[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]
S. Hrg. 108-135, Pt. 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
APRIL 30, MAY 7, MAY 22, JUNE 25, AND JULY 9, 2003
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Serial No. J-108-1
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PART 3
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Printed for the use of the Committee on the Judiciary
92-548 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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WEDNESDAY, APRIL 30, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 55
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 59
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 5
prepared statements.......................................... 167
Kennedy, Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 47
prepared statement........................................... 178
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared
statement...................................................... 180
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 7
prepared statement........................................... 181
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 64
PRESENTERS
Breaux, Hon. John, a U.S. Senator from the State of Louisiana
presenting S. Maurice Hicks Jr., Nominee to be District Judge
for the Western District of Louisiana.......................... 3
McCrery, Hon. Jim, a Representative in Congress from the State of
Louisiana presenting S. Maurice Hicks Jr., Nominee to be
District Judge for the Western District of Louisiana........... 4
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting William Emil Moschella, Nominee to be Assistant
Attorney General, Office of Legislative Affairs, Department of
Justice and John G. Rberts, Jr., Nominee to be Circuit Judge
for the District of Columbia................................... 2
STATEMENTS OF THE NOMINEES
Campbell, David G., Nominee to be District Judge for the District
of Columbia.................................................... 80
Questionnaire................................................ 81
Hicks, S. Maurice, Jr., Nominee to be District Judge for the
Western District of Louisiana.................................. 107
Questionnaire................................................ 108
Moschella, William Emil, Nominee to be Assistant Attorney
General, Office of Legislative Affairs, Department of Justice.. 141
Questionnaire................................................ 142
Roberts, John G., Jr., Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 9
Questionnaire................................................ 10
QUESTIONS AND ANSWERS
Responses of William Moschella to questions submitted by Senator
Durbin......................................................... 158
Responses of William Moschella to questions submitted by Senator
Leahy.......................................................... 160
SUBMISSIONS FOR THE RECORD
Allen, Hon. George, a U.S. Senator from the State of Virginia,
statement in support of William Moschella, Nominee to be
Assistant Attorney General, Office of Legislative Affairs,
Department of Justice.......................................... 162
Gillers, Stephen, Vice Dean and Professor of Law, New York
University, New York, New York, letter......................... 163
Hyman, Lester S., Senior of Counsel, Swidler Berlin Shereff
Friedman, LLP, Washington, D.C., letter........................ 175
Katyal, Neal Kumar, Visting Professor of Law, Yale Law School,
New Haven, Connecticut, letter................................. 176
Members of the Bar of the District of Columbia, Washington, D.C.,
joint letter................................................... 183
National School Boards Association, Anne L. Bryant, Executive
Director, and Julie Underwood, General Counsel/Associate
Executive Director, Arlington, Virginia, joint letter.......... 188
Robbins, Russell, Englert, Orseck and Untereiner LLP, Washington,
D.C., Letter................................................... 190
San Diego Union-Tribune, April 24, 2002, article................. 194
San Francisco Chronicle, April 25, 2002, article................. 196
Seamon, Richard H., Assistant Professor of Law, University of
South Carolina, Columbia, South Carolina, letter............... 198
Sensenbrenner, F. James Jr., a Representative in Congress from
the State of Wisconsin, letter and attachment.................. 199
Washington Post, July 5, 2002, article........................... 202
WEDNESDAY, MAY 7, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 332
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 211
prepared statement........................................... 385
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 337
prepared statement........................................... 387
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 327
prepared statement........................................... 390
PRESENTERS
Boxer, Hon. Barbara, a U.S. Senator from the State of California
presenting Consuelo Maria Callahan, Nominee to be Circuit Judge
for the Ninth Circuit.......................................... 206
Corzine, Hon. Jon, a U.S. Senator from the State of New Jersey
presenting Michael Chertoff, Nominee to be Circuit Judge for
the Third Circuit.............................................. 208
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Consuelo Maria Callahan, Nominee to be
Circuit Judge for the Ninth Circuit............................ 209
Lautenberg, Hon. Frank, a U.S. Senator from the State of New
Jersey presenting Michael Chertoff, Nominee to be Circuit Judge
for the Third Circuit.......................................... 207
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama
presenting L. Scott Coogler, Nominee to be District Judge for
the Northern District of Alabama............................... 210
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama
presenting L. Scott Coogler, Nominee to be District Judge for
the Northern District of Alabama............................... 205
STATEMENTS OF THE NOMINEES
Callahan, Consuelo Maria, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 248
Questionnaire................................................ 249
Chertoff, Michael, Nominee to be Circuit Judge for the Third
Circuit........................................................ 213
Questionnaire................................................ 214
Coogler, L. Scott, Nominee to be District Judge for the Northern
District of Alabama............................................ 288
Questionnaire................................................ 289
QUESTIONS AND ANSWERS
Responses of Michael Chertoff to questions submitted by Senators
Kennedy, Biden, Leahy, and Feingold............................ 350
Additional Responses of Michael Chertoff to questions submitted
by Senator Kennedy............................................. 372
SUBMISSIONS FOR THE RECORD
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California, letter in support of Consuelo Maria Challahan,
Nominee to be Circuirt Judge for the Ninth Circuit............. 380
Rehnquist, William H., Chief Justice, Supreme Court, Washington,
D.C., letter................................................... 394
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama,
statement in support of L. Scott Coogler, Nominee to be
District Judge for the Northern District of Alabama............ 396
THURSDAY, MAY 22, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 399
prepared statement........................................... 605
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 615
PRESENTERS
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, presenting J. Ronnie Greer, Nominee to be District
Judge for the Eastern District of Tennessee.................... 406
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York presenting Richard C. Wesley, Nominee to be Circuit
Judge for the Second Circuit................................... 408
Collins, Hon. Susan, a U.S. Senator from the State of Maine
presenting John A. Woodcock, Nominee to be District Judge for
the District of Maine.......................................... 404
Dodd, Hon. Christopher J., a U.S. Senator from the State of
Connecticut presenting Mark R. Kravitz, Nominee to be District
Judge for the District of Connecticut.......................... 401
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee
presenting J. Ronnie Greer, Nominee to be District Judge for
the Eastern District of Tennessee.............................. 405
Reynolds, Hon. Thomas, a Representative in Congress from the
State of New York presenting Richard C. Wesley, Nominee to be
Circuit Judge for the Second Circuit........................... 409
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Thomas M. Hardiman, Nominee to be
District Judge for the Western District of Pennsylvania........ 400
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Richard C. Wesley, Nominee to be Circuit Judge
for the Second Circuit......................................... 407
Snowe, Hon. Olympia J., a U.S. Senator from the State of Maine
presenting John A. Woodcock, Nominee to be District Judge for
the District of Maine.......................................... 402
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Thomas M. Hardiman, Nominee to be
District Judge for the Western District of Pennsylvania........ 400
STATEMENTS OF THE NOMINEES
Greer, J. Ronnie, Nominee to be District Judge for the Eastern
District of Tennessee.......................................... 462
Questionnaire................................................ 463
Hardiman, Thomas M., Nominee to be District Judge for the Western
District of Pennsylvania....................................... 486
Questionnaire................................................ 487
Kravitz, Mark R., Nominee to be District Judge for the District
of Connecticut................................................. 517
Questionnaire................................................ 518
Wesley, Richard C., Nominee to be Circuit Judge for the Second
Circuit of New York............................................ 411
Questionnaire................................................ 412
Woodcock, John A., Nominee to be District for the District of
Maine.......................................................... 543
Questionnaire................................................ 544
QUESTIONS AND ANSWERS
Responses of Thomas M. Hardiman to questions submitted by
Senators Durbin, Kennedy and Leahy............................. 582
SUBMISSIONS FOR THE RECORD
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, statement in support of J. Ronnie Greer, Nominee to
be District Judge for the Eastern District of Tennessee........ 604
Collins, Hon. Susan, a U.S. Senator from the State of Maine,
statement in support of John A. Woodcock, Nominee to be
District for the District of Maine............................. 609
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee,
statement in support of J. Ronnie Greer, Nominee to be District
Judge for the Eastern District of Tennessee.................... 611
Hardiman, Thomas M., letter to Senator Hatch..................... 613
Murphy, Tom, Mayor, City of Pittsburgh, Pittsburgh, Pennsylvania,
letter......................................................... 619
Onorato, Dan, Controller, County of Allegheny, Pittsburgh,
Pennsylvania, letter........................................... 620
WEDNESDAY, JUNE 25, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina....................................................... 624
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statements............................................ 987
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 996
PRESENTERS
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico
presenting Robert C. Brack, Nominee to be District Judge for
the District of New Mexico..................................... 630
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia
presenting Christopher A. Wray, Nominee to be Assistant
Attorney General, Criminal Division, Department of Justice..... 631
Dole, Hon. Elizabeth, a U.S. Senator from the State of North
Carolina presenting Allyson K. Duncan, Nominee to be Circuit
Judge for the Fourth Circuit, and Louise W. Flanagan, Nominee
to be District Judge for the Eastern District of North Carolina 626
Domenici, Hon. Pete, a U.S. Senator from the State of New Mexico
presenting Robert C. Brack, Nominee to be District Judge for
the District of New Mexico..................................... 629
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois presenting Samuel Der-Yeghiayan, Nominee to be
District Judge for the Northern District of Illinois........... 637
Edwards, Hon. John, a U.S. Senator from the State of North
Carolina presenting Allyson K. Duncan, Nominee to be Circuit
Judge for the Fourth Circuit, and Louise W. Flanagan, Nominee
to be District Judge for the Eastern District of North Carolina 624
Fitzgerald, Hon. Peter, a U.S. Senator from the State of Illinois
presenting Samuel Der-Yeghiayan, Nominee to be District Judge
for the Northern District of Illinois.......................... 636
Hastings, Hon. Doc, a Representative in Congress from the State
of Washington presenting Lonny Suko, Nominee to be District
Judge for the Eastern District of Washington................... 638
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, presenting Earl Leroy Yeakel III, Nominee to be District
Judge for the Western District of Texas, and Karen P. Tandy,
Nominee to be Administrator of the Drug Enforcement
Administration, Department of Justice.......................... 634
Miller, Hon. Zell, a U.S. Senator from the State of Georgia
presenting Christopher A. Wray, Nominee to be Assistant
Attorney General, Criminal Division, Department of Justice..... 632
Murray, Hon. Patty, a U.S. Senator from the State of Washington
presenting Lonny Suko, Nominee to be District Judge for the
Eastern District of Washington................................. 633
Nethercutt, Hon. George R., Jr., a U.S. Senator from the State of
Washington presenting Lonny Suko, Nominee to be District Judge
for the Eastern District of Washington......................... 639
STATEMENTS OF THE NOMINEES
Brack, Robert C., Nominee to be District Judge for the District
of New Mexico.................................................. 666
Questionnaire................................................ 668
Der-Yeghiayan, Samuel, Nominee to be District Judge for the
Northern District of Illinois.................................. 685
Questionnaire................................................ 686
Duncan, Allyson K., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 640
Questionnaire................................................ 641
Flanagan, Louise W., Nominee to be District Judge for the Eastern
District of North Carolina..................................... 711
Questionnaire................................................ 712
Suko, Lonny R., Nominee to be District Judge for the Eastern
District of Washington......................................... 738
Questionnaire................................................ 739
Tandy, Karen P., Nominee to be Administrator of the Drug
Enforcement Administration, Department of Justice.............. 813
Questionnaire................................................ 815
Wray, Christopher A., Nominee to be Assistant Attorney General,
Criminal Division, Department of Justice....................... 848
Questionnaire................................................ 849
Yeakel, Earl Leroy, III, Nominee to be District Judge for the
Western District of Texas...................................... 774
Questionnaire................................................ 775
QUESTIONS AND ANSWERS
Responses of Robert Brack to questions submitted by Senator
Durbin......................................................... 888
Responses of Karen Tandy to questions submitted by Senator Biden. 891
Responses of Karen Tandy to questions submitted by Senator Durbin 902
Responses of Karen Tandy to questions submitted by Senator
Feinstein...................................................... 907
Responses of Karen Tandy to questions submitted by Senator Kohl.. 908
Responses of Karen Tandy to questions submitted by Senator Leahy. 912
Responses of Christopher Wray to questions submitted by Senator
Feingold....................................................... 922
Responses of Christopher Wray to questions submitted by Senator
Kennedy........................................................ 935
Responses of Christopher Wray to questions submitted by Senator
Durbin......................................................... 945
Responses of Christopher Wray to questions submitted by Senator
Leahy.......................................................... 953
Responses of Earl Leroy Yeake to questions submitted by Senator
Durbin......................................................... 960
SUBMISSIONS FOR THE RECORD
Alexander, Kent B., Senior Vice President and General Counsel,
Emory University, Atlanta, Georgia, letter..................... 962
Allen, Hon. George, a U.S. Senator from the State of Virginia,
statement in support of Karen P. Tandy, Nominee to be
Administrator of the Drug Enforcement Administration,
Department of Justice.......................................... 964
Association of Former Federal Narcotics Agents, John J. Coleman,
President, Washington, D.C., letter............................ 966
Bell, Griffin B., Senior Partner, King & Spalding LLP, Atlanta,
Georgia, letter................................................ 968
Cantwell, Hon. Maria, a U.S. Senator from the State of
Washington, statement in support of Lonny R. Suko, Nominee to
be District Judge for the Eastern District of Washington....... 970
Carlton, A.P., Jr., President, American Bar Association, Chicago,
Illinois, letter and attachment................................ 973
Community Anti-Drug Coalitions of America, Arthur T. Dean, Major
General, U.S. Army, Retired, Chairman and CEO and Sue R. Thau,
Public Policy Consultant, Alexandria, Virginia, letter......... 975
Cornyn, Hon. John, a U.S. Senator from the State of Texas,
statement in support of Earl Leroy Yeakel III, Nominee to be
District Judge for the Western District of Texas............... 976
D.A.R.E. America, Glenn Levant, President & Founding Director,
Los Angeles, California, letter................................ 977
Duffey, William S., Jr., U.S. Attorney, Northern District of
Georgia, Department of Justice, Atlanta, Georgia, letter....... 978
Edwards, Hon. John, a U.S. Senator from the State of North
Carolina, statement in support of Allyson K. Duncan, Nominee to
be Circuit Judge for the Fourth Circuit........................ 980
Fraternal Order of Police:
Chuck Canterbury, National President, Washington, D.C.,
letter..................................................... 984
Steve Young, National President, Washington, D.C., letter.... 985
Griffin, Michael, Executive Director, County Executives of
America, letter................................................ 986
Higginbotham, Evelyn Brooks, Professor of History and African
American Studies, Cambridge, Massachusetts, letter............. 993
International Union of Police Associations, AFL-CIO, Sam A.
Cabral, International President, Alexandria, Virginia
letter in support of Karen P. Tandy.......................... 994
letter in support of Christopher Wray........................ 995
Major Cities Chiefs, Harold L. Hurtt, President, Phoenix Police
Chief, letter.................................................. 998
Major County Sheriffs' Association, Sheriff Kevin Beary,
President, Alexandria, Virginia, letter........................ 999
National Narcotic Officers' Associations Coalition, Ronald E.
Brooks, President, letter...................................... 1000
National Troopers Coalition:
Casey Perry, Chairman, Green Bay, Wisconsin, letter.......... 1002
Scott Reinacher, Chairman, Albany, New York, letter.......... 1003
Nethercutt, Hon. George R., a Representative in Congress from the
State of Washington, statement in support of Lonny R. Suko,
Nominee to be District Judge for the Eastern District of
Washington..................................................... 1004
Professional Fire Fighters and Paramedics of North Carolina,
Bobby C. Riddle, Jr., President, letter........................ 1005
Speziale, Jerry, Sheriff, Passaic County Sheriff's Department,
Wayner, New Jersey, letter..................................... 1006
Warner, Hon. John W., a U.S. Senator from the State of Virginia,
statement in support of Karen P. Tandy, Nominee to be
Administrator of the Drug Enforcement Administration,
Department of Justice.......................................... 1007
Watt, Hon. Melvin L., a Representative in Congress from the State
of North Carolina, letter in support of Allyson K. Duncan,
Nominee to be Circuit Judge for the Fourth Circuit............. 1010
White, Mary Jo, Partner, Debevoise & Plimpton, New York, New
York, letter................................................... 1011
WEDNESDAY, JULY 9, 2003
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1013
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 1219
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 1221
PRESENTERS
Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico
presenting James O. Browning, Nominee to be District Judge for
the District of New Mexico..................................... 1015
Domenici, Hon. Pete V., a U.S. Senator from the State of New
Mexico presenting James O. Browning, Nominee to be District
Judge for the District of New Mexico........................... 1014
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Kathleen Cardone, Frank Montalvo, and Xavier
Rodriguez, Nominees to be District Judges for the Western
District of Texas.............................................. 1015
Reyes, Hon. Silvestre, a Representative in Congress from the
State of Texas presenting Kathleen Cardone, Frank Montalvo, and
Xavier Rodriguez, Nominees to be District Judges for the
Western District of Texas...................................... 1017
STATEMENTS OF THE NOMINEES
Browning, James O., Nominee to be District Judge for the District
of New Mexico.................................................. 1020
Questionnaire................................................ 1022
Cardone, Kathleen, Nominee to be District Judge for the Western
District of Texas.............................................. 1077
Questionnaire................................................ 1078
Cohn, James I., Nominee to be District Judge for the Southern
District of Florida............................................ 1107
Questionnaire................................................ 1108
Montalvo, Frank, Nominee to be District Judge for the Western
District of Texas.............................................. 1136
Questionnaire................................................ 1137
Rodriguez, Xavier, Nominee to be District Judge for the Western
District of Texas.............................................. 1169
Questionnaire................................................ 1170
QUESTIONS AND ANSWERS
Responses of James O. Browning to questions submitted by Senator
Durbin......................................................... 1207
Responses of James O. Browning to questions submitted by Senator
Leahy.......................................................... 1213
SUBMISSIONS FOR THE RECORD
Cornyn, Hon. John, statement in support of Kathleen Cardone,
Frank Montalvo, and Xavier Rodriguez, Nominees to be District
Judges for the Western District of Texas....................... 1216
Graham, Hon. Bob, a U.S. Senator from the State of Florida,
statement in support of James I. Cohn, Nominee to be District
Judge for the Southern District of Florida..................... 1218
Nelson, Hon. Bill a U.S. Senator from the State of Florida,
statement in support of James I. Cohn, Nominee to be District
Judge for the Southern District of Florida..................... 1224
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ALPHABETICAL LIST OF NOMINEES
Brack, Robert C., Nominee to be District Judge for the District
of New Mexico.................................................. 666
Browning, James O., Nominee to be District Judge for the District
of New Mexico.................................................. 1020
Callahan, Consuelo Maria, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 248
Campbell, David G., Nominee to be District Judge for the District
of Columbia.................................................... 80
Cardone, Kathleen, Nominee to be District Judge for the Western
District of Texas.............................................. 1077
Chertoff, Michael, Nominee to be Circuit Judge for the Third
Circuit........................................................ 213
Cohn, James I., Nominee to be District Judge for the Southern
District of Florida............................................ 1107
Coogler, L. Scott, Nominee to be District Judge for the Northern
District of Alabama............................................ 288
Der-Yeghiayan, Samuel, Nominee to be District Judge for the
Northern District of Illinois.................................. 685
Duncan, Allyson K., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 640
Flanagan, Louise W., Nominee to be District Judge for the Eastern
District of North Carolina..................................... 711
Greer, J. Ronnie, Nominee to be District Judge for the Eastern
District of Tennessee.......................................... 462
Hardiman, Thomas M., Nominee to be District Judge for the Western
District of Pennsylvania....................................... 486
Hicks, S. Maurice, Jr., Nominee to be District Judge for the
Western District of Louisiana.................................. 107
Kravitz, Mark R., Nominee to be District Judge for the District
of Connecticut................................................. 517
Montalvo, Frank, Nominee to be District Judge for the Western
District of Texas.............................................. 1136
Moschella, William Emil, Nominee to be Assistant Attorney
General, Office of Legislative Affairs, Department of Justice.. 141
Roberts, John G., Jr., Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 9
Rodriguez, Xavier, Nominee to be District Judge for the Western
District of Texas.............................................. 1169
Suko, Lonny R., Nominee to be District Judge for the Eastern
District of Washington......................................... 738
Tandy, Karen P., Nominee to be Administrator of the Drug
Enforcement Administration, Department of Justice.............. 813
Wesley, Richard C., Nominee to be Circuit Judge for the Second,
Circuit of New York............................................ 411
Woodcock, John A., Nominee to be District for the District of
Maine.......................................................... 543
Wray, Christopher A., Nominee to be Assistant Attorney General,
Criminal Division, Department of Justice....................... 848
Yeakel, Earl Leroy III, Nominee to be District Judge for the
Western District of Texas...................................... 774
NOMINATIONS OF JOHN G. ROBERTS, JR., OF MARYLAND, NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT; DAVID G. CAMPBELL, OF
ARIZONA, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA; S.
MAURICE HICKS, JR., OF LOUISIANA, NOMINEE TO BE DISTRICT JUDGE FOR THE
WESTERN DISTRICT OF LOUISIANA; AND WILLIAM EMIL MOSCHELLA, OF VIRGINIA,
NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE
AFFAIRS, DEPARTMENT OF JUSTICE
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WEDNESDAY, APRIL 30, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Leahy, Kennedy, Feingold, Schumer,
and Durbin.
Chairman Hatch. Good morning. I am happy to welcome to the
Committee four outstanding nominees. We will consider three
judicial nominees: John Roberts for the District of Columbia
Circuit; David Campbell for the District of Arizona; and Maury
Hicks for the Western District of Louisiana. We will also hear
from Will Moschella, who has been nominated to be Assistant
Attorney General for the Office of Legislative Affairs at the
Department of Justice.
Now, I think if it is all right with you, Senator Leahy,
why don't we defer our statements until our colleagues testify
so we can save them time. I apologize for being just a little
bit late, but I just couldn't get through with the meetings in
my office this morning.
Senator Leahy. Especially with such a distinguished trio,
of course, we should do that.
Chairman Hatch. Well, all right. I think if we can, then,
why don't we turn to Senator Warner first, then Senator Breaux,
and then Hon. Jim McCrery. We welcome you here as well. We
welcome all three of you and appreciate having you here.
Senator Warner?
PRESENTATION OF WILLIAM EMIL MOSCHELLA, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF
JUSTICE, AND JOHN G. ROBERTS, JR., NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA, BY HON. JOHN WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Thank you, Mr. Chairman.
First, on behalf of my distinguished colleague, George
Allen, I will ask that the record accept his statement. he is
unavoidably detained this morning.
Chairman Hatch. Without objection.
Senator Warner. So I shall proceed on behalf of both of us
in expressing my privilege to be here to introduce William
Moschella, who has been nominated to serve as Assistant
Attorney General for Legislative Affairs at the Justice
Department. He is joined today by his lovely family, including
his wife Amy, his daughter Emily, his son Matthew, and his
parents. They are right in the front row. If you all would
stand and be recognized? Now is your chance. There we are.
Chairman Hatch. Well, we welcome all of you. We welcome you
all, and we are grateful to have you here.
Senator Warner. This candidate's distinguished background
makes him highly qualified, I say to our distinguished Chairman
and distinguished ranking member, to be in this position.
Subsequent to earning his law degree from George Mason
University Law School, he served as a legislative assistant in
the office of my fellow delegation colleague, Congressman Frank
Wolf. After leaving the Congressman's office, he held positions
in the House Government Reform Committee, House Rules
Committee, and several positions in the House Judiciary
Committee. At present, he serves as chief legislative counsel
for the House Judiciary Committee.
Mr. Chairman, he is obviously a very accomplished
individual, and he served a large portion of his career in
public service, well qualified I am certain; therefore, he will
serve in this position with distinction, reflecting credit upon
our President and this institution, the Congress which he has
served these many years.
Now, Mr. Chairman, I should like to say a few words on
behalf of Mr. Roberts. This is my second appearance on behalf
of this distinguished individual, and I must say in my 25 years
in the Senate, I do not believe I have ever done this before.
But at the invitation of the Chair, I will appear over and over
again, be it necessary, on behalf of this individual because I
personally and, if I may say, professionally feel very strongly
about this nominee.
He has been nominated for a position on the United States
Circuit Court of Appeals for the District of Columbia. If I may
say, following my graduation from the University of Virginia
Law School in 1953, I return this weekend for my 50th reunion,
where I am privileged to address my class. But following that,
I was privileged to be a law clerk to Judge E. Barrett
Prettyman on the United States Circuit Court of Appeals, the
very circuit to which this nominee has been appointed by the
President of the United States.
I have a strong knowledge of this circuit, having started
my career there 48 years ago, and I feel that this candidate
will measure up in every respect to the distinguished members
of the circuit that have served in the past and who are serving
today. And I urge in the strongest of terms that he be given
fair consideration by this Committee and that he will be voted
out favorably.
Mr. Chairman and Senator Leahy, we start with he graduated
from Harvard College summa cum laude in 1976. Three years
later, he graduated from Harvard Law School magna cum laude,
where he served as managing editor of the Harvard Law Review.
He served as law clerk to Judge Friendly on the United States
Court of Appeals for the Second Circuit and worked as law clerk
to the current Chief Justice of the Supreme Court of the United
States, Hon. Judge Rehnquist.
Also, he has practiced law for over 20 years. He served as
associate counsel to President Ronald Reagan, worked as the
Principal Deputy Solicitor General of the United States, and
has worked as a civil litigator in the firm of Hogan and
Hartson, which, I must say, I also served in following my
clerkship with Judge Prettyman.
So I do urge upon this Committee, Mr. Chairman, and all
members, that the fair consideration that is the duty of the
United States Senate under the Constitution under the advise
and consent provisions be exercised on behalf of this
distinguished nominee.
I thank you for the attention of the Committee, and I wish
you well.
Chairman Hatch. Thank you so much, Senator Warner. We
appreciate those very strong recommendations.
Senator Leahy. I was impressed, the 50th reunion, so you
graduated at the age of 10?
Senator Warner. I beg your pardon?
Senator Leahy. You graduated at the age of 10? I was very
impressed, your 50th reunion.
Senator Warner. No, I was not a child prodigy.
[Laughter.]
Senator Warner. Nor am I a senior prodigy. I am just one of
your fellow Senators.
Senator Leahy. And a good friend and highly respected on
both sides of the aisle, I might add.
Senator Warner. I thank you.
Chairman Hatch. We are grateful to have you here, Senator
Warner. We appreciate that.
Senator Breaux? We will turn to you, Senator Breaux.
PRESENTATION OF S. MAURICE HICKS, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA, BY HON. JOHN
BREAUX, A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Breaux. Thank you, Mr. Chairman and Senator Leahy
and Senator Durbin. A tough act to follow our colleague from
Virginia.
I am here on behalf of and to speak for Maury Hicks, our
friend from Shreveport, Louisiana, who has been nominated to be
the district judge for the Western District of Louisiana, which
is the Shreveport area and the area south of that area. I am
joined in spirit by my colleague Senator Mary Landrieu, who
will have a statement of support on behalf of Maury Hicks as
well.
He is the type of person that I think we can recommend
without hesitation. I have always felt that at the district
level I would personally rather see a person who is not an
author or a scholar or a professor of law in some university
but, rather, someone who comes from the day-to-day activities
of being a trial lawyer in the area, in the district in which
we are nominating them to become a Federal district judge. And
that is what we have in Maury Hicks, a person who knows the
people as well as knowing the law.
He graduated from Texas Christian university but he later
redeemed himself from that mistake by graduating from the LSU
Law School, and I think that will overcome any Texas problems
that he might have experienced.
[Laughter.]
Senator Breaux. But he has been engaged in the practice of
law, like I said, dealing with all types of problems--local
problems that go before both the State courts and the Federal
courts--since 1977. That is the type of people I think do good
jobs on the Federal district bench. They know the law, but they
also know the people, and I think he brings that talent.
You might have noted that on the list as one of his
organizations is the Mystic Crew of Louisiana. I would just
point out to Senator Durbin and to others that might wonder if
that is some subterranean terrorist organization from the State
of Louisiana, it indeed is not. It is the organization that
runs the Mardi Gras celebrations here in Washington for the
last 50 years. I happen to serve as captain of the crew, which
means Maury Hicks is part of our organization that runs the
Mardi Gras. It is a wonderful organization that does great
things and has a lot of fun doing it.
He is joined here by his wife, Glynda, and their children,
who I am sure he will be introducing later. He is a good
choice. I hope that you can vote him out as quickly as we
possibly can.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Breaux. We appreciate
your comments, and we really appreciate you taking time to
come. I think it is an honor to the people that you have
recommended. Thank you.
We will be happy to let you go. We know you have--
Senator Breaux. I want to hear if he is for him, too.
Chairman Hatch. Well, Congressman McCrery, we are honored
to have you here. We look forward to taking your testimony.
PRESENTATION OF S. MAURICE HICKS, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA, BY HON. JIM
MCCRERY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
LOUISIANA
Representative McCrery. Thank you, Mr. Chairman, Mr. Leahy,
my old friend from the House Senator Durbin. It is nice to be
here with you today.
I certainly want to second the comments of my friend and
colleague from Louisiana, Senator Breaux. I have known Maury
Hicks since Maury was a freshman in law school at LSU and have
watched him practice law in my home town of Shreveport for a
number of years. And I can tell you without reservation that
Maury Hicks is a very well respected member of the bar in
Shreveport. He has extensive experience at the bar in court. He
is an accomplished litigator. He has with him today his family:
his wife Glynda, his children Christy and Tyler. He also has
with him some friends from the Shreveport area, and just to
show you how well respected Maury is in the bar in Shreveport,
he brought with him both defense attorneys and plaintiffs'
attorneys, and they are all for him. So I think that will tell
you how well respected Maury Hicks is.
Maury is smart. He is honest. He is a hard worker. He is
everything I think we want in a Federal district judge. He will
be welcomed by the bar in the Western District because I know
that Maury will be the kind of judge that lawyers in any part
of our country would appreciate. He will work hard. He will get
the job done. He will be fair.
And so I recommend without hesitation Maury Hicks as the
next Federal judge from the Western District of Louisiana.
Chairman Hatch. Well, thank you, Congressman. We appreciate
that. Mr. Hicks certainly has to be very pleased to have both
of you come and testify for him. Thank you for being here. We
appreciate it.
Representative McCrery. Thank you.
Senator Breaux. Thank you.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. We will make our statements now. Let me say
a few words about our first nominee, John Roberts, who has
quite a history as a judicial nominee. He was originally
nominated for a seat on the D.C. Circuit more than 11 years ago
by the first President Bush, but was never given a hearing and
was never confirmed. He was renominated by the current
President Bush on May 9, 2001, but he did not receive a hearing
in the 107th Congress. He was then renominated for the third
time this past January, and all told, he has been nominated by
two different Presidents on three separate occasions for the
Federal appellate bench over the last 12 years.
The Committee finally held a hearing on Mr. Roberts'
nomination on January 29th of this year, and during that
marathon hearing, which started at 9:30 a.m. and did not end
until approximately 9:30 that night, he answered every question
that he was asked in a precise and informative manner. He also
answered a myriad written questions submitted to him after the
hearing--more than 70, to be precise. The Committee favorably
reported his nomination for consideration by the full Senate
with bipartisan support. All ten Republican Members of the
Committee voted for Mr. Roberts, along with four Democratic
Members. However, pursuant to an agreement between the
Republican and Democratic Senate leadership, I have asked Mr.
Roberts to return for this hearing with the clear understanding
that his nomination will move to the Senate floor for an up or
down vote without undue delay. In fact, our agreement was
within a week after we finally move you out of Committee. Now,
this means that, pursuant to our agreement, the Committee will
vote on Mr. Roberts' nomination a week from tomorrow, which is
Thursday--you will be put on tomorrow's markup, but literally I
am putting you over until next Thursday so our colleagues will
have enough time to submit any written questions they desire.
Any written questions should accordingly be submitted to Mr.
Roberts and the other nominees no later than 5:00 p.m. on
Friday, May 2nd.
Now, Mr. Roberts is widely considered to be one of the
premier appellate litigators of his generation. His legal
accomplishments are superb, including a remarkable 29 arguments
before the United States Supreme Court. His record leaves no
doubt that he is mainstream and fair. During the course of his
career, he has argued both sides of the same issue in different
cases, demonstrating that he is indeed a lawyer's lawyer. He
has also represented parties from all sides of the political
spectrum. His clients have included large and small
corporations, trade organizations, non-profit organizations,
States, and individuals. So it is really an honor to have such
a remarkable legal mind before this Committee.
Senator Warner did comment about some of Mr. Roberts' legal
background. No question he had great academic credentials at
Harvard College and later Harvard Law School. He served as law
clerk for Second Circuit Judge Henry Friendly, one of the
pillars of judicial matters throughout many years, and then for
Supreme Court Justice William Rehnquist. His public service
career included tenure as special assistant to Attorney General
William French Smith, Associate White House Counsel, and
Principal Deputy Solicitor General. Since 1993, he has been a
partner with the prestigious D.C. law firm of Hogan and
Hartson, where his practice has focused on Federal appellate
litigation.
Now, there is no question that Mr. Roberts has the
experience and intelligence to be an outstanding Federal
appellate judge. And if the support for his nomination from his
peers is any indication, he also has the requisite judicial
temperament and unbiased fairness that are the hallmarks of
truly great judges. One letter the Committee received is from
156 members of the D.C. Bar, all of whom urge Mr. Roberts'
swift confirmation. The letter is signed by such legal
luminaries as Lloyd Cutler, who was White House Counsel to both
President Carter and President Clinton; Boyden Gray, who was
White House Counsel to the first President Bush; and Seth
Waxman, who was President Clinton's Solicitor General.
The letter states: ``Although, as individuals, we reflect a
wide spectrum of political party affiliation and ideology, we
are united in our belief that John Roberts will be an
outstanding Federal court of appeals judge and should be
confirmed by the United States Senate. He is one of the very
best and most highly respected appellate lawyers in the Nation,
with a deserved reputation as a brilliant writer and oral
advocate. He is also a wonderful professional colleague both
because of his enormous skills and because of his unquestioned
integrity and fair-mindedness. In short, John Roberts
represents the best of the bar and, we have no doubt, would be
a superb Federal court of appeals judge.''
Another letter is from 13 of Mr. Roberts' former colleagues
at the Solicitor General's Office. This letter states:
``Although we are of diverse political parties and persuasions,
each of us is firmly convinced that Mr. Roberts would be a
truly superb addition to the Federal court of appeals. . .
.Mr. Roberts was attentive and respectful of all views, and he
represented the United States zealously but fairly. He had the
deepest respect for legal principles and legal precedent--
instincts that will serve him well as a court of appeals
judge.''
Now, others echo these sentiments. Clinton Solicitor
General Seth Waxman called Mr. Roberts an ``exceptionally well-
qualified appellate advocate.'' Another Clinton Solicitor
General, Walter Dellinger, said, ``In my view. . .there is no
better appellate advocate than John Roberts.'' And one Yale law
professor provided this personal glimpse: ``. . .I asked Mr.
Roberts whether he would be comfortable taking me--a Democratic
young lawyer--under his wing. His response: `Not only would I
be comfortable with it, I want you here because I want to learn
what others who may at times see the world differently than I
think.'''
In my view, Mr. Roberts is precisely the type of person we
want to see confirmed as a Federal appellate judge, one who
will be respectful of all sides of an argument and who will
follow the law, not some personal agenda, in deciding which
party should prevail. I personally have every confidence that
John Roberts will make a sterling addition to the D.C. Circuit,
and I look forward to hearing from him today.
I will reserve my remarks about the other nominees we are
considering until they are called forward.
So, with that, we will turn to the ranking member, and then
we will go to questions.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman, and I also welcome
John Roberts here again, having been nominated to the U.S.
Court of Appeals for the District of Columbia Circuit. And I am
pleased that in this hearing he can have the undivided
attention that a lifetime nomination to this most important
circuit deserves, and I look forward to hearing his answers to
our questions.
When last he was here, he was flanked by two other circuit
court candidates--Sixth Circuit nominees Jeffrey Sutton and
Deborah Cook. Mr. Roberts will recall that on that long day
which stretched way into the evening, the overwhelming majority
of questions were not to him at all. They were directed to Mr.
Sutton, with others to Judge Cook, and he sort of got barely--
we barely had time to even talk to him. So today we are going
to have a chance to focus on him in our effort to determine
what kind of a judge he would be if he was confirmed. We regret
that he was thrown into that most unusual hearing earlier this
year. I think it was unfair to him and actually to the other
nominees, but especially to the American public because the
District of Columbia Circuit is a most important one. It is a
circuit to which President Clinton nominated two outstanding
individuals during his second term. They were not allowed to
have votes by this Committee because the Republicans decided
they should not be allowed to have votes. So given its special
jurisdictional responsibilities, the District of Columbia
Circuit is a most important circuit. I wish that the
obstruction of President Clinton's nominees could have been
remedied in trying to get some balance in the courts, but the
President has decided--and this is his right to decide who he
wants to go forward with, but he has decided to divide, not
unite, on this matter.
I do appreciate what the Chairman has done in having this
hearing. It shows how quickly we can move things when we work
together, just as the Chairman and I have been working together
since I held a hearing last year on asbestos reform and he has
held one this year on asbestos reform. And for some of you who
are interested, I think the work of Senator Hatch, myself, and
a number of other interested members on both sides are coming
to fruition. For the first time in years on this complex
subject, I actually think, Orrin, we are actually coming close
to a solution, and it shows what can happen when we work
together.
Then we are going to hear from district court nominees
Maurice Hicks of Louisiana and David Campbell of Arizona. Both
attorneys have the support of their home State Senators.
Then we have before us the nomination of William Moschella
to be Assistant Attorney General in the Office of Legislative
Affairs at the Department of Justice. It is an important
office, especially as the Justice Department has been really
less than responsive to both the House and the Senate in
requests for information. Since September 11th, many of us have
been calling for and working for appropriate oversight. I
submitted many oversight letters to the Justice Department
containing requests for information that have not been
responded to, as have a number of Republican Senators. The
Justice Department is required to respond to Congress'
requirements for reports about various programs that it funds,
and it has not done that. For example, they are required to
report regarding the current and future use of technologies
being developed by the Total Information Awareness project at
the Defense Department.
So I look forward to hearing how Mr. Moschella works on
this. Many of us have worked with him when he was at the House
Judiciary Committee, and I know that both Chairman
Sensenbrenner and Chairman Hyde, two friends of mine, two
people I have a great deal of respect for, think the world of
him. I know a lot of the members in the Committee, both
Democrats and Republicans, respect his integrity, ability, and
commitment. I might say that I share those feelings.
So I hope he won't forget his roots here. Obviously, his
first responsibility has to--and I am going out on a limb here
sort of predicting that he will get through okay. His first
responsibility has to be to the administration that is
appointing him, but I hope he realizes that there has been a
lot of concern expressed by both Republicans and Democrats
about the lack of responsiveness from the Department of
Justice. And we are all counting on him to correct that. No
difficult task there.
So, Mr. Chairman, I thank you for having these hearings.
Again, I thank you for your work and cooperation on the
asbestos thing, and I think that between the two of us we are
finally going to--I think we have a real opportunity to bring
this perplexing matter to conclusion, to be a benefit to the
victims, be a benefit to the companies, a benefit to the
American economy, and I think that the court systems will
probably breathe a huge sigh of relief if we are able to do
that.
Chairman Hatch. Well, thank you, Senator.
Mr. Roberts, if you will stand and be sworn? Do you
solemnly swear to tell the truth, the whole truth, and nothing
but the truth, so help you God?
Mr. Roberts. I do.
Chairman Hatch. Thank you. Mr. Roberts, we welcome you
again to the Committee. We are honored to have you back, and do
you have any statement you would care to make?
STATEMENT OF JOHN G. ROBERTS, JR., NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Roberts. No, Mr. Chairman, other than to introduce my
parents, Jack and Rosemary Roberts; my sister, Peggy; and my
wife, Jane.
Chairman Hatch. Please stand up. We are really happy to
welcome you all here once again. Okay.
[The biographical information of Mr. Roberts follows:]
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Chairman Hatch. Then we will just start with questions, if
it all right with you. Senator Leahy, I will turn to you.
Senator Leahy. Well, thank you.
Mr. Roberts, over the last decade, the Supreme Court has
issued a series of 5-4 decisions. These struck down legislation
on federalism grounds. And some see this as a federalism
crusade and a very activist Court. It has included--those who
have seen laws to protect them struck down have included people
with disabilities, older workers, children in gun-infested
schools, intellectual property owners, and victims of violence
motivated by gender. I am talking about such cases as Alden v.
Maine, Florida Prepaid, Garrison, Morrison, Lopez, Kimmel. You
are familiar with all those, I know. You have commented
publicly on some of these decisions that have overruled
Congressional enactments as unconstitutional.
My questions are these: Do you believe that they represent
a departure or a continuing trend? And what has contributed to
this dramatic shift, mostly in the past decade, in the Supreme
Court's interpretations of the powers of Congress?
Mr. Roberts. Well, I think the first of the series of those
cases, to limit myself to the State sovereign immunity cases,
the Seminole Tribe case, the question whether it was a
departure or a continuation was one of the issues that the
Court addressed at some length, both the majority and the
dissent. There was a particular prior precedent that seemed to
have addressed the question of whether Congress under the
Commerce Clause could override State sovereign immunity, and
the majority explained why they didn't read the case that way;
and if it was going to be read that way, it would be no longer
controlling. And the dissent, of course, joined issue on that.
So the Court has addressed in that first case the question
of whether it was a departure or a continuation, and I think
recognized that, at least to some extent, to the extent they
were moving away from that prior arguable precedent that the
majority and the dissent read differently, it certainly can be
regarded as a departure.
The cases since then have addressed different refinements
on that issue, and that certainly is a continuation of the lead
Seminole Tribe case. These cases construe the 11th Amendment,
and this is not the first time in our history that the 11th
Amendment has been a cause of some division. When the Supreme
Court early in its existence decided Chisholm v. Georgia and
held that a citizen of another State could sue the State of
Georgia, that prompted a reaction in the country that led to
the 11th Amendment. And then I think perhaps the key departure,
if you will, came in the case of Hans v. Louisiana, where the
Court held that although the 11th Amendment addressed only the
issue of a citizen of another State suing a State, its
reasoning, its principle applied when a citizen of the same
State sued.
Senator Leahy. Mr. Roberts, I hesitate to interrupt but--
and I appreciate the history and I don't disagree with that.
But I am wondering why so many in the past few years. Do you
see this as a basic shift? Do you see this as a reaction to
Congress? Do you see this as a trend that is going to continue?
Mr. Roberts. Well, I think there's--so many in the last few
years is because, given that Seminole Tribe was sort of the
first of the decisions--again, this is the debate, whether it's
a departure or continuation. But it was the first of them, and
the ones you've had following in the wake of it are kind of
fleshing out that principle, the application of the 11th
Amendment and the question whether it can be abrogated under
the Commerce Clause, which was the issue in Seminole Tribe or
some of the other principles.
Others cases I think may well follow, which is in a
reaction to the sovereign immunity decisions, because the Court
has recognized there are ways for the Federal Government to--I
don't want to say get around the 11th Amendment, but address
this issue without running afoul of it. Section 5 of the 14th
Amendment--
Senator Leahy. It seems that some of the cases coming down
in the last few years are finding less and less ways--again, we
are even going to intellectual property cases and copyright.
Mr. Roberts. Well, what you have--
Senator Leahy. It is almost as though copyright was
something new even though it is in our Constitution.
Mr. Roberts. Well, the patent and copyright clause, you
know, in Seminole Tribe the issue was: Does the Commerce Clause
allow the Federal Government to overrule it? Then you're sort
of going down each of the different provisions. Does the
Intellectual Property Clause allow Congress to overrule it? And
they're addressing those.
But the Court has--
Senator Leahy. Well, don't Lopez and Morrison--would you
agree with Judge Noonan's contention that the ones most likely
to overturn Congressional statutes are conservative judges?
He uses, I believe, Morrison and Lopez as an example of
that.
Mr. Roberts. Well, I do not know that conservative or
liberal justices are more likely to overturn laws. Certainly,
in the Warren Court era, for example, I would suppose it would
be the justices you would consider more liberal who were
overturning laws.
Senator Leahy. So you do not agree with Judge Noonan, then.
Mr. Roberts. I have not read his book. I know it is there.
Senator Leahy. I would recommend it to you. It is not a
beach book, by any means, but it is one where when it came out,
I got it and read it. And I am not one who has always agreed
with Judge Noonan, but the book is well worthwhile.
I do not, let me quickly add, Mr. Chairman, I do not get
any percentage of the profits on the books, and I am not a
noted author like you are, but I thought this was a--I also
read his book.
But what worries me on it, on this whole issue of
federalism, it seems to me the Court is going more and more to
saying they would superimpose their views, an unelected court,
on the views of an elected representative form of Government,
the Congress, in disability areas, and intellectual property
and others, and I worry about that, and I worry about that
trend.
Now, I realize, on the court you are going on, of course
you are restricted to stare decisis, but you know you are not
going to have too many cases that fit on all fours, and there
is a great deal of flexibility. It is very easy for somebody up
for either a district or a circuit court judgeship to say,
``Well, I have to follow the dictates of the next higher
court.''
But usually when they get to the Circuit Court of Appeals
for the District of Columbia, you do not have many cases that
get all of the way up to you guys that they are on all fours,
on something that the Supreme Court has ruled on. There is
hardly any use for it.
You mentioned, in your earlier hearing, that in certain
situations the Constitution is very clear. Then, you said there
are certain areas where literalism obviously does not work. If
you are dealing with the Fourth Amendment, something on
unreasonable search and seizure, the text is only going to get
you so far, well, then what does guide you? Take the Commerce
Clause, take the spending power, what does guide you?
Obviously, the text is not enough by itself, but I agree with
you on that. You cannot go by the literal words on a number of
these things in a changing economic world, but what does guide
you? What is your lodestone?
Mr. Roberts. Well, certainly, as a circuit judge, of
course, my lodestar would be the Supreme Court precedence, and
they have volumes of them on how to interpret the Commerce
Clause, fewer precedents on how to interpret the Spending
Clause. I think there are going to be more important cases in
that area in the future.
But starting with McCullough v. Maryland, Chief Justice
Marshall gave a very broad and expansive reading to the powers
of the Federal Government and explained that--and I don't
remember the exact quote--but if the ends be legitimate, then
any means chosen to achieve them are within the power of the
Federal Government, and cases interpreting that, throughout the
years, have come down.
Certainly, by the time Lopez was decided, many of us had
learned in law school that it was just sort of a formality to
say that interstate commerce was affected and that cases
weren't going to be thrown out that way. Lopez certainly
breathed new life into the Commerce Clause.
I think it remains to be seen, in subsequent decisions, how
rigorous a showing, and in many cases, it is just a showing.
It's not a question of an abstract fact, does this affect
interstate commerce or not, but has this body, the Congress,
demonstrated the impact on interstate commerce that drove them
to legislate? That's a very important factor. It wasn't present
in Lopez at all. I think the members of Congress had heard the
same thing I had heard in law school, that this is an
important--and they hadn't gone through the process of
establishing a record in that case.
Other cases are different. But, again, as a circuit judge--
Senator Leahy. We have got some cases, like the Disability
Act, where we have had hundreds and hundreds of hearings around
the country, thousands of pages of testimony, and the Court
says, of course, we have not established a record. You
sometimes think that there is picking and choosing.
For example, in your NPR interview, you talked about an
originalist approach to Constitution interpretation, but how do
you do that? Does a judge pick and choose, based on his or her
own predilections, whether they are going to use the context of
the 18th century or the context of the 21st century? Obviously,
there are some things that it would be impossible, although
Justice Scalia said that the Constitution means today what it
meant when it was written, and he even uses an 18th century
dictionary to understand what the 1789 words meant.
Do you believe judges pick and choose? I mean, how do you
do a literal interpretation?
Mr. Roberts. Well, we talked about this some at the first
hearing. Again, the Supreme Court has given some guidance on
particular areas and said that when you're interpreting this
particular provision, this is the kind of approach you should
use. The example I like to give is the Seventh Amendment. The
Court has said: We take a very historical approach to deciding
whether you have a right to a jury trial because of the way the
Seventh Amendment is worded.
So even if I decided I am going to be a textualist or an
originalist or whatever, I do not have the flexibility, when I
get to a Seventh Amendment case. The approach, not just the
particular results, but the approach is laid out as well there.
Now, when you get to the Eleventh Amendment, the one thing
we know from the Supreme Court's decision is that strict
adherence to a text doesn't give you what the Supreme Court
says are the right answers. You have to look at the historical
context a little more, and it varies with provisions, as we've
said. There's a provision in the Constitution that says a two-
thirds vote of the Senate is required. Well, even if you think
provisions should be interpreted in light of evolving
standards, that doesn't mean two-thirds can become three-
fifths.
