[Senate Hearing 108-135]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 108-135, Pt. 5



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION


             OCTOBER 15, NOVEMBER 12, AND NOVEMBER 19, 2003


                           Serial No. J-108-1


                                 PART 5


         Printed for the use of the Committee on the Judiciary

                            WASHINGTON : 2003
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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


                      WEDNESDAY, OCTOBER 15, 2003


Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    41
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   157
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
    prepared statement...........................................   158


Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York presenting Gary L. Sharpe, Nominee to be District 
  Judge for the Northern District of New York....................     5
Hart, Hon. Melissa, a Representative in Congress from the State 
  of Pennsylvania presenting D. Michael Fisher, Nominee to be 
  Circuit Judge for the Third Circuit............................     8
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California presenting Dale S. Fischer, Nominee to be District 
  Judge for the Central District of California...................     1
Murphy, Hon. Tim, a Representative in Congress from the State of 
  Pennsylvania presenting D. Michael Fisher, Nominee to be 
  Circuit Judge for the Third Circuit............................     7
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania presenting D. Michael Fisher, Nominee to be 
  Circuit Judge for the Third Circuit............................     6
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Gary L. Sharpe, Nominee to be District Judge 
  for the Northern District of New York..........................     2
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania presenting D. Michael Fisher, Nominee to be 
  Circuit Judge for the Third Circuit............................     9

                       STATEMENTS OF THE NOMINEES

Fischer, Dale S., Nominee to be District Judge for the Central 
  District of California.........................................    56
    Questionnaire................................................    57
Fisher, D. Michael, Nominee to be Circuit Judge for the Third 
  Circuit........................................................    11
    Questionnaire................................................    12
Sharpe, Gary L., Nominee to be District Judge for the Northern 
  District of New York...........................................    91
    Questionnaire................................................    92

                         QUESTIONS AND ANSWERS

Responses of D. Michael Fisher to questions submitted by Senators 
  Leahy, Kennedy, and Feingold...................................   139

                       SUBMISSIONS FOR THE RECORD

Boxer, Hon. Barbara, statement in support of Dale Susan Fischer, 
  Nominee to be District Judge for the Central District of 
  California.....................................................   155
Fisher, Mike, Attorney General, Commonwealth of Pennsylvania, 
  Harrisburg, Pennsylvania, letter...............................   156
Members of the Pennsylvania Congressional delegation, letter in 
  support of D. Michael Fisher, Nominee to be Circuit Judge for 
  the Third Circuit..............................................   160
Santorum, Hon. Rick, a U.S. Senator from the State of 
  Pennsylvania, letter in support of D. Michael Fisher, Nominee 
  to be Circuit Judge for the Third Circuit......................   162


                      WEDNESDAY, NOVEMBER 12, 2003


DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........   165
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   346


Bingaman, Hon. Jeff, a U.S. Senator from the State of New Mexico 
  presenting Judith C. Herrera, Nominee to be District Judge for 
  the District of New Mexico.....................................   165
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio 
  presenting Domingo S. Herraiz, Nominee to be Director of the 
  Bureau of Justice Assistance, Department of Justice............   296
Domenici, Hon. Pete V., a U.S. Senator from the State of New 
  Mexico presenting Judith C. Herrera, Nominee to be District 
  Judge for the District of New Mexico...........................   166
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts presenting F. Dennis Saylor, Nominee to be 
  District Judge for the District of Massachusetts...............   167
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Sandra L. Townes, Nominee to be District Judge 
  for the Eastern District of New York...........................   168

                       STATEMENTS OF THE NOMINEES

Herraiz, Domingo S., Nominee to be Director of the Bureau of 
  Justice Assistance, Department of Justice......................   296
    Questionnaire................................................   298
Herrera, Judith C., Nominee to be District Judge for the District 
  of New Mexico..................................................   261
    Questionnaire................................................   262
Saylor, F. Dennis, Nominee to be District Judge for the District 
  of Massachusetts...............................................   217
    Questionnaire................................................   218
Townes, Sandra L., Nominee to be District Judge for the Eastern 
  District of New York...........................................   169
    Questionnaire................................................   171

                         QUESTIONS AND ANSWERS

Responses of Sandra Lynn Townes to questions submitted by Senator 
  Durbin.........................................................   326
Responses of F. Dennis Saylor to questions submitted by Senator 
  Durbin.........................................................   329
Responses of Judith C. Herrera to questions submitted by Senator 
  Durbin.........................................................   332
Responses of Domingo S. Herraiz to questions submitted by Senator 
  Biden..........................................................   335
Responses of Domingo S. Herraiz to questions submitted by Senator 
  Leahy..........................................................   338

                       SUBMISSIONS FOR THE RECORD

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of 
  New York, statement in support of the Nomination of Justice 
  Sandra Lynn Townes to the District Court for the Eastern 
  District of New York...........................................   343


                      WEDNESDAY, NOVEMBER 19, 2003


Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia..   529
    prepared statement...........................................   620
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   631


Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting William James Haynes II, Nominee to be Circuit Judge 
  for the Fourth Circuit.........................................   363
Cochran, Hon. Thad, a U.S. Senator from the State of Mississippi 
  presenting Louis Guirola, Jr., Nominee to be District Judge for 
  the Southern District of Mississippi...........................   364
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi 
  presenting Louis Guirola, Jr., Nominee to be District Judge for 
  the Southern District of Mississippi...........................   365
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting Kenneth M. Karas, Nominee to be District Judge 
  for the Southern District of New York..........................   361
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama 
  presenting Virginia E. Hopkins, Nominee to be District Judge 
  for the Northern District of Alabama...........................   368
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama 
  presenting Virginia E. Hopkins, Nominee to be District Judge 
  for the Northern District of Alabama...........................   367
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting William James Haynes II, Nominee to be Circuit Judge 
  for the Fourth Circuit.........................................   521

                      STATEMENTS OF THE NOMINEESS

Guirola, Louis, Jr., Nominee to be District Judge for the 
  Southern District of Mississippi...............................   411
    Questionnaire................................................   412
Haynes, William James, II, Nominee to be Circuit Judge for the 
  Fourth Circuit.................................................   368
    Questionnaire................................................   370
Hopkins, Virginia E., Nominee to be District Judge for the 
  Northern District of Alabama...................................   438
    Questionnaire................................................   439
Karas, Kenneth M., Nominee to be District Judge for the Southern 
  District of New York...........................................   483
    Questionnaire................................................   484

                         QUESTIONS AND ANSWERS

Responses of William J. Haynes II to questions submitted by 
  Senators Leahy, Feingold, Kennedy, Durbin, and Schumer.........   536
Responses of William J. Haynes II to follow-up questions 
  submitted by Senators Kennedy, Feingold, and Durbin............   588
Responses of Department of Defense to certain questions submitted 
  by Senator Kennedy to William J. Haynes II.....................   610

                       SUBMISSIONS FOR THE RECORD

Bell, Griffin B., Senior Partner, King & Spalding LLP, Atlanta, 
  Georgia, letter and attachments................................   616
Dell'Orto, Daniel J., Principal Deputy General Counsel, 
  Department of Defense, Washington, D.C., letter and attachments   622
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi, 
  statement in support of Louis Guirola, Jr., Nominee to be 
  District Judge for the Southern District of Mississippi........   635
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  statement in support of William James Haynes II, Nominee to be 
  Circuit Judge for the Fourth Circuit...........................   639


Fischer, Dale S., Nominee to be District Judge for the Central 
  District of California.........................................    56
Fisher, D. Michael, Nominee to be Circuit Judge for the Third 
  Circuit........................................................    11
Guirola, Louis, Jr., Nominee to be District Judge for the 
  Southern District of Mississippi...............................   411
Haynes, William James, II, Nominee to be Circuit Judge for the 
  Fourth Circuit.................................................   368
Herraiz, Domingo S., Nominee to be Director of the Bureau of 
  Justice Assistance, Department of Justice......................   296
Herrera, Judith C., Nominee to be District Judge for the District 
  of New Mexico..................................................   261
Hopkins, Virginia E., Nominee to be District Judge for the 
  Northern District of Alabama...................................   438
Karas, Kenneth M., Nominee to be District Judge for the Southern 
  District of New York...........................................   483
Saylor, F. Dennis, Nominee to be District Judge for the District 
  of Massachusetts...............................................   217
Sharpe, Gary L., Nominee to be District Judge for the Northern 
  District of New York...........................................    91
Townes, Sandra L., Nominee to be District Judge for the Eastern 
  District of New York...........................................   169

                     NORTHERN DISTRICT OF NEW YORK


                      WEDNESDAY, OCTOBER 15, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Larry E. 
Craig, presiding.
    Present: Senators Craig, Specter, Leahy, Feinstein, and 
    Senator Specter. [Presiding.] We are awaiting the arrival 
of the Chairman. I am not certain at this point whether Senator 
Hatch is going to chair or, reportedly, Senator Craig may 
chair. But it is now 10 minutes after 10:00, and we have a long 
agenda. People need to proceed, so we will start at this time. 
And we will begin with Senator Feinstein.
    Senator Feinstein, do you have a nominee to introduce?


    Senator Feinstein. I do, Mr. Chairman. Thank you very much. 
I am very pleased to introduce Judge Dale Fischer. She is the 
nominee for the Central District of California, and she comes 
to this nomination after a distinguished career in private 
practice and as a member of the State court. She also received 
a unanimous endorsement of the Central District's bipartisan 
Judicial Advisory Committee.
    Judge Fischer has really stellar academic credentials. She 
obtained her undergraduate degree from the University of South 
Florida, her law degree from Harvard. Prior to her appointment 
as a State court judge, she practiced as a corporate lawyer for 
17 years in Los Angeles, first at the firm of Kindel and 
Anderson and then at Heller, Ehrman, White and McAuliffe. Her 
corporate practice focused almost exclusively on the 
representation of small and mid-sized companies in civil 
litigation matters. She also developed special expertise in 
wrongful termination and employment discrimination and trust 
and estate disputes.
    In 1997, Governor Wilson appointed Judge Fischer to the 
municipal court. In 2000, she became a judge on the Los Angeles 
Superior Court. Her peers praise her as, and I quote, 
``brilliant, hard-working, fair, and compassionate.'' And Los 
Angeles Superior Court Judge Alan Harbor noted in a letter, and 
I quote, ``It is highly unlikely that any judge in our court 
works harder than she does. It is not unusual for her to be in 
her chambers starting at no later than 7:00 a.m. every morning 
and staying until the early evening.''
    She is widely praised for her intellect and her competence. 
To cite one example, Judge Jacqueline O'Connor noted that, 
``When Judge Fischer was asked to take on a task involving bail 
law, she approached it with her full resources, and in short 
order became our court's leading expert on bail issues. That 
expertise has become known statewide.''
    Another judge, Judge Linda Lefkowitz, summed it all up by 
describing Judge Fischer as ``a star of the Los Angeles 
Superior Court.'' It should not then be surprising that she 
received a unanimous ``well qualified'' rating from the 
American Bar Association's Standing Committee on the Federal 
    So I am very pleased to make these comments, and I would 
just like the Committee to know that Judge Fischer came back 
once before her hearing, but in true Senate style, when she got 
to the airport at Dulles, she learned that the hearing was not 
going to take place, so she had to turn around and go home 
again. So if she would stand, I would just like to recognize 
her, and I know she will recognize some friends of hers that 
are in the audience.
    Thank you very much.
    Senator Specter. Thank you very much, Senator Feinstein.
    As to protocol, Senator Santorum is senior to Senator 
Schumer, who is on the Committee, and if it is satisfactory to 
my distinguished colleague, we will now turn to the nomination 
of Gary L. Sharpe and call first on Senator Schumer.


    Senator Schumer. Thank you, Mr. Chairman, and I will be 
brief in deference to my colleagues. Senator Clinton and I are 
here today to introduce Gary Sharpe to the Committee, and we 
are proud to stand by his nomination. I want to welcome him, 
ask him to stand so the panel can see what a nice fellow he is, 
just on first appearance.
    Senator Schumer. As you know, Mr. Chairman, this does not 
always work in this Committee, but sometimes it does. And I 
want to welcome Lorraine, his wife, who just celebrated a 
birthday. Welcome to your 30's, being in your 30's. Hope you 
enjoy it. And they have two sons named Robert and Michael, and 
two daughters-in-law named Ann and Anne, who I guess will be 
introduced later, and two wonderful grandchildren, Jake and 
Colby. The rest of the family could not be here today for the 
hearing, but I am told they are watching on C-SPAN or the 
Webcast, and I know they are proud of Judge Sharpe today.
    Before I introduce Judge Sharpe, I want to make one point, 
and that is that, if my math is right, when Judge Sharpe is 
confirmed by the full Senate--and I expect and hope he will be 
confirmed quickly and unanimously because, as the Committee 
will see, he is an example of the nominees we get when the 
process works right--he will be the 175th judicial nominee of 
President Bush's we have confirmed. And I note that at the 
outset because to hear the hue and cry from some on the other 
side or on the talk radio, you would think we were blocking 
every nominee that comes before us. Within a couple of weeks, 
the score will be something like 175-5, a score that the 
Chicago Cubs or New York Yankees would envy, or the Bills or 
the Sabres, to choose a team closer.
    Senator Leahy. Let's not forget the Red Sox.
    Senator Schumer. No comment, Mr. Chairman. I will not 
belabor the point.
    But it is important to note that this process can work. It 
frequently does work. It is working well in New York where 
Senator Clinton, Governor Pataki, myself, and the White House 
have worked very well together, and we are filling every 
vacancy in New York. As long as nominees are, in my judgment, 
anyway, excellent, legally excellent, moderate, not too far 
right, not too far left, and diverse--those are the criteria we 
can use--we can just clear things right through no matter what 
disagreements of specific issues or specific parts of judicial 
philosophy we have.
    So Judge Sharpe easily clears that bar. For the past 6 
years, Judge Sharpe has served with distinction as a magistrate 
for the Northern District of New York. That includes Albany, 
Syracuse, the whole north country. Before taking the bench, he 
spent his professional career working as one of the best 
prosecutors northern New York has ever seen, and he spent 
nearly a decade in State court as a prosecutor from Broome 
County, which is the county that the city of Binghamton and 
Johnson City and Endicott are in as well.
    He went over to the Federal court where he was an Assistant 
U.S. Attorney before becoming the U.S. Attorney for the 
Northern District. He is a graduate of two fine New York 
schools: the University of Buffalo, which he graduated from 
magna cum laude, and Cornell Law. After graduating from college 
but before heading for law school, Judge Sharpe served in the 
armed forces as a member of the Naval Reserve. He is a Vietnam 
vet, having served there from 1966 to 1968.
    We have talked to lawyers in the Northern District, and 
they simply--the way to put it, their opinion of Judge Sharpe 
is ``rave reviews.'' They just love him. One upstate judge 
said, ``He is the best lawyer I have ever known.'' And a judge 
knows a whole lot of lawyers. So that is pretty high praise.
    So, Judge Sharpe, congratulations on this nomination and 
hopefully on your ascension to the bench, and, Mr. Chairman, I 
look forward to our Committee moving Judge Sharpe quickly. He 
is going to be a great addition to the Northern District bench.
    Senator Specter. Thank you, Senator Schumer.
    Senator Leahy?

                        STATE OF VERMONT

    Senator Leahy. Mr. Chairman, I want to concur with what the 
Senator from New York has said. There are tremendous 
qualifications here, and I think it has helped that Senator 
Clinton and Senator Schumer have worked with Governor Pataki 
and both Republicans and Democrats and the White House on their 
nominees, one of the reasons they go by us so quickly.
    I will put my full statement in the record, but I was also 
caught by something that Senator Schumer had said. It is 
interesting. I was stopped by somebody the other day who said, 
``How come President Bush's nominees aren't going through to 
the judiciary? I think they are being unfair to the President's 
    Now, it is true that in the 17 months that Democrats were 
in charge, we put through 100, and in the 17 months that 
Republicans have been in charge, they have put through nearly 
70. And I would not criticize the President's party for not 
doing as good a job for him as the Democrats did for him, but I 
mention that. The fact of the matter is this Committee has 
moved President Bush's nominees faster than this Committee has 
for any President for years. And, of course, with President 
Clinton, 61 nominees were stopped in this Committee. We have 
stopped three or four, I think, of President Bush's. But in 17 
months--that is the number to keep in mind, 17 months--when we 
were in charge, 100; in 17 months with Republicans in charge, 
close to 70. So it is a good record either way. I think both 
parties could be proud of the record. I do not think the 
Republicans should be embarrassed by their record at all.
    But I would say, to be serious, I would note that this is a 
case where the process starts at the other end of Pennsylvania 
Avenue, and when you have respected Senators and the White 
House works with them and they come up with a good nominee, we 
can go forward. And I know, Mr. Chairman, in your nominees, you 
and I have worked together on this Committee for over a quarter 
of a century, and we have usually been able to work out 
nominees from the left to the right or the right to the left. 
Either way we have worked out controversies, and we have worked 
out people. I have enormous respect for your judgment, as I do 
all the Senators here, of course.
    But having said that, I will put the full statement in the 
record so as not to delay this. I know we have votes coming up 
on the floor, and I thank you for holding this hearing.
    Senator Specter. Without objection, the full statement will 
be made a part of the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Specter. Senator Craig has arrived. Let me call on 
Senator Clinton, and I will yield the gavel thereafter to 
Senator Craig.
    Senator Clinton?


    Senator Clinton. Well, thank you. Thank you very much, and 
I want to thank the Committee for this opportunity to join with 
my colleague, Senator Schumer, in strongly endorsing this 
    Magistrate Gary Lawrence Sharpe has a distinguished career 
both as a prosecutor and a magistrate, and I welcome him and 
his wife, Lorraine. I would just add to the very thorough 
comments that Senator Schumer made that, even with his prior 
prosecutorial responsibilities, Judge Sharpe made time to serve 
as a member of the Broome County Prisoner Rehabilitation Board, 
the Onondaga County Substance Abuse Commission, and the 
Onondaga County Youth Court. To me that speaks volumes, that 
this is a man who understands the full range of problems that 
come before a prosecutor or a judge. And, more recently, he 
worked with the Department of Probation to develop the High 
Impact Incarceration Program, known as HIIP, which is a program 
for defendants who have substance abuse problems and who might 
be candidates for release.
    He really does combine the traits one would want in a 
judge, and I think the experience that he will bring to the 
district court, his intellect, his judicial demeanor, his 
commitment to justice will not only serve the Northern District 
of New York with great distinction, but will add to the quality 
of our bench across our country.
    So I appreciate this chance to both introduce and express 
my very strong support for this nomination. I, too, look 
forward to it being quickly moved through the Senate, and I 
would just add that in New York we have worked very hard--and 
Senator Schumer has been superb as a leader on this front--to 
make it possible for us to have a united, bipartisan, really 
non-partisan approach toward nominating judges, prosecutors, 
and others. And this is a sterling example of what that process 
can produce.
    Thank you.
    Senator Specter. Mr. Chairman, Senator Craig, now that we 
are moving to Michael Fisher on the Third Circuit, let me yield 
the gavel to you to chair.
    Senator Craig. [Presiding.] Well, thank you very much. I 
apologize for running late. There was a little traffic problem 
in a tunnel, and I was in the tunnel.
    But, with that, let me turn to you for any opening 
statement you would like to make on behalf of the nominee.
    Senator Specter. Mr. Chairman, since I will be here for the 
hearing and expect to have an opening statement a little longer 
than usual, let me yield to my colleagues who will be in a 
position to be excused. Senator Santorum has been waiting, as 
has Congressman Murphy, and Congresswoman Melissa Hart is 
standing by for a word or two as well.
    Senator Craig. Fine. Well, Rick, Senator Santorum, welcome 
before the Committee.


    Senator Santorum. Thank you, Mr. Chairman. And I thank my 
    It is a rare privilege for me to have the opportunity to 
introduce to the Committee someone who I have a tremendous 
amount of respect for, who has been a mentor of mine from the 
very early days, even prior to my political career, and someone 
who has served southwestern Pennsylvania and the Commonwealth 
of Pennsylvania with incredible distinction. I am just very 
thankful to the President for his nomination of the Attorney 
General from Pennsylvania, Mike Fisher. Mike has been Attorney 
General now for 7 years, has had an outstanding record, which I 
am sure Senator Specter will get into detail on and I will not 
detail that record, but has had an outstanding record as 
Attorney General for the Commonwealth of Pennsylvania.
    His record of service to the Commonwealth is really truly 
remarkable, from his time as a young assistant district 
attorney in Allegheny County, where he served there for 4 years 
prosecuting a whole host of cases and making a name for himself 
in the community as a man of great integrity and honesty, and 
from there to participating in private practice and then 
shortly thereafter getting elected to the State Legislature, 
where he served for 6 years, and then, as we who are former 
Congressmen get promoted to the Senate, he was promoted to the 
State Senate and served in the State Senate for an additional 
16 years.
    During that time I got to know him. I was a staffer in the 
State Senate when Mike was a State Senator, and I got to see 
him firsthand and the tremendous quality of work. He was a go-
to person on criminal justice issues, on criminal and 
litigation reform issues. He was the lawyer's lawyer in the 
State Senate and someone who really led the Judiciary Committee 
and the entire State Senate on those matters.
    Another area, coming from southwestern Pennsylvania, 
because of our rich industrial history, we have our share of 
environmental problems. And Mike, representing a suburban 
district, was the leader on a lot of reforms that took place in 
Pennsylvania in the 1970's, 1980's, and 1990's on trying to 
clean up our environment, to be good stewards. We became 
leaders in the country on some of our environmental programs, 
and Mike was the author of so many pieces of legislation to 
bring Pennsylvania into what is now--you know, people go to 
Pittsburgh now, and they look at that city, and they look at 
all the improvements to the quality of that environment. And 
Mike Fisher had a tremendous role to play in improving the 
environment in southwester Pennsylvania and all across our 
    Mike's educational background is terrific. He is a graduate 
of Georgetown and Georgetown Law Center, and he is someone who 
has used that education in service to the people of 
Pennsylvania, and now he is going to have an opportunity, with 
the consent of this Committee and the U.S. Senate, to bring 
that incredible wealth of experience and service to a very, 
very important position.
    I want to note, as I am sure Congressman Murphy will 
detail, the support he has from every member of the delegation, 
Democrat and Republican alike. I am sure Senator Specter will 
review the letter of Governor Rendell, who was Mike's opponent 
when Mike and Ed faced off in the Governor's race last year. 
But I think what Governor Rendell indicated is that anybody who 
knows Mike, this is a man, where you may disagree on some 
policy issues, a man of incredible integrity, incredible 
fairness, thoroughness, and someone who will be an exemplary 
judge on the Third Circuit.
    I am pleased to be here to introduce him to the Committee. 
I want to welcome his wife, Carol, who has been a loyal soldier 
and trooper along the way of all this public service, and Brett 
and Michelle, his two kids, and thank them for their service to 
the Commonwealth and being supportive of Mike in all he has 
    Thank you, Mr. Chairman.
    Senator Craig. Senator Santorum, thank you. That was an 
outstanding statement on behalf a gentleman who has obviously 
become an associate and friend of yours over the years, and I 
thank you for it.
    Now let us turn to Hon. Tim Murphy, U.S. Representative.


    Representative Murphy. Thank you, Mr. Chairman and members 
of the Committee.
    When people talk about issues of justice, sometimes one has 
to recuse themselves because they are talking about a friend. 
But in this case, the friendship and respect I have for 
Attorney General Mike Fisher has grown because of his 
unwavering commitment to justice, his unyielding determination 
for fairness, and his unparalleled integrity that we have seen 
throughout an incredible career.
    I stepped into the shoes that he left when he moved from 
State Senator to Attorney General in Pennsylvania, and they 
were big shoes to fill. But what was apparent throughout the 
time that I served as a State Senator as--people still refer to 
it often as ``Mike Fisher's seat'' because of the tremendous 
respect that they had developed for him over the years. And to 
echo what Senator Santorum said, throughout the gubernatorial 
campaign that he had, no one had anything ever unkind to say 
about him. No one had ever questioned anything about him, which 
is pretty remarkable. I believe even Governor Rendell says he 
has been a great friend of Mike's for several years except for 
a few weeks during the campaign when they perhaps were not the 
best of friends at that time, but have rebuilt that 
    I do have with me--and I believe you have it, but if not, I 
will offer it again for the record--a letter that is signed by 
every member of the Pennsylvania delegation, Republicans and 
Democrats alike. This was not something that any arm-twisting 
had to be done to get people to sign.
    They said absolutely it is across both sides of the aisle, 
this respect continues.
    Senator Craig. Congressman, that will become a part of the 
record. Thank you.
    Representative Murphy. Thank you very much.
    Also, to say that the part that a Committee like this can 
never know is how people in the community view Attorney General 
Fisher and his family. If a measure of a man's integrity and 
commitment is also of the children that they have raised and 
the respect they have, you cannot do any better than Mike 
Fisher. His family's respect in the community also holds to 
that. And we know when one has dedicated their life to public 
service, it is also tough to have that level, but it is 
something that throughout Pennsylvania we recognize there can 
be no better person than Mike Fisher.
    I thank the Committee for their time and attention they are 
putting towards him, and certainly know that as you move 
forward in this process, you will feel equally comfortable with 
Mike's credentials.
    Thank you very much.
    Senator Craig. Well, thank you very much, Congressman, for 
that fine statement.
    Senator Leahy. If I might while the Congressman is still 
    Senator Craig. Yes.
    Senator Leahy. Congressman, you mentioned Governor Rendell. 
Governor Rendell called me at home on behalf of Mr. Fisher and 
said very similar things to what you have just said and 
supported him, as did the Attorney General of Vermont, Bill 
Sorrell. And Mr. Sorrell had been a successor of mine as 
State's attorney in Chittenden County in Vermont, so I pay a 
lot of attention to that. I must say what you have said here 
today echoes very much what both of those gentlemen have said.
    So thank you very much for taking the time.
    Representative Murphy. Thank you.
    Senator Craig. Thank you, Pat.
    We have with us Congresswoman Melissa Hart. Are here 
prepared to make a statement on behalf of the Attorney General?
    Representative Hart. Very brief.
    Senator Craig. You are here. We would appreciate hearing 
from you. Thank you.


