[Senate Hearing 109-397]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 109-397, PT. 1




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


               MARCH 3, SEPTEMBER 29, AND OCTOBER 6, 2005


                                 PART 1


                           Serial No. J-109-4


         Printed for the use of the Committee on the Judiciary


                                                 S. Hrg. 109-397, PT. 1




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


               MARCH 3, SEPTEMBER 29, AND OCTOBER 6, 2005


                                 PART 1


                           Serial No. J-109-4


         Printed for the use of the Committee on the Judiciary

27-745                      WASHINGTON : 2006
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S


                        THURSDAY, MARCH 3, 2005


Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     6
    prepared statement...........................................   267
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   281
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     5


Dole, Hon. Elizabeth, a U.S. Senator from the State of North 
  Carolina presenting Terrence W. Boyle, Nominee to be Circuit 
  Judge for the Fourth Circuit, Robert J. Conrad, Jr., Nominee to 
  be District Judge for the Western District of North Carolina, 
  and James C. Dever, III, Nominee to be District Judge for the 
  Eastern District of North Carolina.............................     1
Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina presenting Terrence W. Boyle, Nominee to be Circuit 
  Judge for the Fourth Circuit, Robert J. Conrad, Jr., Nominee to 
  be District Judge for the Western District of North Carolina, 
  and James C. Dever, III, Nominee to be District Judge for the 
  Eastern District of North Carolina.............................     3

                       STATEMENTS OF THE NOMINEES

Boyle, Terrence W., Nominee to be Circuit Judge for the Fourth 
  Circuit........................................................     8
    Questionnaire................................................     9
Conrad, Robert J., Jr., Nominee to be District Judge for the 
  Western District of North Carolina.............................    72
    Questionnaire................................................    74
Dever, James C., III, Nominee to be District Judge for the 
  Eastern District of North Carolina.............................    99
    Questionnaire................................................   100

                         QUESTIONS AND ANSWERS

Responses of Terrence W. Boyle to questions submitted by Senator 
  Durbin.........................................................   145
Responses of Terrence W. Boyle to questions submitted by Senator 
  Feingold.......................................................   156
Responses of Terrence W. Boyle to questions submitted by Senator 
  Feinstein......................................................   168
Responses of Terrence W. Boyle to questions submitted by Senator 
  Kennedy........................................................   173
Responses of Terrence W. Boyle to questions submitted by Senator 
  Leahy..........................................................   185
Responses of Robert J. Conrade, Jr. to questions submitted by 
  Senators Leahy, Feinstein, and Feingold........................   205
Responses of James D. Dever, III to questions submitted by 
  Senator Leahy..................................................   212

                       SUBMISSIONS FOR THE RECORD

Adams, Gale M., Assistant Federal Public Defender, Fayetteville, 
  North Carolina, letter.........................................   213
Alabama Police Benevolent Association, Inc., Donald R. Scott, 
  President, Montgomery, Alabama, letter and attachment..........   217
Boyce, R. Daniel, Attorney at Law, Raleigh, North Carolina, 
  letter.........................................................   219
Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina, prepared statement...................................   221
California Foundation for Independent Living Centers, Mary Ann 
  Jones, Chair, letter...........................................   224
Calloway, Mark T., former U.S. Attorney, Charlotte, North 
  Carolina, letter...............................................   226
Clark, Reuben G., III, Attorney at Law, Maupin Taylor & Ellis, 
  P.A., Raleigh, North Carolina:
    October 16, 2002, letter.....................................   227
    May 20, 2003, letter.........................................   229
Coalition for a Fair and Independent Judiciary, Robert Bernstein, 
  Executive Director, Bazelon Center for Mental Health Law, 
  Andrew Imparato, President and CEO, American Association of 
  People with Disabilities, joint letter.........................   231
Congressional Black Caucus, Melvin L. Watt, Chair, CBC, Eleanor 
  Holmes Norton, Chair, CBC Judicial Nominations Taskforce, 
  Washington, D.C., letter.......................................   235
Cooney, James P., III, Attorney at Law, Womble Carlyle Sandridge 
  & Rice, Charlotte, North Carolina, letter......................   237
Cooper, Roy, Attorney General, State of North Carolina, Raleigh, 
  North Carolina, letter.........................................   239
Corpening, Felice McConnell, Assistant United States Attorney, 
  Eastern District of North Carolina, Raleigh, North Carolina, 
  letter.........................................................   240
Craige, Burton, Attorney at Law, Patterson Harkavy, LLP, Raleigh, 
  North Carolina, letter.........................................   241
Craven, James, B., III, Attorney at Law, Durham, North Carolina, 
  letter.........................................................   242
Dole, Hon. Elizabeth, and Hon. Richard Burr, U.S. Senators from 
  the State of North Carolina, joint statement...................   243
Everett, Robinson O., Professor of Law, Duke University School of 
  Law, Durham, North Carolina:
    June 25, 2002, letter and attachment.........................   244
    April 21, 2003, letter.......................................   247
Fails, Madine H., President/CEO, Urban League of Central 
  Carolinas, Inc., letter........................................   249
Free Congress Foundation, Center for Legal Policy, Judicial 
  Selection Monitoring Project, Washington, D.C., letter.........   250
Gilchrist, Peter S., III, District Attorney, State of North 
  Carolina, letter...............................................   254
Graves, Debra Carroll, Attorney at Law, Raleigh, North Carolina, 
  letter.........................................................   255
Harden, Holmes P., Attorney at Law, Raleigh, North Carolina, 
  letter.........................................................   256
Human Rights Campaign, David M. Smith, Vice President, Policy & 
  Strategy, Christopher R. Labonte, Legislative Director, 
  Washington, D.C., letter.......................................   258
Indiana Association of Urban League Executives, Dr. A.V. Fleming, 
  President, Chief Executive Officer, Fort Wayne, Indiana, letter   261
Judge David L. Bazelon Center for Mental Health Law, Washington, 
  D.C., letter...................................................   262
Laughrum, George V., II, Attorney at Law, Goodman, Carr, 
  Laughrum, Levine & Murray, P.A., Charlotte, North Carolina, 
  letter.........................................................   270
Leadership Conference on Civil Rights, Wade Henderson, Executive 
  Director, and Nancy Zirkin, Deputy Director, Washington, D.C., 
  letter and attachment..........................................   272
Lewis, E. Hardy, Attorney at Law, Blanchard, Jenkins, Miller & 
  Lewis, P.A., Raleigh, North Carolina, letter...................   285
NARAL Pro-Choice America, Nancy Keenan, President, Washington, 
  D.C., letter...................................................   287
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington, D.C., letter..........   289
National Association of Police Organizations, Inc., William J. 
  Johnson, Esq., Executive Director and General Counsel, 
  Washington, D.C., letter.......................................   292
National Bar Association, Kim Keenan, President, Washington, 
  D.C., letter...................................................   294
National Employment Lawyers Association, Janet E. Hill, 
  President, San Francisco, California, letter...................   301
National Organization for Women, Kim Gandy, President, 
  Washington, D.C., letter.......................................   304
National Urban League, Marc H. Morial, President and Chief 
  Executive Officer, Washington, D.C., letter and attachment.....   306
National Women's Law Center, Nancy Duff Campbell, Co-President, 
  and Marcia D. Greenberger, Co-President, Washington, D.C., 
  letter.........................................................   308
North Carolina National Association for the Advancement of 
  Colored People, Melvin Alaton, President, Greensboro, North 
  Carolina, letter...............................................   310
North Carolina Police Benevolent Association, Inc., John C. 
  Midgette, Executive Director, Raleigh, North Carolina, letters.   312
North Carolina Troopers Association, Terry Story, President, 
  Asheboro, North Carolina, letter...............................   319
Parents, Families and Friends of Lesbians and Gays (PFLAG), Ron 
  Schlittler, Interim Executive Director, Washington, D.C., 
  letter.........................................................   320
Powell, Judith A., Attorney at Law, Atlanta, Georgia, letter.....   321
Professional Fire Fighters and Paramedics of North Carolina, 
  Bobby C. Riddle, Jr., President, Wilmington, North Carolina, 
  letter.........................................................   322
Saltzburg, Stephen A., Howrey Professor of Trial Advocacy, 
  Litigation and Professional Responsibility, George Washington 
  University Law School, Washington, D.C., letter................   323
Schwarz, David A., Attorney at Law, Irell & Manella LLP, Los 
  Angeles, California, letter....................................   324
Stern, Herbert J., Counselor at Law, Stern Greenberg & Kilcullen, 
  Roseland, New Jersey, letter...................................   325
Triangle Urban League, Keith A. Sutton, President, Chief 
  Executive Officer, Raleigh, North Carolina, letter.............   326
United Spinal Association, Jeremy Chwat, Director of Legislation, 
  Washington, D.C., letter.......................................   327
Virginia Police Benevolent Association, Inc., David Graham, 
  President, McDonough, Georgia, letter..........................   328
Webb, William A., former Assistant United States Attorney and 
  Federal Public Defender, Raleigh, North Carolina, letter.......   329
Whichard, Willis P., Dean and Professor of Law, Campbell 
  University, Norman Adrian Wiggins School of Law, Buies Creek, 
  North Carolina, letter.........................................   330
Wilson, J. Bradley, Senior Vice President and General Counsel, 
  Blue Cross Blue Shield of North Carolina, Durham, North 
  Carolina, letter...............................................   331
Yurko, Lyle J., Attorney at Law, Yurko & Owens, P.A., Charlotte, 
  North Carolina, letter.........................................   332

                      THURSDAY, SEPTEMBER 29, 2005


Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......   333


Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee 
  presenting Harry Sandlin Mattice, Jr., Nominee to be District 
  Judge for the Eastern District of Tennessee....................   336
Ensign, Hon. John, a U.S. Senator from the State of Nevada 
  presenting Brian Edward Sandoval, Nominee to be District Judge 
  for the District of Nevada.....................................   337
Frist, Hon. Bill, a U.S. Senator from the State of Tennessee 
  presenting Harry Sandlin Mattice, Jr., Nominee to be District 
  Judge for the Eastern District of Tennessee....................   333
Nelson, Hon. Bill, a U.S. Senator from the State of Florida 
  presenting John Richard Smoak, Nominee to be District Judge for 
  the Northern District of Florida...............................   340
Reid, Hon. Harry, a U.S. Senator from the State of Nevada 
  presenting Brian Edward Sandoval, Nominee to be District Judge 
  for the District of Nevada.....................................   335

                       STATEMENTS OF THE NOMINEES

Mattice, Harry Sandlin, Jr., Nominee to be District Judge for the 
  Eastern District of Tennessee..................................   438
    Questionnaire................................................   440
Sandoval, Brian Edward, Nominee to be District Judge for the 
  District of Nevada.............................................   388
    Questionnaire................................................   389
Smoak, John Richard, Nominee to be District Judge for the 
  Northern District of Florida...................................   341
    Questionnaire................................................   342
Sweeney, Margaret Mary, Nominee to be a Judge for the Court of 
  Federal Claims.................................................   471
    Questionnaire................................................   472
Wheeler, Thomas Craig, Nominee to be a Judge for the Court of 
  Federal Claims.................................................   502
    Questionnaire................................................   503

                       SUBMISSIONS FOR THE RECORD

Allen, Hon. George, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   552
Ensign, Hon. John, a U.S. Senator from the State of Nevada, 
  prepared statement.............................................   553
Gibbons, Hon. Jim, a Representative in Congress from the State of 
  Nevada, prepared statement.....................................   555
Martinez, Hon. Mel, a U.S. Senator from the State of Florida, 
  prepared statement.............................................   556
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   557

                       THURSDAY, OCTOBER 6, 2005


Cornyn, Hon. John, a U.S. Senator from the State of Texas........   561
    prepared statement...........................................   875
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........   566
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................   737
    prepared statement...........................................   885


Allen, Hon. George, a U.S. Senator from the State of Virginia 
  presenting Thomas O. Barnett, Nominee to be Assistant Attorney 
  General, Antitrust Division, Department of Justice.............   562
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah 
  presenting Wan Kim, Nominee to be Assistant Attorney General, 
  Civil Rights Division, Department of Justice...................   727
Lautenberg, Hon. Frank, a U.S. Senator from the State of New 
  Jersey presenting Wan Kim, Nominee to be Assistant Attorney 
  General, Civil Rights Division, Department of Justice..........   564
Lungren, Hon. Dan, a Representative in Congress from the State of 
  California presenting Sue Ellen Wooldridge, Nominee to be 
  Assistant Attorney General, Environment and Natural Resources 
  Division, Department of Justice................................   565
Smith, Hon. Gordon, a U.S. Senator from the State of Oregon 
  presenting Stevn G. Bradbury, Nominee to be Assistant Attorney 
  General for the Office of Legal Counsel, Department of Justice.   563

                       STATEMENTS OF THE NOMINEES

Barnett, Thomas O., Nominee to be Assistant Attorney General, 
  Antitrust Division, Department of Justice......................   672
    Questionnaire................................................   673
Bradbury, Steven G., Nominee to be Assistant Attorney General for 
  the Office of Legal Counsel, Department of Justice.............   596
    Questionnaire................................................   597
Kim, Wan, Nominee to be Assistant Attorney General, Civil Rights 
  Division, Department of Justice................................   566
    Questionnaire................................................   568
Wooldridge, Sue Ellen, Nominee to be Assistant Attorney General, 
  Environment and Natural Resources Division, Department of 
  Justice........................................................   639
    Questionnaire................................................   640

                         QUESTIONS AND ANSWERS

Responses of Thomas O. Barnett to questions submitted by Senators 
  Kohl, Feinstein, and Durbin....................................   748
Responses of Steven G. Bradbury to questions submitted by 
  Senators Grassley, Leahy, Kennedy, and Durbin..................   761
Responses of Wan Kim to questions submitted by Senators Durbin, 
  Feingold, and Kennedy..........................................   787
Responses of Wan Kim to additional questions submitted by 
  Senators Kennedy and Durbin....................................   841
Responses of Sue Ellen Wooldridge to questions submitted by 
  Senator Leahy..................................................   871

                       SUBMISSIONS FOR THE RECORD

Corzine, Hon. Jon S., a U.S. Senator from the State of New 
  Jersey, letter.................................................   881
Fraternal Order of Police, Chuck Canterbury, National President, 
  Washington, D.C., letter.......................................   883
Kim, Wan, to be Assistant Attorney General, Civil Rights 
  Division, Department of Justice, prepared statement............   889
National Asian Pacific American Bar Association, Washington, 
  D.C., letter...................................................   891
National Asian Pacific American Legal Consortium, July 11, 2005, 
  press release..................................................   892
Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   893


Barnett, Thomas O., Nominee to be Assistant Attorney General, 
  Antitrust Division, Department of Justice......................   672
Boyle, Terrence W., Nominee to be Circuit Judge for the Fourth 
  Circuit........................................................     8
Bradbury, Steven G., Nominee to be Assistant Attorney General for 
  the Office of Legal Counsel, Department of Justice.............   596
Conrad, Robert J., Jr., Nominee to be District Judge for the 
  Western District of North Carolina.............................    72
Dever, James C., III, Nominee to be District Judge for the 
  Eastern District of North Carolina.............................    99
Kim, Wan, Nominee to be Assistant Attorney General, Civil Rights 
  Division, Department of Justice................................   566
Mattice, Harry Sandlin, Jr., Nominee to be District Judge for the 
  Eastern District of Tennessee..................................   438
Sandoval, Brian Edward, Nominee to be District Judge for the 
  District of Nevada.............................................   388
Smoak, John Richard, Nominee to be District Judge for the 
  Northern District of Florida...................................   341
Sweeney, Margaret Mary, Nominee to be a Judge for the Court of 
  Federal Claims.................................................   471
Wheeler, Thomas Craig, Nominee to be a Judge for the Court of 
  Federal Claims.................................................   502
Wooldridge, Sue Ellen, Nominee to be Assistant Attorney General, 
  Environment and Natural Resources Division, Department of 
  Justice........................................................   639



                        THURSDAY, MARCH 3, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:00 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Lindsey 
Graham presiding.
    Present: Senators Graham, Specter, Leahy, and Kennedy.
    Senator Graham. The hearing will come to order. I thank 
everyone for attending.
    There is a vote at two o'clock, supposedly. If it is okay 
with everyone, we will hear from Senator Dole and Senator Burr, 
then go vote and come back and continue the hearing.
    With that in mind, I will recognize the senior Senator from 
North Carolina, Senator Dole.


    Senator Dole. Thank you very much. Senator, I want to thank 
you for holding today's hearing which is so important to North 
Carolina. Our Federal bench has been without the service of 
these able judges for far too long.
    It is my honor to introduce to the Committee Judge Terrence 
Boyle, nominee for the Fourth Circuit Court of Appeals; Judge 
Jim Dever, nominee for the Eastern District of North Carolina; 
and Bob Conrad, nominee for the Western District of North 
    I am so pleased to be sitting here with Senator Richard 
Burr. This is the first time that we have testified together as 
Senators. I am glad it is for such a worthy cause as making 
sure that we have excellent judges on the Federal bench.
    Richard, I look forward to working with you on these and 
future judicial nominations.
    When I first joined the United States Senate a little over 
2 years ago, North Carolina had not a single judge on the 
Fourth Circuit Court of Appeals. Imagine, the largest State in 
the circuit and not one judge.
    Currently, North Carolina enjoys the services of Judge 
Alison Duncan, but based on our proportion of the circuit, we 
should have at least four members of the court who consider 
North Carolina home. I look forward to a second North 
Carolinian joining the Fourth Circuit Court of Appeals in the 
near future.
    Judge Terrence Boyle, of Edenton, was first nominated to 
the Fourth Circuit in 1991, then again more than a decade later 
in May 2001. Judge Boyle currently serves on the U.S. District 
Court for the Eastern District of North Carolina, a position he 
has held for 21 years. As a district court judge, he was 
designated to sit with the court of appeals 12 times, and he 
has authored over 20 appellate opinions. From 1997 until this 
past year, he served as past judge.
    Terry received his undergraduate degree from Brown 
University and a law degree from American University. He began 
his career working in Congress at the House Subcommittee on 
Housing, Banking and Currency, and later served as an aide to 
Senator Jesse Helms.
    Following more than a decade of private practice, Terry 
became a U.S. District Judge for the Eastern District. In his 
impressive judicial career, he has received praise from 
attorneys and colleagues of both political persuasions.
    Wade Smith, a Raleigh lawyer and former North Carolina 
Democratic Party Chairman, said about Judge Boyle, and I quote, 
``I think he would happily rule against me and happily rule for 
me, whether I am a Republican or Democrat. I think he makes his 
decisions on the facts and that is the best we could ever 
hope.'' It is my fervent hope that the Committee will act 
expeditiously in sending Judge Boyle's nomination to the floor.
    I would like to turn now to our district court nominees. 
North Carolina has had the longest district court vacancy in 
the country. For 6 years, a seat on the U.S. District Court for 
the Eastern District of North Carolina has been vacant. It is 
considered a judicial emergency by the Judicial Conference.
    Jim Dever, a former editor-in-chief of the Duke University 
Law Journal, was first nominated to fill this longstanding 
vacancy 3 years ago. Jim lives in Raleigh and currently serves 
as United States Magistrate Judge in the Eastern District of 
North Carolina. Raleigh, the State's capital and the district's 
largest city, is without a resident district court judge. 
Elevating Jim to the district court will end this problem.
    There hasn't been one single objection raised about Jim 
Dever's qualifications. He has broad bipartisan support. 
Robinson Everett, a Duke law professor and former Chief Judge 
of the Court of Appeals for the Armed Forces, describes Jim 
Dever as having, and again I quote, ``all the requisite 
qualities. He will be a superb jurist.''
    I am also proud to introduce Bob Conrad, nominated in April 
2003 to be United States District Judge for the Western 
District of North Carolina. Bob is sorely needed. As our courts 
confront the ramifications of the Supreme Court's recent 
decision on the Federal minimum sentence guidelines, it is 
reasonable to expect that we will have even higher caseloads 
and need more judges to deal with them.
    Bob Conrad is held in high esteem by his colleagues, both 
Republicans and Democrats. He is known for his prosecution of a 
cigarette smuggling ring funding the terrorist group Hezbollah, 
and in 1999 Bob Conrad was appointed by then-Attorney General 
Janet Reno to head the U.S. Justice Department's investigation 
into campaign fundraising abuses.
    Bob is a graduate of Clemson and the University of Virginia 
Law School. While at Clemson, he was an academic All-American 
on the basketball team, and I think it looks like Clemson could 
use Bob in the ACC Tournament next week. Bob served as a 
Federal prosecutor in Charlotte starting in 1989. From 2001 
until 2004, he was the U.S. Attorney for the Western District 
of North Carolina. Currently, he is in private practice at one 
of the largest law firms in the world as a partner in its 
Charlotte office.
    All three North Carolina nominees come with impeccable 
credentials and it is my privilege to give them my strong 
support. Again, thank you for holding this hearing.
    Senator Graham. Thank you, Senator Dole.
    [The prepared statement of Senator Dole appears as a 
submission for the record.]
    Senator Burr.