Unreasonable searches and seizures, that's a little more
difficult to say just based on the text I know what's
unreasonable and what's not. You have to look beyond the text
in interpreting that.
Senator Leahy. Thank you. I will have further questions. I
will submit some for the record, and I know that the
distinguished Chairman intends to have a Committee vote next
week, and I would urge you to get answers back in time so that
we can have a chance to review them in case there are follow-
ups.
Mr. Roberts. Thank you, Senator.
Senator Leahy. It is good to see you again.
Mr. Roberts. Thank you.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Kennedy. Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman.
Welcome back.
Mr. Roberts. Senator Kennedy, thank you.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. We welcome the nominee back to the
Committee to continue the hearing which began 3 months ago.
The advice and consent function assigned to us by the
Framers of the Constitution is vital to the proper functioning
of our Government. It was a major feature of the structure of
the Framer's design, not only for themselves, but for all
future generations, and we do not sit here today merely to
express our individual preferences about particular judges or
even to express the preference of our constituents. We act
today as inheritors of a great tradition and a great
responsibility to balance the powers of the Executive Branch in
selecting the members of the Judicial Branch.
We were given the advice and consent power over judicial
appointments so that the two elected branches--the Executive
and the Legislative--would share coordinate and co-equal
responsibility for the third branch, the undemocratic branch,
in which the judges are insulated from us, and from the
President and from the electorate by lifetime appointments.
But the Framers gave us insulation, too, so that we could
exercise our functions, including the advice and consent
function, fearlessly and freely, even when required to consider
the actions of a popular President. We were given 6-year terms,
longer the House, longer the President. We were given staggered
terms so no more than a third of us would be elected at one
time, and we were given the authority to set our own rules for
the way we exercise our responsibilities, including advice and
consent.
We had the constitutional obligation to assure the Judicial
Branch remains free and independent, is not a political tool of
the Executive, that its obligation is to the constitutional
principles, constitutional rights which lie at the heart of our
democracy. Our role is positive and proactive, not passive and
reactive, regardless of whether the President shares our
political or philosophical views.
And we, on the Judiciary Committee, have a unique role
which we cannot fulfill unless we have ample opportunity in
Committee to question the nominee and to discuss in detail how
we think the advice and consent power should be exercised with
respect to each nominee, and that process resumes today with
respect to Mr. Roberts.
His nomination is a special one because he has been
nominated for a special court. The D.C. Circuit makes the
decision with national impact on the lives of all of the
American people.
Its decisions govern the scope and the effectiveness of our
Occupational Health and Safety laws, o of our consumer
protection laws, of Federal labor laws, of fair employment
laws, including race, gender, disability and discrimination
cases, of workers' rights to organize, Clean Air Act rules,
Freedom of Information rules, First Amendment rights in
broadcast media and many other rights of individuals under the
Constitution laws enacted by Congress, and so we must take
special care with this and all other appointments to this
court.
No one has the right to be appointed to any Federal
appellate court. The burden is on the President and the nominee
to demonstrate that the nomination should have our consent. The
less weight the President places on the Senate's advice role,
the more weight must be placed on our consent role. Because the
District of Columbia has no Senators of its own, the usual
prenomination consultation has not occurred, leaving an even
heavier burden on the process that we conduct today. So let us
approach it with the seriousness of purpose and deliberation it
deserves.
Mr. Roberts, you responded to questions, the written
questions, for which I am grateful. I would like to pick up on
some of these.
You describe your judicial philosophy as insisting that
judges confine themselves to adjudication of the cases before
them and not legislate. You want judges to show an essential
humility, grounded in the limited role of an undemocratic
judiciary, reflected in deference to legislative policy
judgments and judicial restraint, not shaping policy.
Now, as you are well aware, in the recent years, we in
Congress have made bipartisan legislative judgments about
policy on issues vital to the public, based on extensive
hearings and findings, yet we have had our policy discussion
second-guessed by appellate judges.
How would you describe the presumption of validity that
should attach to our actions, and what do you think we can do
to insulate ourselves from this second-guessing on policy
issues by judges who do not adhere to the humility and
deference standard you prescribe?
And what in your writings, in your professional record,
should demonstrate and reassure us that, as a judge, you would,
in fact, act with the humility and deference to Congressional
judgments which you claim is your philosophy?
Mr. Roberts. Well, the Supreme Court has, throughout its
history, on many occasions described the deference that is due
to legislative judgments. Justice Holmes described assessing
the constitutionality of an act of Congress as the gravest duty
that the Supreme Court is called upon to perform.
I'm familiar with those quotations because I've used them
in briefs many times when I was in the Justice Department
representing the United States and defending acts of Congress
before the Supreme Court, and it's a principle that is easily
stated and needs to be observed in practice, as well as in
theory.
Now, the Court, of course, has the obligation, and has been
recognized since Marbury v. Madison, to assess the
constitutionality of acts of Congress, and when those acts are
challenged, it is the obligation of the Court to say what the
law is.
The determination of when deference to legislative policy
judgments goes too far and becomes abdication of the judicial
responsibility, and when scrutiny of those judgments goes too
far on the part of the judges and becomes what I think is
properly called judicial activism, that is certainly the
central dilemma of having an unelected, as you describe it
correctly, undemocratic judiciary in a democratic republic. And
certainly the most gifted commentators we've had have struggled
with that.
I think the doctrines of deference that have developed over
the years, when you're assessing a legislative classification
and an area that doesn't implicate a protected class like race
or gender, disability, then all you have to show is a rational
basis, and that shouldn't be too hard.
If you're in one of those other areas, the Court has
developed a stricter scrutiny because they think in those areas
there is more reason to probe a lot more deeply. But you asked
what in my work sort of shows that, I guess I would look to the
job I did when I was deputy solicitor general and was defending
acts of Congress before the Supreme Court.
Senator Kennedy. I am going to come back to the judicial
deference in a minute. We had, in your exchanges with Senator
Leahy about the power of the Congress, we have seen that the
Supreme Court has limited the ability to legislate under the
Commerce Clause, the Lopez case.
And under Section 5 of the Fourteenth Amendment--that is
the ADA case and the RFRA case--we had extensive hearings,
listened to Republican and Democrat Attorneys General. There is
no even suggestion at that time that we were not going to meet
the constitutional requirement.
For some of us, the last great authority is the spending
power, and the concern that many of us have is where you are
going to be on this issue, further limitation of the power of
the Congress in using the spending power. The Supreme Court has
ruled on this, as you well know, that in the Dole case
involving Congress, could, under the Spending Clause, condition
Federal highway funds on States, raise the minimum drinking
age. Rehnquist authored the opinion. White, Marshall, Blackmun,
Powell, Stevens, even Scalia, agreed with that.
What is your own view about the authority in the Spending
Clause and the power of Congress to use the Spending Clause to
achieve its objectives? Is there anything, in terms of your own
view, that would, in any way, find that that Spending Clause
would be compromised to permit to--to undermine the Dole case?
Mr. Roberts. Well, first of all, of course, if I were to be
confirmed, my own personal views would not be relevant. I would
follow the Supreme Court precedent.
There is not a lot of precedent in this area.
Senator Kennedy. The only problem is we have seen the
changes and the difference in the interpretation by the Court
in the Commerce Clause and in Section 5 of the Fourteenth
Amendment. I mean, I was the Chairman of the Committee when we
had those, and we listened, and there was not going to be a
problem on that. And, of course, there were decisions that were
made that reinterpreted past history on it.
I want to know whether we are taking a chance with you on
the Spending Clause. That is the last real authority for us.
Mr. Roberts. You discussed the Dole case, South Dakota v.
Dole, and in that case, the justices you listed reaffirmed
Congress's power to say: If you're going to accept Federal
funds, here's what you've got to do.
Senator Kennedy. You are not troubled by that?
Mr. Roberts. No, it's a basic principle, and I would just
point out, as an aside, you listed the justices who agreed with
that, the justices who disagreed and dissented in South Dakota
v. Dole were Justices Brennan and O'Connor. It is not
necessarily the sort of division, sort of the typical
conservative/liberal lines at all.
In South Dakota v. Dole, the Court referred to a prior
precedent. I think it is the Stewart Machine case. And the
argument has been made, well, aren't--the issue that I think
the Court will address is are there limits on that; is it if
you accept one dime of Federal money you have to do all sorts
of things, even if they're not germane or proportional? Those
are the two standards that had been developed in the prior
cases. It wasn't an issue in South Dakota v. Dole.
If you didn't lower the drinking age, you lost highway
funds. There was certainly a relationship between underage
drinking and highway accidents. So the Court ruled in that case
that that was an appropriate proportional and germane response.
I worked on a brief in that case with my--I was an
associate at that time--
Senator Kennedy. You understand this is the law, and this
would be the precedent that you would follow.
Mr. Roberts. The South Dakota case.
Senator Kennedy. Yes, the Dole.
Mr. Roberts. Yes.
Senator Kennedy. Let me move on, if I could. I do not mean
to cut you off.
You talked about the judicial activism. Would you agree
that activism can come from both sides of the ideological
spectrum?
Mr. Roberts. Certainly.
Senator Kennedy. Could you give us some examples of any of
the appellate cases you believe that show impermissible
activism on each side.
Mr. Roberts. Well, I cited in my written responses a case
from California, an old case from the California Supreme Court,
because I thought it was important to avoid criticizing binding
Supreme Court precedent, in which the California Supreme
Court--it was a Lochner era-type case--struck down, on
substantive due process grounds, a California law that required
employers to pay employees at certain intervals. Their
reasoning was that employees are free to negotiate whatever
agreements they want, and if they don't negotiate that, you
shouldn't interfere with their liberty of contract.
Several Supreme Court cases follow the same principle in
what people loosely call the Lochner era. I think that's an
example of judicial activism. A policy judgment had been made
by the State legislature in that case to address a real
problem, the inequity in negotiating positions, the fact that
employers were frequently not paying employees. I think there
were a lot in the mining industry that were directly affected
when wages were due, but many months later, and that was a
policy judgment. I don't think that was a constitutional
evaluation.
Senator Kennedy. How about on the other side of the
philosophical spectrum, do you see other examples? I mean,
conservative/liberal, how would you find? Do you think there
has been activism on both sides of the spectrum? And, if so,
how would you define that?
Mr. Roberts. Well, I do think there has been activism on
both sides. I haven't given any thought to a particular Supreme
Court case that I thought exhibited liberal judicial activism.
Again, I feel reluctant to criticize pending or binding--
Senator Kennedy. Well, I can understand that, but we are
trying to give life to your words. You talk about your
professed philosophy of deference and humility as real and not
just words. That is what I am trying to see from your own kind
of experience, in response to those questions, whether you had
examples that would give light to those words.
President Bush ran on a platform of selecting judges who
will be like Justice Scalia and Justice Thomas. We all
understand that meant judges who will be activists in reducing
the power of Congress to protect people's rights. You must
understand, as everyone else does, that you were selected
because those at the White House and the Justice Department
knew your record and assured the President your decisions would
please President Bush.
What can you tell us which will reassure us that you will
not necessarily follow the lead of Justice Scalia and Thomas?
Mr. Roberts. Well, I will follow the lead of the Supreme
Court majority in any precedents that are applicable there. And
if Justices Scalia and Thomas are in dissent in those cases, I
am not going to follow the dissent. I'm going to follow the
majority.
Senator Kennedy. Are there any cases which you believe that
either one of them showed insufficient deference to Congress
and became judicial activists?
Mr. Roberts. No, I haven't gone through and looked for
particular occasions. If they were majority opinions by either
of those justices, I would not feel it appropriate for me to
criticize those because I would have to apply that majority
opinion, whether I agree with it or not.
And I think it's important for the Committee to understand
I have been asked questions in some areas I think because
people wonder whether I'm going to follow a particular
precedent or because they're concerned I might not, and in
other areas the concern seems to be that I might, depending on
whether a particular questioner is critical or supportive of
those decisions.
I am going to follow both the decisions I agree with and
the decisions that I don't agree with, regardless of any
personal view.
Senator Kennedy. Well, as you understand, I am not trying
to get the outcome of your judgment on a particular fact
situation, but I have listened for 40 years nominees say that
they are going to follow the precedent and interpret the law,
and yet every single day on just about every single court, they
come out in different directions. Some are in the majority and
some are in the minority, and they have sat here and given
similar kind of answers.
And what I am trying to find out is what is behind those
answers so that we can give some light to it. Because, as you
understand, every single day people are applying what they
understand is the law and applying what the President--and
there is, in many, many instances, a wide difference.
Certainly, there is even in the courts.
So our ability for--you give words about, particularly on
the authority and responsibility of Congress, you are talking
you would be a nonjudicial activist, and we are trying to find
out what these words mean in terms of your own kind of life
experience, either by your writings, your statements or your
opinions about this, and that I think we are entitled to find
out.
Mr. Roberts. I guess what I would point to, Senator--I'm
obviously not a sitting judge. I don't have decisions--but I do
have a history of litigating cases, and when you talk about the
ability to set aside personal views and apply precedent without
regard to personal ideology or personal views, that's something
I've been able to do in my practice.
My practice has not been ideological in any sense. My
clients and their positions are liberal and conservative across
the board. I have argued in favor of environmental restrictions
and against takings claims. I've argued in favor of affirmative
action. I've argued in favor of prisoners' rights under the
Eighth Amendment. I've argued in favor of antitrust
enforcement.
At the same time, I've represented defendants charged with
antitrust cases. I've argued cases against affirmative action.
And what I've been able to do in each of those cases is set
aside any personal views and discharge the professional
obligation of an advocate.
And I would urge you to look at cases on both sides. Look
at the brief, look at the argument where I was arguing the pro
environmental position. Take a brief and an argument where I
was arguing against environmental enforcement on behalf of a
client. See if the professional skills applied, the zealous
advocacy is any different in either of those cases. I would
respectfully submit that you'll find that it was not.
Now, that's not judging, I understand that, but it is the
same skill, setting aside personal views, taking the precedents
and applying them either as an advocate or as a judge.
Senator Kennedy. Well, now, I hear you on this. But, every
day, responsible disagree with one another, and there is an
implicit band of discretion in the decisions before them. In
many cases, there is an explicit role for judicial discretion.
That is what I am interested in. That is what I am interested
in.
Do you really believe that the judge's sensitivity to the
purpose and the result of the laws they interpret is irrelevant
to the way they will exercise their discretionary review of
other judges or review other judge's exercise of discretion. I
am interested in what in your background or expertise
demonstrate you will be sensitive to the human impact of your
decisions.
You are going to be a judge that is going to be making
judgments and decisions on these range of issues--health and
safety, consumer protection, the labor laws, fair employment,
gender, race, disability, Clean Air, workers' rights, Freedom
of Information, a whole range, a whole range, a whole range.
What can you tell us, in your own experience, would reflect
on your judgment in being sensitive to the human conditions
that are going to be involved in the great numbers of cases
there are going to be for that?
Mr. Roberts. I don't know if this is responsive or not
because, of course, when you are an advocate, you're advocating
a client's position, and you're concerned about a particular
human impact and not others. Certainly, when you're a judge,
you want to apply the law and, yes, you have to be sensitive to
the impact of your decision, but at the same time apply the law
fairly without regard--what the judicial oath says--without
regard to persons.
At the same time, I appreciate the fact that the law has
impact on people in society, and I think it's, for example, an
important obligation of a lawyer to do pro bono work, to
address the situation of people impacted by the law who don't
have the resources to respond.
Senator Kennedy. Maybe you can tell us. Talk about that.
Mr. Roberts. One of the cases I handled before the D.C.
Court of Appeals was Little v. Barry. I represented a class of
general public welfare recipients in the District who had had
their welfare benefits terminated, and we argued, and argued on
the basis of Goldberg v. Kelly, a landmark civil rights case,
that those individuals were entitled to individualized hearings
before their welfare benefits were terminated. I argued that
before the court of appeals on a pro bono basis. And that was a
case where the law had a very real and direct impact on the
most needy citizens in our country, and I was happy to take
that case on behalf of that class of welfare recipients.
Senator Kennedy. If there are others, I would be interested
in it.
Mr. Roberts. Well, there are other--
Senator Kennedy. We can talk now, but there is going to be
this band of discretion. You are going to apply the law, as you
have outlined. You can be on the pro and con. You have answered
that kind of question, but there is that band of discretion
which judges are exercising, and this court makes judgments on
matters that have enormous impact in terms of the quality of
life and rights of individuals. And I am looking for that
ingredient in your kind of life experience that would help to
show that the human element that is being considered in this is
something that you both understand, appreciate and would be
concerned with.
Mr. Roberts. Senator, there are other examples. The first
case I argued in the Supreme Court was on a pro bono basis on
behalf of an individual facing the almighty might of the U.S.
Government, going after him criminally and civilly.
I regularly participate, our firm has a Community Services
Department that does pro bono work. Whenever there is an appeal
involved, I and members of our appellate group help prepare. We
have recently done issues involving termination of parental
rights. I can't imagine a more direct impact on an individual.
Minority voting rights is another case we participated in, in
which we prepare the people arguing pro bono for the appeals.
I do a street law program that I think is important.
Senator Kennedy. With the law school or with--
Mr. Roberts. It's done in conjunction with the Supreme
Court Historical Society. Every summer high school teachers who
are teaching about the courts come to learn a little bit about
it, and I talk to them about how the Supreme Court functions,
and it's a very, I've always found it very rewarding to sit
with the high school teachers and hear what they, the
difficulties they have in communicating with their students
about the justice system.
Senator Kennedy. That is very, I am interested in it, and I
appreciate your response to these questions and anything else
on this would be useful.
I just had one final. I know I am out of time, but I have
one final question, Chairman.
In your answers to the committee's questions, you indicate
your understanding the Framers insulated the judges from the
public pressures. Do you also understand and agree that in
keeping the Senate small and giving us the staggered terms,
letting us make our own rules for exercising the key
responsibility of the advice and consent also intended to
insulate us to exercise our authority to prevent the Executive
Branch from going too far in the assertion of their powers and
the exertion of the Executive Branch powers?
Mr. Roberts. Well, I don't know about in particular
reference to advice and consent, but certainly, as I understand
the structure of the Constitution, the Senate was, as you
indicated earlier, given a longer term, given staggered terms
because it was supposed to exercise something of a restraining
influence on the more popularly responsive branches of
government.
Senator Kennedy. This is a well-rooted responsibility, as I
understand. I mean, we have seen at times when you can take--
the most obvious historic would be the court-packing by
President Roosevelt, when there would be an important
responsibility by the Congress to stand up to a President,
actions of the Executive Branch. And as someone who is a
constitutional authority, such as yourself, where of that
historic responsibility and role and thought about it, if there
is anything you can tell--
Mr. Roberts. Well, I don't claim to be a constitutional
authority, but certainly the Senate obviously has a critical
responsibility in this area. My memory may not be correct, but
I believe original drafts of the Constitution provided that the
Senate would actually be appointing the judges.
[Laughter.]
Senator Kennedy. There you go. Did you hear that, Orrin?
Chairman Hatch. That is what they think they are doing now.
[Laughter.]
Mr. Roberts. Cooler heads prevailed before the end.
Chairman Hatch. I am glad you added that last part.
Mr. Roberts. But I am happy to be scrutinized under
whatever standard the Committee or the Senate wishes to apply.
Senator Kennedy. Thank you very much.
Chairman Hatch. We will turn to Senator Durbin now.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman.
Mr. Roberts, thank you for coming back. I am glad we had a
chance for this hearing, and I thank the Chairman. I think we
have reached an accommodation here that may be helpful in
moving this Committee forward in a better environment.
I understand my fate in life as a back-bencher in the
minority in the Senate with a Republican President, that
nominees that come before us are not likely to share my
political philosophy. That is a fact of life.
I also understand that I have a responsibility under the
Constitution to ask questions of those nominees to satisfy my
judgment that they would be well-suited to serve on the Federal
bench. Many of the nominees have been forthcoming, and open,
and candid in their answers, others have not. As a politician,
I can certainly identify with that. I have danced around
questions in my life, Waltz steps, Polka steps, Samba steps, I
try them all when I do not want to answer a question.
And now I am going to ask you a question, just a limited
number of questions relating to some dance steps I see in your
answers here.
So, in 1991, you are in the Solicitor General's Office, and
in Rust v. Sullivan, you end up signing on to a brief which
calls for overturning Roe v. Wade, one of the more
controversial Supreme Court cases of my lifetime. When we asked
repeatedly in questions of you what your position is on Roe v.
Wade, you have basically danced away and said, ``No, no, my
personal views mean nothing. I am just going to apply the
law.''
This, in my mind, is evasive. I need to hear something more
definitive from you. Was the statement in that brief an
expression of your personal and legal feelings about Roe v.
Wade, that it should be repealed?
What is your position today, in terms of that decision?
Mr. Roberts. The statement in the brief was my position as
an advocate for a client. We were defending a Health and Human
Services program in which the allegation was that the
regulations issued by the Department of Health and Human
Services burdened the constitutional right to an abortion
recognized in Roe v. Wade.
At that time, it was the position of the administration,
articulated in four different briefs filed with the Supreme
Court, briefs that I hadn't worked on, that Roe v. Wade should
be overturned.
Now, if Roe v. Wade were to be overturned, the challenge to
the regulations that we were tasked with defending would fail,
and so it was appropriate in that case to include that
argument. I think it was all of one or two sentences. The bulk
of the brief was addressed to why the regulations were valid,
in any event.
But since that was the administration position, and the
administration was my client, I reiterated that position in the
brief because it was my responsibility to defend that HHS
program.
Senator Durbin. Understood. I have been an attorney,
represented a client, sometimes argued a position that I did
not necessarily buy, personally. And so I am asking you today
what is your position on Roe v. Wade?
Mr. Roberts. I don't--Roe v. Wade is the settled law of the
land. It is not--it's a little more than settled. It was
reaffirmed in the face of a challenge that it should be
overruled in the Casey decision. Accordingly, it's the settled
law of the land. There's nothing in my personal views that
would prevent me from fully and faithfully applying that
precedent, as well as Casey.
Senator Durbin. Then, let me ask you this question. You
make a painful analogy, from my point of view, when you suggest
that calling for the overturn of Roe v. Wade was not any
different than the Government calling for overturning Plessy v.
Ferguson and Brown v. Board of Education. Plessy v. Ferguson,
separate, but equal, was really the basis for racial
discrimination and segregation in America for decades.
I hope that that is just a strict legal analogy and does
not reflect your opinion of Roe v. Wade policy compared to
Plessy v. Ferguson policy.
Mr. Roberts. Senator, the question I was asked, were there
other occasions in which the Department--if I am remembering
correctly--if there were other occasions in which the Solicitor
General had urged that a Supreme Court precedent be overturned,
and that is just--Brown v. Board of Education is the most
prominent one. The answer wasn't meant to draw a particular
substantive analogy.
Senator Durbin. And I will not push any further because I
was hoping that is what your response would be.
So in the panel that you were on the last time before us,
Justice Deborah Cook of the Ohio Supreme Court was one of the
members of the panel, and I sent a written question to her,
which I sent to you. And the basic question goes into the
cliches we use in this Committee about strict construction, and
where are you, and how do you compare yourself to Justice
Scalia and Justice Thomas, and then try to draw some
conclusions.
Now, as oblique as those questions may be, that is as good
as it gets in this Committee. That is as close as we can get to
trying to find out what is really ticking in your heart when it
comes to your judicial philosophy.
And her answers were, as I have said, painful, but
painfully honest. She said she was not a strict
constructionist, but she conceded in answers to question that
if the Supreme Court had a majority of strict constructionists,
it is not likely they would have reached the same conclusion in
Brown v. Board of Education, the Miranda decision or Roe v.
Wade. I thought that was the most honest answer we have been
given by a Bush nominee, and I have used it as kind of a
standard ever since to just see how far other nominees would go
in their candor and honesty.
I found your answer evasive. When I look at what you had to
say about your philosophy, you said, ``In short, I do not think
beginning with an all-encompassing approach to constitutional
interpretation is the best way to faithfully construe the
document,'' and then you went on to say I am not going to draw
any conclusions on the Supreme Court decisions.
I need more. I need to hear more from you about where you
are coming from and, at least hypothetically, if you agree that
those who call themselves strict constructionists would not
likely be in the vanguard of the socially important Supreme
Court decisions that we have seen in Brown v. Board, Miranda or
Roe v. Wade.
Mr. Roberts. Well, Senator, I don't know if that's a flaw
for a judicial nominee or not, not to have a comprehensive
philosophy about constitutional interpretation, to be able to
say, ``I'm an originalist, I'm a textualist, I'm a literalist
or this or that.'' I just don't feel comfortable with any of
those particular labels. One reason is that as the Constitution
uses the term ``inferior court judge,'' I'll be bound to follow
the Supreme Court precedent regardless of what type of
constructionist I, personally, might be.
The other thing is, in my review over the years and looking
at Supreme Court constitutional decisions, I don't necessarily
think that it's the best approach to have an all-encompassing
philosophy. The Supreme Court certainly doesn't. There are some
areas where they apply what you might think of as a strict
construction; there are other areas where they don't. And I
don't accept the proposition that a strict constructionist is
necessarily hostile to civil rights.
For example, Justice Black thought he was a strict
constructionist of the First Amendment. No law means no law.
Well, that's a very sympathetic view to people who have First
Amendment claims. I can see the argument that someone who is
going to be a strict constructionist on the Eleventh Amendment
might result, come forward with decisions that are more
acceptable to some of the questions Senator Leahy was raising
earlier. The Eleventh Amendment says the citizen of another
State, so how does it apply with citizen of the same State if
you are going to be a strict constructionist?
The Supreme Court doesn't apply a uniform and consistent
approach. I certainly don't feel comfortable with any uniform
or consistent approach because the constitutional provisions
are very different. You have a very different approach in
saying how are you going to give content to the Fourth
Amendment prohibition on unreasonable searches and seizures.
That's one thing. It doesn't mean that you apply the same
approach to a far more specific provision like the Seventh
Amendment.
Senator Durbin. That is a reasonable answer. It is also a
safe answer, and I am not going to question your motive in that
answer. I accept it at face value as being an honest answer,
but it raises the question that comes up time and again. If
this job is so automatic, if the role of a judge is strictly to
apply the precedent, then, frankly, I think we would have as
many Democrats being proposed by the Bush White House as we do
Republicans, but we do not. They understand that it is not
automatic, it is not mechanical.
There are going to be discretionary and subjective elements
in decisions, and that is why we have people coming from major
law firms who have made a living representing rather wealthy
clients. We have people who are conservative in their
philosophy. We have many, many members of the vaunted
Federalist Society, which my Chairman is so proud to be part
of, all of these people come before us because I think, when it
gets beyond the obvious, we understand that there is
subjectivity here.
The last question I will ask you is a quote, and you better
take care when you get quoted, but you were asked about the
Rehnquist Supreme Court in 2000, for your opinion.
Now, many people had characterized it as a very
conservative Court, but you said, ``I don't know how you can
call the Rehnquist Court conservative.''
When asked specifically about the 1999-2000 Supreme Court
term, a term in which the Court rendered numerous, highly
controversial decisions, you said, ``Taking this term as a
whole, the most important thing it did was to make a compelling
case that we do not have a very conservative Supreme Court.''
What were you talking about?
Mr. Roberts. Well, that was the labels that people had been
tossing about, and I thought that it didn't help public
understanding of what the Court does to not look beyond that
label. In that particular term, 1999 to 2000, some of the
things the Supreme Court did was reaffirm the constitutional
basis of the Miranda rule; strike down a restriction on
partial-birth, late-term abortions in the case out of Nebraska;
strike down, as violating the First Amendment, the giving of an
invocation at school. In other words, reinforced Miranda,
reinforced Roe, reinforced the ban on school prayer.
It issued the Apprendi decision, a great benefit to
criminal defendants in sentencing. If there is going to be an
enhancement of your sentence, you have all of the
constitutional rights before that enhancement can be applied.
In the Nixon case out of Missouri, it even upheld
constitutional limits on campaign contributions. In the Playboy
Enterprises case, it struck down an act of this body, this
Congress, trying to regulate indecent speech. And I'm thinking,
sitting there, well, there are six cases, every one of which--
again, the labels are not helpful--but every one of which you
would describe not as a conservative Court. It's a conservative
Court giving criminal defendants a big break, reaffirming
Miranda, reaffirming Roe, striking down regulation of indecent
broadcasts, striking down school prayer.
Now, you can tell, if you're being interviewed for public
consumption, you can say it's a conservative Court, it's a
liberal Court. I think if you want to educate a little bit
about what the Court does, they need to know that even when
other people would say this is a conservative Court, there are
those decisions. It's much more complicated than those labels.
Senator Durbin. Thank you, Mr. Roberts.
Mr. Roberts. Thank you, Senator.
Senator Durbin. Thank you, Mr. Chairman.
Chairman Hatch. Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
I would like to welcome Mr. Roberts. Many of us wanted to
have you back before the Committee for quite some time. So I
want to thank the Chairman for scheduling this hearing. I hope
this is a first step toward restoring some measure of regular
order to our consideration of judicial nominations, and I do
think, Mr. Chairman, if we work together in good faith it will
be possible to bridge some of the differences we have on the
issues.
Mr. Roberts, I enjoyed your reference to the Missouri
Shrink case, which I agree is an important case.
Let me ask you something else. You were interviewed on the
radio in 1999 and said, ``We have gotten to the point these
days where we think the only way we can show we're serious
about a problem is if we pass a Federal law, whether it is the
Violence Against Women Act or anything else. The fact of the
matter is conditions are different in different States, and
State laws can be more relevant is I think exactly the right
term, more attune to the different situations in New York, as
opposed to Minnesota, and that is what the Federal system is
based on.''
That is your quote, and I certainly do not disagree with
some of the sentiments of it, but could you elaborate a little
bit on the statement. Were you referring there simply to the
constitutional limits on Congress's power that were being
asserted in the case that challenged VAWA or were you saying
that Congress was going too far in trying to address Violence
Against Women, even if the Court were to hold that it could
constitutionally take the action that it did?
Mr. Roberts. I didn't have any particular reference. I
think that it was the VAWA case that had come up, if I am
remembering the interview correctly, and I didn't mean to be
passing either a policy or a legal judgment on the general
policy question. I just wanted to make the basic point, and I'm
sure it is a judgment that Senators deal with every day, that
simply because you have a problem that needs addressing, it's
not necessarily the case that Federal legislation is the best
way to address it.
I do think that's correct. And it's a proposition, for
example, I know the Annual Report on the Judiciary the point
was made at one time that you've got to keep in mind what the
impact of these types of cases are going to be on the Federal
courts every time you have a new Federal remedy, a new Federal
right that has an impact on the Federal courts.
Obviously, there are many areas where the Federal response
is not only appropriate, but required because of a variety of
circumstances. You don't want different rules in different
States, but I was just making the point that every problem
doesn't necessarily need a Federal solution.
Senator Feingold. So it is not a situation where you think
the constitutional limitation has to do with whether State laws
can be more attune to local conditions.
Mr. Roberts. Oh, no. No, of course, not. I mean the
constitutional limitation doesn't turn on whether it's a good
idea. There is not a ``good idea'' clause in the Constitution.
It can be a bad idea, but certainly still satisfy the
constitutional requirements.
Senator Feingold. Let me switch to another subject. I
supported the National AMBER Alert Act, which I am pleased will
become law today as a part of a larger bill. It became part of
the Child Abduction Prevention Act. I, and others, were
troubled that the final bill also included new and separate
departure procedures for sentencing of child-related and sex
offenses.
These new rules will take sentencing discretion away from
judges, and it was never even debated in the Senate Judiciary
Committee before being inserted in the bill. In fact, Chief
Justice Rehnquist, who rarely comments on pending legislation,
spoke out against the original House version of the new rules.
He wrote that the legislation ``would do serious harm to the
basic structure of the sentencing guideline system and would
seriously impair the ability of courts to impose just and
responsible sentences.''
We have heard complaints about these new rules from a
diverse group of organizations and individuals about the final
bill, including the Judicial Conference, distinguished judges
from around the country, the entire current Sentencing
Commission, all living former chairpersons of the Sentencing
Commission, the American Bar Association, the Washington Legal
Foundation, the Leadership Conference on Civil Rights and the
Cato Institute.
You may soon become a Federal judge. I would like to know
what you think of the efforts of some in Congress to reduce the
already limited sentencing discretion of Federal judges. And
more specifically what is your impression of the provisions
inserted into the Child Abduction Prevention Act during
conference that take away or severely hamper the ability of
judges to depart downwards when imposing a sentence, but do
nothing to limit the ability of judges to depart in the other
direction?
Mr. Roberts. I haven't looked at those provisions, Senator,
so I don't want to comment on those specifically. I do know
that under Supreme Court precedent, the determination of
appropriate sentences and how they're to be applied is a
quintessential legislative function. It is for the legislature
to decide an appropriate sentence and how it's to be
administered.
I know judges have strong views on sentencing guidelines,
and I think the debate about whether the guidelines are good or
bad is carried forward in the debate about how you should
review departures and enhancements. I did handle one case
challenging a departure under the sentencing guidelines, and we
went up to the Supreme Court several times. And each time it
would go back, the district judge would find another way to
impose the same sentence. It would go back, it would get thrown
out again.
So I know it's a system on which judges have strong views.
From my own point of view, the only thing that I feel
comfortable opining on is that it is in an area that is
quintessentially, as I said, for the Congress to decide what
the sentence should be and how it should be administered.
Senator Feingold. I am somewhat struck by that answer
because the Chief Justice of the United States felt comfortable
commenting, in fact, in a critical manner, on these new
provisions, obviously believing that it is appropriate for him
to indicate that going too far in limiting judges' discretion
is not a good idea.
I would be interested, given the life term that you will
shortly I think probably receive, what are your views on that
fundamental question, which is--
Mr. Roberts. Well, I--
Senator Feingold. And if your view is that Congress gets to
decide the whole thing, so be it, but it is a big deal in terms
of what our judges do, I think.
Mr. Roberts. Well, again, subject to constitutional
limitations, you obviously can't have different sentencing
schemes based on different racial impacts and things like that,
but it is a Congressional legislative decision to determine the
sentence.
Now, I'm sure that the Chief Justice is appropriately
commenting on what he thinks about it as head of the Federal
judiciary because it will have an impact on the Federal courts.
The debate goes back, of course. I mean, I understand the
value of discretion, and before the imposition of the
guidelines you had a situation that troubled Congress
sufficiently to put the guidelines in. Where you do the same
crime in one place and you do the same crime in another, and
somebody's getting 30 years, and the other person is getting 2
years, and you can't see any distinction, that type of inequity
I think does call for a legislative response, and that's what
the guidelines were all about.
I know a lot of district judges didn't like it. They're
used to sitting there and making more of a Solomonic decision
about what this particular defendant deserves or whatnot, but
there is a value in ensuring some uniformity across the
country. That's why the guidelines were imposed.
I know the rules for departure and enhancement were
intended to accommodate the discretion. But, again, beyond the
judgment that that's for the legislature to make, I don't feel
comfortable commenting.
Chairman Hatch. I suspect when you become a judge, you
won't like it either.
[Laughter.]
Senator Feingold. Well, and that's why, Mr. Chairman, I
want to just follow for a second, not ask another question, but
just comment. I certainly agree with you that the notion of
uniformity, to the extent that a legislature can help make that
happen, has tremendous value, but it is also the case that
justice often can only be served with judicial discretion.
And I again repeat the words of the Chief Justice, Chief
Justice Rehnquist, that this series of provisions, at least in
the form they were in the House, would, in his words
``seriously impair the ability of courts to impose just and
responsible sentences.'' That, to me, is a countervailing value
that has to be balanced, and I appreciate your attempt to
answer the question.
Chairman Hatch. Would the Senator yield on that point just
for a second?
As you know, I brought about a compromise where we changed
that greatly, but I have agreed to hold hearings on the whole
sentencing.
Senator Feingold. Pardon me, Mr. Chairman?
Chairman Hatch. I have agreed to hold hearings on the whole
sentencing matter. I have my own qualms about some of these
things, as I know you do. As an intelligent member of this
Committee, you are certainly not going to be ignored with
regard to those issues.
Senator Feingold. I appreciate that. I have heard from
sitting judges, many of whom are very conservative judges,
about how pained they are at the lack of discretion in a number
of these cases, but let me go to the last subject because I
know Senator Shumer would like to ask some questions.
In response to a written question from Senator Durbin, you
stated that you have assisted your colleagues at Hogan &
Hartson in the firm's representation of an inmate on Florida's
death row. Could you tell me more about that case, and your
involvement and what was the outcome?
Mr. Roberts. Well, he is still alive. That is sort of the
goal in representing inmates facing the death penalty. I'm
certainly not--don't have lead responsibility in the case.
What happened, and this was some years ago, a motion was
being made in connection with one of his many sentences, and I
was asked to assist in reviewing the motion. It had moved up to
an appellate stage, and that was my specialty, and I looked at
that and worked on that motion. I think it actually was not
successful, but the long-term representation, as I said, he's
still with us.
Senator Feingold. Well, I congratulate you on your
involvement in this. You and your firm represented the Florida
death row inmate pro bono. Hogan & Hartson, of course, has
enormous resources and is one of the best law firms in the
Nation. Of course, not all death row inmates are lucky enough
to secure such talented, well-resourced representation,
especially at the trial stages of a capital prosecution. And I
understand that law firms like yours typically don't get
involved in capital cases until the appellate stage.
Given your experience with that case, do you believe that
all capital defendants receive adequate legal representation in
the current death penalty system, and are you concerned that
poor defendants may not receive adequate legal representation,
especially at the trial level of a capital case?
Mr. Roberts. I don't know sufficiently what the situation
is with respect to appointed counsel. I have certainly seen the
cases where the counsel, whether attained or appointed, has
been inadequate. I mean, some of them, you know, where the
counsel was asleep or not present or the type of conduct, even
apart from whether particular motions were made or not.
So the answer to your question is, no, it certainly can't
be the case that in all cases they receive adequate
representation. I have--
Senator Feingold. Does it rise to a level where you have
concerns?
Mr. Roberts. Well, certainly. If you're in a capital case
and the lawyer is asleep, of course.
I have long been of the view that whether you're in favor
of the death penalty or opposed to it, the system would work a
lot better, to the extent that defendants have adequate
representation from the beginning. The reason a lot of these
cases drag out so long is because you spend decades
scrutinizing the conduct of the lawyer in the initial case. If
you make sure that there is adequate representation in the
beginning, that should obviate the necessity for that, in most
cases.
Senator Feingold. Finally, on this issue, and my last
question, as you may know our Nation last year reached a
troubling milestone. Over 100 death row inmates have now been
exonerated in the modern death penalty era--people who were
actually on death row, having been sentenced to death.
What is your sense of the fairness of the administration of
the death penalty in our Nation today? Do you think that the
current system is fair or do you agree with an ever-increasing
number of Americans that it risks executing the innocent?
Mr. Roberts. I think one thing that is unfair about the
system is that it is not, and I believe this is one of the
Supreme Court cases saying that it would be applied this way,
it's not certain, it's not definite, and there doesn't seem to
be any reasonable time limitation. The effectiveness, if you
believe in capital punishment, the effectiveness of capital
punishment diminishes if the crime was committed 30 years ago.
And if it takes that long to get through the system, it's not
working, whether you're in favor of the death penalty or
opposed to it.
Senator Feingold. But what about the fact that 100 people
have been exonerated, who were already sentenced to death, how
do you feel about that?
Mr. Roberts. Well, obviously, the first reaction is that
the system worked in exonerating them. I don't know the details
of the particular cases, but if they've been exonerated, that's
how it's supposed to work.
Senator Feingold. Is it your guess that we've gotten all
the ones that are innocent on death row?
Mr. Roberts. Of course, it causes concern whenever somebody
gets to that stage. It would be important to know at what stage
it is. If it's on direct review, you feel a little more
comfortable about it. If it is something coming out years later
that should have come out before, that does cause some degree
of discomfort. Because, of course, when you're talking about
capital punishment, it is the ultimate sanction, and sort of
getting it right in most cases isn't good enough. I agree with
that.
Senator Feingold. Thank you, Mr. Chairman. Thank you, Mr.
Roberts.
Chairman Hatch. Thank you.
Senator Schumer, you will be our last questioner.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I want to thank
you for holding this hearing. I want to thank Mr. Roberts for
returning to the hearing today. I know it wasn't your choice to
be scheduled the same day we had hearings for two other
controversial nominees, and I for one am sorry you didn't get
your own hearing earlier, but I am glad you are here today.
Now, after your hearing, I sent you several written
questions. For all intents and purposes, you refused to answer
three of them. I know you had your reasons for refusing to
answer, but to be frank, I don't find the reasons compelling, I
don't find them fair, and I don't find them really in accord
with your responsibility to let this Committee know as part of
the advise and consent process your views.
The Senate has a duty, as you know, to thoroughly vet
individuals nominated to the Federal courts, but that duty is
especially sacred when it comes to the most important courts,
and there is no question that the D.C. Circuit, the court to
which you have been nominated, qualifies on that score. I have
called it in the past ``the second most important court in the
land.'' I was at the naming of our courthouse for Thurgood
Marshall in New York City, and my friends from New York on the
Second Circuit took a little umbrage, but it is true. The D.C.
Circuit I think is the second most important court in the land.
But when I say we have a sacred duty in this process, I
mean it. That is not just verbiage for me. The Founding Fathers
worked long and hard to achieve balance in our system of
Government. They struggled to ensure that no one branch would
dominate the others. And an essential part of that balance is
the advise and consent clause. It is true at any time in our
history, but it is especially the case in an era when the
President seems to have an ideological prism with whom he
nominates. Clearly, the nominees that have come from the White
House, if you sprinkled them throughout the political spectrum,
wouldn't land evenly throughout.
And that is a President's prerogative. I have nothing
against the President doing it. But I truly do object to the
idea that we shouldn't ask and you shouldn't answer questions,
particularly at a time when the President is seeing things
through an ideological prism, when he has stated, to his
credit, he wants to appoint Justices in the mold of Scalia and
Thomas, who are not moderate mainstream judges, but whatever
your views of their views, they tend to be way over to the
right side, and every one--not every one, but most of their
decisions show that.
So I think we have a duty to ask questions, and assuming
that the questions are not improper, the nominees have a duty
to answer them. I don't think it is enough for a nominee to
tell us or for you to tell us you will be fair and impartial. I
do not believe it is sufficient to say, ``I will follow the
law.'' Every nominee says that.
We have the right to know the responsibility how you will
approach the difficult and important legal questions that come
before the D.C. Circuit, not to know how you will rule in a
specific case but generally your way of thinking.
The law, as you know from your extensive experience as an
appellate litigator, is not something that a judge divines or
that is handed down from above. Law and truth are not always
one and the same. Judges disagree because there is a degree of
subjectivity of the law. You can't avoid it. If there weren't,
there wouldn't be dissenting opinions. There wouldn't be legal
debate. We could put black robes on computers and put them on
the bench instead of going through this process.
So I think the questions that I asked you were fair and
proper. Now, you disagree and that is your right, but I have to
tell you that you will have a hard time winning my vote if you
don't answer these questions. I don't think it is the way a
nominee should come before this Committee.
So I want to discuss the questions you have refused to
answer, and I first want to focus on Question 5 from the
written questions I sent you. I asked you to identify three
Supreme Court cases of which you are critical, and I asked you
to limit your answers to cases that haven't been reversed and
that have not been criticized publicly previously by you. In
not responding, you cited Lloyd Cutler's remark that,
``Candidates should decline to reply when efforts are made to
find out how they would decide a particular case.'' Fair
enough. And you relied on Canon 5 of the ABA Model of Judicial
Conduct.
But I want to be very clear with you here. I am not trying
to make any effort to find out how you would decide a
particular case. I agree it would be inappropriate for me to
ask you about a particular case. If I were to say what is your
view on what Enron did and how you might rule on it, for
instance, you should decline. If I ask you what are your views
on corporate ethics and what are your views of a certain
holding of the Court, that is a different situation altogether.
I am not even asking you about a hypothetical case.
So while I think engaging in discussions of hypothetical
scenarios are useful in certain circumstances, those questions
are closer to the line and I am not willing to pursue them.
The question I have asked is as narrowly drawn as it can be
to achieve my goal of learning how you approach the law while
protecting you from announcing how you will rule on a given
case. And just because I am hardly an expert here, I contacted
the Nation's leading legal ethics expert, Stephen Gillers, the
Vice Dean at NYU Law School, and asked him to tell us whether
there is any ethical problem with a nominee answering the
question I posed to you, Question 5. He said, emphatically and
unequivocally, that there is no problem.
In fact, Mr. Chairman, I have a letter from Vice Dean
Gillers to me on this, and I would ask unanimous consent to
submit to the record.
Chairman Hatch. Without objection.
Senator Schumer. I don't know if the folks at DOJ showed
you the letter that Dean Gillers sent. We tried to contact you
and your DOJ handlers yesterday to make sure you knew we would
be asking this question. But I hope you will read it now
because he makes a compelling argument.
I promise you you will have a full chance to respond to
that. But before I do, I would note that other judicial
nominees have answered this question. Miguel Estrada clearly
did not. But he was the apotheosis of avoiding any questions
asked by this Committee. And I hope you won't follow in that
direction.
Linda Reade, who is now a judge on the district court, was
particularly forthcoming when we considered her the same day we
considered Miguel Estrada. And no one has even thought remotely
of saying she violated Canon 5.
I have made it my practice to ask the question of people I
consider for judgeships in New York. Every one of them has
answered the question.
Just recently, Dora Irizarry, the President's most recent
nominee in New York, came to meet me, and she answered the
question forthrightly, naming and discussing some very recent
cases. She wasn't violating Canon 5. That is a ruse. And it was
used as a ruse by Miguel Estrada. I hope you won't follow in
those footsteps. Let me repeat that.
And just in case people think this issue is partisan,
several Republican Senators agree that these questions are
proper because they asked them, nearly identical questions of
President Clinton's nominees. Again, no one--no one--said there
was any violation of the canons.
So, first, let me ask you: Will you reconsider and answer
the question? If not, in light of Dean Gillers' letter, in
light of the inapplicability of Canon 5, and in light of the
answers given by other nominees, in light of the fact that
several Republican Senators believe the questions are proper,
and in light of the importance of the process in which we are
participating, why won't you? And how do you differentiate you
from all the others who have been willing to ask or answer this
question? And I just hope that you will give us some insight on
how you approach questions like this? They are important for me
to make up my mind fairly about whether to support you or not.
So now I have spoken for a while. Please answer.
Mr. Roberts. Thank you, Senator, and I appreciate the
opportunity to address the question again. I want to be
responsive, but at the same time, I think it is important that
I avoid doing anything that is going to be harmful to the
Federal courts as an institution.
I did get a copy of Professor Gillers' letter just before
the start of the hearing and looked at it, and I think it is
important you said that other Senators have asked these kinds
of questions. One of the things I did in preparing for this
hearing was go back and look at Justice Ginsburg's hearings.
And she on numerous occasions said it would not be proper for
her to comment on particular Supreme Court precedents. She was
asked by Senators on both sides of the aisle, and she said she
was religiously adhering to that guidance because she thought
it would be harmful to the Supreme Court for nominees to answer
those kinds of questions.
Now, let me just explain briefly why I answered--
Senator Schumer. Give me an example of one of the questions
that she refused to answer. Are they similar to these or were
they more specific?
Mr. Roberts. They were more specific in that they
identified particular cases.
Senator Schumer. Exactly.
Mr. Roberts. I don't see a principled distinction. It
seemed to me if you are able to say I disagree with this
binding Supreme Court precedent and here is why, I don't see
how that would prevent anybody from then saying, all right,
well, what about this one? And you are going to have your list
of ten cases you want to know about, and Chairman Hatch is
going to have his list of ten cases. And the reason Justice
Ginsburg gave for--I don't know about technically whether it
violates an ethical standard or not, but the reason that she
thought it was inappropriate to answer that question is because
it is an effort to obtain a forecast or a hint about how a
judge will rule on a particular case.
If I were to tell you here's a case I disagree with, the
Lopez case, I think that's wrong, that gives you a hint of
forecast about how I would apply the Commerce Clause in a
particular case related to Lopez. And another reason, it
certainly raises very serious appearance problems. Let's say I
tell you I disagree with the Smith case and we get into a
discussion and here's why the Smith case was wrongly decided,
and I'm confirmed and a case comes before me and the lawyer's
saying this is governed by the Smith case, you should apply
that, and I don't. That lawyer--that party is going to feel
like he got a raw deal, and it's because I disagreed with the
Smith case, because, look, at the confirmation hearing they
asked you about that and you said you disagreed with it.
Certainly--
Senator Schumer. How is this different--let me just
interrupt you. How is this different than us examining the
precedents of judges who have written, you know, pages and
pages of cases? And how does that--is that any different--
Mr. Roberts. Yes.
