[Senate Hearing 108-335]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-335

   CONFIRMATION HEARING ON THE NOMINATIONS OF DANIEL J. BRYANT TO BE 
   ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF 
  JUSTICE AND RENE ALEXANDER ACOSTA TO BE ASSISTANT ATTORNEY GENERAL, 
              CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 23, 2003

                               __________

                          Serial No. J-108-28

                               __________

         Printed for the use of the Committee on the Judiciary




91-833              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       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

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     5
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    68
    prepared statement...........................................   117
    Leahy, Hon. Patrick J., a U.S. Senator from the State of 
      Vermont, prepared statement................................   118

                               PRESENTERS

Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the 
  State of Florida presenting Rene Alexander Acosta, Nominee to 
  be Assistant Attorney General, Civil Rights Division, 
  Department of Justice..........................................     2
Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Daniel J. Bryant, Nominee to be Assistant Attorney 
  General, Office of Legal Policy, Department of Justice and Rene 
  Alexander Acosta, Nominee to be Assistant Attorney General 
  Civil Rights Division, Department of Justice...................     3
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware presenting Daniel J. Bryant, Nominee to be Assistant 
  Attorney General, Office of Legal Policy, Department of Justice     7

                       STATEMENTS OF THE NOMINEES

Acosta, Rene Alexander, Nominee to be Assistant Attorney General 
  Civil Rights Division, Department of Justice...................    32
    Questionnaire................................................    33
Bryant, Daniel J., Nominee to be Assistant Attorney General, 
  Office of Legal Policy, Department of Justice..................     9
    Questionnaire................................................    10

                         QUESTIONS AND ANSWERS

Response of Rene Alexander Acosta to a question submitted by 
  Senator Hatch..................................................    86
Responses of Rene Alexander Acosta to questions submitted by 
  Senator Leahy..................................................    89
Responses of Rene Alexander Acosta to questions submitted by 
  Senator Biden..................................................   104
Responses of Rene Alexander Acosta to questions submitted by 
  Senator Feingold...............................................   107

                       SUBMISSIONS FOR THE RECORD

American Association of People with Disabilities, Andrew J. 
  Imparato, President and CEO, Washington, D.C., letter..........   111
Arab American Institute, press release, June 24, 2003............   113
Fraternal Order of Police, Chuck Canterbury, National President, 
  Washington, D.C., letter.......................................   126
International Association of Fire Fighters, Harold A. 
  Schaitberger, General President, Washington, D.C., letter......   115
International Union of Operating Engineers, Frank Hanley, General 
  President, Washington, D.C., letter............................   116
National Asian Pacific American Legal Consortium, Andrew Rice, 
  Washington, D.C., press release................................   122
National Council of La Raza, Washington, D.C., news release......   123
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement in support of Daniel J. Bryant, Nominee to be 
  Assistant Attorney General, Office of Legal Policy, Department 
  of Justice.....................................................   124
United Brotherhood of Carpenters and Joiners of America, Douglas 
  J. McCarron, General President, Washington, D.C., letter.......   127

 
   CONFIRMATION HEARING ON THE NOMINATIONS OF DANIEL J. BRYANT TO BE 
   ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF 
  JUSTICE AND RENE ALEXANDER ACOSTA TO BE ASSISTANT ATTORNEY GENERAL, 
              CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

                              ----------                              


                        WEDNESDAY, JULY 23, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:14 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Sessions, Leahy, Kennedy, Biden, 
and Feingold.
    Chairman Hatch. I apologize for being late. We had a fairly 
contentious markup this morning in the Judiciary Committee, and 
I have been trying to catch up ever since. But we are delighted 
to have all of you here.
    I am going to defer my remarks, since I have held up these 
two wonderful Members of Congress, until after they make their 
remarks. And so we welcome you, Senator Allen, and we 
appreciate the leadership you are providing in the Senate. We 
look forward to hearing your testimony, and then we will listen 
to Ileana Ros-Lehtinen and go from there.
    Ileana, you are an old friend, and we really appreciate 
having you here and walking all the way over from the other 
side of the Hill. So we appreciate having you here.
    Senator Allen?
    Senator Allen. Thank you, Mr. Chairman, and I appreciate 
the courtesy. I am going to extend courtesy to Congresswoman 
Ileana Ros-Lehtinen. They actually have votes going on now, and 
I will defer to her. And I know we have a vote coming up 
ourselves, but I am going to let Ileana go first because I 
don't want her to miss votes. This introduction is important, 
but votes are, too.
    Chairman Hatch. That would be great.
    Ileana?

PRESENTATION OF RENE ALEXANDER ACOSTA, NOMINEE TO BE ASSISTANT 
ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, 
BY HON. ILEANA ROS-LEHTINEN, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF FLORIDA

    Representative Ros-Lehtinen. Thank you for the Western 
hospitality as well as the Southern gentlemanliness, so thank 
you very much to both Senators.
    It is a pleasure to be with all of you today, and I am 
especially proud to introduce to you Alex Acosta, the 
Presidential nominee to the position of Assistant Attorney 
General for Civil Rights. Alex is a dynamic and dedicated 
member of our community. I consider him a South Floridian. 
Senator Allen considers him a proud Virginian. But he has been 
an exemplary public servant for many years. His background as a 
Principal Deputy Assistant Attorney General in Civil Rights and 
his appointment by the President to the National Labor 
Relations Board have afforded him the opportunity to fully 
appreciate and comprehend civil rights issues, and he would 
make a tremendous asset to the Department of Justice.
    Alex's careful and deliberate approach to law enforcement 
assisted in the successful prosecution of violations of civil 
rights and laws that help set the tone for the constructive 
dialogue on civil rights issues. If confirmed as Assistant 
Attorney General for Civil Rights, Alex would be the first 
Hispanic Assistant Attorney General to lead the Civil Rights 
Division at the Department of Justice. As a Hispanic who was 
raised in Miami, Florida, Alex fully understands the 
difficulties faced by minorities. He is known by his colleagues 
for being fair-minded and committed to protecting the civil 
rights of all Americans. He has consistently embraced not only 
the members of our Latino community, but has also endeavored to 
foster a spirit of mutual respect and understanding among all 
members of society.
    Alex has been praised for his ability to bring together 
diverse groups of people and has been endorsed by such groups 
as the National Council of La Raza, the National Asian Pacific 
American Legal Consortium, the Arab American Institute, and the 
American Association of People with Disabilities, to name a 
few.
    He has been recognized by Attorney General Ashcroft for his 
outstanding contributions to the Justice Department. He is a 
dedicated public servant who works tirelessly to ensure that 
our Nation's civil rights laws are enforced and that the civil 
liberties of all Americans are protected. His honesty, 
integrity, and commitment are indeed impressive, and I would 
like to extend a warm welcome to Mr. Rene Alex Acosta. Estamos 
muy orgulloso, Alex. We are so very proud of you and your 
lovely family.
    Thank you so much, Senator Hatch, and thank you, Senator 
Allen, for this time and your courtesy.
    Chairman Hatch. Well, thank you, Congresswoman Ros-
Lehtinen. We really appreciate you coming over and giving us 
the benefit of your wisdom and your recommendation. Thanks so 
much.
    Representative Ros-Lehtinen. Thank you.
    Chairman Hatch. We know you have to get back, so we will 
excuse you. Thank you.
    Senator Allen?

   PRESENTATION OF DANIEL J. BRYANT, NOMINEE TO BE ASSISTANT 
ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE 
  AND RENE ALEXANDER ACOSTA, NOMINEE TO BE ASSISTANT ATTORNEY 
GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, BY HON. 
    GEORGE ALLEN, A U.S. SENATOR FROM THE STATE OF VIRGINIA

