[Senate Hearing 107-584]
[From the U.S. Government Publishing Office]
S. Hrg. 107-584, Pt. 5
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
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AUGUST 1, SEPTEMBER 18, SEPTEMBER 26, AND OCTOBER 7, 2002
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PART 5
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Serial No. J-107-23
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Printed for the use of the Committee on the Judiciary
U. S. GOVERNMENT PRINTING OFFICE
88-116 WASHINGTON : 2003
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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
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THURSDAY, AUGUST 1, 2002
STATEMENTS OF COMMITTEE MEMBERS
Page
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
PRESENTERS
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
STATEMENTS OF COMMITTEE MEMBERS
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
PRESENTERS
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,
Illinois:
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
STATEMENTS OF COMMITTEE MEMBERS
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
PRESENTERS
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,
D.C.:
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
STATEMENT OF COMMITTEE MEMBER
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1303
PRESENTERS
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
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ALPHABETICAL LIST OF NOMINEES
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
NOMINATION OF REENA RAGGI, NOMINEE TO BE CIRCUIT JUDGE FOR THE SECOND
CIRCUIT; JAMES KNOLL GARDNER, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF PENNSYLVANIA; RONALD H. CLARK, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TEXAS; AND LAWRENCE J.
BLOCK, NOMINEE TO BE JUDGE FOR THE UNITED STATES COURT OF FEDERAL
CLAIMS
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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
Sessions.
OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. I want to welcome you all and thank you for
coming.
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.]
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
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
record.
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?
PRESENTATION OF RONALD H. CLARK, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TEXAS BY HON. PHIL GRAMM, A U.S.
SENATOR FROM THE STATE OF TEXAS
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
affirmative.
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.
STATEMENT OF REENA RAGGI, OF NEW YORK, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SECOND CIRCUIT
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--
PRESENTATION OF JAMES K. GARDNER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. RICK SANTORUM,
A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
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.
PRESENTATION OF RONALD H. CLARK, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TEXAS BY HON. KAY BAILEY HUTCHISON,
A U.S. SENATOR FROM THE STATE OF TEXAS
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
Ranger.
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
questions.
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
me.
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.
PRESENTATION OF REENA RAGGI, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND DISTRICT BY HON. HILLARY RODHAM CLINTON, A U.S.
SENATOR FROM THE STATE OF NEW YORK
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
understand--
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
case.
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.
PRESENTATION OF REENA RAGGI, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND DISTRICT BY HON. CHARLES SCHUMER, A U.S. SENATOR
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
Appeals.
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.]
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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.
PRESENTATION OF JAMES K. GARDNER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER,
A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
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
Pennsylvania.
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?
STATEMENT OF JAMES KNOLL GARDNER, OF PENNSYLVANIA, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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
here.
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
statement?
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.
STATEMENT OF RONALD H. CLARK, OF TEXAS, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF TEXAS
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
Annandale.
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.
PRESENTATION OF LAWRENCE J. BLOCK, NOMINEE TO BE JUDGE FOR THE
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. ORRIN G. HATCH, A
U.S. SENATOR FROM THE STATE OF UTAH
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.
STATEMENT OF LAWRENCE J. BLOCK, OF VIRGINIA, NOMINEE TO BE
JUDGE FOR THE UNITED STATES COURT OF FEDERAL CLAIMS
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
questions?
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
penalty.
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
not.
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?
PRESENTATION OF LAWRENCE J. BLOCK, NOMINEE TO BE JUDGE FOR
UNITED STATES COURT OF FEDERAL CLAIMS BY HON. JEFF SESSIONS, A
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
Clause.
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
issue.
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
appointment?
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
Amendment.
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
issue.
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
works.
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
mentioned.
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
on.
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
frequently.
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
interest.
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
interest.
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
appeals.
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
court.
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
quote.
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
examples.
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
opinion.
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
valid.
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
time-wise.
[Laughter.]