    Representative Hart. Thank you, Mr. Chairman, Senator.
    I served in the State Senate with Mike Fisher for 6 years 
and am also a lawyer and served also as a member of the 
Allegheny County Bar Association, Pittsburgh's bar association, 
as Mike and I both practiced in that region. And I just want to 
add, as the perspective of a lawyer and legislator, that I do 
not think there is a better combination to offer service on the 
Third Circuit than someone who understands and respects the 
making of the law and also the enforcement of the law, as he 
has been as Attorney General. But Mike's reputation as a 
practicing attorney in private practice is also unblemished. He 
is the kind of guy that, when he is talked about by students in 
law school, he is the kind of guy that they want to be when 
they finish. He has the reputation that everyone who practices 
law would like to have.
    As a citizen of Pennsylvania, I am very proud to be here 
with Mike and also offer my support and encouragement. I do not 
believe that the President could have found a better person to 
fill that vacancy on the Third Circuit.
    Thank you very much for allowing me to say a few words.
    Senator Craig. Congresswoman, thank you very much for that 
fine statement on behalf of Mike Fisher.
    With that, let us turn to the nominee, and let me ask 
Attorney General Michael Fisher to come forward.
    Senator Specter. Mr. Chairman, before you do that, I would 
like to make an opening statement.
    Senator Craig. I thought we might seat him so that he could 
hear directly from you.
    Senator Craig. Is that okay?
    Senator Specter. Mr. Chairman, I defer to you.
    Senator Craig. All right. Attorney General Fisher, if you 
would please take your chair.
    I will now defer to my senior colleague on this Committee--
well, both of these gentlemen are senior to me, Attorney 
General. I am the freshman here.
    Senator Leahy. Yes.
    Senator Craig. It is okay, Pat.
    Let me turn to my colleague, Arlen Specter.


    Senator Specter. Thank you, Mr. Chairman. I am pleased to 
both introduce Attorney General Fisher and to be on this 
Committee. Attorney General Fisher has been nominated for the 
United States Court for the Third Circuit by the President on 
the recommendation of Senator Santorum and myself, and he comes 
to this position with an extraordinarily distinguished record 
in public service.
    Attorney General Fisher was an assistant district attorney 
from 1970 to 1974. He was elected to the Pennsylvania House of 
Representatives, where he served 6 years until 1980. He was 
then elected to the Pennsylvania State Senate where he served 
16 years until 1996, when he was elected Attorney General of 
Pennsylvania, and he has since been re-elected in the year 
2000. He was the candidate for Lieutenant Governor in 1986 with 
Bill Scranton, and he was the Republican nominee for Governor 
in the year 2002.
    He has a long list of recommendors. Governor Rendell has 
written a strong letter of support, already mentioned by 
Senator Leahy, and I would ask consent that Governor Rendell's 
letter and other letters to which I will refer all be made a 
part of the record.
    Senator Craig. Without objection.
    Senator Specter. Governor Rendell wanted to be here to 
introduce Attorney General Fisher. Governor Rendell was the 
candidate who ran against Attorney General Fisher in the year 
2002, but the decision was made to stay with the rule of the 
Committee in not having any other witnesses appear other than 
Members of Congress.
    Attorney General Fisher is supported by all 19 members of 
the Pennsylvania Congressional delegation, Democrats and 
Republicans alike; by the Pennsylvania Bar Association, by the 
Pennsylvania District Attorneys Association; by 20 current 
State Attorneys General, eight Republicans, 12 Democrats, seven 
former Democratic State Attorneys General; two sitting 
Governors--Governor Napolitano of Arizona, Governor Easley of 
North Carolina, both having been Attorneys General--by 
Secretary of the Interior Gale Norton, also a former Attorney 
General; also recommended by Auditor General Bob Casey, a 
Democrat; Lieutenant Governor Catherine Baker Knoll, also a 
Democrat--all of whom are recommending him for the position.
    There is one factor which warrants comment, and that is 
that there is an outstanding verdict against Attorney General 
Fisher and a number of others for duties performed in his 
official capacity. A lawsuit was instituted in the Middle 
District of Pennsylvania by two plaintiffs--Mr. John McLaughlin 
and Mr. Charles Micewski--and each received a verdict of 
$112,500, actual damages $12,500 and punitive damages of 
    There are post-trial motions now pending in the Middle 
District Court, and it was decided that this hearing could not 
await a final disposition by the judicial system because the 
Third Circuit is very short of personnel and we want to move 
ahead with the Committee's determination and the full Senate's 
determination on this nomination.
    The existing rules of the Committee do not permit outside 
witnesses to be called. It was my recommendation that the 
Committee hear from both of the plaintiffs, Mr. McLaughlin and 
Mr. Micewski, and from others who have detailed knowledge of 
the matter so that this Committee would be best prepared to 
make its independent evaluation, as it is our responsibility, 
giving appropriate respect to what the jury has said, but 
reserving under our constitutional prerogatives the decision on 
confirmation. That is our constitutional duty.
    My office has contacted attorneys for Mr. McLaughlin and 
Mr. Micewski, and I intend to invite them to come in personally 
to talk to me, and I will be personally talking to the United 
States Attorney, who had been the United States Attorney--
Michael Stiles--who has submitted a strong letter of 
recommendation, and also District Attorney Lynne Abraham, I 
have already talked to her first assistant, Arnold Gordon, so 
that I will be in a position to make as comprehensive an 
analysis as I can as to the underlying questions with respect 
to the jury's verdict and with respect to my role as a member 
of this Committee.
    Thank you, Mr. Chairman.
    Senator Craig. Well, thank you very much, Senator Specter.
    Attorney General Fisher, before we continue, let me give 
you the opportunity to introduce your family, if you would 
like, and then I will administer the oath to you.

                       THE THIRD CIRCUIT

    Mr. Fisher. Thank you. Thank you very much, Mr. Chairman.
    First of all, I would like to thank the President for 
nominating me and the support that I have received for this 
nomination from Senators Specter and Santorum. And I would also 
like to thank Representative Murphy, Representative Hart, and 
the other members of the Congressional delegation from 
Pennsylvania who have supported me.
    With me here today are members of my family: first of all, 
my wife, Carol; our two children, Michelle and Brett; my 
sister, Colleen; a couple of cousins of mine, Donna Fisher and 
her son, Tim; another cousin, Linda Burke; together with a 
number of friends, long-time friends of mine: Dick Williams 
from Philadelphia, who was the best man in Carol and my wedding 
a few years ago, 30 to be exact; Terry Sleece, a friend of many 
years from when I began practicing in the District Attorney's 
Office; also a couple of friends of mine who are here today 
from--colleagues of mine when I was attending Georgetown and 
Georgetown Law Center: Tom Hogan, Wayne Siren, and Rob Walsh; 
together with a couple of employees from my office who have 
been--my Office of Attorney General, who have been tremendous 
aides and public servants for Pennsylvania: Jerry Pappert, my 
first deputy; Kevin Harley, my press secretary; and Brian 
    I am very pleased that all of them were able to change 
their schedules and to be with me here today for this very 
important time in my life and my career.
    Senator Craig. Well, Attorney General Fisher, that is 
phenomenal support. I would ask them to stand, but that might 
include the whole room.
    Senator Craig. I did say immediate family, but obviously 
the respect you are being shown today--
    Mr. Fisher. And I failed to mention one other person, Mr. 
Chairman, the Executive Director of the National Association of 
Attorneys General, Ms. Lynne Ross, who is here with us.
    Senator Craig. Fine. Now, if you would stand, please? Would 
you please raise your right hand? D. Michael Fisher, will you 
please stand to be sworn and repeat after me? Do you swear that 
the testimony you are about to give before the Committee will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Fisher. I do.
    Senator Craig. Please be seated.
    Please continue, if you will, with any opening statement 
you would like to make.
    Mr. Fisher. Mr. Chairman, I would defer any further opening 
statement at this time.
    [The biographical information of Mr. Fisher follows:] 

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    Senator Craig. Okay. Senator Leahy, do you have any opening 
    Senator Leahy. No. I will wait for questions.
    Senator Craig. All right. Do you wish to start with any 
questions, sir?
    Senator Specter. No.
    Senator Leahy. I would say one thing. I notice that 
Attorney General Fisher is thanking all the people that 
supported him. I assume you are not regretful that the Governor 
supported you. You listed a panoply of Republicans. I hope you 
are not upset that a Democrat supported you.
    Mr. Fisher. No, Senator, I am very honored that Governor 
Rendell not only has sent his letter of support, and he 
informed me that he had talked personally to you, but in 
addition to that, Governor Rendell was prepared to come to 
Washington today to personally appear before the Committee. I 
think he made a good statement a week or so ago when we were at 
a reception at his home for the Pennsylvania Supreme Court when 
he introduced my wife and me and said that he and I had been 
friends for over 25 years, except for about 7 or 8 weeks last 
year when he hated me.
    Mr. Fisher. But that was in the course of a campaign for 
Governor, and it was hard fought, but friendship and our 
professional friendship was quickly repaired, and since then we 
have worked closely together, me as Attorney General and him as 
    Senator Craig. Well, let me ask you this, then, Attorney 
General Fisher: You obviously, by all that has been said so far 
today, demonstrate a phenomenal level of bipartisan support for 
your nomination to the Third Circuit Court of Appeals. It is a 
pretty fundamental question, but how did you earn it?
    Mr. Fisher. Senator, thank you very much. That's a good 
question. Thank you for giving me the opportunity to answer 
    I came to public service actually quite early in my career, 
I believe in the early 30's, 30 years of age when I was first 
elected to the State House of Representatives. And I learned 
from my father, who was also a lawyer, and with whom I 
practiced for some years, that one of the ways that you gain 
success is to be fair with people. And I've always tried, 
whether it be as an attorney and an advocate for my client or 
in elected office, to be fair with all people.
    And when I took elected office, I was elected, obviously, 
and have been elected as a Republican. But I represented all 
the people in my district--Republicans, Democrats, and 
Independents alike. And I treated them that way. And I think it 
was through working so closely with so many people of both 
parties that I not only learned that there were different 
problems that faced the people of Pennsylvania, but obviously 
it's far easier to get things done by having bipartisan 
    So I feel very fortunate that all throughout my career I 
think the level of support that I've received from State 
Attorneys General, both current and past, across the country 
indicates that although elected as a Republican, I've worked 
with a level of bipartisanship that has enabled me to gain the 
respect of many of my colleagues and peers.
    Senator Craig. How do you plan to earn the same kind of 
respect from those who appear before you in the courtroom?
    Mr. Fisher. Thank you, Senator. Obviously another good 
question. If given the opportunity to serve on the Court of 
Appeals for the Third Circuit, it will be a new role for me in 
serving in the third branch of Government, having already 
served in the legislative, now the executive, and with your 
support, hopefully the judicial branch. I think the most 
important thing that a judge can do is to look at every case, 
to be open-minded, to be fair, to give every party an 
opportunity to make their case, learn their case by reading the 
briefs, knowing the record, and when the opportunity arises at 
the appellate court level, to hear oral argument and to keep 
that open mind and to apply the law as fairly as humanly 
possible. And, you know, that's my view of what a good judge 
should do, and if this Committee and the full Senate gives me 
the opportunity to serve as a judge, I commit to you that 
that's the way I will carry out my duties.
    Senator Craig. As Attorney General of Pennsylvania, I am 
looking at your record and it is substantial, phenomenal 
achievements, it is an impressive record. What stands out to me 
is something that speaks to the person and the character of the 
person. I understand that you co-authored Pennsylvania's 
version of Megan's law, which, of course, designates some 
criminals as sexual predators for life and requires the 
notification of neighbors when sex offenders move in. Is that 
    Mr. Fisher. Senator, that is correct. I believe that as a 
member of the Senate in 1995, I was one of the co-authors in 
then-Governor Ridge's special session on crime and adopting 
Megan's law, and as Attorney General, I've had the opportunity 
through my deputies to appear in various courts in Pennsylvania 
to defend the provisions of Megan's law since then.
    Senator Craig. Well, I know of nothing more frustrating and 
angering to all of us, those kinds of characters in our country 
who prey upon small and innocent children. I see that you 
fought child pornographers by forcing the Nation's largest 
Internet providers to block sites containing illegal 
photographs. Tell the Committee about that work, if you would, 
    Mr. Fisher. Senator, thank you very much for the 
opportunity to answer that question. It's a law that was 
recently passed by the General Assembly in Pennsylvania. It 
provides, upon complaint to our office, that we notify Internet 
service providers and, if necessary, or given the opportunity 
to seek a court order, directing the ISPs to block various 
websites that are carrying child pornography. And I can tell 
you that some of this, most of this material is absolutely the 
worst trash that anyone--anyone--can imagine. And my office has 
effectively carried out that mandate and a law that is, quite 
candidly, novel for the Nation.
    Senator Craig. I have an FBI center in my State that 
specializes in that kind of analysis and examination and the 
work they do on behalf of keeping that kind of trafficking off 
the Internet. I agree with you, it is phenomenal stuff.
    I note that your work as Attorney General has been 
impartial and fair. You have prosecuted a Republican former 
Senate colleague after what would become career-ending 
revelations that a former colleague had patronized a 
prostitute. When a Republican former State Representative 
refused to step down after his 1999 conviction in Federal court 
on perjury charges, you successfully petitioned the 
Pennsylvania Supreme Court for his immediate removal.
    Finally, Attorney General Fisher, you helped bring to 
justice the mastermind behind Voter-Gate, an effort by 
Republicans in one Pennsylvania county to illegally register 
3,000 voters.
    I did not know Republicans did that.
    Senator Craig. Anyway, would you please tell the Committee 
more about your role in those cases?
    Mr. Fisher. Thank you, Senator, for the opportunity to 
answer that question. One of the first cases I had when I was 
elected in 1997 was a case involving a State Senator who got 
caught up in an investigation that my office was doing of a 
prostitution ring in York County. And this was a person who I 
had served with. He was a member of the Senate Republican 
Caucus that I served in, and it was a test for me because, had 
I not obviously been able to prosecute that case effectively, 
my independence could have been very clearly called into 
question early in my career. We did bring those charges, and 
the Senator was convicted and subsequently left office.
    In 1999, there was a case pending where Representative 
Serafini had been convicted in Federal court for perjury, had 
been sentenced, and refused to leave the State House of 
Representatives in violation of the Pennsylvania Constitution. 
His continued presence was important to maintaining the House 
majority at that time. I filed a suit, a quo warranto action, 
before the Supreme Court of Pennsylvania, which led to the 
Representative leaving office, as was required by the 
    Third, in, I believe, 2000, there were allegations that the 
Republican Chairman in Pennsylvania's strongest Republican 
county, where I had had my largest vote plurality, was involved 
in illegalities in providing--in gaining voter registration for 
his county, and I brought--our office brought charges against 
that chairman. It wasn't very popular to bring those charges at 
that time, but the law required that the charges be brought.
    Senator Craig. Well, thank you for those frank and open 
    We have a vote underway. I am going to turn to Senator 
Leahy for at least one question or two before we recess to go 
vote, and then we will return, of course.
    Senator Leahy. Thank you, and I will have other questions 
for the record. I was interested in what you were saying on 
pornography. I think all of us--one thing that unites all of us 
up here, our disgust for not only the child pornography but the 
fact that children are so severely damaged through that. 
Senator Hatch and I have had a series of hearings on this, on 
the high-tech aspects of it, obviously, because it is not the 
shady story in the back alley anymore. It is computers in Wall 
Street law firms or small towns and everything else. And it is 
one of the things that unite all of us in trying to figure out 
how best you stop that.
    When you were at Georgetown, did you have either Joe Snee 
or Ken Pye as--
    Mr. Fisher. I had Joe Snee, Father Snee, who subsequently 
was a public defender in Philadelphia.
    Senator Craig. That is an experience that one could write a 
book about.
    I looked at your record, Attorney General, and I must say 
that one thing that there will be further questions on in 
follow-up to what Senator Specter has alluded to on the case 
and the judgment against you and others that is now still on 
appeal, as I understand. Am I correct on that?
    Mr. Fisher. Post-trial motions.
    Senator Leahy. Post-trial motions. You served in the 
Pennsylvania House of Delegates for 22 years, then ran for 
Governor and Lieutenant Governor on several occasions, delegate 
to the Republican National Convention, successfully elected to 
your current position as Attorney General twice. You have had a 
long and distinguished public career. Why would you want to 
abandon the partisan political--and I do not say that in a 
derogatory fashion. I mean, I admire people in both parties who 
get into it and make the thing work, to get into the partisan 
political area. Why would you abandon that for the monastery 
    Senator Leahy. I mean, seriously. And don't feel, Attorney 
General, I am singling you out. I mean, I have asked this of 
Democratic and Republican nominees who have been active in 
politics before. Why would you leave that for the monastery?
    Mr. Fisher. Well, Senator, thank you, and that's a good 
question. I haven't heard it referred to before as ``the 
    Senator Leahy. Well, you know.
    Mr. Fisher. I guess all of us could use a visit to the 
monastery sometime in our life. But I've had--all during my 
public career, which has now spanned almost--well, more than 30 
years, together with my appointed time as an assistant district 
attorney. I've also been someone who has been very interested 
in the law. When I was in the State Legislature, because it was 
not, quote, a full-time job, I was able to practice law, first 
with my father's firm and then with another firm that I was a 
partner in for approximately 10 years. And in 1996, I made a 
decision at that time to leave the State Senate and to seek the 
office of Attorney General because it gave me an opportunity to 
merge my public career with my legal career.
    And I have--the opportunity to serve as Pennsylvania's 
Attorney General has been a great opportunity. It's one of the 
best jobs in America.
    Senator Leahy. But understand--and I happen to agree. Both 
Senator Specter and I served as--in fact, that is when we first 
met, when we were both prosecutors. I loved that field. But, 
you know, you have to take strong political views, and I 
respect you for that. Some we disagree on. I disagree with 
your--at least as I have read your stated views on whether the 
death penalty is fairly applied in Pennsylvania and other 
places, but the disproportionate percentage of blacks on death 
row make me think that just on the face of it there has to be a 
    But putting this aside, having taken this kind of a 
position--and please don't feel singled out in this. I have 
asked others the same question. Why would somebody come before 
not Attorney General Fisher but a Judge Fisher and say, ``I 
want to be treated fairly, even though I happen to be a liberal 
Democrat'' or ``I happen to be a black who has been charged'' 
or ``I happen to be''--you see what I am getting at--as 
compared to saying, ``My opponent is a traditional member of 
Attorney General Fisher's party. He has joined them on a number 
of these political statements.''
    How do you demonstrate you are going to set that aside--
which, of course, you have to do--and have everybody who comes 
in there know, no matter who they are, no matter their color, 
no matter whether they are a plaintiff or defendant, no matter 
their political background, economic background or anything 
else, that a Judge Fisher will treat them fairly?
    Mr. Fisher. Well, Senator, thank you, and that is an 
excellent question. I think that my reputation precedes me, 
that all during my public career I've tried to be fair with 
people. And in the formulation of public policy and the 
formulation of law in Pennsylvania, there are multiple sides. 
There are multiple sides in which you can come down, as an 
advocate or as a lawmaker. And I believe that my reputation has 
been that I have been fair in listening to people's positions. 
And I've been open-minded and willing to listen to all views 
before I formulate a position that in a different role, the 
role I have today, I might advocate. I think it's that together 
with my love of the law which enabled me at this stage in my 
career to have the necessary and requisite experience to serve 
in this position if this Committee and the Senate gives me the 
    Senator Leahy. Obviously, we have run out of time because 
of the vote on the floor. Mr. Chairman, I am going to submit 
other questions. I may be able to come back, I may not, but I 
will submit other questions.
    Senator Craig. We will not reconvene until 11:45, and 
Senator Specter will chair at that time. We have another vote 
stacked after this vote, and then we will complete the hearing 
with the other two nominees and you, Attorney General. So if 
you will all please stand down for a bit, we do appreciate 
that, and thank you.
    The Committee will stand in recess.
    [Recess 11:02 a.m. to 11:50 a.m.]
    Senator Craig. The Senate Judiciary Committee will 
reconvene. Let me apologize and trust that we can ask you for 
patience. The Senate is deliberating a very important issue at 
this moment as it relates to the supplemental appropriations 
with our involvement in Iraq and other issues, so it has taken 
more time than we had anticipated.
    Attorney General Fisher, if you would please come back to 
the chair, we would appreciate it. Senator Specter is running a 
bit late, but he will be back in a few moments. I am going to 
turn to my colleague, Senator Feingold, for questions of 
Attorney General Fisher.