    Senator Allen. Thank you, Mr. Chairman. I am going to 
introduce two wonderful individuals to you: Mr. Daniel J. 
Bryant, to be Assistant Attorney General in the Office of Legal 
Policy at the United States Department of Justice, and Mr. Rene 
Alexander Acosta, otherwise known as Alex Acosta, to be 
Assistant Attorney General in the Civil Rights Division at the 
Department of Justice.
    I will first start with Mr. Bryant, who is well known to 
you all in this Committee in his current position with the 
Office of Legal Policy. It was about 2 years ago that I came 
before this Committee to introduce Mr. Bryant when he was 
nominated for the position of Assistant Attorney General for 
Legislative Affairs at the U.S. Department of Justice. Since 
then he has served with great clarity and effort.
    In his new position, opposed to serving as a liaison, he is 
going to be developing and planning and coordinating major 
legal policy initiatives of high priority to the Administration 
and the Department, and they do have a very ambitious agenda, 
including such issues as class action reform, which I know is 
something of great interest to you, Mr. Chairman, as well as 
other legal reforms and justice in our country.
    As you well know, Mr. Chairman, from May of 2001 to January 
of this year, Mr. Bryant carried out the duties as liaison 
between Justice and Congress. In January of 2003, Mr. Bryant 
was named counselor and senior adviser to the Attorney General, 
and since June of this year, Mr. Bryant has served as Acting 
Assistant Attorney General in the Office of Legal Policy.
    He is highly qualified. He has proven his ability over the 
years to serve as Assistant Attorney General in the Office of 
Legal Policy. He has served not just in the Department of 
Justice, but as majority chief counsel to the House Judiciary 
Committee, Subcommittee on Crime. He served as policy director 
for the First Freedom Coalition, which is a non-profit 
organization advocating for responsible changes in the criminal 
justice system. While at the First Freedom Coalition, Mr. 
Bryant worked closely with former United States Attorney 
General Bill Barr, who is a good friend of mine and helped me 
as Governor abolish parole in Virginia following the lead of 
folks such as yourself, Senator Hatch, during the Reagan 
Administration.
    Mr. Bryant also has worked with the Senate's Governmental 
Affairs Committee, Permanent Subcommittee on Investigations, 
where he focused on domestic and international organized crime, 
as well as a law clerk and special assistant at the Department 
of Justice. He is eminently qualified. I know you all moved 
very quickly back in the spring of 2001, and I hope you will as 
well in this position. I would like to take a moment to 
recognize a few of Mr. Bryant's family members who are here 
today: first and foremost, his bride, Aerin, who is holding 
little Noah, and Dan is holding Peter, and Caroline, the 
daughter, has moved back to the back row. His brother Paul, is 
back there, I call him ``Bear'' Bryant. And his father, Pop-
Pop, I said you can call him ``Papa Bear'' Bryant, but it is 
Pop-Pop, and Carolyn, his wonderful mother, are all here with 
him.
    Chairman Hatch. I have to say, Noah looks like he could be 
a linebacker for the Green Bay Packers.
    [Laughter.]
    Senator Allen. He is still too sweet. If you hang around 
here--
    Chairman Hatch. It takes the sweetness away. Listen, I lost 
all of mine this morning, I tell you.
    [Laughter.]
    Senator Allen. Or maybe we will get him on the Raiders or 
the Redskins.
    Now I would like to speak on behalf of Mr. Alex Acosta, who 
has been nominated to the position of Assistant Attorney 
General in the Civil Rights Division of the Department of 
Justice. And I very much commend President Bush for selecting 
such a well-qualified nominee to fill this very important 
position. Mr. Acosta is known by his colleagues and all as 
being committed to protecting the civil rights of all 
Americans. And what you hear most and read most about Mr. 
Acosta is that he is fair-minded. You hear about his careful, 
deliberative approach to law enforcement, helping in the 
prosecution of violations of civil rights laws, as well as 
setting the tone for constructive dialogue on civil rights 
issues.
    He is the son of Cuban immigrants. Mr. Acosta's parents are 
here with us. His first language was Spanish, but he is a true 
American success story. We have seen such qualified individuals 
for all sorts of positions, including the D.C. Court of 
Appeals, before this Committee. And I feel that you will be 
making history, clearly, with Alex Acosta being the first 
Hispanic Attorney General to lead the Civil Rights Division, as 
Ileana said earlier. But he has a long list of endorsements. It 
is impressive and indicative of his strong qualifications and 
his fair nature.
    The list of groups supporting Mr. Acosta's nomination 
include the following: the National Council of La Raza, the 
National Asian Pacific American Legal Consortium, the Hispanic 
Bar Association, the Arab American Institute, the American 
Association of People with Disabilities, the Hispanic Bar 
Association of the District of Columbia, the National Asian 
Pacific American Bar Association, the National Fraternal Order 
of Police, and the United Brotherhood of Carpenters and Joiners 
of America. That is a diverse group of entities and 
organizations, and indeed Mr. Acosta was recently awarded the 
Mexican American Legal Defense Fund 2003 Excellence in 
Government Award.
    The National Council of La Raza, one of the groups 
endorsing Mr. Acosta, calls him ``a bridge-builder, not only 
with the Latino community but with other ethnic and racial 
groups.'' The endorsement goes on to say, ``We may not agree 
with everything that Mr. Acosta has done or will do, but we are 
certain that he is someone who will listen and act in a fair 
manner.''
    Mr. Acosta has already been nominated and confirmed to 
serve on the National Labor Relations Board where he currently 
serves. Prior to this appointment, he served as a Principal 
Deputy Assistant Attorney General in the Civil Rights Division 
at the Department. He has clerked for the U.S. Court of Appeals 
for the Third Circuit. He has taught classes in civil rights 
law, disability-based discrimination law, and employment law at 
George Mason University's School of Law. And he is outstanding.
    Both of these are exceptional nominees, Mr. Chairman, and I 
know that you will be fair and expeditious in their 
consideration and action. I again thank you for your time, your 
courtesy, and your commitment to fairness, equity, and greater 
justice in this country. These two gentlemen will help us all 
in our cause.
    Finally, I would like to ask that the statement of my 
colleague, Senator John Warner, in support of both Mr. Bryant 
and Mr. Acosta be entered into the record.
    Chairman Hatch. Without objection.
    I really personally appreciate your coming and taking the 
time and giving this excellent statement on behalf of these two 
terrific people. So I appreciate you doing it. Thanks, Senator 
Allen.
    Senator Allen. Thank you, Mr. Chairman.
    Chairman Hatch. Well, if we could have the two nominees 
come forward, if you will raise your right hands. Do you 
solemnly swear to tell the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Bryant. I do.
    Mr. Acosta. I do.

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

    Chairman Hatch. Thank you.
    Let me make a few comments before I turn the time over to 
you for any statements you care to make. I want to welcome both 
of you here. I have really high opinions of both of you. I have 
followed your careers, I know you both, and I am just very, 
very enthusiastic about your appointments.
    Alex Acosta has been nominated to serve as Assistant 
Attorney General for Civil Rights, and in this capacity, he 
will lead the enforcement of Federal statutes prohibiting 
discrimination on the basis of race, sex, handicap, religion, 
and national origin. Of course, Mr. Acosta is already familiar 
with the responsibilities this position entails since he served 
in the Civil Rights Division in 2001 as a Deputy Assistant 
Attorney General and then as the Principal Deputy Assistant 
Attorney General. He has also taught civil rights law as a 
professor at George Mason Law School. He is widely recognized 
as an expert in the civil rights arena, and I have no doubt 
that you, Alex, will serve the Justice Department and the 
country with distinction upon your confirmation.
    I am not alone in my endorsement of Mr. Acosta, as has 
already been said. He has received accolades from a host of 
civil rights organizations who extol his many contributions. 
For example, the Arab-American Institute stated, ``At one of 
the most difficult times in our Nation, Alex reached out to the 
Arab and Muslim Americans to ensure that we were part of a 
system and that our rights were protected. His immediate 
response to our community's concerns provided an important 
indication of his sensitivity and helped pave the way for 
regular meetings with various branches of the Department of 
Justice.''
    Similarly, the National Council of La Raza has stated, 
``Mr. Acosta has proven himself to be a bridge-builder, not 
only with the Latino community but with other ethnic and racial 
groups.'' That has been said before, but I thought it needed to 
be re-emphasized.
    The truth of that statement is reflected by the disparity 
of the groups that are supportive of you. Maybe they are not as 
disparate as they are diverse. And these are very important 
groups that we all respect, and I won't go through all of those 
again since Senator Allen did.
    Your accomplishments are very impressive. You recently 
received the Excellence in Government Award from the Mexican 
American Legal Defense and Educational Fund, which is a 
wonderful award.
    Mr. Acosta attended Harvard College and Harvard Law School 
and clerked for Judge Samuel Alito on the Third Circuit. He has 
worked as an appellate attorney at Kirkland and Ellis and as 
project director at the Ethics and Public Policy Center. Most 
recently, he has been serving as a board member on the National 
Labor Relations Board.
    Given Mr. Acosta's executive experience, I am confident 
that he is well equipped to handle the challenges of this 
crucial post. I am hopeful that the Committee and the Senate as 
a whole will move quickly to confirm you in this position. And 
I will do everything in my power to see that that happens as 
soon as I can. This position needs to be filled, and we need to 
have an aggressive, hard-working person in that area who is 
sensitive to the needs of minorities in this country.
    Now, we will also consider this afternoon the nomination of 
a good friend of mine, Dan Bryant--and I shouldn't have said 
that; that will probably be an ``x'' against you with some 
people--to be Assistant Attorney General for the Office of 
Legal Policy. Now, this position plays a crucial role in 
planning, developing, and coordinating implementation of major 
policy initiatives of high priority to the Justice Department 
and to the administration. The Office of Legal Policy also 
provides important legal advice and assistance to the Attorney 
General and to Department components.
    Mr. Bryant comes before the Committee with a very 
impressive track record of public service. He was unanimously 
confirmed in 2001 as Assistant Attorney General for the Office 
of Legislative Affairs, where he was responsible for devising 
and implementing the Justice Department's legislative strategy 
and coordinating all Congressional oversight of the Department. 
Mr. Bryant performed these duties impeccably and has earned the 
trust and respect, I think, of many if not all of the Senators 
during the process.
    Even before he assumed his leadership role at the 
Department of Justice in the Department's Office of Legislative 
Affairs, Mr. Bryant was no stranger to Capitol Hill. Prior to 
joining the Justice Department, he served as chief counsel of 
the Crime Subcommittee of the House Judiciary Committee. He 
also served on the staff of the Senate Permanent Subcommittee 
on Investigations. Mr. Bryant's experience in Congress, along 
with his significant experience at the Justice Department, 
makes him an ideal choice to take the helm at the helm at the 
Office of Legal Policy. And I have to say that I am a person 
who has been very impressed with the way that you have handled 
yourself over in the House, down there, and elsewhere. You are 
a terrific person, a terrific nominee, and I look forward to 
getting you through as quickly as I can, along with Alex 
Acosta.
    Let me again close by expressing my pleasure in having such 
well-qualified nominees come before the Committee. I look 
forward to hearing your testimony and, of course, look forward 
to any questions that may be raised here in the hearing.
    Do either of you have any statements you would care to 
make? We could start with whoever wants to--
    Senator Biden. Mr. Chairman, may I be so rude as to ask--I 
apologize for being late and ask the Chairman's indulgence to 
make a very short comment? I had hoped to be here earlier.
    Chairman Hatch. I would be happy to do that.
    Senator Biden. Because I want to, as they say in the 
Southern part of my State, brag on a Delawarean for a second 
here. It is no reflection on the other nominee, if you would 
give me just a second.
    Chairman Hatch. I am very happy to do that, Senator.