    Senator Burr. Mr. Chairman, I thank you, and I am here with 
tremendous pride to have the opportunity, along with Senator 
Dole, to introduce three distinguished North Carolinians 
nominated to judgeships by President Bush. Today is indeed a 
great day for North Carolina.
    The gentlemen in question--Judge Terrence Boyle, Magistrate 
Judge James Dever and former U.S. Attorney Robert Conrad--have 
all served their State and their Nation admirably.
    Mr. Chairman, I will also talk about the qualifications of 
these individuals and will be repetitive of what Senator Dole 
has said, and I say that for a reason, because these gentlemen 
should be judged based upon the record that they have. I 
believe that the record speaks for itself that they are more 
than qualified to be nominated and every bit qualified to be 
confirmed by the United States Senate.
    There are 15 circuit court judgeships in the Fourth Circuit 
and only one of these is occupied by a North Carolina judge. 
Our neighbor States to the north and to the south within the 
circuit both have four circuit judges. North Carolina is 
chronically underrepresented and not represented at all at the 
circuit court level.
    A great deal of this can, of course, be attributed to the 
political nature of the debate surrounding nominations to the 
Fourth Circuit Court. That time has passed. The people of 
eastern North Carolina, and indeed all North Carolinians 
deserve another voice on the Fourth Circuit.
    Judge Boyle, currently serving as District Court Judge for 
the Eastern District of North Carolina, has been nominated by 
the President to serve on the Fourth Circuit Court of Appeals. 
The American Bar Association has unanimously rated Judge Boyle 
as well qualified, and has stated he would make an outstanding 
appellate judge.
    He has served as a district court judge for 21 years and 
has served in the position longer than 93 percent of the seated 
active Federal district court judges. He has presented over 
more than 12,000 cases, covering every possible kind of Federal 
criminal and civil trial. From time to time, he has been 
assigned to hear cases in the Western District of North 
Carolina and the Eastern District of Virginia, hearing criminal 
cases in both.
    He also has experience at the appellate level, serving as a 
visiting judge on occasion from 1985 to the year 2000. During 
that time, he participated in oral arguments of more than 200 
cases and wrote opinions in more than 50 cases in the court. I 
urge the Committee to move the nomination of Judge Boyle 
    The Committee also has before it two nominees to North 
Carolina district courts. Even a Wake Forest grad like me is 
pleased to endorse them, despite the time that they spent at 
ACC rivals Duke and Clemson, and the University of Virginia. 
But I look past their academic choices even with March Madness 
upon us here in Washington, since they have accounted for 
themselves so well since leaving school.
    Duke Law graduate Jim Dever, nominated by the President to 
the Eastern District, is currently serving the district as a 
magistrate judge. The seat to which he has been nominated has 
been vacant since December 7, 1997, more than 7 years. The 
Administration Office of U.S. Courts has classified the vacancy 
as a judicial emergency since the year 1999.
    The Eastern District of North Carolina includes 44 of the 
State's 100 counties and extends from Wake County, which is 
Raleigh, to the coast of North Carolina. The civil and criminal 
caseloads in the district continue to increase and will 
continue to expand as a result of numerous initiatives launched 
by the U.S. Attorney.
    Clemson and UVA Law grad Bob Conrad, nominated by the 
President to the Western District, is currently in private 
practice in Charlotte. He served as U.S. Attorney for the 
district from 2001 until late last year, and served as an 
Assistant U.S. Attorney for the district for 11 years, from 
1989 to the year 2000. The Western District faces its own 
challenges, where there are currently two judicial vacancies, 
including one created by the untimely passing of Judge 
    This time of the year is doubly important to Bob, who 
played on the Clemson basketball team that advanced to the 
Elite 8 of the NCAA Tournament in 1980. And I am sure they will 
not repeat this year, Mr. Chairman. I remind the Committee that 
he did this while earning an academic all-ACC selection.
    This is indeed an all-ACC academic selection in the three 
individuals that we have here. This Committee and the United 
States Senate has before them the three most qualified 
individuals that I believe North Carolina can produce and I am 
proud to be here with Senator Dole to ask you for your support 
to move their nominations forward.
    Thank you, Mr. Chairman.
    Senator Graham. Thank you, and on behalf of Clemson 
basketball, hope springs eternal. I thank both Senators very 
much for your testimony before the Committee. Thank you both 
for coming.
    We have a vote on. I think the best thing for us to do is 
to adjourn to go vote. I think we have one vote, maybe two. We 
will try to come back to reconvene the hearing at 2:30, and I 
would like to welcome all the family and friends of the 
nominees here today and the nominees themselves.
    We will stand in recess until 2:30.
    [The Committee stood in recess from 2:13 p.m. to 2:49 p.m.]
    Chairman Specter. The Judiciary Committee will resume. I 
thank Senator Lindsey Graham for conducting the hearing up to 
this point. This is a busy day in the Senate. We are 
undertaking consideration of a bankruptcy bill and we just 
finished two back-to-back roll call votes which occupy the 
    I just said I thank you, Senator Graham, and I would like 
to make some comments and then turn the gavel back over to you 

                        OF PENNSYLVANIA

    Chairman Specter. We have before us the confirmation 
proceeding for Judge Terrence Boyle, nominated for the Fourth 
Circuit Court of Appeals.
    Welcome, Judge Boyle.
    Judge Boyle. Thank you, sir.
    Chairman Specter. Judge Boyle was nominated by President 
Bush for this position by both 41 and 43--so that is up to 84; 
maybe that is a lucky number, Judge Boyle--by the first 
President Bush in 1991, and not given a hearing by the 
Judiciary Committee at that time. That is part of what I have 
characterized as the escalation of the controversy over judges 
where I have said that I think both parties bear some of the 
    On May 9th of 2001, shortly after being inaugurated, the 
current President Bush sent his first judicial nominations to 
the Senate. There were 11 judges nominated at that time and 
Judge Boyle is the last one of those 11 to be given a hearing 
at the present time. He did not receive a hearing because a 
home State Senator did not return a blue slip.
    Judge Boyle is currently a Federal judge in the Eastern 
District of North Carolina, nominated to that seat by President 
Reagan in 1984, and confirmed by unanimous consent. He has 
twice been appointed by Chief Justice Rehnquist to be serve on 
committees of the Judicial Conference, which is a high 
distinction. He worked with the Federal public defender's 
office in his district. He has gained broad Federal appellate 
court experience during 12 terms when he was designated to sit 
with the Fourth Circuit.
    He began his career in Congress, where he was Minority 
Counsel to the House Subcommittee on Housing, Banking and 
Currency. Prior to becoming a Federal district judge, Judge 
Boyle practiced law in North Carolina, gaining experience on 
both the civil and criminal sides.
    He has been the recipient of numerous accolades by those 
who have observed his work. The Raleigh News and Observer, the 
hometown newspaper, said this, quote, ``Judge Terrence Boyle 
has a reputation as a Jesse Helms Republican, but to those who 
know the independent-minded jurist, his ruling Thursday against 
the Navy and in favor of environmentalists isn't such a 
shocker. Judge Boyle, the top Federal judge in eastern North 
Carolina, sided with environmentalists in several cases. For 
example, he ruled that a large wetland draining was illegal and 
that farmers couldn't stop the re-introduction of red wolves in 
eastern North Carolina; the State could not widen part of 
Interstate 26 in the mountains before studying the ecological 
impact. His ruling, like the veteran judge himself, is hard to 
    ``In 20 years as a judge, he has won considerable support 
form eastern North Carolina lawyers, who say he is fair to both 
sides and plays it straight, often with tough questioning on 
both sides before him.'' That is from the same News and 
Observer article.
    The Charlotte Observer had this to say, quote, ``Boyle's 
detractors have long argued that such a conservative judge 
should not be confirmed to the Fourth Circuit Court of Appeals. 
But a lot of political moderates and liberals have come to 
admire his rulings in important cases.''
    Jack Betts: ``The judge steps in where politicians dare not 
go.'' That is from the North Carolina Observer of April 25, 
2004. I could go on at considerable length, but I am not going 
to. I will ask unanimous consent that this be made a part of 
the record.
    We turn at this time to our distinguished colleague, 
Senator Kennedy, for an opening statement.

                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you, Mr. Chairman. We are glad you 
are making a speedy and strong recovery.
    Chairman Specter. Thank you.
    Senator Kennedy. As with all nominations for lifetime 
positions on the Federal courts, our Committee has a clear 
responsibility to review Judge Boyle's record on the Federal 
district court.
    As you know, Mr. Boyle, your record raises a number of 
serious questions. There are real questions about whether you 
abused your power on the district court by wrongfully 
dismissing plaintiffs' claims without giving them a fair chance 
to make their case or have their day in court.
    You have been reversed on appeal far more than any other 
district judge in the Fourth Circuit. Too often, those 
reversals have come because you made the same mistake more than 
once. More troubling still is the fact that you seem to have 
been reversed most often and made the most serious legal errors 
in the cases that matter most to average citizens.
    Again and again, the Fourth Circuit has ruled that you 
improperly dismissed cases on important individual rights, such 
as the right to free speech, free association and the right to 
be free from discrimination. You have repeatedly tried to 
strike down important parts of the Americans With Disabilities 
Act. You mis-applied or misinterpreted other landmark civil 
rights laws, including the Voting Rights Act and Title VII of 
the Civil Rights Act of 1964. In numerous cases, the Fourth 
Circuit has ruled that you abused your discretion and refused 
to follow the law.
    In the Voting Rights Act case of Cromartie v. Hunt, the 
Supreme Court ruled unanimously in an opinion by Justice Thomas 
that you failed to follow the basic legal standard on summary 
judgment motions, and that you were wrong to decide, without 
even having a trial, that a Congressional district with a 
significant African-American population necessarily resulted 
from improper racial gerrymandering.
    It is rare for any judge's decision to be unanimously 
reversed by the Supreme Court in a civil rights case or any 
other case. Yet, the Supreme Court later reversed you for a 
second time in the same case for failing to follow the law.
    These are very important concerns and you will have an 
opportunity to respond. We must make absolutely certain that 
persons selected for lifetime appointments to the Federal 
courts will not abuse their power by failing to follow the law. 
We need judges who come to the Federal bench with an open mind 
and a commitment to fairness for all Americans, not judges who 
believe that they are above the law. Your record raises real 
questions about these basic issues.
    The vast majority of your decisions are unpublished and 
have not been provided to the Committee. There is no way to 
tell whether the problems found so far are just the tip of a 
very large iceberg. The American people have a right to know 
how you have treated parties who appear in your court and how 
you have ruled in those unpublished opinions before we act on 
your nomination to a lifetime position on the appellate court.
    Because of the obvious questions already raised, the 
Committee has a special responsibility, I believe, to review 
the entire record in assessing qualifications and judicial 
philosophy. I hope we will have the opportunity to review all 
the opinions and I look forward to the hearing and your 
responses to these serious concerns.
    I thank the Chair.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Kennedy.
    Judge Boyle, will you stand for the administration of the 
    Do you solemnly swear that the evidence and testimony that 
you will give before this proceeding of the Senate Judiciary 
Committee will be the truth, the whole truth and nothing but 
the truth, so help you God?
    Judge Boyle. I will.
    Chairman Specter. Judge Boyle, are there any members of 
your family present this afternoon? If so, we would like to 
meet them.

                       THE FOURTH CIRCUIT

    Judge Boyle. Yes, Senator. My wife, Debbie, is here and she 
has accompanied me, my wife of 33 years, and I am proud and 
pleased to have her by my side.
    Chairman Specter. Thank you very much, Judge Boyle. Would 
you care to make an opening statement?
    Judge Boyle. I just want to briefly thank the President for 
extending this nomination to me, and thank you, Senator Specter 
and all the members of the Committee, for affording me an 
opportunity to have a hearing on the nomination. And I am ready 
to cooperate with the Committee and be as forthcoming and 
helpful as I can be in trying to understand the issues that are 
important that are a part of this proceeding.
    [The biographical information of Judge Boyle follows.] 