                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman.
    Welcome, Attorney General Fisher, and I would like to thank 
you for appearing here today and giving us the opportunity to 
ask you about your record and your views.
    I do think it is unfortunate, however, that our only 
opportunity to question Mr. Fisher directly comes while there 
is an open verdict against him in a Federal civil rights case. 
I do not see any reason why it could not have at least waited 
for the judge to rule on Mr. Fisher's possible motions 
challenging the jury's verdict against him. Of course, it is 
not my position that we should not delay a hearing whenever 
there is an open legal matter involving a nominee, but this 
lawsuit is clearly a serious matter. A Federal jury found that 
Attorney General Fisher retaliated against two former narcotics 
agents for exercising their First Amendment right to free 
speech. Moreover, the jury found that Attorney General Fisher 
had acted maliciously or wantonly toward the plaintiffs. They 
awarded $1 million in punitive damages against him and other 
defendants. In short, Mr. Fisher has been found liable by a 
jury for serious misconduct in office. We should all be 
concerned by this.
    Now, whatever the ultimate outcome, the rulings on the 
post-trial motion will represent a significant piece of 
information about this nominee. Allegations of abuse of power 
should never be taken lightly, and I do not see what we gain by 
rushing the nomination through before the Committee has all the 
    Now, if Mr. Fisher prevails in the trial court, that would 
obviously be a significant piece of information for us to 
consider. Should he lose, it will undoubtedly be the first time 
in our history that the Judiciary Committee considers a nominee 
who is appealing a finding of civil rights liability to the 
same court he hopes to sit on. This bizarre situation raises a 
number of serious concerns, questions which perhaps could have 
been resolved by the trial judge's ruling on post-trial motions 
had we waited to hear it.
    I regret that we will conduct this hearing without having 
all the facts about this important issue before us, but since 
this may be our only opportunity to question Mr. Fisher, let me 
ask you a few questions and in the spirit of full disclosure 
let you know I have heard good things about you from my State 
of Wisconsin, and I would like to begin by asking you questions 
about a Washington Post report in March 2000 that you decided 
not to join the Republican Attorney Generals Association, RAGA. 
In the story, you were quoted as saying, ``I'm a Republican. I 
try to keep politics out of my business as Attorney General.''
    Exactly what was your concern? And have your feelings about 
RAGA changed since that time?
    Mr. Fisher. Thank you, Senator, and thank you for the 
opportunity to answer that question. The quote or the statement 
that you referred to was correct. When RAGA was initially 
formed, I think back in 1999, I was at that time in my first 
term as Attorney General from Pennsylvania, and I believe at 
that time also a member of the Executive Committee of the 
National Association of Attorneys General.
    And I did not believe that RAGA, as it was proposed to be 
constituted, was something that was healthy for what I would 
refer to and continue to refer to as a very healthy camaraderie 
among Attorneys General as we meet, whether it be in discussion 
on cases or at our regularly scheduled meetings throughout the 
course of the year. And I was concerned that a political 
organization whose purposes might be different than what NAAG 
was would in some fashion disrupt that collegiality, that 
camaraderie, and the really intense and sometimes very 
sensitive discussions about cases.
    Senator Feingold. Let me follow up on that. Apparently some 
Republican Attorneys General declined to join RAGA because of 
concern about conflicts of interest. Specifically was the 
concern that RAGA might solicit funds from companies that were 
the subject of criminal investigations or potential defendants 
in lawsuits by the States. Microsoft, for example, was at the 
time of the Washington Post article the target of an antitrust 
lawsuit joined by 19 States, according to its spokesperson, who 
was also a member of RAGA. Did you believe RAGA's fundraising 
structure created potential conflicts of interest?
    Mr. Fisher. Senator, I was--I was never fully aware of what 
RAGA or the Republican National Committee was intending to do 
in raising money or how they were going to raise money. So I 
was not in a position to conclude whether or not it could or 
would not be a potential conflict of interest.
    Senator Feingold. Well, the article for which you were 
interviewed described RAGA's practice of soliciting donations 
for the Republican National Committee's soft money fund so that 
the companies that gave money as a result of being solicited by 
RAGA could not be identified. Did this contribute at all to 
your decision not to join RAGA? And do you believe a voter 
should be able to identify the companies that donate to the 
campaigns of their State Attorneys General?
    Mr. Fisher. Senator--and I know that you've been a leader 
in this Congress in campaign financing reform. I applaud you 
for that. As a State official, I was never comfortable with the 
type of soft money fundraising that Federal campaigns and 
Federal parties were able to engage in. So to the extent that I 
had some discomfort with that, it was one of the reasons why I 
just didn't think that the formation of the organization was 
necessarily going to be healthy for what, as I said, which 
still remains a rather collegial atmosphere among us when we 
    Senator Feingold. I appreciate that answer.
    Did you participate in RAGA events or fundraising 
activities at any time?
    Mr. Fisher. Subsequent to--probably subsequent to the year 
2000, I was asked to attend some RAGA events with other 
Republicans. I did attend them. But to the best of my 
recollection, I never had any involvement with any of the 
fundraising that RAGA was involved with.
    Senator Feingold. Thank you. Let me ask you a different 
subject matter. You sponsored an effort to expedite the 
execution process by establishing a timetable for the Governor 
to sign execution warrants. In 2000, you testified before the 
Pennsylvania Senate Judiciary Committee regarding a possible 
death penalty moratorium. You said, ``The delay between the 
imposition of a death sentence and having carried it out is 
already far too great.''
    Of the 111 people on death row who have been exonerated 
since 1973, the average time between sentencing and exoneration 
was 8.91 years. Among the death row inmates exonerated so far 
in 2003, all had served at least 16 years and two had served 
    Have your feelings about the need for speed changed at all 
in light of the numerous recent cases where proof of innocence 
turned up after conviction?
    Mr. Fisher. Senator, thank you for that question. It's a 
good one. I have--I'm familiar with Pennsylvania's death 
penalty and the administration of the death penalty in 
Pennsylvania. And that's the only thing that I can really 
directly speak to. We have had a death penalty on the books in 
our State since 1978. I was one of the co-authors of that 
statute, and it's been upheld by the courts.
    My testimony in 2000 I believe referred to the fact that, 
as a result of various administrative hurdles and frequent 
litigation in both the State and Federal court in Pennsylvania, 
that the administration of the death penalty had been unusually 
slow in our State. In fact, I think to this point there have 
only been three people who have been executed in Pennsylvania 
since 1978.
    So I expressed concern about that delay. I expressed 
concern that that delay was not good for the system of justice. 
It certainly wasn't good for families of victims. And my 
opinion of at least Pennsylvania's administration of it has not 
    Senator Feingold. And the innocence cases don't have an 
effect on your view on that either?
    Mr. Fisher. I am somewhat familiar with those cases. When I 
say ``somewhat,'' our office was not directly involved in any 
of those cases that were overturned. You made reference to a 
number of 111, which I think in the history since 1978 are 
cases out of a group of close to 300 where the Supreme Court or 
some other court reversed a conviction. But in the vast 
majority of those cases, the defendant was either retried and 
perhaps resentenced to death or to life imprisonment, a guilty 
plea was entered by the defendant, and I believe the number 
four that you referenced or others have referenced indicate 
people that, for one reason or another, were neither 
reconvicted or did not plea. But the question of the guilt or 
innocence of those individuals is still somewhat up in the air.
    Senator Feingold. Well, actually, I think in most of those 
cases these people have been released, and--
    Mr. Fisher. They have been.
    Senator Feingold. --are not going to be tried again. But 
let me ask, in fairness to you, a more Pennsylvania-specific 
question. After a 1998 report found that blacks in Philadelphia 
were 4 times more likely to get the death penalty than non-
blacks, you insisted that race was not a factor in applying the 
death penalty in Pennsylvania. In March of this year, the 
Committee on Racial and Gender Bias in the Justice System, 
appointed by the Pennsylvania Supreme Court, called upon 
Governor Rendell to enact a moratorium on the death penalty 
until the State can study how race affects death penalty 
    Among the committee's findings was that Pennsylvania 
prosecutors regularly remove as many blacks as possible from 
capital juries during the death-qualifying process of jury 
selection. Blacks make up 62 percent of Pennsylvania's death 
row inmates but only 10 percent of the State's population.
    Have you changed your views on the death penalty in light 
of the Commission's work and the evidence it gathered?
    Mr. Fisher. Senator, another good question. Pleased to have 
the opportunity to answer it. But the answer to your question 
is no. I have looked at those statistics. An overwhelming 
number of death penalty cases in our State have come from 
Philadelphia. The city of Philadelphia is one with the highest 
percentage of African-Americans of any--I believe of any city 
in our State. It also has the highest percentage of African-
Americans who have been convicted and sentenced to death. But 
the one figure that I think is very key in all of that is that 
the complexion of the juries that have found those defendants 
guilty and have assessed the death penalty have an overwhelming 
number of blacks on those juries.
    So it's hard to look at the race figures and really come to 
any firm conclusion. You almost have to look at every single 
case, look at who the victim was, look at who the defendant 
was, look at who the judge was, look at who the jury was, to 
come to any meaningful conclusion. And I have not found, at 
least from the work that my office and I have done, any racial 
discrimination in the application in those cases.
    Senator Feingold. I am over my time, so let me just ask one 
follow-up. Can you imagine any evidence that would convince you 
that the defendant's race is, in fact, a factor in the 
administration of the death penalty?
    Mr. Fisher. Senator, I could imagine some, and I'm 
concerned about stories or allegations of improperly denying 
blacks--or striking blacks from jury pools, you know, but if 
that has happened--and I can tell you in those cases which my 
office has handled, you know, we've tried to make sure that our 
deputy AGs that are handling those cases do not pick jurors 
based on race. But that's the only possible way, and I think 
that Pennsylvania's system of justice has done a lot, 
particularly in recent years, to overturn that trend, if it 
has, in fact, existed in the past.
    Senator Feingold. I thank the nominee, and I thank the 
Chairman for being so generous with the time.
    Senator Craig. Senator, thank you.
    Attorney General Fisher, since the issue of the death 
penalty has been mentioned, let me ask you some questions and 
make a few notes, if I may, for the record.
    First, I would note that Pennsylvania Governor Ed Rendell, 
a Democrat, who, as we know, has wholeheartedly supported your 
nomination, has said that he believes steps need to be taken to 
make sure that the death penalty is administered in a fair 
manner, but he is opposed to a moratorium in Pennsylvania. So, 
Attorney General, you are not alone in that position.
    It is my understanding that in Pennsylvania the State 
Supreme Court has the power and duty to overturn death 
sentences when it sees evidence that race played a role in the 
imposition of a sentence. Is that correct?
    Mr. Fisher. Senator, thank you for that question, and the 
answer to your question is yes. Under the law, which I helped 
to write in 1978, the Supreme Court conducts a de novo review 
of every case, every capital case that's brought to it on 
direct appeal. And it has that authority to overturn a death 
sentence and has overturned a death sentence under those 
    Senator Craig. Well, looking at your record, it seems clear 
that you recognize the need for equal justice for all Americans 
no matter what their race or their ethnic background. I note, 
for example, that you have advocated the passage of a State DNA 
post-conviction statute so that convicts on death row would 
have a right to have a DNA test on any relevant evidence that 
could lead to their exoneration.
    Would you please tell the Committee more about that issue?
    Mr. Fisher. Thank you, Senator, for the opportunity to 
answer that question. I advocated as Attorney General the 
passage of a Pennsylvania statute on post-conviction DNA 
testing. As Pennsylvania's chief law enforcement officer--and I 
can speak on behalf of myself and district attorneys all across 
Pennsylvania--none of us--and I emphasize none of us--want to 
see an innocent person spend 1 day in jail, and particularly 
not spend 1 day on death row if, in fact, there is evidence out 
there that can properly exonerate that individual. And that's 
why I advocated and the legislature concurred and last year 
passed a DNA testing statute that allows a defendant, anyone 
who's incarcerated to be able to petition the court at any time 
if they can show that there is evidence that, if tested, would 
lead to exculpatory evidence that would overturn their 
conviction; and if they don't have resources, that the DNA 
testing would be paid for by the State.
    So I was very pleased to play a lead role in the advocacy 
and the passage of that legislation, and it's legislation which 
I hope the rest of this country will follow. And, in fact, I 
understand legislation similar to that has been introduced and 
is pending before this Committee.
    Senator Craig. Well, I do thank you for those responses. I 
think they demonstrate a true sense of justice in the role you 
have played in your State, and I thank you for that.
    I am going to turn the balance of the hearing and questions 
of you over to Senator Specter, and then he has agreed to hear 
Dale Fischer of the Central District of California and Gary 
Sharpe from the Northern District of New York. So, with that, 
    Senator Specter. Thank you, Mr. Chairman.
    Senator Craig. I am glad to see you back. Thank you.
    Mr. Fisher. And I thank you, Mr. Chairman, Senator Craig, 
for chairing the hearing.
    Senator Craig. Well, we have not had the privilege of 
meeting--or had not until this time, and I can tell you that it 
has been one that I have enjoyed. You have obviously 
demonstrated a phenomenal commitment to quality public service, 
and those of us in public service note that and respect it, and 
I thank you for it.
    Mr. Fisher. Thank you, Mr. Chairman.
    Senator Specter. [Presiding.] Thank you, Mr. Chairman.
    Attorney General Fisher, on October 14, 1997, three 
employees of the Pennsylvania Attorney General's Office filed 
suit in the Middle District of Pennsylvania in a case captioned 
McLaughlin v. Watson in which the three alleged that officials 
of the State Department and others had conspired to thwart 
their investigation into Dominican drug dealer cases. And 
subsequently, on October 12, 1998, Agents McLaughlin and 
Micewski filed a case captioned McLaughlin v. Fisher in the 
Eastern District of Pennsylvania, claiming that they were 
transferred in retaliation for filing the McLaughlin v. Watson 
    Would you state what occurred leading to those two cases 
and what participation you had?
    Mr. Fisher. Well, thank you, Senator, for the opportunity 
to answer that question. As you are well aware, I was sworn in 
as the Attorney General of Pennsylvania in January 1997. And at 
that time, I inherited a scandal in my office, which emanated 
out of the city of Philadelphia. That scandal arose as a result 
of decisions and public statements that were made in the spring 
of 1996, almost a year before I was sworn in as Attorney 
General, by the then-United States Attorney for the Eastern 
District of Pennsylvania and the District Attorney of 
Philadelphia, who found that agents in my Bureau of Narcotics--
at that time the Bureau of Narcotics Investigation in 
Philadelphia were systematically denying the citizens of 
Philadelphia and the citizens of Pennsylvania their civil 
rights by falsely testifying or by falsely providing 
information on affidavits for search warrants.
    The decisions by the then-United States Attorney and the 
district attorney led to their decision to no longer prosecute 
cases made by the Bureau of Narcotics Investigation in 
Philadelphia, and that was extremely harmful to the office 
because probably 90 percent of the cases in our narcotics unit 
in Philadelphia are prosecuted by one of those two offices.
    In 1997, when I took office, as I said, I inherited this 
scandal. At the time I met with the U.S. Attorney and the 
district attorney. Their position had not changed, and it has 
not changed to date. And as a result, I then directed the 
employees in my office to try to determine what kind of 
assignments the individuals in question could be given because 
they could no longer work and make narcotics cases if they 
couldn't testify.
    Senator Specter. Would you amplify the substance of your 
meeting with the United States Attorney for the Eastern 
District and the District Attorney of Philadelphia?
    Mr. Fisher. I met with the United States Attorney in March 
or April of 1997.
    Senator Specter. And his identity?
    Mr. Fisher. Michael Stiles.
    Senator Specter. And the DA, her identity?
    Mr. Fisher. Lynne Abraham. I met with Ms. Abraham and spoke 
with her a couple times prior to August of 1997 and discussed 
this matter. It was a less formal meeting with Ms. Abraham, but 
it was a meeting with Mr. Stiles of some duration. And I 
inquired particularly from Mr. Stiles, who I knew to be the 
person that was investigating these allegations, as to whether 
or not their--because they had made a statement that they 
wouldn't take any cases from our office.
    Senator Specter. Allegations as to the propriety of the 
conduct of the State Department of Justice employees?
    Mr. Fisher. No. Actually, they were looking at the 
allegations involving the agents in our office, who, it was 
alleged, were falsely testifying and were making false 
affidavits on search warrants, which led to the dismissal of 
over 125 cases in 1996. There were 125 cases--
    Senator Specter. And that 425 drug cases were dismissed?
    Mr. Fisher. Drug cases that they were involved with were 
either dismissed or nul-prossed, and a couple defendants were 
released from jail as a result of the action by the United 
States Attorney.
    Senator Specter. Was that from both offices, Philadelphia 
DA and U.S. Attorney?
    Mr. Fisher. Correct.
    Senator Specter. And you had started to comment before I 
asked you for more specification about what action you took 
after you met with U.S. Attorney Stiles and DA Abraham.
    Mr. Fisher. At least as to the United States Attorney, he 
had modified his position somewhat in that he was concerned 
about certain named agents, and he became comfortable with the 
fact that we had made changes in the leadership of that office, 
and if there's some way that we could figure out a way to not 
have the agents that the allegations were made about that he 
was investigating involved in drug cases, they would 
subsequently consider working with our office again.
    Senator Specter. And you have not yet formally for the 
record identified who the agents were from your office whose 
conduct was being questioned.
    Mr. Fisher. There were at least three and perhaps more at 
that time. There was Mr. McLaughlin, Mr. Micewski; there was 
another gentleman by the name of Mr. McKeefery, and there was a 
gentleman, I believe, by the name of Mr. Eggles, E-g-g-l-e-s, 
who were the people that were named at that time, which would 
have been in perhaps May of 1997 when I met with Mr. Stiles.
    Senator Specter. And you then made an inquiry to make a 
determination for yourself as to the propriety of the conduct 
of these individuals?
    Mr. Fisher. Well, Mr. Stiles informed me that, to the 
extent that he could, that there was an ongoing investigation 
and could not give me a timetable or give our office a 
timetable as to when that investigation would be concluded.
    But it was clear from my meeting with Mr. Stiles that if 
those agents weren't involved in cases, that the United States 
Attorney's Office and the district attorney would begin working 
with our BNI office again.
    Senator Specter. When you say Mr. Stiles was conducting an 
investigation, had he at that point not made a determination 
that these individuals had acted improperly?
    Mr. Fisher. They had made an initial determination which 
led to the dismissal of cases, but they were conducting an 
investigation that could have led to the filing of charges 
against the individuals, and that was ongoing.
    Senator Specter. But in the interim, they were not taking 
cases where these agents would have been witnesses for the 
    Mr. Fisher. In fact, they were not taking cases from our 
office, period, regardless of who was involved.
    Senator Specter. So what happened next on your part?
    Mr. Fisher. We agreed that he would look at some 
alternatives and--but it became clear to us--we knew this 
already, but it became more clear after the meeting with Mr. 
Stiles and discussions with Ms. Abraham that we had to find 
other assignments for the agents involved. And I instructed my 
personnel and chain of command to evaluate what other 
assignments within our office that the agents in question could 
be given that would not require their testimony in court, 
because that was the one problem that they were always going to 
have. If someone was questioning their credibility, they were 
never going to be able to come in the courtroom again and 
testify on a case.
    As a result of my personnel department's review of 
available positions in the office, we made the decision to 
transfer two of the agents, Mr. Micewski and Mr. McLaughlin, to 
assignments that would allow them to continue to perform 
duties, would allow them to continue to be employed by the 
office, and not have to testify. And those transfers were made. 
Prior to them filing the suit of McLaughlin, et al, v. Fisher, 
they also--
    Senator Specter. What different assignments did you make 
for those two men?
    Mr. Fisher. As part of our ongoing process and evaluating 
the needs of the office, we decided that it was important to 
revive our criminal intelligence operation and a section of the 
office known as CrHIA, which did audits of police and DA 
compliance with the Criminal History Information Act.
    Senator Specter. How many agents did you have in your 
    Mr. Fisher. Narcotics agents at that time, probably 180.
    Senator Specter. And the total staff in your office?
    Mr. Fisher. Over 900.
    Senator Specter. And what happened? Where did you assign 
specifically Agent McLaughlin and Agent Micewski?
    Mr. Fisher. As a result of the personnel recommendations 
that vacancies existed in the other Bureau of Narcotics 
Offices--because in addition to Philadelphia, we have seven 
others--McLaughlin was assigned to Greensburg to do CrHIA work 
and Micewski was assigned to Wilkes-Barre to do CrHIA work 
where there were vacancies. There were vacancies in those 
offices, and they were assigned--
    Senator Specter. What kind of work were they assigned to 
    Mr. Fisher. CrHIA, as I said, is an acronym for a law in 
Pennsylvania which is known as the Criminal History Information 
Act, and the CrHIA process is one in which one agent in each 
region would be assigned to monitor--which was an obligation 
under CrHIA for the Attorney General to do--to monitor the 
compliance of police departments and DAs with the Criminal 
History Information Act. So it was essentially a desk job which 
would review files and review compliance data. But it was 
something that had not been done as well as it should have in 
the past, and it was something we felt that should have been 
done for which there was a vacancy, and these two gentlemen 
were transferred, continued to receive salary, received travel 
expenses, received subsistence for their work, and were 
transferred on a temporary basis, which the contract allowed us 
to do, to those locations.
    Senator Specter. Had you made a determination at that point 
as to whether the complaints by the U.S. Attorney Stiles and DA 
Abraham were well founded?
    Mr. Fisher. We did not have the information that they had, 
and they would not share with us the information they had that 
were part of a criminal investigation that the FBI was doing 
for Mr. Stiles. So we were not in a position to make a 
determination as to the legitimacy of those allegations. The 
only thing that we knew is that these two agencies, which were 
vital for our BNI office to operate, wouldn't take our cases. 
And we knew because of their public statements and because of 
the dismissal of cases involving McLaughlin--in fact, a Federal 
district judge in Philadelphia in one case in the opinion 
dismissed a case of Mr. Micewski, and in the opinion said that 
Micewski's at trial was not credible. To have that on the 
record in a case pretty much limited Micewski's ability to 
testify anywhere in the future.
    Senator Specter. What judge made that statement?
    Mr. Fisher. Judge William Yohn.
    Senator Specter. William Yohn?
    Mr. Fisher. Yes.
    Senator Specter. That is in the Federal court.
    Mr. Fisher. In the Federal court in Philadelphia.
    Senator Specter. Well, had you made a determination that 
Mr. McLaughlin and Mr. Micewski were competent to handle the 
new assignments?
    Mr. Fisher. We made a determination that, based on their 
experience, that they were competent to handle those new 
    Senator Specter. And you did not consider the allegations 
as to their integrity to be disqualifiers?
    Mr. Fisher. We could neither confirm nor deny those 
allegations and weren't in a position to be able to disqualify 
them based on those allegations because that's what they 
remained at that point. And the issue of the transfers was 
first raised by these agents before the Pennsylvania Labor 
Relations Board in an unfair labor practice claim that they 
filed, and the Pennsylvania Labor Relations Board, which is a 
board under statute in Pennsylvania specifically empaneled to 
make determinations on labor claims of employees, found on the 
record and in their decision that every single decision that we 
made was appropriate, that it was non-retaliatory, and that 
they were based on good business purposes for the office, and 
accordingly found in our favor before the full PLRB on the 
unfair labor claims made by the two gentlemen that were 
subsequently made in an identical form in the lawsuit in 
Federal court.
    Senator Specter. Were Mr. McLaughlin and Mr. Micewski 
questioned about the issues raised by the U.S. Attorney and DA?
    Mr. Fisher. We did not question them about those 
    Senator Specter. Why not?
    Mr. Fisher. There had been--my predecessor, Mr. Corbett, 
who was the Attorney General immediately preceding me, who was 
the Attorney General in the spring of 1996, I believe had one 
of the deputies in the office perform an investigation and 
there were some questions asked of the two gentlemen at that 
time. But we did not further question them because it was an 
ongoing investigation by the Federal Government.
    Senator Specter. And what was the conclusion of the inquiry 
made by then-Attorney General Corbett?
    Mr. Fisher. The conclusion was a limited one based on files 
and based on conversations with Micewski, McLaughlin, I believe 
Mr. Eggles, and maybe Mr. McKeefery. The conclusion was that 
the files in and of themselves did not show any wrongdoing, but 
there was obviously other information that the Federal 
authorities were looking at that was not available.
    Senator Specter. And what happened then after the ruling by 
the Labor Relations Board?
    Mr. Fisher. Then a second suit--you made reference to the 
fact that on October 14th of 1997 a suit had been filed against 
myself, Mr. Stiles, Ms. Abraham, I believe the CIA, various 
other parties whose names I don't have but I think are part of 
the record--
    Senator Specter. How did the CIA get into the picture?
    Mr. Fisher. The agents' position was that they were 
deemed--that the allegations Mr. Stiles and Ms. Abraham were 
referring to were as a result of a CIA-Dominican conspiracy 
that was funneling drug money to candidates for public office 
in both the Dominican Republic and in this country. And they 
alleged that because they were on the heels of exposing this 
conspiracy, that that's why Mr. Stiles made the allegations 
that he did.
    Senator Specter. So they are saying that U.S. Attorney 
Stiles was involved with protecting drug smugglers?
    Mr. Fisher. That was what their allegations were publicly, 
and that's what the allegations were in the October 14th 
    Senator Specter. That the CIA was involved in protecting 
Dominican drug smugglers?
    Mr. Fisher. That's correct.
    Senator Specter. And that you were involved in that?
    Mr. Fisher. We weren't--that was before I was the Attorney 
General. We were not--we were a named party in that complaint 
only because we succeeded into office. But I was not the 
Attorney General at that time. You know, you could hardly find 
my name mentioned in the McLaughlin I complaint.
    Senator Specter. And what then happened with the case of 
McLaughlin v. Watson which was filed on October 14, 1997?
    Mr. Fisher. That case was dismissed as to all defendants in 
the district court, and the dismissal was affirmed by the 
United States Court of Appeals for the Third Circuit.
    Senator Specter. What judge entered the dismissal in the 
district court?
    Mr. Fisher. I am not certain.
    Senator Specter. Would you provide that for the record, 
    Mr. Fisher. I can provide it.
    Senator Specter. And do you know the panel on the Third 
Circuit which affirmed?
    Mr. Fisher. I can get that information. I'm not--
    Senator Specter. If you would provide that for the record, 
I would appreciate it.
    Was there an application for cert to the Supreme Court of 
the United States?
    Mr. Fisher. If there was, it was denied.
    Senator Specter. Would you provide for the record whether 
it was?
    Mr. Fisher. Yes.
    Senator Specter. So at this point, you had reassigned Mr. 
McLaughlin and Mr. Micewski, and what happened next leading up 
to the October 12, 1998, filing of the case captioned 
McLaughlin v. Fisher?
    Mr. Fisher. Senator, as I indicated, they also filed this 
unfair labor practice claim in front of the PLRB.
    Senator Specter. Was that in between the two cases?
    Mr. Fisher. That was in between the two cases, and the PLRB 
in 1999 ruled in our favor on all issues.
    Senator Specter. So the case before the Labor Board was 
filed after the dismissal in McLaughlin v. Watson?
    Mr. Fisher. The case before the Labor Board was filed 
probably while that first case was still pending.
    Senator Specter. And what was the difference in the 
gravamen of the lawsuit of McLaughlin v. Fisher contrasted with 
McLaughlin v. Watson?
    Mr. Fisher. The gravamen of the lawsuit McLaughlin v. 
Fisher was an allegation that they had been transferred because 
they filed the first suit and they alleged retaliation.
    Senator Specter. Were they transferred after the filing of 
the first suit?
    Mr. Fisher. Chronologically, they were. But the discussions 
and the meetings with them and the planning as to what we could 
do all took place before the filing of the first suit.
    Senator Specter. Well, then, what was the gravamen of the 
first suit? They hadn't been transferred at that point.
    Mr. Fisher. No, the first suit, which--
    Senator Specter. What was the essential complaint then?
    Mr. Fisher. The first suit, which was McLaughlin v. Watson, 
named all of the individuals I referred to, including the CIA. 
And it was a 1983 action alleging that all of these actors who 
were named defendants were in a conspiracy to deny them civil 
rights, which had smeared their name and prevented them from 
doing their work as narcotics detectives.
    Senator Specter. They hadn't been transferred at that 
    Mr. Fisher. They had not been transferred.
    Senator Specter. So what was their damage? Just that the 
issue had been raised as to their credibility in these cases 
where they were witnesses?
    Mr. Fisher. That's--yes. Yes, Senator. That was the extent 
of their damages. They had no--in fact, to this day, and even 
before the jury in McLaughlin v. Fisher, they presented no 
evidence of compensatory damages.
    Senator Specter. Amplify what was in the complaint of 
McLaughlin v. Fisher, et al.?
    Mr. Fisher. That was strictly a complaint alleging that 
their transfer--their transfers were in retaliation for the 
filing of the first suit, McLaughlin v. Watson.
    Senator Specter. We have the transcript of the record, 
obviously, in McLaughlin, et al, v. Fisher, et al., but outline 
who the witnesses were and what the testimony was, please.
    Mr. Fisher. In the case, the plaintiffs testified, 
obviously. The defendants from my office testified, including 
myself; Mr. Pappert, my first deputy.
    Senator Specter. What was the essential testimony given by 
Mr. McLaughlin?
    Mr. Fisher. He talked about his--you know, his history as a 
narcotics detective in Philadelphia, and for our office, the 
fact that Mr. Stiles' and Ms. Abraham's actions forced him to 
no longer be able to investigate drug cases in Philadelphia; 
and that as a result of that and the filing of his lawsuit on 
October 14th, we improperly transferred him to a place away 
from his home.
    Senator Specter. Were Stiles and Abraham defendants in the 
second suit?
    Mr. Fisher. No, they were not.
    Senator Specter. What was the essential testimony given by 
Mr. Micewski?
    Mr. Fisher. Similar to Mr. McLaughlin's.
    Senator Specter. And there was a third plaintiff whose case 
was dismissed?
    Mr. Fisher. Mr. McKeefery, his case was dismissed.
    Senator Specter. Was there any other plaintiff?
    Mr. Fisher. There was no other plaintiff.
    Senator Specter. And what was the rationale for the 
dismissal of McKeefery's case contrasted with McLaughlin and 
    Mr. Fisher. McKeefery was given another assignment that he 
was able to do in Philadelphia, and, therefore, because he had 
not been transferred, the court ruled that there was absolutely 
no evidence of retaliation--there was nothing that could be 
retaliated against in McKeefery's case.
    Senator Specter. And how many defendants were there in the 
    Mr. Fisher. There were, I believe, five.
    Senator Specter. You testified?
    Mr. Fisher. I testified. Mr. Pappert testified. William 
Ryan, who's the head of our Criminal Law Division, testified. 
David Kwait, who was a defendant, who's head of our Bureau of 
Investigations, testified. James Caggiano, head of our Bureau 
of Narcotics Investigation, testified. Charles Warner, who was 
in the Bureau of Narcotics Investigation, Eastern Pennsylvania, 
testified. And Michael Stiles, the United States Attorney, the 
former United States Attorney at that time for the Eastern 
District of Pennsylvania, testified. And I believe some--I 
believe Mr. Gordon's testimony from the Philadelphia DA's 
Office was stipulated to for the record.
    Senator Specter. Where had he testified to have testimony 
to be accommodated by stipulation?
    Mr. Fisher. I believe that they just stipulated as to what 
he would say if he were called.
    Senator Specter. And what was the essential testimony which 
you gave?
    Mr. Fisher. The testimony that I gave at that time was that 
I explained the background of the scandal that I inherited. I 
explained the steps that I took in meeting with Mr. Stiles and 
Ms. Abraham. I explained the ongoing decision that our 
personnel office undertook to find jobs that these gentlemen 
could undertake that would not include--would not require 
testimony. And I described the fact that the lawsuit that had 
been filed on October 14th had absolutely nothing to do with 
the transfers, that the transfers--that that suit was 
irrelevant to any of our consideration, that we had been in the 
process of considering alternatives long before that, and that 
the transfers were made, as the PLRB found, for legitimate 
business reasons for the office.
    Senator Specter. But you were a defendant in the October 
14, 1997, lawsuit.
    Mr. Fisher. I was--in fact, I was the only common defendant 
between the two lawsuits.
    Senator Specter. How long did the jury deliberate?
    Mr. Fisher. Three or four hours, I believe.
    Senator Specter. And the result?
    Mr. Fisher. They found as to me that I was responsible for, 
I believe, $12,000, $12,500 in compensatory damages against 
both defendants and $100,000 in punitive damages against both 
    Senator Specter. What evidence was presented as to a basis 
for compensatory damages?
    Mr. Fisher. To my knowledge and recollection, Mr. Chairman, 
there was no evidence presented at all.
    Senator Specter. And what evidence as to punitive damages?
    Mr. Fisher. Mr. Chairman, to my knowledge and recollection, 
there was no evidence whatsoever as to punitive damages, and, 
in fact, counsel had made objection on the record as to the 
issue of punitive damages even being submitted to the jury.
    Senator Specter. And what is the status of the case now? 
You have already testified that it is on post-trial motions?
    Mr. Fisher. We filed post-trial motions before the district 
court judge, and those post-trial motions have not yet been 
briefed because it took quite a while to get the record 
transcribed. But we have post-trial motions, and I have no idea 
what the timetable will be before the court--
    Senator Specter. When did the trial occur?
    Mr. Fisher. The trial occurred in mid-February of 2003.
    Senator Specter. And you do not know, you say, when the 
post-trial motions will be heard?
    Mr. Fisher. I do not know when they'll be heard. I know 
that our brief on the post-trial motions is to be filed, I 
believe, sometime next week.
    Senator Specter. What will be the anticipated conclusion of 
the case in the district court? I know it is speculative 
because it is a matter of how long the judge takes?
    Mr. Fisher. It's hard to--it would be very hard to predict. 
The defendants would have 30 days--or the plaintiffs would have 
30 days to file their brief, and obviously the court could 
decide to hear oral argument on the post-trial motions, and 
then whatever amount of time it would take for the court to 
deliberate on the issues before it.
    Senator Specter. And then there is the appellate process to 
the Court of Appeals for the Third Circuit?
    Mr. Fisher. That's correct, Mr. Chairman.
    Senator Specter. And how long would that take, 
    Mr. Fisher. My experience on an appeal of that nature, if 
the case would get that far, is that it could take well in 
excess of a year for any matter like that to be--
    Senator Specter. And the losing party then has the right to 
file an application for certiorari to the U.S. Supreme Court.
    Mr. Fisher. And also a case like this could go to the court 
en banc of the Third Circuit and to the United States Supreme 
    Senator Specter. Well, as I had indicated, and as is well 
known, we have access to all the transcripts, and we have 
already reviewed them. And as I had said at the outset, it was 
my preference to hear witnesses on the matter, including Mr. 
McLaughlin and Mr. Micewski and others who would be relevant, 
so that we would, in effect, be re-examining in that detail the 
jury's verdict. But the practice of the Committee is not to 
hear other witnesses, not even to allow the Governor to 
introduce you. And as I have said before, my office has already 
talked to counsel for the plaintiffs preliminarily to make 
arrangements to have them come in and testify, but to repeat, 
that is not to be permitted here. And to repeat again, I intend 
to talk to Mr. McLaughlin and Mr. Micewski myself to question 
them as to exactly what happened. I think it would be 
inappropriate for us to talk to the jurors, but to the extent 
that we can make an independent determination as to what 
happened, that is our duty. Our constitutional duty is to 
decide on your qualifications. Our job is to confirm or to 
reject confirmation, and that is our independent duty, aside 
from the judicial determination. But, of course, out of respect 
for the jury's verdict and the pendency of the case, we have 
made an inquiry far beyond what we customarily do. And we will 
take it to the extent of listening to Mr. Micewski and Mr. 
    Anything else you would like to add, Attorney General 
    Mr. Fisher. Not at this time, Mr. Chairman.
    Senator Specter. Well, there are a couple of outstanding 
questions. We would appreciate if you would provide them for 
the record.
    Mr. Fisher. And, Mr. Chairman, I want to thank you and the 
entire Committee for giving me the opportunity to have this 
hearing today, and I want to particularly thank you for your 
help, support, and guidance throughout this process.
    Senator Specter. That concludes our hearing. Thank you.
    We will now proceed to the hearings on Magistrate Judge 
Sharpe and Ms. Dale S. Fischer. Let's have Ms. Fischer come 
forward first. Thank you.
    Judge Fischer and Judge Sharpe, will you raise your right 
hands? Do each of you solemnly swear that the testimony you 
will give before this Committee on the Judiciary of the United 
States Senate will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Judge Fischer. I do.
    Judge Sharpe. I do.
    Senator Specter. Judge Fischer, would you care to introduce 
relatives or friends who are in the hearing room?


