairman and Senator Hatch and members 
of the committee, I thank you very much. I am going to defer to 
my colleague, Senator Allen, to lead off, and then I will do a 
few wrap-up remarks. Senator Allen has worked very closely with 
this nominee and spoke yesterday on the subject, and out of 
deference to you, I will let you lead off.
    Senator Allen. Okay.
    Senator Schumer. Thank you, Senator Warner. We very much 
appreciate your being here.
    Now we will hear from Senator Allen.


    Senator Allen. Thank you, Mr. Chairman.
    Mr. Chairman, Senator Hatch, Senator Grassley, Senator Kyl, 
Senator Brownback, and other members of the committee, it is a 
pleasure to join with my colleague Senator Warner in presenting 
and introducing to the Judiciary Committee Miguel Estrada. You 
all have had this nomination and have looked at his record of 
his many years, and you have had 16 months, and you know about 
his experience as a U.S. Attorney arguing cases before the 
United States Supreme Court, his work in the Solicitor 
General's Office.
    Miguel Estrada, Mr. Chairman and members of the committee, 
is truly a man of great character. He is the embodiment of 
everything we talk about about opportunity and the American 
dream. He is an example of a young man who came to this country 
and perfected his knowledge and expression in the English 
language, obtained a good education. He worked hard. He 
persevered and advanced in his professional career.
    You also see in Miguel Estrada a man who, fortunately for 
us, lives now in Virginia with his wife, Laury, who is here, in 
green; his mother, Clara Castaneda, who lives in Ohio, once 
having lived in New York at one time; and his sister, Maria, is 
also with him.
    The other thing that I know that you will care about is his 
judicial philosophy, and I have found him to have the proper 
judicial philosophy, understanding the role of a judge to 
interpret the law based upon the case and the facts in 
evidence, and in this case an appellate court reviewing the 
case file, as well as the importance of precedent and 
protecting the United States Constitution.
    He has been reviewed by many groups, and you have seen, 
whether it is--the U.S. Chamber of Commerce, the Hispanic 
Chamber of Commerce have reviewed him, they endorse him. The 
Hispanic National Bar Association and also the ABA has given 
Miguel Estrada their very highest possible rating.
    There are four vacancies, I would remind the committee, on 
the D.C. Court of Appeals. There are certain courts and 
circuits that are very important. The D.C. Court of Appeals, 
though, is one that handles and is the primary forum for 
determining the legality of Federal regulations that control 
vast aspects of American life. There are four vacancies on that 
court. The Chief Justice last year was talking about out of the 
12 slots, four vacancies was certainly harming their ability to 
expeditiously handle appeals. And so it is very important that 
you move as promptly as possible.
    I would say, Mr. Chairman and members of the Judiciary 
Committee, in addition to all the sterling legal 
qualifications, education, and other matters, judicial 
philosophy, which are important for all judges, there is 
another aspect of Miguel Estrada that matters a lot to many 
people in this country, and those are Hispanic Americans, 
whether they are from Cuba or Puerto Rico or Mexico, Central 
America or South America. And he is a role model. This is a 
prestigious, important position. And in his life story, many 
people can get inspiration. I am inspired and I think all 
members of this committee will be inspired, as are many 
    And so I know that you will closely examine him, ask him 
questions as appropriate, and I hope, though, that when you are 
through with that that we all have an opportunity obviously to 
vote on the Senate floor on this outstanding candidate. And I 
will say on behalf of my Latino constituents in Virginia to 
this august committee, ``Adelante con Miguel Estrada.''
    Thank you very much.
    Senator Schumer. Thank you very much, Senator Allen.
    Now we will go to Senator Warner.


    Senator Warner. Mr. Chairman, I will put my statement in 
the record, but I would like to just share a few words with 
this committee.
    I visited yesterday briefly on another matter with Chairman 
Leahy. We enjoy a very warm and cordial friendship in the 
United States Senate. Senator Leahy jokingly says that Virginia 
is his second State because he has had his home there for many 
years. But I said to him, as I look over this nomination--and 
interviewed with Senator Allen this nominee very carefully--I 
said this is an extraordinary example of achievement on the 
American scene. And certainly everything that my colleague and 
I and others have seen indicates that he is eminently 
qualified, extraordinarily well qualified. And in my 24 years 
here in the Senate, Senator Hatch and I have shared this 
conversation many times. We understand judicial nominations and 
the politics that rock it back and forth from time to time. But 
I say that the public is sometimes confused about the cases, 
but this case is so absolutely clear on its face.
    Now, it will become a test case, a litmus test of the 
fairness of the process. So if the committee will accept me 
with humility, having been here many years and having watched 
many nominations, I would just like to make that observation. 
And I am confident this committee under the chairmanship of 
Senator Leahy, yourself, and my long-time friend Senator Hatch 
and other colleagues, that this will be an exemplary 
performance by this committee as it goes through this 
nomination by the President of the United States.
    I started my modestly legal career as a law clerk to Judge 
E. Barrett Prettyman, a Federal judge on the D.C. Circuit, and 
then had the opportunity one night to slip in a little bill to 
name the courthouse after him. So I feel very strongly about 
the D.C. circuit court and take a special interest in the 
nominees for this court. I thank the Committee for allowing me 
to share these few words with them here this morning.
    Senator Schumer. Well, thank you, Senator Warner. And as 
you know, I have enormous respect for you, as does every other 
member of this committee, and we thank you for your words.
    Senator Warner. I thank the Chair.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Senator Schumer. We are going to proceed in the seniority 
order of those from the home State nominees, so we will next go 
to Senator Grassley, who is here as a member of this committee.
    Senator Nickles. Mr. Chairman?
    Senator Schumer. The Senator from Oklahoma?
    Senator Nickles. You are not going to call on us to make a 
very brief comment?
    Senator Schumer. I would be happy to, but we are going to 
stick to the order you came here as non-home State nominees, 
and you are here, and we will give you the courtesy, but I want 
to call the home State nominees first.
    Senator Nickles. I would just ask consent if you would put 
my statement in the record.
    Senator Schumer. Sure. Without objection, Senator Nickles' 
statement will be read into the record.
    Senator Schumer. Do you want to do the same, Senator 
    Senator Domenici. Yes, I ask to do the same.
    Senator Schumer. Thank you very much.
    Senator Grassley?


    Senator Grassley. I have the pleasure of introducing a 
distinguished Iowan nominated by the President to be a district 
judge for the Northern District of Iowa. Judge Reade is an 
extremely well-qualified candidate for the Federal bench, and I 
am proud to be here to support her nomination and introduce her 
to all of my colleagues on this committee. Judge Reade has the 
full support of both her Senators from Iowa.
    Today, Judge Reade's sister, Renee Gibson, and her husband, 
Robin, as well as Judge Reade's niece, Anne Gibson, are here to 
lend their support. They are rightly very proud of Judge 
Reade's many and significant legal accomplishments.
    Judge Reade initially studied to be a biologist while she 
was working at Drake University. Upon graduation, she became an 
administrator at Drake University. During that time, she earned 
a master's degree in higher education administration from Iowa 
State University and soon joined the Drake Law School as 
assistant to the dean. That experience led Judge Reade to study 
law. She started in the evening program, at Drake Law School, 
and eventually earned her juris doctor degree with honors.
    At law school, Judge Reade was a managing editor of the Law 
Review. She also was awarded Order of the Coif and named 
Outstanding Drake Law School Graduate by the Iowa Bar.
    After law school, Judge Reade practiced private civil law 
with the law firm of Rosenberg and Margulies in Des Moines 
where she was first an associate, then a partner. Her clients 
included small businesses, major corporations, private 
individuals, and her practice ranged from tax matters to 
contract cases to criminal defense work. During her work as a 
private attorney, Judge Reade found time to stay involved in 
her community, serving on the board of the Iowa State Bar 
Review School and the Des Moines League of Women Voters.
    In 1986, she joined the U.S. Department of Justice, 
Assistant U.S. Attorney. Her first year was spent litigating 
bankruptcy cases, but eventually she became a criminal 
prosecutor. In just a few years, Judge Reade became a chief of 
that office's Criminal Division. As Assistant U.S. Attorney, 
Judge Reade prosecuted numerous cases, a majority before a 
    So Judge Reade's career as a lawyer involved all types of 
law and gave her a rich experience of the legal system. In 
1993, Governor Terry Branstad appointed Judge Reade to the 
district court bench in Polk County. Since then, she has 
presided over hundreds of criminal and civil cases and rarely 
has been reversed on appeal. Judge Reade has presided over her 
courtroom with dignity and fairness and has brought honor to 
the bench. Moreover, she is highly respected by peers.
    Notwithstanding her judicial duties, Judge Reade has 
remained very committed to her community. She routinely teaches 
and speaks at local and State bar association meetings and has 
served on various bar boards of directors. She teaches trial 
advocacy at law school. Judge Reade makes a point of giving 
back to her legal community.
    There can be little question of Judge Keade's 
qualifications because she is highly qualified for this post. 
The ABA unanimously has rated her ``well qualified.'' She has a 
strong legal record, remarkable public service. She is 
supported by her community and her peers. She has the 
intelligence, experience, judicial temperament, and commitment 
to the law that make her a tremendous addition to the Federal 
bench in my State.
    So it is with great respect and admiration that I recommend 
Judge Linda Ray Reade to the Judiciary Committee and hope for 
favorable consideration.
    Senator Schumer. Thank you very much, Senator Grassley.
    Now we will proceed to Senator Harkin for the same nominee.


    Senator Harkin. Thank you very much, Mr. Chairman, for 
holding this hearing, and I am pleased to be here with my Iowa 
colleague to introduce and give my support to Linda Reade, who 
has been nominated to the U.S. District Court for the Northern 
District of Iowa. I needn't go through her lengthy resume, as 
Senator Grassley has just done. She obviously has a long 
history in the law, but the fact that she is a Cyclone graduate 
is enough for me.
    She has a strong judicial background, as Senator Grassley 
said, serving as a Polk County district court judge since 1993. 
I just repeat this for emphasis' sake. She helped establish the 
first adult drug court in the State, and that is very 
meaningful. They are doing great work. She was an Assistant 
U.S. Attorney from 1986 to 1993, before that in private 
practice for 6 years; and as Senator Grassley said, she still 
teaches trial advocacy at the Drake Law School.
    So, again, I just wanted to be here to lend my support. She 
is eminently well qualified, well respected, both in the legal 
community and outside the legal community. And, again, I want 
to thank you for holding this hearing on her nomination and 
urge that this committee move rapidly to confirm her and get 
her to the Senate floor so that she can ascend to the bench as 
soon as possible.
    Thank you very much.
    Senator Schumer. Thank you very much, Senator Harkin.
    As I said, we are proceeding in seniority order of home 
State nominees first, so we are next up to Senator Gramm.


    Senator Gramm. Well, Mr. Chairman, thank you. I know you 
all are busy, and I will be brief.
    Ed Kinkeade is a judge in my State, has been a judge for 
over 20 years. He is a graduate of Baylor, went to law school 
there, got his master's in law at the University of Virginia. 
He has been involved in every facet of the judiciary in my 
State, a leader in many efforts. He is a trustee of the Baylor 
Health Care System, which is one of the great medical systems 
in the world.
    He is committed to his community. He is well known, he is 
well respected, and I want to urge this committee to approve 
his nomination and send it to the floor for confirmation.
    Senator Schumer. Thank you, Senator Gramm.
    Now we will go to Senator Hutchison. Senator Conrad had 
hoped to be here for his nominee. He can't and his statement 
will be read into the record, as will any statements in support 
of the nominees.
    Senator Hutchison, you may proceed.


    Senator Hutchison. Thank you very much, Senator. I really 
appreciate this opportunity. Senator Gramm has talked about 
some of Judge Kinkeade's qualifications. I just want to say 
that he has a long background in being a judge. He started as a 
county criminal court judge in 1981. He then became a district 
judge, and in 1988, he was appointed to the Fifth District 
Court of Appeals in Dallas. So he has been on the bench for a 
long time. He has a record and that is why he has been 
nominated, because his record is good.
    In addition, I would just add that he has really been a 
participant in the community, which I think says a lot when 
someone is sitting on the bench and also volunteers in so many 
activities. He has been on the board of trustees of the 
Volunteer Center of Dallas County, the Downtown Dallas YMCA, 
the Baylor Health Care System, which Senator Gramm mentioned, 
and the Dallas Mayor's Blue Ribbon Task Force on Alcoholism.
    While he was president of the Volunteer Center of Dallas 
County, he helped to introduce a high-tech system to assist 
local non-profit agencies in quickly detecting abusers of 
children and the elderly. It has been a very effective system 
in Dallas County, and we so appreciate that he would go to 
great lengths to try to help people who are abusing our 
children and elderly.
    He also has been an adjunct law professor while sitting on 
the bench, teaching at Texas Wesleyan University's School of 
    So I think you can see that he is a high-energy person, a 
person who is committed to his community, who has a record on 
the bench, and it is a very good record, and I highly recommend 
him for confirmation.
    Thank you, Senator.
    Senator Schumer. Thank you, Senator Hutchison. We 
appreciate your being here.
    Now we will hear from Senator Corzine for his nominee.


    Senator Corzine. Thank you, Mr. Chairman and members of the 
committee, Ranking Member Hatch. It is my pleasure to be here 
today to introduce Stanley Chesler and Freda Wolfson, nominees 
for the U.S. District Court for the District of New Jersey.
    Senator Torricelli, who unfortunately couldn't be here 
today, joins me in offering strong support for both of their 
nominations, and I ask unanimous consent that a statement from 
Senator Torricelli be submitted for the record.
    [The prepared statement of Senator Torricelli appears as a 
submission for the record.]
    Senator Corzine. Mr. Chairman, let me begin by saying that 
I am very proud to speak about these two nominees who currently 
serve as magistrate judges in New Jersey. They are 
distinguished jurists and truly represent the best that New 
Jersey's legal community has to offer.
    Stanley Chesler brings a variety of experiences that will 
inform his service on the bench. The last 15 years he served as 
a magistrate judge in Newark where he is well known for his 
legal acumen, particularly his fairness and his judicial 
    Before that, he had a distinguished and varied career in 
criminal law, began as an assistant district attorney in the 
Bronx--and the senior Senator from New York probably knows 
where that is--and then joined the Justice Department's New 
Jersey Organized Crime Strike Force, eventually rising to 
become the deputy chief. Finally, before being appointed 
magistrate, he served as an Assistant U.S. Attorney in Newark.
    Judge Chesler's contributions have not been limited to the 
courtroom. When I interviewed him earlier this year, I was 
truly impressed to learn that while he attended law school at 
night, he taught in Brooklyn elementary schools for 5 years. 
And he still graduated number one in his class at St. John's.
    Freda Wolfson is another respected magistrate, sitting in 
Trenton. She is a lifelong resident of New Jersey. She was born 
in Vineland and has a distinguished legal career that has 
prepared her well to serve as district judge. After attending 
Rutgers--which, for Senator Torricelli, is all that needs to be 
on one's qualifications--for both her undergraduate and law 
degree, she worked for 6 years at two law firms, handling 
primarily commercial litigation. Then at the ripe old age of 
31, she was appointed a United States Magistrate. Such early 
recognition of her ability was truly a testament to her 
tremendous legal talents.
    Judge Wolfson was subsequently reappointed and has 
distinguished herself also as a fair and hard-working judge who 
is known for her superior legal ability, good judgment, and 
well-reasoned opinions.
    I also want to note that Judge Wolfson is a first-
generation American, born to two Holocaust survivors from 
Poland, a fact which I know has contributed to her strong sense 
of fairness, character, and appreciation of the American way of 
    Mr. Chairman, I want to note for the record that I am 
particularly pleased that Judges Chesler and Wolfson are part 
of an extremely distinguished group of nominees for the U.S. 
District Court in New Jersey. As I mentioned last week when the 
committee heard the testimony on the nomination of William 
Martini, New Jersey currently has an unprecedented five 
openings in the court. Senator Torricelli and I have worked 
cooperatively--and I stress that--with the White House to 
arrive at a group of five nominees, two more who will be coming 
before the committee shortly, who are distinguished in their 
own right. Together they represent the best of New Jersey's 
legal community, a cross-section of tremendous diversity of 
experiences and background that truly reflects our great State.
    Mr. Chairman, I am pleased that after today the committee 
will have heard from three of these distinguished nominees, and 
I hope that we will have the opportunity to present the other 
two very shortly. I am confident you will be impressed with 
them as well.
    The families of Mr. Chesler and Ms. Wolfson are with us 
today. They are terrific nominees, extremely able and respected 
lawyers, and I am pleased to support their nominations.
    Thank you for your consideration.
    Senator Schumer. Thank you, Senator Corzine.
    Now we will go to Senator Dorgan. As I had mentioned, 
Senator Conrad had hoped to be here but was pulled away, and 
his statement is in the record. Now we will proceed with 
Senator Dorgan.


    Senator Dorgan. Mr. Chairman, thank you very much, and 
members of the committee. Let me, on behalf of Senator Conrad 
and myself, say that while there may be some controversy about 
Federal judgeships that we read about and hear about from time 
to time, there is none with respect to this judgeship. We have 
worked with the White House, and the nomination they have sent 
to the Congress is one that Senator Conrad and I wholeheartedly 
support. We think the nomination of Daniel Hovland of Bismarck, 
North Dakota, is an excellent nomination. He has the skills, 
the quality, the temperament to be an outstanding Federal 
    He is here today with his wife, Kristen. They have three 
children who are not here but they are home in North Dakota: 
Brandon, Mark, and Lexi.
    I want to just say a word about Daniel Hovland, and without 
going into great detail, I know that my colleague Senator 
Corzine talked about how high someone ranked in their high 
school class. In our region of the country, it is easy to do 
that because the classes are so small that we rank very high. I 
was in the top five of mine, but there were only ten.
    Senator Dorgan. I have not queried Dan Hovland where he 
ranked in his class, but I want to tell you that he is one of 
the best and brightest in our State, and the submission of his 
name to assume this judgeship I think is a significant step 
forward for the judiciary. He is a prominent, well-respected 
attorney in Bismarck, North Dakota. He has developed a 
reputation for very thoughtful legal analysis. He has been an 
experienced mediator, handled hundreds of mediations and 
arbitrations. He is an active member of the community. I won't 
go through all of that, but he is one of those people who all 
of us are proud to say have stepped forward to serve their 
    John Adams, in writing to Abigail, asked plaintively in 
some of his letters, ``Where will the leadership come from for 
our country? Who will step forward? '' Where will the 
leadership come from? And from the hills and valleys and 
mountains and prairies, talented and good men and women step 
forward to become leaders. In this case in the judiciary, Dan 
Hovland stepped forward, and he is someone I am proud to say 
will serve this country very, very well.
    Let me put the rest of my introduction in the record--I 
spoke to the committee chairman just moments ago on the Senate 
floor, Senator Leahy. Because this judgeship has been open for 
some while I hope very much that we can move a nomination of 
this type relatively quickly. He is non-controversial, someone 
that we are all going to be proud of, someone that we worked 
with the White House to get up nominated. And when we fill this 
judgeship with Daniel Hovland, I think we will have made a 
significant step forward for our country and for our country's 
    Mr. Chairman, thank you for allowing me to be here to 
speak, and, again, I speak on behalf of myself and my colleague 
Senator Conrad, who echoes my thoughts about Daniel Hovland.,
    Senator Schumer. Thank you, Senator Dorgan.
    I guess with that we are finished with the members 
testifying, and so, with that, let me invite Mr. Estrada, Mr. 
Miguel Estrada forward.
    I would like to tell the district court nominees that we 
won't get to them until this afternoon. So they are welcome to 
stay, but if you wish to leave and come back at 2:15, you will 
not miss your place. I know you have all waited long and hard 
to get here, and so don't worry if you want to spend some time 
in Washington with your family and be back at 2:15. That is 
just fine.
    Chairman Leahy. And, Mr. Chairman, if I might, I have a 
statement to place in the record.
    Senator Schumer. Without objection, it will be placed.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]

                       STATE OF NEW YORK

    Senator Schumer. Okay. First, you may sit down, Mr. 
Estrada. We will swear you in after Senator Hatch and I do our 
opening statements. Thank you for being here.
    Today we take up the nomination of Miguel Estrada to the 
D.C. Circuit. It is no understatement to say that this is the 
single most important confirmation hearing this committee has 
conducted or will conduct this year, and there have been many 
hearings. The D.C. Circuit is often called ``the Nation's 
second highest court'' and with good reason. More judges have 
been nominated and confirmed to the Supreme Court from the D.C. 
Circuit than from any other court in the land.
    The D.C. circuit is where Presidents look when they need 
someone to step in and fill an important hole in the lineup. It 
is sort of like a bullpen court--having given us three of our 
current Supreme Court Justices, Justices Scalia, Thomas, and 
Ginsburg; not to mention others like Robert Bork, Ken Starr, 
and Abner Mikva.
    The court to which Mr. Estrada has been nominated doesn't 
just take cases brought by the residents of Washington, D.C. It 
handles the vast majority of challenges to actions taken by 
Federal agencies. Congress has given plaintiffs the power to 
choose the D.C. Circuit, and, in fact, in some cases we force 
them to go to the D.C. circuit, because we have decided for 
better or for worse--I think better--that when it comes to 
these administrative decisions, one court should decide what 
the law is for the whole Nation.
    The judges on the D.C. Circuit review the decisions by the 
agencies that write and enforce the rules that determine how 
much ``reform'' there will be in campaign finance reform. They 
determine how clean water has to be for it to be safe for our 
families to drink. They establish the rights workers have when 
they are negotiating with corporate powers. The D.C. Circuit 
opinions frequently cover dense and inaccessible material, but 
certainly not always. And the decisions coming from that court 
go to the heart of what makes our Government tick.
    The D.C. Circuit is important because its decisions 
determine how these Federal agencies go about doing their jobs. 
And in doing so, it directly impacts the daily lives of all 
Americans more than any other court in the country, with the 
exception of the Supreme Court. If anyone thinks this court's 
docket isn't chock-full of cases with national ramifications, 
they should check the record. Let me give you some examples.
    When it comes to communications, the court plays a big 
role. It has exclusive jurisdiction over appeals from FCC 
decisions. That is a pretty big chunk of law with massive 
impact on American consumers.
    Just a few years ago, the circuit upheld the 
constitutionality of the Telecommunications Act of 1996, 
guaranteeing more competition in the local and long-distance 
markets, which in turn guaranteed better and cheaper phone 
service for all of us.
    When it comes to privacy, this court plays a big role. 
earlier this year, the court was called upon to assess the 
FTC's power to protect consumer privacy when it comes to the 
private personal information credit reporting agencies may make 
public. When it comes to the environment, the court plays a big 
    When Congress passed the Clean Air Act in 1970, we gave the 
EPA the authority to set clean air standards--the power to 
determine how much smog and pollution is too much. In 1997, 
having reviewed literally thousands of studies, it toughened 
standards for smog and soot. The EPA's actions were going to 
improve air quality but cost businesses money. Industry groups 
appealed the EPA's decision, and a majority Republican panel on 
the D.C. Circuit reversed the EPA's ruling. In doing so, the 
court relied on an arcane and long-dead concept known as the 
``non-delegation doctrine.'' It was a striking moment of 
judicial activism that was pro-business, anti-environment, and, 
in the opinion of many, highly political. While that decision 
ultimately was reversed by a unanimous Supreme Court, most 
other significant decisions of the D.C. Circuit have been 
allowed to stand without review.
    With the Supreme Court taking fewer and fewer cases each 
year, the judges on the D.C. Circuit have the last word on so 
many important issues that affect Americans' lives. And perhaps 
more than any other court, the D.C. Circuit votes break down on 
ideological lines with amazing frequency. Several recent 
studies have proven the point.
    Let me give you one example. Professor Cass Sunstein from 
Chicago, a professor who is respected by members of both 
sides--he recently advocated the judgeship nomination of Mr. 
McConnell--has put together some pretty striking numbers that 
he will be publishing soon, but he has allowed us to give 
everyone a sneak peek at today. When you look, say, at the 
environmental cases where industry is challenging pro-
environmental rulings, you get some pretty clear results. When 
they are all-Republican panels, industry is approved 80 percent 
of the time; when they are all-Democratic panels, 20 percent of 
the time; and it is in between when there are two to one on 
either side. If every judge were simply reading the law, 
following the law, you would not get this kind of disparity. 
But we know--it is obvious; we don't like to admit it, but it 
is true--that ideology plays a role in this court.
    Throughout the 1990s, conservative judges had a strong 
majority on this court, and in case after case during the 
recent Republican domination of the circuit, simply because 
there were many years of Republican Presidencies, the D.C. 
Circuit has second-guessed the judgment of Federal agencies and 
struck down fuel economy standards, wetlands protection, and 
pro-worker rulings by the NLRB. The D.C. Circuit became the 
court of first resort for corporations that wanted to get 
relief from Government actions they objected to.
    Now, for the first time in a long time, there is balance on 
the D.C. Circuit: four Republican judges, four Democrats. That 
doesn't mean each case is always decided right down the middle, 
but there is balance. Some of us believe that this all-
important court should be kept in balance--not move too far 
left, not move too far right. Judicial nominees, we know, have 
world views they bring with them to the bench. They come to 
these positions of power with predilections, with leanings, 
with biases. Those biases influence the way they look at the 
law and at the facts of the cases coming before them. It is 
natural. And I am not saying there is anything nefarious or 
even wrong about this. It is just the way we all know how 
things are.
    I wrote an op-ed piece in the New York Times a year ago 
suggesting we do away with ``gotcha'' politics and game-playing 
on this issue and that we be honest about our concerns. I 
published a report last week showing that the vast majority of 
the time that Democrats vote against the judicial nominee, it 
is a Republican nominee. And the vast majority of the time 
Republicans vote against a judicial nominee, it is a Democratic 
    Big shock, huh? But it is proof positive that ideology 
matters. If it didn't, if all we were looking at is legal 
excellence and judicial temperament, the votes against the 
nominees would be spread all over the place. Democrats would 
vote against an equal number of Democratic and Republican 
nominees, and the same with Republicans. That is not what 
happens, and we know that. Now, I have taken a lot of flack for 
saying this over and over again, but I think we have already 
proven the point.
    Every single Senator on this side of the aisle has voted 
for conservative nominees. A lot of our friends are begging us 
to slow down. We are not going to slow down. Senator Leahy has 
done an admirable job of bringing nominees to the bench, as 
today's hearing shows. But we are also not going to speed 
things up and not give fair review to everybody, important 
review, important not just to the nominee, although that is 
important, but to the American people. We are going to take the 
time we need to review the records of all the nominees the 
President sends up here.
    Conservative but non-ideological nominees, like Reena Raggi 
who last week was unanimously confirmed to the Second Circuit 
in near record time, will go through this committee with the 
greatest of ease. But those for whom red flags are raised will 
wait until we have done our due diligence. We owe the country, 
we own the Constitution nothing less.
    Ideology is not the only factor in determining how we vote, 
or most of us would have voted against just about every one of 
the judges who came forward. But for most of us, whether we 
want to admit it or not, it is a factor, and that is how it 
should be. And anyone who thinks it is okay for the President 
to consider ideology but not okay for the Senate is using 
    The White House is saying that they want to nominate 
conservatives in the mold of Scalia and Thomas. The President 
has said that. It is hard to believe that at least some of 
their nominees don't have a pretty strong agenda. Ideology is 
obviously being considered by the White House. When the White 
House starts nominating equal numbers of liberals and 
conservatives, equal numbers of Republicans and Democrats, that 
is when the Senate should ignore nominees' ideologies.
    We had a hearing on Tuesday where Fred Fielding--a 
brilliant lawyer who served President Reagan well as counsel--
testified. In his written testimony, he said that the 
administration never considered ideology when deciding who to 
nominate to the bench. So I asked him if he could name five 
liberals that President Reagan nominated. After all, if he 
wasn't considering ideology, just temperament and legal 
excellence, you would get balance. His response was, ``I 
certainly hope not. I hope we didn't nominate a single liberal 
nominee.'' I asked him to name one. He couldn't.
    Of course that is true. I appreciate his candor. It proves 
that ideology plays a role when the President selects judges. I 
am befuddled by those who say the Senate shouldn't consider 
ideology when the President obviously does. It just doesn't 
make sense. So let's stop hurling invective and just be 
straight with each other.
    Since we know that this is such an important court and 
since we know that ideology matters, whether we admit it or 
not, it is essential that this committee conduct a thorough and 
exhaustive examination of judicial nominees. Again, we would be 
derelict in our duty to the Constitution and our constituents 
if we did anything less.
    We should demand that we hear more from nominees than the 
usual promises to follow the law as written. It is not enough 
to say, ``I will follow the law, Senator,'' and expect us to 
just accept that. We need to be convinced that the nominees 
aren't far out of the mainstream. We need to be convinced that 
nominees will help maintain balance--not imbalance--on the 
    A decade ago, our present President's father sent the 
Senate the nomination of Clarence Thomas. I wasn't in the 
Senate then, but I watched those hearings, and I have talked to 
a lot of my current colleagues who were here at that time. 
Clarence Thomas came before this distinguished committee and 
basically said he had no views on many important constitutional 
issues of the day. He said that he had never even discussed Roe 
v. Wade when he was in law school or since. But the minute 
Justice Thomas got to the Court, he was doctrinaire. Whether 
you agreed with him or not, he obviously had deeply held views 
that he shielded from the committee.
    It wasn't a confirmation conversion. It was a confirmation 
subversion. And there is still a lot of simmering blood up here 
about that. We should do everything we can to prevent that from 
happening again.
    We had a very good hearing last week on a very conservative 
nominee. Professor Michael McConnell has been nominated to the 
Tenth Circuit. He came before this committee and openly 
discussed his views--some of which I very much disagree with. 
But I will say this: He was candid with us about his beliefs, 
he engaged in honest discussion with us about his viewpoints, 
and he showed himself to be more of an iconoclast than an 
ideologue. I haven't made up my mind as to how I will vote on 
Professor McConnell, but by answering our questions, he put 
himself in a much better position, in my book.
    The nominee before us today stands in contrast to Professor 
McConnell and to most other circuit court nominees for whom we 
have held hearings these past 14 months. Not his fault, but we 
know very little about who he is and what he thinks and how he 
arrives at his positions. There have been red flags raised by 
some who know him, but we don't know so far whether there is 
merit to those red flags or not. There is some support for him 
in the community and some opposition. We need to understand 
    As you know, a former supervisor of yours, Mr. Estrada, in 
the Office of Solicitor General has stated you were too much of 
an ideologue and do not have the temperament to merit 
confirmation. And you will be given the full opportunity to 
address those arguments.
    Now, this committee has asked for the memos you wrote while 
you served in the Solicitor General's office. Everyone I have 
spoken with believes such memoranda will be useful in assessing 
how you approach the law. The role of the SG's office is to 
determine what positions the United States should take on 
important constitutional questions. The attorneys in that 
office engage in quintessentially judge-like behavior. So the 
memoranda will be illuminating.
    There is ample historical precedent for the production of 
such memos. DOJ has routinely turned them over during the 
confirmation process. It was done for judicial nominees Bork, 
Rehnquist, and Easterbrook. They have been turned over for 
executive branch nominees Benjamin Civiletti and Bradford 
    And earlier this year, this White House--a White House more 
protective of executive privilege than any White House since 
the Nixon administration, I might note--turned over memoranda 
written by Jeffrey Holmstead, a nominee to a high post at the 
EPA. Mr. Holmstead's memoranda were from his years of service 
in the White House counsel's office, a more political and 
legally privileged post than the one you held when you were in 
the Department of Justice in the office charged with protecting 
and defending the Constitution.
    I, for one, would think you would want the memoranda to be 
released so you could more ably defend your record. I know you 
haven't been blocking their release, but today you will have a 
chance to urge DOJ to make the record more complete by 
releasing the documents. I hope you will do so because from 
what I know thus far, I would have to say that I would be 
reluctant to support moving your nomination until we see those 
    There is a lot we do not know about Miguel Estrada. 
Hopefully, we will take some meaningful steps today towards 
filling in the gaps in the record. Mr. Estrada, you are going 
to have a chance today to answer many of the questions 
regarding your views.
    Some believe that once the President nominates a candidate, 
the burden falls on the Senate to prove why he shouldn't be 
confirmed. I believe the burden is on the nominee, especially 
when it comes to a lifetime seat on the Nation's second-highest 
court to prove why he should be nominated or she should be 
nominated. Just as the nominees to the Supreme Court are 
subject to higher scrutiny, nominees to this unique and 
powerful circuit merit close and careful review. Our job is not 
just to rubber-stamp. Our job is to advise and to decide 
whether to consent.
    Today's testimony will help us decide how to exercise our 
constitutional powers in this process, and we all look very 
much forward to hearing your testimony today.
    Thank you.
    Senator Hatch?