Senator Schumer. --in terms of jeopardizing their futures
and their future impartiality than your asking a case that you
didn't happen--answering the same situation of cases you didn't
judge? You are making this an absurd process, sir, when you are
saying that you can't answer even broad questions about
specific jurisprudence, when you can't say how you feel about
previous court cases. I am not asking you a specific fact
situation. That is what Gillers says Canon 5 is all about. And
when you say you can't answer any of those, although countless
judges have through the decades, I think you are making--you
are rendering the advise and consent process useless from my
point of view.
Let me ask you this: Did they ask you any of these
questions at the White House?
Mr. Roberts. No.
Senator Schumer. They didn't ask you how you felt on any
issue at all?
Mr. Roberts. No, and they certainly didn't ask about any
particular cases. I--
Senator Schumer. How about the types of questions that you
refused to answer here, they didn't ask you those?
Mr. Roberts. No, Senator. I'm trying to adhere to the line
that I understand Justice Ginsburg--and she drew a distinction
between cases that she had decided. She thought that was an
appropriate line of inquiry. But when asked about particular
Supreme Court cases, she said it would not be proper for her to
answer those.
Now, in Professor Gillers' letter, he talks about the
Republican Party case. With respect, a very different question
of whether--that was a First Amendment case. I'm not saying,
you know, just because it wouldn't violate--or it would violate
the First Amendment to restrict people from talking means it's
a good idea. And, second of all, it involved the election of
judges in State campaigns, and I certainly hope that's not the
type of process. The Framers in the Constitution didn't provide
for elected judges, and I don't want to get into that type of
process.
Senator Schumer. The Framers, let me ask, when they had
John Rutledge, the first nominee before the Senate--and I
believe it was 12 of the 22 Senators were actual Framers--they
talked about--you know, they talked about his views on the Jay
Treaty. They clearly intended specific issues and specific
cases to be discussed.
Mr. Roberts. Well, Senator, all I can say is that my
understanding of the practices of the Committee--and I'm happy
to talk more generally. You said I have declined to answer
broad questions. I don't think that's accurate. I've answered
broad questions about judicial philosophy, about my approach to
judging. It is when you get to particular binding Supreme Court
precedents. I will be bound, if I am confirmed, to apply those
precedents whether I agree with them or not. And I think it
would distort the process for nominees to be subject to
questioning about those precedents. As a lawyer practicing--
Senator Schumer. Let me just--go ahead, please.
Mr. Roberts. I was just going to say, as a lawyer
practicing before the court, I look at precedents that have
been decided. But if it's now the case that judges are going to
be quizzed about their personal views about particular
precedents, I'll have to start researching the confirmation
hearings of the judges on the panel.
Senator Schumer. Let me ask you one more question. Did the
people you worked with in the Justice Department tell you not
to answer any of these questions? Did you discuss it with them?
Because here is what I worry about. I think you are a fine guy.
I mean, I have seen your record. My guess is it is possible
that because Miguel Estrada didn't answer those questions, they
didn't want you to.
Mr. Roberts. Oh, well--
Senator Schumer. That is my guess. Now, you don't have to
speculate on that, but I do want to ask you: Did you discuss
with them whether you should answer the specific questions I
asked you? You can answer that yes or no.
Mr. Roberts. Well, I would like to do a little more than
yes or on. The answer is I wrote the answers to the questions--
Senator Schumer. I understand that, but that was not my
question.
Mr. Roberts. --and I sent them--the second part of my
answer is that I sent those to the Justice Department for their
review before they were--before they were finalized, before I
finalized them. I don't recall them making changes in any of
these.
Senator Schumer. Did you discuss it with them before you
wrote the answers?
Mr. Roberts. I asked--I did ask if they had access to prior
hearing transcripts so I could see how other judges had
answered them, and I got a lot of different transcripts that I
went through.
Senator Schumer. So you did discuss some aspects of this
with them.
Mr. Roberts. To that extent.
Senator Schumer. Okay. That is fair enough. I mean, that is
not dispositive to me, but I think we ought to know because I
think knowing who you are and knowing some people who know you
well--and, again, I think you are a fine person. I think
something is going on here when you don't answer this question,
which so many others have done. But let me go on.
You said you didn't want to discuss philosophies, so let's
move on to Question 3. You were willing to discuss
philosophies. I asked you in Question 3--here is my question to
you: What two Supreme Court Justices do you believe have the
most divergent judicial philosophies? It is a discussion about
philosophy. How would you characterize the judicial
philosophies or each--these are my questions, I am just
quoting--e.g., strict constructionist, originalist?
Of the two you name in terms of judicial philosophy, which
Justice do you anticipate you will more closely approximate and
why? You responded by saying that you ``do not believe that a
nominee should, as part of the confirmation process, compare
and critique the judicial philosophies of sitting Justices.''
You also expressed concern that answering the question
would violate your ethical obligations to clients with matters
before the court. I have to say, again, I am somewhat baffled
by your reasons for not answering. I am not asking you who is
the worst Supreme Court Justice. I am not asking you to insult
or criticize any of them. There is a rich tradition of Supreme
Court litigators in debate, in commentary, discussing not only
the jurisprudence of but even the personalities--I didn't ask
you that--of sitting Supreme Court Justices before whom they
practice. They don't see this as a problem, and I am wondering
why you do, and even if you do. You are being asked by this
Committee--you are being nominated to a very important
position, and it seems to me, even if you wouldn't want to
answer the question because maybe one of your clients might
take some umbrage in one way or another--I don't know; I don't
know your clients--that you should, anyway. But this was a
question about philosophy, and you did actually, in response to
Senator Durbin's written questions, you discussed at length the
judicial philosophies of Justices Scalia and Thomas. And for
your purposes, that was Question 10 answered on page 10.
So why did you refuse to answer my question?
Mr. Roberts. Well, Senator Durbin's question specifically
asked what is Justice Scalia's originalist approach, what is
Justice Thomas', and since they had given addresses and written
articles on that particular point, I was able to draw from
those and answer as best as I could what they had said their
approach and philosophy was.
I guess I did think it was inappropriate for someone who is
going to be sitting on a circuit court to criticize the
judicial philosophy and approach of--
Senator Schumer. I didn't ask you to criticize it--
Mr. Roberts. --the Justices.
Senator Schumer. --any more than it is called criticism--
Mr. Roberts. Well, you said who has--the question--
Senator Schumer. The most divergent. That is not--that is a
neutral word.
Mr. Roberts. Well--
Senator Schumer. Some people would like divergent. In fact,
I think a Supreme Court would be best if it had one Brennan and
one Scalia, not five of either.
Mr. Roberts. I think it--I guess maybe part of the
reluctance to answer is that I'm not sure that I could give an
intelligent answer because I do think the philosophies of the
Justices are pretty hard to pin down. When they're articulating
them in articles and addresses, you can look at it and see if
you think they're living up to those standards. But to go back
and analyze all of the cases and see was this Justice adopting
this philosophy in this case or this one that philosophy in
another case, I guess I just didn't feel capable of doing that
because I think certainly the case probably for all nine of
them would tell you--and I think it's true to a large extent--
they begin with the case. They don't begin with the philosophy.
And in some cases, looking at the case drives them to a
particular result, and you can look, easily see decisions where
you think this is not an originalist approach, and yet that
Justice might describe himself in that particular way.
And so when you get down to the way the question was
presented of who has the most divergent, I just didn't see how
I could--
Senator Schumer. Okay. That is not how you answered the
question when I asked you. You said it was--and I quoted your
answer a minute ago, but you said it was--you didn't think you
should comment on their philosophies, not that you couldn't
answer the question. And then you did talk about philosophies
with Senator Durbin--
Mr. Roberts. And I'm happy--well, and he asked what the--
those two Justices had written about their philosophies.
Senator Schumer. And I don't feel left out. He's my
roommate. I mean, I just think that it's not--there is not a
consistency here.
Mr. Roberts. I'm happy to talk, and I have discussed at
length with some of the other questioners my approach to
judicial philosophy and the fact--and this may reflect--my
answer may reflect this more than anything else, that I don't
feel that I bring a coherent, universal approach that applies
across the board to all the provisions of the Constitution.
Again, I don't know if you regard that as a flaw or as a
positive thing, but that is the case.
Senator Schumer. I don't think that is relevant to whether
you can answer my question or not. Most people probably don't
have a divergent thing.
Chairman Hatch. Senator--
Senator Schumer. I have one more question, Mr. Chairman.
Chairman Hatch. If you will wind up, because I have given
you double the time.
Senator Schumer. You have, which I appreciate, although
this is an important--
Chairman Hatch. One more question, and then I would like to
finish.
Senator Schumer. This is an important nomination, and we
have been here for 3 hours, I guess, 2 and a half. I don't
think it is too much to ask.
Chairman Hatch. No, you can go ahead.
Senator Schumer. Thank you.
Chairman Hatch. But I would like to end with this last
question.
Senator Schumer. Okay. One of my questions that you did
answer, which was Question 4 on mine, was a question regarding
how you define judicial activism. You also at my request named
one case, albeit a California State case from 1899, of judicial
activism.
So I want to ask how your definition applies to some more
recent and higher profile matters. Was Brown v. Board an
instance of judicial activism?
Mr. Roberts. The Court in that case, of course, overruled a
prior decision. I don't think that constitutes judicial
activism because obviously if the decision is wrong, it should
be overruled. That's not activism. That's applying the law
correctly. So if that's the aspect of it, the overruling, I
don't think I would characterize it in that way.
The Court had a concrete--my definition of judicial
activism is when the Court moves beyond the role of deciding a
concrete case or controversy and begins to either legislate or
execute the laws rather than decide the case and say what the
law is. And I don't see that there's anything about Brown,
obviously, a momentous decision with dramatic impact on
society, but what the Court was doing in that case was deciding
and telling what the law was, that the Equal Protection Clause
properly interpreted does not mean you can have separate but
equal, because that is inherently unequal. So I--that would
not--
Senator Schumer. How about Miranda, was that--Miranda v.
Arizona, was that--
Mr. Roberts. Well, we have some guidance from the Supreme
Court in the Dickerson case recently in which the Court
explained that the rules it articulated in that case were
constitutionally based. If that's correct--and the Supreme
Court has said it, so as a matter of law it is correct--that is
an interpretation, an application of the Constitution. That,
again, strikes me as being within Marbury v. Madison framework
of saying what the law is.
I guess what Dickerson was about is really whether Miranda
was an instance of improper judicial activism or not. If the
Court had determined that was not constitutionally based, then
I think the argument would have been the other way.
Senator Schumer. All right. How about Roe v. Wade?
Mr. Roberts. Roe v. Wade is an interpretation of the
Court's prior precedents. You can read the opinion beginning
not just with Griswold, which is the case everybody begins
with, but going even further back in other areas involving the
right to privacy, Meyer v. Nebraska, pierce v. Society of
Sisters, cases involving education. And what the Court
explained in that case was the basis for the recognition of
that right.
Now, that case and these others--certainly Brown was
subjected to criticism at the time as an example of judicial
activism. Miranda was as well. But, again, all I can do as a
nominee is look to the rationale that the Supreme Court has
articulated.
Senator Schumer. So you don't think Roe v. Wade was
judicial activism as you defined it in your--
Mr. Roberts. The Court explained in its opinion the legal
basis, and because the Court has done that, I don't think it's
appropriate for me to criticize it as judicial activism. The
dissent certainly thought it was and explained why, but the
Court has explained what it saw as the constitutional basis for
its decision.
My definition of judicial activism is when the Court
departs from applying the rule of law and undertakes
legislative or executive decisions. Now--
Senator Schumer. Well, can you--since you seem to make the
argument if the Court rules that it is not judicial activism,
that would not be true of many people who write and comment and
everything else, can you give me a Supreme Court case that you
think was judicial activism?
Mr. Roberts. Senator, again, you are sort of getting back
into the area where following Justice Ginsburg's--
Senator Schumer. Getting back into the area of a hard
question, that is all.
Mr. Roberts. No. With respect, Senator, you're getting back
in the area of asking me to criticize particular Supreme Court
precedents. Justice Ginsburg thought that was inappropriate
because it would be harmful to the Supreme Court. I think it's
inappropriate because it would be harmful to the independence
and integrity of the Federal judiciary. The reason I think key
to the independence and strength of the Federal judiciary is
that judges come to the cases before them, unencumbered by
prior commitments, beyond the commitment to apply the rule of
law and the oath that they take. I think that is essential. And
if you get into the business where hints, forecasts are being
required of a nominee because you need to know what he thinks
about this case or that case, that will be very harmful to the
judiciary.
Senator Schumer. Then you are getting us into the absurd
position that we cannot ask questions about just about anything
that will matter once you get on the court.
Mr. Roberts. No. With respect--
Senator Schumer. Just one final one, and then I will let
you--what about Morrison, you know, the VAWA case, was that
judicial activism?
Mr. Roberts. Again, Senator, you're asking me--the Court
articulated the basis for its decision in the rule of law, and
I don't think it's appropriate to criticize that by
characterizing it in a particular way. The legal basis for the
decision--
Senator Schumer. So are you saying that the four Justices
who dissented in Morrison were--I mean, I don't even get where
this goes, that they were being inappropriate?
Mr. Roberts. I guess where it goes, Senator, is I will be,
if I'm confirmed, called upon to apply the Morrison case, among
others. And I think it is a distortion--
Senator Schumer. The dissent was strong. I mean, it was--
Mr. Roberts. I think there's a distortion of the process if
I have been compelled to give personal views about the
propriety of that decision.
Senator Schumer. Why is that? Could you just explain that
to me again? I don't understand. I think--
Mr. Roberts. Sure--
Senator Schumer. --it far more damages the process when you
don't. But tell me why. Is this because people will think you
are unfair or people will think you are biased?
Mr. Roberts. If you are a litigant--let's just say that,
you know, the Smith case, and you want to know my views on
that, and I tell you personal views on it, yes, I will be bound
to apply it, but, by the way, I think it was a horrible
decision, I think it was wrongly decided, I think it was
judicially active, or whatever. And then I am confirmed and a
case comes along and one of the litigants says this case is
controlled by the Smith case or the Smith case should be
extended to cover this case, and I rule no, I think that party
will walk away saying, well, that's because he disagrees with
the Smith case.
Chairman Hatch. They might move to recuse you to begin
with, just because you had made some comment.
Senator Schumer. Well, let me ask you this: Then why
doesn't every person who is involved in federalism or violence
against women who goes before the Court think that the four
Justices who dissented are biased and the process is damaged? I
mean, this is an absurd argument, in all due respect. Justices
on the bench dissent. They criticize opinions that, by
definition they are in dissent, that become part of the law.
And that would mean on a whole variety of different instances
every one of the nine Supreme Court Justices would be held not
to be fair, not to be unbiased. People have their opinions. We
all know that.
So the first time you dissent, if you get to the D.C.
Circuit, you will be--you are saying that on that particular
area of law, anyone who comes before you will think that you
are not going to be fair to them.
Mr. Roberts. I think there is a difference between the
exercise of the judicial function. And again I am adhering to
the line that Justice Ginsburg applied--I don't think it was
absurd when she said it--and that is that it does cast a cloud
of unfairness if, as part of the confirmation process--and that
is what is most troubling, Senator. It is not part of the
judicial process where you are deciding a particular case and
stating your reasons in a dissent. It is part of the
confirmation process. So the concern is that you are giving
commitments, forecasts, hints, even at the extreme, bargains,
for confirmation and that carries forward.
Senator Schumer. One final question. Is it better or worse
if, in fact, you have opinions, which clearly you must, but
these opinions aren't revealed? How does it make it any
different?
Mr. Roberts. I don't know if it is better or worse.
Senator Schumer. So you are saying that people will think
you are biased if you reveal the opinion. Won't people think
you are biased if you have an opinion? And that again gets to
the absurd argument that every one of us then who might be a
judge is biased because we all have opinions.
Mr. Roberts. The problem, Senator, is that, if confirmed as
a judge, I will be called upon to apply the rule of law. And,
of course, I have opinions about particular decisions. Probably
every decision I read, I have an opinion whether I think it is
good, bad or--
Senator Schumer. You are saying when you offer those
opinions, people will think you are biased here, right here.
Mr. Roberts. When you offer those opinions, it will distort
the process. It is either an effort to obtain a prior
commitment for someone as a nominee about how they will decide
the case, and I think that is very inappropriate, or it will
have a distorted effect on how that judge will appear to
parties appearing before him.
I think it will distort the process because people will now
go back to Committee hearing transcripts to find out what
judges thought about precedents that they are litigating about
rather than the rule of law as established in those precedents.
And it also forces the nominee to make a decision not in
the judicial context in a manner that could be premature. I
think of the Dickerson case a couple of years ago. The Chief
Justice issued the opinion saying that Miranda is
constitutionally based. I don't know if that is what he would
have said if he were forced at his nomination to say ``do you
think Miranda is constitutionally based?'' But when he got to
the decisional process and saw the briefs and the arguments and
the cases, he was able to make a decision in that instance.
Senator Schumer. So your argument now has sort of shifted.
Instead of worrying that other people will think you are
biased, it will lock you into thinking, or at least pre-dispose
you to thinking a different way about the case because you have
told us something that you think.
Mr. Roberts. The argument hasn't shifted. There are a
number of reasons why my answering such questions, I think, is
inappropriate. The last one was one that Justice Kennedy
recently discussed in his address at the University of Virginia
Law School.
He says because as a judge when you are called upon to make
a decision, you go through an entirely different process. I
think that is one reason nominees should be put in that
position.
The other reason, because it is an effort to obtain a
forecast or a hint about how they are going to rule, and that,
President Lincoln said long ago, is not something nominees
should answer. And that is a line, as I said, that Justice
Ginsburg followed. And another reason is, as I said, it
distorts the process.
Senator Schumer. So every nominee who has been here before
us and answered questions more directly and forthrightly than
you on these things has contributed to distorting the process,
including some of your potential future colleagues who will sit
on the bench in the D.C. Circuit, including some Supreme Court
nominees?
Chairman Hatch. Senator, with all due respect, I don't know
anybody who has answered these questions that has come before
the Committee in 27 years. What you are asking is way beyond--I
mean, you have a right to ask whatever you want to.
Senator Schumer. Your own colleagues, sir, asked those same
questions of Paez, Berzon and others.
Chairman Hatch. And I made the comment to my colleagues
that any Senator on this Committee can ask any question he
wants, no matter how stupid it is.
Now, to make a long story short, I have given you more time
than anybody else on this Committee and frankly I don't think
we are getting anywhere. I don't blame him. I would find fault
if he did answer those questions, and I think so would a whole
bunch of others.
I found fault with people on our side who tried to ask the
same type of questions. In fact, I criticized one Senator, in
particular, and it was embarrassing to do it. I didn't like
doing it, but I just felt it was way out of line.
Now, look, you have a right to ask these questions. He has
given, I think, very articulate answers that I would respect in
anybody because he is nominated for one of the most important
courts in the country. And I don't blame any nominee that comes
before this Committee for not wanting to put themselves in a
position where somebody can misconstrue what they have said
here in Committee, when they have to make decisions later.
I don't know anybody, including Democrat nominees for the
Supreme Court and other Democrat nominees, who have had to
answer these types of questions other than the way he has
answered them, and I think that he has answered them fairly.
But, Senator, you have now had 35 minutes and I think you
are beating it to death, is my point.
Senator Schumer. May I say this, Mr. Chairman?
Chairman Hatch. Yes. I respect you and I don't want to
mischaracterize, but I think you are beating it to death.
Senator Schumer. What I would say is this: If you are
correct, then we ought not have these hearings.
Chairman Hatch. Heavens, no. There have been all kinds of
revelations in this--
Senator Schumer. We ought to find out the resumes of each
person. We ought to then have some detectives and see if they
have broken little rules here and there, but we ought not have
these hearings because--
Chairman Hatch. Senator, if you are right, then we ought to
get the secret police to examine every aspect of everybody's
lives that come before the Committee.
Senator Schumer. No, no, just the opposite, just the
opposite.
Chairman Hatch. That is what you seem to be saying.
Senator Schumer. Orrin, what I am saying is those things
shouldn't matter, and they have mattered in the past because
they were a kabuki game for what people really wanted to know,
which is the questions that I am asking. And I would just say
to you--
Chairman Hatch. Senator--
Senator Schumer. I would like to finish.
Chairman Hatch. Go ahead.
Senator Schumer. I would like to say to you that if refusal
to answer questions like this will become the norm, then we
have done real damage to the advise and consent process and to
the Constitution. And I know you disagree.
Chairman Hatch. I do violently disagree.
Senator Schumer. But that is the bottom line.
Mr. Roberts, I just want to conclude. I think you are a
fine person. I think you are a good lawyer, an excellent
lawyer, far better than I would ever be. But I guess my hope is
that you are in a difficult position right here, given the
circumstances as things have occurred, because I think you
should have been more direct in answer to these questions for
the good of the process.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Schumer.
I think Senator Schumer has the right to say whatever he
says and ask any questions he wants. And you have certainly the
right to answer them the way you want to, as well, and I think
you have answered them very appropriately. In fact, you have
gone beyond the pale.
Now, let me just also say that I would like to note that we
on the Republican side did not receive a copy of Professor
Gillers' letter until 9:30 this morning. So we have only just
read over it, and very cursorily at that. But let me say that I
don't personally--and I don't think anybody on our side--
consider Professor Gillers the definitive word on this,
especially when you consider the nominees whom this Committee
has confirmed who refused to answer similar questions.
Senator Schumer. Mr. Chairman, we gave you that letter.
Chairman Hatch. I am not griping about it. I am just saying
we didn't have enough time to really look at it. But I
certainly would not call him the definitive last word. I have
seen him give letters; whatever you want, he gives them to you.
I am not talking about you, in particular, but on the Democrat
side.
Senator Schumer. I just want the record to show that the
minority was given this letter on the last day we voted on the
Roberts nomination, which was about 2 months ago.
Chairman Hatch. Not that I know of. My understanding is
that Mr. Roberts got this letter via voice mail, left for you
around 8:00 p.m. last night.
Now, let me give you some examples. I think it is important
to set this record straight.
In 1967, during his confirmation hearing for the Supreme
Court, Justice Thurgood Marshall responded to a question about
the Fifth Amendment by stating, ``I do not think you want me to
be in a position of giving you a statement on the Fifth
Amendment and then, if I am confirmed, sit on the Court and
when a Fifth Amendment case comes up, I will have to disqualify
myself.''
Now, you have said it more articulately than that. But, in
essence, that is what your answers have been, at least some of
them.
During Justice Sandra Day O'Connor's confirmation hearing,
the Senator from Massachusetts, Senator Kennedy, the former
Chairman of the Judiciary Committee, defended her refusal to
discuss her views on abortion. He said, quote, ``It is
offensive''--this is Senator Kennedy--``for a Republican
nominee''--he said ``It is offensive to suggest that a
potential Justice of the Supreme Court must pass some presumed
test of judicial philosophy. It is even more offensive to
suggest that a potential Justice must pass the litmus test of
any single-issue interest group,'' unquote. Now, that is
Senator Kennedy.
Likewise, Justice John Paul Stevens testified during his
confirmation hearing, quote, ``I really don't think I should
discuss this subject generally, Senator. I don't mean to be
unresponsive, but in all candor I must say that there have been
many times in my experience in the last 5 years where I found
that my first reaction to a problem was not the same as the
reaction I had when I had the responsibility of decisions. And
I think that if I were to make comments that were not carefully
thought through, they might be given significance they really
did not merit,'' unquote.
Pretty much what you have said, because until you get the
briefs and the arguments and you see everything involved, it is
pretty hard to give opinions in advance, no matter how good you
are, and you are good. And I think anybody with brains would
say you are one of the best people that has ever come before
this Committee.
Justice Ruth Bader Ginsburg also declined to answer certain
questions, stating--I am just giving you a few illustrations; I
could give you hundreds of them--quote, ``Because I am and hope
to continue to be a judge, it would be wrong for me to say or
to preview in this legislative chamber how I would cast my vote
on questions the Supreme Court may be called upon to decide.
Were I to rehearse here what I would say and how I would reason
on such questions, I would act injudiciously.''
I would have trouble with you if you answered some of those
questions.
In addition, Justice Ginsburg just last year said in
dissent in the case of Republican Party of Minnesota v. White,
which is cited by Professor Gillers, by the way, quote, ``In
the context of the Federal system, how a prospective nominee
for the bench would resolve particular contentious issues would
certainly be''--quote within a quote--'of interest'--unquote
within a quote--``to the President and the Senate. But in
accord with a longstanding norm, every member of this Court
declined to furnish such information to the Senate, and
presumably to the President as well,'' precisely what you have
said here.
Now, all of these questions have one thing in common. They
are designed to force the nominee to disclose his personal
views on hot-button social or other issues. This is
inappropriate, in my view, at least, and I think has always
been, in this Committee's view, as evidenced by Senator
Kennedy's remarks in protecting Sandra Day O'Connor, a
Republican nominee, something for which he deserves credit.
I think it is inappropriate because a good judge will
follow the law, regardless of his or her personal views. And
you have made that very clear throughout your testimony not
only today, but in the 12-hour marathon we had before, where I
admit you weren't asked an awful lot of questions. You were
asked plenty, but not as much as our colleagues wanted. That is
why we are having this second hearing.
Discussion of a nominee's personal views, I think, can lead
to an appearance of bias and I think that is improper. It is
just another attempt in my book to change the ground rules of
the confirmation process.
Now, look, I have a lot of respect for Senator Schumer. We
are good friends. He is a smart lawyer. He is very sincere. He
comes to these meetings and he asks questions. Most of them, I
believe, are very intelligent questions. Some, I totally
disagree with. Some, I think, are dumb-ass questions, between
you and me. I am not kidding you.
[Laughter.]
Chairman Hatch. I mean, as much as I love and respect you,
I just think that is true.
Senator Schumer. Would the Senator like to revise and
extend his remarks?
Chairman Hatch. No. I am going to keep it exactly the way
it is. I mean, I hate to say it. I feel badly saying it,
between you and me, but I do know dumb-ass questions when I see
dumb-ass questions.
[Laughter.]
Chairman Hatch. I do want to note that Professor Gillers'
letter is dated February 26 of this year. So I was wrong in my
comments earlier as well, so I want to make that point.
Senator Schumer. I would say you were acting in a DA way by
doing that.
Chairman Hatch. Senator Schumer and I are going to be
friends, no matter what, because I am going to force him to
like me, I just want you to know.
Senator Schumer. You have done a very good job this
morning, Mr. Chairman.
Chairman Hatch. Just like he tried to force you to screw up
here and make a terrible mistake.
I do care for him and I care for everybody on this
Committee. I have to admit I get very disturbed by some of the
things that go on here. This Committee is one of the most
partisan committees, one of the most partisan institutions I
have ever belonged to. I would like it to be less partisan; I
would like it to work. I would like us to be fair to witnesses.
Admittedly, some on my side were unfair, not many, but some
were unfair from time to time. I didn't like it any better then
than I do now and I am doing my best to do something about it.
Let me just say, in conclusion on this hearing, I have seen
an awful lot of witnesses who have been nominees for Federal
judgeships come before this Committee and I venture to say that
I am not sure I have ever seen one who has been any better than
you.
I understand why you are held in such high esteem by I
think every Justice on the Supreme Court. I have chatted with a
number of them. Some have ventured to say to me that you are
one of the two top appellate advocates in the country. That is
high praise indeed. I have had other judges say what a fine
person you are and what a terrific lawyer you are.
I expect you, when you get on the Circuit Court of Appeals
for the District of Columbia--and I think you will have
bipartisan support to get there; I would hope so. But I expect
you to become one of the premiere judges in this country. You
have what it takes to do it. You have tremendous capacity and
ability, and anybody with any brains can recognize it.
Anybody with any sense of fairness is going to vote for
you, and I intend to see that votes occur in accordance with
our agreement. So we will put you on the Committee markup
tomorrow morning. You will not come up in Committee tomorrow
because I have agreed to at least put you over until the next
Thursday, and we will vote on you Thursday from tomorrow.
Then, assuming you come out of the Committee--and I think
that is a given; you had bipartisan support last time and I
expect it to even increase--then within a week, according to my
friends on the other side, you should have a vote on the floor.
I want to accommodate my friends as much as I can, and I
want to compliment them for agreeing to this and agreeing to
Justice Cook's vote up and down on the floor and for agreeing
to Jeffrey Sutton's vote. It wasn't easy for some on the other
side who really feel very deeply about these issues, as does my
friend from New York. But I am grateful to them.
And I am grateful to you for the patience that you have had
during this hearing and during the other hearing, because you
sat there for 12 solid hours. Frankly, I have to just show
tremendous respect for you. You deserve it, and I hope that we
can have this all work out just the way I have announced it,
the way we have agreed.
I think the Circuit Court of Appeals for the District of
Columbia, and perhaps many, many other courts in this country
will benefit from having a person of your stature and your
ability on the court.
So with that, we are grateful that we have had this second
hearing. I want you to get your written answers back as soon as
you possibly can. We expect all questions to be in by Friday.
We would love you to have them back as soon as you can because
next Thursday you are going to be voted upon and I would like
my colleagues to have the benefit of having your answers to
their questions.
With that, we are going to allow you and your family to go.
We really appreciate your being here for so long and your
patience in being before the Committee.
Mr. Roberts. Thank you very much, Mr. Chairman.
Chairman Hatch. Thank you.
Now, I am supposed to be at another meeting at 12:30, but I
think what we will do is try to conclude with the other three
witnesses. If you will all come forward, we will conclude.
If you three will raise your hands, do you solemnly swear
to tell the truth, the whole truth and nothing but the truth,
so help you God?
Mr. Campbell. I do.
Mr. Hicks. Yes.
Mr. Moschella. I do.
Chairman Hatch. We are sorry you had to wait until now, but
as you can see, we go by the various courts involved. We are
grateful to have all three of you here. We are grateful to have
your families here.
I think what we will do is we will start with you, Mr.
Campbell. Do you care to make any statement? We would like you
to introduce your family. I know a lot about you. I had a very
high regard for you even before you got here. The distinguished
Senators from Arizona have certainly spoken very highly of you,
as well. Senator Kyl is a strong supporter and I am sure
Senator McCain is as well.
Would you like to introduce your family or make any
statement you would care to make?
STATEMENT OF DAVID G. CAMPBELL, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF ARIZONA
Mr. Campbell. I have no opening statement, Mr. Chairman,
but I would extend my thanks to you for holding the hearing
today. I would like to introduce my wife, Stacey Sweet
Campbell, of 25 years, who is here.
Chairman Hatch. If you would stand?
[Ms. Campbell stood.]
Mr. Campbell. My daughter, Jenny, one of our five children
who was able to make it with us.
Chairman Hatch. Jenny.
Mr. Campbell. We also have with us today Chief Judge
Stephen M. McNamee, of the United States District Court for the
District of Arizona.
Chairman Hatch. We are honored to have you here, Judge.
Mr. Campbell. We appreciate having him here.
[The biographical information of Mr. Campbell follows:]
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Chairman Hatch. Well, thank you.
Mr. Hicks?
STATEMENT OF S. MAURICE HICKS, JR., NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF LOUISIANA
Mr. Hicks. Thank you again for the opportunity to appear. I
am most honored and most humbled by the President's nomination
and the opportunity to have gotten this far in the process.
Like Mr. Campbell, I too have no opening statement, but
would like to take the opportunity to introduce my family and
some of my long-term lawyer friends from Shreveport and others
who have traveled here for this purpose, if I might.
Chairman Hatch. Thank you very much.
Mr. Hicks. First is my wife, Glynda. Will you stand?
[Ms. Hicks stood.]
Mr. Hicks. Next to her is my son, Tyler; and Charles
Salley, who was the first lawyer that I worked under 25 years
ago; and my other family members seated immediately behind
them, daughters Christy and Whitney; my law partner Mike
Hubley, and a rather surprise guest, Chief Judge Richard Haik,
of the Western District of Louisiana, based in Lafayette.
[The biographical information of Mr. Hicks follows:]
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Chairman Hatch. Judge, we are grateful to have you here. We
are grateful to have all your family members here. It means a
lot to us. We appreciate having you here. Thank you.
Mr. Moschella?
STATEMENT OF WILLIAM EMIL MOSCHELLA, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF
JUSTICE
Mr. Moschella. Mr. Chairman, thank you for the opportunity
to appear today. I would like to introduce my family as well. I
am accompanied by my wife, Amy; our two children, Emily and
Matthew, 6 and 2, and my father, Emil Moschella, and my mother,
Ellen Moschella.
Chairman Hatch. We are so happy to have you all here.
Mr. Moschella. My brothers, Edward, Michael and
Christopher, all here with me in spirit.
[The biographical information of Mr. Moschella follows:]
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Chairman Hatch. Well, you have to be very proud of your son
and your husband. We are proud of him, as well, and this is a
very, very important position. I have heard so many good things
about you that I think stands you in good stead with regard to
this position.
Let me just take a few questions because I have high
respect for all of you. I know you and I don't think we need to
take too long, but let me start with you, Mr. Campbell.
Under what circumstances do you believe it appropriate for
a Federal court to declare a statute enacted by Congress
unconstitutional?
Mr. Campbell. Your Honor--or pardon me, Mr. Chairman, any
statute comes to a court with a presumption of
constitutionality, and I believe a Federal judge should accord
it that kind of respect. Certainly, at the district court
level, any judge approaching a question of constitutionality
would be obligated to apply the Constitution as it is written
and the precedent of the Supreme Court, or in my case the Ninth
Circuit. But it should happen rarely and reluctantly, in my
opinion.
Chairman Hatch. Mr. Hicks, do you disagree with that?
Mr. Hicks. I don't disagree with that. I have been involved
in only one constitutional issue in my years of practice and I
can tell you that with respect to that particular issue
presented early on in my career, good lawyers with good briefs,
good arguments and good information and evidence presented to
the judge assist the judge in making those kinds of decisions.
I would agree that there is a measure of restraint and a
presumption of constitutionality that apply in considering
that. However, it is the exercise of the ultimate power of a
sitting Federal judge to uphold or overturn a particular act of
Congress, and it should be done so only after extensive
briefing and clear and convincing evidence of its
unconstitutionality.
Chairman Hatch. Well, thank you.
Mr. Moschella, Lee Rawls, former Assistant Attorney General
for Legislative Affairs under the first President Bush, and who
we are now fortunate enough to have in the Senate on the staff
of our Majority Leader, stated that he had two clear missions:
to make sure that Congress and the staff get prompt and
relevant information, and to make sure that the Department of
Justice speaks with a unified and single voice.
Do you agree with Mr. Rawls' formulation of the role of the
Office of Legislative Affairs, and what do you envision as the
mission of that office?
Mr. Moschella. Well, Mr. Chairman, I absolutely agree with
Mr. Rawls, and you are fortunate to have him back in the
Senate. I was sitting and continue to sit where your staff sits
today, and getting information for Members of Congress is
absolutely critical. You need it in your oversight function,
you need it in your legislative function. You can't make
intelligent decisions without information, and so I will make
it, if confirmed, a top priority.
And with regard to the other issue that Mr. Rawls testified
to, I reviewed that testimony and I wholeheartedly agree with
it.
Chairman Hatch. Thank you.
Now, let's go to you, Mr. Hicks. In general, Supreme Court
precedents are binding on all lower Federal courts, as you
know, and circuit court precedents are binding on the district
courts as well certainly within that particular circuit.
Now, are you committed to following the precedents of the
higher courts faithfully and giving them full force and effect
even if you have personal disagreements with them?
Mr. Hicks. Yes, Mr. Chairman. One of the things in jury
trials that a judge instructs, whether it is a 6-person or a
12-person jury, is to put aside personal feelings with respect
to a particular law in order to decide the facts of the case.
In bench trials, we follow what the precedents and what the
law as given to us are, and that is part of the role of the
judge in doing precisely that. Personal opinion versus the rule
of law--personal opinion doesn't enter into it. The rule of law
in this country is paramount and I would have a sworn duty to
uphold that.
Chairman Hatch. Thank you.
Mr. Campbell, what would you do if you believed the Supreme
Court had erred, or the Court of Appeals had seriously erred in
rendering a decision? Would you nevertheless apply the decision
or your own best judgment on the merits?
Mr. Campbell. I would apply the decision, Mr. Chairman.
Chairman Hatch. Regardless of whether you completely
disagreed with that decision?
Mr. Campbell. That is correct.
Chairman Hatch. Do you feel the same way, Mr. Hicks?
Mr. Hicks. I do indeed, Mr. Chairman.
Chairman Hatch. Now, if there were no controlling precedent
dispositively concluding an issue with which you were presented
in your circuit, what sources would you apply for persuasive
authority, Mr. Hicks?
Mr. Hicks. As I understand the task of an Article III
sitting Federal judge, I am given two law clerks, a courtroom
deputy and a secretary, and my clerks will work very hard at my
behest in researching everything that needs to be dug out. I
can tell you that even after 25 years of practice, I enjoy
doing personal research on particular issues.
In cases of first impression or certain res nova issues, it
is incumbent on me, as well as my staff, to do detailed
research, to require good arguments and thorough briefing by
the parties involved, in order for me, sitting as a judge, to
make the best judgment call I can make in responding to that
new issue or a case of first impression.
Chairman Hatch. Thank you.
Do you have any disagreement with that, Mr. Campbell?
Mr. Campbell. I do not, Mr. Chairman.
Chairman Hatch. Well, you two have come to us very highly
recommended. I have no doubt that you will both make terrific
judges, and I want to commend you both for the privilege that
you are going to have of serving on our Federal bench.
I don't think anything as seriously as the--I take
everything seriously, but I don't take anything more seriously
than I do the confirmation of judges because, to me, Congress
writes unconstitutional legislation all the time. I mean, I
have seen it year after year after year. They don't seem to
give a darn.
Certainly, I have written some stuff that I thought was
constitutional that was found not to be in some respects--the
Religious Freedom Restoration Act, the Americans with
Disabilities Act, the Violence Against Women Act. Some of those
aspects were ruled unconstitutional. I didn't particularly
agree with the Court.
But Congress is not the body that has saved this country
year after year, nor has the Executive because executives
sometimes act extra-judicially and extra-constitutionally. It
has been the courts that have really preserved the Constitution
and kept us strong. So these positions are extremely important,
and that is why, I guess, they are so hotly contested
sometimes.
It is important to have various points of view on maybe the
hot contests that do occur. On the other hand, I think we ought
to be fair. I have seen some gross unfairness with regard to
Federal judicial nominations over the last number of years and
I am really getting pretty tired of it. But I am proud of both
of you. I intend to put you through as quickly as we can, and I
can't imagine why anybody would want to vote against you.
In particular, Mr. Campbell, you are a credit to your law
school, the University of Utah. I think it is terrific that we
are now going to have another University of Utah person on the
Federal bench. We have a considerable number of them and some
of the best in the country today are University of Utah
graduates. We are looking forward to seeing Michael McConnell
do a terrific job as one of the leading constitutional experts
who was a professor at the University of Utah for years.
Mr. Moschella, let me ask you one more question. You have
served for a total of 6 years as counsel to several House
committees, including the House Committees on Government Reform
and Rules, as well as counsel and chief counsel to the House
Committee on the Judiciary.
How has that experience prepared you for leading the Office
of Legislative Affairs?
Mr. Moschella. Well, Mr. Chairman, I hope the 6 years have
taught me the importance of Congress' role, and hopefully I can
bring that to the Department of Justice. I was and am a zealous
advocate for my current client, and will be if confirmed for
the Department of Justice.
It seems to me that part of my job in being that advocate
will be to explain and convince the folks at the Department
about the importance and the role that Congress plays and the
need to be responsive and to work with you on the policies that
are important to the American people.
Chairman Hatch. Well, thank you. Now, I notice you come
from the House side. I hope you realize how important the
Senate is as well. I have the feeling you do.
We are grateful to have all of you here today, and we are
grateful that you are willing to serve and you are willing to
sacrifice, in the case certainly Mr. Campbell and Mr. Hicks,
very successful law practices to go on the Federal bench, where
you will earn less money than many of the recent law review
graduates earn.
If it was remuneration, very few people would want to serve
in the Federal courts who are good lawyers. But the reason I am
sure both of you want to serve is because it is a terrific
opportunity to serve your country and your fellow citizens.
So we are grateful to you for being willing to do that, to
make this sacrifice, and I look forward to getting you both
through as quickly as possible. And, Mr. Moschella, I look
forward to getting you through as well. We are very proud of
you and we know your reputation and we know how good it is and
we think the Justice Department is going to be well served by
you.
So with that, we will recess until further notice.
[Whereupon, at 12:43 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF CONSUELO MARIA CALLAHAN, OF CALIFORNIA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE NINTH CIRCUIT; MICHAEL CHERTOFF, OF NEW JERSEY,
NOMINEE TO BE CIRCUIT JUDGE FOR THE THIRD CIRCUIT; AND L. SCOTT
COOGLER, OF ALABAMA, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF ALABAMA
----------
WEDNESDAY, MAY 7, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:39 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Kyl, Sessions, Craig, Chambliss,
Cornyn, Leahy, Kennedy, Feinstein, Feingold, and Durbin.
Chairman Hatch. We will call this Committee to order, and
rather than give our opening statements at this time, we will
wait for Senator Leahy, but I understand the distinguish
Chairman of the Banking Committee has a hearing this morning,
and we are going to turn to you first, Senator Shelby, and then
we will go right across.
PRESENTATION OF L. SCOTT COOGLER, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. RICHARD SHELBY, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Thank you, Mr. Chairman. I appreciate this.
I would ask that my entire statement regarding the
nomination of Scott Coogler to be the United States District
Court Judge for the Northern District of Alabama be made part
of the record in its entirety.
Chairman Hatch. Without objection.
Senator Shelby. And, Mr. Chairman, I will be brief.
I am honored to be here before the Committee, and I
appreciate your consideration, realizing we have a very
important Banking Committee starting at 10 o'clock.
Scott Coogler is a sitting circuit judge, a trial judge, in
my home town of Tuscaloosa, Alabama, where he has distinguished
himself as a judge. But before that, he distinguished himself
as an attorney and a community leader. He is here today with
his wife, Mitzi, and his three children Carlson, Hannah, and
Allie. I wish they would stand.
Chairman Hatch. We welcome all of you.
Senator Shelby. We are proud of him. We are proud of the
work he has done. And, Mr. Chairman, I believe he will make an
outstanding Federal district judge for the Northern District of
Alabama. I endorse his nomination without any reservation, and
I hope that the Committee will hold an expeditious markup and
reporting to the floor of the Senate.
I appreciate your consideration today, and I know you will
do this. And if you will excuse me, I have got to go to the
other committee.
Chairman Hatch. Thank you, Senator. You are excused, and we
appreciate you taking the time.
Senator Shelby. Thank you, Mr. Chairman.
Chairman Hatch. And I think it is great for you to take
time to come and support the judge.
[The prepared statement of Senator Shelby appears as a
submission for the record.]
Chairman Hatch. Senator Boxer, we will turn to you next,
and then we will go to Senator Corzine, then to Senator
Lautenberg.
PRESENTATION OF CONSUELO MARIA CALLAHAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. BARBARA BOXER, A U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you, Chairman Hatch and members of the
Committee, for allowing me this honor of introducing to you
Judge Consuelo ``Connie'' Callahan, the nominee for the Ninth
Circuit Court of Appeal. I would ask her to stand so you can
see here.
Judge Callahan is a native of California, born in Palo
Alto. She is a graduate of Stanford University and the McGeorge
School of Law at the University of the Pacific. She was the
first female and the first Hispanic judge to sit on the San
Joaquin County Superior Court. Judge Callahan is joined today
by her husband, Randy, and, Mr. Chairman, with your permission,
I would ask Judge Callahan's husband, Randy, to stand.
Chairman Hatch. We are happy to welcome you here.
Senator Boxer. And I wanted you to know that our nominee
has two grown children, who I know are so proud of their
mother. The children couldn't be here, but Connie's best
friend's son, Will, is here to lend his support, if he would
like to stand.
Chairman Hatch. Happy to have you here.
Senator Boxer. I enjoyed very much my visit with Judge
Callahan yesterday in my office. We talked at length about her
life, her accomplishments, her extensive community involvement
in California.
I would ask unanimous consent that the remainder of my
statement be placed in the record, but I would like to just
tell you a little bit about our conversation.
I think what I was most pleased with is that Judge Callahan
understands what a role model she is and that she has taken so
much time out of her busy schedule to spend time with young
people in schools. And she goes to those schools often, and
what they have done there is to conduct trials in the schools
and encourage the students to study the details of the court
cases. She is reaching out to generations of Americans, and I
always think for our democracy that is very, very key. We need
to encourage participation and interest in civic life,
including the judicial process.
She has worked hard to protect children in the area of
child abuse, and she has received public recognition, and as
you know, Mr. Chairman--you have worked with me on this,
Senator Biden has as well--protecting children is very
important to me.
She is a former board member and president of the San
Joaquin County Child Abuse Prevention Center, so I applaud her
involvement in all of these community issues. I am pleased to
introduce her to you, and I am really looking forward to
reading the record, hearing her answer the questions, but I am
very optimistic about this fine choice.
Chairman Hatch. Well, thank you, Senator Boxer. We are
pleased to have you here and honored to have you here and very
pleased that you have given such good recommendations here
today.
Senator Boxer. Thank you.
Chairman Hatch. Thank you for coming.
Senator Corzine, we will go to you and then Senator
Lautenberg.
Senator Corzine. Mr. Chairman, if you wouldn't object, I
would defer to Senator Lautenberg. We have this tit-for-tat
question about senior Senator.
Chairman Hatch. Well, I worried about that, too, because he
actually has more years than you do.
Senator Corzine. Respect is far more important.
Chairman Hatch. Well, that will be fine, and I think it is
very gracious, and, Senator Lautenberg, you should remember
that.
PRESENTATION OF MICHAEL CHERTOFF, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT, BY HON. FRANK LAUTENBERG, A U.S. SENATOR
FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thank you very much. That is a very
gracious thing for one Senator to give another his time. Wow,
we don't usually see that around here.
Chairman Hatch. That is right. I remember the old days.
Senator Lautenberg. There was constant deference, Mr.
Chairman. That is why it was a little hard to get some things
done.
[Laughter.]
Senator Lautenberg. In any event, Senator Corzine is a good
friend and I really appreciate it. I have a hearing now that I
have got to go to, and I want to thank you and our ranking
member, Pat Leahy, for holding this hearing on the nomination
of Michael Chertoff to be the circuit court judge for the Third
Circuit, and he is here with his wife, Meryl, and his son and
daughter. And if they would all stand up, you can see what a
nice family back-up Michael Chertoff has.
Chairman Hatch. Really happy to have you all here.
Senator Lautenberg. Thank you very much. It is hard to
understand that Michael can be so aggressive in his pursuit of
the law with such a beautiful family.
Chairman Hatch. It is kind of amazing, isn't it?
Senator Lautenberg. But I am pleased that President Bush
has selected a distinguished New Jerseyan for this important
seat on the court of appeals.
Michael Chertoff is a highly intelligent, competent lawyer.
I have known him for a long time. As a matter of fact, we
shared space in the same building in my first term in the
Senate. He has compiled a long and impressive record of
accomplishments in both the public and private sector. He
distinguished himself academically as an undergraduate at
Harvard University and also as a law student at Harvard.
From 1979 to 1980, he clerked for the U.S. Supreme Court
Justice William J. Brennan, Jr., before taking a job as an
Assistant U.S. Attorney in New York. As U.S. Attorney for the
District of New Jersey from 1990 to 1994, Michael Chertoff
aggressively tackled organized crime, public corruption, health
care and bank fraud, and he also played a critical role in
helping the New Jersey State Legislature investigate something
called racial profiling, an ugly episode that came about. And I
introduced the first bill in the Senate to ban racial
profiling, and I am grateful to Mr. Chertoff for the interest
he took in this matter at the State level.
The Third Circuit is one of the most impressive courts in
the country, and based on past performance, I am confident that
Mr. Chertoff will fit right in.
As you know, Mr. Chairman, sometimes I have a question
about a nominee, but the fact is that there are so many
qualified lawyers that President Bush can and has nominated for
different circuits who enjoy broad support in the Senate, and
Mr. Chertoff certainly is one such candidate.
So I thank you, Mr. Chairman, and I look forward to working
with you, the other Committee members, and the rest of the
Senate to get Michael Chertoff confirmed as quickly as
possible. We need him. He is ready to do the job.
Chairman Hatch. Well, thank you, Senator Lautenberg. That
is high praise indeed, and we are so glad to have you back in
the Senate.
Senator Lautenberg. Thank you.
Chairman Hatch. We look forward to continuing to work with
you on these issues, and we are very proud of your colleague as
well. We will excuse you. We know you have a Committee meeting.
Senator Lautenberg. Thank you.
Chairman Hatch. Senator Corzine, we are going to go to you,
and then I am going to go to Senator Feinstein afterwards,
after Senator Corzine. Then I will make my statement.
