[Senate Hearing 108-172]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 108-172
 
 CONFIRMATION HEARING ON NOMINATIONS OF ROBERT D. MCCALLUM, JR. TO BE 
    ASSOCIATE ATTORNEY GENERAL AND PETER D. KEISLER TO BE ASSISTANT 
                    ATTORNEY GENERAL, CIVIL DIVISION
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 8, 2003

                               __________

                          Serial No. J-108-10

                               __________

         Printed for the use of the Committee on the Judiciary








                        U.S. GOVERNMENT PRINTING OFFICE
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
















                            C O N T E N T S

                              ----------                              

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   106

                               PRESENTER

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia 
  presenting Robert D. McCallum, Jr., Nominee to be Associate 
  Attorney General...............................................     2

                                NOMINEES

Keisler, Peter D., of Maryland, Nominee to be Assistant Attorney 
  General, Civil Division, Department of Justice.................    39
    Questionnaire................................................    41
McCallum, Robert D., Jr., of Georgia, Nominee to be Associate 
  Attorney General, Department of Justice........................     4
    Questionnaire................................................     7

                         QUESTIONS AND ANSWERS

Responses of Peter D. Keisler to questions submitted by Senators 
  Leahy and Durbin...............................................    96
Responses of Robert D. McCallum, Jr. to questions submitted by 
  Senators Leahy, Durbin, Grassley and Kohl......................    70
















NOMINATIONS OF ROBERT D. MCCALLUM, JR. TO BE ASSOCIATE ATTORNEY GENERAL 
 AND PETER D. KEISLER TO BE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION

                              ----------                              


                         THURSDAY, MAY 8, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 3:34 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch and Chambliss.

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

    Chairman Hatch. Today, it is my great pleasure to have two 
Department of Justice nominees before the Committee: Robert 
McCallum to be Associate Attorney General and Peter Keisler to 
be Assistant Attorney General for the Civil Division. Both Mr. 
McCallum and Mr. Keisler are currently serving the Justice 
Department with great distinction, and, coincidentally, each of 
them holds or has held the position for which the other has 
been nominated.
    Let me first say a few words about Robert McCallum. Mr. 
McCallum is returning to the Committee for his second hearing 
in 2 years, and we welcome you back. On May 23, 2001, Mr. 
McCallum appeared before the Committee for a hearing for his 
current position as head of the Justice Department's Civil 
Division. He was reported favorably by the Committee by voice 
vote and also confirmed on the Senate floor by voice vote. I 
have no doubt that after today's hearing, Mr. McCallum will 
again be approved by this Committee and by the full Senate for 
his position at the Department.
    The position of Associate Attorney General, as everybody 
knows, is an extremely important one. The Associate Attorney 
General advises both the Attorney General and the Deputy 
Attorney General and supervises many important components of 
the Department, including the Antitrust, Civil, Civil Rights, 
Tax, and Environmental and Natural Resources Divisions.
    Mr. McCallum is well qualified for his position. After 
graduating from Yale Law School, he spent nearly 30 years 
litigating a wide range of complex matters and maintained a 
sophisticated civil trial and appellate practice. His clients 
included insurance companies, banks, business corporations, 
partnerships, and individuals involved in commercial disputes, 
also regulatory issues and personal injury claims.
    As head of the Civil Division, Mr. McCallum has shown that 
he is an enormously talented and committed public servant. 
Since his confirmation on September 17, 2001, just days after 
the September 11th tragedy, he has led the Civil Division with 
great skill, I think during very challenging times for our 
country. So I commend the President on his decision to promote 
Mr. McCallum to the position of Associate Attorney General, and 
I am certain that he will continue his exemplary public service 
once confirmed to his new post.
    I know that Senator Chambliss is here to speak in further 
support of Mr. McCallum's nomination, and I will turn to Mr. 
Keisler after Senator Chambliss gives his remarks. And I just 
want to express to everybody how grateful I am to have this 
great former Member of the House on the Senate Judiciary 
Committee serving with me. I just feel really blessed to have 
you with us, Saxby, and we will turn the time over to you.
    [The prepared statement of Chairman Hatch appears as a 
submission for the record.]