                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. I have to say that 
your remarks are some of the most creative and remarkable bits 
of analysis of the constitutional rules that I have ever heard. 
By your analysis, it means that President Clinton, every time 
he appointed--when he appointed Justice Ginsburg, he should 
have then appointed somebody in the nature of Justice Scalia, 
or at least more conservative, in order to have balance. I 
suspect the Second Circuit Court of Appeals should have every 
judge for the next 4 or 5 years be a conservative to make up 
for the liberal balance on the court. Or on the Ninth Circuit 
Court of Appeals where 23 judges, I think 17 of them have been 
appointed by Democrats, and almost all, to a person, very 
liberal. I think 13 of those or 14 of those were appointed by 
none other than President Clinton and confirmed by this 
    All I can say is that the balance is in the eye of the 
beholder. That is why we have Presidents. That is why 
occasionally there are Democrat Presidents who naturally are 
going to appoint more liberal nominees to the various courts in 
this country, and that is why we have Republican Presidents who 
I think by nature will appoint more moderate to conservative 
people to the courts, not necessarily all Republicans or not 
necessarily in the case of the Democrat Presidents all 
Democrats--but, by and large, mostly. That is just the nature 
of our process.
    The key here is: Is the person competent? Is the person 
worthy? Is the person a person who understands the role of 
judging is not make the laws but to interpret the laws?
    It seems to me balance is in the eye of the beholder. That 
is why the constitutional system provides for a President to 
make these nominations. Unless we have a very good reason for 
rejecting a nominee, that nominee ought to be approved. And 
over the last 20-plus years, I have only rejected one. And to 
be honest with you, I don't feel good about that one, but I had 
to because the two home State Senators were opposed to the 
person, and we have always more--I think all of us have 
followed that rule.
    Now, there is no question that every Senator around here 
can consider ideology if they want to. But if we want to be 
fair to the President, to the process, if we want to be fair to 
the nominees, then we should consider their qualifications. And 
the fact that a person might be liberal is no good reason for 
rejecting that nominee. Or the fact that a person may be 
conservative is no good reason for rejecting that nominee, just 
because we ourselves have our own biases and prejudices.
    I would like to get rid of the biases and prejudices and 
realize that the process here is trying to get the best judges 
we can, and, by and large, conservative and liberal judges work 
well together.
    In that regard, what is important to know about the D.C. 
Circuit that has been brought up here--and it is a very 
important circuit. I think it is the most important circuit in 
the country. And I think the distinguished Senator did a very 
good description of that circuit. But what is important to know 
about the D.C. Circuit is that very often the judges agree on 
hard and politically charged questions.
    For example, recent cases unanimously decided by panels 
consisting of both Democratic and Republican appointed judges 
include the widely followed, closely watched Microsoft case, 
the contentious case of Mary Francis Berry on the Civil Rights 
Commission, and the Freedom of Access to Abortion Clinics Act 
which the court unanimously upheld. The court's agreement on 
these important cases demonstrates that ideology, in fact, 
really doesn't matter.
    As a matter of fact, I felt that the distinguished 
Senator--and I have a lot of respect for him as a friend and as 
a Senator, but I think his analysis was very creative in almost 
every way.
    I would have to say I was amused by Senator Schumer's 
report. We took a closer look. We find those studies that he 
quoted to be based on a very small sample of cases, mostly 
environmental cases. Also, only certain time periods were used, 
and others were excluded.
    Now, we all know how to play the numbers game, but the real 
fact of the matter is, in all cases counted over a 3-year 
period, 97 percent of them were decided unanimously by 
Democrats and Republicans joining together on the committee.
    So, again, it is nice to talk about ideology. The real 
issue here is Miguel Estrada. Is he competent to serve on this 
court? Does he have the qualifications? Well, the American Bar 
Association certainly thinks so unanimously, gave him the 
highest rating that they could possibly give.
    Let me first of all say that I am grateful for you chairing 
this hearing, Mr. Chairman, for Miguel Angel Estrada who is 
nominated for the D.C. Circuit Court of Appeals.
    There are many people who have been waiting for this event 
and many more people who are watching today for the first time 
as we display our American institutions and the value we give 
to the independence of our judiciary. The fact that this 
hearing comes near the beginning of Hispanic Heritage Month is 
surely not lost on all my colleagues on this committee. I am 
hopeful that this committee will join me in seeking that the 
confirmation of the highly qualified lawyer before us today 
will occur before Hispanic Heritage Month is over.
    As a very special matter, I would like to welcome to this 
hearing the Honorable Mario Conahuati, the Ambassador of 
Honduras to the United States, who is with us today. I believe 
he is right back there. Mr. Ambassador, please stand up. We are 
delighted to have you here.
    Senator Hatch. We are delighted to have you here and 
honored to have you with us.
    I would also like to welcome leaders of the many Hispanic 
communities and organizations in the United States who are here 
to express support for this nomination as well as the Senators 
from Virginia, the members of the Republican Senate leadership, 
and my good friend Senator Domenici of New Mexico, who I think 
has worked tirelessly on behalf of Hispanics and the Hispanic 
    Mr. Chairman, I would like to make a general comment on the 
context of judicial confirmations in which this hearing is 
being held. For over a year, we have had a very troubling 
debate over issues that we thought our Founding Fathers had 
settled long ago with our Constitution. I am heartened to read 
the scores of editorials all around this country that have 
addressed the notion of injecting ideology into the judicial 
confirmation process, because this notion has been near 
universally rejected--except, of course, for a handful of 
professors and well-paid lobbyists, some of whom are in the 
back of the room, and a few diehards.
    I have already made some comments regarding my views on 
efforts to inject ideology into this nomination at the hearing 
this committee held 2 days ago, which I thought should have 
been labeled ``contra Estrada.'' So in the interest of time, I 
will not go into them now. I will put my expanded remarks in 
the record.
    Senator Schumer. Without objection.
    Senator Hatch. Now, it seems to me that the only way to 
make sense of the advice and consent rule that our 
Constitution's Framers envisions for the Senate is to begin 
with the assumption that the President's constitutional power 
to nominate should be given a fair amount of deference and that 
we should defeat nominees only where problems of character or 
inability to follow the law are evident.
    In other words, the question of ideology in judicial 
confirmations is answered by the American people and the 
Constitution when the President is constitutionally elected. As 
Alexander Hamilton recorded for us, the Senate's task of advice 
and consent is to advise and to query on the judiciousness and 
character of nominees, not to challenge, by our naked power, 
the people's will in electing who shall nominate.
    To do otherwise, it seems to me, is to risk making the 
Federal courts an extension of this political body. This would 
threaten one of the cornerstones of this country's unique 
success--an independent judiciary. And I believe the 
independent judiciary has saved the Constitution through the 
years and this country in many respects.
    We must accept that the balance in the judiciary will 
change over time as Presidents change, but much more slowly. 
For the Senate to do otherwise is to ignore the Constitution's 
electoral process and to usurp the will of the American people. 
To attempt to bring balance to courts in any other way is to 
circumvent the Constitution yet again, without a single vote of 
support being cast by the American people.
    Now, these are not just my views. This is our Anglo-
American judicial tradition. It is reflected in everything that 
marks a good judge, not the least of which is Canon 5 of the 
Code of Judicial Conduct of the American Bar Association that 
expressly forbids nominees to judicial duty from making 
``pledges or promises of conduct in office [or] statements that 
commit or appear to commit the nominee with respect to cases, 
controversies, or issues that are likely to come before the 
courts.'' I should expect that no Senator on this committee 
would invite a nominee to breach this code of ethics, and it 
worries me that we come so close from time to time.
    Now, I am glad to welcome today Miguel Estrada. I would 
like to speak a little on why Miguel Estrada is here before us 
today, beyond the obvious fact that the President nominated 
him. Miguel Estrada is here today because he deserves to be 
here under any standard that any disinterested person could 
    We have all read about his impressive credentials. Mr. 
Estrada graduated from Columbia University magna cum laude and 
as a Phi Beta Kappa. He went on to Harvard Law School where he 
graduated again magna cum laude and after serving as editor of 
the Harvard Law Review. He went on to clerk for the Second 
Circuit Court of Appeals in New York, and then he was chosen to 
clerk for Associate Justice of the United Supreme Court Anthony 
    Mr. Estrada later served as Assistant U.S. Attorney and 
Deputy Chief of the Appellate Section in the U.S. Attorney's 
Office for the Southern District of New York. Then between 1992 
until 1997, Mr. Estrada returned to Washington to work for the 
Clinton administration as Assistant to the Solicitor general in 
the Department of Justice.
    Now, with regard to that, it is highly unusual, even though 
there may be some precedent in the past, but highly unusual to 
ask attorneys for opinions that they gave and writings that 
they made while in the Solicitor's office. That would put a 
chill across honest thinking, it seems to me, like never 
before. And keep in mind he served the administrations he 
served, and I presume that many of the briefs that were 
written, the opinions that were given, were consistent with the 
administration that he served.
    Mr. Estrada has argued 15 cases before the United States 
Supreme Court and is today one of America's leading appellate 
advocates. And he has won most of them.
    It is evident that Miguel Estrada is here today for no 
other reason than this: he is qualified for the position for 
which President Bush has nominated him. I know it. And after 
today's hearing, so will the American people know it.
    But notwithstanding all of Mr. Estrada's hard work and 
unanimous rating of highly qualified by the American Bar 
Association, he has been subjected, so far, to the pinata 
confirmation process with which we have become all too familiar 
this year. The extreme left-wing Washington groups go after 
judicial nominees like kids after a pinata. They beat it and 
beat it until they hope something comes out that they can then 
chew and distort.
    In the case of Mr. Estrada, the ritual has been slightly 
different. They have been unable to find anything they can chew 
on and spit out at us, so they now say that we simply do not 
know enough about Mr. Estrada to confirm him. Well, it is not 
that we do not know enough. We know as much about him as we 
have known about any nominee. Their complaint is that we know 
all there is and the usual character destroyers haven't found 
anything to distort.
    But surely we should not expect to hear it suggested today 
that Mr. Estrada does not have enough judicial experience. Only 
three of the 18 Democrat appointed judges on the D.C. Circuit 
Court had any prior judicial experience before their 
nominations. These include Ruth Bader Ginsburg and Abner Mikva. 
Likewise, judicial luminaries such as Louis Brandeis and Byron 
White had no judicial experience before being nominated to the 
Supreme Court. And Thurgood Marshall, the first African 
American on the Supreme Court, had no judicial experience 
before he was nominated to the Second Circuit. You could go on 
and on about that.
    I would like to address another aspect of Mr. Estrada's 
background. I know Miguel Estrada, and I know how proud he is 
in ways that he is unable to express about being the first 
Hispanic nominee to the D.C. Circuit Court of Appeals. So I 
will express it. This is a matter of pride for him for he same 
reason that it is for any of us, not just because Mr. Estrada 
is a symbol for Hispanics in America, but because Miguel 
Estrada's story is the best example of the American dream of 
all immigrants. He and I are proud because we love this great 
country and the future it continues to promise to young 
    In fact, I have never seen any Hispanic nominee whose 
nomination has so resonated with the Latino community. Let me 
just give you an illustration. In this newspaper, the 
Washington Hispanic, there is Miguel on this side between 
Lieutenant Governor Townsend and Secretary of State Colin 
    Miguel was born in Tegucigalpa, Honduras. He was so bright 
at an early age that he was enrolled at a Jesuit school at the 
age of 5. He was raised in a middle-class family. At age 17, he 
came to live with his mother who had immigrated to New York 
knowing very little English. Today he sits before the Senate of 
the United States waiting to be confirmed to one of the 
greatest courts in this land.
    I am embarrassed, therefore, by the new lows that some have 
gone to attack Mr. Estrada. Detractors have suggested that 
because he has been successful and has had the privilege of a 
fine education, he is somehow less than a full-blooded 
    Even more offensive, it seems to me, are the code words 
that some of his detractors use about him--code words which 
perpetuate terrible stereotypes about Latinos--used in effect 
to diminish Miguel Estrada's great accomplishments and the 
respect he has from colleagues of all political persuasions.
    As chairman and founder 13 years ago of the nonpartisan 
Republican Hispanic Task Force--which, despite the name, is 
made up of both Republicans and Democratic members--I have 
tried to achieve greater inclusion of Hispanics in the Federal 
    And I am concerned by the obstacles they face. One new 
obstacle Hispanics face today is this: liberals in this town 
fear that there could be role models for Hispanics that might 
be conservative, that would not kowtow to the liberal line. 
That is despite the fact that the polls show that the great 
majority of Hispanics are conservative, but surely the 
advancement of an entire people cannot be dependent on one 
party being in power.
    This past week, I met with a number of leaders of Hispanic 
organizations from all across this country. I asked them what 
they thought about the subtle prejudices that Mr. Estrada is 
facing and they agree. Perhaps they are more offended even than 
I could ever be.
    The Hispanic experience, in fact, sheds new light on this 
debate that we have been having about ideology in judicial 
confirmations. Many new Hispanic Americans have left countries 
without independent judiciaries. And they are all too familiar 
with countries with political parties that claim cradle-to-
grave rights over their allegiances and futures.
    I have a special affinity for Hispanics and for the 
potential of Latin culture in influencing the future of this 
country. Polls show that Latinos are among the hardest working 
Americans. That is because like many immigrant cultures in this 
country, Hispanics often have two and sometimes three jobs. 
Surveys show they have strong family values and a real 
attachment to their faith traditions, that they value education 
as the vehicle to success for their children.
    In short, they have reinvigorated the American dream, and I 
expect that they will bring new understandings of our 
nationhood that some of us might not fully see with tired eyes.
    I would ask unanimous consent that the balance of my 
remarks be placed in the record.
    Senator Schumer. Without objection.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Senator Hatch. Could I say one more thing?
    Senator Schumer. Please.
    Senator Hatch. I am sorry that I have gone so long, but 
these are important issues, and I feel very deeply about them.
    Senator Schumer. Take as long as you wish, Senator.
    Senator Hatch. My colleague, Mr. Chairman, Senator Schumer, 
specifically mentioned the allegations that Paul Bender has 
recently leveled against Mr. Estrada. Now, I have to say Mr. 
Bender supervised Mr. Estrada at the Clinton Solicitor 
General's office, and I want to caution my Democratic 
colleagues that, before they rely too heavily on Mr. Bender to 
make their case against Mr. Estrada, there are many reasons why 
Mr. Bender's allegations lack credibility.
    First of all, Mr. Bender is an extremist by even the most 
liberal standards as his 30-year history of hostility to 
Federal efforts to regulate pornography illustrates.
    From 1968 to 1970, Mr. Bender served as the chief counsel 
to the President's Commission on Obscenity and Pornography.
    As such, Mr. Bender was the architect of the Commission's 
report, which recommended the abolishment of all Federal, 
State, and local laws interfering with the rights of adults to 
obtain and view any type of pornography, including hard-core 
    The report was so controversial that in 1970, the Senate 
votes 60-5 for a resolution rejecting it, with nine additional 
Senators announcing that if they had been present, they would 
have supported the--I think that was 90. It has got to be more 
than 60-5. They would have supported the resolution. No current 
Member of the Senate supported Mr. Bender's views.
    One Democratic Senator noted during the debate on the 
resolution that ``the Congress might just as well have asked 
the pornographers to write the report, although I doubt that 
even they would have had the temerity and effrontery to make 
the ludicrous recommendations that were made by the 
    Then, in 1977, Mr. Bender testified before this committee 
against tough anti-child pornography laws in a hearing entitled 
``Protection of Children Against Sexual Exploitation.''
    In his testimony, he rejected the notion that Congress 
could prohibit child pornography in order to protect children 
from harm because ``the conclusion that child pornography 
causes child abuse involves too much speculation in view of the 
social situation as we know it, and the fact that it seems that 
most kids who act in these films probably are doing these acts 
aside from the films anyway...''
    Then again, in 1993, Mr. Bender advanced his agenda on 
pornography while serving as Principal Deputy Solicitor 
General, forcing President Clinton and the United States 
Congress, including nine of my ten Democratic colleagues on 
this committee, to publicly reject his views.
    Now, Mr. Bender's opportunity came in the form of the case 
of United States v. Knox.
    Mr. Bender approved a brief in that case that sought to 
overturn the conviction of a repeat child pornographer and 
known pedophile.
    His brief represented a reversal of the first Bush 
administration's policy of liberally interpreting the Child 
Protection Act to define as child pornography any materials 
which showed clothed but suggestively posed young children.
    In response, on November 3, 1993, the United States Senate 
voted 100-0 for a resolution condemning Mr. Bender's position 
in the case. The House passed a similar resolution by a vote of 
    Mr. Bender's brief prompted President Clinton to write 
Attorney General Reno that the Justice Department's new 
interpretation of the Child Protection Act left the child 
pornography law too narrow and emphasized that he wanted ``the 
broadest possible protections against child pornography and 
    Each of my Democratic colleagues on this committee who were 
Members of Congress at the time voted for either the Senate or 
House resolutions rejecting Mr. Bender's views. Yet, they 
inexplicably seemed to put full faith--lock, stock, and 
barrel--or some have--in his opinion of Mr. Estrada.
    In addition to Mr. Bender's extreme views, his public 
statements criticizing Mr. Estrada lack credibility when they 
are compared to his contemporaneous statements praising Mr. 
Estrada's work as the Assistant Solicitor General.
    At the request of the committee, Mr. Estrada provided 
copies of his annual performance evaluations during this tenure 
at the Solicitor General's office.
    The evaluations show that during each year that Mr. Estrada 
worked at the Solicitor General's office, he received the 
highest possible rating of ``outstanding'' in every job 
performance Congress.
    The rating official who prepared and signed the performance 
reviews for 1994 to 1996 was none other than Mr. Bender.
    Let me read a few excerpts from the evaluations that Mr. 
Bender signed. They say that Mr. Estrada, ``states the 
operative facts and applicable law completely and persuasively, 
with record citations, and in conformance with court and office 
rules, and with concern for fairness, clarity, simplicity, and 
conciseness''; ``is extremely knowledgeable of resource 
materials and uses them expertly; acting independently, goes 
directly to point of the matter and gives reliable, accurate, 
responsive information in communicating position to others''; 
``all dealings, oral, and written, with the courts, clients, 
and others are conducted in a diplomatic, cooperative, and 
candid manner''; ``all briefs, motions or memoranda reviewed 
consistently reflect no policies at variance with departmental 
or governmental policies, or fails to discuss and analyze 
relevant authorities''; ``is constantly sought for advice and 
counsel. Inspires co-workers by example.''
    Now, these comments unmask Mr. Bender's more recent 
statements, made after Mr. Estrada's nomination, for whatever 
they are: a politically motivated effort to smear Mr. Estrada 
and hurt his chances for confirmation.
    The performance evaluations also confirm what other Clinton 
administration lawyers and virtually every other lawyer who 
knows Mr. Estrada have said about him: that he is a brilliant 
attorney who will make a fine Federal judge.
    Ron Klain, former chief of staff to Vice President Gore, 
and top Democrat counsel here on this committee, praised Mr. 
Estrada, saying that he would be able to ``faithfully follow 
the law.''
    Former Solicitor General Drew Days opined of Mr. Estrada, 
``I think he is a superb lawyer.''
    Another Clinton-era Solicitor General--and I have great 
respect for all of these men--Seth Waxman called Mr. Estrada an 
``exceptionally well-qualified appellate advocate.'''
    Randolph Moss, former Chief of the Justice Department's 
Office of Legal Counsel, wrote the committee ``to express my 
strong support for the nomination of Miguel Estrada...Although 
I am Democrat and Miguel and I do not see eye-to-eye on every 
issue, I hold Miguel in the highest regard, and I urge the 
committee to give favorable consideration to his nomination.''
    And Robert Litt, Deputy Assistant Attorney General in the 
Clinton Justice Department, said, ``Miguel has an absolutely 
brilliant mind. He is a superb analytical lawyer and he's an 
outstanding oral advocate.''
    Now, with all of this glowing support from former high-
ranking, well-respected Clinton administration lawyers, you 
have to wonder why there has been some of the criticism that 
has been leveled at Mr. Estrada, and you really have to wonder 
why anybody--anybody--would choose to listen instead to the 
incredible criticisms of Mr. Bender, a liberal extremist whose 
out-of-the-mainstream views have been twice condemned by the 
whole United States Senate.
    Thank you, Mr. Chairman. That is all I have to say.
    Senator Schumer. Thank you, Senator Hatch.
    Now we will proceed with the nomination. We are going to 
administer the oath to you, Mr. Estrada. So will you please 
stand to be sworn? Do you swear that the testimony you are 
about to give before this committee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Mr. Estrada. I do.
    Senator Schumer. Thank you. You may be seated.
    Before we proceed with questions, I would like to give you 
the opportunity, Mr. Estrada, to introduce your family, who I 
had the privilege of meeting, and make any statement that you 


    Mr. Estrada. Thank you, Senator Schumer, for having me here 
this morning. I also wish to thank our Chief Executive for 
giving me the opportunity to come before you.
    I do not have a statement, but I would like to take just a 
few seconds to point out some members of my family who are 
here: my wife, Laury, who is a Government lawyer here in town.
    My mother, Clara Castaneda, whom you met earlier, was until 
very recently, as she told you, one of your constituents. She 
recently retired from her job as a bank examiner in the State 
of New York and now lives in Columbus, Ohio.
    My sister is a pediatric intensive care doctor at 
Children's Hospital in Ohio. She is here as well.
    There are a couple of other family members who could not be 
here today. My mother-in-law, Ruby Gordon, she is probably 
watching us on television in Birmingham, Alabama. And my late 
father's sister, my Aunt Gloria, my uncle, her husband, William 
Spiker; and my three cousins, William, Edward and Marilyn, 
could not be here today. And I assure you, Senator, I did not 
pick my family based on the membership of the committee. They 
are in San Francisco.
    And that is all I have. Thank you.
    Senator Schumer. Well, thank you, Mr. Estrada, and I met 
your family. They are a lovely group. In fact, I could that the 
apple didn't fall far from the tree in terms of sharpness of 
mind. When I was introduced to your mother, she said, ``Well, I 
hope you will repay the favor.'' And I said, ``Well, please?'' 
She said, ``Well, I voted for you.''
    Senator Schumer. So thank you all, Estrada family, for 
being here, and now we will proceed with questions. We will 
allow each member 10 minutes for questions. We will do the 
usual Democrat-Republican, go back and forth. And then we will 
have a second round if the members so wish. Thank you.
    Okay. Mr. Estrada, as I mentioned in my opening remarks, 
you served for years in the Office of the Solicitor General. 
Your record in that office has been called into question by 
your former supervisor there. My colleague Orrin Hatch both 
quoted favorably and unfavorably about Mr. Bender. But he is 
not the issue. He has said that you are too much of an 
ideologue and temperamentally unfit to merit confirmation to 
the seat.
    Now, the real way to get to the bottom of this is not 
listen to Mr. Bender or go past his record. He may be right. He 
may be wrong. I don't know the man. I have no idea. But it is 
to examine your record in the Solicitor General's office, which 
is probably the best detail we would have of what you did, at 
least in the public sector.
    As you know, the Department of Justice has declined to 
release the memoranda you wrote while serving in that office, 
claiming a privilege that, at least in my opinion, doesn't 
really exist.
    I understand you haven't opposed the release of these 
memoranda. Will you commit today to writing to Attorney General 
Ashcroft and urge him to turn over those documents so we can 
work towards resolving any of these allegations and get a 
fuller view of your record, which, as you know, is very 
important to me?
    Mr. Estrada. Thank you, Senator, for the question. You are 
right that I have not opposed the release of those records. I 
have been a lawyer in practice for many years now, and I would 
like the world to know that I am exceptionally proud of every 
piece of legal work I have done in my life. If it were up to me 
as a private citizen, I would be more than proud to have you 
look at everything that I have done for the Government or for a 
private client.
    I do recognize that there are certain interests that have 
been asserted in this case that go beyond my own personal 
interest, and those are the institutional interests of the 
Justice Department, and that those interests have been 
seconded, as it were, by men--and, unfortunately, only men--who 
have held the job of Solicitor General in both administrations 
going back to President Kennedy.
    I am more than happy to write to the Attorney General and 
convey your request, and I am certain that he knows that I am 
very proud of my work. And as I say, if it were entirely up to 
me, I would more than happily have the world see----
    Senator Schumer. What I am asking you to do, sir, is not 
convey my request. I have made that request already. As you 
know, shyness is not one of the qualities at the top of the 
list when it comes to me. And so I would ask you to make that 
request, and it might help us get those records and expedite 
this hearing.
    I hope you will do that. I don't see why not. As you know, 
other Solicitors General, other people who worked in the 
Solicitors General's office--I mentioned the names of Rehnquist 
and Bork and Judge Easterbrook--have had those documents 
revealed. It hasn't done damage to the Constitution. It hasn't 
done damage to the way the executive branch functions. And as a 
judge, I assume that you would want all of the facts before 
making a ruling. I think we should have the same right.
    So why wouldn't you just make a request to them and ask 
that those records be released? They may not acceded to it. 
They may. But then at least this committee would be satisfied 
that you have done everything to try and get us those records.
    Mr. Estrada. I understand your point of view, Senator 
Schumer. I have been a practicing lawyer for all these years, 
and one of the things I have come to learn is that a practicing 
lawyer such as I am ought not to put his own interests ahead of 
the stated interests of his client. I do not think it would be 
appropriate for me to do more than to convey your request to my 
former client because they have a publicly stated view that is 
not in accord with what I would be urging them to do. And as I 
said, as much as I would dearly love to have the entire world 
see every aspect of my work for which I am proud, I do not 
think that I am in a position to, in my own personal capacity--
    Senator Schumer. I would say to your, sir, in all due 
respect, you are no longer anybody's lawyer. When you are here 
to be nominated to the independent branch of the judiciary, you 
should be making, in my judgment at least, this decision on 
your own. I understand your loyalty to the Solicitor General's 
office and you are no longer working there. It would seem to me 
that as an independent nominee, which you clearly are, with an 
exemplary record, as my colleague Orrin Hatch has gone over, 
that you no longer have to play the role as lawyer but, rather, 
as nominee, you are playing the role you are, nominee for 
judge. And to me, at least, it is not satisfying that says, 
well, I have to still defend my old client there.
    Would you think about that? Because I think it would be a 
shame if we couldn't get that evidence. Would you think about--
    Mr. Estrada. Certainly. I mean, I will think--I have 
thought about it, and I will think about it some more, Senator 
Schumer. Let me say that I would like to think that my life in 
the law is an open book and that there are tons and tons and 
reams of stuff out there that can speak to the committee about 
the sort of thinker that I am and the sort of lawyer that I 
have been. Obviously, as I said, I have been in practice or 
have been a lawyer since 1986. I have had people on the other 
side of the table. I have had co-counsel. I have appeared in 
front of numerous judges, including all the Justices of the 
Supreme Court. I am aware that as part of its process of 
review, the American Bar Association undertook to conduct a 
survey of those who have been my colleagues and those who have 
been my opponents and of judges and Justices before whom I have 
appeared. And they found a record from which----
    Senator Schumer. Sir, your record in terms of legal 
excellence I don't dispute. I doubt any member of this 
committee does. But we have lots of other things, as I 
mentioned in my opening statement, we want to know. When you 
represent clients, you are representing clients, and you have 
done a very good job of that. The closest we have to seeing how 
you might be as a judge was when you represented the Government 
in the Solicitor General's office and made arguments to your 
superiors, to the Solicitor General about what position the 
United States Government would take.
    In all due respect, at least to me, knowing that you are a 
good lawyer and seeing that you are a good lawyer is not 
enough. And knowing that you have a record as a lawyer that I 
could examine is not enough because there are cases--you have 
said it in some of the interviews that you didn't agree with 
the view, but you were representing a client. But you are no 
longer representing a client. You are on your own now as a 
very, very intelligent, accomplished person, and I would again 
urge you to think about making that request for us.
    Let me move on to the next question here.
    I assume that you have read published reports that said 
that you attempted to block liberal applicants from clerking 
for your former boss, Justice Anthony Kennedy. I am sure you 
could understand why that would trouble people. If you are 
trying to preclude Justice Kennedy from hearing all sides 
argued in his chamber, it would suggest an ideological agenda 
when it comes to the courts. So I want to ask you a simple yes-
or-no question.
    Have you ever told anyone that you do not believe that any 
person should clerk for Justice Kennedy because that person is 
too liberal, not conservative enough, because that person did 
not have the appropriate ideology, politics, or judicial 
philosophy, or because you were concerned that person would 
influence Justice Kennedy to take positions you did not want 
him taking?
    Let me repeat the question because it is an important one, 
at least to some of us.
    Have you ever told anyone that you don't believe that any 
person should clerk for Justice Kennedy because that person is 
too liberal, not conservative enough, because that person did 
not have the appropriate ideology, politics, or judicial 
philosophy, or because you were concerned that person would 
influence Justice Kennedy to take positions you did not want 
him to be taking? Can you give us a yes or no to that, please?
    Mr. Estrada. Senator Schumer, I have taken a cab up to 
Capitol Hill and sat in Justice Kennedy's office to make sure 
he hired people that I knew to be liberal.
    Senator Schumer. But I am asking you yes or no in terms of 
the question I asked.
    Mr. Estrada. I don't believe I have. [shaking his head no.]
    Senator Schumer. The answer is no. Thank you.
    Well, I have 17 seconds left, and you will give longer than 
17 seconds to my answer. I am going to go to Orrin Hatch. I 
have more questions, which we will go to in the second round.
    Senator Hatch. Well, thank you, Mr. Chairman. Again, I 
should comment on the request for internal Justice Department 
    As Senator Schumer mentioned in his opening statement, 
committee Democrats have requested that the Department of 
Justice turn over attorney work product, specifically appeals, 
certiorari, and amicus memoranda that Mr. Estrada wrote as a 
career attorney in the Office of the Solicitor General of the 
United States of America.
    Now, I heard my friend from New York, much to my surprise, 
say that everyone he has spoken to believes that these 
memoranda would be helpful. My friend must not have seen the 
letter written by----
    Senator Schumer. Excuse me. I didn't say ``everyone.'' I 
said ``many people,'' I think.
    Senator Hatch. Many, okay. Well, let me say that many 
believe that. But he must not have seen the letter from the 
Solicitors General, all seven living former Solicitors General 
wrote to the committee expressing their concern about this 
request and defending the need to keep such documents 
confidential. The letter was signed by Democrats Seth Waxman, 
Walter Dellinger, and Drew Days, three excellent Solicitors 
General, as well as by Republicans Ken Starr, Charles Fried, 
Robert Bork, and Archibald Cox, all of whom have excellent 
    The letter notes that when each of the Solicitors General 
make important decisions regarding whether to seek Supreme 
Court review of adverse appellate decisions and whether to 
participate as amicus curiae in other high-profile cases, they 
``relied on frank, honest, and thorough advice from their staff 
attorneys like Mr. Estrada.''
    The letter explains that the open exchange of ideas which 
must occur in such a context ``simply cannot take place if 
attorneys have reason to fear that their private 
recommendations are not private at all but vulnerable to public 
    Their letter, these seven former Solicitors General, 
Democrat and Republican, concludes that, ``Any attempt to 
intrude into the office's highly privileged deliberations would 
come at a cost of the Solicitor General's ability to defend 
vigorously the United States litigation interests, a cost that 
also would be borne by Congress itself.''
    Now, Mr. Chairman, I would like to submit a copy of this 
letter for the record at this point, if I can.
    Senator Schumer. Without objection.
    Senator Hatch. Now, the former Solicitors General aren't 
the only ones who are disturbed by my Democrat colleagues' 
efforts to obtain privileged Justice Department memoranda. The 
editorial boards of two prominent newspapers have also 
criticized the attempt to obtain these records. On May 28th of 
this year, the Washington Post editorialized that the request 
``for an attorney's work product would be unthinkable if the 
work had been done for a private client. The legal advice by a 
line attorney for the Federal Government is not fair game 
    According to the Post, ``Particularly in a lead Government 
office such as that of the Solicitor General, lawyers need to 
speak freely without worrying that the positions they are 
advocating today will be used against them if they ever get 
nominated to some other position.''
    On May 24th of this year, the Wall Street Journal also 
criticized this request by my colleagues and, interestingly 
enough, noted its curious timing. ``On April 15th, the Legal 
Times newspaper reported that a leader of the anti-Estrada 
liberal coalition was considering launching an effort to obtain 
internal memos that Estrada wrote while at the Solicitor 
General's office.''
    A month later, on May 15th, Mr. Estrada received a letter 
seeking those internal memos by this committee.
    Once again, to me it becomes painfully clear that the 
liberal interest groups may very well be the ones controlling 
the actions and agenda of this committee. It is starting to 
really worry me.
    The Journal continued to voice its criticism in a 
subsequent editorial, which appeared on June 11th, calling the 
request ``outrageous'' and nothing that the true goal was ``to 
delay, to try to put off the day when Mr. Estrada takes a seat 
on the D.C. Circuit Court of Appeals from which President Bush 
could promote him to become the first Hispanic American on the 
U.S. Supreme Court.''
    Now, Mr. Chairman, I would like to submit copies of these 
editorials for the record.
    Senator Schumer. Without objection.
    Senator Hatch. I am aware, as some of my colleagues have 
pointed out, that the New York Times took a different view from 
the Washington Post and the Wall Street Journal by supporting 
the Democrats' effort to obtain Mr. Estrada's internal 
memoranda during his tenure at the Solicitor General's office. 
But the Times fails completely to even acknowledge that all 
seven living Solicitors General oppose this request. And since 
the Times appears to have failed to take this important factor 
into account in formulating its position, I am inclined to 
disregard its view on the issue altogether.
    Now, I have to admit I didn't agree with them, anyway, but 
anybody would----
    Senator Schumer. You rarely do.
    Senator Hatch. No, that is not true. I have been finding 
especially the Washington Post lately has been writing some 
pretty good editorials on the judgeship situation and the 
United States Senate.
    Now, contrary to the claims of one of my Democratic 
colleagues, the Department of Justice has never, to my 
knowledge, disclosed such sensitive information as the 
memoranda detailing the appeal, certiorari, and amicus 
recommendations and legal opinions of a career-level assistant 
to the Solicitor General in the context of a judicial 
nomination. During Robert Bork's Supreme Court confirmation 
hearings, the Department did turn over some memoranda Bork 
wrote while serving as Solicitor General, but to my knowledge, 
none of these memos contained the sort of deliberative 
materials requested of Mr. Estrada.
    The Bork materials included memos containing Bork's 
opinions on such subjects as the constitutionality of the 
pocket veto and on President Nixon's assertions of executive 
privilege and his views of the Office of Special Prosecutor. 
None of the memos, to my knowledge, contained information 
regarding internal deliberations of career attorneys on appeal 
decisions or legal opinions in connection with the appeal 
    Moreover, the Bork documents reflected information 
transmitted between a political appointee, the Solicitor 
General, and political advisers to the President, not the 
advice of a career Department of Justice attorney to his 
superiors. There is a big difference. The bottom line is that 
my friends are seeking privileged material. Their attempts have 
been criticized by all seven living former Solicitors General 
and by two major newspapers, and perhaps more that I am unaware 
of. But more fundamental is the fact that Mr. Estrada does not 
object to turning over these memoranda. He has nothing to hide. 
It is the Department of Justice that has an institutional 
interest in refusing to comply with my Democrat colleagues' 
request. And I, for one, understand and agree with the 
Department's position. But the Department's recalcitrance in 
this dispute should neither be imputed to nor held against Mr. 
    Now, to be honest with you, if I was Solicitor General, I 
would be outraged by that request. And I think the seven 
Solicitors General were not happy with that request, to say the 
least. That is why they took the time to write the letter, 
which is an embarrassing letter to this committee, at the very 
    Mr. Estrada, when you were at the Solicitor General's 
Office, you had a lot of issues come before you that you had to 
give your honest opinion on, and others who are continuing long 
after you are going through the same experience. At any time 
did you place your own personal ideological opinions over that 
of what the law really was or you believe should be?
    Mr. Estrada. No, Senator, never. The job of being a lawyer 
in that office, as you point out, is difficult and complex, and 
it entails consideration of a large number of factors including 
how a particular ruling going one way or the other might affect 
the interest of this agency or that other agency. And sometimes 
you have to marshal those interests for the Solicitor General 
for his consideration, and a full understanding of where all of 
the Government Departments may be with respect to an issue that 
is in the Supreme Court, for example. That sometimes may mean 
saying statements about the legal views of one agency, which if 
it became public, would hurt the litigating situation of that 
agency. And that is probably the type of consideration that has 
impelled the former Solicitors General to take that view. I 
haven't spoken to them, but I am not worried in the least that 
anybody could detect any bias or lack of skill in my legal 
    I do recall having made some pretty ruthless assessments of 
the legal views of some agencies which I'm sad to say sometimes 
were vindicated in the courts later, and I would not think that 
those agencies, as a general matter, would want that--those 
types of work product papers out in the public domain.
    Senator Hatch. Thank you, sir. My time is up.
    Thanks, Mr. Chairman.
    Senator Schumer. And I am just going to take the liberty of 
adding to the record. I have to point out that my friend, 
Senator Hatch's claim that memos from career DOJ attorneys 
reflecting the deliberative roles have not been turned--
deliberative process have not been turned over to Congress is 
not true, and I would just like to submit, just for example, 
some of those exact memos from Judge Frank Easterbrook, now a 
Seventh Circuit Judge, exactly the kind of memos we are looking 
for for Mr. Estrada that were turned over. And I would ask 
unanimous consent to submit these for the record.
    Senator Leahy.
    Chairman Leahy. Thank you, Mr. Chairman. I also have a 
statement that I would ask to be included in the record.
    Senator Schumer. Without objection.
    Chairman Leahy. I will not go into the unfortunate 
character attack made against Mr. Paul Bender, a man I have 
never met, do not know, but I would hope that this would not 
deter people either for or against any nominee, you or anybody 
else, that they would not hesitate to send information and 
their views to this Committee, and would not fear that they are 
just going to have their character shredded on C-SPAN if they 
do. I think it is beneath this Committee when that happens.
    I would refer, before there has been so much said about the 
Waxman letter. It is an interesting letter because these former 
Solicitors General, and I am sure you noted this, Mr. Estrada, 
they cited no legal citation, no authority whatsoever in their 
letter. It simply says as a policy matter that memos written to 
the Solicitor General should be kept confidential. Now, I agree 
that the interest in candor is a significant one, but it is not 
an absolute interest such as the interest of the Senate in 
addressing allegations made about somebody who is going to--is 
up for confirmation, not to a short-term position but to a 
lifetime position. In fact, one of the people in that letter, 
Former Solicitor General Robert Bork, knows full well that 
memos to the Solicitor General have been disclosed without any 
damage to the Department. When he was nominated to the Supreme 
Court, the Senate Judiciary Committee requested and was 
provided with written memoranda, written by him, or to him when 
he worked in the Solicitor General's Office. That did not chill 
subsequent members of the Justice Department from providing 
candid opinion. We are talking about something from the 1980s.
    Memoranda to and from the Solicitor General's Office and 
also the Office of Legal Counsel were provided to the Senate 
during the consideration of Judge Stephen Trott, who was 
confirmed to the Ninth Circuit, as well as Chief Justice 
Rehnquist, when he was confirmed as Chief Justice. Also William 
Bradford Reynolds, the former head of the Civil Rights Division 
in the Reagan Administration, who was nominated to the position 
of Associate Attorney General.
    And then the suggestion that there is a attorney/client 
privilege, I mean that is so farfetched that it almost seems a 
shame to waste time talking about it. I think Senator Fred 
Thompson made it very clear. He said in case after case the 
courts have concluded that allowing attorney/client privilege 
be used against Congress would be an impediment to Congress, 
and says well settled the invocation of attorney/client 
privilege is not binding on Congress. As another senior member 
of the United States Senate said, the attorney/client privilege 
exists as only a narrow exception to broad rules of disclosure. 
No statute or Senate or House rule applies the attorney/client 
privilege to Congress. In fact, both the Senate and the House 
have explicitly refused to formally include the privilege in 
their rules. That senior member of the Senate was Orrin Hatch 
of Utah, as a matter of fact. I just happened to mention that 
    The Congressional Research Service says it is not binding 
on the Congress. Professor Ronald Rotunda has declared that it 
does not. And the person who normally does the partisan 
political statements for the Department of Justice, Mr. Viet 
Dinh, said that a Government lawyer's employer is not a single 
person, but the United States of America. He said both the 
United States of America and the Government obviously include 
the United States Senate, and of course, the Seventh, Eighth 
and District of Columbia Circuits have agreed to that. I 
mention that for whatever it is worth, and also to clear it up.
    As a grandson of immigrants, and the wife was the daughter 
of immigrants, I know that no matter where you come from, a 
family takes pride in the success of their children, and I am 
sure your family does you, and they have a great deal to be 
proud of in your accomplishments. You have got a successful law 
career in a prominent corporate law firm that is the firm of 
President Reagan's first Attorney General, William French 
Smith, President Bush's current Solicitor General, Theodore 
Olson. You joined the office of the Solicitor General of the 
United States and worked for Kenneth Starr. Supreme Court 
Justice Scalia is a friend of yours. You worked on the legal 
team with Mr. Olson that secured the United States Supreme 
Court's intervention in the presidential election in 2000 on 
behalf of then Governor Bush. You showed your brilliance as a 
lawyer there. So I congratulate you on these. You are in a 
high-powered law firm. You have a lot going for you.
    The White House keeps talking about that you came from 
great poverty, arrived in this country not speaking any 
English. I know you and I talked about that, and you pointed 
out it was a little bit different than the story the White 
House passes out. Your mother is a bank examiner, daughter of 
an educator. Father is a prominent lawyer. You attended private 
school; studied English before coming to the United States. In 
fact you were so good in that you earned a B in college-level 
English classes in your first full year of higher education 
here. We have a lot of people who were born in this country and 
English was their first language. If I judge from some of the 
letters I get from college students, they could not earn a B. 
They would be darn lucky to make it through. And you seem to 
have followed your father's legacy in law school by assisting a 
banking law professor.
    So I just wanted to make sure, have I pretty well described 
your background?
    Mr. Estrada. I'm somewhat embarrassed to enter a little bit 
of a correction.
    Chairman Leahy. Oh, no, please do.
    Mr. Estrada. It doesn't really put me in the best light and 
has always embarrassed me, but I did get a B- in my first 
English class, not a B. And----
    Chairman Leahy. Grade inflation has happened before around 
here, so, no we will not--everything else was okay though?
    Mr. Estrada. You were probably right to point out that it 
was probably actually some sort of a C, but okay. I would not 
say my father was a prominent lawyer. He was a lawyer. My mom 
just retired as a bank examiner in New York, as I just told 
you. I went to a Catholic school, for which I think my father 
had to pay something like 10 or $20 a month. I have never known 
what it is to be poor, and I am very thankful to my parents for 
that. And I have never known what it is to be incredibly rich 
either, or even very rich, or rich.
    I have been in public service for the great bulk of my 
life, as you know. I don't, as a person having come here, I 
don't keep a lot of money in hand. I have been very fortunate 
in all of the opportunities I've had in this country, and it's 
allowed me to rise to a standard of living in this country 
which I certainly would not have enjoyed in my home country. 
That's why I'm here. But I think in broad outline what you have 
said is right, and I take every day pride in the fact that I 
have been able to do these things, thanks to having come here, 
though it is true that I was fortunate enough in Honduras to 
have parents who gave me a good, honest, middle class 
    Chairman Leahy. And I think these are things to be proud 
of. My grandparents spoke virtually no English, and I think 
they were proud their grandson went on, not to make a lot of 
money, but to have a life of public service. I see the look of 
pride on your family behind you, and I am sure they feel that 
way. I just wanted to make sure that we got--I wanted you to 
have a chance to give your background because I did not want 
that to become a political issue because of the somewhat 
different one the White House gave. I think yours is more 
accurate and more compelling.
    We have heard that you have many strongly-held beliefs. You 
are a zealous advocate. And that is great. You know, lawyers 
who win cases are not the ones who are on the one hand this, on 
the other hand that. They are zealous. But you also have to 
make sure that if you are going to enforce laws, that your 
personal views do not take over the law. Senator Thurmond has 
every single nominee I have ever heard him speak to, Republican 
or Democrat, has spoken to that effect.
    What would you say is the most important attribute of a 
judge, and do you possess that?
    Mr. Estrada. The most important quality for a job--for a 
judge, in my view, Senator Leahy, is to have an appropriate 
process for decision making. That entails having an open mind. 
It entails listening to the parties, reading their briefs, 
going back behind those briefs and doing all of the legwork 
needed to ascertain who is right in his or her claims as to 
what the law says and what the facts are. In a Court of Appeals 
Court, where judges sit in panels of three, it is important to 
engage in deliberation and give ear to the views of colleagues 
who may have come to different conclusions, and in some, to be 
committed to judging as a process that is intended to give us 
the right answer, not to a result.
    And I can give you my level best solemn assurance that I 
firmly think I do have those qualities, or else I would not 
have accepted the nomination.
    Chairman Leahy. Does that include the temperament of a 
    Mr. Estrada. Yes, that includes the temperament of a judge. 
I think, to borrow somewhat from the American Bar Association, 
a temperament of a judge includes whether the individual, 
whether he or she is impartial and open minded and unbiased, 
whether he is courteous yet firm, and whether he will give ear 
to people that come into his room, into his courtroom, who do 
not have--who come with a claim about which the judge may be at 
first skeptical.
    Chairman Leahy. Thank you, Mr. Chairman. I will have other 
questions, of course, for our next round.
    Senator Schumer. We will have a second round. Thank you, 
Chairman Leahy.
    Just two things. I want to--I was asked by Senator Hatch to 
please announce that Senator Kyl had to go to the Intelligence 
Committee, and he is going to try to come back. I would also 
want to just ask unanimous consent to put the letter of January 
27th, 2000 from the U.S. Department of Justice Office of 
Legislative Affairs in the record, which states the current 
Justice Department position, as I understand it, on giving up 
these documents, and they say, ``Our experience indicates that 
the Justice Department can develop accommodations with 
congressional committees that satisfy their needs for 
information that may be contained in deliberative material 
while at the same time protecting the Department's interest in 
avoiding a chill on the candor of future deliberations.'' And I 
would like to add that to the record because I think it is not 
exactly on all fours with what was said before.
    Let me call on Senator Grassley.
    Senator Grassley. Before I make some comment, I want to ask 
three very basic questions, and they kind of get at the 
foundation for the selection of judges. In general, Supreme 
Court precedents are binding on all lower Federal Courts, and 
Circuit Court precedents are binding on District Courts within 
a particular circuit. Are you committed to following the 
precedents of the higher courts faithfully and giving them full 
force and effect even if you disagree with such precedents?
    Mr. Estrada. Absolutely, Senator.
    Senator Grassley. What would you do if you believe the 
Supreme Court or the Court of Appeals had seriously erred in 
rendering a decision? Would you nevertheless apply that 
decision or would you use your own judgment of the merits, or 
the best judgment of the merits?
    Mr. Estrada. My duty as a judge and my inclination as a 
person and as a lawyer of integrity would be to follow the 
orders of the higher court.
    Senator Grassley. And if there were no controlling 
precedent dispositively concluding an issue with which you were 
presented in your circuit, to what sources would you turn for 
persuasive authority?
    Mr. Estrada. When facing a problem for which there is not a 
decisive answer from a higher court, my cardinal rule would be 
to seize aid from any place where I could get it. Depending on 
the nature of the problem, that would include related case law 
in other areas that higher courts had dealt with that had some 
insights to teach with respect to the problem at hand. It could 
include the history of the enactment, including in the case of 
a statute, legislative history. It could include the custom and 
practice under any predecessor statute or document. It could 
include the views of academics to the extent that they purport 
to analyze what the law is instead of prescribing what it 
should be. And in some, as Chief Justice Marshall once said, to 
attempt not to overlook anything from which aid might be 

                         STATE OF IOWA

    Senator Grassley. I thank you for those answers. I am not 
going to go into the statements that have been exchanged 
between my colleagues on Mr. Bender, but I do have--I do not 
know Mr. Bender, but I did work on an issue where he played a 
prominent role in in the previous administration, and that was 
dealing with the Knox case, and I guess since I sponsored a 
resolution that disapproved of the Clinton Administration's 
position on that Knox case, as that was heavily influenced by 
Mr. Bender's decision, and theresolution passed 100 to zero in 
the Senate. We did not want arguments in a case that would let 
a twice-convicted child pornographer free to continue his 
tendency to lure under-age girls into criminal relationships.
    I think that when that sort of person comes out in 
opposition to you, that it ought to be pointed out, as it 
probably has already been pointed out in stronger ways than I 
will, that itself is reason to ignore to a considerable extent 
Mr. Bender's detraction of your qualifications to be on the 
Circuit Court of Appeals. And I fought very hard to get the 
resolution dealing with the Knox decision through the Senate, 
obviously I wanted a President and an Attorney General and a 
Solicitor General to fight hard to uphold legislation to 
protect children against predators. And in fact, we had a 
reversal of the administration's position in that case that had 
been highly influenced by Mr. Bender, who obviously has some 
extreme positions on child pornography.
    So I will just leave it at that and suggest that our 
colleagues not take the opinions of Mr. Bender very seriously 
in his finding fault with Mr. Estrada's qualifications for 
being on the court. In fact, I would think just the opposite 
from news reports that are out. Mr Bender had very 
complimentary things to say about you while you had a working 
relationship with him, and I would think, how do you get this 
dramatic change of opinion from Mr. Bender's opinion of you 
prior to your nomination to the Circuit Court and then a 
different opinion after your nomination to the D.C. Circuit 
Court of Appeals.
    So I am glad that the President has nominated you. 
Obviously, I do not make a final decision until the record's 
clear, but I think with the ratings that you have had and how 
you have expressed yourself so far at this hearing, plus the 
reputation you have, that it is going to be hard for somebody 
to find reasons for voting against you.
    Thank you.
    Senator Schumer. Thank you, Senator Grassley.
    Senator Kennedy.
    Senator Kennedy. Mr. Chairman, I want to congratulate the 
nominee. It is an enormous tribute, and you are to be 
congratulated, and we want to welcome your family. Thank you 
very much.
    Mr. Estrada. Thank you, Senator.