PRESENTATION OF MICHAEL CHERTOFF, NOMINEE TO BE CIRCUIT JUDGE
FOR THE THIRD CIRCUIT, BY HON. JON CORZINE, A U.S. SENATOR FROM
THE STATE OF NEW JERSEY
Senator Corzine. Thank you, Mr. Chairman. Members of the
Committee, it is a pleasure for me to be here, as Senator
Lautenberg, to introduce Michael Chertoff. I think he is one of
the terrific people of my State and of the Nation, served our
Nation well already in many, many roles. I sometimes think I
should recuse myself because he is also a personal friend. I
believe very much in both the quality and character of the man.
I welcome his family as well.
Senator Lautenberg reviewed some of the ways that he has
served our State and Nation extraordinarily ably, and I think
he will do the same as a circuit judge in the important Third
Circuit.
Impeccable credentials, whether it is the editor of law
review, Supreme Court law clerk, U.S. Attorney, or Assistant
Attorney General for criminal matters at the Justice
Department, in every job he has taken on his role with great
professionalism and excellence, and I am sure he will do so on
the bench.
Many of us consider him New Jersey's ``lawyer laureate.'' I
will agree with that label that a number of our newspapers have
placed him under. But I do want to acknowledge--and I think it
is important in the context of sometimes the debates we have
with regard to judges--that you can actually support and be
very enthusiastic about the nomination of someone to the bench
who you don't always agree with on all issues. And that is
certainly the case with Mr. Chertoff. But his temperament and
his commitment to precedent and his character in my mind suit
well the role of an appellate judge, and I am just honored to
further place his name before the Committee and ultimately in
front of the Senate floor.
So I think I will leave my full statement to be placed in
the record, but let it be known that this Senator thinks this
is one of the finest lawyers and one of the finest legal minds
we have in the country.
Chairman Hatch. Well, thank you, Senator Corzine. That is
high praise, and we are honored to have you here to give this
statement. I share all of your feelings with regard to Michael
Chertoff and I think almost all of us do. In fact, I hope all
of us do in the Senate because of the great service he has
given. But thank you for taking time to be with us today. I
appreciate it.
Senator Feinstein, we will go to you, and then we will go
to Senator Sessions, and then I will give my statement.
PRESENTATION OF CONSUELO MARIA CALLAHAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT, BY HON. DIANNE FEINSTEIN, A U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
know that Senator Boxer has already introduced Consuelo
``Connie'' Callahan, so I am going to be very brief.
As you well know, she currently serves in the California
State court system as an appellate judge on the State's Third
District Court of Appeals. That is located in Sacramento. I
think she is incredibly uncontroversial for someone coming out
of our State. I always seem to see the controversy surrounding
an individual. There is none here. She was born in Palo Alto.
She grew up in my home area, the San Francisco Bay area. She
actually attended my alma mater, Stanford. She was graduated
with honors. She then attended the University of the Pacific,
McGeorge School of Law. She has essentially spent a good deal
of time as a government lawyer, a city attorney for the city of
Stockton, then joined the San Joaquin district attorney's
office as a deputy D.A. In that office, she established the
county's first Child Abuse and Sexual Assault Unit. She has
personally handled over 50 jury trials during her tenure as a
prosecutor.
In 1986, she became a commissioner of the Stockton
Municipal Court, and 6 years later she was appointed to the San
Joaquin County Superior Court. In 1996, she was elevated to the
State Court of Appeal where she has served since.
All ten justices who serve with Justice Callahan in the
Third Appellate District have written in support of her
nomination. She is qualified. They say she has the integrity,
the capacity, the congeniality, and the diligence to serve with
distinction on the Ninth Circuit, and I would ask that my full
remarks be entered into the record.
Chairman Hatch. Without objection, we will put your full
remarks in. We appreciate that.
Senator Feinstein. Thanks very much.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Chairman Hatch. Senator Sessions, we will turn to you.
PRESENTATION OF L. SCOTT COOGLER, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ALABAMA, BY HON. JEFF SESSIONS, A
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I would just
like to briefly comment on Mr. Chertoff's nomination. I had the
honor of serving with him in President Bush's administration as
United States Attorney. He had a reputation then and maintains
it as one of the most effective lawyers in the Department of
Justice. He took on challenging criminal cases in that
district, from organized crime to public corruption, obtained
convictions of Mafia members and powerful politicians. He was a
fearless and skilled prosecutor of great integrity, and, of
course, he has continued that record of achievement at the
Criminal Division of the Department of Justice now where he
spearheaded some of America's most important law enforcement
priorities of our time. He has testified before this Committee
with great skill, and there is just no doubt about it that
people in the know about the Department of Justice over the
last 20 years, they would rank Michael Chertoff as one of the
best lawyers to have served in that body and that institution.
That is a high compliment. His record backs that up, and I
think it is great that he has been nominated.
Mr. Chairman, I want to mention the superb nominee from
Alabama, Scott Coogler, Judge Scott Coogler. He has the
academic background, legal competence, and judicial temperament
necessary for service on the bench he demonstrated during his 4
years as a State judge on the Alabama Sixth Judicial Circuit in
Tuscaloosa County. By all accounts, he has served with
distinction and garnered the respect of all the attorneys
practicing in that area.
He has received his bachelor's degree with honors from the
University of Alabama. In 1984, he graduated from the
University of Alabama School of Law, finishing in the top of
his class. He clearly has the intellect to serve on the bench.
He practiced law for close to 15 years, which I think is an
important attribute of a good judge. He had a broad base of
clients, handling civil and criminal issues. He understands the
courtroom as a litigant, tried many cases to a verdict as a
trial lawyer as an associate and chief and sole counsel on
important cases. He has learned how participants in lawsuits
should be treated.
In 1999, he joined the State bench. He has shown that he
adheres to the rule of law. He is not affected by politics. I
talked to a lot of lawyers in the Tuscaloosa area who practice
before him. They are very impressed with Judge Coogler. Defense
lawyers who thought, well, he had done a lot of plaintiff work,
they were a little nervous. They found that he treats people
fairly, plaintiffs and defendants, criminal lawyers and
prosecutors. They told me they do not win all the time in
court, but they believe he is a straight shooter who follows
the law. I certainly agree with that and am supportive of him.
His public service extends beyond the courtroom. From 1988
to 1991, he served as a captain in the Judge Advocate General
in the Alabama Army National Guard, and he has done more than
his share of community service. He served as president of the
University of Alabama Law Enforcement Academy Alumni
Association, director of the Tuscaloosa Boys and Girls Club
since 1999, director since 2000 of a group called FOCUS on
Senior Citizens, which aids seniors in remaining independent
and active. In addition, he served as the director for Miracle
Riders, a program in which mentally and physically disabled
children are taught how to ride and care for a horse.
This is a man who has deep connections to his community,
high values and high ideals, a proven record of legal
competence and integrity. I think he is a great nominee, Mr.
Chairman, and I am pleased the President has submitted his
name.
Chairman Hatch. Well, thank you, Senator.
Senator Sessions. I also would note, Mr. Chairman, he was
rated unanimously well qualified, the highest possible rating
by the American Bar Association.
Chairman Hatch. Thank you, Senator. That is great praise,
as far as I am concerned.
I wonder if we can have all three of you nominees come to
the table, and we will swear you all in, if you will remain
standing. Please raise your right arms. Do you solemnly swear
to tell the truth, the whole truth, and nothing but the truth,
so help you God?
Mr. Chertoff. I do.
Justice Callahan. I do.
Judge Coogler. I do.
Chairman Hatch. Please take your seats. Normally we would
take the two circuit court nominees first, but we are going to
put all three of you at the table so that we can move
expeditiously.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Let me just say that Consuelo Callahan, our
nominee for the Ninth Circuit, has had an exemplary legal
career in California as a successful prosecutor and an esteemed
jurist, as has been said by her Senators. During her 10-year
career as a prosecutor, she has handled more than 50 jury
trials. She also has firsthand experience with breaking the
gender barrier. In 1992, she was appointed to the Superior
Court of San Joaquin County, where she was the first female and
Hispanic to serve on that court. She was also the first female
member of the two local social and service organizations. In
1996, Justice Callahan became the first judge from San Joaquin
County to be elevated to the California Court of Appeals in
more than 73 years. The ten justices that serve with her on the
Third Appellate District and work with her every day sent a
letter to the Committee praising her skills as a jurist. They
write, ``Our only reservation in recommending her confirmation
is that it will mean a significant loss to our court. We will
miss Connie's energy and enthusiasm, her legal skills, and the
positive way in which she fulfills her responsibilities as an
appellate jurist.'' I will submit a copy of that letter for the
record. Now, her colleagues' loss, in my opinion, is going to
be the Federal judiciary's gain, and I have great confidence
that the beleaguered Ninth Circuit will greatly benefit from
your service there. In fact, I am counting on it.
Michael Chertoff, I can't say enough about Mike Chertoff. I
have known him for a long, long time, and his Senators, both
Democrats, have praised him very, very well, and he deserves
it. He has won high marks in every job he has ever had from
both Democrats and Republicans alike for his pro bono service
as counsel to the New Jersey State Legislature during its
investigation of racial profiling by the State police. He is a
very familiar face to all of us here in the United States
Senate as a result of his service as Assistant Attorney General
for the Criminal Division at the U.S. Department of Justice and
service in a whole wide variety of other ways.
I personally know that all of our colleagues or many of our
colleagues admire his intellect, his legal skills, and
commitment to the rule of law. I think the Bergen County Record
said it best when it endorsed Mr. Chertoff's nomination on
March 11th of this year. The paper editorialized, ``Mr.
Chertoff is exactly the type of nominee the Nation needs for
Federal judgeships,'' and then concluded, ``Mr. Chertoff is the
type of smart, non-ideological high achiever whom Presidents of
both parties should consider for the bench.'' I think that is
very high praise, and I, too, firmly believe that Mr. Chertoff
will make one of our great Federal appellate judges.
I have known you for a long time, Mike, and I think
everybody who knows you knows what a fine person you are and
what an outstanding legal mind you have. So we are just honored
that you are willing to sacrifice and go on the court where you
will make less than the average law review graduate, first year
law review graduate. But we are going to try and change that,
too. If I have my way, we are going to change that. It just
isn't right.
Our sole district court nominee is L. Scott Coogler, who
has been nominated for a seat on the Northern District of
Alabama bench. Since 1999, Judge Coogler, as our distinguished
Senator from Alabama has said, has served on the Alabama
Circuit Court, Sixth Judicial Circuit, so he brings depth and
experience to this position. Prior to that, he maintained a
successful private practice, handling a wide range of civil and
criminal litigation cases, so Judge Coogler knows firsthand the
importance of maintaining a solid judicial temperament. And I
am particularly impressed that Judge Coogler has shared his
expertise by teaching at his alma mater, the University of
Alabama Law School, despite the demands of his judicial
service.
So we welcome each of you to the Committee. We look forward
to hearing your testimony, and I think, why don't we being with
you, Mr. Chertoff, if you have any statement, and I would like
you to introduce your family again to us. And if you have a
statement, we would be pleased to take that, and then we will
go to Justice Callahan and then to Judge Coogler.
STATEMENT OF MICHAEL CHERTOFF, NOMINEE TO BE CIRCUIT JUDGE FOR
THE THIRD CIRCUIT
Mr. Chertoff. Thank you, Mr. Chairman. I do not have a
statement. I would be delighted to introduce my family again:
my wife, Meryl, and my daughter, Emily, and my son, Philip.
Stand up for a moment.
Chairman Hatch. Please stand up. I want the wife to stand,
too, so we all can see. You have got to stand, too, Mrs.
Chertoff.
Mr. Chertoff. I also want to thank you, Mr. Chairman, and
Senator Sessions and my two Senators, Senator Lautenberg and
Senator Corzine, for all of your gracious remarks. It is a
pleasure to be before the Committee.
Thank you.
Chairman Hatch. Well, they are not nearly as laudatory as I
would like them to be, and I really feel that deeply about your
service. And I think others do as well.
[The biographical information of Mr. Chertoff follows:]
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Chairman Hatch. Justice Callahan, would you introduce the
folks who are with you here?
STATEMENT OF CONSUELO MARIA CALLAHAN, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT
Justice Callahan. Thank you, Mr. Chairman. I will introduce
my family again and my husband, if they would stand, my
husband, Randy; Will Nichols, a friend of the family; and I'd
also like to introduce Ali Oromchian, who worked for me when he
was in law school and has just graduated from George Washington
with an LLM and is working in this area.
Chairman Hatch. Great. Congratulations. We are happy to
have all of you here, all the family members here. Thank you
for being here.
Justice Callahan. Thank you, Mr. Chairman, for this
opportunity, along with other Senators, to have this hearing
today, and I would similarly like to express my great gratitude
for the introductions by my home State Senators. it was a great
honor for me to be introduced by them here before this
Committee.
Chairman Hatch. Thank you.
[The biographical information of Justice Callahan follows:]
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Chairman Hatch. Judge Coogler?
STATEMENT OF L. SCOTT COOGLER, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ALABAMA
Judge Coogler. Mr. Chairman, I don't have an opening
statement, but I would like the opportunity to introduce my
family: my wife, Mitzi, if she'll stand, and my daughter,
Allie, Allison, the 5-year-old; and then beside her is Carlson,
who is my 12-year-old daughter; and my daughter, Hannah, who is
10.
Chairman Hatch. Well, I tell you, what a beautiful family
you have. We are really happy to have you all here. You all
have very nice families, and we are grateful to have them here.
[The biographical information of Judge Coogler follows:]
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Chairman Hatch. Well, to be honest with you, I know all
three of you and know your reputations, so I am not going to
ask any questions. So I will turn to Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. And let me
congratulate all of you and your families on your nominations.
I will only have questions for Mr. Chertoff, but I congratulate
all of you. And I certainly am happy to see Mr. Chertoff here.
I have been impressed with him in a lot of different contexts
and have enjoyed our work together. So I just want to ask you
some questions about some issues that you already know I care a
great deal about and I know you know a lot about.
As Assistant Attorney General for the Criminal Division,
you have had a central role in the development of the Justice
Department's anti-terrorism initiative since September 11th,
and one measure of the Department's success and one measure of
the success of all of this is the fact that we have not seen a
terrorist attack on U.S. soil since then. But some of these
initiatives have been controversial, and I would like to focus
for a moment on the PATRIOT Act.
Section 215 of the PATRIOT Act grants the FBI broad
authority to ask businesses, including libraries and
booksellers, to turn over their records on customers,
employees, or library patrons. You wanted the FBI to have that
power, but obviously you must know that since its
implementation, there has been a growing outcry from many
Americans who believe that the Government has no business
gaining access to the library, medical, travel, or financial
records of law-abiding Americans.
If you are confirmed and someone challenges the information
gathered under the PATRIOT Act as a violation of his or her
constitutional rights, what assurances can you give this
Committee and the American people that you would give fair and
impartial review to the case when you have essentially already
judged, in effect, that the PATRIOT Act is lawful?
Mr. Chertoff. Senator, first of all, it's a pleasure to
appear before you, and as you've noted, we have had the
occasion to work together in the past.
I also obviously am mindful of the fact that, although we
have been thus far successful in not having had another
terrorist attack on this country, of course, we always want to
remain vigilant lest that happen again.
I appreciate the question because it gives me the
opportunity to clarify something which I am not sure the public
is always aware of, which is the difference in the role one
plays as an advocate or as a member of the executive branch and
the role one plays as a judge. I've been privileged in my legal
career to be both a prosecutor and a defense attorney, and
sometimes in representing either the United States or in
representing private clients, I have argued for positions that
were, to some degree, diametrically opposite because that is
what I do in the service of my client or in the discharge of my
responsibility.
The role of a judge, of course, is yet a different
perspective. It is a neutral perspective in which your
obligation is to apply the law. So that I have no hesitation in
saying that, presented with any issue in which there is a legal
challenge to a statute or a regulation, I will approach it in a
neutral fashion, notwithstanding the fact that I may have
advocated as a defense attorney for a position with respect to
the statute or in some other manner during the course of my
life as an advocate.
Senator Feingold. How about specifically the fact that you
were pretty involved with the promotion of the passage of the
USA PATRIOT Act? Can you give me specific assurance that you
will be able to be impartial with regard to challenges
concerning the USA PATRIOT Act?
Mr. Chertoff. Absolutely, Senator.
Senator Feingold. Thank you, Mr. Chertoff.
If confirmed as a judge on the Third Circuit Court of
Appeals, you would be in a position to review challenges to
plea agreements entered into between defendants and the
Government in criminal cases. Recently in the Buffalo Six case
and in the John Walker Lindh case in Virginia, as part of the
plea discussions, I am told that the Department of Justice used
the threat of being declared an enemy combatant to induce the
accused to plead guilty. Now, the phrase ``enemy combatant'' is
more than just a label. If the President chooses to declare
someone an enemy combatant, it is a potential life sentence
that is imposed without a trial, without a right to counsel,
and so far without any meaningful judicial review. We have been
told that those declared to be enemy combatants pose too great
a risk to the security of the country to risk trial and
release. Yet the Government seems to be using possible enemy
combatant status as a bargaining chip. I think the Department
of Justice goes too far when it uses the threat of declaring
the accused an enemy combatant to force a plea. This is not
like using any other potential sentence or other inducement to
encourage a defendant to plead guilty. In this case if the
accused rejects a plea, he loses his rights to defend himself
in court and to prove his own innocence, because he will be
deemed to be an enemy combatant who has no rights.
How do you justify using enemy combatant status as just
another tool in the arsenal of Federal prosecutors? Do you
believe that the use of the threat of having the accused be
declared an enemy combatant if they refuse to enter a plea of
guilty violates a prosecutor's ethical obligations? In fact,
does not the commentary ABA Model Rule 3.8, on the special
responsibilities of a prosecutor, state that, quote, ``A
prosecutor has the responsibility of a minister of justice and
not simply that of an advocate?''
Mr. Chertoff. Well, I certainly agree, Senator, with that
precept, and I am obviously constrained in discussing specific
cases where there were particular plea discussions, but I'm
comfortable that I can say this about the policy of the
Department. First of all, as you correctly point out, the
decision to make someone an enemy combatant is not a decision
that occurs within the criminal justice process. It is really a
decision taken by the Defense Department, and I guess
ultimately resides in the President's authority under the war
power. It is most emphatically not a bargaining chip, and it is
not the policy of the Department to use it as a bargaining chip
or to threaten the use of enemy combatant status as a way of
leveraging a plea. It is the case that there are individuals
who have both committed criminal offenses and are also enemy
combatants, and in those circumstances, frankly, well-educated
attorneys themselves will often raise the issue or consider the
possibility of enemy combatant status as a matter they will
want to address in the course of a plea negotiation.
So in that sense, I think it is foreseeable that for some
defendants the lawyers themselves will want to have an
assurance that if there is going to be a plea, that it is going
to resolve all of the issues. And as you know, Senator, that's
common even in other contexts. For example, in securities
cases, often before there's a plea there will be some desire to
have the SEC resolve with respect to SEC matters.
So I completely agree that it is inappropriate to use it as
leverage and it is not the policy of the Department to do that.
Senator Feingold. Well, I appreciate that answer and it is
something that I wanted to have on the record, not particularly
with regard to you, of course, but to make sure that the public
is aware of this potential danger if this is used
inappropriately.
Let me talk about racial profiling because I know you have
a lot of experience on this difficult issue. Prior to your
current job you played a critical role as an adviser to the New
Jersey State Senate Judiciary Committee as it addressed the use
of racial profiling by New Jersey State Troopers. New Jersey
has been at the forefront of the Nation in addressing racial
profiling. The State troopers entered into a consent decree and
agreed to ban racial profiling. Earlier this year the State
enacted a law making racial profiling by public officials a
crime. Some of the antiterrorism initiatives conducted by the
Justice Department, however, since September 11th have been
criticized because they in effect smack of racial profiling.
For example, the decision to interview Arab and Muslim male
visitors, the roundup and detention of hundreds of mostly Arab
and Muslim males, and the FBI's directive to field offices to
count the number of Muslims and mosques have all targeted a
group of people based on their race, ethnicity or religion.
I believe that the need to ban racial profiling has not
changed since September 11th. I believe it is more important
than ever that law enforcement officials not rely on race,
ethnicity, national origin or religion as false proxies for
real intelligence, real suspicious behavior, and good
investigative work based on following real leads. One need look
no further than Zacarias Moussaoui, a French citizen, Richard
Reed, a British citizen, or Timothy McVeigh and the alleged
D.C. snipers, all U.S. citizens, to see that terrorists are not
one of race, ethnicity, national origin or religion.
So I have a few questions for you on this. What has been
your involvement in the development of Federal law enforcement
policies to target certain communities for heightened scrutiny
based on race, ethnicity or religion, and how would you
distinguish these policies from those that you actively worked
to correct in New Jersey?
Mr. Chertoff. Senator, as you point out, I have been
committed for a long time to the notion that racial profiling
is completely unacceptable in our justice system. It's
unacceptable because it's wrong. It's unacceptable also because
it is actually, as you point out, a very poor proxy for doing
real investigative work and intelligence work. And in fact, I
have been very emphatic when I speak on what we do to make it
clear that we do not as a Department pursue racial profiling.
We don't look at people's ethnic background or religion as a
proxy for determining whether they pose a threat.
You raised several initiatives. I want to deal with each in
turn very briefly. I don't generally deal with the immigration
policy issues. I don't know that I'm the correct person to
address with respect to the issue of registration of people who
are aliens, but I can speak to the first two issues.
With respect to the interviewing project, although this was
not a project I was personally involved in, my understanding is
that ethnic background or religion were not the determining
factors, that it was a series of immigration status-related
issues. For example, countries one had traveled from, nature of
visa, various characteristics which were developed based on
specific intelligence information derived from analyzing the
travel patterns of the hijackers, where Al-Qaeda had training
camps in certain countries and that things of that sort.
With respect to the issue of the pursuit of investigative
leads after 9/11 there is a misconception that the people who
were targeted were again people of a particular ethnic group.
In fact, as I recall, there was an individual named Lopez
Martinez, who was one of the original people who was
investigated and ultimately convicted for document fraud be he
had some tangential relationship with the illegal documents
which some of the hijackers used. The process in that instance
was to look at connections with hijackers, telephone links, if
a hijacker had pocket litter, for example, with an address, the
FBI would go to the address and interview the people at the
address.
As you point out, Senator, it would be counterproductive to
rely upon ethnic background as a proxy for intelligence because
some of the people we have seen who have been charted or
convicted have not been people that you might presume, based on
ethnic background, would be terrorists. Richard Reed was a
British citizen. Moussaoui I think was a French citizen. And we
would be foolish indeed if we hampered our own enforcement
efforts by relying on outmoded and incorrect stereotypes.
Senator Feingold. Let me ask you if the Federal Government
can actually play by a different set of rules than State or
local law enforcement when it comes to nondiscriminatory
enforcement of the laws. Is there a different standard for
assessing the Department of Justice's policies?
Mr. Chertoff. I'm not sure that we--we all obviously
operate under the Constitution. Certain State laws or certain
State constitutions have provisions that may be different, may
go beyond what the Federal Constitution provides, and obviously
those would be not applicable to the Federal Government.
Senator Feingold. What is the role of the Federal Courts in
protecting Americans from racial profiling by law enforcement
officials?
Mr. Chertoff. Well, I do think the Federal Government
obviously does not enforce State laws but does enforce Federal
laws, and the laws against invidious discrimination, for
example, are applied with full vigor by the Federal courts. If
the Federal courts were to find, for example, that invidious
motivation were involved in law enforcement matters, that could
result in dismissal of charges or other kinds of sanctions.
Senator Feingold. Thank you, Mr. Chertoff.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Craig first. Excuse me. Senator
Craig, excuse me. The distinguished Democrat leader is here,
and he would like to make a statement, and I would like to give
him that time.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman, and I welcome all
of the nominees.
This is the ninth hearing for judicial nominees we have had
this year. As of today the Committee will have held hearings
for 37 judicial nominees and 10 circuit court nominees. It is
interesting that we are in May. I know in 1996, of course it
was a different President, we only held six hearings. Those
hearings were for five circuit court judges, so it shows how
quickly we can act I guess with a different President, not that
there be any suggestion of partisanship there, nor is that a
question for either one of you. I will put my full statement in
the record.
Chairman Hatch. Without objection.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Leahy. But I would also note that both Judge
Callahan and Mr. Chertoff come to us with the support of their
home State Senators, and I have a great deal of respect for
them, and I think that that helps a lot. I would urge again,
knowing that this will fall on deaf ears on the other end of
Pennsylvania Avenue, but I wish the White House would spend
more time in looking for nominees where there is such a
consensus, because they can move far quicker when that happens.
I wonder, Mr. Chairman, if I could ask Mr. Chertoff a
couple questions at this point?
Chairman Hatch. Sure.
Senator Leahy. Mr. Chertoff, I am not going to ask you
questions about the racial profiling. Senator Feingold has. We
keep reading reports in the paper about a sequel to the U.S.
PATRIOT Act on review by the Executive Branch. In fact, copies
have been printed. What is the status of this bill?
Mr. Chertoff. Senator, first, it is again a pleasure to
appear before you again.
I guess let me answer the question in this way. I'm here
today in a capacity which is different than that in which I
have appeared previously. I am appearing in my personal
capacity. I'm not authorized to speak to when or it something
will emerge from the Justice Department as a proposal. So I
think that it is not a subject I can address except to make the
general observation that at any given point in time a lot of
proposals circulate around the Department, and the graveyard of
discarded ideas has many bones in it. So I think in due course
the Department will produce what it is going to produce, and
they will pick the appropriate spokesperson for it.
Senator Leahy. Let me ask you this. We do have the sworn
testimony of the Attorney General that there is no such
proposal, and we have your testimony that you cannot answer
whether there is or not, and that is fair. I accept that, just
as I assume even though it is printed in the press at great
length, that the Attorney General, in his testimony before
this, has been telling the truth, that there is no such
proposal anywhere in the Justice Department because he would
certainly not mislead us, I am sure.
In February there was a 2-year Freedom of Information court
battle that ended. The Syracuse University's transactional
records access clearinghouse released data of Federal
prosecutions of terrorism cases, showed that while the number
of prosecutions have increased, half those prosecutions were
initiated by INS and Social Security Administration for minor
offenses resulting in medium terms of one to 2 months. It also
found that terrorism related prosecutions count for about 1.3
percent of all Federal criminal cases in 2002, the first full
year after September 11th. And it says that, it raises the
question of whether resources are being tied up on minor cases
that have nothing to do with terrorism. Now, this report was
based on Department data, brought under FOIA. So I ask you this
question because this does relate to what you have been doing.
What do you think about that report?
Mr. Chertoff. Well, I have seen--
Senator Leahy. Are there too many minor things that are
being listed sort of as terrorism to make us look like we are
doing good things, but not? And I remember the days of J. Edgar
Hoover, where he was desperate to have his FBI agents out to be
involved in minor stolen car cases. I remember when I was a
prosecutor, if the sheriff recovered a stolen car, within two
minutes there would be an FBI agent there saying, ``We will
take over this case now,'' no matter what condition, the car is
listed as full value. This had been recovered for the taxpayers
and Mr. Hoover would then use those statistics. Are we doing
something similar now?
Mr. Chertoff. I don't think so, Senator. I've read reports
about that study. Obviously, of course, the cases we have
brought under the Material Aid to Terrorism Statute, where
people have been charged or pled guilty were matters of public
record, and there have not been an enormous number of those.
There is a second category of cases where we may investigate
people who we have some basis to believe are involved with
terrorism or may have aided and abetted terrorists, or may be
connected to terrorists, but at the end of the day the charge
that is available is a charge involving what would seem to be a
lesser offense.
In addition, part of our program, based on analyzing what
happened prior to 9/11 is to recognize that many offenses which
we previously treated as really low priority actually are
important to prosecute in order to prevent the kinds of
networks in illegal trafficking, in documents and licenses that
terrorists are capable of exploiting as they did in 9/11.
That's not to say that everybody who traffics in these items is
a terrorist or wants to help terrorists, but the availability,
ready availability, for example, of phony ID or phony driver's
licenses, is a circumstance that terrorists can exploit, and so
our use of antiterrorism resources to pursue those cases and
dry up those networks actually has I think a real disruptive
effect.
The final observation I would make about all of these kinds
of statistical studies is it's very hard, as you know from your
own experience as a prosecutor, to break a complicated case
down into a statistical analysis. Sometimes a case may begin as
a terrorist case, for example, and it may wash out. Sometimes a
terrorist may ultimately be prosecuted under a statute that is
not listed as a quote, ``terrorist statute.'' For example, we
might prosecute a terrorist ultimately under a narcotics
statute. We've indicted, for example, I think individuals from
the FARC, the Colombian left-wing terrorist group, for
narcotics trafficking. We could consider that a terrorist case
because that organization has been identified as a foreign
terrorist organization, but the charge itself is not a
terrorist charge, it's a narcotics charge.
so I guess I would say that these kinds of statistical
studies, while sometimes provocative, I think are a one or two-
dimensional way of looking at the three-dimensional analysis.
Senator Leahy. As aside to this, insofar as FARC is now
apparently acquiring shoulder-fired missiles, I think I would
be very concerned of what is happening with them.
I understand that Syracuse has been blocked now from
gathering statistics. Do you agree with that?
Mr. Chertoff. I have no--I don't do the FOIA activities. I
have no idea what the situation with Syracuse is. I assume they
stand like anybody else in terms of their ability to use FOIA
to get statistics, so I would be guessing about what's going
on.
Senator Leahy. In an article in the New Jersey Law Journal
in 1992, you are quoted as saying, quote, ``My experience has
led me to respect most people, but I also know there's a
minority of people who do not deserve respect because they will
not conform to the natural order of things, and I want to lock
them up,'' close quote.
Now, I think back what Senator Thurmond used to say when he
used to chair this committee. He would ask judicial nominees if
they promised to be courteous if confirmed as a judge. He made
it very clear that a lot of people, the only involvement really
they have with the Federal Government, direct involvement, is
in a Federal courtroom, and he said that is very easy for a
judge with all the power and everybody standing and rising,
bowing and scraping and so on, they might forget to treat
people with respect and patience, something that can be said to
all of us, I suppose, but especially those lifetime jobs.
How are you going to instill such public confidence in the
Federal Government and our judicial system, that it truly is
that it makes no difference whether you are a Republican or a
Democrat, coming in there, whether you are white, black,
plaintiff, defendant, rich, poor, whatever you might be? How do
you instill that? You have been involved in some very partisan
things, the Clinton impeachment, things like that. As you know,
I voted for you confirmation before. But on this, on this
lifetime thing, how are you going to convince us--and that will
be my last question--but how do you convince us that when
somebody comes into your courtroom, they are not going to see a
Judge Chertoff the partisan, or Judge Chertoff the prosecutor,
or defense attorney, but Judge Chertoff, the fair arbitrator of
the matters before him?
Mr. Chertoff. Senator, when I took the oath in 1990 as
United States Attorney for New Jersey, I think the one pledge I
made was that in the exercise of my power as United States
Attorney, I would treat rich, poor, white, black, Republican,
Democrat, all people the same and hold them to one standard,
and I think I applied that and I lived up to that pledge.
I've been lucky in that the course of my legal career has
given me an opportunity to experience the courts from a number
of different perspectives. I have been a prosecutor, but I've
also been a defense attorney. I have represented some very
powerful people in institutions and I've also represented some
people who were not powerful and who were poor. And I've had
the benefit of developing a lot of perspectives on the process,
so that I think anyone looking at my background can be very
confident that I come to the job of a judge, if I'm confirmed,
as one who has an appreciation for all sides of what is
involved in the legal process, a belief that all sides deserve
a fair hearing, and a commitment to making sure that the public
face of justice is one that all citizens draw a lot of comfort
from.
Senator Leahy. Well, I would urge you to think about that,
because I suspect you will be confirmed, but I would urge you
to every so often just stop and think, ``Am I doing this?'' And
I am not saying this for you individually. I say the same thing
to Justice Callahan, to Judge Coogler, because there is no
place--and Senator Thurmond was absolutely right in asking this
question, and I have asked it of just about everybody--there is
no place where it is so easy to get out of touch with reality
and out of touch with fairness than in the Federal Court
system, and no place where it is more important to stay in
touch.
Thank you, Mr. Chairman.
Senator Kyl. [Presiding] Thank you, Senator Leahy.
If Mr. Chertoff is confirmed then, he can forever be known
as ``Chertoff the Fair,'' per you. Is that--
Senator Leahy. I am saying I am urging him to be.
Senator Kyl. We understand.
Senator Sessions?
Senator Sessions. Thank you, Senator Kyl.
Judge Coogler, one of the things that are important I think
in a judge is being able to manage and make decisions promptly
when the time is right to make them, do not let them dawdle, do
not leave litigants hanging out there for months. I understand
from some of my inquiries that you have worked on that in your
court. Would you explain how you work with the caseload that
you inherited, how it is doing now, and your philosophy about
moving cases in an expeditious manner?
Judge Coogler. Yes, Senator. When I took the position as
circuit judge, and circuit judge, the position I'm in, handle
both criminal and civil cases, basically the same type of
cases, felony, as the Federal District position would handle.
And when I took the job there was approximately 1,100 and some
odd cases that had not make it to plea stage yet at that
particular court, assigned to me, and I don't know any way how
they got there. But in my circuit each particular judge gets
about 60 cases, criminal cases a month, and about 40 to 50
civil cases a month.
When I got there I noticed that I had people who had been
waiting for their trials for three and 4 years and had gotten
numerous other offenses charged to them when they were waiting.
And we simply started managing the cases effectively, bringing
the cases up for trial, implementing some rules that were
always available and were able to move the cases up for trial.
We met with both the prosecution and the defense attorneys to
orchestrate and manage dockets that would not conflict with
other settings so that we could handle the big dockets. Gave
notice to law enforcement so that officers would be available
and wouldn't be in training, and wouldn't have those conflicts.
And then we moved the cases through in an orderly fashion,
being fair to everybody.
Now my average caseload is about 250 cases. I think since
this procedure started it's actually gone up a little bit
because I'm having to do other things as well, but I keep about
250 criminal cases pending at any one time, down from about
1,000, and civil cases are also about that same level. The
criminal cases are moving and that's about an average of three
to 4 months from indictment to disposition, which we feel like
is a good number and a good point to be at.
Senator Sessions. Well, you are going to a court that has
one of the Nation's best records of moving criminal cases, the
Northern District of Alabama, and I know that the caseload is
heavy there. They have one of the highest caseloads in America,
so your management skills and work ethic will be important for
sure.
With regard to your general philosophy of the law, how
would you distinguish between a district judge's personal,
political, legal views and how he or she sees the law as it is
written?
Judge Coogler. Well, there is really no position for a
personal view in a judge, and that is the same with a circuit
trial bench as well as a Federal District bench. The law is the
law, and when people are trying to follow the law, they have to
be able to read it and understand it. So a judge has to also be
able to read and apply the law as it is written. We also follow
precedent, other cases which are binding upon us. When we do
that and follow the law, rather than attempting to decide what
would we like to happen, and then try to interpret the law into
what we would want to be the result, if we do that, we are
getting into difficulties. We are not doing our job. A judge
should simply take the law, apply it fairly to everybody that
is properly before the court, and make a decision. That way
people can orchestrate their lives and get through life and get
through the system, the justice system, feeling like they've
been fairly treated. They might not win their case. They might
lose their case, but they know that the judge has followed the
law, and they won't think that they have been mistreated.
Senator Sessions. Well, I think you stated that very, very
well, and the reputation you have gained through good hard
work, both as a practitioner and as a judge, form a good basis
for the American Bar Association to give you their highest
rating. I am real proud of you for that. I am confident that
you have the determination and skill that is needed to meet the
big challenge in the Northern District of Alabama. They have
got a great court and a series of great judges, and I am
confident that you will be one of those.
Judge Coogler. Thank you, sir.
Senator Sessions. Thank you, Mr. Chairman.
Senator Kyl. Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman. Let me
say at the outset what a refreshing hearing this is. These are
three extraordinarily good nominees. Maybe I am tipping my hand
on how I might vote, but we have been so often sent nominees
that are embroiled in political controversy, questionable
pedigrees, controversial statements in their background,
questionable qualifications, and it has led to a lot of pain in
this Committee. This panel does not represent any of those
things. Quite the opposite is true. I want to just salute all
three of you for your willingness to stand before this process,
because some who have gone before you have had their hands
full, but you will not, none of you. I think each of you brings
strong bipartisan support to his, as well as strong academic,
legal and personal credentials.
And, Judge Coogler, I was wondering, when I looked at your
financial statements, why they were so good and done so well,
and then I checked out who your CPA is. I believe she is
sitting behind you.
Judge Coogler. Yes, my wife.
Senator Durbin. I just want to give high marks to you in
that regard as well.
If I could ask a few questions, let me start with Mr.
Chertoff. In the course of American history when we have been
confronted with times of national security crises, we try to
respond with all of our skill to protect America and decisions
are often made which do not survive history in terms of a
positive judgment--Abraham Lincoln, from my State of Illinois,
suspending habeas corpus during the Civil War, the Alien and
Sedition Acts of World War I, the Japanese internment camps of
the Second World War, the McCarthy hearings of the Cold War,
some of the efforts by J. Edgar Hoover and the FBI during the
Vietnam War. All of these things, as we reflect on them, were
evidence of a perhaps over-zealous effort to protect America.
We are still, I think, in the swirl of 9/11. We don't have
the historical perspective, but can you step back from your
time of service here and point to areas where you think we went
too far in terms of trying to protect the security of America,
perhaps at the expense of liberties and rights which are so
dear to us?
Mr. Chertoff. Well, Senator, I agree. I mean, in the wake
of 9/11, as in the wake of other crises that the country has
faced, it is very difficult sometimes to strike the appropriate
balance. And that is, of course, largely because it is only
with the benefit of history that we have the hindsight to know
how things turn out. And we can never really know whether, if
we had done something differently, it would have not made a
difference or whether it might have resulted in, in fact, a
greater catastrophe.
I do think we have tried very hard to look at history and
learn the lessons of history. There are clearly things that
were done facing historical crises that we recognize were wrong
and we have stayed away from. I mean, we think back to
Korematsu, for example, and the internment of Japanese American
citizens, the suspension of habeas corpus. Perhaps Lincoln at
the time believed he was justified. The judgment of history
suggests perhaps it went too far.
I don't know that I am in a position to render the judgment
of history because, as you point out, we are still in the swirl
of things. I do think, though, that we all benefit from
discussion and debate about these matters, and maintaining an
open mind, I think, is a very important part of having this
process go forward.
Senator Durbin. Maybe you can't tell me this, but I will
ask anyway. We are about to celebrate the 40th anniversary of
Gideon v. Wainwright, where we enshrined the right to legal
counsel. We have just gone through a recent episode relative to
two U.S. citizens being detained by this Government and being
denied the right to counsel because they are characterized as
enemy combatants.
I would like to know your thoughts on that decision and
perhaps your reflection on the debate within the Department of
Justice and whether there was a serious debate as to the
decision to deny the right to counsel to two American citizens.
Mr. Chertoff. Well, let me say first of all, Senator, I
think Gideon v. Wainwright and the right to counsel in the
criminal justice process is a fundamental right. I mean, it may
be in some ways the cornerstone of the way the criminal justice
process operates.
I know as a defense attorney, you know, even a defense
attorney would need a defense attorney if they were facing the
criminal justice process. In fact, I represented attorneys from
time to time when I was in practice.
I can't speak about individual cases that are currently
under litigation. I can say, though, that, of course, as you
know, the military process is a different process; it is not
the criminal justice process. For example, there are people
apprehended in Iraq now who we would not normally think would
be getting lawyers or participating in the kinds of process
that one sees in the Federal courts. And, of course, the
determination about what procedures are used in the military
process is typically a Defense Department determination because
that is within their purview.
I think what I can say, though, is this. I think, again,
these are serious matters which are seriously debated and there
are arguments on both sides. Reasonable people can sometimes
disagree. There is precedent in this area, of course, Supreme
Court precedent and precedent from an old case from the Ninth
Circuit and a more recent one from the Fourth Circuit. And I
think that ultimately the courts will determine where the right
balance on that issue is.
Senator Durbin. You have been a prosecutor in criminal
cases and undoubtedly are sensitive to gun violence. In my home
State of Illinois, in the city of Chicago that I love, the
murder rate has reaching alarming numbers. It is lower than the
historical high, but still leads the Nation and causes us great
pain. And a lot of it has to do with the proliferation of guns
and drug gangs and street violence and innocent victims who are
often children who are caught in this crossfire.
I have been critical of this Department of Justice and this
Attorney General when it comes to the issue of guns. I think
that they have taken a pass on important opportunities, like
keeping gun records for a long enough period of time so that
they can be investigated to find out if there is any criminal
wrongdoing.
Attorney General Ashcroft said destroy the records as
quickly as possible. That is good news to the National Rifle
Association. I don't think it is good news to law enforcement.
Do you think this Justice Department has been as aggressive
as it should be in dealing with guns used in crime?
Mr. Chertoff. Well, speaking from my area, I think the
illegal use of guns has been a very high priority for the
Department. Every U.S. Attorney candidate who comes through the
Department and is interviewed is always given some kind of a
summary of what the Department's principal priorities are and
stamping illegal gun trafficking and illegal gun violence is
always one of those priorities.
I don't have the statistics with me, but my understanding
is that gun prosecutions have increased. Across the country,
prosecutors know how important it is not only to attack
individual illegal use of guns by felons through some of the
programs like Project Exile in Virginia, but also to focus on
the trafficking networks. We, in fact, did a good deal of work
with the Mexicans in terms of cross-border trafficking in
firearms.
Senator Durbin. But what about the destruction of these
records that come in as evidence of sales of guns, the
destruction of records in such a short period of time? And this
has been approved by Attorney General Ashcroft?
Mr. Chertoff. I have to say, Senator, again the issue of
recordkeeping under the Brady Act is not an area that I
particularly am involved in, so it is not an issue I can
address.
Senator Durbin. I won't pressure you on it.
Judge Coogler, let me ask you a question which is not an
easy one, I understand. I read your comments here and heard the
questions asked by my friend and fellow colleague, Senator
Sessions about judicial philosophy. I think what you said is
what we would expect to hear and hope to hear from every
judicial nominee.
In your written statement, you said if a judge were to
utilize his position to implement his personal views on policy
matters, he would be substituting his own views for those of
the elected representatives of the people. That is a reasonable
response and one we hear quite often.
But I was struck, as I have said to Senator Sessions, in my
first visit to your State just a few months ago when
Congressman John Lewis, of Atlanta, Georgia, took us down to
visit in Birmingham and Selma and Montgomery, and relive some
of the moments in the civil rights movement and some of the
great events that took place in your State.
Congressman Lewis said to us at one point, as much as we
put into this, we never would have gotten anywhere in the
effort of civil rights in Alabama were it not for one
courageous Federal district court judge, Frank Johnson.
Judge Johnson really, I think, broke away from the
popularly held views even of the elected representatives at
that point, and he stood up for civil rights and liberties at a
time when it wasn't popular. He faced death threats and was
shunned by the society in his area.
I would like, if you can, for you to put that in some
perspective. Do you believe Judge Johnson went too far in
imposing his personal views on civil rights and should have
been more conservative and more restricted in his rulings?
Judge Coogler. Well, Senator, let me say this. I am greatly
concerned with the particular issues that Judge Johnson was as
well, and Alabama has come leaps and bounds from back when
those times were. And so it is difficult for someone like me--I
came to the University of Alabama in 1977 and the State of
Alabama had made great leaps and great strides at that point.
So it is very difficult for me, even though I lived in
Alabama when I was a very small child, to place myself back in
that position. It is also difficult for me to second-guess a
Federal district judge, especially one of his stature.
I can say this. Hindsight is always 20/20 and there are
certain situations where people do things and make decision
that, in hindsight, absolutely worked out for the best. I don't
think there is anyone who would question that.
However, I think as a judge my primary role will be to
allow those kinds of decisions to be made by the political
structure, including the Senators and Congress, who are best
suited to taking testimony, seeing the overall big picture, and
making laws relevant and relative to those situations and
enforcing those laws.
So I can say that, in hindsight, absolutely it was an
admirable thing and took a lot of courage in Alabama at that
time. But to extrapolate that out and say that I--as I have
said before, people have to be able to rely on the laws and
they have to take the appropriate action to challenge the laws
when they need to be challenged and bring it to the attention
of their legislators so their legislators can make appropriate
changes when they need to be changed. If a judge does it, then
the judge is substituting himself in an area that he shouldn't
be substituting himself, generally speaking.
Senator Durbin. Thank you very much, Judge, and I prefaced
it by saying it was a tough question because I don't know that
there is a right answer there. But others--and I will conclude,
Mr. Chairman, by saying others, including one of the nominees
just recently approved this week by the Senate, I think stated
very succinctly and clearly that if you stick with the strict
constructionist standard, it is not likely that Brown v. Board
of Education would have been decided the way it was, or Miranda
or Roe v. Wade, or that Judge Frank Johnson's decisions would
have been made. And I look back and think what America would be
like if those decisions had gone the other way over the last 50
years.
So I am sorry, Justice Callahan, we don't have time to ask
a few questions of you, but I want to again say, Mr. Chairman--
Justice Callahan. I am sure you have me in your thoughts.
Senator Durbin. I do, I do, and maybe this is a good sign.
Senator Kyl. Senator Durbin, if you would like to take a
couple of more minutes, I would be happy to yield some of my
time to you, if you would like.
Senator Durbin. I just have one question, if I might, of
Justice Callahan.
Because you come from such a diverse State, I would like
your thoughts on the fact that we see a disproportionate number
of people of color being arrested, tried, convicted and
incarcerated in America. This is not lost on minority
populations that our justice system, which is supposedly blind
to color and religion and ethnic background, in fact, generates
more prosecutions and more incarcerations of people of color.
I would like to know what your thoughts are, based on your
legal experience, in terms of what a judge's responsibility is
in light of that fact.
Justice Callahan. Well, I think you raise a very
complicated issue and there isn't one simple answer to it, and
it is something that the minority communities have a great deal
of concern about.
As a judge, one of the things that I have been involved in
where I live in San Joaquin County and also where I sit in
Sacramento County are programs, focus groups with the minority
communities and citizens academies with the minority
communities to have them become involved with the system and
get their input, because access to justice are very important
decisions, and to hear why they think some of the problems are
occurring and getting that input when you are not dealing with
a specific case.
So I think we do have to--I think we have to very much stay
in touch with what is going on in our communities and be in
contact with our minority communities to find out why they
think this is happening, because even if justice is done in a
particular case, if the perception of justice is not there, the
system badly suffers and as a judge, you have to work very
hard.
And so I think we always have to be getting input, look
into alternatives and make sure that that is not, in fact,
happening, and also, too, involving ourselves in things in the
community if there are groups that are particularly at risk,
and there are. And either by virtue of their family status or
they are impoverished or the areas that they grow up in, they
are subjected both as victims and to become involved in crime
because of where they have to live.
It is very important to have the community support to
address these issues, so hopefully young people that may by
virtue of their birth be destined to have more likely contact
with the criminal justice system hopefully do not.
Senator Durbin. Let me just add parenthetically, and I will
close with this, I think your nomination can be a step in that
direction, too. As I have tried to bring forward Hispanic
nominees in my State of Illinois so that those who are standing
before the bench feel that they are not completely adrift, that
they have someone who at least has an ethnic background which
will help make them more comfortable with the system.
I don't know what your background has been in dealing with
Hispanic issues in your area, Hispanic legal issues, but you
certainly with this new appointment will have an excellent
opportunity to do that.
Justice Callahan. Thank you, Senator.
Senator Durbin. Thank you very much. Thanks, Mr. Chairman.
Senator Kyl. Thank you.
Senator Sessions, did you have one other question before I
turn to Senator Kennedy?
Senator Sessions. Well, just briefly, I know on the gun
question it is something I asked you about at confirmation. I
was with one of your United States Attorneys and they told me
their gun prosecutions have gone up 50 percent.
I think you are having something close to that nationally.
I believe this Department of Justice, under Attorney General
Ashcroft--and I asked him about that when he was confirmed--
has, in fact, really set a high standard for aggressive
prosecution of gun laws, have they not?
Mr. Chertoff. That is correct, Senator.
Senator Sessions. I just think that is important.
Ultimately, you are focusing on criminals who are out
threatening people and killing people.
You know, Senator Durbin, on Frank Johnson, he was indeed a
great judge. He was a prosecutor in his early life and he had a
fierce hostility to wrong. He did not like to see wrong, and
people who dealt with him knew that. It wasn't anger so much as
just a deep conviction that wrongdoing shouldn't be accepted.
You could say those were activist opinions, but really I
think the better judgment may be--and you and I can talk about
this some as we go along, but I think the better judgment of
that ought to be that the Constitution and the laws were not
being followed correctly.
We had allowed social and political pressures to justify
interpreting the constitutional protections of equality and due
process--to be interpreted in a way that did not allow that and
it was not occurring in reality, and he did, in fact, step up
courageously. I think he would say that he merely affirmed the
great principles contained in the Constitution.