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:]
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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
follow.]
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NOMINATION OF MICHAEL W. MCCONNELL, NOMINEE TO BE CIRCUIT JUDGE FOR THE
TENTH CIRCUIT; KENT A. JORDAN, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF DELAWARE; ALIA MOSES LUDLUM, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF TEXAS; WILLIAM J. MARTINI, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; THOMAS W. PHILLIPS,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE; AND
JEFFREY S. WHITE, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
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.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
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----
[Laughter.]
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
committee.
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?
PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. ROBERT BENNETT, A U.S.
SENATOR FROM THE STATE OF UTAH
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
Circuit.
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
assassination.''
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.
[Laughter.]
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
Circuit.
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
that----
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.
PRESENTATION OF ALIA MOSES LUDLUM, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF TEXAS BY HON. PHIL GRAMM, A U.S.
SENATOR FROM THE STATE OF TEXAS
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
committee.
I thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Gramm. Eventually I am
going to remember to turn this microphone on.
Senator Hutchison?
PRESENTATION OF ALIA MOSES LUDLUM, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF TEXAS BY HON. KAY BAILEY HUTCHISON,
A U.S. SENATOR FROM THE STATE OF TEXAS
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?
PRESENTATION OF THOMAS W. PHILLIPS, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE BY HON. WILLIAM
FRIST, A U.S. SENATOR FROM THE STATE OF TENNESSEE
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
Tennessee.
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?
PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF DELAWARE BY HON. THOMAS CARPER, A U.S.
SENATOR FROM THE STATE OF DELAWARE
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
Delaware.
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?
PRESENTATION OF WILLIAM J. MARTINI, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY BY HON. JON CORZINE, A
U.S. SENATOR FROM THE STATE OF NEW JERSEY
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.
[Laughter.]
PRESENTATION OF THOMAS W. PHILLIPS, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE BY HON. FRED
THOMPSON, A U.S. SENATOR FROM THE STATE OF TENNESSEE
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
dissertation.
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.
[Laughter.]
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,
sir.
PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. JIM MATHESON, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
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
Budget.
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
nomination.
Thank you for your time.
Chairman Leahy. Thank you.
Senator Hatch, do you want to make a statement?
PRESENTATION OF MICHAEL W. MCCONNELL, NOMINEE TO BE CIRCUIT
JUDGE FOR THE TENTH CIRCUIT BY HON. ORRIN HATCH, A U.S. SENATOR
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.
[Laughter.]
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
damage.
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
rights.
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
point.
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
bench.
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?
PRESENTATION OF KENT A. JORDAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF DELAWARE BY HON. JOSEPH R. BIDEN, JR., A
U.S. SENATOR FROM THE STATE OF DELAWARE
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
apologize.
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.
[Laughter.]
Chairman Leahy. That is okay. He is going to be in the
record.
Senator Biden. He is in seventh grade at H.B. DuPont
School.
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
Office.
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.
[Laughter.]
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.
[Laughter.]
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.
[Laughter.]
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
may----
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.
STATEMENT OF MICHAEL W. MCCONNELL, OF UTAH, NOMINEE TO BE
CIRCUIT JUDGE FOR THE TENTH CIRCUIT
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.
[Laughter.]
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
opportunity.
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
such.
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
right?
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
Constitution.
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
there?
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
marriage?
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
people.
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
nominees.
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
responsibility.
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.
[Laughter.]
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
polygamy?
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
that----
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
considerations.
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
Amendment.
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.
[Laughter.]
Senator Specter. Well, how about Marbury v. Madison?
[Laughter.]
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.
[Laughter.]
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
understanding.
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
precedent.
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
function?
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
correct?
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
ideas.
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
bill.
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----
[Laughter.]
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
polarization.''
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
McCain-Feingold.
Mr. McConnell. Can I claim whiplash?
[Laughter.]
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
working?
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
precedent.
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
follow?
Mr. McConnell. I think we have to take the sheep with the
goats.