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    Chairman Specter. Thank you, Judge Boyle.
    The Committee will proceed with seven-minute rounds. I see 
we have just changed to five-minute rounds. Let's go back to 
seven-minute rounds.
    Judge Boyle, let's proceed right to the core concerns which 
have been raised about your record that you were anti-civil 
rights. What are your views on the rights of Americans under 
the United States Constitution, the Voting Rights Act and civil 
    Judge Boyle. Thank you for that question, Senator. I think 
that is a critical matter for this hearing. I can say 
categorically that I am committed, and committed to enforcing 
the law that provides civil liberties, civil rights, the rights 
of employees.
    And I regret that I am having to defend what I think a more 
complete examination will show is a record of sensitivity to 
plaintiffs and to the underprivileged and to those who don't 
have a voice otherwise.
    Chairman Specter. Can you be more specific in support of 
the statement you just made?
    Judge Boyle. More specific?
    Chairman Specter. Well, with respect to cases, with respect 
to specific decisions beyond the generalization.
    Judge Boyle. Well, you mean cases other than those that 
have been raised in criticism or the ones specifically that 
have been raised in--
    Chairman Specter. Yes, give us a broader view.
    Judge Boyle. Well, I have had voting rights cases other 
than the Cromartie case in which I have certainly enforced and 
been sensitive to Section 2 and the rights of minority voters. 
I have presided over cases involving the enforcement of school 
desegregation cases and have enforced that across the board. I 
have had cases involving the widespread application of the 
Americans With Disabilities Act to residential housing.
    So I think that a careful look at my record will show that 
I am even-handed, that the cases I have decided have been 
decided on the facts as I understood them at the time and not 
based on any agenda. There certainly is no agenda or philosophy 
on my part that is disrespectful from individual rights, civil 
rights and the rights of employees.
    Chairman Specter. In reviewing your record, one of the 
cases which caught my attention particularly was EEOC v. 
Federal Employees, where you ruled against a claim by the 
defendant on a sexual harassment allegation by male employees 
against a female employee.
    You found that, quote, ``The sustained level of abuse 
alleged would certainly constitute an alteration in the 
condition of employment, creating an environment of fear and 
humiliation. The alleged misconduct often took place in a 
predatory manner with a male employee cornering her in a 
secluded part of the ramp area. No doubt, such behavior would 
substantially interfere with the work performance of any 
reasonable person.''
    I have just given a thumbnail description. Can you amplify 
on what happened in that case?
    Judge Boyle. Senator, I am very sorry. I don't have a 
personal recollection of the case, EEOC v.--I apologize. It is 
not one that readily comes to mind.
    Chairman Specter. That is understandable. How many cases 
have you decided?
    Judge Boyle. There have been a lot over time, and we have a 
busy court and we try to be efficient and conscientious about 
    Chairman Specter. If somebody asked me what I said in a 
speech at some protracted period of time, I would have a hard 
time myself, maybe like yesterday, as to what was said.
    You worked with the Federal public defender's office in 
your district in order to expand the local bar's participation 
in providing legal services to indigent criminal defendants. 
The first experience I had at the law was I joined a big firm 
and the county jail was overloaded and they assigned a couple 
of recent law school graduates to represent indigent 
defendants. That got me interested in criminal law and one 
thing led to another.
    Tell us about your participation on the staff of the 
Federal public defender.
    Judge Boyle. Well, I think that my participation has been a 
judge, a district judge, and then as the chief judge for some 
period of time. I have tried to work closely with them, 
supporting the inclusion of not just the Federal public 
defender, but lawyers in private practice who take appointment 
of indigent cases. I have tried to work with them in their 
training and generally outreach to make sure that we have full, 
ready and adequate representation of defendants.
    I have also worked extensively with North Carolina prisoner 
legal services to make sure that prisoners who appear in cases 
in our court are properly represented and there is an 
opportunity for them to have representation when they have 
important claims. I think this is very important.
    Chairman Specter. Do you recollect a case where you granted 
a permanent injunction prohibiting the Navy's construction of a 
landing field which would have adversely impacted a nearby 
wildlife refuge, which was a matter before your court having a 
very substantial environmental impact?
    Judge Boyle. That is a very recent case, yes, sir.
    Chairman Specter. What was involved in that case?
    Judge Boyle. Well, it is a case brought by various parties 
under the National Environmental Policy Act against the Navy, 
but I would be glad to discuss it. I am a little concerned 
because the case is still alive in court. There is a permanent 
injunction, but I wouldn't want to create the impression that 
what I said here might influence the later proceedings in the 
    Would you indulge me not to--
    Chairman Specter. Judge Boyle, that is a very judicious 
    Judge Boyle. --not to talk about that?
    Chairman Specter. No, no. I think you have just established 
some of your mettle, some of your qualifications by declining 
to answer a question from the Chairman of the Judiciary 
Committee. I think you are on solid ground and I admire that.
    I am going to yield at this time to my distinguished 
colleague, Senator Lindsey Graham, to preside over the 
    Judge Boyle. Thank you very much for being here, Senator.
    Senator Graham. [presiding]. Senator Kennedy, are you 
    Senator Kennedy. Thank you.
    Judge Boyle, in your response to the Chairman about the 
actions of your own as a judge on the court or other activities 
that show the sensitivity to these issues, if you want to 
submit letters, cases or other kinds of activities that show 
that that you think would be useful or helpful to us, we would 
welcome it. You can either comment now or you can file them. I 
am glad to have it either way, whatever way.
    Judge Boyle. Thank you for that offer, Senator.
    Senator Kennedy. But I think you should be able to do it, 
and we will certainly make that part of the record and we would 
be interested in your response to that.
    Judge Boyle. Thank you very much.
    Senator Kennedy. I am concerned primarily on these issues 
on the 1991 Act which I was a principal sponsor of that 
overturned the Ward's Cove decision. Actually, our Chairman of 
the Committee, Senator Specter--it started off with Senator 
Danforth and then Senator Specter was the principal cosponsor 
on it.
    I want to talk with you about some of these issues, some of 
these decisions, and get your reactions to it. First of all, 
you have, as I at least understand it, repeatedly 
misinterpreted Title VII of the 1964 Civil Rights Act. That 
deals with employment, as you know, the landmark law against 
job discrimination.
    In U.S. v. North Carolina, you refused to enter a consent 
decree agreed to by the Justice Department and the State of 
North Carolina settling a suit alleging a pattern or practice 
of gender discrimination in hiring and promoting prison guards. 
That case was originally investigated and the lawsuit was 
authorized by the first President Bush.
    North Carolina had agreed to establish an office to oversee 
compliance with Title VII, recruit female applicants and 
compensate women who had not been hired because of their sex. 
The department identified over 600 women who had been harmed by 
discriminatory practices. You refused to enter the decree, 
urging the State to withdraw from the binding contract, and 
ruled that your court had no jurisdiction over the case. Courts 
across the country frequently enter into similar Justice 
Department consent decrees.
    On appeal, the Fourth Circuit unanimously held that your 
decision was an abuse of discretion--unanimously, the Fourth 
Circuit--and it ordered you to enter the consent decree. So 
this is a case of an extreme example of a judge making a 
decision based on his personal opinion, not the law. You 
actually criticized the Department of Justice for including as 
evidence of discrimination the fact that the State hired 
significantly fewer female prison guards than other States, 
including States in the South.
    You wrote that, ``Nothing is more offensive to the idea of 
federalism than the notion that the Federal Government will 
punish a State for having a non-conforming culture, for being 
different than other States.'' Of course, that kind of argument 
was made against desegregation in the 1960's, when some said it 
wasn't the South's culture to educate blacks and whites in the 
same classroom. That argument was wrong then and it is wrong 
    So doesn't it violate our most basic principles of equality 
enshrined in the Constitution and Federal statutes for States 
to discriminate against women for cultural reasons?
    Judge Boyle. Absolutely.
    Senator Kennedy. Do you want to comment about your 
    Judge Boyle. Well, I think that, you know, I respect your 
criticism of it, and obviously it was criticized in the Fourth 
Circuit. And what came to me and my reasoning--and apparently 
it was ineffective reasoning--was to have a parties make a 
showing to me and to provide the court with a basis for 
invoking the injunctive power of the court.
    During the hearings and in the discussion, it was well 
understood that they could settle a case and enter into a 
compliance arrangement without having a continued injunction 
and subsequent court proceedings that would involve the 
remediation and the remuneration of the people who were going 
to make claims.
    And I won't take up too much time in trying to explain it 
unless you would like, but the point that I entered the case 
was whether or not they were going to make a complete showing, 
because later on I presided over, after the reversal and 
remand, all of the remediation in the case, heard the claims of 
the persons who came forward, made the distributions. So I 
faithfully complied with that, and I hope that in some way 
answers your question.
    Senator Kennedy. Well, the only issue, as I understand it, 
was whether the settlement agreement was fair. That was the 
only issue that was really before you, as I understand it, and 
the decision that had been made was based upon--the Justice 
Department relied on various statistics in making their own 
judgment. You had one judgment to decide and that was whether 
it was fair, and you evidently decided that it wasn't fair. 
Then your actions were overruled unanimously by the court.
    Judge Boyle. They were.
    Senator Kennedy. When Congress enacted the 1991 Civil 
Rights Act, we expressly provided for a process in which a 
plaintiff could prove discrimination by looking at the effects 
of various practices. It is very difficult to prove what is in 
someone's mind, but you can look at a practice and see that it 
has the effect of discriminating against a certain group and 
there is no legitimate business necessity for that requirement.
    That change amended Title VII to include the kind of 
disparate impact analysis that the Supreme Court recognized in 
Griggs v. Duke Power when it held that facially neutral 
employment practices cannot be allowed to act as a built-in 
headwind to employment opportunities for any group.
    So your opinion in the North Carolina tried to, as I 
understand, impose the opposite result. You held that instead 
of disparate impact analysis, the 1991 amendments overruled it. 
Two years earlier, the Supreme Court had held exactly the 
opposite of what you decided. In Lanzgraf v. USI Film 
Productions, the Supreme Court interpreted the 1991 Act's 
legislative history as expanding Title VII to allow proof of 
discrimination using disparate impact analysis without proving 
    The Supreme Court specifically noted that Section 205 of 
the 1991 Act, entitled ``Burden of Proof and Disparate 
Impact,'' was passed in response to the problem of cases like 
Ward's Cove to clarify the requirements in disparate impact 
    Do you agree today that your opinion misrepresented the 
1991 amendments and that proof of discriminatory intent is not 
required in a Title VII disparate impact case?
    Judge Boyle. I agree with your statement, Senator, that 
proof of disparate impact is not required, and I certainly 
abide by the 1991 amendments and I have heard cases and applied 
that law since then.
    Senator Kennedy. Well, that is completely contrary to your 
decision in the North Carolina case.
    Judge Boyle. Well, that language wasn't the rule of 
decision because the case was never decided by me. But you are 
correct that you are pointing out that what I said in that case 
was subject to criticism.
    Senator Kennedy. Now, I see the time. I will withhold. I 
have some additional questions.
    Senator Graham. Well, there are three of us and I think we 
need to be flexible.
    Senator Leahy, would you like to make an opening statement?
    Senator Leahy. Mr. Chairman, I will put my opening 
statement in the record, in the interest of time.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Leahy. I would also put in the record a number of 
letters of opposition, including the National Association of 
Police Organizations, the North Carolina Police Benevolent 
Association, the Alabama Police Benevolent Association, the 
South Carolina Police Benevolent Association, the Virginia 
Police Benevolent Association, the North Carolina Troopers 
Association, and the Professional Fire Fighters and Paramedics 
of North Carolina.
    I will put those in the record, and when it is my turn to 
ask questions, I do have some questions.
    Senator Graham. Without objection, they will be entered 
into the record.
    Senator Leahy, you may proceed.
    Senator Leahy. Thank you, Mr. Chairman.
    Judge Boyle, it has been mentioned by some already, and you 
may even have caught word that some in the press have said the 
same thing, that your nomination has had some controversy, 
partly because of your record on the district court. People 
have highlighted your high number of reversals--actually, the 
high percentage of reversals, which is probably even more 
    Now, by our calculations, based on the information you have 
given us, 12 percent of your decisions that have been appealed 
were reversed. Of course, those are the only ones you look at, 
the ones that were appealed. But that is twice as often as the 
average for the entire Fourth Circuit. The Fourth Circuit is a 
pretty conservative circuit, the most conservative in the 
    Now, I looked at that information and I was kind of 
surprised. A couple of weeks ago, I was looking at your updated 
questionnaire, and in that one you reported fewer than half of 
the 142 reversals, partial reversals, or affirmances with 
criticism that you reported back in 2000 and 2003. Actually, 
you reported only about a third of the 150 we found. You told 
the Committee the cases you left out did not include a 
significant criticism of a substantive or procedural ruling. 
But when I compare those, this doesn't seem to add up.
    Let me give you just a few examples from the 82 cases which 
I believe you shouldn't have left off your questionnaire. In 
U.S. v. Barry, the Fourth Circuit, writing about your opinion, 
said ``The court's departure constitutes error that was 
plain.'' In U.S. v. Tanner, the appellate court criticized you 
and they held ``The district court abused its discretion.''
    In U.S. v. Sherrill, the appellate judges remanded the case 
because you failed to make factual findings even though there 
was clear precedent that you had to do that. In U.S. v. Phalan, 
the defendant's sentence was vacated because the sentence 
exceeded the Federal statutory maximum--a very clear error of 
    In U.S. v. Privott, the Fourth Circuit vacated your order; 
more than vacated it, they told you to comply with a Fourth 
Circuit precedent--as you know, of course, the Fourth Circuit 
precedent would control what you are doing--that was 5 years 
old. And if that point didn't make it clear enough, they said 
there was also a Supreme Court precedent 2 years old that you 
had not complied with. In fact, that was one of at least two 
different times you ignored that particular precedent which is 
binding on you as a district judge. Now, these are just a few 
of the cases as we go down the list.
    Can you give me a better explanation than the one you 
submitted last week about why you left out so many cases when 
an appellate court decided you made a substantive or procedural 
error, especially since you didn't include some of the cases 
you left out the last time you were before us?
    Judge Boyle. Thank you, Senator. I would like to explain 
this questionnaire response. Starting in 1991, my 
interpretation of the question was to provide all the cases in 
which you have been other than affirmed. I did that in 1991. I 
built on that in 2001. I built on that again in September of 
2001 and in January of 2003.
    And it was my impression that rather than that 
characterization, the response was that these were all 
reversals, and they weren't, in fact, all reversals. They had 
some other treatments, some of them, and so I tried to answer 
the question.
    I knew that all of the things I had submitted heretofore 
were before the Committee. There is no attempt to be evasive or 
non-compliant. I can assure you of that, and what I did was 
recharacterize the decisions by reversed, remanded, vacated, 
and I didn't include those that appeared to be cases of not 
significant comment on the law or procedure.
    Now, if the Privott case--you mentioned a number of cases 
and I am sorry that my memory doesn't pull every one of them 
out, but I think the Privott case might be a fairly recent one. 
And I know about that case and I would be glad to explain it to 
    Senator Leahy. Before we go to that--and I would like the 
explanation, but let me take one. I still can't escape the idea 
that because in so many of these cases the criticism was so 
strong that it leads to the conclusion by some of us that they 
were left out not because of the nature of the form or 
something like that, but left out because of the criticism.
    I will give you a case, Cromartie, C-r-o-m-a-r-t-i-e, v. 
    Judge Boyle. Cromartie.
    Senator Leahy. Cromartie.
    Judge Boyle. Yes, sir.
    Senator Leahy. Thank you. That was a voting rights case.
    Judge Boyle. Right.
    Senator Leahy. The United States Supreme Court reversed you 
twice, one time by a vote of nine to zero. I am not sure that 
our current Court could agree on a lunch order nine to zero, to 
say nothing about a major case, and they reversed you on it. 
But you leave that out and it does bother me, Judge. It really 
does bother me because your number of reversals--you had 
included that one, I am advised, but not as a significant 
constitutional case. The Supreme Court reversed it nine to 
nothing. I would consider it significant.
    What I am getting at is you get reversed so much. You get 
reversed by a court that should be ideologically with you. I 
began my public life in law enforcement and I hear from so many 
in law enforcement who are opposed to you. I try to separate my 
former life from that, but I just wonder are you so out of the 
mainstream that you shouldn't be on an important appellate 
    I will stop with that because I think out of fairness to 
you, you ought to be able to respond to that.
    Judge Boyle. Which part of that, Senator, the out of the 
mainstream or the--
    Senator Leahy. Based on these reversals.
    Judge Boyle. I hope that I am clearly in the mainstream, 
and have done my best to apply the law and hear cases on an 
individual basis, have no agenda or predisposition about cases. 
I really can't give you any sort of justification about the 
reversals. The reversals are there and I will just have to 
address those.
    I think that the comments by these PBA organizations all 
arise out of a single case in which a police officer was 
working part-time at night and was disciplined. And it was a 
public speech case and I ruled against him, and it was reversed 
and then came back, was heard and they ultimately lost. But I 
don't think you will find that I have been hostile to enforcing 
the law or protecting people in their rights and safety.
    Thank you very much, Senator.
    Senator Leahy. Thank you, Mr. Chairman. I wanted him to 
have a chance to answer that. I would note that a number of 
Senators planned to be here. Senator Feingold had planned to be 
here, and there has been a death in his family and he has flown 
back to Wisconsin because of that.
    As you know, we have a major issue on the floor which is 
tying up both Republicans and Democrats at great length. In 
fact, I am told that we actually had to waive the Senate rules 
to make it possible to have this hearing. Normally, the hearing 
would not have been allowed. I mention that because I have 
heard from both Republican Senators and Democratic Senators who 
wanted to be here, and on a Thursday afternoon it has made it 
almost impossible.
    I will have further questions. If I get stuck on the floor, 
because I am also one of the managers of the bill on the 
    Judge Boyle. Yes, sir.
    Senator Leahy.--I will submit the questions if I don't come 
    Judge Boyle. Thank you, Senator.
    Senator Graham. If I may just a moment here, Judge Boyle, I 
certainly come to this hearing very open-minded and I have been 
given some paper that suggests that according to the 
Administrative Office--and I really can't tell you who they 
are, but apparently they are the folks that keep track of 
reversal rates.
    There is a dispute about how many cases fall into the 
category of reversal that you have authored or been involved 
in. This talking paper I have says that 92 out of 1,200 cases 
you have decided would be consider reversals under the 
Administrative Office procedures, with a 7.5-percent reversal 
rate. I have also been told that the national average is 9.7. 
So this is a little bit like basketball.
    What I would like to do is have our staffs at an 
appropriate time look at the Administrative Office standards, 
compare that to what we know about Judge Boyle's record and see 
if it is 7.5 or 12 percent. And I am not going to ask you to 
explain this to me because I think that would be highly unfair.
    United States v. North Carolina. When it was reversed and 
remanded, was there an effort to have the case sent to another 
judge? Do you remember?
    Judge Boyle. I remember there was comment, I think--and I 
haven't looked at this carefully--I think there was a comment 
in the appellate opinion that said that there was no reason why 
I couldn't continue to hear and abide by the law of the case. 
And it continued in front of me and we had a very successful 
remediation of the case, and many people came in and were 
compensated and it was all handled in a very progressive way 
from the rights of the employees and those prospective 
    But anyway, thank you.
    Senator Graham. I just mention that because I believe the 
court disagreed with you, as Senator Kennedy has pointed out 
and you readily accept, that your interpretation had to give 
way to theirs. But there was a dispute about whether or not you 
are the right guy, given the circumstances, to carry this case 
out, and apparently the appellate court had faith in your 
ability to do that and you performed that role after the 
reversal and remand. Is that correct?
    Judge Boyle. That is correct, Senator.
    Senator Graham. All right. Now, you have been on the Fourth 
Circuit in a fill-in capacity, for lack of a better word. You 
have authored 50 opinions. Is that right?
    Judge Boyle. I think that is correct. I know I have sat on 
more than 200 argued cases, and the typical distribution is 
about a third. And I think that someone made reference to 20 
opinions. That may have been published ones, but there are per 
curiam opinions and ones that don't bear the panel member's 
name. So I would say that is correct.
    Senator Graham. Have you had reversals there?
    Judge Boyle. I really don't--that would be in the Supreme 
Court. I really don't recall.
    Senator Graham. Okay, thank you.
    I will yield to Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    I would like to have you think about Ellis v. North 
Carolina, in which an African-American woman claimed that she 
was fired because of her race, in violation of Title VII. In 
2002, you dismissed her case because you said the Act doesn't 
apply to States.
    That decision was wrong. Congress amended Title VII in 1972 
to cover job discrimination by States, and the Supreme Court 
has held repeatedly for two decades before you issued your 
opinion that States are not exempt from Title VII. When the 
Fourth Circuit reviewed your opinion on appeal, it unanimously 
found that you had violated Supreme Court precedents.
    Judge Boyle. Senator, would you permit me to explain that?
    Senator Kennedy. Sure.
    Judge Boyle. Thank you very much, and I have to say that 
there is no way that you could know the mistake in there 
because you are reading and you are entitled to look at the 
Fourth Circuit's case.
    I looked at the case file and my opinion in that. The 
plaintiff, represented by counsel, brought a Title VII claim 
and three State tort law claims. In the Title VII claim, the 
employee failed to file a claim with the administrative agency 
or with the EEOC, and consequently we had no subject matter 
    The 11th Amendment defense only applied to the State tort 
claims. And, of course, the States are exempt in Federal court 
from State tort claims. And it was on that basis that I wrote 
my district court opinion which was appealed to the Fourth 
    How they came up with their opinion is beyond me, with all 
due respect, Senator, and I was shocked when I saw that 
opinion. I immediately went to it and tried to find the facts. 
The facts are categorically as I am telling you and I am sorry 
that that has become an issue.
    Senator Kennedy. Well, as I understand it, the question was 
whether Title VII and the amendments of Title VII would have 
applied to job discrimination by the States. Now, your are 
saying--what was your view?
    Judge Boyle. Absolutely. I mean, as soon as I saw that 
opinion come back, I said, my gosh, in my sleep I know that 
Title VII applies to the State. Section 5 of the 14th Amendment 
was used by Congress to abrogate State sovereign immunity. I 
never would have held that there was 11th Amendment immunity on 
a Title VII case.
    And what happened was it was a submitted case. It was not 
argued. And I am sorry that, you know, we have had to have this 
discussion about it, but I hope it will clear the record.
    Senator Kennedy. So in your own words, in the discussion 
you say, ``Next, the State and the DAHS, an agency of the 
State, are entitled to sovereign immunity, pursuant to the 11th 
Amendment in the United States Constitution.'' Those are your 
own words.
    Judge Boyle. Only with respect to the three State tort 
claim claims. The first claim there was no subject matter 
jurisdiction over because they had failed to make an 
administrative complaint, with all due respect. I am sorry, 
    Senator Kennedy. No. That is good. It is helpful.
    In the Cromartie case, the reversal by the court of appeals 
has raised certain concerns. I mean, it is so high. It is 
almost, as I understand it, twice as high as any other district 
court judge. I think the Chairman, Senator Graham, has 
indicated that we are going to have a chance to review it.
    You were often reversed for plain error because you 
disobeyed the law or ignored the relevant legal standards. I am 
troubled by your decisions in the civil rights case. My concern 
is the apparent hostility to civil rights claims by minorities 
and women or persons with disabilities. You have been quick to 
rule in favor of whites who challenge State actions favorable 
to minorities.
    Your decision in Cromartie v. Hunt illustrates the problem. 
White voters in North Carolina challenged a Congressional 
district with a substantial African-American population 
claiming it had been unconstitutionally drawn for racial 
reasons. The issue was whether the white voters could prove 
that the lines had been drawn for racial rather than political 
reasons. You granted the summary judgment for the plaintiffs 
before the parties could gather evidence in discovery and 
without even holding a trial.
    In the opinion, Justice Thomas ruled, nine-zero, that you 
failed to follow the law and you were to quick to conclude that 
the district was an illegal racial gerrymander. The Supreme 
Court specifically found you ignored the proper legal standard 
for summary judgment by disregarding the State's evidence which 
required a trial.
    Then when the case came back from the Supreme Court, you 
held the trial, disregarded the evidence and simply entered the 
same decision you made before. Some parts of your second 
opinion are almost word-for-word the same as the earlier 
decision. The Supreme Court reversed you again and said your 
second opinion was clearly erroneous and ``you improperly 
relied on precisely the kind of evidence we said was inadequate 
the last time the case was before us.''
    So looking at your two opinions, it is hard to avoid the 
conclusion that you ignored the facts or ignored the law and 
ignored the Supreme Court to reach the result that you might 
have wanted.
    Your reaction?
    Judge Boyle. Thank you, Senator. And will you permit me to 
explain that?
    Senator Kennedy. Sure.
    Judge Boyle. It is an important case and I will try to be 
as expeditious as I can.
    Senator Kennedy. Do you want to, Chairman, just hold so you 
can have your full--we have I guess 7, 6 minutes, and I do not 
want to rush you. I am going to be right back.
    Judge Boyle. Okay. Do you want me to hold it until you come 
    Senator Kennedy. Yes.
    Judge Boyle. That will be great.
    Senator Kennedy. Thank you very much.
    Senator Graham. The Committee will be in recess for 15 
    [Recess from 3:26 p.m. to 3:57 p.m.]
    Senator Graham. The hearing will come back to order, and 
Senator Kennedy's question I think is before Judge Boyle. If 
you would like to answer it.
    Judge Boyle. Yes, thank you, Senator. Are you ready? Okay, 
    Senator Kennedy. Thank you.
    Judge Boyle. I think the first thing that I'd like to point 
out, and this is important, is that there were two 
Congressional districts under challenge in that case. One was 
the 1st and the other was the 12th. The three-judge court that 
I was assigned to heard challenges to both of those, and 
throughout both cases that we're talking about, Comartie I and 
Comartie II, we consistently held that the African-American 
district, the majority district in the 1st, was a 
constitutional exercise of the State's districting power. The 
challenge was to the 12th that had a more attenuated geographic 
composition, and the vote was 2-1 on that.
    But just in summary--and I'll be more than happy to discuss 
this case at length--I think it's important to see that we 
stood up for and vindicated the rights of African-Americans in 
the districting decision in the 1st District, and we ruled that 
the 12th District was unconstitutional. It was a three-judge 
panel, and I ended up writing the majority opinion on the 12th 
    As I say, Senator, thank you for that question.
    Senator Kennedy. I will be glad to look through your answer 
on this, and also the Court's statement and comments about what 
their characterization was in terms of they felt was the 
rationale and the reasoning.
    I want to go to the ADA if we could. Judge Boyle, in the 
Americans with Disabilities Act, I think a fair reading of this 
would be that you repeatedly misinterpreted the ADA in favor of 
the big business to limit the rights of the disabled. When 
Congress passed the ADA, we specifically listed the examples of 
reasonable accommodation. Reassigning an employee with a 
disability to a vacant position was one of them. But in the 
Williams v. Avnet, you ruled that reassigning a disabled worker 
to another vacant position is never a reasonable accommodation. 
So the ruling was incorrect. The ADA itself clearly, 
specifically cites reassignment to a vacant position as an 
example of reasonable accommodation. You held these plain words 
in the law were merely suggestive and not a force of law.
    Your summary judgment was upheld by the Fourth Circuit on 
other grounds, but the appellate court made absolutely clear 
that you were wrong when you stated the examples of reasonable 
accommodation listed in the statute did not have the force of 
law. The Court noted that obviously Congress considered these 
types of accommodations to be reasonable. So if the Congress 
gave the specific examples of the reasonable accommodation, how 
could you hold that those examples are never reasonable under 
the statute?
    Judge Boyle. Thank you for the question. And I agree with 
you that the Americans with Disabilities Act is a very 
important and essential law. The Fourth Circuit, apparently 
correctly overruled me in that case. That was a judgment that 
was not correct. And I think I can say categorically that I 
agree that the Congressional language is the governing 
    Senator Kennedy. But you do not know why, given the Act 
itself specifically cites the reassignment to a vacant 
position, you do not know why you interpret those words to be 
merely suggestive rather than the force of law?
    Judge Boyle. I think they have the force of law, and I was 
obviously correctly criticized in that case.
    Senator Kennedy. I think this just raises the kind of 
question in people's minds about whether your respect for the 
plain language in the statutes and whether we can assume that 
you will properly interpret the statutes in the future. This is 
the point I am getting at.
    In the Williams case you also ruled that courts should not 
second guess the employer about whether an accommodation is 
reasonable, and should defer to employers what is a reasonable 
accommodation. You stated that if a court did not determinable 
reasonableness from the employer's point of view, it would be 
engaging in a subjective legislative exercise.
    In reviewing your decision the Fourth Circuit criticized 
this part of your opinion, explaining that it is the court's 
responsibility to determine what accommodation is reasonable. 
So why do you think that considering a key legal issue strictly 
from the view of one party, which is the employer, is not 
subjective? If that is your view of objectivity, how can we 
trust that you will not simply decide cases from the viewpoint 
of big business over whichever party is the more powerful?
    Judge Boyle. Is that the same case, the Williams v. Avnet?
    Senator Kennedy. This is the Williams case, yet.
    Judge Boyle. The Avnet case, the one I just commented on.
    Senator Kennedy. Yes.
    Judge Boyle. Yes. I think that I'm saying to you here that 
I'm committed to applying the law, and respect the inclusion 
that Congress made of the specifics on that law.
    Senator Kennedy. There is sort of two issues. One is the 
statute for reasonable accommodation, and the other is the 
interpretation you used, reasonableness from the employer's 
viewpoint, and that is what I was looking at.
    Judge Boyle. Yes, sir.
    Senator Kennedy. I think probably your answers have 
probably covered those.
    You repeatedly overruled in other ways from misreading the 
Americans with Disabilities Act. Moreover, you ruled that Title 
II of the Act is unconstitutional. One of the most disturbing 
aspects of your opinion is that you have repeatedly criticized 
the landmark statute for giving what you call special 
privileges to the disabled.
    In Brown v. North Carolina Division of Motor Vehicles, you 
wrote that Title II of the Act which prohibits discrimination 
against the disabled by the States is unconstitutional because 
it seeks to single out the disabled for special advantageous 
    In another case, in Pierce v. King you held that Title II 
was unconstitutional as it applied to State prisons, stating 
that the Act granted special treatment tailored to the claimed 
disability. The Supreme Court overruled your decision in that 
case. Your view that accommodations have nothing to do with 
equal treatment is really wrong. For a person who needs the 
wheelchair ramp to get into the courtroom, or for a deaf child 
who needs assistance in the classroom, failing to provide an 
accommodation means inability to access justice or inability to 
learn. So without taking into account the particular needs and 
circumstances of persons with disabilities, there is no way to 
ensure that they have the equal opportunity.
    Judge Boyle. You want me to comment on the Brown case or--
    Senator Kennedy. Well, on your opinion which you followed 
which severely limited participation of the disability groups 
in society. If we followed your interpretation of special 
advantaged treatment, if that was to be criteria, we would 
disadvantage many in the disadvantage movement and that is the 
point I am driving at.
    Judge Boyle. I recognize your point, and again, I can say 
categorically that I am committed to enforcing the rights of 
the disabled and the rights of the Americans with Disabilities 
    I know there's been criticism of the Brown case, Senator, 
and that case turned an 11th Amendment interpretation. Whether 
or not I agreed with it personally, it was an application that 
I felt was compelled, and it ends up being the law right now, 
but that is all I can say. It was affirmed on appeal.
    I quite understand and am sensitive to your concerns and to 
the rights of the disabled.
    Senator Kennedy. The Supreme Court has recognized that 
reasonable accommodations are about equal treatment for people 
with disabilities, and they are needed for people with 
disabilities to have the same opportunities as others. That is 
the Tennessee v. Lane and U.S. Airways v. Barnett. Rather than 
being special treatment, rather than equality, that was a very 
important concept that was rooted in the Americans with 
Disabilities Act, and that is enormously important to have the 
Act interpreted in that way.
    Judge Boyle. And I'm committed to that, Senator, both as a 
District Judge, and in the event that I move to a different 
court, I will continue to be committed to that. And I very much 
appreciate your comments on it.
    Senator Kennedy. I just have a few more questions, Mr. 
    Do you stand by your opinions that Congress exceeded its 
authority by allowing individuals to sue States for disability 
discrimination and public programs?
    Judge Boyle. Is that the Brown v.--
    Senator Kennedy. It is just about whether you--that we 
exceeded the authority by individuals being able to sue when 
you have disability discrimination in public programs, should 
    Judge Boyle. No. I think the only issue that I've ruled 
on--and it was a discrete issue. It was not focused on the 
Americans with Disabilities Act so much as it was focused on 
Section 5 of the 14th Amendment and whether there had been a 
constitutional abrogation of sovereign immunity. And quite 
honestly, the law appeared to be the way I wrote it, and it was 
affirmed, and I couldn't get around that.
    Senator Kennedy. On the issue on criminal justice, the 
Fourth Circuit has repeatedly reversed decisions in criminal 
cases, often for making the same clear error more than once. 
You were twice reversed for wrongfully allowing a criminal 
suspect to go free, in U.S. v. Braswell, and United States v. 
Wolfe, several criminal cases the Fourth Circuit held that you 
committed plain error, an error so severe that it undermines 
the fairness, integrity or public reputation of the court 
proceedings. That is the Fourth Circuit holding.
    You were reversed for plain error for permitting the 
Government to break a plea agreement in United States v. 
Garrison. You were reversed for plain error for mistakes you 
made in empaneling a juror, United States v. Hanno. You have 
been reversed for plain error in sentencing cases, United 
States v. Barry. The list goes on.
    In matters regarding the guilt or innocence and whether 
someone goes to jail for how long, it is crucial that judges 
get the law right. So given your record in the criminal cases, 
how we possibly feel a sense of confidence in you with regard 
to the courts?
    Judge Boyle. Thank you, Senator. I've handled a lot of 
criminal cases, felonies and misdemeanors, jury trials and 
pleas and sentencings over these several years, and it has been 
my commitment to recognize and provide all criminal defendants 
the criminal process with their rights and dignity, and 
obviously I've been criticized at times. That's part of the 
world of working in the criminal justice system. But you have 
my commitment--
    Senator Kennedy. Politics too.
    Judge Boyle. Yes.
    Senator Kennedy. Let me just, there are two final areas.
    Judge Boyle. Certainly.
    Senator Kennedy. You have misapplied the law to denying 
claims by citizens based on the right to free speech, the 
Edwards v. City of Goldsboro. You improperly dismissed the 
First Amendment claims by Police Officer Sergeant Ken Edwards, 
who has been suspended for teaching courses on concealed 
handgun safety. The Fourth Circuit held that you abused your 
discretion by failing to allow Sergeant Edwards to amend his 
complaint before you dismissed his case. Federal Rules of Civil 
Procedure clearly require that permission to amend a complaint 
shall be freely given when justice so requires. The Fourth 
Circuit ruled that you ignored well-settled law, that 
permission to amend a complaint can be denied only if it would 
be futile, is requested in bad faith or would result in 
prejudice to the defendant. So how could you not be aware of 
this basic requirement in Federal rules and well-settled 
interpretation be followed?
    Judge Boyle. Thank you, Senator. I hope I'm not being too--
    Senator Kennedy. No, it is fine.
    Judge Boyle. I remember that case well, and that's the 
liability of my being here. And that was a police officer who, 
as you mentioned, was working moonlighting, and I mentioned 
that earlier in our conversation here today, and he was 
disciplined. He wasn't suspended. He was given some discipline. 
And he brought a First Amendment 1983 Civil Rights claims 
against the police department.
    Well, the issue was whether his speech, his work in this 
moonlight job, was public or private speech. And it was pretty 
manifest to me--and I think the outcome of the case 
ultimately--which we don't have to worry about today--was that 
it was private speech. So the case was dismissed on those 
    The fact that it has been, you know, sort of given a life 
of its own is nothing that I have any control over, but it was 
a public/private speech case, and there was no animus or lack 
of respect for police officers and the rights and dignity of 
police officers. There's a whole body of case law about quasi-
military, i.e., police, fire and what rights they have within 
their organization to free speech and--I won't go into that. 
But anyway, thank you.
    Senator Kennedy. As I understand, it dealt with teaching 
courses on concealed handgun safety?
    Judge Boyle. The State had adopted a permitting law 
sometime around then, allowing you to carry a concealed weapon. 
And he was teaching in a community college, my memory is, and 
there was a general policy in his police department--can't 
remember which one, I think it may have been Goldsboro--in his 
police department against engaging in quasi-police outside 
activity. And that was more or less the long and the short of 
    Senator Kennedy. Did you feel that his right to amend his 
plea failed to meet the Federal Rules of Civil Procedure that 
says that he is able to amend the complaint shall be freely 
given when the Fourth Circuit ruled that you ignored the well-
settled law--it is not me that is saying that. It is the 
Federal Court, it is the Circuit that is saying that you 
ignored it. It is not me saying it, your judgment about whether 
it is public/private teaching, public expression, private 
expression. The Fourth Circuit said you ignored the well-
settled law, and I am just wondering the reasons why.
    Judge Boyle. Again, I apologize for being defensive, if 
that's the way it appears. I'm not trying to be. I'm just 
trying to be--explain it. The dismissal motion had been well 
briefed and the facts were focused on that, and it appeared to 
me that the amendment, I believe, would have been futile 
because the critical issue was whether the speech was private 
or public, and that wasn't going to change by the amendment. 
But that's an imperfect memory of how things worked.
    Senator Kennedy. You have served as a judge on the District 
Court for 20 years, and in that time you have authored over 
1,000 opinions, the vast majority of which you chose not to 
publish. Most of those unpublished opinions have still not been 
given to the Committee. I believe the American people are 
entitled to know your record on the district before you are 
promoted to a lifetime position on the Federal Court of 
Appeals. Do you have any problem in submitting your unpublished 
opinions to the staffs?
    Judge Boyle. Thank you, Senator. Everything that I do, as 
certainly you well know, is a matter of public record, and so 
my opinions are filed with the court and are there with the 
case files, and everything I've done has been open and subject 
to public scrutiny. And I'll be more than happy to work with 
the Committee to resolve this.
    Senator Kennedy. I have some others, Mr. Chairman. I'll 
submit additional questions. I want to thank you very much, 
Judge Boyle, for being here this afternoon.
    Judge Boyle. Thank you very much, Senator.
    Senator Graham. Thank you, Judge Boyle. I know we should 
stop, but I just want to make a few points. I know you do not 
feel well, and thank you for being here today, and I thank 
Senator Kennedy for I think a pretty good exchange.
    As I understand Brown v. North Carolina Division of Motor 
Vehicles, it is not about whether the Americans with 
Disabilities Act is a good thing or a bad thing, it is about 
whether or not the State, when the State finds itself having to 
comply with Americans with Disabilities Act, whether or not we 
in Congress wrote the statute to absolve the 11th Amendment 
sovereign immunity, and that is the issue. It is about the role 
of the State when the State finds itself as a defendant. The 
State has constitutional protections in our Constitution, and 
how that Act affected the 11th Amendment was later decided in 
University of Alabama v. Garrett, very much along the line of 
thinking that you had in Brown.
    When it comes time to amend the complaint in the case that 
you are talking about with the police officer, I think the 
concern that some people have is that you just for some reason 
were hard over. If your belief was that the amendment would not 
change the outcome based on your reasoning, that is something 
that was helpful to me.
    You have had 12,000 cases they tell me, somewhere in that 
neighborhood. You have had 1,200 appealed. According to the 
Administrative Office of the Courts, which is a group of people 
in the Federal Judiciary that keep count of what is the 
reversal, our numbers say that 92 of the 1,200 were reversed, 
which would be a 7.5 percent reversal rate, and that the 
national average is 9.7. If there is any doubt about that, I 
would like our staffs to get together and see if we can come up 
with common agreement.
    The last thing that I would make a comment about, Judge 
Boyle, is that after 20 years and 12,000 cases, the American 
Bar Association unanimously agreed that you are well qualified, 
and thank you for coming.
    Judge Boyle. Thank you.
    Thank you, Senator Kennedy.
    Senator Kennedy. Thank you.
    Judge Boyle. May I be excused?
    Senator Graham. Yes, sir. Thank you.
    Next we will have our next panel. Would you please raise 
your right hands, please?
    Do you solemnly swear the testimony you are about to give 
before the Committee is the truth, the whole truth and nothing 
but the truth, so help you God?
    Judge Dever. I do.
    Mr. Conrad. I do.
    Senator Graham. Thank you both for coming. We will start 
with Mr. Conrad. Do you have your family here?