``Strict construction'' is a phrase the President has used.
I am not sure that is the best phrase. Miguel Estrada in his
hearing was asked about it and he said, well, he thought maybe
``fair construction'' would be the right phrase. Maybe that is
a better phrase. What is strict construction or fair
construction? I don't know, but you raised some good points and
I just wanted to make those comments.
I think these people have demonstrated a high degree of
fidelity to the highest ideals of our Constitution and
liberties.
Senator Kyl. Senator Kennedy.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman, and I
welcome our nominees. I apologize. I was necessarily absent
earlier, but I appreciate the chance now to ask Mr. Chertoff
some questions dealing with the Criminal Division. I am
grateful for your presence here.
In late March, as the House of Representatives was about to
vote on important child abduction legislation, a controversial
amendment on sentencing was added to the bill. This amendment,
called the Feeney amendment, had nothing to do with the
protection of children and everything to do with handcuffing
judges and eliminating fairness in our Federal sentencing
system.
The reaction to the Feeney amendment was immediate and very
critical. Chief Justice Rehnquist, not known as a coddler of
criminals, said that the Feeney amendment would do serious harm
to the basic structure of the Sentencing Guidelines system and
seriously impair the ability of the courts to impose just and
responsible sentences.
The Judicial Conference of the United States, the American
Bar Association, the Sentencing Commission, and many
prosecutors and defense attorneys, law professors, civil rights
organizations and business groups vigorously opposed it. Then,
on April 4, the Justice Department sent a five-page letter to
Senator Hatch expressing its strong support for Congressman
Feeney's amendment to the House version of S. 151.
Mr. Chertoff, as Assistant Attorney General in charge of
the Criminal Division, you are chiefly responsible for
formulating criminal enforcement policy and advising the
Attorney General and the White House on matters of criminal
law.
Your letter of April 4, issued a few days before the House-
Senate conference on the child abduction legislation, was very
influential in getting the provision enacted. So I would like
to ask you a few questions about your support for that
particular provision.
One of the provisions in the Feeney amendment overturned a
unanimous Supreme Court decision, Koon v. United States, which
established a deferential standard of review for departures
from the Guidelines based on the facts of the case.
In Koon, the Court ruled that the text of the Sentencing
Reform Act reflected an intent that the district courts retain
much of their traditional sentencing discretion. While the
courts of appeals certainly have the authority to correct
mathematical and legal errors made below, the Supreme Court
ruled that it is not the role of an appellate court to
substitute its judgment for that of the sentencing court as to
the appropriateness of a particular sentence.
The Koon decision has been praised by judges, prosecutors
and scholars on both the left and the right. The Justice
Department, on the other hand, argued that Koon should be
overturned by the Feeney amendment because doing so would make
it easier for the Government to appeal illegal downward
departures.
Now, if you are confirmed as a judge to the circuit court,
you and your fellow judges will have to review de novo every
instance in which a district court decides that a departure
from the Guidelines was justified.
Why do you believe that all nine Justices of the Supreme
Court got this issue wrong in Koon?
Mr. Chertoff. Well, first, let me say, Senator, I think an
important point as I sit here in a confirmation hearing is to
make it clear that positions I have taken on behalf of the
administration should not necessarily be taken as a predictor
of how I would rule on a case, were I to be confirmed as a
judge.
I have had the opportunity to be both a prosecutor and work
for the Department, and frankly to be a defense attorney. I
remember times as a defense attorney that I argued very
vigorously against what I considered to be an unfair
application of the Guidelines, and I remember times as a
prosecutor I argued very vigorously for--
Senator Kennedy. Well, didn't you support this? You can
tell us whether you supported it or differed. ``Senator, I
differed with this, but this was the administration's position
and so I signed off or I supported it.''
Mr. Chertoff. What I think would be inappropriate for me to
do is to relate internal discussions about positions within the
Department, or even to talk about how I might approach
something in the role of a prosecutor which, of course, would
be different in the way that I would approach something in the
role as a defense attorney. And that, in turn, would be
different from how I would approach something as a judge.
That being said, I think this is a very complicated area. I
know, Senator, you were involved in the original Sentencing
Reform Act.
Senator Kennedy. Very much so.
Mr. Chertoff. I was a prosecutor actually for a time before
the Act came into effect, so I lived under the old system and
under the new system and they are both systems which have
pluses and minuses.
Under the old system, there was a tremendous amount of
discretion in the judges. Sometimes, that was good in terms of
achieving justice. Sometimes, that led to unfairness. Some
judges, for example, particularly in the area of white-collar
crime, philosophically believed white-collar criminals
shouldn't go to jail, and I think that was one of the impetuses
for having the Guidelines to try to equalize that out.
Guidelines create different kinds of unfairness. Sometimes,
there are circumstances in which the Guidelines appear to apply
a cookie-cutter to very different individual circumstances.
I think that the process of going back and forth with
Congress and the Commission in tuning the Guidelines is a
process of trying to strike the right balance between a system
that will give a certain amount of determinacy and equality,
and also one that will allow a certain amount of flexibility in
cases where fairness requires it.
Senator Kennedy. Well, why wouldn't it have made sense,
then, to say that we ought to have some hearings? I mean, why
didn't you write to the Chairman of the Judiciary Committee, if
you are so concerned about this in the Criminal Division, and
say we ought to take another look at this?
This was passed and there was seven minutes of debate in
the House of Representatives. It basically virtually undermined
the sentencing provisions, all of which were legislated. We had
the hearings on it, we made the judgments on it, we made the
decisions on it.
The reference that you made about white-collar crime--as
you may remember, my former Governor, Bill Weld, and Wayne Budd
quit the Justice Department because Ed Meese was reluctant to
apply it to white-collar crimes. I have followed this. I
understand. I know what is going on there.
Where the Congress has taken a great deal of time to
consider this whole issue in terms of fairness in sentencing--
we might not have it right; we may have to strengthen and
improve it. But basically to undermine this and to support
undermining it without a single day of hearings about this as
the head of the Criminal Division in the Department of Justice
just puzzles me.
And to have an answer of, well, I can't really say I was
for it or against it and I might rule differently if I am a
judge--
Mr. Chertoff. Well, I think, Senator, what I can say is
this.
Senator Kennedy. Not to be more forthcoming than that is,
quite frankly, troublesome.
Mr. Chertoff. I think what I can say is this. The issue of
how one manages legislation through the legislative process and
whether there should be hearings or not is not a matter that I
was involved in or was consulted about. That is not my area. I
only get involved in taking positions as to substantive issues.
So I can't speak to the question of whether the
Department's position in terms of how things move through
Congress should be different because that frankly is not in the
area that I deal with. I can only say that, as a judge, I will
have to--and I will be ready to apply the law as it is enacted
by Congress.
I do recognize these are matters as to which reasonable
people can disagree. It is a complicated area. I understand the
Chairman indicated at some point there probably would be some
kind of hearings, and I imagine these issues will continue to
be addressed in the future.
Senator Kennedy. Well, here we had a unanimous vote by the
Supreme Court, on a divided Court. Most decisions that are
hotly contested these days are 5-4. This was a unanimous vote
on this.
This decision by the Justice Department and your division
basically overrode that decision without any other kind of
follow-up. This was in your department. You are the head of the
Criminal Division. This is sentencing for criminal activities.
Not to be able to have some kind of view by you whether you
agree or differ with the Koon case--what is your position on
the Koon case?
Mr. Chertoff. Senator, the issue with Koon--Koon
interpreted the Sentencing Guidelines under the legislative
provision as it then existed. The issue, I think, was not
whether Koon was rightly or wrongly decided as interpreting the
statute.
I think the Department and everybody else understood that
the Court had definitely ruled on it. I think the question was
whether the legislation ought to be changed. And, of course,
that is not so much a question of saying that Koon was correct
or incorrect as it was saying that, given the way the statute
has been interpreted, should the statute be changed.
I think the concern underlying the Department's position
was this, that the legitimate desire to allow judges to depart
downward in extraordinary circumstances not become a vehicle
for basically making a major overhaul in the Sentencing
Guidelines themselves, so that in some districts there might be
situations where, in effect, departures were being granted at
such a high rate for extraordinary reasons that it effectively
transformed the Guidelines into a system that was more
haphazard than I think originally intended.
I understand that there are different positions. I have to
say, as a defense attorney, sometimes I argued very vigorously
for departures and felt hamstrung because there were none
available. So I think it was a decision on the part of the
Department as a whole that some kind of adjustment was
necessary in terms of the availability of downward departures.
Senator Kennedy. Well, of course, the existing judges all
comment on Feeney. You have the Chief Justice talking about
Feeney, you have other judges talking about Feeney, but you
feel that you can't talk about it.
On this issue of departures, there is good evidence that
about 80 percent of the departures are at the request of the
Government itself. I never really understood, when we were in
that conference and trying to make some sense out of it on an
issue of the complexity that this had, the arguments.
Because the Feeney amendment was presented without
discussion or debate at the last minute, Congress was deprived
of full and balanced information concerning the issue of
whether departures are made in appropriate instances.
The Justice Department compounded the problem by submitting
a highly misleading letter on April 4. For example, the Justice
Department argued that the Feeney amendment was justified
because an epidemic of lenient sentences was undermining the
Sentencing Reform Act.
It failed, however, to note that the Committee report
accompanying the 1984 Act anticipated a departure rate of about
20 percent. Today, the rate at which judges depart over the
objection of the Government is slightly more than 10 percent,
well within the acceptable rate.
While the Department claimed that there are too many
downward departures, it failed to note that according to the
American Bar Association, almost 80 percent of downward
departures are requested by the Justice Department.
In arguing for the abrogation of the Supreme Court's ruling
in Koon, the Department failed to mention that it wins 78
percent of all sentencing appeals, and it has never
acknowledged that 85 percent of all defendants who receive non-
cooperation downward departures are nevertheless sentenced to
prison.
To quote a letter from eight highly respected former U.S.
Attorneys from the Eastern and Southern Districts of New York,
``What these statistics reveal is a relatively limited exercise
of sentencing discretion of the sort contemplated by Congress
when it authorized the promulgation of the guidelines.''
It is important to understand your views on the issue.
There are over 2 million Americans in prison or jail, including
12 percent of all African-American men between the ages of 20
and 34. One out of three young African-American men born in the
United States will spend time behind bars in their lifetime.
The Federal prison population has quadrupled in the last 20
years and it is now larger than any State system. Dozens of new
Federal prisons are under construction.
Do you really think that there is a problem with excessive
leniency in the Federal criminal justice system?
Mr. Chertoff. I don't know that I think there is a problem
with excessive leniency, and again I want to be careful to
distinguish, because I think it is important, between my views
as an advocate or a policymaker within the executive branch,
which is, of course, focused on these matters from a
prosecutorial standpoint, as distinguished from views I
advocated as a defense attorney, and which are distinguished
yet again from the perspective of a judge, which is different
from the prior two.
Again, I don't know that the issue is leniency. I know that
there are debates about the issue of extraordinary departures.
I am not talking about cooperation departures, which are a
different issue. I also know that there are tremendous regional
variations. In some districts, they are quite infrequent. In
some districts, they are, in fact, much more regular.
I understand these are matters as to which reasonable
people can disagree. Within the Department, the policymaking
process involves getting input from a wide variety of people--
line prosecutors, United States Attorneys, people from the
Criminal Division, people from the appellate sections, all of
whom weigh in. And ultimately the Department formulates a
position, which it did in this case.
As I say, I mean I think leniency is not so much the issue
as it is the extent to which one wants to allow departures for
extraordinary reasons and whether that at some level can become
inconsistent with the overall thrust of the Guidelines.
Senator Kennedy. Well, all the other attorneys in the
Justice Department are not up for a judgeship here. Other
judges are commenting on these; they don't feel restricted in
commenting. The Justice Department's April 4 letter stated,
``Too many judges ignore the Guidelines in favor of ad hoc
leniency.'' That is what the Department said on this.
Another provision in the Feeney amendment requires the
Attorney General to effectively establish a judicial black list
by informing Congress whenever a district judge departs
downward from the Guidelines, imposes new burdensome
recordkeeping and reporting requirements on Federal judges, and
requires the Sentencing Commission to disclose confidential
court records to the House and Senate Judiciary Committees upon
request.
Just this Monday, Chief Justice Rehnquist criticized these
provisions as potentially amounting to an unwarranted and ill-
considered effort to intimidate individual judges in the
performance of their judicial duties.
We are talking about a matter of enormous importance and
consequence. To get that kind of involvement of the Chief
Justice of the Supreme Court who has been as involved and
concerned about this and its impact in terms of justice in this
country is extraordinary.
And to have the Department just dismiss all of these
activities and to support an effective dismissal--no hearings
in terms of the United States Senate on this, no hearings in
the House of Representatives, a seven-minute discussion on the
floor of the House of Representatives--and then to embrace this
completely in terms of the conference on this, in the
department that you were the head of--
Mr. Chertoff. Well, Senator, the issue of whether there
should be hearings or how legislation is managed is a matter I
have really not only nothing to do with, but frankly no
knowledge about.
Senator Kennedy. Well, it seems to me that you could have
said we ought to have hearings on this. We are talking about
sentencing. You are the head of the Criminal Division and you
are bothered by this. It would seem to me that we could have
expected you to write to the Chairman of the Committee and say
the Justice Department is bothered by this, we hope you will
have hearings about it, and ask that we go ahead and have them
in the House and the Senate and appear up here and make the
case for it.
But we have gotten now into a situation where, as a result
of the actions on sentencing, which is effectively out of your
Department, we have the Chief Justice criticizing these. He is
not known as a criminal coddler, certainly. Rehnquist
criticized it as ``amounting to an unwarranted, ill-considered
effort to intimidate individual judges in the performance of
their judicial duties.''
It is a fair question for any of us to ask where were you
during this time, when you have the Chief Justice mentioning
this. Where were you during this time?
Mr. Chertoff. Well, I am not aware that the Chief Justice's
remarks--I don't think they preceded the legislation. Again,
Senator--
Senator Kennedy. No, no. This is with regard to the Feeney
amendment. This is with regard to the Feeney amendment and the
provisions in the Feeney amendment that require that the judges
are going to have to list and they will have their names sent
to the Justice Department and effectively you will have a
judicial black list. Those are my words, ``judicial black
list,'' about judges that are going to stray from this.
I used the words ``judicial black list,'' but this is what
Rehnquist said just this past Monday: ``an unwarranted, ill-
considered effort to intimidate''--this is the Chief Justice
saying that the effect of this, he believes, is it will
intimidate individual judges in the performance of their
judicial duties. He said the provisions could be used to
undertake a witch hunt against judges who appear soft on crime,
and cautioned that they should not be used to trench up
judicial independence.
In its letter dated April 4, the Justice Department didn't
object to these new recordkeeping and reporting burdens on the
Federal judiciary. To the contrary, it argued that the Feeney
amendment was a necessary response to what it described as the
well-known problem of judges ignoring the Guidelines in favor
of ad hoc leniency.
Is Chief Justice Rehnquist wrong to be concerned about the
threat of the Feeney amendment?
Mr. Chertoff. Well, I will say this, Senator. I think the
Chief Justice is completely correct, and I completely agree
that no tool ought to be used in an effort to try to intimidate
judges or pressure judges to rule in individual cases.
Judges are obliged to follow the law, and they are obliged
to do it to the best of their ability. But I certainly don't
endorse the idea of hauling judges up and questioning them
about decisions that they have made because I think that can be
problematic.
I think the reason judges, though, are given life tenure is
precisely to give them the ability to withstand the kind of
pressure that sometimes is brought to bear. Sometimes, being a
judge requires making unpopular decisions and a judge has to
have the ability to withstand that. Part of that comes from the
life tenure and part of that comes from the judge's own
internal character.
So I do agree that the executive process is not a place
where judges ought to be called to answer or explain what they
have done, outside, of course, what they explain in the course
of their opinions, which is the way in which judges express
themselves.
Senator Kennedy. Well, I think you have answered this
question, which is do you believe it is appropriate for the
Justice Department and Members of Congress to single out
Federal judges who they believe are soft on crime or engage in
ad hoc leniency? I think you have answered that.
I will ask that the full letter be put in the record. I
won't take much more time.
In the letter, in the last paragraph, it says, ``As stated
in the April 3 letter, the Judicial Conference believes that
this legislation, if enacted''--this is Justice Rehnquist's
letter--``would do serious harm to the basic structure of the
Sentencing Guidelines system and seriously impair the ability
of the courts to impose just and responsible sentences. Before
such legislation is enacted, there should at least be a
thorough, dispassionate inquiry on the consequences of such
action.''
I don't expect you to turn on the Department, but I
certainly would have thought that, given certainly your own
review of this situation and the actions and statements, you
would have expressed some greater kind of concern on this issue
and proposal, Mr. Chertoff, than you have.
Let me move just quickly to this on the death penalty. In
January 2003, Attorney General Ashcroft ordered Federal
prosecutors in New York to seek the death penalty for defendant
Zario Zapata, even though the prosecutors had negotiated a deal
in which Zapata had agreed to testify against others in a
Colombian drug ring in exchange for a sentence of life
imprisonment.
One former prosecutor, Jim Walden, said it was a remarkably
bad decision that will likely result in fewer murders being
solved because fewer defendants will choose to cooperate.
Did you advise the Attorney General to make this decision?
Mr. Chertoff. No. The way the process works with the
Department, I was not personally involved in that decision. But
I do think that news accounts--without getting into matters
which I think are non-public, I think news accounts are
sometimes misleading.
And I should clarify two general issues about plea
negotiations. One is--and this was certainly the rule when I
was a line prosecutor--even when an Assistant U.S. Attorney
negotiates a tentative agreement with a defense attorney, it is
always subject to approval by more senior people in the
Department. That is always understood.
So there really should never arise a situation, frankly, in
which a deal is actually agreed upon and then it gets reversed.
And if that ever does happen, that is because the assistant
perhaps didn't make it clear that whatever they were able to
offer was subject to some further approval.
Second, we completely agree cooperation is important in any
plea negotiation. You always, of course, have to weigh the
value of the cooperation and the credibility of the person who
wants to cooperate, whether, in fact, they have any information
of value to give. So those are general considerations. As to
this particular decision, I am not generally in the process
of--and I don't believe I was in the process of that particular
decision.
Senator Kennedy. If you would talk for a minute about how
you view the balance in terms of in this case having the
Federal prosecutors going for the death penalty, what does that
do in terms of the possibility of defendants being willing to
talk, maybe, with the idea that they get life imprisonment, the
area of cooperation?
This former prosecutor was indicating that at least it was
his judgment that you could get a lot more by going for life
imprisonment rather than if you go for the death penalty. The
message it was sending to others is that it will be harder to
get the kind of information that might be useful and helpful in
terms of undermining these drug rings.
Senator Kyl. Excuse me just a second, Mr. Chertoff.
Senator Kennedy, you are welcome to take all the time. I am
going to have to recess the hearing in a couple of minutes just
so we can get somebody else to replace me here, but you are
welcome to take more time. I just wanted you to be aware of
that, but go ahead and proceed with your question right now.
Mr. Chertoff. I can be very quick in answering by saying
that I think cooperation, including negotiating something less
than the maximum penalty, is often helpful, but it is not
always helpful. It depends on the quality and nature of the
cooperation. It also depends, frankly, on the nature of the
crime. Sometimes, people commit crimes that are so heinous that
one would not want to give them an accommodation even with some
cooperation.
Senator Kennedy. I have about five more minutes of
questions, so I will do whatever--I do want to ask about crack
and powder and racial disparities.
Senator Kyl. Thank you. Then, Senator Kennedy, what I would
like to do is to recess the hearing. I think that Senator Hatch
or someone else can be here in about 5 minutes or maybe a
little bit longer, perhaps not until 11:30. That would give
everybody an opportunity to take a quick break and then come
back.
So, therefore, this hearing will be recessed until the call
of the Chair.
[The Committee stood in recess from 11:20 a.m. to 11:27
a.m.]
Senator Kennedy. [Presiding.] We will come back to order.
Mr. Chertoff, for years the civil rights groups and
sentencing experts have been concerned about the substantial
sentencing disparities that result from the different Federal
mandatory minimums for crack cocaine and powder cocaine
trafficking offenses. For example, 5 years' imprisonment is
mandated for 500 grams of powder cocaine worth $40,000 on the
street, and 5 grams of crack, worth about $500.
Because African-Americans comprise 84 percent of those
convicted on crack cocaine charges, only 31 percent of those
convicted of powder cocaine charges, the lower standard for
crack cocaine has the effect of disproportionately punishing
the African-American defendants.
In December 2000, Senator Sessions and Senator Hatch
introduced a bill to reduce the disparity for 5-year mandatory
by increasing the crack threshold substantially and lowering
the powder threshold by a small amount. Most authorities view
the Sessions-Hatch proposal as a positive first step, though
perhaps one that doesn't go far enough.
In March 2001, the administration announced it will oppose
any reduction in drug sentences, including those in the
Sessions-Hatch bill. While acknowledging that the actual
sentences for crack are more than 5 times longer than sentences
for the equivalent amounts of powder cocaine, the
administration argued that any reduction in penalties would
send the wrong message on drugs.
Mr. Chertoff, as Assistant Attorney General in charge of
the Criminal Division, you had an important role in developing
the administration's position on the case, and I am very
concerned about the administration's dismissive view of this
serious, longstanding problem. Do you deny that there is any
racial injustice in the 100-to-1 crack/powder disparity?
Mr. Chertoff. Well, Senator, first of all, I don't think
the Department's view is dismissive. In fact, I know this
matter has been discussed and studied, was debated at very
senior levels. There's been a lot of analytical work done, and
it continues to be discussed. And I think the Department's
position was not opposed to reducing the disparity, but was
opposed to reducing the disparity by lowering penalties at one
end. In other words, I think the Department's position was
consistent with the idea of reducing the disparity by raising
the powder--or adjusting the powder numbers to bring them
closer.
I do recognize that there is a serious issue--
Senator Kennedy. Do I understand you, you want then the
powder to go up where it is to crack and--
Mr. Chertoff. I don't mean to suggest a specific proposal.
What I mean to say is I don't think the Department opposed any
closure of the disparity. I think what the Department opposed
was a closure that was achieved by lowering the penalties for
crack.
This was a subject, I think, the U.S. Attorney in D.C.
testified about before the Sentencing Commission, and his
testimony, as I understand it, basically reminded the
Commission of how serious a problem crack is in poor
neighborhoods. I remember when crack first came on the scene
back when I was a young prosecutor, and it clearly led to a
more violent type of behavior in terms of crack dealers and
people who were using crack than had been the case with powder
alone.
I have seen many studies, many arguments and analyses about
how to reduce this disparity. I know there is a serious and
legitimate concern about the appearance of injustice when it
seems that people in certain communities wind up
disproportionately feeling the sting of a certain type of
punishment. I think we have to keep working on a way to reduce
that appearance of unfairness without diminishing the serious
punishment for a type of criminal conduct that can be very,
very damaging to our poor communities.
Senator Kennedy. Well, I think there is--no one is
suggesting that it isn't a serious crime and that there
shouldn't be serious punishment. What we are focusing on is
this area of disparity, and if we are saying that we are not
going down in terms of the crack, that means you have to go up
in terms of the powder, with all of its implications in terms
of room and the various prisons of this country. I don't know
what that would do, but it would certainly appear to be a very
substantial expansion.
I don't think it is just the appearance of equal justice
for all Americans. I think it really comes down to the--not
just the appearance but in terms of the reality of this. And
just to have the--as you well know, the Sentencing Commission
has tried over very considerable time. Another time we had a
very prominent former Deputy Attorney General, Wayne Budd, from
my own State of Massachusetts, a Republican, worked with the
Sentencing Commission, tried to work out a series of
recommendations with that because of its importance. Serious
people have really attempted to try and find some way to deal--
make sure that we are going to have the tough penalties, but
also deal with the real disparity in terms of the justice on
this question.
I am just troubled that it is the position of the Criminal
Division effectively to stonewall, to maintain the existing
current situation, and without really attempting to work
through. No one assumed that it was going to be easy, but I
must say I want to give credit to Senator Sessions as well as
Senator Hatch for at least trying to think of ways of
addressing this. These are serious Senators who are attempting
to try and deal with this. I am not sure I agree with all the
things they are going about, but they are attempting to come up
with--recognizing this extraordinary disparity and the real
injustice that it provides. So it is troublesome.
Let me go to a--in a book review published by the Michigan
Law Review in 1995 titled ``Chopping Miranda Down to Size,''
you criticized the Supreme Court's decision on Miranda v.
Arizona as a rule too far and described the right to have
counsel present at police interrogation as insupportable. You
argued that it was improper for the Supreme Court to import
adversarial constitutional protections into the non-adversarial
pre-indictment police investigation process. And since then, of
course, the Supreme Court reaffirmed the Miranda decision,
holding in U.S. v. Dickinson that a Federal statute that
purported to undo Miranda was unconstitutional.
Do you acknowledge that Miranda remains the law of the land
and must be enforced?
Mr. Chertoff. Absolutely.
Senator Kennedy. In March, New Yorker magazine reported
that in December 2001, officials from the Criminal Division
solicited, then disregarded advice from the Professional
Responsibility Advisory Office regarding the legality of
interrogating John Walker Lindh outside the presence of
counsel. Specifically, an attorney from that office advised
prosecutors that Attorney James Brosnahan, who had been
retained by Lindh's father, had sent the Attorney General a
letter stating that he represented Mr. Lindh and wanted to meet
with him, and that a pre-indictment custodial interview was not
lawful under the circumstances. Nevertheless, the FBI proceeded
with its interrogation of Lindh.
On January 15, 2002, the Attorney General stated that the
Lindh interrogation was proper because the subject here is
entitled to choose his own lawyer, and to our knowledge, has
not chosen a lawyer at this time.
Under this reasoning, Brosnahan was not Lindh's attorney at
the time of the interrogation because Lindh had not personally
retained him, even though Government officials had blocked
Brosnahan's effort to speak with Lindh.
Were you involved in the decision to proceed with Lindh's
interrogation over the advice of the Professional
Responsibility Office?
Mr. Chertoff. I have to say, Senator, I think that the
Professional Responsibility Office was not asked for advice in
this matter. I'm familiar with the matter. I was involved in
it. I can say that there was advice about the law that was
solicited from parts of the Department that are expert in it.
There is a Supreme Court decision--it may be Moran v. Irvine,
but I may have the case wrong--which actually addresses the
issue of whether someone is held to be under the right to
counsel where they have not asked for counsel but where someone
else has hired counsel for them, and the Court there held that,
in fact, the person does not--is not treated as if they're
covered by counsel in that circumstance.
Senator Kennedy. Well, this is a father. Was that case
dealing with a father as a member of the family?
Mr. Chertoff. I believe it was a relative. Now, I should
say, Senator, there's a different issue presented when you're
dealing with minors. Lindh was not a minor, however. I
understand minors, you get--there's a somewhat different rule,
perhaps, about whether a parent seeking to invoke counsel has a
role to play. But Lindh was not a minor.
One thing I should point out is that I believe in the
motions that Mr. Brosnahan filed in the case, he did not
challenge--
Senator Kennedy. How was justice sort of served by not
following the request of the father of Mr. Lindh in terms of--
how was the justice served by going ahead and having the
interview after the father had indicated that he wanted him to
at least be able to talk to counsel?
Mr. Chertoff. I think as you'll recall, Senator, this, of
course, occurred I think in December of 2001, literally in the
battlefield in Afghanistan. And it would have been--had the
Department not accepted the position of the Supreme Court and
treated Mr. Brosnahan's request to meet with Lindh as
invocation of right to counsel, in practical terms it would
have meant there could have been no questioning of Lindh since
it was quite obviously not the case that a lawyer was going to
be flown into the battlefield in Afghanistan.
Senator Kennedy. Well, you are not suggesting that he was
being held in a battlefield? I mean, this was--that's not your
testimony--I mean, it's not--they were outside of where Lindh
was. I mean, it's my memory he was taken away from the
conflict, and he was moved around in the different secure
locations. You are not suggesting that the battlefield
conditions were such that an attorney couldn't have had some
access to him?
Mr. Chertoff. I think at some--
Senator Kennedy. How long does it take to fly over there,
18, 19 hours, maybe, to go to Afghanistan?
Mr. Chertoff. I know he was held in various places in
Afghanistan and then ultimately removed to a war ship. You
know, I have never flown to Afghanistan, but I think it would
have been impractical to imagine that an individual held under
these conditions in the middle of a conflict would be meeting
with an attorney. So I think the consequence of treating it as
an invocation of the right to counsel would have been
essentially to terminate any questioning.
I should say, though, that Mr. Lindh was Mirandized, and
had he requested counsel or requested to invoke his right to
silence at the point at which the FBI was involved, they would
have honored that request. And this was a matter which was--
certainly Mr. Brosnahan could have raised this issue before the
district judge. I don't believe that he actually sought to
suppress based on that ground.
Senator Kennedy. Well, what was the--do you remember what
the Professional Responsibility Advisory Office, what their
position was on this?
Mr. Chertoff. I think I've been--I have to be careful to
not get into matters that are not public. The Professional
Responsibility Office normally is not--well, let me put it this
way: I was not consulted with respect to this matter. There are
other parts of the Department that generally render opinions in
this area of the law and other expertise that was consulted.
Now, it may be that there are people who disagree with the
legal analysis we undertook, and that's not infrequently the
case.
Senator Kennedy. Well, your statement that the Professional
Responsibility Advisory Office did not have an official
position on this--
Mr. Chertoff. I don't believe they had an official position
on this.
Senator Kennedy. Well, I want to thank you very much, Mr.
Chertoff. Justice Callahan, Judge Coogler, I apologize I didn't
have a chance to inquire. I know that others did, and we want
to thank you for your patience here this morning. I commend you
for your nominations, as well as Mr. Chertoff, and I am
grateful for the chance to be able to ask these questions.
Since there is no other business before the Committee, it
will stand in recess. Thank you very much.
[Whereupon, at 11:41 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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NOMINATIONS OF RICHARD C. WESLEY, OF NEW YORK, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SECOND CIRCUIT; J. RONNIE GREER, OF TENNESSEE, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF TENNESSEE; THOMAS M.
HARDIMAN, OF PENNSYLVANIA, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF PENNSYLVANIA; MARK R. KRAVITZ, OF CONNECTICUT, NOMINEE TO
BE DISTRICT JUDGE FOR THE DISTRICT OF CONNECTICUT; AND JOHN A.
WOODCOCK, OF MAINE, NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF
MAINE
----------
THURSDAY, MAY 22, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:02 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Saxby
Chambliss, presiding.
Present: Senators Chambliss, Specter, and Schumer.
OPENING STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM
THE STATE OF GEORGIA
Senator Chambliss. [presiding.] The Committee will come to
order.
We are pleased to see so many of our colleagues here. It
looks like we almost have a quorum. This is great.
We want to issue a special welcome to all of our colleagues
from the Senate and to my dear, good friend, Congressman
Reynolds from the great State of New York. We are pleased to
have you all here to make statements regarding these nominees,
and I am going to submit my opening statement for the record,
because we do have such a large number of folks to speak, and
call first upon my colleague on the Committee, Senator Specter,
for any comments he has regarding these nominees.
[The prepared statement of Senator Chambliss appears as a
submission for the record.]
PRESENTATION OF THOMAS M. HARDIMAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman.
I am pleased to introduce a distinguished Pennsylvanian,
Thomas M. Hardiman, who is the nominee for the United States
District Court for the Western District of Pennsylvania. He has
a B.A. from the University of Notre Dame and a law degree from
Georgetown. He has had extensive practice in the Federal and
State courts. He has experience in securities litigation,
white-collar crime, bankruptcy, energy. He is a fellow of the
American Academy of Trial Lawyers, Allegheny County, and the
American Bar Association's House of Delegates.
He has been very active in community and civic affairs, is
a member of the Big Brothers and Sisters of Greater Pittsburgh,
the Duquesne Club. He has helped on Ayuda, a legal aid clinic
in Washington, where he has represented indigent Spanish-
speaking immigrants in political asylum, domestic violence, and
employment cases.
Tom Hardiman has achieved this outstanding record at an
early age of 37, and he comes to this Committee within a few
days of the retirement of Chief Judge Edward Becker, Chief
Judge of the Third Circuit, who became a Federal judge at the
age of 37 and has had an extraordinarily distinguished career,
and I think that Tom Hardiman at this vantage point has the
prospect of an equally distinguished career.
Now I yield to my colleague, Senator Santorum, if I may,
Mr. Chairman.
Senator Chambliss. Senator Santorum?
PRESENTATION OF THOMAS M. HARDIMAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA, BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. I thank the Chairman, and I thank my
colleague.
I would just echo Senator Specter's praises for this
incredibly qualified, bright, rising star in the legal field in
Pittsburgh. We are just very, very excited out in southwestern
Pennsylvania that someone of Mr. Hardiman's legal acumen and
tremendous community contributions at the age of 38, 39 is
willing to serve in the capacity of a Federal judge. He is
really considered one of the truly bright, rising stars in the
legal community in Pittsburgh, is someone who has been very
active, as Senator Specter said, in serving a lot of
underserved communities through is legal work, has been
tremendously involved in a lot of community and philanthropic
things as well as in political affairs.
He is a very well-rounded and bright person, and I am very
excited about his nomination and certainly would ask the
Committee to act favorably upon it.
Thank you.
Senator Chambliss. Thank you.
Senator Dodd, we are pleased to have you with us today.
PRESENTATION OF MARK R. KRAVITZ, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF CONNECTICUT, BY HON. CHRISTOPHER J. DODD, A
U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Dodd. Thank you very much, Mr. Chairman.
I apologize for getting here a couple minutes late, but I
thank the Committee--are you all done, Rick?
Senator Santorum. Yes. Have a seat.
Senator Dodd. I am going to try to pick up that chair--when
you serve in the minority, you get the small chairs here.
[Laughter.]
Senator Dodd. Times are tough here.
Thank you very much, Mr. Chairman, and members of the
Committee, for scheduling this hearing for Mark Kravitz, our
candidate for the bench in Connecticut.
I was mentioning to a number of people on my staff that I
was introducing someone named ``Kravitz'' today at this
hearing, and all of my younger staff got very, very excited--
they were under the impression that maybe a guy named ``Lenny''
was going to show up here--with all due respect, Mark, I
apologize.
Anyway, given that I am a member of the minority in the
body, I briefly considered that it might be more helpful for
Mr. Kravitz' prospects if I came out strenuously against his
nomination, but I decided against that, because on thoughtful
reflection, I have come to the conclusion that I can do nothing
but enthusiastically support this nominee, and I believe all of
you will as well as you get to know Mark Kravitz.
It is a pleasure to introduce him to the Committee. I would
also like to welcome his wife Wendy and their children, Jenny,
Lindsey, and Evan from Guilford, Connecticut.
It is always a pleasure, of course, to support the
nomination of highly-qualified people, Mr. Chairman, who are
professionally accomplished judicial nominees who can
demonstrate both the ability and the temperament to serve as
fair and objective Federal judges. It is especially gratifying
to support such nominees when they come from our home State of
Connecticut.
I believe that Mr. Kravitz possesses, as you will find, the
intellect, experience, and disposition to be an impartial
finder of fact, a faithful legal analyst, and a fair and just
jurist. I believe that he will bring a balanced and informed
perspective to the bench.
His resume, which I am sure you have had a chance to look
at, speaks for itself. Mark graduated magna cum laude and phi
beta kappa from Wesleyan University in Middletown, Connecticut.
He later graduated from Georgetown Law School, where he was
managing editor of the Law Review. He clerked for Judge James
Hunter of the Third Circuit Court of Appeals and Supreme Court
Justice William Rehnquist.
He is currently a partner and head of the appellate
practice of the highly-respected law firm of Wiggin and Dana in
New Haven, Connecticut, where he has worked since 1976. He has
served as lead counsel on more than 60 appeals to the State and
Federal courts and has argued before the United States Supreme
Court on numerous occasions.
He has been listed as one of the beset lawyers in America
since 1991. He has been elected as a fellow to the American
Academy of Appellate Lawyers. He is also endorsed by the
Connecticut Bar Association as ``exceptionally well-qualified''
to be a District Judge, and has been unanimously rated as
``well-qualified'' by the American Bar Association.
Mark has represented a very diverse array of clients, Mr.
Chairman, over the years, including private institutions such
as Yale University and organizations representing public
interests such as the Stamford Zoning Board. He has extensive
experience with land use law, zoning regulations, and has also
published considerable material on the issues of privacy and
the evolution of internet law.
He is also very well-respected for his efforts to keep
government open and acceptable. He was director of the
Connecticut Foundation for Open Government and in 1995 received
the Deane C. Avery Award for advancing the cause of freedom of
information and freedom of speech in Connecticut.
Mr. Chairman, I think this is particularly important given
the time in which we live, in an age when many are concerned
that the desire for national security may lead to the erosion
of core American rights such as freedom of speech and
information. I believe it is an integral part of our judicial
system that we have judges who are of a deep respect and
understanding for these Constitutional principles and who will
be charged with upholding and defending our Constitution.
Mark Kravitz possesses a deep commitment to these civil
liberties, and I know he will be a fine judge. For those
reasons, Mr. Chairman, I would ask that the remainder of my
remarks be included in the record and highly comment this
nomination to you and to the Committee. My colleague Joe
Lieberman would do so as well, and I presume he will be
submitting a statement to that effect.
This is a wonderful nomination. We thank Governor Rowland,
and I think you will find that the entire delegation is
strongly behind this nomination. It is a first-class nomination
and will do us all very proud.
Senator Chambliss. Thank you very much for appearing on
behalf of Mr. Kravitz, and while you may be in the minority,
when it comes to being a great American, you are very much in
the majority; you are truly one, and Mr. Kravitz is very
fortunate to have you here recommending him today, Chris, so
thank you very much.
Senator Dodd. Thank you, Saxby, very much.
Chuck, thank you, too.
Senator Chambliss. Senator Snowe?
PRESENTATION OF JOHN A. WOODCOCK, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MAINE, BY HON. OLYMPIA J. SNOWE, A U.S.
SENATOR FROM THE STATE OF MAINE
Senator Snowe. Thank you, Mr. Chairman and members of the
Committee. I thank you for the opportunity today to be able to
introduce to you John Woodcock, the President's nominee for
Federal Judge for the U.S. District Court for the District of
Maine in Bangor and to express my strong and unequivocal
support for his nomination.
Mr. Chairman, Maine's U.S. District Court has a long and
storied history. It is one of the first such courts that was
established in 1789, and remarkably, should John Woodcock be
confirmed, he will become only the 16th judge appointed by the
President of the United States in its 213-year history.
Mr. Chairman, Maine has an established and well-deserved
reputation for selecting outstanding trial judges, and I can
say without hesitation or reservation that John Woodcock will
not only uphold but enhance this reputation, and his tenure
will reflect the finest ideals and expectations of our Federal
judiciary and the people it exists to serve.
The position for which Mr. Woodcock has been nominated is
the lone Federal judge position in northern Maine. So with the
vacancy created almost a year ago by Judge Gene Carter's
elevation to senior judicial status, it is critical that it be
filled as expeditiously as possible, so I appreciate the
promptness and the responsiveness of this Committee to this
confirmation.
With a nominee of Mr. Woodcock's exceptional caliber, I can
think of no one more qualified to make that happen, and I am
confident that as you become more familiar with John Woodcock's
record and qualifications, you will agree that he has the depth
of experience, the temperament, and the integrity demanded by
the gravity of the office for which he has been chosen.
With roots deep in the Bangor community--in fact, his
family has been there for generations--John grew up in Maine's
third-largest city. He attended John Bapst High School in the
heart of downtown. He went on to further his education and
graduated from Bowdoin College and the University of Maine
School of Law before completing his master's degree at the
London School of Economics--but we have forgiven him for that
mild transgression of leaving the State for a few years--as he
returned thereafter to his home and began his law career in
Bangor 26 years ago.
Today, he is with the Bangor law firm of Woodcock,
Weatherbee, Burlock, and Woodcock, having argued 46 cases
before the Maine Supreme Judicial Court. He has also served on
the Maine Supreme Judicial Court Advisory Committee on
Professional Responsibility.
It is no surprise, Mr. Chairman, that John Woodcock has
garnered deep respect and strong support in Maine and
nationally. The American Bar Association unanimously named John
Woodcock as ``well-qualified.''
In Maine, the Federal Judicial Nomination Advisory
Committee that Senator Collins and I assembled, with over 270
combined years of practicing law, selected John Woodcock as
their top recommendation, reflecting the esteem in which he is
held by the entire legal community in the State of Maine. And
former Senator and Secretary of Defense Bill Cohen has said of
John that in his years of practice, John has developed a
statewide reputation as a skilled litigator and an effective
counselor. He has deep experience in litigation at trial and
appellate levels and is well-regarded throughout the Maine Bar.
Mr. Chairman, I would ask that a copy of Secretary Cohen's
letter be included in the record of proceedings.
Mr. Chairman, to that, I would only add from my layman's
point of view that the best trial judges are distinguished by
their ability to balance several sometimes competitive personal
dynamics. They balance broad life exposure with specific
courtroom experiences, raw legal aptitude with common sense,
patience with firmness, and intellectual curiosity with focused
decisionmaking.
Well, John Woodcock has proven his ability to display all
these vital traits, plus one more--the ability to balance work
with family. I am delighted, Mr. Chairman, to tell you that his
family is here today--his sons, Patrick, Chris, and Jack, who
works on the Governmental Affairs Committee for Senator
Collins, and of course, his great wife, Beverly.
Mr. Chairman, in conclusion, I am most proud to be able to
come before this Committee to introduce to you a candidate with
the credentials that Mr. Woodcock possesses in abundance. With
his substantial and broad legal and courtroom experience as
well as his keen intellect and perspective, solid character,
and outstanding reputation, he has the ability to manage a
challenging docket.
So I am convinced that you will leave this hearing, Mr.
Chairman and members of the Committee, as impressed with John
Woodcock as we all have been in Maine.
Thank you, Mr. Chairman.
Senator Chambliss. Thank you, Senator Snowe. We look
forward to hearing from Mr. Woodcock a little later.
Senator Alexander?
Senator Alexander. Thank you, Mr. Chairman.
I wonder if Senator Collins would like to go ahead, Mr.
Chairman, since we were talking about the Maine judge.
Senator Chambliss. That would be very gracious on your
part.
Senator Collins, we will be glad to hear from you, and then
probably Senator Frist, before we get back to you, Senator
Alexander.
Senator Schumer. Are there any objections to that, Senator
Alexander?
[Laughter.]
PRESENTATION OF JOHN A. WOODCOCK, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF MAINE, BY HON. SUSAN COLLINS, A U.S.
SENATOR FROM THE STATE OF MAINE
Senator Collins. First, let me apologize to my colleague
that I was not here for her statement.
Thank you very much, Mr. Chairman, members of the
Committee, and members of this distinguished panel. It is my
distinct pleasure to speak on behalf of John Woodcock's
nomination to be a District Judge for the District of Maine.
I have known John and his wife Beverly for many years. In
fact, John recruited me many years ago to serve on the board of
Eastern Maine Medical Center which he has chaired for 23 years.
This is typical of John's service to his community. He has
devoted countless hours volunteering his time and energy to his
alma mater, Bowdoin College, Eastern Maine Charities, the Maine
State Commission on Arts and Humanities, the Good Samaritan
Agency, and the Bangor Children's Home, to name just a few.
The Woodcock family has a proud tradition of public service
that spans generations. In fact, two of John's sons, I am
pleased to say, have worked as members of my staff. His son
Jack currently serves on my Governmental Affairs Committee
staff, while his son Patrick worked for me in my Bangor office
and will be returning this summer.
Their hard work and professional demeanor is proof that the
apple does not fall far from the tree, and I am pleased that
they are all here for this hearing today.
Let me tell you just a little more about John's
qualifications to be a Federal judge. He began practicing law
nearly 30 years ago and has built a distinguished career as a
litigator. He has served as an assistant district attorney for
the State of Maine and has worked in private practice as an
associate and partner of several law firms in our State.
During his career, John has served as lead counsel in 47
separate appeals to the Maine Supreme Judicial Court on issues
ranging from criminal law to trust law. John has also taken an
active role in improving the standards of the legal profession,
serving on the Maine Supreme Judicial Court's Advisory
Committee on Professional Responsibility.
Those of us familiar with John's sterling character and
stellar legal career were not surprised when the American Bar
Association's Standing Committee on the Federal Judiciary
unanimously rated him as ``well-qualified.'' Indeed, it would
be difficult for Senator Snowe and I to come up with any other
candidate better suited to serve as a Federal judge in the
State of Maine.
John has the intelligence, temperament, and integrity to
serve on the Federal bench. I have every confidence that he
will be a superb Federal judge; he will faithfully follow the
laws interpreted by higher courts and bring justice to the
parties before him.
I whole-heartedly and enthusiastically support John
Woodcock's nomination, and I hope that this distinguished
Committee will unanimously approve him.
Thank you very much for the opportunity, and to my
colleagues for their courtesy.
Senator Chambliss. Thank you very much, Senator Collins for
being here.
Next, the Majority Leader, Senator Frist.
PRESENTATION OF J. RONNIE GREER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TENNESSEE, BY HON. BILL FRIST, A
U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Frist. Mr. Chairman, thank you. I appreciate the
opportunity to be here for a few minutes to introduce and
express my strong personal and professional support for J.
Ronnie Greer's nomination as a United States District Court
Judge for the Eastern District of Tennessee.
I thank the Chairman, the Ranking Member, and members of
the Committee, for this opportunity.
Mr. Chairman, people who hail from the mountains of
northeast Tennessee are known for their loyalty, for their
integrity, for their steadfastness, for their can-do spirit,
and indeed, Ronnie Greer personifies that rich tradition.
For the past 19 years, Judge Thomas Hull has served as
District Judge in Tennessee's Eastern District, and his
distinguished career will long be remembered, and indeed, Judge
Hull's shoes are large and will be big to fill. I am confident,
absolutely confident, that Ronnie Greer will do so.
Ronnie has been a personal friend for the past 6 years. He
is an accomplished public servant. He has served as an attorney
in Tennessee's judicial system with great distinction for the
past 20 years. His academic career speaks for itself--he
graduated at the top of his class at the University of
Tennessee Law School and was invited to be on Law Review.
He has had a distinguished career in politics and public
service outside of his law practice. He was a State Senator in
Tennessee's General Assembly for 9 years, ably serving the
people of his district, District One. There, he served on both
the Judiciary Committee and as Chairman of the Environment,
Conservation and Tourism Committee.
Ronnie also served, as you will shortly hear, as special
assistant in Governor Lamar Alexander's first term, forming a
bond and a friendship that continues to this day.
In closing, Mr. Chairman, I tell you that you cannot demand
respect from the people of northeast Tennessee--you earn it.
And Ronnie has done so without any question. He is known for
his sense of fair play and his compassion. With his easy-going,
thoughtful manner yet quick mind and keen legal ability, he has
the temperament and mature judgment that is necessary and
required for the Federal bench.
Mr. Chairman, Ronnie Greer's dedication to the citizens of
our State, his true love of the law, and his desire to serve
his country make him an ideal choice to serve as a U.S.
District Judge. He has my highest recommendation and my
unqualified support, and I thank your Committee for scheduling
this hearing for his presentation today.
Senator Chambliss. Thank you very much for being with us.
Senator Alexander?
PRESENTATION OF J. RONNIE GREER, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF TENNESSEE, BY HON. LAMAR ALEXANDER,
A U.S. SENATOR FROM THE STATE OF TENNESSEE
Senator Alexander. Thank you, Mr. Chairman.
I am glad I got elected to the Senate in time to join
Senator Frist in recommending to the President Ronnie Greer to
be the judge in the Eastern District of Tennessee at
Greeneville. Let me not be redundant about what Bill said, but
let me see if I can add to it a little bit.
Arthur T. Vanderbilt, who was the dean of the New York
University Law School, used to encourage his students to
practice law ``in the grand manner,'' and by that, he meant
that they be superb litigators, wise counselors, and that they
understand the people whom they served and that they were
respectful of those persons. He also meant that they be
involved during their time in public service. It has gotten
harder to do all those things as a lawyer these days because
the practice is so specialized, but Ronnie Greer has been able
to do that throughout his career.
He is all of those things that the Majority Leader has
said, and the point that I would like to emphasize is the
breadth of his knowledge and the breadth of his skills. He has
tried approximately 200 cases in State and Federal courts. He
has served as a county attorney. He has been in civil and
criminal litigation. He has tried cases in personal injury, in
criminal defense, and environmental law. He has represented
defendants in criminal cases. He has represented numerous
indigent clients in pro bono cases.
And in public service, he has a long and distinguished
career and has been named Conservationist of the Year, chaired
committees, been elected by the people he served and been
Chairman of his political party's activities.