                     STATE OF MASSACHUSETTS

    Senator Kennedy. Just before questioning the nominee, Mr. 
Chairman, I want to just join with those that are rejecting 
these personal attacks of Mr. Bender. I do not know Mr. Bender. 
But Professor Bender graduated magna cum laude from Harvard Law 
School, Law Review, clerked for Judge Learned Hand, Court of 
Appeals. He was a clerk for Justice Felix Frankfurter in the 
Supreme Court. He has spent 24 years as a faculty member at the 
University of Pennsylvania Law School, and he was the Dean of 
the Law School. And he has also argued 20 cases on behalf of 
the United States before the Supreme Court.
    Now, I think it is one thing to disapprove of those that 
are going to support the nominee and to question those that 
disagree, but to have the kind of personal attacks on Mr. 
Bender, I think demeans this Committee and demeans those who 
have made them.
    Now, on the question of the release of the various 
materials--and I want to do this very quickly because I have 
questions of substance--did you ever talk with the Attorney 
General about the release of these personally? Did you ever 
say, ``Look, I am all for--since I do not have a great deal of 
decision making, I have not published a great deal. I know 
there is going to be interest in my work, in the Solicitors 
General, and I want to see these released.'' Did you ever talk 
to him personally?
    Mr. Estrada. No. I have only met General Ashcroft I believe 
once in my life, on the day when I was nominated.
    Senator Kennedy. So you have never made a personal request 
either of him, or did you say so to anybody in the White House?
    Mr. Estrada. No.
    Senator Kennedy. So you have not, as a personal matter, 
made that request yourself, even though that you knew that 
there was going to be widespread interest in this and that the 
members of the Committee were going to ask for it?
    Mr. Estrada. Promptly when I got the letter from Chairman 
Leahy I forwarded it to--I think it was to the White House 
Counsel's Office, and may also have sent it on to the Solicitor 
General. No, actually, I didn't do that. Just the White House 
Counsel's Office.
    Senator Kennedy. And then they just gave you a reaction and 
that was it? You did not go back and say, ``I can't understand 
how the Judiciary Committee, in its consideration, would want 
to know these kinds of questions. There are others, Bork, 
Rehnquist, Easterbrook, Civiletti, Brad Reynolds, all have done 
this in the past. In the sense of openness, I would like the 
Committee to have these kinds of documents as well?''
    Mr. Estrada. No, Senator, I did not.
    Senator Kennedy. But you are going to do that now?
    Mr. Estrada. I have told Senator Schumer that I will think 
about doing that now.
    Senator Kennedy. Well, you better think about it. Is that 
your answer, you are just going to think about it?
    Mr. Estrada. Well, Senator----
    Senator Kennedy. You cannot just--that is your answer? We 
will go on to another question if that is what your answer is 
going to be, you are just going to think about it.
    Senator Hatch. Do you care to add anything else to it?
    Senator Kennedy. Now, Mr.----
    Senator Hatch. Well, if he does, let the witness answer.
    Senator Kennedy. I want to ask, Mr. Estrada, as Senator 
Schumer pointed out, the D.C. Circuit Court of Appeals probably 
has a greater impact on the lives of people than any other 
court for the reasons that he had outlined, but I will just 
mention them again: makes the decisions about the protections 
of health care workers, their exposure to toxic chemicals. It 
does with regards to the labor laws, interpreting the 
protections of our labor laws for workers, whether these laws 
are going to apply to workers or whether there is going to be 
adequate compensation or fair compensation. It has a whole 
range of employment discrimination cases on race, on gender, on 
disability. It has important regulations that makes judgments 
about drinking water, the safety of drinking water, toxic 
sites, brown fields, again, environmental issues, about smog 
and soot. Now we have doubled the number of children that are 
dying from asthma every year now. It is one of the few 
children's diseases that is going up in terms of deaths. They 
make important decisions about smoke and soot in the air. The 
right to choose. The rights of gay men and lesbians, like 
Joseph Staffin, a midshipman at the U.S. Naval Academy, 
discharged because he told his classmates that he's gay. First 
Amendment rights on television. The Sentencing Commission. 
Equal protection and due process of the law.
    Now, these affect many people that do not have great 
advocates, great lobbyists, great special interest here, but 
they look to this Court as being the Court really of last 
resort. Can you tell me why any of those groups that would be 
affected by these laws would feel that you would be fair to 
them, understand their problems, understand their needs, and 
that they, before you, could get the kind of fair shake by 
someone who could really understand the background of their 
    Mr. Estrada. Certainly, Senator. I would ask those people 
to look at my record of public service and what I have done 
with my life as a lawyer. As you may know, one of the things 
that I have done after leaving my years of public service both 
in the U.S. Attorney's Office and in the prosecutor, is to be 
an attorney in private practice. While in private practice I 
have done my share of work for free that I think benefits the 
community, including taking on the death row appeal of an 
inmate who had been sentenced to death, and whose case was 
accepted by the Supreme Court of the United States.
    The reason I did that, and it took a significant part of my 
year a couple of years ago, is because I looked at the record 
after his then current lawyer came to me asking for help, and I 
said, ``This isn't right. We got to do something about this.'' 
And I am the type of person who can look at what I think is an 
injustice and try to use my skills as an advocate to make sure 
that I make every effort to set it right. I did that in that 
case. I have done that in my life as a public servant. And I 
would continue to do that as a judge.
    Senator Kennedy. I would hope that we could have printed in 
the record the cases that you did handle. I believe there was 
another case as well. Am I right?
    Mr. Estrada. There were other cases. There was a case for 
an inmate that I handled in New York, yes.
    Senator Kennedy. How many cases would you say roughly that 
you did pro bono?
    Mr. Estrada. I have done cases in litigation I can think of 
right now of four. I haven't been in private practice for very 
long, and during my period of public service it was not lawful 
for me to take----
    Senator Kennedy. You could understand, could you, about how 
the concerns that people that would be affected by these, would 
wonder whether you would be able to understand their plight, do 
you think, or not?
    Mr. Estrada. Well, certainly, Senator. I am a practicing 
lawyer. I walk--I walk into courtrooms pretty much all the 
time, and whether it is one of my firm's corporate clients or 
whether it is Tommy Strickler, the death row inmate, I always 
have a knot in my stomach about whether I'm going to do right 
by that client.
    Senator Kennedy. One of the areas that you have been very 
active in in the pro bono also was on the issues of challenging 
the various anti-loitering cases. One in particular comes to 
mind, and that is the position that you took with regard to the 
NAACP, an Annapolis anti-loitering case, in that case the 
NAACP, which is a premiere organization that has advocated for 
the social and political rights for African-Americans and other 
minorities for almost 100 years. They brought the challenge to 
the Annapolis ordinance because the ordinance was so broadly 
written that it interferred with their members ability to 
counsel teenagers involved with crime and drugs. It also 
interferred with their ability to conduct voter outreach and 
    Now, you made the case before the court that the NAACP 
should not be granted standing to represent its members, these 
members, and as I look through the case I have difficulty in 
understanding why you would believe that the NAACP would not 
have standing in this kind of case, when it has been so 
extraordinary in terms of fighting for those that have been 
left out and been left behind. The NAACP has been granted 
standing to represent their members in more cases than perhaps 
any single organization in the history of this country.
    Mr. Estrada. The laws that were at issue in that case, 
Senator Kennedy, and in an earlier case, which is how I got 
involved in the issue, deal with the subject of street gangs 
that engage in--or may engage in some criminal activity. I got 
involved in the issue as a result of being asked by the City of 
Chicago, which had passed a similar ordinance dealing with 
street gangs. And I was called by somebody that worked for 
Mayor Daley, when they needed help in the Supreme Court in a 
case that was pending on the loitering issue.
    I mention that because after doing my work in that case, I 
got called by the attorney for the city of Annapolis, which is 
the case to which you're making reference. They had a somewhat 
similar law to the one that had been an issue in the Supreme 
Court, not the same law, and they were already in litigation, 
as you mentioned, with the NAACP. By the time he called me, he 
had filed--this is the lawyer for the city--he had filed a 
motion for summary judgment, making the argument that you've 
outlined. And he had been met with the entrance into the case 
by a prominent Washington, D.C. law firm on the other side. He 
went to the state and local legal center and asked, who I can 
turn to to help? And they sent him to me because of the work I 
had in the Chicago case.
    Following that I did the brief, and the point on the 
standing issue that you mentioned is that in both Chicago and 
in the Annapolis ordinance, you were dealing with types of laws 
that had been passed with significant substantial support from 
minority communities. And I've always thought that it was part 
of my duty as a lawyer to make sure that when people go to 
their elected representatives and ask for these types of laws 
to be passed, to make the appropriate arguments that a court 
might accept to uphold the judgment of the democratic people.
    In the context of the NAACP that was irrelevant to the 
legal issue because one of the requirements, we argued for 
representational standing, was that the case that the 
organization wants to get into is germane to the goal of the 
organization, which in this case, as everybody knows, was to 
combat discrimination. And the basic point of the brief was 
that these were not racist laws. I take a back seat to no one 
in my abhorrence of race discrimination in law enforcement or 
anything else. But the basic point was that these were laws 
that were passed by the affected minority communities, to be 
sure, not with the unanimous support of minority communities, 
but that these were laws that had significant minority 
community support. And I thought that that was an argument that 
the court should consider in the context of this narrow legal 
doctrine that it was averting to.
    Senator Kennedy. Well, my time is up. It is my 
understanding that the elected officials opposed those laws, 
the elected officials in the communities opposed the laws, but 
the District Court effectively rejected your position. I ask 
the question because I want to be sure that you understand the 
implication of the argument you are making on the ability of 
ordinary working men and women, who don't have the resources to 
bring complex litigation on their own. Representational 
standing has been such a critical tool in dealing with civil 
rights and discrimination issues. Using the tool of 
representational standing, people have been able to bring cases 
in the D.C. Circuit that affect the environment, civil rights, 
workers and consumers. Your arguments in this case suggest 
you'll fail to recognize the importante of allowing groups to 
bring cases on behalf of this area. To deny the NAACP standing 
in this case I find troublesome. I think, as I understand, that 
is one of the reasons that the--both MALDEF and the Puerto 
Rican Legal Defense Fund have concerns as well. I just wanted 
to raise that.
    I understand my time is up, Mr. Chairman.
    Senator Schumer. Thank you, Senator Kennedy.
    Before I turn to Senator Sessions, Senator Brownback just 
wanted you to know and everyone to know that he had to go to 
the floor to co-manage the Homeland Security Bill and hopes to 
be back this afternoon.
    Senator Sessions.

                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. I will submit a 
statement for the record.
    And will just raise a couple of points at the beginning 
because I did participate with you yesterday on the hearing 
involving the D.C. Circuit, and previous hearings on the 
question of the appropriateness of considering ideology in 
selecting judges.
    I believe that as we approach this, we ought not to change 
the ground rules. I know you have a chart there you referred to 
as prepared by Professor Cass Sunstein. I believe that was the 
professor that appeared before the Democratic Senators in 
retreat two years ago, and urged that the ground rules for 
judicial confirmations be changed. And since that time we have 
raised several issues, notably the issue that we should not 
consider a person's ideology or political views when 
considering a judge, and also that the burden is on the 
nominee. Both of those, as we have researched it carefully, are 
contrary to history and tradition of the Senate. It is no doubt 
that any member, Mr. Estrada, of this Committee, can use any 
standard they want. They are elected, as you know, and they can 
use any standard they want.
    But we have to be careful that the standard we use can be 
applied across the board over a period of time, and it is a 
healthy standard for America. So I think those two issues are 
important and should not be adopted here.
    I would note that Lloyd Cutler, who served as President 
Clinton's White House counsel, and a distinguished lawyer of 
many years service, has stated it would be a tragic development 
to include ideology, when, testifying before the Administrative 
Oversight Subcommittee. ``It would be a tragic development if 
ideology became an increasingly important consideration in the 
future. If you make ideology an issue in the confirmation 
process, is to suggest that the legal process is and should be 
a political one.''
    Would you have any comment on that, Mr. Estrada? Do you see 
the legal process as a political thing or a legal matter?
    Mr. Estrada. Senator Sessions, I am very firmly of the view 
that although we all have views on a number of subjects from A 
to Z, the first duty of a judge is to self-consciously put that 
aside and look at each case by starting withholding judgment 
with an open mind and listen to the parties. So I think that 
the job of a judge is to put all of that aside. And to the best 
of his human capacity, to give a judgment based solely on the 
argument's on the law.
    Senator Sessions. I agree, and that is the strength of our 
rule of law in America, which I think has helped make this 
country free, independent and prosperous economically, and we 
must, must, must not politicize the rule of law. And I think 
some of the things that we are seeing in this Committee are 
steps in that direction. We have professors who believe that 
the law is merely a tool to oppress, that judges are tools of 
passions and that it is a myth to believe that we can follow 
and ascertain the law objectively. I reject that. And if we 
ever move away from that in this country I believe we will be 
endangering our system.
    The Revesz study that was highlighted in Mr. Sunstein's 
numbers, also by the Chairman, should be taken with caution. 
Just looking at the Revesz study, it points out that there were 
some differences in Republican and Democratic judges. But look 
at the issues and how they deal with them. They looked only at 
environmental cases. They don't look at agriculture, Federal 
trade, or IRS cases. The study found no significant difference 
in Republican and Democratic voting patterns on statutory 
environmental cases, only regulatory cases where there is--
where unelected bureaucrats are actually enforcing, fleshing 
out rules to enforce laws we made. They found no industry 
favoritism by Republican in 7 of the 10 time periods studied. 
They found no activist group favoritism by Democrats in 
procedural environmental cases in 4 of the 10 time frames 
studied. I think that study is greatly overstated, and I 
believe the ideal we should adhere to, that a judge, Republican 
or Democrat, personally liberal or personally conservative, 
should rule the same in every case. Is that not the basic ideal 
of America, based on the same law and facts?
    Mr. Estrada. I think my basic idea of judging is to do it 
on the basis of law and to put aside whatever view I might have 
on the subject to the maximum extent possible, Senator.
    Senator Sessions. You finished high in your class at 
Harvard, and were an editor of the Harvard Law Review. Being on 
the Law Review itself is a great honor of any graduate, one of 
the highest law honors a person can have. You served in the 
Solicitor General's Office, which many consider to be the 
greatest lawyer's job in the entire world, to represent the 
United States of America in court. Everyone selected there is 
selected on a most competitive basis. You have served one of 
the great law firms in America, doing the appellate litigation 
work, Gibson, Dunn & Crutcher, one of the great law firms in 
the world.
    And you have been evaluated very, very carefully by the 
American Bar Association. As Mr. Fred Fielding said Tuesday, 
the ABA considers judicial temperament, and after a careful 
review of your record, they concluded unanimously that you have 
the gifts and graces to make an outstanding judge. They gave 
you the highest possible rating unanimously, well qualified.
    I see nothing in your record that would indicate otherwise. 
Your testimony has been wonderful here today. It reflects 
thoughtfulness, a gentleness. You are patient with some of the 
questions you have received. You have demonstrated the kind of 
temperament that I think would make a great judge. You head the 
appellate section of Gibson, Dunn & Crutcher. People do not 
hire you in that section unless they believe you can do good 
    So I just am most impressed. I believe you are an 
outstanding nominee.
    Let's talk a little bit briefly more about the internal 
memorandums in the Department of Justice. You have just raised, 
in your original comments, the critical point, those 
memorandum, when a lawyer does work for a client and produces 
product for that client, who owns the product; is it the lawyer 
or the client?
    Mr. Estrada. In my understanding, as a general matter it is 
the client, Senator.
    Senator Sessions. And when you give internal advice to a 
client and memoranda to a client, that is the client's duty to 
either reveal it or not reveal it, and you would have to have 
permission from that client.
    Mr. Estrada. That is usually the case.
    Senator Sessions. And as a lawyer--well, maybe it is the 
criminal investigation or something, but if it is a lawyer's 
duty here to carry out their responsibilities effectively, it 
is also, in my view, very nearly improper to ask them to give 
up something that you have no right to ask them to give up. I 
think that is appropriate to say. You have no objection to 
their releasing it, but if this Committee wants those 
documents, they have to ask the Department of Justice. And I 
think it is very significant that all of those former Solicitor 
Generals, including every single living Solicitor General, has 
opposed releasing those documents, as a matter of policy. So I 
believe you have nothing to be ashamed of there, and I think 
this is making a mountain out of a molehill. It is an attempt 
to suggest there is something to hide when we have an important 
legal policy at stake.
    And I know the questions get asked, well, what do you think 
these groups might say? Maybe they cannot see you to be 
objective. After groups have been stirred up or certain liberal 
activist groups attack a nominee, and then members of the 
Committee then turn and ask the nominee, ``Well, they have said 
these things that you have refuted,'' and the nominee is often 
knocked down totally as being inaccurate. But then they say, 
``Well, we cannot confirm you because somebody might think you 
cannot be fair.'' And I think that is an unfair thing to the 
    Mr. Estrada, if you are confirmed to this position--and I 
hope that you will be--how do you see the rule of law, and will 
you tell us, regardless of whether you agree with it or not, 
that you will follow binding precedent?
    Mr. Estrada. I will follow binding case law in every case. 
and I don't even know that I can say whether I concur in the 
case or not without actually having gone through all the work 
of doing it from scratch. I may have a personal, moral, 
philosophical view on the subject matter, but I undertake to 
you that I would put all that aside and decide cases in 
accordance with binding case law, and even in accordance with 
the case law that is not binding, but seems instructive on the 
area, without any influence whatsoever from any personal view I 
may have about the subject matter.
    Senator Sessions. Thank you for your outstanding testimony. 
I believe that if confirmed you will be one of the greatest 
judges on that court, and I do believe that if you are not 
confirmed, it will be because this Committee has changed the 
ground rules for confirming judges, and that would be a tragic 
    Senator Schumer. Senator Kohl.
    Senator Kohl. Mr. Estrada. When we decide to support or 
oppose a nominee, we of course need to have an idea of their 
public approach----
    Senator Schumer. Excuse me, Senator. I am sorry. We said we 
would break at 12:30, but in courtesy to Senator Feinstein who 
has been waiting here for a while, we will do Senator Kohl, 
Senator McConnell, Senator Feinstein. But anyone else who comes 
in will have to wait until 2 o'clock when we resume, if that is 
okay with everybody.
    Thank you. Sorry to interrupt, Senator.
    Senator Kohl. When we decide whether to support or oppose a 
nominee we need to have an idea about their approach to the 
law, of course, and we need to determine what kind of a judge 
they might be. Some of us here, in fact many of us, vote for 
almost all of the nominees for a Federal bench. I personally 
have voted for 99 percent of the nominees that have come before 
this Committee.
    In all of those cases I felt that I knew what we were 
getting when we voted. There was some record or some writings 
that gave me an idea about how the nominee might perform as a 
judge. We do not have, as you know, much of a public record or 
written record of you. You have opinions, of course, on many 
issue I am sure, but we do not hardly know what any of them 
might be. And some of us might have a tough time supporting 
your nomination when we know so little.
    With that in mind, I would like to know your thoughts on 
some of the following issues. Mr. Estrada, what do you think of 
the Supreme Court's efforts to curtail Congress's power, which 
began with the Lopez case back in 1995, Gun-Free School Zones 
    Mr. Estrada. Yes, I know the case, Senator. As you may 
know, I the was in the Government at the time and I argued a 
companion case to Lopez that was pending at the same time, and 
in which I took the view that the United States was urging, in 
the Lopez case and in my case, for a very expansive view of the 
power of Congress to pass statutes under the Commerce Clause 
and have them be upheld by the Court. Although my case, which 
was the companion case to Lopez was a win for the Government on 
a very narrow theory, the Court did reject the broad theory 
that I was urging on the Court on behalf of the Government. And 
even though I worked very hard in that case to come up with 
every conceivable argument for why the power of Congress would 
be as vast as the mind can see, and told the Court so at oral 
argument, I understand that I lost that issue in that case as 
an advocate, and I will be constrained to follow the Lopez 
    Lopez has given us guidance on when it is appropriate for 
the Court to exercise the Commerce power. It is binding law, 
and I would follow it.
    Senator Kohl. In light of growing evidence that a 
substantial number of innocent people have been sentenced to 
the death penalty, does that provide support in your mind for 
the two Federal District Court Judges who have recently struck 
down the death penalty as unconstitutional?
    Mr. Estrada. I am not--I am not familiar with the cases, 
Senator, but I think it would not be appropriate for me to 
offer a view on how these types of issues, which are currently 
coming in front of the Court and may come before me as a judge, 
if I am fortunate enough to be confirmed, should be resolved.
    Senator Kohl. What is the Government's role in balancing 
protection of the environment against protecting private 
property rights?
    Mr. Estrada. There are--as you know, Senator, there is a 
wealth of case law on that subject matter. Generally, Congress 
has passed a number of statutes that try to safeguard the 
environment, things like the Clean Air Act, NEPA, any number of 
other statutes that are enforced sometimes by the EPA, for 
example, and as a general matter, I think all judges would have 
to greet those statutes when they come to court with a strong 
presumption of constitutionality. There are claims in the 
courts that sometimes in a particular case, those statutes, 
like some other statutes, may be used to transgress the 
Constitution. And I know that here are people who may claim 
that there may be takings or arguments of that nature.
    Obviously, one would have to look carefully at the case law 
from the Supreme Court under the Just Compensation Clause of 
the Fifth Amendment, but I don't know that I can tell you in 
the abstract how those cases should come out other than to say 
that I recognize that as a general matter the enactments of 
Congress in this area as in any other, come to the courts with 
a strong presumption of constitutionality.
    Senator Kohl. All right. In the past few years, Mr. 
Estrada, there has been a growth in the use of the so-called 
protective orders in product liability cases. We saw this, for 
example, in the recent settlements arising from the 
Bridgestone-Firestone lawsuits. Critics argue that these 
protective orders oftentimes prevent the public from learning 
about the health and safety hazards in the products that are 
    So let me ask you, should a judge be required, and to what 
extent should a judge be required to balance the public's right 
to know against the litigant's right to privacy, when the 
information sought should be sealed--that could be sealed and 
could keep secret a public health and safety hazard? How 
strongly do you feel about the public's right to know in these 
    Mr. Estrada. Senator, there is a long line of authority in 
the D.C. Circuit, as it happens, dealing with public access in 
cases that are usually brought to gain access to Government 
records by news organizations, and those cases, as I recall--I 
haven't looked at them in some time--do recognize a common-law 
right of access to public records, which must be balanced 
against the interest of the governmental actor that is 
asserting a need for confidentiality.
    I am not aware of any case, though there may be some, that 
have dealt with this issue in the context that you've outlined, 
but I would hesitate to say more than that, because I don't 
know how likely is it that that--that the very issue that 
you've just outlined would come before me in the D.C. Circuit 
if I were fortunate enough to be confirmed.
    Senator Kohl. One last question. With all due respect to 
your answer, I am trying to know more about you, and I am not 
sure I am.
    Mr. Estrada. I'm trying to help me.
    Senator Kohl. What did you say, you are sorry you cannot 
help me?
    Mr. Estrada. No. I said I am trying my best to help you, 
    Senator Kohl. All right. Last question, sir. In their 
letter, the Puerto Rican Legal Defense and Education Fund 
criticized you for making, and I quote, ``several 
inappropriately judgmental and immature comments about'' their 
organization. They also called you, quote, ``contentious, 
confrontational, aggressive and even offensive.'' Unquote. Why 
do you think they said these things about you? What happened at 
that meeting that would lead this organization to make such a 
strong statement? And what statements were you referring to 
when you said ``bone-headed?''
    Senator Kohl. Or can you not answer that either?
    Mr. Estrada. All right. I am happy to answer all of your 
questions, Senator.
    The fund, as you may know, pretty much almost right after I 
was nominated, sent a letter to Chairman Leahy, saying some 
fairly unflattering things about my candidacy for this office. 
The letter asked for a meeting with me, which I was delighted 
to give them, because I think of myself as a fair-minded 
person, who is very concerned that there is anybody out there 
who may think that I am biased or that I have any other 
character trait, that would make me less of a person. So I was 
very concerned that these people, whom I had not met, had 
already sent this letter. I told them that I would meet with 
them. And I did meet with them I think in April this year. I 
was happy to clear for them an entire day of my calendar.
    As it happens, there were three of them. They took about 3-
1/2 hours, and we had what I thought at the time was by and 
large a cordial conversation. It was clear to me at the time 
that one of the individuals in the meeting was very frustrated 
by what I thought was my inability to give very expansive views 
in certain areas of law that are of interest to the Fund. And 
he was also clear at the meeting that he was very concerned 
that he would not--that this meeting was not enabling him to 
ascertain how I might vote on a case, which I thought was what 
I had to do in my conversations with anybody.
    Ultimately, during the conversation, which, as I say, by 
and large was pretty cordial, he expressed the view--actually, 
a series of three related views, which went something like 
this: number one, you, Mr. Estrada, were nominated solely 
because you are Hispanic; number two, that makes it fair game 
for us to look into whether you are really Hispanic; and, 
number three, we, having been involved in Hispanic Bar 
activities for, lo, these many years, are in a position to 
learn that you are not sufficiently Hispanic. To which my 
response was--and I felt that very strongly--to point out that 
the comments were offensive, and deeply so, and bone-headed. 
And they're still offensive.
    Senator Kohl. And bone-headed. Thank you. I think you have 
done very well. I appreciate your comments.
    Senator Schumer. Senator McConnell?