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.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
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
today.
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
publication?
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
Law''----
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
precedents.
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
right.''
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
2:15.
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
forward.
Welcome, Professor McConnell. Good to have you here in the
Committee.
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
club?
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
students.
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
recess.
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
opinion?
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
line.
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
ask.
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
strongly----
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
2:15.
[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
world.
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
alone.''
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
that.
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,
unconstitutional?
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
disagreement.
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
distinction?
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
abortions.
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----
[Laughter.]
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.
Chairman.
[Laughter.]
Mr. McConnell. But, Senator, my daughters do love Ben and
Jerry's.
Chairman Leahy. I'll give you that point.
[Laughter.]
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
Constitution.
Mr. McConnell. I think now you are speaking of privacy more
generally----
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
that.
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.
[Laughter.]
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
federalism----
Senator Cantwell. You haven't studied what his actions are
or----
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
covered.
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.
[Laughter.]
Chairman Leahy. Remember, you have to keep votes on this
side of the aisle, too.
[Laughter.]
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
with.''
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
question.
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
harsh.
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
pariahs.
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.
[Laughter.]
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
respect.
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
vote.
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.
[Laughter.]
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.
[Laughter.]
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
question.
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
there?
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
Democrats.
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.]
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Chairman Leahy. Let's take a 3- or 4-minute break while we
reset the table.
[Recess.]
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.
STATEMENT OF KENT A. JORDAN, OF DELAWARE, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF DELAWARE
Mr. Jordan. Thank you very much, Mr. Chairman.
Sitting in the back is my wife, Michelle. Oh, she moved up.
[Laughter.]
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?
STATEMENT OF ALIA MOSES LUDLUM, OF TEXAS, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS
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?
STATEMENT OF WILLIAM J. MARTINI, OF NEW JERSEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
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.
STATEMENT OF THOMAS W. PHILLIPS, OF TENNESSEE, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE
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?
STATEMENT OF JEFFREY S. WHITE, OF CALIFORNIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF CALIFORNIA
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
course.
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.
[Laughter.]
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?
[Laughter.]
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
executed.''
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.
[Laughter.]
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
proceedings.
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
fairly.
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
prosecutors?
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
goes.
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
question.
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
statute.
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
process.
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.''
[Laughter.]
Mr. Martini. I've already used that excuse.
[Laughter.]
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.
[Laughter.]
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
department.
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?
[Laughter.]
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
you.
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.]
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Chairman Leahy. We stand in recess.
[Whereupon, at 4:20 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF MIGUEL ESTRADA, NOMINEE TO BE CIRCUIT JUDGE FOR THE
DISTRICT OF COLUMBIA CIRCUIT; STANLEY CHESLER, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW JERSEY; DANIEL HOVLAND, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NORTH DAKOTA; JAMES KINKEADE,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS; LINDA
READE, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF IOWA;
AND FREDA WOLFSON, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW
JERSEY
----------
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
hearing.
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
Virginia.
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.
PRESENTATION OF MIGUEL ESTRADA, NOMINEE TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT BY HON. GEORGE ALLEN, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
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
Americans.
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.
PRESENTATION OF MIGUEL ESTRADA, NOMINEE TO BE CIRCUIT JUDGE FOR
THE DISTRICT OF COLUMBIA CIRCUIT BY HON. JOHN W. WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
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
Domenici?
Senator Domenici. Yes, I ask to do the same.
Senator Schumer. Thank you very much.
Senator Grassley?
PRESENTATION OF LINDA READE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF IOWA BY HON. CHARLES E. GRASSLEY, A
U.S. SENATOR FROM THE STATE OF IOWA
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
jury.
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.
PRESENTATION OF LINDA READE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF IOWA BY HON. TOM HARKIN, A U.S.
SENATOR FROM THE STATE OF IOWA
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.