So while Arthur Vanderbilt probably did not have in mind
anybody from upper East Tennessee, from the town where former
Senator Andrew Johnson, President Andrew Johnson, once lived,
he would have been proud of Ronnie Greer just as Senator Frist
and I are proud to recommend him. He knows East Tennessee. He
knows the law. I have known him since he was a student body
president at East Tennessee State University. He is one of the
most exceptional citizens we have in our State, and we are
fortunate that the President chose to nominate him to be
Federal District Judge for the Eastern District of Tennessee.
Thank you.
Senator Chambliss. And he certainly graduated from an
outstanding law school.
We have a vote which started about 3 minutes ago, but I
would like to see if we can't rush through with our colleagues
who are here.
Senator Schumer, do you want to go first, or do you want to
let them go? Normally, the senior Senator would go first, and I
want to let you have as much time as you want.
PRESENTATION OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SECOND CIRCUIT, BY HON. CHARLES E. SCHUMER, A U.S.
SENATOR FROM THE STATE OF NEW YORK
Senator Schumer. I will be brief.
I just want to welcome my colleagues here--Senator Clinton,
of course, and we have a special guest. It is rare that
somebody from the House comes by, but Congressman Reynolds was
really instrumental in bringing Judge Wesley to the Committee's
attention. They have known each other for many years. And I see
a third member of the triumvirate, former Congressman Paxon, in
the back; they are a great group as well. I also want to thank
his family for being here as well, including his mother, who is
86, God bless.
Mr. Chairman, I am in full support of Judge Wesley's
nomination. Like most nominees we see, he has a top-flight
legal mind and experience. He graduated summa cum laude from
SUNY Albany and Cornell Law School, worked in private practice
for several years, and served in the New York State Assembly a
few years after I did, from 1983 to 1987.
Mr. Chairman, this is not a nominee who comes before us
where it is well, maybe someone wants him, so we should make
him a judge. He is so well-qualified; he has made an excellent
judge in New York State, and he will just be a superb judge
here.
I have always had three criteria in the judges that I have
nominated--excellence, legally excellent; moderation--I do not
like judges to be too far right or too far left; and diversity.
Judge Wesley is good on two of the three. But our previous two
nominees, to the President's credit, the previous two nominees
to the Second Circuit are Judge Parker, an African American,
and Judge Raggi, a woman, so in a sense you are the diverse
candidate today, Judge Wesley, and you meet all three criteria.
I just want to make one point, and I will ask that my whole
statement be read in the record, because I know that Senator
Clinton and Congressman Reynolds want to say something before
we have to break for the vote.
I think that what has happened in New York is a model for
how we can all get along. The nominees have been excellent
nominees. Most of them probably philosophically do not disagree
with Senator Clinton and me on every issue, but they are all in
the mainstream.
I thought I would just read you Judge Wesley's own judicial
philosophy, which he wrote: ``I consider myself a conservative
in nature, pragmatic at the same time, with a fair appreciation
of judicial restraint. I have always restricted myself to what
I understand to be the plain language of the statute and not
gone beyond that, because public policy is made by the
legislature.''
To that, I say amen. We look forward to hearing from you,
Judge. We welcome your family here. I believe you will be a
great judge on the Second Circuit, the long-distinguished
Second Circuit, of the United States
I would just ask unanimous consent that my entire statement
be read into the record.
Senator Chambliss. Certainly; without objection.
Senator Clinton?
PRESENTATION OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SECOND CIRCUIT, BY HON. HILLARY RODHAM CLINTON, A U.S.
SENATOR FROM THE STATE OF NEW YORK
Senator Clinton. Thank you, Mr. Chairman, and I too would
like my entire statement in the record.
I want to welcome not only Judge Wesley but also his mother
Beatrice and his daughter Sarah and his son Matthew. I had a
brief visit with Mrs. Wesley, and it is not any accident that
her son is here today, moving toward confirmation for the
Second Circuit Court of Appeals.
Mr. Chairman, it is certainly not a requirement that a
candidate for the Federal judiciary has significant public
service experience, but many of us in New York are extremely
proud of the way that Judge Wesley has not only been a superb
jurist but has continued to care about the quality of justice
and has used his extraordinary experience to try to improve the
lives of the people who appear before him and far beyond that.
He has a distinguished academic record, and for the past 16
years, he has served New York State courts with distinction. As
a trial court judge, he instituted a Felony Screening Program
that reduced the delay in processing felony cases by over 60
percent. That served as a model for other judicial districts
across New York.
He also created the JUST Program, which provides services
to court and criminal justice agencies in Monroe County, to
monitor pre-plea and pre-sentence defendants and to provide
program alternatives to incarceration.
He has been a champion for victims of domestic violence. He
was at the forefront of working to provide shelters for victims
of domestic violence long before it became an issue that
captured the attention of most of the rest of us.
After serving for 7 years on the trial court, he was
appointed as a justice of the Appellate Division, New York
State's intermediate court, and for the past 6 years, he has
served as an associate judge of New York State's highest court
and one of the most preeminent State court's in our Nation--the
New York State Court of Appeals.
All that one has to do is to look at his record, talk to
his colleagues, to know that this is a candidate for the
Federal judiciary who will serve with the same distinction on
the Second Circuit that he has brought to his experience on the
New York courts.
Now, as we consider his confirmation, I cannot help but
mention as well that this will be the first Western New Yorker
to serve as an associate judge of the Second Circuit for 29
years, when we had our last appointment. And it is long
overdue, as I am sure Congressman Reynolds would agree, that we
have someone from the western part of our State serving on this
preeminent and essential Court of Appeals.
So I not only endorse Judge Wesley whole-heartedly, but I
endorse the bipartisan process that leads him to be nominated
and thank the President for forwarding this nomination and
certainly thank his long-time friend and champion, Congressman
Reynolds. He will serve with distinction, and we are very proud
to offer this nomination to the Committee.
Senator Chambliss. Thank you for your comments and for
being here.
Congressman Reynolds?
PRESENTATION OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE
FOR THE SECOND CIRCUIT, BY HON. THOMAS REYNOLDS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Representative Reynolds. Mr. Chairman, it is with high
honor and privilege to appear before you as the Chairman of our
proceedings today, and Senator Schumer, members of the
Judiciary Committee, thank you for the courtesy of allowing me
to come here today. It is a great honor for me to be here on
behalf of my good friend, Judge Richard Wesley.
Dick Wesley and I have been close friends for more than 20
years, and it is a pleasure to share with this Committee why I
believe he is such a tremendous choice for the United States
Circuit Judge for the Second Circuit.
Since his election to the New York State Supreme Court in
1986, Judge Wesley has earned the respect and praise of his
colleagues and indeed, our entire State, for his temperament,
intellect, and commitment to and the love of law.
Judge Wesley was appointed by then Governor Mario Cuomo to
the Appellate Division of the Supreme Court in 1994 and to the
Court of Appeals by Governor Pataki in 1996. Despite their
divergent political views, both Governors Cuomo and Pataki
shared a common thread in their appointments to the New York
courts--a desire to select only the best and the brightest that
our State has to offer. Both chose Judge Richard Wesley.
Indeed, we are seeing that again today. Nominated to the
Federal bench by President Bush, Judge Wesley enjoys the
support of both of our Senators, Senator Schumer and Senator
Clinton. That is because Judge Wesley's devotion to the law
transcends partisanship.
Despite Judge Wesley's rise to the highest levels of the
New York judiciary, he remains firmly grounded and deeply
rooted in his community. The son of a truck driver and a nurse,
Judge Wesley has never forgotten where he came from. And I note
to this Committee that joining Judge Wesley today is his
mother, Betty, his wife, Kathy, and their children.
Indeed, even though this is probably one of the biggest
weeks of his career, Judge Wesley was at the local rotary club
just a couple of days ago, speaking to them about what he cares
so passionately about--the law. Active in his community, Judge
Wesley spends evenings and weekends driving an ambulance in a
volunteer ambulance corps. And that is an important part of who
Judge Wesley is--a man who always remembers his roots and who
has retained throughout his career the small-town values that
he grew up with.
Senators I am grateful to you for your consideration of
Judge Wesley as circuit court judge. By virtue of his
experience and his background, his character, and his
integrity, his knowledge of and devotion to the law, our Nation
and our judiciary will be well-served by his appointment. I
respectfully ask this Committee to support Judge Richard
Wesley's nomination as United States Circuit Judge for the
Second Circuit.
Thank you.
Senator Chambliss. Thank you very much, Congressman
Reynolds, for being here.
Judge Wesley, you not only have strong bipartisan support
within the House and the Senate, but also, as my good friend,
Senator Schumer mentioned, Bill Paxon, is here with his better
half, Susan Molinari, to support you. They are great Americans
also. We look forward to hearing from you.
Senator Schumer. Let me add my welcome to Susan; she was
hiding, I guess. I did not see her. Great.
Senator Chambliss. We are going to adjourn in order for us
to vote, and we will come back and hear from our nominees.
[Recess.]
Senator Chambliss. Senator Schumer is on his way back, but
I am going to ahead and start for the sake of time.
Judge Wesley, if you will come up and take a seat, please.
We are very pleased to have you here after those glowing
recommendations; that says an awful lot about what you have
accomplished over the last number of years practicing law and
sitting on the bench, Judge. So we are certainly pleased to
have you here today, and we are happy to hear any opening
statement you would like to make.
Would you stand and raise your right hand, please?
Judge Wesley. No problem, Mr. Chairman; glad to do it.
Senator Chambliss. Do you solemnly swear that the testimony
you are about to give before this hearing shall be the truth,
the whole truth, and nothing but the truth, so help you, God?
Judge Wesley. I do.
Senator Chambliss. I should have sworn our friend Tom
Reynolds. I have a few questions I would like to ask him.
[Laughter.]
Senator Chambliss. Judge Wesley, we are pleased to have you
here, and we welcome any statement that you would like to make.
STATEMENT OF RICHARD C. WESLEY, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SECOND CIRCUIT
Judge Wesley. I have no opening statement to make, other
than perhaps to introduce my family to you, Mr. Chairman.
Seated directly behind me are my wife of soon to be 25
years, Kathy Wesley. Two over from her, the other woman long-
term in my life, my 82-year-old mother, Beatrice Wesley, who
continues to reside in the house that my father built for my
brother, me, and her in 1949. To my wife's left, my daughter,
Sarah Elizabeth Wesley, who is a Cornell University graduate
and is about to enter the University of Buffalo Law School in
the fall--I tried to get her to go 2 years ago, but she has a
mind of her own. And at the end, my ``baby,'' my son, Matthew
Richard Wesley--I am fond of his middle name--who is currently
now to be a senior at Cornell University, studying business.
[The biographical information of Judge Wesley follows:]
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Senator Chambliss. Very good. As with all of us, they are
the ones who make life worth living every day, and you
certainly have a very beautiful family there.
We are pleased to have all of you with us today.
Judge Wesley, you have had significant experience in
private practice, as a legislator and as a judge at both the
trial and the appellate levels. How do you think that
experience has prepared you to serve on the Second Circuit?
Judge Wesley. Mr. Chairman, I have been very, very
fortunate, and it is a good question, because I think to some
degree, it reflects upon my life, and I appreciate your asking
me.
I have been very blessed in my life. I have had the
opportunity to serve in the State legislature; I have served as
a trial judge in the State courts and then worked my way up
through the intermediate courts. And I think it is important
for a judge to always keep their feet firmly grounded in the
practical realities of life.
The Second Circuit presents a new challenge for me, and I
am excited about it, Mr. Chair, if I am so fortunate to be
confirmed. It presents me with the opportunity to continue to
deal with State law with regard to diversity cases, but opens
up to me a whole new area of law with the Federal jurisdiction
and the Federal issues that are presented to the Second
Circuit.
Senator Chambliss. Frankly, Judge, one problem that I
always have as we engage in these hearings is making sure that
we have people serving on the bench who are judges, judges who
are there to interpret the Constitution and not make law,
because there is a tendency to sometimes move over into that
area.
You have been a legislator, you have been a judge, and I
would like you to comment on your philosophy on interpreting
rather than legislating from the bench, as well as your ability
to look at the Constitution, follow precedents, and interpret
the law.
Judge Wesley. Mr. Chair, I appreciate the question, and it
is a question I think that presents itself regularly to the
American people.
I live in the town where I was born, the Town of Livonia,
and occasionally I am called to go to the Livonia Post Office,
and every once in a while, someone at the post office will say,
``What was that court thinking about when they did that most
recent decision?'' I call it ``the Livonia Post Office test,''
and I regularly apply it to some of the writings my colleagues
present.
Senator Schumer mentioned a statement that I had made at
the time of my nomination by Governor Pataki; I reaffirm it. I
view myself as having a great deal of healthy respect for the
wide diversity of opinions and the forum of public opinion, the
legislature, my most recent experience being the State
legislature, and certainly the national legislature, the
Congress. When one comes from a State like New York, as wide
and diverse as New York, and one has the opportunity to serve
in the State Assembly, one begins to appreciate how many
different points of view there are in my great State, and
certainly that is multiplied 10-fold--or 50-fold, quite
frankly--with regard to the issues that present themselves in
the national Congress.
My view is to continue to respect the separation of powers
and the responsibilities of the Congress and to do my job to
examine the statutes enacted by the Congress and the plain
intent and meaning of those statutes as expressed in the
language therein.
Senator Chambliss. Judge, you have been active in efforts
to improve the judicial process, to improve the fairness and
efficiency of criminal courts, and to reach out to youth groups
to help them understand the law. Could you please explain to
the Committee what you have done in these areas and the results
that you have achieved?
Judge Wesley. I will deal with the second part of the
question first, Mr. Chair. I have had the opportunity on many
occasions to go into classrooms. There was a time in my life
when I had anticipated being a teacher, and I think all good
lawyers and all good judges are to some degree teachers in the
sense that they need to explain their positions and/or to
educate others with regard to the opinion that they are writing
or the position that they are taking as an advocate. So I enjoy
immensely the opportunity to go into the classroom and talk to
people, to young people in particular.
When I was a young boy, as was indicated earlier, my dad
was a truck driver. I am very proud of that. It was a wonderful
experience; I got to ride all over Western New York with him.
And my mom was a nurse. Prior to that, she worked in a butcher
shop. I always thought that was an interesting switch from
butcher shop to being a nurse.
But we come from humble sorts, and I never had any idea
what it meant to be a lawyer. There were not many shows about
law on TV. But I was very fortunate to have met a lawyer, a
practicing lawyer in my home town, who talked with me about it
and got me interested in it.
So I try to repay that. I think we have an obligation as
professionals--we are blessed with the license to practice
law--to go back and to spread the good news about practicing
law among young people.
With regard to the second aspect of your question, in 1991,
I was the supervising judge of the criminal courts in the
Seventh Judicial District in Western New York. It is a seven-
county area that goes from Rochester to the Pennsylvania
border, about 1.5 million people. The primary court, though, is
located in Monroe County. Monroe County is a county of about
750,000 people.
At that time, there was a backlog of criminal indictments
of around 220 indictments or more, most of which were over 6
months in length. And it struck me that there were several
people who were incarcerated, indigents who could not make
bail, who had at in the county jail for upwards of 18 months to
2 years before their trial.
It further occurred to me that the victims of the crimes
for which those defendants were charged had waited over a year
and a half to 2 years for the court to render justice.
And finally, it occurred to me that from a prosecutor's
standpoint, the memories of the witnesses that would be called
to testify in those trials might grow dim.
I brought the district attorney together--Howard Rellan
happens to be a good friend of Senator Schumer--the public
defender of Monroe County, a fellow by the name of Edward
Nowak, and representatives of the private criminal defense bar,
along with court staff, right from court clerks to court
stenographers to probation officers, and we tried to look at
the system as a whole to see why the system was not producing
opportunities to fairly and quickly adjudicate matters.
Through a collaborative effort of all those people--
attorneys, clerks, civil servants--we rolled up our sleeves,
and we got the job done in a thing called the Felony Screening
Program. Quite simply, Mr. Chair, it was an opportunity to look
at a case very early on, to assess it, to assess its
provability--in the vast majority of cases in which the
defendant who is arrested ultimately pleads to some crime
arising from his or her activity--and to sweep away those cases
which could be resolved in a fast fashion and to identify the
difficult cases that would need to go to trial.
As mentioned earlier by Senator Clinton, the results were
startling. I must tell you I was totally shocked at how quickly
we worked away at the backlog--and there was not magic to it,
Senator. It was just people of good will, of many different
perspectives, working on a problem together.
It became a model that others have adopted around the
State. I am quite proud of it and thankful that I had the
opportunity to work on it.
Senator Chambliss. Well, you are to be commended for making
that effort, Judge. As somebody who practiced law for 26 years,
I know that we all do not do enough work of that nature to make
sure that justice does prevail in every instance and in every
corner of our great country, so I commend you for that.
And having come from a similar background as you did, I
know the hard work and dedication that you have endured to get
to where we are, so we look forward to moving forward with your
nomination.
Judge Wesley. Thank you.
Senator Chambliss. I understand that Senator Schumer is
stuck in a Committee meeting. I regret that you will not have
to endure the stern cross-examination that Senator Schumer
always brings--and since he is my good friend, I can say that
about him.
But we are pleased to have you here and thank you very much
for your testimony today.
Judge Wesley. Thank you very much, Mr. Chair.
Senator Chambliss. I will ask the third panel--Mr. Greer,
Mr. Hardiman, Mr. Kravitz, and Mr. Woodcock if they would now
come forward.
If each of you would raise your right hand--do you solemnly
swear that the testimony you are about to give in the matter
now pending before this Committee shall be the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Greer. I do.
Mr. Hardiman. I do.
Mr. Kravitz. I do.
Mr. Woodcock. I do.
Senator Chambliss. Thank you.
Mr. Greer, we will start with you and move to your left and
welcome any opening statement. And I will say initially, Mr.
Greer, having grown up in the early years of my life in East
Tennessee, up on the Cumberland Plateau, in Monteagle and
Sewanee, and having gone to the University of Tennessee, I am
pleased to see you here. It is always nice to see somebody else
come out of East Tennessee and do particularly well, as you
have done, so we are pleased to have you here.
STATEMENT OF J. RONNIE GREER, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF TENNESSEE
Mr. Greer. Thank you very much, Mr. Chairman. I certainly
appreciate those comments.
It is a great honor to be here today and at the same time,
a very humbling experience.
I do not have an opening statement. I would simply like to
express my appreciation to both Senator Frist and Senator
Alexander for their comments earlier and, if I may, would like
to introduce my family and friends who are here today.
Senator Chambliss. Please do.
Mr. Greer. I would like to first of all introduce my wife,
Bunny, who is in the second row here.
Senator Chambliss. Let them stand up if you will, so we can
see you back there.
Mr. Greer. And my friends, Billy McCamey and Peggy
Freshour, who came here from Greeneville to lend support today,
and I appreciate them being here very much.
Bunny and I have a 6-year-old daughter. We did not bring
her today--we thought that might be a little much--and she has
been very busy this week with kindergarten graduation and dance
recitals, so we decided to leave her at home. But I am very
proud of my family and very proud to have my family and friends
here today.
Senator Chambliss. Great. Well, we can sure understand why.
Thank you.
Mr. Hardiman?
[The biographical information of Mr. Greer follows:]
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STATEMENT OF THOMAS M. HARDIMAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Mr. Hardiman. Thank you, Mr. Chairman.
Like my colleague and fellow nominee, Mr. Greer, I am
humbled and privileged to be here. I thank President Bush for
the nomination. I thank Senators Specter and Santorum for those
kind words.
I do not have an opening statement, but if the chair would
permit, I would like to introduce my family and friends who are
with us.
Senator Chambliss. Certainly.
Mr. Hardiman. First, my wife Lori is here; my daughter Kate
and my son Matthew are both here. Unfortunately, our daughter
Marissa did not make the trip, was not able to be here.
I am privileged to have my parents, Bob and Judy Hardiman,
and also especially privileged to have my secretary of many
years, Kay Wilkinson, here, and her husband Jerry is with us
and also the Wilkinson family--Roy, Sheila, and Cassandra. I am
very happy that they made the trip down from Pittsburgh as
well.
Senator Chambliss. Great.
Thank you all for being here.
Mr. Kravitz, we are glad to have you here.
[The biographical information of Mr. Hardiman follows:]
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STATEMENT OF MARK R. KRAVITZ, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF CONNECTICUT
Mr. Kravitz. Thank you very much, Mr. Chairman.
I too am humbled and honored to be here, and I thank the
Committee for scheduling this hearing.
I also thank Senator Dodd for his very generous remarks and
Senator Lieberman for his support and President Bush for
nominating me.
I do not have an opening statement, but I would, if the
chair would indulge me, like to introduce my family who has
joined me today.
Senator Chambliss. Certainly.
Mr. Kravitz. My daughter Lindsey, who is all the way down
at the end, just this past Sunday graduated from Connecticut
College and is off to teach in the Teach for America Program.
Next to her is my daughter Jenny, who is currently a teacher
but is going back to her academic career, pursuing a graduate
degree at Yale in the fall. We are quite proud of both of them.
We are also proud of my son, Evan, who is next to them. He
is an eighth-grader at the Hampden Hall School. And last but
not least is my wife, Wendy. Wendy and I have been married for
31 years, and we met each other as juniors in high school.
I would like to acknowledge as well, if I may, my mother,
Marian Kravitz, and my late father, Paul Kravitz. Neither of
them could be with my physically today, but I am certain they
are here in spirit.
Thank you, Mr. Chairman.
Senator Chambliss. Well, we are pleased to have such a
good-looking family here supporting you today.
Mr. Woodcock, we are glad to have you with us.
[The biographical information of Mr. Kravitz follows:]
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STATEMENT OF JOHN A. WOODCOCK, NOMINEE TO BE DISTRICT JUDGE FOR
THE DISTRICT OF MAINE
Mr. Woodcock. Thank you, Mr. Chairman.
Like the others, Mr. Chairman, I thank you for the
opportunity to come here today and to address you.
Like the others, I have no opening statement, but I would
like to thank President Bush, and Senator Snowe and Senator
Collins for their really marvelous comments.
If I could engage your indulgence for a moment, I would
like to introduce my family.
Senator Chambliss. Sure.
Mr. Woodcock. My wife of nearly 30 years, Beverly, is here,
along with my oldest son, Jack, who traveled all the way
downstairs from the Governmental Affairs Committee to be here
today. My second son, Patrick, is here today. He is a junior at
Bowdoin College. And my youngest son, Chris, is a junior at
Hampden Academy, which is a local public school.
In addition, if I may, Mr. Chairman, my sister, Emmy
Templeton, came down to be here today from New Jersey; and my
younger sister, Libby Woodcock, traveled all the way down from
Vermont, where she serves as an assistant U.S. attorney, to be
here today.
I would like to recognize them as well.
[The biographical information of Mr. Woodcock follows:]
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Senator Chambliss. We thank all of you for being here and
for supporting these outstanding nominees. It is always nice to
have your family stand by you in moments of glory, and that is
what we are here today to talk about.
Mr. Greer, I am going to start with you. You have had
extensive experience in the legislative branch of government.
You were a State Senator in the Tennessee General Assembly, and
you were involved in the process of making law in that
capacity.
In my view, a judge's role is not to create law but to
follow the law as is created by the legislature. Do you believe
that the proper role of a Federal judge is to uphold the
legitimate will of the people as expressed in law created by
the legislature, or to impose his or her own view of what is
wise or just?
Mr. Greer. Thank you, Mr. Chairman. That is a very
important question for a judge.
I frankly believe that my experience in the legislature has
given me an unusual perspective maybe on this issue. I have had
the great fortune in my life to be able to serve in all three
branches of government. I was in the executive branch when I
served as a county attorney, and earlier than that, on then
Governor Alexander's staff. As you said, I was in the State
Senate for 9 years, and I have been a practicing attorney for
more than 20 years now.
I think that experience has given me a very clear
understanding of the difference between the role of a
legislator and the role of a judge, and I agree with your
statement on that. My role as a judge will simply be to apply
and interpret the statutes based upon their plain meaning as
passed by the Congress and to apply Sixth Circuit and Supreme
Court precedent to the cases I am hearing, and not to let my
personal feelings or my political beliefs or any other factor
influence my decision.
Senator Chambliss. Good. I notice you have been involved in
extensive pro bono work during your years of law practice.
Would you tell the Committee a little bit about that, please?
Mr. Greer. Yes, Mr. Chairman, I will. I have had a typical
small-town practice throughout those years. I have done wills
and deeds and various other documents on numerous occasions for
clients who could not pay for them. I have taken a number of
cases, both civil and criminal, on a pro bono or reduced fee
basis.
The other thing I have done is that I have regularly
throughout my 20 years of practice accepted appointments in the
Federal courts under the Criminal Justice Act to represent
indigent defendants, typically three or four of those cases a
year, and I have also accepted cases in the Sixth Circuit on
appeal through the Criminal Justice Act as well.
Senator Chambliss. Good.
Mr. Hardiman, we will move to you. I understand that you
have done a substantial amount of volunteer and pro bono work
during your years of practicing law also. For example, I
understand that when you were at Skadden Arps here in D.C., you
spent a substantial amount of time volunteering at Ayuda, a
legal aid clinic for Spanish-speaking persons. Could you tell
us about some of the cases that you handled while you were
there, doing that volunteer work at Ayuda?
Mr. Hardiman. Yes, certainly, Mr. Chairman, I would be
happy to do so.
I would be remiss--I forgot someone in the introduction,
and I apologize--Mrs. Carol Bergin is here with us, too, and I
would like to get that in the record.
I appreciate your question. My time spent at Ayuda, a legal
aid clinic here in Washington, was some of the most valuable
time that I spent as a law student and as a lawyer. I was
privileged to study in Mexico and became fluent in Spanish and
have always been committed to pro bono work, so I volunteered
at Ayuda, in the office, on a regular basis, and I did
everything from fingerprinting and interviewing persons of
Hispanic origin who entered the country without inspection and
who were seeking work authorization permits. That is how I
started at Ayuda, and then, when I got my law degree and my
license to practice here in the District of Columbia, I
represented several immigrants who had entered without
inspection.
In fact, my first case as a trial lawyer while I was at
Skadden Arps was a pro bono case on behalf of an immigrant from
El Salvador whose name was Ernesto Orellana-Hercules, and I was
quite pleased that we were able to gain a victory in
immigration court before immigration Judge Nejelski. We
obtained political asylum for Mr. Hercules. And although that
was my first case, and it did not involve millions of dollars
or the types of clients that Skadden Arps typically had, to
this day, that is still one of the most important cases I have
ever handled and perhaps the most important, and an experience
I will never forget.
I also represented a woman named Lucelena Betancourt, who
was an immigrant from Colombia. She was a judge who was
threatened by the cocaine cartels down there, and I represented
Ms. Betancourt pro bono.
So I had a steady diet of referrals, pro bono referrals,
from Ayuda, and I was quite privileged to handle those cases,
and I thank Skadden Arps for encouraging that type of legal
work.
Senator Chambliss. You have served in several quasi-
judicial capacities. In 1995, the Disciplinary Board of the
Pennsylvania Supreme Court appointed you as a hearing officer,
and when your term ended in 1999, you were appointed as an
alternate hearing officer, a position which I understand you
currently hold.
In addition, you have served as an arbitrator for the
National Association of Securities Dealers. Can you describe
your duties in these positions and how these experiences will
benefit you as a Federal judge?
Mr. Hardiman. Certainly, Mr. Chairman. Thank you for that
question.
I was privileged to be appointed to the Pennsylvania
Disciplinary Board, a board which is appointed by the Supreme
Court of Pennsylvania.
Those cases were an eye-opener for me. We were dealing with
lawyers who had been accused by their clients of a variety of
misfeasance, typically very sad stories by good folks in
Pennsylvania whose lawyers had really let them down very badly.
And I am pleased to say that in Pennsylvania, a portion of our
dues as members of that bar go to the Lawyers' Fund for Client
Security, which helps reimburse financial harm suffered at the
hands of wayward lawyers.
Sitting on those panels with two other fellow panelists on
the Disciplinary Hearing Board really helped me think that I
wanted to serve in the judiciary. It was an awesome
responsibility. It was a lot of hard work, but it was very
rewarding to do that, and I like it so much that I volunteered
to be an arbitrator for the National Association for Securities
Dealers, dealing with, of course, very different subject
matter, but the same type of procedural mechanisms were
generally employed, and I enjoyed and have enjoyed that
experience very much as well.
Senator Chambliss. I served 8 years on the State Bar of
Georgia Disciplinary Board, and it was the only time in my
career when I was able to prosecute. And it is one of the most
revealing and interesting experiences I have ever had, and I
commend you for your work there.
For the past 3 years, I know you served on the Governor's
Judicial Advisory Commission for the Fifth Judicial Circuit.
Could you describe your responsibilities in that position?
Mr. Hardiman. Yes, Mr. Chairman.
I was a member of a six-person panel appointed by the
Governor. Our district was Allegheny County, southwestern
Pennsylvania, and we were charged with the responsibility of
vetting candidates who were applying for the trial court in
Allegheny County--a very important job that our Committee took
very seriously. We have had a couple of unfortunate incidents.
We have a judge who is under Federal indictment right now for
bribery on that court, and we also had another judge resign due
to erratic behavior and other very serious problems.
So it was an honor to serve on that Committee because we
knew that it was incumbent upon us to find persons not only of
scholarship and legal experience, but also people of integrity
who would discharge their judicial duties faithfully. So it was
a great privilege to serve in that capacity, Mr. Chairman.
Senator Chambliss. Thank you.
Mr. Kravitz, we will move to you. You have had the
privilege of clerking for two Federal judges, including a
Supreme Court Justice. What sort of experience did you glean
from that that you think will help you when you get to the
Federal bench?
Mr. Kravitz. Well, I had the great privilege of clerking
for two wonderful judges. Judge Hunter has since died, and
obviously, Justice Rehnquist has gone on to become Chief
Justice.
I think I learned a number of things. First, Judge Hunter
on the Third Circuit had uncommon common sense and good
judgment, and he was the first to tell you he was perhaps not
Oliver Wendell Holmes, but he brought to bear to legal issues
this great common sense and judgment--and good judgement. And
that, I hope, I learned and would serve me well, because I
believe that all judges when they approach legal issues clearly
have to approach them applying the law faithfully, but also
have to--particularly, I think, at the district court level--
remember common sense and display good judgment.
I also clerked for two people--I will go on to Justice
Rehnquist in a second--but both Judge Hunter and Justice
Rehnquist are very personable, kind, warm people. You might
think with a conservative justice that that may not be true,
but in fact, both of them were. Both of them were not
intimidating people. Both of them refer to themselves as ``Jim
Hunter'' or ``Bill Rehnquist.'' And those qualities as well, it
seems to me, will stand me in good stead, if I have learned my
lessons well, which is to not have the robes go to one's head,
to maintain one's feet planted firmly in the ground. A Federal
court--any court, but a Federal court in particular--can be
intimidating to people, and to have a manner that puts them at
ease, is courteous to people and respectful of people, is
important in my judgement, and I think I have learned that as
well.
Then, finally, Justice Rehnquist was a great teacher. He
used to subject his clerks to walks down the Mall--we did not
think of security in those days--where we would have to be
quizzed on a case that was about to be argued, and you did not
have any notes, you did not have anything with you--no crutches
to rely on. And he was a great teacher in terms of forcing us
to articulate our views, gently showing when the views perhaps
did not hang together or that I did not know something about a
case, and the beginning of the process of being able to pull
together lots of information and to think clearly, particularly
on my feet, which has helped me in my practice, and I think
will help as a district court judge as well.
So I was quite privileged to have held those positions and
hope that I will make both of them proud of me.
Senator Chambliss. Great. You also, as all good lawyers do,
have done a significant amount of pro bono work. I notice you
regularly donate your services to the Connecticut Attorney
General's Office by helping prepare its attorneys for appellate
oral arguments. Would you tell us a little bit more about that,
please, how you got involved in that and some of the things
that you do from a practical standpoint?
Mr. Kravitz. Sure. I appreciate the question, because like
my fellow nominees, I believe that a lawyer holds a privileged
position in our society, and that with that privilege comes
responsibility, and I have always tried to discharge that
responsibility in a variety of ways.
I have been very, very active with charitable and nonprofit
organizations, as is set forth in my questionnaire, founding--
one of the founders along with others--the Connecticut Food
Bank in terms of the initial board, and a founder of the
Friends of the Children's Hospital at Yale New Haven Hospital.
In addition, I have been appointed to represent individuals
and have also worked on bar committees dealing with pro bono
activities, but I also regularly make my services available,
frankly, not only to the Attorney General's Office but to the
Yale clinics, to help lawyers get prepared for arguments. I
have done a fair amount of arguments now not only at district
court levels but at circuit levels and State Supreme Court
levels and at the U.S. Supreme Court, and I have been fairly
regularly called upon to play the role of judge, examining
lawyers and putting them through their paces before argument.
And I think that that, too, will stand me in good stead,
because I have had the chance not only to be on one side of the
bench as an advocate but also, although a pretend role, put on
the mantle of a judge and try to think through or force the
lawyers to think through carefully the cases that they are
about to argue.
Senator Chambliss. Great. Thank you very much.
Moving on to Mr. Woodcock, in a somewhat similar vein, I
was interested to read about your position as a coach of a
local high school mock trial team. Would you tell the Committee
a little bit about your involvement with the team as well as
what you have gained from that experience?
Mr. Woodcock. Thank you very much, Mr. Chairman, for
mentioning that.
The Hampden Academy mock trial team is part of a nationwide
program. Each State has high school mock trial teams. Those
students participate not only as witnesses but also as
attorneys, doing opening statements and closing arguments.
I have been the attorney coach of the Hampden Academy mock
trial team for the past 8 years, and I am very proud to say
that of those 8 years, on three occasions, the Hampden Academy
team represented the State of Maine in national competition. We
went to Nashville, Tennessee, to Omaha, Nebraska, and to
Minneapolis. It is a remarkable experience to watch these young
men and women take hold of the law and move it forward, and
even more remarkable is to sit in a courtroom and see
grandparents and parents cheering on a cross-examination. That
is very gratifying.
Senator Chambliss. Were any of your three sons on those
teams?
Mr. Woodcock. Yes, they were all on the team. My eldest
son, Jack, was on the team that went to Nashville, and my
second son, Patrick, was on the Nashville and Omaha team, and
my third son, Christopher, was on the team that participated in
Minneapolis and won a national witness award when he
participated.
Senator Chambliss. How about that? He had good coaching.
Since I had that same experience of coaching my son, I used
to always get asked the question: Were you tougher on them than
all the other team members? Maybe I ought to ask them that.
[Laughter.]
Mr. Woodcock. I have a great respect for the Fifth
Amendment, and I will take the Fifth on that.
[Laughter.]
Senator Chambliss. I understand.
You have spent over 25 years as a successful advocate for
your clients. What do you think is the biggest challenge you
will face in your new role if you are confirmed as a district
court judge?
Mr. Woodcock. I think making the transition from advocacy
to judicial bearing is always a challenge. Over the course of
practicing law for numerous years, 26 years, one of the
benefits I have had the opportunity to engage in, along with
many other practicing lawyers, is that we go from judge to
judge to judge, and we see different judges, and we are able to
try to determine what characteristics of a judge we feel would
be appropriate.
Those three characteristics that I feel most appropriate
for a judge are legal competence, which we take as a given,
common sense, and temperament. And those things I hope to bring
to the bench if confirmed by the Senate.
Senator Chambliss. Gentlemen, let me say to each of you
individually and collectively that it is pretty obvious why you
have been nominated for your respective judgeships. You all
possess, obviously, great legal experience and competence, or
you would not be here, but you touched on something there, Mr.
Woodcock, and that is temperament, and just from your responses
here today, I think each of you possesses that necessary
judicial temperance that we need to see more often from the
bench than we sometimes do.
I will tell you that you may receive written questions from
other members of the Committee--they have until 5 p.m. on
Wednesday, May 28 to submit written questions, and if there are
any, they will be submitted to you in short order following
that.
That being said, if there are no further questions or
participation from anyone on the Committee, we will stand
adjourned.
Thank you very much.
[Voice of unidentified woman in audience:]
Voice. Mr. Chairman, we are in opposition to Judge Wesley
based on his documented corruption at the New York Court of
Appeals.
Senator Chambliss. I will issue a warning that we will have
order. The Committee will stand in recess until the police can
restore order. Everyone remain seated.
[Pause.]
Voice. Are you directing that I be arrested?
Are you directing that I be arrested?
Senator Chambliss. I am directing that the police restore
order.
Voice. Are you directing that I be arrested?
[Pause.]
Senator Chambliss. Outside witnesses are welcome to submit
letters supporting or opposing nominees for the Committee's
consideration, but it is not our usual procedure to invite
outside witnesses to testify either in support or in opposition
to the nomination.
I realize that this lady is disappointed that she is not
able to make any statement this afternoon, but her
disappointment in no way condones any disruption of this
hearing.
Again, we will stand adjourned.
Thank you very much.
[Whereupon, at 3:32 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF ALLYSON K. DUNCAN, OF NORTH CAROLINA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; ROBERT C. BRACK, OF NEW MEXICO,
NOMINEE TO BE DISTRICT JUDGE FOR THE DISTRICT OF NEW MEXICO; SAMUEL
DER-YEGHIAYAN, OF ILLINOIS, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF ILLINOIS; LOUISE W. FLANAGAN, OF NORTH CAROLINA,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NORTH
CAROLINA; LONNY R. SUKO, OF WASHINGTON, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF WASHINGTON; EARL LEROY YEAKEL III, OF
TEXAS, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS;
KAREN P. TANDY, OF TEXAS, NOMINEE TO BE ADMINISTRATOR OF THE DRUG
ENFORCEMENT ADMINISTRATION, DEPARTMENT OF JUSTICE; AND CHRISTOPHER A.
WRAY, OF GEORGIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, DEPARTMENT
OF JUSTICE
----------
WEDNESDAY, JUNE 25, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:04 p.m., in
room SD-215, Dirksen Senate Office Building, Hon. Lindsey
Graham, presiding.
Present: Senators Graham, Chambliss, Durbin and Edwards
OPENING STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you very much for coming to our
hearing today. We have about an hour of time allotted with a
lot of people to hear from on a very important subject, and we
are going to have votes coming up pretty quickly too.
With that said, I will enter my opening statement into the
record.
Senator Graham. Senator Chambliss, if you have anything you
would like to say at this time--
Senator Chambliss. No, sir.
Senator Graham. You defer.
We will get right into it. We are glad to have the panel
here of Senator Dole and Senator Edwards, and speak.
PRESENTATION OF ALLYSON K. DUNCAN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT, AND LOUISE W. FLANAGAN, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NORTH CAROLINA, BY
HON. JOHN EDWARDS, A U.S. SENATOR FROM THE STATE OF NORTH
CAROLINA
Senator Edwards. Mr. Chairman, under ordinary
circumstances, a hearing like this would not draw a lot of
attention. This nominee is a consensus nominee. We are talking
about Judge Duncan. She enjoys the support of both Senators
from her State, and her nomination is supported by leaders of
both political parties.
Under ordinary circumstances, this hearing would hardly be
noticed, but, Mr. Chairman, this is no ordinary event for the
people of North Carolina. In fact, it is an historic and
important milestone for our State, and we believe it calls for
celebration. The last time a North Carolina judge joined the
Fourth Circuit Court of Appeals was 23 years ago, when Sam
Ervin, III, son of Senator Sam, was confirmed.
North Carolina is the only State in the Union with no
judges on a Federal appellate court, and we have the longest
standing vacancy in the Federal appeals court system. In fact,
in the entire 112-year history of the Fourth Circuit, North
Carolina has had only 6 judges. Compare that with our neighbor,
Virginia, which has 5 current judges on the court.
So you can see, Mr. Chairman, that this hearing is a very
special occasion for us.
We are also very proud to be able to introduce Allyson
Duncan, a nominee who will restore the voice of North Carolina
to a very important Federal court and break a logjam, which has
damaged our State for too many years. This historic development
is the result of a new approach which I hope will be a model
for the future. In this case, President Bush reached out to
Senator Dole and to me before he made a decision. He consulted
with us. He sought our advice. And in making his decision, the
President selected a nominee who represents the mainstream of
our State.
I commend the President for consulting with us and for
making an excellent nomination. If he takes this approach with
respect to future judicial nominations, including nominations
to the Supreme Court, we have a real opportunity to find common
ground in the search for excellence on the Federal bench.
I also want to take a moment to commend my colleague from
North Carolina. From her very first day in office, Senator Dole
and I have pledged that we would work together on behalf of the
people of North Carolina. This hearing is a demonstration of
that commitment, and I commend her for working with me on this
nomination and on all of the issues that are so important to
the State of North Carolina.
Mr. Chairman, it is a great pleasure to welcome Allyson
Duncan and to introduce her to the Judiciary Committee.
I have a longer statement which describes her extraordinary
background and career, and I would like to make that a part of
the record. But I will summarize here by saying she has a
distinguished record as a lawyer, as a professor of law and as
a judge. She is highly regarded in the legal community in our
State, and her colleagues recently elected her President of the
North Carolina Bar Association, the first African-American and
only the third woman to hold that position. She was sworn in
just last weekend.
We also have letters, Mr. Chairman, from Evelyn
Higginbotham, Mel Watt and A.P. Carlton, ABA president, and I
ask now that they included in the record.
Chairman Graham. Without objection.
Senator Edwards. I would also recognize, Mr. Chairman, we
have a Congressman from North Carolina, Mel Watt and Frank
Ballance in attendance for this hearing.
Judge Duncan's wonderful family is also with her. Her
husband, Bill Webb, her son, Charles Webb, and her aunt, Helen
Blackburn. And I would like for them, if they could, to stand
and be recognized at this time
[Applause.]
Chairman Graham. Welcome.
Senator Edwards. Mr. Chairman, when the Senate confirms
Allyson Duncan, which I hope will happen very soon, her
confirmation will make a number of firsts. She will be the
first North Carolinian to join the Fourth Circuit in over 20
years. She will be the first African-American woman to serve on
that distinguished court, and most important, I hope she will
be the first in a series of bipartisan consensus judicial
nominations from our State.
Mr. Chairman, I would also like to point out that we have
another distinguished North Carolinian before the Committee
today, Louise Wood Flanagan, now a U.S. magistrate judge, is
the nominee for the U.S. District Court for the Eastern
District of North Carolina. Like Allyson Duncan, she brings a
record of excellence and achievement, and I am happy to support
her nomination.
Judge Flanagan's family, her husband Michael Flanagan and
her daughter Kate, are also here, and I would like to ask them
to stand and be recognized at this time.
Chairman Graham. Welcome.
[Applause.]
Senator Edwards. Missing from this family portrait is Judge
Flanagan's 5-year-old little girl, Anna Louise, whom her
parents, for their piece of mind, decided not to bring to this
proceeding.
[Laughter.]
Senator Edwards. As the father of a 5-year-old, I cannot
imagine why they made that decision.
Judge Flanagan, we look forward to hearing from you today.
Judge Flanagan, I think you will make a fine judge for the
people of North Carolina, and we are proud to have you here.
Mr. Chairman, I would just conclude by asking that my full
statement be made part of the record.
Chairman Graham. Without objection.
[The prepared statement of Senator Edwards appears as a
submission for the record.]
Senator Graham. Senator Dole?
PRESENTATION OF ALLYSON K. DUNCAN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT, AND LOUISE W. FLANAGAN, NOMINEE TO BE
DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NORTH CAROLINA, BY
HON. ELIZABETH DOLE, A U.S. SENATOR FROM THE STATE OF NORTH
CAROLINA
Senator Dole. Mr. Chairman, I would like to sincerely thank
you for holding this historic hearing today. Our free society
is based on the reasoned, dispassionate judgment of men and
women in the judicial branch of our Government who share a
sense of honor and duty to our country and to our Constitution.
I have the privilege of introducing two such individuals today,
but before I extol the virtues of these talented and
experienced nominees, I hope you will indulge me for a few
minutes to recount just why this hearing is historic for North
Carolina and the Nation.
As many of you have heard me say, I believe the advise and
consent role is one of the Senate's most important
constitutional responsibilities and one of the most solemn
duties of a U.S. Senator. Judges interpret and apply the laws
that govern our Nation, including our fundamental rights and
liberties protected in the Constitution. However, there is now
a nearly 10 percent vacancy rate in the U.S. courts of appeals
and 15 seats have even been declared judicial emergencies by
the Judicial Conference of the United States.
On the Fourth Circuit Court of Appeals, which hears Federal
appeals from North Carolina, South Carolina, Virginia, West
Virginia and Maryland, one North Carolina vacancy is the
longest on the entire Federal bench, dating back nearly a
decade to July 31, 1994.
In April, the President's counsel, Alberto Gonzales, sent a
letter stating that there are currently 4 vacancies on the
Fourth Circuit Court. He noted that North Carolina is the
largest State in the Fourth Circuit, and historically the
number of judges roughly corresponds with population. By this
measure, we should have 4 to 5 judges on the court. Right now
we have none. In fact, North Carolina has had no representation
on the Fourth Circuit Court in nearly 4 years and 2 seats have
stood empty on North Carolina's Eastern District Court for 2.5
years and 5.5 years, respectively.
Vacant Federal benches contribute to overcrowded dockets,
overburdened judges and understaffed courts. So I am pleased
that with this hearing today we are taking steps to fill these
vacancies and to address this disparity for North Carolina.
In addition, this hearing represents a number of
significant firsts for our State. And if I could just
underscore what Senator Edwards had said, Allyson Duncan is the
first woman from North Carolina to be nominated to the Fourth
Circuit Court of Appeals. She is also the first African-
American woman to be nominated to the Fourth Circuit, and
Louise Flanagan is the first woman to be nominated to serve as
a district court judge for North Carolina's Eastern District.
For these individuals today, and for so many other
qualified men and women, being nominated to serve on the
Federal bench by the President of the United States marks the
pinnacle of a long and remarkable legal career. For those who
are confirmed, it represents an opportunity to use their wisdom
and legal training to uphold our Constitution and protect the
rights and freedoms upon which our Nation was founded.
As I campaigned for the U.S. Senate, I told the people of
North Carolina that I believe each and every judicial nominee
deserves a hearing and a vote by the full Senate. Judiciary
Committee members who object to a nominee should state their
reasons and vote their conscience and the Committee should
promptly report the nomination to the Senate floor, with a
favorable, unfavorable or no recommendation.
I believe in the capability, independence and prudence of
the members of this institution, and I have faith that my
colleagues in the Senate, though we may disagree on the
approach, all seek to do what is right for this country. And if
a person has concerns about an issue or a nominee, then I
believe that he or she should make a persuasive case to the
other members of this body in a forthright, open and honest
debate. This process is established in our Constitution, and it
is what our representative democracy is all about.
Mr. Chairman, we are here today because the process is
working for these two North Carolina nominees. I am pleased to
be able to support Allyson Duncan of Raleigh, who has bene
nominated by the President for the Fourth Circuit Court of
Appeals from North Carolina.
Ms. Duncan, I know that this is not an entirely new
experience for you, having testified before Congress in the
past, but I want to welcome you to the Senate today and tell
you how delighted I am that we are here to move forward with
your nomination.
Mr. Chairman, Ms. Duncan's resume is most impressive, as
you have heard, marked with numerous positions of significant
responsibility in both the public and the private sectors.
More importantly, Ms. Duncan's work ethic and the results
of her work are highly respected by her peers. Currently, an
attorney with the Raleigh law firm of Kilpatrick Stockton, Ms.
Duncan is the president, as you have heard, of the North
Carolina Bar Association and an active member of the North
Carolina Association of Women Attorney's, the North Carolina
Center for Public Policy Research, and the Duke University
Women's Health Advisory Board.
She previously served by appointment on the North Carolina
Utilities Commission, holding several leadership positions on
the National Association of Regulatory Utility Commissioners.
Prior to that, she was a judge on the North Carolina Court of
Appeals and a professor of law at North Carolina Central
University.
Ms. Duncan has also worked as an appellate attorney for the
Equal Employment Opportunity Commission here in Washington,
arguing employment discrimination cases before the Federal
courts of appeals.
Throughout her career, she has received numerous awards,
recognizing her contributions to the legal profession and her
leadership in business and education. I believe that Ms. Duncan
comes extremely well-prepared for this important position, and
I am delighted to recommend her to you.
Given the number of vacancies still remaining on the Fourth
Circuit Court, I know she will have her work cut out for her
from the moment she arrives, and I am confident that she will
meet her duties with professionalism, impartiality and
competence.
I am also pleased today to support Magistrate Judge Louise
Flanagan of Elizabeth City, who has been nominated to serve on
the Eastern District Court of North Carolina. Serving as a
magistrate judge for the Eastern District since 1995, Louise
Flanagan is consistently praised by her colleagues for her
integrity and fairness in the courtroom. She has earned their
professional and personal respect for her service, commitment
and sound judicial temperament.
Hugh Overholt, a former judge advocate general of the Army,
writes, ``I am of the opinion that Judge Flanagan is in the top
1 percent of the attorneys I have known.''