    Mr. Conrad. I do, Senator.
    Senator Graham. If you would like to introduce them.
    Mr. Conrad. I have my wife, this June, my wife of 25 years, 
Ann Conrad with me, and I would note for the record that on my 
20th anniversary I spent the day testifying before Senator 
Specter 5 years ago.
    I have two children with me, Kimberly Conrad and Branden 
Conrad who's a midshipman at the United States Naval Academy. 
My mother, Dorothy Conrad, is here from Chicago, Illinois, as 
is my sister-in-law, Mary Conrad, and her two daughters, 
Bethany and Anna Conrad.
    My father- and mother-in-law are here from Greensboro, 
Charlie and Mazie Atkinson, as is their daughter, Barbara 
Atkinson and her son, Will Young.
    Senator Graham. Welcome. You all must have come up in a 
    Senator Graham. I am very impressed. Welcome to all of you.
    Would you like to make a statement?
    Mr. Conrad. No, sir.
    [The biographical information of Mr. Conrad follows.] 

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    Senator Graham. Judge, would you like to introduce your 


    Judge Dever. Yes. Thank you, Senator.
    With me is my wife of nearly 20 years, Amy Dever, and our 
three children, Maggie Dever, who's our youngest; Patrick Dever 
and Colum Dever. And my parents, James and Kathy Dever, are 
here, as is my sister, Sharon Fleischman.
    Senator Graham. Would you like to make a statement?
    Judge Dever. No, Senator, other than to thank the President 
for the nomination, the Committee for holding this hearing, and 
for the support of Senator Burr and Senator Dole.
    [The biographical information of Judge Dever follows.] 

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    Senator Graham. Wise choice by both of you I think.
    Mr. Conrad, could you tell us how your experience as U.S. 
Attorney has prepared you for the job?
    Mr. Conrad. Yes, sir, thank you for that opportunity. I 
have been a U.S. Attorney for 3 years and an Assistant U.S. 
Attorney for 15 years before that. Preceding my time in the 
U.S. Attorney's Office I was a private practicing attorney 
engaged in litigation both civil and criminal
    I have had an opportunity to participate in the civil and 
criminal justice system in the Western District of North 
Carolina, and that participation has given me a great respect 
for the necessity of justice for every litigant in the courts 
of the United States. And the President nominating me and my 
opportunity to be here at a confirmation hearing with the hope 
and possible expectation of presiding over civil and criminal 
trials is a great blessing. I look forward to it.
    Senator Graham. If you could try to describe to a fifth 
grade civics class what a Federal judge's job is, what would 
you tell them?
    Mr. Conrad. I think his job is to administer justice, both 
in the criminal and civil context. I might make a sports 
analogy and say a judge's job is to call balls and strikes, not 
to play on one team or the other, but to be the neutral arbiter 
of disputes in the courts. And I think a judge ought to conduct 
that job with a measure of humility, seeing it as an 
opportunity to serve justice and not as a personal position of 
prestige. And I think I would tell them that the judge--a very 
important component of a judge's job is to treat fairly both 
the parties that come before them as well as their attorneys.
    Senator Graham. Thank you.
    Judge Dever, how long have you been a magistrate?
    Judge Dever. A little over a year, Senator.
    Senator Graham. How has that prepared you for the task at 
    Judge Dever. Well, Senator, thank you for that question. It 
has prepared me in having moved, as Mr. Conrad spoke about, 
from the role of an advocate to the role of an impartial 
arbiter, and as a Federal Magistrate Judge I've handled cases, 
both civil cases and criminal cases, which many of which will 
be very similar to the cases that if I'm fortunate enough to be 
confirmed will come before the District Court. And it has been 
a very helpful experience, and an enjoyable experience to be in 
public service in that role.
    Senator Graham. From your time as magistrate have you seen 
any mistakes or common practices that you would like to change 
if you got to be a judge yourself, Federal Judge?
    Judge Dever. I wouldn't say mistakes as such, Senator, but 
I think one of the things that I've certainly tried to do and 
would hope to continue to do is to be respectful of the role of 
the judge within the courtroom, and be respectful of the 
parties and the litigants. I think it's very important for a 
judge to remember that it may be his or her tenth matter of the 
day, but to that person before them, those litigants, it's the 
most important case in the world, and a judge needs to treat it 
that way. And I've certainly tried to do that, and if I'm 
fortunate enough to be confirmed, will try to continue to do 
    Senator Graham. Both of your resumes for the job are very 
impressive. You have a lot of good life experiences that 
prepared you well for the role ahead. I think I speak on behalf 
of many members of this Committee, hopefully the entire 
Committee, that the job you are about to take on is very 
important. It is a way to serve the public. Wearing the robe, 
to me, is a awesome responsibility and I am looking for people 
who can wear it humbly, because with a stroke of a pen you can 
affect people's lives in a dramatic fashion. And it is a 
lifetime appointment, and you have lived, both of you, lives 
worthy of the robe, and your Senators spoke well of you, and 
your families should be proud.
    I look forward to voting for you on the floor. I hope that 
comes sooner rather than later. With that said, the hearing 
will stand adjourned, and any matters can be submitted. We will 
leave the record open until 6:00 p.m. on March the 10th.
    To your families, thank you. Safe travels back home. Good 
luck in your future endeavors. Thank you both.
    Judge Dever. Thank you.
    Mr. Conrad. Thank you.
    [Whereupon, at 4:25 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
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                      THURSDAY, SEPTEMBER 29, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 1:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, presiding.
    Present: Senator Hatch.

                       THE STATE OF UTAH

    Senator Hatch. We are happy to welcome all of you here 
today for these judicial nomination hearings, and we have Hon. 
Majority Leader of the U.S. Senate, Senator Frist, and we will 
go with you first, and then we will go with Senator Alexander, 
and then we will just--well, if Senator Reid shows up, I will 
go with him second, and then go right across the board.
    Senator Frist, we are happy to hear from you.


    Senator Frist. Mr. Chairman, thank you, and it is an honor 
to be before the Committee today, and it is with great pleasure 
that I come to introduce ``Sandy,'' Harry S. Mattice, Jr., who 
has been nominated by President Bush to serve on the United 
States District Court for the Eastern District of Tennessee. 
Sandy is joined today by his wife, Janet, and welcome to both 
of them. I had the opportunity to see them a bit earlier today.
    Sandy is a native of Chattanooga and a graduate of the 
University of Tennessee, where he earned both a bachelor's 
degree and his law degree. As an attorney, Sandy has enjoyed a 
successful career in private practice and in public service. He 
practiced law for almost 17 years with the firm of Miller and 
Martin in Chattanooga, focusing primary on business 
investigations, including securities, tax, and white-collar 
    In 1997, Sandy served a brief stint here on Capitol Hill. 
My former colleague, Fred Thompson, asked Sandy to serve as a 
senior counsel to the Senate Governmental Affairs Committee 
during the special investigation of the 1996 Federal election 
campaigns. After leaving Washington, Sandy returned to private 
practice in Tennessee and later joined the law firm of former 
Senate Majority Leader Howard Baker.
    Sandy's most recent job has been United States Attorney for 
the Eastern District of Tennessee. He was nominated by 
President Bush in 2001, and since that time he has served with 
distinction. In this role, Sandy manages Federal prosecutions 
for Tennessee's largest judicial district, encompassing 41 
counties and 2.5 million citizens. His office has worked with 
local and State law enforcement to lead the State's East 
Tennessee's Methamphetamine Task Force, which serves as one of 
the best examples of effective Federal, State, and local 
    I have had the real privilege of knowing Sandy for many 
years and give him my highest recommendation to serve on the 
Federal bench. Sandy respects his colleagues and in turn has 
earned their respect and admiration, and he has proven his 
merit as a skilled attorney and a talented prosecutor.
    On Tuesday of this week, the American Bar Association gave 
Sandy its highest possible rating, unanimously well qualified 
to serve as a Federal judge. In addition to his many 
professional qualifications, he is an honest, moral person, a 
man of honor and integrity. He is devoted to his family and 
active in his local community. I am confident that he will 
serve with honor on the Federal bench.
    Mr. Chairman and Committee members, I thank you for holding 
the hearing and allowing me to introduce this truly, truly 
distinguished Tennessean, and I urge my colleagues on the 
Committee to support Sandy's nomination. As Majority Leader, I 
look forward to bringing Sandy's nomination to the full Senate 
soon and voting yes for his confirmation.
    Thank you, Mr. Chairman.
    Senator Hatch. Well, thank you, Mr. Leader. That is high 
praise indeed, and Mr. Mattice has got to be very happy that 
you showed up and said a few words.
    With that, we know you are busy, and we know you have a lot 
to do, so we would be happy to release you.
    We will turn now to the distinguished Democrat Leader in 
the Senate, Senator Reid, for your remarks.


    Senator Reid. First of all, Mr. Chairman, let me say 
something about the man that Brian Sandoval will succeed. A 
friend of mine by the name of Howard McKibben served that court 
with distinction, a trial judge in Nevada that everyone looked 
up to. For example, he was recently recognized by the Nevada 
Advisory Council of Prosecuting Attorneys for his commitment to 
improving the administration of justice in Nevada. He has 
received award after award. But what I would like to say about 
Judge McKibben is that he was fair. He was a man who had the 
utmost respect of the attorneys who appeared before him, both 
those he ruled for and against.
    I ask unanimous consent that my full statement be made part 
of the record.
    Senator Hatch. Without objection, we will put it in the 
    Senator Reid. Brian Sandoval will be an asset to the State 
of Nevada as a judge and to our country. I have had the 
distinct pleasure of offering this job to Brian twice. When the 
Democrats were in charge back here, I had a Committee of one 
that chose the people that went on the court, and I was that 
committee. And even though I am a Democrat and he is a 
Republican, I called Brian to see if he wanted to be a Federal 
judge. He at that time decided that he didn't. He had family 
considerations that he felt were such that he couldn't do that.
    One of the reasons that I have always so admired Brian is 
because of his family. I am not well acquainted with his 
family, but I know of his family. I know his family because of 
Brian always talking about his family. And it is obvious when 
he expresses to me his--one of the reasons that he is looking 
forward to this job is so that he can spend time with his 
children, more time with his children. He does not have to 
worry about campaigning in Elko or Las Vegas or Reno. He can 
spend time with his family.
    Mr. Chairman, John Ensign is a very gracious person in many 
different ways. He is a very generous person. When he was 
elected, he indicated that he would have--for every fourth 
judge, Federal judge we got, that choice would be mine. Senator 
Ensign chose three. My choice came along, and I chose Brian 
Sandoval. I appreciate Senator Ensign for being fair with me, 
and he has no obligation to give me any appointments. He did it 
because he thought that would be fair, and I appreciate it very 
    I think as a result of that bargain we are going to get a 
real good judge. Brian is a young man. He can serve with 
distinction on that court for many, many years, and he will 
serve with distinction.
    Words are not able to express to this Committee what a fine 
man he is. There has been a lot of squabbling in recent years 
here with judges. Brian Sandoval will cause no squabbles. 
Everyone will vote for him. He is a class act. I wish that I 
had the opportunity someday to appear before him. As a judge I 
know that he would serve well whatever client that I 
represented. I have done a lot of work in the trial courts, Mr. 
Chairman, and I just think that he is somebody that will be--as 
I look back on my days in the courtroom, somebody that I would, 
if I had the opportunity to serve before him, say here is the 
kind of judge that we should have.
    So, Brian, and your family, I wish you the very best.
    Senator Hatch. Well, Mr. Sandoval, it is a real tribute to 
have the Democrat Leader of the Senate, and, Senator Reid, it 
is a real tribute to you that you put politics aside in these 
matters, and I appreciate it. We are grateful to have you here.
    With that, we will turn to Senator Alexander.


    Senator Alexander. Thank you, Mr. Chairman.
    Mr. Chairman, it is a pleasure for me to join the Majority 
Leader, Senator Frist, in appearing today to introduce Sandy 
Mattice to serve as United States District Court Judge. I can 
only echo the high praise that Bill Frist offered in his 
    Sandy is an excellent choice to succeed Judge Al Edgar in 
Chattanooga. Judge Edgar served with distinction. I have known 
him a long time. We rode the same bus to Boys State together in 
1957. Al Edgar served in the legislature in the 1970's. He has 
been an extraordinarily good United States District Judge. So 
Sandy Mattice has some big shoes to fill.
    But Sandy's resume, as Senator Frist pointed out, suggests 
that he is certainly able to fill those. Graduating from two of 
our finest universities, working for two of our best law firms, 
active in a number of charitable organizations, on the adjunct 
faculty at the University of Tennessee, active in the local bar 
association, a lifelong Tennessean, he has all of the qualities 
that should make him an extraordinarily good United States 
District Judge.
    I also think it is worth pointing out that, if past history 
is any indication, he has a great future ahead of him. When 
Senator Howard Baker was picked to serve as Vice Chairman of 
the Senate Watergate Committee in 1973, he turned for help to a 
young lawyer then making his name in Tennessee, Fred Thompson. 
Fred Thompson, of course, eventually became Senator Fred 
Thompson, and when he was Chairman of the Governmental Affairs 
Committee, Senator Thompson opened a special investigation into 
the 1996 Federal election campaigns, he took a page from 
Senator Baker's book. He looked around Tennessee. He tapped an 
outstanding young man to help him with that. And it was Sandy 
Mattice, who was Fred Thompson's senior counsel.
    So if history repeats itself, following his time as a 
Federal judge, Sandy Mattice may very well have an opportunity 
to serve in elective office. Or if he is really successful, he 
might become a movie star.
    Senator Alexander. So, Mr. Chairman, it gives me a lot of 
pleasure to be here today, and I want to especially 
congratulate Sandy Mattice's family. I know this is an 
important day for them. Thank you for giving me this time to 
give my highest recommendation to the President's nomination of 
Sandy Mattice to be United States District Judge in 
    Senator Hatch. Well, thank you, Senator Alexander. I really 
appreciate your testimony. I don't think we could have a better 
delegation of Senators than you and Senator Frist recommending 
a judge for us, so we appreciate it. Thanks so much.
    Senator Ensign, we are going to turn to you now.