   PRESENTATION OF DANIEL J. BRYANT, NOMINEE TO BE ASSISTANT 
    ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF 
JUSTICE, BY HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. I want to apologize to Dan and his parents 
for being late. As Delawareans, you will understand. I was with 
Senator Carper and Congressman Castle trying to save the VA 
hospital in Elsmere, Delaware. And you are important, Dan, but 
the VA hospital is even more important.
    I want to thank you, Mr. Chairman, and it is a pleasure for 
me, I was going to say, to introduce Dan but I understand our 
colleague from Virginia did, since technically he is a Virginia 
resident. But once a Delawarean, we don't let them go, and I am 
flattered that Dan would indicate earlier that he would like to 
have me introduce him as well.
    It seems only like yesterday that I was introducing Dan for 
a nomination for a different office, the one he now holds, the 
Office of Legislative Affairs. And as a consequence of that 
office, all of our staff behind us and all of my colleagues 
have gotten to know a little bit about Dan, so what I am about 
to say about him is not going to surprise anybody.
    He is a first-rate lawyer, and he is universally recognized 
as that. And I think he is well poised and well positioned to 
take on what is an even more important job, and that is the 
Office of Legal Policy. A lot of very controversial issues are 
going to be coming out of the Justice Department and relating 
to Justice decisions relating to policy, and I feel--I always 
like it, as you do, Mr. Chairman, when you can be supporting 
strongly the nominee of another party before us. And I do that 
not just because Dan is a Delawarean, but I do it because I 
know his work and I know a lot about him. I have had the 
occasion to work with him over the years in his capacity, as 
you will remember, Mr. Chairman, since you and I have served 
almost the same amount of time on this Committee, when he was 
counsel to the House Subcommittee on Crime. And there he served 
Representative McCollum and Henry Hyde, Chairman Hyde, and 
Congressman Conyers. And I personally worked with Dan, and we 
worked with him, on our Violence Against Women Act that you and 
I pushed, the Violence Against Women Act of 2000, the Foreign 
Narcotics Kingpin Designation Act, and the DNA Backlog 
Elimination Act, which I am going to want to come back to in 
your new position and talk more about additional legislation we 
have on DNA.
    Dan is an able lawyer. He is a straight shooter, and I am 
confident he is going to serve this Department well in this new 
position, in large part because he has good judgment. Dan was 
born in Port Jefferson, New York, but he grew up in Wilmington, 
Delaware, where he attended the Tower Hills School, the second 
best school in Delaware. I went to the other one. His parents, 
Gary and Carolyn, are both here today, I believe, sitting back 
there, and I welcome them, as I am sure they have been 
recognized already, as well as his older brother and sister and 
their families, all still living in Wilmington. And he is 
joined today by his wife, Aerin, and Caroline and Peter and 
Noah. And as my mother would say, God bless you, dear, having 
the nerve to take all three out. You are pretty good. They are 
awful good kids.
    While I have been impressed with his work on the juvenile 
justice bill and my Violence Against Women Act and the great 
work he has done at the Department, what really brings me here 
today is his accomplishments in Delaware. I just want to brag 
on him just a little bit, and I will stop, Mr. Chairman.
    He was both an academic and an athletic star back in our 
home State. He placed first in Delaware's State Spanish oral 
exam. He was a member of the all-State soccer team. He was a 
recipient of the DeSabatino Leadership Award, named after a 
personal friend and a great, great guy at that other school. 
And, in fact, were it not for his appearance here today, I 
would be tempted to say Dan peaked a little early in life. He 
has done so much already.
    The fact that he is down here is of great pride to us in 
Delaware. He has served the Justice Department well thus far, 
just as he served the House Judiciary Committee well, and I am 
confident that he will serve the Attorney General well in this 
new position. And I am also confident he is going to have the 
obligation of coming forward with some fairly controversial 
things that are going to be up here. But the one thing I can 
assure all my colleagues of, and my Democratic colleagues, even 
if you end up disagreeing with the policy that comes out of the 
Justice Department, Dan will be straight with you. He will give 
it to you straight. And that is all that we can ask for in the 
opposition here.
    So I thank you for indulging me and allowing me to talk a 
little bit about him, but we are proud of him at home, and I am 
proud that he is about to take on this new job. And I apologize 
to our other nominee, whom I do not know personally, but I am 
sure is very well qualified.
    I thank you, Mr. Chairman.
    Chairman Hatch. Well, thank you, Senator Biden. We really 
appreciate your kind remarks. I know the Bryant family does in 
particular.
    I am going to put Senator Warner's statement in the record, 
and also I would like to introduce into the record several 
letters and press releases endorsing the nomination of Mr. 
Acosta for Assistant Attorney General for Civil Rights.
    Senator Biden. Mr. Chairman, one more indulgence, if I may.
    Chairman Hatch. Sure.
    Senator Biden. We are about to have a vote, and then I am--
I was going to say co-chairing. I am not co-chairing. I am the 
Ranking Member on the Foreign Relations Committee, and we are 
having a very important hearing on Iraq that is supposed to 
start at 2:30. So if I am not back, that is the reason why. We 
will have started that hearing. And I have a similar 
responsibility on the fourth floor beginning very shortly.
    Chairman Hatch. Well, thank you, Senator Biden. We know how 
busy you are, and we know what a great job you do on that 
committee.
    Well, we do have a vote, but I am going to take a few 
minutes here and allow you folks to--why don't we, since we 
introduced Alex first, why don't we go with you, Mr. Bryant, 
and take any statement you would care to make, and then we will 
take Mr. Acosta's statement.

STATEMENT OF DANIEL J. BRYANT, NOMINEE TO BE ASSISTANT ATTORNEY 
     GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE

    Mr. Bryant. Thank you, Mr. Chairman. I don't have a 
statement that I would plan to make at this time. I would ask 
to submit one for the record, if I might.
    And my family has been graciously introduced a number of 
times already, so I won't repeat that. But thank you for those 
courtesies, all of you.
    I would just note that I have family up from North Carolina 
as well. My mother's brother, Edward, and his wife, Sylvia, and 
daughter, Lynn, and her son, they are all up here.
    Further, we are joined by friends from Delaware.
    Chairman Hatch. Well, we want to welcome all of you here, 
and it is good to see you again, Mrs. Bryant, and your father, 
Mr. Bryant. We are grateful to have all of you here. And I have 
to admit, those kids, I remember them from the last time. They 
are great.
    Mr. Bryant. Thank you. I would just repeat, Mr. Chairman, 
my gratitude for the consideration of this Committee, your 
courtesies today and over past years. And I would also like to 
thank the President and the Attorney General for the privilege 
of being asked to serve in this capacity. So thank you.
    [The biographical information follows:] 

    [GRAPHIC] [TIFF OMITTED] T1833.001
    
    [GRAPHIC] [TIFF OMITTED] T1833.002
    
    [GRAPHIC] [TIFF OMITTED] T1833.003
    
    [GRAPHIC] [TIFF OMITTED] T1833.004
    
    [GRAPHIC] [TIFF OMITTED] T1833.005
    
    [GRAPHIC] [TIFF OMITTED] T1833.006
    
    [GRAPHIC] [TIFF OMITTED] T1833.007
    
    [GRAPHIC] [TIFF OMITTED] T1833.008
    
    [GRAPHIC] [TIFF OMITTED] T1833.009
    
    [GRAPHIC] [TIFF OMITTED] T1833.010
    
    [GRAPHIC] [TIFF OMITTED] T1833.011
    
    [GRAPHIC] [TIFF OMITTED] T1833.012
    
    [GRAPHIC] [TIFF OMITTED] T1833.013
    
    [GRAPHIC] [TIFF OMITTED] T1833.014
    
    [GRAPHIC] [TIFF OMITTED] T1833.015
    
    [GRAPHIC] [TIFF OMITTED] T1833.016
    
    [GRAPHIC] [TIFF OMITTED] T1833.017
    
    [GRAPHIC] [TIFF OMITTED] T1833.018
    
    [GRAPHIC] [TIFF OMITTED] T1833.019
    
    [GRAPHIC] [TIFF OMITTED] T1833.020
    
    [GRAPHIC] [TIFF OMITTED] T1833.021
    
    [GRAPHIC] [TIFF OMITTED] T1833.022
    
    Chairman Hatch. Thank you.
    Mr. Acosta?

  STATEMENT OF RENE ALEXANDER ACOSTA, NOMINEE TO BE ASSISTANT 
 ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

    Mr. Acosta. Thank you, Mr. Chairman. I, too, do not have an 
opening statement and would like to submit one for the record, 
if I may, but I have some brief introductions.
    Chairman Hatch. Without objection.
    Mr. Acosta. I would like to introduce my parents, Rene and 
Delia.
    Chairman Hatch. So happy to have you here. You must be 
proud of your son.
    Mr. Acosta. I want to acknowledge--we had tried to fly my 
grandmother up for the hearing today. She's 94, and that was a 
little bit too much to ask for. We did try, but I want to 
acknowledge her and her sister, Delia and Rosalia. Rosalia is 
99, both living in Miami.
    Chairman Hatch. We expect you to serve a long time.
    [Laughter.]
    Mr. Acosta. That is quite a while.
    I also want to acknowledge, I know that several senior 
members of the Civil Rights Division staff are here, and I want 
to acknowledge them. They are experienced, dedicated litigators 
who have dedicated a good part of their life to serving the 
Division and to enforcing the civil rights laws. I think it's 
important that they're here, and I want to thank them for 
coming.
    Chairman Hatch. Happy to have them.
    Mr. Acosta. Finally, I want to thank this Committee for 
taking the time to hold this hearing, the Attorney General and 
the President for their confidence in this nomination.
    [The biographical information follows:] 