                        STATE OF KENTUKY

    Senator McConnell. Thank you, Mr. Chairman.
    Well, Mr. Estrada, I want to congratulate you on your 
nomination. Your story is truly inspiring, and being the proud 
husband of a lady who has done rather well in the United 
States, coming to this country at age 8 and not speaking 
English, your nomination reminds me of what I think about 
frequently when I am around the Secretary of Labor, that this 
is a great country. So I congratulate you on your nomination.
    I think the President has made a number of truly 
outstanding nominations. Yours is quite possibly the best. And 
I hope you will be speedily confirmed after some delay that 
your nomination has encountered here over the last year and a 
    I really have no questions, but I do want to make a 
statement. One of the dilemmas of being the least senior member 
of the committee is you have to wait around for a while.
    My friends on the other side have said they want mainstream 
judges. I think that you, Mr. Estrada, fit this category quite 
nicely. As others have said, you received the ABA's highest 
rating, unanimously ``well qualified.'' As part of its rating, 
the ABA considers judicial temperament. You donated over 400 
hours pro bono defending an individual in a capital case. You 
have received glowing letters of recommendation from prominent 
Democrats, including the former Solicitor General under 
President Clinton, Walter Dellinger, and former chief of staff 
to Vice President Gore.
    But mainstream, of course, is a relative term. At this 
point it is clear that what many of us on this side of the 
aisle think is mainstream is quite different from what some of 
our friends on the other side think is mainstream. I thought 
Priscilla Owen, for example, was in the mainstream. She was 
rated, as you were, unanimously ``well qualified'' by the ABA. 
She was endorsed by the past 16 State bar presidents, both 
Democrats and Republicans. She was twice elected to statewide 
judicial office, the last time receiving 84 percent of the 
    Yet my colleagues on the other side of the aisle killed her 
nomination because of her interpretation of a Texas law saying 
minor girls cannot freely get abortions behind their parents' 
backs. On this subject, well over 80 percent of Americans 
agreed with Justice Owen. So I was astounded that our friends 
on the other side would conclude that she was not in the 
    So I thought the best way to determine who in my 
colleagues' view is in the mainstream is to look at decisions 
of some of the 377 Clinton judges whom my colleagues 
strenuously supported and argued were ``in the mainstream.''
    For example, one of the class of 1984, Judge Shira 
Scheindlin recently in a case regarding a terrorist witness, 
Federal agents did their job by detaining a material witness to 
the attacks of 9/11, a Jordanian named Osama Awadallah. Osama 
Awadallah knew two of the 9/11 hijackers and met with at least 
one of them 40 times. His name was found in a car parked at 
Dulles Airport by one of the hijackers of the American Airlines 
Flight 77. Photos of his better-known namesake, Osama bin 
Laden, were found in Osama Awadallah's apartment.
    Under the law, a material witness may be detained if he has 
relevant information and is a flight risk. DOJ thought that 
Osama Awadallah met these two tests. It didn't seem to me like 
they were going out on much of a limb there. While detained, 
Awadallah was indicted for perjury.
    Judge Scheindlin of the Clinton class of 1994 dismissed the 
perjury charges and released Mr. Awadallah on the street. Her 
reason? She ruled that the convening of a Federal grand jury 
investigating a crime was not a criminal proceeding and, 
therefore, it was unconstitutional to detain Mr. Awadallah.
    This was quite a surprise to prosecutors who, for 30 years, 
had used the material witness law in the context of grand jury 
proceedings for everyone from mobsters to mass murderer Timothy 
McVeigh. So much for following well-settled law.
    If you want to read a good article about this, I would 
recommend the Wall Street Journal's editorial from June 4th 
entitled ``Osama's Favorite Judge.'' It concludes by saying, 
``Mr. Awadallah is out on bail. We wonder how he's spending his 
    Another judge that I expect it was considered by the other 
side to be in the mainstream, Judge Jed Rakoff, one of Judge 
Scheindlin's colleagues, from the Clinton class of 1995, has 
ruled that the Federal death penalty in all applications--in 
all applications--is unconstitutional. Some of our colleagues 
share this position, but that position is at odds with the 
views of a majority of Americans. It is also very clear a 
failure to follow Supreme Court precedent. Indeed, Judge 
Rakoff's ruling was so brazenly violative of the precedent that 
even the Washington Post, which is against the death penalty as 
a policy matter, came out against his decision as ``gross 
judicial activism.''
    In an editorial entitled ``Right Answer, Wrong Branch,'' 
the Post noted that the Fifth Amendment specifically 
contemplates capital punishment three separate times. It then 
noted that the Supreme Court has been clear that it regards the 
death penalty as constitutional. The high Court has, in fact, 
rejected far stronger argument against capital punishment.
    Individual district judges may not like this jurisprudence, 
the Post went on, but it is not their place to find ways 
around. The arguments Judge Rakoff makes should rather be 
embraced and acted upon in the legislative arena. The death 
penalty must be abolished, but not because judges beat a false 
confession out of the Fifth Amendment.
    I also note another editorial from the Wall Street Journal 
entitled ``Run for Office, Judge.'' With respect to Judge 
Rakoff's moderation and fidelity to precedent, the Journal 
says, ``It hardly advances the highly charged debate on capital 
punishment to have a Federal judge allude to Members of 
Congress who support capital punishment as `murderers.' If 
Judge Rakoff wants to vote against the death penalty, he ought 
to resign from the bench and run for Congress or the State 
legislature, where the Founders thought such debates 
    On Tuesday, another Clinton judge, William Sessions of 
Vermont, appointed by the previous President in 1995, issued a 
similar ruling. The rulings of Judges Rakoff and Sessions would 
prevent the application of the death penalty against mass 
murderers like Timothy McVeigh and Osama bin Laden.
    As an aside, I note that the Second Circuit, which reviews 
the rulings of Judges Scheindlin, Rakoff, and Sessions has a 
2:1 ratio of Democratic judges to Republican judges. So for my 
colleagues who are so concerned about a party having a single-
seat advantage on the D.C. Circuit, I assume they recognize the 
need for common-sense conservatives to balance out the Second 
    Another Clinton appointee in 1994, Judge Henry McKay, had 
an interesting theory about a constitutional right to 
transsexual therapy. When Professor Tribe appeared before this 
committee, he implied that a conservative's view of the Eighth 
Amendment proscription against cruel and unusual punishment was 
confined to protecting against the lopping off of hands and 
arms. Well, Judge McKay of the Tenth Circuit has held that it 
is far broader than that. Specifically, a transsexual inmate, 
Josephine Brown, brought a 1983 action against the State of 
Colorado alleging that by not providing female estrogen 
therapy, Colorado had, in fact, punished her and that its 
punishment was of such cruel and unusual nature as to be 
violative of the Eighth Amendment to the Constitution.
    Now, as Judge Henry noted in his opinion, the Tenth 
Circuit, along with a majority of courts, had held that it was 
not an Eighth Amendment violation to deny an inmate estrogen. 
The law of the circuit did not, however, stop Judge Henry, 
although the complaint had three times specified that it was 
the denial of estrogen that was the gravamen of the complaint. 
Judge Henry and two Carter appointees rewrote the complaint and 
reinstated it. So much for judicial restraint and following 
    Various Ninth Circuit appointees, finding the right to 
long-distance procreation for prisoners, and my friends on the 
other side believe very strongly in a living and breathing 
Constitution and that the rule of law should not be confined to 
the mere words of the document and the Framers' intent.
    I was truly surprised, however, to read what a panel of the 
Ninth Circuit had tried to breath into the Constitution. A 
three-time felon, William Gerber, is serving a life sentence 
for, among other things, making terrorist threats. Unhappy with 
how prison life was interfering with his social life, Mr. 
Gerber alleged that he had a constitutional right to procreate 
via artificial insemination.
    A California District judge rejected Mr. Gerber's claim. A 
split decision of the Ninth Circuit, though, reversed. Judge 
Stephen Reinhardt joined President Johnson's appointee Myron 
Bright, and they concluded that, yes, the Framers had intended 
for the right to procreate to survive incarceration.
    In dissent, Judge Barry Silverman, a Clinton appointee, who 
was recommended by Senator Kyl, wrote that this is a seminal 
case in more ways than one because the majority simply does not 
accept the fact that there are certain downsides to being 
confined in prison. One of them is the interference with normal 
family life. Judge Silverman noted that while the Constitution 
protects against forced sterilization, that hardly establishes 
a constitutional right to procreate from prison via FedEx.
    I am getting notes here that I have one minute remaining, 
and I won't take any more than one minute.
    The Ninth Circuit en banc reversed this decision, but only 
barely, and it did so against the wishes of Clinton appointees 
Tashima, Hawkins, Paez, and Berzon, who dissented.
    The point I am trying to make, Mr. Chairman, is mainstream 
is a very, very subjective determination that each of us is 
trying to make here, and what many on the other side might 
consider mainstream, most Americans consider completely out of 
bounds. And so the best way to judge a nominee such as the 
nominee we have before us is on the basis of the 
qualifications, unanimously ``well qualified'' by the ABA, 
supported by Democrats and Republicans, not a shred of evidence 
of any reason not to confirm this nomination. And so I hope Mr. 
Estrada will be rapidly confirmed to a position to which he is 
uniquely qualified.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Senator McConnell. I bet you 
wish that we had spent a little more time learning the records 
of Judge Rakoff and some of the others before we nominated 
    Senator McConnell. Actually, if I might respond, I voted 
for most of these judges. I felt the President should be given 
great latitude. After all, he had won the election, and it 
seems to me that is an appropriate latitude to be given to the 
nominees of President Bush.
    Senator Schumer. You did vote against 12 of President 
Clinton's nominees. I don't know if it was temperament, 
ideology, or what. And the only other thing I would mention is 
that I have supported, and I think this Congress, two of 
President Bush's nominees on the Second Circuit, including 
recently Reena Raggi, who is a conservative.
    We will now go to Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman. I 
don't want to respond to the distinguished Senator from 
Kentucky, but I have a hard time figuring out how a judge 
confirmed in 1984 relates to Mr. Estrada today.
    But, Mr. Estrada, I would like to thank you for spending 
some time with me yesterday. I found it very, very helpful, and 
I wanted to concentrate in two areas. I come from a State that 
is bigger than 21 States plus the District of Columbia put 
together, so there are a lot of people, and I kind of pride 
myself, at least, on knowing where there is a majority of 
opinion. And there is a substantial majority of opinion, I 
believe, that surrounds a woman's right to choose and surrounds 
the right to privacy.
    We had a chance to talk a little bit about this yesterday, 
but I would like to ask your view with respect to a fundamental 
case, and that is the 1973 case of Roe v. Wade when the Supreme 
Court held that the Constitution's right to privacy encompassed 
a woman's right to choose to have an abortion and that 
Government regulations that burdened her exercise of that right 
were subject to judicial scrutiny.
    Do you believe that the Constitution encompasses a right to 
    Mr. Estrada. The Supreme Court has so held, and I have no 
view of any nature whatsoever whether it be legal, 
philosophical, moral, or any other type of view that would keep 
me from applying that case law faithfully.
    Senator Feinstein. Do you believe that Roe was correctly 
    Mr. Estrada. I have--my view of the judicial function, 
Senator Feinstein, does not allow me to answer that question. I 
have a personal view on the subject of abortion, as I think you 
know, and--but I have not done what I think the judicial 
function would require me to do in order to ascertain whether 
the Court got it right as an original matter. I haven't 
listened to parties. I haven't come to an actual case or 
controversy with an open mind. I haven't gone back and run down 
everything that they have cited. And the reason I haven't done 
any of those things is that I view our system of law as one in 
which both me as an advocate and possibly, if I am confirmed as 
a judge, have a job of building on the wall that is already 
there and not to call it into question. I have had no 
particular reason to go back and look at whether it was right 
or wrong as a matter of law as I would if I were a judge that 
was hearing the case for the first time. It is there. It is the 
law as it has subsequently refined by the Casey case. And I 
will follow it.
    Senator Feinstein. So you believe it is settled law?
    Mr. Estrada. I believe so.
    Senator Feinstein. Thank you very much.
    I wanted for a moment to touch on the response you made to 
Senator Schumer's question. As he was answering the question, I 
happened to be reading an article in the Nation magazine, and I 
want to just be sure, because you answered his question about 
whether you screened clerks for Justice Kennedy and prevented 
him from hiring any liberal clerk. You said the answer to that 
was no. I would like to read you a brief couple sentences and 
see if the ``no'' applies to this.
    ``Perhaps the most damaging evidence against Estrada comes 
from two lawyers he interviewed for Supreme Court clerkships. 
Both were unwilling to be identified for fear of reprisal. The 
first told me, and I quote, `Since I knew Miguel, I went to him 
to help me get a Supreme Court clerkship. I knew he was 
screening candidates for Justice Kennedy. And Miguel told me, 
''No way, you're way too liberal.`` I felt he was definitely 
submitting me to an ideological litmus test, and I am a 
moderate Democrat. When I asked him why I was being ruled out 
even without an interview, Miguel told me his job was to 
prevent liberal clerks from being hired. He told me he was 
screening out liberals because a liberal clerk had influenced 
Justice Kennedy to side with the majority and write a pro-gay-
rights decision in a case known as Romer v. Evans, which struck 
down a Colorado statute that discriminated against gays and 
    Did this happen?
    Mr. Estrada. Senator, let me--maybe I should explain what 
it is that I do from time to time for Justice Kennedy. Justice 
Kennedy picks his own clerks. As other judges and Justices, he 
will sometimes ask for help by former clerks with the 
interviewing of some candidates.
    I have been asked to do that from time to time. I do not do 
it every year. I haven't done it for 2 or 3 years now, and 
sometimes I will get a file. It is in the nature of my role in 
the process that I could not do that which is alleged in the 
excerpt that you read since I don't have control over the pool 
of candidates.
    Senator Feinstein. So your answer is that this is false?
    Mr. Estrada. As far as I know, unless it is a very bad joke 
that I've forgotten, the answer is no. As I started telling 
Senator Schumer, I know that I don't do that. I know that 
Justice Kennedy has other people who help him, including my 
former co-worker Harry Littman, who was a U.S. Attorney in 
Pennsylvania who was appointed by former President Clinton, and 
who is a Democrat. I know that that is not what Justice Kennedy 
does. And I know that I personally, as I started to say to 
Senator Schumer, have from time to time, even though my role is 
simply to take people that he sends me to interview and give 
him my comments for his consideration, from time to time I have 
met an exceptionally bright lawyer who I think warrants his 
attention and whose application otherwise may not have come to 
his attention. And I think I have probably put the effort of 
interjecting myself into this process in that fashion twice in 
my life. One of them was for a young woman who I knew for a 
fact was a Democrat and who is currently working for Senator 
Leahy. And I thought very highly of her, and I spent a lot of 
my time telling Justice Kennedy of what a high view I had of 
her talents and why he should hire her.
    Senator Feinstein. No, I just wanted to ask that question 
because since you answered Senator Schumer's question no, I 
wanted to corroborate that this incident was a false incident, 
and you have effectively said to me it was a false----
    Mr. Estrada. Yes, I mean----
    Senator Feinstein. It did not happen.
    Mr. Estrada. As you read it, Senator Feinstein, the only 
thing that I could think is that it has--that if I said 
anything remotely on that subject that is anywhere near--within 
the same solar system even, it could only have been a joke. It 
was not--it is not what I do for Justice Kennedy.
    Senator Feinstein. Right, right. I understand.
    Now, your case is a little different because you have been 
a very strong advocate in the sense as a U.S. Attorney, you 
have represented private clients. I don't really judge from the 
representation of a private client your personal philosophy 
necessarily, but I can make a judgment as to whether you are a 
competent attorney. And you certainly are that and certainly 
have the potential even, I think, of brilliance. I think that 
is is clearly there. And I happen to believe it is desirable to 
have brilliant people, if we can, as Federal judges.
    You know, many people have looked back and seen people who 
were advocates become judges and really change, really become 
wise, prudent, temperate. They have seen people do things. 
Certainly Earl Warren led the Court. He was a Republican 
Governor of my State. He led the Court in a unanimous decision 
that segregation was unconstitutional. And I think he is well 
respected for that historically, well respected for his 
    You do not have a judicial record, so for me, I can't make 
a judgment of whether you would follow the law or not. So I 
have got to kind of try in different areas.
    I was interested in your answer to Senator Kohl's case with 
respect to the Lopez case. The Lopez case struck down a law 
regulating guns near schools based on the argument that 
Congress had overstepped its bounds. And for many of us, this 
question might be appropriate in judging you.
    To what extent do you believe that Congress can regulate in 
the area of dangerous firearms, particularly when those weapons 
travel in interstate commerce, when they affect commerce and 
tourism, and when they have such a devastating impact on the 
children of this country?
    Mr. Estrada. Senator, as I recall, I haven't looked into 
the area of guns and commerce since the Lopez case. I do recall 
that there is still another case, a pre-Lopez case that, as I 
sit here and I try to think about, I am pretty certain was not 
called into any question by the court in Lopez itself, a case 
by the name of, I think, Scarborough v. United States, where 
the court ruled that if a statute passed by Congress in the 
area of gun control--and I think in that case it was the Gun 
Control Act of 1968--has a jurisdictional element that attaches 
to the crime, that that is all right under the Commerce Clause. 
As I recall the Scarborough case, what the court ruled is that 
if the Government were to prove that the firearm had at any 
time in its lifetime been in interstate commerce, even if that 
had nothing to do with the crime at issue, that that would be 
an adequate basis for the exercise of Congress' power.
    I haven't looked at the case law, and I suppose if I had 
something that I had to rule on, I would have to. But my best 
recollection, as I sit now, is that the court left standing the 
Scarborough rule and that that's still good law that I would, 
of course, follow.
    Senator Feinstein. Thank you very much. My time is up.
    Senator Schumer. Thank you, Senator.
    Thank you, Mr. Estrada. It has been a--we have been here 
close to 3 hours, and we are going to take a one-hour break for 
lunch, and we are going to resume at 2:00.
    Mr. Estrada. Thank you, Senator.
    Senator Schumer. Thank you.
    [Whereupon, at 1:01 p.m., the committee recessed, to 
reconvene at 2:00 p.m., this same day.]
    AFTERNOON SESSION [2:14 p.m.]
    Senator Schumer. Ladies and gentlemen, the hearing will 
come to order.
    Actually, since Senator Feinstein was the last questioner, 
we are really up to a Republican. But as you can see, they have 
no questions to ask you, Mr. Estrada.
    Mr. Estrada. Senator Schumer, in relation to the last 
question that Senator Feinstein did ask me, there is something 
else I want to say about it, if I could.
    Senator Schumer. Please.
    Mr. Estrada. This goes to the question that you asked me, 
and as I----
    Senator Schumer. Which question? Let's just be----
    Mr. Estrada. Both your question and her question in 
relation to the hiring of clerks for Justice Kennedy and what 
my role is.
    Senator Schumer. Yes.
    Mr. Estrada. And I realized as I was trying to drink my 
Coke that as she read a statement from a magazine which 
contained an implicit--I guess I will call it an assumption 
that I should have challenged out of deference and respect for 
Justice Kennedy.
    Justice Kennedy is one of my mentors, and I have a great 
deal of personal affection for him. I would not want anybody to 
think that this man, who is at the pinnacle of his legal life, 
is a dupe who can be sort of moved one way or another by 22-
year-olds. When I was his law clerk, I knew him as a man who 
knew his own mind, and when I have some role in talking to 
possible law clerk candidates for him, my view is to look for 
somebody who will work well with him and who will do his 
bidding after he comes to his own judgment.
    And I mention that last point because I also----
    Senator Schumer. I don't think anything you said before 
when you answered explicitly to me and then the same way to 
Senator Feinstein contradicted that in any way. You are welcome 
to make the record clear.
    Mr. Estrada. Right. But I also want to make clear that, as 
I thought about that and that premise, there is a set of 
circumstances in which I would consider somebody's ideology, if 
you want to call it that, in trying to interview somebody for 
Justice Kennedy, whether on the left or on the right. And that 
is to say, if I thought that there was somebody who had views 
that were so strongly held on any subject, whether, you know, 
the person thinks that there ought not to be the death penalty 
or whether the person thinks that the income tax ought not to 
be constitutional or anything, if I think that the person has 
some extreme view that he will not be willing to set aside in 
the service of Justice Kennedy, I would make sure that Justice 
Kennedy would know that. And I guess it is possible for 
somebody to think that he was turned down in a sense on the 
basis of his politics. But that would not be the case. It would 
be on the basis of a judgment that whatever class of politics 
he might have, he would not be willing to put him aside in the 
service of the Justice.
    Senator Schumer. Well, okay. That is understood. That is 
not the question I had asked you, as you know.
    Mr. Estrada. Right. But as I thought about the number of 
times that I--that you asked your question, I wanted to make 
sure that I was not understood as saying that I have not taken 
the ideology of somebody into account, because from time to 
time I do interview somebody who's 22 or 23 who has some very 
strongly felt views about how the world ought to run, and if 
those views are based on a political world view, whether it be 
left or right, that he would not be willing to put aside in the 
service of Justice Kennedy, I would consider that as a very 
strong point for why the Justice ought not hire----
    Senator Schumer. Let me just repeat the question, though. 
Have you ever told anyone--I want to ask it again--that you 
would not--I am going to read you the exact question I asked 
you this morning. Have you ever told anyone that you do not 
believe any person should clerk for Justice Kennedy because 
that person is too liberal, not conservative enough, because 
they didn't have the appropriate ideology, politics, or 
judicial philosophy, or because you were concerned that person 
would influence Justice Kennedy to take positions you did not 
want him taking?
    Now, you answered that unequivocally no to me earlier this 
morning. Has that answer changed?
    Mr. Estrada. No, it has not.
    Senator Schumer. Okay.
    Mr. Estrada. If we understand that the explanation that I 
just gave does apply to it.
    Senator Schumer. But you would still say no to that 
specific question, whatever you added later.
    Mr. Estrada. Subject to the caveat that if I have concluded 
that somebody has strongly held views of the left or of the 
right that would make him unsuitable as a law clerk for Justice 
Kennedy because he would not then follow the Justice's wishes 
and instructions, it is possible, I suppose, that I could have 
said that that was the reason----
    Senator Schumer. No, wait. I am getting a little confused 
    Mr. Estrada. I just want to make sure that I understand the 
    Senator Schumer. The question is pretty clear. It is the 
same exact question I asked this morning. Have you ever told 
anyone that you do not believe any person should clerk for 
Justice Kennedy because that person is too liberal, not 
conservative enough, because that person did not have the 
appropriate ideology, politics, or judicial philosophy, or 
because you were concerned that person would influence Justice 
Kennedy to take positions you did not want him taking? That is 
a yes-or-no question. That is not speculative about your 
    Mr. Estrada. Well, and my answer is I have taken into 
account the ideological leanings of a potential law clerk only 
when it appears to me--and this is something that I don't have 
a final say on, but I do tell Justice Kennedy--that this person 
has a strongly held view on a subject that he would not be 
willing to put aside in the service of the Justice.
    I mean, sometimes--this is why I am concerned about 
understanding what the question is exactly.
    Senator Schumer. The question is very clear.
    Mr. Estrada. And I'm hoping that it----
    Senator Schumer. The question is not what your thought 
process is. Sir, you are as good a lawyer as I am, probably 
much better. The question did not ask your thought process. The 
question did not ask did you recommend or not recommend people. 
It said--and I will give you one more chance if you want to 
retract your answer this morning, which you twice today did 
not, this afternoon did not, and you brought this subject up, I 
didn't, this afternoon.
    Have you ever told anyone that you do not believe any 
person should clerk for Justice Kennedy because that person is 
too liberal, not conservative enough, because that person did 
not have the appropriate ideology, politics, or judicial 
philosophy, or because you were concerned that person would 
influence Justice Kennedy to take positions you did not want 
him taking? Yes or no.
    Mr. Estrada. I am concerned, Senator, about the compound--
the compound aspect of the question.
    Senator Schumer. It is ``or.'' It is ``or.'' It would be 
any of those.
    Mr. Estrada. All right. Now that you have drawn that to my 
attention, it is possible that interviewing a candidate--I 
can't think of any now, but it is possible that I may have come 
to the conclusion that the person's ideology was so strongly 
engaged in what he thought as a lawyer that he would not be 
able to follow the instructions in the chambers as set forth by 
Justice Kennedy.
    Senator Schumer. How many times did you do that?
    Mr. Estrada. I cannot think of any single example now.
    Senator Schumer. You cannot.
    Mr. Estrada. But it is one of the aspects that I would 
explore in trying to find whether the law clerk candidate was 
suitable for Justice Kennedy. I can't--I don't have a number in 
my head as to the number of candidates whom I've interviewed 
over the years. I cannot think of an example right now.
    Senator Schumer. Okay.
    Mr. Estrada. But as I listened to the list of categories 
separated by the ``or,'' it occurred to me that I had not 
sufficiently focused on whether I had told somebody that it was 
because of ideology. And I can think of a circumstance in which 
I might.
    Senator Schumer. Ideology, or it is so far over that they 
wouldn't obey the opinions? Now you are saying two different 
things again.
    Mr. Estrada. I thought I was saying the same thing, Senator 
Schumer. I'm sorry. I was saying if I made a judgment that the 
person had a strongly held ideological view of subject ``x'' 
that he would not recognize his appropriate role as a law clerk 
following the instructions of Justice Kennedy and to help him 
get his work done, if I thought that that was the case, and if 
the reason was his ideology, I mean, I would think that I would 
have told Justice Kennedy for a person. It is possible that I 
may have told somebody else since when he--this is actually the 
area of my concern. I speak to Justice Kennedy about these 
issues. Obviously, I tell him my impressions of what I think of 
the candidates. If the impression is this person has a deeply 
committed view that the death penalty never should be applied 
and Justice Kennedy is the circuit Justice for a death circuit, 
all of the States in the circuit for which he is a circuit 
Justice have the death penalty, as I recall. This is somebody 
who would not be a very useful law clerk for Justice Kennedy.
    It is possible in talking to the Justice--I don't recall 
all of my conversations with him--that I would have said this 
person is an ideological opponent of the death penalty. And, 
therefore, if you take that as an example, i.e., my conclusion 
that the person would not follow the instruction of the 
Justice, I would have said what your question said. It is 
possible as well that in talking with some of the former law 
clerks who do this for Justice Kennedy who are, as I pointed 
out earlier, both Democrats and Republicans, that I would have 
said something of that nature.
    So that as I parse through the wording of the question, it 
occurs to me that without the qualifier, I can't give you an 
unqualified answer. I mean, I can tell you and assure you that 
I do not view it as my job, and I think it would be insulting 
to the Justice, to try to find law clerks of a particular 
political persuasion because that is not what I try to do to 
him. I'm trying to help him, not to hinder him.
    Senator Schumer. Okay. Senator Feingold has to go. I want 
to come back to this in a little bit.
    Senator Feingold. Thank you, Mr. Chairman. And welcome to 
the committee, Mr. Estrada.
    Between August 1992 and December 1995, the police in 
Chicago arrested more than 42,000 people and issued more than 
89,000 dispersal orders pursuant to an anti-loitering statute, 
ostensibly targeted at gang members. The statute was challenged 
and was found to be unconstitutional in both the Illinois 
Supreme Court and again in the United States Supreme Court.
    You filed an amicus brief on behalf of a number of groups 
in support of the statute, and you argued in favor of it on the 
radio. I happen to believe that the United States Supreme Court 
got it right when it struck down the statute for being 
unconstitutionally vague.
    As the Court noted, under the statute, even if a gang 
member and his father are loitering near Wrigley Field to see 
Sammy Sosa leaving the ballpark, if the purpose of the father 
and son is not apparent to an onlooking police officer, the 
officer shall order them to disperse and perhaps even arrest 
    The breadth of the ordinance that you defended troubles me 
as it allowed the police almost unfettered discretion that 
could be used to literally pick on people an officer might not 
    What is your response to the concern that was expressed 
about the effect of this kind of ordinance on the spirit of the 
community? In arresting over 42,000 people in 3 years, didn't 
the police teach the youth of the community that sitting in a 
park while dreaming of the future or chatting on a street 
corner with a friend might get them arrested and locked up with 
a criminal record?
    Mr. Estrada. Senator, we're talking about the ordinance 
that was passed by the city of Chicago in 1992, and as you 
know, that was passed--that was an ordinance that had a great 
deal of community support in the city and the support of Mayor 
    Before the case got to the Supreme Court, it had been, as 
you mentioned, in the State courts of the State of Illinois, 
and one of the key rulings in the case was made not by the U.S. 
Supreme Court but by the Supreme Court of Illinois which 
interpreted the language in the ordinance very--very broadly.
    Part of the argument that I was trying to persuade the 
Court to accept was the proposition that the Illinois Supreme 
Court read the ``no apparent purpose'' section of the ordinance 
a little bit too broadly in the sense that if you read it as a 
common-sense fashion, it was clear that what the City Council 
meant was for no apparent purpose other than to engage in gang 
activities. And that was the view of the ordinance that was 
also taken by the Solicitor General's office in the Clinton 
administration, which filed a brief on the same side I did, and 
I think by 31 States of the Union.
    When the case got to the Supreme Court because of the 
limited power of the Supreme Court of the United States, the 
majority of the Court felt bound to accept the construction of 
the statute as tendered by the highest court of the State and, 
therefore, read it, read that language without the common-sense 
    There was no opinion for the Court on the controlling 
points, on the Supreme Court of the United States. The decisive 
votes were cast by Justices O'Connor and Steve Breyer, and they 
wrote separately in an opinion to point out that the outcome of 
the case turned on the construction given by the State courts 
to that language and that the language could have been more 
narrowly construed and probably would have been okay.
    Senator Feingold. Well, let me just comment. When I read 
that there were over 42,000 arrests for loitering, I did become 
concerned that the statute might be working too well, and the 
Supreme Court of Illinois said, ``The ordinance provides such 
ambiguous definitions of its elements that it does not 
discourage arbitrary, discriminatory enforcement.'' So 
obviously I am troubled by your defense of the statute, but I 
heard your answer.
    Let me ask a different kind of question about this. The 
vast majority of law enforcement officers put their lives on 
the line every day to protect all of us, and, of course, they 
discharge their duties honorably. But we also know that in some 
cases there are officers who do not. We have all heard about 
the beating of Rodney King in California, the racial profiling 
of the New Jersey State troopers, and the abuse of Abner Louima 
in New York. We sometimes forget these are not the only 
incidents of misconduct.
    Last year, the Department of Justice Civl Rights Division 
Criminal Section received over 10,000 complaints, most of them 
concerning law enforcement misconduct that resulted in about 
2,500 FBI investigations. So I was a little surprised to learn 
that during your appearance on the radio show ``Justice 
Talking'' in 1999, you stated the following, ``There is no 
question in my mind that the country has changed quite a great 
deal in the last 30 or 40 years and that we have somewhat fewer 
worries now about interracial interactions between members of 
white PD and minority members of the public.''
    Do you really believe that racial profiling and racially 
motivated law enforcement misconduct are no longer problems in 
this country today?
    Mr. Estrada. No, I do not. I am--I will once again 
emphasize--inalterably opposed to any sort of race 
discrimination in law enforcement, Senator, whether it's called 
racial profiling or anything else. The comment that you make, 
as you point out, was in the context of pointing out that these 
were laws that had been put on the books with significant 
support from minority communities, people that felt that the 
presence of a visibly lawless element of gang members dealing 
drugs and engaging in other types of similar activity was 
something that ought to be addressed by the City Council.
    I know full well that we have real problems with 
discrimination in our day and age, but I also know that as I 
was a young child growing up in a foreign country, there were 
clips that the local TV station had to illustrate what the 
racial situation was in the United States. And for some reason, 
they always chose to pick those sad days where you had the law 
enforcement officers with fire hoses and dogs coming after the 
members of minority communities. And I know that that is in the 
recent past, and I think we have to go much farther. But I 
think thinking about that and thinking about where we are now 
and how far we have come, I couldn't help but point out in that 
radio broadcast that as many problems as we may have now, we 
have sure come a long way. And when we have people of all 
racial backgrounds telling their elected representatives that 
gangs are a problem and that they don't feel safe in the 
streets, there ought to be lawyers who are willing to go into 
court and make sure that all of the appropriate, ethically 
reasonable legal arguments that could be said in defense of the 
popular judgment are tendered to the court.
    Senator Feingold. I appreciate your observation. I have got 
to tell you, though, that based on what my constituents have 
told me, I am not at all sure that African Americans and 
Hispanic Americans in my State feel as comfortable today as 
they might have 30 years ago with law enforcement. I suppose it 
could depend on the part of the country, but the issue of 
racial profiling I think is very much on the minds of many 
people in our country, and I know that your comments about 
having fewer worries must mean that you still take that into 
account, because I think it is a severe problem that frankly 
needs legislative attention as well as the enforcement of 
current law.
    When you appeared on ``Justice Talking,'' you were debating 
the validity of the law with Harvey Grossman, who also happened 
to live in one of the Chicago neighborhoods affected by the 
law. You said, ``One of the things that we do as a society by 
reason of being a democracy is that we vote on what we think is 
a good idea, see if it works, and if it doesn't, then we scrap 
it. But what we do not do is take the person that lost all of 
his arguments in the debate and try to bring the courts to 
trump on his side.''
    I would like you to explain that comment. I believe that 
the President of the United States and this Congress have a 
very important function. I also believe that our Constitution 
ensures that just because Congress passes a law that the 
President then signs, it does not mean that opponents of that 
law cannot bring a challenge in court if they believe they have 
a valid argument. I just passed a law where that is happening 
every day. In fact, one of the primary roles of the court 
system is to protect, as Alexis de Tocqueville once said, 
against the tyranny of the majority.
    Correct me if I am wrong, but didn't the opponents of this 
law merely carry out their civic duty in challenges the statute 
in court? Do you believe the court should be open to 
individuals who believe their rights are being violated by 
Government action?
    Mr. Estrada. Absolutely, Senator. And the statement that 
you quoted I think does reflect what I think is an appropriate 
balance, whether the body that has passed the law is a city 
council or whether it is this Congress. If I am sitting as a 
judge, if I am fortunate enough to be confirmed, I have to take 
into account, when the challenge comes into the courtroom, the 
proposition that laws come to courts with a presumption of 
    Senator Feingold. But then why did you feel in this case 
that the thousands of people who were arrested and the National 
Black Police Association and the Hispanic Law Enforcement 
Association were wrong to use the courts to challenge the 
constitutionality of the statute?
    Mr. Estrada. The point I was making, Senator Feingold, is 
that I thought that many of the arguments being urged for the 
proposition that we ought not to have this ordinance were more 
of a legislative character than of a judicial character, which 
is not to say that they were not good arguments or that they 
were not arguments that reasonable people could make. But in 
the context of a debate in the radio where we were not arguing 
the case in court, many of the arguments being made were 
perfectly reasonable things for people to say, but were the 
sort of things that are usually given to legislative bodies and 
not to courts.
    I, of course, adhere to the view that anybody who thinks 
that his rights have been violated, whether under a 
Constitution or a statute, has a legal right to go into court 
and every expectation of finding a judge who will take his 
claim seriously.
    Senator Feingold. Thank you, Mr. Estrada.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you.
    Before we go to the next witness, since you had opened this 
up again, Mr. Estrada, I want to clarify this, because I am 
unclear and this was in reference to a question you had that I 
had asked you. I am going to read you the passage from the 
Nation magazine. Please listen carefully and I will read any 
part you want again.
    It said, ``Perhaps the most damaging evidence against 
Estrada comes from two lawyers he interviewed for Supreme Court 
clerkships. Both were unwilling to be identified by name for 
fear of reprisals. The first told me, `Since I knew Miguel, I 
went to him to help me get a Supreme Court clerkship. I knew he 
was screening candidates for Justice Kennedy. And Miguel told 
me, ''No way, you're way too liberal.`` I felt he was 
definitely submitting me to an ideological litmus test, and I 
am a moderate Democrat. When I asked him why I was being ruled 
out without even an interview, Miguel told me his job was to 
prevent liberal clerks from being hired. He told me he was 
screening out liberals because a liberal clerk had influenced 
Justice Kennedy to side with the majority and write a pro-gay-
rights decision in a case known as Romer v. Evans, which struck 
down a Colorado statute that discriminated against gays and 
    Which parts of that statement are false? All of it? You 
said all of it earlier today.
    Mr. Estrada. I don't have any reason to think that any part 
of it is true, Senator. But what I am saying is I don't know 
any of the circumstances of what the actual interview was and 
what people take away from it, and what they think they recall 
is not necessarily what I thought actually happened.
    My concern is I am certain that I have never used an 
ideological test to screen anybody for Justice Kennedy.
    Senator Schumer. Then you couldn't have said, ``No, you're 
way too liberal,'' right?
    Mr. Estrada. Unless I knew the person through an interview 
or some other interaction and I knew that he had an ideological 
commitment to some issue----
    Senator Schumer. Well, wait a second----
    Mr. Estrada.--that would make him an unsuitable law clerk.
    Senator Schumer. This morning, I asked you a question about 
that. You denied it unequivocally. Senator Feinstein went over 
it 2 hours later, read you this very passage, and you denied it 
unequivocally. Are you changing your answer now? Did you say, 
yes or no, to this clerk, ``No way, you're way too liberal''? 
You have denied that twice.
    Mr. Estrada. Senator, I am certain that I never said that 
    Senator Schumer. Thank you.
    Mr. Estrada. But I will not--but I have to tell you that it 
is possible that I said to somebody, including Justice Kennedy, 
Mr. ``X'' has an ideological view of this area of the law and, 
therefore, he would be unsuitable.
    Senator Schumer. That is not the question I--I didn't ask 
you what you said to Justice Kennedy. You did not also say--you 
didn't tell this interviewee that you didn't like liberals--you 
didn't like it that a liberal clerk influenced Justice Kennedy 
to side with the majority and write a pro-gay-rights decision 
in Romer v. Evans?
    Mr. Estrada. Senator, I am certain that I don't know who 
was working for Justice Kennedy when Justice Kennedy had that 
case in front of him----
    Senator Schumer. I didn't ask you that question, sir. I 
asked you if you said--you are a very accomplished man. You 
know the question I have asked. I said to you, Did you say to 
this clerk--did you talk to him that you didn't like the fact 
that a liberal clerk had influenced Justice Kennedy to side 
with the majority and write a pro-gay-rights decision in a case 
known as Romer v. Evans? Yes or no. This does not take a 
peroration. This takes a yes or no answer if you are being 
truthful with this committee.
    Mr. Estrada. The best I can tell you----
    Senator Hatch. Now, wait a minute. Mr. Chairman----
    Senator Schumer. Please let him answer.
    Senator Hatch. Wait a minute, Mr. Chairman----
    Senator Schumer. This question was brought up earlier 
    Senator Hatch. I understand, but let me----
    Senator Schumer.--and Mr. Estrada had suggested that he 
wanted to speak about it again. I want to clarify that, and 
then you can come back as soon as I am finished clarifying.
    Senator Kennedy. Let's let the witness answer.
    Senator Schumer. I asked a yes or no question.
    Senator Hatch. That is not a yes or no question.
    Senator Schumer. Yes, it is.
    Senator Hatch. That is the problem. It is a very unfair 
question. First of all----
    Senator Kennedy. Let the witness answer.
    Senator Hatch.--the person isn't know. He is anonymous. 
Now, we have a rule in this committee that we have always 
abided by. Senator Biden was one of the chief enforcers of it. 
I agree with it. You don't confront a person with anonymous 
statements that are from one side of a person's mouth that he 
doesn't seem to recall----
    Senator Schumer. He answered----
    Senator Hatch.--and take advantage of him that way. I think 
it is wrong.
    Senator Schumer. Let me say that this morning when asked 
this question, Mr. Estrada didn't say, ``I don't know the 
person,'' didn't say, ``I am not sure.'' He said no.
    I am asking again--okay? Did you say to this--any clerk--it 
doesn't matter who it is----
    Senator Hatch. This anonymous person.
    Senator Schumer. That is correct. It is written in an 
article here. Maybe the article is wrong. But I think this 
    Senator Hatch. The point is maybe the characterization----
    Senator Schumer. My friend----
    Senator Kennedy. Let him answer the question.