    Senator Ensign. Thank you, Mr. Chairman. I want to thank 
you for having this hearing today so that we can bring forward 
someone who we think is a great Nevadan and someone who will be 
a terrific representative for us on the Federal District Court 
in the State of Nevada.
    Brian Sandoval is our Attorney General. He is the first 
Hispanic to be elected statewide in the State of Nevada, but it 
is the character of the person that has brought my confidence 
in Brian Sandoval. He is a tremendous father. He is here with 
his entire family. We actually took pictures this morning, and 
he has a beautiful wife and kids. Two of his children, from 
what I understand, are missing school today, and that would 
probably upset them dearly. But he is somebody who has always 
bridged across the aisles, whether it was being appointed by a 
Democrat Governor to serve in the State of Nevada. On the 
Nevada Gaming Commission, he was the youngest person in our 
State's history to be the chief gaming regulator. And he was, 
as I mentioned, appointed by a Democrat at that time.
    Today before us, because of the situation that Senator Reid 
and I have worked out between us, we have a sharing agreement 
where we consult with each other on our judges that we bring 
forward, and this happens to be Senator Reid's pick. I get 
three when there is a Republican, he gets one; when it reverses 
around, we go the other way. And Senator Reid has decided to 
bring forward a Republican Attorney General to be on the bench, 
and somebody we both agree is an outstanding choice for the 
bench, for the district court in Nevada.
    His qualifications are part of my full statement. I would 
like to ask unanimous consent to bring that full statement as a 
part of the record.
    Senator Hatch. Without objection.
    Senator Ensign. And just to make a couple of last comments, 
we are very proud of the entire district court in the State of 
Nevada. I honestly could not point out a weakness in our entire 
bench in the whole State of Nevada on the Federal district 
court. Because of that, we have very high standards to make 
sure that whoever is going to fit there is not going to drop 
below a certain level. And no question in my mind that Brian 
Sandoval will meet the standard that we have set for the court 
in the State of Nevada. So I enthusiastically join my 
colleague, Senator Reid, in bringing forward Brian Sandoval to 
be the next representative for the Federal district court in 
the State of Nevada.
    Mr. Chairman, I know that when he testifies, is given the 
chance, and if you have questions, you will be impressed by his 
intellect, by his character, and his integrity. And I thank 
you, Mr. Chairman.
    [The prepared statement of Senator Ensign appears as a 
submissions for the record.]
    Senator Hatch. Well, thank you, Senator Ensign. That is 
wonderful of you to take time to come and chat with us about 
Mr. Sandoval. I am sure he is going to make--General Sandoval, 
I should say. He is going to make a great judge, no question 
from what you and Harry Reid have said. And, of course, I have 
heard about him, too, so I am really grateful to have you here. 
Thank you so much.
    Well, we may have one or two others come in to testify as 
Senators, but until then, let's just set all of you judgeship 
nominees up on the table.
    While we are doing that, we will put the statements of 
Senator Warner and Senator Allen into the record as if fully 
    [The prepared statements of Senator Warner and Senator 
Allen appear as submissions for the record.]
    Senator Hatch. All right. If you would all raise your right 
hands, do you solemnly swear to tell the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Smoak. I do.
    Mr. Sandoval. I do.
    Mr. Mattice. I do.
    Ms. Sweeney. I do.
    Mr. Wheeler. I do.
    Senator Hatch. Take your respective seats, Mr. Smoak over 
here, Mr. Sandoval, Mr.--is it pronounced Mattice or Mattice?
    Mr. Mattice. Mattice.
    Senator Hatch. OK. Ms. Sweeney, Mr. Wheeler, and then if 
Senator Nelson comes, we will interrupt to take his statement.
    Let me just say I would like to thank each one of our 
distinguished nominees for their presence here today and for 
their willingness to serve our country. We have before us here 
an impressive array of legal experience and expertise, and as 
diverse as each of your careers has been, your resumes show a 
common commitment to public service, private excellence, and 
community action.
    Now, while each of you can be justifiably proud of your 
respective accomplishments--and they have been many that have 
really brought you to this point in your careers--I am sure 
each one of you would readily admit that any success is more 
easily achieved and certainly sweeter with the support of your 
families. For those family members who are here with our 
nominees, I want to thank all of you for your hard work and 
your sacrifices to support your husbands and wife.
    Mr. Mattice, I would like to thank you for being here. I 
know you are no stranger to these hallowed halls as a former 
senior counsel to the Senate's Governmental Affairs Committee, 
and even after that, here you are again. It shows how dumb you 
are, is all I can say.
    Senator Hatch. You fortitude alone merits our commendation, 
I have to say. But it is your exceptional work both in private 
practice and in public service here in the U.S. Senate and as a 
U.S. Attorney for the Eastern District of Tennessee that has 
rightly earned you the respect of your peers and a unanimously 
well qualified rating from the American Bar Association. That 
is quite an achievement, and I look forward to seeing you on 
the Federal bench for the U.S. District Court for the Eastern 
District of Tennessee.
    Mr. Sandoval, you couldn't have had two better people come 
and testify for you. They are both excellent Senators. They 
both testified from their hearts, and I thought they did a good 
job for you. You have accomplished a great thing by getting 
both of them to come and testify for you, and both of them to 
agree together.
    Now, both of them have praised your work as Attorney 
General for the State of Nevada, and from what I know about it, 
the praise is well deserved. And we appreciate you as a 
neighbor to our home State of Utah. I just want you to know 
    Your notable participation in high-profile legal matters in 
the State and Federal courts and your tenacious protection of 
the public I think will be a great asset to you as you continue 
to serve the people from the Federal bench.
    Now, Mr. Smoak, with 30 years of legal experience 
demonstrating a long-standing commitment to your community in 
Florida, you are a perfect choice to assume the bench as judge 
for the U.S. District Court for the Northern District of 
Florida. In addition to your excellence in private practice, 
you have shown an unsurpassed commitment to pro bono service, 
and you are going to be a superb addition to the Federal 
district court and the Federal bench.
    We also have two nominees here for the Federal Court of 
Claims before us today, and it is impossible to say which one 
of you is better qualified. You both are so well qualified 
because your credentials are both so stellar.
    Ms. Sweeney, your work as a Special Master on the Federal 
Court of Claims mediating and adjudicating complex vaccine 
cases under the National Childhood Vaccine Injury Compensation 
Act makes you a natural choice to serve as a judge on this very 
specialized court. In addition, you have strongly demonstrated 
your commitment to the principles of freedom and justice by 
your service in the Department of Justice working with our 
Nation's intelligence agencies before the little known but very 
critical FISA court in our ongoing struggle to combat worldwide 
terrorism. So you have a wide experience there, too.
    You have served this Nation well in the past, and I am 
certain you are going to really continue to do a great job on 
the Court of Claims.
    I will be with Senator Nelson in just 1 second.
    Mr. Wheeler, you, too, are a natural choice to assume a 
position on the Federal Court of Claims. With over 30 years of 
experience in private practice specializing in Government 
contracts, publishing eight articles on the subject, and 
appearing numerous times before the court that you have now 
been nominated to join, I cannot think of better qualifications 
for this nomination. And I commend you for your desire to 
continue this work and to serve on this particular very, very 
important bench, as far as I am concerned.
    With that, before we take each of your testimonies, we will 
turn to Senator Nelson. We are delighted to have you here, 
Senator Nelson. We look forward to your testimony.


    Senator Nelson. Thank you, Mr. Chairman, and I am here on 
behalf of one of our Floridians, Mr. Smoak, for appointment to 
the United States District Court. This gentleman has served his 
Nation before, and I want to thank him for his offer and 
willingness to serve it again.
    His service began when he graduated from the United States 
Military Academy, and he was highly decorated for service in 
Vietnam. And then he earned his J.D. from the University of 
Florida. He settled in the Panhandle town of Panama City, close 
to where my ancestors came 175 years ago, down in Port St. Joe. 
And he has been practicing civil law for over the past 30 
years, and during that time he, of course, represented a wide 
variety of clients, from truck drivers to small business owners 
to national corporations in many areas of the law. And I think 
that broad experience is going to serve him well as a Federal 
district judge.
    Clearly, he is a leader in his community, and he has been 
in so many distinguished organizations. And I might just 
mention that Florida Trend magazine has named him one of 
Florida's top defense lawyers. And on top of all that, he holds 
a commercial pilot's license.
    Mr. Smoak has the unique understanding of the Northern 
District of Florida. He has been for now 15 years appointed by 
the chief judge as a member of the Advisory Committee to study 
and make recommendations to improve the court's operations, and 
a number of those recommendations have been adopted in the 
Northern District.
    Clearly, Mr. Chairman, he is highly qualified. He is well 
respected in his community. I know that. And I along with 
Senator Martinez strongly believe that he is going to make an 
outstanding addition to our Federal bench.
    Thank you, Mr. Chairman.
    Senator Hatch. Well, thank you, Senator. It is awfully good 
of you to take time from what I know is a real busy schedule to 
come over here and testify. It means a lot to us, and your 
testimony is very, very important.
    Senator Nelson. Thank you.
    Senator Hatch. Thank you so much for being here.
    Well, I could sit here and give you all a rough time, but I 
am not known for that because I know of your reputations, and I 
think each of you is qualified to serve in your respective 
positions. And, frankly, these positions are extremely 
important. I think it is the courts that have saved the 
Constitution over the years, not so much the Congress or the 
Presidency. We pass unconstitutional stuff all the time. We may 
not think it is, but we find out later that it is. Where I 
think the courts have, by and large, been a great salvation to 
our country, to me the Federal courts are absolutely crucial to 
our freedoms and to our democracy and to the various liberties 
that we all hold near and dear. And the trial courts, in the 
case of the Federal district courts, are extremely important 
because that is where the vast majority of cases are disposed 
of. And that is where people feel they get a fair shake or they 
    So I want to commend each of you for being willing to leave 
your practices and you, Mr. Sandoval, being willing to leave 
your Government service in a great State. And you two who are 
up for the Federal Court of Claims, I am very grateful that you 
are willing to serve there. It is a very important court. A lot 
of people do not realize what it does, but it is extremely 
important to this country. So I am grateful to have all of you.
    Let me just start with you, Mr. Smoak. You have had a 
distinguished career as a private practitioner, and as I 
understand it, you have appeared in court regularly throughout 
your career. And obviously you have gained some insight from 
all of this experience that you have had, the professional 
experience you have had that will influence your Federal 
judicial temperament as a Federal district court judge.
    Now, tell me how these experiences are going to help you to 
be a better district court judge.


    Mr. Smoak. Mr. Chairman, I have come to realize over the 
years that a citizen's contact with the courts is often the 
worst experience of their life. With the exception of the most 
jaded or the most hardened ordinary citizen, it is a terrifying 
experience. And I think we can do more, and I think it puts a 
continuing obligation on anyone who sits on the bench to keep 
that in mind and to treat people with respect, to treat them 
with courtesy, and to be the immediate face of our country's 
judiciary by being fair, by being patient, and perhaps even 
more important, by being prepared and engaged and willing to 
work hard.
    Senator Hatch. That is great.
    [The biographical information of Mr. Smoak follows.]

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    Mr. Sandoval, you have had a lot of experience in State 
government as a public servant there, having served as a Nevada 
State Assemblyman, a Commissioner of the Nevada Gaming 
Commission, which in and of itself is a big-time job out there, 
and currently as the State's Attorney General. You have gained 
a lot of insight in your professional life. How has this all 
prepared you for being a Federal district court judge?


    Mr. Sandoval. Thank you, Mr. Chairman. I have been very 
blessed in my life to serve as a legislator, to serve as a 
regulator, and now to serve as our State's Attorney General. 
And through my experiences as a private practitioner and as--
    Senator Hatch. You have been Attorney General for 7 years, 
    Mr. Sandoval. Mr. Chairman, no; for approximately 3 years.
    Senator Hatch. Three, OK.
    Mr. Sandoval. But my experiences in Federal and State 
courts as well as before our State Supreme Court and the amount 
of litigation that I have been confronted with and have had an 
opportunity to participate in, with all that experience I feel 
that--I believe that the Committee will feel that my 
qualifications satisfy the necessary requirements to be an 
effective Federal district court judge. If I'm fortunate to be 
confirmed, I will treat all litigants with dignity and respect.
    [The biographical information of Mr. Sandoval follows.]

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    Senator Hatch. Thank you.
    Mr. Smoak, you have an excellent record in pro bono work, 
especially, as I understand it, with the American Bar 
Association Vietnamese Refugee Legal Assistance Program. So I 
want to commend you for that.
    And, Mr. Sandoval, you have always maintained an open-door 
policy for people in your respective positions, and I think 
that has been a very, very good thing on your behalf.
    Now, Mr. Mattice, I just want you to know, when I was a 
janitor out at BYU, I was cleaning the floors and cleaning the 
steps, and down the steps came absolutely the most stunningly 
beautiful young girl I had ever seen in my life. I stood there 
leaning on my broom, transfixed, and her name was Marcia 
Mattice. And I don't know whether you are relatives or not, but 
if you are related to her, that is good enough for me.


    Mr. Mattice. Thank you, Mr. Chairman.
    Senator Hatch. You have had a very distinguished career as 
well, and you have gained a lot of insights from your 
professional experience. How is that going to help you to do 
your job as a Federal district court judge?
    Mr. Mattice. Thank you, Mr. Chairman. I thank you and the 
Committee for holding these hearings today.
    Senator Hatch. By the way, anybody who can put up with Fred 
Thompson as long as you did, he has got to really be good, is 
all I can say.
    Mr. Mattice. Thank you, Mr. Chairman.
    Senator Hatch. That is meant to be a compliment both ways. 
I think Fred is a tough, smart, good guy.
    Mr. Mattice. He is. Thank you.
    Senator Hatch. And he was a great Senator, and we miss him 
around here. And he was a great ``handler'' for Judge Roberts, 
who just got confirmed 78-22 today. So we really loved having 
Fred back in the Senate doing that, and I know you loved 
working for him.
    Mr. Mattice. I did. Thank you, Mr. Chairman.
    Mr. Chairman, to answer your question, I have, in fact, 
been very, very fortunate to have a very varied career and to 
have been able to fulfill a lot of different roles as an 
attorney. However, I have to say over the past 4 years and when 
I was sworn in as United States Attorney for the Eastern 
District of Tennessee, I told my staff that I couldn't think of 
any higher honor or privilege for an attorney than to stand up 
in a court of law in this great country and say that I 
represent the United States of America. I meant that then, and 
I certainly 4 years hence mean it now.
    I suppose if I can think of any greater honor, if I am 
fortunate enough to be confirmed by the Senate, it is to serve 
as United States district judge in my home State and help 
promote respect for the rule of law, which I feel is so 
critical to our way of life, to our form of Government, and to 
our citizens generally.
    So, again, as you point out, I have been very fortunate in 
my career, and if I should be confirmed by the Senate, I look 
forward to taking this next step.
    Senator Hatch. You are all going to get confirmed. We will 
make sure that happens. OK?
    [The biographical information of Mr. Mattice follows.]

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    Ms. Sweeney, you have had a lot of experience as a special 
master. How has that prepared you for this job on the Court of 


    Ms. Sweeney. I have been very blessed to have the privilege 
to serve as a special master since 2003. It has made me very 
familiar with the inside operations of the court as well as the 
courtroom experience in vaccine litigation cases. Those cases 
are often very complex and involve very delicate issues. It 
isn't just the science that is terribly complex. We are dealing 
with families with sometimes very severely injured children or 
families whose child received a vaccine and died. And I think 
one has to bring a tremendous sensitivity to any type of 
litigation, but particularly to those types of cases.
    We also hear petitions that involve injured adults as well, 
and when people have debilitating injuries and the Congress has 
set up a mechanism so that citizens have redress, one must look 
very carefully at those cases. And it has been my privilege to 
do that since 2003.
    Of course, before that, I was with the Justice Department 
for about 16 years, and during that time the bulk of my 
practice was before the U.S. Court of Federal Claims. And so I 
became intimately familiar with the full rules of the court and 
had tremendous courtroom experience, which I brought with me to 
the Office of Special Master and has served me well.
    And, of course, before that, I had the privilege of 
clerking for the former chief judge of court, who is here 
today, Mr. Chairman, Senior Judge Loren A. Smith. And not only 
was he my employer for 2 years, he was my former constitutional 
law professor. And I think I learned even more about the 
Constitution and the rule of law as the chief judge's law clerk 
than I did as his student. He is a tremendous individual, and 
it was a tremendous blessing, and everything that he taught me 
from his example with being completely prepared before you go 
into a courtroom, right to how you treat litigants and 
witnesses, has served me well over the years.
    Senator Hatch. Thank you.
    Ms. Sweeney. Thank you.
    [The biographical information of Ms. Sweeney follows.]

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    Senator Hatch. I appreciate it.
    Mr. Wheeler, you have been representing the Global Fund on 
a pro bono basis, and I want to commend you for that. Please 
explain how you got involved with the Global Fund and tell us 
just a little bit about it.


    Mr. Wheeler. Thank you, Senator. I would be happy to tell 
you a little bit about my work for the Global Fund, which has 
probably been one of the most satisfying and enjoyable projects 
that I have worked on in my 30-plus years of legal work.
    The Global Fund to Fight AIDS, Malaria, and Tuberculosis is 
based in Geneva, Switzerland, and since January of this year, I 
have headed a team of six or seven lawyers from our firm in 
assisting the Global Fund in setting up an Office of Inspector 
General for all of their operations. It is about a $6 billion a 
year organization that issues in-country grants to basically 
Third World developing countries around the world who are 
afflicted with these diseases. And in the course of this 
representation, not only have I traveled to Geneva, 
Switzerland, which has been something that I haven't always 
done in the world of Government contracts, but I also had a 
tremendously rewarding trip to Kenya, where I saw on the 
ground, first person, the work of the Global Fund in trying to 
tackle some of these horrific diseases.
    So that is basically what I have done for the Global Fund.
    [The biographical information of Mr. Wheeler follows.]

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    Senator Hatch. Well, thank you. I think this is as good a 
panel as we have had in all the years I have been here on the 
Judiciary Committee.
    I would like to start with you, Mr. Smoak, and just go 
across the board and please introduce those who are here with 
you, your family members or anybody you would care to 
introduce. You can just stand, and if they would stand as you 
introduce them.
    Mr. Smoak. Thank you, Mr. Chairman. Our two daughters, 
Kathleen and Elizabeth. Kathleen works here in the House of 
    Senator Hatch. We know who you are.
    Mr. Smoak. Elizabeth lives in Vermont.
    Senator Hatch. That is great. We are glad to have both of 
you here.
    Mr. Sandoval?
    Mr. Sandoval. Thank you, Mr. Chairman. My wife, Kathleen; 
my son, James; my daughter, Madeline; my mother, Terry 
Sandoval; my father, Ron Sandoval; my stepmom, Marion Sandoval; 
and my baby daughter is outside the room to keep the peace, Mr. 
Chairman, but my baby daughter, Marisa, and my mother-in-law, 
Jean Teipner.
    Senator Hatch. Well, it is so nice to have all of you here. 
This is great.
    Mr. Sandoval. Thank you, Mr. Chairman.
    Senator Hatch. Mr. Mattice?
    Mr. Mattice. Thank you, Mr. Chairman. I would like to 
introduce my wife, Janet, who has come from Tennessee to join 
me here today. She is not only the joy of my life, but probably 
more responsible than any person here for me being here today.
    Senator Hatch. That is great, Janet. We are glad to have 
you here.
    Ms. Sweeney, do you have--
    Ms. Sweeney. Thank you, Mr. Chairman. Before I introduce my 
wonderful husband and daughter, I just want to thank you for 
holding the hearings today and allowing us to be part of this 
great constitutional process.
    My daughter is here with some of her school mates from St. 
Louis School, and they do have excused absences. And their 
teachers just thought this was a tremendous learning experience 
for them, and I want to thank you for that, and, of course, our 
President for nominating me, and to the Justice Department for 
all their help with the nomination process. So thank you for 
    Senator Hatch. Thank you.
    Ms. Sweeney. My wonderful husband, Stephen Dillard; and my 
daughter, Carolyn Elizabeth; and my extended family, former 
Chief Judge Loren Smith, and my law clerk, Kristin Baczynski, 
who is my right arm and dear friend.
    Senator Hatch. That is great. I think it is a tribute to 
have Judge Smith here. He is a long-time favorite and friend of 
    Ms. Sweeney. Thank you, sir.
    Senator Hatch. That is great. Great to have him here.
    Mr. Wheeler. Yes, Mr. Chairman, I also am just really and 
truly honored and privileged to be here, and I echo the 
sentiments of Ms. Sweeney.
    Sitting right behind me is my wife, Janet, of 35 years. We 
met in 1966 at Gettysburg College in Pennsylvania, and here we 
are today.
    In addition, we have two grown children, Cristin and Craig, 
who could not be here today, Cristin is a wedding planner in 
Colorado Springs, and our son, Craig, is a young businessman in 
Norwalk, Connecticut.
    I also have just a small number of friends and colleagues 
who are here providing support today: Susan Commins from 
Bethesda, Maryland, and then also Robert Reiser and Christopher 
    Senator Hatch. Well, great. Great to have all of you here. 
We welcome you all. I meant to do that at the beginning and 
forgot in my desire to ask all these tough questions of the 
    Senator Hatch. I know a lot about each of you. I don't have 
to ask any questions beyond this. I just want you to know that 
you will all be put on hopefully the next markup. Generally, 
you are put over for a week in many cases, so don't think that 
that is anything unusual. If we can do it next week, it would 
be great. But probably the second week we hopefully will report 
all of you out.
    We congratulate you. We commend you for being willing to 
serve our country in these distinguished ways, and we are 
grateful for your family and friends who are here. It is great 
for them to come. And we are grateful for the Senators who have 
appeared as well.
    So, with that, you have my support. Let's hope that that 
will help you.
    Senator Hatch. And we will just move on and hope that we 
can get you through as quickly as possible. And we know that 
all of you will serve very well.
    So thanks so much and great to be with you. With that, we 
will recess until further notice.
    [Whereupon, at 2:13 p.m., the Committee was adjourned.]
    [Submissions for the record follow.]

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                       THURSDAY, OCTOBER 6, 2005

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:33 p.m., in 
Room 226, Dirksen Senate Office Building, Hon. John Cornyn, 
    Present: Senators Cornyn, Hatch, DeWine, Kennedy, Kohl, and 

                         STATE OF TEXAS

    Senator Cornyn. Good afternoon. I want to thank Senator 
Specter for scheduling this hearing. This involves four very 
important positions within the Department of Justice and is the 
first step toward getting these positions filled. If confirmed, 
each of these nominees will fill vital positions within our 
government and it is my hope we can get these nominations voted 
out of the Committee in the near term and through the Senate as 
soon as possible.
    I understand Senator Specter, the Chairman of the full 
Committee, may be coming, and also some others of our 
colleagues, but I know that since we have three o'clock votes, 
what I want to do is promptly get to our first distinguished 
panel and give them an opportunity to make any statement they 
wish and then we will turn, of course, to the nominees.
    At this time, the Chair would recognize Senator Allen for 
any introduction he would care to make.