    Judge Fischer. Thank you, Mr. Chairman. I would. I have 
with me today my friend and former law partner, Allan Grossman; 
another friend, Ronnie Blumenthal; a friend and colleague on 
the Los Angeles Superior Court, Judge Judith Abrams; and 
another friend, Harriet Hess.
    Thank you.
    Senator Specter. Would those folks stand, please, to be 
recognized? Thank you for joining us.
    [The biographical information of Judge Fischer follows:] 

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    Senator Specter. Judge Sharpe, would you care to introduce 
relatives or friends who are in the hearing room?


    Judge Sharpe. I would. Thank you, Senator. With me today 
    Senator Specter. Senator Thurmond used to say, ``Pull the 
machine closer.''
    Judge Sharpe. With me today is my friend and supporter for 
the last 37 years, my wife, Lorraine.
    Senator Specter. Thank you for joining us, Mrs. Sharpe.
    Judge Sharpe. With me as well, Senator, by video, is my 
entire family: my two sons, Robert and Michael; their wives, 
Ann and Anne; and my two grandchildren, Jake and Colby.
    [The biographical information of Judge Sharpe follows:] 

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    Senator Specter. Okay. Thank you very much.
    Judge Fischer, what is your current occupation?
    Judge Fischer. Thank you, Senator. I'm a judge of the Los 
Angeles Superior Court. That's the trial court level in Los 
    Senator Specter. And how long have you held that position?
    Judge Fischer. I started off as a judge of the municipal 
court, which was a limited jurisdiction court, in March of 
1997. When our two trial court levels unified in January of 
2000, I became a judge of the superior court.
    Senator Specter. Which is your law school?
    Judge Fischer. Harvard Law School.
    Senator Specter. And when did you graduate?
    Judge Fischer. 1980, Senator.
    Senator Specter. And, briefly, what has your practice been 
since graduation from law school to becoming a judge?
    Judge Fischer. Senator, I immediately jointed the law firm 
of Kindel and Anderson, which practiced exclusively in the 
civil area. I did volunteer briefly for the Los Angeles City 
Attorney's Office and prosecuted misdemeanors as a special 
project that office had, but my practice was exclusively civil 
in both the State and Federal courts until my appointment to 
the bench in 1997. Since that time, I have done only criminal 
    Senator Specter. Do you do only criminal court as a State 
trial judge?
    Judge Fischer. That's correct, Senator. We have a very 
large court with quite a number of judges.
    Senator Specter. I note that, in addition to your judicial 
duties, you spend time educating people on judicial issues, 
that you were Chair of the Temporary Judge Committee in Los 
Angeles County where you have nearly 1,000 temporary judges 
under your tutelage. Tell us about that Committee and your work 
on it.
    Judge Fischer. Thank you, Senator, for your interest in 
that subject. Our court serves so many people that we employ--
or I shouldn't use the term ``employ''--use the services of 
attorneys in our community who go through an extensive training 
program and serve in our Small Claims and Traffic Courts, and I 
undertook the responsibility of training them and setting up a 
program to monitor them and to counsel them, if appropriate, 
and to ensure that the service that they provide to our 
citizens in Los Angeles County is the best possible service.
    Senator Specter. In your questionnaire, Judge Fischer, you 
noted that you had participated as a judge or coach in moot 
court programs for high school and law school students. What 
motivated you to become active in those programs?
    Judge Fischer. Thank you, Senator, for the opportunity to 
address that. I think it's important for both attorneys and 
judges to participate in making the system better and improving 
the quality of both lawyers and judges, and by doing so, I 
think we improve the amount of respect that our citizens have 
for the judicial process and that branch of Government. And I 
consider that very important and plan to continue to do that.
    Senator Specter. You are well aware of the standard 
approach that judges should interpret the law and not make law. 
What assurances can you give the Senate that you will abide by 
that stricture?
    Judge Fischer. Thank you, Senator, and that is a very 
important issue. I think the thing that the Senate would look 
at most carefully would be my record in the six and a half 
years that I served on the Los Angeles court, and in doing 
that, they would see that that's exactly what I have done. 
That's what I've taken an oath to do, and I assure the Senators 
that I will continue to do that if I'm fortunate enough to be 
    Senator Specter. What do you do when you come to a question 
which hasn't been decided by a court? Let's just say 
hypothetically that, say, the State of California says that 
doctors can administer marijuana as painkillers, and the 
Attorney General of the United States hypothetically under the 
Clinton administration decides to prosecute those doctors, and 
that case comes before you on an injunction to restrain the 
Department of Justice from conducting those prosecutions, no 
precedents in the field. What do you do?
    Judge Fischer. Thank you, Senator, and I recognize that 
that is a very important type of question. The canons of 
judicial ethics in California prohibit me from answering that 
specific question. If it would be acceptable, I would be happy 
to answer how I might approach an issue of first impression. 
But other than that, I couldn't comment.
    Senator Specter. Do you want to reframe the question?
    Judge Fischer. If you'd like.
    Senator Specter. No, no. It is not what I would like. It is 
what you would like. You want to reframe the question. Go 
ahead. Answer your question.
    Judge Fischer. Thank you. In deciding an issue that had not 
yet been decided by controlling authority, the Court of Appeal, 
the California or U.S. Supreme Court, I would, first of all, 
presume the constitutionality or legality of the law or 
statute. I would then look to the legislative history or 
legislative intent, if there were any for me to review. I would 
consider, to the extent there was any similar case law, similar 
analysis given by courts of appeals in my line of precedent, 
and I would, to the best of my ability, draw a conclusion based 
on all of those factors, of course, after hearing from the 
attorneys and reviewing any law they provided.
    Senator Specter. When you cite the California canons of 
judicial ethics, my question goes to what you would do as a 
Federal judge. Are there any Federal standards which would be 
applicable, perhaps supersede the State court?
    Judge Fischer. Thank you, Senator. I believe it's similar--
    Senator Specter. Under the Supremacy Clause.
    Judge Fischer. Certainly the general analysis would be the 
same. I would follow any precedent that existed. If it were a 
case of first impression, I would again presume 
constitutionality or validity. I would look to similar cases, 
language interpreting perhaps similar statutes or laws and, 
again, apply that to the best of my ability.
    Senator Specter. Sometimes Senators insist on answers to 
questions, notwithstanding the reasons you gave. We had a case 
involving a man named Miguel Estrada where there was an 
insistence on answering question. What do you think about all 
that? Not to embroil you in the political thicket, but what do 
you think about all that?
    Judge Fischer. I think that I would not be willing to 
violate my oath of office on the California court.
    Senator Specter. Even if it cost you a Federal judgeship?
    Judge Fischer. That's correct, Senator.
    Senator Specter. Meritorious.
    Judge Sharpe, tell me a little bit about your background. 
You are now a Federal magistrate judge?
    Judge Sharpe. I am, Senator.
    Senator Specter. And how long have you had that position?
    Judge Sharpe. For the past 6 years, since 1997.
    Senator Specter. And which is your law school?
    Judge Sharpe. Cornell.
    Senator Specter. What year?
    Judge Sharpe. 1974, Senator.
    Senator Specter. And what have you done generally since 
graduation from law school to becoming a magistrate judge?
    Judge Sharpe. I was a local prosecutor in the Broome County 
District Attorney's Office, which is located in Binghamton, New 
York, on the Pennsylvania border, Senator.
    Senator Specter. Where from?
    Judge Sharpe. Just north of Scranton is Binghamton, and I 
was there from 1974 to 1981.
    Senator Specter. You were from Pennsylvania?
    Judge Sharpe. No, no, no. I'm sorry. What I was suggesting 
is the Broome County DA's Office--
    Senator Specter. I see.
    Judge Sharpe. --handled matters in Broome County, which 
borders Pennsylvania.
    Senator Specter. We try to export as many criminals as we 
can to New York State.
    Judge Sharpe. I was there from 1974 to 1981. I then left 
there for a year and was a special prosecutor for the New York 
State Attorney General's Office in Syracuse, New York, for a 
year. I then joined the United States Attorney's Office in the 
Northern District of New York, which is the upstate 32 
counties, from 1983 to 1997. While I was there, I was at 
various times a supervisory Assistant United States Attorney, 
senior litigation counsel, and from 1992 to 1994, I was the 
Interim United States Attorney.
    Senator Specter. With the experience you have had both as a 
judge and prosecutor, what elements of judicial temperament do 
you consider most important?
    Judge Sharpe. Senator, when it comes to judicial 
temperament, I think one of the first elements is the ability 
to listen. People feel that they have received the kind of 
fundamental fairness they're looking for in the courts when 
they have the opportunity to be heard. And in order to allow 
somebody to be heard, you have to listen. You have to treat 
them with respect. And you have to approach anything they say 
with respect.
    In addition to that, one of the quintessential factors, I 
think, that has placed me in good stead for the last 6 years is 
to maintain a sense of humor. I think a sense of humor can 
defuse a lot of the animosity and a lot of the angst that can 
occur as a result of litigation.
    So all of those things, the ability to listen, obviously 
some common sense, and a sense of humor, will take you a long 
way with a judicial temperament.
    Senator Specter. How did you find the transition from 
prosecutor to judge?
    Judge Sharpe. I found it a very simple transition, Senator. 
Though my background had long been prosecution, it was all in 
litigation. Therefore, I spent my entire career in courtrooms 
in front of a number of judges, State and Federal. And the 
biggest thing in my background I lacked when I assumed the 
position as magistrate judge was the extensive civil 
experience, and civil experience in the kinds of substantive 
areas that I would deal with in Federal court.
    Obviously, the last 6 years has given me the opportunity to 
deal with those issue. As I say, I brought with me the 
knowledge of litigation, and I have spent 6 years now in the 
substantive arena dealing with those kinds of laws I'd deal 
with as a district court judge.
    Senator Specter. The speech you made on the struggle for 
justice was of considerable interest to the staff and to the 
Committee, and you talk about fundamental fairness and human 
decency, and you comment that that is sometimes omitted for 
victims of crimes. Would you amplify what you meant by all 
    Judge Sharpe. Senator, as you see from the questionnaire I 
submitted to the Committee, as a prosecutor I advocated on a 
daily basis for victims of crime. I always felt that part of 
the function of prosecution was advocating on behalf of 
defendants, too. Most cases do not end up in trial, as I know 
you're aware, Senator. They end up with a plea. And, therefore, 
the essential fairness that's brought to the table in 
prosecution has to do with disposition, and it has to do with 
dealing with the human condition, both those who violate the 
law and those who suffer from those violations.
    I always had a special place in my heart for victims of 
crime because though there are now laws in places and various 
jurisdictions that give them the right to be heard over the 
trauma they've experienced as a result of crime, those kinds of 
laws were slow in coming. I was with the Department of Justice 
when Congress enacted many of those provisions in the mid-
1980's which added to United States Attorney's Office's victim 
advocates, where they would meet with victims and explain the 
court process to them, explain delays that might be engendered, 
explain the entire process.
    Those are things that were absent in this country for two 
centuries from the onset of our Constitution until very 
recently. And, therefore, that's been a special thought of 
    Senator Specter. Judge, let me ask you the question about 
interpreting versus making law. What assurances will you give 
to the Committee that in your judicial role you will interpret 
rather than make law?
    Judge Sharpe. Let me go to my sense of humor, if I may, 
Senator, and say to you I have no interest whatsoever in 
legislating. So there is my first commitment to the Committee, 
that I understand the constitutional process and I have an 
abiding respect for it.
    Senator Specter. I am going to ask both of you a final 
question, and I had intended to ask Attorney General Fisher 
this question but got deeply involved in the specific case 
which we were discussing. That is, Senator Thurmond, when I 
first joined this Committee, posed a question, and he said, 
``The more power a person has, the more courteous a person 
should be.'' And then he would ask the judicial nominees: ``Do 
you promise to be courteous?'' And I thought, ``What kind of a 
question is that? What do you expect judicial nominees to do 
except say, `Yes, I promise to be courteous.'''
    But after I thought about it, I concluded that that was 
really a very, very profound question that goes to some of what 
you have said, Judge Sharpe, and I have always propounded that 
question or tried to always propound it. So I ask you, Judge 
Fischer: Do you promise to be courteous?
    Judge Fischer. Thank you, Senator. I do.
    Senator Specter. Do you also promise to be ``courteous''?
    Judge Fischer. Yes, I do.
    Senator Specter. Judge Sharpe, do you promise to be both 
courteous and ``courteous''?
    Judge Sharpe. I do, Senator.
    Senator Specter. Well, I have had nominees say to me years 
after the hearing, ``I remember that question. I don't remember 
anything else, but I remember the Thurmond question.'' Strom 
was an extraordinary U.S. Senator, and I thought that question 
was very profound. So I want you to think about it on those 
days when you have got some lawyers before you--and you have 
both seen this--and they are off the mark, they are not 
prepared, they are late, or witnesses who ramble. Senator 
Thurmond expects you to be ``courteous.''
    Thank you both.
    Judge Fischer. Thank you, Senator.
    Judge Sharpe. Thank you, Senator.
    [Whereupon, at 1:01 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 


























                         DEPARTMENT OF JUSTICE


                      WEDNESDAY, NOVEMBER 12, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Mike DeWine 
    Present: Senators DeWine, Kennedy, and Schumer.

                         STATE OF OHIO

    Senator DeWine. Our meeting will come to order. Today we 
have the nomination of three Federal District Court Judges, as 
well as a nominee to be Director of the Bureau of Justice 
Assistance for the United States Department of Justice.
    I will dispense with any other proceeding, and we will 
start. We have three of my colleagues from the United States 
Senate who join with us, and I know they are extremely busy, 
and we will defer to them for their introductions of some of 
the nominees.
    Senator Bingaman, we will start with you.


    Senator Bingaman. Thank you very much, Mr. Chairman. I am 
here to join with Senator Domenici in support of Judith Herrera 
for our District Court Judgeship position in New Mexico.
    She is extremely well qualified. She was recommended by 
Senator Domenici to the President for this position, and she is 
well thought of in the bar. She has great experience as a trial 
lawyer, before that as a prosecutor. She served on our City 
Council in Santa Fe with great distinction, and she served on 
our Board of Regents at the University of New Mexico for a 
substantial period. She has strong bipartisan support, and I 
think it is a very good appointment, and I commend the 
President for the appointment and recommend that the Committee 
confirm her as quickly as possible.
    Senator DeWine. Senator Domenici, thank you for joining us.


    Senator Domenici. Thank you, Mr. Chairman. I thought that 
we were going to go according to seniority, which means Senator 
Kennedy should go next.
    Senator Kennedy. That is all right. I want to hear from 
you. I can never hear enough from you.
    Senator Domenici. I am only here only to give you three 
    Senator Domenici. Let me first say I think you know it is 
not unusual when a young lady like this comes to this city to 
have a hearing on this kind of an offer by the President that 
families would be excited and thrilled, and we have her with 
her, her husband, Mickey Baird; her children Andrew and 
Jennifer; and her parents, William and Corine Herrera; her 
sister and brother-in-law. I wonder if, Mr. Chairman, they 
might all stand together so you can see them and their 
enthusiasm in behalf--
    Senator DeWine. We welcome them to the Committee. Thank 
you, Senator, very much for introducing them.
    Senator Domenici. Mr. Chairman, Senator Bingaman has 
briefly outlined the qualifications of this women to be a 
member of our bench in New Mexico. We have a very good Federal 
bench in our State, and with the passage of each year and 
appointment of more judges, I believe we are just getting to be 
a more and more astute bar and more and more recognized. This 
nominee will do all of that justice.
    Her background is excellent. You surely do not want a 
Federal judge that has done only one thing as a member of the 
bar in her life. You want somebody with diversity of activity, 
somebody who has been both done something political, if 
possible, and tried lawsuits, and prosecuted if possible, along 
with many civil cases, and looking back on all those to find 
that the nominee has done all those things well. That is the 
case. All of those things she has done, and all of them she has 
done well.
    She is a graduate of Georgetown University Law Center and 
our University of New Mexico. She comes from the city of Santa 
Fe which means that another part of our State is represented 
from the standpoint of the people having a good feeling for the 
fairness of the Federal bar, and when you add all that up, all 
I can do is join Senator Bingaman in saying we would hope that 
the Committee would approve her quickly and we could get her to 
the floor before we go on recess, and send her on her way to be 
a judge.
    Thank you very much, Mr. Chairman.
    Senator DeWine. Senator Domenici, thank you very much for 
that very strong statement. We appreciate it very much.
    Senator Kennedy.