    PRESENTATION OF ROBERT D. MCCALLUM, JR., NOMINEE TO BE 
  ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, BY HON. 
   SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA

    Senator Chambliss. Thank you, Mr. Chairman. It is indeed a 
privilege and a pleasure to be associated with you and to serve 
under you as a member of this very distinguished Committee, and 
your service speaks for itself. You are a great American and 
certainly a great leader of not just this Committee but of our 
Nation.
    Mr. Chairman, I would like to introduce to you a fellow 
Georgian, Mr. Robert Davis McCallum, Jr., who is President 
Bush's nominee to be the Associate Attorney General. But before 
I do so, I would like to introduce his wife, Mimi, who is also 
with us today, and ask her to stand. Mimi, where did we go?
    Chairman Hatch. We are sure happy to have you here, Mrs. 
McCallum.
    Senator Chambliss. Mr. McCallum has had a tremendous legal 
background and is exceptionally qualified for this position, 
which is a promotion for him within the Department of Justice. 
For almost 2 years now, Mr. McCallum has been the Assistant 
Attorney General for the Civil Division in the Department of 
Justice. Prior to joining the Department of Justice, Mr. 
McCallum worked as a partner in the Atlanta-based firm of 
Alston and Bird, which is one of the premier law firms in the 
country. It is a firm, Mr. Chairman, which I had the privilege 
of being associated with numerous times throughout my 26-year 
legal career in Georgia.
    During the 1980's, while still working with Alston and 
Bird, Mr. McCallum served as a Special Assistant Attorney 
General for the State of Georgia, counseling the State in the 
area of eminent domain. He has co-authored the ``Practice and 
Procedure'' section of the Mercer Law Review three times and 
has written a chapter in the reference book ``Gynecological 
Surgery: Errors, Safeguards, and Salvage.''
    Mr. McCallum has lectured at numerous continuing legal 
education seminars sponsored by the State Bar of Georgia on 
various topics, ranging from the lawyer-expert relationship, 
direct and cross-examination, voir dire issues, and 
environmental issues.
    Mr. McCallum earned his bachelor's degree from Yale 
University where he graduated cum laude, earned his law degree 
from the Yale Law School.
    As Associate Attorney General, Mr. McCallum will advise the 
Attorney General and the Deputy Attorney General on formulating 
and implementing DOJ policies and programs over a broad range 
of matters involving civil justice, Federal and local law 
enforcement, and public safety. His office will oversee several 
key divisions at DOJ, including Antitrust, the Civil Division, 
Civil Rights, Environmental and Natural Resources, the Tax 
Division, the Violence Against Women Office, the Office of 
Information and Privacy, the Executive Office of U.S. Trustees, 
and the Foreign Claims Settlement Commission. We are truly 
fortunate to have someone as qualified as Mr. McCallum to serve 
as Associate Attorney General, especially when you consider 
that he chose to leave private practice and certainly take a 
tremendous pay cut to work for the Federal Government.
    I applaud his past service, his future service, and I 
welcome him here today, and I thank you for your consideration 
of his nomination.
    Chairman Hatch. Well, thank you, Senator Chambliss. We 
really appreciate you taking time from what I know is a busy 
schedule, because I can't keep up with mine, and I know you are 
busy, too. We appreciate you coming, and it is an honor to Mr. 
McCallum. Thank you so much.
    I am going to invite Peter Keisler to come to the table as 
well. Maybe you can switch those cards around. Let me also 
mention that I am going to take care of both of you in one 
sitting, if I can, if you don't mind.
    Mr. Keisler is also a Yale Law School graduate. Following 