PRESENTATION OF JAMES EDGAR KINKEADE, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF TEXAS BY HON. PHIL GRAMM, A
U.S. SENATOR FROM THE STATE OF TEXAS
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.
PRESENTATION OF JAMES EDGAR KINKEADE, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF TEXAS BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
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
Law.
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.
PRESENTATION OF STANLEY CHESLER AND FREDA WOLFSON, NOMINEES TO
BE DISTRICT JUDGES FOR THE DISTRICT OF NEW JERSEY BY HON. JON
CORZINE, A U.S. SENATOR FROM THE STATE OF NEW JERSEY
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
temperament.
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
life.
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.
PRESENTATION OF DANIEL HOVLAND, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NORTH DAKOTA BY HON. BYRON DORGAN, A U.S.
SENATOR FROM THE STATE OF NORTH DAKOTA
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
judge.
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.
[Laughter.]
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
country.
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
judiciary.
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.]
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
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
role.
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
nominee.
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
double-think.
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
courts.
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
why.
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
Reynolds.
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
memoranda.
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?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
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
committee.
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.
[Applause.]
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
community.
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
devise.
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
Kennedy.
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
immigrants.
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
Powell.
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
Hispanic.
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
Government.
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
pornography.
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
Commission.''
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
425-3.
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
exploitation.''
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
wish.
STATEMENT OF MIGUEL ESTRADA, OF VIRGINIA, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
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.''
[Laughter.]
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
memoranda.
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
credentials.
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
disclosure.''
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
either.''
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----
[Laughter.]
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
decisions.
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.
Estrada.
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
least.
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
work.
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
one.
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
upbringing.
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
judge?
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
derived.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
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.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
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
experience?
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
registration.
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.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
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
work.
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
nominee.
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
thing.
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
Law?
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
case.
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
involved.
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
cases?
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.
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?''
[Laughter.]
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?
STATEMENT OF HON. MITCH MCCONNELL, A U.S. SENATOR FROM THE
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
half.
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
vote.
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
``mainstream.''
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
time.''
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
belonged.''
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
Circuit.
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
precedent.
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
them.
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
privacy?
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
decided?
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
lesbians.'''
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
fairness.
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
now.
Mr. Estrada. I just want to make sure that I understand the
question.
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
recommendation.
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
them.
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
like.
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
Daley.
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
qualification.
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
constitutionality.
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
lesbians.'''
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
anybody.
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
today----
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
committee----
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
answer.
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
committee.
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
chance----
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
Edwards.
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
counsel.
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
interrupt.
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
Amendment.
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
correct?
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
choose.
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
constructionist?
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
analysis.
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
question.
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
court.
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
time.
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.
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
find----
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
person.
Senator Hatch. I understand she is an extremely brilliant
staffer, right?
Mr. Estrada. Excuse me?
Senator Hatch. She is an extremely brilliant staffer,
right?
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
you.
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
Kennedy.
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
out.
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
advance.
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
mayor.
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
corners.''
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
street?''
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
case?
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
discriminatory.
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
right?
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
upholding----
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
activities.
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
important.
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.
[Laughter.]
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
respond?
Mr. Estrada. Senator----
Chairman Leahy. I am trying to make sure you get equal time
here.
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
faith.
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
consideration?
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,
Senator.
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
judging.
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?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
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
that.
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
part.
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
community.
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
there.
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
judges.
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
is.
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.
[Laughter.]
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
careers.''
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
from.
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
the----
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
right.
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,''
unquote.
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
ideology.
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
Columbia.
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:]
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Senator Schumer. We are going to call the next group of
witnesses.
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
comment.
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.
STATEMENT OF STANLEY CHESLER, OF NEW JERSEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
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
Chesler.
Judge Chesler. With regard to the first question, Mr.
Chairman----
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?
STATEMENT OF DANIEL HOVLAND, OF NORTH DAKOTA, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NORTH DAKOTA
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?
STATEMENT OF JAMES KINKEADE, OF TEXAS, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF TEXAS
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
Congress.