    Senator Kennedy. Thank you, Mr. Chairman. I appreciate the 
courtesy that you give us in letting us present our nominees 
before the Committee.
    It is a real privilege to present Dennis Saylor to the 
Committee and to recommend him to the Committee, the Senate, 
for the appointment to U.S. District Court for the District of 
    I also welcome his wife, Catherine Fiske, and I would ask 
if she would be good enough to stand? We thank you very much 
for being here today. She serves as an attorney for the 
Environment and Natural Resource Division of the Department of 
Justice in their Massachusetts office.
    Mr. Saylor comes well recommended by many lawyers in my 
State whose judgment I trust most. They are confident of his 
fairness, his legal mind, and feel he will be an effective 
judge in our District Court.
    Mr. Saylor has had past Government experience in the 
Executive Branch. I am confident he understands the importance 
of the independence of the Judicial Branch. Mr. Saylor is 
currently a partner of Goodwin Procter in Boston, and after 
graduating from Harvard Law School he joined the firm as an 
associate, and later served as an Assistant U.S. Attorney in 
Boston. From 1990 to 1993 he was the chief of staff for 
Assistant Attorney General Robert Mueller in the Criminal 
Division of the Department of Justice here in Washington, 
providing litigation and public policy advice, and acting as a 
liaison to Congress and to outside organizations.
    He returned to his law firm as a partner and currently 
works in white-collar criminal defense cases, other legal 
issues for individuals and corporations.
    In sum, Mr. Saylor's impressive credentials and legal 
experience supports his confirmation, inspires confidence that 
he will be a judge whom all of us in Massachusetts can be proud 
    The U.S. District Court in Massachusetts is one of the most 
efficient and effective District Courts in the country. Its 
members are dedicated and wise in the law. It is well run, and 
the judges take pride in their collegiality on and off the 
bench. It dispenses justice fairly and it takes its role as 
part of an independent branch of Government seriously.
    Mr. Chairman, I urge the Committee to approve this 
nomination. Perhaps at the end of the 30-hour extravaganza that 
opens this evening, he can join the ranks of the 168 judicial 
nominees the Senate has confirmed, since in this case the 
President has decided to pick a judge with the Senate, as the 
Constitution directs, rather than picking a fight with the 
Senate, as he has done with the 2 percent whom we have declined 
to endorse.
    I thank you, Chair.
    Senator DeWine. Senator Kennedy, thank you very much. We 
thank all three of you very much for a your very fine 
statements, and certainly the Committee will give great 
deference to those statements. We thank you very much.
    We turn to Senator Schumer for his introduction.


    Senator Schumer. Thank you, Mr. Chairman, and I appreciate 
your scheduling this hearing to consider the nomination of 
Sandra Townes to the Federal Court for the Eastern District of 
New York--that is my home district in Brooklyn--and for 
inviting me here to introduce her to the Committee.
    First I want to let the Committee know, and Sandra Townes 
know, that Senator Clinton would have been here as well, but 
she has a mark-up in the EPW Committee that she must attend, 
and she has asked me to convey her apologies to the Judge and 
to the Committee. She wishes to acknowledge her strong support 
for this nomination.
    Mr. Chairman, Judge Townes' family and friends also could 
not be here today, but I know how proud they must be of her 
    Coming here today to introduce Judge Townes is a particular 
pleasure for me because her nomination is an example of what 
happens when the process works right. We are filling every 
vacancy on New York's Federal Courts with nominees who have 
broad, bipartisan support. All of the relevant parties, the 
White House, Governor Pataki, Senator Clinton and myself, are 
not only comfortable supporting all of the judges we have put 
on New York's Federal bench, but we believe each of them will 
do the Nation a credit as members of the Judiciary. So the idea 
that we cannot get together, the idea that we cannot find 
comity, is I think just undone by the experience we have had in 
some of the States. All I had asked is that the White House and 
the Governor reach out and come talk to us ahead of time and 
come to agreement. I do not agree with the views of a good 
number of the judges we are supporting in New York, but I 
believe they are within the legal mainstream.
    Again, the idea that it has to be my way or the highway, 
which seems to be the subject of tonight's confirmation 
project, or tonight's talkathon, is just wrong, and what I am 
going to keep underscoring is that of 172 nominations, this 
Senate has approved 168. That does not indicate obstructionism. 
That does not indicate a failure to bend, and what the White 
House and the Majority are asking is, through whatever 
procedural mechanism, we approve every single one. That is not, 
in my judgment, not, not, not what the Founding Fathers 
    But I do not want to bring Judge Townes in under this 
discussion because she is an example of someone who should be a 
judge and who people in both parties in our State can agree.
    Let me tell you a little bit about her. She spent the first 
decade of her professional career as an Onondaga County 
prosecutor, where she held several supervisory positions. While 
in that office she was known for being both tough on crime, but 
fair to defendants. Since 1988, Judge Townes has held a series 
of ascending seats on New York's Court, rising recently to her 
current post on the New York Supreme Court, the Appellate 
Division, which is the second highest level of courts in New 
York State.
    As the Committee knows, I have three standards when I 
evaluate judicial candidates: excellence--the candidate should 
be legally excellent; moderation--I do not like judges too far 
right or too far left, because those types of judges tend to 
want to make law rather than interpret law; and diversity--I do 
not think the bench should all be white males. Judge Townes 
clears the bar easily on all three. She has a distinguished 
record of excellent judgment, of moderate thinking, and of 
course she will add diversity to the Eastern District Bench, 
where she will have the distinction of being only the second 
African-American jurist to serve.
    I am proud to support her nomination, proud to commend her 
to the Committee, and I look forward to her swift confirmation 
by the full Senate.
    Mr. Chairman, I would ask unanimous consent the Senator 
Leahy's entire statement be--
    Senator DeWine. That will be made part of the record.
    Senator Schumer. Thank you, Mr. Chairman.
    Senator DeWine. Senator Schumer, thank you very much for 
that very good and strong introduction.
    Let me invite the three nominees for the District Court to 
now come up, and if you will remain standing, I will swear you 
in. If you will raise your right hand, please.
    Do you swear the testimony you are about to give before the 
Committee will be the truth, the whole truth and nothing but 
the truth, so help you God?
    Ms. Herrera. I do.
    Mr. Saylor. I do.
    Justice Townes. I do.
    Senator DeWine. You may be seated. Let me welcome all three 
of you to the Committee. We appreciate you being here. This 
will be rather painless, I think. All three of you have been 
introduced to us by the Senators from your respective States. 
Each one of you has the opportunity now to make an opening 
statement or to introduce any other family members that have 
not been introduce.
    Justice Townes, why do we not start with you, and then we 
will just go right across the panel?


    Justice Townes. Well, I do not intend to make an opening 
statement, but I would like to thank Senator Schumer for the 
wonderful introduction. I would like to thank the President for 
nominating me. And I would like to thank this Committee for 
convening the confirmation process.
    I do have two children, Lauren Townes and James Townes, and 
unfortunately they were unable to be with me in person, but 
they are here in spirit, and they have assured me of that.
    Thank you.
    [The biographical information of Justice Townes follows:] 

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    Senator DeWine. Mr. Saylor?


    Mr. Saylor. Thank you, Mr. Chairman.
    Again, I do not wish to make an opening statement. I do 
want to thank Senator Kennedy for his very kind remarks and 
introduction. I want to thank President Bush for the honor that 
I received of this nomination, and thank the Committee for 
giving us this hearing today.
    I also want to say that I have three children, who are 10-, 
8- and 5-years-old, and they are back home in Massachusetts, I 
hope at elementary school, rather than here making trouble in 
the back of the room.
    Mr. Saylor. Thank you.
    [The biographical information of Mr. Saylor follows:] 

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    Senator DeWine. Ms. Herrera?


    Ms. Herrera. Thank you, Mr. Chairman. I also do not have an 
opening statement to make.
    But I would join the others in thanking the Committee for 
considering my nomination today, and I also want to thank 
Senator Domenici, Senator Bingaman, for their kind words and 
their words of encouragement, and President Bush for nominating 
me for this position.
    And I do want to thank my family for making the effort in 
traveling to Washington. I appreciate that very much. And I do 
want to recognize my two nieces who are here but weren't 
mentioned earlier, Monica and Katie Lewis.
    Senator DeWine. We welcome them.
    Ms. Herrera. Thank you, Mr. Chairman.
    [The biographical information of Ms. Herrera follows:] 

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    Senator DeWine. Thank you very much.
    Justice Townes, you have served on the bench at three 
different levels. I wonder if you could tell us what that 
experience has taught you that would help you to be a good 
Federal judge? Maybe another way of saying it is what have you 
learned not to do? What have you learned to do? What has that 
taught you?
    Justice Townes. Well, thank you, Mr. Chairman, for the 
opportunity to answer that question.
    I simply love the law, and I have been a judge now for 15 
years in various capacities. One thing that being a judge has 
taught me that I think will be helpful is how to listen and how 
to listen to everyone fairly and impartially before making any 
decision in the court.
    I've also learned how to negotiate and settle cases with 
attorneys. I learned how to be fair and impartial and to have a 
judicial, a good judicial temperament. I respect all of the 
litigants and the attorneys and the employees in my court, and 
I give them that respect, and I find that they give it in 
    I have learned how to manage cases and take care not to 
have backlogs as much as possible, because the courts where I 
have worked have been very, very busy courts also. I have 
learned many legal principles that I will also carry to the 
Federal Court. Although I have been a State Court Judge 
throughout my career until this period, many legal principles I 
will carry with me from the State, and in fact, as an Assistant 
District Attorney before I became a judge, I did work with some 
Assistant U.S. Attorneys in their preparation of cases, 
criminal cases that began or that occurred on military bases, 
with cases such as rape cases, and I did help them to prepare 
in order to try those cases. I have also taught trial practice 
at Syracuse University College of Law, and I use the Federal 
Rules there.
    So I think that the vast amount of experience that I've 
had, even as a teacher of high school students for 7 years 
before I became a lawyer, helped me in learning how to deal 
with people, how to supervise my employees. Thank you.
    Senator DeWine. Very good.
    Mr. Saylor, you have had the opportunity to observe judges 
over a long career. What have you learned not to do?
    Mr. Saylor. Thank you, Mr. Chairman. I certainly have 
learned the virtues, from the judicial standpoint, of patience, 
of constraint, of diligence. I think it's important for judges 
to be patient even when there are ample opportunities not to 
be, to be constrained and to be diligent to do the heavy work 
of the court, to make decisions and to move cases along either 
toward trial or toward settlement.
    I hope that answers your question, Mr. Chairman.
    Senator DeWine. Well, Mr. Saylor, you do not have to say 
names, but in all seriousness, you have to have been irritated 
by judges at one time or another. I was when I practiced law. I 
mean life is about learning. You usually learn when you see 
things you do not like, at least that is how I have learned, 
and I have learned by my own mistakes.
    Now, you have not had the opportunity to make mistakes as a 
judge because you have not been a judge. One of the advantages 
this Committee has, or when we as Senators try to help the 
President pick someone to be on the Federal Bench, when we are 
looking at a judge such as Justice Townes, we have a track 
record to look at. When we have someone who has not been on the 
bench, we do not have a track record. So it is kind of 
interesting to talk to someone and say, well, you have looked 
at a lot of judges, you practice law, you have tried cases. 
What is good? What is bad? What do you like? What do you not 
like? That way we can sort of get into your mind a little bit 
and try to understand.
    Mr. Saylor. Mr. Chairman, that is an excellent observation, 
and I guess I would answer it this way. My single greatest 
frustration as an attorney, as a practicing attorney with 
judges have been those who take too long in making decisions. I 
have often thought in my head, give me a good decision, give me 
a bad decision, just give me a decision so that we can move on. 
And judges are often overwhelmed, as I'm sure, Mr. Chairman, 
you're aware. The caseloads are very, very busy in many parts 
of our judicial system, and I'm not seeking to blame anyone, 
but that would be my single greatest frustration.
    Senator DeWine. Same question to you, Ms. Herrera.
    Ms. Herrera. Thank you, Mr. Chairman.
    I would say that my, one of my frustrations is not only 
that perhaps sometimes decisionmaking is a little longer than 
it should be, but I'd say what I want in judges is to know that 
I've been heard or that my client has been heard. So again, 
agree or disagree with our position, but it's important to me 
as a lawyer and to my clients as parties to the lawsuit, to 
feel that they've had a fair shake.
    Senator DeWine. You actually serve on a commission that is 
involved in the selection of judges. Tell me about that.
    Ms. Herrera. Yes, Mr. Chairman. I serve on what's called 
the Appellate Judges Nominating Commission in New Mexico, and 
it is a commission that reviews the applicants to either the 
Court of Appeals or the New Mexico Supreme Court, and makes 
recommendations to the Governor.
    Senator DeWine. And what do you look for? You have done 
that. What do you look for? What do you not like? What do you 
like? How do you sift through people?
    Ms. Herrera. Mr. Chairman, I look for people who are 
willing to work hard. I look for people who are fair-minded, 
who I also consider to be open-minded, who don't come to the 
court with an agenda, so to speak. I look for people who I 
consider to be well prepared for the court. In other words, 
they've practiced law in the trenches, so to speak. Those are--
and I look for integrity. I look for candidates who have 
displayed integrity and have high, well-regarded reputations.
    Senator DeWine. You find this a difficult job?
    Ms. Herrera. Selecting, making recommendations?
    Senator DeWine. Yes.
    Ms. Herrera. I find it an important job, Mr. Chairman, but 
we have been fortunate in New Mexico to have a very good pool 
of candidates.
    Senator DeWine. Justice Townes, let me ask you, and I will 
ask the other candidates too, and again you, from your own 
experience, the other candidates from their observation, tell 
me what your philosophy is in regard to the settlement of civil 
cases? How do you approach that issue? There is kind of--every 
judge, I assume, develops a philosophy of--not only a 
philosophy but a method of how you go about settling cases. 
Some spend a lot of time on settlement. Some do not spend a lot 
of time. Some say, ``Let us just try them.'' How do you deal 
with that?
    Justice Townes. Well, in New York we are required to have a 
preliminary conference. That is the first thing we do. And we 
sit and talk with the attorneys and determine what the real 
issues are, if there are any that can be settled, or whether 
there are all of them that can be settled. And I find that very 
often the attorneys want to judge to come in and listen to the 
facts and make recommendations.
    What I do is review the entire file before the attorneys 
appear before me so that I have familiarity with it. I give 
each of them an opportunity to talk to me about the case. And I 
will tell them what I would recommend. And if they accept that, 
fine. If they do not, I do believe that attorneys have the 
right to try their cases, and the fact that they don't settle 
when I think they should is not something that I would hold 
against them. But I do like to move cases and I do like--having 
prior experience, I'm able to point out certain problems that 
an attorney might have with his or her case, and make 
    Senator DeWine. Mr. Saylor, how do you envision, when you 
are a Federal Judge, how will you handle this? You have watched 
other judges. How are you going to do it?
    Mr. Saylor. Mr. Chairman, I certainly would not expect, if 
I'm fortunate enough to be confirmed, to be a judge who would 
not give someone a trial date because I think the case ought to 
be settled. I think people have a right to a trial and not 
every case can be so settled. In Massachusetts we're fortunate 
to have a deep pool of senior status judges who serve as 
mediators for settlement purposes. It's very effective. One of 
the advantages of that is the parties will be more open if 
they're in front of a judge who they are not going to try the 
case in front of. I would expect to make use of those retired 
judges, and generally speaking, do what I can within reasonable 
bounds to bring the parties together, and to mediate disputes 
where I think it's appropriate.
    Senator DeWine. Ms. Herrera?
    Ms. Herrera. Mr. Chairman, in New Mexico, in the Federal 
District Court there, every case is sent to a United States 
Magistrate Judge for a mandatory settlement conference, so 
every civil case is automatically sent for a settlement 
conference. So that has been an effective settlement tool. 
Many, many, many cases settle as a result of the mandatory 
settlement conferences, and the success has been so 
overwhelming that I of course would continue to use that 
    Senator DeWine. We talk a lot about judicial temperament. I 
do not know how you define it. I have never heard a good 
definition of it, but I will let you try. Ms. Herrera, how 
would you define that and how do you look at that as a 
component of being a judge?
    Ms. Herrera. Mr. Chairman, that's a very good question. I 
look at judicial temperament basically as the judge's 
opportunity to treat the attorneys and the litigants who appear 
in his or her courtroom in a respectful way. I see myself as a 
person who treats, in my practice of law, treat opposing 
counsel always with respect, and I find that I treat the 
opposing parties the same way also with respect. And I would--I 
am certain that if you saw fit to confirm me as a Federal 
Judge, I would continue and treat people with the same level of 
respect that I do currently, again, always with the idea in 
mind that I'm giving somebody a fair shake in hearing them.
    Senator DeWine. Mr. Saylor?
    Mr. Saylor. I would echo what Ms. Herrera said. I think 
it's important to be respectful, to be constrained, to be open-
minded certainly, not to come on the bench with any particular 
personal agenda, not to allow one's interests or one's ego to 
get in the forefront. To be patient certainly is an important 
piece of it, and generally to be constrained and respectful and 
to do the work of the court.
    Senator DeWine. Justice Townes?
    Justice Townes. Mr. Chairman, I believe that judicial 
temperament is one of the most important aspects of a judge. I 
believe that disrespect of the litigants or the attorneys or 
anyone else who comes before the court brings disrespect to the 
judicial process. Civility is very important to me, and the 
attorneys know it, and I am a person who requires that the 
attorneys are civil to one another also, and that the parties 
are civil to one another when they are before the Court. I just 
believe that this is very, very important, one of the most 
important aspects of a judge.
    Senator DeWine. Judge, many years ago I was a county 
prosecuting attorney, and one of the things that I always 
wanted a judge to enable me to do is to try my case. That 
sometimes means different things for different lawyers, and I 
suppose sometimes that means too much latitude in a courtroom. 
But I would like to ask each one of you how you approach that, 
for you, Justice Townes, and for the other two members of the 
panel, how you will approach that whole issue of how much 
latitude does a judge or do the litigants get. Sometimes there 
is a difference, I have noticed, in a trial court in a State 
court level and in the Federal Bench. Sometimes there is, 
sometimes there is not. But what is your general philosophy? 
How do you handle it now? How do you intend to handle that?
    Justice Townes. My general philosophy is that there are 
certain procedural rules which have to be obeyed, but as far as 
the handling of the case itself and the issues involved, I 
believe that attorneys should be allowed to try their cases. I 
think that they know what they want to do, what their clients 
expect of them. And as long as that is within the bounds of the 
rules of the court, then the attorneys try their cases in front 
of me, and I would continue to do that in Federal Court.
    Senator DeWine. Mr. Saylor?
    Mr. Saylor. Mr. Chairman, I too have tried many cases in 
Federal and State court, and would expect if I'm confirmed, not 
to be one of those judges that does get in the way of the 
lawyers trying the case. I think the judge needs to serve as an 
impartial referee or umpire, so to speak. There are rules of 
evidence and rules of procedure that need to be enforced 
scrupulously, but for the most part I think attorneys should be 
permitted to try their cases.
    I might be a little stricter with an Assistant U.S. 
Attorney and allow a little more latitude to criminal defense 
counsel in a close case, but beyond that I think attorneys all 
ought to be treated the same.
    Senator DeWine. Ms. Herrera?
    Ms. Herrera. Mr. Chairman, I too have tried many cases in 
State and Federal Court, and I do prefer that a judge let me 
try the case. So I expect I would be the type of judge that 
would allow the attorneys to try the case, certainly with 
regard to the rules of civil procedure and rules of evidence in 
mind. Thank you, Mr. Chairman.
    Senator DeWine. There is one boilerplate question that 
always gets asked in these proceedings, and we always know the 
answer, but we still have to ask the question, and that is 
following precedent. If you are selected to serve and the 
Senate confirms your nomination to serve on the Federal Bench, 
will you agree to follow the precedent of the Federal Courts? 
Justice Townes.
    Justice Townes. Mr. Chairman, I will certainly agree to 
follow precedent. I believe that the only way that citizens can 
have any faith in our Court is through the belief that everyone 
will be treated the same, and through precedent that will 
    Senator DeWine. Mr. Saylor.
    Mr. Saylor. Mr. Chairman, absolutely. It is the role of the 
District Court to follow the precedent of the United States 
Supreme Court and his or her circuit, and absolutely I will do 
    Senator DeWine. Ms. Herrera?
    Ms. Herrera. I absolutely, Mr. Chairman, would follow 
precedent, and agree with the comments made by the other panel 
    Senator DeWine. I want to thank you very much for being 
here. We will try to proceed with your nominations as quickly 
as possible. We will leave the record open for any additional 
written questions that any Senators may wish to submit to you 
so you may have some questions, you may not. We will see. If 
you do get written questions, I would ask you to try to respond 
to those written questions as quickly as you can. That will 
help us and it will also help you.
    Statements of Senators will be accepted into the record. I 
have an additional statement from Senator Clinton which will, 
without objection, be made a part of the record.
    So again, we thank you very much, and we appreciate you 
being here. You are excused. You are welcome to stay for the 
rest, or my suggestion would be you may want to relax and 
leave, but you are welcome to stay if you want to.
    Ms. Herrera. Thank you, Mr. Chairman.
    Mr. Saylor. Thank you.
    Justice Townes. Thank you.
    Senator DeWine. Thank you very much.
    We would ask Mr. Herraiz to come up now. Raise your right 
    Do you swear the testimony you are about to give the 
Committee will be the truth, the whole truth and nothing but 
the truth, so help you God?
    Mr. Herraiz. I do.
    Senator DeWine. Please be seated.


    Senator DeWine. I have a short introduction for you and 
then we will proceed.
    I am pleased to introduce today Mr. Domingo Herraiz, a 
native in my home State of Ohio, whom President Bush has 
nominated to be the Director of the Bureau of Justice 
    Since August of 2003 he has been the Deputy Director of 
programs for the Bureau of Justice Assistance in the Department 
of Justice. In this position he is responsible for overseeing a 
National Criminal Justice Grant portfolio of almost 18,000 
active grants involving over $9.6 billion that support State 
and local crime policies and programs.
    Mr. Herraiz comes to us with a long history of 
distinguished service, and I am proud to say that he received 
his college degree from Ohio University, has spent most of his 
career working on issues for the people of the State of Ohio.
    Prior to his current assignment he served for 3 years in 
Ohio Governor Bob Taft's cabinet as the Director of the Ohio 
Office of Criminal Justice Services. In this position he led 
Ohio's Criminal Justice Planning Agency as it administered over 
$30 million in State and Federal funding, conducted research 
and evaluations, and designed justice technologies systems and 
other initiatives for use at the local level. The Ohio Justice 
of Criminal Services Director, he also served on the Governor's 
Council on Juvenile Justice and the State of Ohio Security Task 
Force, addressing terrorism and homeland security issues within 
the State.
    Mr. Herraiz also has served as the Executive Director of 
the Ohio Crime Prevention Association, the largest crime 
prevention association in the country, and as the Director of 
the Ohio School Resource Officers.
    I would also like to welcome Mr. Herraiz's parents who are 
here today, Domingo and Tonia, who I know certainly are very 
proud of their son. If you could stand up please? Thank you 
very much for coming. We are very glad to see you here today. I 
know you are very proud of your son's accomplishments for not 
just the State of Ohio, but for our country, and we welcome 
    I wonder if you would like to introduce the rest of your 
family for us?