    Senator Allen. Thank you, Mr. Chairman, Senator Cornyn, 
Senator DeWine and others, members of the Committee. Thank you 
for holding this hearing to consider, amongst others, the 
nomination of a fellow Virginian, Thomas Overton Barnett, as 
Assistant Attorney General of the Antitrust Division of the 
U.S. Department of Justice.
    I have a statement, and my colleague, Senator Warner, also 
of Virginia, has a statement which I would like to be made part 
of the record in his presentation of Mr. Barnett, as well.
    Senator Cornyn. Without objection.
    Senator Allen. Tom is joined, I know, today by his wife, 
Alexa, and at least one of their children, Braden, a two-and-a-
half-year-old young man. Besides his qualifications, I found it 
very impressive that his son, two-and-a-half-year-old son, 
wanted to grab on to Daddy. I always thought with my kids, 
whenever I grabbed them or picked them up, they would always be 
screaming, ``Mama, Mama.'' So he is also a really good father. 
It is embarrassing to me, but nonetheless, that shows he is a 
wonderful father and I am sure he will want to introduce his 
bride and son when he is presented.
    He is, Mr. Chairman, very well qualified for this important 
position. He grew up in Nebraska. He now for the last 15 years 
has had the fortune to call the Commonwealth of Virginia home. 
You can read about his outstanding academic credentials in law 
school and undergraduate school.
    He came to Virginia first clerking for Hon. Harrison Winter 
of the U.S. Court of Appeals for the Fourth Circuit, which is 
located in Richmond. After finishing that clerkship, he joined 
the prestigious Washington law firm of Covington and Burling 
and moved then to Virginia permanently.
    During his almost 14 years as an antitrust attorney at 
Covington and Burling, Tom rose to become a partner and Vice 
Chair of the firm's Antitrust and Consumer Protection Practice 
Group. Tom's practice included mergers, litigation, and 
counseling across a range of industries, including e-commerce 
and other issues involving the Internet. Tom has also co-taught 
an advanced antitrust seminar at my alma mater, the University 
of Virginia School of Law, and he taught a course at the 
Georgetown University Law Center on antitrust and sports. In 
fact, in the law practice, Tom represented colleges and also 
professional sports leagues.
    Tom joined the Antitrust Division of the Justice Department 
in April of 2004 as Deputy Assistant Attorney General 
responsible for civil enforcement. Since June of this year, he 
has served as the Acting Assistant Attorney General with 
responsibility in the Antitrust Division.
    Mr. Chairman, I know that you know, and members of this 
Committee, how important our antitrust laws are in this country 
to make sure that our citizens enjoy the healthy competition 
and choice that comes from an antitrust sense of competition 
and not monopolies. I think it makes our prices lower, it makes 
our products better, and companies compete with one another.
    The Antitrust Division and its Assistant Attorney General 
are on the front lines in this fight. Tom's academic 
achievements, his distinguished legal career as an antitrust 
attorney, and his enforcement experience to date have all 
prepared him very well for this important position. I have no 
doubt that Tom Barnett will be an effective, knowledgeable, and 
fair enforcer of our antitrust laws. I am delighted that the 
President has chosen Tom Barnett and I hope that you, Mr. 
Chairman, and this Committee will act as swiftly as practicable 
to make sure that he gets his position confirmed and going to 
work with a full portfolio for the American free enterprise 
    I thank you for your consideration and attention.
    Senator Cornyn. Thank you, Senator Allen. I appreciate your 
personal comments and observations on the nominee.
    We will now turn to our other colleague of three colleagues 
in the Senate and one from the House, our distinguished Senator 
from Oregon, Senator Smith.


    Senator Smith. Thank you, Mr. Chairman, Senator DeWine. It 
is my privilege today to introduce Steve Bradbury to you and to 
say how delighted I am that the President has nominated him to 
serve as Assistant Attorney General for the Office of Legal 
Counsel at the Department of Justice.
    Though Steve and his family currently resident in Maryland, 
as I do, I am proud to say that we both hail from the State of 
Oregon. Born and raised in Portland, Oregon, he attended Oregon 
public schools until college and he has become one of our 
State's best and brightest citizens. I am confident that 
members of the Committee will quickly appreciate the range of 
qualities and professional experience that Steve will lend to 
the position of Assistant Attorney General when you hear from 
    He has been with DOJ and worked there with distinction 
since 1991. I know he will continue to do an outstanding job in 
that Department. Steve has held a number of positions at the 
Department, beginning as an attorney advisor in 1991, and after 
much hard work, he has moved up the ranks and is currently 
Acting Assistant Attorney General at the Department.
    In addition to his government experience, Steve brings 
other special qualities, along with a beautiful family that he 
will introduce to you. He clerked at the appellate level for 
Judge Buckley in the U.S. Court of Appeals for the District of 
Columbia, as well as for Judge Clarence Thomas at the United 
States Supreme Court. In addition, Steve also developed a good 
reputation in private practice. He was an associate at 
Covington and Burling and a partner at Kirkland and Ellis. I am 
sure you recognize the names of these firms as they both have 
stellar legal practices.
    With government, judicial, and private practice experience, 
Steve has the kind of professional background that will give 
him the kind of broad, common-sense perspective we need in 
    Of course, his academic credentials speak for themselves. 
He is a product of the best in private and public education, 
from Washington High School in Oregon, to Stanford University, 
and then on to the University of Michigan Law School, where he 
graduated Magna Cum Laude. Steve has excelled in all of his 
academic credentials.
    Therefore, Mr. Chairman, I commend him to you. I am 
confident he will continue to serve our country with honor, 
integrity, and with the utmost professionalism, and I urge his 
nomination to move forward and that it be confirmed.
    Senator Cornyn. Thank you for your introduction, Senator 
    Senator Lautenberg, could we hear from you next?


    Senator Lautenberg. Thanks very much, Mr. Chairman. I have 
a unique honor to introduce a New Jerseyan. His name is Wan 
Kim. Mr. Kim has been nominated to be Assistant Attorney 
General for Civil Rights at the Department of Justice. If 
confirmed, he would be the first Korean American and the first 
naturalized citizen in this position. We are very proud of 
that. Coming from New Jersey, the State where the Bill of 
Rights was first signed, we consider it a distinct honor to be 
able to introduce Mr. Kim here.
    He has had a particular sensitivity to civil rights issues 
because of his personal background as a minority in our great 
country. Mr. Kim's parents came to the United States from South 
Korea in the 1970's. They came to New York with virtually no 
education and just a couple of hundred dollars. They worked at 
menial tasks. Their mission was to help their children gain a 
footing in our country. They worked 7 days a week, and 
eventually, they bought a small business and a home.
    The lesson of hard work rubbed off on Mr. Kim. He graduated 
at the top of his high school class, went on to Johns Hopkins 
University and the University of Chicago Law School.
    He is not new to the Civil Rights Division. He worked there 
since 2003 as Deputy Assistant Attorney General with oversight 
of the Criminal, Educational Opportunities, Housing, and Civil 
Enforcement Sections. He has led a team of more than 300 
attorneys and he will safeguard Americans' voting rights and 
combat discrimination. He has worked issues like police 
brutality, hate crimes, as well as protecting the rights of the 
    Concerns have been raised of late about civil rights in the 
country. We want to make sure that we have been aggressive 
enough in pursuing these cases. But Mr. Kim has affirmed his 
commitment to equality, and he said this. ``I am clearly in a 
politically appointed position, but my job is to enforce the 
laws. Show me a violation of the statute, or if I find a 
violation of the statute, I will bring those cases.'' It is 
nice to hear that kind of recognition, that kind of a 
    So I congratulation Mr. Kim and his family on the honor of 
this nomination and I hope that he proves to be the great 
choice that I think he will be to enforce our Nation's civil 
rights laws.
    Mr. Chairman, I thank you and the Senator from Ohio greatly 
for permitting us to present Mr. Kim to you.
    Senator Cornyn. Thank you very much, Senator Lautenberg, 
for that introduction.
    We will now turn to our colleague from the House, 
Representative Dan Lungren.


    Representative Lungren. Thank you, Mr. Chairman, and thank 
you, Senator DeWine, for having us here. It is my privilege and 
honor to introduce to you the nominee for Assistant Attorney 
General for Environment and Natural Resources, Sue Ellen 
Wooldridge, a fellow native-born Californian.
    Born in Riverside, California, she spent her early years in 
Santa Barbara County before her parents, who were both 
educators, decided to move to the Northern part of the State, 
in Willows, California, where they thought it was a good idea 
to have their children grow up on a small farm, which she did. 
She learned responsibility and self-reliance there, attended 
the University of California at Davis, where she was the 
captain of the women's basketball team, graduated Phi Beta 
Kappa before she went on to Harvard University.
    I first met Sue Ellen Wooldridge when she was an associate 
at the law firm I joined when I left Congress the first time 
around. I spotted her talents at that time, and when I became 
Attorney General of the State of California, I invited her to 
serve as one of my Special Assistant Attorney Generals, and 
there she served with distinction. Her tenure there was marked 
by fairness, by integrity.
    Frankly, she is brilliant, but she invites other views. She 
has a capacity to work with people with differing viewpoints 
and to bring them around to a common position. She was probably 
one of only two people in the United States who could tell you, 
without looking it up, the contours of the tobacco settlement 
that we made as Attorney Generals with the tobacco industry. 
She was one of two people I designated to negotiate on behalf 
of the State of California. Then for a number of years, she was 
counsel to a number of States of the Union in litigation that 
transpired thereafter.
    She has been General Counsel of the Fair Political Practice 
Commission for the State of California. She has served as 
Deputy Chief of Staff of the Department of Interior for 
Secretary Gale Norton, and for the last year and a half been 
Solicitor of the Department of Interior.
    Oftentimes, we are called upon to introduce people from our 
State who have been nominated. It is rare that you get a chance 
to be able to stand here and talk about someone you know so 
well, about whom you would say the President could have done no 
better. The only caution I would give you is never, ever get 
involved in a golf game with her, and certainly never, ever 
challenge her to a long drive contest, because I will tell you, 
you will lose it.
    Senator Cornyn. Thanks for that advice as well as that 
    Senator Cornyn. I must extend our gratitude to the entire 
panel for being here. We know you have many other conflicts. 
Thanks for making the time to make these important 
    I would like to ask the next panel to take their seats, 
    I have no further opening statement that I would make, but 
I am going to recognize Senator DeWine for any statement he 
would like to make.


    Senator DeWine. Mr. Chairman, I just want to add my words 
of welcome and congratulations to all four of our nominees 
today. We are glad to have you with us. We look forward to your 
    As Chairman of the Antitrust Subcommittee, I want to give a 
particular welcome to Mr. Barnett and let me commend him for 
his work that he has done, and frankly, the way the Antitrust 
Division has functioned under his leadership as Acting 
Assistant Attorney General since June. I think you have done a 
great job and we just look forward to your testimony today, but 
also look forward to your continuing good work.
    Thank you, Mr. Chairman.
    Senator Cornyn. Thank you very much, Senator DeWine.
    I see we are joined by our colleague from Wisconsin, 
Senator Kohl. Senator Kohl, do you have any preliminary 
comments you would like to make?
    Senator Kohl. No, I do not, Mr. Chairman.
    Senator Cornyn. Thank you very much for being here.
    I would like to ask each of the panelists to stand and be 
sworn. Do each of you swear that the testimony before the panel 
today will be the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Mr. Kim. I do.
    Mr. Bradbury. I do.
    Ms. Wooldridge. I do.
    Mr. Barnett. I do.
    Senator Cornyn. Thank you. Please have a seat.
    I think it might be in order perhaps for each of you to 
introduce any family members that you happen to have with you 
here today. I know this is not just your day, this is their 
day, too, and that none of us accomplish much without the love 
and support of the people very near and dear to us.
    Mr. Kim, would you care to introduce any of your family 
members who are joining you here today?


    Mr. Kim. Yes, Mr. Chairman. Thank you. I would first like 
to introduce my wife, Sarah Whitesell, and my two daughters, 
Anna, who is five, and Abigail, who is three ,who I hope will 
be staying with us for at least a little while.
    I would like to introduce my parents----
    Senator Cornyn. I wonder if you wouldn't mind standing so 
we can identify you. Great. Thank you.
    Mr. Kim. My parents, Hak Soo Kim and Chun Cha Kim. I am 
grateful for them for coming down today----
    Senator Cornyn. Welcome.
    Mr. Kim [continuing]. And also to my in-laws, Dr .William 
Whitesell and Mrs. Phyllis Whitesell, who I am also grateful 
for being here with us today.
    Senator Cornyn. Thank you very much, Mr. Kim.
    [The biographical information of Mr. Kim follows:]

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    Senator Cornyn. Mr. Bradbury, would you care to introduce 
any of your family members who are here?


    Mr. Bradbury. Yes. Thank you, Mr. Chairman. My wife, Hilde; 
my son, James, who is 11; my son, Will, who is nine; my 
daughter, Susanna, who will be turning seven in 2 weeks; and my 
wife's parents, Barbara and Walter Kahn.
    Senator Cornyn. Thank you very much for that introduction 
and welcome to each of you. I am sure your children all got a 
pass from school to be here.
    Senator Cornyn. I am sure they will learn a lot in this 
process, and I know they want to be here with their Dad.
    [The biographical information of Mr. Bradbury follows:]

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    Senator Cornyn. Ms. Wooldridge, would you care to introduce 
any of your family members who are here?

                     DEPARTMENT OF JUSTICE

    Ms. Wooldridge. Yes. Thank you, Senator. My sister, Tricia 
McCall, is here with me today. I would be remiss, though, if I 
didn't mention that she is here representing my parents, Robert 
and Patricia Wooldridge. My father recently passed away and my 
mother is terrified of flying, so I kind of forewent the 
opportunity to actually invite her to come today because she 
would have been in a panic, but I am very lucky to have my 
sister and friend with me today.
    Senator Cornyn. Thank you very much, and welcome.
    [The biographical information of Ms. Wooldridge follows:]

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    Senator Cornyn. Mr. Barnett, would you care to introduce 
any of your family?


    Mr. Barnett. Yes. Thank you, Mr. Chairman. I would like to 
introduce my wife, Alexa, and our 2-year-old son, Braden, and 
our--who impressed Senator Allen, and our 17-month-old 
daughter, Avery. Along with them are my brother, Paul, who is 
also a Virginia resident, and my cousin, the Reverend Jeffrey 
MacKnight, and if I could just acknowledge my parents, who were 
not able to be here in person but certainly without whose 
support I would not be here.
    Senator Cornyn. Thank you very much for those 
    [The biographical information of Mr. Barnett follows:]

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    Senator Cornyn. We will now turn to the opening statements 
of the panelists, and Mr. Kim--oh, I beg your pardon. Senator 
Hatch is here and has a statement he would like to make. As the 
immediate past Chair of the Judiciary Committee, we always do 
what Senator Hatch asks.