    Senator Schumer. I think the committee is entitled to an 
    Senator Hatch. Let's be fair about it.
    Senator Schumer. We are----
    Senator Hatch. Let's not just take advantage of an 
unsolicited, I think improperly--improper question about an 
unknown person----
    Senator Schumer. Okay. Well, the record----
    Senator Hatch.--that we have never done before in this 
    Senator Schumer. We have done it----
    Senator Hatch. If you have got a person, have him come out 
and say what he has to say, then we will find out what he did 
or didn't say to him.
    Senator Schumer. Let me repeat my question.
    Did you say to any law clerk that you were upset because a 
liberal clerk had influenced Justice Kennedy to side with the 
majority and write a pro-gay-rights decision in a case known as 
Romer v. Evans?
    Mr. Estrada. Senator Schumer, what I've been trying to say 
is that I don't know every conversation I had with every human 
being in my life. And the statement that you're reading comes 
from a magazine that says that this is a person that I 
interviewed who I don't--you know, I have no idea who this 
person could be. I don't know what the circumstances could be. 
And as I said to Senator Feinstein this morning, conceivably I 
could have said something like that in the nature of a joke. 
And in answer to your question, I already--I don't know the 
circumstances. And I'm----
    Senator Schumer. Are you retracting your answer this 
morning that you said no?
    Mr. Estrada. I said to Senator Feinstein, as I recall, 
Senator Schumer----
    Senator Schumer. No, to me in my question. I asked you a 
general question but related to that, and you said no.
    Mr. Estrada. And that is part of what I brought up, and as 
I said earlier today, after you highlighted the disjunctives in 
your question, including telling any person who is a living 
person whether I had considered the issue of ideology, I would 
have to change my answer. Frankly, I have not focused on the 
disjunctives in your question because, as I explained to you, 
it is sometimes appropriate for me to advise the Justice that 
somebody has an ideological view of the law that would make him 
a bad law clerk.
    With respect to the Nation excerpt that you just quoted, I 
think the first time I heard it this morning was when Senator 
Feinstein read it to me. And my best and only answer to that is 
it is not the type of thing I would say seriously. And I have 
no reason to think I ever said it to anybody. But I don't know 
the circumstances because it is a statement that I said to 
somebody at an unknown time in an unknown place, when I don't 
know who the person is that I said something, and I just don't 
have that sort of memory.
    Senator Schumer. Well, but in all due respect, sir, twice 
when asked right on point this morning, you said no, and I 
think we have some credibility problems here.
    Mr. Estrada. Well, if I did that----
    Senator Hatch. Come on.
    Senator Schumer. I am going to call on Senator Edwards.
    Senator Hatch. Gee whiz.
    Senator Schumer. Senator Edwards?
    Senator Edwards. If you want to give Senator Hatch a 
    Senator Schumer. Oh, did you want to--go ahead, Senator.
    Senator Hatch. I do, but I am going to defer to Senator 
Edwards. But I just--well, if you would just yield to me for 
this one statement.
    Senator Schumer. Please.
    Senator Hatch. You know, this is really offensive. In all 
honesty, he is being very badly treated by this committee. And 
I think he is one of the few who has ever come before the 
committee who has had this type of treatment. Now, I get back 
to Senator Biden's comment, and here is what he said. He said, 
``It is my hope and expectation that a thorough hearing, 
continued investigation and hearing can be completed and that 
we will not--my expectation, we will vote on Tuesday night at 6 
o'clock.'' This is all a quote. ``But let me conclude by 
suggesting once again, the nominee has the right to be 
confronted by his accuser. So any accusation against any 
nominee before any committee which I chair that is not able to 
be made public to the nominee will not be known to the Senate 
unless the individual wishes to do it all by themselves. Then 
it's known to the nominee. This is not a star chamber.''
    Now, I think, you know, there is a question of fairness 
here, and to say there is a question of credibility because he 
doesn't know who in the world you are talking about--he has 
probably talked to hundreds of people, and you don't know how a 
person has characterized the meeting from their perspective, 
and I think it is very unfair to expect him to confront 
somebody that isn't known. And that has always been the rule of 
this committee, as far as I know. It wasn't just Senator Biden 
speaking there. We have all tried to abide by that rule.
    Now, I will be glad to ask some questions after Senator 
    Senator Schumer. Yes, I would simply say that I think the 
question was completely in bounds. It was not a surprise 
question. It was in a published magazine article. And----
    Senator Hatch. So what?
    Senator Schumer. And I think it is a fair question because 
the whole issue we are discussing here is--one of the issues we 
are discussing are the views of the nominee, how much ideology 
matters. He has said now that he would recommend to Justice 
Kennedy that certain people's ideology kept them off limits.
    Senator Hatch. When they are extreme.
    Senator Schumer. Exactly.
    Senator Hatch. That is what all of us would----
    Senator Schumer. So it does matter----
    Senator Hatch. We would follow that, every one of us.
    Senator Schumer. And I think that it was--I think these 
questions are on point, particularly in light of the fact that 
the record is so--we don't have much of a record.
    But let me go to Senator Edwards.
    Senator Edwards. Thank you, Mr. Chairman.
    Good afternoon, Mr. Estrada.
    Mr. Estrada. Good afternoon, Senator.
    Senator Edwards. I have a couple of areas I would like to 
ask you about. I think this general debate that you had in 
Chicago has been talked about some already, but let me use some 
language that you used. You said to the lawyer that you were 
debating that he should--and I think I am quoting you now 
correctly. Please correct me if I am wrong--that he should 
explain exactly what words in the Constitution as opposed to 
his own inclinations say that the city can't do this. I just 
want to take that quote for a minute and ask you about a couple 
of specific examples.
    In 1963, as you well know, the United States Supreme Court 
unanimously said that Earl Gideon could not be--he was a poor, 
an indigent man, couldn't be sentenced to 5 years in jail 
unless he was offered a lawyer. Can you tell me, to use your 
language, exactly what words in the Constitution created that 
right for Earl Gideon.
    Mr. Estrada. Yes, Senator. I think as the Court explained 
in the opinion, the Sixth Amendment gives the right in all 
criminal prosecutions to the accused to have the assistance of 
    Senator Edwards. But what words in the Constitution said 
that he was entitled to that right and to have it paid for by 
the Government, which I believe is what the decision said?
    Mr. Estrada. Well, that's what the Court said in the Gideon 
case. It----
    Senator Edwards. What words--I'm sorry. I didn't mean to 
    Mr. Estrada. To have the assistance of counsel.
    Senator Edwards. Right. What words in the Constitution 
created that right?
    Mr. Estrada. The words I just quoted from the Sixth 
    Senator Edwards. Okay. And to be paid for by the 
Government, where does that right come from?
    Mr. Estrada. Well, the Court reasoned in the Gideon case 
that if you have the right to have the assistance of counsel 
and you cannot afford it on its own, since this is a 
Constitution that does give you the right, the government that 
is bound by that Constitution must make sure that you have the 
right that the Constitution gives you and, therefore, pay for 
that lawyer.
    Senator Edwards. The language of the Constitution refers to 
the right to counsel, not to the right to have that counsel 
paid for by the Government, if I am not mistaken. Is that 
    Mr. Estrada. I don't know that I can do justice to this 
issue which took several pages in the Gideon case. I frankly 
have always taken it as a given that that's the ruling in the 
Gideon case and have never, as an academic exercise, gone back 
and looked at all of the possible arguments or even any of the 
briefs in the case.
    I take that as a given that the Court ruled that the Sixth 
Amendment does require governments to pay for counsel for 
indigent defendants, as I recognize that the Supreme Court has 
said in numerous occasions in the area of privacy and elsewhere 
that there are unenumerated rights in the Constitution. And I 
have no view of any sort, whether legal or personal, that would 
hinder me from applying those rulings by the Court. But I think 
the Court has been quite clear that there are unenumerated 
rights in the Constitution. In the main, the Court has 
recognized them as being inherent in the right of substantive 
due process and the Liberty Clause of the 14th Amendment.
    Senator Edwards. The reason I ask you about that I 
understand that that has been the interpretation of the Supreme 
Court, but you used the specific language in your interaction 
during this debate that you asked your opponent to say exactly 
what words in the Constitution, and as I guess you well know, 
Mr. Estrada, in the Gideon case and Miranda, for example, 
another important United States Supreme Court decision, there 
are no exact words, to use your language, in the Constitution 
that says there is a right to remain silent, that there is a 
right--all the rights that are enumerated in Miranda. The same 
thing which you just made reference to would be true in the 
decision of Roe v. Wade, which created a constitutional--
recognition of a constitutional right to a woman's right to 
    Now, all those are cases where the exact language of the 
Constitution didn't create those rights. You would acknowledge 
that, I assume?
    Mr. Estrada. Well, I mean, I don't know that I have gone 
back and looked at each of the examples that you cited, but I 
do acknowledge that at least it is true of the Roe line of 
cases and others, some of them similar and some others in other 
areas, that the Supreme Court has repeatedly recognized that 
there are unenumerated rights in the Constitution.
    It is also the case that a judge who is engaged in the 
judicial function by coming to a case of this type must, of 
course, weigh the language of the Constitution. The 
Constitution is a fairly old document, and that is relevant to 
our purposes because we have some 535, if not 540, volumes of 
Supreme Court cases which, if they haven't answered every 
question under the Constitution, they have certainly mapped out 
major areas and given those answers to many of the details.
    And I would not want to have this question in the abstract 
without making clear that in my view, of course, I was not 
saying in this radio debate that the appropriate conduct for 
courts is to be guided solely by the bare text of the 
Constitution, because that is not the legal system that we 
have. I do recognize that if you are talking about the role of 
courts as opposed to people that go on NPR and have a debate on 
an issue of policy, courts are required to consider not only 
the text of the document but the 530-odd volumes of Supreme 
Court cases. There are lower court cases. There are 
contemporaneous and later documents. This is a whole host of 
interpretive aids, tenets of construction that they're on the 
answer, on the right answer to a case like Gideon. And so 
that's why I don't want to give the impression that I was 
giving a recipe for how courts might go about their business 
because that is not what I think.
    Senator Edwards. Are you a strict constructionist?
    Mr. Estrada. I am a fair constructionist, I think.
    Senator Edwards. Do you consider yourself a strict 
    Mr. Estrada. I consider myself a fair constructionist. I 
mean, that is to say, I don't think that it should be the goal 
of courts to be strict or lax. The goal of courts is to get it 
right. And that may be in some cases to interpret the text as 
it is written because other consideration of every element of 
help that there is to give the text meaning tells us that that 
is what the lawmaker intended. But it may be appropriate to 
give it a more general construction. I think we can have laws 
and constitutional text of both types. It is not necessarily 
the case in my mind that, for example, all parts of the 
Constitution are suitable for the same type of interpretive 
    Senator Edwards. Excuse me. I am sorry. I didn't mean to 
interrupt you.
    Mr. Estrada. No, no.
    Senator Edwards. Were you finished?
    Mr. Estrada. The example I was going to give is, you know, 
the Constitution says, for example, that you must be 35 years 
old in order to be our Chief Executive. There is not a lot of 
hard study that has to go into figure out whether somebody is 
in compliance with the 35-year-old requirement. You can read it 
and say I am 40 and I can run.
    There are areas of the Constitution that are more open-
ended, and you adverted to one, like the substantive component 
of the due process clauses, where there are other methods of 
interpretation that are not quite so obvious that the Court has 
brought to bear to try to bring forth what the appropriate 
answer should be.
    Senator Edwards. Let me ask the same question a little 
differently. The President gave a speech last night at a 
fundraiser where he referred specifically to your nomination, 
among others. And he said, ``For a stronger America, we need 
good judges. We need people who will not write the law from the 
bench, but people who''--and I am quoting him now--``strictly 
interpret the Constitution.''
    Do you fall within the President's definition?
    Mr. Estrada. I have not spoken to the President about this 
or any other subject. I don't know what he meant. If I had to 
take his text as a statute, I would want to know more about the 
circumstances in order to figure out whether I can answer your 
    Senator Edwards. You haven't been asked that question by 
anyone during the course of your nomination process?
    Mr. Estrada. No. I was asked very few similar questions, 
and they generally had to do with how I go about generally 
interpreting the Constitution and statutes. And I gave the 
answer that I gave you a few minutes ago.
    Let me ask you one last thing, and I know that I am running 
past my time, if I can, Mr. Chairman.
    Senator Schumer. Please.
    Senator Edwards. This is something also that you said 
earlier on a radio show, and I am quoting you now. You said, 
``One of the things we do as a society by reason of being a 
democracy is that we vote on what we think is a good idea, see 
if it works, and if it doesn't, then we scrap it.'' Then you 
said, ``But what we do not do is take the person that lost all 
his arguments in the debate and try to bring the courts to 
trump on his side.''
    Now, I want to ask you about an example. Let's suppose a 
town said that--passed a referendum saying they were going to 
bar women from serving on juries, and a woman or women, a group 
of women wanted to challenge that law. Would that be a 
legitimate challenge in your judgment?
    Mr. Estrada. Of course.
    Senator Edwards. So you recognize that the court itself has 
an enormous responsibility in our Government, interpreting the 
law and enforcing the law and enforcing the Constitution?
    Mr. Estrada. Absolutely.
    Senator Edwards. So this language that you used before, 
what does it mean? ``What we do not do is take the person that 
lost all of his arguments in the debate and try to bring the 
courts to trump on his side.'' Tell me what you meant by that.
    Mr. Estrada. It means that we have a healthy debate in the 
legislature about the policy pros and cons and whether the law 
is a good idea. And the party that in the judgment of the 
majority has the better of the argument wins.
    Now, that is a forum for the policy arguments. What we do 
not do is then take policy as opposed to legal arguments and 
run into court. In the example that you gave me, I can foresee 
what the obvious legal challenge would be. It would be a 
violation of equal protection. There is clearly a law that 
applies. That would be the basis for the challenge.
    We were having, in the exchange that you cite, a radio 
debate on a city ordinance in which I thought part of what was 
being said was a policy argument as to was this a bad idea as 
opposed to why this ought to be declared unconstitutional by 
the Court. And in my mind, there is a very clear difference 
between the types of arguments that are suitable for a body 
like this and the types of arguments that are suitable for 
bodies like courts. Courts take the laws that have been passed 
by you and give you the benefit of understanding that you take 
the same oath that they do to uphold the Constitution. And, 
therefore, they take the laws with the presumption that they 
are constitutional.
    It is the affirmative burden of the plaintiff to show that 
you have gone beyond your oath. If they come into court, then 
it is appropriate for courts to undertake to listen to the 
legal arguments, why it is that the legislator went beyond his 
role as a legislator and invaded the Constitution. But there 
are different types of arguments that play in different forums, 
and I was pointing out that for the policy you go to your 
fellow citizens, and for the legal arguments you go to the 
    Senator Edwards. My time is up. I would just point out that 
this was a law that you were debating that was ultimately held, 
I believe, unconstitutional by the Supreme Court.
    Thank you, Mr. Chairman. I appreciate it. I appreciate the 
    Senator Schumer. Thank you, Senator Edwards.
    And now we have had two Democrats go in a row. We are on 
our second round. Everyone has asked questions the first time, 
so I will defer to my friend and colleague, Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman.
    Now, let's get back to this anonymous, apparently, 
accusation in one of the most liberal magazines in the country. 
But you are supposed to, out of all the thousands of people you 
met, be able to conjure up who it is. And apparently this 
person is griping because they were either unsuitable for the 
Supreme Court clerkship job or for some reason or other didn't 
get it, and it appears to me that they hold it against you.
    Now, assuming that it is even true, as I understand it, you 
are saying that, in interviewing potential clerks for Justice 
Kennedy, you didn't want people on either extreme.
    Mr. Estrada. That's right.
    Senator Hatch. You didn't want extremely left-wing people, 
and you didn't want extremely right-wing people.
    Mr. Estrada. That's right. I want people who understand 
that their job is to help Justice Kennedy do what he wants and 
that they don't bring an independent point of view on how the 
Court should vote. They are doers and helpers for Justice 
Kennedy. He is the person who has gone through this process and 
sits on the Supreme Court. It is his judgment that is being 
voted on. I mean, he is the person who has the vote, not the 
law clerk.
    Senator Hatch. Well, I read the one quote from Senator 
Biden. I will read another one in Lexis-Nexis. ``Committee 
Chair Joseph Biden, according to his staff''--now, he was 
chairman of the committee at the time. ``Committee Chairman 
Biden, according to his staff, felt strongly that he was not 
going to circulate some anonymous charge.''
    Now, Mr. Estrada, you have been asked by a number of 
Senators on the other side about your role in the selection of 
Supreme Court law clerks. Do you feel that you were fair in 
examining these people?
    Mr. Estrada. Absolutely, Senator.
    Senator Hatch. Did you look at their capabilities and 
whether or not they would be suitable for the Justice?
    Mr. Estrada. That is the only thing that I looked at, 
    Senator Hatch. I presume the Justice talked to you about 
what type of people he would like to have work with him.
    Mr. Estrada. That's correct.
    Senator Hatch. What were the criteria basically, if you 
could just do it in 30 seconds or so?
    Mr. Estrada. He wants the smartest people he can find that 
will do his bidding.
    Senator Hatch. That would agree with him and do what he 
asks them to do, right?
    Mr. Estrada. Right. Exactly.
    Senator Hatch. Did he say, ``I want conservatives'' or ``I 
want liberals''?
    Mr. Estrada. No.
    Senator Hatch. Did he say he wanted any kind of ideology?
    Mr. Estrada. No.
    Senator Hatch. Just the smartest people that he could 
    Mr. Estrada. That will do his bidding.
    Senator Hatch. That would do his bidding, in other words, 
help him do his job on the Court the way he thinks it ought to 
be done.
    Mr. Estrada. Right.
    Senator Hatch. Right? That is what you mean by ``bidding.''
    Mr. Estrada. Yes.
    Senator Hatch. Now, I don't want you in a game of 
``gotcha'' here with some anonymous set of sources. And I can 
tell you this: Even if they surfaced and somebody accused you 
of this, man, I would put great suspicion on their accusations 
because they didn't get the job. And so, undoubtedly, there 
is--assuming that the anonymous accusations were made, they 
didn't get the job and, naturally, they are griping about it. 
They weren't accepted. And the easiest target would be you.
    So let me just say this: You have bipartisan support for 
your nomination from some of the top lawyers in the country, 
from top people who have served in the Government, both 
Democrats and Republicans. And I pointed out the bipartisan 
support for your nomination, and I noted--I think it is worth 
noting that you yourself seem to be blind to partisanship when 
offering your support to well-deserved colleagues. You already 
mentioned your support for a staffer of Senator Leahy to clerk 
for Justice Kennedy.
    Mr. Estrada. Yes, I did, Senator, and, you know, as I said, 
my role usually is simply to talk to people who live in this 
area so that I can give my views to the Justice----
    Senator Hatch. Did you ask that staffer whether that 
staffer was liberal or conservative?
    Mr. Estrada. I knew she was liberal.
    Senator Hatch. You knew she was liberal?
    Mr. Estrada. Yes, I knew she was liberal. You know, she's--
she is--actually, she is left of center. She is a moderate 
    Senator Hatch. I understand she is an extremely brilliant 
staffer, right?
    Mr. Estrada. Excuse me?
    Senator Hatch. She is an extremely brilliant staffer, 
    Mr. Estrada. Yes. She is----
    Senator Hatch. And you recognized that.
    Mr. Estrada. She is a brilliant lawyer.
    Senator Hatch. And you recommended her even though she was 
Senator Leahy's staffer, a known Democrat and more liberal than 
    Mr. Estrada. She later came to work for Senator Leahy. At 
the time she was working with me in the Clinton Justice 
Department, and I worked with her while I was working in the 
Clinton Justice Department and tried to get her into Justice 
    Senator Hatch. Well, I remember----
    Chairman Leahy. If the Senator would yield just a moment, 
this is fascinating to me because I never knew nor had any way 
of knowing what her politics were or what her attitudes were, 
left, right, or center. Apparently you had a far tougher 
screening method than I did. So one of the reasons for coming 
to these hearings, now you are telling me things about my staff 
that I never knew, Mr. Estrada.
    Senator Hatch. Isn't that amazing.
    Chairman Leahy. I give you credit for finding these things 
    Senator Hatch. Okay. I remember that you contacted me to 
voice your support for the nomination of Adalberto Jose Jordan, 
a Clinton nominee to the U.S. District Court for the Southern 
District of Florida.
    Mr. Estrada. Yes, I did, Senator.
    Senator Hatch. He was a colleague from your days clerking 
at the Supreme Court.
    Mr. Estrada. Yes, he was.
    Senator Hatch. Of whom you thought highly and who you 
thought should be confirmed, right?
    Mr. Estrada. Yes, I did, Senator.
    Senator Hatch. Mr. Jordan currently serves on that court 
with much distinction. You also indicated support for a wide 
variety of others to me that were more liberal than you that 
were Clinton nominees. So you have a record of bipartisanship.
    I don't want you bullied by this committee, and you don't 
have to take it, as much as you are in a very tenuous, 
difficult position.
    What I am saying, in closing, I want to point out that your 
actions are not actions of a right-wing ideologue. They show 
instead that you are a person who gives credit where credit 
exists and where it is due because it is the right thing to do, 
and not because of some hidden agenda that you might want to 
    I would like to spend just a few minutes on a couple of 
other things that have been raised. I would like to ask you a 
few questions about the anti-gang loitering cases that you 
worked on that have been raised here. And although some have 
attempted to mischaracterize the statutes that were at the crux 
of these cases as racially discriminatory, my understanding is 
that the exact opposite is true, that these statutes were 
enacted to protect the quality of life of low-income minorities 
whose neighborhoods were too often devastated by drug violence. 
Is that right?
    Mr. Estrada. That was my impression of them, Senator, and 
that was one of the reasons why I thought it was worthwhile to 
give my time for free----
    Senator Hatch. That is what you were told, too, wasn't it?
    Mr. Estrada. Exactly.
    Senator Hatch. Okay. For example, according to a 1997 
report issued by the Clinton Justice Department, gangs have 
``virtually overtaken certain neighborhoods, contributing to 
the economic and social decline of these areas and causing fear 
and lifestyle changes among law-abiding residents.''
    Another Reno-era Justice Department report concluded that, 
``From the small business owner who was literally crippled 
because he refuses to pay protection money to the neighborhood 
gang, to the families who are hostages within their homes, 
living in neighborhoods ruled by predatory, drug-trafficking 
gangs, the harmful impact of gang violence is both physically 
and psychologically debilitating.''
    Now, Mr. Estrada, you told us that you were involved in the 
City of Chicago v. Morales case at the request of the Chicago 
    Mr. Estrada. Well, the legal department----
    Senator Hatch. Well, the department of the Chicago mayor, 
Mayor Daley, right?
    Mr. Estrada. Of the city, yes. Yes.
    Senator Hatch. Okay. Now, Mayor Daley, one of the primary 
proponents of the Chicago ordinance you defended--let me just 
read you a few quotes about the ordinance by Mayor Daley, whom 
the New York Times described as ``the law's fiercest 
advocate.'' And those are quotes. I think these quotes will 
dispel any notion that the law was somehow intended to hurt 
rather than help minority residents of Chicago.
    In November of last year, Mayor Daley defended his anti-
loitering law in the Chicago Sun Times by arguing, ``I tell you 
one thing. Those drug dealers and gang-bangers are terrorists, 
too.'' He has repeatedly explained that his anti-loitering law 
is designed to protect residents from gang activity. In June 
1999, he explained, ``It's the average person on a block. It's 
a senior citizen. It's an 8-year-old girl going to school or 
trying to get to the bus stop or someone trying to go to the 
store. They can't go there. The gangs and drug dealers own the 
corner, and that's what this is all about.''
    And, again, in January 2000, he said, ``These aren't 
middle-class communities. These are poor communities. People 
want a right to survive. It's as simple as that.''
    I could go on and on. But, instead, Mr. Chairman, I would 
like to submit for the record a list of quotes by Mayor Daley 
in support of the anti-gang-loitering ordinances.
    Chairman Leahy. Without objection, so ordered.
    Senator Hatch. Now, one thing I find ironic is that the 
persons who criticize the anti-gang-loitering statutes rarely 
live in the neighborhoods plagued by chronic gang activity.
    Now, let me just see here. Although Senator Kennedy earlier 
made the point that community leaders objected to these 
ordinances, my understanding is that these ordinances were 
enacted in direct response to pleas by members of gang-infested 
communities. As Mayor Daley explained, ``We held hearings all 
over the city to find out what community leaders wanted. Their 
message was very clear: Do whatever you have to do to satisfy 
the court, but get those gang-bangers and dope dealers off our 
    Betty Meeks, head of the Southwest Austin Council on 
Chicago's West Side, lived in a neighborhood where gang members 
routinely sold drugs on street corners and inundated passersby. 
According to Meeks, ``If we don't use this law as a tool, how 
are we going to get these guys off the corner? What about the 
constitutional rights of my neighbors whose kids have to walk 
by that corner every day on their way to school?''
    Another Chicago resident, 74-year-old Emmett Moore, saw his 
house sprayed with bullets during a gang turf war. Referring to 
the anti-gang-loitering law, he said, ``The Constitution is 
supposed to protect my rights, too. What's a more basic right 
than feeling safe on my property or being able to walk in my 
    The Annapolis ordinance was an even more explicit example 
of underprivileged minority residents taking the initiative to 
combat crime in their neighborhoods. Under the Annapolis 
ordinance, an area could be designated as a ``drug/loitering-
free zone'' only if a neighborhood association or resident 
first submitted a petition to the City Council. Is that right?
    Mr. Estrada. That's my recollection of it, Senator.
    Senator Hatch. How did you get involved in the Annapolis 
    Mr. Estrada. Because of my work in the Chicago case, I got 
called by the county--sorry, excuse me, by the city, lawyer for 
the city of Annapolis. He had passed--his city has passed this 
drug/loitering ordinance. The city was sued in court. He tried 
to keep up with the litigation, but he didn't have a very large 
staff, and the NAACP, which brought the suit, as was pointed 
out earlier, had the help of a very large Washington law firm 
that had come in to do the other side of the case for free.
    So he was feeling a bit outgunned, and he called somebody 
here in Washington by the name of the State and Local Legal 
Center, which tries to help States and localities with issues 
like that. And since they knew that I had done the brief for 
free in the Chicago case for the National League of Cities, he 
called--they gave him my name and he called me.
    Senator Hatch. Now, Mr. Estrada, some critics have decried 
the Annapolis case because it challenged the NAACP's standing 
to bring action against the ordinance. But isn't it true that 
the decision to challenge the NAACP's standing was made by 
other lawyers before you ever even got involved in the case?
    Mr. Estrada. That is right, Senator. By the time that I was 
asked to come into the case, what was left of the briefing was 
the reply brief. The argument had already been made in the 
opening brief, and, of course, it would be appropriate if the 
argument had any colorable basis for me to make any reasonable 
ethical argument that I could to support the argument that had 
already been made by the city lawyers in the opening papers.
    As I explained, I think, to Senator Kennedy earlier, I 
thought that it was important as part of that standing argument 
that the fact that minority communities were strongly in favor 
of these ordinances--now, not all of them, of course, but many 
of them--that that fact ought to bear in the analysis of a 
claim where the claim was that these laws are intended to be 
    Senator Hatch. Okay. Now, I apologize to my colleagues, but 
I would like to finish this line of questions, and they have 
been kind enough to allow me.
    Senator Schumer. Without objection.
    Senator Hatch. Thank you, Mr. Chairman.
    Chairman Leahy. And I have no objection, but could you just 
give me some ballpark time so I----
    Senator Hatch. I should be through in just a few minutes.
    Now, Mr. Estrada, though your efforts to defend the 
constitutionality of these statutes were unsuccessful, you may 
have lost a battle, but I think you won the war, as they say. I 
am referring to the Supreme Court's decision in Morales. 
Although the Court held that the Chicago ordinance was 
unconstitutionally vague, Justices O'Connor and Breyer wrote a 
concurring opinion that gave municipalities a road map on how 
to enact constitutionally sufficient anti-loitering laws. Is 
that correct?
    Mr. Estrada. That is right, Senator.
    Senator Hatch. Under Mayor Daley's leadership--and I 
commend him for it, and I think everybody in those minority 
communities commend him for it. And I commend you for trying. 
Because, like I say, I think you won the war. Under Mayor 
Daley's leadership and following the O'Connor-Breyer road map, 
Chicago enacted a new ordinance in the year 2000. Is that 
    Mr. Estrada. That's right.
    Senator Hatch. Now, has that ordinance been challenged in 
court along the same lines as the ordinance you defended?
    Mr. Estrada. I have been advised by the city lawyer for the 
city of Chicago that that is the case, and I have also been 
advised that a ruling has been issued by the Court in that case 
    Senator Hatch. Upholding the ordinance.
    Mr. Estrada.--the constitutionality of the ordinance.
    Senator Hatch. Now, just one last little bit here because 
this needs to be put to bed. I don't want you mistreated here 
in this committee. The problem of inner-city gang violence is 
so pervasive that we have here in Congress recognized that, and 
we addressed it in 1994.
    Mr. Estrada, are you familiar with 18 U.S.C. Section 521?
    Mr. Estrada. Yes, I know the statute, Senator.
    Senator Hatch. Can you tell us what that statute provides?
    Mr. Estrada. Sure. It deals with the problem of gang 
membership by defining what gangs are and what types of 
activities they engage in, in a manner similar to what the city 
of Chicago had done, and it provides for enhanced prison 
sentences for the commission of crimes in association with gang 
    Senator Hatch. They are mandated additional prison 
sentences, aren't they?
    Now, I would like to note that eight of my Democratic 
colleagues on this committee who were Members of Congress in 
1994 voted in favor of that statute. And I think that is 
    By the way, Mayor Daley--was he a Republican or Democrat?
    Mr. Estrada. I have heard that he's a Democrat. I've never 
met him.
    Senator Hatch. Well, I have heard that myself.
    Thanks, Mr. Chairman.
    Senator Schumer. Let the record stipulate that Mayor Daley 
is a Democrat.
    Senator Schumer. Chairman Leahy?
    Chairman Leahy. Thank you.
    Mr. Estrada, one of the things I have done, because I have 
been so impressed by it, is for 20 years or more I heard 
Senator Thurmond ask basically the same question of judicial 
nominees, and I have tried to make sure it is always asked of 
them. That refers to what kind of a temperament they would have 
in a courtroom. The judge, being really different than any 
other officer might be, can be basically the king, or more than 
that, can be the dictator, can do things a President can't get 
away with, somebody in elective office can't get away with. 
They have a life term, and they could make or break the career 
of lawyers or litigants or anybody else sometimes just by their 
attitude toward them. They could humiliate a lawyer if they are 
having a bad day. They could favor one over the other. And 
Senator Thurmond has pointed out over and over and over again 
how wrong that would be, and you would agree, I would assume, 
with Senator Thurmond and me on that point. Would you?
    Mr. Estrada. Yes, I would.
    Chairman Leahy. Now, earlier I understand--and I had 
stepped out, but I saw part of this--Senator Kohl asked you 
about a meeting you had with the Puerto Rican Legal Defense 
Fund. Later they opposed your nomination. And then you have had 
meetings with the Congressional Hispanic Caucus, and following 
that, they opposed your confirmation. They suggested in a press 
conference, and I paraphrase, but they said you were reluctant 
to answer their questions, that you were rude and dismissive. 
They had their chance to make their statement. How would you 
    Mr. Estrada. Senator----
    Chairman Leahy. I am trying to make sure you get equal time 
    Mr. Estrada. Yes, Senator, thank you. I think that there is 
nothing more important, or there are very few things that are 
more important to the job of a judge than having an appropriate 
temperament. And as a practicing lawyer, I have seen this 
firsthand. I've been in the trial courts in the Federal system. 
I have been in the appellate courts in the State and Federal 
system, and I have been in the Supreme Court numerous times. 
And I can represent to you that I have the scars to show the 
lessons I have learned about temperament, like I am sure many 
lawyers do who practice in our courts.
    Chairman Leahy. I have tried hundreds of cases. I know 
exactly what you mean.
    Mr. Estrada. And I have taken those lessons to heart, and I 
understand the importance of having judges who will be 
attentive and courteous.
    My meetings with both of the groups that you identified 
were, from my point of view, courteous and civil. Chairman 
Reyes from the Congressional Hispanic Caucus was a prince to 
me. He was--he and most of his colleagues had a very pleasant 
exchange with me.
    I did get a letter from them last night letting me know 
that after our meeting with them, they have decided not to 
endorse my candidacy. As you pointed out, my reluctance to 
answer questions about the case law, coupled with the loitering 
cases that have been mentioned, are listed in their letter as 
the main issues.
    It was--I tried very hard not to--not to say anything that 
could be construed as offensive in making clear that I could 
not answer questions that might come before the courts, and I 
believe I succeeded in doing that. I do know that there was at 
least one member of the Caucus at the meeting who was visibly 
upset that I wasn't willing to express views on how I might 
rule in cases that might come before me, and, in particular, 
with respect to the area of affirmative action. I did not think 
in good faith that I could respond to that type of specific 
questions, given the pendency of my candidacy. But I thought 
all of us on both sides conducted ourselves civilly and 
pleasantly. I was aware at the time that there was one or two 
members who were very unhappy with my inability to answer some 
of these very specific questions.
    With respect to the Puerto Rican Legal Defense and 
Education Fund, I made myself available to them for an 
interview after they wrote to you calling me some unflattering 
things, and once again, I tried--and I believe succeeded--in 
having with all but--all of them a civil exchange that I 
thought was a pleasant one. There was one exchange that has 
been adverted to earlier today in the morning session in which 
the chairperson of the Puerto Rican Legal Defense and Education 
Fund made some statements which I already related to the 
committee and I would rather not repeat.
    Chairman Leahy. No, and I don't mean to have you have to 
repeat yourself on that, and you did--in fact, people who have 
written something critical about you, this is probably going to 
come as an extraordinary surprise, but people have written 
critical things about even members of this committee on both--
    Mr. Estrada. I find that very hard to believe, Senator.
    Chairman Leahy. On both sides of the aisle. But have you 
ever felt that any Member of the Congress has ever 
discriminated against you?
    Mr. Estrada. Have I ever felt? No.
    Chairman Leahy. And do you think any member up here would 
do that?
    Mr. Estrada. I don't believe so, Senator. I don't know any 
of you as a person, but I am confident in the wisdom of your 
respective constituents, and I am the type of person that gives 
everybody the benefit of the doubt, and the benefit of assuming 
that unless it is affirmatively demonstrated, they act in good 
    Chairman Leahy. Now, Mr. Estrada, I read an article back a 
while ago regarding a low number of minority Supreme Court law 
clerks. Now, they are not under any law, any affirmative action 
law in the Supreme Court. You had talked about the statistics 
which show little representation by minorities. I am talking 
about the USA Today article by Tony Morrow. You said, ``If 
there is some reason for underrepresentation, it would be 
something to look into. But I don't have any reason to think 
it's anything other than a reflection in society.'' The 
article, I think part of it was prompted because there had been 
four Hispanic clerks by the sitting Justices.
    Without going into whether the Supreme Court should or not, 
on a more general legal issue, do you think there is a role for 
statistical evidence of discriminatory impact in establishing a 
pattern or practice of discrimination?
    Mr. Estrada. I am not a specialist in this area of the law, 
Senator Leahy, but I am aware that there is a line of cases, 
beginning with the Supreme Court's decision in Griggs, that 
suggests that in appropriate cases that may be appropriate. But 
I am not a specialist in that area of the law. I mean, I do 
understand that there is a major area of law that deals with 
how you prove and try disparate impact cases.
    Chairman Leahy. Well, if you had a hiring or selection 
process that involved race or gender, could that pass--can you 
think of one that would pass the strict scrutiny test that was 
articulated, for example, in the Adarand case?
    Mr. Estrada. I don't know that I should give out--that it 
would be appropriate for me, Mr. Chairman, to give out a 
hypothetical of something that would meet the Adarand case. As 
you know, the Supreme Court in the Adarand case stated as a 
general rule that the consideration of race is subject to 
strict scrutiny. That means that though it may be used in some 
cases, it has to be justified by a compelling state interest, 
and with respect to the particular context, there must be a 
fairly fact-bound individual assessment of the fit between the 
interest that is being asserted and the category being used.
    That is just another way of saying that is a very fact-
intensive analysis in the context of a specific program and in 
the context of the justifications that are being offered in 
support of the program. And I don't know that I can try to 
hypothesize one----
    Chairman Leahy. Well, let me ask you this: Is diversity a 
factor that an employer or a school could take into 
    Mr. Estrada. I am aware that there is a division in the 
courts of appeals with respect to the question. I do not recall 
whether the D.C. Circuit has spoken to that question. I am 
fairly certain it hasn't.
    Chairman Leahy. I am sorry. Somebody was speaking. I didn't 
hear the--you said you recall what?
    Mr. Estrada. I'm aware that there is a circuit split and 
the courts of appeals are in disagreement as to the correct 
legal answer to the question that you just posed. I am fairly 
certain that the court for which I am being considered has not 
passed on the issue, though I am not really sure. But because 
this is a matter that is being actively litigated in the courts 
and may come before the court, if I am confirmed, I don't think 
it would be appropriate generally to answer that question, 
    Chairman Leahy. Well, let me ask you a question--and I may 
just follow up questions on that. In the Supreme Court in 1996, 
in the Romer v. Evans case, said in effect that in Colorado a 
law that had the effect of discriminating against homosexuals 
and lesbians violated the Equal Protection Clause. Are you 
familiar with that case?
    Mr. Estrada. I read it when it came out. I was in the SG's 
office at the time. I haven't read it for 4 or 5 years, I don't 
think. It was a while ago.
    Chairman Leahy. Do you recall whether you ever discussed it 
with anyone?
    Mr. Estrada. I do not recall.
    Chairman Leahy. Do you recall whether you ever, in writing 
or otherwise, expressed views about that case and the manner in 
which it was decided?
    Mr. Estrada. I do not recall, Senator.
    Chairman Leahy. What do you think about the case?
    Mr. Estrada. I read it when it came out. I have a general 
impression of the general holding. As with other cases from the 
Supreme Court, as a practicing lawyer I usually take them to 
try to get to the bottom line and see what the rule of law is.
    There was a time where I could parse through it after I 
read it. I know of no reason, whether in law or in my own 
private personal views, why I would not be able to apply the 
ruling of the court to like cases if they came before me.
    Chairman Leahy. Well, you would have to, I mean, any court 
of appeal would have to apply Romer--if they had a case on all 
fours, they would have to apply Romer.
    Mr. Estrada. Absolutely. Absolutely.
    Chairman Leahy. We all agree with that.
    Would you--and my time is up, so I should submit this in 
writing. Would you give me your views on--and, don't worry, we 
will remind you of this. I don't mean you have to--would you 
let me know what you think of the decision as it is in that 
case? What are your views of that case? Do you agree--would you 
have decided the same way? And realizing this is not a 
hypothetical because, I mean, you are bound by it today.
    Mr. Estrada. Well, I understand that, Senator, and I think 
to that question, I ought to answer by pointing out to what my 
view is of judging. And as I said, I think, earlier, I think it 
is imperative that in judging, the person come to it was an 
appropriate process, and that entails withholding judgment, 
having an open mind, hearing from parties, and hearing from the 
briefs and doing all of the legwork to try to ascertain which 
of the two litigants or, if there are more, any of the 
litigants is right.
    It would be impossible for me with respect to this case, 
not having been the judge in it, to tell you whether I would 
rule this or the other way because I simply have not engaged in 
the type of appropriate process that I think is essential to 
    Chairman Leahy. I will give you a chance to give me your 
views on the decision and, of course, you can always in your 
response say you don't want to, and I understand that. I will 
let you decide how to answer.
    Mr. Estrada. Thank you, Senator. I think my answer to the 
best of my ability is I can't know because I was not a judge in 
the case. And the question as framed is inherently an 
unknowable for somebody in my position who has not sat through 
the case, listened to the arguments, conferred with the 
colleagues, and done all of the legwork of investigating every 
last clue that the briefs and the arguments offer up.
    Not only that, but in the context of our Federal system of 
course, it is imperative for somebody who is a judge to respect 
what we call the case of controversy requirement, which is to 
say, cases are not abstract questions of law, they involve real 
people. And the color of the case, so to speak, or the tenor of 
it really does take on a very urgent character when you have to 
deal with the real person who has all of the real arguments in 
front of you and is not an intellectual exercise as to what 
might be a good rule of law.
    Chairman Leahy. I will take that as being your answer, and 
I will save you the time of having to write another. Thank you. 
Thank you, Mr. Estrada. I appreciate you taking the time.
    Senator Schumer. Senator Brownback?