    Mr. Herraiz. Thank you, Mr. Chairman.
    Senator DeWine. I know your children are not here today, I 
    Mr. Herraiz. My wife Jamie, and my children, and I will 
name them for you. You have a big family, so I am sure you can 
appreciate this. My son Brendan, who is in college; my 
daughters Megan and Genna, in high school; and my daughter 
Madison who's in elementary school; and my son Manuel who is 2-
years-old, are home with their mother, going to school and 
tending to those duties.
    Senator DeWine. We miss them. Give them our very best 
    Mr. Herraiz. Thank you.
    [The biographical information of Mr. Herraiz follows:] 

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    Senator DeWine. We thank you very much for joining us. You 
have a wonderful background for this position. As you know, I 
had the opportunity for a number of years when I was Lieutenant 
Governor of the State of Ohio to oversee the Office of Criminal 
Justice Services. I am very familiar with what that job 
entails. So we are just glad to have you with us and we invite 
you to give an opening statement or make any comments that you 
would wish.
    Mr. Herraiz. Thank you, Mr. Chairman. I would first like to 
thank you as the Chair of the Committee and Senator from Ohio 
for introducing me today and giving me this opportunity; thank 
the President for offering the nomination; the Attorney General 
for supporting that nomination; my immediate family who is home 
for their commitment and support to my passion of public 
service, allowing that to happen; and my parents, and 
particularly my father, who it's his drive and being a retired 
firefighter that drove me into public service, and my mother 
for her support, faith and strong work ethic that carried me 
along the way.
    Senator DeWine. What do you feel are the biggest challenges 
that you will face in this new position? It is a broad 
question, but just kind of give us the overview of what you 
will be facing.
    Mr. Herraiz. Mr. Chairman, my experience, as you have 
mentioned, comes from a local level in the sense of running a 
nonprofit organization. I potentially am the first Director, or 
could be if I am fortunate enough to receive the Senate's 
confirmation, the first Director of BJA who actually served as 
a local grantee of Federal funds, and administered them at the 
State level, from pass-through from Federal dollars, and then 
certainly would do that pass-through to the State dollars into 
localities at the Federal level.
    In that regard I have seen the system at all levels and can 
say that the communication is probably the most important 
piece, that many laws change, different rules, different 
processes, in particular different appropriation levels year to 
year, the--our advantage to try to communicate that information 
back to the States and to the localities so that they're 
constantly informed of what's happening on the agenda that 
affects them on a daily basis. I think equally important in 
that communication is to be able to move the funds. Once 
Congress has appropriated the funds, it's imperative that the 
agency distribute those funds quickly. It's most important that 
they go to use at the local level.
    As part of that we do not need to create additional 
bureaucracy and additional rules in our agency that would 
inhibit local grantees from applying for those funds. So being 
able to communicate and streamline the process is extremely 
    Senator DeWine. I know while at the Ohio Criminal Justice 
Services you were responsible for funding mental health courts, 
drug courts, dual-diagnosis courts. How did you find these 
courts affecting the overall administration of justice at the 
local level, and what Federal funding sources did you find most 
useful for these programs?
    Mr. Herraiz. Mr. Chairman, I appreciate the question. 
Again, my opportunities at the State level, we did fund drug 
courts, mental health courts, problem-solving courts including 
domestic violence courts, reentry courts, et cetera. The 
experience showed great value with creating specialty dockets 
as well as intensive case management at the local level. The 
greatest concern we have is we continue to see the crime rate 
drop to its lowest in 30 years. We still have individuals who 
are incarcerated and as they re-enter back into society, and 
what we can do to make sure that that continues so we don't see 
repeat victimization, if you will, repeat offending.
    In regards to the actual process for systems like drug 
courts and specialty courts such as mental health courts, what 
we have seen is primarily through funding through the Byrne 
program, and several initiatives in Ohio have received the 
Federal funds available that you made available, and seen great 
benefit at the local level. They have been able to create 
intensive focus on that issue and education for judges and case 
workers so that we can prevent them from continuing in the 
    Senator DeWine. I know that you also worked on Ohio's 
Justice Information Network, which allows Ohio's Criminal 
Justice Systems to really communicate with each other. Indeed, 
this system provides information directly to police officers on 
the front line in their police cruisers. Can this model be 
replicated, do you think, at the Federal level, and what 
Federal funding assisted in creating this network?
    Mr. Herraiz. Mr. Chairman, we were able to use the--in 
Ohio, in the experience at Criminal Justice Agency and the Ohio 
Justice Information Network, we utilized the CEDA funds and the 
National Criminal History Improvement Program funds, the NCHIP 
funds, in order to make this happen. Those funds--and in 
addition, some Byrne funds. Those funds were essential. Prior 
to the creation of those funding sources, law enforcement were 
not communicating. What we have found in Ohio is to be able to 
take, even in disparate systems and coming from a State where 
we believe in strong and local control, having local police 
departments records management systems, and local courts having 
their court management systems communicate together, so that 
truly when an officer needs to know information, they have it 
at their fingertips, and it's important not to develop just the 
sharing of information--and technology today gives us that 
opportunity--without creating a separate database, but to 
connect disparate systems. And so an extreme utilization of 
very precious resources so that those officers, from a public 
safety perspective, would know everything they needed to know 
about a suspect as they pulled them over in the cruiser or 
responded to a call for service.
    Senator DeWine. You worked on Ohio's Victims of Violent 
Crime Advisory Board. Victims' rights are certainly important. 
What insights can you share from your work on that board and 
what can we do more at the Federal level that we are not 
already doing? What do we do to focus more, for example, on 
domestic violence?
    Mr. Herraiz. Mr. Chairman, as you know, the domestic 
violence issue continues to remain an important crime concern 
in our society today, even though as I referenced the 30-year 
reduction in crime. The greatest concern that we must have as 
well is the perception of crime. Now, the perception of crime 
for our senior citizens still is of a great concern. We need to 
look at, from a domestic violence perspective, that citizens 
themselves are educated on what their options are and how we 
can break that cycle of violence and prevent it from happening 
in the future. Various treatment and education programs that 
exist, creating more funding for domestic violence shelters 
throughout the country so that these folks have a safe haven, a 
safe place to go, which has happened through various pieces of 
Federal legislation, and at the same time look at victims in a 
very positive light, and understanding their value in an equal 
part of the criminal justice system.
    Senator DeWine. You also worked on Ohio's Guidebook to 
Community Policing. Do you want to discuss what conclusions you 
can draw about community policing versus what we call the 
traditional model? And what role does the Federal Government 
play or should play in such programs?
    Mr. Herraiz. Mr. Chairman, the Federal Government has 
played a wonderful role in community policing, and has 
stimulated it back into the State system as well as to the 
localities. The experience in Ohio has been we have seen growth 
through education and training efforts of community policing 
initiatives where we see the law enforcement officers gaining a 
partnership, empowering citizens, mobilizing community, and 
really enlisting their support in every-day public safety 
concerns. That certainly will have positive ramifications in 
the future for us, whether it's every-day public safety issues 
or homeland security issues that we may face in the future.
    Senator DeWine. You worked on a multi-agency collaboration 
to develop a strategic plan to integrate services for homeland 
security. What did you learn from this and how does that apply 
to what we are doing here in Washington, and really what can we 
do to ensure that the money we spend on homeland security goes 
to where it is most needed?
    Mr. Herraiz. Mr. Chairman, the initiative in Ohio was 
directed by Governor Taft at the time, knowing that there were 
five separate agencies, including my own at Criminal Justice 
Services, that would receive funds from the Federal Government 
for homeland security. What became apparent is we must share 
information, number one. We must prevent duplication, and 
coordinate and collaborate on our activities. So it required, 
from that strategic planning process, for each of the directors 
of those five agencies to sit down together and make sure that 
we didn't duplicate our efforts on what we were funding in 
utilizing those Federal resources.
    I would believe that the same thing has to be done here in 
Washington. In my own department that I currently serve within 
the Bureau of Justice Assistance, that we continue on the 
efforts to communicate with the Homeland Security and with the 
Department of Justice and other players in this field.
    Senator DeWine. Mr. Herraiz, I cannot tell you how happy I 
am that you have been nominated by the President for this 
position. To have someone who not only has had Federal 
experience, but to me more important, or at least equally 
important is that you have had such extensive experience at the 
local level, State level, dealing with the exact area you are 
going to be dealing with here in Washington. In other words, 
you understand that what you are doing here, how it is going to 
really play out back in Ohio and Indiana and California and New 
York, and all the States. And as anybody listening could tell 
by the questions I asked, you have been involved in so many 
different things. I know my own experience with the Office of 
Criminal Justice Services, that office is involved in so much 
planning and has its fingers in so many different aspects of 
law enforcement in the State of Ohio, that you just have a 
wealth of knowledge and experience of coordination in regard to 
law enforcement.
    Law enforcement, one of the keys to law enforcement I think 
is better coordination, and everyone today in regard to the 
aftermath of September 11th is talking about we have to have 
better coordination. But that has been a problem, that has been 
a challenge for us for years and years and years, with all our 
different jurisdictions. A State like Ohio, and there are many 
States like ours, we have so many different jurisdictions. And 
it is not just the State and the Federal and the local, it is 
all the other jurisdictions that we have. So you bring the 
ability I think to really understand that, and so you are just 
perfectly fitted I think for this position, and I am just 
delighted that the President has made this decision.
    Mr. Herraiz. Thank you, Mr. Chairman.
    Senator DeWine. We hope to act on your nomination very 
quickly. We appreciate you being here. This will conclude our 
hearing today. Thank you very much.
    [Whereupon, at 10:24 a.m., the Committee adjourned.]
    [Questions and answers and submissions for the record 






































                      WEDNESDAY, NOVEMBER 19, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:41 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions 
    Present: Senators Sessions, Chambliss, Kennedy, Feingold, 
and Schumer.
    Senator Sessions. Good afternoon. We are delighted to have 
you with us, and we are glad to see these Senators here with 
some opinions to share with us. We appreciate them and know 
their schedule is very short.
    Senator Schumer, did you have something you wanted to say? 
I know you have a tight schedule also.


    Senator Schumer. Thank you, Mr. Chairman. I would ask that 
my entire statement be read into the record. I have a nominee 
here as well.
    Senator Sessions. Without objection, it will be made part 
of the record.
    Senator Schumer. Thank you.
    First, I thank you for holding this hearing. We have in 
this room Senator Sessions of Alabama, Senator Shelby of 
Alabama, Senator Allen of Virginia, Senator Lott of 
Mississippi, Senator Cochran of Mississippi, and Senator 
Schumer of New York. Which one doesn't belong?
    Senator Schumer. Anyway--
    Senator Sessions. It is a big country.
    Senator Schumer. God bless America, and I mean that with 
every atom of my body.
    In any case, Mr. Chairman, I want to thank you for 
scheduling the nomination of Ken Karas to the Federal Court for 
the Southern District of New York and for allowing me to 
introduce the nominee as well.
    Senator Clinton would have been here, too, but she asked me 
to convey her apologies to the judge and to convey to the 
Committee her strong support of the nomination.
    Mr. Karas' wife, Frances, couldn't be here today either, 
for a very good reason. She just gave birth to their second 
child last week. So Jackson John joins Nate as the second son 
in the Karas brood. Everyone is healthy, and I want to 
congratulate Ken, wherever you are, on the very good news.
    Coming here today to introduce Mr. Karas is a particular 
pleasure for me because his nomination is an example of what 
happens when the process works right. In New York, we are 
filling every single vacancy, agreement between the White 
House, Chuck Schumer, Senator Clinton, Governor Pataki. It is 
bipartisan. The nominees, every one of them, I believe, will 
make us proud, and it is an example how, when we talk to one 
another and work with one another, we can make this process 
    The Committee is familiar with Ken's resume, so I will 
touch just on a couple of highlights. He came to New York for 
law school at Columbia after graduating magna cum laude as an 
undergraduate. After law school, he clerked for Judge Reena 
Raggi, who was then on the Eastern District bench, and who we 
recently elevated to the Second Circuit. If all goes well here, 
she will be affirming her former clerk's opinions for many 
years to come.
    After his clerkship, Ken joined the U.S. Attorney's Office 
for the Southern District of New York, and he has been there 
ever since. And to all of my colleagues, we all care about 
terrorism. Ken Karas has worked on some of the most difficult 
and sensitive terrorism investigations, and he has 
distinguished himself as one of the finest attorneys in perhaps 
the finest prosecutor's office in the Nation.
    I have three criteria, as you know, Mr. Chairman, in 
selecting judicial nominees: legal excellence, moderation--not 
too far right, not too far left--and diversity. The nominees we 
have put forward for New York meet these criteria. I am proud 
to support Ken's nomination, and I look forward to his swift 
confirmation by the full Senate.
    And I would just ask unanimous consent that my entire 
statement be read in the record. I wanted to hurry in deference 
to my colleagues.
    Senator Sessions. Thank you very much, Senator Schumer, and 
we appreciate that.
    I see the Senators from Mississippi, and I know Senator 
Shelby and I were happy with our two nominees that came out of 
Mississippi, Judge Pickering and Bill Pryor, as were our 
Democratic Governors and local office holders, but apparently 
that was not enough to get those through. But let's just start, 
and traditionally we do the circuit court remarks first, 
Senator Allen, so if you would like to make remarks on your 
nominee that you are here to support, we would be glad to hear 
that, and we will go in the order here.


    Senator Allen. Thank you, Mr. Chairman. I very much 
appreciate that and that of the Committee. I am pleased to 
support and introduce to you all the nomination of William 
James Haynes II, otherwise known as Jim Haynes, to serve on the 
United States Fourth Circuit Court of Appeals. I am pleased 
that Mr. Haynes has recently moved to Virginia, a place where 
he has been working for many years, whether at General Dynamics 
or at the Pentagon. We are very proud as Virginians to have him 
potentially, as quickly as this Committee and the Senate can 
work, serving on the Fourth Circuit Court of Appeals.
    I have interviewed Mr. Haynes, along with my colleague, 
Senator Warner, and I have found him to be a man of quality 
character. He has unique experience in the law as well as a 
proper judicial philosophy. He probably got some of that when 
he was actually working for now our Vice President--he was then 
Secretary of the Army--working in the Pentagon where the proper 
role of a judge is to apply the law, not to invent it.
    Mr. Haynes' nomination is to the Fourth Circuit, which has 
been declared a judicial emergency situation by the National 
Judicial Conference, so I would hope that proper expedition 
could be involved in this determination.
    I think, Mr. Chairman, when the Committee reviews Mr. 
Haynes' nomination, they will find him very well qualified with 
the requisite demeanor, the integrity, and proper respect of 
the role of the judiciary. He is currently the chief legal 
officer for the Department of Defense, a position to which 
President Bush nominated him, and the Senate unanimously 
confirmed him in 2001. I would suggest that some of his 
experience and his expertise understanding national security 
matters and concerns in these post-9/11 days will provide the 
Fourth Circuit with his valuable insight on cases that may 
involve security or the military. And the Fourth Circuit, of 
course, includes Norfolk, which is the largest naval base, as 
well as Charleston, Wilmington, and other important military 
    You will see all of his experience working as general 
counsel through the years with General Dynamics, a Virginia-
based company that is a leader not just in defense but also 
technology business sectors.
    He did serve and was confirmed in the Senate in 1990 as 
general counsel for the Department of the Army. He did serve in 
our armed forces from 1984 to 1989 as a captain in the United 
States Army and was awarded the Meritorious Service Medal in 
1987 and 1989. In 1992, Mr. Haynes received the Meritorious 
Civilian Service Medal from the Department of the Army, and in 
2003 received the Distinguished Public Service Award from the 
Department of the Navy.
    He attended Davidson College on an Army ROTC scholarship 
and received his law degree from Harvard Law School. He 
probably could not get into the University of Virginia, so he 
had to go there.
    Senator Allen. Unlike one of the other nominees here.
    Following his graduation, he did work for a U.S. district 
court judge, James McMillan, in the Western District of North 
Carolina. He has an impressive record, volunteering as a 
consultant for the Mercy Corps International, which is a 
humanitarian relief organization. He also was a high school 
State wrestling champion and obtained the rank of Eagle Scout 
as well. So it is a long history of outstanding service.
    I would like to take a moment also to see the wonderful 
family he has with him: his bride, Meg Campbell Haynes; his 
son, Will, who is 16 years old; daughter, Sarah, who is 14 
years old; and son, Taylor, 12 years old. And they are just a 
wonderful family. And also in support here of Mr. Haynes is 
Jack Marsh, the former Member of Congress from Winchester, 
Virginia, and the longest-serving United States Secretary of 
the Army; and Jim Whittinghill that many of us know, who once 
worked for Leader Dole, currently with the American Trucking 
Association, also in support of Mr. Haynes.
    So, Mr. Chairman and members of the Committee, thank you 
for giving me the opportunity to present to you this 
outstanding nominee. I am sure upon your examination you will 
want to move as quickly as possible to get him working on the 
Fourth Circuit Court of Appeals.
    I thank you for your courtesies, and I know my colleague, 
Senator Warner, will be here directly and shares my sentiments 
as well.
    Senator Sessions. Thank you, Senator Allen. We appreciate 
those comments, and your affirmation and that of Senator 
Warner's are important to us. And we also appreciate your 
commitment to the rule of law, as your Virginia heritage would 
call on you to do. You have been a champion of fair and 
appropriate interpretation of laws and the Constitution.
    Senator Cochran, I would be glad to call on you.


    Senator Cochran. Thank you very much, Mr. Chairman. I want 
to thank you first of all for the prompt consideration of the 
nomination of Judge Louis Guirola, Jr. I am very pleased the 
President nominated Judge Guirola to serve as United States 
district judge. I am also pleased that his wife, Stephanie, is 
able to be here with him today. Their three children are back 
in Mississippi because of the requirements of school.
    I believe Judge Guirola is very well qualified for this 
important new responsibility. He has been serving as a United 
States magistrate judge since 1993. He has served both in the 
Western District of Texas and in the Southern District of 
Mississippi. He has been a superb judge. The lawyers respect 
him enormously because he is fair, he is competent, he is 
diligent. You can count on him to try to do the right thing in 
every case. You could not ask for a more dependably intelligent 
and insightful judge if you had to try a case in Federal court.
    Judge Guirola has served, right after he got out of 
college, as a narcotics agent with the Mississippi Bureau of 
Narcotics. He then went to law school. He became an Assistant 
District Attorney in Jackson County, Mississippi. He has 
experience in private law practice as well. He served as an 
attorney for the Jackson County Board of Supervisors. He also 
served as the attorney for the State Port Authority on the Gulf 
Coast. He has served as an Assistant U.S. Attorney in Texas.
    There is no doubt in my mind that Judge Guirola will be an 
outstanding district court judge. He has had a broad range of 
experience in real life as a lawyer. I hope the Committee will 
favorably report his nomination to the Senate.
    Senator Sessions. Thank you, Senator Cochran. We value your 
comments very highly.
    Senator Lott?


    Senator Lott. Thank you, Mr. Chairman, and I, too, want to 
thank the Committee for expediting this hearing of Judge Louis 
Guirola, Jr. It is a pleasure to be here in support of his 
nomination to be confirmed for the Southern Federal District 
Court in Mississippi.
    I do not want to repeat everything that my senior colleague 
from Mississippi has just said, so let me ask that my prepared 
statement be made a part of the record at this time.
    Senator Sessions. It will be made a part of the record.
    [The prepared statement of Senator Lott appears as a 
submission for the record.]
    Senator Lott. I do want to note that Judge Guirola is being 
nominated to fill the seat on the bench currently held by Judge 
Walter J. Gex when he takes senior status in March 2004. It is 
encouraging to see firsthand the implementation of this new 
process which aims to fill Federal court seats before they are 
vacated in order to guarantee the smooth operation of our 
Federal justice system. So I am pleased that we were able to 
work with the President to make this selection and that the 
Committee is acting on his nomination expeditiously and that he 
will be ready to take that position when Judge Gex takes senior 
    I am really pleased with this selection. This nominee has 
lived the American dream. His parents immigrated to the United 
States from Cuba. He was born in this country and was educated 
in our public school system in Mississippi, graduated from 
undergraduate school at William Carey College in Hattiesburg, 
and then received his degree from the University of Mississippi 
Law School. He has got broad and varied experience. Senator 
Cochran mentioned some of the things that he has done since he 
finished college and law school.
    But I first came to know him I guess over 20 years ago 
where he was in my hometown of Pascagoula, Mississippi, and 
served as assistant district attorney. Then he was an attorney 
in private practice and attorney for my home county Board of 
Supervisors and an attorney for the Mississippi Highway 
    I remember back in those days that I was impressed with 
him, and I remember a conversation--I am not even sure he will 
remember--oh, 10 or 15 years ago when he indicated that he 
would just be so honored to ever be able to be considered for 
the Federal judiciary. And we talked about that because--a lot 
of people don't think about it 10, 20 years down the road, and 
I urged him to do everything he could to get the proper 
credentials and get all the experience he could. I don't know 
if that influenced him, but I do know that he went on to Texas 
where he served as the Assistant U.S. Attorney for the Eastern 
District of Texas in 1990. He became U.S. magistrate judge for 
the Western District of Texas in 1993. He returned to 
Mississippi in 1996 to become a U.S. magistrate judge for the 
Southern District of Mississippi, the position he currently 
    Last Friday, at 2 o'clock, just barely, I was able to get 
to Gulfport, Mississippi, where we had the ribbon cutting of 
the new Judge Dan Russell, Jr., Federal Courthouse, a beautiful 
temple of justice, as it was called. So I had occasion to see 
the chief judge, an outstanding judge from Texas of the Fifth 
Circuit. Judge King, a lady that has tremendous experience, 
gave an eloquent speech on the occasion. All the Federal 
district judges were there. The U.S. Attorneys and marshals and 
clerks, they were all there, and they were all so excited about 
this nominee.
    So it is no surprise that he was selected with his 
qualifications. He has been rated well qualified by the ABA. 
And I am thrilled to see a man of this caliber, of this 
character, of this experience, and with this background to be 
selected to be a Federal judge in Mississippi. And I, too, join 
in welcoming his wife, Stephanie, here. This is really a happy 
day for the State of Mississippi.
    Thank you for this time.
    Senator Sessions. Thank you very much, Senator Lott, and 
give my best to Judge Gex. I remember we came along about the 
same time, and I flunked and he passed.
    Senator Sessions. I get the consolation prize to now review 
    Senator Shelby, it is a delight to have you here, and thank 
you for your commitment to law. As a practicing lawyer 
yourself, I know your high standards for the judiciary, and I 
know you will be real pleased and honored at this time to 
introduce the next nominee.


    Senator Shelby. Senator Sessions, I appreciate your 
chairing this Committee, but I have to say something. You did 
not get the consolation prize. We won in the Senate when you 
became a U.S. Senator instead of a district judge. And we have 
talked about that many times. But the fact you are chairing 
this hearing today is very important not only to us but to the 
population of Alabama.
    Mr. Chairman, I appreciate the opportunity today to appear 
here on behalf of Virginia Hopkins, who is here, who is 
President Bush's nominee, as you well know--you have talked 
with her, interviewed her--for the Northern District slot in 
Alabama. I believe Virginia is eminently qualified. She is a 
graduate of the University of Alabama with honors, Phi Beta 
Kappa, Virginia Law School, as Senator Allen said. He is a 
classmate, I believe, or was in law school with both of them, 
and he said, ``Say something about the University of 
Virginia.'' He was going to stick around.
    She is active in her community, but she has had a good 
record as a skilled attorney. She has a great family. Her 
mother is with her, Mrs. Emerson, here today; her husband, 
Chris; and her two sons, Richard and Thomas; as well as her 
    But, more importantly, Mr. Chairman, Virginia Hopkins is a 
woman of the law. She understands and respects the 
constitutional role of the judiciary, and specifically the role 
of the Federal courts in our legal system. I am confident, Mr. 
Chairman, that she will serve honorably and apply the law with 
impartiality and fairness and, thus, support her confirmation 
here without any reservation.
    Mr. Chairman, I would like, if I could, for my full 
statement to be made part of the record on her behalf here, and 
I hope that you and the other members of the Judiciary 
Committee will report her nomination favorably to the full 
Senate as expeditiously as possible.
    Senator Sessions. Thank you, Senator Shelby. We appreciate 
those remarks. Your full remarks will be made a part of the 
record, and we thank you for your time in sharing those with 
    Senator Shelby. And I would have, Mr. Chairman, said 
something about Senator Kennedy, but he just got in. So I will 
be respectful and say we are glad to be before your Committee, 
a Committee that you chaired for many, many years.
    Senator Sessions. We have had a little competition between 
Harvard and the University of Virginia, but, otherwise, we are 
getting along pretty well here.
    Senator Shelby. George Allen left, Senator Kennedy, and you 
are here. So you might win in his absence.
    [The prepared statement of Senator Shelby appears as a 
submission for the record.]
    Senator Sessions. Is there anything else? If not, then we 
will bring the nominees forward.
    Senator Kennedy, I know we have brought circuit judges up 
first, and then we could bring them all up as a panel. I 
thought we might bring them up as a group, but if you would 
prefer to have the circuit judge first, Judge Haynes, we could 
do that.
    Senator Kennedy. Mr. Chairman, whatever way you would like 
to proceed. I have some questions.
    Senator Sessions. All right. Maybe we could ask all the 
nominees to step forward, please, and we will proceed as a 
group. If you would raise your right hand, please, and take 
this oath. Do you swear that the testimony you are about to 
give before the Committee will be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Mr. Haynes. I do.
    Judge Guirola. I do.
    Ms. Hopkins. I do.
    Mr. Karas. I do.
    Senator Sessions. Thank you. If you will take a seat.