    [GRAPHIC] [TIFF OMITTED] T1833.023
    
    [GRAPHIC] [TIFF OMITTED] T1833.024
    
    [GRAPHIC] [TIFF OMITTED] T1833.025
    
    [GRAPHIC] [TIFF OMITTED] T1833.026
    
    [GRAPHIC] [TIFF OMITTED] T1833.027
    
    [GRAPHIC] [TIFF OMITTED] T1833.028
    
    [GRAPHIC] [TIFF OMITTED] T1833.029
    
    [GRAPHIC] [TIFF OMITTED] T1833.030
    
    [GRAPHIC] [TIFF OMITTED] T1833.031
    
    [GRAPHIC] [TIFF OMITTED] T1833.032
    
    [GRAPHIC] [TIFF OMITTED] T1833.033
    
    [GRAPHIC] [TIFF OMITTED] T1833.034
    
    [GRAPHIC] [TIFF OMITTED] T1833.035
    
    [GRAPHIC] [TIFF OMITTED] T1833.036
    
    [GRAPHIC] [TIFF OMITTED] T1833.037
    
    [GRAPHIC] [TIFF OMITTED] T1833.038
    
    [GRAPHIC] [TIFF OMITTED] T1833.039
    
    [GRAPHIC] [TIFF OMITTED] T1833.040
    
    [GRAPHIC] [TIFF OMITTED] T1833.041
    
    [GRAPHIC] [TIFF OMITTED] T1833.042
    
    [GRAPHIC] [TIFF OMITTED] T1833.043
    
    [GRAPHIC] [TIFF OMITTED] T1833.044
    
    [GRAPHIC] [TIFF OMITTED] T1833.045
    
    [GRAPHIC] [TIFF OMITTED] T1833.046
    
    [GRAPHIC] [TIFF OMITTED] T1833.047
    
    [GRAPHIC] [TIFF OMITTED] T1833.048
    
    [GRAPHIC] [TIFF OMITTED] T1833.049
    
    [GRAPHIC] [TIFF OMITTED] T1833.050
    
    [GRAPHIC] [TIFF OMITTED] T1833.051
    
    [GRAPHIC] [TIFF OMITTED] T1833.052
    
    [GRAPHIC] [TIFF OMITTED] T1833.053
    
    [GRAPHIC] [TIFF OMITTED] T1833.054
    
    [GRAPHIC] [TIFF OMITTED] T1833.055
    
    [GRAPHIC] [TIFF OMITTED] T1833.056
    
    Chairman Hatch. Well, thank you so much. We will begin with 
some questions. There will be some Senators coming, and we will 
in just a few minutes leave for a vote. But let me start with 
you, Mr. Bryant.
    We have heard about the importance of the PATRIOT Act tools 
in conducting anti-terrorism investigations. I want to ask you 
about one specific tool, and that is the ability to delay 
giving notice of the execution of a search warrant. 
Specifically, the PATRIOT Act added a new subsection (b) to 
Section 3103(a) of Title 18 to authorize the court to delay 
giving notice of the execution of a search warrant where there 
is reasonable cause that such notice would endanger the life or 
physical safety of an individual, create a risk of flight, 
destruction of evidence, witness intimidation, or compromise an 
ongoing investigation.
    Now, it is important to keep in mind that this provision 
authorized only a delay, not elimination of the notice 
requirement, and specifically requires court approval in order 
to enforce this provision.
    Can you explain how this authorization is used and how it 
assists in conducting terrorism investigations?
    Mr. Bryant. Thank you, Mr. Chairman. As this Committee well 
knows, having carefully crafted Section 213 of the USA PATRIOT 
Act, which, of course, would be very substantially affected, 
rescinded, in effect, by the amendment that the Chairman refers 
to, the authority to delay notice of a search warrant already 
existed prior to the USA PATRIOT Act. That wasn't a new 
authority put in place by the Act.
    All that Section 213 did--and it did it very carefully--is 
it established a uniform statutory standard that applied around 
the country. It had previously been left to circuits and to 
districts to prescribe the precise standards that would apply 
before an agent could seek from a judge a search warrant. This 
created a uniform national statutory standard.
    Importantly, this authority can only be used upon the 
issuance of a court order by a judge. And even then, it 
requires reasonable cause to believe that immediate notice of 
the warrant could result in death or physical harm, flight from 
prosecution, evidence tampering, or witness intimidation. That 
is the standard that this Committee took the lead in putting 
into place in Section 213.
    The Department has used this a number of times since 9/11. 
It has always been granted by a judge when this authority to 
delay notice of a search warrant has been asked for. Put 
simply, the amendment offered yesterday in the House would not 
simply undo Section 213, it would take us back well before 
where we stood in terms of the law on September 11th, and it 
would prevent law enforcement from being able to do what they 
had long been able to do, and that is to seek a search warrant 
from a judge, and additionally, upon the showing, to be able to 
delay the notice of the service of that warrant. To not allow 
in certain circumstances a delayed notice of a warrant would be 
to require that the Federal agents involved tip off the 
terrorists that they are conducting the search. It would 
deprive law enforcement of this historic power that they had, 
and I would note, Section 213, which the Senate crafted, with 
the leadership of this Committee, actually raised the 
safeguards by including the specific requirements of showing in 
Section 213 as compared to the ad hoc safeguards which have 
been developed in a variety of districts prior to September 
11th. So it would take away those safeguards as well.
    Just consider, if you had to give notice to a recipient of 
a search warrant at the time of the warrant, if a terrorist 
immediately learned that his property has been searched, he 
could flee or escape prosecution. A terrorist, upon receiving 
notice of a contemporaneous search may well destroy computer 
equipment containing information about which targets he plans 
to strike. A terrorist might alert his associates that an 
investigation is under way, enabling them to go into hiding. A 
terrorist may stop communicating with other members of his 
cell, preventing law enforcement from learning who else is 
participating in a plot to kill Americans.
    So it doesn't take much thought to identify some 
potentially very serious consequences of vitiating Section 213, 
which the Senate passed by a vote of 98 to 1, following the 
leadership of this Committee, which crafted, in the judgement 
of the Department, a well-balanced provision that law 
enforcement continues to need.
    Chairman Hatch. Thank you. That, I think, should answer a 
lot of the critics, who have not quite realized how important 
the PATRIOT Act is, at least in that one respect and in so many 
others, that the FBI Director talked about this morning in 
enforcing the laws against terrorism in our country and 
otherwise.
    I think we had better go vote, and we have about 3 minutes 
left. So with that, we will just recess for the time until I 
can get over there and get back, and then we will have some 
more questions for you.
    With that, we will recess until we can get back from the 
vote.
    [Recess from 2:47 p.m. to 3:00 p.m.]