    Senator Hatch. That has not been my experience.
    Senator Cornyn. I was just speaking for myself personally, 
    Senator Hatch. You certainly are a very good friend, is all 
I can say.
    I am sorry I am so late, but I had to go to a funeral and 
was put back in time, so thank you for giving me this 
opportunity, Mr. Chairman.
    It is with great pleasure and with the highest regard that 
I introduce Wan Kim, a former member of our staff here on the 
Judiciary Committee who has been nominated to be the next 
Assistant Attorney General for Civil Rights for the Civil 
Rights Division at the Department of Justice.
    Wan has served at the Justice Department as Deputy 
Assistant Attorney General in the Civil Rights Division for the 
last 2 years. In that capacity, he has supervised more than 120 
attorneys in the Criminal, Education, and Housing Sections of 
the Civil Rights Division and has worked closely with the U.S. 
Attorneys' Offices from across the country.
    He has also served as a Commissioner on the Brown v. Board 
of Education 50th Anniversary Commission and is a member of the 
U.S. delegation to the Organization for Security and 
Cooperation in Europe's Conference on Anti-Semitism in Berlin.
    Wan graduated Phi Beta Kappa from Johns Hopkins University 
while serving in the United States Army. Wan went on to law 
school at the University of Chicago, where he was privileged to 
serve on the law review, or put another way, they were 
privileged to have him serve on the law review.
    Wan clerked for D.C. Circuit Judge James Buckley, a 
wonderful man, as we all know, a respected Senator and a great 
judge. In addition, Wan has had 6 years of prosecutorial 
experience, including serving as the Special Attorney to the 
Attorney General in the prosecution of Timothy McVeigh and 
Terry Nichols for the Oklahoma City bombing, as well as years 
of experience as a civil litigator at Kellogg, Huber, Hansen, 
Todd and Evans, one of the premier litigation firms in town.
    Although these achievements are certainly enough to impress 
anybody, they are even more remarkable when you consider Wan's 
humble beginnings. Wan's parents came to the United States with 
borrowed money, no education, and a strong desire to find a 
better life. Although Wan and his sister were left in the care 
of their grandparents in South Korea for a period of time, when 
Wan was two months shy of his fifth birthday, they were 
reunited with their parents in Queens, New York. His family 
subsequently moved to Jersey City, where they purchased a small 
luncheonette and later sold the luncheonette to run a 
convenience store in Rahway near the train station. They all 
worked 7 days a week, 365 days a year. In fact, Wan jokes that 
one of his main motivations for joining the military was that 
it was easier than working in the family business.
    Senator Hatch. I am pleased that Wan's parents are present 
today. To his parents, I would like to express how much I 
admire all the sacrifices that they have made on Wan's behalf. 
Let me see if I can do this. Let me say to you parents, [phrase 
in Korean]. Now, I know that I didn't do a very good job. This 
means to you parents that you worked hard and did a good job, 
or your hard efforts paid off.
    Before I close, let me just take a moment to share with my 
colleagues my personal knowledge of Wan's qualifications. As 
some of you may recall, Wan served as counsel to this Committee 
during the 107th and 108th Congresses, working on criminal and 
civil rights legislation. Wan is a very bright and hard-working 
attorney. He is an excellent writer. His legal expertise and 
effective negotiations skills made him someone I could send 
into any situation, knowing that I would be well represented. 
Wan is definitely somebody, a person you would want on your 
    Most importantly, Wan is a good person, a father of two 
beautiful daughters. He takes time out of his busy schedule to 
make sure that his family can spend some quality time together. 
He is a person of integrity and a person whose commitment to 
public service shows how strongly he believes in doing what is 
    If confirmed, and I know he will be, Wan would be the first 
Korean American and the first naturalized American to serve as 
Assistant Attorney General for Civil Rights. But Wan does not 
want to be identified merely by his race or ethnicity. Rather, 
he wants to be judged on his qualifications. It is on that 
basis that I urge my colleagues to act quickly and favorably on 
his nomination.
    One final word. I have had a lot of people who have worked 
with me on the Judiciary Committee and other Committees 
throughout my tenure in the Senate and I have to say that Wan 
is particularly special to me as not only a very intelligent 
and aggressive, hard-working, decent and wonderful person, but 
I think he is the right person at the right time for this Civil 
Rights Division and I know that he will do a terrific job. So I 
hope our Committee will mark him up and put him out as soon as 
we possibly can, and, of course, get this work that he needs to 
do down there going as fast as we can.
    Thank you, Mr. Chairman, for your patience, and thank you, 
Wan, for being willing to serve in the government, and thanks 
to your folks for raising such a wonderful young man, and your 
wife and baby. Thanks.
    Senator Cornyn. Thank you, Senator Hatch, and I will assure 
everyone that when Senator Hatch encourages us to mark him up 
and send him out as soon as we can, that is a good thing.
    Senator Hatch. That is a good thing.
    Senator Cornyn. That is a positive thing.
    At this time, I will recognize Mr. Kim for an opening 
    Mr. Kim. Thank you, Mr. Chairman. Thank you, members of the 
Judiciary Committee, for holding this hearing. I just want to 
make a few thank-yous and then move on. I have a prepared 
statement, Mr. Chairman, that I wish to move into the record.
    Senator Cornyn. Without objection.
    Mr. Kim. First of all, I would like to thank the Committee 
for holding this hearing.
    Second of all, I would very much like to thank Senator 
Hatch for supporting me, for supporting kindness over the years 
which has really far outmeasured the little service that I was 
able to provide for him during the course of a year or so.
    I would also like to thank Senator Corzine and Senator 
Lautenberg for supporting my nomination.
    Of course, I would like to very much thank the President 
and the Attorney General for this honor of having been 
nominated for this important position. I am grateful beyond 
measure for that support.
    And last but certainly not least, and in fact, the most, I 
would like to thank my family, my wife and my children and my 
parents and my in-laws, for their support over the years.
    Thank you, Mr. Chairman.
    Senator Cornyn. Thank you, Mr. Kim.
    [The prepared statement of Mr. Kim appears as a submission 
for the record.]
    Senator Cornyn. Mr. Bradbury?
    Mr. Bradbury. I just have a few thank-yous, Mr. Chairman. 
Mr. Chairman, Senator Kennedy, distinguished members of this 
Committee, first, I want to thank this Committee for giving me 
the opportunity to come before you today. It is the highest 
honor of my professional career to appear before this 
    I am also deeply grateful to Senator Smith for his kind 
presentation. I thank the President for the trust and 
confidence he has placed in me and for the honor of his 
nomination. I also thank the Attorney General for his support, 
for his leadership, and for his friendship.
    Mr. Chairman, I would like to thank my mother, Cora 
Bradbury, without whom I could never be here today. 
Unfortunately, she passed away in 2003. Otherwise, I know she 
would be the proudest person in the hearing room.
    And last, I would like to thank my family. They are my 
biggest supporters and the biggest source of my joy and pride. 
I especially want to thank my wife, Hilde, for her love, her 
devotion, her support, her sacrifices, and her wisdom.
    Thank you, Mr. Chairman.
    Senator Cornyn. Thank you.
    Ms. Wooldridge?
    Ms. Wooldridge. Thank you, Mr. Chairman and members of the 
Committee. I took the opportunity to write down some remarks in 
case I was not capable of a complete sentence today, so if you 
will indulge me for a moment.
    I would like to begin by thanking the President and the 
Attorney General for this nomination. I am sobered by the 
confidence that that nomination has demonstrated their 
confidence in me. If I am confirmed, I will do everything to 
merit that trust.
    I thank you for holding this hearing today, particularly 
Senator Specter, who is not with us yet, and of course to Dan 
Lungren, who has now probably made it impossible for me to 
swing a club without whiffing, since he has now bragged about 
me publicly.
    I am deeply aware of the responsibilities that I will have 
if I am confirmed to be the Assistant Attorney General for the 
Environment and Natural Resources Division. As you know, 
through the litigation in the Federal and State courts, the 
Division is responsible to safeguard and enhance the American 
environment, to acquire and manage lands and natural resources, 
and to protect and manage Indian rights and property.
    The Division has approximately 700 people, including 425 
attorneys. Currently, as Solicitor of the Department of the 
Interior, I manage over 420 attorneys and support staff and 
administer a budget of $60 million. I am the chief legal 
officer and my job is to see that the Secretary and the 
Department's bureaus carry out their mission, which is much 
akin to the mission of the Division. I am told, in fact, that 
the Department of Interior is some 30 to 40 percent of the 
Division work that I will, if confirmed, be taking 
responsibility for.
    Prior to my service at Interior, I was a civil litigator in 
both private and public practice, and for about 5 years, as Mr. 
Lungren has told you, I was his special assistant where I was 
responsible to him in many cases for his exercise of 
prerogatives to bring affirmative enforcement litigation 
against people accused of breaking the law. While these cases 
were civil in nature, these cases gave me the experience in 
what I believe is the most profound responsibility of the 
public servant, that is the decision to apply the power of the 
sovereign against persons or entities believed to have violated 
the law.
    While this type of decision should not be done lightly, I 
believe it must be done consistently and impartially and 
firmly. The question whether to prosecute violations of our 
environmental laws is one that is often faced by members of the 
Environment and Natural Resources Division and I do look 
forward to working with them, the career prosecutors and 
particularly the U.S. Attorneys with whom we partner in 
bringing those cases.
    I thank you very much for your attention and should this 
Committee support the nomination by positively--I am sorry--and 
the Senate vote to confirm me, I do pledge that I will carry 
out my responsibility with dedication and integrity. Thank you.
    Senator Cornyn. Thank you very much, Ms. Wooldridge.
    Mr. Barnett?
    Mr. Barnett. Thank you, Mr. Chairman and thank you, members 
of the Committee. I am deeply honored and, in many respects, 
awed to have been nominated by the President to be the 
Assistant Attorney General in charge of the Antitrust Division.
    I first want to thank Senator Allen for having taken the 
time to introduce me today. I also want to thank my family and 
in particular my wife, Alexa, without whose support and 
patience I certainly could not be here today.
    But more generally, I just want to make a brief statement 
about the antitrust laws in the U.S. economy. In my view, the 
strength and vitality of the U.S. economy is one of the great 
wonders of the world and I believe that one of the principal 
foundations of that strength are the nation's antitrust laws. 
Accordingly, I approach the responsibilities of running the 
Antitrust Division very seriously and I commit to this 
Committee and to the American people that, if confirmed, I will 
apply all of my abilities to the effective, efficient, and fair 
enforcement of those laws. Thank you.
    Senator Cornyn. Thank you very much.
    We will now go to a round of questions. I would like to 
start by asking Mr. Kim, two of the people who introduced you 
made note of the fact that your family immigrated to the United 
States, your parents did, and that they have dreamed the 
American dream for you and your family. I was just wondering if 
you could share with us, is there anything about your family's 
experience or your personal experience in life you think that 
will have a particular poignancy or application, given the fact 
that you will be entrusted with enforcing the civil rights laws 
of the United States?
    Mr. Kim. Mr. Chairman, thank you for that question, and I 
think the answer in a word is yes. My family immigrated to the 
country. My sister and I immigrated separately a few years 
afterwards, after my mother and father were able to become 
established financially. I remember distinctly going to school, 
not speaking a word of English. I remember, once learning 
English, as an 8-year-old boy, quizzing my parents on the 
citizenship that they were about to take. I understand quite 
personally how important it was to my success that the nation's 
laws guaranteed me an equality of opportunity, a chance to 
succeed by working hard and by taking advantage of what America 
has to offer, which is a chance, an equal chance to everyone on 
a non-discriminatory basis.
    If confirmed as Assistant Attorney General, it would be one 
of my personal goals to make sure that every American citizen, 
every American person, has the same chance to succeed that I 
did, and that is a chance that is grounded in many respects 
upon the nation's Federal civil rights laws.
    Senator Cornyn. Thank you. I now want to turn to the issue 
of human trafficking, an issue you and I discussed in your 
courtesy visit in my office. I have been pleased by the 
commitment made by the Department of Justice to make 
prosecution of human trafficking laws a priority. This is 
really a moral evil. I believe that it is equivalent to modern-
day slavery.
    I have introduced legislation in the Senate that will help 
strengthen and enhance the punishment of people who engage in 
this scourge and I hope to be able to work with you and General 
Gonzales and the Department, as well as my colleagues, to make 
sure that you have all the tools that you need in order to 
successfully prosecute those who would ply in human slavery.
    Can we be assured that you will continue the aggressive 
approach to prosecuting human trafficking laws if you are 
    Mr. Kim. Absolutely. Mr. Chairman, first, let me thank you 
for your personal leadership on this issue. You have taken 
great time out of your personal schedule to make sure that our 
work on this issue has been recognized, that your interest on 
that issue has been known, and that has been a great aid to us 
in doing the work that we do in this area.
    Certainly, this administration has spoken and proven its 
commitment to enforcing the laws against human trafficking. The 
President had made clear it is one of his priorities. The 
Attorney General has made this clear. And the work that we have 
done in the Civil Rights Division has made this clear.
    We have more than tripled the number of human trafficking 
prosecutions brought in this administration as compared to the 
previous administration and these cases, once you start delving 
into the facts of these cases, you realize that you are looking 
at some of the most victimized persons ever and some of the 
worst, most odious, and most horrific criminal defendants ever. 
And it is because of these cases, the fact that we can bring 
relief to so many victims and put away so many horrible 
offenders, that the administration will continue to work hand-
in-hand with Congress and to the maximum extent permitted by 
law to continue the work in combatting human trafficking.
    Senator Cornyn. Thank you very much.
    Mr. Bradbury, you have been nominated as Assistant Attorney 
General for the Office of Legal Counsel, a critical job of 
assisting the Attorney General in his function as legal advisor 
to the President and executive branch. Could you tell us a 
little bit about what your priorities are? What can we expect 
from you, if confirmed?
    Mr. Bradbury. Thank you, Mr. Chairman. They are really 
fairly simple. The Office of Legal Counsel is, unlike many 
other components in the Department, not a policy shop. We don't 
do policy in the Office of Legal Counsel. We are a pure law 
operation. So I don't bring any political agenda or ideological 
agenda or goals in a political or policy-driven sense.
    My goals really relate to the provision of legal advice. 
That is the essential function of the office. My goals are to 
do that as efficiently as I can, to hire the best people with 
open minds who don't bring preconceived agendas to their work 
but have the highest qualifications to objectively analyze 
constitutional and statutory questions that the office gets, 
and to provide advice in an efficient way to the President, to 
the Attorney General, to the Departments of the executive 
    I think it is important that that advice be clear, that it 
limit itself to addressing only the issues that are necessary 
for the question presented, and that it do so in a clear way so 
that the policymakers who rely essentially on that advice to 
inform their policy decisions can understand it, that it can be 
persuasive, and that they can take it as a solid given that 
they then work from. It is a critical input to policy decisions 
across the government, but it is not itself a policy-driven 
enterprise, and so that is the perspective I bring to the 
Office of Legal Counsel.
    Senator Cornyn. Mr. Bradbury, a lot of attention has been 
focused in Congress and across America, really, to the issue of 
detention and interrogation of detainees in the global war on 
terror. An August 1 OLC memo written by Jay Bybee discussed the 
anti-torture statute, and that was revised in an opinion on 
December 30, 2004, revising the Bybee memo's interpretation of 
the statute.
    Would you explain to the Committee what involvement you had 
in the preparation of that second memo, if any?
    Mr. Bradbury. Thank you, Mr. Chairman. Yes. Obviously, I 
cannot discuss internal deliberations in the office, but I will 
say that I was not in the Department of Justice back in 2002. I 
was in private practice. My second stint in the Office of Legal 
Counsel began in April of last year, 2004, when I came in to be 
the Principal Deputy Assistant Attorney General. So I was not 
at all involved in the Bybee memo of August 2002.
    I was, at the time of the issuance of the December 30, 
2004, memo, the recent reinterpretation of the Federal 
prohibition on torture, I was the Principal Deputy in the 
office and the Principal Deputy's function is to assist the 
head of the office in reviewing and approving the opinions of 
the office, and so in that sense, I did have that 
    I will say that I fully agree with the December 2004 
interpretation of that statute by the office. It is the 
binding, the authoritative interpretation of the office. And, 
of course, I will apply that interpretation in any advice that 
the office may give, and any advice we do give will be fully 
consistent with that opinion.
    Senator Cornyn. Thank you for clarifying that.
    Observing the early bird rule, we now turn to Senator Kohl 
for any questions he may have.
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Barnett, I have a few questions for you. The American 
consumers are suffering from record high prices in gas, as you 
know, in many places across our country, higher than $3 a 
gallon. Immediately after the Hurricane Katrina disaster, gas 
prices were even higher, reaching as high as $6 a gallon in the 
Atlanta area.
    We all recognize that gasoline prices and markets were 
affected by disruptions in supply caused by the hurricane 
damage, but we also wonder if these sharp price hikes were 
justified solely by market conditions or perhaps other factors, 
such as collusion, anti-competitive practices, or price 
    I recognize that the Federal Trade Commission ordinarily 
investigates antitrust issues related to oil and gasoline 
rather than the Justice Department. However, the Justice 
Department is solely responsible for prosecuting criminal 
antitrust violations.
    So I would like to ask you, Mr. Barnett, what steps has the 
Justice Department taken to investigate possible criminal 
antitrust violations regarding distribution or sale of gasoline 
in recent months, and more importantly, will you make such 
investigation a priority if you are confirmed at the Antitrust 
    Mr. Barnett. Thank you, Senator. I certainly agree with you 
that the situation with gas pricing in the United States is a 
very serious situation, that I am a consumer along with most 
other Americans and I can see what is happening, as well. I 
agree with you, it should be a priority.
    The Antitrust Division is monitoring the situation. Our 
Criminal Deputy has been assigned to and is a participant in 
the Post-Katrina Interagency Task Force to investigation fraud 
and abuse and we are particularly looking for signs of 
collusive activity that we might pursue criminally. We have 
also reached out to various other agencies to dialog with them 
about any information that they may come up with that could 
give us leads in that direction.
    As you indicate, the Federal Trade Commission does have as 
a practical matter principal responsibility for civil 
enforcement in this industry. We do maintain very good 
communications with the Federal Trade Commission, and to the 
extent that their efforts identify any sign of collusive 
activity, we can and will vigorously prosecute any--investigate 
and/or prosecute any such action that we find.
    Senator Kohl. Are you saying that in order for you to move 
forward, you need first to have the FTC take action or make 
comments or suggestions or what? How does that work?
    Mr. Barnett. No, Senator. I am sorry if I left you with 
that impression. What I meant to say, that was an additional 
source of information for us and we are certainly confident 
that if the FTC sees signs of collusive activity, that they 
will refer that information to us.
    In addition, as I say, we are part of the Katrina Task 
Force. We are dialoguing with other agencies. We have 
designated two of our chiefs in our field offices to have 
responsibility to look for collusive activity, our Dallas and 
our Atlanta field offices, and to--of course, they have people 
working underneath them to see if we can ferret out any such 
information. I can commit to you, Senator, that if I am 
confirmed, this will be a priority.
    Senator Kohl. I appreciate that, and I would just like to 
ask you, as an observer, as we all are, of the scene, the oil 
companies are making record profits. They never made as much 
money as they are making now. At the same time, American 
consumers are paying record high prices for gasoline, which is 
what gives them their profits. Doesn't that make you wonder 
whether or not the American consumer is paying a lot more than 
they should be paying? After all, we are looking at an industry 
in which the principals are making more money than they have 
ever made before, while at the same time consumers are paying 
more money than they have ever paid before. Understanding that 
you have got to do your work as an investigator, isn't your 
sense of probability in terms of what might be happening 
piqued, to say the least?
    Mr. Barnett. Yes, Senator, a situation of a sudden price 
increase is something that gets an antitrust enforcer's 
attention quite quickly. This is, in the first instance, I know 
it is an area that the Federal Trade Commission has a very 
active program in. They monitor 20 wholesale markets, 360 
retail markets on a weekly basis. They currently have an open 
investigation, is my understanding, on this specific issue.
    As I say, we are also looking for evidence of anything that 
would fall into the criminal realm, which is the realm that we 
prosecute in the oil and gas industry, and we are focused on 
that, and if confirmed, I will certainly continue that focus.
    Senator Kohl. Thank you. One other question before my time 
runs out. In the last year, we have seen a tremendous amount of 
consolidation in the telecom industry. The biggest deals were 
SBC's acquisition of AT&T and Verizon's acquisition of MCI, as 
you know. These deals, if approved, will result in the most 
fundamental reshaping of the telecom market since the Justice 
Department broke up the AT&T monopoly more than 20 years ago, 
and we held two hearings on these mergers in our Committee, 
that is to say myself and Senator DeWine, last spring.
    Many industry analysts believe that we are moving to a 
telecom world in which consumers will basically have a choice 
of only two companies for their telecom services, the regional 
Bell company offering a bundle of services and a local cable 
company offering a similar group of services.
    Mr. Barnett, do you believe this result is likely, and at 
the end of consolidation, should we be concerned about this 
possibility, that is to say, just two choices, and will 
consumers be forced to pay a price for the fact that these 
mergers are resulting in a marked lessening of competition?
    Mr. Barnett. Thank you, Senator. I certainly agree, the 
telecommunications industry, the phone industry, is an 
extraordinarily important one for the American people. It 
affects all of us very directly.
    We are acutely aware of the transactions that you referred 
to. They are pending investigations, so I think I need to be 
somewhat cautious about discussing them in too much detail. But 
I can tell you that we have devoted substantial resources to 
investigating those transactions. I know that we have received 
and reviewed well over a million pages of documents. We are 
taking those issues quite seriously.
    The way we are approaching those transactions is to work as 
hard as we can to understand what the facts are, to delve into 
the way the markets work, and on the basis of that information, 
to make our best assessment as to whether or not there is a 
substantial lessening of competition in any relevant market. If 
we find that to be the case, we will certainly pursue it 
    Senator Kohl. I thank you, Mr. Barnett, and I thank you, 
Mr. Chairman.
    Senator Cornyn. Thank you.
    Senator DeWine?
    Senator DeWine. Thank you, Mr. Chairman. I don't want the 
rest of you to think we are ignoring you, but I am the Chairman 
of the Antitrust Subcommittee and Senator Kohl and I work 
closely together--he is the ranking member--so we are going to 
pick on Mr. Barnett here for a few more minutes.
    Mr. Barnett, you and I talked a short time ago about the 
fact that today, we have over 100 countries with antitrust 
agencies, over 100 antitrust agencies in the world today. This 
means that merging companies need to comply with really a whole 
array of different antitrust standards, procedures in various 
countries while they do business, even for mergers between two 
American companies. It is a big issue for them and we hear a 
lot about it.
    What are U.S. companies likely to face in the future 
procedurally and substantively as they attempt to deal with the 
antitrust laws of other countries, and what role will the 
Antitrust Division in our country play in ensuring that 
American companies are treated fairly by other nations, and 
what steps is the Antitrust Division taking to create some 
uniformity in the procedural requirements imposed by the 
various antitrust authorities throughout the world?
    Mr. Barnett. Senator, I agree that the international arena 
is one of the most important areas that we address. It is a 
global economy and we deal, as you say, with 100 or so 
antitrust regimes around the country. It creates complexities 
for us as well as for the private sector.
    We--if confirmed, I can assure you that it will continue to 
be a priority for the Antitrust Division. This is really a 
continuation of the policy of the people who preceded me, and 
most recently Hugh Pate, who was personally engaged on these 
issues and, I think, made substantial progress.
    I would hope, if I have the opportunity to do so, to 
continue working on several levels, through international 
organizations such as the OECD or the International Competition 
Network, where through dialog we can create what we call soft 
convergence. The ICN, as just one example, has put out merger 
best practices, merger recommendations guiding other regimes as 
to what information they should ask for and what types of 
procedures they should use in their merger review. Earlier this 
summer, at the annual conference, there was information 
suggesting that almost 50 countries had modified their laws and 
regulations to conform more closely with those recommendations.
    We will continue with those dialogs on a multilateral 
basis. In addition, we engage in bilateral discussions. We have 
annual meetings with the European Commission, with the Japanese 
Fair Trade Commission, with the Canadians, with the Mexicans, 
as well as working groups with Taiwan and other countries.
    We will continue to devote resources to persuading and 
encouraging those countries to adopt sound economic principles 
in their antitrust enforcement, to adopt procedures that 
minimize burdens, because we believe at the end of the day that 
will help consumers across--not only American consumers, but 
consumers in those countries, as well.
    Senator DeWine. Let me turn to another antitrust issue. We 
hear from people who talk to us about how long the Antitrust 
Division's investigations take, not a new issue. It goes 
without saying the Division--we understand the Division must 
thoroughly examine the issues and you must take as long as 
necessary to get all the facts and to make the decision.
    On the other hand, it is always a concern if investigations 
go for a long period of time. The very fact of the 
investigation itself, the delay in a decision can really start 
having an impact on the marketplace. The process itself starts 
to have an impact on competition.
    How do you think the Antitrust Division is doing in terms 
of balancing these two concerns? How do you think you are 
getting along, and what steps, if any, do you plan to take to 
ensure that investigations last long enough to get to the 
bottom of the issue, but no longer than that?
    Mr. Barnett. Thank you, Senator. We do recognize that the 
process has cost and can, in effect, have a drag on businesses 
moving forward. I am glad to report that there have been steps 
taken in recent years, originally implemented, there have been 
some initiatives by Charles James with some additions by Hugh 
Pate, to more closely monitor investigations at the managerial 
level to try and make sure that we understand from staff where 
things are, where they are going, identifying ways to short-
circuit, if you will, an investigation to get to a bottom-line 
    My impression is that we have made substantial progress in 
that regard, but to quote a good friend of mine, Bill Kovasik, 
the only best practice here is to continually strive for better 
practices, and if confirmed, that is what I would continue to 
    Senator DeWine. Good. Thank you very much. Thank you, Mr. 
    Senator Cornyn. Thank you, Senator DeWine.
    Senator Kennedy?