    Senator Sessions. I would like to share a few comments 
about Virginia Hopkins. I am very, very proud of her 
nomination. Senator Shelby has vouched for her excellent legal 
abilities and temperament and integrity, and that is something 
I certainly share. She graduated from the University of Alabama 
in 1974 and from the University of Virginia Law School in 1977. 
She was an associate with one of Alabama's great firms, Lange 
Simpson, for a time, where she specialized in civil practice, 
appellate matters, tax and estate planning, and so forth. She 
then joined the firm of Taft, Stettinius and Hollister here in 
Washington, D.C., and she established the firm's intellectual 
property practice and handled some complicated and important 
trademark matters there.
    In 1991, she and her husband made a great decision. They 
decided to return home to Alabama, to Anniston, and work at the 
firm of Campbell and Hopkins, where she is a partner. And over 
the past 12 years there, she has developed a broad civil 
practice, including litigation, tax, estate planning, business 
dispute resolution and planning, and intellectual property 
cases. She has a number of career academic and professional 
achievements, and her experience will be an asset to the 
Northern District bench.
    I would just note that Virginia Hopkins has demonstrated 
her commitment to her community by volunteering time at her 
church and her library and at the United Way for East Central 
Alabama. I think she has the integrity, the commitment to 
justice, and the kind of disposition and intelligence that will 
make a great Federal judge.
    All right. Let's see. Let me call on each of you, and I 
will begin with you, Mr. Haynes, if you would have any opening 
statement or would like to introduce any family members you 
have here with you today.


    Mr. Haynes. Thank you, Senator Sessions. Senator Allen was 
kind enough to introduce my family, but I would like to do it 
again because I am really happy they are here: my wife, Meg 
Campbell Haynes; my oldest son, Will; my daughter, Sarah; and 
my younger son, Taylor. We are happy to be here.
    Senator Sessions. Well, that is great. We are delighted to 
have you here and share in this special day.
    [The biographical information of Mr. Haynes follows.] 

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    Senator Sessions. Judge Guirola?


    Judge Guirola. Thank you, Mr. Chairman.
    I have with me today as my support my wife of 21 years, 
Stephanie. Unfortunately, our three daughters could not be with 
us today. They could not get out of school to come be with us 
today. But I also have two of my staff attorneys with me that 
really wanted to see the process and were kind enough to come 
on their own dime to be with me: Terri Brown and Amanda 
Hartman. They work in my office as well.
    Thank you.
    Senator Sessions. We are glad to have them here.
    [The biographical information of Judge Guirola follows.] 

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    Senator Sessions. Virginia?


    Ms. Hopkins. Thank you, Senator Sessions, and I appreciate 
your kind remarks and the remarks of Senator Shelby in 
introducing me to this Committee.
    I would like to introduce my family, and I have several 
friends here as well from my Washington days: my mother, 
Eleanor Emerson; my husband, Chris Hopkins; my son, Thomas 
Hopkins; my son, Richard Hopkins; my brother-in-law, Robert 
Hopkins; my husband's aunt and uncle, Suzanne and Albert Ahern; 
my first cousin and her husband, Ambassador and Mrs. james A. 
Williams; my former partner and mentor, along with Robert Taft, 
at the firm Taft, Stettinius and Hollister, Randolph J. Stayin; 
Ruth Oyen, who was our office manager at that firm; also, a 
family friend, Sharon Greenfield.
    I believe that is everyone.
    Senator Sessions. Good.
    [The biographical information Ms. Hopkins follows.] 

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    Senator Sessions. All right. Let's see. I have a few 
questions--oh, I have forgotten Mr. Karas. Excuse me. Do you 
have remarks or family you would like to introduce?


    Mr. Karas. Thank you, Mr. Chairman. I would like to 
introduce some family and also I have some friends here this 
    As Senator Schumer mentioned, my wife is unable to be here. 
She is home caring for our 5-day-old son and our 20-month-old 
son. They are here, of course, in spirit, and I very much 
appreciate that.
    Joining me here this afternoon is my cousin, Barbara 
Campbell Potter, and her husband, Patrick Potter.
    Flying in all the way from Chicago is a lifelong friend of 
mine, Lenny Gail, and his wife, Robin Steans Gail, and their 
beautiful daughters, Jessica and Lea and Sydney.
    Some friends from college, Ted Gistaro and his wife, Teni; 
Lloyd Horwich; Paul Bock; also Erik Jaffe, another lifelong 
    Some colleagues of mine: Rob Spencer, Dave Novak, and Aaron 
Zebley and Jim Fitzgerald I think are here.
    Thank you, Mr. Chairman.
    [The biographical information Mr. Karas follows.] 

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    Senator Sessions. Well, thank you very much.
    Mr. Haynes, I would direct some questions to you and some 
discussion with you. Of course, the court of appeals is the 
intermediate appellate court, one step below the Supreme Court. 
We have 11 of those circuits today, and they are very, very 
important to the smooth functioning of the legal system in 
America. As the courts grow larger, it is sometimes difficult 
to maintain harmony and speak with a clear voice. As the 
circuits get larger, we find there are problems with that.
    But how do you feel your experience as a general counsel 
for large Government and corporate entities and your background 
will help you be effective on this court?
    Mr. Haynes. Senator, thank you. I agree that is a very 
important question. The proper functioning of the judiciary is 
integral to the proper operation of our Government at large, 
and the ability of judges on any particular court to work 
together is very important. It is also, I think, very important 
to have a broad range of experience, and I hope, if confirmed, 
to be able to contribute some of my experience to the 
deliberations of the Fourth Circuit Court of Appeals.
    I have served in very many different legal jobs, beginning 
as a law clerk at the trial level of this circuit for one of my 
heroes, Jim McMillan, who died a few years ago. I have served 
in the military as a lawyer. I have served, as you point out, 
as a general counsel for large Government organizations, most 
recently as general counsel of the Department of Defense, where 
I am responsible in one way or another for the delivery of the 
legal services of almost 7,000 lawyers all around the world on 
every conceivable topic.
    I have also been privileged to serve in a private law firm 
and in the corporate world. In the private firm, of course, I 
have represented clients ranging from corporations to 
individuals in matters ranging from environmental law to 
Government contracts, in both civil and criminal fields, and 
perhaps most important, in another context, in the pro bono 
world. As I hope my experience reflects, public service is very 
important to me, and service in that area also very important.
    One of the most rewarding things I have ever done was in 
between my time as the associate general counsel at General 
Dynamics Corporation, before returning back to my law firm, 
Jenner and Block here in Washington, I went to Kazakhstan in 
Central Asia for 3 months, working for an outfit called Mercy 
Corps International in a part of the world I had never visited, 
working to help them in what is called micro credit or micro 
finance. It is a concept developed in Bangladesh originally, 
and the idea is that one helps people understand the market 
system and how to make their own way in the world by loaning 
them money, teaching them how to use it, and make a profit come 
    So because of my experience, I hope, if confirmed, to be 
able to provide a unique perspective on the court to which I 
have been nominated.
    Senator Sessions. Well, I think you do have a great 
background. I think that Government service, the private 
practice, representing the Defense Department, your military 
and other experience is very, very helpful.
    I believe, for example, that we in Congress ought to review 
periodically the Sentencing Guidelines that we passed. I think 
in some areas we need some reform. I think in crack cocaine we 
can see some reduction in those penalties. I think there are 
some white-collar crimes that probably deserve some increases 
in penalties.
    But I will just ask you this: The Congress has set 
guidelines. It has set minimum mandatories. Would you be 
prepared to follow those even if in a given case you felt that 
did not result in the sentence you personally would have given?
    Mr. Haynes. Well, Senator, as a nominee, I must remind 
myself anytime I am asked about how I might rule in a 
particular case that I have to be careful about not making any 
predictions and so forth. But I would say that I would approach 
any case, including the case that you describe, looking first 
and foremost at the applicable laws, at the facts as they come 
before me, and the Constitution as it applies.
    I believe that the Sentencing Guidelines have been tested 
and while I have not ever been in a position to apply them, I 
would certainly look at that as another very important and in 
many cases obligatory thing to follow.
    Senator Sessions. I think it is, and I would just say that 
we would be glad to hear if you have opinions concerning 
improvements in the system. I think that is healthy that we 
should listen before Congress has passed those rules, and so it 
is obviously Congress's responsibility to modify them from time 
to time when they need to be modified. But the integrity of the 
system does depend on appellate courts, I believe, ensuring 
that the District Courts remain faithful, and if we break that 
integrity relationship in faithful adherence to the Sentencing 
Guidelines, I think in the long run we will erode the 
confidence in the system that we have created.
    Judge Guirola, I am pleased to see you were an Assistant 
United States Attorney; is that correct?
    Judge Guirola. That is correct, Senator.
    Senator Sessions. It is all downhill from there.
    Senator Sessions. The greatest job in the world. You have 
had a tremendous background and experience. What do you think--
what are your goals for being a Federal judge? What would you 
like for people to say about you 5 years from now?
    Judge Guirola. Senator, I would like for those people that 
had appeared before me to be able to, with confidence, say that 
they were treated fairly, they were treated impartially, that 
their cases were heard expeditiously, and I would like to think 
that the bar and those users of the Federal Court system would 
amongst themselves say that this was a Judge that was able to 
control his courtroom without oppressing the users. He was a 
judge that was always courteous and always civil, both to the 
litigant, lawyer and witness.
    Senator Sessions. Well said. Remember, you were appointed, 
not anointed, as they say.
    Senator Sessions. Ms. Hopkins, tell me about your goals for 
the Federal Bench. What are some of the things that you would 
like to accomplish if you are confirmed?
    Ms. Hopkins. Well, as you mentioned, it's very hard to top 
what Judge Guirola said, but my personal goals would be to act 
always with professionalism, integrity and fairness. I would 
like every litigant, rich or poor, no matter their status, who 
comes before me, to feel like they've been treated fairly 
whether or not they were happy with the result of the case, and 
that would be my goal, is for the court to be known as always 
being professional, and that would encourage professionalism 
among the bar, which in the Northern District of Alabama we're 
very lucky to have. And that I would always act with integrity, 
and that would be the integrity of the system and not just my 
personal integrity, and that everyone would be treated fairly.
    Senator Sessions. I think that is well said, and I would 
ask if you would work on--you have a great court there that you 
will be joining, and work to have as much uniformity of rules. 
I think for all of you I would urge you to see, as far as 
possible, that the particular rules that you establish in your 
court are not unnecessarily contrary to the judge down the hall 
or one floor up, and it makes it even more complicated for 
lawyers and practitioners. Have you thought about that, in 
trying to make the court more friendly to lawyers and litigants 
who appear there?
    Ms. Hopkins. I think that the bench is actually open to 
that idea. I've talked to all of the sitting judges and that 
very concept has been raised, and I believe all the jurists are 
open to the concept of having, insofar as possible, rules that 
don't make it difficult for litigants to come before us. For 
example, every different judge has a different font size they 
want, and things can just make things harder for litigants than 
they need to be. Obviously, there are more substantive rules 
too that could be made uniform, but I think you'll find that 
that bench is open to those ideas under the leadership of Chief 
Judge Clemon.
    Senator Sessions. I think so too. I was not singling that 
bench out. As a practitioner myself and going into courts, it 
is better if the rule are simpler rather than more complex.
    Mr. Karas, one more comment and then we will hear from 
Senator Warner. Would you share for us your goals 5 years from 
now, what you would like people to say about your tenure on the 
    Mr. Karas. Thank you, Mr. Chairman. I would hope that 
lawyers who appear before me, and their clients, would say that 
they have been before a judge who was always fair, so that if 
they ever had to appear again and they were on the opposite 
side of the issue, they feel that they would get the same 
consideration as they did the first time, a judge who was 
always courteous and respected the obligation of being a judge, 
and respecting my oath and applying the law fairly and 
decisively and as expeditiously as can be done.
    Senator Sessions. Thank you, and I think expeditiously is 
important. A lot of litigants wait and wait for weeks and 
months on that judge to rule, and the bad news is probably 
better sooner than later. Maybe it is good news.
    Senator Warner, it is a delight to have you here. We know 
that you are a lawyer, been an Assistant United States Attorney 
and my Chairman on the Armed Services Committee, and we are 
delighted to hear from any remarks you would like to give us at 
this time.


    Senator Warner. I apologize to my distinguished 
constituent, but better than that, my friend, for my tardiness. 
We were over in S-407, as you gentlemen know, trying to 
conclude a conference on the Intelligence Committee, on which I 
serve, and I just have to go right on back.
    So I am going to ask to submit my record. I asked my junior 
colleague to come and brief in full, which he did unsparingly, 
I am told, so you have all the facts before you.
    I just commend the President for selecting this fine man, 
and we are going to miss him at the Department of Defense, 
assuming he is confirmed, and I hope he is.
    Good luck to you. You are on your own.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Senator Sessions. Thank you. Senator Warner, we appreciate 
your comments and support.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman. I join 
in welcoming all of the nominees, and congratulate you.
    Mr. Haynes, when you were introduced, did I understand that 
your youngest son is called Teddy, and he is the youngest 
member of your family?
    Senator Kennedy. Could I get one more look at him, as the 
youngest member of the family that was called Teddy too, I am 
always glad to--
    Mr. Haynes. Senator, his name is Taylor.
    Senator Kennedy. Taylor, excuse me.
    Mr. Haynes. But maybe we can change it.
    Senator Kennedy. I always remember the story that my 
brother used to say about me, that I wanted to be judged on my 
own and not my last name, so that I was thinking of changing my 
name from Teddy Kennedy to Teddy Roosevelt.
    Senator Kennedy. Congratulations to all of you.
    Mr. Haynes, I have some questions for you and I appreciate 
your response. You have been nominated to one of the most 
important and influential appellate courts in the country. You 
have no appellate litigation experience, almost no courtroom 
experience. As general counsel for the Department of Defense, 
you share responsibility for three of the most controversial 
policies in the administration, the indefinite detention of 
U.S. citizens without counsel or judicial review, the refusal 
to treat any of the hundreds of persons detained at Guantanamo 
as prisoners of war under the Geneva Conventions, and the 
Defense Department's military tribunal plan, which has drawn 
the condemnation of human rights organizations and our closest 
allies. So this is a record on which we have to judge your 
nomination to the Fourth Circuit, and I might add the Circuit 
seems to be the administration's forum of choice for its more 
controversial cases on the detention of foreign nationals, so I 
look forward to your answers on some of these basis questions.
    In October 2003 the International Committee on the Red 
Cross took the extraordinary steps to publicly criticize the 
United States for acting above the law in detaining 660 foreign 
nationals at Guantanamo. The United States is a party to the 
Geneva Conventions of 1949, and these treaties provide legal 
protections to soldiers of all nations. One of the most 
important principles, that every person in enemy hands must be 
classified, either as a prisoner of war or as a civilian. 
Civilians may be prosecuted as criminals for their acts of 
violence, but POWs may be tried only for violation of the laws 
of war. The administration is blatantly inventing a third 
category, unlawful combatants, which is not contained in the 
Geneva Conventions or anywhere else in national law.
    The administration has categorically denied that any of the 
660 detainees at Guantanamo qualify as POWs, even if they were 
serving in the army of the former Afghan Government. That can't 
possibly be true. Every other country in the world, including 
our closest allies in the war on terrorism raises this issue 
and question, that they do not believe that it is true. The 
administration refuses even to convene a tribunal to determine 
whether any of the detainees are entitled to POW status. We 
routinely did that in past wars. Why not now? Are we not 
clearly violating the Geneva Accords?
    Mr. Haynes. Well, Senator, you've raised quite a few very 
important points, and I appreciate your concern about how the 
United States supplies the laws of war and the Geneva 
Conventions, and the best traditions of this country.
    I can assure that those in the administration with whom 
I've worked share that very deep concern. This is a very 
important issue, particularly to our own fighting forces. It's 
an important issue also, however, Senator, as we face a foe 
that we have not faced before, and by that I mean those arrayed 
against us in the global war on terrorism. This war, unlike 
virtually any in the past, is one that straddles the line 
between law enforcement and international conflict, and so the 
application of a set of norms that is designed for one or the 
other system is not easy to fit to the current circumstance, so 
all of us have worked very hard to try to divine the basic 
principles associated with each of those as we employ our 
forces in this very important war to protect the American 
people and to protect our way of life.
    One of the most important objectives in doing that is to 
make sure we do that lawfully and consistent with our best 
    Senator you made a number of important statements, and I 
may not have addressed all of them.
    Senator Kennedy. Let me ask you. I agree we are facing a 
new situation. It seems to me it is more important because we 
may very well have Americans that are captured that are going 
to be held in some place, and that is even more the reason, I 
would think, since we are facing this, that we would want to 
comply, and at least try, as we are working with the 
international community, to make sure that we are working 
within the world community. We may very well have American 
servicemen detained. I can see some being detained and held 
under these circumstances, indefinitely someplace. What is 
going to be the reaction here? I do not think we are going to 
like it very much. And if we re going to continue along in what 
I think has been considered to be the violation of the Geneva 
Conventions, I am not sure that this--we look at this, at least 
I do, as a protection for Americans, for Americans, as well as 
obviously the general humanitarian concern, and I am concerned 
about what this may very well do when we are finding our own 
people are captured.
    As I understand, none of the 660 detainees at Guantanamo 
were regular members of the army or fought under responsible 
command, carried their arms openly, wore an identifying 
insignia or obeyed the laws of war. How can we possibly know 
that unless we have a hearing?
    Mr. Haynes. Senator, you are referring to the four-part 
test in the Third Geneva Convention of 1949, that is applied 
when there is doubt about the status of any particular 
individual covered by that treaty. Those people to which you 
refer in Guantanamo Bay, some 600 plus individuals, arrived 
there only after a very careful screening process from the 
point of their capture principally in Afghanistan in a war.
    Each of those individuals is repeatedly reviewed, and 
indeed the United States has released or transferred well over 
60 of those people who have come into Guantanamo, and it is my 
expectation that some additional ones will be released or 
transferred in the future. So to say that they have not been 
reviewed or evaluated in some objective and responsible way, I 
would disagree, but nevertheless agree very deeply that it is 
very important, that how we do this is critical to how we are 
seen in the world and how we prosecute this war on terror.
    On that score, Senator, if I may, there is no doubt that a 
belligerent, in this case the United States, is entitled under 
very long-standing and undisputed legal authority, to hold 
people who tried to capture or kill or otherwise harm the 
interests of the United States. There's no doubt that we are at 
war with al Qaida and other terrorists of global reach. And 
those people that are detained in this conflict are properly 
detained. They have not, to be sure, received what is called an 
Article V tribunal process, which is really a very simple 
process. In application it's very cursory, it's done quickly on 
the battlefield.
    As the United States does it, it's done by three officers 
in the field. In this case, for all the detainees in 
Guantanamo, there has been multiplied many-fold of the process 
provided normally in an Article V tribunal process. So we 
believe that we are properly holding them and consistent with 
the best U.S. traditions.
    Senator Kennedy. Is it your position that there are no 
regular members of the army of the former Afghan Government at 
    Mr. Haynes. Senator, I hesitate to answer for just a second 
because I want to make sure I'm responsive to your specific 
question. Those people at Guantanamo, as I said, were captured 
on the battlefield. Some of them were individual actors. Some 
of them worked with tribal adversaries, but there was no 
regular uniformed army commanded by responsible superiors in 
the conflict in Afghanistan.
    Senator Kennedy. That is something--you are getting that 
from our military? Our military told you that? Where did you 
get that answer from? Is that the American military that fought 
in that battle that told you that? That is a surprise to me. I 
have attended all of these briefings. That is a very big 
surprise the way you described the nature of the opposition and 
the organization of the fighters, certainly different from what 
I have heard.
    Now, last April you said that POW rights are not for 
everyone, they have to be earned. There is no such principle of 
earned rights in the Geneva Convention. The Convention provides 
that whenever there is a doubt about a prisoner's status, must 
be treated as a POW until a competent tribunal determines 
otherwise. No such tribunal has been set up at Guantanamo. 
Where is this earned rights? I can imagine an American being 
held by al Qaida, someone telling him he has to earn his 
rights. What do you mean by that?
    Mr. Haynes. Senator, I think what that refers to is the 
fact that the Geneva Conventions reflect some highly refined 
principles derived over time, that when enemies fight each 
other, certain principles must be honored, and those principles 
include that combatants must be distinguished from 
noncombatants, that they must be--they must employ force 
against military targets, that they must respect the laws of 
war, and that they not operate as a roving mob that pillages 
and destroys things indiscriminately.
    That is the four-part test that you described earlier, 
Senator, in the Geneva Convention, that must be met when an 
individual is reviewed for possible consideration as a prisoner 
of war. That person must belong to an armed force, a regular 
armed force commanded by responsible officials, wear a 
distinguishing uniform or other marks visible at a distance, 
comply with the laws of war. That is how one earns prisoner of 
war status, and that's what the Geneva Conventions specifically 
require in order to earn it, as you put it.
    If such combatants do not qualify under that test, then 
they are not lawful combatants, a phrase which the Supreme 
Court used in 1942 to describe people who did not follow those 
    Senator Kennedy. I want to move on. It is difficult for me 
to believe that those that were opposing both the Americans, 
the coalition, the others, do not fall within the categories of 
the Geneva Convention. Certainly the Red Cross believes that 
they do, and we are unable to say of those 600, other than what 
you have mentioned here, that they have been reviewed over in 
Afghanistan and in other circumstances, but unable to indicate 
that there has been a formal kind of a process, a tribunal, 
where their status would have been reviewed. That is 
troublesome. Let me ask you this--
    Senator Sessions. Mr. Kennedy, your time is pretty well 
over. Could we go to Senator Feingold and come back, and I will 
give you time to do that?
    Senator Feingold. Senator Kennedy, do you have a lot more 
or just--
    Senator Kennedy. Just one thing. This was the last part on 
this, and then I will wait and come back.
    Senator Feingold. Mr. Chairman, if you do not mind, I do 
    Senator Sessions. All right.
    Senator Kennedy. And that is on the Guantanamo, the three 
children, ages 13 to 15 among the detainees. It is a violation 
of international humanitarian law to recruit or allow children 
under the age of 15 to participate in hostilities. In a treaty 
ratified by the United States last year, saying 18 is the 
minimum age for participation. It requires governments to 
demobilize, rehabilitate former children soldiers. Why have we 
not followed those agreements and those treaties? Why are we 
holding children down there?
    Mr. Haynes. Senator, I believe there are some young 
fighters down there and--
    Senator Kennedy. These are 13 to 15, at least my 
information is, and I do not know how long they have been down 
there, 2 years or?
    Mr. Haynes. No, sir. I think there are some people that are 
a little bit older than that, but you're right, they are held 
down there, and simply put, they're held because they were 
captured trying to kill Americans and other allies.
    I can say that they are being extraordinarily well treated, 
and it is our desire, quite fervently held desire, to return 
those young individuals to society as soon as we possibly can. 
In fact, they're getting almost one-to-one tutoring. For 
example, the former minister of education for Afghanistan is 
their tutor. They're getting extraordinary medical care just as 
everyone else in Guantanamo is, and they are coming along quite 
    But the fact of the matter is, they are dangerous. They 
were quite dangerous when they were captured. It's my hope, and 
I'm sure it's the hope of the people who are responsible for 
them in Guantanamo, that they will be returned to society as 
soon as possible.
    May I say one other thing, Senator, please. I don't want to 
mislead you at all. The Geneva Conventions are extraordinarily 
important, and it is very important for our fighting forces 
that we follow them strictly, even in the case where we've had 
this discussion today, where we have made some determinations 
that some individuals do not qualify for certain aspects of the 
Geneva Convention, such as, for example, the payment of 7 Swiss 
francs every month, the use of musical instruments, a canteen 
in the compound and so forth. We are providing the fundamental 
guarantees of the Geneva Convention to all the people in 
Guantanamo, including in particular humane treatment, medical 
care, practicing of religion, a healthy diet, exercise. They're 
being very well treated under the circumstances.
    Senator Kennedy. My time is up. I would also look at the 
incidents of suicide down there that have been reported and 
other kinds of circumstances as well. It is a difficult 
    Senator Sessions. Thank you, Senator Kennedy. These are 
important issues. In fact, we have had several hearings in the 
Judiciary Committee on it, and the Defense Department and 
Department of Justice have responded with the legal 
justifications for the actions that the Department of Defense 
haws taken, and to date I do not think a court has found them 
to be fundamentally flawed in any way. But it is an important 
matter for us to discuss.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. I thank Senator 
Kennedy for his line of questioning.
    My congratulations to all of you, and wish you well.
    Let me ask my questions of Mr. Haynes though, and I want to 
talk about another aspect of some of the post-9/11 activities. 
I have concerns about the President's decision to detain three 
men, including two U.S. citizens as enemy combatants, and then 
hold them at a military facility indefinitely without charges, 
access to counsel or right to trial. Two of these cases are 
currently making their way through the Federal Appeals Court, 
and the Second Circuit heard oral arguments earlier this week 
in one of those cases.
    Could you describe, Mr. Haynes, your involvement in the 
drafting of the President's Executive Order that allows for 
these sc-called enemy combatants to be held indefinitely 
without access to counsel?
    Mr. Haynes. Senator, those are important questions, and as 
a lawyer, the treatment of people detained by a government is 
something that is perhaps the most important thing to be 
considered by anybody who swears to uphold the law and to 
practice in the profession. It is--the rules associated with 
that are things that give me fits sometimes in how they're 
applied. And so we spend a lot of time on it.
    I should not talk about specific cases in litigation, or at 
least about the facts of them, but I'm happy to talk about the 
principles that you have--
    Senator Feingold. Can you answer the question, what was 
your involvement in the drafting of the President's Executive 
Order that allows for this?
    Mr. Haynes. Yes, sir, I can do that. You may be referring 
to the President's November 2001 order in which he instructed 
the Secretary of Defense to prepare rules for the conduct of 
trials of terrorists that he determines should be subject to 
that order.
    Senator Feingold. I suspect that is not what I am referring 
to. I remember that, and it led to a lot of discussion in the 
Committee. What I am looking at here is the Executive Order 
that allows for enemy combatants to be held indefinitely. Are 
you suggesting that that was the same?
    Mr. Haynes. Sir, I am aware of just one Executive Order on 
    Senator Feingold. I have it in front of me, a June 9, 2002 
Executive Order. Is it your testimony then that you were not 
involved of the drafting of this June 9th, 2002 Executive 
Order? Would you like to review it?
    Mr. Haynes. May I please?
    Senator Feingold. And this one relates in particular to Mr. 
Padilla, as I understand.
    Mr. Haynes. Yes, sir, I'm sorry. When you said Executive 
Order I was thinking about a formal Executive Order. The paper 
that you showed me is an order from the President to the 
Secretary of Defense to do something, and it's redacted, and it 
is addressed to a particular individual.
    To the extent that your question asks what legal advice I 
gave, I of course should decline to talk about that. But I can 
tell you that as the General Counsel of the Department of 
Defense, one of my principal clients is the Secretary of 
Defense, and as the recipient of an order from the President to 
detain somebody such as the person described in that order, I 
did participate in advising the Secretary of Defense.
    Senator Feingold. Thank you. Two of the individuals 
detained here on U.S. soil in military facilities were actually 
in our Federal criminal justice system. In fact, one of them, 
Ali Almari, a Qatari national, went to college here and lived 
with his wife and children in West Peoria, Illinois, was 
investigated, arrested and indicted in our Federal criminal 
justice system. I understand that he was very close to a 
scheduled trial date when the administration suddenly decide to 
transfer him from criminal justice system to military custody 
indefinitely and without access to counsel.
    What was your involvement in the President's decision to 
transfer Jose Padilla and Ali Saleh Almari from the civilian 
custody of the Justice Department to military custody?
    Mr. Haynes. Well, Senator, I think I just answered that as 
to one of the individuals, and again, in my role as General 
Counsel of the Department of Defense advising the Secretary of 
Defense, I was aware and did advise my clients.
    Senator Feingold. You have commented on the unique 
relationship between the Justice Department and the Defense 
Department with respect to the fight against terrorism. In a 
speech at Fordham Law School in April 2002, you said that the 
DOD and DOJ are working hand in hand. Did you or your members 
of your staff have discussions with Justice Department 
officials and prosecutors about Padilla and Almari, and whether 
they should be removed from the criminal justice system?
    Mr. Haynes. In the course of the decisions reflected in the 
paper that you just showed me, I certainly had some discussions 
with the Department of Justice, yes, sir.
    Senator Feingold. Did you agree with the President's 
    Mr. Haynes. I certainly believed that the President's 
decision was lawful, and I support what the President has done.
    Senator Feingold. Then why do you believe that our Federal 
criminal justice system, which has successfully investigated, 
prosecuted, and punished many terrorist suspects for heinous 
terrorist acts, including the embassy bombings in Africa in 
1998 and the first World Trade Center bombing, is ill-equipped 
to handle these two terrorist suspects?
    Mr. Haynes. Senator, I have the highest regard for the 
Federal judiciary and the criminal justice system, and I do not 
believe I've ever made any statements or taken any actions that 
should be interpreted to reflect any lack of confidence on 
either of those institutions.
    I think that an important thing to remember, Senator, in 
these very important issues that I know concern you deeply and 
concern me deeply is to remember that the criminal justice 
system and the rules associated with the prosecution of war 
against enemies of the United States are different systems. 
Sometimes they can apply to the same individuals, but different 
rules apply in each context. And to say that somebody who is 
detained as an enemy combatant in the global war on terror is 
detained in that context because there is some concern about 
the criminal justice system I think is a misinterpretation.
    Senator Feingold. I think, you know, obviously the point is 
that I just described two instances in which the criminal 
justice system operated very effectively specifically against 
perpetrators of the international war on terrorism against the 
United States of America. And I think the burden is on the 
administration when it uses these extraordinary procedures to 
give us some sense of why it would work in one case but not in 
the other. But I realize you may have some constraints in terms 
of being able to discuss the details.
    But somehow, in order to justify these very unusual 
procedures, I think that case has to be made because the record 
suggests that we have been able through the criminal justice 
system to do fairly well once we have caught some of these 
folks in terms of putting them away and convicting them.
    Mr. Haynes. Sir, if I may, you are absolutely right. The 
criminal justice system has proven to be quite capable to deal 
with a number of things. But one thing it doesn't do well, it 
is not designed to do well, is to prosecute a war. And in a war 
where we have an active enemy and we happen to detain those 
associated with our enemy in this armed conflict, we are quite 
justified in holding those people, and, indeed, perhaps 
obliged, you know, in order to conduct the war to try to get 
the information that those people might have in order to 
protect against future terrorist attacks.
    Now, again, that is a separate legal regime that is time-
tested and appropriate, and--
    Senator Feingold. Your argument would be that keeping these 
people in the criminal justice system as they were would 
constrain the Government from getting that information which 
they could otherwise get more easily as an enemy combatants?
    Mr. Haynes. Well, in some cases, sir, that's accurate. That 
doesn't mean that they're mutually exclusive in the long run. 
But in the context of fighting a war, if we happen to capture 
somebody on the battlefield and they have information, we first 
ought to detain them, and we ought to try to get the 
information that may affect the future conduct of the war. 
That's not a punishment. That is a preventive measure. It's not 
the application of the criminal laws, which necessarily and 
appropriately bring in all sorts of procedural protections, 
    Senator Feingold. That suggests to me that there would be a 
limited time frame during which they should be in this status 
and then turned over to a criminal justice situation.
    Mr. Haynes. If prosecuted, yes, sir. Certainly the limited 
time frame is during the conduct of the hostilities. I mean, 
the time-tested laws of war--
    Senator Feingold. Or during the time in which it was a 
sufficient time to determine the information. Once the 
information has been determined, I am not hearing an additional 
justification for not putting that person in the criminal 
justice system. Or is there one?
    Mr. Haynes. Well, you may be right, but I can tell you that 
it is our policy that for those people, American citizens, who 
might be detained in the United States, once we have completed 
the interrogation process, there would be no particular reason 
to not allow them to see a lawyer. Yes, sir.
    Senator Feingold. Let me just ask one more question. The 
Fourth Circuit has already had some consideration of the case 
of Yasser Hamdi, another U.S. citizen detained indefinitely as 
an enemy combatant. If you are confirmed to the Fourth Circuit, 
it is quite possible that the enemy combatants issue could come 
before you, and you, of course, have been intimately involved 
in the President's development of this policy, as you have 
indicated today in your testimony.
    Would you recuse yourself from a case challenges the 
President's designation of an individual as an enemy combatant? 
And if not, can you explain your reasons for not doing so?
    Mr. Haynes. Senator, thank you for the question. The 
integrity of the judiciary, including the appearance of 
impartiality and integrity of the judiciary, is very important. 
In the first instance, in any case in which I was, if 
confirmed, to be designated to sit to hear a particular case, I 
would look very closely at all the applicable rules, including 
the Federal statute that governs that. In any matter in which I 
had any particular involvement, of course, I would not 
participate further.
    For some broader issue where I might have had some role in 
developing processes that apply, I would think that probably 
also I would not participate, depending on what the facts are. 
But I would have an obligation in that circumstance, if 
confirmed, to make sure that I discharged my responsibility and 
the oath taken as a judge.
    One of the factors, of course, I would have to consider 
would be the appearance associated with that, and that would be 
something that I would be very attentive to, if confirmed and 
    Senator Feingold. So both the substance of the fact that 
you have been involved with developing the policy and the 
appearance issue would both be factors that you would consider 
in whether to recuse yourself?
    Mr. Haynes. Yes, sir.
    Senator Feingold. I thank you for your answer.
    Thank you, Mr. Chairman.
    Senator Sessions. Thank you, Senator Feingold. That was an 
excellent exchange about an important issue, and it is 
something a lot of us, even lawyers, have never had to deal 
with until this war on terrorism started.
    Senator Chambliss?