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. I have a brief opening comment and a 
privilege to welcome Mr. Acosta to the Committee and commend 
him for his nomination to be assistant attorney general of the 
Civil Rights Division.
    That position is one of the most important positions in our 
Government, since it was created 45 years ago. It has been at 
the forefront of our continuing struggle to guarantee equal 
justice for all Americans. Much of the progress we have made in 
recent decades has come because of the genuine and sustained 
commitment of the division to vigorously enforce our civil 
rights laws.
    We are proud of the progress we have made, but civil rights 
is still the unfinished business of the Nation. It is extremely 
important that the leader of the division have strong 
credentials, strong commitment to equal opportunity.
    Many of us have been concerned about the recent direction 
of the Division in the past 2 years. It has changed its 
position on a significant discrimination case, adversely 
affecting the interests of large numbers of women, African 
Americans, Hispanics and Asians. It has sought to release 
politically connected defendants from important consent 
decrees, it has transferred long-time managers and changed 
hiring practices in the division. It has significantly reduced 
its litigation in a number of areas, sometimes ignoring the 
recommendations of career managers.
    So these are serious challenges, and I hope we can deal 
with them effectively, and I look forward to hearing from Mr. 
Acosta today, and I congratulate him and look forward to 
inquiring of him.
    I am concerned, and this is in the area of employment, 
employment cases, concerned that the Civil Rights Division over 
the last 2 years has not been vigorously enforcing the Nation's 
civil rights laws. I am particularly concerned about the work 
of the Department to enforce the Nation's equal employment laws 
in the past few years. The Justice Department's employment 
case, and particularly its pattern and practice cases, have 
been important in remedying discrimination, particularly in 
State and local civil service employment.
    Through Republican and Democratic administrations, the 
Division has brought an average of about 12 to 14 cases a year. 
In the last two-and-a-half years, however, the Division has 
only brought seven Title VII cases. That is an average of only 
three a year, and only one of these cases was a pattern and 
practice suit.
    The Department has withdrawn from a number of longstanding 
pattern and practice employment cases affecting interests of 
Latinos, African Americans, and women, and high-level officials 
of the Employment Section have been involuntarily transferred. 
All of the Department's actions raise serious doubt about the 
strength of its commitment to end the forms of discriminatory 
employment practices.
    You were number two in the Civil Rights Division until 
December of last year. In that role, you oversaw all 10 of the 
Division's litigating sections. Why do you think that more 
cases have not been filed, and what more do you think should be 
done to strengthen the enforcement of our Nation's employment 
laws?
    Mr. Acosta. Thank you for the question, Senator.
    As an initial matter, let me say pattern and practice cases 
are important. When the Department is determining how to 
allocate its resources, when the Division is determining that, 
we should think not only about the impact on the particular 
case, but also the deterrent value of pursuing that litigation. 
To that extent, pattern and practice cases, high-profile cases, 
cases that will serve to not only remedy wrongs in that 
particular instance, but as a deterrence to others who would 
discriminate are important and are critical.
    It is my understanding, I believe this came up in a recent 
House oversight hearing, and it is my understanding that the 
Division has several investigations underway in this area. If 
confirmed as assistant attorney general, I do want to assure 
the Senator, number one, the employment cases will be pursued, 
and they will be pursued vigorously. That includes pattern and 
practice cases, that includes disparate impact cases.
    This Congress has made clear that those cases or those 
situations are unlawful. For those of us who believe in the 
rule of law, that means we have to believe in vigorous 
enforcement. The rule part of the rule of law requires that we 
enforce the laws vigorously, and it would be my intent to use 
all of the resources at our disposal in the employment area to 
enforce those cases.
    Senator Kennedy. Well, that is a very positive response, in 
terms of looking prospectively. Can you help me out about what 
conclusions you have drawn, if any, about the reduced numbers 
and cases in the more recent years. You were involved in those 
cases. How would you explain the fact that there has been an 
important drop in just the numbers of cases. I mean, you can 
fiddle with the statistics, and we are all familiar with that, 
but if you looked over the recent numbers of cases in these 
pattern and practice, you would see a Side A decline in the 
number of cases.
    You indicate there are a number that are under 
consideration at the present time. Perhaps that explains some 
of it. Can you help me understand why there was a slackening 
off in terms of the numbers of the other years?
    Mr. Acosta. Certainly, Senator.
    I do not have the full information or up-to-date 
information on that matter, but it is my understanding from 
what I have heard that there were several cases that were 
settled, and as a result of the settlement, litigation need not 
or was not filed.
    Senator Kennedy. Well, I might just submit additional 
questions on that to try and get a better understanding about 
what the status is of some of those cases that you have 
mentioned here and some further explanations of the reductions 
in the numbers.
    This is on a different area on the questions of personnel. 
There have been troubling changes in personnel practices at the 
Division. Several high-level managers have been involuntarily 
transferred. In May, the chief of the Housing Enforcement was 
demoted and involuntary transferred last year. While you were 
the number two at the division, three career managers, 
including the chief of the Employment Litigation Section, Kay 
Baldwin, and the high-level deputies, Richard Ugelow--was that 
the right pronunciation?
    Mr. Acosta. Ugelow.
    Senator Kennedy. Ugelow. --and Robert Libman were 
involuntary transferred from the Employment Section. I realize 
you were at the NRLB when the chief of the Housing Section was 
demoted, but what was your role in the involuntary transfers in 
the employment section and what did you recommend about any of 
these transfers?
    Mr. Acosta. Certainly, Senator. I had discussions with Mr. 
Boyd regarding his personnel decision with respect to the 
section chief of the Employment Section. I did not have 
discussions in detail regarding the other decisions. Those 
discussions were between myself and Mr. Boyd. He made the 
decision on how to best allocate the Division's resources.
    If I could say, I think the career staff is important to 
the division. We political appointees come and go. They are the 
ones that have devoted a good part of their life to the work of 
the Division. There are several career, senior members of the 
career staff here today. I mentioned earlier that I thought it 
was important for them to be here because this nomination 
concerns them.
    During the transition, I got to know most, if not all, of 
the senior members of the career staff. I think, and hope, that 
we have a good working relationship, a relationship that I look 
forward to continuing. We do not always agree, but it is 
important to have mutual respect. It is important to listen, 
and it is important to work together.
    Senator Kennedy. Well, I think that is certainly an 
appropriate recognition of the career staff and their 
commitment and dedication. I am trying to get at the point 
about the reason for the transfers of the employees, whether it 
was a result of their actions in various cases and, if not, why 
were they transferred?
    Mr. Acosta. Thank you, Senator. I believe this came up at a 
hearing where Mr. Boyd testified. And as he indicated, he 
thought that Ms. Baldwin's expertise and knowledge could be 
well used in a task force that was being put together to try 
the harmonize the Civil Division and the Civil Rights 
Division's litigating strategies on employment matters.
    Senator Kennedy. Is it your understanding, then, that they 
were not transferred because of their positions with regards to 
any of the cases they were involved in?
    Mr. Acosta. It is my understanding that they were 
transferred in order to staff this task force, yes.
    Senator Kennedy. The current administration eliminated the 
decades old Attorney General Honors programs, which new 
attorneys are hired to work at the Civil Rights Division. Under 
the former system career attorneys played a central role in 
determining which applicants should be hired with the Assistant 
Attorney General for Civil Rights having final approval. Under 
the new system all hiring of career attorneys is done directly 
by the Assistant Attorney General in the front office, and 
career employees are shut out.
    I am concerned that the new system unduly politicizes the 
hiring practice. Indeed the new system bears a disturbing 
resemblance to changes called for in a National Review article 
published last year, which stated that Republican political 
appointees should seize control of the division's hiring 
process in order to ensure that attorneys from progressive 
civil rights organizations are not hired.
    Did you have any involvement in the decision to end the 
honors program?
    Mr. Acosta. Senator, the honors program, the Attorney 
General's Honors program, those decisions were made at a 
Department-wide level. They were made by the leadership 
offices. I was not consulted on that issue.
    Senator Kennedy. Do you have any opinion about the honors 
program itself? Had you formed any opinion about it?
    Mr. Acosta. Senator, I was not involved in the decisions at 
the time. I think the honors program, however, is an important 
program. It is how the division gets many, if not most, of its 
young energetic litigators.
    Let me say more broadly, more generally if I could, 
referring to the hiring process. The Assistant Attorney General 
had and always has had a final say over the hiring process. I 
was involved in the lateral hiring process. The lateral hiring 
process includes, I believe currently, and if confirmed as 
Assistant Attorney General, will include consultation by both 
career and noncareer staff. It's important that individuals be 
interviewed by several members at various levels of the 
division to ensure that they have good exposure to the work of 
the division to ensure that staff feels comfortable with and 
can work with new hires, and to ensure we get the best 
qualified individuals. So with respect to the lateral hiring 
process, which is within the division, I was involved in that, 
and I do think it is important to consult both career and 
noncareer staff in the lateral hiring process.
    Senator Kennedy. What is your sense about how you can avoid 
the hiring process becoming over politicized? Are you concerned 
about that, worried about it?
    Mr. Acosta. I would hope that the hiring process looks for 
the best qualified individuals. The way to avoid that, I would 
think, is by ensuring that those who are participating in the 
process, those who do the interviewing understand what the role 
is and what the role is not. That's something that I think 
should be emphasized to all participants in the hiring process, 
and certainly if confirmed I would do that.
    Senator Kennedy. You know, there been concerns raised about 
declining morale in the division. For instance, half of the 
Employment Litigation Section career attorneys have left or 
have been detailed elsewhere. Do you consider the decline in 
career attorneys a problem, and why do you think that is 
happening, and what would you do to try and address this?
    Mr. Acosta. Senator, I'm not familiar with the numbers that 
you're referring to. Let me say this if I could. I think that 
the career attorneys are the bedrock of the division. They do 
the work. As with any organization that involves several 
hundred people, morale is important, morale is critical.
    The job of Assistant Attorney General is at heart to 
provide leadership, to provide leadership on issues, to provide 
leadership for the division, to provide leadership to the 
country on the civil rights front. To the extent that a morale 
problem arises, any Assistant Attorney General should address 
that, should investigate it and should work with section chiefs 
and career staff to address that.
    Senator Kennedy. There are large numbers of, as I 
understand it, career attorney vacancies in the division at the 
present time. So that is going to the be a major challenge for 
you when you assume the position. This will be enormously 
important that we get the kind of quality people in those 
positions which have sort of marked and have been the character 
of the division over a period of many years with Republicans 
and Democrats alike, and I hope you will give that a good deal 
of focus and attention.
    I just have one more, if I could, and I thank my 
colleagues.
    As you know, there has been this issue of hate crimes. 
There has been a dramatic rise in hate crimes since September 
11th. Muslim and Arab-American leaders remain very concerned 
about the growing tie to violence directed at their 
communities. As I understand, the Civil Rights Division has 
looked into the number of backlash cases across the Nation. Yet 
when it comes to investigating and prosecuting hate crimes 
under the current law, the Division has one hand tied behind 
its back because of the outdated Federal Protected Activity 
requirements. I have been asking the Department to give me its 
position on our bipartisan hate crimes bill, but it steadfastly 
refused to say anything. We have strong bipartisan legislation 
that is before the Senate. As a matter of fact, it is pending 
amendment on the State Department Reauthorization bill, and the 
Chairman is knowledgeable and interested in this as well. We 
have been working with him, but we have been unable to get any 
kind of comment from the Justice Department, against the 
background where we have seen significant escalation of hate 
crimes against gays and lesbians, and a good deal of increase 
against Muslims and a good deal of increase against Jews as 
well.
    Do you think that we need to strengthen the existing hate 
crimes law? Have you discussed the issue with the prosecutors 
that handle any of the hate crimes cases?
    Mr. Acosta. Certainly, Senator. After 9/11, as the Senator 
alluded to, I was involved in the Department's efforts to work 
to reduce backlash, to reduce hate directed against the Arab-
Americans, the Muslim-Americans, the Sikh-Americans; met 
several leaders in that community during that time; traveled to 
and did community fora; and I think that is an important and a 
critical issue. I'm aware of the Senator's interest and 
leadership in this issue. I know that there are discussion in 
the Department on this. I have not participated in them.
    Senator Kennedy. I suppose I could ask your opinion about 
expanding your own view about it, but I think I know what the 
answer is going to be, but let me give it a try anyway.
    Mr. Acosta. Certainly. As you guessed, I think that is 
something that I would have to discuss with the Department.
    Senator Kennedy. Thank you, Mr. Chairman. We have had a 
good opportunity to inquire, and I appreciate your courtesy in 
letting me question, and the Senator here for letting me run 
past my time.
    Chairman Hatch. Very happy to do it. You can see what all 
that seniority does. He picked just the right time so he can 
not be limited by a 5-minute or 10-minute rule.
    [Laughter.]
    Chairman Hatch. I have learned a lot from Senator Kennedy, 
I want you to know, and it has all been good.
    Let me just ask one question and then I will turn to 
Senator Feingold.
    Some of our colleagues have relied upon media reports that 
have criticized the current Assistant Attorney General of the 
Civil Rights Division as having politicized the unit. They have 
second-guessed his personnel decisions as well as his 
investigative actions. I realize you have not worked at the 
Department of Justice for over a year and that you were not in 
charge of the unit while these events occurred. Nevertheless, I 
am concerned that some might want to turn your nomination 
hearing into an oversight hearing concerning current Civil 
Rights Division practices, and I do not think this is the time 
or place for that, but at this time there is only one relevant 
question, as I see it, for you, and that is, will you keep 
these allegations in mind as you execute the responsibilities 
of this post?
    Mr. Acosta. Certainly, Senator. As I mentioned, I believe 
that the rule of law requires vigorous enforcement of the law, 
that is, fair-minded enforcement, that is enforcement with an 
eye to doing what is right, what the law requires. When I 
received the nomination Mr. Boyd warned me that it is a tough 
job, and that often criticism arises from all sides, and I 
think Mr. Boyd was careful to do what he thought was right 
throughout his tenure. I think that is a model that is 
admirable and a model that I would try to follow. When you take 
that oath to uphold and defend the Constitution of the United 
States, it is a serious oath and it obligates you to enforce 
the law as a member of the Executive Branch.
    Chairman Hatch. Well, thank you. I am going to turn to 
Senator Feingold at this time and then to Senator Sessions.
    Senator Feingold. Thank you and Senator Sessions for your 
courtesy. I was looking forward to referring to Senator Kennedy 
as Mr. Chairman again, but did not quite make it.
    [Laughter.]
    Senator Feingold. Welcome back though, Mr. Chairman.
    Welcome to the hearing, Mr. Acosta and Mr. Bryant. I want 
to thank the Chairman in particular for postponing this hearing 
from its originally scheduled time to give the Committee 
members adequate time to prepare and make sure the Democratic 