And J. Douglas McCullough, a judge on the North Carolina
Court of Appeals, calls Ms. Flanagan, ``an honest person with
much personal integrity.''
Their lofty comments are but an example of the regard in
which Judge Flanagan is held.
Whether in previous positions with the law firms of Ward
and Smith in Greenville, North Carolina, or Sonnenschein, Nath
and Rosenthal in Washington or at the Center for National
Security Law, Ms. Flanagan's accomplishments are numerous on
behalf of the public and the institutions she has served.
I am certain she will bring excellent judgment, integrity
and character to the Federal bench.
Mr. Chairman, today marks the first time in a decade that
the Committee has held a hearing on a North Carolina nominee to
the Fourth Circuit Court. I am reminded of a quote by Supreme
Court Justice Sandra Day O'Connor earlier this year. ``The
faith that people have in their Government is shaped, in part,
by the makeup of it, who is there,'' she said. How true,
indeed.
Today, we have 2 highly qualified judges before us and an
amazing opportunity to further demonstrate the diversity that
makes our Nation great. Ms. Flanagan, Ms. Duncan, you have my
full support throughout this process as you undertake this
noble step in your respective careers, and I hope that other
well-qualified candidates who have been sent forth might join
you soon.
Thank you, Mr. Chairman.
Senator Edwards. Mr. Chairman, we would also just like to
thank our colleagues for giving us the courtesy of allowing
Senator Dole and I to go first.
Senator Dole. Yes. Thank you very much.
Senator Graham. Thank you. It is very impressive people to
hear about, and I am honored to be here to chair the Committee
when we are all agreeing on something.
[Laughter.]
Senator Graham. Thank you both. Thank you very much.
If you do not mind, I think we will proceed as follows:
Senator Chambliss is going to fill in for me here in a bit, but
we would like to have Senators Domenici and Bingaman come up
next, if possible. I know you have something to do, and then we
will go to Senators Chambliss and Miller next.
PRESENTATION OF ROBERT C. BRACK, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO, BY HON. PETE DOMENICI, A U.S.
SENATOR FROM THE STATE OF NEW MEXICO
Senator Domenici. Mr. Chairman, members of the Committee,
our nominee is Robert C. Brack. He is accompanied by his wife
Sheila, who sits behind him. I would like you to recognize her.
Would you please stand, Sheila. This is the judge, and that is
his wife.
Thank you very much, Mr. Chairman.
Senator Graham. Welcome. Welcome very much. Thank you for
coming.
Senator Domenici. First, I am very pleased that Senator
Bingaman joins me here today. Both of us support this nominee.
It is not an understatement to say that the situation in the
District of New Mexico that he is being assigned to is dire--
dire from the standpoint of being overcrowded, overloaded and
in desperate need of additional judges.
It is particularly bad, fellow Senators, along the Southern
border of New Mexico, around the community of Las Cruces, where
over 60 percent of the district's, that is, the State, the
district's criminal cases are filed, and there is no judge
sitting in that community.
Because Judge Brack will be assigned to Las Cruces, I am
pleased that the Committee has agreed to my request to move
quickly on this nomination. He is desperately needed to fill
the vacancy, which is so overcrowded that I believe it ranks
among the highest in the Nation, in terms of overcrowding of
the criminal docket.
When Congress authorized a temporary judgeship for the
District of New Mexico last year, the President asked for
suggestions. I was very pleased to submit to him qualified
judges, qualified nominees, but I was most pleased that the man
that we have with us today was selected as the choice.
He comes from Southern New Mexico, an area that does not
very often get nominees to the Federal bench. That side of New
Mexico is very thrilled. It is not like an ordinary event. It
is a real celebration to have one of their own nominated to the
bench. He will have to leave them, but they are very proud and
pleased that one of their own will leave them to join the very
distinguished bench, at least that is how New Mexicans still
see the court, and I am very glad that they do.
He comes highly reputed. I will not go through his
achievements, other than to say one of the best things that I
can say to the Judiciary Committee, when they look at one of
our nominees, is what kind of lawyer do we have and, frankly, I
am here to tell you we have a superb lawyer. This man tried
lawsuits of all types. From the very smallest to the very
largest of class action lawsuits, he tried them. He won them,
and he lost them, but he tried them with great distinction, and
had a fabulous reputation, when he did the next thing, which
permits us to be certain that he will be a good judge. He took
the bench.
A district bench is the bench of general jurisdiction in
our State. Everything is tried there, all the felony cases, all
of the civil cases, and he sat there for a number of years and
was distinguished as one of the best district judges in the
State of New Mexico.
Frankly, with the extreme lists that you have to hear from
today, and the tremendous witnesses that you have, I know that
what I have said is more than ample, and with that, I will stop
and ask that you hear from my colleague and put the rest of my
statement in the record where it can be looked at, if
necessary, and eventually get the judge before you as soon as
possible.
Thank you very much.
Senator Graham. Thank you, Senator. Without objection, your
statement will be entered.
Senator Bingaman?
PRESENTATION OF ROBERT C. BRACK, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO, BY HON. JEFF BINGAMAN, A U.S.
SENATOR FROM THE STATE OF NEW MEXICO
Senator Bingaman. Thank you, very much, Mr. Chairman. I am
very pleased to support the nomination of Judge Brack to the
U.S. District Court. I particularly want to thank Senator
Domenici and the President both for giving me an opportunity to
visit with Judge Brack before his nomination was made.
I had not personally visited with him before that, but I
had heard of him and heard of his great reputation as a lawyer
for nearly 20 years in Clovis, practicing some of that time
with a very good friend of mine, Ted Hartley. But I think his
reputation preceded him, as far as I was concerned, and then
his reputation as a District Judge in our State court system
has been excellent as well.
So I think he is a very good choice for this position. He
will do a good job on our Federal court in New Mexico, and I
again commend Senator Domenici for recommending him and the
President for choosing him for this important position. I urge
the Committee to act swiftly to confirm his recommendation and
to recommend that the full Senate confirm his nomination.
Thank you.
Senator Edwards. Thank you, Senator, for your statement.
Thank you very much.
At this time, Senator Chambliss from Georgia and Senator
Miller, if you would like to come up.
PRESENTATION OF CHRISTOPHER A. WRAY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, BY
HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Chambliss. Thank you very much, Mr. Chairman. I am
pleased to be here today to introduce to the Committee Mr.
Christopher A. Wray, a fellow Georgian, who is President Bush's
nominee to the position of assistant attorney general for the
Criminal Division.
Mr. Wray has already had a remarkable career and will bring
extraordinary experience to this important position. His
qualifications speak for themselves.
For the past 2 years, Mr. Wray has served as the principal
associate deputy attorney general at the Department of Justice.
In this capacity, he has gained invaluable experience and, at
the same time, has been a tremendous asset to my friend,
another Georgian, Deputy Attorney General Larry Thompson.
Let me first share some of Mr. Wray's background. We will
excuse him for attending Yale University for both his
undergraduate studies and his legal education, but he saw the
light and came back to Georgia.
After law school, he clerked for Judge J. Michael Luttig,
on the Fourth Circuit Court of Appeals, and then entered
private practice with the prestigious Atlanta law firm of King
and Spalding.
My very good friend, and former Attorney General, and Fifth
Circuit Judge Griffin Bell, who has been a partner at King and
Spalding for many years, quickly identified Mr. Wray as a
rising star on the firm's Special Matters Team, which was led
by Judge Bell.
Mr. Wray comes before this Committee highly recommended by
Judge Bell for his ability to handle complex litigation related
to corporate investigations. Mr. Wray began his career of
public service with the U.S. Attorney's Office in Atlanta.
During his 4 years as an assistant U.S. attorney, he prosecuted
cases ranging from public corruption to gun trafficking and
immigration violations.
When Larry Thompson came to Washington as the deputy
attorney general, he selected Mr. Wray as his top assistant. In
this position, Mr. Wray has worked with all levels of DOJ to
coordinate and oversee both policy and operations related to
the FBI, the Criminal Division, and the U.S. Attorney's
Offices.
He has specifically focused on counterterrorism initiatives
since September 11, 2001, attending daily classified FBI and
CIA briefings. Mr. Wray's experience and understanding of the
inner workings of DOJ uniquely qualify him to take over the
Criminal Division and continue antiterrorism efforts
uninterrupted.
As assistant attorney general for the Criminal Division,
Mr. Wray will have responsibility for the enforcement of over
900 Federal criminal statutes. He will coordinate with the 93
United States attorneys to prosecute violations of these laws,
including many nationally significant cases, such as the
prosecution of alleged terrorists.
In addition, he will advise the deputy attorney general,
the attorney general, the White House and Congress about
criminal law policy and will monitor law enforcement
activities. At the age of 36, Mr. Wray has accomplished more in
the legal profession than many of us, as attorneys, do in a
lifetime. His exceptional qualifications and youthful energy
will invigorate the Criminal Division at the Department of
Justice as it investigates and prosecutes some of the Nation's
most important cases, including cases related to terrorism.
We are truly fortunate to have someone as qualified as Mr.
Wray to serve as the assistant attorney general for the
Criminal Division. Former Attorney General Griffin Bell, former
Senator Sam Nunn, Attorney General John Ashcroft, and Deputy
Attorney General Larry Thompson all unconditionally support
this nominee.
Mr. Wray's decision to serve his country required that he
move his wife and two young children to Washington from Atlanta
and forego regularly attending Braves games, drinking sweet tea
and enjoying all things Southern.
[Laughter.]
Senator Chambliss. For his commitment to public service, I
am very grateful. I welcome him here today. I urge the
Committee to support his nomination, and I thank you, Mr.
Chairman.
Senator Graham. He has given up a lot.
Thank you.
Senator Miller?
PRESENTATION OF CHRISTOPHER A. WRAY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, BY
HON. ZELL MILLER, A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Miller. Thank you, Mr. Chairman.
I am very honored and pleased to join with my colleague,
Senator Chambliss, and appear before this Committee to add my
presentation of Christopher Wray, who has, you have been told,
been nominated to be assistant attorney general for the
Criminal Division of the Justice Department.
Once again, President Bush has made what I think is an
outstanding choice. This is a young man who is wise and mature
beyond his 36 years. His remarkable resume reads like one that
should belong to someone much, much older. This is a young man
who has the law in his blood. His father, his uncle, his
grandfather, and his grandmother were all lawyers. This is a
young man whose peers speak of him in glowing terms,
unbelievably hardworking, straight shooter, very even keeled
are the phrases they use.
This is a young man who has earned the trust and confidence
of 2 of the best lawyers the State of Georgia has ever
produced.
The first is Griffin Bell, who was appointed to a Federal
judgeship by President John Kennedy, and who was our Nation's
former Attorney General under Jimmy Carter. As Senator
Chambliss has told you, Griffin Bell has watched this young man
for a long time. He first spotted him while he was still a
student at Yale and recruited him to the prestigious law firm
of King and Spalding.
At King and Spalding, Chris was immediately handed the plum
assignment of working on Griffin Bell's Special Matters
Government Investigations practice. It is an assignment that
goes only to the best of the best in that firm.
Judge Bell said recently of Chris, ``From day one he was
born to be a good lawyer.''
As you have been told, Chris also has another big fan,
Larry Thompson. Two years ago I had the honor and the pleasure
of coming before this Committee to present Larry Thompson for
his nomination hearing as deputy attorney general. He has done
an outstanding job for this Nation, as I knew he would. Larry
Thompson also holds Chris Wray in very high regard. Larry was
Chris' mentor early in his career, and they served together on
that elite Special Matters practice at King and Spalding.
Larry is also the godfather of Chris' 6-year-old son, Trip,
and his wife Helen and his daughter Caroline are also here with
us today.
As an assistant U.S. attorney in the Northern District of
Georgia, Chris was assigned to the hardest cases, and he helped
send to prison drug traffickers, counterfeiters, church
arsonists, kidnappers, armed bank robbers and gun traffickers.
One of Chris' final cases was a very high-profile public
corruption case, in which the City of Atlanta had lost millions
of dollars in a bribery scheme. It was a complicated case that
was made more so by the fact that the opposing counsel was
Chris' friend and mentor, Larry Thompson.
After a hard-fought 3-week trial, Chris won a guilty
verdict, and Larry's client was sentenced to prison. At that
point, Larry was probably wishing that he had not trained Chris
quite so well. But several months later, when Larry became
deputy attorney general, he did what any sensible person would
do who had been beaten by one of the best. He brought Chris to
Washington as his top assistant.
At the Justice Department, Chris has approached his duties
with that same dedication, the same common sense, the same keen
legal skills that made Griffin Bell and Larry Thompson take
notice of them more than a decade ago. At a time when our
Nation faces a threat from terrorism like any we have ever
faced, we need the hardest worker, we need the brightest man as
our top criminal prosecutor. And I submit to this distinguished
Committee that is what we have in Chris Wray.
So it is my honor to present Christopher Wray to this
Committee. I want to join Griffin Bell, and Larry Thompson, and
Senator Sam Nunn, Senator Saxby Chambliss in giving him my
strongest recommendation for confirmation as assistant attorney
general for the Criminal Division.
Thank you, Mr. Chairman.
Senator Graham. Thanks, Senator.
Thank you both. Very impressive young man.
Senator Murray?
PRESENTATION OF LONNY SUKO, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF WASHINGTON, BY HON. PATTY MURRAY, A
U.S. SENATOR FROM THE STATE OF WASHINGTON
Senator Murray. Thank you very much, Mr. Chairman, Senator
Edwards, members of the Committee, along with my colleague,
Senator Cantwell and members of our House delegation who are
both here, Congressman George Nethercutt and Congressman Doc
Hastings, it is my pleasure to introduce Lonny Suko, a
distinguished lawyer and U.S. magistrate judge from Washington
State.
I want to welcome Judge Suko and his wife Marcia, who is
with him today, to this hearing.
Mr. Chairman, I am honored to recommend that the Senate
confirm Lonny Suko as a District Court judge for the Eastern
District of Washington State. Judge Suko has strong bipartisan
support, and with good reason. He has handled some of the most
difficult cases in Eastern Washington in the past decade, and
he has won the respect of everyone who has come before him.
That is one of the reasons why Judge Suko enjoys such strong
support from a diverse group of attorneys and community leaders
in Washington State.
Both Senator Cantwell and I assisted the President in
choosing him from a list of very qualified candidates. Lonny
Suko has spent his life living and serving Eastern Washington.
He is a graduate of my alma mater, Washington State University,
and of the University of Idaho School of Law. He has had a
distinguished career as a lawyer and a U.S. magistrate judge.
In private practice, Lonny Suko had a successful practice
defending both plaintiffs and defendants in a variety of tort,
contract, creditor/debtor and public sector cases. He has also
distinguished himself as a U.S. magistrate judge, serving part
time from 1971 to 1991 and full time since 1991.
As I mentioned, Judge Suko handled some of the most
challenging cases in recent history in Eastern Washington. He
heard the injury and death claims of more than 2 dozen
plaintiffs who were victimized by a gunman at Fairchild Air
Force Base in the early 1990's. He was involved in several
other high-profile settlements. In all of those cases, Judge
Suko won high praise for his judicial demeanor, his fairness
and his respect for all parties.
Judge Suko clearly meets the standards of fairness, even-
handedness, and adherence to the law that we expect of our
Federal Judges. Outside of his many professional credentials, I
have met with him and I have been impressed by both his
professionalism and his decency.
Therefore, it is my pleasure to introduce a great lawyer
and judge who I believe will make an exceptional Federal Judge.
I urge this Committee to approve his nomination, and I hope we
can confirm Judge Suko before the full Senate quickly. He
served the people of our State well, and I am proud to support
his confirmation.
Thank you very much.
Senator Graham. Thank you, Senator Murray, thank you very
much.
Senator Hutchison from Texas.
PRESENTATION OF EARL LEROY YEAKEL III, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF TEXAS; AND KAREN P. TANDY,
NOMINEE TO BE ADMINISTRATOR OF THE DRUG ENFORCEMENT
ADMINISTRATION, DEPARTMENT OF JUSTICE, BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman.
I am here today to ask for confirmation of two outstanding
Texans.
The first is Lee Yeakel, who has been nominated to serve as
a U.S. District Judge of the Western District. If confirmed he
would fill a vacancy in Austin. He has served as a Justice on
Texas Third Court of Appeals in Austin since 1998. Prior to his
judicial service, Judge Yeakel spent 29 years in private
practice in Austin, most recently as a partner with the firm of
Clark, Thomas and Winters from 1990 to 1998, where he
concentrated on State and Federal commercial litigation and
appellate work.
He earned his bachelor's degree from the University of
Texas at Austin in 1966 and his law degree from the University
of Texas in 1969. He has earned a master of law degree from the
University of Virginia in 2001. Judge Yeakel has also been very
involved in civic activities. His involvement has included
services on the boards of the Austin Rotary Club, the West
Austin Youth Association, the Austin Choral Union, and the
Committee for Wild Basin Wilderness.
He meets the high standard to which we hold all Federal
Judges and I hope that you will vote expeditiously to recommend
him to the Senate.
He is accompanied today--and I would like to ask them to
stand--by his wife, Anne Yeakel, with whom I have worked at the
University of Texas Law School; Evan Yeakel, his son; Clare
Yeakel, his daughter; and his granddaughter, Sarah Blanton, if
she woke up.
And I have a second recommendation, Karen Tandy, from whom
you will be hearing shortly, who has been nominated to be
Administrator of the Drug Enforcement Agency. If confirmed she
will be the first female administrator of the DEA. She is also
the first member of her family to graduate from college, and
the first lawyer in her family.
Ms. Tandy is currently the Associate Deputy Attorney
General and Director of the Organized Crime Drug Enforcement
Task Force at the Department of Justice. She is from Fort Worth
and holds her undergraduate and law degrees from Texas Tech
University. While there, she was the first female president of
the student bar association.
Ms. Tandy clerked for Hon. Hal Woodward, the Chief Justice
of the Northern District of Texas, after she graduated from law
school. And she too has received numerous awards and special
commendations during her career, including the Attorney
General's Award for Distinguished Service, and the U.S.
Attorney Director's Award for Superior Service.
Karen Tandy's experience and service make her an excellent
choice to be Administrator of the Drug Enforcement Agency of
the Department of Justice, and I hope that you will confirm
here.
She is accompanied today by her husband, Steve Pomerantz,
and her two teenage daughters, Lauren and Kimberly.
Senator Graham. Welcome.
Senator Hutchison. I am very pleased to recommend these two
outstanding Texans to you, and I hope that you will recommend
them to the Senate. Thank you.
Senator Graham. Thank you very much for your statement.
Senator Durbin.
Senator Durbin. Mr. Chairman, I would like to yield to
Senator Fitzgerald, as the nomination was made by him, but I
certainly support it. I would like him to make the opening
statement.
Senator Graham. Absolutely. Senator Fitzgerald.
PRESENTATION OF SAMUEL DER-YEGHIAYAN, NOMINEE TO BE U.S.
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON.
PETER FITZGERALD, A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Fitzgerald. Thank you, Mr. Chairman, and thank you,
Senator Durbin.
I am pleased to introduce to the Committee Hon. Judge Sam
Der-Yeghiayan, and to strongly support his nomination to the
bench for the Northern District of Illinois.
Since his admission to the Illinois Bar in 1978, Judge Der-
Yeghiayan has distinguished himself among his peers. In his
more than 20 years of experience in the Federal judicial
system, Judge Der-Yeghiayan has personally litigated and
adjudicated thousands of cases. At a time when vacancies n the
court system have pressed the limits of the Federal Judiciary,
it should be pointed out that since his appointment to the U.S.
Immigration Court in Chicago, Judge Der-Yeghiayan carried one
of the heaviest case loads in the entire immigration court
system.
As you know, Mr. Chairman, Judge Der-Yeghiayan's area of
expertise is in the field of immigration law. As an immigrant
of Armenian descent who came to the United States at the age of
19, I am sure it is not accident that he is now one of the
leading authorities in this complex field. I have also been
advised that if and when Judge Der-Yeghiayan is formally
confirmed by the Senate, he will be the first immigrant of
Armenian descent ever nominated and confirmed for the Federal
Judiciary.
Judge Der-Yeghiayan began his legal career as an honored
law graduate under the Attorney General's Honors Program, and
was appointed in 1978 as a trial attorney for the Immigration
and Naturalization Service in Chicago. Four years later Judge
Der-Yeghiayan was promoted to the position of District Counsel
for the INS Chicago District with jurisdiction over the States
of Illinois, Indiana and Wisconsin. From 1982 to 2000 he
managed one of the largest INS legal proceedings programs in
the Nation, and supervised a staff of over 20 Government
attorneys, including Special Assistant United States Attorneys.
During his time with the INS Judge Der-Yeghiayan served as
part of the Government team litigating cases in both the U.S.
District Courts and the Seventh Circuit Court of Appeals. He
also served on various national legal committees, including the
Committee on National Security and Antiterrorism.
In 1988 Judge Der-Yeghiayan was detailed to the U.S.
Embassy in Moscow, where he served as the U.S. Justice
Department's sole representative on refugee and other matters.
Judge Der-Yeghiayan is the recipient of numerous awards and
commendations from prestigious legal organizations, including
the Justice Department, the Chicago Bar Association, and the
Federal Bar Association. On March 6, 2003, Judge Der-Yeghiayan
was honored by the American Immigration Law Foundation with the
Immigrant Achievement Award for his outstanding contributions
to America and the American legal system. In 1998 he received
the District Counsel of the Year Award from the Commissioner of
the INS and the Attorney General of the United States.
Furthermore, the American Bar Association's Standing Committee
on the Federal Judiciary unanimously endorsed Judge Der-
Yeghiayan as qualified for appointment to the U.S. District
Court.
Samuel Der-Yeghiayan earned his BA in 1975 from Evangel
University in Springfield, Missouri, where he majored in
political science. In 1978 he earned his JD degree from the
Franklin Pierce Law Center in Concord, New Hampshire, where he
served on the Law Review.
Judge Der-Yeghiayan is a fine man, a distinguished citizen
of our State of Illinois, and will be a tremendous asset to the
Federal Judiciary.
Mr. Chairman, if I could just ask Judge Der-Yeghiayan and
his wife, Becky, who are here in the room with us, to please
stand up. There they are in the back.
Senator Graham. Welcome. Thank you for coming.
Senator Fitzgerald. They also have two adult children who
are not with us, Tara and Jared. So thank you very much, Mr.
Chairman, and members of the Committee for your time.
Senator Graham. Thank you, Senator Fitzgerald.
Senator Durbin?
PRESENTATION OF SAMUEL DERYEGHIAYAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS, BY HON. DICK
DURBIN, A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman, and I
will be brief. It is no reflection on Judge Der-Yeghiayan's
qualifications. But Senator Fitzgerald and I have this
bipartisan effort that has been extremely successful in filling
every vacancy that has come our way, and this is further
evidence of it.
When I had a chance to meet with Judge Der-Yeghiayan, I
think what impressed me the most was he had received
commendations from the INS, from the Department of Justice, and
as Senator Fitzgerald just noted, within the last few months
from an organization of immigration lawyers. I think anyone who
can earn the trust of both Federal law enforcement as well as
immigrant communities, understands the responsibilities of a
judge, and that is why I think he is going to be an excellent
appointment.
And I think the fact that he is an immigrant is a reminder
to all of us, particularly as an immigrant from Middle Eastern
background, is a reminder to all of us of the importance of
immigration to America. It is the diversity of this Nation
which makes it so strong, and Judge Der-Yeghiayan has
demonstrated that he has come to our shores and given us a lot.
I am sure he will give us more.
Thank you, Mr. Chairman.
Senator Graham. Thanks, Senator. A very impressive group of
nominees we have today.
At this time the Committee would like to recognize
Congressmen Doc Hastings and George Nethercutt.
Senator Durbin. Mr. Chairman, if I could interrupt for a
moment? Could I have leave to enter into the record a statement
by the ranking Democratic leader, Senator Leahy?
Senator Graham. Without objection.
Senator Durbin. Thank you.
Senator Graham. Who is the most senior of you all?
Representative Nethercutt. You mean by age, chronologically
or?
Representative Hastings. I am more mature.
Senator Graham. Well, how about Doc Hastings? Congressman
Hastings, thank you for coming.
PRESENTATION OF LONNY R. SUKO, NOMINEE TO BE U.S. DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF WASHINGTON, BY HON. DOC
HASTINGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
WASHINGTON
Representative Hastings. Senator Graham and I sometimes
have a hard time saying that.
Senator Graham. You are not the only one.
[Laughter.]
Representative Hastings. Thank you very much, and Senator
Edwards, thank you very much for the courtesy you are showing
to me and my colleague from Washington, George Nethercutt, on
this issue.
We are pleased to be here to introduce to you, or second if
that is the proper protocol, what Senator Murray did in
introducing to you Lonny Suko as appointment to the Federal
Judge.
He is a constituent of mine. Indeed his office, when he
served as a Federal Magistrate, was right across the street
from my district office in Yakima, and we had several
conversations over the time on different issues. And I was
always impressed by how he approached whatever issue we were
talking about.
Senator Murray, I think, laid out very well his background,
his judicial temperament. The one thing I want to dwell on just
a bit here is his most previous role prior to getting this
nomination, and that as a Federal Magistrate. As you know,
sometimes the job of a magistrate is one that is under the
radar, and that work is done pretty much under the radar. But
there are two very high-profile cases that he provided over in
which there was a settlement, and I think is worth noting
today.
One of them involved the Gypsy Church of the Northwest
against Spokane City County. It involved more than a million
dollars and various activities. The reason I mention that is
Spokane is George's hometown. I am about 150 miles from
Spokane, but this case raised a very high profile because it
went on for some time. While I am not an attorney, I remember
that being settled. I have a cousin that is an attorney in
Spokane that I think worked on that a little bit, and to have
settled that I think was a tremendous accomplishment that
probably demonstrated the temperament that Judge Suko brings to
this job.
And the other one was one that Senator Murray mentioned
regarding the mass shooting at Fairchild Air Force Base, and
that involved a settlement of some $17 million, a numerous
number of people.
So I just bring this to your attention to demonstrate the
temperament that I think Judge Suko had that impressed a
bipartisan group of attorneys that George and I were involved
with along with our two Senators to make recommendations to the
White House.
I am pleased to say that this bipartisan group of attorneys
that looked at these nominees, unanimously recommended Judge
Suko for the Federal Bench. So I am pleased to be here to
introduce him to you. Hopefully, the confirmation process will
be very quick and unanimous like our recommendation was.
Again, thank you very much for the courtesy you have shown
us here.
Senator Graham. Thank you, Congressman Hastings.
Congressman Nethercutt.
PRESENTATION OF LONNY R. SUKO, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF WASHINGTON, BY HON. GEORGE R.
NETHERCUTT, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
WASHINGTON
Representative Nethercutt. Thank you, Mr. Chairman and
members of the Committee.
I am delighted to be here in support of Lonny Suko and his
nomination by the President to be U.S. District Court Judge for
the Eastern District of Washington, a jurisdiction that
Congressman Hastings and I share. It represents about two-
thirds or a half, thereabouts, of the geographical area of our
State of Washington. So it is a very large district and it is a
very diverse district.
I want to also comment on Senator Murray and Senator
Cantwell, and thank them for their cooperation in this whole
effort and their recommendation of Magistrate Suko to be a U.S.
District Court Judge. I believe he has the judicial
temperament, the intellectual capacity, the experience in
private practice, and certainly the experience as a U.S.
Magistrate to make him eminently qualified for the position of
U.S. District Court Judge.
He is a loving father, a devoted husband, and is highly
respected in his community. The bar association, without
exception, finds him to be a gentleman and a high-quality
individual. He blends kindness with decisiveness, and I think
that is a great quality for a U.S. District Court Judge.
I thank you for holding the hearing. I thank you for
welcoming him. I have a statement for the record. I would ask
that it be included, and I thank Judge Suko, Honorable
Magistrate Suko, for presenting himself for this new challenge.
My colleague reminds me, if we may introduce him and his
wife. They are here today and we would ask them to stand.
Senator Graham. Please stand. Thank you very much for
coming. Welcome.
Representative Nethercutt. Thank you, Mr. Chairman.
[The prepared statement of Representative Nethercutt
appears as a submission for the record.]
Senator Graham. Thank you both. It is a pleasure to see you
both. Thank you for coming over. Thank you very much.
At this time I think we will hear from Ms. Duncan, Panel
II, if she will come forward. Judge Duncan, please have a seat.
Make yourself comfortable and welcome to the Committee. We are
very proud to have you here. I have been told I am going to
swear you in. Would you raise your right hand, please?
Do you solemnly swear the testimony you are about to give
this Committee is the truth, the whole truth and nothing but
the truth, so help you God?
Ms. Duncan. I do.
Senator Graham. Thank you very much.
Ms. Duncan. Thank you.
Senator Graham. Do you have an opening statement?
STATEMENT OF ALLYSON K. DUNCAN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT
Judge Duncan. No, I do not, Mr. Chairman, other than
wishing to thank Senator Edwards and Senator Dole for their
introductions, and for their support, and thank you also for
the opportunity of this hearing.
[The biographical information of Judge Duncan follows:]
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Senator Graham. You are a very impressive person, and we
are honored to have you here.
Without further ado, I will yield to Senator Edwards if he
would like to start any question you might have.
Senator Edwards. Thank you very much, Mr. Chairman.
And welcome, Judge. We are glad to have you here.
You clerked for Judge Julia Cooper Mack, who graces us with
her presence here today. We are honored to have her here, and
as you well know, she is one of the most respected jurists in
the country, and also a first, by the way, herself.
Judge Duncan. Correct.
Senator Edwards. I wonder if you would say a word about
what you learned working for her and how that will help you in
your work on the Fourth Circuit?
Judge Duncan. My year in clerking with Judge Mack was one
of the most enjoyable and informative of my life. I would be
there still if she had allowed me to clerk in perpetuity, but
she insisted that I move on.
I learned from her thoroughness, comprehensiveness and
attention to detail, and patience. And I also learned to
approach issues thoughtfully and with a respect for the level
of detail that did not always appear on the surface. She taught
me to analyze and she improved both my research skills and my
writing skills. I owe a great deal of what I was able to become
subsequently as an appellate attorney with the EEOC from my
experience in clerking with her on the D.C. Court of Appeals,
will always be very grateful, and am extremely gratified that
she was able to come with me today.
Senator Edwards. Judge, during the time you were on the
North Carolina Court of Appeals, you in your opinion showed a
strong concern for the due process rights of everyone who
appeared before you, whether it was a parent, a criminal
defendant, a business person. I wonder if you would comment on
whether this is a commitment you feel strongly about and one
that you would take with you to your job on the Fourth Circuit?
Judge Duncan. If I am fortunate enough to be confirmed to
the Fourth Circuit, I would bring my sincere commitment to
adequately ensuring due process for everyone, that I attempted
to apply when I served on the Court of Appeals. For obvious
reasons, I believe that everyone is entitled to the due process
of law, that it isn't just minorities but everyone who comes
before the court is entitled to be treated with full respect
for their rights. It is something I have always felt very
strongly about, and it is a commitment I will carry forward.
Senator Edwards. In addition to your work as a lawyer and
as a judge, you have also been very involved in civic
responsibilities, and you have shown actually your commitment
to the people of North Carolina in that regard, which we
applaud you for. I wonder if you would just say a word about
how you believe that activity helps around you and how it would
help you in your service on the Fourth Circuit.
Judge Duncan. Serving with the North Carolina Bar
Association in particular, first on the Board of Governors and
now as President, has given me an opportunity to learn about
the experiences of other members of the profession, and has
given me an increased respect for the range of activities that
lawyers are engaged in. I have seen lawyers come together to
provide legal services to the families of Fort Bragg in the
absence of husbands and wives in the military. I have seen
lawyers come together to raise money and provide support for
the victims of natural disasters.
It has given me a keener perspective of the role that
lawyers play, not just within their profession, but also in
their community, and it has renewed my pride in being a lawyer
and in attempting to serve the public good in that capacity.
Senator Edwards. Judge, you served North Carolina well, and
we are very proud of you, as a person, as a lawyer, and as a
judge. I know myself, having spent a lot of time talking to
folks in North Carolina, including lawyers and judges who know
you very well, that you are held in extremely high regard by
everyone across the board, regardless of political party
affiliation, and we will do everything in our power to see that
you are confirmed.
Judge Duncan. Thank you very much.
Senator Graham. Thank you, Judge. I just echo what Senator
Edwards said. Both the Senators from North Carolina give you
very high marks in your resume as deserving of such marks.
I just have one question. What do you think about the
University of Michigan cases that were just rendered by the
Supreme Court?
Judge Duncan. I have had an opportunity to skim them. I
have not read them in depth. I believe that the two opinions
provide additional guidance for the Courts of Appeals to apply
to the fact patterns that come before them. I think they have
set out a framework that will circumscribe our consideration at
the Court of Appeals level, if I am fortunate enough to be
confirmed.
Senator Graham. Thank you very much.
Do you have anything else, Senator Edwards?
Senator Edwards. No.
Senator Graham. Thank you very much for your testimony
before the Committee, and a very impressive person you are.
By agreement, we will have questions open to all of the
nominees for a week, that any member of the Committee can
submit questions that they would like for the next week.
Thank you very much, Judge Duncan. Thank you for coming.
Judge Duncan. Thank you.
Senator Graham. Our next panel would be Mr. Brack, Mr. Der-
Yeghiayan, Louise Flanagan, Mr. Suko and Mr. Yeakel, please.
If you would raise your right hand, please. Do you solemnly
swear that the testimony you are about to give before this
Committee is the truth, the whole truth and nothing but the
truth, so help you God?
All: I do.
Senator Graham. Thank you. You may be seated. And we will
just start, if you have an opening statement, now would be the
time to present it, and we will start with Judge Brack and work
to the right.
STATEMENT OF ROBERT C. BRACK, NOMINEE TO BE U.S. JUDGE FOR THE
DISTRICT OF NEW MEXICO
Judge Brack. Mr. Chairman, thank you for the opportunity to
appear this afternoon. I know we are on a short schedule.
I wanted to thank certainly the President for the
nomination the support of my Senators, who are great servants
of the State of New Mexico, and have served the Nation and our
State well.
And I have my three daughters here today as well. Senator
Domenici introduced my wife earlier, but I appreciate my family
supporting me in this effort, and wanted to recognize them as
well.2
[The biographical information of Judge Brack follows:]
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Senator Graham. Thank you, sir.
Judge Der-Yeghiayan.
STATEMENT OF SAMUEL DER-YEGHIAYAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE NORTHERN DISTRICT OF ILLINOIS
Judge Der-Yeghiayan. Mr. Chairman, thank you for this
opportunity to appear before this Committee. I thank the
President for his nomination. I thank Senator Fitzgerald for
recommending me, and Senator Durbin for supporting me for this
position.
I am grateful that my wife is here today with me. She was
earlier introduced. My son, Jared and my daughter Tara could
not be here, but I like also to recognize my parents, Jack and
Lydia, who have been an important part of my life.
And I am grateful to this Committee, and I will answer any
questions. Thank you.3
[The biographical information of Judge Der-Yeghiayan
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Senator Graham. Thank you very much.
Judge Flanagan.
STATEMENT OF LOUISE W. FLANAGAN, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Judge Flanagan. Good afternoon, Mr. Chairman. I thank you
for the opportunity of the hearing today. I would like to thank
the President for the honor of this nomination. And I thank
Senator Edwards and Senator Dole for their supportive remarks.
I am very appreciative.
And I also appreciate the support of my family, who has
already been introduced.
Thank you.
[The biographical information of Judge Flanagan follows:]
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Senator Graham. Judge Suko.
STATEMENT OF LONNY R. SUKO, NOMINEE TO BE DISTRICT JUDGE FOR
THE EASTERN DISTRICT OF WASHINGTON
Judge Suko. Mr. Chairman, I do not have an opening
statement. But I would also like to join in thanking the
President, the Office of the White House, Senators Murray and
Cantwell of the State of Washington, and the two Congressmen
who stood up earlier to speak on my behalf. Without the joint
efforts and the bipartisanship that was shown, I wouldn't have
gotten this far, and I am very grateful to be here.5
[The biographical information of Judge Suko follows:]
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Senator Graham. Thank you, sir.
Judge Yeakel?
STATEMENT OF EARL LEROY YEAKEL III, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF TEXAS
Judge Yeakel. Mr. Chairman, I also will forego, in the
interest of time, an opening statement. I would like to thank
you for conducting this hearing and giving all of us an
opportunity to be here today. I would thank Senators Hutchison
and Cornyn for their recommendation, and the President for his
nomination.
And I thank you my family who has already been introduced,
for being here to support me today. Thank you again.6
[The biographical information of Judge Yeakel follows:]
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Senator Graham. Kind of everybody's Oscar moment. Thank you
very much.
This is an important time to realize the ones who are most
important to you, and that is your family. All the Senators
have spoken glowingly, and House members have spoken glowingly
of each of you. I don't want to prolong this, but I think for
the sake of what we are all here to do today, I will just ask a
general question. Each one of you can answer it as briefly as
possible.
One of the things that we have to judge up here, as being
in the advise and consent role, is judicial philosophy. I am a
big believer that the President's nominees are given great
weight. But I think it is important to the people of the
country and the people of the Committee to have some
understanding of how you view your role. You obviously have all
had experience. But if you could, just in a minute or two, kind
of summarize your philosophy of what it is like to be a judge
and what you want to bring to the bench at the Federal level.
We will start with Judge Brack.
Judge Brack. Thank you, Mr. Chairman.
I was 40-years-old having served just in private practice
for 19 years prior to going on the bench. Was asked by a
district judge in Clovis to consider filling his vacancy or
being suggested to fill his vacancy when he retired. And was
struck for the very first time, with the notion of a career, a
life spent in public service. Up to that point I had been very
happy to serve my clientele, and I hope that I served them
well, but I was struck with the notion of public service.
And the opportunity to serve in the Federal Judiciary is
something that I consider just among the highest honors that
you can be accorded, and one of the best places to serve the
public. I didn't get to--I registered for the selective
service. I didn't get to serve. I wasn't selected back in those
days. There was a lottery.
This is an opportunity to serve my country, and I'm excited
about it and honored by it.
In terms of judicial philosophy, early I was asked in this
process what my judicial philosophy was, and I was so far out
of this loop, never had considered being a Federal judge to
that point. I didn't know I was being asked to describe whether
I was a strict constructionist or a judicial activist. I told
the person that asked that I take my judicial philosophy from a
prophet in the Old Testament, Micah, due justice, love mercy
and walk humbly with your God. And that says it all for me.
Due justice means due process for everybody that comes in
front of you. Treat them fairly, treat them with respect
according to law. All justice needs to be tempered by mercy,
and this is an exalted position that you are being asked to
confirm us in today. I think with that tremendous power comes
the need to be humbled by it and stand in awe of it. And that's
my philosophy.
Thank you, Mr. Chairman.
Senator Graham. Pretty tough act to follow there. Thank you
very much, very well said.
Judge Der-Yeghiayan?
Judge Der-Yeghiayan. Mr. Chairman, thank you for giving me
opportunity to discuss my judicial philosophy based on my
background. I am of Armenian heritage. I was born in Syria and
was raised in Lebanon. I grew up in a modest home with my
parents and three siblings. We did not have much, but my
parents instilled in me the values of honesty, fairness and a
strong work ethic. I have lived by those values throughout my
professional and personal life.
As an immigrant to this country, I was given a home, a
belonging, and the opportunity for higher education.
After graduation from law school, I dedicated my entire
life to give something back to this country through public
service, first, 22 years as a lawyer for the Government, and in
the past few years as a judge.
As a judge, I have demonstrated my dedication to duty, my
adherence to the rule of law, and my unwavering commitment to
the notions of fairness. I cannot think of a higher or more
noble calling than serving as a Federal judge. As a Federal
judge, I will uphold the Constitution faithfully, I will apply
the laws of Congress faithfully, and I will follow Supreme
Court precedents faithfully. That is my judicial philosophy.
Senator Graham. Thank you very much.
Judge Flanagan?
Judge Flanagan. Thank you, Mr. Chairman. I believe a
judge's role is a limited one, to interpret and to apply the
law, and also qualities of temperament and integrity are
exceedingly important. I believe that a dose of common sense is
also a very useful quality and a necessary quality for a judge
to have.
I echo my colleagues' remarks concerning a willingness and
understanding that it is my duty to faithfully follow
precedents set forth by the Supreme Court and my circuit, and I
pledge to you that I will uphold that duty and every other
incumbent on me.
Thank you.
Senator Graham. Thank you very much.
Judge Suko?
Judge Suko. I think I would supplement those remarks, and
there is none that I can disagree with so far. But I would
start this way, by saying that I believe that my philosophy and
my belief begins with a respect for the law and for all people
who come before it. And I add the words ``no matter what.''
I say that because I believe that temperament is extremely
important. I think judges are in a position to affect lives,
both adversely sometimes, and sometimes for the good. I think
the issues that come before the courts are important ones. Part
of the privileges that I have had up to this point in my career
have been to serve as a mediator in Federal district court
cases, and I have enjoyed very much the opportunity to bring
resolution where resolution has not occurred previously.
I think a judge has to be willing to take a second look on
occasion, to reconsider positions, to be open-minded, to be
fair, to be diligent, and to recognize that the human condition
is not perfect.
With that in my mind, I set those as goals that I would
continue to hopefully aspire to meet, and if I am confirmed by
this body to a Federal district court judgeship, I intend to
fully follow those types of precepts.
Senator Graham. Thank you, sir.
Judge Yeakel?
Judge Yeakel. Thank you, Mr. Chairman, for giving us the
opportunity to answer questions very important, I know, to the
Senate and also the people of this country.
I have been fortunate for the past 5 years to serve on the
Texas Court of Appeals and during that period of time have
never really thought about putting a tag on judicial
philosophy. And if I'm fortunate enough to be confirmed by the
Senate of the United States to the position of United States
district judge, that will again be my goal.
I think that what I strive to do and what I have strived to
do over the past 5 years is to resolve the issue that is in
front of the court by strict adherence to precedent and the
canons of statutory construction. And if you do that, you
seldom get in trouble. It is very difficult for me to improve
upon what my four colleagues have said today. I tried lawsuits
for 29 years and appealed them before I went on the court of
appeals. I echo their remarks that judicial temperament is of
great importance, that litigants and their attorneys should be
treated not only fairly but courteously before the courts of
this Nation. And I give you that pledge, again, if I'm
fortunate enough to get the advice and consent from the Senate.
Senator Graham. I would like the record to reflect that
Senator Cantwell was present at the Committee in support of
Judge Suko and that is a former Committee member, and we want
to acknowledge her input and presence here today.
In summary, I am a lawyer, and I think most lawyers love to
be in front of judges that are at least halfway nice and
understanding of our failings. And it seems to me from what we
have here today very nice people who have had extraordinary
backgrounds, understand the humble part of being a judge, which
is a big deal to me. And you will all serve our Nation well.
This is a demanding, tough job you are about to embark upon.
The fact that you were nominated speaks so well of you and your
families, and I hope you find the nomination process rewarding.
And I am honored to have been the Chairman while you were here.
Thank you for your willingness to serve our country. Thank
you very much.
Senator Graham. Panel four, Karen Tandy and Mr. Wray. Raise
your right hand. Do each of you solemnly swear that the
testimony you are about to give before the Committee is the
truth, the whole truth, and nothing but the truth, so help you
God?
Mr. Wray. Yes, sir.
Ms. Tandy. I do.
Senator Graham. Thank you. Do you have an opening
statement, Ms. Tandy?
STATEMENT OF KAREN P. TANDY, NOMINEE TO BE ADMINISTRATOR, DRUG
ENFORCEMENT ADMINISTRATION, DEPARTMENT OF JUSTICE
Ms. Tandy. Yes, thank you so much for permitting me to
appear before the Committee today, Senator, and I also want to
thank the Senators from Virginia for their statements for the
record on my behalf and for the support of Senator Hutchison
from Texas.
I am extremely delighted to have my family with me, who
were introduced previously: my husband, Steve, and our
daughters Lauren and Kimberly. But I also am privileged to
recognize, Senator, a true hero with DEA, and that is Jack
Lawn, who is with me today and is not only a hero to DEA but a
mentor of mine. As you may recall, he valiantly led DEA through
some of its greatest challenges and certainly handled with
heroic valor the aftermath of the kidnapping, torture, and
killing of DEA Special Agent Enrique Camarena.
It is an honor, Senator, to have been nominated by
President Bush, and I am so grateful to the men and women of
the Drug Enforcement Administration for being a part of my 25
years of public service and for the possible opportunity to
serve this President and warrant the confidence that both
President Bush and Attorney General Ashcroft have placed in me.
The opportunity to lead the courageous and enormously
talented almost 10,000 men and women of DEA would not have been
possible, Senator, without Deputy Attorney General Eric Holder
from the prior administration, who gave me the opportunity to
work in his office for the last year of that administration,
and certainly not without my present boss, Deputy Attorney
General Larry Thompson, whose extraordinary leadership has
enabled me, along with his support, to restore the OCDETF
program to its original mission.
I want to thank you, Senator, and this Committee lastly for
your incredible support and valiant efforts in the battle
against drugs over the past years and also, Senator, for the
assistance of this Committee specifically to DEA over the 30
years of its existence.
If I am so fortunate to be confirmed by this Committee, I
pledge to you, Senator, my unwavering support for the
President, his goals of reducing drug supply and drug use in
this country, and I pledge to do my utmost for the security of
this country and for our future generations.
Thank you.
[The biographical information of Ms. Tandy follows:]
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Senator Graham. Thank you.
Mr. Wray?
STATEMENT OF CHRISTOPHER A. WRAY, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. Wray. Thank you, Mr. Chairman. I don't have an opening
statement. I would like to thank you and the other members of
the Committee for allowing me the opportunity to appear before
you and, of course, to thank the President for nominating me.
I also wanted to express my gratitude to my home State
Senators, Senators Chambliss and Miller, for their
introductions. It meant the world to me.
And I wanted to introduce several members of my family who
came here today. My wife, Helen, and my daughter, Caroline, who
is 8, and my son, Trip, who is 6, are here. My father, Cecil
Wray, is here, and my mother would have liked to have been here
but couldn't make the trip this time. My sister, Katie
Baughman, and her husband, Steve, are here, as well as my
sister-in-law, Kate Klitenic, and her husband, Jason.
[The biographical information of Mr. Wray follows:]
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Senator Graham. Thank you all.
Ms. Tandy, I am very fond of your predecessor, Mr.
Hutchinson. He is a tough act to follow, and it speaks well of
you to be selected by the President and all the glowing
recommendations that have come from the members of the
Committee, members of the Senate, and others.
Just very quickly, what is your biggest challenge as you
see the job? And what would be the biggest help the Congress
could provide in meeting that challenge? And, lastly, I would
like to acknowledge the fact that you will be in charge of some
of the bravest, most dedicated public servants this country
has. They are very brave men and women who work in unbelievably
tough conditions, and we owe a great debt to them. And anything
we can do to help you in your endeavors to help them, count me
in. But if you could kind of outline what you think is the
biggest challenge you face and what we can do to help.
Ms. Tandy. Thank you, Senator. After 9/11 and the
redirection of resources that flowed from that, drug
enforcement responsibility was never more squarely placed on
the shoulders of the Drug Enforcement Administration than after
that moment. The President and the Attorney General called upon
every agency to take its part and perform its utmost for the
security of this country.
My vision for DEA and, if I am confirmed, my greatest goals
in leadership of DEA is to ensure that DEA is prepared to be
the leaders that they are and must be for the protection of
this country and for the security of our future generations
against illegal drugs.
Senator over the next 18 months, more than half of the
Senior Executive Service staff and professionals of the Drug
Enforcement Administration will be eligible to retire. It is
critical that I, if I am confirmed, ensure that there is career
development to shape the future leaders of the Drug Enforcement
Administration as it engages in the most incredibly difficult
fight against illegal drugs and drug trafficking.
Other challenges, Senator, and visions that go with those
challenges are to ensure that there is real information-
sharing, widespread information-sharing so that we can achieve
our greatest goals of drug enforcement with our State and local
law enforcement partners, and our partners throughout private
industry.
I also, Senator, see as other challenges and, concomitant
with that, opportunities achieving--the goal of achieving the
maximum impact from our enforcement efforts, to develop
strategic plans so that we use our resources most effectively
in the Drug Enforcement Administration, and that, most
critically, Senator, we sharpen our focus on the money side
that actually fuels the drug trafficking, the $63 billion-plus
industry that it has become in this country.
Senator Graham. Thank you. Thank you very much.
That will be a good segue into talking to you. Your very
impressive resume, Mr. Wray, and the testimony from both
Senators, it seems like you would be a very worthy adversary in
the courtroom. You are about to embark on a position that I
think is one of the most rewarding and challenging in the
prosecutorial world. I was a judge advocate in the Air Force,
both defense and prosecution side.