                           OF KANSAS

    Senator Brownback. Thank you, Mr. Chairman.
    Mr. Estrada, welcome to the committee, and welcome to your 
wife and to your mother. Delighted to have you here. Being at 
the end of the bench, most things have been covered, and I 
don't have any piercing line of questioning to go into.
    I really am a great admirer of yours. I had a chance to 
meet with you privately. I am an admirer of your fortitude and 
your background and what you have gone through. I am an admirer 
of your resume: magna cum laude out of Harvard, Columbia, 
graduating near the top of your class. I think all those are a 
very impressive product that you produced through your life and 
a dedicated life that you have had to be able to help a number 
of other people out to see what you can do for their betterment 
and for the betterment of this country.
    I am sorry that in this process now we seem to be more 
caught up on a set of ideological tests than qualifications, 
and that seems to be what is coming forward more and more.
    I look through this pedigree and this background that you 
bring to the job, your unanimous highly qualified rating by 
ABA, your work for the Clinton Justice Department, your work 
for private law firms, your work for the Supreme Court, your 
work for a circuit court. That is an impeccable background and 
shows a great breadth of service that you have had as well. 
U.S. Attorney's Office, I believe, Southern District of New 
York, as well is in that. Your personal background that you 
bring to the job as well. That would seem to me to be the very 
type of person that we would want on the D.C. Circuit.
    Mr. Estrada. Thank you, Senator.
    Senator Brownback. It would be all of that added together. 
The unanimous ``well qualified'' that you bring from the ABA, 
and they review for judicial temperament. I have read this 
before to people, but in their own investigation that you had 
to go through, the legal writings are examined of prospective 
nominees. They conduct personal interviews in the ABA 
background, confidential interviews regarding integrity, 
professional competence, judicial temperament of the 
prospective nominee. All that you have gone through, been 
through. I believe you have been waiting now for--for how long 
for a hearing?
    Mr. Estrada. I was nominated on May 9, 2001, Senator.
    Senator Brownback. So we have been going now for a year and 
a few months in the process.
    I add that all together and say here is an incredibly well-
qualified, broad-based individual. I believe you would be the 
first Hispanic American on the D.C. Circuit from what I have 
seen, which is something, I think, that we should as well 
applaud with your background and having that as a broadening 
force on the D.C. Circuit, the breadth of background that that 
would bring to the D.C. Circuit as well, which I think would be 
an important, laudable goal, to add that on top of the 
qualifiers. I think one has to be qualified for the bench, 
qualified in judicial temperament and breadth and ability and 
expertise. And you have got to get through that threshold, but 
then once you are through that, you add more on top of it the 
breadth and experience.
    I think it is a very bad precedent we are moving towards 
here when you look at that breadth of qualification, that type 
of nominee, that type of personal background and fortitude that 
you bring, and then to see that, well, there are people that 
are just going to oppose this strictly based on ideological 
purposes. I think we are poorer for it.
    I know people have gone through a number of different 
questions. On items you have written, your opinions are known. 
But the blockage here is on ideological purposes is why you 
haven't been brought up to date. And I think we are poorer for 
    I appreciate that you have been willing to put yourself 
through this process. I am hopeful that we are going to still 
be able to get you confirmed. I think that would be the right 
thing for this country and show a breadth of opinion on this 
dais that we could put somebody of your caliber and 
qualifications and background on the D.C. Circuit. I don't know 
that that is going to take place, and I think we as a country 
will be poorer for it.
    So my point is to really thank you for being willing to put 
yourself forward through this and really dedicate your life for 
the betterment of yourself and others. That is a remarkable 
story of accomplishments that you have already had, and I hope 
we are going to be able to add on top of that a circuit court 
position as well. And it is certainly well deserved on your 
    Mr. Estrada. Thank you, Senator.
    Senator Brownback. Thank you, Mr. Chairman.
    Senator Schumer. Senator Kennedy?
    Senator Kennedy. Well, it has been a long afternoon, a long 
day for you, Mr. Estrada, but we thank you very much for 
staying with us. I just have a few questions that I would like 
to get your attention on.
    As I mentioned--and the record is very clear--the point 
that I was making earlier today about the NAACP and your 
challenging their right to reflect the local community which 
had been the NAACP in the case of Annapolis was involved in 
counseling youth as well as in various voter registrations, and 
they felt that they had a right to be able to challenge the 
statute, and you believed that they should not. And I was 
making the point that the NAACP works in a very significant and 
important way in representing minorities, others as well, in 
what we refer to as representational standing. And they have on 
issues of civil rights and discrimination and unemployment and 
many other issues, and they were attempting to do it here in 
representing the community because there was a division. No one 
is obviously justifying the gang and criminal activity. I think 
we can all dismiss that. We all dismiss that.
    The fact is the vote in Chicago among black aldermen was 
clearly against the statute, and I put the names of those who 
voted on that in the record.
    I want to really go beyond that. Rather than talking about 
the statute, I was talking about the NAACP and the time that 
you took to oppose their position of standing and representing 
the community, and you opposed it, and later their position was 
upheld in the courts.
    But let me just move on to just one final area, and that is 
the issue that has been raised by a number of the 
organizations, the Council of La Raza, the AFL-CIO, the 
Southwest Registration Education Project, about the willingness 
of you to consider all sides and be fair-minded in 
consideration of cases that would be before you in the district 
court. I think we could use the word ``temperament,'' if I 
could, in sort of characterizing it.
    I mentioned earlier in the day the importance of the court 
and its impact on the lives of people is enormously important. 
I think it is important also that anyone who is going to be on 
the court, no matter their personal views as a judge, that they 
have the ability and the inclination to listen to and 
understand both sides of the argument.
    Earlier this week in the Judiciary Committee hearing, 
chaired also by Senator Schumer, we had what I considered to be 
an excellent definition of how a judge should comport 
themselves, and it was done by former Judge Ab Mikva, and he 
told us that the kind of judges that we want on the D.C. 
Circuit reflect moderation. He used the words, ``We want judges 
who can hear with both ears, have not decided the case before 
the hearing the evidence and can remain reasonable even when 
the juices are flowing all around.''
    And some have raised the question about whether you possess 
those key qualities of moderation, openness and fairness. You 
have been called ``too much of an ideologue'' to serve as a 
judge, and it has been said that you would have difficulty 
separating yourself from your personal ideological views. Some 
of your colleagues reportedly say that you ``do not listen to 
other people.'' According to one group with whom you have met, 
you were not ``even-tempered'' or open, and you even said that 
their criticisms of you might be legally actionable. Those 
views were represented in the letters that I have here, which I 
will include in the record. I am not going to spend the time--
    Senator Schumer. Without objection.
    Senator Kennedy. But I am interested in hearing from you 
how you would respond to those that have raised those issues 
about your temperament and how you would proceed.
    Mr. Estrada. Well, Senator, let me start by giving you my 
best assurance that I am a person who listens with both ears 
and who will be able, if I am fortunate enough to be confirmed, 
to take the lessons of private practice, which, as I mentioned 
earlier to Senator Leahy, do involve going to courtrooms all 
over the country and getting a firsthand look at the importance 
of judicial temperament.
    I am aware of some of the criticisms that you have read. I 
think I have spoken to a couple of them today. But I think I 
would like to emphasize that I have been in practice since--I 
have been a lawyer since 1986, and I have been fortunate enough 
to have met and dealt with a broad range of people in my life, 
whether they are on the other side of the table or co-counsel 
or judges and justices before whom I have practiced.
    Just 2 days ago, I got a copy of a letter that I understand 
has been sent to the committee sometime back. I just got it a 
couple of days ago, and the letter is from the head of the 
Legal Aid Office in the Southern District of New York. As you 
may know, I was a Federal prosecutor in that office, and the 
head of Legal Aid has written to the committee to point out how 
he and the members of his office, as my opponents in 
litigation, thought that I was a person of fairness and 
integrity with whom they could deal fairly, and he has endorsed 
my nomination on the basis of his own experience and that of 
his colleagues in the office when I was a prosecutor. And I 
think he has told you that I was tough but fair.
    Some of my former colleagues in the Solicitor General's 
office who identify themselves with both parties have also 
written to the committee to emphasize their view that I am a 
person of integrity who will treat all litigants fairly. And so 
has one of my supervisors, a very important one, Seth Waxman, 
who was, as you may recall, President Clinton's second 
Solicitor General. He has also written to the committee, as 
have any number of other people who were political appointees 
of the Clinton administration under which I served for 4 years.
    I am extremely pleased that they and I understood at the 
time that our business was to be fair and to get our jobs done 
and that we have managed to forge lasting friendships from that 
time period.
    The last item I would mention, Senator, since I do think 
that this is about my extensive record in the law, is that 
there are all of those cases that I have handled. And as I 
think I mentioned earlier to you, when I see an injustice, I 
try to get involved. And when I see a community need, I try to 
get involved. And that may not be in the taste of everybody. I 
am certain that there are people in the world who don't think 
all that well of me for having taken a death penalty case, just 
as I am certain that there are people in the world who don't 
think all that well of me for having tried to help minority 
communities that passed these gang laws.
    But to my mind, what should come clear, come through that 
record, is the level of care that I have taken over the years 
to make sure that I give back to the community and that I do so 
in a way that is fair, that advances the ball for our society, 
and it is my hope that when you look at the totality of the 
record, including those who have known me over the years, the 
judges before whom I have appeared who were interviewed by the 
ABA, and all of the rest of the record that you have in front 
of you, that you will conclude without hesitation that I am the 
type of person who listens with both ears and will be fair to 
all litigants.
    Senator Kennedy. Well, I thank you for your response, and 
if you have that letter--because I don't believe the committee 
has the letter from the Southern District. We would like you to 
submit it if you would.
    Mr. Estrada. Yes.
    Senator Kennedy. I think when you were giving your answer 
about bringing the lessons from the private sector to this 
issue, I think those are enormously important. We have some 
enormously gifted, talented advocates, some extraordinarily 
able and gifted attorneys, but individuals that don't 
necessarily make great judges, particularly in the circuit, as 
we mentioned, that are dealing with some of the neediest causes 
and issues that affect the individuals who have really been 
left out and left behind.
    This is an attitude that I think is enormously important 
and significant, more so in terms of this position than, I 
think, in others. And I want to take the full opportunity to 
look at your record and what you have done and what does 
reflect it. I think all of us are impressed by your legal 
abilities. The real issue, I think, for myself is whether this 
translates itself in really being able to understand and being 
able to be fair and open-minded and considerate of the many 
individuals who don't have strong, effective, brilliant lawyers 
or special interests, and whose lives are going to be directly 
affected by the outcome of that circuit.
    And we have seen, as others have pointed out, where the 
interests of those individuals increasingly are being left out 
and left behind. I am not going to take time to review those 
statistics or conclusions, but that is a factor. So this is an 
important quality.
    I want to thank the Chair very much.
    Senator Schumer. I thank you, Senator Kennedy.
    We have a vote going on. I think about 7 minutes have gone 
into it, but Senator Sessions assures me that he only has a few 
questions, so we can probably get those in first. Then I have a 
few more, Senator Hatch, and then we will get on to the other 
nominees. But we will do those after--my final round of 
questions and Senator Hatch's will occur after the vote, but we 
will go to Senator Sessions right now.
    Senator Sessions. Thank you, Mr. Chairman. I would just 
like to point out with regard to endorsements, Mr. Estrada does 
have a number of endorsements from Hispanic groups, including 
the League of United Latin American Citizens, the largest and 
oldest Latino organization in the country, and the Hispanic Bar 
Association. So you certainly do have support in the Hispanic 
    And with regard to your principled and correct position on 
judging cases that you haven't heard and are not a judge in, I 
would like to quote again from Lloyd Cutler, who was a counsel 
to President Clinton, White House counsel, who has been a 
student of the judiciary and served, I believe, on the Miller 
Commission which dealt with how to confirm judges. He, in 1985, 
wrote, ``What the Senate ought not to do is determine through 
questioning a nominee's views on emerging issues of 
constitutional doctrine or issues likely to face the courts in 
the future. Why? Because these questions are really a signal to 
a nominee that he will become a judge only if he promises to be 
obsequious, to be a yes man to the powers that be.''
    Then he went on to note, ``I think that when we ask 
prospective judges their views on an issue likely to arise in 
the future, we are locking those judges into a position. The 
constitutional prohibition on advisory opinions tells us that 
justice is achieved by well-informed, concrete decisions rather 
than hypothetical speculation.''
    Also, as you indicated, you haven't heard the arguments and 
read the briefs, so you should not be making those kind of 
comments in advance. And Senator Schumer has admirably said we 
ought to get away from ``gotcha'' politics and ``gotcha'' 
hearings here, and I do think, Senator Schumer, that today we 
slipped a bit with pressing him on an unnamed source, a 
statement that he has not had, and demand answers that it would 
be difficult, I think, for him to give.
    I notice in that article it quoted you as saying, ``Estrada 
is like a Stealth missile with the nose cone coming right out 
of the right wing's deepest silo.'' Did you say that?
    Senator Schumer. I guess so. I won't say I can't recall.
    Senator Sessions. Okay, yes or no. So these hearings are--
we are open, Senator Schumer is open, but we need to be open-
minded. We need to be listening to you, not having our minds 
made up before we come.
    And another thing that I noticed in these hearings that are 
troubling to me is the suggestion by Senator Kennedy that a 
lawyer's objecting to an entity's standing somehow reflects a 
hostile opinion of the group. Isn't it true, Mr. Estrada, just 
briefly, that a group to intervene and be a party to a lawsuit 
has to meet certain legal requirements of standing, and if you 
object to a person's or a group's standing, that does not mean 
you have any adverse opinion toward that group or person?
    Mr. Estrada. That is right, Senator. I mean, I was--thank 
you for giving me the opportunity to say this, and I'm sorry 
Senator Kennedy has left. But obviously I have the highest 
respect for the history of the NAACP in this country breaking 
down racial barriers. That was not what was at issue in the 
case. It was simply whether in the particular case they were 
the appropriate litigant to be raising this challenge.
    Senator Sessions. The law is clear that every group and 
every person can't intervene in every case in America, and I 
think you are perfectly correct in representing your client 
    And with the Legal Aid Society's letter, I would just note 
they wrote on September 16th--that is from Mr. Joy, the 
attorney in charge--``Miguel and I met while he was an 
Assistant United States Attorney in the Southern District of 
New York. We had a number of cases together where he 
represented the Government and I the defendants, including one 
case which went to trial and a number of others that were 
resolved by guilty pleas. In addition to myself, the other 
lawyers in my office dealt with him on cases of their own. We 
were all tremendously impressed with his intellect and 
extraordinary memory, and he clearly was one of the smartest 
attorneys in the office which prides itself in attracting the 
best and the brightest. Yet throughout, he was eminently 
practical in the judgments he made, and he had a down-to-earth 
approach to his cases. I found him to be fair and 
straightforward, a prosecutor who did not treat defendants 
unduly harshly.''
    And that is what the American Bar Association has found 
about you in talking to as many as 50 of your colleagues, 
judges, adversary attorneys, when they rated you unanimously 
``well qualified.''
    Mr. Chairman, this is an extraordinarily qualified nominee. 
I believe he definitely needs confirmation.
    Senator Schumer. And on that temporary note, we are going 
to recess for hopefully no more than 10 minutes.
    Mr. Estrada. Thank you, Senator.
    Senator Schumer. The committee is in recess.
    [Recess 3:58 p.m. to 4:17 p.m.]
    Senator Schumer. I think we are ready to resume once and 
for all, and I want to thank Mr. Estrada. It has been a long 
day for being here, and I want to thank all the others. And we 
are going to get to you as quickly as we can.
    Let me go to another bunch of questions here for our 
nominee. Now, in asking questions about judicial philosophy, I 
am mindful of the importance, as you have stressed, I think 
correctly, of not seeking a pre-commitment from any nominee 
regarding how he or she will rule in any case that may come 
before him or her on the bench.
    That said, there is nothing absolutely wrong with your 
commenting on specific, already decided Supreme Court cases. I 
know of no one who feels that that is improper to do.
    I am sure you regularly do so in private. Nearly every 
lawyer worth his salt in the country engages in that kind of 
debate and discussion. I do. We do on this committee. I have 
done it with most of my colleagues here and there. And when a 
big case comes down, it is only natural for us to talk about it 
in my office and other places. And I am sure that is the case 
for you, too, Mr. Estrada. You have friends who are former 
Solicitors General, law professors, partners in law firms. You 
clerked on the Supreme Court. We all know that you discuss 
Supreme Court opinions all the time. If you didn't, you 
probably wouldn't be qualified to serve on the D.C. Circuit.
    So it is not really enough to say you haven't read all the 
briefs and listened to oral argument to give us your general 
views on cases, and I think you have something of an obligation 
to let the committee know.
    So I want to ask you this, and my first one is a general 
one: Other than cases in which you were an advocate, please 
tell us what three cases from the last 40 years of Supreme 
Court jurisprudence you are most critical of, and just give me 
a couple of sentences as to why for each one.
    Mr. Estrada. Senator, I think there are cases that I have 
been critical of that I can think of. I cannot say that I have 
made it my business to be in the business of being critical of 
the Supreme Court since my job generally entails getting the 
cases, figuring out what the rule of law is, and trying to make 
arguments for my clients on the basis of the rule as stated 
rather than to going back and trying to second-guess it.
    I'm not even sure that I could think of three that I would 
be--that I would have a sort of an averse reaction to, if 
that's what you're getting at. But the reasons that I would 
even think of the cases in those terms would have to do with 
what the cases do for the administration of justice, whether 
they give enough guidance to lower courts and whether they 
fulfill, you know, the Court's job in ruling on the question at 
the time. It would be more of this is not really useful to me 
as a practitioner and probably won't be all that useful to the 
    I don't really think, you know, I am--as a practicing 
lawyer, I think I'd be reluctant to say that I would be 
critical of the outcome because I've got to take it for what it 
    Senator Schumer. So with all of your legal background and 
your immersion in the legal world, you can't think of three or 
even one single case that the Supreme Court has decided that 
you disagree with?
    Mr. Estrada. I don't know that I'm in a position to say 
that I disagree with any case that the Supreme Court has ruled 
on or that I think that the Court got it right, because I 
think, you know, as I explained earlier, I ought not to 
undertake to, in effect, hold the Court to task for the purpose 
of having gotten something wrong when I haven't been in their 
shoes in the sense of having had access to all of the 
materials, argument, research, and deliberation that they had.
    I can read a case and it may seem to me when I read the 
case that this or the other one of the opinions is particularly 
well argued. And sometimes I have that sort of a reaction, 
fairly frequently. But I don't have the reaction of, oh, I 
think this is wrong.
    Senator Schumer. You don't? Not to a single case in the 
last 40 years? I mean, I will tell you one for me. I think 
Buckley v. Valeo was an awful decision.
    Mr. Estrada. Well, certainly----
    Senator Schumer. I wish it had changed. Now, if I were to 
be nominated tomorrow by President Bush to sit on the court, I 
don't think saying that would disqualify me.
    Senator Schumer. Now, you are a lot closer to that than me, 
that nomination, but, I mean, I find it hard to believe that 
you can't opine--Mr. Estrada, we are trying to find out how you 
think here, and----
    Mr. Estrada. And I'm happy to deal with that question, 
Senator. I can tell you how I approach cases. But----
    Senator Schumer. But I didn't ask that, because I'm not 
asking how you approach cases. That is a legitimate question 
and some have asked it like it. I want to know how you feel 
about cases, and you have said more broadly than any other 
witnesses I have come across, you have given us virtually no 
opinion on anything because it might come up in the future.
    My reading of that ruling is different. If I were to ask 
you specific cases, that is fine. But asking you generally 
about views that might come before the court, we have had 
witness after witness tell us their views on things like that. 
Just look at last week, Mr. McConnell's testimony.
    But now I am getting away from that, respecting disagreeing 
very much with and thinking the record is not very filled in 
here, but I am getting to older cases, cases that have already 
been argued, so you can't have that reason, and you can't tell 
us a one.
    Mr. Estrada. But the problem is the same, Senator Schumer, 
because in taking Case A and looking at whether the Court got 
it right or whether I think they got it right, I have only the 
benefit of the opinions. I haven't seen the litigants. I 
haven't--the case is ruled on, but I don't get to see what 
didn't make it into the opinion.
    Senator Schumer. Sir, in all due respect, I have not read 
the briefs of Buckley v. Valeo. I don't think that disqualifies 
me from having an opinion on the holdings of the case and its 
effect on America and its affect on law. I think it interpreted 
the First Amendment too broadly.
    Mr. Estrada. Senator----
    Senator Schumer. To say that the only time you can opine on 
a case is when you have read all the briefs strikes--well, it 
is an argument I have never heard before.
    Mr. Estrada. The only time that I will feel comfortable in 
opining whether the Court got it right would be if I had done 
everything that the Court had to do in order to actually issue 
their ruling.
    Senator Schumer. I didn't ask you if the Court got it 
right. I asked you cases that you, from your viewpoint, would 
disagree with.
    Mr. Estrada. I mean, there are certainly cases----
    Senator Schumer. I am not asking you for the quality of the 
legal reasoning. I am asking you, you have certain 
predispositions, we all do. No one is a tabula rasa. Let me 
just read you a quote. Judge Scalia, a friend of yours, Justice 
Scalia, ``Indeed, even if it were possible to select judges who 
didn't have preconceived views on legal issues, it would hardly 
be desirable to do so.''
    You don't seem to have any.
    Mr. Estrada. Well, actually, Senator, I have to say that I 
was trying to answer a different question when you said that. 
If you're asking whether I have views on issues of public 
concern that may be implicated in the cases that make it to the 
Court, of course, I do. I have all sorts of views. I have all 
sorts of views----
    Senator Schumer. Well, tell me three cases you have 
disagreed with.
    Mr. Estrada. I don't think in light of the position for 
which I am being considered, Senator Schumer, that I ought to 
say that because it would be a preconception, as Justice Scalia 
said in that opinion, and he went on to say that what's key 
about our system--this is the State election cases, as I 
recall--is that the first duty of the judge is to recognize 
that we all have them and then put them aside. And out of 
deference for the job for which I am being considered and for 
which I hope to be fortunate enough to be confirmed, the one 
thing that I do not want to do is to share personal views which 
to me have no bearing on how I would do my job as a judge.
    Senator Schumer. Let me just--are you saying, though, you 
have never shared your opinion on any case where you haven't 
read the briefs and heard the arguments with others?
    Mr. Estrada. If you're asking whether I have opinions about 
the public policy issues that are implicated in the case or the 
quality of the job that the Court did in writing the opinion, I 
have shared opinions like that----
    Senator Schumer. So why don't you share them with us?
    Mr. Estrada. Because they do fall within the area of 
preconceptions that Justice Scalia identified, which I would be 
loath to give out the impression it would have anything to do 
with my job as a judge if I were confirmed.
    Senator Schumer. Well, of course, it will have things to do 
with your job as a judge. Everyone who has written on 
jurisprudence knows that. No one comes in as a tabula rasa. I 
have a quote from Justice Rehnquist somewhere around here which 
says the same thing. Chief Justice Rehnquist: ``Since most 
Justices come to this bench no earlier than their middle 
years''--you are at the very beginning of your middle years--
``it would be unusual if they had not by that time formulated 
at least some tentative notions that would influence them in 
their interpretation of sweeping clauses of the Constitution 
and their interaction with one another. It would be not merely 
unusual but extraordinary if they had not at least given 
opinions as to constitutional issues in their previous legal 
    Now, you are still refusing to give us any.
    Mr. Estrada. Yeah, I mean, I have read--not recently, but I 
have read Justice Rehnquist's opinion, I think it is the 
opinion in chambers in Laird v. Tatum that you are reading 
    Senator Schumer. I don't know where it is from.
    Mr. Estrada. That was his opinion in chambers in Laird v. 
Tatum, which I think Justice Scalia then quoted in the case 
that you cited earlier. But all to the point that we all 
recognize that we have private views on many issues, and our 
job, if we get to be judges, is to make sure that people 
understand that they come before us so that we will give ear to 
the counter-arguments.
    Senator Schumer. You just said an hour ago that when you 
were giving recommendations to Justice Kennedy about law 
clerks, you did look at their views. You must have asked them 
questions or heard something about it. And yet now you are 
saying--and that is for a law clerk. And now you are saying for 
a judge, a lifetime appointment, you won't share those views 
with the committee.
    Mr. Estrada. Senator----
    Senator Schumer. It seems to me a bit contradictory.
    Mr. Estrada. The question that--the questions that I ask in 
doing my job for Justice Kennedy are intended to ascertain 
whether there are any strongly felt views that would keep that 
person from being a good law clerk to the Justice.
    If the person tells me that they think we ought not to have 
the death penalty but that he or she is more than happy to work 
on a case from the Justice in which the outcome is that one of 
them will be upheld, I have no further job to do. I would never 
tell the Justice that that person, he or she, is an unsuitable 
law clerk.
    I asked about these things solely for the purpose of 
gaining the person's assurance that he is a person who follows 
law. That is the assurance that I am here to give you today. 
Whatever my personal views on any issue may be, I will put them 
aside to the best of my ability and follow what the Supreme 
Court tells me is the governing legal framework.
    Senator Schumer. Now, you have said that to us, but we are 
not sure that will happen. And unless you allow us to probe a 
little further as to how you think and what you do, we can't 
come--we can't judge whether that will actually happen or not.
    Mr. Estrada. I am----
    Senator Schumer. We don't know you, and the purpose of this 
hearing is to get to know you a little better. And in all due 
respect, you are not letting us do that hardly at all. I mean, 
you know, we have had a lot of your wonderful history, which I 
commend you for. But that is not the only reason, at least in 
the opinion of many, if not most, to vote yes or somebody who 
is nominated for what at least I consider the second most 
important court in the land.
    Mr. Estrada. I am happy to try to answer any question that 
I think I can appropriately answer, Senator Schumer, consistent 
with the nature of the job that I would undertake----
    Senator Schumer. Let me just ask you one more question. 
There was only one issue that you did address, Roe v. Wade. Why 
were you willing to talk about that case when Senator, I 
believe it was, Feinstein asked but no other?
    Mr. Estrada. I thought my answer to the question was that I 
would follow the case and that I take the holding of the case 
as stating what it holds, which is that there is a right, as 
    Senator Schumer. No, I thought you used the word 
``morally.'' I thought you--I don't remember. We could look at 
the record. But I didn't think you just said it was a holding 
of the case. You said it is settled law, and then you talked 
about some other normative words. I don't remember. We could 
get the record and look.
    Mr. Estrada. And I was pretty--what I was pretty sure I had 
said, Senator, which is what I was about to repeat now, which 
is to say it is the holding of the case. I have no personal, 
moral, philosophical view or view of any other type that would 
keep me from following the holding of the case. I did not think 
I in any way implied what my view might be.
    Senator Schumer. Okay. I think that is basically it for me. 
I am going to say something in conclusion, but I will first let 
Senator Hatch do what he has to do.
    Senator Hatch. Well, thank you, Mr. Chairman. I earlier 
quoted from the Code of Ethics, and it is worth repeating. 
Canon 5 of the Code of Judicial Conduct of the American Bar 
Association expressly forbids--expressly forbids nominees to 
judicial duty from making ``pledges or promises of conduct in 
office or statements that commit or appear to commit the 
nominee with respect to cases, controversies, or issues that 
are likely to come before the courts.'' Now, that is an 
important--I think you have answered these questions just 
    Now, your career has been marked by a commitment to equal 
justice for all people and everybody under the law. I think we 
have gotten to know you pretty well here today. Both in 
Government service and in private practice, you have sought to 
ensure that all citizens receive the law's fullest protections 
and benefits, whether they are death row inmates, abortion 
clinics targeted by violent protesters, or inner-city residents 
victimized by gang violence.
    I would like to ask you specifically about your 
representation of Tommy David Strickler in his death row appeal 
before the Supreme Court. Can you tell us about that case and 
about how you got involved?
    Mr. Estrada. Yes, Senator. I was sitting in my office at 
Gibson Dunn one afternoon and the phone rang, and there was--
there were actually two or three people on the line in 
different parts of the country. One of them was an attorney 
from Richmond who had been handling the case until then. Her 
name is Barbara Hartung. Another one was an attorney who 
identified himself as being from the NAACP Legal Defense Fund 
in New York. I think his name was David Kendall. And there was 
another lawyer who had been helping Ms. Hartung, I think in 
Florida. I think was--his last name was Olive.
    And they told me that they had tried to get help in the 
representation in this case from a law professor at Georgetown 
Law School who had then just had a young child and she was not 
in a position of doing the case. I knew this faculty member 
from Georgetown because she and I had been U.S. Attorneys 
together, and she recommended me to Ms. Hartung as somebody who 
might be interested in this case, having worked with me in the 
Southern District of New York.
    They called and I got told about the case and asked them to 
send me the papers or some of the papers so that I could see 
what the issues were. They did that, I think by overnight mail, 
and I looked through it and, frankly, as a practicing lawyer, 
was frankly horrified about what had happened in that case.
    I told them that I would do the case for free. I wrote the 
briefs in the Supreme Court, the opening brief and the reply 
brief, with the help of Ms. Hartung, and got to know the 
record, argued the case in the Supreme Court, I believe, in 
1999 and, unfortunately, lost.
    It was one of those cases in which I as a litigant on that 
side had to win a large number of points to get to the end, and 
I won all but one. I mean, I had many of the things I had seen 
that were wrong with the case and the Court did agree were 
wrong with the case. But, unfortunately, there was final step 
that they said, well, that one you don't get, and the result 
was that we lost the entire case.
    But there was a lot of merit in the case, I think, as the 
judgment of the Court did recognize, because they ruled for my 
side in the case in all but one of the issues.
    Senator Hatch. You represented them for free. Do you 
remember approximately how many hours you spent on that case?
    Mr. Estrada. Yes. I think I estimated between 4 and 500 
hours on that case.
    Senator Hatch. Let me just read a portion of the letter the 
committee received from your co-counsel in the case, Barbara 
Hartung. Ms. Hartung says that you, quote, ``value highly the 
just and proper application of the law.''
    In this particular case, this man had abducted a young girl 
and murdered her.
    Mr. Estrada. That was what the State claimed they had 
proved at trial.
    Senator Hatch. Yes. She said that you, quote, ``value 
highly the just and proper application of the law. Miguel's 
respect for the Constitution and the law makes plain why he 
took on Mr. Strickler's case which, at bottom, concerned the 
fundamental fairness of the capital trial and death sentence. I 
should note that Miguel and I have widely divergent political 
views and disagree strongly on important issues. However, I am 
confident that Miguel Estrada will be a distinguished, fair, 
and honest member of the federal appellate bench.''
    I would like to submit the whole letter for the record, if 
I can, Mr. Chairman.
    Is that okay, to submit the whole letter for the record?
    Senator Schumer. Without objection.
    Senator Hatch. Now, let me just say that earlier Senator 
Kennedy asked about your fairness, your ability to consider all 
sides of an issue before making a determination.
    I think some of the best testimony on your fairness comes 
from Ron Klain, who served this committee well on the majority 
side, on the Democrat side, and who served as chief of staff to 
former Vice President Al Gore.
    Mr. Klain wrote in a letter to the committee, quote, 
``Miguel will rule justly toward all, without showing favor to 
any group or individual. The challenges he has overcome in his 
life have made him genuinely compassionate, genuinely concerned 
for others, genuinely devoted to helping those in need, and 
those without means and without advantage will get a fair 
hearing from Miguel Estrada,'' unquote.
    As Mr. Klain explained in his letter, he has known Mr. 
Estrada since you were both in law school.
    Mr. Estrada. That is right, Senator.
    Senator Hatch. Now, in my opinion, it speaks volumes that 
those who know you the best are the ones who would vouch on the 
record through their words and actions on your fairness.
    Now, I think that Senator Schumer is getting the point of 
my next line of questions, and that is this. I believe that 
your answers amply illustrate that even assuming that you are 
pro-life--and I have no idea or care whether you are--you will 
apply the law as articulated by the Supreme Court regardless of 
your personal views.
    I would like to ask you about a case you argued in the 
Supreme Court on behalf of the Clinton administration, and that 
was NOW v. Scheidler. Can you just tell us about the background 
of that case?
    Mr. Estrada. Yes, Senator. That was a case that came out of 
a litigation between Operation Rescue and some abortion 
clinics. I think it was in the Midwest, and Operation Rescue--I 
am sorry--the clinic sued Operation Rescue using a Federal 
statute called the Racketeer Influenced and Corrupt 
Organizations law.
    They lost in the Seventh Circuit when the Seventh Circuit 
found that Operation Rescue, since it was not motivated by a 
desire to earn money, but was doing this for philosophical 
reasons, could not be reached under this law which is really 
intended to go after people that engage in violent conduct, in 
a pattern of violent conduct.
    I worked on the case when I was in the Solicitor General's 
office. I wrote a brief arguing that this was a mis-reading of 
the statute because there was nothing, as I argued in the 
brief, that indicated that the economic purpose requirement was 
in the statute. I also argued the case. Solicitor General Drew 
Days sent me.
    Senator Hatch. So you wrote the brief and you argued the 
case in the Supreme Court on behalf of NOW----
    Mr. Estrada. That is correct.
    Senator Hatch.--and against the pro-life protesters----
    Mr. Estrada. That is right, Senator.
    Senator Hatch.--who were accused of violence?
    Mr. Estrada. That is right, Senator.
    Senator Hatch. How did the Supreme Court rule?
    Mr. Estrada. The Supreme Court ruled unanimously for the 
position that I advocated.
    Senator Hatch. And they basically ruled that the RICO 
statute could be used to punish pro-life activists who protest 
in a violent fashion outside of abortion clinics?
    Mr. Estrada. Yes, with respect to the issue then in front 
of the Court. I think the case has now been tried and is now 
back in front of the Supreme Court on a different issue, but--
    Senator Hatch. Okay, but the Court held that RICO does not 
require pecuniary purpose by the defendant to maintain a cause 
of action, right?
    Mr. Estrada. That was the issue in the case, yes.
    Senator Hatch. Well, I would like to point out that NOW has 
hailed the Supreme Court's decision in Scheidler as quote, 
``our landmark lawsuit, in which a unanimous jury declared the 
defendant guilty of racketeering, and NOW won the first-ever 
nationwide injunction against anti-abortion extremists,'' 
    I would also like to point out that on the NOW website 
there is an article by Vera Haller, of Women's E News, that 
applauds your choice as a judicial nominee. The article notes 
that you supported anti-racketeering laws against abortion foes 
in the Scheidler case and observes that, quote, ``His arguments 
were not ideological,'' unquote.
    The article further notes that, quote, ``His presence on 
the list of judicial nominees was seen by some as a sign that 
President Bush hoped to avoid contentious confirmation battles 
in the Senate.''
    Senator Schumer. Spoken by a left-wing interest group, 
stuff you don't like.
    Senator Hatch. No. I like people who stand up for women's 
rights. And, Miguel, you have. After all, I have 3 daughters 
and 3 sons, and I have, I think, 12 or 13 granddaughters.
    Now, let me just say this. On August 3 of 1995, we held a 
hearing for President Clinton's nominee, William Sessions. Mr. 
Sessions had served as Senator Leahy's campaign manager, so 
there was no doubt that many on the Republican side of this 
table disagreed with his political ideology.
    We asked Mr. Sessions, ``Are you committed to following 
Supreme Court precedent and the rulings for the Federal circuit 
court of appeals for your district faithfully, giving them full 
force and effect, even if you personally disagree with such 
precedent or ruling,'' unquote. He answered, ``Yes, Mr. 
Chairman, I am.''
    Despite his record of partisan political activity, that 
answer was good enough, under the old standard where the Senate 
bore the burden of finding a strong reason to reject a nominee, 
and the Republican Senate confirmed him by a unanimous vote.
    On June 16, 1999, I held a hearing for President Clinton's 
nominee Karen Schreier. Ms. Schreier had served as chairman of 
the South Dakota Democratic Party, and so there was no doubt 
that we on the Republican side disagreed with her political 
    I asked her at that time, ``Are you committed to following 
the precedents of the higher courts faithfully and giving them 
full force and effect, even if you personally disagree with 
such precedents?'' She answered, ``Yes, Mr. Chairman, I 
definitely am.''
    Now, despite Ms. Schreier's record of partisan political 
activity, that answer was good enough under the old standard 
where the Senate bore the burden of finding a strong reason to 
reject any nominee. The Republican Senate confirmed her by an 
overwhelming vote of 94 to 4.
    On May 10, 2000, we held a hearing for President Clinton's 
nominee James Brady. Mr. Brady had served as a Vice Chair to 
the Democratic National Committee. Thus, again, there was no 
doubt that we on the Republican side disagreed with his 
political ideology.
    Mr. Brady was asked this question: ``If a U.S. district 
judge or a U.S. court of appeals judge concludes that a Supreme 
Court precedent is flatly contrary to the Constitution, are 
there any circumstances under which the judge may refuse to 
apply that precedent to the case before him,'' unquote. Mr. 
Brady answered, ``No, there are no circumstances under which a 
United States district judge or a United States court of 
appeals judge may refuse to apply that precedent to the case 
before him.''
    Now, despite Mr. Brady's record of partisan political 
activity, that answer was good enough under the standard we 
used up until recently, the old standard, where the Senate bore 
the burden of finding a strong reason to reject a nominee and 
not just some frivolous reason that they call strong. The 
Republican Senate confirmed Mr. Brady by an overwhelming vote 
of 83 to 16.
    These same questions were asked of President Clinton's 
district and circuit nominees alike. I never shifted the burden 
back to these nominees. My understanding is that Mr. Estrada 
has never, never headed a political campaign in his life either 
at the national or the State level. Instead, he has been a 
lawyer, and a distinguished one at that.
    Imposing a double standard on Mr. Estrada has no basis in 
the original history of the Constitution and it is not what the 
Republican Senate did to President Clinton's nominees, even 
those who did have a record of partisan political activity. I 
could go on and on.
    Now, to impose a double standard on Mr. Estrada, I think, 
would be shameful on the part of this committee and on the part 
of the Senate as a whole. Mr. Estrada should be treated no 
differently from the way partisan Democrat nominees, who said 
they would observe and follow faithfully the rule of law, were 
treated as they were brought before the committee by me as 
chairman, anyway, when we were in control, and I might add when 
Senator Biden was in control. We did not use the standard that 
some are suggesting we use now, now that Mr. Estrada is the 
nominee to the Circuit Court of Appeals for the District of 
    Mr. Chairman, I think this has been a good hearing. I see a 
very excellent man before us. I see a man who is totally 
qualified for the Circuit Court of Appeals for the District of 
Columbia. I see a man who is devoted to the law, who is devoted 
to doing what is right, who will listen with both ears, who 
will be fair to all litigants, who is smart enough to 
understand what the law is, and who I believe is a man of great 
conviction, a man of great capacity, a man of great ethical and 
moral standing and, there is no question in anybody's mind, a 
great lawyer.
    So I hope that this committee will not delay his nomination 
any further, now that we are in the 16th month since you were 
nominated by the President. I hope that we can get this nominee 
in front of the committee, out of the committee, and voted upon 
on the floor before we finally recess. And I hope, Mr. 
Chairman, you will be of assistance in getting that done.
    Thank you.
    Senator Schumer. Thank you, Mr. Hatch, and thank you for 
your patience all day long. I am just going to be brief in my 
final statement and then we will get to the next witnesses.
    First, and I don't like playing the game tit-for-tat, but 
Mr. Estrada is being treated much better than the last two 
nominees for the D.C. Circuit Court of Appeals, Mr. Snyder and 
Ms. Kagen, who waited 15 and 18 months, respectively, and never 
got a hearing. We have 12, so we still might have this vacancy, 
but if you want to talk about a double standard, let's look at 
that one.
    Now, let me give you my view of the hearings. Mr. Estrada, 
I think you have shown that you are an excellent lawyer, and 
you have shown you have a great deal of patience, which I think 
is very important.
    But I have to tell you this: I think many of us emerge from 
this hearing and we think we have more questions than answers. 
This hearing has raised more questions than you have answered. 
You will not answer anything about your views of prospective 
cases, going far beyond what the Canons of Ethics say. They 
talk about specific cases, not about general views on 
constitutional issues. And amazingly enough, you will not give 
your views of previous cases.
    So the irony is the only cases you will talk about are the 
ones you have already litigated, because the only ones you will 
talk about are the ones where you have seen the brief. Well, we 
don't need those. We have those. That is part of the sparse 
record that we have.
    So as I said, I think most of us emerge from this hearing 
with more questions at the end of the day than we had at the 
beginning of the day. I think that makes it more important than 
ever that we be able to see your record when you were in the 
Solicitor General's office, because otherwise the record is so 
sparse, and your unwillingness to answer anything about your 
views as to how you would be a judge, give us very, very little 
to go on other than your assurance, which we have received from 
witness after witness, that you will simply follow the law.
    To me, that is not enough, and I hope that we can come to 
accommodation with the administration and get the records. I 
don't know what is in those Solicitor General records. They may 
vindicate you, they may not. They may be somewhere in between, 
but we really need much more a record than you have given us 
today when we are nominating somebody to the second highest 
court in the land.
    I thank you for your patience. I thank your family for 
being here and you are free to go.
    Mr. Estrada. Thank you, Senator.
    [The biographical information of Mr. Estrada follows:]
    [GRAPHIC] [TIFF OMITTED] 81116.647
    [GRAPHIC] [TIFF OMITTED] 81116.648
    [GRAPHIC] [TIFF OMITTED] 81116.649
    [GRAPHIC] [TIFF OMITTED] 81116.650
    [GRAPHIC] [TIFF OMITTED] 81116.651
    [GRAPHIC] [TIFF OMITTED] 81116.652
    [GRAPHIC] [TIFF OMITTED] 81116.653
    [GRAPHIC] [TIFF OMITTED] 81116.654
    [GRAPHIC] [TIFF OMITTED] 81116.655
    [GRAPHIC] [TIFF OMITTED] 81116.656
    [GRAPHIC] [TIFF OMITTED] 81116.657
    [GRAPHIC] [TIFF OMITTED] 81116.658
    [GRAPHIC] [TIFF OMITTED] 81116.659
    [GRAPHIC] [TIFF OMITTED] 81116.660
    [GRAPHIC] [TIFF OMITTED] 81116.661
    [GRAPHIC] [TIFF OMITTED] 81116.662
    [GRAPHIC] [TIFF OMITTED] 81116.663
    [GRAPHIC] [TIFF OMITTED] 81116.664
    [GRAPHIC] [TIFF OMITTED] 81116.665
    [GRAPHIC] [TIFF OMITTED] 81116.666
    [GRAPHIC] [TIFF OMITTED] 81116.667
    [GRAPHIC] [TIFF OMITTED] 81116.668
    [GRAPHIC] [TIFF OMITTED] 81116.669
    [GRAPHIC] [TIFF OMITTED] 81116.670
    [GRAPHIC] [TIFF OMITTED] 81116.671
    Senator Schumer. We are going to call the next group of 
    Senator Sessions. Mr. Chairman, while they are moving, I 
will just make one little brief comment on the judges that were 
not confirmed for the Tenth Circuit before. During that period 
of time, the D.C. Circuit had the lowest caseload per judge in 
America. One of the members said ten judges was enough. I think 
that was the feeling of the Senate, and so those two were not 
confirmed, leaving the court at ten, which still left it with 
the lowest caseload per judge in America.
    We are now down to eight. I agreed that ten was a 
legitimate number, although probably we could go lower than 
that, frankly. But that was the basis of those two nominees, 
neither one of which had any political or personal problems 
that I am aware of.
    Senator Schumer. I thank my friend from Alabama for that 
    Now, we have here before Stanley Chesler, to be United 
States District Court Judge for New Jersey; Daniel Hovland, to 
be United States District Court Judge for North Dakota; James 
Kinkeade, to be United States District Court Judge for the 
Northern District of Texas; Linda Reade, for the United States 
District Court for the Northern District of Iowa; and Freda 
Wolfson, for the United States District Court for the District 
of New Jersey.
    Will all of you please stand to be sworn and raise your 
right hands?
    Do you swear that the testimony you are about to give 
before the committee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Judge Chesler. I do.
    Judge  Hovland. I do.
    Judge Kinkeade. I do.
    Judge Reade. I do.
    Judge Wolfson. I do.
    Senator Schumer. Thank you. You may be seated. We first 
thank you for your patience. You have seen the democratic 
process at work and one day maybe you will share your opinions 
of that with us, but we are not going to ask you to do that 
today. So don't worry.
    Maybe because we are running toward the end of the day, I 
am going to ask three questions for each of you to answer. 
Before you do, you may introduce your family and you may add 
anything else into the record that you may wish.
    One, why you want to be a judge; two, some cases. I am 
going to ask you the same question I asked Mr. Estrada--some 
Supreme Court or other cases that you might disagree with. And, 
three, will you have any problem following the law as written, 
abiding by precedent and deferring to Congress, where Congress 
appropriately exercises its power? This is a question about the 
new federalism.
    So those are three questions. You can all think about them. 
Ms. Wolfson, you will get the most time to think about it. Mr. 
Chesler, you will get the least time to think about it, but the 
floor is yours, Mr. Chesler.


    Judge Chesler. Thank you, Mr. Chairman. First, if I can 
introduce my family----
    Senator Schumer. Please.
    Judge Chesler.--my wife, Fran Chesler, is here. She is a 
lawyer for a corporation. My daughter, Elizabeth, is here. She 
is a junior at Tufts University. My 90-year-old mother, from 
Brooklyn, is home waiting with bated breath for the results of 
these and future proceedings, and my sister, Helen Minkowitz, 
is also at home in Brooklyn.
    Senator Schumer. You made two very good points, Judge 
    Judge Chesler. With regard to the first question, Mr. 
    Senator Schumer. And all of you are judges already, so the 
question should really be a Federal judge.
    Judge Chesler. I am currently a U.S. Magistrate Judge and I 
have enjoyed my 15 years in that position. I have enjoyed 
working with the district judges who have been involved with me 
in the various matters which I have been deciding in 
cooperation with them. And after watching and participating in 
that process for all those years, there is nothing which I 
could aspire more to than elevation to a district judgeship so 
that I could continue what I am doing, except do it on a 
somewhat more elevated level. So I look forward to that if I am 
fortunate enough to be confirmed by the Senate.
    Jumping to the question about the new federalism, it 
strikes me that the cases which have been emerging from the 
U.S. Supreme Court in recent years present the cutting edge of 
judicial decisionmaking at this point in time. And it strikes 
me that as all of the nominees up to--the nominee earlier today 
has indicated every enactment by Congress should be presumed to 
be constitutional.
    Any court which reviews such enactments should, in fact, 
operate under the assumption that it is constitutional, and if 
there is some way that the statute can be interpreted so as to 
uphold its constitutionality, that interpretation should be 
followed by the court. And I adhere to that view of statutory 
and constitutional interpretation. With regard to the specific 
issues which may arise, I quite frankly have to suggest to you 
that, absent specific context, I couldn't possibly voice any 
particular opinions.
    With regard to your third question, Mr. Chairman----
    Senator Schumer. The Supreme Court case you might disagree 
with, already decided. That is a hard one. If you want to come 
back and----
    Judge Chesler. Let me put it this way: If I could pass to--
I would be glad to think about it some more and----
    Senator Schumer. Do you know what I am going to do? I am 
going to ask each of you to submit that in writing, if you 
don't want to do it here. Is that okay?
    Judge Chesler. That is fine, Mr. Chairman.
    Senator Schumer. Without objection.
    Mr. Hovland?


    Judge Hovland. Thank you, Mr. Chairman. First of all, I 
would like to introduce my wife who is with me here today, 
Kristen. She is down on the end of the first row and has been 
sitting here patiently all day.
    I have three children that are all back at home in 
Bismarck, North Dakota. They were not able to make the trip 
here today. Our oldest son, Brandon, is 22 years old. I have a 
12-year-old son, Mark, who is in the sixth grade, and an 8-
year-old daughter, Lexi, who is in the second grade. Both go to 
school at Highland Acres School in Bismarck.
    I want to recognize just a few others that weren't able to 
make the trip here today: my father, Lyndon Hovland, who lives 
in Fargo, North Dakota; my stepmother, Bev Hendricksen, who is 
also in Fargo; and my mother-in-law, Lois Gregory, who lives in 
Bismarck. They wish they could be here, but I know that they 
are anxiously listening.
    On the first question, Mr. Chairman, about why I want to be 
a judge, I have been a practicing trial lawyer for 23 years and 
I started doing administrative law judge work about 8 years ago 
and I started conducting a lot of mediations and arbitrations 
about 8 years ago and I very much enjoy that type of work.
    I believe that I truly have a temperament that is fair-
minded and even-handed. I have enjoyed that work immensely. I 
believe that I would bring those characteristics to the judge 
if I am fortunate enough to be confirmed. I enjoy the law. I am 
not afraid of hard work and I believe that I have the 
characteristics that would make me a very good, fair-minded 
district court judge.
    On the subject of precedent and federalism, Mr. Chairman, I 
have the utmost respect for the Constitution and I have the 
utmost respect for the doctrine of stare decisis, and I will 
faithfully uphold the law of the United States Supreme Court 
and, in my district, the Eighth Circuit Court of Appeals.
    On the subject of federalism, I agree with my colleague 
that I would approach any challenge, any constitutional 
challenge, any question of a congressional enactment, with the 
basic premise that the laws are presumed to be constitutional 
and that Congress acted in a constitutional fashion when they 
enacted those laws. Whether it is Congress, whether it is a 
State law, any legislative enactment would be approached from 
that perspective from my standpoint on the bench.
    I think that is the role of a judge. The role is limited to 
interpreting the law rather than creating and making new law, 
and we leave that in the hands of Congress and presume that 
they have acted in a constitutional manner.
    Senator Schumer. Thank you, Mr. Hovland.
    Judge Kinkeade?