his D.C. Circuit clerkship, he was hired as an Assistant 
Counsel to President Reagan. Within 1 year, he was promoted to 
Associate Counsel to the President. In 1989, Mr. Keisler left 
the White House to enter private practice at what is now 
Sidley, Austin, Brown and Wood, a prestigious national law 
firm. He began as an associate and was elevated to partner in 
1993. He remained in private practice until 2002, when he 
joined the Department of Justice as Acting Associate Attorney 
General. In March 2003, Mr. Keisler was appointed as Principal 
Deputy Associate Attorney General and currently serves in that 
position. There can be no doubt that Mr. Keisler's vast 
experience with civil litigation matters, both in private 
practice and at the Department of Justice, has more than 
adequately prepared him to head the Civil Division, where he 
will be responsible for management and oversight of the largest 
litigation department within the Government, or should I say 
component within the Government.
    I have met with Mr. Keisler and believe that the President 
made a wise choice. I have known him for years, and I think the 
President has made a wise choice in nominating him to this 
position. But my colleagues need not take solely my word for 
it. I have received several letters on Mr. Keisler's behalf 
that I would like to share.
    Two former Clinton Department of Justice officials, 
Randolph Moss and Joseph Guerra, who served, respectively, as 
Assistant Attorney General and Deputy Assistant Attorney 
General of the Office of Legal Counsel, wrote that Mr. Keisler 
``is an extraordinary legal talent...Peter is equally prized 
for the other aspects of the professionalism he displays--such 
as personal integrity, a balanced temperament, a courteous and 
good-humored demeanor, and respectful treatment of others with 
whom he works, both colleagues and opposing counsel.''
    Professor Litman, a lifelong Democrat and former United 
States Attorney for the Western District of Pennsylvania during 
the Clinton administration, writes, ``I can say from personal 
experience that Peter will treat all his colleagues, from 
support staff to Presidential appointees, with graciousness and 
respect. The Committee can have confidence that Peter will also 
be conscious of the impact of the Department's actions on 
people's lives, and will approach his responsibilities with a 
well-developed sense of fairness and compassion.''
    Stephen Sachs, former United States Attorney for the 
District of Maryland during the Johnson administration and 
Maryland's Democratic Attorney General from 1979 to 1987, wrote 
in enthusiastic support of Mr. Keisler's nomination. His letter 
states, ``I am a lifelong liberal Democrat. Peter...is not.'' 
Well, I hardly knew that. ``But while we have different views 
on some matters of public policy, I know that we both place a 
high value on the importance of public service and share a 
profound respect for the rule of law. I have no doubt 
whatsoever of Peter's dedication to the essentially apolitical 
mission of a great ministry of justice. Intellectual integrity 
is his calling card. For Peter Keisler, those lofty phrases 
etched on the walls at Justice are living commands, not empty 
rhetoric. The Department of Justice and the Nation will be 
well-served by this appointment.''
    These are just a few of the letters I have received on Mr. 
Keisler's behalf, demonstrating the strong bipartisan support 
he enjoys. Clearly, Mr. Keisler's legal ability and personal 
integrity have earned him admiration on both sides of the 
political spectrum.
    Now, I would like to compliment both of these gentlemen on 
their nominations and offer them my full support, and I look 
forward to hearing from them.
    So, Mr. McCallum, we will take you first. I hope you will 
introduce those who are with you, and then give any statement 
you care to give, and then maybe we will have a question for 
you.