Just as briefly as you could, what do you see as the main
obligation of a prosecutor in the Federal system post-9/11? And
has that changed your job at all?
Mr. Wray. Senator, I think that is an excellent question
because it goes to the heart of what the Department has been
doing since September 11th, really just in days immediately
afterwards, and in particular the Criminal Division. We have
undergone really a cultural shift, which is to place the
prevention of another terrorist attack as our number one
priority.
If confirmed, I would maintain this as the number one
priority of the Criminal Division. We have never, as you know,
experienced anything as savage and cowardly as the attack that
occurred on September 11th, and we must do everything within
our power, within the Constitution and the law, to make sure it
never happens again.
I believe that there are public estimates that around
10,000 people went through those camps in Afghanistan, and
there were only 19 killed on September 11th. So that would be
my number one priority as head of the Criminal Division.
Senator Graham. Thank you very much.
I recognize the fact that our distinguished Senator from
Alabama has arrived. Senator Sessions, if you would like to
make any statements or comments or ask any questions, please do
so.
Senator Sessions. Thank you very much, Mr. Chairman, and
for your being here. It is great to see these two nominees to
very, very important positions. Karen Tandy, it is great to see
you.
I was United States Attorney for a number of years, served
on the United States Attorneys Advisory Committee and during
that time served as Chairman of the Narcotics Subcommittee, and
already--and that was a number of years ago--Karen Tandy was
recognized as one of the finest prosecutors in the country and
one of the leaders of the Organized Crime Drug Enforcement Task
Force programs.
Since that time, she has consistently shown extraordinary
capabilities and understanding of this issue. I would just say,
Karen Tandy, I congratulate you and the President for
nominating you. There are few people in this country that have
the practical experience, the intellectual ability that you do,
and the respect of the professionals who deal with drugs in
America. So I think you will just do a great job, and I am
excited for you on that.
Mr. Wray, congratulations to you.
Mr. Wray. Thank you.
Senator Sessions. The Criminal Division is a great job.
Every day you get to put on the white hat and go after bad
guys. What more can you ask other than a little raise every now
and then, maybe?
[Laughter.]
Senator Sessions. You will not get many.
But I think the leadership to all the way out in the field
where 90 percent of the cases that are tried are tried not in
the D.C. office here, tried by your Assistant United States
Attorneys all over America. And I think if you support them,
encourage them, motivate them, give them good guidance, they
will respond and we will see improved law enforcement in the
country.
I do not want to take too much time, Mr. Chairman. What is
the agenda?
Senator Chambliss. [Presiding.] The floor is yours.
Senator Sessions. All right. Ms. Tandy, let me ask you
this: It seems there has been--well, I was present at the
creation of the Organized Crime Drug Enforcement Task Force.
Maybe you are too young for that.
Ms. Tandy. No. I was there, too.
Senator Sessions. You were there, too? You did not have to
admit that. But it was a good program. I think it selected top
narcotics prosecutors and motivated them, got them the kind of
resources they needed.
I sense that it is perhaps typical of those kinds of
entities that it may have lost some of its luster as time went
by. Do you think in your position you could utilize that? Or do
you feel like you might seek to have the Department of Justice
give more emphasis to that area? I know you have personally
been involved in it.
Ms. Tandy. Thank you, Senator.
Senator Sessions. And would that help the DEA, of course,
in the prosecution of its cases?
Ms. Tandy. DEA is a leader in the Organized Crime Drug
Enforcement Task Force and is responsible, along with its other
agency colleagues, for initiating the vast majority of the
OCDETF investigations.
Just quickly, Senator--and thank you so much for your kind
remarks--the experience that I had in reshaping OCDETF from a
passive funding mechanism to an accountable, focused task force
program responsible for reducing drug supply has certainly
inured to my benefit, Senator, in the future that, if I an
confirmed, holds for me and for DEA with my leadership.
Essentially, Senator, getting to real measures of our
performance is a significant future piece for OCDETF and for
DEA. Dismantling and disrupting and using our resources to go
after and dismantle and disrupt the most significant supply,
drug-trafficking organizations are what DEA is all about and
what OCDETF has been about for 20 years. So I feel very
fortunate, Senator, to have had the opportunity to reshape and
restore the mission of OCDETF and feel that that will position
me very capably to be a leader of real value in making a
difference along with DEA.
Senator Sessions. Would you say that fundamentally the
OCDETF program that you helped revitalize, if that would be the
primary prosecutor of the most important cases DEA makes in the
drug field?
Ms. Tandy. Senator, those are--you're absolutely right,
those are the most significant cases because they go after
organizations that are responsible for our greatest volume of
drug supply from the international, national, regional, down to
the local distribution points across this country. It is DEA
and OCDETF that make the greatest difference and provide the
model for ensuring that we reach our drug supply and ultimately
reach the President's goals of reducing drug use.
Senator Sessions. One thing I would like to ask you--and
this is true of all agencies--I have heard complaints about DEA
and some others about the promotion policy for agents, whether
or not it is fair, whether or not people get a fair shake,
whether or not the most talented get the most promotions and
the ones who work the hardest.
I think it is important and I would ask you, if you take
this job, that you take seriously every agent and their
opportunity to be promoted to try to promote rapidly those who
deserve it and not promote those--just move them along and pay
them more every year if they are not performing. In my
observation--and I think you would agree--as a prosecutor is
some agents just seem to make lots of cases, and other seems to
make very few. It is not just make a few more. It is like some
make ten big cases and somebody else will make one. And making
a big case and handling that is a complicated thing, and they
are very, very valuable, the agent who can do it.
Would you say to us that you would be committed to
reviewing your procedures and making sure the most talented get
promoted that deserve it?
Ms. Tandy. Thank you, Senator. Absolutely, you can count on
that. As a career public servant, it was through hard work and
the recognition of hard work that I am able to appear before
you today. And you have my pledge that, if confirmed, I will
ensure that DEA's career promotion opportunities match your
expectations, our country's expectations, that those who
succeed are the ones who are the most accomplished in carrying
out the policies and goals of this administration and the Drug
Enforcement Administration.
Senator Sessions. That is well stated. I think we need to
work on that constantly in Government. Businesses do a better
job of seeing talented people and moving them as fast as
possible into the places they can contribute the most, and we
can do a better job, I think, in Government.
I will just mention one thing that you and I discussed
earlier. I think DEA does have a prevention role and education
role, but fundamentally that should not fall on DEA in my
opinion. It is a waste to take a highly paid, highly trained,
experienced DEA agent and have them work in junior high schools
or things like that. They are the best of the best. DEA agents
are terrific agents. And they are very valuable national
resources, and maybe you can--I just think it is a mistake to
go too far in all of a sudden taking those highly skilled
agents capable of working Colombian drug gangs and billions of
dollars at stake and drain away their attention too much from
the skills they need.
Would you comment on that?
Ms. Tandy. Yes, thank you, Senator. DEA's enforcement
skills are superior in drug enforcement, and those skills need
to be fostered and ensured that they are focused in that
direction.
The demand reduction role of DEA represent less than 1
percent of its budget, and demand reduction is something that
really goes with the passion of the men and women who serve in
DEA and the leadership of DEA. The demand reduction role
principally, however, must fall to those agencies that are most
skilled in demand reduction--obviously, the Department of
Education, HHS, and, clearly, the Office of the National Drug
Control Policy in the White House.
Senator Sessions. I agree. I think you stated that well.
The 1-percent figure I did not know. I thought some changes had
been made recently that may have gone a good bit beyond that.
So I think you do have a role. You can contribute in the local
groups. When I led those groups in Mobile, Alabama, DEA always
played an important role in it. But they are great law
enforcement officers, the best anti-drug investigators in the
world, and I think they should focus on that.
Mr. Wray, briefly, when Attorney General Ashcroft was sworn
in, we asked him some questions about gun crime prosecutions. I
remember when I came to this Senate a little over 6 years ago,
we had a host of new laws that were going to, Mr. Chairman,
constrict the right of law-abiding citizens to get guns. Every
kind of law, just every bill that went by, there were gun
amendments that were going to make it tougher for legitimate
legal citizens to get a gun.
Again, I look at the prosecutions, and since the time of
the Reno administration took office, prosecutions dropped 40
percent. So we were passing new laws, but nobody was getting
prosecuted for them. So we asked Attorney General Ashcroft was
he going to prosecute the laws that he had and he said that he
would. I think the numbers are going up. I am not sure what
they are.
Maybe you will know, Mr. Wray, but I would first of all ask
you, will you make that an emphasis, people who are carrying
guns in drug crimes and burglaries and in bars? That is how
people are getting killed too often and if we prosecute those
cases aggressively, I am convinced murder rates go down, and I
think the numbers are showing that.
Do you have any thoughts on that subject?
Mr. Wray. Absolutely, Senator, I couldn't agree with you
more, and I know that you have been a strong supporter of the
administration's efforts in that area.
Project Safe Neighborhoods, which is this administration's
gun crime reduction initiative, is a comprehensive strategy
that kicked into gear in, I think it was around May or June of
2001, and the numbers are very encouraging.
Over the last fiscal year, gun crime prosecutions, again
using the laws that are on the books, are up about 38 percent
in 1 year. Even in the specific area of gun trafficking
offenses, over the last 2 years of this administration they are
up about 55 percent.
We are trying to send home the message that gun crime means
hard time, using the felon in possession statute, the armed
career criminal statute where appropriate, and going after
precisely the sort of defendants that you are talking about.
Senator Sessions. You can pass a lot of them. A number of
the crimes that were new laws that were passed only had one or
two prosecutions in the whole United States. But the cases of a
felon in possession, an armed career criminal carrying a
firearm during a drug trafficking offense or some other felony,
are the bread-and-butter cases.
I think this Department of Justice will be judged by
whether you maintain an aggressive posture against that kind of
criminal activity because that is where people end up getting
shot. So I appreciate that.
I would mention a couple of things, also. I know that the
Federal agencies are going to spend a lot more time on
terrorists and terrorism-related issues. I would ask you,
though, to not too lightly back away from cases that are
important to the legal system or to the commercial system,
cases, for example, of bankruptcy fraud. We could prosecute a
lot more cases of bankruptcy fraud.
And, frankly, it is my impression that a lot of bankrupts
and a lot of lawyers think nobody ever gets prosecuted, no
matter what they put down on their forms and bankruptcy
petitions, which the court relies on totally, and they end up
defrauding creditors and people in need.
I believe that the credit and banking system--it is
important to have integrity in that. My experience is that a
good Federal prosecutor, working with State and local
investigators and Federal investigators, can really be
effective in identifying those people that travel around
passing bad checks. Maybe they do $20,000 in one place and
$20,000 in the next place, and oftentimes are ignored by the
Federal system, but are really big-time repeat offenders.
What is your thought about white-collar crimes of that
nature? Will they be deemphasized or will you do your best to
keep those numbers up?
Mr. Wray. Well, Senator, I agree that bankruptcy fraud is a
very pernicious kind of fraud that goes to the heart of both
the integrity of the banking and credit systems that you are
referring to, as well as to the integrity, frankly, of the
bankruptcy court system.
Senator Sessions. It is a Federal court.
Mr. Wray. And without the Federal Government aggressively
moving in that area, frankly, there is no one else to do it. So
we would not want to neglect that area. The Criminal Division
has a very effective Fraud Section and, of course, the U.S.
Attorneys' offices, as you mentioned earlier, are where the
bulk of that work is done. When I was a prosecutor in the
field, I had some bankruptcy fraud investigations of my own, so
I hear you loud and clear.
Senator Sessions. Mr. Chairman, I thank you for this time.
I believe these are two good nominees and I think we are going
to have a good leader at DEA. I know her and I know Karen's
background and integrity, and I know she will do a good job.
This is an important agency. This is one of the great
agencies in the Department. I have some great personal friends
to this day who are DEA agents. We had some marvelous cases
that they handled involving international smuggling
organizations and seizures of millions of dollars in assets.
They have the highest-paid lawyers and it is tense.
A good agent is worth his weight in gold when you are in a
big case, and you have got a lot of them in DEA and I am a big
fan. I look forward to working with you.
Ms. Tandy. Thank you, Senator. I think half of DEA is in
the back of this room right now and I know they are so pleased
and proud to hear what you have just said. Thank you.
Senator Sessions. Thank you.
Senator Chambliss. Spoken like an outstanding former United
States Attorney.
Mr. Wray, your experience as an Assistant U.S. Attorney and
in the management of the Justice Department has been
significant and substantial. Would you outline how these
positions have prepared you for assuming a leadership role in
the Criminal Division for us?
Mr. Wray. I would be happy to do that, Senator. If
fortunate to be confirmed, I feel like I have had the fairly
unique experience of seeing the Department and understanding
the Department from three different perspectives, from the
perspective of a defense attorney on the other side, from the
perspective of a career prosecutor in the field in the U.S.
Attorney's office, and from the perspective of part of its
senior leadership, especially during the September 11 attacks
and really ever since.
In the U.S. Attorney's office, I prosecuted a wide variety
of cases, everything from securities fraud to murder, from
public corruption to gun crime, to church arson, and so forth.
Since that time, in the leadership of the Department, I
have seen just about all of the issues confronting the Criminal
Division at this particularly critical juncture in its history.
I have had leadership responsibilities relating to the Division
before and literally during and after the September 11 attacks.
For well over a year now, I have been attending and
participating in daily terrorism threat briefings conducted by
the CIA and FBI with the Attorney General, the Deputy, and the
FBI Director.
In my role as Principal Associate Deputy Attorney General,
I have been involved in just about every significant terrorism
prosecution and investigation that the Department has had since
September 11, whether in Virginia or in New York or Chicago,
Buffalo, Portland.
During the course of that time, I have gotten to know and
develop excellent personal working relationships not only with
the leadership of the Criminal Division--and there are some
really first-rate folks working there, as well as the 93 U.S.
Attorneys. I think I know on a first-name basis just about
every one of them.
I spend an awful lot of my time interacting with the
leadership of the FBI, the ATF, the SEC in corporate fraud
matters. And, of course, Ms. Tandy and I know each other quite
well, having offices two doors apart. So if we are both
fortunate enough to be confirmed, I think that would be a great
thing for both the Criminal Division and the Drug Enforcement
Agency.
On the management front, I have had significant management
responsibilities within the Department of Justice as a whole,
with its roughly $23 billion budget and 130,000 employees. I
was the Department's representative on something called the
President's Management Council, which is a council that
consists of essentially the chief operating officers of the
different Cabinet agencies and has responsibility for
implementing the President's management agenda.
I was also entrusted with significant responsibilities
relating to the Justice Department's own strategic management
council. So I had a lot of responsibility for management of the
Department as a whole over the last few years.
So putting all those things together, I feel like this is
the time in which we have to be particularly vigilant. Just in
the last couple of weeks, we have had both a guilty plea from
Iman Ferris in the Eastern District of Virginia and we have had
the enemy combatant designation of Ali Almari, both of which
highlight the fact that we cannot to let down our guard, that
there continue to be efforts to put sleeper operatives in the
United States.
And I feel that this is the time for us to place the
prevention of terrorism as the number one priority. The need
for a smooth and orderly hand-off is imperative, and I believe
I am the right person at the right time for the job and I am
honored by the trust of the President and by the kind words of
your introduction and by others that you have placed in me.
Senator Chambliss. Well, your bio suggests, and you have
just alluded to a broad background that you have got with
respect to terrorism and prosecution of other cases, from
narcotics to basically any violation of any statute of the
Federal Government.
I think you just answered my other question, and that is
what are going to be your priorities, or where are you going to
start or what are you going to focus on, Chris?
Mr. Wray. My number one priority, as you mentioned, is the
number one priority of the Department, which is preventing
further terrorist attack against Americans. Clearly, at this
day and time there is nothing that can be as foremost in our
minds as that.
My other priorities would be, if confirmed, the corporate
fraud prosecutions. I think it is a particularly important time
for us to try to hold accountable corporate wrongdoers and to
restore integrity and investor confidence to the marketplace;
gun crime, as I mentioned in response to Senator Sessions,
especially through Project Safe Neighborhoods, since gun crime,
as you know, is really a problem all over the country and
really needs to be a major priority of the Justice Department;
drug trafficking, both for its own nexus to terrorism and for
the threat it poses to society.
Those would be probably my four major areas, but I would
want to be careful not to neglect a number of areas in which
the Federal Government plays a crucial role--public corruption,
espionage, cyber crime, things like that. But those would be my
primary focuses.
Senator Chambliss. Ms. Tandy, there is a direct
relationship between drug trafficking and terrorism, and you
have had extensive experience with regard to investigating and
prosecuting drug traffickers. You have had extensive experience
with money laundering and related crimes.
What is going to be your focus on the nexus of drug
trafficking, money laundering, asset forfeiture, and how we use
those tools to disrupt and interrupt terrorist activity?
Ms. Tandy. Senator, certainly for the major supply
organizations, the focus will be through the OCDETF program,
the longest running task force program that includes 90 percent
State and local law enforcement efforts as part of that
program, along with nine Federal agencies.
The Drug Enforcement Administration has developed a
wonderful priority targeting system to ensure that we are
reaching from the international end of our focus down to the
borders and across the borders to the lowest drug trafficking
local priority across the country.
The money piece of that effort, Senator, is something that
I will be very focused on enhancing because, as you know, it is
the money that fuels this horrific preying upon our children
and our society. And it is only by attacking the money side as
vigorously as we attack the drug side that we will truly
dismantle and disrupt these supply organizations that have
become their own marketplace in this country.
Senator Chambliss. Thank you very much, and let me just say
to both of you that I am very pleased to see that the two of
you are willing to dedicate yourselves to public service. You
obviously are committed to making sure that America is a safer
place to live, and those of us, like you, who are parents
appreciate the fact that you are as committed as you are and we
thank you for your willingness to serve your country. I am sure
that your nominations are going to move through in short order.
We thank you for being here today and we thank you for your
testimony.
Ms. Tandy. Thank you, Senator.
Senator Chambliss. Before we close the hearing, I am
including in the record, without objection, the following: a
statement of Chairman Hatch on the nominations of Karen Tandy
and Christopher Wray, as well as his statement in support of
our judicial nominees; a statement of Senator George Allen
introducing Karen Tandy; letters of support for the nomination
of Christopher Wray; letters of support for the nomination of
Karen Tandy.
With that, we will stand in adjournment.
[Whereupon, at 3:46 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATIONS OF JAMES O. BROWNING, OF NEW MEXICO, NOMINEE TO BE DISTRICT
JUDGE FOR THE DISTRICT OF NEW MEXICO; KATHLEEN CARDONE, OF TEXAS,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS; JAMES
I. COHN, OF FLORIDA, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF FLORIDA; FRANK MONTALVO, OF TEXAS, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF TEXAS; AND XAVIER RODRIGUEZ, OF
TEXAS, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS
----------
WEDNESDAY, JULY 9, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 3:02 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn
presiding.
Present: Senator Cornyn.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. The hearing of the Senate Judiciary
Committee will come to order, and I appreciate Chairman Hatch
asking me to chair this hearing since it does, not
coincidentally, include the nominations of a number of
exceptionally qualified judges and judicial nominees, including
folks from the great State of Texas, but also including New
Mexico and Florida.
I know we have a number of distinguished Senators who want
to introduce nominees from their respective home States, and
out of deference to them, the Chair will proceed to hear your
introductions. And then I will be happy to do the introductions
of the Senators from Texas.
I know Senator Hutchison will also be here, but I know each
of the members of the Senate as well as our colleague Silvestre
Reyes from the House have conflicting engagements. And so in an
effort to try to get to you and allow you to get on to your
other business, I will be glad first to turn to the senior
Senator from New Mexico, Senator Domenici.
PRESENTATION OF JAMES O. BROWNING, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO, BY HON. PETE V. DOMENICI, A
U.S. SENATOR FROM THE STATE OF NEW MEXICO
Senator Domenici. Thank you very much, Mr. Chairman, and in
deference to you, you can be sure we won't take much of your
time. Thank you so much.
First, it is my distinct privilege to be here to introduce
to you and the Committee the nominee of our President for
district judge in the State of New Mexico, James O. Browning.
Mr. Browning is joined by his wife, Jan, and one of his three
children, Elizabeth, both of whom are here with him, if maybe
they could stand and we could recognize them. And Mr. Weldon
Browning and his wife, Shirley, are here. They are the mother
and father. They are from Hobbs down in your country, his
parents. They are here.
Senator Cornyn. Welcome.
Senator Domenici. Thank you for welcoming them.
Mr. Chairman, seldom do I have an opportunity to introduce
a candidate with such outstanding credentials. That is why I
indicated to you that it ought to be very brief from our
standpoint. This young man is a native of Hobbs, New Mexico. He
attended Yale University where he graduated magna cum laude,
receiving three varsity letters playing football. He then
attended University of Virginia Law School, serving as the
editor in chief of the Virginia Law Review. And after
graduating from law school, he clerked for Collins Seitz, the
chief judge of the Third Circuit Court of Appeals, and he
followed that clerkship by a clerkship with the United States
Supreme Court with Lewis F. Powell, Jr., being his clerk at the
United States Supreme Court.
We in New Mexico are fortunate that he returned to our
State to practice law after his clerkships. He has generally
been in the practice of law with the exception of practicing as
Deputy Attorney General for a couple of years.
I am very pleased with his nomination, certain that he will
meet with your satisfaction and that of the Committee, as he
did with the President of the United States. Clearly, the
American Bar did not take any length of time to find that he
deserved their highest accolade as well qualified. I believe
they are right. I believe our President was right. And I hope
that this Committee will find and concur in those findings and
send him to the Senate quickly. We are in need of judges in New
Mexico very badly, and we hope that he will move quickly
through the Committee.
Thank you, and I am very appreciative that I am joined here
by my colleague, Senator Bingaman.
Senator Cornyn. Thank you, Senator Domenici.
Senator Bingaman, I know you are listed next, but you
graciously agreed to allow Senator Hutchison to go next because
I know she has a conflicting Committee hearing on the
appropriations markup for defense and legislative branch
approps. And so at this time, staff tells me I am supposed to
recognize Senator Hutchison.
Senator Hutchison. Thank you very much, Senator. I can
wait. I would rather let Senator Bingaman finish with this
wonderful nominee from New Mexico, and then I will go. My
markup is at 3:15, so I will be okay, I think, unless you are
very long-winded.
Senator Cornyn. Very well. Thank you. I think
bipartisanship is breaking out all over, which is a rare thing
in the Judiciary Committee, but it is welcome nonetheless.
PRESENTATION OF JAMES O. BROWNING, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO, BY HON. JEFF BINGAMAN, A U.S.
SENATOR FROM THE STATE OF NEW MEXICO
Senator Bingaman. Well, we are glad to bring a change to
your Committee. Thank you very much, Mr. Chairman. Let me just
second the comments that Senator Domenici already made and
indicate that I strongly support this nominee. James Browning
is extremely well respected as a lawyer in our State, and I
have heard from many of my friends who are practicing law in
New Mexico about his reputation for fairness and straight
dealing as well. And I think that he comes highly recommended
by Republicans, by Democrats, by Independents, by people of all
political persuasions, as somebody who will add greatly to the
Federal court in our State.
He does have an excellent background, as Senator Domenici
indicated. His legal background and his educational background
are without blemish. So I strongly recommend him to the
Committee, and I urge you to act quickly on his nomination so
that we can have a new Federal district judge in New Mexico.
Thank you.
Senator Cornyn. Very good. Thank you, Senator Bingaman.
At this time the Chair will recognize Senator Kay Bailey
Hutchison, my colleague and fellow Senator from the State of
Texas.
PRESENTATION OF KATHLEEN CARDONE, FRANK MONTALVO AND XAVIER
RODRIGUEZ, NOMINEES TO BE DISTRICT JUDGES FOR THE WESTERN
DISTRICT OF TEXAS BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR
FROM THE STATE OF TEXAS
Senator Hutchison. Well, thank you, Mr. Chairman. I am very
pleased to have three nominees today for Texas, and I'm also
very pleased that these are nominees from the Western District,
and especially two from El Paso, which was a new court created
by this Senate because of the great backlog and the really huge
caseload that we have in the Western District in El Paso. So we
are going to fill these judgeships with very qualified
nominees.
It is my pleasure to introduce Kathleen Cardone. Kathleen
would be serving as a U.S. District Judge for the Western
District of Texas. If confirmed, she would preside in El Paso,
and she is a New York native who graduated from the State
University of New York at Binghamton and St. Mary's School of
Law in San Antonio, Texas.
After graduating from law school, Kathy clerked for a U.S.
magistrate for the Southern District of Texas before moving
into private practice. Ms. Cardone has the distinction of
serving as the first judge of the 388th Judicial District
Court, a new State court created in El Paso in 1999. While
serving as the judge of the 388th, she developed and founded
the El Paso County Domestic Relations Office. This office
serves as an intermediary between courts and litigants in
family law matters. Ms. Cardone also presided over another
judicial district court in El Paso and has a great deal of
judicial trial experience.
Kathy has an excellent record of civic involvement as well.
She is a member of the board of directors of the Upper Rio
Grande Workforce Development Board and the El Paso Center for
Family Violence. She is a past board member of the YWCA, the El
Paso Holocaust Museum and Study Center, the El Paso Bar
Foundation, the El Paso Mexican American Bar Association, and
the Child Crisis Center of El Paso. She is joined today by her
husband, Bruce, and their son, Dominic. Her parents and four of
her siblings are here from New York. And I would like to ask
all of them, including Kathy, to stand, please.
Senator Cornyn. Please stand so we can recognize all of
you. Thank you very much and welcome.
Senator Hutchison. She has been certified as well qualified
by the ABA.
Frank Montalvo is our second nominee. Judge Montalvo
currently presides over the 288th District Court in San
Antonio, and he also will be nominated for another bench in El
Paso. He is a Puerto Rican native who moved to Texas in 1988.
He has served both the community and the San Antonio Bar
Association with distinction. He is an engineer by training,
receiving his bachelor of science with honors from the
University of Puerto Rico in 1976, then a master of science in
bioengineering from the University of Michigan in 1977, and a
J.D. from Wayne State University Law School in 1985.
He then worked as an automotive safety engineer, both for
General Motors and the Chrysler Corporation. That was before he
became a full-time lawyer.
He moved to San Antonio in 1998 working as an associate at
Groce, Locke & Hebdon. He worked at Ball & Weed in San Antonio
and had a lot of litigation and trial experience. He continues
to preside today over the judicial district court in San
Antonio, a State court.
He is an active member of the San Antonio Bar Association,
speaking at a number of bar related functions over the past 10
years, currently serving as Chairman of the Bexar County
Juvenile Board Budget Committee. While chairman, he assisted
with the effort to have the juvenile probation department of
Bexar County assume direct responsibility for the operation and
management of the Bexar Juvenile Correctional Treatment Center,
a post-adjudication residential treatment facility.
He is joined today by his son, Carlos. If you would please
stand?
Senator Cornyn. Thank you. Welcome, Carlos and Judge
Montalvo.
Senator Hutchison. And my third Texan is Xavier Rodriguez.
Judge Rodriguez has been nominated for the U.S. District Court
for the Western District in San Antonio. He earned his B.A.
from Harvard University in 1983. In 1987, he earned his master
of public administration and juris doctorate from the
University of Texas.
Following his graduation from Harvard, Judge Rodriguez was
commissioned as an officer in the U.S. Army Reserve and served
in the JAG Corps until 1993. After graduating from law school,
he returned to San Antonio where he went with Fulbright &
Jaworski and is currently a partner at that firm. He has
concentrated in the areas of labor and employment law for which
he is board-certified.
He is an active member of the community, routinely
providing pro bono legal services to Respite Care of San
Antonio, a non-profit organization that provides services to
families caring for disabled children. He has also worked with
Any Baby Can, a non-profit that provides support and crisis
assistance to families with children with special health care
needs.
In 2001, he was appointed to serve as a justice for the
Texas Supreme Court. He did an outstanding job, and I know will
do the same outstanding job on the Federal bench that he did
while serving on the Supreme Court of Texas.
Judge Rodriguez is accompanied today by his wife, Raenell,
and his daughters, Lauren and Sarah. If they would please
stand?
Senator Cornyn. Thank you very much. Good to have you here.
Senator Hutchison. These three, as you know, Mr. Chairman,
from personal knowledge as well and from the joint selection
process that we have, are three highly qualified nominees who
have the total support of the ABA. All three do, and they have
the support of the bar associations and the people in their
communities, as I am sure you know as well. I couldn't be more
proud to nominate these three and ask for their support from
the Judiciary Committee.
Thank you.
Senator Cornyn. Thank you very much, Senator Hutchison.
We have our friend and colleague, Hon. Silvestre Reyes,
from the House of Representatives here, who represents El Paso
in the United States House of Representatives. And I know you
have some remarks you would like to make, and please proceed.
PRESENTATION OF KATHLEEN CARDONE, FRANK MONTALVO, AND XAVIER
RODRIGUEZ, NOMINEES TO BE DISTRICT JUDGES FOR THE WESTERN
DISTRICT OF TEXAS BY HON. SILVESTRE REYES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Reyes. Thank you, Mr. Chairman, and it
occurs to me sitting here listening to our senior Senator, the
thought goes through my mind that it is a good day for Texas
with three new judges. You know, our mantra is ``Don't Mess
With Texas.'' With three outstanding candidates like this, we
hope they will go through a very speedy process through the
Committee. It will be increasingly harder for people to mess
with Texas.
But I do want to offer my congratulations to Judge
Rodriguez and his family; and, of course, Judge Montalvo and
his son, Carlos, who are here, who are soon to be part of my
district in West Texas; and also, of course, a long-time friend
of mine and of my family, Kathy Cardone, and Bruce and Nicco,
and, of course, the extended family that has turned out in
force here, which makes me even prouder to be here to say a few
words about Judge Cardone.
So with that, Mr. Chairman, Judge Cardone has been a
leading figure of the family court system in my district of El
Paso, Texas. She has been instrumental in highlighting
important differences between the family court and other cases
files at our courthouse. Today, the El Paso County Courthouse
11th floor is dedicated to families and to children, due in
large part to Judge Cardone's vision.
Judge Cardone's experience speaks for itself. For nearly 20
years, she has been a judge both at the municipal and State
level. Currently, she sits as a visiting judge for the State of
Texas, where she presides over criminal and civil family law
matters. She was appointed to that position by then-Governor
George W. Bush, our current President, and she has been
effectively recognized for managing a very vigorous trial
docket and has a reputation of diligence, balance with fairness
and thoughtfulness. Furthermore, her knowledge and commitment
to our border region will be beneficial to the Federal court
system.
The Western District of Texas urgently needs Judge Cardone
and Judge Montalvo. Investments in law enforcement agencies
along the U.S.-Mexico border have increased dramatically in the
past several years. The resources of the legacy Immigration and
Naturalization Service, the United States Border Patrol, the
DEA, have more than doubled since 1994 as a result of America's
effort on the war on drugs, and even more recently as a result
of the events of September the 11th.
By the year 2000, arrests on the border had increased by
125 percent. During that same period within the Western
District of Texas, the number of defendants prosecuted for
immigration violations rose 849 percent. And the number of drug
prosecutions rose another 268 percent.
According to the Administrative Office of the United States
Courts, authorized Federal court judgeships, on the other hand,
increased by only 6 percent in the five United States judicial
districts along the border between fiscal years 1994 and 2000.
During 2000, these five border districts, which include the
Western District of Texas, handled 27 percent of all criminal
cases filed in the United States, while the other criminal
cases were spread among the country's other 89 Federal district
courts. I think a staggering statistic by anybody's measure.
In the Western District of Texas alone, Federal criminal
cases have increased by 218 percent since 1994, from 1,390 to
today 4,425 cases. Nowhere within the Western District of Texas
are circumstances more dire than in my own hometown of El Paso.
The number of Federal criminal cases filed in El Paso County
has increased from 443 to 2,192 cases since 1994. During the
year 2000, the Federal judges sitting in El Paso averaged 817
cases, whereas the national Federal judges averaged 96 cases.
No judge should be burdened with a caseload that is more than 8
times the national average. Thankfully, last year the Senate
approved the judicial nomination of Judge Phillip Martinez to
fill an existing vacancy in the Western District of Texas and
who, I might add, is doing an outstanding job for us.
Nevertheless, additional judges are desperately needed in
the Western District to address what we think is a crisis on
the border.
I have no doubt that Judge Cardone will be able to
contribute significantly to addressing the large caseloads we
have on the border, as will Judge Montalvo. I am also confident
that both Judges Cardone and Montalvo will continue to be an
asset to the Federal court system, and, in particular, Judge
Cardone to the city of El Paso in this new capacity. She has
been a very active member of our community, as Senator
Hutchison made mention of all her individual commitments to the
many different organizations that tells so much about her
commitment to our community.
As I said, I have personally known Judge Cardone for almost
10 years and can attest to her character and fairness both as a
person and as an officer of the court. She is a person of
integrity and is well respected throughout El Paso and the rest
of our great State.
Mr. Chairman and members of the Committee, I would like to
thank all of you for the opportunity to speak here today and to
express my support for both Judge Cardone and Montalvo for the
U.S. district judgeships in the Western District of Texas, and
I respectfully urge the members of the Committee to confirm her
appointment as quickly as possible. As I stated before, the
number of cases really creates a crisis for our community on
the border region.
So, with that, again, congratulations to all the nominees
here, Judge Montalvo, Judge Rodriguez, and, of course, our own
Judge Cardone. And thank you, Mr. Chairman, for giving me an
opportunity to be here this afternoon.
Senator Cornyn. Thank you. Thank you, Mr. Reyes. We
appreciate your being here and your presence here.
I am going to have all of the written statements of each of
the witnesses made part of the record. Also, Senator Leahy has
a statement which will be made part of the record, Senator
Nelson, and Senator Bob Graham--the last two, Senator Nelson
and Senator Graham, on behalf of James Cohn, who has been
nominated to serve as U.S. District Judge for the Southern
District of Florida.
And we will, as usual, leave the record open for a week to
allow any Senator who would like to send written questions to
any of the nominees, which, of course, we hope that you would
respond to on a prompt basis so we can expedite consideration
of your nomination on the floor.
I just want to add my comments to those of Senator
Hutchison with regard to three of the nominees, whom I had the
pleasure of working with Senator Hutchison in sending these
nominees to the President, that is, Judge Cardone, Judge
Montalvo, and Judge Rodriguez.
Actually, just to show what a small world it is, I actually
practiced at the same law firm that Judge Montalvo did when he
came to San Antonio. But at that time I was already a district
judge in San Antonio and had been for about 4 years when he
came along. So Judge Montalvo and I have known each other for
quite a while now, and I have had a chance to see him tested by
the judicial election process and on the bench in a
professional manner, and he has done an outstanding job. And I
have every confidence he will make an outstanding United States
district judge.
In a similar way, I have gotten to know Xavier Rodriguez,
who was appointed to the Texas Supreme Court and who served
honorably there. Before that, he worked at Fulbright & Jaworski
as a labor lawyer in San Antonio, had an outstanding
reputation, is well regarded professionally in San Antonio, and
I know who likewise will do a very good job in the Western
District of Texas there in the San Antonio Division, which is
my hometown, and at least until shortly, the hometown of Judge
Montalvo before he now relocates to El Paso, where I know he
will be warmly greeted and embraced by the community there.
And Kathy Cardone, Judge Cardone, I have known also for
quite a while and who served with great distinction there in El
Paso on the district bench and has made numerous contributions
to the local community there in the administration of justice,
assisting those who are among the most vulnerable in that
community. So I could not be more pleased to join with Senator
Hutchison and Congressman Reyes in adding my congratulations to
the nominees, as well as to their families, and make these
brief comments by way of introduction.
Senator Cornyn. With that, let me please ask the judicial
nominees to step forward, and we will seat you at the table and
administer an oath.
Senator Hatch will also have a written statement that we
will make part of the record, and as I said, the record will
remain open for at least a week so that any other Senator who
has a statement or any questions he or she would like to submit
to the nominees can do so.
If each of you would please raise your right hand. Do each
of you swear that the testimony you are about to give before
this Committee is the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Browning. I do.
Judge Cardone. I do.
Judge Cohn. I do.
Judge Montalvo. I do.
Justice Rodriguez. I do.
Senator Cornyn. Thank you. Please have a seat.
Now that we have done the most important part and each of
you had a chance to be introduced as well as introduce your
family, we would like to give you an opportunity to make any
brief statement that you would like to make before we begin
with questions. And, James O. Browning, Mr. Browning, you have
been recommended by both of your home State Senators, and you
are a next-door neighbor in New Mexico to those of us in Texas.
We would be glad to hear any comments that you may have.
STATEMENT OF JAMES O. BROWNING, NOMINEE TO BE DISTRICT JUDGE
FOR THE DISTRICT OF NEW MEXICO
Mr. Browning. Mr. Chairman, I very much appreciate being
here today. I think now that Senator Domenici has introduced my
family, I will just express my appreciation for being here
today and leave it at that.
Thank you.
[The biographical information of Mr. Browning follows:]
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Senator Cornyn. Thank you.
Judge Cardone?
STATEMENT OF KATHLEEN CARDONE, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TEXAS
Judge Cardone. Senator, I want to thank all of the people
that worked so hard in the nominating process to get me here,
and I would like to very much thank my family, who have
traveled from El Paso, Texas, and the State of New York and the
State of Ohio to be here in attendance. And I appreciate being
here.
Thank you.
[The biographical information of Judge Cardone follows:]
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Senator Cornyn. Judge Cohn?
STATEMENT OF JAMES I. COHN, NOMINEE TO BE DISTRICT JUDGE FOR
THE SOUTHERN DISTRICT OF FLORIDA
Judge Cohn. Thank you, Mr. Chairman. I am pleased to have
with me this afternoon my wife, Kathleen, and my son, William.
Would you all stand, please?
Senator Cornyn. Absolutely. Sorry we did not recognize you
earlier. Welcome. Glad you all could come and be with your
spouse and your father on this important day.
Judge Cohn. It is an honor to appear before this Committee
this afternoon. I want to thank the President for having
nominated me, Senator Graham and Senator Nelson for their
support in the confirmation process, and Florida's Federal
Judicial Nominating Commission for advancing my name to the
White House.
Thank you, Mr. Chairman.
[The biographical information of Judge Cohn follows:]
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Senator Cornyn. Thank you.
Judge Montalvo, we would be pleased to hear from you.
STATEMENT OF FRANK MONTALVO, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TEXAS
Judge Montalvo. Mr. Chairman, thank you for this great
opportunity. I am not as fortunate as my colleagues here to
have my family today, and for one very specific reason: I am
about to become a grandfather, and my wife, Maria, and my
daughters are with my oldest son, Francisco, as he and my
daughter-in-law expect their first child. So today is a
momentous occasion for my family and my mother and my brother
for more than one reason, and I am here in this august
Committee, and I thank you for your support and Senator
Hutchison's support and really the support of the bar in the
county where I practice as a judge.
Thank you very much.
[The biographical information of Judge Montalvo follows:]
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Senator Cornyn. Judge Montalvo, I must be getting very old
if you are having grandchildren.
[Laughter.]
Senator Cornyn. I am not going to comment on your age, but
I must be getting old.
Justice Rodriguez, we would be pleased to hear from you.
STATEMENT OF XAVIER RODRIGUEZ, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TEXAS
Justice Rodriguez. Thank you, Mr. Chairman. It's an honor
to be here, and I appreciate the opportunity.
I would like to first of all thank Senator Hutchison for
her kind introduction of me and her recommendation of me to the
White House, as well as you, Mr. Chairman, for your support and
recommendation of me to the White House. And I also would like
to thank the President for this great opportunity to again
enter into public service with this nomination.
Thank you so much.
[The biographical information of Justice Rodriguez
follows:]
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Senator Cornyn. Thank you very much. As I indicated
earlier, other members of the Committee--and I assure you there
are a number of different hearings that are occurring
simultaneously with this one, and so Senators are spread kind
of thin, but all of their staff is here, and a number of them
have submitted statements for the record, and you can
anticipate that some will have questions in writing for you
after this. But I hope for my part to make this as painless as
possible, and non-controversial nominations are actually a good
thing. And I expect each of these nominations to be non-
controversial.
But I have to ask--and maybe I will just go down the line,
starting with Mr. Browning, and ask each of you to comment. I
have had the honor of now serving in three branches of
Government, as a judge for 13 years, and then as Attorney
General in the executive branch of Texas State government for 4
years, before coming to the legislative branch now in the
United States Senate. And it is very important to me that
judges understand what their role is under our Government of
divided and separated powers. And I would be interested to
hear, Mr. Browning, what your personal views are on that issue
and judges having to render decisions which may be unpopular
because, rather than achieving a result that you perhaps
yourself might like to achieve, you are interpreting the law
and applying it to a set of facts having been determined by a
fact finder and having to make a decision perhaps that is not a
popular one or perhaps not one you, if given the sole
decisionmaking capacity, would have made.
Could you please comment on how you will approach that as a
judge, if confirmed?
Mr. Browning. Yes, Mr. Chairman. I think it's very
important that judges, Federal judges, as they assume the
bench, put aside all their personal viewpoints as much as
possible, their ideologies, their political beliefs, and try to
be as fair and consistent in applying the law as possible.
Our Constitution sets up a divided Government, and judges
and courts are to play an important but very unique role within
that framework. We are not the legislative branch, but judges,
in fact, go about their task in a particular way of trying to
apply the law neutrally and fairly and in a principled manner.
And so I think it's very important that judges and courts
remember their role and play their role within the system as
much as possible and not try to make their decisions in a way
that the popularly elected branches of Government do.
Senator Cornyn. Thank you.
Judge Cardone?
Judge Cardone. Well, I obviously concur with Mr. Browning
that the separation of powers is important and is to be
recognized, and as a Federal trial court judge, it's my
intention to do exactly what a Federal trial court judge is to
do, which is to listen to the facts and apply the laws to the
facts of the case as interpreted by our circuit courts and our
Supreme Court. And I think that's a very important role, but
it's a very different role than the legislative or the
executive branch.
Senator Cornyn. Thank you.
Judge Cohn?
Judge Cohn. Judges must be guided by the law and not public
sentiment. Judges are not policymakers. Our elected Congressmen
and Senators are the policymakers. I recognize that. I value
our system of Government and our separation of powers, and I
will certainly follow the law.
Senator Cornyn. Thank you.
Judge Montalvo?
Judge Montalvo. Mr. Chairman, having spent eight and a half
years as a district court judge in Texas, I could not add
anything to the eloquence of the three individuals that
preceded me. I agree with them. I am not in the business of
legislating. The business of dealing with public policy issues
is for those in the legislative and executive branches of
Government.
Senator Cornyn. Justice Rodriguez, let me mix up that
question just a little bit and say assume with me that the
Supreme Court has decided an issue in a manner that you
disagree with. How do you view your duty as a United States
Federal district judge, to follow that ruling or to not follow
that ruling?
Justice Rodriguez. A Federal district judge, Mr. Chairman,
has a very limited role in that respect, and that is to the
follow the precedents set forth by the United States Supreme
Court or, in my case, the Fifth Circuit Court of Appeals. And
as a district judge, I have no discretion but to follow that
regardless of my personal beliefs.
Senator Cornyn. Thank you very much.
My next question for each of you has to do with the
administrative side of your responsibilities. Some, and I think
Congressman Reyes, specifically addressed the challenges of
those of you who have courts along the border, whether it is
San Antonio--not exactly on the border but close--or perhaps in
New Mexico and perhaps the challenges--I know the challenges
would have to be similar in Florida as well in terms of the
caseloads that you will be assuming. And I would be interested
to know your approach to the enormous caseloads that the
Federal courts are experiencing, if confirmed. Let me start
with Justice Rodriguez and we will move right to left. If
confirmed, how do you intend to address the large caseload that
you will be assuming?
Justice Rodriguez. I have taken the liberty of trying to
get some guidance from the judge that I will be replacing.
Judge Edward Prado, who this Committee and this Senate has now
confirmed to the Fifth Circuit Court of Appeals, has taken me
under his wing these last couple of months to guide me through
those administrative hurdles that you have referred to, Mr.
Chairman, and indeed, the hurdles are great in the Western
District of Texas. And although I will be sitting in the San
Antonio Division, the judges of the Western District do share
responsibilities and do travel on occasions to both Del Rio and
El Paso to help alleviate the tremendous burdens that are there
present at our border. So I have done some background
preliminary work to familiarize myself with those
administrative burdens already.
Senator Cornyn. Thank you.
Judge Montalvo, I believe yesterday when we were visiting
in my office, you were commenting on the size of the caseloads
in the El Paso Division where you and Judge Cardone will be
serving. Can you please address that same question?
Judge Montalvo. Yes, Mr. Chairman. The excitement of this
nomination is that it's the busiest division in the country,
the El Paso Division of the Western District. And I've been in
close contact with the two sitting judges there, with Judge
Briones and Judge Martinez. So I'm developing a good feel for
the work flow in the El Paso Division.
Also, like Judge Rodriguez, I've been in close contact with
Judge Prado trying to familiarize myself with the variety of
issues involved with keeping the work flow and keeping things
up-to-date.
I'm very encouraged by the level of support that the
Administrative Office of the Federal Courts will have available
to both Judge Cardone and I once--should we be privileged with
the confirmation, with the level of support that the office
has. In fact, we have already been receiving a lot of material
that I'm beginning to review.
So I think there's a lot of work, but there are plenty of
resources to address that.
Senator Cornyn. I can imagine that Judges Briones and
Martinez are looking anxiously at your arrival, as well as
Judge Cardone, for some help.
Judge Cohn, could you address the case management
challenges that you will have?
Judge Cohn. Yes, sir. I think the only way to handle a
large caseload is through hard work. And I have proven in my 8
years as a circuit judge that I'm not afraid of hard work. In 8
years, I've tried over 770 felony jury trials. And with respect
to complex litigation, I think it's very important that a judge
take a hands-on approach early on in the case, set case
management conferences every couple of months, let the lawyers
know that the judge himself or herself is going to be actively
involved in the litigation. And I would do so with the eye of
simplifying the issues and getting as many stipulations to
uncontested facts as possible.
Thank you.
Senator Cornyn. Thank you.
Judge Cardone?
Judge Cardone. Well, if ever I had a strong suit, I think
docket management is that. And I believe part of the reason
that I have such support of my colleagues in El Paso is because
I'm known for my ability to manage a docket.
Congressman Reyes touched on the fact that it was under my
leadership that the courts in El Paso specialized their family
law courts. And when I became the presiding judge over the
383rd District Court, I took some 9,000 family law cases into
my court and pared it down to approximately 4,000 by the time I
left the bench.
The purpose behind that was to specialize the system, and
so I believe that I have a very good knowledge of docket
control and administration.
Senator Cornyn. Thank you.
Mr. Browning?
Mr. Browning. Mr. Chairman, I think Judge Cohn had it
correct that one of the things that we just have to bring, if
we're fortunate enough to be confirmed, is hard work. We can
never forget that what we are being asked to do is to serve the
public, serve the lawyers, serve the parties that are before
us. And I think as trial judges, what they deserve is an
answer, and I think what you try to do is you try to work hard
in reading the briefs, setting arguments in a prompt manner so
the cases move along. But you owe the parties a decision, and
get them a decision because truly justice--or a decision
delayed is justice denied.
And so I think that one of the ways that you manage your
cases is to set hearings. That forces the judge to read the
briefs in advance of the hearing. If he can rule before the
hearing, fine. If he or she doesn't get to the ruling, then
have the hearing, try to announce those, set days in which
motions are heard.
The criminal side tends to take care of itself because of
the Speedy Trial Act. You just can't make a mistake there. And
so with your courtroom deputy, you just have to make certain
that those are moved along. I think the trouble comes on the
civil side that if you do not discipline yourself to set
hearings and make rulings in a prompt manner, that's where the
backlog is created.
And so I would think that would be one way that, if I'm
fortunate enough to be confirmed, that's the way I would move
the civil side.
Senator Cornyn. Thank you very much.
I know each one of you before you got here today has
undergone an extensive application process and evaluation by
your home State Senators before your names were sent to the
President. I know that you have also undergone a comprehensive
investigation by the FBI into your background. You have also
been evaluated by the American Bar Association for your
professional competence and credentials. And so I won't burden
you anymore at this hearing with additional questions. But
suffice it to say that you have been tested and found
deserving, at least in my opinion, of the important job that
you are being given.
I would just ask you, as somebody who has served as a judge
for a while myself, the fact that you no longer, those of you
who have had to run for election, have to stand for election
before the people, I know you will not let your life tenure
keep you from constantly focusing on the fact that you are a
public servant in every sense of the word, and you owe your job
and your duty to that public and the trust that has been
reposed in you.
So, with that, I would like to thank each of the nominees
for their time. And especially for their family and friends for
this happy occasion, thank you for coming to Washington to
express your support.
We will keep the record open until 5:00 p.m. on Tuesday,
July the 15th, for members to submit any written questions they
may have. And, with that, this hearing is adjourned.
[Whereupon, at 3:44 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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