                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you, Mr. Chairman. If I could, I 
would like to have my full statement printed in the record in 
an appropriate place.
    Senator Cornyn. Without objection.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]
    Senator Kennedy. Mr. Kim, congratulations. Congratulations 
to all of you.
    Mr. Kim, we are going to have the extension of the Voting 
Rights Act coming up next year. We are beginning already to try 
and work through and develop the support for it. Can we have 
your unequivocal enthusiastic support in terms of getting an 
extension of the Voting Rights Act?
    Mr. Kim. Senator, first of all, thank you for your kind 
words. I appreciate that.
    Second, the Attorney General has stated, Senator, that the 
Department of Justice is committed to working with Congress on 
reauthorizing the Voting Rights Act and you certainly have my 
support, along with the Attorney General's support.
    Senator Kennedy. This is a very high priority. I expect to 
introduce the reauthorization with the Chairman of the 
Committee, Senator Specter, very soon. I know that Congressman 
Sensenbrenner is working on this issue. It is a matter of 
enormous importance. We want to work with you and the 
Department extensively on this and make sure that we get it 
done right.
    Now, one area of particular concern has been the Division's 
enforcement on the voting rights. This August, we celebrated 
the 40th anniversary of the Voting Rights Act of 1965, one of 
the most important and effective civil rights statutes. Private 
citizens can bring the suits under the Act, too, but the 
Justice Department enforcement is critical to its 
effectiveness. But unfortunately, in recent years, the 
Department has cut back on its enforcement actions. This year, 
the Division has filed only two cases, racial or ethnic 
discrimination against minority voters. In 2004, it didn't file 
any cases at all, not one. And in 2003, it filed one case. In 
2002, only two. That is not a very satisfactory record in light 
of the continuing problem of discrimination against minority 
voters across the country.
    So if you are confirmed, what will you do to see that the 
Department will more vigorously enforce the specific 
prohibitions in the Voting Rights Act against discrimination?
    Mr. Kim. Thank you for that question, Senator. To begin, I 
believe that the work of the Voting Rights Section has been 
very vigorous. Certainly with respect to enforcing Section 203 
of the Voting Rights Act, it is my understanding that----
    Senator Kennedy. It has been. I will give you that.
    Mr. Kim [continuing]. Under this administration, we have 
brought more lawsuits than in the previous 25 years combined.
    Senator Kennedy. OK.
    Mr. Kim. Also, last year, with regard to the 2004 
elections, we launched the most vigorous monitoring effort 
ever, putting more people in more States and more polling 
stations than at any time in history.
    So the Voting Rights Section has not been sitting on its 
hands, Senator, but let me say this. At heart, I consider 
myself to be a nuts-and-bolts litigator. I spent nearly my 
entire career at the Justice Department, both as a career 
attorney and as a political appointee, and with the sections 
that I have supervised and had the privilege of supervising 
over the past 2 years now, I have, when I came to the section, 
tried to look through how they brought their cases, what cases 
were pending, what cases had they brought, and tried to jump-
start smoothing out the litigation process. And in all the 
sections that I have so far been afforded the luxury of 
supervising and the privilege of supervising, the litigation 
statistics have gone up.
    I will bring, Senator, I pledge to you, that same focus to 
bear with all of the other sections if I am confirmed by the 
Senate, and certainly one of those sections would be the Voting 
Rights Section.
    Senator Kennedy. I certainly acknowledge with regard to the 
bilingual provisions, but not with regard to the racial and 
ethnic discrimination. Last year, for example, the Department 
was extremely busy in going to court to oppose voters' interest 
in several court cases, which is unprecedented.
    For example, the Division opposed attempts by Michigan 
NAACP and others to ensure that all the provisional ballots 
cast by eligible Michigan voters were counted in the 2004 
election. The Division argued that the Help America Vote Act's 
creation of the provisional ballot did not give private 
citizens any legal rights that they could enforce in court. In 
fact, the Department was supporting attempts by certain States 
not to count the votes of certain eligible voters.
    But the Congress passed the provisional ballot requirement 
precisely because we are so concerned about the violation of 
the 2000 election, and fortunately, the Division's argument was 
rejected by every court that heard the cases. So you had a lot 
of activity, but not dealing with what the real purpose of the 
Voting Rights Act was about.
    Mr. Kim. Senator, I was not involved in that piece of 
litigation, but it is my understanding that we made two 
distinct arguments with respect to the Sixth Circuit litigation 
that you mentioned. The substantive argument was that under the 
Help America Vote Act, the provisional ballots were counted in 
accordance with the rules of the State jurisdictions, and that 
argument was accepted by the Sixth Circuit.
    The argument that you refer to with respect to standing, 
that the individual litigants did not have a cause of action 
under HAVA, because HAVA--Congress under HAVA imposed sole 
jurisdiction to enforce it upon the Attorney General, that 
argument was rejected because the Sixth Circuit did agree that 
1981 provided for collateral relief even though HAVA did not.
    So, Senator, I respectfully would say that we----
    Senator Kennedy. Well, the fact remains that in the recent 
times, why the Voting Act was passed dealt with racial and 
ethnic discrimination. That is why the Voting Rights Act was 
passed. We have had a long exchange on this with Judge Roberts 
and everyone else, about the 1982 Act and why it was extended, 
the effects test and the intents test, and the record is out 
    I want to be very clear that what has been the record by 
the Justice Department and the Civil Rights Division over the 
recent years in terms of the enforcement has not been good. If 
your testimony is that you are satisfied with it, then I want 
to hear about it, and you have just lost my vote, quite 
frankly, because I think it is so blatant and flagrant about 
the failure to act on it, and standing on its face, I can give 
you the figures on it. And if you can give some justification 
and rationale why there has been such a dramatic drop on it 
when there has been such a need for it, I am glad to hear it.
    Mr. Kim. Senator, what I was hoping to say--and perhaps I 
misled you and I apologize for that--is that I am committed to 
vigorously enforcing all the laws. I believe that what I was 
trying to respond to was some specific questions that you 
raised. I think there is room for improvement across the 
Division, certainly in the Voting Rights Section and certainly 
in all of the other sections that I have not had the privilege 
of supervising at this point. If confirmed, I would bring the 
same rigor and intensity that I have brought to the sections 
that I currently supervise to the Voting Section, and, again, I 
believe that there is always room for improvement.
    Senator Kennedy. Well, if you want to provide additional 
information of what you might do in that area, I would be very 
grateful to you for it.
    If you are confirmed, will you continue to observe the 
bright line separation between the Civil Rights Division role 
of enforcing civil rights and also protecting ballot access and 
the Criminal Division's role in preventing voter fraud and 
other crimes associated with the elections?
    Mr. Kim. Senator, I am sorry, but I don't have the answer 
to that question because I am not simply aware of what that 
line is. I would have to consult with the career staff and 
people in the Criminal Division to better understand what those 
rules are right now.
    Senator Kennedy. Well, the basic point is actually the 
Civil Rights Division has been keeping the civil rights 
enforcement work separate from the criminal enforcement work. I 
met last year with the Criminal and Civil Rights Divisions on 
the matter, and all of them gave assurance that the 
administration had a bright line rule that the Civil Rights 
Division personnel cannot be used to look into voter fraud. The 
principal reason is that if Division personnel are looking for 
fraud or investigating criminal voting matters, minority 
communities would be reluctant to cooperate with them in civil 
rights investigations. That has been a policy in the Civil 
Rights Division. I don't know whether you are familiar with it. 
Do you see it now?
    Mr. Kim. Senator, I certainly appreciate what you are 
saying. I am not familiar with the policy.
    Senator Kennedy. All right. Fair enough.
    Mr. Kim. Certainly what----
    Senator Kennedy. You will take a look at it, will you?
    Mr. Kim. Absolutely.
    Senator Kennedy. And it seems to me that it makes a good 
deal of sense and is something that you would like to try and 
    There is a letter here that I will ask be put in the 
    Senator Cornyn. Without objection.
    Senator Kennedy. I am over my time. Thank you, Mr. 
    Senator Cornyn. Senator Durbin?
    Senator Durbin. Thank you very much, Mr. Chairman. My 
thanks to the panel, to all. And, Mr. Kim, congratulations to 
    Mr. Kim. Thank you, Senator.
    Senator Durbin. I am told by my staff that your nomination 
is significant in three respects: you would be the first Korean 
American in charge of the Justice Department Civil Rights 
Division; the first immigrant to lead the Civil Rights 
Division; and the first former staffer to Senator Orrin Hatch 
to lead the Civil Rights Division. So historic on three counts. 
And it is an important Division, which I am sure you agree.
    The issue of race and civil rights, it has been said, is 
the unfinished business of America, and I would like to speak 
to one aspect of that unfinished business and the activities of 
the Civil Rights Division.
    On August 26th of this year, the Civil Rights Division 
approved a new voting law in the State of Georgia relative to 
the requirement of an ID. Senator Obama from my State, my 
colleague, has introduced a resolution, which I have joined 
with 22 others in cosponsoring, critical of that law and the 
Civil Rights Division approval of the law.
    The New York Times said of this new law, ``In 1966, the 
Supreme Court held the poll tax was unconstitutional. Nearly 40 
years later, Georgia is still charging people to vote, this 
time with a new voter ID law that requires many people without 
driver's licenses, a group that is disproportionately poor, 
black, and elderly, to pay $20 or more for a State ID card to 
vote. Georgia went ahead with this even though there is not a 
single place in the entire city of Atlanta where the cards are 
being sold.'' In the words of the New York Times, this law is 
``a national disgrace.''
    Now, there was a group that came together under the 
leadership of former Secretary of State James Baker and former 
President Carter, and they were critical of this law as well.
    Mr. Kim, what was your involvement in the decision to 
approve the Georgia voter ID law?
    Mr. Kim. Senator Durbin, I had no involvement in that 
decision. I have had the privilege at the Department of Justice 
to work in many capacities. Since I have been in the Civil 
Rights Division, I have supervised three litigating sections. I 
have never had the privilege of supervising the Voting Rights 
    Senator Durbin. Do you agree with the Department of Justice 
decision to approve the Georgia law?
    Mr. Kim. Senator Durbin, as I understand the factual 
analysis involved, the issue is one of retrogression, and that 
is the issue that is the legal standard defined by Section 5. 
It is the legal standard that has been enunciated upon time and 
time again by the Supreme Court. I understand the factual 
submissions in this case were in the thousands of pages. I have 
not had the chance to review it myself. I certainly have no 
reason to believe that that factual determination was wrong in 
this case, but I cannot tell you that--I cannot resolve that 
answer without actually personally going through and reviewing 
all those materials.
    Senator Durbin. Does it give you pause to realize that in 
the State of Georgia there is not a single place in the entire 
city of Atlanta where a voter can buy an ID card; that the ID 
cards that are being offered to voters cost $20 for a 5-year 
card, $35 for 10 years; that the cards are only sold in 58 
locations in a State with 159 counties; that the Secretary of 
State Kathy Cox has said the vast majority of fraud complaints 
in Georgia involve absentee ballots, which are unaffected by 
the new law; and Ms. Cox goes on to say she is unaware of a 
single documented case in recent years of fraud through 
impersonization of a voter at the polls? Does that give you any 
pause in considering whether the Civil Rights Division of the 
United States Department of Justice should have approved and 
precleared this law?
    Mr. Kim. Senator Durbin, all of the considerations that you 
raise should be factors in the analysis, I agree. My 
understanding is, again, having been briefed upon this for the 
purposes of this hearing, that there were other considerations 
as well, not only intensive factual analysis but facts which 
included that there was a waiver of fees permitted for people 
who could establish indigency; that there would be mobile 
stations allowed and brought into places like the city of 
Atlanta to distribute these identification cards.
    Again, the issue is a legal one and a factual one, and that 
is one of retrogression.
    Senator Durbin. Yes, it is true, citizens can swear they 
are indigent and be exempt from the fee, but it is also true 
that many are reluctant to swear to it because they risk a 
criminal penalty.
    I think that I don't understand the thinking of Mr. Tanner. 
Are you familiar with Mr. John Tanner, who was involved in 
    Mr. Kim. He is a distinguished 30-year veteran of the Civil 
Rights Division, sir. Yes, I am very familiar with him.
    Senator Durbin. Do you believe he made a good-faith effort 
to listen to the arguments against preclearance made by civil 
rights groups?
    Mr. Kim. Senator, I know John Tanner, not as well as I hope 
to. I believe he is an accomplished professional, dedicated 
career servant, and I believe that all of the people in the 
Civil Rights Division act in good faith, until and unless I am 
presented with evidence to dispute that.
    Senator Durbin. I don't know Mr. Tanner so I can't reflect 
on his career or what he has done. This decision is troubling, 
to put a new obstacle in the path of voters, one that costs 
them money, that recalls those horrid days of our past with the 
poll tax and obstacles thrown in the paths primarily of the 
poor, the elderly, and minority populations, for a reason which 
is not apparent to anyone. There is no voter fraud involved 
here, according to their own Secretary of State. It is an 
obstacle primarily to the poor, minorities, and the elderly, 
which I think we all know--well, I won't get into that.
    Let me just say this, Mr. Kim. I am troubled about another 
aspect of the Civil Rights Division voting rights enforcement. 
The Bush administration has not brought a single voting rights 
lawsuit alleging racial discrimination against African 
Americans. I find this disturbing. Even more troubling is the 
fact that earlier this year the Justice Department filed its 
first case ever under the Voting Rights Act alleging 
discrimination in voting against white voters. The case was 
brought against a county in Mississippi, a State with, as we 
might know, a long history in this field.
    How do you explain the fact that this administration has 
filed lawsuits under Section 2 of the Voting Rights Act on 
behalf of whites but not African Americans?
    Mr. Kim. Senator, certainly the Voting Rights Act and the 
laws against discrimination protect all American. I am often 
put in the position, when I was a prosecutor, of putting on 
witnesses who happen to have criminal culpability themselves 
and often getting the reaction of some that would say, Why 
would you use those people as witnesses? And my answer, as many 
people who have served as prosecutors would be, was, ``I take 
my witnesses where I find them, and if I can substantiate what 
they say, then I would certainly believe that they are credible 
witnesses, and that's for a jury to decide.''
    Senator Durbin. I think it is----
    Mr. Kim. The point, Senator, is simply that I have not 
supervised the Voting Rights Section, but my understanding is 
we look for cases, we look for facts to support legal theories, 
and we bring those cases where we find them. And I pledge to do 
that across the board.
    Senator Durbin. Well, I hope you will, because I think 
taking your witnesses where you find them is one thing, but it 
all depends on where you are looking.
    Mr. Kim. Senator, I pledge to look across the board.
    Senator Durbin. Thank you.
    I might also add that the same appears to be true in the 
employment discrimination context. The Bush administration's 
Civil Rights Division has not filed a single pattern or 
practice employment discrimination case on behalf of African 
Americans. By contrast, your division has filed several cases 
on behalf of white people claiming to be the victims of 
employment discrimination.
    Mr. Kim. Senator, again, I apologize. I am not as well 
attuned with the facts of those sections, but I could certainly 
supplement the record if necessary to talk about those cases, 
because, again, I don't have as much information with regard to 
those sections to say whether I could sit here and----
    Senator Durbin. And I want to give you a chance to do just 
    Mr. Kim. I appreciate that.
    Senator Durbin. I hope you will. I will send you some 
additional questions.
    Mr. Kim. Thank you, Senator.
    Senator Durbin. Thank you, Mr. Chairman.
    Senator Cornyn. Thank you, Senator Durbin.
    Since it appears there is continuing interest in some more 
questions, let me turn to Ms. Wooldridge. Ms. Wooldridge, you 
have been the Solicitor of the Department of the Interior since 
2004, and in that capacity, you have been, in effect, the chief 
legal officer of that Cabinet-level agency and responsible for 
managing nearly 400 lawyers and 18 offices nationwide and 
providing counsel to the Secretary on a number of substantive 
legal issues. How would you compare and contrast your current 
position with the one that you now stand nominated to fill?
    Ms. Wooldridge. Senator, thank you for----
    Senator Cornyn. I might ask, how do you think that has 
prepared you, if, in fact, it has, for your new job?
    Ms. Wooldridge. Well, Senator, thank you for the question. 
I think in some ways in my own head--and I probably shouldn't 
say it publicly, but I think of the job to which I am being 
nominated as sort of my current job on steroids in that we have 
a great deal of the caseload that is within the Department of 
Justice ENRD is the Interior caseload. We have similar 
missions. But I would speak specifically to my job and tell you 
that--and I appreciated the question about the goals that Mr. 
Bradbury would have in coming into his office, because the 
goals coming into the Solicitor's job turned out to not be the 
goals that I needed to pay most attention to once I got there, 
and that is that we did have 18 offices, we have about between 
350 and 375 lawyers. We also have no calendaring system, no 
case matter tracking systems, no recordkeeping systems, no way 
for the Solicitor to track the advice that is given in one part 
of the country for consistency with another part of the 
    So when I came in, my mission immediately fell to actually 
trying to manage the office and give people the resources and 
the tools that they need to have a fully functioning 
professional legal office. And I think we have made a great 
number of strides in that direction.
    If that is similar to the job I am going to, I am hopeful 
that that is not the case, because it is very difficult for our 
lawyers to be able to--we weren't even hooked up to the 
Internet so they couldn't sit and do legal research at their 
desks, that sort of thing. So I am hopeful that those won't be 
the kinds of cases, though I am fully capable of spending my 
time in the management area.
    My goals, if you will, for moving into the new job seem 
sort of corny, but, in fact, what I really hope that when I 
leave--sort of a hindsight test, that I have made sure that the 
resources are there for the attorneys to do the job they need 
to do, that the morale is good amongst the career staff, that I 
have a reputation for fairness and for listening, the courage 
to make hard decisions, and that I have fulfilled my obligation 
to the laws and the Constitution.
    Senator Cornyn. Thank you very much. That is all the 
questions I have at this time.
    Senator Kohl, do you have any followup questions?
    Senator Kohl. Thank you, Mr. Chairman.
    Mr. Barnett, I would like to turn to the issue of media 
consolidation. Some believe that there is nothing special about 
mergers and acquisitions in the media marketplace and that they 
should be treated much like any other merger. For example, 
former Antitrust Division Chief Charles James said at his 
confirmation hearing in 2001 that the only thing that mattered 
in reviewing a media merger to him was the ``economic 
consequences of the transaction.''
    Now, I don't agree with that. I believe that mergers in the 
media are different because they affect competition in the 
marketplace of ideas which are so central to our democracy. In 
the words of the great Justice Holmes, ``The best test of truth 
is the power of thought to get itself accepted in competition 
of the market.''
    I believe that diversity in ownership is essential to 
ensuring that such competing views are heard. Therefore, I 
believe that we must give mergers in the media special and more 
exacting scrutiny than when we review mergers in other 
industries which do not affect the free flow of information.
    I am interested in your opinion, Mr. Barnett. Is the 
conventional view of antitrust review of media mergers which 
are focused solely on economic factors, such as ad rates, 
correct in your opinion? Or do you believe that the Justice 
Department should consider a media merger's impact on diversity 
of news and information and not limit analysis to a merger's 
likely effect on advertising rates? What is your point of view?
    Mr. Barnett. Well, Senator, I completely agree with you 
that a healthy and robust marketplace of ideas is exceptionally 
important in our Republic, and I am a strong believer in those 
First Amendment values.
    With respect to mergers, we have to approach it under the 
laws that have been enacted by Congress, as interpreted by the 
courts, and I believe that typically leads us to trying to 
preserve a multitude of participants in the marketplace. And I 
would have hoped that there would be a correlation between 
having multiple participants with a diversity of views. I can't 
necessarily guarantee that different owners will have a 
particular viewpoint. But what I can tell you is I agree with 
the fundamental value and goal, and that I will apply the 
antitrust laws to the best of my ability to maintain a range of 
ownership as required by the antitrust laws.
    Senator Kohl. All right. One other question. I believe that 
vigorous antitrust enforcement is essential to ensuring that 
competition flourishes in our economy and consumers reap the 
benefits in lower prices and highest quality.
    In the first couple of years of the Bush administration, 
when the Antitrust Division was headed by Charles James, I and 
others became concerned about the diminished antitrust 
enforcement activity at the Antitrust Division. Statistics 
showed alarming declines in both the Division's civil, non-
merger, and criminal enforcement during that period.
    More recently, your immediate predecessor, Hugh Pate, was 
in my judgment a committed and highly talented Antitrust 
Division head who I believe restored the Division's proud 
tradition of aggressive antitrust enforcement.
    How would you describe yourself, Mr. Barnett, in terms of 
your antitrust enforcement philosophy? Is there any change in 
approach or philosophy of antitrust enforcement we can expect 
from that followed by your immediate predecessor, Hugh Pate, 
should you be confirmed as head of the Antitrust Division? 
Would you say that you compare philosophically more closely to 
Hugh Pate or more closely to Charles James, and in what 
    Mr. Barnett. Well, thank you, Senator. I have to say that 
one of the many happy aspects of my joining the Division last 
year was the opportunity to work with Hugh Pate. He is an 
extraordinarily talented individual, and in my own view, I 
would do well to try and follow in his footsteps. I believe 
that he has had the right enforcement priorities. He placed a 
strong emphasis on anti-cartel enforcement, and indeed, in the 
last fiscal year, we had one of our best years in terms of over 
$300 million in fines and individuals being put in jail for 
engaging in price-fixing and other cartel activity.
    That would continue to be, if confirmed, my top enforcement 
priority. I would continue also to focus on merger enforcement 
and on non-merger enforcement, and I agree with you the last 
several years I think the Division has brought a number of non-
merger cases, and that is an area that we would continue to 
    So the short answer to your question is I agree with Hugh 
Pate's philosophy and will, I believe, if confirmed, work to 
carry that philosophy forward.
    Senator Kohl. I appreciate your answer, Mr. Barnett, and I 
thank you, Mr. Chairman.
    Senator Cornyn. Thank you, Senator Kohl.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman. Just a final few 
    Mr. Barnett, in the pharmaceutical area, we have seen the 
increasing concentration of brand names and increasing 
concentration of generic companies and increasing costs, rising 
a good deal higher than the rate of inflation. Is this the 
Antitrust Division's interest? Or should the Federal Trade 
Commission ought to be concerned about this?
    Mr. Barnett. Well, Senator, I think, as you know, there is 
technically concurrent jurisdiction, but as a matter of 
historical practice, the Federal Trade Commission has taken the 
lead in enforcing civil enforcement in the pharmaceutical 
    Senator Kennedy. OK. We might be working with you as well 
as we are looking at this avian flu, the health committees are, 
and trying to get more rapid response, trying to get companies 
together to try and deal with this and try and look at it in 
terms of also antitrust and what we might have to do on this. 
This might be an area that you give some thought to. I don't 
know whether you have got--I have got limited time here, but 
this is something that I think down the line--I don't know 
whether you have given any kind of thought to what might be 
permissible and what might not be permissible in terms of 
having companies being able to get together to pool resources 
to advance research in terms of vaccines or antiviral kinds of 
    Mr. Barnett. Thank you, Senator. I will be brief because I 
know your time is short. We are active on a range of health 
care-related issues beyond pharmaceuticals. With respect to 
avian flu and that issue, I have given that some thought 
recently, and it is my belief that there is no antitrust 
impediment to creating the kinds of programs that would be 
necessary to prepare the country to defend itself against a flu 
pandemic. The antitrust laws are flexible enough to address 
that, and that is certainly the approach that we would take.
    Senator Kennedy. That is interesting, because when we had 
the initial bioterrorism bill, we had provisions in there for 
certain kinds of exemptions, and actually those provisions were 
struck because of concerns of the Antitrust Division. But that 
was some time ago.
    Let me come to Ms. Wooldridge. I am interested in your 
Department, how you juggle the protections of Indian rights, 
for example, Indian water rights versus all the other kinds of 
priorities that you have in representing the Federal 
Government. What are the kinds of instructions you give to U.S. 
Attorneys when you have a conflict in terms of land and water 
and fowl and other kinds--the whole range. I have not prepared 
a great deal, but it is an area I have been interested in 
because it always appeared to me for many years that the Native 
Americans usually ended up on the short end in terms of the 
protections, water rights, mineral rights, other kinds of 
factors. Just in your own experience, what can you tell us that 
might be encouraging to Native Americans about your service?
    Ms. Wooldridge. Well, thank you, Senator, for the question. 
I think I get the gist of it, so let me tell you what my 
experience has been.
    Since being with the Department in 2001, I have been the 
Secretary's counselor for Indian water rights as well as the 
other jobs that I have been undertaking. And both the 
Department of Justice, the Environment and Natural Resources 
Division, and the Department of the Interior, particularly as 
it is the trustee for Native Americans, works pretty 
aggressively to try to promote economic development and self-
determination in how we handle lawsuits that are--this may be 
getting too technical, but it is the general stream 
adjudications to establish water rights, particularly in our 
Western U.S. And the Department of Justice represents the 
tribes in those cases, in bringing those to establish those 
rights. The tribes often are willing or have a desire to see 
those rights work for them, not just as establish water rights 
but to enable them to actually turn the value of that right 
into an ability to pursue other economic interests.
    So it is something that I have dealt with for the last four 
and a half years, and I think we have a very good record of 
actually getting to some of those settlements. We had a very 
large settlement of almost the entire State of Idaho in 
developing the Nez Perce rights and Gila River rights in 
Arizona. We are making substantial progress in new Mexico, 
although we kind of have fits and starts in that.
    So we have some 18 negotiating teams out there trying to 
develop those rights and to defend and enforce and establish 
those rights for those tribes.
    Senator Kennedy. Good. Well, thank you very much. It is 
enormously important and it has not always been given the kind 
of priority that it should have.
    Mr. Chairman, thank you very much.
    Senator Cornyn. Thank you, Senator Kennedy.
    Without objection, we will put into the record a letter 
from Senator Corzine supporting the nomination of Wan Kim. 
Senator Corzine could not be here today because he had to be in 
New Jersey.
    We will also place in the record letters of support for Mr. 
Kim from the Fraternal Order of Police, the National Asian 
Pacific Bar Association, and the National Asian Pacific Legal 
    We will also make part of the record Senator Warner's 
statement on behalf of Mr. Barnett, without objection.
    Ladies and gentlemen, on behalf of the Judiciary Committee, 
let me thank you for your appearance here today.
    We will leave the record open until 5 p.m. next Thursday, 
October 13th, for members to ask questions in writing. So be 
looking for those, and as fast as you can get them back, the 
more quickly we can mark up these nominations and hopefully get 
your nominations to the floor and get you confirmed.
    So, with that, thank you very much for being here, and this 
hearing is adjourned.
    [Whereupon, at 4 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record