Senators could attend and question the nominees, and, Mr. 
Chairman, I do sincerely appreciate that.
    Mr. Acosta, you have been nominated to a very important 
position. The Civil Rights Division at the Department of 
Justice of course has a long and important history. I believe 
it is a part of the Department that serves our country in a way 
quite unlike any other Government agency or Department. The 
protection of civil rights for all Americans, and you will 
carry out your duties in a way that will bring great credit to 
you and to the Department.
    Mr. Bryant, I thoroughly enjoyed working with you during 
your tenure in the Office of Legislative Affairs. While you may 
not have responded to all of my questions as quickly as I would 
have liked, which is an ongoing issue at the Department, I 
think you did carry out your duties of the position very well, 
and I congratulate you on your nomination.
    I have a few questions. Mr. Acosta, last month in response 
to the President's February 2001 directive to the Attorney 
General to review and provide recommendations on ending racial 
profiling, the Department issued its guidelines regarding the 
use of race by Federal law enforcement agencies. I am pleased 
that the administration has taken this important step and that 
the Department's definition of racial profiling is actually 
similar to that in the bill that Representative Conyers and I 
have sponsored to ban racial profiling. I do, however, have 
some concerns, including the fact that the guidelines are not 
binding and do not apply to State and local law enforcement.
    If you are confirmed, what steps will you take to ensure 
that this policy is understood and implemented by Federal law 
enforcement officers and agencies?
    Mr. Acosta. Thank you, Senator. My understanding is that 
the guidelines were issued at the directive, as the Senator 
mentioned, of the President. The President is the Chief 
Executive Officer. These guidelines were issued at his 
directive. Federal agencies should and must follow them. They 
are not guidelines to be treated as best practices. They are 
guidelines that should and must be followed.
    Senator Feingold. All right. I appreciate that answer. In 
light of the fact that you said that they have to follow them, 
I understand that, but what other enforcement mechanisms would 
you provide to victims of racial profiling by Federal law 
enforcement officers?
    Mr. Acosta. Certainly, Senator. The guidelines, as the 
Senator mentioned, were the result of well over a year of 
study, of consideration by Department officials. I assume that 
part of that consideration was careful consideration of the 
degree to which this was a problem at the Federal level, the 
degree to which remedies were required, and these guidelines 
embodied the conclusions of the various individuals at the 
Department who studied this matter. I think that before sort of 
shooting from the hip, so to speak, it would be important for 
me to speak with those officials, to become privy to the 
expertise that has been developed in the Department on this 
matter.
    Senator Feingold. I look forward to talking with you after 
you have done that, because I do think, although obviously 
having the officials themselves follow these guidelines is 
important, but I do believe there needs to be other ways in 
which citizens can seek redress in situations of inappropriate 
racial profiling.
    What steps would you take to ensure that a ban on racial 
profiling applies to State and local law enforcement? I would 
hope you would agree that racial profiling has been and 
continues to be an issue for State and local law enforcement, 
and that Federal leadership is critically needed?
    Mr. Acosta. Certainly, Senator. I certainly agree that 
racial profiling is immoral, it is wrong, it should be ended. 
The President has said so. He said so when issuing his 
directive. Again, I think that this issue is being look ed at 
the Department. There are several experts that have considered 
this issue, and before opining as to what additional steps 
would or should be taken. I think it would be important to 
speak with them, to learn what they have concluded over at the 
Department.
    Senator Feingold. I look forward to ongoing conversations 
with you about this. Let me switch to a different subject.
    As you know, last month the Inspector General released a 
report in the treatment of individuals detained on immigration 
violations in connection with the investigation into the 
terrorist attacks of September 11th, 2001. While I commend 
everyone in law enforcement who has been involved in this and 
related investigations. I believe we need to remain committed 
to understanding what occurred, address abuses of power and 
ensure that they do not occur again in the future. As important 
as uncovering what happened is the assurance that it will not 
happen again, or if such abuses occur, that there is a clear, 
swift process to which the individuals responsible be held 
accountable for their actions.
    According to the IG's report, I understand that a number of 
complaints of physical and verbal abuse were determined to be 
insufficient to be the basis of criminal prosecutions. Other 
investigations are ongoing, and perhaps some cases would be 
ripe for civil or administrative action. What steps will you 
take to ensure that the Civil Rights Division will investigate 
those individuals who mistreat detainees and hold them 
responsible for their actions? And what can the Division do 
above and beyond adhering to the recommendations in the 
Inspector General's report to ensure that the rights of 
individuals detained in future terrorism investigations are 
protected?
    Mr. Acosta. Certainly, Senator. As an initial matter I want 
to emphasize the Department of Justice should not and does not 
tolerate abuse. It does not tolerate unlawful action by its 
officials or by Federal officials. If confirmed as Assistant 
Attorney General for Civil Rights, certainly if any 
allegations, if we receive credible information that 
individuals' civil rights have been violated, if there are 
statutory violations, we will pursue those and we will 
investigate those.
    Senator Feingold. I thank you.
    Now I am going to ask some questions of Mr. Bryant. in a 
December 23rd, 2003 to Senator Leahy in response to his inquiry 
regarding DOJ monitoring of individuals' library records, you 
wrote, quote, ``Any right of privacy possessed by library and 
bookstore patrons and such information is necessarily and 
inherently limited, since by the nature of these transactions 
the patron is reposing that information in the library or 
bookstore and assumes the risk that the entity may disclose it 
to another. Whatever privacy interests may have are outweighed 
by the Government's interest in obtaining information in cases 
where the FBI can show the patron's relevance to an authorized 
full investigation to protect against international terrorism 
or clandestine and intelligence activities, provided that such 
investigation of a United States person is not conducted solely 
upon the basis of activities protected by the First Amendment 
to the Constitution.'' End of quote.
    Mr. Bryant, do you really believe that Americans who go to 
libraries or bookstores assume the risk that their private 
reading information will be disclosed to law enforcement or 
anyone else? How do you think the balance should be struck 
between personal privacy and law enforcement in the case of 
libraries and bookstores?
    Mr. Bryant. Thank you, Senator. You refer of course to 
Section 215 of the USA PATRIOT Act, which gave the authority 
for the FISA Court to order the production of any tangible 
things, business records, or as you say, library records. That 
authority exists only in the limited category of investigations 
into international terrorism or espionage. So Section 215 
authority is limited accordingly.
    As you well know, the same ability to obtain such records 
has always been available on the criminal side of the ledger 
through a grand jury subpoena, and it is not limited to the 
category of international terrorism or espionage, and unlike 
the criminal side where the Court is not involved, because it's 
a grand jury subpoena, with Section 215 the order has to 
granted by the FISA Court. A court actually has to issue the 
order.
    In addition to the narrow scope of 215 only applying in 
connection with international terrorism or espionage, there is 
specific guarding of First Amendment rights by providing that 
no investigations of U.S. persons can occur solely on the basis 
of First Amendment protected activities. Further, Congress 
wisely provided, in connection with Section 215, that there be 
Congressional oversight, regular ongoing required Congressional 
oversight of how Section 215 is implemented, specifically 
through a reporting requirement that the Department provide to 
the Congress every 6 months a report on the usage of that 
section. And as you know, the House Judiciary Committee 
recently, in reviewing that submission by Congress, put out a 
press statement indicating that it believed there was no 
concern that the Department has been abusing its Section 215 
authority.
    Senator Feingold. Before my time expires I just want to 
make a point and see if you agree. You mentioned the grand jury 
standard, the criminal standard. Is it not a fact that that is 
a higher standard, a standard of relevance, and that Section 
215 has a lower standard which is simply that information is, 
quote, ``sought'' in connection with investigation? Is that not 
a distinction of some significance?
    Mr. Bryant. It is, although on the criminal side, as 
previously noted, the standard is evaluated only by the grand 
jury and not by a judge. In the FISA context the relevant 
showing has to be established before a judge will issue the 
order.
    Senator Feingold. My time is up, and I just want to 
indicate that a number of members of both houses are looking at 
revisions to Section 215. Some simply suggest eliminating the 
ability to access the library records. What I am looking at is 
a piece of legislation that would try to have a somewhat higher 
standard but still provide for the kind of situations you are 
talking about, and over time, I would be interested in your 
reaction, and see if we can get the Department to come together 
on a bipartisan agreement that perhaps 215 is too loose, but 
that we recognize the unique circumstances that 9/11 has led 
to.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you. I am proud of both of you, and I 
have to go to the White House, so Senator Sessions is going to 
complete this hearing, and I am very grateful to him for being 
willing to do this on such short notice. He has always been 
willing to assist on this Committee, and I am very, very 
grateful to have him on the Committee.
    I just want to personally congratulate both of you. You 
have my support. We will do everything in our power to get you 
through as quickly as we can, and I think the country is going 
to be greatly benefited by having both of you in these very 
important positions down at Justice. I just want to commend you 
and tell you how proud I am of both of you.
    So I understand Senator Leahy is coming, and there may be 
one or two others, so I would wait for a little while longer, 
and we ask any other members of the Committee who want to 
question, to please get over here. So it is in your hands.
    Senator Sessions. [Presiding] Thank you, Mr. Chairman, and 
I would join with you, Mr. Chairman, in my expression of 
confidence in these two nominees. You have, one, our support 
and affection over the years as members of this body from 
previous positions that you have held. I know, Mr. Acosta, you 
were Principal Deputy Assistant Attorney General for Civil 
Rights, and Mr. Bryant, in your Legislative Affairs and Senate 
Affairs, you are well known and respected here too. I think 
that is important.
    I just wanted to ask a couple of things. I will start with 
you, Mr. Acosta. Section 5 of the Voting Rights Act was raised 
this morning in the confirmation markup for Bill Pryor, the 
Attorney General of Alabama, who had made some comments about 
certain parts of Section 5 as needing reform. He was criticized 
for that. I notice no one mentioned that the Democratic 
Attorney General in Georgia himself, an African-American, had 
made some of the same comments. Back in the 1960's when the 
Voting Rights Act was passed, there was indeed blatant 
discrimination against African-American voters. They were 
denied the right to vote in many parts of the country 
systematically through legal and other manipulations. But at 
this point we have an extraordinary burden on the State and 
local communities, and we might as well talk about it. I am not 
afraid to mention it, and I do not think it means that anyone 
could suggest discussing this issue rationally would be any 
attempt to undermine voting rights.
    For example, in a county in Alabama, that may be, let us 
say, all white, if a voting precinct, there is a desire to move 
a voting precinct across the street from where it is today, 
they have to get approval from a person in the Department of 
Justice, and sometimes they do not know this and they do not do 
this, and they forget, and then they get challenged and it 
causes legal confusions and that sort of thing.
    Have you had the occasion to look at it--and I am just 
asking this generally--do you think we could improve that act 
and make it more rational without in any way undermining the 
protections it provides to every American for their right to 
vote?
    Mr. Acosta. Certainly, Senator. Thank you for the question. 
As Assistant Attorney General if confirmed, I would be 
responsible for approving or objecting to, on behalf of the 
Attorney General, redistricting plans. Certainly, one step that 
is within the authority of the Civil Rights Division to do to 
improve and to ease the delays that you speak about, is to 
ensure that that submissions to the Division receive priority, 
that they are looked at promptly and immediately, that we try 
to use the resources at our disposal to move them quickly, so 
that when subdivisions submit changes in voting procedure or do 
submit redistricting plans or other matters that do need 
Section 5 approval, that we can respond promptly and 
efficiently so we do not hold up local elections.
    Senator Sessions. A redistricting proposal is a serious 
thing, and it is worthy of review and consideration. But I am 
talking about a circumstance in which the voting place had been 
on one side of the road, and they simply wanted to move it to 
another building on the other side of the road. They have to 
get approval for that also. Not changing a district's line, 
just the physical location of the voting place 50 feet is just 
one example of the things that States covered by the Voting 
Rights Act have to beg your permission for.
    Do you think there could be any improvement of that? And I 
will just ask it this way: Would you be willing to give a fair 
evaluation to concerns in that regard and be willing to 
consider change if change makes sense?
    Mr. Acosta. Senator, as Assistant Attorney General, if 
confirmed, my job would be to enforce whatever law this 
Congress adopted. I would be more than--I would not only be 
willing, but I would readily enforce whatever changes this 
Congress chose to adopt.
    Senator Sessions. You don't see any role for the Division 
in suggesting improvements?
    Mr. Acosta. The Department and the administration speak 
with one voice. Any changes on legislation on that matter I 
think would be a policy judgment that would be made department-
wide or administration-wide.
    Senator Sessions. Do you think, Mr. Acosta, that Adarand 
remains good law?
    Mr. Acosta. The Supreme Court has not overruled Adarand.
    Senator Sessions. And so far as you know, that represents 
the final decision of the Supreme Court on the issues contained 
therein?
    Mr. Acosta. Certainly.
    Senator Sessions. And would we expect you to enforce that 
decision as written?
    Mr. Acosta. Certainly.
    Senator Sessions. Mr. Bryant, I would just raise one thing 
to you. Senator Leahy has been around here a long time, and 
counting my tenure in the Department of Justice, I have 
observed a lot also. I think your position is a pretty tough 
position at times. You will have some tough calls to make. And 
I remember discussing privately and then on the record with a 
nominee of the Clinton administration to your position, and I 
warned them that sometimes you have to say no to the executive 
branch. You know, executives get things in their minds, and 
they are convinced it is right, and they don't like sometimes 
lawyers telling them no. Sometimes lawyers tell them no when 
they shouldn't, and they really are too cautious. But then, 
again, sometimes lawyers really have to say no and even be 
strongly committed to saying no out of ultimate loyalty to the 
administration to keep them from making a mistake that could 
prove costly or embarrassing.
    I think later, the person I talked about, I think some 
things got by that embarrassed both that person and the 
administration; whereas, a real strong, absolute refusal to 
countenance the action may have avoided that.
    Are you prepared to tell the President of the United States 
or the Attorney General or anyone else no if you think it needs 
to be no?
    Mr. Bryant. Thank you, Senator. If the faithful discharge 
of my duties requires me to counsel no to people in higher pay 
grades than mine, I hope I'll be prepared to do that.
    Senator Sessions. Well, I think you should for their sake 
as well as your own.
    Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman. I will put most of 
my statement in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Leahy. Mr. Acosta, I appreciate seeing you here. 
The fact that you have had just 2 years of legal experience in 
civil rights issues and comparing that with the significance of 
the position to which you are nominated is one of the reasons 
why we are probably going to ask more questions than usual, and 
especially since that 2 years has been in a division and an 
administration has been criticized for failing to pursue civil 
rights violations vigorously and for actually marginalizing 
staff attorneys with a lot of experience. But you have said a 