STATEMENT OF ROBERT D. MCCALLUM, JR., OF GEORGIA, NOMINEE TO BE 
       ASSOCIATE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

    Mr. McCallum. Thank you, Mr. Chairman. My wife, Mimi, is 
the only family member that was able to make it to the hearing 
today, and I'm honored to appear before you and the Committee 
for consideration of my nomination.
    Chairman Hatch. Mimi is my former dinner partner, so I want 
to tell you, you are a lucky guy. We welcome you, Mimi. We 
welcome you here.
    Mr. McCallum. I'm grateful to the Committee for the careful 
attention that it will give to my nomination and for allowing 
me this opportunity to answer any questions that you or other 
Committee members may have concerning my nomination. I'll look 
forward to providing you and the Committee members, not just at 
this hearing but also afterwards, with whatever information 
might be helpful to you and to the Senate in discharging the 
Senate's constitutional responsibilities to advise the 
President on his nominees.
    I have introduced my wife, but I must say I need to 
recognize that she has supported me every step of the way on 
this decision to enter public service. Our decision to leave 
private practice and to leave our home of 30 years to come to 
Washington was, as you can well imagine, a joint decision. It's 
one that we both have enthusiastically embraced, and I must 
thank her for all that she's done to support me in that regard.
    We do have two sons and a new daughter-in-law, and none of 
them can be here with us today, but they send their regrets to 
the Committee. My elder son, Davis, is a theater director in 
New York, and he's currently in Ashland, Oregon, assistant-
directing plays for the next 4 months at the Oregon Shakespeare 
Festival. So it's been too far a distance for him to travel and 
get back there, given his schedule.
    His wife, our new daughter-in-law, Sara, is currently 
clerking for the United States District Court, the Southern 
District of New York, with Judge Jed Rakoff, and her 
obligations with Judge Rakoff, who is known as a tremendous 
work horse on that very, very busy district, requires her to 
remain in New York.
    And then my younger son, Bailey, is a teacher with the Gore 
Range Natural Science School in Red Cliff, Colorado, and, 
again, distance precludes his presence here today.
    In addition to my wife, I'd also like to take this 
opportunity to thank Senator Zell Miller and especially Senator 
Saxby Chambliss for encouraging me and supporting me in this 
nomination for this new position. I am extremely proud of my 
home State and proud that it's represented by two such fine 
public servants in the United States Senate. And I am both 
appreciative of and humbled by their support of my nomination.
    As I did in my first confirmation hearing, I would also 
like to take this opportunity to recognize and express my 
thanks to your former colleague, the late Senator Paul 
Coverdell. It was, in fact, Paul who, as a Georgia State 
Senator in the Georgia Legislature from my particular district, 
encouraged me to participate in local government activities, 
and I would like to think that Paul Coverdell is looking down 
and is proud of my nomination.
    Mr. Chairman, over the past 19 months, I have been 
privileged to serve with the advice and consent of the Senate 
as Assistant Attorney General for the Civil Division of the 
United States Department of Justice. I took the oath of office 
on September 17, 2001, the Monday after the terrorist attacks. 
And as you can well imagine, those events have generated a 
significant overlay of new and different cases, new issues 
relating to the war on terrorism.
    At the same time, the normal, usual litigation portfolio 
involving the interests of the United States has continued 
unabated. In those circumstances, I have done my utmost to 
provide the management direction, the supervision, and the 
leadership necessary to meet both those new challenges and 
those old ones. And I have been privileged to work with some of 
the finest attorneys, both political appointees and career 
staff, that I have ever encountered.
    I certainly recognize that this Committee, in evaluating my 
nomination for Associate Attorney General, has the 
responsibility to review and assess my performance in my 
existing position, and I encourage the Committee to do so, and 
I will be as responsive as I possibly can be to any inquiries 
that the Committee cares to make.
    Needless to say, I was honored to be asked by the Attorney 
General and the President to assume broader responsibilities in 
the position of Association Attorney General. If confirmed by 
the Senate in this new position, it would afford me the 
opportunity to work more closely, even more closely with the 
Attorney General and the Deputy Attorney General, two 
outstanding individuals who have provided the entire Department 
of Justice with inspiring leadership and very efficient 
management. It would afford me the opportunity also to work 
more closely with my current fellow Assistant Attorney Generals 
in Civil Rights, Environment and Natural Resources, Tax, 
Antitrust, and Justice Programs.
    I'm ready, willing, and hopefully able, if the Senate sees 
fit to confirm me, to assume these new responsibilities and to 
meet these new challenges.
    Thank you.
    [The biographical information follows:] 





    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Hatch. Thank you, Mr. McCallum.
    Mr. Keisler, do you have any comments or introduce anybody 
who is here with you?

   STATEMENT OF PETER D. KEISLER, OF MARYLAND, NOMINEE TO BE 
   ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF 
                            JUSTICE