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.
STATEMENT OF LINDA READE, OF IOWA, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF IOWA
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.
STATEMENT OF FREDA WOLFSON, OF NEW JERSEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
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
caseloads.
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
many?
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
comments.
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:]
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[Whereupon, at 5:25 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF ROSEMARY MAYERS COLLYER, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF COLUMBIA; MARK EVERETT FULLER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA; ROBERT BYRON KUGLER, NOMINEE
TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY; RONALD BRUCE
LEIGHTON, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
WASHINGTON; JOSE LUIS LINARES, NOMINEE TO BE DISTRICT JUDGE FOR THE
DISTRICT OF NEW JERSEY; WILLIAM EDWARD SMITH, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF RHODE ISLAND; AND ROBERT GARY KLAUSNER,
NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
----------
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.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
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.
[Laughter.]
Chairman Leahy. He is sitting back there saying, ``I hope
so.'' [Laughter.]
Go ahead.
PRESENTATION OF MARK EVERETT FULLER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA BY HON. RICHARD
SHELBY, A U.S. SENATOR FROM THE STATE OF ALABAMA
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?
PRESENTATION OF MARK EVERETT FULLER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA BY HON. JEFF SESSIONS,
A U.S. SENATOR FROM THE STATE OF ALABAMA
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
record.
[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.
PRESENTATION OF WILLIAM E. SMITH, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF RHODE ISLAND BY HON. LINCOLN CHAFEE, A U.S.
SENATOR FROM THE STATE OF RHODE ISLAND
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
record.
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
know.
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.
STATEMENT OF ROSEMARY MAYERS COLLYER, OF MARYLAND, NOMINEE TO
BE DISTRICT JUDGE FOR THE DISTRICT OF COLUMBIA
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?
STATEMENT OF MARK EVERETT FULLER, OF ALABAMA, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF ALABAMA
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?
STATEMENT OF ROBERT BYRON KUGLER, OF NEW JERSEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
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?
STATEMENT OF RONALD BRUCE LEIGHTON, OF WASHINGTON, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF WASHINGTON
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.
[Laughter.]
Chairman Leahy. Football practice. It is that time of year.
You have already got Senator Sessions' vote on that answer.
[Laughter.]
Judge Linares?
STATEMENT OF JOSE LUIS LINARES, OF NEW JERSEY, NOMINEE TO BE
DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY
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.
[Laughter.]
Chairman Leahy. You probably filled up Amtrak coming down
here.
Judge Linares. Amtrak was happy.
Chairman Leahy. Amtrak was happy.
[Laughter.]
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?
STATEMENT OF WILLIAM EDWARD SMITH, OF RHODE ISLAND, NOMINEE TO
BE DISTRICT JUDGE FOR THE DISTRICT OF RHODE ISLAND
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?
STATEMENT OF ROBERT GARY KLAUSNER, OF CALIFORNIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA
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.
[Laughter.]
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
position.
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.
[Laughter.]
Chairman Leahy. Either it is a very good piece of
legislation or one of us did not understand it.
[Laughter.]
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
correct?
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
that?
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
executed.''
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
you?
Mr. Fuller. Yes, sir, and I certainly feel that----
Chairman Leahy. That does not fall under stare decisis as
such.
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
side?
Mr. Fuller. I would prefer the best counsel that is
available.
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
defendant?
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.
[Laughter.]
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.
[Laughter.]
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.
[Laughter.]
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.
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.
[Laughter.]
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.
[Laughter.]
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.
[Laughter.]
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.''
[Laughter.]
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.
[Laughter.]
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
settlement?
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
relationship.
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
philosophy?
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.
[Laughter.]
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
protected.
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
administration?
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?
[Laughter.]
Chairman Leahy. We have been wise enough not to have such a
committee about the Congress.
[Laughter.]
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
cetera.
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
that.
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
prosecutor.
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:]
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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
files.]
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