great deal about this, and let me just go into a little bit of 
that.
    As head of the Project on the Judiciary at the Ethics and 
Public Policy Center, you campaigned against judicial activism. 
You urged the Senate to challenge on ideological grounds 
judicial nominees. That puts you somewhat at odds with the 
administration today. Of course, you were telling us to 
challenge President Clinton's nominees on ideology. The 
administration you are now serving with says we shouldn't do 
that.
    In 1997, again, during President Clinton's term, you 
praised Senator Hatch for ``strengthening the advise and 
consent process.'' You criticized the Clinton White House for 
refusing to inform the Senate Judiciary Committee of whom it is 
considering for nomination. Today, of course, it is the 
position of the administration there is no need to tell us 
anything until we read it in the paper on nominees.
    In 2000, you co-authored an op-ed with a man named C. 
Boyden Gray. You praised the Republican Senate's refusal to 
approve President Clinton's nominees. About 60 of President 
Clinton's nominees were never approved, never even brought up 
for a vote. And you wrote, ``The Senate's power of advise and 
consent, after all, is not a rubber stamp.'' So you and Mr. 
Gray were strongly praising the Senate for refusing to approve 
President Clinton's nominees, actually failing to approve them 
by just not allowing them ever to come to a vote. Sixty of them 
were not allowed to ever come to a vote.
    I am not sure how that puts you at odds with the 
administration that is complaining about two now not being 
allowed to come to a vote versus the 60 that you praised for 
not coming to a vote.
    So I hope if you are confirmed that you will be an advocate 
within the administration for greater consultation with this 
Committee and the members and that you will actually show at 
least some consistency with the positions you took when it was 
the Clinton administration. I don't expect Mr. Gray to, but he 
is not up for a nomination.
    In the course of your campaign against what you call 
judicial activism, you criticized the use of consent decrees. 
You said they should be entered only to remedy constitutional 
violations, even then for a limited time. Of course, consent 
decrees have been used a great deal. There was a major one to 
address violations of civil rights statutes. That has been done 
for decades.
    You said in 1997 that it would have been far better for 
modern women's rights to be gained through the democratic 
process that brought about suffrage, not by judicial grace or 
fiat.
    So I would like to know, are you going to authorize lawyers 
in the Civil Rights Division, if you are confirmed, to seek 
consent decrees?
    Mr. Acosta. Thank you for the question, Senator. Consent 
decrees are an important tool within the Civil Rights Division. 
The Civil Rights Division should and, if confirmed, will 
continue to use consent decrees. I believe I wrote that consent 
decrees should be limited in time. The Division has always had 
the policy of limiting consent decrees in time. Depending on 
the issue, there are standard lengths that we use for consent 
decrees. I would authorize consent decrees. I would authorize 
our litigators to pursue consent decrees as they have.
    Senator Leahy. You said that you believe that the major 
court decision that cemented women's rights over the past 
decades were, in fact, further examples of judicial activism. 
Do you still feel strongly that way?
    Mr. Acosta. Thank you, Senator. I don't recall the exact 
phrasing. I believe what I wrote about and what I was referring 
to is that in our system of Government, in the ideal, the 
democratic process brings about reform and that it would have 
been far better and far superior for the democratic process to 
bring about some of the reforms rather than for courts to do 
that. That doesn't mean that when the democratic process does 
not respond that judges do not have an obligation to respond to 
fill the gap, so to speak.
    Senator Leahy. I notice on your resume--and I first should 
say that there are many people who admire your work at the 
Civil Rights Division and enforcing Section 203 of the Voting 
Rights Act and addressing discrimination against persons with 
limited English proficiency. So far as my mother and all her 
family came here to this country speaking no English, and my 
wife didn't speak English until she was in school, I know how 
sometimes that can be difficult until you get able to do it. 
And so I applaud you for that.
    I was worried, though, on your resume you state you worked 
on the Florida recount issues for the Bush-Cheney campaign, did 
campaign work in Pennsylvania. But on the questionnaire we sent 
you, where we asked whether you ever played a role in a 
political campaign, you stated only that you advised 
Indianapolis Mayor Stephen Goldsmith on civil justice issues to 
aid in his work in the Bush 2000 campaign.
    Normally these discrepancies really wouldn't bother me, but 
the 2000 Florida election gave rise to a number of allegations 
of civil rights violations, some of which were investigated by 
the Civil Rights Division. Am I seeing a discrepancy here where 
there isn't any? Or did you leave something out in the 
questionnaire?
    Mr. Acosta. No, I do not think you're seeing a discrepancy, 
Senator. If I could expand on both answers?
    Senator Leahy. Sure.
    Mr. Acosta. I did not participate in the Florida recount. I 
did not participate in the Florida litigation. I did help 
obtain names of individuals who could be contacted to 
participate in the recount and the litigation. I compiled a 
list of individuals and passed them along to the campaign who I 
thought would be useful to contact to see if they had the time 
to participate.
    Senator Leahy. So your resume reference and your 
questionnaire are not in conflict at all?
    Mr. Acosta. I do not think they're in conflict. I think one 
might have been--my resume might have been a broad statement of 
participated in a recount. I don't know which version of my 
resume you have. I believe there is one on the Internet that 
appeared there, and I sort of loosely referred to the Florida 
recount, but I will tell the Senator now, and I signed my 
questionnaire, my participation in the campaign was through 
Mayor Goldsmith's committee. I was contacted, I was asked for 
names. I did not go to Florida. I did not participate in the 
litigation. I did provide names to the campaign to call to see 
if they could go to Florida.
    With respect to Pennsylvania, I traveled to Pennsylvania 
and spent, I believe, 2 or 3 days doing grass-roots campaigning 
in Pennsylvania. That probably should have been in my 
questionnaire. I apologize to the Senator for that omission.
    Senator Leahy. Mr. Bryant, of course, we know from his days 
in the House Judiciary Committee. We know him well. Of course, 
once he became Assistant Attorney General for the office of 
Legislative Affairs, he became more of a stranger, which is 
unfortunate because he is very knowledgeable about these 
issues. We sometimes had a hard time finding him. He is getting 
a very fast hearing. I think he was nominated--what was it, 
Dan? Two weeks ago? Am I correct? Two, three weeks ago?
    Mr. Bryant. That seems about right.
    Senator Leahy. It is a lot different than nominations 
coming from the Clinton administration when Republicans were in 
charge. They sometimes waited weeks, years, sometimes never get 
a hearing.
    I would note that many of us in Congress, actually from 
both sides of the aisle, both Republicans and Democrats, have 
expressed serious frustration with delays, refusals, and 
inadequate information provided by OLA. So I want to know just 
where we are going to go now.
    Mr. Bryant articulated the legal and historical 
departmental justification of the administration's refusal to 
give us papers in the Miguel Estrada matter. I thought his 
correspondence with me disregarded crucial case law and 
historical facts, departmental precedents, the clearly 
established precedent for Senators to review this. I was 
concerned that this may have been what he was required to do, 
but that Mr. Bryant continued to choose secrecy over openness 
in this regard.
    I must say, I realize that he had to vet a lot of these. I 
have never seen such a consistent pattern of ideologically 
oriented nominees, many lacking a strong commitment to protect 
our basic civil rights, even though a lot of these I voted for 
to give the President the benefit of the doubt. But I will have 
a number of questions on that whenever you--I see the red light 
on, Mr. Chairman. I don't want to--
    Senator Sessions. Well, I will just take a minute, and then 
I will give it back to you, Senator Leahy.
    You know, on the question of handling of judges during the 
Clinton years, several hundred were confirmed. I forget the 
number at this moment. One was voted down. There were 41, I 
believe, pending confirmations when President Clinton left 
office.
    Senator Leahy. Several withdrew their names because after 3 
or 4 years of waiting they got tired of waiting for a hearing.
    Senator Sessions. A few may have. A few were objected to by 
home State Senators in ways that delayed their nomination. But 
when former President Bush left office and the Democrats 
controlled this Committee, there were 60 people left pending 
during that time, and so I don't think the record has been bad. 
Nominees are--
    Senator Leahy. If the Senator would yield, a lot of former 
President Bush's were sent, of course, at a time when he fully 
expected to be re-elected, were sent in during the prohibition 
of the Thurmond rule, the Strom Thurmond rule, a rule 
established by the Republicans saying that in the last 6 months 
of a President's term, no nominees would go through unless by a 
concurrence of both the Chairman and Ranking Member and the 
Majority and Minority Leader. So a whole lot of names were sent 
up, I think, in late summer or just before the recess, I guess 
with the assumption, looking at the polls, that the President 
was going to get re-elected easily and they would be first on 
the agenda in January.
    Senator Sessions. We can talk about it a good bit. I don't 
agree. I believe that the Republican Senate under Chairman 
Hatch treated Clinton judges fairly and objectively and moved 
them in a fair and objective way. And it was at least as good, 
really better, than was done to President Bush's judges. And 
when the Senate was for that brief period under the hands of 
the majority Democrats in this body, 9 out of the 11 original 
appointees that President Bush submitted had not had a hearing 
in nearly 2 years. And until the Republicans took back control 
and started moving the nominees, they were not moving.
    So we can debate that a lot, and I am prepared to do so 
right here. We don't have a quorum problem, and so we can just 
talk about it.
    Now, Mr. Acosta, I think I heard you say that it would be 
better if the legislature acts, but sometimes the courts have 
the right to fill in the gaps. Did I understand that correctly?
    Mr. Acosta. Senator, it is--if I may, it is better if the 
democratic process acts. Where the democratic process is silent 
and where the Constitution requires that injustices be 
corrected, courts do have an obligation to act pursuant to the 
Constitution and pursuant to the laws to ensure that injustice 
is not done.
    Senator Sessions. Well, I think that is a better answer. 
Otherwise, I was going to ask Mr. Bryant to introduce you to 
John Ashcroft because I have heard him, as Senator Leahy has, 
on a number of occasions says that it is an ill thought to say 
that because the legislature didn't act, the courts should. 
Because when legislators don't act, they have acted. They have 
decided not to act. And that is a democratic act also. I have 
heard him say that a number of times. I think that is 
fundamentally correct.
    So I think you articulate it better that if there is a 
fundamental constitutional right unaddressed, the court has to 
act in proper interpretation of the Constitution, but they 
don't have the right to fix everything they don't think is 
perfectly proper according to their feelings at that time.
    Are we okay on that somewhat?
    Mr. Acosta. Absolutely.
    Senator Sessions. All right. Senator Leahy?
    Senator Leahy. Thank you.
    Mr. Acosta, as head of the Project on the Judiciary, what 
work did you do in any way related to the nomination of Ronnie 
White to serve as a U.S. district court judge?
    Mr. Acosta. Senator, I was aware of that nomination. I was 
not involved in work on that nomination.
    Senator Leahy. In no way whatsoever?
    Mr. Acosta. Other than I was aware of it, I might have 
mentioned it to someone in passing, but there was no--there was 
no official work.
    Senator Leahy. Did you consider Judge White a judicial 
activist?
    Mr. Acosta. Senator, I didn't look at Judge White.
    Senator Leahy. Mr. Bryant, as Assistant Attorney General at 
the Office of Legislative Affairs, we have a lot of letters to 
you. I know we sent one, Senator Feingold, Senator Cantwell, 
and I to someone on January 10th regarding the data-mining 
practices and policies of the Department of Justice. We have 
never gotten an answer. It was sent as part of our oversight 
responsibilities. Do Members of Congress have any right to 
expect answers when they are carrying out their oversight 
responsibility?
    Mr. Bryant. Thank you, sir. Absolutely, I do. If I could 
say just more generally, in reflecting on the 107th Congress, I 
needed to do better. I need to do better, OLP needs to do 
better, the Department needs to do better. I think we are 
improving in terms of getting timely and accurate responses 
back to Members of Congress. Congress needs timely and accurate 
information in the course of conducting its oversight.
    The challenge is to be as timely as possible, while being 
completely accurate. And while I was in OLA, there were some 
7,000 letters back to Congress and the challenge for us was to 
balance timeliness and accuracy at the same time that we tried 
to have a care for how we burdened attorneys in the Department 
with operational responsibilities, especially in the post-9/11 
environment.
    Senator Leahy. Well, I understand it was a concern, but I 
was thinking this morning, for example, Director Mueller 
testified, and in anticipation perhaps of his testimony about a 
week ago a number of questions asked by Senator Grassley, a 
couple of other Republicans and myself were answered.
    They were requested, and I would note it sort of falls in a 
regular pattern. We asked the questions in July and we got the 
answers in July. Unfortunately, we asked them in July 2002 and 
got the answers in July 2003, and I think some were asked in 
2001. But we at least got the answers to our July questions in 
July.
    You do a lot of the vetting on judges. Do you see any 
problem with the fact that 20 of President Bush's judicial 
nominees, 14 percent of them, including 6 circuit court 
nominees and 14 district court nominees, have received at least 
partial ``not qualified'' ratings from the American Bar 
Association?
    Mr. Bryant. Thank you, Senator. Let me just say, if I 
might, that I have been, as you know, in the Office of Legal 
Policy only now about a month-and-a-half. OLP is, as you 
indicate, involved in helping do lawyering in connection with 
possible candidates to be nominees and it plays a support role 
to the Attorney General and the White House in connection with 
candidates. So I would need to review further the specifics in 
terms of those candidates before I could respond.
    Senator Leahy. Thank you. I have other questions, but one 
of the great things about the air pollution and what not is it 
seems to--you know, I have a sort of asthmatic reaction to it, 
and lucky for you, Mr. Bryant and Mr. Acosta, my voice is 
practically gone.
    I will, however, submit some questions for the record. I 
also will put Mr. Acosta's resume, Mr. Chairman, if there is no 
objection, in the record.
    Senator Sessions. That will be made a part of the record.
    Senator Leahy. I will submit the others for the records and 
would urge you to respond as quickly as you can. If you have 
any questions--these are not ``gotcha'' questions by any means. 
If you have any questions about what I want, just pick up the 
phone and call me directly. I will be glad to fill you in.
    Good to see you both, gentlemen. Thank you. I am sorry I 
wasn't here when I assume you introduced your families earlier. 
Is that correct?
    Mr. Bryant. Yes.
    Senator Leahy. I have often urged--and I have done this 
maybe about four or times in the majority and four or five 
times in the minority. I have been Chairman of different 
committees and what not and I have always urged nominees to 
have their families here and introduce them, if for no other 
reason the fact that someday in the old archives of the family, 
you pull those out and say, my God, I was there, because their 
names are in there.
    Of course, Mr. Bryant is familiar with this. You should 
always check with the transcript afterwards to make sure that 
family names are correctly spelled, so you can get copies of 
all that to the family members who were there.
    Thank you, Mr. Chairman.
    Senator Sessions. Thank you, Senator Leahy.
    We will keep the record open for questions for one week, 
follow-up questions. I don't think I have anything else to add 
to these two fine nominees. They both have broad support within 
this body on both sides of the aisle, and I look forward to 
your prompt confirmation. It is important that the President 
have good people in these positions.
    You have a management challenge. There are some people who 
think that these positions are all policy and don't have 
management requirements, but I submit to you that we need to 
watch spending around here. You have probably got some dead 
wood around and you probably need some reorganization and you 
may not need as many people as you have. If you do, you should 
say so and let's let the taxpayers keep some of their money.
    Is there anything else that you two feel obligated to share 
with the group?
    Mr. Bryant. No, sir.
    Senator Sessions. All right. If there is nothing else, we 
will stand adjourned.
    [Whereupon, at 3:54 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