                        STATE OF GEORGIA

    Senator Chambliss. Thank you, Mr. Chairman. I have a 
statement that I wish to enter in the record, basically in 
support of the nomination of Mr. Haynes to the Fourth Circuit.
    [The prepared statement of Senator Chambliss appears as a 
submission for the record.]
    Senator Chambliss. That statement basically says that my 
recommendation is based upon a recommendation to me, Mr. 
Haynes, by my good friend, Judge Griffin Bell, former judge of 
the Fifth Circuit Court of Appeals for whom I have such great 
respect. And Mr. Haynes comes highly recommended.
    I note Mr. Feingold is gone, but I did want to say that we 
are operating in a different world today from what we have been 
operating in the past with respect to detainees who are not 
being declared prisoners of war but are being declared as 
terrorists and are being held in a way that I don't know that 
we have ever detained individuals before. But I think it has 
been absolutely necessary.
    One of the individuals that Senator Feingold mentioned, 
this Almari, I know Mr. Haynes is probably hesitant to say too 
much about it, but there are some public facts that I have been 
handed by staff here that I think ought to be in the record.
    The administration announced in June that it had designated 
Ali Saleh Kala Almari as an enemy combatant, and in my view, 
the facts fully support the President's decision to designate 
Almari as an enemy combatant. Almari is an individual the FBI 
identified early in the course of the September 11 
investigations as someone with ties to an Al Qaeda operative 
involved in the 9/11 attacks. When he was interviewed by the 
FBI in October 2001, he lied to the FBI about having visited 
the United States previously. In December 2001, when he was 
interviewed by the FBI again, he refused to take a polygraph 
test and stated his intention to leave the country.
    Later in December of 2001, after he was arrested on a 
material witness warrant, a search warrant was executed on his 
apartment, and during the search agents found, among other 
things, an almanac with major U.S. dams, reservoirs, waterways, 
and railroads marked, a sheet with 36 credit card numbers, and 
over 1,000 fraudulent credit card numbers on the hard drive of 
Almari's laptop computer. In February 2002, Almari was indicted 
for credit card fraud.
    Recently, an Al Qaeda detainee identified Almari as an Al 
Qaeda sleeper operative who was tasked to help new Al Qaeda 
operatives get settled in the United States for follow-on 
attacks after 9/11. Additionally, two separate Al Qaeda 
detainees have confirmed that Almari traveled to Al Qaeda's Al 
Faruq camp in Afghanistan, where he met with Osama bin Laden 
and other senior Al Qaeda members and pledged his service to 
bin Laden and even offered to martyr himself if necessary.
    The Government has also uncovered evidence that Almari made 
calls to a phone number in the United Arab Emirates that was 
connected to the 9/11 hijackers.
    So I think the designation of Almari as an enemy combatant 
was certainly warranted, and Mr. Haynes I think has given his 
client good advice that this man should be--it is a 
determination that is a correct determination, and there is 
certainly just cause for him to be detained.
    Again, I have no questions, Mr. Chairman, but I am in 
strong support of the nomination of Mr. Haynes to go to the 
Fourth Circuit.
    Senator Sessions. Thank you, Senator Chambliss. Those are 
good points.
    I remember that we made a mistake, in my view, in treating 
the terrorist attacks on the United States as criminal acts. 
Bin Laden had publicly declared war on the United States for 
over a decade before 9/11, and we did not handle that as 
aggressively as we should. President Bush determined that we 
needed to get our thinking clear and clarified, and he made 
clear that those who are enemy combatants under the classical 
definition of that term from the Geneva Conventions and the 
Articles of War would be treated as enemy combatants. And as I 
recall, that other Roosevelt, Franklin Delano Roosevelt, when 
German saboteurs came into the United States during World War 
II, not in uniform, not in a disciplined way, when they were 
apprehended, they were tried in the FBI building and executed 
on authority of President Franklin Roosevelt. Is that correct, 
Mr. Haynes?
    Mr. Haynes. That's correct, although the Supreme Court did 
hear a habeas petition from them before the execution. Yes, 
    Senator Sessions. And they did let it go forward. And one 
of those, am I correct, was a citizen of the United States?
    Mr. Haynes. That's correct.
    Senator Sessions. So an enemy combatant can even be not 
just a resident but a citizen of the United States and still 
meet the international standard for an enemy combatant.
    Mr. Haynes. That's correct, sir.
    Senator Sessions. In fact, Article 15 of the Articles of 
War and the United States Constitution and Congress' actions 
have recognized that the President has the authority, and the 
Supreme Court has, to establish military tribunals to try a 
violation of the laws of war. Is that correct?
    Mr. Haynes. Yes, sir. The statute that existed that was 
recognized by the Supreme Court in 1942 in the Quirin case 
specifically references military commissions as an option, and 
that statute remains on the books under a different section 
    Senator Sessions. Is that Title 10, Section 836? It would 
be good if you could remember that.
    Mr. Haynes. I believe it 821, but--
    Senator Sessions. Well, there are provisions within the 
statutes and code of the United States and in the Supreme Court 
decisions of the United States that recognize that soldiers in 
an army of an enemy of the United States are treated as 
prisoners of war. But people who are not in uniform, who are 
acting on their own, contrary to the laws of war, those are to 
be treated not as prisoners of war but as enemy combatants. Is 
that a fair summary?
    Mr. Haynes. Yes, sir, I think that's a fair summary. I 
might describe them as unlawful combatants.
    Senator Sessions. Unlawful combatants.
    Mr. Haynes. Yes, sir.
    Senator Sessions. I think that is the preferable phrase.
    And, you know, trials are interesting things. We saw the 
O.J. Simpson trial go on, and people felt that was an unjust 
verdict. Then they had a civil trial, and he lost that and was 
found guilty civilly but not responsible civilly and not guilty 
criminally. But I say that to say that when you are dealing 
with terrorists who are capable of killing thousands of 
American citizens, we have got a different level of problem. 
And, second, it is difficult to try these in a normal court of 
    I was wondering, with regard to the--if you had to try the 
individuals being held in Guantanamo, we would virtually have 
to bring back all the soldiers that we have in Afghanistan to 
be witnesses in those cases, would we not? I mean, you would 
have to--if you had a classical trial, then they would get the 
subpoena everybody, including their family, to be witnesses, 
and it would really turn into an impossible circumstance as a 
practical matter, it seems to me.
    Are those factors that have been involved in the historic 
understanding that unlawful combatants should be treated 
differently than normal criminals?
    Mr. Haynes. Well, sir, you are raising some important 
points that make it clear why trials of those involved in 
warfare must be conducted, to be sure, as fair trials and 
consistent with our traditions, but also with some different 
rules on occasion.
    Witnesses may be one area where a traditional Article III 
criminal case would be difficult. Similarly, evidentiary 
questions and chain of custody and things of that nature might 
make it more difficult. A whole range of things make it 
imperative, and history shows that these work, that there be a 
different way to administer justice appropriately and 
consistent with our traditions, yet differently than some of 
the more traditional criminal prosecutions would provide.
    Senator Sessions. And to a large extent, the procedures for 
trying these unlawful combatants is not a lot different than 
the procedures for trying soldiers who are charged within the 
military. The legal system of the military is a good one. F. 
Lee Bailey says it is superior to the normal legal system of 
America. But, regardless of that, I do think that you are 
correct there would be a fair trial. And I have no doubt that 
these defendants, a large number of them, would probably try to 
subpoena General Tommy Franks to come and testify at their 
trial. And it would just cause a lot of problems, and I think 
the President made the right decision.
    Senator Kennedy?
    Senator Kennedy. Well, we have routinely convened competent 
tribunals to determine POW status for captured individuals in 
every one of our past wars, including the last Gulf War, except 
now. Isn't that so?
    Mr. Haynes. Senator, I hope I haven't confused things. May 
I take a minute and describe--
    Senator Kennedy. Sure.
    Senator Sessions. I perhaps confused things.
    Mr. Haynes. Well, I think we're talking about two different 
things. Senator Kennedy, you and I have been discussing the 
Geneva Conventions, and one of the provisions of the Geneva 
Conventions, Article 5 of the Third Geneva Convention of 1949, 
says that when there is doubt about an individual's 
classification as a prisoner of war, then that individual is in 
entitled to review by ``a competent tribunal'' to resolve that 
doubt. And you're right, ever since the Geneva Conventions were 
created, including in the current war in Iraq, the United 
States military has conducted Article 5 tribunals to resolve 
doubt about specific individuals.
    In the most recent conflict, the one is Iraq that's going 
on right now, there have only been a handful, and we've 
literally captured thousands and thousands and thousands of 
people, some of them in uniform and some of them without. That 
conflict clearly is governed by all of the Geneva Conventions. 
Even in that conflict, governed completely by all of those 
Geneva Conventions. There have only been a very few, because 
there has only been doubt in a very few cases. Now, that is one 
    The conflict in Afghanistan and the conflict in the global 
war on terror, just looking at the treaty itself, the Geneva 
Convention itself, which is a treaty among states, Al Qaeda is 
not a party. There's no way that the treaty can apply. So as a 
matter of law, the treaty doesn't apply.
    Now, even so, the United States has chosen to apply the 
principles of the Geneva Convention, and that's what I tried to 
describe a few minutes ago, perhaps with less clarity than I 
should have. The United States does apply the principles of 
Geneva. We treat people humanely, we allow them to practice 
their religion, and on and on, like I said before.
    Now, that's one thing. Senator Sessions and I have been 
talking about a different type of tribunal, and that is, if and 
when the President decides he would like to try individuals for 
crimes violating the laws of war, then there will be a criminal 
trial. Any such trial in that context would be replete with the 
tested and time-honored principles that American justice 
requires, including a presumption of innocence, the provision 
of counsel without charge, no requirement that the person 
testify against himself, evidentiary rules, an appellate 
procedure. Those are the rules that Senator Sessions and I have 
been discussing that are far more flexible than your typical 
criminal justice process.
    Senator Kennedy. That is a very good distinction. The only 
point that I would come back to--and I am glad we separated out 
the questions of Geneva and the consideration of these people 
that are being detained and also the enemy combatant. The point 
that I would make, though, is that the Taliban were the 
soldiers of the Afghan Government. They were the ones who were 
charged. I mean, the mix between Al Qaeda and the Taliban, you 
know, we can go back into history, probably 1995, they were 
separated up until then. And then they became absolutely 
intertwined. They became one in Afghanistan, 1995, 1996. That 
is what the testimony is in the Armed Service Committee. They 
are absolutely one. The Taliban represented the Afghan 
Government. The Taliban had an army. And the Taliban was 
involved in these various battles, and it is difficult--and 
that is why many of us would wonder why--I know that they have 
been looked at, examined, whatever it has been. But we haven't 
had the classification of whether the 600-odd soldiers would 
qualify. And, you know, we have been over that ground, and I 
know that 60 have left, and they are reviewing some of the 
others. But it does seem to me with the kinds of criticism--and 
it isn't just individuals. It is the Red Cross and many of our 
allies. And it is obviously--these matters are of great concern 
because we are going to be facing the possibility of American 
servicemen being held captured. And we are interested in their 
protection as well as dealing with those that are a threat to 
our own security. That is basically one of the powerful reasons 
for the support for this.
    Let me just come back to one other issue on the enemy 
combatant. The fact is you are recognizing in terms of 
establishing that the enemy combatant, that they are also 
subject to some kind of a review; otherwise, we would just be 
giving the President of the United States authority to declare 
anybody an enemy combatant and there is no--
    Mr. Haynes. Well--
    Senator Kennedy. If I could just finish. And there wouldn't 
be any review.
    Now, as I understand, the administration initially argued 
in its briefs that no court could review at all its designation 
of an American citizen as an enemy combatant because the 
administration's determination on this score are the first and 
final word. Those are the words in their brief. But even the 
Fourth Circuit found this position too extreme to accept, and 
the court said it would be embracing a sweeping proposition, 
namely, that with no judicial review, any American citizen 
alleged to be an American combatant could be detained 
indefinitely without charges or counsel on the Government's 
    So the administration now concedes that courts may review 
the enemy combatant determinations, but only to see if some 
evidence supports it. Do you believe that the Federal courts 
have authority when U.S. citizens are being indefinitely 
detained by their own Government to review?
    Mr. Haynes. Senator, I am here in an individual capacity as 
a nominee. I am also general counsel to the Department of 
Defense. So I want to be clear about my words here. But I will 
tell you my personal views.
    Senator Sessions. Let me interrupt. The Senator is 
referring to enemy combatants, and I used the phrase wrong 
earlier. Is it ``unlawful combatant'' he is talking about, or 
is ``enemy combatant'' the right term?
    Mr. Haynes. The ``enemy combatant'' term is more inclusive. 
It includes both lawful and unlawful combatants, Senator. But, 
sir, you asked do the courts have the ability to review 
determinations that somebody held in the--an American citizen 
held in the United States as an enemy combatant, that 
determination? Yes, sir. They're in court right now, and the 
discussion or one of the issues before those courts--and I 
don't want to get into that too far--is just what is the 
deference owed to the President and his subordinates in making 
those determinations.
    Senator Kennedy. And what about the right to counsel?
    Mr. Haynes. Again, right to counsel is something that is 
fundamental to the criminal process and the imposition of 
punishments by the Government. Detaining enemy combatants is 
not that. Detaining enemy combatants is the application of the 
law of armed conflict to protect the country. And counsel, 
right to counsel does not come--
    Senator Kennedy. Okay, but if it is an American citizen.
    Mr. Haynes. Our policy is that once somebody has--once we 
have derived the intelligence that we can from interrogating 
such individuals, that for American citizens held in the United 
States as enemy combatants, we would not prohibit them from 
seeing other people, including perhaps lawyers.
    Senator Kennedy. Thank you very much.
    Senator Sessions. It has been an excellent discussion.
    Senator Kennedy. And I want to thank the other nominees. I 
apologize for not--
    Senator Kennedy. I thank you for your patience here for all 
this. I join with my colleagues in congratulating all of you. 
And, Mr. Chairman, if I could have a statement by Senator Leahy 
included in the appropriate place in the record?
    Senator Sessions. It will be made part of the record.
    Thank you very much, Mr. Haynes. That was a very 
interesting discussion. It is a complex area of the law, and 
there has been a lot of debate about it. I think to date the 
positions the President has taken with this have been upheld, 
and I think it is justified under the circumstances.
    Well, nominees, we are delighted that you are here. The 
challenge of a Federal judgeship is a great one. I spent about 
15 years of my life practicing full-time before Federal judges. 
I have the greatest respect for them. I felt confident that 
every day, whether that judge was a Republican or a Democrat or 
a liberal or a conservative, if I had the law and the facts, 
the judge would rule with me, and if I didn't, I was probably 
going to lose. And that is what we want to see in the bench. 
That is the classical understanding in America of the rule of 
law, that it is not personality, it is not bias. It is 
    Our Founders gave you a lifetime appointment. After this 
vote in the Senate--and I think you will all move forward, 
hopefully expeditiously, toward confirmation. After this vote 
in the Senate, you will be on your own subject to appellate 
higher courts and your own conscience, your own sense of your 
role in the system, your personal restraint, and your best 
judgment and integrity. I know you will do a good job. The 
backgrounds that we have seen on you are excellent. The ABA has 
given you good ratings, and so have your colleagues and 
Senators from your States who know you and respect you. So I 
think we will be moving along well.
    Unless there is anything else, we will adjourn our meeting. 
I will not that we will leave the record open for 7 days for 
any further comments or questions that any members may want to 
    If nothing else, we will stand adjourned.
    [Whereupon, at 4:10 p.m., the Committee was adjourned.]
    [Questions and answers and submission for the record