    Mr. Keisler. Thank you very much, Mr. Chairman. It's a 
great privilege for me to be able to appear before you today. 
Thank you for having me here, and I would love the opportunity 
to introduce my family, if that's all right.
    Susan Gomory Keisler, my wife. I have had a lot of great 
opportunities as a result of obtaining a law degree, but far 
and away the greatest was that I met Sue at the law firm where 
we both started practicing.
    Chairman Hatch. That is great. Sue, we are happy to have 
you here.
    Mr. Keisler. And my daughter, Sydelle.
    Chairman Hatch. Hi.
    Mr. Keisler. Who is 8 years old and is in second grade. And 
my son, Alex.
    Chairman Hatch. Hi, Alex. How are you doing?
    Mr. Keisler. Six years old and is in kindergarten. And my 
youngest son, Philip, who is 3 years old and is in nursery 
school.
    Chairman Hatch. Well, that is great. They are pretty well 
behaved, is all I can say. I am not used to that in the Hatch 
family.
    [Laughter.]
    Mr. Keisler. I am not entirely used to it either, Senator. 
We promised them ice cream if all goes well.
    Chairman Hatch. Well, that is good.
    [Laughter.]
    Chairman Hatch. That is good.
    Mr. Keisler. I am also very, very pleased to have my father 
Bill Keisler here who came down from New York this morning. It 
means a great deal to me to have him here.
    Chairman Hatch. We are honored to have you here. You have a 
great son. I have known him for a long time.
    Mr. Keisler. And I certainly wish my mother could have been 
here as well. She passed away many years ago.
    Chairman Hatch. I am sorry to hear that.
    Mr. Keisler. A few months after I received my law degree. I 
think of her often, and particularly at moments like these.
    I would also like to introduce my niece, who is holding 
Philip, Sarah Seitz. She is on leave from Wellesley and is 
living with us while she interns for a non-profit which helps 
victims of domestic violence; and my father-in-law, Ralph 
Gomory, and his wife, Lillian Wu, who have also come down here, 
and it means so much to me to have them here.
    Chairman Hatch. We are honored to have all of you here.
    Mr. Keisler. I'd also like to take this opportunity, Mr. 
Chairman, to thank the President for nominating, to thank the 
Attorney General for his confidence in me, and to thank you and 
the Committee for having me here today. I'd also like to thank 
you and Senator Durbin for taking time out of your busy 
schedules to meet privately with me earlier. I very much 
appreciate that.
    The Civil Division, as you know, Mr. Chairman, has broad 
litigating responsibilities on behalf of the United States in 
areas as diverse as torts, contracts, constitutional law, 
administrative law, fraud, bankruptcies, and many others. I 
always felt it a great privilege when I was in private practice 
to be able to participate in the legal process and stand up in 
court as an advocate for a client. But I think it is a special 
privilege to do that on behalf of the United States, to stand 
up in the courts of the United States on behalf of the people 
of the United States. And I think that that client in 
particular is entitled to the highest levels of 
professionalism, integrity, skill, and hard work from its 
lawyers, and I think the thing that has most impressed me in 
the approximately 1 year I've served at the Justice Department 
is to see that level of advocacy and professionalism delivered 
every day by the 700-plus men and women who serve as attorneys 
in the Civil Division and by the hundreds and hundreds of other 
attorneys at the Department of Justice. And if I'm fortunate 
enough to be confirmed, I want to pledge to do my utmost to 
uphold that great tradition.
    I also want to commit that, in addition to addressing any 
questions you may have today, that if I'm confirmed I want and 
intend to make myself personally available to the Committee, to 
provide it with whatever information it needs to further its 
legislative and oversight responsibilities.
    Again, Mr. Chairman, thank you so much for having me here, 
and I'd certainly be happy to address any questions you might 
have in evaluating my nomination.

    [The biographical information follows:]




    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Chairman Hatch. Well, thank you. Thank you both.
    Basically you have answered my questions in your 
statements, and I don't see any reason--I know you both so 
well, and I have such respect for you, and I believe other 
members of the Committee do as well. That is why I think they 
are not here, because normally they show up to really give you 
a rough time, and they are not here doing that. So I will tell 
you what we are going to do. It is no secret I am going to 
support both of you for these excellent positions. They are 
very important positions. You have covered them. You have 
talked about some of the things that are on my mind. And we are 
going to keep the record open until next Tuesday at 5:00 p.m. 
for any questions any other members of the Committee desire to 
submit to you.
    I would ask you to get the answers back as soon as you can. 
Wednesday would be soon enough because we will put you on the 
next markup, which will be next Thursday.
    Now, you may be put over for a week because anybody has 
that right on the Committee, but I doubt that anybody will put 
you over. But if they do, we will live with that. But the key 
is to get those answers to questions back.
    I have been informed that there are no other Senators 
coming, so I don't see any reason to keep you or your families 
any longer. I believe both of you will serve with tremendous 
distinction in these very important jobs at this time in our 
country's history. I know both of you have the legal acumen and 
ability to do it. I know both of you have the integrity and the 
sense of purpose and realism to be able to handle these jobs in 
ways that would make all of us proud.
    And I know that both of you will do so without regard to 
politics and do it in a way that really benefits everybody in 
this country, regardless of where they come from or what their 
particular ideological beliefs are. If I didn't know that, I 
would have a lot of questions for you.
    So we have seen both of you in action. We know both of you, 
and I have known you, Peter, since you graduated from Yale. And 
I just want to compliment both of you for being willing to 
serve, leave your private practices and your homes and for your 
willingness to come here and be part of this team at Justice, 
which I happen to believe is a pretty darn good team doing a 
very good job under very trying times.
    So, with that, we will recess until further notice. Thank 
you for being here, and thanks to all your family members for 
being here.
    Mr. Keisler. Thank you, Mr. Chairman.
    Mr. McCallum. Thank you, Mr. Chairman.
    [Whereupon, at 3:55 p.m., the Committee was adjourned.]
    [Question and answers and a submission for the record 
follow.] 


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