[GRAPHIC] [TIFF OMITTED] T1833.057

[GRAPHIC] [TIFF OMITTED] T1833.058

[GRAPHIC] [TIFF OMITTED] T1833.059

[GRAPHIC] [TIFF OMITTED] T1833.060

[GRAPHIC] [TIFF OMITTED] T1833.061

[GRAPHIC] [TIFF OMITTED] T1833.062

[GRAPHIC] [TIFF OMITTED] T1833.063

[GRAPHIC] [TIFF OMITTED] T1833.064

[GRAPHIC] [TIFF OMITTED] T1833.065

[GRAPHIC] [TIFF OMITTED] T1833.066

[GRAPHIC] [TIFF OMITTED] T1833.067

[GRAPHIC] [TIFF OMITTED] T1833.068

[GRAPHIC] [TIFF OMITTED] T1833.069

[GRAPHIC] [TIFF OMITTED] T1833.070

[GRAPHIC] [TIFF OMITTED] T1833.071

[GRAPHIC] [TIFF OMITTED] T1833.072

[GRAPHIC] [TIFF OMITTED] T1833.073

[GRAPHIC] [TIFF OMITTED] T1833.074

[GRAPHIC] [TIFF OMITTED] T1833.075

[GRAPHIC] [TIFF OMITTED] T1833.076

[GRAPHIC] [TIFF OMITTED] T1833.077

[GRAPHIC] [TIFF OMITTED] T1833.078

[GRAPHIC] [TIFF OMITTED] T1833.079

[GRAPHIC] [TIFF OMITTED] T1833.080

[GRAPHIC] [TIFF OMITTED] T1833.081

[GRAPHIC] [TIFF OMITTED] T1833.094

[GRAPHIC] [TIFF OMITTED] T1833.095

[GRAPHIC] [TIFF OMITTED] T1833.096

[GRAPHIC] [TIFF OMITTED] T1833.097

[GRAPHIC] [TIFF OMITTED] T1833.098

[GRAPHIC] [TIFF OMITTED] T1833.099

[GRAPHIC] [TIFF OMITTED] T1833.100

[GRAPHIC] [TIFF OMITTED] T1833.101

[GRAPHIC] [TIFF OMITTED] T1833.102

[GRAPHIC] [TIFF OMITTED] T1833.103

[GRAPHIC] [TIFF OMITTED] T1833.104

[GRAPHIC] [TIFF OMITTED] T1833.105

[GRAPHIC] [TIFF OMITTED] T1833.106

[GRAPHIC] [TIFF OMITTED] T1833.107

[GRAPHIC] [TIFF OMITTED] T1833.108

[GRAPHIC] [TIFF OMITTED] T1833.109

[GRAPHIC] [TIFF OMITTED] T1833.110