    Judge Kinkeade. Well, unfortunately, I am here alone, not 
because I don't have loved ones. My wife is teaching first-
graders to read back in Irving, Texas, and my daughter is 
working in Dallas. My son is a freshman at Baylor University in 
Waco, Texas, and my parents are--they are watching me.
    Why do I want to do this? Well, I was here 10 years ago and 
I am excited that you are allowing me to come again. Time ran 
out in an earlier administration. I have been a judge most of 
my adult life, for 20 years, and have tried everything from 
barking dog cases to capital murder cases. And it is who I am, 
it is what I do, and I have given my life to it.
    Why do I want to be a Federal judge? That is a pinnacle of 
a career, to be honest with you. It is what as a judge you 
would hope that people would think you did a good enough job to 
be. And if I am honored to be confirmed and you decide that 
that is appropriate, then I will continue to try to do the best 
I can as a trial judge and look forward to that opportunity, if 
you decide and I am fortunate enough to be confirmed.
    With regard to stare decisis, I will simply say this: I 
approach statutory construction from the idea, Senator Schumer, 
Mr. Chairman, that it is presumed to be constitutional. And I 
do not desire to be a legislator. I did not do that earlier in 
my life. I desired to be a judge. I am glad that that is what 
you want to do and others want to do. That is not what I wanted 
to do.
    And with regard to--unfortunately, the Supreme Court 
occasionally says that, or maybe the circuit courts, that the 
Congress does not get it right. My obligation, to be honest 
with you, is to follow what the circuit court and the United 
States Supreme Court--what their ruling is, and I will do that. 
I think that is what I am obligated to do. That is what I have 
done and that is what I will continue to do, whether it had 
been with the Texas Legislature or whether it is with the 
    With regard to the United States Supreme Court opinions and 
whether I disagree, my difficulty with that is this: I do not 
want litigants that come in front of me to think that because I 
do have personal opinions, as I do, as you do, and as everyone 
else does, that I would not be fair with them. If I expressed 
my opinion here, they would think, oh, my goodness, Kinkeade is 
someone who would not be fair with me. And that is my 
difficulty with that.
    And so I want you to know that I will follow opinions, 
whether I agree with them or disagree with them. I am going to 
follow the Fifth Circuit opinions and I am going to follow the 
United States Supreme Court opinions, and that is what I do.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Judge Kinkeade.
    Now, Judge Reade.


    Judge Reade. Good afternoon. I would first like to 
introduce my family sitting behind me: my sister, Renee, and 
her husband, Robin Gibson, from Minneapolis, Minnesota; my 
niece, Ann Gibson, who is from Alexandria, Virginia; not with 
me today my elderly mother, who lives in Sioux Falls, South 
Dakota, and her husband--they are not well enough to travel--as 
well as my nephew, Dobby Gibson, and his wife, Kathy, who are 
working today in St. Paul. So I wish that they all had been 
with me.
    I have no opening statement, except to thank you for 
inviting us to have a hearing before the committee today. I am 
very anxious to be a Federal judge. I have been a State court 
judge for nine years and during that period of time I have 
learned an awful lot about myself and about judging. I am 
looking forward to the additional challenge that goes with the 
Federal bench--more complex cases and a busier docket--and I am 
prepared to work the extra hours that that is going to take.
    I don't know that I can add anything more than what my 
colleagues have expressed about new federalism. I know that it 
is frustrating to Congress to pass a law that they believe in, 
that they have worked hard on, only to have it struck down by 
the Supreme Court. That is a very frustrating situation.
    I will approach all questions put to me with a presumption, 
as my colleagues have said, that the law that Congress passed 
is constitutional, and I will adhere, without waiver, to the 
Eighth Circuit precedents and the precedent of the United 
States Supreme Court.
    Senator Schumer. Thank you, Judge Reade.
    Now, Judge Wolfson.


    Judge Wolfson. Thank you, Senator Schumer. I would like to 
introduce my family. With me this afternoon is my husband, Doug 
Wolfson, a former judge and now the Assistant Attorney General 
of the State of New Jersey, heading the Civil Division; my son, 
Brian, who is a freshman at Columbia; my son, Matthew, who is 
an eighth-grader--he took the day off; also, my niece, Karen 
Stringer, who is a third-year law student at UVA and came up 
today. And a couple of good friends from New Jersey came up, 
Phil and Joann Orban. Thank you, and thank you for having us 
here this afternoon.
    Let me first address the question as to why I would like to 
be a Federal judge. I guess it is somewhat self-evident, since 
I am already sitting as a United States Magistrate Judge, and 
have sat in that capacity for the last 16 years.
    As Senator Corzine said to you this morning, I went on this 
bench at a very, very young age and have spent virtually all of 
my legal career doing this job, and it has been a great proving 
ground for being a district court judge.
    In my instances, I have exercised the powers of a district 
court judge by consent of the parties and I have had the 
opportunity, of course, to see cases come from the initial 
filing all the way to the time of trial, dealing with attorneys 
and trying to settle cases, mediate their disputes, and resolve 
any issues they may have. I think I am ready for this after 16 
years. It is something that I would really like to do. I relish 
the opportunity to act in all instances as a district judge, as 
opposed to just in those where there is consent given.
    And I think that having sat on this court in New Jersey for 
so long, I really have an appreciation of the attorneys in the 
State, the issues they have to address, and the concerns, and I 
would be very happy to sit in this role.
    With regard to new federalism, I think that my colleagues 
have really addressed the issue. By going last, it puts me in a 
little bit of a bind here. I agree we are bound by the rules of 
statutory construction which require us to presume the 
constitutionality of a statute, to attempt to interpret the 
statute to find it constitutional in such a way without doing 
violence to the plain language of the statute. And I will 
continue to do that. I have had at times had to interpret 
statutes and I will follow those rules going forward.
    With regard to following precedent, that is a given for me. 
I am obligated to follow the Supreme Court decisions, the 
decisions of the Third Circuit. Given the fact that I have sat 
on the Federal court for all these years, I have numerous 
reported opinions, made many decisions, and you can look back 
at my record to see that it is not just a future commitment I 
am making to you but one that I have honored in all of my years 
on the bench, and I will continue to do so.
    Senator Schumer. Thank you, Magistrate.
    Now, let me turn it over to my colleague, our Ranking 
Member of our Courts Subcommittee, Jeff Sessions.
    Senator Sessions. Thank you, Mr. Chairman. It is great to 
be with you.
    I was thinking about that old anti-war poem about fallout. 
It said, ``Though I know all men are brothers, let the 
questions fall on others.'' Maybe it is something you can be 
thankful to. We had a lot of questions earlier. Maybe you won't 
have quite so many.
    I will say that even if we don't have a lot of questions of 
you, it is not because it is unimportant to us, but you have 
gone through quite an extensive process of recommendations, 
evaluations, the Department of Justice, the FBI. Senators and 
their staffs have reviewed your record and people feel good 
about you. Otherwise, you would be harassed some, I assure you. 
So I would congratulate you on that.
    Judge Chesler and Judge Wolfson, you have both served as a 
magistrate judge. Would you just briefly share with me how you 
see the role of the magistrate judge and whether or not as a 
Federal judge you could see ways to use the abilities of the 
magistrate judge more, or do you think they are over-used?
    Judge Chesler. I think that the abilities of magistrate 
judges in some districts are being used to pretty much their 
full capacity, for example, in the District of New Jersey where 
Judge Wolfson and I come from. I think as Judge Wolfson 
indicated, by and large, over the years that we have served as 
magistrate judges, in one way or another we have performed 
virtually every function that a district judge would perform, 
from handling summary judgment motions, to preliminary 
injunctions, to civil trials, to criminal trials.
    I think that that has served the District of New Jersey and 
the court system very effectively. Number one, it has helped 
substantially to ease the overwhelming burden of increasing 
loads of litigation that have been falling on the Federal court 
system, and particularly in metropolitan areas.
    Secondly, it has served, I believe, as a useful training 
ground for future district judges. New Jersey has been very 
fortunate to have a number of U.S. magistrate judges who have 
been elevated in the past few years. And if Judge Wolfson and I 
are fortunate enough to be confirmed, we will be delighted to 
follow in their footsteps.
    I think that other districts perhaps have under-utilized 
magistrate judges by limiting the role which they can play to, 
on occasion, having them perform functions which are much more 
limited in terms of presiding over motions or, alternatively, 
conducting case management proceedings of the court or, 
alternatively, conducting settlement conferences.
    As I said, I believe that those functions should be 
encouraged in other districts in the country, and I understand 
that the Administrative Office of the Courts indeed has so 
encouraged that.
    Senator Sessions. Judge Wolfson?
    Judge Wolfson. Thank you. Much of what Judge Chesler said, 
of course, I agree with. Let me add a couple of things, though. 
One is I know that in certain districts, in some instances I 
think the magistrate judges are almost used as super-law 
clerks, writing habeas opinions and Social Security opinions.
    We are very fortunate in New Jersey that our district 
judges have allowed us to exercise all of the powers that the 
statute permits us to exercise, and it has been very helpful 
for the district judges. Maybe they were visionaries when they 
first decided to do it, but they have reaped the benefits of it 
because we have gone a long way in helping them alleviate their 
    And by being actively involved in the settlement 
negotiations and having a two-tiered judge system at times, we 
can take their cases, mediate them for them, settle a lot of 
these disputes before it gets to them and it is really just 
ready for trial, and then in certain circumstances try them.
    Senator Sessions. That deals with the old dilemma where a 
Federal judge would try to settle a case, impose what they 
think is a right settlement, and then be accused of being 
biased if the settlement fell apart. I mean, you can have the 
magistrates go through the process of attempting to settle 
without biasing the ultimate trial judge. Is that an advantage 
of this procedure, one of the advantages?
    Judge Wolfson. It is, Senator Sessions. Indeed, when I have 
settlement conferences, oftentimes, and if the parties come 
in--and we try and use some innovative methods to settle in our 
district, as well--if the parties actually come in for the 
settlement, I will often explain to the parties and the lawyers 
our two-judge system and say I will not be--unless there has 
been a consent to proceed before me, I will not be the judge 
who will try your case, so you need not be concerned that if I 
give you my views today of where we should be coming out that 
the judge who will actually hear your case has in any way pre-
judged the issues or is affected by what we do here today. It 
is very valuable.
    Senator Sessions. The number of district judges, Article 
III judges, and magistrates in New Jersey, Mr. Chesler, how 
    Judge Chesler. Senator, I believe there are 19 active 
district judges. I am not certain of the number of senior 
judges beyond that. There are, if I recall correctly, 11 full-
time magistrate judges authorized in New Jersey.
    Senator Sessions. And what about you?
    Judge Wolfson. It is the same. We are in the same district. 
It is one district with three sections, but we are all one 
district, and that is invaluable. Also, we find that as the 
lawyers in our State get to know us and respect us, it is more 
often that they will consent to our jurisdiction, and that is, 
of course, very helpful to the district judges to remove some 
of those cases from their docket.
    And we know that we can give them a very specific trial 
date because we do not have a backlog of trials. And the fact 
that we are available, that when the parties are in the middle 
of a deposition they don't have to wait to file a motion--they 
know we are assigned to the case. They will call us on the 
phone and we will attempt to resolve their dispute, whether it 
is a privilege question or whatever.
    And in New Jersey, we handle most of the disputes, 
discovery disputes, informally by letter and phone call rather 
than formal motion practice. We have cut down on motion 
practice so substantially, and so we give them that 
accessibility and that makes the case, of course, move much 
faster through the docket.
    Senator Sessions. Thank you. I think those are good ideas. 
The Southern District of Alabama, I think, has been one of the 
leaders in utilizing Federal magistrates. There are three 
authorized district judges and three magistrate judges. They 
have always carried a high load. It has always been a respected 
position. Good lawyers seek the position and they are treated 
with respect by the bar and the court, and I think that is 
helpful. It would be a good lesson, I think, for all of you to 
think about how to use the magistrates well.
    Is it Reade?
    Judge Reade. Yes.
    Senator Sessions. I see you were chief of the Criminal 
Division in the U.S. Attorney's office. That is an office you 
don't get to easily. The chief of criminal, in my experience, 
is a person who has worked very hard and been successful in 
actually trying cases and has won the respect of the office and 
their peers.
    How did you enjoy your time as a prosecutor?
    Judge Reade. It was really a life-changing experience for 
me as a lawyer. I got into court almost on a daily basis. I had 
the opportunity to supervise others who were in court almost 
daily. In addition to supervising, I tried a full caseload and 
tried several significant cases, including a very difficult 
arson case in which two volunteer firefighters were killed, and 
a rare book case. I had a gentleman who stole rare books from 
all over the United States and Canada and secreted them Iowa. 
Those two cases, I think, were the most prominent ones and the 
ones that received the most attention nationwide.
    Senator Sessions. Well, do you miss it?
    Judge Reade. I have to say that being a judge has a lot of 
benefits. You can sit back away from the fray and watch the 
case unfold, as opposed to being personally involved in it. 
But, of course, both positions were very enjoyable for me.
    Senator Sessions. You don't micromanage the poor 
prosecutors, do you? You haven't forgotten what that is like?
    Judge Reade. No. I tried not to do that.
    Senator Sessions. Perhaps you knew Jenny Grenade, now Judge 
Jenny Grenade, who was my chief of the Criminal Division in the 
Southern District of Alabama. She was recently confirmed as a 
Federal judge.
    Judge Reade. I did not know her.
    Senator Sessions. One of the things that concern me--and I 
often ask our nominees, do they understand the plight of the 
prosecutors? They are lawyers, too. They represent the people, 
also, but if you rule against them, they cannot appeal. If you 
rule against the defendant, the defendant can appeal.
    I have on occasion seen judges a bit maybe confused and not 
quite sure how to rule. They would just always, when in doubt, 
rule against the prosecutor, on the view that, well, they will 
probably win the case anyway and I won't be reversed.
    So let me ask you, do you feel an obligation to the people, 
the victims, the public and public safety, to make sure that 
you make those calls as best you can and not tilt toward the 
defendant to avoid possible appeal?
    Judge Chesler, you have been a prosecutor, too, I notice, 
so maybe you have some sympathy.
    Judge Chesler. I do have some sense of how that can work, 
Senator. I firmly believe that it is the obligation of a 
sitting trial judge to make every single call based upon his or 
her evaluation of the legal issue in front of that judge, and 
that a judge does not have any business trying to figure out 
how the case should be tried or what one side or the other side 
needs or doesn't need to win.
    And if that results in a reversal, well, the judge got paid 
to make the best decision that he or she could, and if a case 
gets reversed and the decision was an honest and intelligent 
one, that is the way it should come out.
    Senator Sessions. Judge Hovland?
    Judge Hovland. Senator, I would wholeheartedly agree with 
that, and I would hope that those that enter into the criminal 
arena are well represented by counsel and that they are on an 
even playing field. And I will evaluate the facts and apply the 
law to the facts as it needs to be applied. I would hope that 
both sides perceive that they have been given a fair shot and 
have been fairly represented in a criminal proceeding.
    Senator Sessions. Judge Kinkeade?
    Judge Kinkeade. Senator, I was on a criminal district bench 
for seven years in Dallas and tried a very busy docket and 
tried all kinds of serious cases. And I always felt as part of 
my job as judicial temperament was to make sure both sides knew 
that I was going to give them the best shot that they had to 
try their case without interfering or trying to decide who 
should win or who shouldn't win based upon some predilection.
    And, yes, I understand the prosecutor and who they 
represent, and have always given them the opportunity to make 
whatever arguments and called it as I saw it at the time. 
Sometimes the prosecutor won, sometimes the prosecutor didn't, 
but I think they always respected me for that. And I had a good 
relationship with the prosecutor and with the defense bar and I 
plan on continuing that.
    Senator Sessions. Thank you.
    Judge Reade?
    Judge Reade. Yes. Senator, I believe that my record would 
speak for itself. Every litigant, whether they are the 
government or a private party, starts with a level playing 
field in my court and I make no decision based on who the party 
is or who they represent.
    Senator Sessions. Judge Wolfson?
    Judge Wolfson. Senator Sessions, I agree with all those 
comments that have been made. Whether it is a civil case or a 
criminal case that comes before me, all parties, I believe, 
that come into my courtroom believe that they are going to get 
a fair shake that day, and there is no preference given to one 
side or the other.
    Senator Sessions. Well, I know that judges hold the 
Assistant United States Attorneys to a high standard, and that 
is fine, but they are also entitled to put on their case. 
Sometimes, even though the case might be somewhat close on the 
rule of law, if they are entitled to prevail, they ought to be 
given that.
    I would just say one more thing. Having served as a judge, 
all of you know and have some appreciation for just how 
challenging the management job of a Federal judge is. It is not 
a retirement position. It is a big management thing. You have 
got to utilize your magistrates, your law clerks, and the judge 
has simply got to work hard, also. Your record indicates you 
fully understand that.
    Litigants who bring cases should not have to wait 
extraordinary amounts of time to get a motion for summary 
judgment or partial summary judgment ruled on. It costs them 
money, it delays final adjudication. Fundamentally, a judge 
just simply has to confront those issues, find time to do it, 
and give them a ruling the best you can.
    But your records are excellent. Thank you for your 
    Thank you, Mr. Chairman.
    Senator Schumer. I want to thank you, Senator Sessions, not 
only for your participation and patience today, but also just 
for being a great partner as we chair our subcommittee.
    I want to thank the witnesses and their families and 
friends. It has been a long day. I hope for the young lady in 
law school, it was somewhat educational. You rarely get to see 
something like this. This has been a unique hearing. For 
everybody else, I hope you have enjoyed it as well.
    I want to thank the five of you. You are all fine nominees. 
I haven't heard a single bad thing about any one of you, so 
things bode well. The record will remain open for one week for 
either you to submit answers to the questions that I have asked 
and others have asked and for any of the members to submit 
additional statements about the second half of our hearing 
today, or the first with Mr. Estrada.
    With that, I want to thank the staff. It has been a long 
day. You have performed very well and made us look good.
    With that, we will adjourn.
    [The biographical information of Judges Chesler, Hovland, 
Kinkeade, Reade, and Wolfson follow:]




















































































































































































    [Whereupon, at 5:25 p.m., the committee was adjourned.]
    [Questions and answers and submissions for the record 




















































































































































































































































                        MONDAY, OCTOBER 7, 2002

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 2:10 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy and Sessions.

                      THE STATE OF VERMONT

    Chairman Leahy. Good afternoon. I am glad to see so many 
here. I thought before we began, before I made an opening 
statement, we have seven judges nominated by President Bush on 
the list. We have distinguished members of the Senate who wish 
to make opening statements, and following our normal tradition, 
we will do that, beginning with Senator Shelby, who is the most 
senior person here.
    Senator Shelby, I know that you have talked with me about 
Mr. Fuller, both you and Senator Sessions have, so now this is 
our chance to find out if he is as good as you keep telling me 
he is.
    Chairman Leahy. He is sitting back there saying, ``I hope 
so.'' [Laughter.]
    Go ahead.


    Senator Shelby. Mr. Chairman, I want to thank you and I 
also want to thank Senator Sessions. Senator Hatch is not here, 
but he is the ranking Republican, former chairman, and I want 
to thank him, too, for holding this hearing. Mr. Chairman, I 
want to especially thank you for coming back, because I know I 
talked with you a week or so ago and you had some things that 
you could have been doing in your home State of Vermont today 
and you had to put those off, so again, I am in your debt in 
that regard.
    Mr. Chairman, I am here and I am very pleased to recommend 
Mark Fuller, who is here with us with his family today, for the 
Federal District Court for the Middle District of Alabama. He 
is currently the District Attorney and he is a practiced 
litigator in most criminal and civil matters. I believe that 
Mark Fuller has the dedication, the experience, and the 
judgment, Mr. Chairman, that is necessary to make an excellent 
Federal judge and will make a strong addition to the Middle 
District Court.
    In addition, filling this vacancy in the Middle District of 
Alabama is very important at this time considering the workload 
there. I know it is late in the session, Mr. Chairman, but if 
you can get him through the committee and get him through the 
floor, you would have more than a thank you for me.
    I recommend him without any reservation and I am pleased to 
be here with him to introduce him, along with Senator Sessions, 
who is a member of the committee.
    Chairman Leahy. Thank you very much, Senator Shelby.
    Senator Sessions?


    Senator Sessions. Thank you, Mr. Chairman. I, too, want to 
express my appreciation for your assistance in moving this 
nominee. Although we fuss about this or that nominee, we have 
had good success with Alabama District Judges. This will be the 
third Alabama District Judge that Senator Shelby and I have 
supported that will be confirmed and I am hopeful that we can 
do this before we recess. I thank you for taking time out of 
your schedule to move this nomination.
    Mark Fuller is an outstanding Alabama lawyer. In my view, 
he has the necessary experience, temperament, and legal 
knowledge to quality for the Middle District of Alabama. It is 
a busy court, probably one of the top 24 courts in America 
today out of 500 in caseload per judge. So we do need to move 
this judgeship forward.
    Let me just say a few words. He is a home-grown product, 
born and raised in Enterprise, Alabama, one of the great towns 
in the State. He graduated from the University of Alabama 
School of Law in 1985 and then returned home to practice with 
one of the truly outstanding litigation firms, Cassady, Fuller 
and Marsh.
    After a successful stint in private practice, concentrating 
on corporate and insurance defense but also practicing in the 
areas of domestic relations and real estate, Mr. Fuller joined 
the District Attorney's office as Chief Assistant District 
Attorney. Since 1996, he has represented the people of Pike and 
Coffee Counties in the prosecution of all criminal matters, and 
he is currently the District Attorney for that office, having 
been appointed to the position in 1997 and elected to a 6-year 
term in 1998.
    Mr. Fuller has been involved in over 5,000 cases and this 
experience has been balanced, with 56 percent being criminal 
and 44 percent civil. Even though his current position as 
District Attorney places additional emphasis on administration, 
he knows what it is like to be in the trenches because he 
continues to be involved in jury trials. This practical 
extensive trial experience has prepared Mr. Fuller for success 
on the Federal bench. It will allow him to hit the ground 
running, having the administrative knowledge that will allow 
him to manage the caseload as a Federal judge and the 
litigation knowledge that will help him understand the issues 
and problems faced by the lawyers, witnesses, and parties who 
appear before him.
    He has been involved in the community substantially, being 
a founding member of SAVE, Students Against Violence in 
Education, and the Coffee County Teen Court, which is an 
innovative way to get teenagers involved in the community when 
dealing with juvenile crime. He has served on the Board of 
Directors of the Coffee County Habitat for Humanity for 4 years 
and has served as a member of FACE, Families and Child 
Educational Services, from 1997 to present.
    His reputation as a lawyer is outstanding. In addition to 
being rated ``qualified'' by the ABA, he has an ``AV'' rating 
in Martindale-Hubbell. This indicates very high to preeminent 
legal ability and ethical standards. The people who know Mr. 
Fuller, including lawyers and judges, have seen him practice. 
They think very highly of him. He has served as Chairman of a 
Character and Fitness Committee for the Alabama State Bar, 
which is an important office and reflects the respect the bar 
has for him.
    He has an outstanding academic career, including a degree 
in chemical engineering from the fine engineering school at the 
University of Alabama. As I mentioned earlier, he got his law 
degree at the University of Alabama, one of the top 50 law 
schools in America.
    I believe his integrity, experience, and commitment to the 
rule of law are outstanding, Mr. Chairman, and I am pleased to 
join with Senator Shelby, who also knows Mr. Fuller well, who 
is strongly supportive of him, and I appreciate Senator 
Shelby's advice on this nomination. I thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much.
    I should also note before we go to Senator Chafee that we 
have statements by Senator Torricelli and Senator Corzine for 
Mr. Kugler. They were detained. Of course, as you probably 
know, the Supreme Court has now refused to take up the New 
Jersey Senate case, which is something that most assumed that 
they would not, so whether they will be here during this 
hearing or not, I do not know.
    [The prepared statements of Senators Torricelli and Corzine 
appear as submissions for the record.]
    Chairman Leahy. Senator Feinstein and Senator Cantwell also 
had statements that they wished to introduce. A lot of people 
are getting delayed getting in here Monday afternoon from 
wherever they are coming. Those would be included in the 
    [The prepared statements of Senators Feinstein and Cantwell 
appears as submissions for the record.]
    Chairman Leahy. I know that Eleanor Holmes Norton planned 
to be here to introduce Rosemary Collyer, but she is now 
involved in the managing of a bill on the floor of the House, a 
schedule that she does not control.
    I should note, for Mr. Smith, William Edward Smith, that 
Senator Chafee and I are both in the same building, in the 
Russell Senate Office Building, and we usually walk over to the 
chamber for a vote.
    Incidentally, Senator Shelby, I know you have an 
Intelligence Committee matter. If you have to leave, please 
feel free. I do not mean to be holding you here.
    Senator Shelby. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Chafee has, I do not know if it is 
coincidence or not, but Senator Chafee seems to have noted 
exactly what time I walk over for a vote and walk back, and he 
would come up and keep whispering Mr. Smith's name in my ear 
until I said, I think there is a hint here, and if we could 
possibly get him on and if I could rearrange my schedule to be 
back here, we would, and we have. Senator Chafee, I am 
delighted to have you here. I am delighted to serve with you.


    Senator Chafee. Thank you, Mr. Chairman. I enjoy our walks 
over, to take a break from the subway and enjoy the outdoors 
before our votes.
    I am here this afternoon to introduce the President's 
nominee for the U.S. District Court for the District of Rhode 
Island, William E. Smith. I have known Will Smith 
professionally and personally for about 10 years and I know 
that he will make a fine judge.
    Will Smith was born and raised in Boise, Idaho. He 
graduated from Georgetown University, where he was a George F. 
Baker Scholar, and Georgetown Law Center, where he graduated 
cum laude and was a staff member of the American Criminal Law 
Review. After law school, Will and his wife Christine left 
Washington, D.C., and began a law practice and started a 
family, and they made the wise decision to settle in Rhode 
Island, where Christine was raised.
    Will began his career at Edwards and Angell, Rhode Island's 
largest and oldest continuing law firm. This is the firm, 
incidentally, where my father, Jack Reed, and Judge Ronald 
Lagueux, the judge whom Will has been nominated to replace, all 
practiced. In 1994, Will was selected partner.
    Will Smith is widely regarded as one of the leading labor 
lawyers in Rhode Island. He was respected by his peers, judges, 
arbitrators, but most importantly, his adversaries. He is 
respected for his skill, integrity, high ethical standards, and 
work ethic.
    I first came to know Will Smith as an attorney when I was 
elected Mayor of Warwick, our State's second-largest city, and 
selected Will and his firm to act as the City Solicitor after a 
competitive process. I had the opportunity not only to consult 
with Will on legal matters nearly every day, but to watch him 
in court, trying cases and arguing appeals. I know firsthand 
the kind of lawyer Will Smith is because our city benefited 
from his skill, creativity, and tenacity.
    You have seen the many letters that have been written on 
Will's behalf. I will not repeat what these attorneys, 
community leaders, and clients have said about him. Union 
lawyers and even union leaders who have been on the other side 
of him in cases have written glowingly of his integrity and 
ability. They know that he will give fair treatment to every 
person who comes before the court.
    He is also very active in civic endeavors. He has been a 
member of the board of Rhode Island Community Food Bank, the 
largest anti-hunger agency in Rhode Island, for 9 years and 
served as Chairman of the Board. He is currently Chairman of 
the Diocese of Providence Catholic School Board, which oversees 
50 elementary schools and ten high schools.
    Mr. Chairman, Will Smith is just the kind of person that we 
need on our Federal Courts. He possesses intelligence, 
integrity, and toughness, tempered with good humor and 
compassion. He puts his community and public service above 
personal gain. Above all, he is fair and honorable.
    I thank the committee for scheduling this hearing and I 
urge his swift confirmation. Thank you, Mr. Chairman.
    Chairman Leahy. I thank you, Senator Chafee. I also know 
that you have all kinds of things scheduled and please feel 
free to leave. We will try to be expeditious with your nominee.
    If somebody could just reset the table, I am going to soon 
welcome all the nominees up here. You may be interested to 
know, this is the 26th hearing for judicial nominees since I 
became chairman of the full committee in July of last year, and 
the seven that we will consider here today will bring to 103 
the number of District and Circuit Court nominees we have held 
hearings on in less than 15 months.
    I do not know if there is anybody here from the 
administration, because they are not aware of this, but one of 
you will be the 100th judicial nominee for whom the Senate 
Judiciary Committee has held a hearing since we reorganized 
last July. I mention this because there are some that have not 
been heard, and I understand that, but doing 100 in this short 
time is pretty significant, in less than 15 months. I know of 
no time certainly--well, take a time, for instance, of six-and-
a-half years before I became chairman. There was nothing equal 
to this. There certainly was not in the 15 months before I 
became chairman or, I guess, the 30 months before I became 
chairman. I think during the Republican-controlled Senate, for 
example, it took 33 months to hold hearings for 100 of 
President Clinton's, perhaps a coincidence, but there it is.
    We will hear from Rosemary Collyer, nominated to the 
District Court in Washington; Mark Fuller, nominated to the 
Middle District of Alabama; Judge Robert Gary Klausner, 
nominated to the Central District of California; Magistrate 
Judge Robert Kugler, nominated to the District of New Jersey; 
Ronald Leighton, nominated to the Western District of 
Washington; Judge Jose Linares, nominated to the District of 
New Jersey; and William Smith, nominated to the District of 
Rhode Island.
    I also might mention, in the Circuit Court nominees, we 
have held 20 during that time. It used to be an average of 
seven a year. We did 20 in 15 months and I hope we can do more. 
I will not go into all these numbers. I will put them in the 
    Actually, with today's hearings, we will have held hearings 
for 103 of the 110 eligible judicial nominees. That is those 
with complete files. So we are at about 94 percent, and the 
President's term is not over, so he has plenty of time to get 
the rest of them in.
    I do not know why I happened to think about this, speaking 
of the President's record in this regard, but if somebody owned 
a baseball team, for example, they would be delighted to have a 
win ratio of that nature. Why that pops in my mind, I do not 
    I wonder if the nominees would be willing to come up. You 
can see where your names are, Ms. Collyer, Mr. Fuller, Mr. 
Kugler, Mr. Leighton, Mr. Linares, Mr. Smith, and Mr. Klausner. 
If you could all stand and raise your right hand, please.
    Do you solemnly swear the testimony you will give in this 
matter today will be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Ms. Collyer. I do.
    Mr. Fuller. I do.
    Judge Kugler. I do.
    Mr. Leighton. I do.
    Judge Linares. I do.
    Mr. Smith. I do.
    Judge Klausner. I do.
    Chairman Leahy. Let the record show that all responded in 
the affirmative.
    Before we begin, one, I am delighted to have you all here 
and I thank you for coming on relatively short notice, but if 
all goes well, you will have a lifetime to rearrange your 
schedule after that and it should be worth it.
    Ms. Collyer, do you have friends or family here that you 
would like to introduce? I try to do this at the beginning of 
each hearing so that some day when you go back in your archives 
or whatever, you can note on the record just who was here.


    Ms. Collyer. Thank you very much, Senator Leahy, Mr. 
Chairman. Yes, my husband, Phil Collyer, is here with me, and 
our friends, Ched and Jenny Bradley and their daughter, Sarah, 
as well as some of my colleagues from Crowell and Moring. 
Unable to be here is my son, Tim Collyer. Thank you.
    Chairman Leahy. Would they please stand so we can all see 
them. It is good to have you here, and we will put all the 
names appropriately in the record. Thank you.
    Mr. Fuller?


    Mr. Fuller. Thank you, Mr. Chairman. I would like to 
introduce my wife, Lisa Fuller; my uncle, Dr. Theron Fuller, 
and our good friends, Dr. Jim Reese and his wife, Marci. Unable 
to be here are my daughters, Kailin and Meredith Fuller; my 
son, Everett Fuller; and my mother and father, Rebecca and 
Kenneth Fuller.
    Chairman Leahy. Thank you, and thank you very much for 
being here.
    Judge Kugler?


    Judge Kugler. My wife, Mary Colalillo, is here; my 
secretary, Marcy Golub; my law clerk, Amy Montemarano; and two 
former law clerks of mine have come today, Mike Kibler and 
Yolanda Goettsch. Unable to be here is my son, Douglas Kugler. 
I would like to introduce them. Thank you.
    Chairman Leahy. Thank you very much for being here.
    Mr. Leighton?


    Mr. Leighton. Mr. Chairman, here with me is my wife, Sally. 
Our two sons, Ben and Joe, were not able to make it.
    Chairman Leahy. How old are they?
    Mr. Leighton. Fourteen and 17.
    Chairman Leahy. They are probably tied up with school.
    Mr. Leighton. Football practice.
    Chairman Leahy. Football practice. It is that time of year. 
You have already got Senator Sessions' vote on that answer.
    Judge Linares?


    Judge Linares. Thank you for the opportunity to be here. I 
would like to introduce my wife, Gail, who is here with me 
today; my son, Joseph, who is 18 and a sophomore at Villanova; 
my daughter, Megan, the apple of my eyes; my little guy, Eric. 
I would also like to introduce my dad, Jose Luis Linares, 
Senior, who is here, and last, I also would like to introduce 
my uncle, Rafael Tejada, who is here on a special visa from 
Cuba to see this hearing today.
    Chairman Leahy. Fantastic.
    Judge Linares. Do you want to stand up, please?
    Chairman Leahy. We welcome you.
    Judge Linares. Mr. Chairman, at the risk of scaring a few 
folks, I do have an awful lot of family members here. I am just 
going to introduce them in mass, if they would stand up. I have 
the rest of my brothers, Luis Alberto Linares, Luis Arturo 
Linares, Luis Manuel Linares, and Marco Linares; my nieces, 
Luanne, Colleen, and Brittany Linares; my nephews, Artie and 
Ryan Linares; as well as my father-in-law, Ronald Blaha. That 
is half of the gallery back there.
    Chairman Leahy. You probably filled up Amtrak coming down 
    Judge Linares. Amtrak was happy.
    Chairman Leahy. Amtrak was happy.
    Afterwards, the staff will check with you to get all their 
names and make sure they are in here. Where in Cuba is your 
uncle from?
    Judge Linares. He is from Havana. It is a small town 
outside of Havana called Capdevila.
    Chairman Leahy. I have been there.
    Judge Linares. Is that so?
    Chairman Leahy. I have. That is why I asked. My wife is a 
nurse and we went down and traveled around some of the medical 
facilities in Cuba and did a lot of photography and went out in 
some of the areas around there. At that time of the year, it 
was very nice weather.
    Judge Linares. That is where I spent the first 12 years of 
my life, as well. Thank you.
    Chairman Leahy. You know the waterfront there. You know the 
waterfront in the Havana and you know the area, as well, then.
    Mr. Smith?


    Mr. Smith. Thank you, Mr. Chairman, and thank you for 
having this hearing. With me is my wife, Christine; my 
daughter, Katie; and my daughter, Allison. Katie is 14 and 
Allison is nine. I would just like to acknowledge for the 
record my parents, who could not be here but may be listening 
to this hearing through the computer. They live in Idaho and my 
father is a retired State court trial judge who has been a 
great inspiration to me. I would just like to acknowledge them 
for the record, Eileen and Walter Smith.
    Chairman Leahy. I bet they must be very proud.
    Mr. Smith. Yes, sir.
    Chairman Leahy. I remember my parents were fortunately with 
me the first few times I was sworn into the Senate, and I 
remember their pride in seeing that. It is always, I think, you 
are more proud of your children. I remember the day I stood in 
the Vermont Supreme Court and saw my oldest son get admitted to 
the bar. I found it probably a greater thrill than the day I 
got admitted to the bar, and that was a thrilling day for me.
    Judge Klausner?


    Judge Klausner. Mr. Chairman, thank you very much for 
having us here today. I would like to introduce my wife, my 
better half, Linda Klausner. Unfortunately, because of the time 
constraints and distance, our five children were not able to 
make it. One, I thought could make it today because he is in 
his last year of medical school at Georgetown, but the hospital 
would not let him off today. My children are Julie Bigelow, Rob 
Klausner, Kim Buckmaster and her husband David Buckmaster, 
Brian Klausner, and Scott Klausner.
    Chairman Leahy. Well, you know what we will do? We will get 
all their names and have them all referenced in the record, and 
I will do that with everybody here.
    When you spoke of your daughter as being the apple of your 
eye, my wife and I have one daughter. It was once remarked that 
she is able to twist her father around her little finger and my 
response was, it is not so. It is just that everything she has 
ever asked for has been so reasonable.
    Chairman Leahy. I will go back to you, Ms. Collyer. You 
served as a precinct committeewoman for the Republican Party 
and appointed by President Reagan, as I understand, to the NLRB 
and the Federal Mine Safety and Health Review Commission, as 
have other nominees in other such positions. You can go into 
these positions and take party positions, obviously, as one 
would be a precinct committeewoman for the Republican Party. I 
fully expect you to, just as though you were a precinct 
committeewoman for the Democratic Party, to take your party's 
    But on the bench it is different, and the question I always 
ask myself before I vote on a nominee, can I be assured that if 
I walked into that nominee's court that it would make no 
difference what my color was, what my religion was, what my 
political affiliation was, whether I was plaintiff or 
defendant, whether I was rich or poor, and that whatever the 
political or philosophical goals of the nominee had been prior 
to going on the bench, that he or she would set that aside and 
realize the value of the lifetime appointment is that everybody 
has to be treated the same.
    Are you convinced you can do that?
    Ms. Collyer. Thank you, Mr. Chairman, for the opportunity 
to respond to that question. I believe that I can do that and I 
think that my prior opportunities for public service have 
demonstrated that.
    I was, indeed, a precinct committeewoman for the Republican 
Party back in the early 1980's and quite proud of my 
participation in that. But in both of my prior positions as 
Chairman of the Mine Safety and Health Review Commission and as 
General Counsel at the NLRB, I needed to take an entirely 
different approach to the job, which is what I did, and I feel 
very lucky that coming out of each of those positions, people 
who appeared before me and worked with me have been very 
supportive of this nomination, which encourages me to the fact 
that I was trying to be exactly as you described, fair, 
balanced, and not partial for the reasons that you described.
    So I feel that I was not only trying, but was successful in 
that effort, and I can commit to you that if I am confirmed by 
the Senate, I will approach my duties as a District Court Judge 
with the same level of balance and fairness and high ethics.
    Chairman Leahy. Could you tell me, because you know 
yourself in your civil litigation, when you go into a 
courtroom, you carry enough burden having to win, or trying to 
win your client's case and all, but you do not want to have to 
win the judge, too. I realize this can cut both ways. That is 
why I raise that, and it is something I think that a judge has 
to ask themselves when they come forward.
    Those of us in elective office and partisan elective office 
have a joy certainly on certain political issues to be able to 
take a party position or something like that, and that is fine 
and fully expected and is right, although the number of times 
that Senator Sessions and I have ended up voting for the same 
thing, we figure out that back home, one of us is in trouble.
    Chairman Leahy. Either it is a very good piece of 
legislation or one of us did not understand it.
    Chairman Leahy. And there are, of course, those areas. But 
as a judge, you do not even have that luxury. You have got to 
be straightforward.
    Incidentally, most of your experience has been in civil 
litigation, and, of course, where you are going, you are going 
to have, fortunately or unfortunately, you are going to have a 
big criminal docket. Our Federal Courts are getting more and 
more that way every day. We wish it was not that way, but it 
is. How do you do that? How do you move? How do you prepare 
yourself to do the criminal docket?
    Ms. Collyer. Well, Mr. Chairman, when I was Chairman of the 
Mine Commission, I was doing administrative adjudication as an 
administrative court of appeals, if you will. When I was 
general counsel, I was a prosecutor. I was the nationwide 
prosecutor of unfair labor practices. In private practice, I 
have been an advocate.
    If I am confirmed and serve on the District Court, I will 
be the trial judge for both civil and criminal, as you point 
out. To prepare for the criminal side of this bench, which is 
quite active, I have spent some time in the courts already, in 
these courts, observing the judges as they carry out their 
duties, preparing in terms of procedure and other issues of law 
that appear before these courts, this court, and working with 
the chief judge and the other judges on the bench to be 
prepared in order to, as another person testifying here today 
said, in order to be able to hit the ground running. And I have 
every intention of dedicating myself to that effort so that I 
can hit the ground running.
    Chairman Leahy. You know there will be plenty to do. You 
know that there will be plenty to do.
    Ms. Collyer. Oh, yes, sir. Yes, sir, I do. Thank you.
    Chairman Leahy. Mr. Fuller, you served as a litigator in 
private practice, and incidentally, correct me if I am wrong on 
any of these numbers, private practice for around 11 years. You 
were a State prosecutor for a little more than 6 years, is that 
    Mr. Fuller. That is correct, Mr. Chairman.
    Chairman Leahy. You have been in State courts a lot. You 
have not had a lot of experience in Federal Court. You tried 
only six cases in Federal Court, so that is about 4 percent of 
the cases you tried to a verdict or a judgment.
    I know you have had a lot of experience on criminal cases 
as the District Attorney and both Senator Sessions and I, as 
former prosecutors, know that you get a lot of experience 
there, too. But the District Court to which you have been 
nominated has one of the largest case loads in the country. In 
fact, one of the reasons your nomination kind of moved up out 
of order is that both Senator Sessions and Senator Shelby have 
told me about that enormous number of civil cases, the fourth 
largest number of civil filings in the country. Did you know 
    Senator Sessions. I did not know that figure.
    Chairman Leahy. I did not, either.
    Senator Sessions. It should have been in that package. It 
was not in that package.
    Chairman Leahy. I think I am right on that, the fourth 
largest number of civil filings in the country. So how do you 
get up to speed? It is sort of the other side of what I asked 
Ms. Collyer, because you are going to have some very, very 
complex civil cases. Already among those that are filed, I 
would be willing to guess, if you have got that large of a 
number, you are going to have a lot of them that are pretty 
complex. How do you get up to speed on that?
    Mr. Fuller. Well, I think, Mr. Chairman, I believe that the 
best opportunity I can use to explain this is I have had the 
benefit of being both on the civil and criminal side and I have 
had the opportunity of being associated with the judges who 
have been active in the Middle District of Alabama for quite a 
number of years. I have met with all of the judges, both of the 
senior judges and both of the active District Judges now, and 
working with them to gain both valuable experience and insight 
from them and their staff to assist me in getting up to speed 
and, obviously, in handling the caseload that is in the courts.
    Chairman Leahy. Over the last few years, many very 
prominent Americans have begun raising concerns about the death 
penalty. Some are current or former supporters of capital 
punishment. Actually, a lot of people who strongly support 
capital punishment have been raising concerns. For example, in 
a speech last summer, Justice O'Connor of the Supreme Court 
said there were serious questions about whether the death 
penalty is fairly administered in the U.S. She said, ``The 
system may well be allowing some innocent defendants to be 
    Now, you successfully prosecuted several high-profile 
capital cases, including several very brutal murders. I am very 
concerned about a significant number of cases in this country 
where it is not a question of whether under State law capital 
punishment applied or not, or under Federal law, capital 
punishment applied or not, but the question was, did they get 
the right person? The obvious problem is, what if you have got 
the wrong person on death row? That is a terrible tragedy in 
and of itself. But it also means the person who committed the 
crime is out free to do it again.
    So do you believe that the death penalty is fairly 
administered, and if not, what changes do you think are 
warranted in either Alabama or on the Federal level?
    Mr. Fuller. Mr. Chairman, I believe my position, if I 
should be so fortunate as to pass through this committee and be 
confirmed, would be in a position of applying the principles of 
stare decisis and adopting the principles that have been set 
down by the U.S. Supreme Court. I am committed to doing that. 
Whether I believe that the death penalty is fair in its 
application, with all due respect, I do not believe has any 
purpose in what my feelings may be.
    Chairman Leahy. Do you really mean that, Mr. Fuller, 
because I am not talking about the stare decisis. The Supreme 
Court has upheld the constitutionality of the death penalty, 
provided the evidence is presented in a certain fashion and so 
on and so forth. But there are a lot of things that do not come 
into stare decisis, not the least of which is the question of 
providing defense counsel.
    Now, we have had cases, for example, death penalty cases 
where it has turned out the lawyer slept through much of the 
case. In fact, one of those went up on appeal to the Texas 
Supreme Court and they said, well, the Constitution requires 
you to have a lawyer but it does not require the lawyer to stay 
awake. Of course, eventually, as most of us would expect, it 
was overturned, but you must have some feelings about who gets 
assigned as counsel if it is an indigent counsel case, don't 
    Mr. Fuller. Yes, sir, and I certainly feel that----
    Chairman Leahy. That does not fall under stare decisis as 
    Mr. Fuller. No, sir, and I must have misunderstood your 
question. I apologize. I do feel very strongly that a 
defendant, be they fortunate enough to be able to hire their 
own counsel or be indigent and be appointed counsel, should be 
appointed qualified counsel and should have the opportunity to 
be represented by competent counsel, because there is nothing 
harder that I have done in my legal career than to try a man 
and ask for his or her life, and I think that it ought to be 
that difficult and I believe that our Supreme Court has set 
procedures in place that, hopefully, will preserve each 
person's right to liberty in their life and to give them an 
opportunity to be represented fairly.
    Chairman Leahy. As a Federal Judge, you would have a role 
in making sure it is balanced, would you not?
    Mr. Fuller. Yes, sir. I certainly would hope that I would 
try to do that.
    Chairman Leahy. Let me ask you this. When you were a 
District Attorney, did you find in the long run, keeping in 
mind you do not want to just win a case, but you want to have 
it preserved on appeal, which would you prefer, an incompetent 
counsel on the other side or a darn good counsel on the other 
    Mr. Fuller. I would prefer the best counsel that is 
    Chairman Leahy. Actually, I found that----
    Mr. Fuller. It makes the case a whole lot easier.
    Chairman Leahy. It also gives you some assurance that if 
you win the case at the trial level, you are probably going to 
win at the appellate level.
    Mr. Fuller. Absolutely.
    Chairman Leahy. I cannot think of anything worse for a 
prosecutor than to have to retry a case seven or 8 years later.
    Mr. Fuller. And as a prosecutor, one of the worst things I 
can think of is to have an innocent person in prison, too.
    Chairman Leahy. So you do not have any problem in the 
concept of the Federal Judge, trial judge, has a duty in making 
sure in these criminal cases that there is a balance in 
representation, I mean, a balance in this sense, that the 
rights are being protected, both of the State and of the 
    Mr. Fuller. I would not try to venture into speculation on 
what you may be asking, but I do agree that the judge does have 
a place in trying to ensure fairness, not only in criminal 
cases but also in civil cases.
    Chairman Leahy. That is what I was asking.
    Mr. Fuller. Yes, sir.
    Chairman Leahy. Now, you are a founding member of the 
Coffee County Teen Court, which is described as a juvenile 
diversion for first offenders who recognize the error of their 
ways. You were a founding member of Students Against Violence 
in Education. Last week, we passed the first juvenile justice 
bill in decades. There is a debate that goes on whether the 
purpose of the system is rehabilitation or retribution of those 
who are convicted.
    What do you think in juveniles? I mean, just give us some 
of your philosophy, and I realize, again, of course, you are 
bound by whatever the court rules or anything else, but you 
spent some time on some of these pro bono and other things. 
What is your philosophy when it comes to juvenile justice?
    Mr. Fuller. Being a father, my wife and I have three 
children and the oldest is 15 and the youngest is seven, so 
juvenile justice has a unique meaning right now in our lives. I 
think, Mr. Chairman, that if we are going to make a change in 
this country, that young people is the best opportunity that we 
can. I think if we can stop crime at an early age. we can 
prevent larger social problems and also lessen the burden on 
overcrowding in our prisons. I mean, we are never going to--if 
we face reality, we are never going to eliminate crime. But if 
we can provide programs and provide adults who can provide 
guidance and leadership to young people, maybe we can avoid 
some of those problems in the future.
    Chairman Leahy. Now, you provide legal services on a pro 
bono basis throughout your career. You served as appointed 
counsel to indigent criminal defendants. You represent 
individuals in children's rights or domestic relations cases 
where the client could not pay. You provided assistance to 
victims of flood, tornadoes, and other large natural disasters 
as part of the Alabama State Bar Task Force on Disaster Relief. 
I talked about some of the other things you have done.
    Do me a favor. When you are asked to speak to bar groups, 
and you will be more than you like, tell the lawyers, do some 
pro bono work. Tell them that some day, they may even be up 
here and they will find if I am still chairman or ranking 
member of this committee, there is nothing that I find more 
encouraging than to find lawyers who have done pro bono work, 
and I mention that and commend you for what you have done. Urge 
them to. Lawyers have a privileged place in society, and as a 
result, they should do something to help.
    Mr. Fuller. It would be my privilege, Mr. Chairman.
    Chairman Leahy. Thank you. I have been taking a lot of 
time. I am just trying to go down through this, but Jeff, you 
feel free.
    Senator Sessions. Do you want to go through the list of all 
first? I could come back. With Mr. Fuller, I do know that he is 
challenged with a tough case load. Of course, most lawyers have 
some sort of degree like political science or something. He had 
an undergraduate degree in chemical engineering, and we have 
discussed that some. But the discipline, the management skills 
that it takes to be a good Federal Judge today, and I say this 
to all of you, is real significant. The workload is going. You 
have to learn to use magistrates and law clerks and manage that 
docket and manage the clerk staff. It is a pretty big job just 
in management.
    I guess I will ask you publicly what I asked you, Mr. 
Fuller. Are you willing to work at it to make sure you are as 
productive as possible, to render your rulings timely and on a 
fair basis?
    Mr. Fuller. I assure you I am, Senator Sessions.
    Senator Sessions. I think you are going to a great court 
there in Montgomery. Quite a number of great judges are there 
today. Of course, it was a district for Judge Frank M. Johnson, 
one of the great judges in the country who served there 
recently. So it is an important bench and I believe this 
nominee is going to do very well, Mr. Chairman. I know Senator 
Shelby has also worked hard to review his background and 
abilities and he is strongly convinced, likewise, that he will 
do a superb job and we thank you for moving that nomination.
    Mr. Fuller. Thank you.
    Chairman Leahy. Thank you.
    Senator Sessions. Ms. Collyer, I would just mention, you 
know, I know you believe as I do that being politically active 
is not bad. I have had nominees come before me and say, well, I 
am just wonderful. I have never been involved in politics.
    Senator Sessions. And I never miss a chance to say, well, 
you do not care about your country? You are not engaged?
    Chairman Leahy. I do not want you to think by asking that 
question--I have also asked the same, almost verbatim, the same 
question of Democratic nominees when they were allowed to have 
a hearing in the last 6 years.
    Chairman Leahy. No, but I have asked the same thing. I have 
asked the same thing of nominees of both President Clinton and 
of President Carter and I have asked exactly the same question.
    Senator Sessions. You have, and I know you understand that. 
We had State party chairmen and campaign chairmen and others 
who have been involved in politics come through here in the 
last five-and-a-half years I have been here, mostly Democrats, 
but that is all right. That is what makes our system work, that 
lawyers and citizens get involved and a precinct chairman, that 
is particularly good. You were not even counsel to some special 
group. So I would commend you. But the chairman is correct. You 
go on that bench, there is no Republican and no Democrat. You 
call it like you see it.
    Chairman Leahy. If it wasn't for some of those precinct 
chairmen, Jeff, you and I would not be here.
    Senator Sessions. You are so right.
    Chairman Leahy. Mr. Kugler, you served as a Federal 
Magistrate Judge for the U.S. District Court of the District of 
New Jersey for, what, 10 years now?
    Judge Kugler. In 2 weeks, it will be 10 years, Mr. 
    Chairman Leahy. So I do not have to ask you if you know 
your way around a District Court. You obviously do. What are 
some of the things that come first to your mind if you went 
from being the magistrate to being the District Judge?
    Judge Kugler. The workload will be slightly different. The 
only thing different that I will face will be trial of felony 
cases. In the District of New Jersey, magistrate judges do all 
but try felony cases. They do all other responsibilities for 
the District Court, management of all cases, trial of civil 
cases, the----
    Chairman Leahy. Do you do preliminary hearings and things 
like that?
    Judge Kugler. Yes, we do.
    Chairman Leahy. Motions to suppress?
    Judge Kugler. In some cases we do, sir, yes, sir. We 
probably--I would probably try more civil cases than I 
presently try now and we will probably have more dispositive 
motions than I currently do. But I have had experience in all 
of those matters.
    Chairman Leahy. Now, you also served on the Third Circuit 
Task Force on Equal Treatment, specifically the Commission on 
Race and Ethnicity, and you co-chaired the investigation into 
judicial nominees. I glanced through the final report presented 
to the Judicial Council in 1997. It found a significant lack of 
representation of races and ethnicities in certain areas, 
namely judicial officers, law clerks, judicial staff, court 
adjunct appointments. What did they recommend, in general, be 
done to change that?
    Judge Kugler. Well, ours was more of an informational 
gathering, Mr. Chairman, just to let all the judges and 
personnel in the Third Circuit know what we found and hope that 
the individual District Courts or the circuit or whomever it 
might be take action as they deemed fit. We really had no 
statutory authority to do much else.
    Chairman Leahy. How would you feel yourself? You are going 
to be in a position to appoint clerks and magistrate court 
staff and all. You come from a State which has a sort of a 
diverse ethnic/racial background. Do you feel that that is 
something that should be looked at in your own appointments?
    Judge Kugler. It should----
    Chairman Leahy. Obviously, you look at quality, first and 
foremost, but is this something you should be looking at?
    Judge Kugler. And I do, Senator. I am committed to that in 
my personal staff over the years and I will continue to be so.
    Chairman Leahy. Do you believe there is a constitutional 
right to privacy?
    Judge Kugler. I believe the Supreme Court has found such a 
constitutional right to privacy in the Griswold case and I 
think part of the Roe v. Wade decision.
    Chairman Leahy. Do you have any doubt in your mind that you 
would follow stare decisis in cases both from your circuit and 
from the U.S. Supreme Court?
    Judge Kugler. Mr. Chairman, I have no doubt whatsoever. We 
take an oath as judges to follow the law and the Constitution 
of the United States and I will do that.
    Chairman Leahy. Thank you very much.
    Mr. Leighton, you are a trial attorney. You have expertise 
in some very complex litigation in Federal Court, including 
tort litigation. I looked at your list of ten most significant 
cases. You include four personal injury or product liability 
cases. In three of them, you represented the plaintiff. You 
have been an active member of organizations for defense 
counsels, such as the Washington Defense Trial Lawyers, the 
International Association of Defense Counsel.
    If you go on the bench and now you have somebody who is in 
there bringing strong claims against corporate interests, can 
they stand there and think a Judge Leighton is going to set 
aside his views he may have had as a plaintiff's attorney or as 
a defense attorney and treat us based on the merits?
    Mr. Leighton. Absolutely, Your Honor.
    Mr. Leighton. I knew I would be the first one to do that, 
Mr. Chairman.
    Chairman Leahy. If you knew the number of times people have 
done that. I consider it an honor. But also, I came here 
directly from being State--we call our District Attorneys 
State's Attorneys--I came here directly from being State's 
Attorney. Two months after I came here, I was on a farm bill. I 
was asked to testify and the chairman asked me a question and I 
said, well, Your Honor. I was so used to being in court, so 
everybody does it. But please, go ahead.
    Mr. Leighton. That was my way of saying, subliminally, that 
I would be more comfortable if I were in court right now.
    Senator Sessions. That is an indication you have been in 
court and you know your way around.
    Chairman Leahy. As I say, we have all done it.
    Mr. Leighton. I have been in court a lot, Mr. Chairman, and 
I think one of the skills that marks a good trial lawyer is the 
ability to detach their own personal views, whether it has to 
do with individuals and corporations or political issues, to 
make judgments in favor of providing the best representation 
you can for your client, to not allow your own personal views 
to cloud your judgment.
    And so, again, I think the ability to stand back and look 
at a case on its merits is a hallmark of a good trial lawyer. 
Hopefully, I have been a good trial lawyer, and I do not have 
any doubt that if I am fortunate enough to be confirmed, I will 
be able to take that skill to the bench.
    Chairman Leahy. Mr. Leighton, as sort of a variant on this, 
and I would remind every one of the nominees of something that 
Senator Thurmond, for the nearly quarter of a century I have 
been on this committee, a question he has always asked when he 
has been here, or not so much a question but a statement he has 
made to nominees, remember, when you go in that courtroom, you 
are the most powerful man or woman in the courtroom and that 
power is not just the power of administrating justice, but you 
can humiliate a litigant or an attorney with impunity. You can, 
by showing bias to one side or another--it is something that 
when you read the record, it may not show. The raised eyebrows 
may not show. The tone of voice may not show. But you can sway 
the case one way or the other.
    What Senator Thurmond said is, please remember--and there 
is nothing we can do to stop that once you are there, but you 
can do it and you can make sure that it does not happen. In 
turn, you make a better court and you make better litigants.
    Please, everybody understand, I am addressing this to all 
of you. If Senator Thurmond was here, he would do that, and I 
told my friend, Senator Thurmond, that I intend as long as I am 
on this committee to at least make sure that the Thurmond 
statement is made.
    You have advised and represented plaintiffs bringing tort 
cases. You have defended corporations. Do you support efforts 
to cap non-economic and punitive damages or to limit 
defendants' liability to their percentage of fault rather than 
joint and several liability?
    Mr. Leighton. I have not supported such efforts in our own 
State in the past and have not participated in any legislative 
efforts on a Federal level to do so. As a judge, if I were 
fortunate enough to be confirmed, I would apply whatever law 
Congress enacts on that subject, recognizing that there is a 
strong presumption of constitutionality at the time the 
Congress enacts such laws.
    Chairman Leahy. Thank you. You also state that you worked 
on a pro bono basis since 1980, representing members of the 
local Cambodian American community. I see you helped with the 
purchase of land from a municipality, defended a complaint 
before the Human Rights Commission. That is over 20 years of 
work. I commend you for that, and I will say the same thing I 
said before. We have an advantage. I mean, you have had a good 
career. Financially, you, like so many lawyers, are in a good 
position. I suspect that a lot of these people you represented 
certainly do not understand what it is to be financially 
secure, so I commend you for that.
    Now, you are going to have, like others, you are going to 
go from a civil practice primarily to, if your court is the 
same as everybody else's around the country, a significant 
criminal practice. How do you plan to get up to date on that?
    Mr. Leighton. Mr. Chairman, what I have done since the time 
of my nomination is that I have talked to the chief judge of 
our district and the sitting judges and have received on a 
weekly basis their dockets, and when criminal cases have come 
up, I have gone over there if it was a hearing on--a 
suppression hearing or a revocation hearing or a short criminal 
trial short to finish. They have then invited me back into the 
chambers to discuss what the issues were that they were dealing 
with, how they were looking at a particular case. So I have 
been trying to bring myself up to speed as best I can during 
the time that I have had available to me.
    Chairman Leahy. And there are, as you know, there are 
programs for new judges----
    Mr. Leighton. And I will take full advantage of those, one 
starting tomorrow, I think.
    Chairman Leahy. You do want us to get you confirmed first, 
though, I suppose.
    Mr. Leighton. I would appreciate it.
    Chairman Leahy. I have got to tell you, in our State, 
because we are so small, we have two Federal Judges, District 
Judges, and one Court of Appeals Judge. For a number of 
reasons, they all basically became vacant at the same time, 
because one District Judge took senior status. The other 
District Judge went up to the Second Circuit. Now there are two 
new District Judges.
    One got confirmed about 2 months ahead of the other one, 
and you hear the expression, after the ``baby judge school,'' 
as they call it, obviously all esteemed judges, and he comes in 
and the first meeting they said, now, if the chief judge of 
your district called you up and said such and such, what would 
you do? He said, ``Well, I am the Chief Judge.''
    Chairman Leahy. And he is there in his first week.
    Judge Linares, you have devoted a lot of time--again, to 
followup on the pro bono, as I said to Mr. Leighton, let me go 
to you. You have devoted a lot of time to the Hispanic 
community and the disadvantaged. You represented many clients 
pro bono, you said a total of about five to 10 percent of your 
time during 20 years.
    You have spoken to law students and attorneys about the 
importance of role models in the Hispanic community. You have 
received the Latin American Law Student Association's 
Outstanding Attorney and Role Model Award. I want to get this 
on the record, because you deserve praise in that. You have 
helped disadvantaged children. You have served as counsel to 
the Hispanic Chamber of Commerce, past President of the 
Hispanic Bar Association. That took a lot of your own time, and 
there must have been some times you were wondering when you 
were going to practice law in between there.
    I commend you for that. Again, it goes back to, I mean, you 
have the advantage in your own background, coming to this 
country, doing well in this country, but giving a lot back to 
others and I commend you for it.
    Judge Linares. Thank you, sir.
    Chairman Leahy. What would you say is the most important 
lesson you have taken from your experience providing legal 
services to the Hispanic community? What are you going to 
remember about that when you go on the Federal bench?
    Judge Linares. Well, Mr. Chairman, I think that, first of 
all, what I would take with me is the very strong impact that 
good role models can make within the Hispanic community, and 
any community, regardless of their ethnic background. I think 
that as I did this work, and if you look at my resume, a lot of 
it had to do in the education process, having sat on the board 
of the county college and the high school board and dealing 
with the mentor programs and so forth.
    And I think that by involvement with those kinds of 
organizations, you bring about a sense of accomplishment that 
the younger members of the Hispanic community can take with 
them, that it can be done, that if you work hard and do the 
right things, you can accomplish great things in this country. 
Having said that, also, I have brought with me to the State 
bench a recognition that a lot of these people oftentimes do 
not have a say in a lot of things and they need the 
participation of folks like us to bring it to the forefront. So 
that is what I would bring with me.
    Chairman Leahy. Would I be safe in assuming that there 
probably will be more than one occasion, if you are talking to 
bar associations, that you might encourage pro bono work on the 
part of lawyers?
    Judge Linares. Sir, it is--Mr. Chairman, it was one of my 
favorite topics. I often talk--I do talk before the bar 
association and I have talked in front of law schools and the 
Hispanic Heritage organizations, as well as the Hispanic Bar 
Association, of which I am a past President. I always encourage 
them to do pro bono work, especially the type of pro bono work 
that involves you with specific segments of the community that 
need it the most, as I indicated in my previous answer.
    Chairman Leahy. Well, you must sort of see that on the 
court you sit on now.
    Judge Linares. Yes, I do. I think we should see more of it. 
I think we are, indeed, privileged to have--well, when I was a 
lawyer, and I was a lawyer not too long ago, we are very 
privileged to have a law license, which is a tremendous 
privilege, and part and parcel being able to or having the 
privilege to exercise your profession should be to give back 
and pro bono work is part of that. I think that I do see it in 
my court from time to time. I do not think we see enough of it, 
but I think it is changing.
    Chairman Leahy. Thank you. And what you said about role 
models is very important. Again, all of us have a 
responsibility there, those of you, those of us who are 
fortunate enough to get elected to this body. I believe we do, 
too. I appreciate that.
    Mr. Smith, you served as a municipal court judge in the 
town of West Warwick, Rhode Island. I have been in West 
Warwick, I want you to know.
    Mr. Smith. That is hard to believe.
    Chairman Leahy. A long time ago, a long time ago.
    Chairman Leahy. Actually, Rhode Island, you get a number of 
places, but also one of my classmates at Georgetown was from 
Cranston, Rhode Island, a man named Paul Bazzano. But when I 
was a prosecutor, we had two or three different cases, 
extradition matters, and one actually brought me down very 
briefly to West Warwick.
    Your father was a judge in Idaho. You indicate you often 
worked on his campaign. You probably saw a little bit of 
difference in the topography and the distances in traveling 
around. That was a short time on the municipal bench, but what 
would you take from that in going on the Federal bench?
    Mr. Smith. Well, one of the, I think, the advantages of 
serving in a court like a municipal court, Mr. Chairman, is 
that it really is a place where average citizens get maybe 
their only opportunity to observe what the judicial system is 
about. So while the matters may seem minor to those of us 
sitting here in the Senate and having this hearing, they are 
very important to the people that were there and from my point 
of view, it was an opportunity to show those folks that their 
matter was an important matter and that what they got out of 
the municipal court was going to be a good, fair hearing and a 
good, just result, and hopefully, they left there with the 
feeling that--a little bit better feeling about the judiciary 
in general. And it may be for most of those folks the only 
opportunity they have to see a court in action.
    So I would like to think that I would take the same 
attitude about handling matters to the Federal bench, and that 
is to say that so many individuals who come into contact with 
the courts may do it as a juror or they may do it as a 
defendant or they may be there as a victim. But in all of those 
situations, you want to make sure that they feel that the 
process is fair, that it is even-handed, that it is efficient, 
and I hope that I can bring that attitude to the job.
    Chairman Leahy. You also, I noticed in going through your 
background, and I appreciate that because when you are 
practicing law, you get so used to going from court to court to 
court and say, well, it is municipal court, now it is the State 
Court, now it is the Federal Court. If you are the person who 
has a case before there, you are right, that is your one and 
only case and that kind of overwhelms you. It is like going 
into what might be routine surgery. It is a lot different if 
you are the surgeon or you are the patient.
    Mr. Smith. That is right.
    Chairman Leahy. The patient, it is your one time there. If 
you are the surgeon, you may be one of five that day.
    You have also done a lot representing private and public 
entities and institutions of higher education in both labor 
negotiations and arbitration proceedings. You were a member of 
the Chief Justice's Task Force on Alternate Dispute Resolution. 
No District Court Judge can try all the cases before them, and 
encouraging settlement is sometimes a good thing to do. How do 
you approach that, though, because, obviously, you have to be 
careful that you do not decide a case not yet heard in your 
efforts to settle, but how do you feel about that? How do you 
feel about a judge at least nudging the parties toward a 
    Mr. Smith. Well, first of all, Mr. Chairman, I think that 
alternative dispute resolution is an important aspect of all of 
our courts, including the Federal Courts, and we are fortunate 
in Rhode Island that we have a very good ADR system. We utilize 
private attorneys on a panel as well as the magistrates for 
that purpose. The chief judge has recently scheduled an ADR 
seminar for the District Judges just along the lines of what 
you are saying, the theory that some cases need the involvement 
of the District Court Judge.
    I think that in terms of actually engaging in the process, 
first of all, I think it depends on whether it is a bench trial 
or a jury trial, and I think it is possible to be maybe a 
little more involved if you are not going to be deciding the 
facts, that is, in a jury trial situation. Then the party is, I 
think, going to have to want you to engage . But I think 
nudging them along is a good idea. I think we need to--that has 
been one of the benefits of being a labor lawyer, frankly, is 
finding creative solutions to difficult problems is a central 
part of that practice, because you do not want to be fighting 
all the time between labor and management. Solving your 
problems is important to having a good, productive, continuing 
    So I feel very strongly about it and I am hopeful that if I 
am confirmed, I can be productive in that regard.
    Chairman Leahy. I found in my experience in trying cases, 
every so often, you would have cases where neither side--and 
both sides may know it is something that should be settled, but 
neither side wants, for tactical reasons or otherwise, to make 
the first move, and getting a call from the judge saying this 
is coming up on the docket, I would really appreciate you both 
sitting down and seeing, one, if there are areas you can 
stipulate on or to negotiate out or something like that, and 
you are delighted to have the opportunity just to conduct it. 
Now, neither one loses face by sitting down and they can sit 
down and start working, and also, of course, if you go to 
trial, if you can stipulate a lot of it, it is going to be a 
lot quicker.
    On your questionnaire, you said when Senator Chafee met 
with you, you talked about a number of things, including 
judicial philosophy. How do you consider your judicial 
    Mr. Smith. Well, I think----
    Chairman Leahy. I am not asking you how you are going to 
decide various cases, but how would you describe yourself?
    Mr. Smith. When I think about the topic of judicial 
philosophy, Mr. Chairman, I really think about how should a 
judge behave on the bench and how should he or she decide the 
cases, and I would--so I would say that I think my philosophy 
would be to be even-tempered, to be patient but also to be 
efficient, to try to stick to the law as it has been written by 
Congress as closely as possible. I think that the job of the 
judge is not to try to write the law but to try to apply the 
law that you in Congress have given us, and to apply the 
precedents of our circuit and our Supreme Court and to not 
engage in trying to create new precedents or ignoring those 
governing precedents.
    In that sense, I think we lend a sense of predictability 
and consistency to our work, and if we can be predictable and 
consistent, I think we are doing a good thing by the litigants 
and by the attorneys that appear before us, so that is how I 
would describe my philosophy.
    Chairman Leahy. Thank you.
    Judge Klausner, I notice you preside over a busy criminal 
docket at the Superior Court of Los Angeles. I have actually 
gone into some of those Superior Courts over the years. I 
wonder how one totally maintains their sanity afterward, but we 
will note for the record you have.
    Chairman Leahy. Many of your decisions are neither in 
writing or published, but one of your rulings was considered by 
the California Court of Appeals. That raised an interesting 
question, Jackson v. Superior Court. You ordered a criminal 
defendant to be incarcerated for failing to appear in your 
courtroom on time, but it turned out the reason he was late was 
the sheriff was late getting him there. The Court of Appeals 
granted a writ of mandamus and ordered you to dismiss the 
charges against him, one, because the sheriff's failure to 
bring him on time and your tardiness policy were not the result 
of your defendant. So have you changed that policy?
    Judge Klausner. Mr. Chairman, first of all----
    Chairman Leahy. Or have I stated it wrong, and please feel 
free to give your----
    Judge Klausner. Mr. Chairman, I must confess that that--I 
have been on the bench for 25 years. That had to be probably 
ten to 15 years ago, I would think, when I was in criminal----
    Chairman Leahy. Eleven years ago.
    Judge Klausner [continuing]. And I do not recall the 
specific facts of that case, so I really--I cannot address that 
particular case. I cannot imagine if it was the sheriff's fault 
for not having the defendant appear that the defendant would be 
punished for that.
    Chairman Leahy. Well, as I read the case, the Court of 
Appeals said, no, they cannot be.
    Judge Klausner. I agree.
    Chairman Leahy. Do you feel it is important for the judge 
to make sure the defendant in a criminal case, the defendant's 
rights are protected? Does the judge have any responsibility in 
protecting the rights of a defendant in a criminal case, or is 
that something up to the litigant solely?
    Judge Klausner. In the area of criminal law, the judge has 
much more of an obligation than they do in civil law, 
particularly in the area of protecting the rights of the 
defendant, and I say that guardedly because those rights and 
those protections are really established by legislature and by 
case law. In criminal law, as opposed to civil law, the judge 
has the obligation not only to make sure that the litigants are 
fairly treated, but that the rights of the defendant are also 
    Chairman Leahy. Now, I understand you have been available 
to the press to discuss matters related to your position as a 
Superior Court Judge. Is that any different when you are a 
Federal Judge? What should be the guideline for a Federal Judge 
in discussing or commenting on cases or controversy or court 
    Judge Klausner. Again, Mr. Chairman, when I was available 
to the press during that period of time that I was on the bench 
is when I was in an administrative role. There are several 
years when I was Presiding Judge of the Los Angeles Superior 
Court, and when you are in that position, you are not in a 
position of handling any cases individually but you are talking 
about the administrative role of the court and discussing that 
with the press and that was your obligation.
    I do not see much of a need when you are a trial judge. In 
fact, I think that there are problems with discussing with the 
media anything that pertains to the case.
    Chairman Leahy. You currently serve on the Response to 
Judicial Criticism Committee. What are some of the criticisms 
of courts, in general, that you hear? Is there anything we can 
do to help you?
    Judge Klausner. Mr. Chairman, how long do we have?
    Chairman Leahy. We have been wise enough not to have such a 
committee about the Congress.
    Senator Sessions. That is a good question, Your Honor.
    Chairman Leahy. What are the types of those things that you 
feel--things that you feel are legitimate criticisms where 
things can be done to make changes?
    Judge Klausner. Let me try to address that for you, Mr. 
Chairman. We have in California what is called the Commission 
on Judicial Performance and their obligation is to--as a 
disciplinary body, if the judge does anything that is 
inappropriate. There are a lot of instances that fall short of 
that, such as temperament on the bench, that may not be raised 
to the level of being called before the Commission on Judicial 
Performance but might affect the perception of the court, et 
    We have set up a committee in, first of all, in our court 
that encourages the attorneys, before they have to go public or 
take it to a disciplinary committee, to come to the court and 
we, as judges, particularly the administrative judges, will 
talk to the judge about their deficiency if it comes to 
temperament, how they handle cases, whether they are rushing 
them too fast, if they have a lack of civility, and try to 
encourage the judge to change. We have no authority to take 
disciplinary action over the judge, but many times, just bring 
it to their attention helps quite a bit.
    And the other part of the committee is to help judges 
respond to inappropriate criticism. When somebody is 
criticizing in the newspaper, et cetera, a judge's decision 
because it is an unpopular decision, how to support that judge 
and work with that judge.
    Chairman Leahy. Knowing that the judge usually cannot go 
out and speak out in their own behalf.
    Judge Klausner. That is correct. That is correct.
    Chairman Leahy. My last question, in this court, you are 
apt to, as you would in any State, face the possibility of 
having death penalty cases. Are you concerned, as Justice 
O'Connor has said, that there are cases around this country 
where the death penalty cases have not been administered 
fairly? Is that a concern? Is that something you worry about?
    Judge Klausner. Well----
    Chairman Leahy. I am not asking whether you are for or 
against the death penalty. That----
    Judge Klausner. I understand that, Mr. Chairman.
    Chairman Leahy. It is constitutional. It is there. But----
    Judge Klausner. No, I understand that, Mr. Chairman, and I 
guess my response would be this, that I think that that is a 
very important question to ask and be addressed. I think it has 
to be addressed, first of all, at the legislative level. Second 
of all, it has to be addressed through the Supreme Court in 
their interpretation of the Constitution. I do not think there 
is any question that that is an extremely significant area and 
must be addressed, yes. I am not--that is not to say that the 
individual trial judge should be addressing that.
    Chairman Leahy. But would you say that an individual trial 
judge has, to take at least one area, has an obligation to make 
sure that a defendant in a capital crime case is adequately 
represented, and by adequate, not just somebody showing up?
    Judge Klausner. That is correct, and that all the 
protections that are afforded to that defendant by way of the 
Constitution and the laws of this State or the laws of the 
Nation are applied and that the defendant has the protection of 
all those rights that he or she is afforded.
    Chairman Leahy. Thank you.
    Judge Klausner. Not to create new----
    Chairman Leahy. I am sorry?
    Judge Klausner. Not to create new protections.
    Chairman Leahy. I understand.
    Judge Klausner. Yes.
    Chairman Leahy. I thank all of you. I thank especially all 
the people who sat here listening, and I would make it even 
more starting at the youngest up through, because even with 
family members here, for some of the young people who are here, 
this must be about as exciting as watching paint dry, but trust 
me, it is important. It really is. I thank you all for doing 
    Senator Sessions, did you want to----
    Senator Sessions. Just briefly.
    Chairman Leahy. Please understand, what we normally do, we 
go back and forth on this, and I did speak with Senator 
Sessions before we started and told him to jump in at any point 
he wanted.
    Senator Sessions. Thank you, Mr. Chairman. This is a fine 
panel. I would just congratulate each of you. In a sense, I 
guess there are two opportunities for the American people to be 
involved in your lifetime appointments. One, I suppose, is the 
elected President submitting your nomination, and the other one 
is your elected Congressional representatives voting on it. So 
it is an important step.
    I would just note for your friends and family and for the 
public in general that a lot more work has been done by the 
chairman and the President and the FBI and all on your 
backgrounds before you got here, so if you had any real 
problems, we would have heard about them before now or you 
would not be on the panel. So you passed a lot of tests. You 
have gone through a lot of hurdles. I congratulate you for that 
and I wish you the very best.
    I only ask one question of all of you. I know the chairman, 
as a former prosecutor, understands this, and that is your 
Federal prosecutors that appear before you--I used to be one 
for almost 15 years, and I learned one thing important, and 
that is that if the judge rules against a prosecutor, the 
prosecutor cannot appeal. If he rules against the defendant, 
the defendant can always appeal.
    Sometimes on close calls, I do not know if it is 
prosecutorial paranoia or reality, sometimes you think, well, 
the judge just ruled against the prosecutor because he thinks, 
or she does, that I will win the case anyway and do not need 
this evidence, and it might be error and I might get reversed 
if I rule the other way. So on close calls, sometimes I have 
observed that judges might choose to just rule against the 
    I would advocate to you that the prosecutor is entitled to 
a fair trial, too. Would you all agree with that?
    [Chorus of yeses.]
    Senator Sessions. Entitled to the same respect that any 
other attorney has in the courtroom and there will be no chance 
for that lawyer to appeal, so he or she really deserves the 
respect that any other litigant does--no more, but at least 
that much.
    I thank all of you for coming. There were a lot of good 
issues raised here. Judge Kugler, as a Magistrate, I will ask 
you if you could just briefly share with these other judges-to-
be how they should treat and utilize the Magistrate Judge in 
the district.
    Judge Kugler. Well, I think they should follow what we do 
in New Jersey, which is to use the Magistrate Judges to manage 
all the civil cases, try civil cases, do all the preliminary 
criminal work, as much as possible so that the District Judges 
can concentrate on trials, felony criminal trials, and 
dispositive motions. It has worked very well in our district 
and I commend it to all the other districts.
    Senator Sessions. I would agree. We have had tremendously 
capable Magistrate Judges in the Southern District of Alabama, 
where I practiced. The bar respected them. By giving them broad 
responsibility, do you think that helps attract good Magistrate 
applications and helps you attract more talented people?
    Judge Kugler. Absolutely. When we have a vacancy in the 
District of New Jersey for a Magistrate Judge, we typically get 
100 or more applications for that vacancy.
    Senator Sessions. That is the same as I have observed in 
our district, because it is a prestigious position. So I would 
just suggest to all of you that you do not need to erode the 
constitutional prerogatives of a Title III judge, but there are 
many things that a good Magistrate can do to help you 
accomplish your goal of producing justice in an expeditious and 
fair manner.
    Thank you, Mr. Chairman, for bringing this large number 
forward. It is a good hearing and I appreciate your leadership.
    [The biographical information of Rosemary Collyer, Robert 
Kugler, Ronald Leighton, Jose Luis Linares, William Smith, and 
Robert Klausner follow:]



































































































































































































































    Chairman Leahy. Thank you very much, and thanks for the 
comment about the Magistrate Judges. I know how Jerry 
Neidermeyer, who is a Magistrate Judge in Vermont, what a 
tremendous help he has been to us up there and the great 
respect there is for him, so thank you.
    With that, we stand in recess.
    [Whereupon, at 3:33 p.m., the committee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in the Committee